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and where a stay was required, the security must be given in conformity with sections 82, 83, 84, and 85, of 2 R. S., 606.

That the statute peremptorily requires the security to be given within ten days after notice of the order or decree re-heard, and that the court had no power to relieve a party who had omitted to give security within the ten days.See also Burch v. Newbury, 3 How, Pr. R., 271. 1 Code Rep., 41. Wilson v. Onderdonk, 1 Code Rep., 64. 3 Pr. R., 319. Crane v. Crane, 1 Code Rep., 92. Butler v. Babcock, Ib. Sheldon v. Barnard, Ib. 82. Finchley v. Mills, Ib. 83. Poughkeepsie B'k v. Haight, 3 Pr. R., 83.

A motion for a review does not involve the merits, and cannot be re-heard. Sheldon v. Weeks, 1 Code Rep., 87. Conro v. Gray, 4 Pr. R., 166. A motion to dissolve an injunction may. Ib. And so may a decision awarding a peremptory mandamus. People v Steele, 1 Code Rep., 88. An order for re-hearing suspends all proceedings on the decree. Finchley v. Mills, 1 Code Rep, 83. And as to what may or may not be taken to the court of appeals, see Blair v. Dillaye, 3 Pr. R., 422. Gracie v. Freeland, 1 Coms., 228. Marvin v. Seymour., 1 Code Rep., 111.

8. What notice necessary.-No petition for a re-hearing need be made. Instead thereof, it shall only be necessary to serve a notice in writing on the adverse party, and on the clerk with whom the order or decree to be re-heard is entered, stating the application for a re-hearing of such order or decree, or some specified part thereof.

§ 9. Appeal from an order.-Any party aggrieved by an order made at a special term of the supreme court, in an action at law, or in a special proceeding, when it involves the merits of the action or special proceeding, or some part thereof, may appeal there from to the court at a general term; where, upon such appeal, the order may be reversed, affirmed or modified, according to law.

This section is retrospective as well as prospective. People v. Steele, 1 Code Rep., 88. See note to section 349 of code, and Iddings v. Bruen, 1 Code Rep., 61.

§ 10. Appeal, how made.—The appeal in the last section mentioned, may be made, by the service of a notice in writing, on the adverse party, and on the clerk with whom the order is entered, stating the appeal from the same, or some specified part thereof. But no such appeal shall be taken, unless a judge of the supreme court certify, that, in his opinion, it is proper, that the question arising on the appeal should be decided at the general term.

TITLE II.

Provisions relating to Courts in the First Judicial District.

§ 11. General term of supreme court, how continued.—The general term of the supreme court, appointed to be held in the first judicial district, on the first Monday of April, eighteen hundred and forty-eight, shall be continued from the first Monday of each month to the third Saturday thereafter, until and including the third Saturday after the first Monday of July, eighteen hundred and forty-eight, or until all the cases on the calendar be sooner heard, or a sufficient opportunity. be given for the hearing thereof.

§ 12. Special terms and circuit courts, how continued.—The special terms and circuit courts appointed to be held in the first judicial district at any time hereafter, before the first day of July, eighteen hundred and forty-eight, shall be respectively continued from the first Monday of each month to the third Saturday thereafter, until and including the third Saturday after the first Monday of July, eighteen hundred and fortyeight, or until all the cases ready thereat for hearing or trial be sooner heard, or otherwise disposed of.

§ 13. General and special terms in first district.—In addition to the courts already required by law, there shall be held on the first Monday of September, eighteen hundred and forty-eight, a general and special term of the supreme court, and a circuit court in the first judicial district, by such judges as the governor shall, by appointment, in writing, designate; which terms and circuit court shall be exclusively devoted to the determination of suits and proceedings in the supreme court, commenced before the first day of July, eighteen hundred and forty-eight.

14. Terms how long continued.--The terms and circuit court, mentioned in the last section, shall each be continued in each month, except October and January, from the first Monday to the third Saturday thereafter, inclusive, until the

fourth Saturday in February, eighteen hundred and fortynine, or until the suits and proceedings mentioned in the last section, ready for hearing at such courts, shall be sooner determined.

§ 15. In case of disability, Governor may assign other judges. -If the judges assigned to hold such general or special terms or circuit courts, or any of them be unable, by reason of sickness, or judicial engagements elsewhere, to sit until the close thereof, the Governor shall assign other judges, not actually engaged in holding court, to take their places respectively.

