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The People agt. Wilcox.

such terms as may be just. The existence of the provision satisfies me that it was not the intention that the defendant might be sued upon this judgment in another court, or that it was intended to have any other operation or effect than to reach the property of the non-resident situated in this state. The judgment should be affirmed.

SUPREME COURT.

THE PEOPLE agt. HARVEY WILCOX.

An order of a county judge appointing the terms of the county court as follows: "Terms of Cortland county court: I hereby appoint the terms of the county court to be held at the court house, in Cortlandville, on the fourth Monday of February, the fourth Monday of May, the second Monday of October, and the first Monday of December. The February and December terms are hereby designated as terms at which no jury will be required to attend. Dated January 9, 1860." Held, that no term of the court of sessions was appointed by this order, consequently an indictment purporting to have been found at a term of the court of sessions during the year was quashed as unauthorized.

Broome General Term, January, 1862..

Present, BALCOM, P. Justice; PARKER and CAMPBELL, Justices.

GEORGE B. JONES, (district attorney) for the people.
A. P. SMITH, counsel for defendant.

By the court, PARKER, Justice. The indictment in this case purports to have been found at a court of sessions holden at the court house in the town of Cortlandville, in and for the county of Cortland, on the second Monday of October, in the year 1861.

The plea alleges that the indictment was not found by any grand jury duly empannelled, charged and sworn, &c., because no term of the county court of said county, for the trial of issues of fact by a jury, was held on the second Monday of October, 1861; and no court of sessions was

People agt. Wilcox.

appointed by any order of the county judge of said county, to be held in and for said county on the second Monday of October, 1861, otherwise than by an order of which the following is a copy:

"Terms of Cortland County Court.

I hereby appoint the terms of the Cortland county court, to be held at the court house in Cortlandville on the fourth monday of February, the fourth monday of May, the second monday of October and the first monday of December. The February and December terms are hereby designated as terms at which no jury will be required to attend. Dated January 9, 1860. HIRAM CRANDALL, County Judge."

There is a further plea alleging that the indictment was never presented to any court of competent criminal jurisdiction, because of the same facts above stated.

To these pleas the district attorney, on behalf of the people, demurred, and the defendants joined in demurrer, upon which the court below gave judgment for the people; a bill of exceptions was taken and signed, and the case brought here by certiorari.

The constitution provides (art. 6, § 14,) that "the county judge with two justices of the peace, to be designated according to law, may hold courts of sessions with such criminal jurisdiction as the legislature shall prescribe, and perform such other duties as may be required by law.”

It is manifest that until the court of sessions thus provided for, is set in motion by an act of the legislature, no court of sessions can be held.

It is not contemplated by the constitution that it should be always open, and consequently times of holding it must be appointed, at which times, and no other, it must be held. The legislature provided in the "act in relation to the judiciary," (Sess. Laws 1847, p. 331, § 42,) that courts of sessions shall be held at the time and place at which county courts for the trial of issues of fact by a jury of the same county shall be held.

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People agt. Wilcox.

The plea distinctly negatives the holding of a county court on the day when this indictment was found, which is admitted by the demurrer; consequently, under the provision of the act of 1847, even if that act is still in force, no court of sessions was then held.

Another act was passed July 9, 1851, (Sess. Laws 1851, p. 825,) providing that courts of sessions shall be held in the respective counties at such times as the county judge of the county shall by order designate.

The order set forth in the pleas as the only one, in pursuance of which the court was held, makes no mention of the court of sessions, and does not refer to it expressly or by implication; so that no court of sessions was held at the time in question, under the act of 1851.

The pleas negative all the facts which would give authority to hold a court of sessions at the time when the indictment was found and presented, and the allegations of the pleas stand admitted by the demurrer.

It necessarily follows that there was no legally constituted grand jury to indict the defendant, and no court competent to receive the indictment and take cognizance of the offence charged.

The case is stronger against the people than that of the People agt. Moneghan, (1 Park. Crim. Rep., 570,) inasmuch as the order in that case might have included the court of sessions by implication, perhaps—a grand jury having been required in the order to attend "the terms of the said court, (county court) to be held on the third mondays of March and November in each year," and yet this court at general term, in the seventh district, held that it was not an order for a court of sessions, and therefore that there was no valid indictment on which the defendant could be tried.

