But no more than two rehearings shall be had; and if on the second rehearing five judges do not concur, the judgment shall be affirmed.

a. This section does no more than restore the common law, as it had been previously understood and acted on in this State. (Mason v. Jones, 3 Coms. 375; 3 Code R. 164.)

b. An affirmance upon an equal division of the court, merely determines the particular case, and leaves the question involved in it open for consideration in any future case in which they may arise (Morse v. Goold, 1 Kernan, 281; The People v. Mayor of New York, 25 Wend. 252); and where the court are equally divided, a rehearing cannot, in the absence of statutory authority, be allowed. (lb. Martin v. Hunter's Lessee, 1 Wheat. 355.)

c. 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; Oakley v. Aspinwall, ib. 547.)

d. A judgment of affirmance should in the absence of dissent, be held an affirmance, not only of the judgment, but of the precise proposition decided by the court below. (Green v. Clark, 13 Barb. 57.)

§ 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. (Am❜d 1851.) Court, where held. Adjournment. 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. Any one or more of the judges may adjourn the court, with the like effect as if all were present.

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Existing statutory provisions, as to terms, &c., repealed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

27. Business out of court. Transfer of business.

26.

Inability of judge.

28.

Rooms, &c., how furnished.

Terms."

§ 17. [15.] (Am'd 1849.)

All statutes, now in force, providing for the designation of the times and places of holding the general and special terms

* Jurisdiction of the Supreme Court.

a. The supreme court has all the powers of the supreme court and the former Onderdonk v. Mott, 34 Barb. 106; Myers v. Rasback, 4 court of chancery. How. 83; Myers v. Borland, id. and see ante p. 22 c, and the constitution, art. vi. sec. 3-6; 2 R. S. 259, s. 1; ib. 234, s. 60; Laws 1847, p. 323, s. 16; Laws 1848, p. 282; Laws 1849, p. 27; ib. p. 117; ib. p. 150; Laws 1850, p. 20; ib. p. 9; Laws 1851, p. 308; Laws 1852, p. 591; Laws 1853, p. 526.

b. The supreme court has jurisdiction of an action in the nature of a suit in equity where the amount in dispute is less than $100. s. 37 art. 2, tit. 2. ch. 1, part 3 of the Revised Statutes, which required the court of chancery to dismiss every suit where the matter in dispute was less than $100 is repealed. (Laws 1862, p. 859, s. 39; Laws 1863, p. 664, s. 2, and see Mallory v. Norton, 21 Barb. 424; Braman v. Johnson, 26 How. 27 and Sarsfield v. Vaughner, 15 Abb. 65; 38 Barb. 444, rev's'g S. C. 14 Abb. 297; and Shepard v. Walker, 7 How. 46; Cobine v. St. John, 12 How. 337; 576; Marsh v. Benson, 19 How. 415; 11 Abb. 241 and note; Durham v. Willard, 19 How. 425. In Sarsfield v. Vaughier, (supra) the value of the property in dispute was less than $50.

c. The supreme court may decree the cancellation of a void mortgage which (Williams v. Ayrault, 31 Barb. 364.) is a cloud on property out of the State. It may determine the validity of any actual or alleged devise or will of real estate (Laws 1853, p. 526), and may vacate the entry of satisfaction of a final decree of the court of chancery, entered on its records prior to 1846, on the return of an execution satisfied, and order a new execution to be issued. (Suydam v. Holden, Ct. of Appeals, Oct. 1853.) It has power to authorize the leasing or sale and conveyance of the real estate of benevolent, charitable, scientific, missionary societies or orphan asylums, (Laws 1861, p. 84, ch. 58). It has the power to exercise such an efficient control over every proceeding in an action pending in it, as effectually to protect every person interested in the result from injustice and fraud, and it will not allow itself to be made the instrument of wrong. (Louber v. Mayor of N. Y., 26 Barb. 262.)

An action upon an award may be brought in the supreme court, although

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, 1848; and

the submission provides for judgment in the county court. (Burnside v. Whit ney, 21 N. Y. 148.)

a. An application to sell the real estate of a religious corporation may be made to the supreme court. (Wyatt v. Benson, 23 Barb. 327; 4 Abb. 182. See Code 8. 30, subd. 9, and see supreme court rule regulating the application, in Appendix.)

b. The statutory powers of the supreme court may be exercised by the court at either a general or special term, unless there be some statute specially restricting the court. (Tracy v. Talmage, 1 Abb. 463.) Its jurisdiction in the matters of street openings in the city of New York, is exercised as a court, and not as a tribunal of inferior jurisdiction. (In re Canal street, 2 Kernan, 406.)

c. The supreme court cannot by certiorari arrest a special proceeding instituted before a judge of another court, prior to any final determination of the matter. (Devlin v. Pratt, 11 Abb. 398.)

d. The whole power of the court to order the sale of the lands of infants is derived from the statute. (Onderdonk v. Mott, 34 Barb. 106.)

