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eral term, shall be necessary to pronounce a judgment. If a majority do not concur, the case shall be reheard.

20. [18.] (Amended 1819.) Special terms, &c. 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.

1. Special terms were established by statute for the purpose of hearing and deciding, during the vacations intervening between the calendar terms, all such nonenumerated business as should arise in the court, except such as the court should direct to be heard in term. (Laws of 1830, p. 208, ss. 1, 2; 2 R. S., 124, ss. 9, 12.)

6. The constitution, art. vi. sect. 6, prescribes by what justices the general and special terms shall be held, but " it leaves their powers to be prescribed by the legis. latare." Griffin v. Griffith, 6 Pr. R., 428.

c. The distinction between the power of the court at special and general terms was discussed in the case of Gracie v. Freeland, 1 Com., 228, and again in Mason v. Jones, 1 Code Rep., N. S., 338. In the latter case, Mitchell, J., in reviewing the case of Gracie v. Freeland, says: "Judge Bronson speaks as well of the special term as of the general term, as branches of the supreme court, and grounds his decision on the provision of the judiciary act of 1848, sec. 20, that all suits in equity should be first heard and determined at a special term of the supreme court, and that either party might then apply at a general term for a rehearing, and that this made it imperative on the general term to give it a rehearing, and that that rehearing differed from the technical hearing in the court of chancery. Judge Gardiner, urging that there is a constitutional difference between the special and general terms, concludes that it consists in this, at least, that the decisions at the general term are the only final determination of the supreme court, while those of the special term are, in all cases affecting the merits, subject to review in the same court at a general term. This clearly recognizes that the special term is the supreme court as well as the general term, and, unless the law or the constitution point out a limit, it has the same powers. Thus appeals from a vice-chancellor to the chancellor were, under the judiciary act, noticed to be heard before the judge at special term, though generally sent by him, under the power contained in that act, to the general term.

d. "That branch of the court (the special term) now hears every question, except on appeal, that could come before the general term; questions as to the opening of streets, as to granting mandamus or certiorari, and has even quashed a certiorari allowed ex parte at ihe general term, and its decision was not appealed from.

e. "The sixteenth section of the judiciary act gives to the supreme court the same jurisdiction and power as were possessed or exercised by the former supreme court and court of chancery; that power and jurisdiction was given to the supreme court in general term; uot more to it, when sitting at general term, than when sitting at special term, and wherever the supreme court was sitting as a court, whether at general or special term, there all those powers and jurisdictions were centered.”

5. "The special term of this (supreme court is a kind of court of chancery, having a most extensive equity jurisdiction. The old special term was restricted.” Per Roosevelt, J., in Beach v Gilhooly, (not reported.)

g. An application to amend a judgment, at general term, for irregularity merely, may be made at special term; De Agreda v. Mantel, 1 Abbott, 133; Corning v. Powers, 9 Pr. R., 54.

tee There is but one Supreme Court, which acts and decides ; whether it acts through the special term or the general term, its powers are the same. None of the ancient powers of the general term are taken from it, and it can therefore make an original order in any matter (as for re-taxation of costs) in which it might formerly have made such order. The Code specifies the manner in which appeals shall be brought before the general term, but does not attempt to limit its powers. Anon. v. Anon. 10 Pr. R. 353.

a. See note to section 18, ante.

§ 21. [19.] (Amended 1819.) 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.

b. See as to circuits, &c., in first judicial district, Supplemental Act, Title II. post, $ 22. [23.] (Amended 1849.) 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.

c. 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 third Monday of June, 1849, by Mr. Justice Paige. By an act passed 20th May, 1849 (Laws of 1849, p. 150), the justices of the supreme court assigned to hold the circuit court and court of oyer and terminer in the counties of Greene, Ulster, and Schoharie, were auihorized to change the time for holding the same for the year 1849. Io 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 3d 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 Weduesday 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.

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$ 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.

a. By Laws of 1850, p. 9, cap. 1, 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 falling, it shall be the duty of the governor to designate some justice or justices of said supreme court, who shall hold said courts respectively.

b. 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.

See section 459 of this code.

$ 24. [25.] (Amended 1819, 1851.) Terms, &c. Where held. Adjournments.