§ 16. When cause passed, how placed on the calendar.— When a cause, placed upon a calendar of a court of record in the city of New-York, shall be regularly called and passed, without a postponement by the court for good cause shown, it shall thenceforth take its place on the same or any future calendar, as if the date of the issue were the time when it was thus passed.

17. Party to state date of issue.-In the case mentioned in the last section it shall be the duty of the party placing a cause upon the calendar, for a subsequent term, to state the date of the issue, as above prescribed; and if he omit to do so, by reason whereof the issue retains its priority on the calendar, the court on the application of the adverse party, or of its own motion, may strike the cause from the calendar.

18. Act takes effect immediately.-This act shall take ef fect immediately, except that section two shall take effect at the same time with the Code of Procedure.

APPENDIX.

RULES OF COURT.

.

COURT OF APPEALS.

ADOPTED, 25th May, 1849. ORDERED, That the following rules for governing the practice in this court, numbered from 1 to 19, both inclusive, be adopted and published.

RULE I. When the appeal is from a judgment, the return of the clerk of the court below shall consist of certified copies of the notice of appeal, and the judgment roll. When the appeal is from such an order as is mentioned in the eleventh section of the code of procedure, the return shall consist of certified copies of the notice of appeal, the order appealed from, and the papers on which the court below acted in making the order.

RULE II. The appellant shall cause the proper return to be made and filed with the clerk of this court within twenty days after the appeal shall be perfected. If he fail to do so, he shall be deemed to have waived the appeal; and on an affidavit proving when the appeal was perfected, and a certificate of the clerk that no return has been filed, the respondent may enter an order with the clerk dismissing the appeal for want of prosecution, with costs; and the court below may thereupon proceed as though there had been no appeal.

RULE III. If the return made by the clerk of the court below shal be defective, either party may, on an affidavit specifying the defect, apply to one of the judges of this court for an order that the clerk make a further return without delay.

RULE IV. The attorneys and guardians ad litem of the respective parties in the court below, shall be deemed the attorneys and guardians of the same parties respectively in this court, until others shall be retained or appointed, and notice thereof shall be served on the adverse party.

RULE V. In all calendar causes a case shall be made by the appellant, which shall consist of a copy of the return of the clerk, and the reasons of the court below for its judgment, if the same can be procured. If

the case is voluminous, an index to the pleadings, exhibits, depositions, and other principal matters shall be added.

RULE VI. All cases and points, and all other papers furnished to the court in calendar causes, shall be printed on white writing paper, with a margin on the outer edge of the leaf not less than one and a half inch wide. The printed page, exclusive of any marginal note or reference shall be seven inches long, and three and a half inches wide. The folio, numbering from the commencement to the end of the case, shall be printed on the outer margin of the page.

RULE VII. Within forty days after the appeal is perfected, the appellant shall serve three printed copies of the case on the attorney of the adverse party. If he fail to do so, he shall be deemed to have waived the appeal; and on an affidavit proving the default, the respondent may enter an order with the clerk dismissing the appeal for want of prosecution, with costs; and the court below may thereupon proceed as though there had been no appeal.

RULE VIII. Either party may bring on the argument on a notice of eight days; which notice, except in criminal cases, shall be for the first day of the term.

A copy of the notice, specifying the judicial district in which the cause originated, shall be furnished to the clerk eight days before the first day of the term.

The clerk shall make a calendar of the causes thus noticed, arranging them in the order in which the returns were filed, specifying the judicial district in which the causes originated respectively.

Copies of the calendar for the use of the judges, and five other copies to be delivered to the clerk, shall be printed in like manner as cases and points are directed to be printed.

RULE IX. At the commencement of the argument the appellant shall furnish a printed copy of the case to each of the judges, and shall deliver five other copies to the clerk. Each party shall at the same time furnish to each of the judges a printed copy of the points on which he intends to rely, with a reference to the authorities which he intends to cite; and shall deliver five other copies to the clerk, and three copies to the counsel of the adverse party.

The cases, points and calendars delivered to the clerk shall be disposed of as follows: one copy of each shall be kept by the clerk with the records of the court, one copy shall be deposited in the State library, one copy shall be deposited in each branch of the library of the court of appeals, and one copy shall be delivered to the reporter.

RULE X. In cases where it may be necessary for the court to go into an extended examination of evidence, each party shall briefly state upon his printed points the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found. And the court will not hear an extended discussion upon any mere question of fact.

RULE XI. The party who has noticed and placed the cause on the calendar for argument, may take judgment of affirmance or reversal, as the case may be, if the other party shall neglect to appear and argue the cause, or shall neglect to furnish and deliver cases or points as required by the ninth and tenth rules.

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