not have been postponed at his instance," inserted by the legislature in each section.] Original note. "1 R. L. 356, § 6, varied."

"TITLE VI.—Of judgments; the mode of enforcing them, and of writs of error thereon."

"ARTICLE I-Of judgments; the evidence thereof, and the mode of enforcing them." [S 1. Same as enacted.]

Original note. "Substantially conformable to the common law, with the exception of the last clause, which is new. By the amended constitution of this state, art. 7, § 8, 'every citizen may freely speak, write and publish his sentiments, on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge the liberty of speech or of the press.' It is conceived that this provision virtually takes away from the courts the common law power of binding over a party guilty of publishing a libel. At all events, shackles of this sort are inconsistent with the spirit of the constitution and the principles of our government, and it is proposed to abrogate them."

[S 10. Same as § 4 R. S.] Original note. "According to a practice which has prevailed in some courts."

[S 11 to 15. Same as § 5 to 9 R. S. except the words "without charging any fees therefor," inserted in § 8 R. S. by the legislature.]

66

Original note. "§ 2, 1 R. L. 414, makes it the duty of district attorneys to send transcripts to the court of exchequer, and imposes a penalty for the neglect. Such transcripts are conclusive upon the defendants, and it is conceived should not be left to be made out without any supervision. The entries being with the clerk, it seems to fall more properly within his duties to transmit copies of them. They will furnish much more certain and precise information. As the court of exchequer is abolished, the secretary of state seems the best office in which to concentrate this information. The last section is pursuant to a decision of the supreme court, in 13 J. Rep. 82, and 14 ib. 182.” [S 16. Same as § 10 R. S.]

Original note. "The supreme court has decided that a record is the only evidence that can be received of a conviction; see note to § 15. And yet it is well known that such records are not made up once in a hundred instances. They may be of the utmost importance to parties in civil and criminal cases; and when required, are not to be found. The delay produced by having them made up, signed and filed, will in most cases prevent their use. It seems a duty, therefore, to provide some easy mode of proving a conviction, which shall not be attended with the delay and expense of making up records. They are required but in few cases, and there is no necessity for their being made up in all instances, at a heavy expense to the county. The mode of proof prescribed in this section, preserves all the essentials of a record, while it is easy, cheap and expeditious.' [S 17, 18, 19. Same as § 11, 12, 13 R. S.]

"ARTICLE II.—Of writs of error on judgments, and certioraris in criminal cases." [S 21. Same as § 14 R. S.]

Original note. "§ 1, 1 R. L. 143, authorizes the chancellor to allow the writ. That provision was made when writs of error issued out of

chancery. As they now issue from the supreme court, it is conceived that the authority should be extended to the judges of that court; and if so, circuit judges, by the provision of the constitution, must have the same power.'

[S 22, 23. Same as § 15, 16 R. S.] Original note. "Probably the issuing of a writ of error now, is a stay of proceedings in all cases. It is conceived that it should be restricted, and the power confined to our highest judicial officers."

[S 24, 25. Same as enacted § 17, 18 R. S. except the conclusion of the last section reported as follows, "to detain such defendant until duly discharged."]

"TITLE VII.-Special proceedings in criminal cases; and miscellaneous provisions respecting criminal proceedings."

"ARTICLE I.-Of coroners' inquests."

[S1 as reported, substantially same as enacted.]

Original note. "1 R. L. 150, § 1, varied by omitting 'houses broken open,' and 'treasure said to be found,' and conforming to the provisions concerning grand juries."

[$ 2, 3. Same as enacted, except the words "to any of the officers above enumerated," before "subpænas," in § 3, stricken out.] Original note to 3. "New."

66

[S4, 5, 6. Same as enacted.] Original note. "§ 4 new. Last clause of § 6 conformable to the common law."

[S 7, 8, 9. Same as enacted, except the words “or his inability to attend from sickness or any other cause," inserted in § 9 by the legislature.] Original note to § 8. "Partly new."

"ARTICLE II.—Of the outlawry of persons indicted or convicted."

[$ 27 as reported, corresponding to § 20 R. S. varied. Original note. "The preceding sections are intended as a substitute for so much of the act for regulating outlawries,' 1 R. L. 165, as relates to outlawries in criminals' cases. Title 13, of Chapter 9, Part 1, proceeds upon the principle that outlawries will be retained in cases of treason; and with the provisions above made, it is supposed that they may be useful in other cases."

"ARTICLE III.-Miscellaneous provisions respecting criminal proceedings." LS28 to 35. Same as 21 to 28 R. S.] Original note to § 34. "Conformable to 3 Dickinson's Justice, 505." To § 35. "2 Hale, 150." [$ 42 to 46. Same as § 33 to 37 R. S.] Original note. "Corporations, particularly turnpikes, are by law liable to indictment. The mode of proceeding is somewhat difficult. It will be simplified by the foregoing provisions, which conform substantially to the common law practice, and to $33, 1 R. L. 89." [S47 to 51. Same as 38 to 42 R. S.] Original note to § 39 R. S. "Conformable to practice." To § 41, 42 R. S. "New."

[$ 59. Same as 44 R. S.] Original note. "Necessary, as the provisions referred to would not otherwise apply to proceedings in criminal case."

[$ 60. Same as $ 45 R. 8.] Original note. "1 R. L. 404, § 12, extended to fugitives from foreign governments."

[$ 61, 62. Same as enacted § 46, 47 R. S.] Original note. "Laws of 1818, p. 5 § 1, varied in giving the officers authority in the counties they pass through."

"TITLE VIII.— Of the fees of officers and ministers of justice in criminal cases.” [S 4. Same as § 5 R. S.] Original note. "2 R. L. 26, extended to oyer and terminer."

[$ 5. Same as § 6 R. S.]

Original note. "The clerk of the court of oyer and terminer and terminer and general sessions in New York, is allowed fees for most of the services performed by him. In the other counties, these officers are not allowed fees for their services in criminal cases. Thinking it just that some compensation should be made, for at least a portion of their services, the foregoing section has been prepared. The last clause is conformable to the existing law."

[S6. Same as $7 R. S, except a concluding paragraph omitted by the legislature: "And any district attorney shall also be allowed for all monies actually and necessarily expended by him in the prosecution of any indictment duly found by the grand jury of his county."] Original note. "Items 6 and last, new; 7 partly new. Conformable for the most part to 2 R. L. 21, and Laws of 1818, p. 307, § 9." [S 11. Same as § 12 R. S.] Original note. "Declaratory."

[S 12. Same as § 9 R. S.] Original note. "The special provisions relating to the city of New York are omitted, for the purpose of being included in the collection or revision of the statutes applicable to that city."

[S 13. Same as enacted.] Original note. "§ 16, 1 R. L. 498, extended to witnesses from foreign countries, as being equally within the principle of the act."

[S 14, 15, 16, 17. Same as enacted.] Original note to § 17. "Necessary, to apply the provisions in Chap. 10 of the 3d Part, to this Title."

GENERAL INDEX

TO THE

MATTERS CONTAINED IN THE THIRD, FOURTH, AND FIFTH VOLUMES.