-. 314, § 1,) and at a later period in August. {Dnnlap's Pr., vol. 1, p. 114,; Caines'' Pr., p. 2 ; see also Laws 1848, chap. 380, §§ 11, 12, 1 Paine and Duer Pr., 111.) The Common Pleas held jury trials in July, up to and including- the year 1852. August was the only vacation. {See Rules adojited June, 1848, printed in Voor7iies' Code of 1851, and also the court minutes.) The Superior Court also held jury trials in July, and General Term in August. (Paine and Duefs Pr., vol. 1, p. 224.) In England, during the terms, the Chancellor sat in Westminister Hall, but during the vacation he heard causes in Lincoln's Inn Hall and other places, and often at his own house, of which instances are mentioned in the times of Sir Thomas More and Lord Chancellor Audley. (Memories of Westminster Hall, vol. 1, p. 9. ) > CeOWDED CAIiENDAKS." It is not an uncommon thing for a court with a crowded calendar to hold evening sessions as late as ten o'clock. It is the practice of every circuit or trial term outside of the county ot New York, in civil as well as criminal cases, and the sessions of the Marine Court very seldom extended as late. In this city, the Eeal case, the Stokes case, the Sullivan case, and many other criminal trials, were extended late into the night. No one found fault, and the public approved of it ; and yet human life when on trial is certainly as sacred and entitled to even more consideration and deliberation than petty controversies, in a court whose jurisdiction is limited by statute to an amount that can not exceed, in its most important and trying de- liberations, one thousand dollars. Clearing the daily calendar, even if sessions are extended a little into the 26 evening, is certainly more desirable to litigants, than dancing attendance for days, to accomplish the same resnlt, for iu the language of the lamented Horace Geeely, in his EecoUections of a Busy Life (p. 264), "It is not possible for a business man to spend his whole life in court-rooms, waiting for his case to be called." These sessions, if long and tedious, must necessarily be more wearisome to the judge, whose attendance is constant, thavi to litigants and counsel whose attend- ance is only limited and occasional. The trial of patience on the casual attendant is slight com^jared with the constant strain upon the judge. This power of continuing sessions into the evening luust of neces- sity be confided to the discretion of the Justice presid- ing, to be exercised as in his judgment the public interests and the rights of litigants require. The Justice being a salaried officer, can have no other mo- tive or inducement to extra hard work, than-acon- sciencious discharge of public duty ; and considering that nature makes the same demands for rest upon him that it makes upon his fellow man, and the fact that he can not keep others without remaining and sharing the same deprivations and inconveniences himself, would, seem to be almost a sufficient assurance that the dis- cretion cannot be much abused, and it is a recorded fact that after the act of 1853, (chap. 617,) increasing the jurisdiction of the Marine Court from $250 to |500, its business increased so fast that the judges were ''frequently oMiged to sit to a late hour in the eGening." {Lidingsion's Law Reg. for 1854, p. 378.) The necessity that induced this practice twenty years ago would undoubtedly justify its revival now. Our Police Courts open every morning, during ti;» year, {even on Sundays,) between 6 and 7 o'clock, and complainants, witnesses, and counsel are required to appear at these inconvenient hours, on all days alike. The necessities of their business require this practice. • 27 and the Justices, who are salaried oflScers, are obliged to conform to it. Our Civil District Courts hold daily sessions, with a jurisdiction of $250, and one-half of the cases com- menced in the Marine Court, are for less than that amount, yet the public necessities demand these sessions, and the Judge of any court, who seeks public approval by his indolence, will find that judicial office, cannot be made an asylum for its encouragement, and that justice will demand of him, either a fair share of - public duty, or a retirement into private life, where he may indulge his peculiar habits, in his own way, with- out seriously affecting the public good. Lord Chanoolloff Denman, of England, held circuit in Summer vaicatioh from 9 a, m. till 8 1-2 p. m. with approval. In the Summer assizes of 1834, Lord Chain & ollor i Denman, while i)residing on the Western Circuit, wrote two letters, from which extracts are here given. In one to his sister, Mrs. Baillie, he