author: Follett, J. : LEARNED, P. J.

text:
    WILLIAM MILLER, Appellant, v. CHRISTINA MILLER and others, Respondents.

      “Illegitimate children” in section 19 of 1 R. S., 754 — means those not horn in lawful wedlock — right to inherit depends on the lana of the place where land lies — U 8. Const., art. 4, sections 1 and 2.
    The term “illegitimate,” as used in section 19 of 1 Revised Statutes, 754, providing that “ children and relatives who are illegitimate shall not be entitled to inherit under the provisions of this chapter,” is t receive its common law signification, 'and means begotten and bom out of lawful wedlock. (Learned, P. J., dissenting.)
    In 1845 the plaintiff was bom at Wiirtemberg, of parents who were citizens of that kingdom, and were then unmarried. By the laws of that kingdom ante-nuptial children are legitimated by the subsequent marriage of their parents. In 1853 the plaintiff and his parents moved to the State of Pennsylvania, and in June of that year his parents there lawfully intermarried; they and the plaintiff resided in Pennsylvania until I860, when they all removed to Elmira, in this State, and there resided until the death of the mother in 1873, and of the father in 1875. The father was married again after the death of plaintiff’s mother. The father was naturalized in 1858.
    By an act of the Legislature of Pennsylvania, passed in 1857, antenuptial children were legitimated by a subsequent marriage of their parents, and by an act passed in 1858, the former act was made applicable to cases occurring before its passage. The plaintiff sought to recover real estate in Elmira, owned by his father, who died intestate, leaving him surviving a widow and brothers and sisters.

      Held, that the right of the plaintiff to inherit was to be determined solely by the laws of this State.
    That having been begotten and bom out of lawful wedlock he was an illegitimate child, as that term is used in the statute of descents of this State.
    That neither the first section of article four of the United States Constitution, requiring full faith and credit to be given in each State to the public acts of every other State, nor the first clause of the second section of the fourth article thereof, providing that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, required such effect to be given to the statutes of the State of Pennyslvania as would enable the plaintiff to inherit land in this State.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee. The action was in ejectment to recover certain real estate situated in Elmira, in this State, to which the plaintiff claimed to be entitled as heir-at-law of his father, who had died intestate. The sole question involved was as to the legitimacy of the plaintiff, he having been born at Wurtemberg before the marriage of his parents.
    By the statutes of the kingdom of Wurtemberg, antenuptial children are legitimated by the subsequent intermarriage of the parents, and inherit in that event the same as children born in lawful wedlock. (§ 4, tit. 17, Laws 1610.)
    In July, 1845, the. plaintiff was born at Wurtemberg. Ilis parents were unmarried and citizens of that kingdom. In 1853 the plaintiff and his parents became residents of the State of Pennsylvania. June 28, 1853, the parents lawfully intermarried in that State, and there lived as husband and wife until 1860. They then moved to Elmira, where they continued to reside together until the death of the wife in 1873. Thereafter the father remarried and died in 1875 intestate, and leaving his second wife and brothers and sisters him surviving. In 1858 the father became a citizen of the United States by naturalization.
    By an act of the Legislature of the State of Pennsylvania, passed May 4, 1857, antenuptial children are legitimated by the subsequent marriage of their parents, and are entitled to all the rights and privileges of children begotten or born in lawful wedlock. By an act of April 21, 1858, the foregoing act of May 14,1857, was made applicable to cases occurring before, as well as after May 14, 1857, unless some interest had become vested. At the timo of the passage of these acts the plaintiff and his parents were resi. dents of the State of Pennsylvania. The intestate’s widow and brothers and sisters are in possession of the lands of which the father died seized ; and for the recovery of which this action was brought. This action was tried before a referee, who ordered judgment for the defendants, from which the plaintiff appealed.

      Robert Stephens, for the appellant.

      John A. Reynolds, for the respondents.
   Follett, J. :

In cases of intestacy personal property is distributed according to the hiw of the place of the domicile of the intestate. (Parsons v. Lyman, 20 N. Y., 103, 112; Moultrie v. Hunt, 23 id., 394; Story’s Conflict of Laws, § 380.) But real estate in such cases descends according to the law of the place where it is situated. (White v. Howard, 46 N. Y., 144-159: Story’s Conflict of Laws, § 424.)

These rules are elementary and control wherever the common law prevails, and in nearly every civilized country. All independent governments exercise without dispute the right to specify by enactment the class of persons who may own lands within their territories, and to define the modes by which title to lands may be acquired and transmitted. This right is necessarily exclusive. Were other governments permitted in the least degree to prescribe the persons who may acquire title to real estate, and the methods by which title may be transmitted, inextricable confusion would ensue.

By the statutes of this State illegitimate children and relatives are not entitled to inherit real estate.' (1 R. S., 754, § 19.)

Words and terms having a precise and well-settled meaning in the jurisprudence of a country are to be understood in the same sense when used in its statutes; unless a different meaning is unmistakably intended.

The word “illegitimate,” when used in this connection, has by the common law, and the law of this State, a well defined meaning, -which is, begotten and born out of wedlock. (1 R. S., 641, § 1; 2 Kent’s Com., 208-209; 1 Blackstone’s Com., 454-455.) This has been the meaning of the word since the common law was reduced to writing. This statute, read in this light, means that children begotten and bom out of wedlock shall not inherit lands in this State.

For most purposes, eacn sovereignty may fix the status of its citizens, which continues wherever they are subsequently domiciled; but the status so fixed cannot confer rights repugnant to the laws of the country of adoption. The Legislature of a State may create the legal relation or status of parent and child between persons in no wise related. This has been frequently done by special laws. Several States have statutes permitting the adoption of strangers, which being done, the two sustain to each other and to all within that State, the legal relation of parent and legitimate child ; but if the two should become residents of this State, and the parent by adoption die intestate possessed of lands, the child by adoption would not inherit under our statutes.

It is said that the cases are not parallel, because an adopted child is not a “lineal descendant,” and, therefore, not within our statutes of descent. This is true, if the term refers to the circumstances of birth instead of to a legal status which may be established by law. If the word ‘ ‘ illegitimate ” in the statute of descents refers, ’ as we think we have heretofore shown, to the circumstances of birth, the two cases are parallel, and if the statute of another State can subvert our statute regulating the descent of real property in the one case, it can in the other. In other words, if the statute of another State can make an heir to lands in this State out of a person not possessing the physical qualities of legitimacy required by our statute, an heir can be so made out of f person possessing none of the physical qualities of a lineal descendant.

A foreign statute, or a status created by it, does not control our statutes regulating the descent of real property. But we are not called upon to elaborately discuss this question, it having been exhaustively done in the King’s Bench and House of Lords. (Birtwhistle v. Vardill, 5 B. & C., 438; id., 9 Bligh., 32; id., 2 C. & F., 571; 7 id., 817.) In this case it was held that.an antenuptial child born in Scotland, of persons domiciled there, could not inherit lands in England, though by the law of Scotland the child had been legitimated by the subsequent intermarriage of the parents. The rule laid down in this case has been uniformly followed in England. (Don’s Estate, 4 Drewry, 197; In re Wright, 2 K. & J., 595; Shaw v. In re Gould, Wilson’s Trusts Law Rep.; 1 Eq. Cases, 247; Law Rep., 3 H. L., 55.)

