Arnold agt. Rees. refute, the county court can take jurisdiction of such proceedings, while it cannot of the simplest case of foreclosure. No practice can be found of foreclosing a mortgage upon petition instead of bill, and, therefore, the legislature is powerless (so the argument runs) to confer the jurisdiction. I do not believe this to be a reasonable interpretation. What then are the special cases in equity, of which jurisdiction can be given to the county court? To answer this question, we must consider not only the fair import of the language used, but also the other judicial arrangements of the constitution, and the terms employed in making those arrangements. In the judiciary article, provision is made for a supreme court, with "general jurisdiction in law and equity," and in the same article we find the clauses concerning the county court and the county judge. Now the words "general," and "special," are manifestly used in senses precisely opposite. The idea represented in one of these terms is the very one designed to be excluded by the use of the other. If, therefore, the special jurisdiction of the county court resides in the nature and quality of the cases in which it is to be exercised, irrespective of leg islative enumeration, it follows that the general jurisdiction of the supreme court resides in those of an opposite nature and quality. If the word "special" limits the power of the legislature in one direction, the word "general" limits it in another. If the county judge cannot receive jurisdiction in any case where the remedy was by bill in equity because it is not a special case, the supreme court cannot entertain it in a summary proceeding, because this is not a general case. In short, neither of these tribunals can take any share in the jurisdiction which is given or allowed to the other. We are thus brought to a conclusion which we know to be false. We know that the powers of the supreme court are not thus limited, and we must, therefore, reject the interpretations which lead to such a conclusion. Why then is the jurisdiction of the supreme court denominated " general?" Plainly because no legislative specification of the subjects of that jurisdiction is required. That of the Arnold agt. Rees. county court is "special," in a sense directly the opposite-that is to say, the cases in which that court may review its jurisdic tion, must be specified and defined by the legislature, and hence they are called special. The terms special and general being used to denote opposite qualities of the two jurisdictions. When we are certain that we have the true meaning of one of these, we cannot be mistaken as to that of the other. If we know that the general nature of the jurisdiction of the supreme court has no reference to a distinction in the quality and char acter of controversies, then we may also be certain that the spe cial jurisdiction of the county court rests on no such distinctions. It is special because it must be specially conferred by legislative act. The cases in which it may be exercised must have a special definition, and nothing can be taken without such definition or contrary to it. The question before us was, I think, in its substance and nature involved in the recent decision of this court in Doubleday agt. Heath, (16 N. Y. R. 80.) That was a suit in one of the county courts for the partition of lands. It was, therefore, a case in equity according to the distinctions between law and equity, existing at the adoption of the constitution. It is true that partition could be had by petition and proceedings of a summary character in the common law courts. (2 R. S. 315.) But the remedy by bill in equity was as ancient as the time of Queen Elizabeth. In this state, it was modified by certain statutory provisions, but still the remedy existed and was in frequent use down to the constitution of 1846, and after that time until the Code of Procedure was enacted. Under the Code, the action for partition has now taken its place, modified as the suit in equity was, by the statutes referred to. In holding, as this court did, that jurisdiction could be given to the county court in a suit for the partition of lands within the county, it was necessarily determined that some matters which were formerly remediable by bill in chancery, could be brought by act of the legislature within that jurisdiction. That point being conceded, where does the power stop? Is it limited by another distinction to be drawn between cases in equity, where Arnold agt. Rees. the remedy by bill has been in some degree modified by statutory regulations, and other cases in which there has been no interference by legislation? Are the cases in one of these clauses special and the other not within the meaning of the constitution? This cannot be the distinction which the convention or the people had in view. But even if it were, we find that the remedy by suit in equity for the foreclosure of a mortgage, had been modified by a variety of statute regulations, some of which were of great importance in the administration of that remedy. (2 R. S. 191.) I see no solid ground, therefore, for distinguishing between the case of partition already decided by this court, and the one now before us. For the reasons suggested, I am of opinion that the legislature can confer jurisdiction on the county courts in suits for the foreclosure of mortgages upon lands in the county, and the sale of mortgaged premises. The judgment of the supreme court should, therefore, be reversed, and judgment rendered for the defendant on the demurrer, with leave to go to trial on the issue of fact. NOTE.