says: "The circuit has been entirely satisfactory. Very hard worTc came, indeed, more than once in very hot weather, and I was almost used up at Exeter ; but I rallied, and am now remarkably well." And in the other, to Lady Denman, he says : "I have tried /owr long cases to day, and have Still eight to try, how long or short I can not guess. I am eagerly waiting for the opportu- nity to. take wing, and may, perhaps, fly fastei than this letter to its destination." "To-day, after sitting in court till half -past eight, I dined with the Sheriffs— a great Tory party. My health was splendidly received, and I proposed that of Sir Charles Wetherell, the Recorder. The utmost humor prevailed. " When I began this it was past midnight, and, as I mast be in court by 9 to-morrow, I will now wish your Ladyship good-night." {Lioes of the OMef Justices of England, vol. 6, pp. 14, 16.) 28 Similar instances in tills country as well as in Eng- land might be mentioned ; the books contain many of tbem, and in no case without approbation. We are told that following precedent and good ex- ample is safe as well as commendable, particularly in judicial office ; and that the Justices of the Marine Court of the City of New York, although tielthe'r of them "Lord Chancellors" in fact, name, judicial learn- ing, or dignity of office, may with propriety follow some of their approved habits of industry, is a pro- position no honest man of ordinary judguienii will for a moment dispute. The judicial couetesy to be observed amosg ASSOCIATES is well illustrated by language employed in one of the opinions in Ramsey o. Gould, in 4, Lansing, at page 481, in reference to cases where disappointed suitors seek relief from one judge, that has already been denied by another, and if not out of place here, reference to it may not be improper. In condemning the practice, the Court says : " It is unwise, because it is greatly calculated to impair the dignity of a judicial tribunal, when one judge affords relief to a suitor who has dared to impugn another judge of the same court. The dignified, the riglit course, would be to refer such an application to the judge whose authority was thus contemned, and not, by entertaining a motion for relief, seem to give coun- tenance to such practice. "To entertain siicli motions, is to sit in judgment on the rectitude of an associate, and to estailisli a practice thai may some day he used against those vho assert or ap- prove such a rule. " It will be sad indeed for the honor, dignity, and, usefulness of courts, when judges give color to baseless assatiUs upon each other bg granting favors to those who make them, instead of promptly and effe^.tually rebuJdng them.'' Nothing need be said as to the application or pra- priety of the rule in that particular case. It is enough 29 to say that the ride itself is correctly laid clown, for general application, and wherever applicable, will cer- tainly meet approval. ' 30 OHAPTBE IV. HOW THE TEEMS OF COURT AFFECTED THE JUKISDIC- DTCTIOX OF THE EWGLISH SESSIONS. In the case of the King vs. The Justices of Leicester, the question arose, whether the Statute 54 Geo. III., c. 84, was imperative. It was contended, ou one side, that before the 54 Geo. III., for regulating the time for holding the Michaelmas Quarter Sessions was passed, all the Quarter Sessions were holden under cer- tain ancient statutes which were deemed merely direc- tory ; and that Quarter Sessions holden at other times than those specified in the statutes were always consid- ered good ; that the Statute 54 Geo. III. merely changed the time for holding the Michaelmas Quarter Sessions from the week after Michaelmas to the week after the 11th of October ; and tbat it should therefore receive a construction similar to that which had been put upon the earlier statutes made in ])ari materia, viz : that it is directory only, and not imperative. It is further claimed, that, admitting the former acts to have been directory, this statute seemed to take away ^the dis- cretionary power of the Justices ; for it appoints a new time instead of that formerly fixed. That this must, (if any language can), be considered imperative. In giving judgment, Lord TEWTEEDEisr, Chief Justice, said, "Looking at the earlier statutes upon this sub- ject, we find tbat by the 12 lach. II., c. 10, the Justices were required to keep their sessions in every quarter of the year at least, but no particular days are specified. 