making additional appointments for such purpose,-the same to be published in the state paper as prescribed by sec. 25. By c. 1. of laws of 1850, and sec. 459 of the Code, as last amended, his powers in this respect are greatly enlarged, and he is enabled to provide for the case of a term being in danger of failing, and also for that of any one branch of the court being overburdened with business; those powers in the last instance extending to the assignment of other judges for the purpose of disposing of the arrears. As before stated, the appeal from the decisions of the general term of this court, lies to the court of appeals in all cases, with the single exception of causes originally commenced in a justices' or other court of lowest jurisdiction, in which, (assuming that the apparent misprint in section 11, after noticed, has not changed the law upon the subject,) this court is the ultimate tribunal. The decisions of the surrogates' courts, and also of all those subsequently enumerated in this portion of the work, with the exception of those of the superior court and court of common pleas of the city of New-York, are likewise reviewable by it in its appellate capacity; the appeal lying in the first instance from the decisions of the surrogate, and also from those of the county and municipal courts; and in the second, after a previous review by the former of the two last tribunals, from the justices' and other courts of lowest jurisdiction. The practice of this court, and of the New York and county courts, is regulated by general rules made by the judges of the court, under the provisions of sec. 470 of the code, and which are henceforth to be revised every two years, under the last amendment of that ann Page 24, at end of page. The revision for 1852 having recently taken place, the effect of the alterations made on that occasion, is now incorporated into the text of this volume, by means of additions similar to the present. The changes effected are few in number, and leave the practice substantially as it was, with some slight modifications, noticed under their proper heads. One effect of these changes is to reduce the aggregate number of Rules from 92 to 90, and to change the enumeration of the different provisions from No. 16, upward. Rules 17, 18, 24, 57, and 88, of 1849, are either wholly omitted, or incorporated in other provisions; Nos. 87, 88, and 89, as they now stand, are, on the contrary, new insertions. The arrangement of subjects remains, however, the same, and the altered enumeration will doubtless soon become familiar. CHAPTER V. OF THE COUNTY COURTS. ALTHOUGH, in strictness, these courts are of inferior authority and jurisdiction to those mentioned in the next division, yet, inasmuch as their operation is of wider scope, extending throughout the whole of the state, and as the definition of their jurisdiction is, to a certain extent, a definition of that of the New-York tribunals also, which last exercise that jurisdiction in its full extent within their peculiar limits, it has been thought better to follow the order of arrangement adopted in the Code itself, and to consider the peculiarities and powers of these courts in the first instance, before treating of those of the metropolitan district. The jurisdiction of these Courts is of a special and statutory nature, and is thus expressly defined by sec. 30 of the Code as last amended. § 30. The county court has jurisdiction in the following special cases, but has no original civil jurisdiction except in such cases: 1. Civil actions in which the relief demanded is the recovery of a sum of money not exceeding five hundred dollars, or the recovery of the possession of personal property not exceeding in value five hundred dollars, and in which all the defendants are residents of the county in which the action is brought at the time of its commencement subject to the right of the supreme court upon special motion for good cause shown to remove any such action to the supreme court before trial. 2. The exclusive power to review, in the first instance, a judgment rendered in a civil action by a justice's court in the county, or by a justices' court in cities, and to affirm, reverse or modify such judg ment. 3. The foreclosure or satisfaction of a mortgage, and the sale of mortgaged premises situated within the county, and the collection of any deficiency on the mortgage remaining unpaid, after the sale of the mortgaged premises. 4. The partition of real property situated within the county. 5. The admeasurement of dower in land situated within the county. 6. The sale, mortgage or other disposition of the real property situated within the county, of an infant or person of unsound mind. 7. To compel the specific performance, by an infant heir, or other person, of a contract made by a party who shall have died before the performance thereof. 8. The care and custody of the person and estate of a lunatic or person of unsound mind, or an habitual drunkard, residing within the county. 9. The mortgage or sale of the real property situated within the county, of a religious corporation, and the disposition of the proceeds thereof. 10. To exercise the power and authority heretofore vested in such courts of common pleas, over judgments rendered by justices of the peace, transcripts of which have been filed in the offices of the county clerks in such counties. 11. To exercise all the powers and jurisdiction conferred by statute upon the late courts of common pleas of the county, or the judges or any judge thereof, respecting ferries, fisheries, turnpike roads, wrecks, physicians, habitual drunkards, imprisoned, insolvent, absent, concealed or non-resident debtors, gaol liberties, the removal of occupants from state lands, the laying out of railroads through Indian lands, and upon appeal from the determination of commissioners of highways, and all other powers and jurisdiction conferred by statute, which has not been repealed, on the late court of common pleas of the county, or on the county court, since the late courts of common pleas were abolished, except in the trial and determination of civil actions; and to prescribe the manner of exercising such jurisdiction, when the provisions of any statute are inconsistent with the organization of the county court. 12. To remit fines and forfeited recognizances, in the same cases and like manner as such power was given by law to courts of common pleas. But the first subdivision of this section shall not apply to the county court of the counties of Kings and Erie. 13. To grant new trials, or affirm, modify, or reverse judgments in actions tried in such court, upon exceptions or case made, subject to an appeal to the supreme court. But any action or proceeding pending in the county court, in which the county judge is for any cause incapable of acting, may be transferred by the county court to the supreme court, and thereupon the papers therein on file in the county court shall be transmitted to the supreme court in the same district, which shall thenceforth have jurisdiction of such action or proceeding. 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 seve rally 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. That as to fisheries, at 1 R. S. 687 to 690. As to turnpike roads, 1 R. S. 695 to 697. As to physicians, 1 R. S. 452 to 456. As to habitual drunkards, 2 R. S. 52 to 56. (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 committee 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. |