VIII.

TRIAL AND JUDGMENT.

Section 1. Where the pleadings in an action present both issues of law and of fact, the issues of law must be first tried, unless the court otherwise directs.

Sec. 2. If some, but not all, of the issues in a cause are put to the jury, the remaining issue or issues shall be tried first, unless the court otherwise direct.

Sec. 3. The court may, upon motion, for special cause, order a separate trial between the plaintiff, or one or more of several plaintiffs, and the defendant, or one or more of several defendants.

Sec. 4. An admission of the existence and due execution of a document, in the manner provided for in section 1045 of the General Statutes, shall not be deemed to waive any just exceptions to its competency or relevancy, but shall, unless otherwise expressed, be deemed to include an admission of its delivery, and that it has not since been altered.

Sec. 5. Where a complaint embracing matters calling for both equitable and legal relief is tried to the jury, either by agreement of the parties or order of court, under section 1031 of the General Statutes, the court may render such judgment, not inconsistent with the verdict, as it may deem proper, either for legal or equitable relief, or both.

Sec. 6. Upon a default the plaintiff can have no greater relief than that demanded in his complaint, but in any other case the court may, in its discretion, upon a proper amendment, grant him any other relief consistent with the case made on the trial and embraced within the issue.

Sec. 7. In all cases not pending before a justice of the peace, whether the relief sought be legal or equitable in its nature, judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants. and the court

may determine the ultimate rights of the parties on each side as between themselves, and grant to the defendant any affirmative relief to which he may be entitled.

Sec. 8. Where legal and equitable matters or claims for relief, arising out of the same transaction, or transactions connected with the same subject of action, are joined in the same complaint, or where any pleading setting forth a matter which, before the adoption of the act, would have been cognizable only at law, is met by setting up some equitable matter, either by itself or in connection with a legal defense, the costs upon the whole case shall be at the discretion of the court; but, where legal and equitable causes of action which are wholly unconnected with each other are joined in the same complaint, the costs upon the judgment on the equitable causes of action only shall be discretionary.

IX.

RULES OF CONSTRUCTION.

Section 1. Nothing in these rules shall be construed as giving justices of the peace jurisdiction over any equitable cause of action or defense.

Sec. 2. The word "may," as used in stattutes regulating procedure in civil actions or in these rules, shall in no case be construed as imperative.

Sec. 3. The forms heretofore promulgated for use under the practice act may be used, and shall be deemed sufficient, in all cases to which they are applicable, subject to the right of the party to amend, and of the court to order fuller or more particular statements, under section 880 of the General Statutes.

Sec. 4. Statutes regulating procedure in civil actions shall be favorably and liberally construed as remedial statutes, and shall not be affected by the doctrine that statutes in derogation of the common law are to be strictly construed.

APPEARANCE OF PARTIES.

Section 1. The attorney of the plaintiff, or, if there be no attorney, the plaintiff himself, shail enter his appearance by causing his name to be entered upon the docket on or before the opening of the court on the day following the return-day of the writ, and, if no such appearance shall be entered, it shall be lawful for the clerk, upon the appearance of the defendant, as hereinafter specified, to enter up judgment of nonsuit against the plaintiff. The attorney of the defendant, or, if there be no such attorney, the defendant himself, shall in like manner enter his appearance on or before the opening of the court on the second day after the return-day of the writ; and on failure thereof it shall be lawful for the clerk, if the plaintiff shall have appeared as aforesaid, to enter up judg ment against the defendant: provided, that nothing herein contained shall be construed to prevent the court, in the exercise of its discretion, from allowing an appearance of either party, for reasonable cause, at any subsequent period.

Sec. 2. An appearance for the plaintiffs or the defendants, as the case may be, where there are several, shall be deemed to be a general appearance for all of them, unless stated to the clerk to be for one or more only, and so entered on the docket.

II.

SHORT CALENDAR AND TRIAL LISTS.

Section 1. The clerks of the superior court in their respective counties shall keep two separate lists of cases claimed: First, a short-calendar list; second, a trial list. Cases in which the pleadings have terminated in an issue or issues of fact, decisive of the merits of the case, or issue of fact to the jury, and hearings in damages on defaults and demurrers overruled, shall be placed on the trial lists, and no others. All other cases, including questions as to the terms or form of a decree or judgment to be rendered on the report of a committee or auditors or award of arbitrators; pleas in abatement, where the issue is closed to the court; foreclosures, where the only question is as to the time to be limited for redemption; and uncontested divorce cases; and all issues of law, may be placed on the short-calendar list. During the sessions of the court for civil business the uncontested divorce cases shall be placed at the foot of said lists, and heard in their order thereon.

