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Whatever may be the policy of such a rule, in courts whose judgments may be reviewed, the principle that a judgment of a court of last resort, rendered by a tie vote, should determine the rights of parties, while, it is conceded, it does not settle the principles on which those rights depend ; nay, while, at the very next term, those principles may be differently settled, strikes us as incompatible with a sound administration of justice. The rule is, itself, a technical one, merely. It is, in effect, but saying, that, because on the first hearing, a party fails to obtain a reversal, his rights are to be forever concluded; and its application is universal, whether property, liberty or life be affected by the judgment. No one, it seems to us, can hesitate to admit, that it is wiser to say, in such a case, that the cause should be reheard ; so that with the determination of the individual case, the principle which is to govern in future, should be established.
of the Supreme Court, Circuit Courts, and Courts of Oyer
Section 15. Existing statutory provisions, as to terms and business of the court, re
pealed; and order of the court fixing the terms, &c., abrogated. 16. General terms prescribed. 17. Concurrence of a majority of judges, necessary to give judgment. 18. Special terms, circuit courts, and courts of oyer and terminer prescribed. 19. The same to be held together. 20. Duration of special term. 21. Duration of the circuit court. 22. Duration of the court of oyer and terminer. 23. Times and places of general and special terms, circuit courts, and courts
of oyer and terminer, how designated, and by whom to be held. 24. Extraordinary general terms, circuit courts and courts of oyer and ter
miner, how appointed.
This title has for its object, a new arrangement of the mode of transacting the business of the supreme court and its various branches. In this respect, a change in the present machinery of the court has been called for by the whole state ; and after fully considering every suggestion as to the best mode of accomplishing the object, we feel great confidence in submitting to the legislature the provisions of this title.
As the supreme court is organized by the judiciary act, its business is distributed among general and special terms and circuits. With the latter, are connected the courts of oyer and terminer, which must be held at the same time and be presided over by the same judge. The general terms are required to be held in every county having a population exceeding forty thousand, at least once a year, and in every other county, except Hamilton, as often as once in two years; and must be so arranged, that at least one term shall be held annually in each county, or in a county adjoining. At least two special terms are required to be held, annually, in each county, except Hamilton; in addition to which, a special term may be held with each circuit. At least four circuits are required to be held, annually, in the city and county of New York, and two in every other county, except Hamilton. The times and places of holding the circuits and courts of oyer and terminer, and the judges by whom they are to be held, are required to be designated by an order of the whole court, every two years; except that the first, which was made in July last, is to continue until the end of the year 1849. In respect to the designation of the judges, it is provided that each shall, during his term of office, be employed in holding the general and special terms, circuits and courts of oyer and terminer, in each district, in proportion, as near as possible, to the business of the courts in the several districts, or in at least as many districts, as he shall have years to serve from the commencement of his term; and their duties are required to be so assigned, that each shall hold as equal a proportion as possible, of these terms and courts. (1 Laws of 1817, p. 325, 327, sec. 19, 24.)
In obedience to these requirements, a convention of the whole court was held in July last, at which an order was made prescribing the times and places of holding the general and special terms, circuit courts and courts of oyer and terminer, during the residue of the year 1847, and the years 1848 and 1849, and assigning the business and duties thereof to the several judges, as stated in a schedule appended to the new rules. A mere glance at its contents, will abundantly show the confusion into which the court has been thrown, and the inefficiency to which it must be ultimately reduced, if the existing arrangement of its functions be allowed longer to continue. While some weight is due to the argument upon which it is founded,—that by scattering the judges around the state, the possible injurious consequences of local prejudices or attachments may be obviated,- this consideration sinks into insignificance when compared with the inconvenience, to which, in other and more important respects, it has given rise. The waste of time, on the part of the judges, in travelling about the state, if there were no o:her answer to it, would of itself be conclusive. But those who have been witnesses of the want of uniformity in the proceedings of the court, -of the hasty manner in which cases must necessarily be considered by judges, who attend at a distance from home, to hear them, and separate at the adjournment of the court, not to return,-and above all, the natural embarrassment of both the bench and the bar, arising from a want of familiarity with each others' habits of thought and character of min l, will readily attest that higher considerations of policy de mand a change.
The present title proposes to effect this object, by establishing six general terms annually in each judicial district; by throwing together the special terms, circuit courts and courts of oyer and terminer, and alloting a sufficient number to each county, based, in part, upon its population; and by providing for their continuance for a specified time, for the transaction of their business, and for a longer period, if necessary. The designation of the times and places of holding the courts, and of the judges by whom they are to be held, is proposed to be given to the governor, as being, from his relation to the whole state, the most fitting depositary of that power. And in designating the judges, the governor is required to do so, in such a manner as that not more than one half, nor less than one fourth of the courts to which each judge shall be assigned, shall be out of the district for which he was elected ; and that at least one of the judges, who shall hold a general term, shall sit at the next succeeding term, and shall deliver the judgments agreed upon, in cases held under advisement,
, from the preceding term.
These are the general and prominent subjects embraced in this title; but there are others of minor importance, though
necessary, which sufficiently explain themselves. § 15. All statutes, now in force, providing for the designation of the times and places of holding the general
and special terms of the supreme court, and the circuit courts and courts of oyer and terminer, and of the judges who shall hold the same, are repealed, from and after the first day of July next; and the order of the supreme court, adopted July 14, 1847, prescribing the times and places of holding the general and special terms of the court, and the circuit courts and courts of oyer and terminer, during the residue of the year 1847, and for the years 1848 and 1849, and assigning the business and duties thereof to the several judges of the court, is, from and after the first day of July next, abrogated; and the provisions of this title are substituted in place thereof.
§ 16 Six general terms of the supreme court shall be held annually in each judicial district, and be continued a! least fifteen days, unless sooner adjourned for want of business. They may, however, be continued as much longer as the court shall deem necessary.
§ 17. The concurrence of a majority of the judges holding a general te rm, shall be necessary to pronounce a judgment. If a najority do not concur, the case shall be reheard.
It will be sen, when we come to the subject of appeals, that the business f the general terms is to review the judgments given at the special terms and circuits, and the reports of referees. The general terms, therefore, are in the nature of courts of appeal. It may, and not unfrequently will happen, that the judge who rendered the judgment at the special term or circuit, will sit at the general term ; and if he do, he will, of