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the judges of either indifferently ; thus establishing practically a system in their law courts, similar to that of our new constitution ;-merging all the courts into a comnion system, with the judges of the law courts interchanging and presiding in the trial of all issues.
The existence of separate courts, unless concurrent in all their jurisdiction, also necessarily imposes upon every suitor the selection of the proper tribunal, according to his case; and if he commit an error in this, it is fatal to his action, for want of jurisdiction. Though the line may be so broad and plain between them, as to seem impossible to be mistaken, yet experience shows that in the infinite variety of cases, one will occasionally occur, where it is not easy to determine which court has cognizance of it. Fortunately, in this respect, all courts have a well known tendency to decide in favor of their own jurisdiction ; but instances have occurred, where a suitor has been turned out of the supreme court, because the matter was held to be a proper subject of equity jurisdiction ; and afterwards, the same party has been defeated in chancery, by a decision, that it was a matter not for that court but for a court of law. Some rule of difference in jurisdiction must be established by law, or it will be manifest that they might be merged into one.
This rule must be an arbitrary one. It has sometimes been done, by conferring on a court a particular class of actions by name, and in other cases, by affixing a limit to the amount of which the inferior courts should take cognizance, leaving the superior court open for all cases. Such are, to some extent, the provisions of the judiciary act. It creates a distinction, by an arbitrary rule, among causes of actions, some of which are limited to one court; and in others, a party may, at the option of his opponcnt, be drawn into a court whose qualifications are supposed to be inferior, and where he may be subject to the delay and expense of one more appeal, before the controversy reaches the end of the law.
A still more important objection than either of the preceding, arises from the delay in the administration of justice, which must necessarily happen, from having two courts of concurrent, or even similar jurisdiction. In such cases, each court has its terms for the trial of issues in the county. In most of the counties, there are three terms of the county courts and two circuit courts-all of them requiring the attendance of a grand and petit jury, on an average five times a year. These terms alternate, and each court can try its own issues only. Cases pending in the supreme court, though ready perhaps for months, must lie over the county court terms, until the circuit comes around. As that occurs but i wice a year, six months' delay may often happen. When the circuit judge comes at last, he tries the issues joined in the supreme court, or they are put over on some casualty, as the sickness or absence of a witness, to wait another six months. In like manner, causes in the county court, though ready for trial at the time of the circuit, cannot be tried until the time has arrived for the county court term. By these means, the average time to bring to trial any given cause is doubled, and justice is delayed ; whereas, if there were but one court, there might be four circuits in a year, and at each circuit all the issues in the county which were ready, might be tried, and that, too, with greater despatch on the trial, and with less expense to the county, as there would be but four jury terms in a year, instead of five. Three months, instead of six, would be the longest delay for a trial; and a greater uniformity of decisions and a higher degree of confidence in them would obtain. The increased amount of business in the supreme court, by the transfer to it of all civil actions in which the old common pleas had original or concurrent jurisdiction, would be scarcely felt in that court. The business of the common pleas has been, in most of the counties, if not in all, chiefly derived from causes arising in justices' courts. The number of trials in contested suits, in actions originally commenced there, is surprisingly small. It has often happened, in some of the counties, that a term has been held without a single trial in an original action.
In the convention, a large amount of statistics, showing the business of the several courts, was collected, but a small portion of them only was published ; and we have been unable from thence to obtain information of the number of trials in original suits in the late common pleas. It was, however,
in the discussions of that boily, repeatedly stated by one of the members, who had examined the subject, that the whole number of trials in original actions in that court, within one year, (excluding the city of New-York,) was 227; being less ihan an average of four to each county, and which would add about one cause only to the business of each circuit court, as proposed by us. Whether this estimate is correctly founded, we hare not the means to ascertain. It is, howerer, quite certain, that the number is comparatively small, and that they are usually unimportant in amount and not difficult in character. The aggregate number of circuits and county court jury terms, under the present law, (excluding NewYork,) is 329; under the proposed organization, it will be but 227; and as it is proposed to abolish the system of the trial of appeals by juries, in the county courts, the number of civil actions brought there would scarcely justify the retention of the jurisdiction in question. In the county of Herkimer, which may be taken as a fair ayerage of the counties, in business and population, there were nineteen trials only in the common pleas, in original suits, in three years, ending on the first of July last. That would make an average of six trials and a fraction to four circuits, or one and a half to each circuit, allowing four circuits in a year, as proposed. This rate is a fraction, only, larger than the average result stated in the convention ; and it shows a business quite too small to justify, on grounds of expediency, the maintenance of a separate tribunal, and the disproportionate public business to wlich its continuance must give rise.