Sec. 2. Any party to a case desiring the same placed upon either of said lists shall give written notice of such desire to the clerk, and if the same is claimed for the short-calendar list such notice shall be given at least forty-eight hours before the opening of the court on short calendar-day. Such written notice shall, if the case is claimed for the short-calendar list, specify the particular motion or kind of order, decree, judgment, or other action of the court to be asked for. When such notice is given to the clerk, the clerk shall note thereon the time when it was received by him. If any case is claimed as privileged the notice must so state, and give the ground of such privilege. The clerk shall at once, and before said case is placed on the list, give written notice by mail or otherwise to each of the attorneys appearing in said cause that such case has been claimed.

Sec. 3. If, in the opinion of the court, no sufficient notice has been given to any party interested that the case has been claimed, the case or matter will be postponed, or stricken from the list, or otherwise disposed of, at the discretion of the court.

Sec. 4. Cases may, by special order of the court, be placed upon either or both lists for the trial or disposition of any matter. Any case improperly placed upon either list will be stricken off by the court.

Sec. 5. Cases claimed for the short-ca:endar list shall be placed by the clerk on said list in the order in which they shall be claimed. Privileged cases shall be placed at the head of the trial list in the order of their privilege, the ground of privilege being stated. All other cases claimed for the trial list six days before the opening of a session of the court shall be placed by the clerk on said list in their order on the docket; and cases claimed for said list later than six days before the opening of the session shall be placed thereon in the order in which they are claimed.

Sec. 6. Cases on the trial list in which an issue of fact is joined to the jury will be so indicated by the addition of the word "Jury" by the clerk.

Sec. 7. All motions must be placed on the short-calendar list when practicable, and no motions will be heard which are not on said list and which ought to have been placed thereon: provided, that any motion in a case on trial, or assigned for trial, may be disposed of by the court, at its discretion, or ordered upon the short-calendar list, on terms or otherwise.

Sec. 8. Cases upon both of said lists shall stand for trial in the order of their respective

lists, subject to the order of privilege that may exist by statute, rule of court, or practice, and to the special order of the court.

Sec. 9. A day will be fixed by the judges prior to the opening of each session of the court, on which day a judge will be present at the court-room to dispose of cases on the short-calendar list, and make assignments from the trial list for days. If no judge is in attendance at the time fixed, the bar shall meet at said time, and make such assignments.

Sec. 10. The cases standing on the shortcalendar list shall stand assigned for disposition for the day fixed by the judges, and, if said short-calendar list shall not on that day be wholly disposed of, the court will, upon adjourned days, proceed with said list at its discretion. When the special matters for which a case is placed upon the short-calendar list have been disposed of, the case will be stricken from said list.

Sec. 11. No assignment for trial shall be made of cases on the trial list in which the pleadings are not closed on the issue to be tried.

Sec. 12. When the court is in session the judge will assign cases standing on the trial list for particular days.

Sec. 13. Matters on the short-calendar list may, by agreement of the parties, be heard and disposed of by any judge of the superior court in any county, who shall certify his decision to the clerk.

Sec. 14. Days upon which short-calendar lists will be taken up, and the beginning of sessions for the disposition of matters on the trial list, will be fixed at the annual and special meeting of the judges, and a judge will then, and at such further times and places as may be fixed by adjournment, be in attendance to dispose of cases and matters upon said respective lists. Special sessions will be held from time to time when necessary and practicable, upon application therefor to the chief justice.

Sec. 15. One of the judges will, from time to time, notify the several clerks of the times and places of holding court fixed by the judges, and of the time and place of beginning of special sessions, and the several clerks shall print and distribute among the members of the bar of their respective counties, and among those appearing in the cases, and also post and keep posted conspicuously in their offices, a full list of the times and places when and where terms and sessions are to be held. Sec. 16. Before the beginning of every session the clerk shall print and distribute among the bar of the county, and those appearing in the cases on said list, a list of the causes on the trial list, and during the session of court at intervals of every two weeks, if any cases are claimed for the trial list, shall so print and distribute a list of such additional cases as may be claimed during such interval; and when cases are assigned for days the clerk shall so print and distribute a list of the cases so assigned.

Sec. 17. During sessions of court for the trial of cases, the short-calendar will, in the absence of special order, be taken up at 10 A. M. on Fridays, and at the same hour on other short-calendar days. In counties where the law provides that the superior court shall be held in more than one place in such county, separate trial lists will be kept for each of said places. There will be but one shortcalendar list in each county.

III.

PRIVILEGED CASES, ASSIGNMENTS, AND CALLING THE DOCKET.

Section 1. The following classes of cases, in the order in which they are hereinafter arranged, shall be deemed to be privileged in respect to their assignment for trial in the superior court:

1. All actions privileged by statute, namely:

1. Writs of habeas corpus.

2. All civil actions, except upon probate bonds brought by or on behalf of the state, including informations on the relation of a private individual. Gen. Stat. sec. 1112.

