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course, have a voice in the decision of the cause. If four judges hold the general term, a tie vote will decide the cause, of whichi the vote of the judge whose judgment is reviewed, may be one. This should not be allowed. The inconvenience of a rehearing is far less than the injustice of a judgment, depending upon the mere technical rule, that if the party holding the affirmative fail in obtaining a majority, his case is determined, while bis rights remain undecided. This we think objectionable, for the reasons stated in the note to section 14, (p. 24, 25,) in respect to a judgment of the court of appeals.
$ 18. The number of special terms, circuit courts and courts of oyer and terminer, annually, in the several counties, shall be as follows:
Eleven, In the city and county of New York.
Six, In the counties of Albany, Erie, Kings, Monroe and Oneida.
Five, In the counties of Jefferson, Onondaga, Rensselaer and St. Lawrence.
Four, In the counties of Allegany, Cayuga, Chautauque, Chenango, Columbia, Delaware, Dutchess, Herkimer, Madison, Niagara, Ontario, Orange, Oswego, Otsego, Saratoga, Steuben, Suffolk, Tompkins, Ulster, Washington, Wayne and Westchester.
Three, In the counties of Broome, Cattaraugus, Chemung, Clinton, Cortland, Essex, Franklin, Fulton with Hamilton, Genesee, Greene, Lewis, Livingston, Montgomery, Orleans, Putnam, Queens, Richmond, Rockland, Schenectady, Schoharie, Seneca, Sullivan, Tioga, Warren, Wyoming and Yates.
The proposed large increase of circuits and terms, may strike the mind, at first view, as imposing too heavy a burthen upon the judges, especially in traveling. But, when it is observed, that the law of 1847 requires at least two special terms, in addition to the circuits, to be held in each county, and that it is proposed to unite the circuit courts and special terms, both being held at the same time and place in each county, and to diminish the aggregate number, it will be apparent that such an apprehension is unfounded.
The arrangement of the special terms, circuits and courts of oyer and terminer, which, (as bas been stated in the preliminary note to this title,) have, for the sake of greater convenience, been classed together, is, with the exception of the city of New-York, based mainly upon the population of the several counties of the state. To the city of New-York, this section proposes to assign eleven of these courts, annually, as being necessary to the efficient despatch of business in that city, which composes the first judicial district. It assigns three special terms, circuits and courts of oyer and terminer, annually, to every county, the population of which exceeds 33,000; four, for over that number, and not more than 52,000; five, for over 52,000, and not more than 70,000; and six, for more than 70,000; varying these proportions, in some slight degree, according to the amount of business, which is of course greater in counties containing a commercial or manufacturing population, than among those devoted to agricultural pursuits. The facts upon which this apportionment is based, will be seen by reference to the appendix, containing, in tabular form, the statistics of the existing and proposed arrangements of the terms and circuits.
An inspection of the table will show, that so far from overloading the justices of the supreme court with business, on a fair estimate of the average duration of the circuits and terms, less than two-fifths of the time of each judge will be occupied in actual court duties; and there is a great probability, that an abatement from that estimate will be the practical result.
By this table it appears that the present number of courts for the trial of issues of fact, in ordinary civil actions, (excluding the city courts and the appellate or general terms of the supreme court,) are as follows : Circuits, as ordered for the year 1848,
126 Special terms,
145 County courts, requiring the attendance of jurors, 203
Aggregate number of trial courts, Proposed number of courts for the trial of the same issues, 227 Aggregate number of circuits and special terms, as now
organized, each requiring the travel and attendance of a supreme court judge,
271 By the existing law, each county court has several terms a year, part of which are jury terms, and part, law terms. The number of these terms we propose to fix; but we dispense with the attendance of granü anu petit jurors in the sessions, (except in the city of New-York,) unless the board of supervisors shall require it.
It is estimated that the business of the general terms will be done in two weeks each, on an average, (except in the city of New-York, for which three weeks are allowed,) making 102 weeks. Three judges 102 weeks, (the present system requires the
same amount of business and therefore the same amount of service in general term,)
306 It is estimated that the circuits will average one week
each, (except in the city of New York, for which three weeks are allowed,)
(The present system has an aggregate of circuits and spe-
540w'ks This number divided by 28, (the number of judges to hold the courts,) shows less than 20 weeks court service to each judge.
It is confidently believed, that the business of the courts may all be done within these periods, as soon as the present accumulation of business has been disposed of.
An increase of one half of the time above estimated for circuits, will adu four weeks only, of court service, to each judge. $ 19. Special terms, circuit courts, and courts of oyer and terminer, shall be held at the same places, and commenced on the same day.
§ 20. The special term shall continue until the adjournment of the circuit court; and the judge may continue it longer, or adjourn it to any other time or place, within the county.
$ 21. The circuit court shall continue at least twelve days, unless sooner adjourned for want of business. It may, however, be continued as much longer as the court shall deem necessary.
§ 22. The court of oyer and terminer may continue, as long as the court shall deem necessary.
$ 23. The governor shall, on or before the first day of May next, by appointment in writing, designate the times and places of holding the general and special terms, circuit courts, and courts of oyer and terminer, and the judges by whom they shall be held; which appointment shall take effect on the first day of July, thereafter, and shall continue until the thirty-first day of December, 1849. He shall, in like manner, at least one month before the expiration of that time, appoint the times and places of holding those courts, för two years, commencing on the first day of January, 1850, and so on, for every two succeeding years.
(r. & p.)
$ 24. The governor may also appoint extraordinary general terms, circuit courts, and courts of oyer and terminer, whenever, in his judgment, the public good shall require it.
§ 25. The places appointed within the several counties, for holding the general and special terms, circuit courts, and courts of oyer and terminer, shall be those designated by statute for holding county or circuit courts. If a room for holding the court in such place shall not be provided by the supervisors, it may be held in any room provided for that purpose, by the sheriff, as prescribed by section 31.
$ 26. Every appointment, so made, shall be immediately transmitted to the secretary of state, who shall cause it to be published in the newspaper, printed at Albany, in which legal notices are required to be inserted, at least once in each week, for three weeks, before the holding of any court in pursuance thereof. The expense of the publication shall be paid out of the treasury of the state.
$ 27. The designation of judges to hold the courts, shall be such, as that not more than one-half, nor less than one-fourth of the courts to which each shall be assigned, shall be held out of the district within which he was elected ; and so that, of the judges who shall hold a general term, one, at least, shall sit at the next suc