It is urged that the decisions of the English courts are founded upon the statute of Merton, enacted at the priory of Morton, in Surrey, in the year 1236.

For centuries the ecclesiastics endeavored to subvert the law of England regulating the legitimacy of children, and introduce in its stead the canons of the church. During the reign of Henry II, Pope Alexander III went so far as to assume original and exclusive jurisdiction in cases involving legitimacy, and issued a commission to the bishop of Winton and Exon to inquire .if the mother of one Robert de Ardenna was legitimate, and if so, to restore to said Robert certain lands. It was urged in behalf of the king that Christ refused to entertain such a case upon a petition made to him. “ Master, speak to my brother that he divide the inheritance with me. And he said unto him : Man, who made me a judge or a divider over you ? ” (Luke 12, 13 and 14.) The jurisdiction asserted was successfully resisted, on the ground that temporal courts had exclusive jurisdiction over temporal inheritances. (Davies’ Reports, title of Legitimation.) But it may well be doubted whether the text cited exercised as much influence on the result as the temporal power of that vigorous and stubborn monarch.

Before and during the reign of Henry III, if it was alleged that the person claiming as heir was illegitimate, a writ was issued to the archbishop, or bishop, commanding that inquiry and return upon this issue be made to the king or his justices. (1 Reeves’ Hist., chap. 3, 168.) By the canons of the church, and the rule of the Roman law, the subsequent intermarriage of parents legitimated antenuptial children, and the ecclesiastics were inclined to return according to the canons of their church, and contrary to the common law.

At the parliament of Merton the ecclesiastics endeavored to enact the rule of their church, but “ all the earls and barons, with one voice, answered that they would not change the laws of England which had hitherto been used and approved.” (1 Black. Com., 19, 456; 2 Kent’s Com., 209.) No change whatever was made at Merton ; and, thereafter, the ecclesiastics were required to return the facts, whether the claimant was begotten and born out of wedlock, and judgment was rendered by the courts according to the common law. (1 Reeve’s Hist., chap. 3, 169.)

Bracton, an ecclesiastic, as well as lawyer, who wrote, it is supposed, in the time of Henry III, in discussing the effect of the legitimation of antenuptial children by the subsequent intermarriage of their parents, said: “It follows to consider how the illegitimate are legitimated, and it is to be known, that if any one has natural children by any woman, and after-wards contracts matrimony with her, the children already born are legitimated by the subsequent marriage, and are reckoned fit for all lawful acts, nevertheless only for these which regard the sacred ministry, but they are not legitimate for those which regard the realm, nor are they adjudged to be heirs who can succeed to their relatives, on account of a custom of the realm, which is of a contrary import.” (Chap. 29 f., 63 b. or vol. 1, page 503 of the Lords Commissioners edition.)

It may be safely asserted that the decisions of the English courts rest on the common law. But it is not very material whether they rest on the common law or the early statutes, because the English statutes enacted before the settlement of this State are a part of its common law. (Bogardus v. Trinity Church, 4 Paige, 198; 1 Kent’s Com., 473.)

Prior to the passage in Pennsylvania of the act of May 14,1857, it was there held that a child begotten and born out of wedlock in another State, and legitimated by the law of that State, could not inherit lands in Pennsylvania. (Smith v. Derrs' Administrators, 34 Penn. Stat., 126.) The question in the case at bar was not necessarily involved in Smith v. Derrs' Administrators, because, under the statute of Pennsylvania, at the time the case arose and was decided, only persons born in lawful wedlock and posthumous children were entitled to succeed to real and personal estate. (§§ 13 and 17, act of April 8, 1833; 1 Brightly’s Purdon’s Digest [10th ed.], 809; §§ 33 and 36, p. 810.) But the doctrine of Birtwhistle v. Vardill was discussed and fully approved by the court. In Lingan v. Lingan (45 Ala., 410) an illegitimate son, born and domiciled in France, was legitimated according to the laws of that empire. The father died intestate, seized of real and personal estate, in Alabama. It was held following Birtwhistle v. Vardill and Smith v. Derrs' Administrators, that the legitimated child was not entitled to inherit. But a single case has been cited by the counsel, or found by the court, conflicting with the cases above referred to. Scott v. Key (11 La. Annual, 232) is in direct conflict. In this case, it was held by a divided court, that an act of the Legislature of the territory of Arkansas legitimating an illegitimate child, rendered the child legitimate for the purpose of inheriting lands in Louisiana. But the statute regulating the descent of lands in that State does not exclude, from the list of persons who may inherit, children begotten and born out of wedlock ; but, on the contrary, permits them to inherit if legitimated by the intermarriage of the parents -• and recognition.

Smith v. Kelley (23 Miss., 167) is not in conflict with the English cases. This was a case of an antenuptial child, born in South Carolina, in which State the parents intermarried, but at that time their intermarriage did not legitimate the child. Subsequently, the three became citizens of Mississippi, where antenuptial children were legitimated by the subsequent intermarriage of the parents. The father died intestate. It was held that the status of the child was fixed by the domicile of its origin; where it was illegitimate, so remained, and could not inherit. If this bo law, the plaintiff not being legitimate in the country of his birth, remains illegitimate, unless the intermarriage of the parents in Pennsylvania legitimated the child in the domicile of its origin. Many of the civil law writers hold that the domicile of the origin of a person determines in all other jurisdictions the question of legitimacy. Nevertheless, in our consideration of this case, we have excluded this question and passed upon the rights of the plaintiff as though born in Pennsylvania.

Wheaton, in his treatise on International Law, says : 11 That as a general rule, a status (citizenship, legitimacy, majority, and the like), acquired by persons in one jurisdiction, attaches to and travels with them wherever they afterwards reside.” (§ 84 of the editions by Dana or Boyd.) But, in the succeeding sections, 85-93, he states, among other exceptions to the general rule, that real estate is controlled by the lex loci rei sites, instead of by the status created by other jurisdictions.

Wharton, in his treatise on the Conflict of Laws, sums up the question m this language: “§ 243a. So far as concerns succession to personalty, it has been generally stated, that when a natural son is entitled to succeed by the laws of the father’s last domicile, he is entitled everywhere, and that as to the general status of legitimacy, the law of such last domicile is conclusive. But as to land, the limitations of the lex rei sites must prevail.”

Dicey, in his treatise on the Law of Domicile, states the rule in the same way. (Rule 35, pages 181-193.)

