Writs of

error to the

supreme court.

Practice, process, re

the supreme court direct the removal of the papers in the cause to the court below; all bonds and recognizances entered into retain their validity; and a surrender in the superior court has the same effect as if it had been made in the court above.28

Writs of error upon the judgments of the superior court are brought in the supreme court, in the same manner, in all respects, as they are directed by statute to be brought upon judgments of the courts of common pleas, except that they require the same certificate of counsel, as writs of error upon judgments of the supreme court.29

The practice of the superior court is regulated generally by cords, &c. the same statutory provisions as apply to the supreme court; and the court, by its first rules, expressly adopted the practice of the supreme court, in all cases not provided for by its own rules. This was permitted by the act constituting the court, although the practice of the common pleas of the city appears to have been expected to have been the general model or guide of its practice, and the forms of process and proceedings in use in the common pleas of the city at the establishment of the superior court, are required to be used in the latter as nearly as may be, except as to the title of the court. This requirement is observed in the forms of the process and records of the court, and its observance is also to be seen in the way of commencing actions, which are ordinarily commenced, or supposed to be, by plaint, as in the court of common pleas, and not by writ or bill.

30

The superior court has, however, lately modified its rules so as to adapt them to the provisions of the revised statutes, and there appear to be much more considerable differences between the present or new rules of the superior and supreme courts than between the former ones. But the most impotant

change introduced into the new rules of the superior court, is the omission of the rule adopting the practice of the supreme court, in cases not provided for by its own rules. The practice of the superior court having been originally commenced by the adoption of that of the supreme court, and the statutes securing a uniformity in many respects, it probably will not often vary from the former or present practice of the supreme court except where it is rendered necessary by peculiar circumstances or its own rules.

court.

The title of the superior court is "The justices of the su- Title of the perior court of the city of New York." All writs are directed to them, all process is returnable, and all proceedings are stated to be had before them, by this title. Process is tested in the name of the chief justice, and is tested of one term and returnable the first day of the next term. Writs of inquiry, subpoena, habeas corpus and attachment may be tested and made returnable during the same term; but no other process.4

32

The sheriff of the city and county is the ministerial officer Officers. of the court; and the court has a clerk, whom the justices are authorised to appoint.35

There is no provision made by law for a reporter of the important decisions of the superior court; but they will be reported by a counsellor of the court, who attends it regularly for that purpose.

The terms of the court commence on the first Monday of Terms. every month, after which they are named, are held at the city hall, and may be continued until the last Saturday of the month.36 The justices are authorised to adjourn the court, either to any day in term, or without day, as they think proper.57 In case of pestilence or other casualty requiring it, the

38

mayor or recorder is authorised to direct the court, by procla mation, to be held at some other place within the city than the city hall. If on account of the non-attendance of the justices, the court, at any time, should not be formed, the clerk is authorised to adjourn it from day to day, or until the next term, and all process and proceedings are to be continued over accordingly.39

By the new rules of the court,40 the January, March, May, July, September and November terms are the terms for the trial of causes by jury; and the February, April, June, August, October and December terms are the terms for hearing arguments at bar and special motions, unless otherwise ordered by the court. In the argument terms, Monday and Thursday of the first week, and Thursday of the second week, are the days for hearing non-enumerated motions.41 We have already seen in what cases one judge may hold the court, and when the presence of a majority is required.42

SECTION II.

OF THE COUNTY COURTS OF COMMON PLEAS.

One for each county.

Origin.

Every county in the state has its court of common pleas, which have all the same common organization, except that for the city and county of New York.

Origin of the Courts.] The court of common pleas for the city and county of New York was first established in 1821, in

the place of the mayor's court of the city, which thereupon ceased to exist. Although a county court of common pleas, it is both by its organization and the magnitude of its business, a court of much higher character and importance than the other courts of its class.

The other county courts of common pleas of the state were established in the year 1691, at the same time with the supreme court, and by the same colonial law, to which we have before referred.43 The provisions of this law, so far as they apply to the organization of the courts of common pleas, are as follows:

courts and

law estab

"And for the more regular and beneficial distribution of Colonial justice to the inhabitants of each respective city and county lishing then within this province, be it further enacted by the authority aforesaid, that there be kept and held a court of common pleas in each respective city and county within this province, at the times and places hereafter named and expressed; that is to say, at such places in each respective county as the said court of sessions are to be kept; and to begin the next day after the sessions terminates, and only to hold and continue for the space and time of two days, and no longer; and that there be one judge, with three justices, in each county, appointed and commissioned to hold the same court of pleas, three whereof to be a quorum. And that the several and respective courts hereby established, shall have jurisdiction to hear, try and finally to determine all actions, or cause of actions, and all matters and things and causes tryable at the common law, of what nature or kind soever.

"Provided always, and it is hereby enacted, that there shall not be any appeal or removal by habeas corpus, of any person, or of any action or suit, or of any judgment or execution, that shall be determined in this court, to the value of twenty pounds or under, any thing contained herein to the contrary in any ways notwithstanding."

Jurisdiction

"Provided always, and it is hereby enacted, that the courts of mayor and aldermen of the respective cities of New York and Albany shall have in each of their respective cities the power and authority to hear, try and finally to determine all such actions and suits as is commonly cognizable before them; from which final determination there shall not be any appeal or removal by habeas corpus, of any person, or of any action or suit, or of any judgment or execution, to the value of twenty pounds or under, any thing contained herein to the contrary in any ways notwithstanding."

"To which respective courts of common pleas there shall belong, and be appointed and commissioned for that purpose, one clerk of the court, to draw, enter and keep the records, declarations, pleas and judgments there to be had and made; and one marshal or crier of the court, to call the jurors and proclaim the commands and orders of the court."

"And for the more regular proceedings in the said court, all processes and writs, of what nature soever, for the command of persons to appear, and to execute the judgments and executions of the respective courts aforesaid, shall be directed to the respective sheriffs of each city and county within this province, and executed by them, their under sheriffs, or deputy or deputies. And all processes and writs for actions betwixt party and party in the said court, shall issue out of the office of the clerk of the court in each city and county respectively, signed per

curiam."

Jurisdiction, Powers, &c.] The organization, jurisdiction and powers and powers of all the county courts of common pleas in the

generally.;

state are defined and provided for by the revised statutes; by which it is declared, that there shall continue to be one in each county, which shall possess the powers and exercise the jurisdiction which belonged to the courts of common pleas of the several counties in the colony of New York, with the additions, limitations and exceptions, created and imposed by the constitution and laws of this state.44

44 2 R. St. 208. s. 1.