For these reasons, it is proposed by section 32, to repeal all statutes now in force, conferring or defining the jurisdiction of the county courts, an:/ to limit the jurisdiction as provided by section 33; taking care, at the same time, that the repeal shall not affect any proceeilings now pending in those courts.
The thirty-second section defines the actions and proceedings of which the county courts shall have jurisdiction, in nine subdivisions; the first six of which are the same in substance as the provisions of the judiciary act on that subject. (1 Laws of 1817, p. 328, 329, sec. 31, 35.) The seventh subdivision consers jurisdiction, in proceedings for the mortgage or sale, on the application of a religious corporation, of its real property within the county, and the appropriation of the proceeds thereof." This provision is the same in substance as that contained in the amendment of the judiciary act. (2 Laws of 1817, p. 643, sec. 28.) The eighth subdivision confers jurisdiction "in cases in which jurisdiction was vested by the Revised Statutes in the late courts of common pleas, under the provisions relating to attachments against absconding, concealed or non-resident debtors-to voluntary assignments made pursuant to the application of an insolvent and his creditors—and to voluntary assignments by persons imprisoned on execution in civil cases."
The power thus conferred in relation to absconding, concealed or non-resident debtors, is that formerly exercised by the courts of common pleas, in hearing and deciding, in a summary manner, upon the petition of the debtor for a discharge o the warrant of attachment, on the ground that he was not absconding, concealed or non-resident, when the warrant was issued. (2 R. S., 3d ed , 70, 71, sec. 45-52.)
That which relates to the case of voluntary assignments made pursuant to the application of an insolvent and his creditors, embraces the power conferred upon courts of common pleas, to hear and decide the application for a discharge, when the officer granting the order to show cause has no authority to hear the case, by reason of his not being a counsellor at law. (2 R. S., 3d ed., 77, sec. 9.)
The remaining provision, in respect to voluntary assignments by persons imprisoned on execution in civil cases, gives the county courts the power formerly exercised by the common pleas, upon the application of a party imprisoned on execution in a civil action, for a sum not exceeding five hundred dollars, to discharge him from imprisonment. (2 R. S., 3d ed., 88, sec. 1.)
The ninth subdivision refers to “proceedings for the remission of fines and forfeited recognizances,” and gives the same power formerly exercised by the courts of common pleas, in remitting fines imposed by courts, and the forfeitures of recognizances. (2 R. S., 3d ed., 530, 581, sec. 37-42.)
§ 34. A general term of each county court, for the final hearing of actions or proceedings pending therein, shall be held at the places in the counties respectively designated by statute for holding county or circuit courts, on the first Tuesday of January, March, May, July, September and November, in each year, and may continue as long as the court deem necessary. The court_shall be deemed always open, for the transaction of any other business.
$ 35. An issue of fact in a county court, shall be tried by the court, unless, on motion of either party, it shall order a jury trial.
§ 36. If a jury trial be ordered, the court shall direct the sheriff to summon eighteen residents of the county, competent as jurors, to appear before the court, at a time and place to be specified.
§ 37. A jury shall be drawn from the persons so summoned, or if there be a defect of jurors, it shall be supplied as in other cases. The practice appertaining to jury trials, and to the verdict of the jury, and the proceedings thereon, as in this act provided, shall in all respects apply to such trial.
[P. & p.]