3. Appeals from probate, and from the doings of commissioners appointed by courts of probate. Gen. Stat. sec. 1113.

4. Actions brought by receivers of insolvent corporations, by order of the court by which such receivers were appointed. Gen. Stat. sec. 1113.

5. Foreclosure petitions by bondholders under railroad mortgages. Gen. Stat. sec. 3573.

6. Applications for removal of mortgage trustee of railroad. Gen. Stat. sec. 3577.

7. Writs of error in cases of summary process. Gen. Stat. sec. 1113.

8. Any objections made to the acceptance of the report of a committee, or auditor, or award of an arbitrator. Gen. Stat. sec. 1113.

9. Complaints to enjoin nuisances occasioned by factories. Gen. Stat. sec. 1278.

10. Proceedings in rem for the seizure of intoxicating liquors. Gen. Stat. sec. 3086. 11. Complaints to alter bounds of drain companies. Gen. Stat. sec. 2036.

12. Appeals from boards of relief. Gen. Stat. sec. 3862.

13. Contested divorce cases. Gen. Stat. sec. 2805.

II. Motions to dissolve temporary injunctions.

III. Motions for temporary injunctions.
IV. Writs of ne exeat.

V. Writs of mandamus. VI. Complaints for appointment of a receiver.

VII. Disclosures by garnishees. VIII. Writs of error.

IX. Hearings to the court in damages, on default or demurrer overruled.

Sec. 2. All causes assigned for trial on a specified day will be considered as assigned for the opening of the court on that day, at

which time the parties must be ready for trial. The court, in its discretion, may proceed to the trial of either of said causes, but, without satisfactory reasons to the contrary, such causes will be called for trial in the order in which they stand on the list of assignments.

Sec. 3. The state's attorney in each county shall give to the clerk of the superior court in such county, at least six days before any session of the superior court therein, written notice of the day of said court on which he will begin the trial of criminal causes; and, so far as he is able, shall at the same time file with said clerk a list of said causes, arranged by days, in the order in which he proposes to try the same.

Sec. 4. In each county, during the last term or session prior to the month of July in each year, the judge shall, upon some day of which sufficient notice shall have been given to counsel, call the docket, and discontinue or otherwise dispose of such untried cases thereon as have been pending one year, and cases in which there is default of appearance, unless cause be shown for the continuance of such cases.

Sec. 5. The judge shall cause the clerk to prepare printed lists of all cases so discontinued, and to mail a copy of the same to all counsel interested; and shall fix a day to hear motions to restore any of said cases to the docket, notice of which shall be printed upon said lists.

IV.

ATTORNEYS.

Section 1. No more than one counsel on

each side in the superior court shall be heard on any question of evidence, or upon any interlocutory motion or plea in abatement.

Sec. 2. The counsel who commences the examination of a witness, either in chief or on cross-examination, must alone conduct it; and no associate counsel will be permitted to interrogate the witness.

Sec. 3. The counsel in support of a demurrer, a writ of error, an appeal to the supreme court of errors, or a motion in arrest of judgment, or in support of the affirmative of an issue of fact, will be entitled to begin the trial, and to open and close the argu

ment. Where several issues are to be tried

together, as to some of which the plaintiff

and as to others the defendant has the affirma

tive, the court shall determine, in its discretion, which party shall open and close.

Sec. 4. On the trial of criminal causes, the state's attorney, in his preliminary statement, will not be permitted to state facts and circumstances enforcing the guilt of the accused, but will confine himself to such general facts and explanations as may be necessary to enable the jury to understand the relevancy and application of the evidence which he expects to introduce.

Sec. 5. The attorneys' bills due to the clerks of the superior court and of the supreme court of errors must be paid during

the same session of the court at which they become due. No attorney who shall neglect the payment of his clerk's bill as aforesaid will be permitted to enter his name on the docket, or appear as an attorney or counsel or for any party, at a subsequent term, until such bills shall be paid.

Sec. 6. In causes in which there shall be an appearance by attorney for the defendant in the superior court, the plaintiff may at any time require such attorney to state to the court whether he has satisfactory reasons to believe, and does in truth believe, that there exists a bona fide defense to the plaintiff's action, and whether such defense will be made, together with the nature or substance of it, and whether there will be a trial in such cause; and if such attorney shall refuse to disclose as required, or shall not satisfy the court that such defense will be made or such trial had, the court may order judgment to be entered for the plaintiff.

If such attorney, upon such inquiry, shall intentionally mislead the court, or shall make a false statement with a view to procure the continuance or postponement of said action, the court may suspend him from practice as an attorney in said court for such time as it shall deem proper.