In the case at bar, I am of the opinion that the judgment of the court below be reversed, and all proceedings therein quashed. Decision accordingly.

Emmet agt. Bowers.

NEW YORK SUPERIOR COURT.

THOMAS A. EMMET, committee, &c. of JOHN MARKS agt. CONRAD BOWERS, surviving executor, &c. Two suits.

Where pending the action, the cause of action has been transferred by the plaintiff, the action should still be continued in the name of the original plaintiff, under § 121 of the Code, unless the transferce applies to be substituted as plaintiff.

Special Term, June, 1862.

MOTION to substitute Catharine Emerson plaintiff in these suits.

MR. WHEELER, for plaintiff.
MR. BURLOCK, for defendant.
MR. GOODALE, for C. Emerson.

BOSWORTH, Ch. Justice. It appears by affidavit that issue was joined in this action, April 1, 1847. It was referred to three referees the 27th of May, 1848; it was submitted to the referees on the 5th of December, 1850. John Marks was restored to the control of his property, June 1, 1851. He assigned all his property to Catharine Emerson, August 15th, 1853. He died on the 25th of January, 1854. This motion was noticed to be made on the

24th of May, 1862.

Two of the referees are dead, and the cause is undecided. It is a matter of course to vacate the order of reference. The actions, as I infer from the affidavit, are actions at law, and the nominal plaintiff being alive, and not subject to any disability, the suits can proceed in his name. (Code, § 121.)

If the transferee does not apply to be substituted as plaintiff, the language of the Code is, that "the action shall continue in the name of the original party.”

The defendant can notice the suits for trial, and have the complaint dismissed, if the plaintiff does not bring

Emmet agt. Bowers.

them to trial. (Code, §§ 459, 256, 258.) I see no occasion for substituting C. Emerson as plaintiff, and I think this can only be done on her motion. (Code, § 121; 5 Duer's R., 604; 1 Bosw. R., 571, 600, 601.) If she is to be made plaintiff, the pleadings would need to be re-constructed.

Shearman agt. Coman (22 How. Pr. R., 517,) does not purport to state the opinion of the judge, and if it states accurately that the judge ordered "that the complaint be dismissed and judgment be given for the defendant, with costs of the action, unless the assignee be substituted" as plaintiff of record within twenty days, &c., then there must have been something peculiar in the condition of the case, which the report does not disclose.*

Why the present plaintiff should be subjected to the costs of the action, merely because Mrs. Emerson may not desire to be substituted as plaintiff, when he may be willing

NOTE.-It seems, recently, to be necessary, where a case is reported with only a short and informal opinion of a judge, or where no opinion at all has been givenmerely a decision—to explain it, in order to give it proper credence. The case here referred to was drawn up and given to the reporter by Charles Tracy, Esq., of New York, one of the counsel engaged in it; and from the known integrity and fairness of the counsel, the reporter had no doubt, and has none now, but what the case as submitted and reported, contains all there was of it. Judge ALLEN did not write any opinion; but it is presumed that, before making his decision, he examined some, if not all the authorities there cited by the defendant's counsel. One of the authorities cited is section 111 of the Code, the first sentence of which reads as follows: "Every action must be prosecuted in the NAME of the real party in interest." But like other inconsistencies in the Code, this sentence may be inconsistent with a sentence in section 121 of the Code, which says: "In case of any other transfer of interest, the action SHALL be continued in the NAME of the original party; or, the court may allow the person to whom the transfer is made, to be substituted in the action." This section relates to abatement of actions exclusively, and the two sentences quoted would seem to be inconsistent with each other, although in the alternative. It appears, then, that the result comes to this: Section 121 gives the court a discretion to substitute the assignee as a party, thereby nullifying the previous absolute sentence continuing the action in the name of the original party. And section 111, which relates generally to the prosecution of all actions, is absolute and imperative in its language, requiring every action to be prosecuted in the name of the real party in interest. After a party assigns absolutely his cause of action, he is not the real or any other party in interest; therefore, the section makes it imperative that the assignee be substituted; and this of course takes away the discretion in section 121.-REP.

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