—The constitution in reference to the origin and jurisdiction of county courts, is as follows: 1. "There shall be elected in each of the counties of this state, except the city and county of New-York, one county judge, who shall hold his office for four years. He shall hold the county court, and perform the duties of the office of surrogate. The county court shall have such jurisdiction in cases arising in justices' courts and in special cases, as the legislature may prescribe; but shall have no original civil jurisdiction, except in such spécial cases." (Const. of 1846, article 6, § 14.) 2. “The legislature may confer equity jurisdiction, in special cases, upon the county judge." (Const. of 1846, article 6, § 14.) 3. "The legislature may, on application of the board of supervisors, provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate, in cases of their inability or of a vacan cy, and to exercise such other powers in special cases as may be provided by law." (Const. of 1846, article 6, § 15.) It would seem that there ought not to be any radical difference of opinion in reference to the construction of these simple and plain provisions. The county court shall have such jurisdiction as the legislature may prescribe, confined to special cases, and cases arising in justices' courts, but shall have no original civil jurisdiction except in such special cases. This seems to be the fair construction Warner agt. Ford. of the first subdivision. The second subdivision is very plain witbout any transposition of language. The legislature may confer equity jurisdiction, (in special cases.) upon the county judge, (not upon the county court.) The third subdivision shows that the constitutional convention still had in view the special cases to which they intended the jurisdiction of the county judge, surrogate and local officers should be confined; and also the exercise of such other powers as might be provided by law in reference to such special cases. The legislature was to prescribe such jurisdiction, not such special cases, they were already prescribed; and such jurisdiction as the legislature thought proper to give the county court and county judge in these special cases and cases arising in justices' courts, seems to be the only authority conferred upon them by the constitution. That is, such jurisdiction might be limited and special in some of the special cases, and general and original in others, and appellate as to the jus tice's court cases; but in no event could original civil jurisdiction be conferred except in such special cases. As to what special cases the constitutional convention had reference, appears to be very well stated and defined in the able opinions of Judges GARDINER and HAND, in the case of Kundolf agt. Thalheimer, (2 Kern. 593.) That is, all those summary proceedings and special provisions in law and equity, which were well known and distinguished from the ordinary common law actions, and suits by bill and answer in equity, and which are now under the Code classed as special proceedings as distinguished from civil actions, would seem to be referred to. The moment these well defined landmarks are left, a sea of discussion opens, in which the further it is traversed the denser the fog.-[REPORTER. SUPREME COURT. TIMOTHY WARNER agt. ACTON P. FORD and NORMAN FORD, impleaded with WESTEL S. FORD. Where two or more defendants' liability are joint, and but one judgment can be entered, the defendants are equally liable for the whole costs, where one has suffered a default, and the others defended the action unsuccessfully. Madison Special Term, December, 1858. THIS is an action brought upon a joint note, as appears from the affidavits before me on this motion. The defendant Norman Ford appeared and answered the complaint, and the defendant Acton P. Ford suffered default. Warner agt. Ford. The plaintiff demurred to the answer of Norman, and had judgment upon the demurrer, and entered a joint judgment against the defendants, with the costs of suit, including the costs of the demurrer. The defendant Acton P. Ford now moves the court to have the costs of the demurrer stricken out of the judgment against him. D. J. MITCHELL, for motion. MASON, Justice. This being an action as shown by the affidavits, where there is only a joint liability of the defendants, the plaintiff could not proceed and enter a several judgment against the defendant who did not appear. (Parker agt. Jackson and others, 16 Barb. R. 33; Harrington agt. Higham and others, 15 Barb. R. 524; Ladue agt. Van Vechten, 8 Barb. R. 664; Crandall agt. Beach and others, 7 How. P. R. 271; 5 Sand. S. C. R. 210; 13 How. P. R. 511; 11 How. P. R. 197; 2 Whittaker's Pr. 68; 3 Sand. S. C. R. 752.) It being clear that there cannot be several judgments against the defendants, the question recurs whether the plaintiff was right in taxing the costs of the demurrer in the judgment against A. P. Ford? I think these costs were properly taxed against all the defendants, and such I understand to have been the practice both before and since the Code. The rule is so declared by Judge BRONSON, in Henman agt. Booth, (20 W. R. 666, 668,) and Justice BIRDSEYE, in Catlin agt. Billings and others, (13 How. P. R. 511, 515, 516.) The principle of these cases controls the case before us. The principle is laid down in 2d Tidd's Practice, 899. The rule was held in Smith agt. Harris, (12 Ill. R. 462.) And I do not see that it could make any difference if the contract on which the suit is brought were joint and several, when the plaintiff sues them jointly, for he is entitled to joint judgment. As the defendants have assumed a joint liability, the plaintiff is entitled to insist upon a joint judgment, and it does not lie with one of the parties to say that joint liability shall be |