refusing to revoke it when shown to be erroneous; so a mandamus, where they refuse to fix a day for the hearing; and so a writ of prohibition, where they usurp jurisdiction not warranted by statute. Reynolds v. Schultz, 34 How. 147; 4 Rob. 282. i. Appeals from surrogate's court. The statutory provisions regulating the proceedings on appeal from surrogate's decree are not affected or repealed by the joining of law and equity jurisdiction. See Johnson v. Hicks, 1 Lans. 151. j. Appeal from an order of a county judge denying a new trial.It is doubtful if an appeal can be taken to the supreme court from such an order, before judgment, and then only in connection with an appeal from the judgment. Taylor v. Scoville, 54 Barb. 34. This section expressly exempts the following provisions of the Revised Statutes from any effect of the second part of the Code: CH. V, PT. 2, OF THE REVISED STATUTES (2 R. S. 1). TIT. 1, ART. 1. Of attachment against absconding, concealed, ors. 2. Of attachments against debtors confined for crime. 3. Of voluntary assignments made pursuant to the application of an insolvent and his creditors. 4. Of proceedings by creditor to compel assignments by debtors, imprisoned on execution in civil causes. 5. Of voluntary assignments by an insolvent for the purpose of exonerating his person from imprisonment. 6. Of voluntary assignment by a debtor imprisoned on execution in civil causes. Laws of 1857, ch. 427. Where a debtor is imprisoned and applies for his discharge under this article, it rests in the discretion of the court, whether to require security for the absolute delivery of his property, and if any, then to fix the form and amount of the same according to the circumstances of the particular case. Roswog v. Seymour, 7 Rob. 427. Where defendant moves to vacate an order of arrest, on the ground of his discharge in insolvency under either the third, fourth, fifth or sixth articles of this title, the court has power to examine into the validity of such discharge. American Flask and Cap Co. v. Son, 7 Rob. 233; 3 Abb. N. S. 333. It seems this power is derived from article seven, §§ 21, 22. Ib. 7. General provisions applicable to proceedings under the several preceding articles. of 8. Of the powers, duties, and obligations trustees as assignees under this title. 9. Provisions respecting assignees under former insolvent laws. 10. Provisions of the "act to abolish imprisonment for debt and to punish fraudulent debtors," passed April 26, 1831, other than those which relate to justices' courts. Perkins v. Warren, 6 How. 348. TIT. 2. Of the custody and disposition of the estates of idiots, lunatics, persons of unsound mind, and drunkards. CH. V, PT. 3, OF THE REVISED STATUTES. TIT. 6. Of trespass on lands. 8. Proceedings to discover the death of persons upon whose lives any particular estate may de pend. CH. VIII, PT. 3, OF THE REVISED STATUTES. TIT. 1. Of the bringing and maintaining suits by poor persons. Ostran der v. Harper, 14 How. 16, Roberti v. Carlton, 18 How. 466. ! TIT. 3. Of suits by and against executors and administrators, and against heirs, devisees and legatees. Olmstead v. Vredenburgh, 10 How. 215; Hollister v. Hollister, id. 532; Roe v. Swezey, 10 Barb. 247; Laws of 1859, chaps. 100, 261. 4. 5. Of proceedings by and against cor- 6. Of actions for penalties and for- 9. 10. Laws of 1859, ch. 79; Laws of 1860, chaps. 208, 469; Laws of 1862, ch. 482; Laws of 1863, ch. 422.. Of proceedings for the recovery of rent and of demised premises. Of summary proceedings to recover the possession of lands in certain cases. Benjamin v. Benjamin, 5 N. Y. (1 Seld.), 383; Laws of 1857, ch. 684; Laws of 1862, ch. 621. 11. Of distraining cattle and other chattels doing damage, and of distraining in other cases. 13. Of proceedings as for contempt, to enforce civil remedies, and to protect the rights of parties in civil actions. People ex rel. Davis v. Compton, 1 Duer, 572; S. C. 9 N. Y. (5 Seld.), 263, sub nom. People ex rel. Davis v. Sturtevant; Matter of Smethurst, 2 Sandf. 724; S. C. 3 Code R. 55; 4 How. 369. CH. IX, PT. 3, OF THE REVISED STATUTES. TIT. 1. Of the writs of habeas corpus and a. Habeas corpus.-What officers may issue it. See Nash v. People, 36 N. Y. (9 Tiff.), 615; S. C. 33 How. 384; 2 Trans. App. 209; S. C. below, 25 How. 307, sub nom. Matter of Nash. b. Jurisdiction of the judge in proceedings upon habeas corpus, where a party, arrested on any process, is brought before him, includes the power either to discharge the prisoner or to remand him back to proper custody, but not to remand him conditionally, or to declare that he is entitled to the liberties of the jail. People ex rel. Crouse v. Cinoles, 4 Keyes, 38; Rev'g 34 How. 481. And where one arrested on a military war rant, issued by a court martial, is brought before him, he may review the proceedings of such court. Matter of Wright, 34 How. 207. c. Certiorari-office of.