31 By the 2 Hen. V., §1, c. 4, they shall make their ses; sions four times in the year : Michaelmas, Epiphany, Easter, and the Translation of St. Thomas the Martyr ; and ofteuer if need be. The modern statute merely sub- stitutes the week after Michaelmas, etc. So long ago as the time of Lord Hale, the earlier statutes were considered directory. ' It is very plain,' Lord Hale says, ' that the Quarter Sessions are variously held in several counties, yet those are each of them good Quarter Sessions; for these acts, especially that of 2 Hen. V., are only directive and in the affirmative.' " "It has been asked," i^roceeds Lord Teuterden, "what lan- guage will make a statute imperative, if the 54 Geo. III. e. 84, be not so ? Negative words would have given it that effect, but those used are in the afllirmative only." {Tlie King vs. The Justices of Leicester, 7 B. & C, p. 6.; Potter's Divarris' Statutes, p. 227.) 32 CHAPTEE V. TERMS OF COURT IN OTHER STATES. The effect of the Terras iipou the various courts in other States depends entkely upon the circumstances under which their courts were called into existence. If the State constitution or statute creating the court, imposed upon it stated Terms, they might be con- sidered as limitations upon their jurisdiction, for courts so created should clothe their proceedings with all tho solemnities prescribed by the act which gives them judicial life, or it might be held that acts done in any other manner, or at any other time, were not a proper exercise of the power conferred; and it has been held that such courts can only be held during the stated terms. jMotwithstanding the strict rule adopted in 20 Ala- bama N. S., 446 ; 2 Scammon, 227 ; 20 Arkansas, 77 ; 24 Arkansas, 479 ; 42 Alabama, 404 ; under their peculiar judicial organization, as to the effect of a fjyiii/i^ judgment rendered out of them , Chief Justice Wal- lace, of California, in the matter of Bennett, at July term, 1872, held : "The principal objection made for the peti- tioner, as we understand it, is that the cause here was tried in chambers, and not in open court — and it is said that there is no authority to try a cause except in open court. " But even if this be so, we do not see that it would follow that a judgment rendered in a cause which had 33 been tried iu chambers, would, for that reason, neces- sarily be void, iu the absolute sense. " The district court unquestionably had jurisdiction of the subject matter and of the parties litigant. Had the court itself rendered the judgment in question in open session at a regular term, without trial, without proof, and even without submission of the caiise for decision, such judgment, however erroneous, would not be held void upon a mere collateral attack. To maintain that would be to ignore the obvious distinc- tion between a total want of authority upon the one hand, and the erroneous exercise of conceded authority upon the other." And, speaking of the power to enter judgment in vacation, the judge, in the same opinion, says : " It is a power, too, which is no more dependent upon ' or affected by ' the fact of trial had, or trial not had, than if the judgment had been entered in term time by the court. The hearing of jjroofs, the argument of coun- sel, in other words, the trial had — or the absence of any or all these, neither confer jurisdiction in the first instance, nor take it away after it has once fully attached." {Ex parte Bennett, 44 California Eep., p. 87, and see a much stronger case reported in the 48th of New TorTc Reports, pp. 41, 45, 55.) 34 CHAPTER VI. THE MONEGHAN CASE, 1 PARK. CRTJI. K. 570. THE NORTHETJP CASE, 37 Jf. Y., 203; ASD CASES IK 2 COW., 445; 24c AL.. 17 ; 39 ill., 554. "We now propose to consider these two cases, taking the Moneghan case lirst, which was decided by onr Supreme Court, at the Monroe General Term, in 1854, and presented the question whether the Court of Ses- sions of Livingston County, at which Moneghan was convicted, was legally called into existence. The prisoner interposed a special plea to the jurisdiction of the court, claiming it was not legally constituted, and stating the facts on which he depended for such conclusion ; the counsel for the people demurred, and the Court of Sessions overruled the demurrer and awarded Judgment of conviction, and the record was brought before the Supreme Court on certiorari. The question involved was one of construction. The Judiciary Act, art. 5, § 42, enacted that "Courts of Sessions, except in the city and county of New York, shall be held at the time and place at which county courts for the trial of issues of fact by a jury of tho same county shall be held, and the same number of grand and petit jurors shall be drawn and summoned therefor, and attend the same as is now required for courts of general sessions