Powers of judges.

the powers conferred by statute, which have not been repealed, upon the late courts of common pleas of the county, and to prescribe the manner of exercising such jurisdiction when the provisions of any statute are inconsistent with the organization of the county court. Code, § 30, subd. 11. See § 4, art. 2 of this chapter, ante, 389 to 391.

These powers consist, in addition to those enumerated under the head of jurisdiction, in section 4 of the preceding article, of the general powers of courts of record, relating to process of subpoena, the administration of oaths and the devising and making of such new writs and forms of proceedings, as may be necessary to carry into effect the powers and jurisdiction possessed by them. 2 R. S. 276 (287), § 1.

The court may compel the discovery of books and documents in an action pending before it. Code, § 388.

In a proper case, a cause brought from a justice's court, on appeal, may be referred by the court. Hyland v. Loomis, 48 Barb. 126. See People v. Washington Com. Pleas, 20 Johns. 363; Cowen v. Bush, 3 Cow. 343; Flower v. Allen, 5 id. 654.

By the recent act, extending the jurisdiction of the court (Laws of 1870, ch. 467), it has the powers incident to a court of common law jurisdiction.

b. Powers of judges. County judges have certain powers vested in them, in special statutory proceedings, which it is not necessary to detail in this place, but to which a reference is given in section 2, article 2 of this chapter, ante, 384, 385.

c. Proceedings in county court. A county judge may make any order out of court, in any suit or proceeding pending before the court that a judge of the supreme court might make if the proceedings were pending in the latter court. 2 R. S. 292 (282), § 38.

d. Acknowledgments. They may take proof and acknowledgment of conveyances of real estate and the discharge of mortgages. The acknowledgment of bail in any action in the supreme or in the county court of their respective counties, and the acknowledgment and satisfaction of judgments in those courts. 2 R. S. 293 (282), § 40. See People v. Hurlbutt, 44 Barb. 126.

e. Proceedings in supreme court. In an action in the supreme court, a county judge may exercise within his county the powers of a judge of the supreme court at chambers. Code, § 403. See People v. Hurlbutt, 44 Barb. 126; Woodruff v. The People, 3

Powers of judges.

How. 32; Peebles v. Rogers, 5 id. 208; S. C., 3 Code R. 213. Thus he may grant an order ex parte, extending the time to answer, for more than twenty days. Sisson v. Lawrence, 25 How. 435; S. C., 16 Abb. 259, note. And any order in any action pending in the supreme court, or the county court, made out of court, without notice, may be made by the judge of the county where the action is triable, or in which the attorney for the moving party resides, except to stay proceedings after verdict. Code, § 401. See Chubbuck v. Morrison, 6 How. 367. A referee's report is not included in the latter exception. Otis v. Spencer, 8 How. 171.

f. Guardians ad litem. County judges may appoint a guardian ad litem for an infant party to an action brought in this or in any other court. Code, § 115; Towsey v. Harrison, 25 How. 266. g. Further account. They may order a further account when the one rendered is defective.' Code, § 158.

h. Supplementary proceedings. A county judge of the county to which an execution has been issued, has the same authority in supplementary proceedings therein as a judge of the court which rendered the judgment. Code, § 292.

i. Fraudulent judgments. Upon the application of a creditor of one who has confessed a judgment before a justice of the peace, the county judge may stay proceedings on such judgment until the county court has inquired into the consideration of the same. 2 R. S. 262 (246), § 116..

j. Assignees. The county judges have exclusive jurisdiction over proceedings for the appointment of assignees for the benefit of creditors in their respective counties. Laws of 1860, ch. 348.

k. Bail. A county judge may let to bail persons charged with crime, whether indicted or not, in all cases that a justice of the supreme court can let to bail. People v. Hurlbutt, 44 Barb. 126.

1. Vacating arrest. They have no power to hear a motion, on notice, to vacate an order of arrest in an action in the supreme court. Rogers v. McElhone, 20 How. 441; S. C., 12 Abb. 292.

m. Taxing costs. They may tax costs under the old fee bill, contained in the Revised Statutes, whenever such mode of taxation may be proper. People ex rel. Lumley v. Lewis, 28 How.

159.

Early courts- -Court before 1846- Under constitution of 1846.

ARTICLE IV.

OFFICERS.

Section 1. Early courts. Upon the establishment of the old court of common pleas, provision was made for certain officers, "for the more regular proceedings in the court." A copy of the section which authorized their appointment will sufficiently show their character and the nature of their duties: "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, then to be had and made, and one marshal, a crier of the court, to call the jurors and proclaim the commands and orders of the court." All processes and writs of what nature soever, were to be directed to the respective sheriffs of the several cities and counties within the province. And all processes and writs for actions between party and party were issued from the clerk's office, signed per curiam. Laws, Bradford's ed. of 1694, 264. See 2 Paine & Duer's Prac. 719.

