TITLE 3. Process, how $9. All process returnable in the said court shall be made returnable as follows: "Before our justices of our supreme court of judicareturnable. ture, at the Capitol in the city of Albany," or "at the City-Hall in the city of New-York," or "at the Academy in the town of Utica," as the case may be.61 How tested. Before whom proceedings, &c. to be stated. Common return days. Powers and duties of clerks. Deputies of clerks. $10. All process issuing out of the supreme court, shall be tested in the name of the chief justice, or if there be no chief justice, in the name of any justice of the court.61 $11. Proceedings in the said court, and all pleadings and records therein, shall be stated to be "before the justices of the supreme court of judicature, of the people of the state of New-York." 2961 S 12. The court shall, from time to time, by general rules, designate such days in each term, for common return days, and for the transaction of such special business, as shall be assigned for such days. 62 $ 13. At each term of the court, it shall be the duty of the clerk residing in the place in which the same is held, to attend and officiate as clerk. Each clerk of the court shall have the like powers, and be subject to the like duties.62 S 14. Each of the clerks of the supreme court shall appoint some proper person to be his deputy, by writing under his hand and seal, Their oath. to be filed in his office. Every person so appointed deputy, shall take and subscribe the constitutional oath of office. Their powers in absence, $15. Whenever a clerk of the supreme court shall be absent from &c. of clerks. the county where his office is situated, or shall be incapable of performing the duties of his office, and whenever his office shall be vacant, his deputy so appointed, may perform all the duties appertaining to such office, during such absence, inability or vacancy. S 16. The justices of the supreme court, may, from time to time, direct the removal of such records and papers, as they shall think proper, from the clerks' offices in the city of New-York and the town of Utica, to the clerk's office in the city of Albany; and may also from time to time direct the removal of any papers in a cause, from one clerk's office to another.63 $ 17. The court may also from time to time, by an order to be entered in the minutes thereof, direct either of the clerks of the court, to destroy any pleadings, nisi prius records or venires, now filed, or that may hereafter be filed in either of the clerk's offices, which the court shall deem to have become useless; but this provision shall not authorise the destruction of any judgment rolls, records or process, not herein before enumerated.63 S 18. The supreme court reporter shall at his own expense, deliver one copy, bound in leather, of each successive volume of the reports (61) Laws of 1823, p. 208, § 2. (62) 1 R. L. p. 318, § 2 & 6. (63) Ib. p. 320, § 7. published by him, to the several clerks of the supreme court, and to TITLE 3. the register and assistant register of the court of chancery, for the use of those courts; and also to the secretary of state so many copies as shall be sufficient to supply the several courts of common pleas in this state, with one copy each.64 $ 19. The supreme court shall have power, from time to time, by Practice. general rules, to establish, modify, alter and amend the practice in the said court, in the cases not provided for by any statute. court com $20. In cases not otherwise provided for, the supreme court shall Supreme have power, from time to time, by general rules, to prescribe the ca-missioners. ses in which supreme court commissioners may grant orders to stay proceedings in causes and matters pending in the said court, and upon process issued therefrom; the effect of such orders; and the terms and conditions on which they shall be granted. production of $21. The supreme court shall have power in such cases as shall To compel be deemed proper, to compel any party to a suit pending therein, to papers, &c. produce and discover books, papers and documents in his possession or power, relating to the merits of any such suit, or of any defence therein. the cases, &c $22. The court shall, by general rules, prescribe the cases in To prescribe which such discovery may be compelled, and the proceedings for that purpose, where the same are not herein provided; and therein the court shall be governed by the principles and practice of the court of chancery in compelling discovery, except that the costs of such proceedings shall always be awarded in the discretion of the court. Order. $ 23. To entitle a party to any such discovery, he shall present a Proceedings. petition, verified by oath, to the court, or to any justice