in ordering such affirmance, is conclusive, and cannot be gone behind or impeached on any private grounds: Mason v. Jones, 3 Comst. 375; 5 How. 118; 3 C. R. 164. Nor can any allegations of that nature be taken into consideration by the inferior tribunal, whose decision has been reviewed, when the question comes on afresh under the remittitur: Oakley v. Aspinwall, 10 L. (. 79.

See these subjects further considered in a subsequent portion of the work, under the head of appeals to the court in question.

CHAPTER IV.

OF THE SUPREME COURT.

THE next tribunal which presents itself for consideration is the supreme court-a court whose powers are more extensive and more widely diffused than those of any other within the state, and embrace every species of cause and every variety of jurisdiction; with authority also to remove cases pending in tribunals of inferior jurisdiction within its own cognizance, by certiorari. Its common law authority, analogous to that possessed by the Court of King's Bench in England, has been exercised from time immemorial, or rather, to speak more closely, from the original establishment of the English common law in this country. (See on this subject Kanouse v. Martin, 3 Sandf. S. C. R. 657, per Duer, J.) Its equitable Jurisdiction is of more recent origin, being first indicated by the Constitution of 1846, art. 6, sec. 3, and afterwards expressly conferred by the judiciary act, laws of 1847, c. 280; and in particular by section 16 of that measure. It is in effect coextensive with and in substitution for, that of the former courts of chancery thereby abolished: Mason v. Jones, 1 C. R. (N. S.) 335. Besides their authority in civil cases, the justices of this court exercise criminal jurisdiction in the courts of oyer and terminer, as defined by art. 5 of the measure last referred

to.

The mode of election-the classification and the delegation of

four of the judges of this court, to sit from time to time in the court of appeals-their distribution in districts throughout the state, and the provisions as to the presiding judge from time to time in each of those districts, remain as they were previously settled by the revised statutes and by the judiciary act. The Code effects no alteration whatever in these respects.

The distinction between the general and special terms of this and the other tribunals of higher jurisdiction, remains also untouched by the recent measures of amendment, though, in some few respects, the matters falling within the peculiar attributes of each of those branches of the court have been made the subject of mutation. The special term, or the circuit court, in which a single judge presides, remains, as before, that branch of the aggregate tribunal, to which belongs the consideration, in the first instance, of every question brought before it, with the few exceptions about to be noticed; the circuit court taking peculiar cognizance of those cases in which the trial takes place. by jury, and the special term of those which are triable by the court. The functions of the general term are, on the contrary, for the most part, strictly appellate; and embrace the revision of all decisions of the single judge on questions of law, to the exclusion, under ordinary circumstances, of questions of fact; and likewise the review of the judgments of subordinate courts. In certain cases, however, and in particular on appeals from orders involving the granting or refusing of a new trial, questions of fact are entertainable by this branch of the court. The general term possesses also a special jurisdiction in reference to the admission of attorneys and counsel, and to the control of the conduct of those officers when admitted; and any question submitted for the opinion of the court, under the peculiar provisions of sec. 372 of the Code, is also originally cognizable by it. The concurrence of a majority of the judges holding a general term is, by sec. 19 of the Code, made indispensable to the validity of its decisions, and in event of their non-concurrence, the case is on all occasions to be reheard. It will be seen that by sec. 24 of the Code, the fullest powers of adjournment are given with reference to the terms of the court, both general and special, including the circuit court and courts of oyer and terminer.

Besides the hearing of causes and appeals, and of those more important interlocutory proceedings in each, which involve

points vital to the decision of the controversy between the parties; occasions on which it becomes necessary to obtain the direction or authority of the court, on matters of minor importance, are, during the progress of a suit, of almost daily occurrence. To provide for these matters, and to prevent the general calendars of the court from being overburthened by their constant recurrence, a subordinate but most important jurisdiction is exercised by the individual judges of each of the higher tribunals at their chambers, or otherwise out of court. To enter into details on the different subjects embraced within these attributes, would at present be premature; the only remark necessary at this juncture is, that, to a certain extent, and for certain purposes, that branch of jurisdiction is, as before noticed, capable of delegation, and may be exercised, exofficio, by the different county judges throughout the state, each within the limits of his peculiar jurisdiction, but within those limits only. See Code sec. 401, 402, 403 and 405. The powers so exercised are substantially the same as those possessed under the old practice by the judges in question, and also by the officers styled "supreme court commissioners," and are conferred by the revised statutes, in connection with sec. 29 of the judiciary act.-See also Graham's practice, chap. ii, sec. 2. The jurisdiction of these officers being, however, limited, the presumption, as in all similar cases, will always be against rather than in favor of their power to exercise it, wherever that power is open to reasonable doubt on any point, either technical or affecting the merits.-See The People ex rel. Williams v. Hulburt, 5 How. 446; 1 C. R. (N. S.) 75; 9 L. O. 245. Although, however, nothing can be presumed in favor of the jurisdiction of such officers in these matters, nothing will, on the contrary, be presumed against it, in the absence of actual proof.—Barnes v. Harris, 4 Comst. 374.