Story, in his Conflict of Laws, says: if a person is legitimated in a country where domiciled, he is legitimate everywhere, •'and entitled to all tbe rights flowing from that status, including the right to inherit. This conclusion is reached after an examination and comparison of the conflicting views of the writers upon the civil law, whose writings are extensively quoted in the fourth chapter of the Conflict of Laws. The opinion of the learned commentator is entitled to great respect, but we think ought not to prevail against the authorities above cited, and especially as the writers from whom he quotes are very much in conflict, and he fails to cite any English or American authorities in support of his views. The citation of a few sections would not do the learned author, or the subject, justice. His views, and the reasons for his conclusion, cannot be satisfactorily understood without a thorough examination of chapter 4 of the Conflict of Laws, nearly all of which is relevant to this subject.

The comity existing between foreign States does not require the courts of this State to respect the laws of another State which, in effect, regulates the transmission of real property situate in this State. Nor is the rule changed by reason of the question arising under the laws of one of the United States.

Section 1 of article 4 of the Constitution of the United States provides : “ Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State, and the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” Bjr an act of Congress of May 26, 1790, it is provided that such acts and records, duly authenticated, “shall have such faith and credit given to them in every court, within the United States, as they have .by law or usage in the courts of the State from whence the said records are, or shall be taken.” (1 U. S. Stat. at Large, 122.)

Madison said hi regard to this section of the Constitution (Federalist, No. 42): “The meaning * * * is extremely indeterminate.” Notwithstanding this constitutional provision, and the legislation under it, the Federal and State courts, except in the case of Scott v. Key (11 Louisiana Annual, 232), have uniformly held that the statutes of one State cannot affect the transmission of lands in another State. (Story’s Conflict of Laws, §§ 430-431; McCormick v. Sullivant, 10 Wheat., 202; McGoon v. Scales, 9 Wall., 27.) In McGoon v. Scales it was said : “ It is a' irinciple too firmly established to admit of dispute at this day - bat, to the law of the State in which land is situated, must we. *■ >ok for the rules which govern its descent, alienation and trans-R el*, and for the effect and construction of conveyances. ”

The first clause of the second section of the fourth article of the Constitution of the United Slates provides, that: “ The citizens of each State shall be entitled to all the privileges'and immunities of citizens in the several States.” This clause does not embrace and protect rights conferred by a State upon its citizens incident to the marriage contract. Only privileges and immunities pertaining to citizenship are secured by this provision. (Conner v. Elliott, 18 How., 591; Corfield v. Coryell, 4 Wash. C. C. R., 371-880.) Under this clause citizens of other States are entitled to the same rights conferred upon our own citizens, but not to ¡ greater or different rights. (Livingston v. Van Ingan, 9 Johns., 507-577; Lemmon v. The People, 20 N. Y., 562.)

Restating the question involved in this controversy, its determi- ■ nation turns upon whether the word illegitimate, in our' statute regulating the descent of lands, is to be given its' common law signification, or its meaning under the civil law.

The family is the basis of all civilization. In the Roman empire the marital relation was not the exclusive/nor hardly the chief fountain head of the family, and consanguinity was not one of its distinguishing features. Concubinage was recognized, and the head of the family might incorporate in it, strangers in blood, and children born out of wedlock, as well as those born in wedlock'. Members of the family so formed were entitled to succeed to the estate of the head, without regard to the ties of consanguinity. Under this system, the word “legitimate,” when used in connection with the family, became descriptive of the status of persons, instead; of the circumstances of their birth.

The corner stone of the family of English civilization is the \ marital relation, and consanguinity is its chief distinguishing feature. It is the policy of the common law to make the most tender and important of human alliances permanent, instead of transitory, and to encourage the early union of those who, having' formed irregular connections, are capable of entering, into the marriage contract. Permitting the legitimation of children long after their birth, by the marriage of their parents, would not tend to the establishment of families through that relation. This is not the place to draw a comparison between the civilizations founded upon the two systems. Several States have adopted in whole, or in part, the rule of the civil law. But this State has not, and the Legislature of another State cannot thrust it upon us.

We think, until the rule is changed by the Legislature, that the common law meaning of the word “ illegitimate ” must prevail.

The judgment is affirmed.

LEARNED, P. J.

(dissenting) :

There is no doubt that the law of this State governs the descent of land therein. That law may direct that the land shall descend in any way which seems best to the legislative power. In fact, the descent of land in this State is regulated not by feudal principles nor by the common law of England, but by our own statutes. Land of an intestate descends first to his lineal descendants. (1 R. S. [m. p.], 751, §§ 1 and 2.) But illegitimate children are not entitled to inherit under any of the provisions of the chapter of descents, (except as this rule has been modified by certain subsequent legislation). (1 R. S. [m. p.], 754, § 19.) The plaintiff is the lineal descendant, the child, of the deceased. Was he legitimate at the time of the death of his father ?

The plaintiff’s domicile of birth -was, the kingdom of Wurtcra-berg; of which kingdom both of his parents were subjects. They subsequently became domiciled in the State of Pennsylvania, and his father became a citizen of the United States by naturalization. While they were domiciled in Pennsylvania, and while he was a minor and was there with them, they were lawfully married in that State.

By the law of the domicile of birth, Wurtemberg, and by the law of the acquired domicile, Pennsylvania, the plaintiff was legitimated by this subsequent marriage of his parents. As they were at the time of such marriage domiciled in Pennsylvania, and as he, their minor child,, was also domiciled with them there, the law of Pennsylvania declaring him to be legitimate, governs bis status. The law of the personal status must, in the language of Lord Stowell, be tried by reference to the law of the country where the status originated. (Dalrymple v. Dalrymple, 9 Bligh, 45.) If two persons contract marriage in the manner which is lawful in the place of their domicile, and where the marriage is contracted, such marriage must be lawful, and the offspring must be legitimate, even in a country where other or additional forms are necessary to the validity of a marriage. (Story Conf. Laws, § 113, and cases there cited.) And the effect of marriage on the status of children must be determined by the lex loci contractus. (Wharton Int. Law, § 91; Huberus’ Conf. Laws, tom 2, lib. 1, title 3, §§ 2 and 3.)

That the status of legitimacy arising under the law of one nation is to be recognized by other nations was acknowledged in the strongest terms by the English courts in the very case in which, on other grounds, they refused to permit the legitimated child to inherit.

The case of Birtwhistle v. Vardill (9 Bligh, 7; 2 Clark & E., 571) involved a question very similar to that here presented. In that case, a son was born of Scottish parentage, in Scotland, before the marriage of his parents ; and the parents afterwards intermarried there. By the law of Scotland this marriage legitimated the son. In the opinion given by Chief Baron Alexander, on behalf of the judges, ho says : “ The comity existing between nations is conclusive to give the claimant the character of the eldest legitimate son of his father, and to give him all the rights which are necessarily consequent upon that character.” But he held that the son could not inherit in England, because, although he was legitimate, yet he was not born in wedlock. Thus he says : “We have, therefore, considered whether, by the law of England, a man is the heir of English land merely because he is the eldest legitimate sou of his father. We are of opinion that these circumstances are not sufficient of themselves, but that we must look farther and ascertain whether he was born in lawful wedlock.”

