power, however, extended as it is, in no practical respect derogates from the co-ordinate authority of the New York tribunals, and is, in itself, one most essential to the ends of justice, in reference to cases in which the jurisdiction of the latter may have been acquired by casual service within their district; the real matter in controversy being situate elsewhere, and the evidence in support of that matter, being only there attainable. It is evident that where the parties all reside in New York, and the cause of action is either purely transient, or locally situate within that city, this power can never in practice be exercised, and therefore any conflict of jurisdiction on the subject is highly improbable.

The further provision, as to the removal of causes pending in a mayor's or recorder's court, in which the judge is incapable of acting, was also first inserted on the recent amendment, as a necessary corollary to the similar provision as to county courts, in subdivision 13, of sec. 30.

It seems clear that an order of this nature, on the part of the supreme court, removes the cause, and not merely the place of trial, notwithstanding the note at 2 C. R. 50.

The superior court itself has imposed analogous limits on its own jurisdiction in the case of Ring v. Mc Coun, 3 Sandf. S. C. R. 524, where it refused to entertain a cause in which, (although in every other respect it was clearly within the scope of its cognizance, both as regarded the parties and the origin of the cause of action,) the title to land in another county came, nevertheless, into question ;-and which county might, therefore, under sec. 123, be fairly contended to be the proper place of trial.

On the subject of jurisdiction by service, the superior court has throughout been disposed to take a rigid view of its own powers. Thus, in Delafield v. Wright, 3 Sandf. S. C. R. 746; 1 C. R. (N. S.) 123, (a suit brought against two joint debtors, as such,) the objection that one of the defendants was neither a resident, nor served with process within the limits, was held to be fatal, and the complaint was dismissed for want of jurisdiction, notwithstanding that the resident defendant had appeared, and had put in a separate defence.-See Note on the subject at 1 C. R. (N. S.) 341. In Fisher v. Curtis, 2 C. R. 62, and In re Carr, Id. 63, attachments which had been issued against non-resident debtors were, on similar grounds, held to be invalid,

and it was distinctly laid down in the former case, that, to give the court jurisdiction, all the defendants must either be resident, or be served within the limits, according to the terms of the section. This rule is, however, relaxed, as regards the case of parties jointly indebted, by the recent amendment, service on any one of whom, or residence within the limits, is now sufficient to confer jurisdiction, and to sustain a judgment entered up against all on the joint indebtedness. Of course this rule will not apply where the liabilities of such parties are several, although arising under the same contract.

In cases where the jurisdiction arises under sec. 123 and 124, in respect of local matters, the non-residence of some of the defendants will form no ground of objection.-See the principles laid down on this subject in Cashmere v. Crowell, 1 Sandf. S. C. R. 715; 1 C. R. 95; and asserted in the subsequent decision of Cashmere v. De Wolfe, before referred to, although the particular provision of the Code of 1848, in respect of which that case was decided, has been repealed by the subsequent amendments.

Although service within the limits confers jurisdiction, without respect to the residence of the party so served, still the court will not sanction any attempt to bring a party within that jurisdiction, by any fraud or misrepresentation, and will set aside a service effected by such means.-Carpenter v. Spooner, 2 Sandf. S. C. R. 717; 2 C. R. 140, which decision appears to have been affirmed by the general term, 3 C. R. 23.

Where a defendant, irregularly served, gave notice of retainer, and afterwards moved to set the proceedings aside for want of jurisdiction, it was held in the common pleas that he was too late, and that the court had acquired jurisdiction by his voluntary appearance.-Smith v. Dipeer, 2 C. R. 70.

In re De Angelis, 1 C. R. (N. S.) 349, the question as to the powers of the court of common pleas, to award as to the custody of children, pending an action for divorce between their parents, was raised; and it was held that the custody of infants was a matter of special jurisdiction, formerly vested in the court of chancery alone, and was therefore not a necessary incident to. the action of divorce, but of a distinct and independent nature. It was accordingly decided that the powers of the court of common pleas did not extend so far as to enable them to make any award on the subject, and that the supreme court was the

only competent tribunal for that purpose. Of course the principle here laid down is, if established, equally applicable to the jurisdiction of the superior court, and of all other local tribunals, whatever the extent of their powers in other respects.

In addition to the powers which it possesses in common with the superior court, the court of common pleas is also invested by sections 34 and 352 of the Code, with the peculiar cognizance of appeals from the marine court of New York, and also from the justices' courts within that city-a branch of jurisdiction formerly exercised by the sister tribunal.