It is clear from the terms of the Code that the county judge has no power to act at all without his county; and in Eddy v. Howlett, 2 C. R. 76, it was held that the expression "his county," means, as regards the granting of orders, not the county within which the judge himself resides, but the county within which the action is triable. A contrary view is, however, taken in the more recent case of Peebles v. Rogers, 5 How. 208, where an order, extending the time to answer, granted in the county of the defendant's residence by the county judge of that

county, the venue having been fixed in that of the plaintiff, was nevertheless sustained as valid under the general powers of the officer in question under the old practice, as saved by sec. 403.

The general powers of county judges, in this respect, enlarged in some degree by the Code, (particularly in reference to the granting of injunctions, and to the proceedings supplementary to execution) remain, where such has not been the case, substantially as they were before, under the then "existing practice," and are neither affected nor enlarged by that measure: Merritt v. Slocum, 1 C. R. 68; 3 How. 309. It was accordingly held in that case that the powers of a county judge did not extend to the hearing and deciding of motions, as such, in actions pending in the supreme court, but merely to the granting of orders obtainable as of course and without notice. A general stay of proceedings until after the hearing of a motion, granted by an officer of this description, without notice to the opposite party, was also set aside in Schenck v. McKie, 4 How. 246, as void for want of jurisdiction.

It will be observed on reference to sec. 401, that, in the first district, the powers of judges at chambers or out of court are greatly extended, and are in fact sufficiently large to include the granting of interlocutory orders of every description, whether upon or without notice, with the single exception of new trials upon the merits. The powers of the judges out of court do not, however, extend to the granting of judgment under any circumstances, except in the single instance of an application under sec. 247. In all other cases the motion must be made to the court sitting as such, and cannot be otherwise entertained: Aymar v. Chase 1. C. R. (N. S.) 330.

Although the exercise of the office of judge on the part of inferior officers, by delegation, is confined within strict local limits, the powers of the judges themselves are unrestricted: Constitution, art. 6, sec. 6. Any judge of the supreme court is, therefore, competent to act in the place of any other, in the event of his inability to perform the peculiar duties assigned to him (sec. 26) and every judge moreover possesses the inherent power to make orders of course in any suit whatever, pending in any part of the state, irrespective of the district, in which he for the time being exercises his functions; and orders so made by him are equally binding on all parties, as they would

have been if made by a judge of that particular district. By section 401 a restriction is, however, imposed upon these powers, as regards the making of orders upon notice, which can only be applied for in the district within which the action is triable, or, where the county fixed upon for the trial is a border county, then in some county in the next district, immediately adjoining thereto. This latter power does not, however, extend to the first district, within which all motions must be made in actions triable therein. Any proceeding commenced before one of the judges of that district may, under the especial provisions of section 27, be continued before another with the same effect. Although the general jurisdiction and offices of the judges of these courts remain unaltered by the Code, the previous arrangements as to the courts to be held by them are repealed, and fresh provisions substituted by title III. of part I. of that mea

sure.

By section 18 it is prescribed that at least four general terms, and more if necessary, shall be held annually in each judicial district, at such times and places as a majority of the judges of such district shall appoint; and by section 20 it is made imperative that at least two circuit courts and courts of oyer and terminer, and one special term, shall be held yearly in every county throughout the State, (Fulton and Hamilton being considered as only one county for such purpose,) with similar powers to the judges to appoint additional terms for such purposes. The times and places for holding such terms were originally fixed by the governor, and subsequently by the judges, and are for the future to be from time to time made the subject of special appointment by the latter; such appointment to be made by them at least one month before the expiration of every second year, and to be for the two years commencing on the first of January then next following. The appointment of those terms for the two years commencing on the first of January, 1852, will be found at the end of the volume.

Whenever the justices of any one particular district are under personal disqualification in respect of any cause pending therein, the court, under the powers of c. 15 of the laws of 1850, possesses the power of removing that cause into any other adjoining district.

In addition to the above regular terms and circuits, the governor of the state possesses also, under sec. 23, the power of