This case was not decided at the time when this opinion was given. It was again argued before the House of Lords, and the opinion of the judges was given by Chief Justice Tindal (7 Clark & F., 895, at p. 925). He there repeats the views of Chief Baron ALEXANDER, and says that the law of the country where the claimant was .born is allowed to govern bis status as legitimate. But he says that the maxim of England in respect to the descent of 'land is that the son must be bom after actual marriage; and that this is a rule juris positivi. He bases the statement that such is the rule upon the form of the writ issued to the archbishop (Glenville Bk., 7 C., 13), and upon the statute of Merton (Bracton Bk., 5 C., 19). The form of the writ was : “ Bo quod ipsi bastardus sit natus ante matrimonium matris ipsorum.” (1 Reeves’ Hist, by Finlason, p. 168.)

The same arguments and views had been used in the court below. (S. C, 5 B. & C., 438.)

. Thus, we have the distinct and repeated assertion of the judges of England that a son, thus legitimated in Scotland, was legitimate in England ; and that the reason why he could not inherit was that the English heir must be, not merely legitimate, but born after wedlock. If a statute of England had declared that the eldest legitimate sou should inherit, it would seem that the decision of that case must have been different.

The distinction thus made by the English court between one who is legitimate and one who is born in wedlock seems strange. It was criticised by Lord Beougham: in that case. But it was made the ground of the decision. And the same view was again, taken in the case of In re Don (4 Drewry, 197). There it was admitted that the son was legitimated by a subsequent marriage, but it was held that though he was legitimate his father could not inherit from him. And if the highest tribunal in England, with the authority of the English judges also, has thus recognized the effect of a foreign law legitimating a son, we need not cite any ■ other authority on that point.

It should be noticed at this point, that when the common law of England, on the subject of the descent of land, took form, it was hardly possible for the question to arise as to the effect of the law of a foreign country in legitimating a child. Because, generally speaking, it is only the citizens, or subjects, of a country whose status is effected by its laws. Persons born out of the king’s dominions ■or allegiance were aliens, and being aliens could not inherit land. (1 Bl. Com., 373.) If, therefore, in the early times, any child had been legitimated by the subsequent marriage of its parents in a foreign country, it would be hardly possible that such child should be, in other respects, capable of inheriting. Hence it is 0 that the only question which arose in early times was as to the effect of a subsequent marriage in England, and between English subjects. And it was on this point that the barons refused to adopt the rules of the civil law. (1 Reeves’ Hist. by Finlason, pp. 108, 299.) It was after the two countries of Scotland and England came to be united that the question, as to the effect, of foreign legitimation, arose. And thus too, in the present case, we are brought to meet the question as to the effect of a law of legitimation of a sister State upon those who wore subject to its law, and who, at the same time, as citizens of the United States, are-not aliens in our State. And, unless we deny to a sister State the right to declare the status as to legitimacy of those whose parents are there domiciled and there contract marriage, we must admit that the plaintiff is legitimate here. If legitimate, he inherits.

The case of Smith v. Don, Admr. (34 Penn. St., 126), is placed on the ground that by the laws of Pennsylvania none can inherit who are “ born out of lawful wedlock.” It has already been stated that our statute contains no such language.

In Lingan v. Lingan (45 Ala., 410), the court say that their own statutes provide two modes of legitimation, and that the law does not recognize foreign legitimation. It has already been shown that, even in England, the comity of nations does recognize foreign legitimation. And see Story Confl. (ut supra).

In Scott v. Key (11 Louis. Ann., 232), legitimation by an act of the State of Arkansas was held to entitle a child to inherit.

It is argued that the word “legitimate” means “born in lawful wedlock.” That such is not its solo meaning is manifest from the case of Birtwhistle v. Vardill above cited, in which it is repeatedly admitted that a son might be “ legitimate ” who was not born in wedlock. The definition in 1 R. S. [m. p.], 642, § 1 is limited expressly to the title of the statutes which there commences.

The meaning of the word has reference to the law of the State which can create the status. “ Legitimate,” under the laws of Scotland, and generally under the civil -law, applies to a child of persons lawfully married before or after its birth. Can it be said that such a child loses its legitimacy when it goes into England or comes into this State ? Is the child of parents lawfully married in Pennsylvania, legitimate there and illegitimate here ?

This is not a question as to the effect of foreign laws of adoption. Our statute gives the inheritance, not to adopted children, but to “lineal descendants ; ” words which do not include adopted children.

Of course, this is a question of law not of equity. But, inasmuch as the question is new in this State, and no precedents have already been made to guide the action of parties, it is proper to consider the justice of the case. There had existed among the Romans a practice of concubinage, a permanent connection without the sanction of marriage. (Heinec Synt. Adp. 1. 1., § 38.) Whether a connection was marriage or concubinage appears to have depended on intent. (Dig., XXV, 7, 4.) Constantine established the rule that children who had then been born in concubinage, called natural children, should be legitimated by a subsequent marriage. (Code V., 27, 5.) Other emperors extended the rule, so that at last a subsequent marriage gave to children bom in concubinage full legitimacy. (Inst. I., 10, 13; C. V., 27, 10; Mackenzie Rom. Law, 126; Voet Comm. Adp., XXV, 7, 6; Heinec Synt., 1, 10; § 23, etc.) Justinian established another mode of legitimation, where the emperor, at the request of the father, declared a child legitimate. Thus it appears that legitimacy can bo conferred by the supreme power of the State.

The canon law adopted the rule : Tanta est vis matrimonii ut qui antea sunt geniiipost contractum matrimonium legitimi habean-tur. (Decret. IV, 17, 6.) The same rule has been established in countries which receive the civil and canon laws, and by some States in this country.

The parents of the plaintiff, trusting to the laws of Pennsylvania, did what they could to repair the injury inflicted upon him. Whether he should be legitimate, or illegitimate, was a matter which concerned him and them only. That State had provided a mode by which his parents could give him the status of legitimacy. It does not appear that there was any legal barrier to the mai'-riage of his parents, either when it was contracted, or at the time of his birth. And the act of the parents in thus relieving the plaintiff from the stain on his birth was just and righteous. It ought to have its full force here ; the full force given to it by the law of Pennsylvania. That State had a right thus to encourage two persons, who were subject to its laws, to change from a condition of unlawful connection to the lawful condition of marriage ; and it had a right to promise them that, by so doing, they should give their child the full benefit of legitimacy.

We cannot doubt that the father trusted to this law of Pennsylvania and believed that his son was legitimate. In this belief he died intestate, feeling no necessity of making any will, and supposing that his son would inherit his property. It is just that the son should inherit, and I see no rule of law which forbids. There is nothing requiring us to construe the statute of descents so as to exclude children made legitimate by the consent of their parents and by the authority of law, subsequent to their birth.

I have not here considered the question how far the Constitution of the United States, requiring full faith and credit to be given to the public acts of other States applies to the present case. (Const., art. IV, § 1.) Yet it may be asked whether, if a special statute of Pennsylvania had declared this plaintiff legitimate, this State could disregard that statute ? And is not a general act of equal force with a private statute ? But I have preferred to put the matter on the general ground of the authority of every State or country over the status of its citizens ; and on the ground that such status goes with the person, even to other States and countries.

