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the supreme court is not authorized, on motion at special term, to review and vacate a judgment entered in an action under the Code, upon and pursuant to the decision of a referee, on the ground that it is erroneous at law. Such a judgment, as to errors of law therein, can be reviewed only by the court at general term, on appeal.

6. Q. What has been decided under the constitutional provision in reference to the creation of the new county of Schuyler?

A. In Lanning agt. Carpenter, 20 N. Y. R., 449, December, 1859, DENIO, J., it was decided, that the act of 1854, (Laws of 1854, ch. 386,) organizing the county of Schuyler was unconstitutional; did not belong to any judicial organization, and consequently a judgment of the supreme court docketed in that county in 1855, was void.

7. Q. When should motions to correct the calender be made at the circuit?

A. In Anonymous, 28 How., 394, Special Term, February, 1865, BALCOM, J., it was decided, that motious to correct the calender at the circuit, should be made on the first day of the circuit, which generally occurs on Monday. It is too late to make such motions on Thursday of the first week of the circuit.

What is the result of the decisions under this section?

1 There is a constitutional difference between the special and general terms of the supreme court. The decisions of the general term are the only final determinations of that court, while the decisions at special term, affecting the merits, are in all cases subject to review by the general term.

2. The special term is the supreme court as well as the general term, and hears every question, except on appeal, that could come before the general term.

3. The special term of the supreme court is a constitutional tribunal.

4. It is for the legislature to determine what proceedings shall be had at a general term and what at special term or circuit.

5. All non-enumerated motions, except when otherwise diaected by law, are to be heard at special term.

6. The special term has authority to determine questions of practice, though they involve the regularity of the proceedings at general term.

7. The special term may hear a motion for a re-hearing on a report of referees as against evidence.

8. The special term may hear a motion for a new trial on the merits, where the verdict is against evidence.

9. The special term may review the evidence appearing upon the trial before the court without a jury, either of questions of fact or law.

10. The special term may hear a mofion for a new trial on a non suit.

11. The special term cannot review and vacate a judgment entered upon a report of referees for errors of law.

12. A judgment of the supreme court docketed in the county of Schuyler in 1855 was void, as the act of 1854 organizing that county was unconstitutional, and the county, therefore, did not belong to any judicial organization.

13. Motions to correct the calendar, should be made on the first day of the circuit.

$21. Circuit courts and oyer and terminer held together. Circuit courts, and courts of oyer and terminer, shall be held at the same places, and commenced on the same day.

1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1849, which amendment reads as above.

2. Q. How did this section read in 1848?

A. As follows:

$ 19. [1848.] Special terms, circuit courts, and courts of oyer and terminer, shall be held at the same places, and commenced on the same day.

Questions.

3. Q. What powers and jurisdiction are given to the circuit courts?

4. Q. By whom are the courts of oyer and terminer to be held?

5. Q. Is the time of the commencement of the circuit courts a part of the public law and tɔ be presumed?

6. Q. Can a justice of the supreme court while a judge of the court of appeals held a court of oyer and terminer ?

7. Q. Have the courts of oyer and terminer power to grant new trials?

8. Q. Has the court of oyer and terminer poncer to try a prisoner with eleven jurors?

9. Q. Has the court of oyer and terminer power to suspend sentence indefinitely?

3. Q. What porters and jurisdiction are given to the circuit courts?

A. The powers and jurisdiction of the circuit courts are given by the laws of 1847. (Sess. Laws, 1847, p. 326, § 22) conferring the same powers and jurisdiction as far as applicable, which the old circuit courts possessed.

4. Q. By whom are the courts of oyer and terminer to be held?

A. By Session Laws of 1847, p. 330, §§ 38, 39, it is provided, that courts of oyer and terminer are held in the county of New York by a justice of the supreme court, and any two of the following officers: judges of the common pleas, mayor, recorder and aldermen of said city; and in all the other counties by a justice of the supreme court, county judge, and the justices of the court of sessions.

5. Q. Is the time of the commencement of the circuit courts a part of the public law and to be presumed?

A. In The New York Central Ins. Co. agt. Kelsey, 13 How., 536, Special Term, July, 1856, HUBBARD, J., and in Silliman agt. Clark, 2 How., 160, Sperial Term, June, 1846, JEWETT, J., it was decided, that the time of the commencement of the circuit courts is a part of the public law, and must be presumed to be known by all, especially the legal profession. Therefore au irregular or defective notice of trial, must be returned immediately or the defect will be waired.

6. Q. Can a justice of the supreme court while a judge of the court of appeals hold a court of oyer terminer?

A. In McCarron agt. The People, 3 Kern., 76, September, 1855, JOHNSON and HAND, J. J. it was decided, that a justice of the supreme court while acting as a member of the court of appeals, can legally hold a court of oyer and terminer.

