TITLE XX. OF COURTS AND THEIR OFFICERS. CHAPTER 181. Of the superior court and court of common pleas. CHAPTER 182. Of the adjournment of courts. CHAPTER 183. Of clerks of courts. OF THE SUPERIOR COURT OF JUDICATURE AND COURT OF COMPILED FROM Chapters 171 and 172 of the Revised Statutes. 66 36, 66 66 1843. The act of 1851, chap. 1092, altering the organization of the courts, prescribes the constitution of both the superior court and court of common pleas in one section, which is so formed that it would be difficult to compile the laws into two separate chapters in the revised statute. We have, therefore, put them into one chapter, constituting the two courts. 4. When new terms are established, 29. courts to take cognizance of pro- SUPERIOR COURT OF JUDICATURE. 5. Jurisdiction in cases at common law. COMMISSIONERS MAY BE APPOINTED IN CIVIL ACTIONS. Court, on motion of either party, may refer any civil action to one or more commissioners; if action commenced before the passage of this act, not to be referred unless by consent of both parties. to correct errors of other 30. Each party to prepare and file a 6. 66 as to special writs. given by statute. courts. statement of the facts which constitute his case; commissioners, at discretion, to allow amendments to be made on terms. Duties of commissioners. Commissioners to have power to examine either party as witness in chief if the other party desires it; upon request of either party, the other party may be examined at trial before jury. The court, on the facts reported, to render judgment unless either party elect to try the case by jury. Such party required to furnish statement, &c. 35. How the verdict shall be. 37. To proceed ex parte if either party neglect to appear on due notice. Terms of court of common pleas. 20. Court may compel discovery. SECTION 1. There shall be appointed and commissioned, as prescribed by the constitution, four circuit justices of the court of common pleas; provided, however, that until a vacancy shall happen in the superior court of judicature as now constituted, but two of said circuit justices shall be appointed; and whenever such vacancy shall occur in said superior court, an additional circuit justice shall be appointed for each vacancy so happening until the said four circuit justices shall have been appointed; and no appointment shall be made to fill the first two vacancies that may occur in said superior court after this act shall take effect; but upon the happening of either of said vacancies the said superior court shall consist of the remaining justices thereof; and if by the happening of either of said vacancies the office of chief justice of said superior court shall be vacated, the governor with advice of council shall appoint one of the remaining justices of said court to be chief justice thereof. And after said two vacancies shall have occurred, the said superior court shall consist of a chief justice and two associate justices, any two of whom shall be a quorum to hear and determine cases. (Laws of 1851, chap. 1092, sec. 1.) SEC. 2. The court of common pleas shall consist of the justices of the superior court, such circuit justices as may be appointed agreeably to the provisions of this act, and the judges of the court of common pleas appointed for each county. The chief justice of the superior court shall be chief justice of the court of common pleas, and the chief or senior justice of the superior court present at any term of the court of common pleas shall preside, and if no justice of the superior court be present, the senior circuit justice present shall preside. (Laws of 1851, chap. 1092, sec. 2.) SEC. 3. The terms of the court of common pleas shall be holden by one or more justices of the superior court, or one or more circuit justices and one or both of the judges of the court of common pleas for the county; but if the justice of the superior court or the circuit justice presiding, shall be disqualified or decline sitting in any case, and no other justice of the superior court or circuit justice be present, the county judges shall be a quorum for all purposes. But at the trial of any person charged with a crime, the punishment of which may be death, two of the justices of the superior court, or two of the circuit justices, or one of the justices of the superior court and one of said circuit justices shall be present. And the clerk of the court where such indictment may be found, and every justice of the peace who shall hold any person to answer for such crime, shall forthwith certify the fact to the justices of the superior court. (R. S., chap. 172, sec. 2, and laws of 1851, chap. 1092, sec. 3.) SEC. 4. Where there may be or has heretofore been any new terms established for holding any of the courts in this State, the said courts shall take cognizance and jurisdiction at said new terms of all proceedings of every nature pending in or returnable to said courts, and if said courts have at such terms exercised jurisdiction thereof, they shall retain and continue the same; notwithstanding the statute establishing said new terms may contain no special provision for the transfer of such proceedings. (Laws of 1843, chap. 36.) 