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The constitutionality of this provision having been virtually affirmed by the action of the court under it, it is retained in this section.

§ 34. The concurrence of five judges is necessary, to pronounce a judgment. If five do not concur, the case must be reheard.

This section is the same as section 14, of the code of 1848. It was altered in the amended code, sec. 14, so as to read as follows: "The concurrence of five judges shall be necessary to pronounce a judgment. If five do not concur, the judgment or order appealed from shall be affirmed, unless the court order a rehearing."

The reason for this alteration does not appear in the repor of the committee by which it was made, nor was it, that the Commissioners are aware, the subject of discussion in the legislature. It departs from a principle which was maturely considered by the Commissioners, and which the legislature itself, by which the alteration was made, retained in section 19, of the amended code, in respect to the supreme court. The reasons, as stated by the Commissioners in their first report, p. 24, 25, and which subsequent reflection has convinced them are unanswerable, they deem it proper here to repeat.

By the present practice, upon an equal division of the court the judgment below is affirmed. But it is well settled, that such an affirmance merely determines the particular case, and leaves the questions involved in it, open for consideration in any future case in which they may arise. Bridge v. Johnson, 5 Wend. 342; The People v. The Mayor and Aldermen of the city of New-York, 25 Wend. 252. Besides, as was decided by the court of errors, in the case last cited, and by the supreme court of the United States, in Martin v. Hunter's Lessee, 1 Wheat. 355, a rehearing in such case, cannot, in the absence of statutory authority, be allowed.

Whatever may be the policy of such a rule, in courts whose judgments may be reviewed, the principle that a judgment of a court of last resort, rendered by a tie yote, should determine the rights of parties, while, it is conceded, it does not settle

the principles on which those rights depend; nay, while at the
very next term, those principles may be differently settled,—
strikes us as incompatible with a sound administration of jus-
tice. The rule is itself, a technical one, merely. It is, in ef-
fect, but saying, that, because on the first hearing, a party fails
to obtain a reversal, his rights are to be forever concluded; and
its application is universal, whether property, liberty or life be
affected by the judgment. No one, it seems to us, can hesitate
to admit, that it is wiser to say, in such a case, that the cause
should be reheard; so that with the determination of the indi-
vidual case,
the principle which is to govern in future, should
be established.

It has been suggested as an objection to this provision, that the concurrence of five judges should not be required, while six may hold the court. This objection is rather theoretical than practical, inasmuch as, with very few exceptions, all the judges have hitherto been present at its sessions. But even were it otherwise, the Commissioners, in view of the doubt as to the right of less than the whole number of judges to hold the court, or, if no such doubt existed, of the propriety of requiring that the decision of the court of last resort which not merely determines the particular controversy, but settles the law of the state as a precedent in similar cases, should be given by a majority of the whole court, deem this provision eminently just and expedient.

§35. There are six terms in each year, for the hearing of appeals; to commence on the first Tuesday of January, March, May, July, September and November, and to continue until the fourth Saturday thereafter, inclusive, unless all the causes ready for hearing be sooner heard. They may, however, be continued as much longer as in the opinion of the court the public interests require. Additional terms may also be held, by order of the court.

This section is substantially the same as in the code of 1848, sec. 13. It was, however, amended in the amended code, sec.

13, by providing that "there shall be at least five terms of the court of appeals in each year, to be held at such time and place as the court shall appoint, and continued for as long a period as the public interests may require."

The reason of this change is not very apparent. The original provision was reported by the Commissioners, not because they supposed the judges of the court of appeals would hold fewer sessions, or for a less period than the public interests required, but because, in view of the pressure of business in that court, they deemed at least six terms in each year necessary, and that they should be held for the time prescribed. The result has proved that they were right in this supposition. They deemed it proper also, to fix the times at which the sessions of the court should be held, to obviate the embarrassment which was formerly occasioned, and which has continued ever since the change, from the court at each session fixing the time when the next session shall be held. For these reasons, therefore, they recommend that this section bet re-adopted.

§ 36. The places of holding the terms must be appointed by the court, by an order entered upon the minutes, which may be made annually, before the first day of December. When made, it shall remain in force during the succeeding year, and until changed by another appointment.

The remark made in the note to the last section, as to the embarrassment resulting from the court, at each session, appointing the time when the next session shall be held, is equally applicable to the place. The Commissioners do not propose to regulate this by positive provision, but to leave it to the court to make an annual appointment in this respect.

६ § 37. The court may, however, be held in any other building than a court-house, and at a different place in

the same city or town from that appointed; and may be adjourned from the city or town where it is appointed to be held, to any other city or town.

Taken from amended code, sec. 16, and from a special act to the same effect, Laws of 1849, p. 484, ch. 333, sec. 2, 3.

§ 38. The clerk must cause a copy of the order mentioned in section 36, to be published in the state paper at least once in each week, for three weeks before the holding of a term, in pursuance thereof. The expense of the publication is payable out of the treasury of the state.



SECTION 39. Rules of common law and statutes now in force, conferring or defining jurisdiction of this court, abrogated and repealed. 40. Jurisdiction of this court, original and appellate.

41. Its original jurisdiction.

42. Its appellate jurisdiction.

43. Jurisdiction transferred to it, under the constitution.

44. Jurisdiction transferred to it, of actions in the late mayor's court of

the city of Rochester.

45. Division of the state into eight judicial districts, and number of judges for each.

46. Court distributed into general and special terms, and circuits.

47. Business of the general terms.

48. Business of the special terms.

49. Business of the circuits.

50. General term, to be held by at least three judges, and special term or circuit, by one or more of them.

51. General and special terms and circuits, may be held by judges elected in any district.

52. Presiding judge at a general term.

53. If presiding judge do not attend, judge to preside, how designated. 54. Number of judges at general term, necessary to pronounce judgment. 55. Duration of general terms, and circuits.

56. Judge holding circuit, to hold a special term. Its duration or adjournment.

57. Court always open before each judge, for certain purposes.

58. Transaction of business by judges out of court. Duty of judges in first judicial district, in this respect.

59. Times and places of holding general and special terms and circuits, to continue as at present until December, 31, 1850.

60. Number of general and special terms and circuits in each year.

61. Times and places of holding them, and judges by whom held, how appointed.

62. Extraordinary general and special terms and circuits how appointed. 63. Place of holding general and special terms and circuits.

64. In case of inability of judge to hold them, designation of another judge for that purpose.

65. Publication of appointment of time and place of holding general and special terms and circuits.

§ 39. All rules of the common law and all statutes now in force, conferring or defining the jurisdiction of the supreme court, are abrogated and repealed, and it has no other jurisdiction than that prescribed in the

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