of the peace, in the same county ;" and in 1851, the legislature passed an act in 35 these words ; " Courts of sessions, except in the city and county of New York, shall be held in the respec- tive counties at such times as the county judge of the county shall by order designate, and the county judge shall in such. order designate at which terms of the sessions a grand or petit jury, or both, or neither, shall be required to attend ; and no ^rand jury or petit jury shall be required to be drawn or summoned to attend anv terms of the courts of sessions which shall be designated by the county judge to be held without such jury ; such order shall he published in a newspaper printed in snch county, for four successive weeks prer vious to the time of holding the first term of said court under such order." The county judge made an order requiring jnrors to attend the county court, but no reference was made to the sessions. The order was admitted and set out in the return. The Supreme Court, speaking of this order, says, "No court is named or alluded to in the language employed, be- sides the county court ; it .is the terms specified of that court a grand jury is required to attend, and there is nothing, ambiguous in the order;" and hold that it was not a valid designation of the times for holding a court of sessions under the act of 1851, and the conviction was held to be irregular. The case last cited was in some respects peculiar. There was no Judge of the Sessions, eo nomine in Liv- ingston County, and the County Judge acted, as such, ex officio, although the two courts were recognized as distinct in organization and jurisdiction, and to pre- serve their identity one from the other, the County Judge was required by order to designate the time of holding the Sessions and the Terms at which Grand and Petit Jurors should be required to attend, and the act is mandatory that the *' Courts of Sessions, except in the City and County of New York, shall be held at the time so designated," in the order which the County Judge is required to make, and for public in- formation, publish in a newspaper printed in the 36 county, for four successive weeks, prior to the term designated. This order was never complied with, and the court never legally called into existence, the mandatory direction in the statute conld not be disregarded, the County Judge could not, ka^'lequin Ul&e,tvansform him- self from a County Judge to a Justice of the Sessions, at pleasure and without notice, for the statute not only directed a notice, but required it to be published a given number of weeks before the change could be eifected according to law. (1 Par/c Grim. R., 570.) As to the legality of adjournments in these courts, (see 2 Cow.. 445 ; 24 Cal.', 17, and 30 111., 554.) Next in order comes the case of the People v. Forthrup, 37 N. Y., 203, iu which the prisoner was in- dicted in Westchester County, for a felony in Septem- ber, 1866. In December following, a Court of Oyer and Terminer commenced at the Court House in White Plain.i in said county, and it was ordered, and procla- mation made, that the same be adjourned to the 14th day of January, 1867, at the Court House in Bedford, in that County. At thp adjourned day, at Bed/ord, only ten petit jurors answered, and the court directed that seventy-five talesmen be summoned by the Sheriff, for the following morning, till which time the court adjourned. These talesmen were accordingly sum- moned from the town of Bedford, and of them, some sat upon the trial of the indictment. Before the jury were called, certain objections were made by the counsel for the prisoner to the legality oi" the court as thus sitting, and to the jury as thus constituted. The District Attorney moved on the trial, and iJi^isoner's counsel having sJiown that in the! appointment by the Justices of the Second Judicial District of Terras for the holding of courts, no appointment for the holding of any Court of Oyer and Terminer, to be held at Bedford, for the County of Westchester, had been made for either of the years 1866 or 1867, it was therefore contended that the .