Transfer of causes to :

e. As to the transfer of causes to the supreme court from the New York Superior Court and Court of Common Pleas, see section 33, post; from the Superior Court of Buffalo, see Laws 1857, vol. 1, p. 755; and from county courts see section 30, subd. 13 post; and in actions or proceedings in the City Court of Brooklyn, or before the City Judge of Brooklyn, in which the said City Judge shall have acted as attorney or counsel, or shall be interested, or in which he would be excluded as a juror by reason of consanguinity or affinity to either party, may be transferred to the supreme court and tried in the county of Kings on the judge making a certificate stating the facts, and filing said certificate with the county clerk of Kings county. (Laws 1861, ch. 86) CIRCUITS:

f By Laws of 1847 (p. 326, s. 22), these courts have the same powers, and exer cise 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 the present circuit courts, so far as the same were consistent with that act. Hardly any step, except to try or refer, can be taken at the circuit in a cause pending in the supreme court (Mann v. Taylor, 1 Code R. N. S. 388); and except to grant a new trial on the judge's minutes. See Moffat v. Ford, 14 Barb. 577.

OYER AND TERMINER:

g. The oyer and terminer in the several counties is a permanent and continuous court. Its successive sessions are terms of the same and not distinct tribunals. The oyer and terminer has no power to order a new trial upon the merits, after a conviction for felony. (The People v. Appo, 20 N. Y. 531; affirming S. C. 18 How. 350, and see The People v. Dutchess Oyer and Terminer, 2 Barb. 282.)

REMOVAL OF CAUSE FROM STATE COURT INTO U. S. CIRCUIT COURT. h. In what cases: A cause may be removed from a state court into a U. S. circuit court where (1) the parties plaintiff and defendant are citizens each of a different state, and (2) where the sum or value in dispute exceeds $500. The manner of removal is by filing, at the time of entering an appearance in the State court, a petition and bond on behalf of the petitioner to enter process at the next term of the circuit court (1 U. S. Stat. at large, 78; and see Act of Congress of March 3, 1863; and Jones v. Seward, 26 How. 33; 40 Barb. 563, reversed 26 How. 433; and Wood v. Matthews, 2 Blatchford C. C. Rep. 370).

the order of the supreme court adopted July 14, 1847, prescribing the times and places of holding the general and special terms of the court, and the circuit courts, and courts of

The value in dispute is determined by the amount originally claimed in the suit and the defendant's right to removal cannot be taken away by allowing the plaintiff to amend by reducing his claim to less than $500 (Disbrow v. Driggs, 8 Abb. 306 note, and cases there cited).

If some, only, of the defendants reside out of the State, no removal can be had (Fairchild v. Durand, 8 Abb. 305; Prentis v. Brennan, 2 Blatchford 162), and where three aliens and one citizen of New York united in a suit against a Connecticut corporation, it was held there could be no removal (Denniston v. N. Y. & N. Haven R. R. Co., 2 Abb. 278; 415; 1 Hilton, 62; and see Leonard v. Jamison, 2 Edw. Ch. 136).

The court will not order the removal of an action by an assignee of a promissory note brought to recover damages for not properly presenting and protesting said note (Anderson v. Manufacturer's Bank, 14 Abb. 436), nor an action to enjoin a party from prosecuting an action (Rogers v. Rogers, 1 Paige, 183).

An outstanding injunction does not prevent the removal (Byam v. Stevens, 4 Edw. Ch. 119).

A foreign insurance company created by the laws of another state, but doing business in this state, in compliance with our laws, on being sued by a citizen of this state, cannot remove the cause on the ground of its being a citizen of another state (Stevens v. Phoenix Ins. Co., 24 How. 517).

In an action in which a corporation is a party, if some of the corporators are citizens of the same state with the adverse party, the cause cannot be removed (North River Steamboat Co. v. Hoffman, 5 Johns. Ch. 300.)

A proceeding to charge joint debtors under section 375 of the Code, cannot be removed (Fairchild v. Durand, 8 Abb. 305).

When there are two circuit courts within the state, the court below may remove the cause to either (Suydam v. Smith, 1 Denio, 263; Norton v. Hayes, 4 Denio, 245).

a. The petition. The statute does not state what the petition shall contain. It should, however, contain a statement of the facts necessary to authorize a removal. It must state the petitioner is a citizen of another state. To say he is a resident is not sufficient (Corp v. Vermilye, 3 Johns. 145). If the statement of a material fact is accidentally omitted, the omission may be supplied by amendment (Field v. Blair, 1 Code Rep. N. S. 362). The petition need not De signed by the petitioner personally. The signature of the attorney is sufficient (Vandevoort v. Palmer, 4 Duer, 677).