-When issued out of the supreme court to review the proceedings and determinations of inferior tribunals, it extends to a review of all questions of jurisdiction and of regularity in the proceedings. People ex rel. Gas Light Co. of Rrooklyn v. Board of Assessors of City of Brooklyn, 39 N. Y. (12 T ff.), 81; S. C. 6 Trans. App. 116. The decision of the supreme court is reviewable in the court of appeals. Ib. But where the statutory writ of certiorari issues to review summary proceedings, it, extends to a review of all questions of law arising either in the proceedings or upon the trial; also of all questions arising upon the ruling of the court, as to the challenge to jurors, or the admissibility of evidence, or charge to the jury. People ex rel. Livermore v. Hamilton, 39 N. Y. (12 Tiff.), 107; S. C. 6 Trans. App. 219; Benjamin v. Benjamin, 5 N. Y. (1 Seld.), 383. An appeal lies to the court of appeals. id. But the supreme court will not, upon a certiorari, review proceedings taken before a police justice of the city of New York, against one as a disorderly person. Matter of Hook, 55 Barb. 257. The provisions of the Revised Statutes (2 R. S. part III, tit. 4, art. 1), authorizing suits by and against corporations, are not repealed by the Code, though probably the pleadings and practice, except where otherwise specially provided, should be under the Code. Bank of Commerce v. Rutland and Washington Railroad Co. 10 How. 1. As to the effect of this section (471), on proceedings to dissolve a moneyed corporations, see Kattenstroth v. Astor Bank, 2 Duer, 632. It also declares the provisions of the Code inapplicable to proceedings for the collection and remission of forfeited recognizances; but the Laws of 1855 (p. 305, ch. 202, § 1) provide that all the provisions of the Code are to apply to all recognizances forfeited in any court of general sessions or of oyer and terminer; and § 2, that all laws or parts of laws or provisions of statutes in anywise conflicting with such application of the provision of the Code to said forfeited recognizances, are repealed. d. Proceedings upon appeal from surrogate's court are entirely excluded from the operations of any of the provisions of the Code; they are governed by other statutes. Sherman v. Youngs, 6 How. 318. An appeal lies to the supreme court, and the review is in the nature of a rehearing in equity. Clapp v. Fullerton, 34 N. Y. (7 Tiff.), 190; Schenck v. Dart, 22 N. Y. (8 Smith), 420. See Marvin v. Marvin, 4 Keyes, 9; S. C. 41 N. Y. (2 Hand, 619 (n.) A decision of the supreme court reversing a surrogate's decree, upon a question of fact, and awarding an issue to try the question of fact so arising, is not appealable. Marvin v. Marvin, supra. It seems, that where a trial on such issue has been had, an application for a new trial must be made to the general and not to the special term. Ib. For admeasurement of dower, a party may adopt either the petition or the summons and complaint. Townsend v. Townsend, 2 Sandf. 711. Section 24, 25 of 2 R. S. 617 are retained. Murray v. Haskins, 4 How. 263. And the provisions of 2 R. S. 328, § 77, are to be construed in connection with § 306 of the Code, the latter qualified by the former. McGowan v. Morrow, 3 Code R. 9. For the true principle of construction of § 471, in reference to the titles therein named, see Traver v. Traver, 1 Code R. 112; S. C. 3 How. 351. See, also, §§ 108, 109, 449, and Supreme Court Rule 89. § 472. Certain parts of revised and other statutes not repealed. Nothing in this act contained shall be taken to repeal section 23, of article 2, of title 5, of chapter 6, part third of the revised statutes, or to repeal an act to extend the exemption of household furniture and working tools from distress for rent and sale under execution, passed April eleventh, one thousand eight hundred and forty-two. § 473. [391.] (Am'd 1849.) This act, when to take effect. This act shall take effect on the first day of July, one thousand eight hundred and forty-eight, except that sections 22, 23, 24 and 25 shall take effect immediately. APPENDIX. RULES OF COURT OF APPEALS. ESTABLISHED JULY, 1870, AND AS SUBSEQUENTLY AMENDED. RULE ONE. THE RETURN. When the appeal is from a judgment, the return of the clerk of the court below shall consist of certified copies of the notice of appeal and the judgment roll. When the appeal is from such an order as is mentioned in the eleventh section of the Code of Procedure, the return shall consist of certified copies of the notice of appeal, the order appealed from, and the papers on which the court below acted in making the order. RULE TWO. APPELLANT TO FILE RETURN-EFFECT OF HIS OMISSION. The appellant shall cause the proper return to be made and filed with the clerk of this court, within twenty days after the appeal shall be perfected. If he fail to do so, the respondent may, by notice in writing, require such return to be filed within ten days after the service of the notice, and if the return be not filed in pursuance of such notice, the appellant shall be deemed to have waived the appeal; and on an affidavit proving that the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, the respondent may enter an order with the clerk dismissing the appeal for want of prosecution, with costs; and the court below may thereupon proceed as though there had been no appeal. See note to §§ 328, 339. a. Relief from default.-Default taken under Rule 2, for not making the return within twenty days after appeal was perfected, or under Rule 7, for default in not serving printed copies of the case within the forty days from the perfecting of the appeal, may be relieved against, upon terms, in all cases where it appears that the appeals are brought in good faith, unless the respondents can show some delay or inconvenience arising from such default. Waterman v. Whitney, 7 How. 407. Where the respondent omitted to avail himself of the neglect of the appellant's attorney in procuring the return of the clerk within twenty days after the appeal was perfected, and until after the return was made; and where, since the return was made, the respondent has noticed the appeal for argument, he must be held to have waived all objection to the omission. Beecher v. Conradt, 11 How. 181. And where the respondent has waited two years before moving to dismiss an appeal |