reverse the judgment alone; but if there be no error in the trial or verdict, the record is to be remitted, to the end that a proper judgment may be proeounced. Such act being passed after conviction and before sentence or judgment on the prisoner it applied to the case, and required the appellate court, on determining that the original judgment was erroneous (the conviction being legal), to remit the case to the oyer and terminer, with directions to pronounce the proper judgment, instead of discharging the prisoner.

In Young agt. Brush, 18 Abb., 171, Court of Appeals, Janunry, 1864, and again Supreme Court, General Term, September, 1861, LEONARD, J., it was decided, that a judgment of the court of appeals ordering a new trial, is not a final judgment in the action; and where the appellate court directs a new trial, restitution will not be directed unless the remittitur contains such direction, or the judgment is reversed for such reasons as would preclude the plaintiff from succeeding in such new trial.

In People agt. Supervisors of Richmond, 28 N. Y. R., 112, September, 1863, MARVIN, J., it was decided that where, upon application for a peremptory mandamus, to compel supervisors to audit, damages assessed in such case, the material issues are found in favor of the plaintiff, the judgment should be that a peremptory mandamus issue to the board of supervisors commanding them to audit the claim as commanded in the alternative writ. A direction to the jury to render a verdict for the relator for the amount of the damages assessed, and the interest thereon as damages, is erroneous. But on appeal to this court, from such a judgment, the facts being before the court, it may modify the judgment by reversing it as to the sum assesssed as damages, and affirming it as to the interest allowed as damages, and directing that the judgment be so amended as to grant to the relator the writ of mandamus without delay.

In Walters agt. The People, 19 Abb., 212, Special Term, June, 1865, INGRAHAM, J., it was decided that where, after sentence in a criminal case in the court of sessions, the judgment is reviewed upon writ of error, and affirmed in the court of appeals, and the day for execution fixed by the sentence has passed, it is competent for the court of appeals, in remitting the record, to direct the court of sessions to sentence the prisoner anew. This may be done as well by remitting the proceedings to the supreme court, with directions to that court to remit them in turn to the court of sessions, as by remitting them to the court of sessions in the first instance. The court of sessions, after the affirmance of judgment, have power to pass a full sentence anew, if the day fixed by the original sentence of execution has passed.

In Mason agt. Ring, 19 Abb., 405, N. Y. Superior Court, General Term, May, 1863, ROBERTSON, J., it was decided that the plaintiff having recovered a judgment setting aside a conveyance made by him of certain lots of land, and requiring the defendant to reconvey them to him, the defendant appealed, and executed and deposited with the clerk of the court a deed thereof, as security to abide the event of the appeal; and also stipulated with the plaintiff that any taxes, &c., paid by the latter should be a lien in his favor in case he should not ultimately prevail in the action. The court of appeals affirmed the judgment, but directed that the defendant be let in to prove a claim against the plaintiff for services, and that the lands stand as security for such claim, with power to the court below to release all or a part of the lands, or substitute other security, as might be equitable. Held, that this authorized the court below, pending the further litigation, to release and order to be sold sufficient of the land to repay to the plaintiff the taxes, &c., which had been paid by him. Pending the reference in such case to determine the amount due to the defendant, it is not proper to order another reference to ascertain what amount will probably be allowed him, and to release to the plaintiff so much of the land as is not necessary to secure such probable amount. The amount should be ascertained by prosecuting the first reference; and meanwhile the security should not be changed or diminished, unless the plaintiff shows that continuing the existing security is a matter of special prejudice to him.

What is the result of the decisions under this section?

Parties.

1. This court has power to determine what parties ought to be before the court, and, in case of any defect of parties arising after jurisdiction acquired, of remedying that defect. 2. The court may reverse the judgment as to one defendant, and suffer it to stand against another defendant who does not appeal, in cases where a several judgment would be proper.

Judgment on Demurrer.