Present — LearNed, P. J.; BoardmaN and Follett, JJ.

Judgment affirmed, with costs.

       Since the above opinion has been in print the attention of the reporter has been called by Judge Follett to the case of Fenton v. Livingston (5 Jurist [N. S.], part 1, page 1183), to the effect that the statute of Merton ñ only declaratory of the common law.


source: Caselaw Access Project

author: LeabNed, P. J.

license: Public Domain

text:
    MARTIN J. SUNDERLIN, as Receiver, etc., of WILLIAM RICHARDSON, Plaintiff, v. THE ÆTNA INSURANCE COMPANY OF NEW YORK, Defendant.

      Insurance — when a subsequent policy does not aover the sarnie property, so as to vitiate a former policy thei'eom containing a condition against further insurance.

    MotioN for a new trial on exceptions ordered to be heard in the first .instance at General Term, after a nonsuit directed at the circuit.
    The action was brought by the plaintiff, as receiver of the property and effects of William Richardson, to recover upon a policy of insurance, executed by the defendant upon a tannery, in the village of Watkins, N. Y., consisting of a building and machinery connected therewith, and attached thereto as an entirety. The policy purports to “ insure William Richardson against loss or damage by fire, to the amount of $1,500 ; $1,250 on his frame building detached, occupied by the assured as a tannery, situate on the comer of Decatur and Rood streets, Watkins, Schuyler county, N. Y. ; $150 on engine, boiler and pumps; $100 on his bark mill, machinery, shafting and iron pipe, all contained therein.”
    The company defended on the ground that the policy had been avoided by reason of Richardson’s effecting other insurance with the National Standard and Mechanics and Traders’ Insurance Companies on the property covered by the defendant’s policy without its consent being indorsed on the policy, as required by its conditions.
    The court at General Term said: “The principle decided in Merrill v. Agricultural Insurance Company (73 N. Y., 452) leady to the conclusion that, by the law as settled in this State, if the insurances in the Standard and in the Mechanics and Traders’ company were not on the second and third items in the policy, then the policy was not void as to those items by reason of the additional insurance. The question then comes up, did those insurances apply to the second and third items of the policy in question.
    “ That policy insured $1,250 on his frame building detached, occupied by assured as a tannery, * * $150 on engine, boiler and pumps, and $100 on bark mill, machinery, shafting and iron pipe, all contained therein. The policy in the National company used the same language. Those in the Standard and in the Mechanics and Traders’ described the property insured as follows : ‘ $1,000 on his frame building detached, occupied by assured as a tannery.’ Thus these two policies used the very same language as that used in the first item of the policy in question, and omitted the description of the second and third, items, viz., the engine, etc., and the machinery, etc The fair construction is that these two policies applied only to the building. Their language is such. They insure ‘the frame building,’ nothing more. Its use i?i described, because it might be important to know the mode of use. But the policies do not even say that they insure the tannery as such. They assure only 1 the frame building.’ In Bigler v. N. Y. O. Ins. Go., (20 Barb., 635), cited by defendant, the insurance was on the plaintiff's ‘ steam saw mill,’ and those words were held to include the machinery. But the language in these policies is different. The parties seem to have had simply the frame building in view, and not the engine or machinery.”

      B. W. <& G. M. Woodward, for the plaintiff. John J. Van Allen, for the defendant.
   Opinion by

LeabNed, P. J.

Present— LeabNed, P. J., BoabdmaN and Follett, JJ.

Motion for new trial granted, costs to abide event.


author: Follett, J.;

text:
    JAY B. KLINE, Respondent, v. WILLIAM G. COREY, Appellant.

      Amended, complaint ■— when the defendant, by answering the allegations of both the original and amended complaint, waives the objection that the original is swper-seded by the amended pleading — when the original and amended pleading will be considered as consolidated.

    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.
    This action was brought in tbe Comity Court of Tompkins county to recover tbe sum of $800, as tbe agreed price for certain services rendered and disbursements made by tbe plaintiff as an attorney. Tbe original complaint was verified October 13, 1877, and set forth tbe cause of action, but it was not stated therein, as required by section 340 of tbe Code of Civil Procedure, that tbe defendant was a resident of the comity. October 15, 1877, a complaint called an amended complaint was verified and served, alleging simply that both of tbe parties to tbe action were residents of tbe county of Tompkins and nothing more. October twenty-seventh the defendant served a verified answer in which he admitted that the parties resided as stated in tbe amended complaint, and that the plaintiff bad rendered some services, and made some disbursements as an attorney in behalf of tbe defendant; but denied that be had agreed to pay $800, or any sum therefor. May 31, 1878, the action was referred by stipulation to Erancis M. Finch to bear and determine.
    When the cause came on for trial before the referee, the defendant objected to any evidence being given on the part of the plaintiff, and asked for a judgment dismissing the action, upon the ground that the amended complaint did not state facts sufficient to constitute a cause of action, whereupon the plaintiff, over the defendant’s objection, was allowed to consolidate the two complaints, and the trial proceeded. This ruling was the principal error assigned by the appellant.

      The court at General Term said: “We are of the opinion that the defendant having treated both complaints as one in his answer, by expressly answering the allegations contained in both, waived his right to take advantage of the rule, that an amended complaint supersedes the original. Having joined issue upon both, as one, and gone down to trial without objection, the referee would have been justified in holding that the two complaints were consolidated, and in proceeding to try the issue raised by the parties without entering an order for the consolidation of the two complaints. In this view, it is unnecessary to consider whether the referee had power to consolidate the complaints or not, for, in effect, .they had been consolidated by the action of the defendant.”

      Wilbur F. Osborn, for the appellant. Jay JB. Kline, respondent in person.
   Opinion by

Follett, J.;

LeaeNed, P. J., and BoakdmaN, J., concurred.

Judgment affirmed, with costs.


author: LearNed, P. J.

text:
    JOHN B. MILLER, Appellant, v. THE OSWEGO AND ONONDAGA INSURANCE COMPANY, Respondent.

      Policy of insurance — condition in, against change of occupation — when it mil not be avoided by a change of tenants.

