TITLE 4. Circuits described. May be altered. Powers of circuit judges. Circuit held. SEC. 31. May send certain indictments to sessions. 32. Commissions of oyer and terminer. 33. Time of holding court to be specified. 34. Copy of commission to be sent to district attorney. 35. Special courts of oyer and terminer may be appointed. 37. Precept, when to be issued. 38. Contents of precept. 39. Sheriff to publish proclamation. 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. 45. Clerk of supreme court in New-York, to be clerk of circuits. 1. This state shall continue to be divided into eight circuits, corresponding with the eight senate districts, in extent of territory and in the numbers by which the said circuits shall respectively be known and designated. $2. The said circuits are subject to alteration by the legislature, from time to time, as the public good may require. $3. Each of the circuit judges possesses the powers of a justice 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. $ 4. There shall be held in each year, at least two circuit courts to be 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. Times and places of holding. Places to be court [202] See Code, § 20. $5. Each circuit judge, shall, within one month prior to the first day of January, in the year one thousand eight hundred and thirty-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 period 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. $6. The places so to be appointed for the holding of the houses, &c. said courts, when not specially designated by law, shall always be the court-houses, or such other places as now are, or hereafter shall be 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. TITLE 4 sent to $7. Every circuit judge shall transmit to the clerk of each Lists to be county, within his circuit, a copy of every appointment of county circuits made by him, immediately upon making the same; which shall be filed and preserved by such clerk. clerks. printer 58. Every circuit judge shall transmit to the state printer, And to state a copy of every appointment of circuits made by him. The To be pubfirst appointment made pursuant to the foregoing provisions, lished. 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. publica $9. The state printer shall arrange such appointments Mode of under one head, and publish in the state paper an abstract tion. thereof, designating the name of each county, and the times appointed for holding the courts therein. The expense of Expense. such publication shall be paid out of the treasury of this state. $10. The circuit courts shall be held for so many days, as Duration of the judge holding the same may deem necessary. Laws of 1823, 209, § 5. courts. York may ed. S11. Any circuit court held in and for the city and county In New of New York, may be continued by adjournment, to such be adjourntime 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. $ 12. It shall be the duty of the several circuit judges, to Judges to attend at the several times and places, at which circuit courts cuits, and and courts of oyer and terminer shall have been appointed to courts of be held in their respective circuits, to hold the said circuit terminer. courts, and to preside in the said courts of oyer and terminer. $13. The several circuit courts shall have power, and it shall be their duty, 1. To try all such issues, and to take all such inquests, by default or otherwise, as are to be tried or taken in the said circuit courts respectively: 2. To record all non-suits and defaults before them: and, 3. To return all proceedings had before them, into the supreme court, or into the court directing the same. 1 R. L., 336, § 4. $14. Each justice of the supreme court, and each of the circuit judges, shall have power to hold any circuit court, and to preside in any court of oyer and terminer, in this state, attend cir oyer and Powers and duties of circuit courts. [203] Who may cuits, &c. hold cir TITLE 4. Notice of either for the whole time for which such court shall continue, or for any part of that time. Laws of 1823, 209, § 5 & 8. S 15. In case the office of either of the circuit judges shall vacancy, &c. become vacant, after the appointment of the said courts for his circuit, the clerk of each county for which circuits shall have been appointed, shall immediately give notice of such vacancy to the chief justice of the supreme court. Of inability to hold courts. Who to hold cir in such cases. $ 16. In case any circuit judge, from sickness or from any other cause, shall be incapable of holding any of the said courts, as above directed, it shall be his duty immediately to give notice thereof to the chief justice of the supreme court. $ 17. Upon receiving either of such notices, the chief justice cuits, &c., and the other justices of the supreme court, shall designate some circuit judge to hold the courts so appointed, or some of them. And if no circuit judge can hold such courts, without interfering with the courts previously appointed by him, it shall be the duty of one of the justices of the supreme court to hold the same. Expense, how paid. Adjournment of courts. May be opened on 2d day. Or to be $ 18. The expenses of any justice of the supreme court or circuit judge, in attending, holding and returning from any such courts, shall be paid from the treasury, on being audited and certified by the comptroller. $ 19. If some one of the circuit judges, or of the justices of the supreme court, shall not come to any place, where the said courts are appointed to be held, before four o'clock in the afternoon of the day so appointed, the sheriff or clerk of the county, shall open the said courts, and forthwith adjourn the same until nine o'clock in the forenoon of the next day. Laws of 1823, 210, § 8. $20. If one of the circuit judges or of the justices of the supreme court, shall attend at such place, at any time before eight o'clock in the afternoon of such second day, the said courts shall be opened and shall proceed in the business before them. S21. If no such judge or justice shall attend at the said adjourned. last mentioned hour, the sheriff or clerk, shall adjourn the said courts without day. [204] When per sons recog nized, &c., to appear. Proceedings upon absence of County judges. $ 22. All persons bound by