the judgment record, and was there called a bill of exceptions, but had not in fact been turned into a bill of exceptions. King v. Dennis, 3 Pr. R. 419.

From an order of the supreme court at general term denying a motion for a stay of proceedings on a judgment, and for liberty to move to set aside a report of a referee without an appeal, or for an order extending the time to appeal. Enos v. Thomas, 5 Pr. R. 359.

In an action originally commenced in a court of a justice of the peace, a writ of error from the judgment in such action was pending in the supreme court on the 1st day of July, 1848. On the 20th of July, 1818, the supreme court after argument, affirmed the judgment. An appeal from such judgment of affirmance was afterwards taken to the court of appeals, and on motion to dismiss such appeal, the court, Bronson, Chief Justice, said,-The writ of error was pending in the supreme court on July 1, 1848, and was, we think, a suit within the meaning of the statute. The judgment of affirmance was subsequent to the first of July, 1848, and as the action was originally commenced in a court of a justice of peace, there was no right of appeal. Grover v. Coon, 3 Pr. R. 341. 1 Code Rep. 96.1 Coms. 536.

We see no force in the objection that the statute is unconstitutional, Ib. See note to section 303 of this code.

It has been held, however, that where the supreme court on appeal reverses the judgment or decree of a subordinate court, an appeal would lie, although further proceedings were directed to be had in the court where the suit or proceeding originated; and, therefore, where a surrogate dismissed a proceeding instituted before him to bring executors to account, and the supreme court, on appeal, reversed his decree with costs, and directed him to proceed with the account, held, that an appeal would lie to the court of appeals. Messerve v. Sulton, 3 Code Rep. 198. 3 Coms. 546.

And that an appeal would lie from a decree at general term of the supreme court reserving no questions, and nothing to be done but to compute the amount due, after the referee's report of the amount due had been confirined. Swarthout v. Curtis, 3 Code Rep. 215. 5 Pr. R. 198.

§ 12. [12.] Power of court.-The court of appeals may reverse, affirm, or modify the judgment or order appealed from, in whole or in part, and as to any or all of the parties; and its judgment shall be remitted to the court below, to be enforced according to law.

In the report of McFarlan v. Watson, 4 Pr. R. 128, 2 Code Rep. 69, it is said to have been decided by the court of appeals, that a remittitur sending the proceedings to the court below, was not authorized on the dismissal of an appeal, and that a remittitur was to be made only in cases where the court gave judgment (of affirmance or reversal or any modification of the judgment or decree of the court below, as the case may be) upon the merits. That case was, however, afterwards alluded to as being incorrectly reported in that respect, (4 Pr. R. 184, and post,) on an appeal taken to the court of appeals in September, 1848, the appellant not having served a case in compliance with the 7th rule of that court, which took effect on the 1st of July, 1849, the respondent, ou August 14, 1849, entered an order dismissing the appeal, with costs. The cause was remitted to the court below. On motion to set aside such order, the court on denying the motion, held, that the 7th rule applied to appeals pending prior to the adoption of that rule, and said:

After a return has been filed, any order made which finally disposes of the appeal, whether upon the merits or not, it is proper to remit the proceedings to the court below. It is a mistake to suppose the court held otherwise in McFarlan v. Watson.

After a cause has been regularly remitted to the court below, this court has no jurisdiction to grant relief. The only remedy is a new appeal.

Where too much costs are charged in such a case, the remedy is by motion to the court below. Dresser v. Brooks, 2 Code Rep. 130, 4 Pr. R. 207.

Where an appeal was on the calendar and dismissed for a defect in the undertaking, it was held the proceedings might be remitted, and the court said, we were entirely misunderstood in McFarlan v. Watson. Langley v. Warner, 2 Code Rep. 97.

A remittitur cannot be made on the dismissal of an appeal under rule 2, of the court of appeals, for the reason that no return has been filed, for if no return be filed there is nothing to remit. 4 Pr. R. 211. Note-See Rules in the court of appeals in the appendix to this volume. In Doty v. Brown, 4 Pr. R. 429, 2 Code Rep. 3, where the plaint ff appealed to the court of appeals, but the bill of excep tions was alone returned to the court of appeals, without the judgment record, and on the motion of the defendant, the appeal was dismissed for that cause. It was objected in the court below, (the supreme court,) that this section did not authorize a remittitur in such a case, but the court, (Mason, J.) said, the determination of this question depends on the construction of this (12th) section, and the court of appeals have held in two cases, that a remittitur is authorized, and hence adjudged the very question in the case under consideration, and which it ill becomes this court

to review.