    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the circuit.
    The action was brought to recover upon a policy of insurance against fire issued by the defendant.
    The court at General Term, after overruling certain defences interposed by the company, said : “ Still another defence is this : The policy describes the building as occupied on the first floor as a dry goods and hardware store ; second story, storage, cigar manufactory and manufacture of tinware ; third story, as a printing office. The policy contains a clause that ‘if any change whatever shall take place in. the situation, occupation, use or condition of the premises insured, or the neighboring buildings, without the consent of the company indorsed thereon,’ the policy shall be void. It was proved that afterwards a committee, of whom one of the defendant’s agents was a member, rented a part of the second floor for a Tilden and Hendricks club room. No other evidence was given as to the use made of this part of the second floor, or the purposes to which the occupants put it. Whether the Tilden and Hendricks club used it for storage, or how they used it, does not appear. A condition of this kind, forfeiting the rights of the insured for an act which does not injure the insurer, ought not to bo extended in its meaning. ‘ It must be construed in view of the situation and character of the property insured and the contingencies affecting its use.’ ( Whitney v. Blade River Ins. Co., 72 N. Y., 118.) The description in that policy showed generally that the first floor was occupied by the insured himself as a Store ; that the other stores were occupied by tenants for manufactures and the like. Now, we cannot say, as a matter of law, that a change of tenants, even if the new tenant was a Tilden and Hendricks club, was such a change in the use and occupation of fhe building as, of itself, to forfeit the policy. The defendant must tse supposed to have had some reasonable meaning in this clause, tad not to have intended it as a mere trap to catch the plaintiff f, during the time of the policy (expiring in October), a new tenant should come in. The object of the clause was to protect : tgainst increased risk ; and the change referred to must, therefore, at least be one which is substantial.”

      Spriggs & Mathews, for the appellant. C. W. Avery, for the respondent.
   Opinion by

LearNed, P. J.

Present — LearNed, P. J., BoardmaN and Follett, JJ.

Judgment reversed and new trial granted, costs to abide event.


text:
    JAMES BENEDICT and others, Survivors, etc., Respondents, v. DAVID M. JONES and others, Appellants.

      Sheriff’s sale under execution — not opened because of the forgetfulness of the bidder that there were prior incumbrances on the pi'operty.

    Appeal from an order made at Special Term, opening a sheriff's sale as to one parcel and reinstating the judgment to the amount of the bid. On the sale the plaintiffs were represented by their attorney, who had been and was then ill, and -who bid upon a certain farm, called the Lovewell farm, believing the judgment to bo a first lion thereon, though in fact there were two recorded mortgages prior thereto. The attorney had previously seen a search with these two liens noted thereon, but from illness had lost all recollection of them at the time of the sale. The sale was made December 20, 1877; the notice of motion on which the order appealed from was made was dated November 18, 1878.
    The court at General Term said : “ Sheriff’s sales under executions are ministerial, and not judicial; they are made by virtue of the power conferred by the statutes, and not under a decree of the court. {Griffith v. Fowler, 18 Vt., 394; Borer on Judicial Sales, 25, and cases cited.) At such sales, the rule of caveat emffior, applies, and the purchaser is charged with constructive notice of all liens and conveyances duly executed and recorded. {Frost v. The Yonkers Savings Bank, 70 N. Y., 553-560; Stafford v. 'Williams, 12 Barb., 240; llocksell v. Allen, 3 McLean, 357.)
    “ In addition to constructive notice, the purchasers in this case (who are the plaintiffs in the execution), through their attorneys had actual notice of the existence of the mortgages complained of. They seem to have been relieved at Special Term from their purchase, because at the sale one of their attorneys “forgot the mortgages on the Lovewell farm.”
    “It would be a dangerous innovation to hold that the consequences flowing from actual notice may be obviated by subsequent forgetfulness, unless it was induced by the misconduct or inadvertence of some other person, or caused by such a loss of mind as would render the person incapable of entering into a binding contract. In judicial sales, the contract is made by the court, and it will interfere to relieve a purchaser under equitable circumstances. But these purchasers are not entitled to relief under the rule applicable to such sales.
    “ It is well settled that a judicial sale will not be set aside where the surprise or mistake complained of is owing to the neglect or inattention of the party injured (if an adult), and is of a character which could have been avoided by the exercise of ordinary care. (Parkhuvst v. Gorey, 8 Stockton, 233; The American Insurance Company v. Oakley, 9 Paige, 259; Gardiner v. Schermerhorn, Clarke Ch. Eept., 103; Francis v. Ohurch, id., 478.) Thin principle, as here applied, is not in conflict with The Kingsh i Bank v. Bitinge (40 N. Y., 391) relied upon by the plaintiff i counsel. The defendant, in that case, never had any title to, f ■ interest in the money which the plaintiff negligently permitte» 1 the sheriff to pay over ; and the distinction between the case thei ¿ presented, and one of purchase of real estate, is distinctly recognized at page 396. This was not a sale forced by others, and occurring unexpectedly, but was made under the direction of the plaintiff’s attorneys, both of whom were present. They had long been engaged in the controversy out of which the sale arose, had. ample time and moans for acquiring a perfect knowledge of the situation, and were familiar with every step taken.
    The defendants had furnished them with a certified abstract of title, which disclosed the existence of the liens complained of, which they examined and made memoranda upon, indicating that their attention was particularly called to these liens.
    The evidence fails to disclose fraud, misconduct, or any act of any person, which induced the plaintiff’s attorneys to purchase the Lovewell farm. Neither is the evidence sufficient to justify the conclusion that the memory or intellect of one of the attorneys was so enfeebled, as to unfit him from entering into a binding contract.
    “ Another attorney, the co-partner of the enfeebled one, was also •in attendance at the sale, and it is not claimed that he was suffering from illness or loss of memory. But conceding the circumstances were such, that relief from the purchase should have been granted, if promptly applied for, it ought not to be in this case, because of the delay in making the application.”

      Leslie W. Russell, for the appellants. Samuel Hand, for the respondents.
   Opinion by

Follett, J.;

LEARNED, P. J., and BoardmaN, J., concurred.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


author: Brady, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, v. SIDNEY P. NICHOLS.

      Certiorari — a Special Term at chcmbet's in first district cannot entertain the proceedings on the return thereto — Gene-al Rule No. 44 — the usual notice of argument fe>' a regular Special Term must he given, the time cannot he shcrrtened hy cm crrder to show cause — Code of Civil Procedwe, § 964 — not applicable to proceedings on eei’tiorari.

    The defendant Nichols, claiming to have been unlawfully removed from office by the mayor of New York, applied at a Special Term, held in the third judicial district, for and obtained a certiorari to review the action of the said mayor, which writ was returnable at a Special Term to be held in the first district at chambers. A return was filed on September fifteenth.
    On September sixteenth an order was made by a justice at chambers, in the first district, requiring the respondent in the certiorari to show cause at a Special Term, to be held at chambers in the first district on the twenty-second day of September, why the relator should not have judgment on the return.' The respondent therein then applied to an extraordinary General Term of the first department, convened by the governor, for a writ of prohibition prohibiting the Special Term at chambers in said district or any justice presiding thereat from proceeding to any determination, trial or judgment in the said controversy.

      Held, that a Special Term held at chambers in the first judicial district was not a Special Term, such as is contemplated by General Rule No. 44, authorizing-a case of certiorari to be brought to a hearing at Special Term.
    That, 'in any event, the order to show cause was unauthorized, as the case under Rule 44 could only be brought to a hearing upon the usual notice of argument, and the justice had no power to shorten the time of such notice.
    That the case was a proper one in which to grant a writ of prohibition and that the writ should be granted.
    Section 964 of the Code of Civil Procedure providing that an issue of law arises only upon a demurrer has no application to proceedings by ceriAwcuñ.

