« ΠροηγούμενηΣυνέχεια »
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 oue, chapter three, of the third part of the Revised Statutes (prohibiting judges from sitting or actiog in certain cases), shall. not apply to any judge of the court of appeals.
Of the Supreme Court,* Circuit Courts, and Courts of Oyer and
SECTION 17. Existing statutory provisions, as to terms, &c., repealed.
18. General terms.
$ 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 Existing statutory provisions as to terms, &c., repealed.-All statutes, now in force, providing for the designa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-cight, 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 supremne 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 of 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. I. People, o. 'White, 24, Wend. 543, 545.
general term to be held in the same city, may be held at the capitol or the city hall, in the discretion of the judges holding such terms.
§ 19. (17.] Judgment, how given.—The concurrence of a majority of the judges holding a general term, shall be necessary to pronounce a judgment. If a majority do not concur, the case shall be re-heard.
$ 20. (18.] Special terms, fc. There shall be at least two terms of the circuit court and court of oyer and terminer held annually in each of the counties of this state, and as many more terms thereof, and as many special terms, as the judges of each judicial district shall appoint therein; but at least one special term shall be held annually in each of said counties. Fulton and Hamilton shall be considered one county for the purposes of this section.
§ 21. [19.] Circuit and oyer and terminer together.-Circuit courts, and courts of oyer and terminer, shall be held at the same places, and commenced on the same day.
$ 22. (23.] Times and places of holding courts.—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.
This section is identical with section 23 of the code of 1848, and under that section the governor duly designated the time of holding the general and special terms, circuit courts, and courts of oyer and terminer, and the judges by whom they should be held, and the judges of the supreme court appointed the times and places of holding those courts, and by such designation and appointment a circuit court, court of oyer and terminer, and special term was to be held in and for the county of Greene on the 31 Monday of June, 1849, by Mr. Just ce Puige. By an act passed 20th May 1849, (Laws of 1849, p. 150,) the justices of the supreme court assigned to hold the circuit court, court of oyer and terminer in the counties of Greene, Ulster and Schoharie were authorized to change the time for holding the same for the year 1849. In pursuance of this act, Justice Paige directed that the circuit court and court of oyer and terminer for the county of Greene should be held on the 4th instead of the 3rd Monday in June, as had been provided under the code. Justice Paige accordingly held a circuit court on the fourth Monday in June, and at such court made an order which purported to be made at, and was entitled as of a special term, held at, &c., on the 27th of June, 1849, (the Wednesday after the fourth Monday in June.) On motion the court, at a general term, set aside the said order, on the ground that Justice Paige had no power to change the time for holding the special term, and that no special term was legally held at the time the order was made. Bedell v. Powell, 3 Code Rep. 61.
$ 23. [24.] Extraordinary terms, &c.—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.
By the Laws of 1850, p. 9, cap. 1, it is enacted that when ever, 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.
And by Laws of 1850, p. 20, cap. 15, 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. [25.] (Amended.)— Terms, 8c.,—Where held. 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.
Adjournment.-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.
The amendment of this section consists of the addition of that part which is printed in italic. See note to section 18.
$ 25. [26.] Publication of appointment.—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.
§ 26. [28.] Inability of judge.—In case of the inability, for any cause, of a judge assigned for that purpose, to hold a special term or circuit court, or sit at a general term, or preside at a court of oyer and terminer, any other judge may do so.
$ 27. [30.] Business out of court.— The judges shall, at all reasonable times, when not engaged in holding court, transact such other business as may be done out of court. Every .proceeding commenced before one of the judges, in the first judicial district, may be continued before another, with the same effect as if commenced before him.
The justices of the supreme court, although elected in districts, possess coordinate powers throughout the State. Const. art. 6, s. 6.
§ 28. [31.] Rooms, &c.—The supervisors of the several counties shall provide the courts appointed to be held therein with room, attendants, fuel, lights and stationery, suitable and sufficient for the transaction of their business. If the supervisors neglect, the court may order the sheriff to do so; and the expense incurred by him in carrying the order into effect, when certified by the court, shall be a county charge.
By section 51 of this code, this section is made applicable to the superior court of the city of New York.