After remittitur filed in the court below, the court of appeals has no further jurisdiction of the cause, and a motion in such a case for an amendment of the judgment, should be made in the court below. Fraser v. Western, 3 Pr. R. 235. Martin v. Wilson, 1 Coms. 240, but the court does not lose jurisdiction until the remittitur is actually filed, as until that be done, the court can order the remittitur to be sent back so as to restore jurisdiction. Burckle v. Luce, 3 Pr. R. 236. See also, Dresser v. Brooks, 2 Code Rep. 130, 4 Pr. R. 207.

After an action has been remitted to the court below, and the remittitur filed, the court below will not, and caunot, entertain a motion to remit the remittitur to the appellate court, in order that a motion may there be made to amend alleged errors of that court. Selden v. Vermilya, 9 Leg. Obs. 23.

For the form of the remittitur and manner of proceeding, where a decree or order is affirmed, or reversed by default, see, Rules 16 and 17 of court of appeals rules, in appendix.

§13. [13.] (Amended.)—Terms.—There shall be four terms of the court of appeals in each year, to be held at the capitol in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the third Tuesday of September, and continued for as long a period as the public interests may require.

Preference of Causes.-Additional terms shall be appointed and held at the same place by the court when the public interest requires it. The court may, by general rules, provide what causes shall have a preference on the calendar.

The section for which this is substituted, was as follows:

"There shall be at least five terms of the court of appeals in each year, to be held at such time and place as the court may appoint, and continued for as long a period as the public interests may require; additional terms shall be appointed and held by the court when the public interest requires it. The court may, by general rules, provide what causes shall have a preference on the calendar."

By the 13th rule, criminal causes are to have a preference, and may be moved on behalf of the people out of their order on the calendar. See court of appeals rules in appendix.

This section goes into effect 1 Jan'y, 1852.

§ 14. [14.] (Amended.)—Judgment. The concurrence of

five judges is necessary to pronounce a judgment. If five do not concur, the case must be re-heard.

But no more than two re-hearings shall be had, and if, on the second re-hearing, five judges do not concur, the judgment shall be affirmed.

The section, before amendment, read as follows:

"The concurrence of five judges shall be necessary to pronounce a judgment. If five do not concur, the judgment or order appealed from shall be affirmed, unless the court order a re-hearing."

There was a doubt entertained whether this section, as it stood prior to amendment, was constitutional; but in Mason v. Jones (3 Coms. 375, 3 Code Rep. 164,) the court of appeals said, we "see no ground for saying the 14th section [of the code of 1849], is unconstitutional. It does no more than restore the common law as it had been previously understood and acted on in this State." By the former practice, upon an equal division of the court, the judgment below was affirmed; but it is well settled that such an affirmance merely determined the particular case, and left the questions involved in it open for consideration in any future case in which they might arise. Bridge v. Johnson, 5 Wend. 342. People v. Mayor &c. of New York City, 25 Wend. 252. In the case lastly cited, it was also decided that in cases where the court are equally divided, a re-hearing cannot, in the absence of a statutory authority, be allowed; and the same was held in the supreme court of the United States. See Martin v. Hunter's Lessee, 1 Wheat. 355.

Where judgment is pronounced in open court, holden by eight judges, without any dissent at the time, neither party can go behind such public act, and attack the judgment on the ground of what may have taken place among the judges in their private consultations. Mason v. Jones, 3 Coms. 375, 3 Code Rep. 164. See further, Oakley v. Aspinwall, 3 Coms 547.

§ 15. Sheriff to provide rooms.-If at a term of the court of appeals, proper and convenient rooms, both for the consultation of the judges and the holding of the court, with furniture, attendants, fuel, lights and stationery, suitable and sufficient for the transaction of its business, be not provided for it, in the place where by law the court may be held, the court may order the sheriff of the county to make such provision, and the expense incurred by him in carrying the order into effect, shall be a county charge.

§ 16. (Amended.)-Court where held.-The court of appeals may be held in other buildings than those designated by law as places for holding courts, and at a different place in the same city from that at which it is appointed to be held.** Adjournment.-Any one or more of the judges may adjourn the court, with the like effect as if all were present.

The amendment to this section is the omission at the point where an asterisk is placed, of the words "or town," and where two asterisks are placed, the words "and may in its discretion adjourn any term from the city or town where it is appointed to be held, to any other city or town," are omitted. And see, as to the terms of this

court, laws of 1849, p. 484, c. 333, ss. 2, 3, and by laws of 1850, p. 45, chap. 41, it is enacted: Whenever any judge of the court of appeals, being a justice of the supreme court, shall be absent from the court, or there shall be a reason to believe that he will not attend, the governor shall designate some justice of the supreme court from the class of justices having the shortest time to serve, to supply the place of such absent judge; and such justice shall attend and be a judge of the court of appeals, until such absent judge, or some one duly qualified to take his place, shall attend the court. The last clause of section two, title one, chapter three, of the third part of the Revised Statutes (prohibiting judges from sitting or acting in certain cases), shall not apply to any judge of the court of appeals.