28 SUPERIOR COURT OF JUDICATURE. SEC. 5. The superior court of judicature shall have jurisdiction of all pleas real, personal and mixed, and of all civil actions and criminal proceedings commenced according to the course of the common law, which may be legally brought before them. (R. S., chap. 171, sec. 2.) SEC. 6. The said court shall have exclusive authority to issue writs of error, certiorari, mandamus, prohibition and quo warranto, and may issue writs of habeas corpus and all other writs and processes to courts of inferior jurisdiction, to corporations and individuals, for the furtherance of justice and the due administration of the laws. (R. S., chap. 171, sec. 3.) SEC. 7. The said court shall have the general superintendence of all courts of inferior jurisdiction for the prevention and correction of errors and abuses, where the laws have not expressly provided a remedy. (R. S., chap. 171, sec. 4.) SEC. 8. The said court shall have jurisdiction of all questions of divorce and alimony, and all appeals from courts of probate and applications therefor, all applications for review or new trial founded on any statute, petitions for the redemption and foreclosure of mortgages, petitions for partition of real estate, of proceedings relating to the forfeiture of any estate or franchise granted by the State, and of all actions and questions whatever which shall be transferred from the courts of common pleas for decision according to law. (R. S., chap. 171, sec. 5.) SEC. 9. The said court shall have power to hear and determine as a court of equity in cases of grants, devises and appointments of any real or personal property for any charitable use, in all cases of trust, fraud, accidents or mistakes, in cases respecting the adjustment of the concerns of copartners, joint tenants and tenants in common, in cases respecting the redemption and forclosure of mortgages, in cases respecting the assignment of dower where the probate court has not jurisdiction, in cases respecting the secreting and withholding any personal property where there is not a plain, adequate and sufficient remedy at common law, in suits to compel the specific performance of contracts, and in suits for discovery in cases where a discovery may be lawfully required. (R. S., chap. 171, sec. 6.) SEC. 10. The said court may grant writs of injunction whenever the same shall be necessary to prevent injustice, and any justice of said court may issue writs of injunction to stay proceedings or waste until the end of the next term of said court in any county, unless sooner dissolved. (R. S., chap. 171, sec. 7.) SEC. 11. No jurors shall be summoned at the superior court; but if it shall be found necessary in any case to ascertain any facts by a jury, an issue shall be made up under the direction of said court, and transmitted to the court of common pleas for trial, and the verdict of the jury thereon shall be certified to said superior court, and judgment rendered thereon as the case may require. (R. S., chap. 171, sec. 8.) SEC. 12. The justices of the superior court shall make from time to time all necessary rules and orders for conducting the business in said court and in the court of common pleas. (R. S., chap. 171, sec. 9.) SEC. 13. If two of the justices of said court shall be legally disqualified to act as such in any case, the other justice shall hear and determine such case, and shall have all the powers of the court. (R. S., chap. 171, sec. 10.) SEC. 14. There shall be held annually at Concord, in the county of Merrimack, two terms of said superior court; one on the second Tuesday of July, and the other on the second Tuesday of December; and the said court, sitting at said terms hereby established, shall have jurisdiction and take cognizance of all matters arising in any county, in the same manner as if said matters had arisen in the county where the said terms are holden. (Law's of 1851, chap. 1092, sec. 4.) SEC. 15. The clerk of the superior court in each county shall attend at each term of said court hereby established, and under the direction of the court discharge his duties in relation to the business of his own county, in the same manner as if the court were sitting therein; and said clerks shall receive from the state treasury one dollar and fifty cents per day for their attendance and ten cents per mile for their travel to and from the place of the sitting of said court. (Laws of 1851, chap. 1092, sec. 5.) SEC. 16. All causes, actions, matters and business pending in or returnable to said superior court in any judicial district, at the time this act takes effect, [Sept. 15, 1851,] shall be entered, returned, have day and be heard in said court at the terms thereof hereby established, in the same manner as if said causes, actions, matters and business had been commenced and originated after this act shall take effect. (Laws of 1851, chap. 1092, sec. 6.) SEC. 17. It shall be the duty of said court to determine and fix upon the time when the business of each county shall be heard and determined, at which time the party excepting shall furnish to the court copies of the case and papers referred to, sufficient for the judges then present, and each party who desires to be heard before said court shall then furnish to each judge and to one of the opposing counsel a brief of the points and authorities upon which they may rely. (Laws of 1851, chap. 1092, sec. 7.) SEC. 18. In all cases in which questions have been or hereafter shall be reserved and assigned to the superior court, agreeably to the provisions of the eighth section of chapter one hundred and seventy-two of the revised statutes, [the twenty-sixth section of this chapter,] the superior court, in addition to the powers now The first clause of this section is a repealing clause, merely abolishing the old terms of the superior court, and we have therefore left it out. |