Arnold a. Rees.

variety, and no attempt to reduce them to uniformity in principle or in statement could be successfully made. Who would hesitate to pronounce such a case special, when speaking of its nature and quality? Illustrations of cases in equity, special in this sense, according to the most accurate and precise use of language, might be given almost without number. A very obvious one may be found in the bill for specific performance of a contract for the sale and purchase of lands, where the vendor has failed to perform, on his part, within the time required by his agreement. Equity will still preserve his rights, and decree performance in his favor, if he can allege special and peculiar facts which ought to relieve him from the forfeiture, such as continued occupation, valuable improvements, payments of money, acquiescence on the part of the vendor, &c. In legal as well as popular phrase, such a case is special, and in its nature it is eminently of that character. What authority have we, then, for saying that the convention which passed and the people who adopted the constitution, in conferring jurisdiction on the county courts, intended to exclude a case exactly described in the very words of the grant?

If we adopt the conclusion that all causes which were cognizable by bill in equity are excluded by the terms of the constitution, then there was no subject to which those terms could be applied, except the peculiar cases where the proceeding was not by bill, but a more summary remedy was provided. These, it will be found, were very few in number; so few, indeed, that they could have been easily enumerated if it was intended to confine the jurisdiction to cases of this description. Some of these, however, it is well to observe, were quite as difficult and complicated as any other in the whole range of equity jurisdiction. This will be quite evident when we consider that the summary jurisdiction of the Court of Chancery, exercised upon petition merely, embraced corporations, their dissolution in certain cases, the sequestration and distribution of their effects, and the right to restrain, by injunction, the exercise of their powers. In proceedings of this character, rights of the greatest importance are frequently involved, and the questions are often peculiarly complicated and difficult. And yet, according to the construction of the constitution which I am endeavoring to refute, the county court can take jurisdiction of such proceedings,

Arnold a. Rees.

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 legislation 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 one must consider not only the fair import of the language used, but also the other judicial arrangements of the constitu tion, 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 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 legislative 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 when 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 denomi nated "general?" Plainly because no legislative specification of the subject of that jurisdiction is required. That of the county court is "special" in a sense directly the opposite; that is to say, the cases in which that court may review its jurisdiction must be specified and defined by the Legislature, and hence they are called special. The terms special and general being

Arnold a Rees.

used to denote opposite qualities of the two jurisdictions, whenwe 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 character of controversies, then we may also be certain that the special jurisdiction of the county court rests on no such distinction. It is special, because it must be especially 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 a. Heath (16 N. Y. (2 E. P. Smith), 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 Rev. Stats., 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 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

Warburg a. Wilcox.

been modified by a variety of statute regulations, some of which were of great importance in the administration of that remedy. (2 Rev. Stats., 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.

WARBURG a. WILCOX.

New York Common Pleas; General Term, October, 1858.

DEFENCE. ACCORD AND SATISFACTION.-TENDER.

To an action against the maker of a promissory note, he answered that the plaintiff, with other creditors, signed a composition deed, agreeing to exchange the notes they held against the defendant for other extended notes to be drawn by him; and it appeared on the trial that the defendant called on the plaintiff and offered him the new notes which the agreement provided for, but the plaintiff refused to receive them; but that he had not the new notes drawn at the time of the offer.

Held, insufficient. To complete such defence, the party must plead and prove, not only tender of the new notes, but also aver a readiness at all times to perform his part of the agreement, and must bring the new notes thus tendered into court on the trial.

Appeal from a judgment of the New York Marine Court.

The facts are stated in the opinion of the court.

BY THE COURT.*-HILTON, J.-This action is upon a promis sory note made by the defendants to their own order, and transferred to the plaintiff.

Present, DALY, F. J., HILTON and BRADY, JJ.

Warburg a. Wilcox.

The defence was, that the plaintiff, with other creditors of the defendants, had signed a composition deed, whereby it was agreed that the time for payment on all the notes held by the parties signing should be extended 9, 12, 15, 18, and 21 months, and that this time, or any part thereof, had not expired.

On the trial, the composition deed was put in evidence; and from which, aided by the testimony of the defendant Wilcox respecting his action under it, it sufficiently appears that the creditors signing agreed to exchange the paper then held by them of the defendants, for new notes to be drawn by the defendants according to the extension so agreed on.

Although the agreement is somewhat obscure, yet its language, taken in connection with the testimony in the case, clearly shows that this was the nature of the compromise the parties to it intended to make.

To enable the defendants therefore to avail themselves of any defence to this action, arising out of this agreement, it was necessary for them not only to plead and prove tender of the new notes which were to be so exchanged, but also aver readiness at all times to perform their part of the contract, and bring the new notes thus tendered into court at the trial. (3 Blackst. Com., 303; 2 Kent's Com., 509; Brooklyn Bank a. Degraw, 23 Wend., 342, 345.)

This was not done. It is true the defendant Wilcox testified that at a time when the plaintiff called at his store on this subject, he "offered him notes upon the time provided in the extension agreement, which he declined to receive." But he subsequently adds that he had not the notes drawn at the time he made the offer.

As we have seen, this was not sufficient. By the agreement the plaintiff was entitled to the new notes at all events, and to make the defence set up available, the defendants were required to have them in court on the trial, ready for delivery.

For these reasons the judgment of the Marine Court, in favor of the plaintiff, should be affirmed.

Judgment affirmed.

VOL. VII.-22