TITLE III.

Of the Supreme Court,* Circuit Courts, and Courts of Oyer and Terminer.

SECTION 17. Existing statutory provisions, as to terms, &c., repealed.

18. General terms.

19. Judgment, how given.

20. Special terms, &c.

21. Circuit and oyer and terminer together.

22. Times and places of holding courts.

23. Extraordinary terms, &c.

24. Courts, where held.

25. Publication of appointment.

26. Inability of judge.

27. Business out of court.

28. Rooms, &c., how furnished.

§ 17. [15.] Existing statutory provisions as to terms, &c., repealed. All statutes, now in force, providing for the designa

*The Supreme Court.-When the code became a law, the supreme court lost none of its chancery jurisdiction. It is true, the distinction between suits in equity and actions at law was abolished, but the suit in equity survived in the "civil action," per Gridley J., in Myers v. Rasback, 2 Code Rep 13, 4 Pr. R. 83. Myers v. Borland, ib. See Supreme Court Rules in appendix. The jurisdiction of the supreme court and its justices is defined by the Constitution, Art. 6, Sec. 3-6; 2 R. S. 259, s. 1 ; ib. 234, s. 60; Laws of 1847, p. 323, s. 16; Laws of 1848, p. 282, cap. 170; Laws of 1849, p. 27, cap. 30; ib., p. 117, cap. 82; ib., p. 150, cap. 111; Laws of 1850, p. 20, cap. 15; laws of 1850, p. 9, cap. 1. But, say the commissioners on practice and pleading: to ascertain what the precise jurisdiction is, it is necessary to recur to the jurisdiction of the courts of queen's bench, common pleas and exchequer in England on the common law side, and to that of the court of chancery, in that country, on the equity side, and to collate with them the various modifications which the constitution and statutes of this State have introduced. This court has also jurisdiction of all civil actions now undetermined and which were pending in the late mayor's court of the city of Rochester on the 30th of April, 1849, and of all the proceedings incident to judgments rendered in that court in those actions on or before that day. Laws of 1849, p. 435, cap. 303, s. 5.

The judges of this court, although elected in districts, possess co-ordinate powers throughout the State. Const. art. 6, sec. 6, and by laws of 1849, cap. 30, p. 27. Any special powers and jurisdiction theretofore vested and existing in any vice chancellor or judge of the supreme court in any particular district or circuit prior to

tion 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, one thousand eight hundred and forty-eight; and the order of the supreme court, adopted July fourteen, one thousand eight hundred and forty-seven, 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 one thousand eight hundred and fortyseven, and for the years one thousand eight hundred and forty-eight and one thousand eight hundred and forty-nine, and assigning the business and duties thereof to the several judges of the court, is, from and after the first day of July, one thousand eight hundred and forty-eight, abrogated, and the provisions of this title are substituted in place thereof.

18. [16.] General terms.—At least four general terms of the supreme court shall be held annually in each judicial district, and as many more as the judges in such district shall appoint, at such times and places as a majority of the judges of such district shall appoint.

By laws of 1849, cap. 82, s. 117, it is enacted that the then present general term of the supreme court appointed to be held in the city of Albany, and any future

the first Monday in July, 1847, are transferred to, and vested in, any justice of the supreme court, elected for such district or districts, subject to an appeal to the supreme court provided that nothing in that act shall limit or abridge the powers and jurisdiction of the supreme court, as defined by the code.

The circuit courts-By laws of 1847, page 326, section 22, it is enacted that these courts shall have the same powers, and exercise the same jurisdiction, as that possessed and exercised by the circuit courts then existing so far as they were consistent with that act-and all laws relating to the former circuit courts, were made applicable to to the present circuit courts, so far as the same were consistent with that act. See further, 2, R. S. 40. 91, 112, 123, 128, 200, 208, 226, 266 to 272, 378, 481, 513, 698, to 721.

The courts of oyer & terminer.--The jurisdiction of these courts is prescribed by R. S. 270, 271, ss. 35, 36, 37, const. art 6 s. 6, ib. art. 14, s. 5, laws of 1847, p. 330, ss. 38, 39, ib. p. 332, s. 43, and by laws of 1849, p. 435, s. 6. jurisdiction was transferred to this court in the county of Munroe, on the 30th of April, 1849, of all criminal actions and proceedings then pending in the late mayor's court of the city of Rochester, and of all proceedings incident to judgments rendered in that court in those actions and proceedings on or before that day.

The court of oyer and terminer in the city and county of New-York may be held by one or more of the judges of the supreme court, or by either of the three judges of the court of common pleas of that city and county, together with the mayor, recorder, and aldermen, of that city, or with any two of them. 2 R. S., 270, sec. 34, subd. 1. People. v. White, 24, Wend. 543, 545.