7. Q. Have the courts of oyer and terminer power to grant new trials?

A. In Quimbo Appo agt. The People, 20 N. Y. R., 531, March, 1860, SELDEN and CLERKE, J. J., it was decided, that the court of oyer and terminer is a permanent and continuous court. Its successive sessions are terms of the same court, and not distinct tribunals. Courts of oyer and terminer have no

its, after conviction for felony. Nor, it seems Power to order new trials upon the mer

on the merits in any case.

they power to grant new trials

8. Q. Has the court of oyer and terminer power to try a prisoner with eleven jurors? 4. In Cancemi agt. The People, 18 N. Y. R., 135, September, 1858, STRONG, J., it was decided, that courts of oyer and terminer have no power to try a criminal with eleven jurors, or with any number less than the full panel of twelve jurors. 9. Q. Has the court of oyer and terminer power to A. In The People agt. Morrisette, 20 How., 119, COM, J., it was decided, that the court of oyer and to suspend the sentence of a criminal in any case, after conviction.

suspend sentence indefinitely.

General Term, December, 1860, BALterminer does not possess the power

Q. How did sections 20, 21 and 22 read in 1848 (which were left out in the Code of 1849?)

A As follows:

20. [1848.] 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.

§ 22. Designation of times and places of holding courts; how made.

The governor shall, on or before the first day of May, one thousand eight hundred and forty-eight, 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, one thousand eight hundred and forty-nine. The judges of the supreme court of each district shall in like manner, at least one month before the expiration of that time, appoint the times and places of holding those courts for two years, commencing on the first day of January, one thousand eight hundred and fifty, and so on, for every two succeeding years, in their respective districts.

1. Q. Has this section heen amended since its passage in 1848? Answer. It has, in 1849, which amendment reads as above. 2. Q. How did this section read in 1848?

A. As follows:

$23. [1848.] 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. The judges of the supreme court shall, in like manner, at least one month before the expiration of that time, appoint the times and places of holding those courts, for two years, commencing on the first day of January, 1850, and so on, for every two succeeding years.

3. Q. Is the appointment of the courts to be considered a part of the public law? A. The answer to this question will be found under § 21, Q. 5.

4. Q. Is the supreme court. like the late court of chancery, always open for general purposes?

A. In Wilcox agt. Wilcox, 4 Kern., 582, December, 1856, MITCHELL, J., it was decided that the supreme court, like the late court of chancery, is always open for general purposes. 5. Q. What is the constitutional provision for organizing these courts?

4. The answer to this question will be found under § 17, Q. 3.

§23. Extraordinary, special and general terms, and oyer and terminer; how appointed? (Same as 24 in 1848.)

The governor may also appoint extraordinary, general and special terms, circuit courts, and courts of oyer and terminer, whenever, in his judgment, the public good shall require it.

1. Question. What statutory provision is made for the designation of justices under this sertion?

Answer. By the Laws of 1850, p. 9, it is enacted that "whenever, from any cause, any general or special term of the supreme court, or any circuit court, or court of oyer and terminer, duly appointed, shall be in danger of failing, it shall be the duty of the governor to designate some justice or justices of said supreme court who shall hold said courts respectively."

2. Q. What statutory provision is made where a justice is disqualified from asting?

A. By the Laws of 1850, p. 20, it is enacted that "whenever an action in the supreme court cannot be brought to argument and decision in the district where the same is pending, by reason of the justices of such district, or any of them, having been employed as counsel, or being interested therein, or of kin to the parties, or any of them, the court may, upon special motion, order such action to be brought to argument in any adjoining district, to be specified in such order; and then such cause shall be heard and decided in such district.”

24. Places of holding the courts.

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 twenty-eight.

General and special terms of the supreme or county courts, and circuit courts, and courts of oyer and terminer, may be adjourned to be held on any future day, by an entry to be made in the minutes of the court; and juries may be drawn and summoned for an adjourned circuit or county court, or an adjourned court of oyer and terminer; and causes may be noticed for trial at an adjourned circuit or county court, in the same manner as if such courts were held by original appointment.

And special terms may be adjourned to be held at a future day at the chambers of any justice of said court residing within the district, by an entry in the same manner, and then adjourned from time to time, as the justice holding the same shall order and direct.

1. Question. Has this section been amended since its passage in 1848?
Answer. It has, in 1849, 1851 and 1862, which last-amendment reads as above.
2. Q. How did this section read in 1848, 1849 and 1851 ?
A. As follows:

$25. [1848.] 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 thirty-one.

24. [1849.] 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 twenty-eight.

24. [1851.] The places appointed within the several counties for holding the general and special terms. circuit courts,

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