•57 court then and there sitting had no rightful po«-eror authorit;\ to proceed with thu trial. This objection was overrnled and exception taken. Another objection was, that only ten petit jurors of those summoned having appeared, " the Court then ordered the clerk to prepare ballots of the jurors in said town of Bedford, and ordered the Sheriif to proceed and drjiw seventy- live jurors from the box containing the names of said jurors in said town of Bedford (instead of the county at large) to act as talesmen. This objection was also overruled. There was no question raised in the case as to the power of the court to adjonru to another time, but its right to adjourn to a place other than that fixed in the original appointments agreed upon by all the Judges, was the point directly made, and the Court said, " The power to fix the times and jilaces of holding courts was committed by statute to all the Judges, and not to a single Judge of a Judicial district. In virtue of this power, White Plains was the only place appointed for holding the Courts of Oyer and Terminer for the year 1867, in the County of West- chester." The Court further held that the places at which courts are held derive an additional importance from the terms of the statute relating to trials by jury, and the Court then discussed the prisoner's objections to the talesmen summoned from Bedford, and decideed that, on account of the unauthorized adjournment to Bedford, the conviction was illegal and must be revers- ed. This case presented the question, whether a court could be migratory, and the Court of Appeals held that when its place of meeting was once fixed by all the Judges it could not be changed, except by the same authority by which it was designated. This was undoubtedly proper; and it is slated in the "Memories of Westminster Hall," vol. 1, page 'd, that King John, when in England, was in the habit of making frequent progresses through the kingdom, and of holding his court in a multiplicity of places, to the great incon- venience and expense of the suitors, who were obliged 38 to follow him in order that their causes might be tried ; and that, by a clause in Magna Oharta, dated June 15, 1215, this intolerable grievance was abated ; and the decision in theNorthrup case effected the same object in this State, and scarcely anything more. (On tMs Power of Adjournment, see also Price vs. Peters, 15 Abb. Pr., 197; Litchfield Bank vs. Church, 9 Conn. 146.) 39 , CHAPTER VII. ■WHAT PROVISIONS OF LAW ARE REGARDED AS DIREC- TORY MERELY, AND NOT AS A LIMITATION OF POWER. Various Illustrations. In 1831, an action calling in question the legality of a court martial, was decided in our Supreme Court by Hon. Wm. L. Marcy, prior to his election as United States Senator. The action was against the Sheriff" of Ontario County, to recover back moneys paid to the defendant's deputy as fines imposed by the court martial. It appeared that the court martial was ap- pointed by a brigade order, issued in July, 1818. The militia law, under which the order was issued, made it the duty of the commanding c fflcer of the brigade to appoint a brigade court martial, on or before the first day of June, in each year, and the order approving the court martial, in this case, was issued in July, a month after the time specified in the act, and the plaintiff's counsel claimed it was ou that account void. The plaintiff recovered a verdict, which was set aside, and the court (Marcy, Justice) after stating the facts, held, "The general rule is, that where the statute specifies the time within which a public officer is to perform an official act, regarding the rights and duties of others, it will be considered as directory merely, unless the nature of the act to be performed, or the language used by the legislature, show that the designation of the time was intended as a limitation of the power of 40 the oflficer. The act regulating sales of real property on an execution, makes it the duty of Sheriflfs to file a certificate of sale in the clerk's office, in ten days after the sales takes place ; yet this omission does not affect the validity of the sale ; " and after giviug another il- lustration and citation, the court proceeds : "So it may be said of this case, that as there is nothing in the nature of the power, showing that it might not be as efltectually exercised after the first of June as before, and as the act giving it contains no prohibition to ex- ercise it after that period, the naming that day was a mere direction to the officer in relation to the manner of executing his duty. There is nothing in the nature of the power given, or in the manner of giving it, that justilies the inference that the time was men- tioned as a limitation. (The People »s. Allen, 6 Wend., 486.) This is a very strong case, considering that the statute creating the office contained this direction as to the " Term " or time for calling the court martial into existence ; for it has been held that where a power or franchise has been created by statute which fixes or prescribes the mode of its exercise; the power must be exercised in the mode pointed out in the act