recognizance or otherwise, to appear at either of the said courts, which shall have failed, shall be bound to appear at the next circuit court or court of oyer and terminer to be held in such county, as the case may be. $23. If the circuit judge or other officer authorised to preside in the court of oyer and terminer, shall attend, but if there be not present a sufficient number of county judges, or other officers authorised to sit with him in the said court, to form such court, the circuit judge or other presiding officer, shall adjourn the court from day to day, until a sufficient number appear; or he may, after the first adjournment, adjourn such court without day. TITLE 4 pointment $ 24. Whenever the circuit court appointed for any county, New apshall fail, it shall be the duty of the chief justice of the of circuit. supreme court, or if he be absent, or his office be vacant, the senior judge thereof, to appoint a time and place for holding the said court, in such county, which time shall be at a day as early as may be practicable, and to assign one of the justices of that court, or one of the circuit judges, to hold the said court. published. New York. $ 25. The justice ordering such court, shall, without delay, Notice, how cause notice of the appointment of such court, to be published in the state paper; the expense of which publication shall be paid out of the treasury, as in other cases. $26. Either of the justices of the supreme court may, in sittings in the May term thereof, or during any vacation of that court, on such days as the court shall by an order appoint for that purpose, try all issues which could be tried in the circuit court, for the city and county of New-York, and exercise all the powers of such court; and such sittings may be held for as many days as the judge holding the same shall think necessary. 1 R. L., 336, § 5 & 6. holding, $27. At least one term of the supreme court shall inter- Notice of vene between the appointment of such sittings, and the time &c. when the same are to be held; and the clerk of the supreme court shall cause a copy of every order appointing such sittings, to be published once a week, for four weeks in succession, in two of the newspapers printed in the city of NewYork; the expense of which publication, shall be defrayed by the city and county of New-York. oyer and $28. Courts of oyer and terminer, may be held at the time Courts of and place at which any circuit court may have been appointed terminer, to be held, as follows: when and by whom In New 1. In the city and county of New-York, by one or more of held. the justices of the supreme court, or of the circuit judges, or York. by the first judge of the court of common pleas of the said city and county, together with the mayor, recorder and aldermen of that city, or with any two of them: 2. In all the other counties of this state, by a justice of the [205] supreme court, or a circuit judge, together with at least two In other of the judges of the county courts of the county: counties. &c., of cer 3. In the counties of Albany, Columbia and Rensselaer, Mayors, the mayor, recorder and aldermen of the respective cities tain cities, therein, or any two of them, may sit and act in the court of judges oyer and terminer, in their respective counties, with or instead of the county judges: 4. In the county of Schenectady, the mayor and aldermen of the city of Schenectady, or any two of them, may sit and thereof. TITLE 4. Powers of courts of oyer and terminer. May try indictments found at sessions. May send indictments to sessions. Commissions to by gover nor, &c. act in the court of oyer and terminer, with or instead of the county judges. Laws of 1823, 211, § 9; 24 W., 534. $29. Each court of oyer and terminer shall have power, 1. To inquire, by the oath of good and lawful men of the same county, of all crimes and misdemeanors, committed or triable in such county: 2. To hear and determine all such crimes and misdemeanors: and, 3. To deliver the jails of the said county, or city and county, according to law, of all prisoners therein. 1 R. L., 339, § 15; 2 B., 286. $30. Every such court of oyer and terminer and jail delivery, shall also have power to try all indictments found in the court of general sessions of the peace of the same county, or city and county, which shall have been sent by order of such court of general sessions to, and received by the said court of oyer and terminer, or which shall have been removed into the said court of oyer and terminer: and which, in the opinion of the said court of oyer and terminer, may be proper to be tried therein. 1 R. L., 341, § 21; 3 B., 145; 2 B., 287. $31. The several courts of oyer and terminer and jail delivery, may, by order entered in their minutes, send all indictments found at any such court, for offences triable at the court of general sessions of the same county, to such court of general sessions, to be proceeded on, and tried therein. Laws of 1817, 294, § 3. $ 32. The governor, by and with the consent of the senate, hold court, may issue commissions of oyer and terminer and jail delivery, as often as occasion shall require; but some one of the justices of the supreme court, or of the circuit judges, shall always be named in the said commission, as one of the commissioners; and no proceedings shall be had upon any such commission, without the presence of such justice or judge. Ib., time, specified. Laws of 1823, 212, § 9; see Code, § 23. $33. Every such commission shall specify the time and &c to be place at which the court is to be held, in pursuance thereof; and shall be recorded in like manner as the commissions of civil officers, in the office of the secretary of state. To be recorded. [206] $34. The secretary of state shall, without delay, transmit Copy to be to the district attorney of the county for which such commission shall have been issued, a copy thereof. sent to district attorney. Special appointed. $35. Whenever it shall become necessary, by reason of the courts, how number of the prisoners confined in the jail of any county, or by reason of the importance of the offences charged upon such prisoners, to appoint a special court of oyer and terminer and jail delivery, the circuit judge of the circuit within which such county shall be situated, shall have power, by warrant |