    MotioN for a writ of prohibition made on the return of an order to show cause why such writ should not issue.
    In June, 1879, the defendant, Sidney P. Nichols, claiming to have been wrongfully removed from the office of police commissioner of the city of New York, by the mayor thereof and by the governor of the State, applied, upon notice, at a Special Term held at Albany, in the third judicial district, for a writ of certiorari to both the governor and the mayor. On August 12, 1879, an order was entered refusing the writ as to the governor but granting it as to the mayor; the writ to be returnable “ before the Special Term of this court, at the court house, in the city of New York, on the first Monday of September next.” On the same day the writ was issued.
    On August 30, 1879, an appeal was taken by the mayor, from the order allowing the writ, to the General Term of the third department. On September 3, 1879, an order was entered at chambers, in New York, denying a motion of the mayor for a stay of proceedings pending this appeal, upon condition that the relator’s counsel should stipulate that the appeal might be heard at the October General Term in the first department (the General Term in the third department not being held until November), and allowing the mayor until September eighth to file the return, upon his stipulating to try the case on the third Monday of September, otherwise the return to be filed September fifth. On the latter day an order was granted staying all proceedings on the certiorari until the argument and decision of a motion which had been noticed to quash and supersede it. On September thirteenth, this order was vacated and the respondent was required to file his return on or before eleven o’clock on the fifteenth day of September, on which last named day the return was filed.

      On September 18, 1879, a chambers order was made by a justice of the Supreme Court directing that on September 22, 1879, before him, at a Special Term at chambers m New York, the mayor should show cause “why the relator,” Mr. Nichols, “ should not have judgment on the return of the respondent, vacating, reversing and declaring null the judgment of the respondent removing the relator from his position as commissioner of police of the city of New York, and why the relator should not have such further and other relief as might be proper in the premises.”
    On September 20, 1879, the mayor, at an extraordinary General Term of the court convened by the governer, applied for and obtained an order, requiring the Special Term, and also Mr. Justice WestbROOK and Mr. Nichols, pursuant to chapter 70 of the Laws of 1873, to show cause why a writ of prohibition should not issue for the purpose of restraining any further action in the matter.
    On the return of the order to show cause, the mayor moved for an absolute writ prohibiting the Special Term at chambers, and the justice presiding thereat, from proceeding to any hearing, determination, trial or judgment touching the matters in controversy between the relator, Nichols, and the mayor, Mr. Cooper, or any matter appearing in the writ or in the papers on which the same was granted, or appearing in or arising upon the return, and prohibiting Mr. Nichols from applying or moving for any hearing, trial, determination, or judgment touching those matters, upon the writ and return, or either of them.

      F. AT. Bangs, for the relator.

      W. A. Butler and John D. Townsend, for the respondent.
   Brady, J. :

Having been assigned by my associates of the' General Term to the performance of that duty, I have in the following opinion expressed as concisely as possible the result of our examination of and consultation upon the questions which we deem involved in this matter.

The relator applies for a writ prohibiting the Special Term at chambers held in this district, and any justice presiding thereat, from proceeding to any determination, trial or judgment in the controversy between Sidney P. Nichols and the .relator, arising upon a certiorari issued upon the application of Mr. Nichols, and made returnable at that Special Term, and though the arguments of counsel covered an extensive field,, the only questions to be considered are those which appertain to the propriety of granting the writ applied for.

It appears from the papers submitted that Mr. Nichols feeling himself aggrieved by the official action of the relator, applied for and obtained a common law writ of certiorari, the object of which was to secure a review of such official action, and a judicial determination of its propriety and justice.

The certiorari was made returnable at a Special Term to be held ■on the first Monday of September, at chambers, in this district, and certain proceedings were thereupon had in relation thereto including, among others, the filing of a return by the relator (the mayor), which was done on the fifteenth of September, instant.

As already intimated it is not the intention of this court at this time to express any views in regard to that certiorari or the proceedings thereunder, except so far as may be necessary for the determination of the application for the writ of prohibition.

The common law writ of certiorari, for which application must be made to the court and not to a judge at chambers (1 Crary Special Proceedings, 159), is not a writ of right, but rests in the' sound discretion of the court to which application for it may be made, and when granted, it seems, must regularly be made returnable at the General Term and at the General Term of the district in which the proceedings sought to be reviewed are had. (5 Waite’s Pr., 472 and authorities cited.) When the return is filed, and the proceedings are in a condition to be heard, a hearing, by an existing rule of this court (Rule 44) may be secured by either party at the Special Term, except in cases in which they are by law required to be heard at the General Term, and in cases of certiorari to Courts of Sessions and Oyer and Terminer in criminal cases, and the proceedings may be placed on the preferred calendar of the Special Term upon filing a proper note of issue. Originally the hearing was at the General Term, and this continued to be the rule uutil the adoption of new rules by the judges in convention at the capítol, in the city of Albany, on the 24th of November, 1874, and which were to commence and take effect on the 1st of February, 1875. Hule 53 then adopted is ■precisely the same as the present rule number 44 to which reference has been made and which was re-adopted in 1877. The rule of the Supreme Court on the subject existing in 1847 provided only for the hearing at Special Term of cases of cer-tiorari to remove interlocutory proceedings of subordinate courts, and which was to be brought on upon the usual notice of argument ; or, if placed upon the calendar of the General Term, was entitled to a preference on the morning of any day during the first week of the term.

This rule was again adopted in convention in 1849. It was continued in 1854. It was changed, however, in the convention of the judges in Albany in August, 1858, and the old rule established. Rule 47 of the then declared rules is as follows :

“ Every case of certiorari to subordinate courts, tribunals or magistrates may be brought to a hearing by either party upon the usual notice of argument, and shall be entitled to preference on the morning of any day during the first week of the term.”

The parties were, therefore, deprived by this rule of the right, to a hearing at Special Term, whether the case related to interlocutory proceedings or not, as we learn from its positive terms. This rule was reiterated in a convention of the judges held at -the capítol at Albany, in December, 1870 ; but provision was made by it that the cause should be placed on the preferred calendar on fifing a proper note of issue. The judges, however,, in 1874, as already suggested, changed the rule and adopted the practice established by rule 53, to which reference has already been made ; and it allowed either party a hearing upon the usual notice at Special Term, except in the cases already mentioned.

It is quite clear, from this history of the rule applicable to cases arising from certiorari, that until the adoption of rule 53, already mentioned, there was no provision made for any hearing at Special Term, except where the certiorari related to the removal of interlocutory proceedings of subordinate courts, tribunals or magistrates,. a right of which subsequent rules deprived them.

It must be borne in mincl, in regard to the rules established by the conventions of the judges, that they have the force and effect of statutes and cannot be properly departed from. Section 17 of the Code of Civil Procedure, requiring the judges to meet, declares that the convention must establish rules of practice which shall be binding upon all courts of record, except the courts for the trial of impeachments and the Court of Appeals.