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.

See notes to sections 18 and 20.
§ 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.

a. The justice appointed to preside at a general term in the absence of the presiding justice, may preside during the whole term, and not merely during the absence of the presiding justice. The People v. Hicks, 15 Barb. 153.

b. See note to section 23.

$ 27. [30.] (Amended 1849.) 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.

c. The justices of the supreme court, although elected in districts, possess coordinate powers throughout the State. Const., art. vi., s. 6.

d. After judgment has been rendered in a cause before a single judge in what would before the code have been an action at law, he does not at his chambers act as a court, except in cases prescribed by the statutes. (Code, ss. 400, 401, 247, 27, Jud. Act., s. 16.) In other respects the old distinction between chamber and term duties in actions at law, I suppose, are retained. (Code, ss. 402, 469, 414; Clark v. Judson, 2 Barb., 93.) Sections 27 and 400 of the code have not affected the practice in this respect. Per Hand, J., in Mann v. Tyler, 1 Code Rep., N. S. 383.

e. Any special powers and jurisdiction, heretofore vested and existing in any vice-chancellor or judge of the supreme court, in any particular district or circuit, prior to the 1st Monday of July, 1847, is 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. Laws of 1849, cap. 30, p. 27. See Garcie v. Sheldon, 3 Barb. 232. Aymar v. Chase, 1 Code. R., N. S. 330.

f. There is but cne case in which a judge at chambers can grant a judgment, and that is under section 247. In all other cases judgment can be rendered only by the court when sitting as such,

and not by a judge at his lodgings, in the street, or even in chambers. Aymar v. Chase, 12 Barb., 301.

g. A common law writ of certiorari cannot be allowed by a judge of the Supreme Court at Chambers. An application to the court, either at general or special term, is necessary, the same as under the former practice. Such application may be ex parte. The judiciary act of 1847, s. 17, must be construed to apply to writs of error, and writs of certiorari, authorized by statute. Gardner v. Commrs. of Warren, 10 Pr. R. 181.

h. A judge at Chambers cannot entertain a petition for the discharge of a debtor from imprisonment (R. S. pl. 2, art. 6, tit. 1, ch. 5). The petition must in the first instance, be presented at a regular special term. Re Walker, 2 Duer, 655.

$ 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.

4. By section 51 of this code, this section is made applicable to the superior court of the city of New York, and by laws of 1853, cap. 529, p. 992, it is enacted that this section “shall apply to the court of common pleas for the city and county of New York, and the superior court and marine court of the said city, and the said courts shall appoint the officers necessary to attend said courts, whose salaries shall be fixed by the board of supervisors, and paid out of the city treasury."


Of the County Courts.*

SECTION 29. Repeal of existing statutes,

30. Jurisdiction.
31. General terms.
32. Jurors.

$ 29. [32.] Repeal of existing statutes.

All statutes now in force, conferring or defining the jurisdiction of the county courts, so far as they conflict with this act, are repealed; and those courts shall have no other jurisdiction than that provided in the next section. But the repeal contained in this section shall not affect any proceedings now pending in those courts.

$ 30. [33.] (Amended 1849, 1851, 1852.) Jurisdiction. The county court bas jurisdiction in the following special

b. Prior to the new constitution the county courts were composed of a multiplicity of judges, but upon their abrogation by the constitution, new county courts were established with but a single judge, called a county judge, except that in the city and county of New York the county court is still composed of the judges of the court of common pleas, and the mayor, recorder, and aldurmen, as ex officio judges of that court. Const., art. vi., s. 14.

c. By laws of 1851, p. 22, c. 21, it is enacted, that the county courts shall possess the same jurisdiction in their respective counties in relation to the liberties of jails, as was vested in courts of common pleas, by the Revised Statutes, part 3, art. iii., tit. 6, cap. 7.

d. By the constitution, art. vi., sec. 14, the legislature is empowered to confer equity jurisdiction in special cases upon the county judge, and in another part of the same section of the constitution, it is provided that "county courts shall have such jurisdiction, in cases arising in justices' courts, and in special cases, as the legislatare may prescribe, but shall have no original civil jurisdiction, except in such cases."

e. See notes to sections 30 and 32.

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