The statutory provisions for the constitution of this court, i. e. the common pleas, will be found at 2 R. S. 216, and in various subsequent acts, collected in the third edition of those statutes, vol. II. page 284 to 289. The organization of the superior court was effected by c. 137 of the laws of 1828—which act, and the subsequent provisions affecting it, will be found in vol. II., pages 311 to 317, and likewise at page 701 of vol. III. of the same edition, and in the laws of the different sessions subsequent to its publication.

In addition to the justices of the superior court, as originally constituted, provision is made by the Code, sec. 41 to 45, for the election of three additional judges, and for their classification in a manner analogous to that of the elected judges of the court of appeals; their future terms of office, after the expiration of those under such classification, to be six years. The jurisdiction of the judges so appointed is co-extensive with that of the judges of the court under its original constitution: Huff v. Bennett, 2 C. R. 139. In section 47, provision was made for the transfer to this court of some portion of the arrears of issues of law and equity cases then pending in the supreme court, and, under section 49, the hearing of these transferred cases was, for a term of two years, to be the peculiar of fice of the three judges to be so elected. By c. 2 of the laws of 1851, this last section was, however, repealed, and the three judges in question now exercise the general functions of judges of the court, without any distinction between them and those appointed under its original constitution. In Giles v. Lyon, 4 Comst. 600, 1 C. R. (N .S.) 257, it was held that the power of the supreme court in the foregoing respect was confined to equity causes existing at the passage of the Code, and that a cause subsequently commenced could not be so transferred to

the superior court; and all the proceedings in a case of that description were accordingly set aside. The powers and offices of the general, special, and trial terms of these courts, (the latter term being synonymous with that of circuit court.) are identical with those of the supreme court before noticed. The practice in them is regulated by the general rules of the latter tribunal; but the superior court has also published a further set of rules for its own guidance, with reference to the arrangement of the business before it, and the mode of transacting that business. The common pleas has likewise made some few regulations on similar matters, particularly in reference to the hearing of appeals from the marine and justices' courts.

It has before been mentioned that the appeal from the general terms of both these tribunals, lies direct to the court of appeals without any intervening jurisdiction, and that their appellate cognizance over the inferior courts within the city, is, since the Code of 1849, peculiarly exercised by the court of common pleas, under secs. 34 and 352.

CHAPTER VII.

OF THE MAYORS' AND RECORDERS' COURTS OF CITIES.

Ir will not be necessary to detain the reader at any length on the subject of the powers and jurisdiction of these courts, as, with reference to the cognizance of actions in general, they are substantially the same as those treated of in the last division; but with the important exception that mere service within the limits, is not here sufficient to confer jurisdiction, but, under subdivision 2 of sec. 33, as before cited, absolute residence of all the defendants within the city in which each of such courts is situated, is an absolute prerequisite to its exercise of any functions whatever, except in cases strictly local in their nature, and falling as such within subdivision 1 of that section. These courts are likewise devoid of any appellate jurisdiction whatever, and their own proceedings are not subjects of review by the court

of appeals, until they have been previously submitted to the intermediate jurisdiction of the supreme court.

The recent provision as to removal into the supreme court, of cases pending in these jurisdictions, in which the judge is, in any manner, incapable of acting, will, of course, be noticed.

It would seem that by the terms of sec. 470, if strictly construed, the rules of the supreme court are not binding upon these tribunals, but only on the county courts; but there can be little doubt that in practice they will be found the safest, if not the only safe guides to follow.

The statutory provisions on the subject of the organization of these courts, will be found collected in volume 2 of the last edition of the Revised Statutes, pages 293 to 311. The cities in which they are thereby established, are Albany, Hudson, Troy, Buffalo, and Utica, and also Rochester; but the last court has since been abolished by c. 303 of the laws of 1849. In vol. 3 of the same edition, pages 702 to 708, inclusive, will be found various provisions in relation to the same courts, and also those establishing a similar court in the City of Oswego, subsequently amended by c. 134, of the laws of 1849.

The city court of Brooklyn was established by c. 125, of the laws of 1849, amended by c. 102, of the laws of 1850.

By c. 138, of the latter, the act as to the establishment of these courts in Buffalo is amended.

CHAPTER VIII.

OF JUSTICES' COURTS IN GENERAL, INCLUDING THE MARINE AND JUSTICES' COURTS IN THE CITY OF NEW-YORK.

In pursuing the analysis of the different courts of civil jurisdiction within this state, whose practice and proceedings are affected by the code, we come, in the last place, to the courts of inferior jurisdiction above enumerated. For all general purposes the powers of these different courts are substantially the same, though the marine court, under sec. 65, possesses peculiar authority in reference to actions on contract, in respect of serv