b. The bond. The bond need not be executed by the petitioner. Execution by the sureties is sufficient (Vandevoort v. Palmer, 4 Duer, 677). The bond should he several, as well as joint (Roberts v. Cannington, 2 Hall, 649). A bond in a penalty of $1000, held sufficient (Blanchard v. Dwight, 12 Wend, 192). In that case $14,000 was claimed, but defendant had not been arrested. In Jones v. Seward, 26 How. 436, the court say: "I think the court should not approve any sureties unless the amount of the bond is equal to the sum in which the defendant has been held to bail.

c. Appearance.-Filing notice of appearance with the clerk is an appearance entered (Field v. Blair, 1 Code Rep. N. S. 292); so is a motion to discharge from arrest (Dart v. Árnis, 19 How. 429), or resisting a motion for an injunction (Cooley v. Lawrence, 5 Duer, 605; 12 How. 176); but giving bail on arrest is not (Durand v. Hollins, 3 Duer, 686); nor is a mere notice of appearance or retainer (Field v. Blair, 1 Code Rep. N. S. 292; Norton v. Hayes, 4 Denio, 245). There must be some act done and entered in court (id.). One defendant may appear and defend alone to enable him to remove the cause (Livingston v. Gib bona, 4 Johns. Ch. 94; Norton v. Hayes, 4 Denio, 245).

oyer and terminer, during the residue of the year 1847, and for the years 1848 and 1849, and assigning the business and duties thereof to the several judges of the court, is, from and after the first day of July, 1848, abrogated, and the provisions of this title are substituted in place thereof.

a. Motion for order. The application for the order is usually on notice, or order to show cause (Disbrow v. Driggs, 8 Abb. 306 n.), but where an order issued ex parte, the court refused to vacate it on appeal. (See Illius v. N. Y. & N. H. R. R. Co., 3 Kernan, 597.) On the motion the plaintiff may, by affidavits, contradict any fact stated in the petition, or state new facts (Denniston v. N. Y. & N. H. Ř. R. Co., 2 Abb. 278; 415; Disbrow v. Driggs, 8 Abb. 306 n.).

b. Form of order to shoe cause, and for removal.-See Carpenter v. N. Y. &. N. H. R. R. Co., 11 How. 485, 486. No order for removal, however, seems necessary (id.). Where an injunction has issued, the order may provide that it shall not operate to dissolve the injunction (Liddle v. Thatcher, 12 How. 294).

c. On a defendant complying with the statute requirement, the state court has no discretion in the matter, but the cause is removed, and any subsequent proceeding in the state court would be void for want of jurisdiction (see Linermore v. Jenks, 11 How. 479, and cases there cited; and see Hill v. Henderson, 6 Sme. and M. 351). Except that any attachment which has been issued is by the statute to continue in force until the final judgment in the circuit court. The court has jurisdiction of any proceeding in relation to the attachment (Carpenter v. N. Y. & N. H. R. R. Co., 11 How. 481).

d. Filing petition.-The petition to remove must be filed at the time of, and not after, entering an appearance. If no appearance has been entered, and the plaintiff has taken no step towards entering judgment, the defendant may re move the cause, although the time to answer has expired (Carpenter v. N. Y. & N. H. R. R. Co., 11 How. 481; Redmond v. Russell, 12 Johns. 153; Roberts v. Cannington, 2 Hall, 649).

e. Proceedings after order for removal.-After the order is made, the defendant is to perfect the proceedings by appearing in the circuit court before the next term of that court, and entering special bail where an order of arrest had issued in the state court, and filing copies of the process (Martin v. Kanouse, 1 Blatchf. C. C. R. 149), and the plaintiff must file a new declaration in the cir cuit court (Clarke v. Protection Ins. Co., id. 150). After removal, all proceedings must be according to the rules of the court into which the cause is removed; the code has no application to such causes (Suydam v. Ewing, 1 Code Rep. N. S. 294).

f. It seems a State court cannot entertain a motion to vacate an order of removal to the U. S. courts after the cause has been transmitted to the circuit court. The appropriate place for such a motion, which, in effect, is to remand the cause to the State court, is in the forum where the cause is pending. So held by Davies, J., in Disbrow v. Driggs; and see Jones v. Seward, 26 How. 436. g. On the removal of a cause, certified copies of the process and papers by which the suit was commenced in the State court, should be sent to and entered in the United States court (Martin v. Kanouse, 1 Blatch. C. C. Rep. 149). On the entry of such copies the plaintiff must file a new declaration in the United States Court (Clarke v. Protection Ins. Co., 1 Blatch. C. C. Rep. 150). Can the United States court send the cause back to the State Court? (Van Zandt v. Maxwell, 2 Blatch. C. C. Rep. 421.)

h. There can be no review in the court of appeals of an order at chambers not appealed from in the court below, denying a motion to remove a cause into the United States circuit court (Kanouse v. Martin, 6 How. 240; Illius v. N. Haven R. R. Co., 3 Kernan, 597).