3. The court will not reverse a judgment overruling a demurrer, where the defect in the

pleading demurred to was formal and technical merely, and should have been amended by the court below.

Part of a Decree.

4. The court can only review those parts of a decree from which an appeal is taken.

7th Rule.

5. The 7th rule of this court applied to appeals pending when the rule was adopted.

Remittitur.

6. Whenever a return has been filed in this court, and an order is made finally dis? posing of the appeal, by dismissal or otherwise, a remittitur is proper.

7. A remittitur is proper where an appeal is dismissed because of a defect in the clerk's return, in omitting to send the record with the bill of exceptions.

8. Where the court dismiss an appeal from an order, leaving an appeal from the judgment undetermined, it is irregular to take a remittitur which sends back the judg ment as well as the order.

9. An order vacating an order dismissing an appeal, under rule 2, where there is no return and no remittitur, leaves the parties in the same position as before the order of dismissal was entered.

10. A remittitur cannot be taken on the dismissal of an appeal under rule 2. There is no return filed in such case.

Jurisdiction Retained after Remittitur Filed.

11. Where an order dismissing an appeal is irregularly or fraudulently entered, this court has jurisdiction to set aside and vacate the order, on motion, although the remittitur has been sent down and filed in the court below.

12. This court have power to correct their own decree or judgment, entered wrong by mistake, although the remittitur has been filed in the court below.

13. Until the court below makes an order formally incorporating the judgment on the remittitur into its own judgment and record, no proceedings can be taken to enforce the judgment of the court below.

Loss of Jurisdiction.

14. Where the remittitur has regularly gone to the court below, and there been filed, the court of appeals has no jurisdiction of the cause.

15. Where the remittitur is regularly sent to and filed in the court below, under an order dismissing the appeal under rule 17, this court has no further control over the

cause.

16. Where the remittitur has been delivered to the prevailing party, with a view to have it filed in the court below, but it is improperly withheld by him from being filed, the court below nevertheless has jurisdiction to proceed in the cause.

17. Where the remittitur has been properly issued by the court of appeals, but has not been filed in the court below, and no order for judgment entered there, and proceedings to enforce the judgment of the court of appeals have been instituted in the court below, the latter court may order the remittitur filed and the order for judgment entered nunc pro tunce

Costs.

18. Where this court dismiss an appeal with costs, after argument on the merits, the court below is bound to suppose they intended the general costs to be taxed. (See 22, forward.)

Waiver.

19. The respondent waives the objection that the return on appeal was not made in time, if he neglects to avail himself of the rule until after the return has been actually made and filed.

Omissions.

20. A motion by respondent to dismiss an appeal, for omissions in the return and copies of the case, will be denied where the omissions are such as might be supplied by the appellant on motion.

Interest..

21. Double interest on the judgments and decrees of this court cannot be allowed; bu. interest thereon once computed.

Judgment on Remittitur.

22. The only power vested in the court below, on filing a remittur from the court of appeals, is to adjudge that the judgment of the court of appeals be enforced as provided by the Code; consequently, where the decision of the court of appeals is that the judg ment of the supreme court be reversed without costs, no costs can be allowed the appellant, either before the surrogate whose decision was affirmed by the supreme court, or in the supreme court.

23. After the filing of the remittitur in the court below, and an order is entered making it the judgment of the court below, the latter court has no authority to go behind that judgment and inquire into its regularity. If any irregularity is complained of, applica tion should be made to the court of appeals to correct it.

24. The court below will not order the filing of the remittitur of the court of appeals to be stayed after it is sent down, in order that an application may be made for a rearga ment in the appellate court, unless upon an order of the appellate court, or one of its judges, directing such stay.

25. The act of 1860 applies to a case where it was passed after conviction of the prisoner for murder and before sentence or judgment pronounced upon him, and the appellate court on determining that the original judgment was erroneous-although for no error in the trial or verdict. must remit the case, (the conviction being legal), with directions to the oyer and terminer to pronounce the proper judgment instead of discharging the prisoner.

