Title.

Form of records.

All process is tested in the name of the first judge of the county, or if his office be vacant, in the name of any other judge of the court.78 The title of the court for the city of New York is "the court of common pleas for the city and county of New York ;" and the title of the court for each county is the same, with a slight obvious omission. Process is to be made returnable before the judges of the court, describing the same by its appropriate title.

The statutes particularly prescribe the form in which the records are to be made up, and require that the caption should be as follows: "Pleas in the court of common pleas, held at" (the place at which the court shall be held) "in and for the county of Westchester," (or other county, as the case may be,) "before the judges of the same court, on" (such day as the process against the defendant shall be returnable, and shall be returned served.) It is also provided by statute, that it shall be sufficient, immediately after the caption of the record, to enter the declaration, without setting forth on the record, the plaint or process against the defendant, or any memorandum or other matter; and that if judgment is not entered, or the defendant shall not plead, at the same term of which the declaration is filed, an imparlance shall be entered to the term when judgment was entered, or the plea of the defendant shall come in, without entering any continuance from term to term.79

It is also provided that when an issue shall be joined in the court of common pleas, to be tried by a jury, if the same shall not be tried at the next term, after the joining thereof, the cause shall be continued by a brief entry, setting forth that the process between the parties is continued before the same court, until the term when such issue shall be tried, or some judgment of the court shall be given, or some order be made concerning such trial;80 and that it shall not be necessary in any part of a record to insert the names of the judges, or any

78 Ib. s. 13.

792 R. St. 210. s. 16.

80

302 R. St. 211 s. 17.

of them, nor to set forth the authority by which the court is held.81

These provisions, as to the form of records, apply to the court for the city and county of New York, although the caption prescribed for the courts generally is not exactly applicable; but as no other is given for that court, it was no doubt intended that this should be adopted, with the necessary alteration.

bail.

Provision is made by statute for the surrender by bail of Surrender of their principal in the courts of common pleas, where he is committed to the jail of any other county,82 and for charging him in execution. This subject, however, will be deferred until we come to treat of bail generally.

Officers.] The sheriff of the county is the ministerial officer Officers. of the common pleas, and his duties in relation to those courts Sheriffs. will be found treated of hereafter, under the head of sheriffs.

84

86

rally.

The clerk of the county, or of the city and county, is by Clerks genevirtue of his office clerk of this court,83 and is chosen by the electors of the county once in every three years, or as often as vacancies occur. They are required to reside in their counties,85 and to discharge the duties of their offices until their successors are qualified, and are prohibited, as well as their deputies, from practising in their courts as counsellors or attornies. They are subject to removal in the same manner as sheriffs; and when a vacancy may occur in the office, unless by death, the governor is authorised to supply it, as in case of sheriffs.89

Each clerk is required to appoint a deputy, who holds his Deputy

clerks.

Clerks' offices.

Clerk of the
city and
County of
New York;

his bond;

how cancelled.

office during the pleasure of the clerk. The appointment must be made in writing, signed and sealed by the clerk, and recorded in his office.90 If the clerk is incapable of performing the duties of his office, or is absent from the county, his deputy is invested with all his powers except that of deciding upon the sufficiency of sureties for officers.91 If the office of clerk becomes vacant, the deputy is authorised to perform all the duties, and is entitled to all the emoluments, and subject to all the penalties appertaining to the office of clerk until a new clerk is qualified.92

The statutes particularly provide for the places where the clerks of counties are to keep their offices.93

The clerk of the city and county of New York is required before he enters on the duties of his office, to execute a bond to the people of the state in the penalty of fifteen thousand dollars, with two sufficient sureties, to be approved by the first judge, conditioned that he shall, well and faithfully, in all things apply, appropriate, and pay over all sums of money received by him in virtue of his office, during his continuance therein; and in case of default, that he and his sureties will jointly and severally answer and pay to the parties injured, the damages they may sustain. The bond, when executed and approved, is to be filed in the office of the clerk of the supreme court, in the city of New York,94 and may be prosecuted in the same manner as the bonds of sheriffs, except that the application to prosecute it may be made to the court of common pleas of the city and county, and that the suit may be brought either in that court or in the superior court.95 It is the duty of the first judge, when the clerk goes out of of fice, and pays over the monies in his hands to his successor, accompanied with such vouchers and statements as shall be satisfactory to him, to be signified by his certificate under seal, to grant an order requiring the clerk of the supreme court,

upon the filing of the certificate in his office, to deliver up the bond to be cancelled.96

Terms.] The terms of the court of common pleas for the Terms. city and county of New York, commence on the third Monday of every month, and are named after the months in which they are held.97 In the other counties, there are from two to four terms of the court, each year; which will be found in the statutes.98 The terms may be continued until and including the second Saturday after their commencement.99

It is provided, that if a sufficient number of persons authorised to hold any court, shall not attend before five o'clock in the afternoon of the day on which the court is to be held, it shall be the duty of any judge of the county courts who shall attend, or, if there be none present, of the sheriff or clerk of the county, to adjourn the court to the next day;100 and that if a sufficient number to hold the court shall not attend before five o'clock in the afternoon of the adjourned day, it shall be the duty of such judge, or, if there be none present, of such sheriff or clerk, to adjourn the court without day. In all cases not specially provided for, the court is to be held at the court house of the county.2

SECTION III.

Their num

ber,

jurisdiction and powers.

Judges.

OF MAYORS' COURTS IN CITIES.

Of these courts, which are courts of common pleas, and in their jurisdiction and modes of proceeding, very much resemble the courts of common pleas of the counties, there are only three in the state; viz., in the cities of Albany, Hudson and Troy. They were originally established by the charter and acts incorporating those cities: that of Albany, by royal charter, in 1686; that of Hudson, by an act of the legislature, in 1785; and that of Troy, by a similar act, in

1816.

Jurisdiction and Powers.] The mayors' courts of the cities of Albany and Troy, have the same extent of jurisdiction, and are authorised to hear, try, and determine, according to law, all local actions arising within their respective cities, and also all transitory actions, although the same may not have arisen therein. The jurisdiction of the mayor's court of Hudson, is more limited, and extends only to actions real, personal and mixed, arising within the city, and not elsewhere.5

4

Judges.] The mayor, recorder and aldermen of the respective cities, are the judges of the mayor's court; and the mayor and recorder jointly, or either of them singly, with or without the presence of any of the aldermen, are empowered to hold the court." The aldermen are entitled, in all cases, to sit as judges, and in the absence or sickness of the mayor or

32 R. St. 217. 218.

42 R. St. 217. s. 2. Ib. 218.

s. 10.

52 R. St. 218. s. 6.

62 R. St. 217. s. 1. Ib. 218.

s. 4.9.