and in no other, and those upon whom it is conferred are con- fined strictly to the act creating it, (Head vs. Provi- dence Ins. Co., 2 GrancJi, 127. Ed. of 1806.) for in such cases the act is the enabling statute ; it creates all the power that is possessed, and all who act under it must clothe their ijroceediugs with all the solemni- ties which the act demands. "When a statute directs a jjerson to do a thing in a certain time, without any negative words re- straining him from doing it afterwards, the naming of the time will be considered as directory to him, and not a limitation of his authority, (see. the various cases collated in Dwarris' on Statutes, p. 223,) and a statute requiring the court to limit the time of thcfsentence of a convict, so that his imprisonment in the State prison should expire between May and 41 November, is merely directory ; and a failure to com- ply with such requirement does not render the sen- tence void, (Miller vs. Finkle, 1 Par^. Cr., p. 374,) and for further illustrations of this rule see Steuart vs. Slater, 6 Biter, 84, Ex parte Heath, 3 Bill, 42 ; Wood V. CJiapin, 13 N. Y. 509 ; 18 N. Y. 200,) and where the superior courts have a jurisdiction, it can only be taken from them by the express words of an act of Parliament, or by necessary implication, {per Ashurst, J., 4: T. -H. at 116,) and the general principle, that statutory provisions may in certain cases be treated as purely directory, has been recognized in all the States. In regard to capital trials for murder, in Michigan, a statute requiting a circuit j udge to assign a day for the trial, has been held clearly directory, so far as time was concerned. ( The People v. Doe, 1 Michigan, 452, 453.) Where a city charter required that a certain number of jurors should be chosen on the first Monday of July, and they were not chosen till the first of August, it was said that the provision was directory, and the jury was held to be legal, {Colt v. Eves, 12 Conn. 243,) and even the constitutional pro- vision {Const., art. 3, § 15) in regard to all laws "that the question upon the final passage shall be taken immediately upon the last reading, and the yeas and nays entered on the Journal," was held to be directory merely, {T7ie People v. Supervisors of Chenango, A^Beld. 317,) and a similar decision was made as to the Com- mon Council. {Strilcer v. Kelly, 7 Hill, 9 ; and see also 14 Barh. 259 ; 4 Seld, 88, 89, 93.) These various citations certainly favor the idea that as to time, the provisions for Terms are merely directory, and do not take away from the court the power it ex- ercised before, of declaring the law, whenever the public necessities require. 42 CHAPTEE VIII. OBJECTION THAT JUDGMENT WAS KENDEKED OUT OF TERM, HOW AVAILABLE. In all the cases cited, where convictions were re- versed on appeal, the objection as to the legality of the Term was distinctly made upon the trial, and was either sustained by proof or admissions printed in the case forming part of the record. And this is the appro- priate mode of testing the question, for, as was ob- served by the Supreme Court General Term, in The People ts. The Central City Bank, 53 Barh., at p. 415, referring to two orders made by Judge Peckham. It is said they are invalid, because not shown to have been made at a regularly adjourned special term, and not to have been actually entered by the clerk. Asia tMs objection, I tTii'iik the answer is, that it will not be ■presumed that they were made at a term irregularly held. There is nothing to show that the special term in question was not the continuance of a term regu- larly held by the Justice, and held open by him for the transaction of further business, at his chambers or elsewhere. The court having been regularly con- vened, continues open till actually adjourned. An order for its continuance is not essential ; and an order made by the court, that it should so continue, is not necessary to be entered with the clerk. If it is bu, I think when actually made by the court, (which is the act which gives it^validity,) it is the duty of the clerk to enter it ; or, if accidentally omitted, it may be entered 43 by him nunc pro time, and wcaild, even now, if neces- sary, be ordered to be entered, to sustain proceedings had under it, otherwise regular." And in another case, ir, was held that it will be presumed by law that the court was held where it first met, until the contrary is shown, (Smith i^s. State, 9 Humph., 10,) and in another case where the record failed to show what adjourn- ments were made after opening the court, on appeal it was held that the presumption was in favor of