Section 2. Court before 1846.

a. Sheriff. The sheriff of the county was the ministerial officer of the court. See 1 Paine & Duer's Prac. 233.

b. Clerk. The clerk of the county, or of the city and county, is by virtue of his office clerk of this court. 2 R. S. 219 (210), § 14; id. 225 (215), § 24. They were elected once in three years, or as often as vacancies occurred. 1 R. S. 103 (112), § 47. He was authorized to appoint a deputy clerk (1 R. S. 348 [376], § 56), and neither he nor his deputy could practice as counsel or as attorney in the courts of which they were clerks. 1 R. S. 99 (109), § 26. The clerk of the city and county of New York was required to file a bond in a penalty of $15,000, conditioned that he would properly discharge the duties of his office. 2 R. S. 225 (215), § 24.

Section 3. Under constitution of 1846.

a. In general. By the judiciary act of 1847, all laws relating to the officers of the courts of common pleas and their duties were made applicable to the county courts as then organized. 4 Stat. at Large, 566, § 36; Laws of 1847, ch. 280, § 36.

Terms and judgments.

b. Crier. By that act it was made the duty of the sheriff and his subordinates to act as crier of the court. 4 Stat. at Large, 589, § 42; Laws of 1847, ch. 470, § 42. But by an act passed in 1855, the county judge was authorized to appoint a crier, who should hold his office during the pleasure of such judge. Laws of 1855, ch. 530; Laws of 1865, ch. 296. Except the city and county of New York (Ib. See Code, § 39) and the county of Dutchess, where the clerk of the county, and, in his absence, his deputy, perform the duties of crier.

Section 4. Present courts.

Under the constitution as amended in 1869, the officers of the court remain as they existed previous to that amendment.

ARTICLE V.

TERMS AND JUDGMENTS.

Section 1. Early courts.

a. Terms. As at first established, the courts of common pleas were held at the places where the courts of sessions were held in such county; they began the next day after the sessions terminated, and continued "for the space and time of two days, and no longer." They were held twice in each county, except the counties of Albany and New York; in Albany three times a year, and in New York four times. Laws, Bradford's ed. 1694, 264; 2 Paine & Duer's Prac. 718. See 1 E. D. Smith, Introduction, 49.

Section 2. Courts before 1846.

a. Terms. Under the Revised Statutes the terms were held in the various counties of the State, from two to four times each year (2 R. S. 220 [211], § 20; id. 226 [217], § 34), and might be continued to and including the second Saturday after their commencement. 2 R. S. 220 (211), § 19. But in the city and county of New York they were held every month. 2 R. S. 225 (216), § 26. Except where special provision was made otherwise the terms were held at the court-house of the county. 2 R. S. 224 (215), § 21. If the judges did not attend the first day, the sheriff or clerk adjourned the court until the next day, and if the judges did not then attend, it was the duty of the clerk or sheriff to adjourn the court without day. 2 R. S. 218 (209), §§ 8, 9.

Courts under constitution of 1846.

b. Judgments. Records of judgments were signed and the costs taxed by one of the judges of the court. But in case the cause was one wherein the costs were not limited by law, it was necessary to have the record signed by a judge of the degree of counselor in the supreme court, and in case of the absence of the judges authorized to sign such a record, the clerk of the court might perform the duty. 2 R. S. 292 (282), § 35. There was a form prescribed in the statute for the records of judgments in the common pleas which is unnecessary to give in this place. See 2 R. S. 219 (210), § 15. The courts sustained the judgments of the common pleas, although the record did not show that the court obtained jurisdiction of the person of the defendant. Hart v. Seixas, 21 Wend. 40; Foot v. Stevens, 17 id. 483. Transcripts of justice's judgments might be filed and docketed in this court, when the recovery, exclusive of costs, exceeded $25. 2 R. S. 264 (247), §§ 127, 128. And this court could not at one time inquire into the regularity or fairness of such judgments. The People v. Judges of Washington Com. Pleas, 1 Wend. 79. But the statute gave power to inquire into the consideration of the judgment, and in a proper case to set it aside. 2 R. S. 246, § 116. See McCunn v. Barnett, 2 E. D. Smith, 521. The judgments of this court were judgments of a court of record, and took effect as such. See 2 R. S. 371 (359), § 3.

Section 3. Courts under constitution of 1846.

a. Terms. By the amended judiciary article of 1847, the county courts were to be held at the usual place of holding courts of common pleas or circuits, as often and at such times as the county judge should appoint by order, which order was required to be published once a week, for three weeks successively, in a newspaper printed in the county. He might increase the number of terms, or dispense with any term, by an order entered two months before the change took effect, and published as above. But he was required to designate as many terms for the trial of issues of fact as there were then terms of the common pleas for that purpose fixed. 4 Stat. at Large, 585; Laws of 1847, ch. 470, §§ 24, 25, as amended.

By the Code, as amended in 1849, the county court was to be considered as always open, for the transaction of business, for which no notice was required to be given to the opposite party. At least two terms in each county were to be held for the trial of issues of law or fact, and as many more in each year as the