The respondent in a proceeding by certiorari is, therefore, under the statutes, entitled to the usual notice of argument — not notice of the argument of a motion — but the usual notice of argument (founded upon a note of issue to be filed), that' the cause will be brought to a hearing which is to be had upon the return, and is designed to be a deliberate consideration of all the questions properly presented by it. The Code confers no authority to shorten this time. The provisions of section 780, relating to a notice of motion in an action where the court or a judge thereof, upon an affidavit showing ground therefor, may make an order to show cause returnable in less than eight days, have no application whatever to proceedings upon certiorari.

Assuming, therefore, that all the proceedings before the Special Term were regular down to the time wÜen the order to show cause why Mr. Nichols should not have judgment upon the return was granted, it is quite clear that the respondent in that proceeding (the relator here) was entitled to the usual notice of any hearing that should be had at a Special Term in the certiorari' proceedings. It was a right secured by the rule of this court, adopted in convention under a statute authorizing it, and possessing, therefore, all the force and vigor of a statute on the subject. It was a right of which, without legislation or a change* in the rule by a convention of the judges, he could not be* deprived.

The order to show cause, therefore, issued on the sixteenth'. September, instant, the day after the return was filed, having been made returnable in less than the usual time for notice of argument was unauthorized, and the exercise of any power under it should be prohibited.

This view is based upon the assumption that the Special Term at chambers, held on the first Monday of September and still con-turning, is a Special Term such as is contemplated by rule 44. But it is not.

In this district, under the statutes authorizing the appointment of terms to be held, there is a distinction between Special Terms at chambers and Special Terms proper. In the former the jurisdiction to be exercised relates to non-enumerated motions and chamber business, and not to the trial of issues of law or of fact, nor to the exercise of any appellate jurisdiction. This distinction is rendered necessary by the enormous amount of chamber and n on-enumerated business which the court is called upon to transact, as well as the large number of issues which are presented for consideration at Special Terms. In effect there is no difference in the application of this rule to this city and to other districts, because in the other districts the Special Term and chambers are held together, and all the business pertaining to either is there transacted. The hearing to be had upon a return to a certiorari is an enumerated motion, a result evidenced by the original practice of requiring the writ to be returned to the General Term, and the proceedings in reference to it to be had before that tribunal, and by the continuing practice, as already suggested of requiring the writ to be returnable there, although the hearing may, in the manner directed, be had at Special Term.

The result of an examination of this branch of the motion is, therefore, that the Special Term at chambers for non-enumerated motions has no authority to entertain the hearing provided for in proceedings upon a common law certiorari without consent, and consequently none to compel it by an order to show cause.

It, therefore, appears that even if the usual notice of argument had been given, the Special Term at chambers was not tire proper tribunal in which a hearing could have been lawfully had.

It was urged on the argument that the certiorari and return to it presented no issue of law, because an issue of law under section 964 of the Code arises only upon a demurrer. But the learned counsel seems to have overlooked the declaration contained in section 963, that the issues treated of by the chapter of which section 964 is a part, are only those which are presented by the pleadings in civil actions, and that the proceedings by certwari are special and are not marked or distinguished by any pleadings, eo nomine. Therefore, section 964 does not apply to the subject-matter, and can have no controlling influence in the consideration of the questions treated of in this opinion.

It is questionable whether the practice established by the rule allowing a hearing upon a common law certiorari at Special Term is a wise one, because the effect of it is to constitute a single judge a quasi appellate tribunal to consider a final determination it may be of a number of persons authorized to act officially and conjointly, in the exercise of power affecting the rights or property of the citizen or the public welfare. And this view seems to have impressed itself upon the special committee of the senate on the revision of the statutes who, in their report to the senate (section 2138) provide that cases arising upon certiorari must be heard at the General Term of the court held within the judicial department embracing the county where the writ was returnable.

Having arrived at these conclusions the question remaining is whether an attempt was made to exercise jurisdiction in conflict with the doctrines hereby enunciated; and the answer is that there was such an attempt made. The order to show cause granted on the 16th day of September, 1879, in the certiorari proceedings requiring the respondent to show cause at a Special Term, to be held in the court house, in the city of New York, on the twenty-second of September, or as soon thereafter as counsel could be heard why the relator should not have judgment on the return vacating and declaring null the judgment of the respondent removing Mr. Nichols, the relator, from his position as commissioner of police of the city of New York, and why he should not have such further relief as might be proper in the premises, was in contravention of the views herein expressed.

The Special Term named not being a tribunal having the power to take cognizance of sucn a proceeding with a view to a final judgment, and the order to show cause being unauthorized, because it was for a less time than the usual notice of argument prescribed by the rule and, therefore, by the statute, the order mentioned was unauthorized, and being unauthorized should be prohibited, and by prohibition rendered null and void.

The order to show cause, however, is not the only evidence of the assumption of power to accomplish its object, because the learned justice who signed it had already stated in an opinion given by Mm as follows : 1 ‘ The writ was properly made returnable at the chambers, Special Term. The term now being held there is a Special Term of the Supreme Court having all the powers and functions belonging thereto, of which it cannot be deprived by a rule which simply partitions business among terms and parts of the same court. Making the writ returnable when it was is also, it seems to me, fully warranted by the rules.”

It is only necessary to say further, that the right and duty of this court to interfere in such cases by writ of prohibition is established by the case of Quimbo Appo v. The People (20 N. Y., 531), in which the court say : “ It is true that the most frequent occasions for the use of the writ are where a subordinate tribunal assumes to entertain some case or proceeding over which it has no control, But the necessity for the writ is the same where in a matter of which such tribunal has jurisdiction it goes beyond its legitimate powers ] and the authorities show that the writ is equally applicable to such a case. ■ Mr. Jacob, “ it is further said, ” in treating of this writ after saying that it may issue to inferior courts of every description whether ecclesiastical, temporal, military or maritime, whenever they attempt to take cognizance of causes over which they have no jurisdiction, adds, “ or if in handling of matters clearly witMn their cognizance they transgress the bounds prescribed to them by the laws of England, as where they require two witnesses to prove the payment of a legacy.”

And the court say further, “ these cases prove that the writ lies to prevent the exercise of any unauthorized power in a cause or proceeding of which the subordinate tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction.”

NAnd further, “ that the writ was never governed by any narrow technical rules, but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals.” And the court further said properly, “ the scope of this remedy ought not I think to be abridged, as it is far better to prevent the exercise of an unauthorized power than to be driven to the necessity of correcting the error after it is committed.”

The relator Mr. Nichols is not prejudiced. He may go on with his proceeding initiated by the certiorari according to the pi’evail-ing law and practice. This court, by its judgment on this application, does not in any way interfere with him in the enjoyment of that right. It interferes only to prevent the exercise of a power which is unauthorized and in violation of law. The administration of justice in a due and orderly manner, and which means according to the rules established by statutes or otherwise, is essential to the protection and preservation of personal rights and the rights of property and the public welfare, and these rules cannot be departed from, although in some special cases there may be a seeming hardship arising from their due application.

The motion for the writ is granted.

Present — Davis, P. J., Beady and Bareett, JJ.

Ordered accordingly.