their regularity. (State xs. Martin, 2 Iredell Law, 122.) In Bedell vs. Powell, 3 Code Rep., 61, it was held that an order granted at the circuit purporting to be an order of a special term, was a nullity, and on appeal it was vacated. The assignments of Terms were at this time made and promulgated by the Oovi- ernor, and the absence of a special term, at the time and place indicated, was apparent on mere inspection of the order. And it is doubtful whether parties regularly brought into a court having jurisdiction of the subject matter, so that complete jurisdiction once attaches to them, can after judgment try the question of the legality of Terms, or any other question of regularity iri the sub- sequent proceedings before judgment, in any other form than by appeal, and the case upon appeal should present the error complained of in an intelligable form, which can scarcely be done in the absence of a specific objection, with proof or admission of the facts, on the trial for, every presumption is in favor of the regulari- ty of the proceedings, and the legality of the Term, and this presumption must be negatived in some positive form. (Fisher v. Hepburn, 48 N. T. at pp. 53, 57.) In an action commenced in one of the District Courts, the defendant, q/fer judgment, and after pro- ceedings supplementary to execution had been com- menced in the Court of Common Fleas, moved in that court, that the plaintiff be perpetually stayed from proceedings on his judgment, one of the grounds being 44 that the adjoummeut of the action by the justice from the court-room to his office, and a trial thereat, de- prived him of jurisdiction, and rendered the judgment void ; and the Common Pleas General Term, on an ap- peal irom an order made therein, held that the defend- ant's remedy was by appeal, and that the court would not in any collateral way, inquire into or pass upon the legal effect of the trial at the justice's office, but inti- mated that on appeal it was error for which the judg- ment might be reversed ; and the application for a perpetual stay was therefore denied, and the defend- ant ordered to proceed with the examination rmder, supplementary proceedings. (Price ?>. Peters, 15 Ahh. 197.) A similar question came up in the Commission of Appeals in a case where objection was made for the first time upon appeal, that the case was tried in the Supreme Court by Judge Barnard, out of term. Judge Ingeaham, at special term, on motion, set the judgment aside, and on appeal the general term affirmed the order. It was reversed, however, by the Commission of Appeals, and Judge Barnard's judg- ment was sustained. In the opinion of the court, in which all the Judges concurred, it is said : "It would be a very unwise administration of justice, and lead to much vexatious litigation, if a judge holding one special term could, upon mere motion, set aside the decision and judgment of another judge at special term. " It is also objected, that it appears, by the caption to the findings of Mr. Justice Barnakd, and of the judgment, that the action was not tried at any term of the covu^t, but before the judge, out of court, at his chambers. The objection was not made in the mov- ing papers, and seems to have been raised for the first time in this court. The order to show cause, and the order setting aside the judgment, both assume and state in substance, that the action was tried in court. If any objection 45 had been made in the moving papers, it could have been made to appear more clearly, perhaps, that the action was tried in court, and hence the objection should not be permitted to be raised here for the first time. But it is sufficient that it appears that the action was tried at a special term, held at the City Hall, the place for holding courts in the City of New York. The chambers of the judge may have been in the court room, and while it is recited, that it was a special term for motions and chamber business, we can not assume that there was not a regular cov.rt sitting there for the hearing of all special term business, in the face of the fact that the parties without objection went to trial. It may be that this particular place for holding the court was provided by the sheriflF, under sections 24 and 28 of the Code, and the special term may have been adjourned to the Judge's Chambers, under section 24. Every presumption must he in favor of the proceeding in this respect. (Fisher vs. Hepburn, 48 N. T., at pp. 53, 55.) The right of an appellate tribunal to reverse, even in cases of want of jurisdiction in the court below, was reiterated, and established in McMahon vs. Eauhr, 47 N. T., 67. M