26. A judgment of the court of appeals ordering a new trial is not a final judgment in the action, and where the appellate court directs a new trial only, restitution cannot be directed by the court below.

27. This court, having all the facts before them, may modify a judgment upon a peremptory mandamus, against a board of supervisors, by reversing it as to the sum assessed as damages, and affirming it as to interest allowed as damages, and directing that the judg ment be so amended as to grant to the relator the writ of mandamus without delay.

28. After a sentence in a criminal case in the court below, this court review the judgment and affirm it, they have the power, in remitting the record, to direct the court below to sentence the prisoner anew, where the day for the execution of the sentence has passed.

29. This court, on affirming a judgment of the court below, setting aside a conveyance of lands, and directing a reconveyance thereof by the defendant to the plaintiff, love the power to direct that the defendant be let in to prove a claim against the plaintiff for services, and that the lands stand as a security for such claim, with power to the court below to release all or a part of the lands, or substitute other security, as might be equitable.

13. Terms of the Court.

There shall be four terms of the court of appeals in each year, to be held at the capitol, in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the

third Tuesday of June, and the last Tuesday of September, and continued for as long a period as the public interests may require. But the judges of said court may, in their discretion, appoint one of said terms in each year to be held in the city of New York. Additional terms shall be appointed and held at the same place by the court, when the public interest requires it. The court may, by general rule, provide what causes shall have a preference on the calendar. On a second and each subsequent appeal to the court of appeals, or when an appeal has once been dismissed for defect or irregularity, the cause shall be placed upon the calendar as of the time of filing the first appeal, and may be noticed and put on the calendar for any succeeding term; and whenever, in any action or proceeding in which the people of this state, or any state officer, or any board of state officers, is or are sole plaintiff or defendant, an appeal has been or shall be brought from any judgment or order for or against him or them, in any court, such appeal shall have a preference in the supreme court and in the court of appeals, and may be moved by either party out of the order on the calendar.

1. Question. In what years has this section been amended since its passage in 1848? Answer. In 1851, 1852, 1858, 1859, 1862, 1863 and 1865, which last amendment reads as above.

2. Q. How did this section read in 1848, 1851, 1852, 1858, 1859, 1862 and 1863? A. As follows:

§ 13. [1848.] There shall be six general terms in each year, to commence on the first Tuesday of January, March, May, July, September and November, and to continue until the fourth Saturday thereafter, inclusive, unless all the causes ready for hearing be sooner heard. They may, however, be continued as much longer as the court shall deem necessary. Additional terms may also be held, by order of the court.

13. [1851.] There shall be four terms of the court of appeals in each year, to be held at the capitol, in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the third Tuesday

of September, and continued for as long a period as the public interests may require.

Additional terms shall be appointed and held at the same place by the court, when the public interest requires it. The court may, by general rules, provide what causes shall have a preference on the calendar.

13. [1852.] There shall be four terms of the court of appeals in each year, to be held at the capitol, in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the last Tuesday of September, and continued for as long a period as the public interests may require.

Additional terms shall be appointed and held at the same place by the court, when the public interest requires it. The court may, by general rules, provide what causes shall have a preference on the calendar.

13. [1858.] There shall be four terms of the court of appeals, in each year, to be held at the capitol in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the last Tuesday of September, and continued for as long a period as the pulic interests may require.

Additional terms shall be appointed and held at the same place by the court when the public interest requires it. The court may, by general rules, provide what causes shall have a preference on the calendar.

On a second and each subsequent appeal to the court of appeals, the cause shall be placed upon the calendar as of the time of filing the return on the first appeal.

§ 13. [1859.] There shall be four terms of the court of appeals, in each year, to be held at the capitol in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the last Tuesday of September, and continued for as long a period as the public interests may require.

But the judges of said court may, in their discretion, appoint one of said terms in each year to be held in the city of New

York.

Additional terms shall be appointed and held at the same place by the court when the public interest requires it. The