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In the Code of 1851, the counties of Albany and Monroe were likewise excluded from the operation of subdivision 12. The powers of transfer to the supreme court of causes in which the county judge is from any reason incapable of acting, are likewise new, having been inserted on the last amendment.
It will be seen from this summary, that, though limited in terms, the original jurisdiction of these tribunals is wide in its scope, and extends over a number of most important matters. The extent of that jurisdiction has, however, been somewhat doubted. In Griswold v. Sheldon, 4 Comst. 581, 1 C. R. (N. S.) 261, an opinion was expressed by Bronson, C. J., to the effect that the statutory provisions giving common law jurisdiction to these courts, are unconstitutional and void. The question was not, however, actually decided in that case, and was expressly stated as remaining open for consideration should it be ever brought before the court. In Beecher v. Allen, on the contrary, 5 Barb. S. C. R. 169, it was expressly decided, that the legislature had not exceeded its powers in conferring the jurisdiction in question, and that the provisions for that purpose were not unconstitutional.
The jurisdiction of these courts being of a limited nature, every fact necessary to confer it must be clearly shown in all cases. V. The People ex rel. Williams v. Hulburt, 5 How. 446 ; 1 C. R. (N. S.) 75. Nothing can be presumed in favor of such jurisdiction without actual proof, though, on the contrary, nothing will be presumed against unless actually shown it. Barnes. v. Harris, 4 Comst. 374.
It must be borne in mind, that with the exception of their appellate powers, and some few items of the peculiar statutory authority formerly vested in the courts of common pleas, and now attributed to these tribunals, the supreme court exercises an equal, or rather a paramount jurisdiction, over the same matters; and, in the event of any conflict with that jurisdiction, possesses the power in most instances of removing the controversy within its own cognizance, by means of certiorari, prohibition, or special order of removal, as prescribed in subdivision 1 of the section last cited.
It may be a convenience to the reader simply to refer to the provisions of the Revised Statutes, in reference to which the special powers of these courts, as above enumerated, are severally exercisable, though of course without entering into any discussion on those subjects.
The statutory provisions respecting foreclosure, will be found at 2 R. S. p. 191 to 194, in connection with the jurisdiction of the court of chancery as then exercisable.
The statute law on the subject of partition, is contained in title III. chap. V. of part III. of those statutes, 2 R. S. 316 to 333.
That as to the admeasurement of dower will be found in title VII. of chap. VIII. of the same part, 2 R. S. 488 to 493.
That as to the sale or other disposition of the real estate of infants, and the specific performance of contracts by infant heirs, at 2 R. S. 194 to 197.
That as to the care of the person and the disposition of the estate of persons of unsound mind, at 2 R. S. 52 to 56.
The general act for the incorporation of religious societies, is that of 5th April, 1813. Laws of 1813, c. 60. Various amendments of that act have since taken place, and various local acts passed by the legislature, which will be found in vol. 3 of the last edition of the Revised Statutes, and in the laws of the different years since that edition was published.
The provisions of the Revised Statutes as to the powers of the courts of common pleas over justices' judgments will be found at 2 R. S. 245 to 249.
The statute law as to ferries at 1 R. S. 526 to 528.
(N. B. In Re Paterson, 4 How. 34, it was held that a habitual drunkard may, if thought proper, be authorized by order to make a will, without notice to his comınittee or next of kin.)
That as to imprisoned, insolvent, absent, concealed, or nonresident debtors, at 2 R. S. 1 to 52, i. e. in chap. V. of part II. title I. passim. See also Act of April 26, 1831.
As to the liberties of jails, 2 R. S. 432 to 437.
As to removal of occupants from state lands, 1 R. S. 205 to 208.
As to the laying out of railroads through Indian lands, Laws of 1836, c. 316.
As to appeals from the determination of commissioners of highways, 1 R. S. 518 to 521.
The general jurisdiction of the late courts of common pleas will be found laid down in title V. chap. I. part III. of the Revised Statutes, 2 R. S. 208 to 218, and in various local statutes, some of which will be found collected in vol. 2 of the third edition of those Statutes, page 273 to 293, and the remainder in the laws of the different years subsequent to the publication of that edition.
The provisions as to the collection and remission of fines and forfeited recognizances, are contained in art. II. title VI. chap. VIII. part III. of the Revised Statutes, 2 R. S. 483 to 488.