thereof, or to any circuit judge in vacation, upon which an order may be granted by the court or such officer, for the discovery sought, or that the party against whom the same is sought should shew cause why the prayer of such petition should not be granted. S24. Every such order may be vacated by the officer granting the Order, when same, or by the court, 1. Upon satisfactory evidence that it ought not to have been granted: 2. Upon the discovery sought, being made: 3. Upon the party required to make the discovery, denying on oath, the possession or control of the books, papers or documents, ordered to be produced. and by whom vacated. orders. $25. The court shall provide by general rules, for the staying of Enforcing the proceedings of any party, against whom such discovery shall have been ordered, either by the court or by an officer, until the same shall have been complied with or vacated. (64) 1 R. L. p. 320, § 10. TITLE 4. $26. In case of the party refusing or neglecting to obey such order for a discovery, within such time as the court shall deem reasonaation of pow-ble, the court may non-suit him, or may strike out any plea or notice Ib and limit er. Effect of pa pers, &c. produced. Rules to be revised. he may have given, or may debar him from any particular defence in relation to which such discovery was sought; and the power of the court to compel such discovery, shall be confined to the remedies herein provided, and shall not extend to authorise any other proceedings against the person or property of the party so refusing or neglecting. $27. The books, papers and documents produced under any order made in pursuance of the preceding sections, shall have the same effect, when used by the party requiring them, as if produced upon notice, according to the practice of the court. $28. The justices of the supreme court, within two years after this Chapter shall commence and take effect, and at the expiration of every seven years thereafter, shall revise the rules of the said court, with a view to the attainment, so far as may be practicable, of the following improvements in the practice: 1. The abolishing of fictitious and unnecessary process and proceedings: 2. The simplifying and abbreviating of pleadings and proceedings: 3. The expediting the decision of causes: 4. The diminishing of costs: and, 5. The remedying of such abuses and imperfections, as may be found to exist in the practice, in any class of actions cognizable in the said court. TITLE IV. OF THE CIRCUIT COURTS, SITTINGS, AND COURTS OF OYER AND SEC. 1. Division of state into eight circuits. 2. Circuits subject to alteration by legislature. 3. Powers of circuit judges. 4. Four circuits each year to be held in New-York, and two in all other counties. 5. Times and places of holding them, when and how often appointed. 6. Places at which courts shall be appointed to be held. 7. Lists of appointments to be transmitted to county clerks. 8. And to state printer; how to be published. 9. Mode of publication; expense how defrayed. 10. Courts to be held during pleasure of the judge. 11. Circuits in New-York may be adjourned. 12. Duty of circuit judges to attend circuits, &c. 13. Powers and duties of circuit courts. 14. Each justice of supreme court, and each circuit judge, may hold circuits and preside in courts of oyer and terminer. 15. Notice of vacancy in office of circuit judge, to be given. 16. Circuit judge to give notice of his inability to hold courts. 17 & 18. Who to hold circuits, &c. in such cases; expense, how paid. 19. Circuits & oyer and terminer, how adjourned, if judge does not appear on first day. 20. If judge attends on second day, courts to be opened. SEC. 21. If judge does not attend on second day, courts to be adjourned, &c. 26. Sittings for New-York, how appointed and held. 27. A term to intervene before sitting of such court; notice, &c. 28. When and by whom courts of oyer and terminer to be held. 29. Powers of courts of oyer and terminer. 30. To try indictments found at general sessions. 31. May send certain indictments to sessions, to be tried. 32. Commissions of oyer and terminer, by governor and senate. 33. Time, &c. of holding court to be specified; commissions to be recorded. 34. Copy of commission to be sent to district attorney. 35. Special courts of oyer and terminer may be appointed by circuit judge. 37. Precept, when to be issued by district attorney. 38. Contents of precept. 39. Sheriff to publish proclamation; expense thereof. 40. Seals of courts of oyer and terminer. 41 & 42. Process of courts, how to be tested. 43. Writs may be directed into any county. 44. Clerks of counties to be clerks of circuits, &c. except in New-York. 45. Clerk of supreme court in New-York, to be clerk of circuits, &c. there. TITLE 4. scribed. $1. This state shall continue to be divided into eight circuits, cor- Circuits de responding with the eight senate districts, in extent of territory-and in the numbers by which the said circuits shall respectively be known and designated.65 tored. $ 2. The said circuits are subject to alteration by the legislature, May be alfrom time to time, as the public good may require." 66 eircuit judges $ 3. Each of the circuit judges possesses the powers of a justice of Powers of the supreme court at chambers; and in the trial of issues joined in the supreme court, and in courts of oyer and terminer and jail delivery, 66 to be held. $ 4. There shall be held in each year, at least two circuit courts Circuit courts and courts of oyer and terminer and jail delivery, in each of the counties of this state, separately organized, and in the city and county of New-York, there shall be held at least four such courts in each year.67 $5. Each circuit judge, shall, within one month prior to the first Times and places of day of January, in the year one thousand eight hundred and thirty- holding. one, fix and appoint the times and places of holding the several circuit courts and courts of oyer and terminer, within his circuit, for the pe riod of two years; which courts, when so fixed, shall remain unaltered for two years; and he shall, in like manner, within one month before the expiration of the said two years, appoint the said courts for the ensuing two years; and so on, for every two succeeding years thereafter. 68 court-houses, &c. $6. The places so to be appointed for the holding of the said Places to be courts, when not specially designated by law, shall always be the court-houses, or such other places as now are, or hereafter shall be (65) Laws of 1823, p. 209, § 4. (66) Cons. Art. 5, § 5. (67) Laws of 1823, p. 208, § 5. (68) Ib. 1824, p. 376, § 4. [PART III. TITLE 4 provided by law for holding the county courts of the respective counties; except that in the cities of New-York and Albany, the circuit judges of the respective circuits, may appoint any other place within the said cities; and in the county of Oneida, one of the circuit courts shall be held annually at the academy in Utica, and the other alternately at the court-houses in Rome and Whitestown. In case there be no such court-house, or other place provided for by law, within any county, the circuit judge of the circuit, shall appoint some suitable place for that purpose." Lists to be sent to coun ty clerks. And to state printer. lished. 69 $7. Every circuit judge shall transmit to the clerk of each county, within his circuit, a copy of every appointment of circuits made by him, immediately upon making the same; which shall be filed and preserved by such clerk.69 $8. Every circuit judge shall transmit to the state printer, a copy of every appointment of circuits made by him. The first appointment To be pub made pursuant to the foregoing provisions, shall be published in the state paper, at least once in each week, for three weeks before the holding of any circuit in pursuance thereof. Every subsequent appointment of circuits, shall be published in the state paper at least once in each week, for four weeks, and the last publication shall be one month before the holding of any circuit in pursuance thereof.69 Mode of publication. Expense. Duration of In New-York may be adjourned. Judges to attend circuits, oyer and ter $9. The state printer shall arrange such appointments under one head, and publish in the state paper an abstract thereof, designating the name of each county, and the times appointed for holding the courts therein. The expense of such publication shall be paid out of the treasury of this state.6 69 $10. The circuit courts shall be held for so many days, as the judge holding the same may deem necessary.70 $ 11. Any circuit court held in and for the city and county of NewYork, may be continued by adjournment, to such time as the court shall, by a rule to be entered in its minutes, direct; and such adjourned circuit may be held and continued by further adjournment, as often as the circuit judge of the first circuit shall think fit; and causes may be noticed for trial, and tried thereat, in like manner as at a stated circuit.70 S 12. It shall be the duty of the several circuit judges, to attend and courts of at the several times and places, at which circuit courts and courts of oyer and terminer shall have been appointed to be held in their respective circuits, to hold the said circuit courts, and to preside in the said courts of oyer and terminer. miner. Powers and duties of circuit courts. $13. The several circuit courts shall have power, and it shall be their duty, (69) Laws of 1823, p. 210, § 6. (70) Ib. p. 209, § 5. |