On reference to the Codes of 1848 and 1849, it will be seen that the jurisdiction of these courts is most materially extended by the recent amendments. In the first place, they now possess original cognizance of actions in general, instituted for the recovery of either money or property, to the value of $500, (but subject to the controling powers of the supreme court,) which, under the former measures, did not come within the scope of their jurisdiction. The local exceptions in this respect with reference to the counties of Kings and Erie, will, however, be noticed ; Albany and Monroe were likewise excluded under the Code of 1851. In the second place the statutory authorities, formerly vested in the courts of common pleas, are more extensively attributed to them; and, in the third, by subdivision 13 as it now stands, the full powers of the higher courts of record, with reference to the review of their own decisions on case or exceptions, are, for the first time, distinctly given to them. They thus possess within themselves all the usual powers of courts of record, in reference to the decision of the questions submitted to them; though, of course, only within the limits of their peculiar jurisdiction, and subject, in all cases where a ministerial statute authority is not exercised, to the control of the appellate tribunal. Their proceedings are governed by the new rules of the supreme court, so far as they are applicable.Sec. 470. In the Codes of 1848 and 1849, the sittings of this class of tribunals were called and treated as general terms, although held by only one judge. In the present measure, however, this nomenclature is abandoned, and it will be seen by consulting section 31, that these courts are always open for the transaction of business in matters which are not litigated, and that at least two terms, and as many more as the judge may appoint, are to be held yearly in cach county, for the trial of issues of law and fact in the ordinary course, at periods to be fixed by such judge, and to be advertised for at least four weeks in the state and county papers ; with power for the designation of terms to be held for the trial of issues of law only, or of those proceedings at which no jury shall be required to attend.
The provisions of sect. 24, as last amended, confer the fullest powers of adjournment with reference to the different terms to be held as above stated.
The appellate jurisdiction of these tribunals has been before defined. Their decisions are reviewable by the general term of the supreme court under chap. III. of title XI. of the second part of the Code.
By the amendments of 1851 and 1852, these tribunals are substituted for the supreme court, as the proper forum for the decision of questions of title in suit originally commenced in the justices' courts, but discontinued under the provisions of secs. 55 to 62, inclusive. Sec. 68, as printed in the laws of 1851, has been omitted to be corrected in this respect, but, that this is a mere clerical error, is self-evident.
If a county court entertain a suit for an amount exceeding the limits of its jurisdiction as above defined, the proceedings will of course be void.-Griswold v. Sheldon, 4. Comst. 581; 1 C. R. (N. S). 261.
In proceedings supplementary to an execution issued by the county court, a judge of the supreme court has no power to make an order, and if made, such order will be vacated. The power in this respect is limited, by sec. 292, to a judge of the court or a county judge, and therefore the county judge alone has jurisdiction.--Blake v. Locy, 6 How. 108.
OF THE SUPERIOR COURT AND COURT OF COMMON PLEAS OF THE
CITY OF NEW YORK.
Though, relatively speaking, of far higher authority than the courts treated of in the last division, these tribunals possess, in some features, an analogous jurisdiction. The superiority alluded to, consists in the fact of their decisions being reviewable at once by the court of appeals, without any intermediate revision. Their jurisdiction is also, within its peculiar scope, unlimited in its nature, and unfettered by any restriction as to the form or amount of the controversies brought before it. These two tribunals are, in fact, of coördinate and equal authority with the supreme court, in all matters duly brought under their cognizance ; and, although the decisions of the latter are, of course, always considered by them as entitled to the highest respect; still, wherever any disagreement of opinion has occurred, they have never hesitated to disregard the authority of those decisions, and to make rulings to the contrary effect.
The cases of Ford v. Babcock, 2 Sandf. S.C.R. 519, and The Washington Bank of Westerly v. Palmer, Id. 686, may be mentioned as two out of the many instances of the exercise of this discretion, appearing upon the recent reports. In the case of Cashmere v. De Wolf, 2 Sandf. S. C. R. 379, the powers of this court to assume jurisdiction of a matter, which, under ordinary circumstances, would have been one of admiralty cognizance, were also distinctly asserted: and, although in Sturgis v. Law, 3 Sandf. S. C. R. 451, the court there refused to assume jurisdiction of a case arising out of salvage, still that decision proceeded on a general view of common law jurisdiction, and not on any point in connection with the special powers of these courts.
It would seem that doubts have been started as to the equity jurisdiction of the superior court, but, when examined into, those doubts appear to rest upon little or no foundation. The preamble of the Code, and sec. 69, when read in connection with the unlimited cognizance of actions within their local limits,