V.

FAILURE TO COMPLY WITH ORDER OR RULE.

If a party fails to comply with an order or rule, he will be nonsuited or defaulted, and, upon motion to set aside such nonsuit or default, the court may grant the motion, upon compliance with such terms as the court may impose.

VI.

BILLS OF EXCEPTIONS.

No bill of exceptions will be allowed in the superior court, except in cases where an adequate remedy is not afforded by an appeal.

VII.

BILLS OF PARTICULARS.

Section 1. Bills of particulars may be amended, by leave of the court, in the same manner and upon the same terms as com

plaints are amendable by law.

Sec. 2. In all actions upon contract, when damages are to be assessed upon a judgment by default, the plaintiff must file an account, copy, statement, or bill of particulars, verified by oath, unless the court shall dispense with the same.

VIII.

BONDS FOR PROSECUTION.

Bonds given for the prosecution, or upon appeal of an action, or as special bail, may be changed or renewed, and other bonds taken in lieu of them by the superior court, for reasonable cause.

IX.

COMMITTEES AND AUDITORS.

When any suit shall be referred to a committee or auditor, no trial of the same will be had by the court unless upon the agreement of the parties or by an order of court said reference be revoked. In case a suit so referred be not heard by said auditor or committee before the next session of the court, said auditor or committee will be reappointed without a formal motion by either party; and the clerk may make the necessary entries therefor without any special order from the court.

X.

CONTINUANCES.

Whenever a motion is made for the continuance of a cause on account of the absence of a material witness, such motion, if the adverse party require it, shall be supported by an affidavit, stating the name of the absent witness, if known, and the particular facts which, it is believed, can be proved by him, with the grounds of such belief. The court, in its discretion, may refuse to continue such cause if the adverse party will admit that the absent witness would, if present, testify to the facts stated in the affidavit, and will agree that the same shall be received as evidence on the trial in

like manner as if the witness were present and had testified thereto. Such agreement shall be made in writing, at the foot of the affidavit, and signed by the party or his attorney.

The same rule shall apply where the motion is grounded on the want of any material document or other evidence that might be used on the trial.

XI.

COPIES.

Section 1. In trials in the superior court the court may require a copy of the pleadings, at the opening of the trial, to be furnished, for the use of the judge, by the plaintiff or by the appellant, if the action come into said court by appeal. Such copy shall be either written or printed, as the court may direct; and the necessary expense thereof shall be taxed by the court, in favor of the party furnishing the copy, if a judgment for costs is eventually rendered in his favor.

Sec. 2. No copy of a record upon which a writ of error shall be pending will be taxed in the bill of costs on such writ, unless such copy shall become necessary by reason of a defense of nul tiel record.

XII.

COSTS IN CIVIL ACTIONS.

Section 1. If the party taking an appeal to the supreme court of errors shall neglect to carry it forward, and shall not give notice

to the opposite party at least twelve days before the session of said court that it will not be pursued, he shall pay costs in the same manner as if it had been carried forward and withdrawn before trial.

Sec. 2. The mileage or travel of witnesses residing out of the state will be computed and taxed from the state line on the usual course of travel.

Sec. 3. Mileage fees for only one travel at the same term will be taxed for the same witness in the same cause, except upon terms previously approved by the court.

Sec. 4. If a witness be in attendance in more causes than one, between the same parties, at the same time, and on behalf of the same party, his fees for travel and attendance will be taxed in one cause only.

Sec. 5. If witnesses, having been duly summoned, attend as witnesses, but are not called to testify, their fees will be taxed in the bill of costs, if it appears to the court that they were summoned in good faith, and with the expectation of using them, and if their testimony would have been admissible.

Sec. 6. Whenever, in any action, there shall be two or more issues joined on material allegations, and a part of such issues shall be found for the defendant, and the remainder for the plaintiff, the defendant shall recover such costs as were incurred by him upon the issues found in his favor, including fees of witnesses and the expense of summoning them. If several distinct claims be made under one count, and the plaintiff shall recover upon some, and not upon others, he will not recover costs incurred in attempting to enforce the claims which he shall fail to establish.

Sec. 7. When costs are awarded to both parties, as before provided, in the same suit, the court, upon motion of either party, may order a set-off of the same, and issue execution only for the balance.

Sec. 8. If an executor, administrator, or trustee upon an estate represented insolvent shall appeal to the superior court from the report of commissioners in allowing a claim to a creditor of such estate, and such claim on appeal is not allowed, the executor, etc., will recover costs against the creditor. But if such creditor shall prevail on the appeal, and recover as large a sum in the superior court as was allowed to him by the commissioners, and in all cases where a creditor shall appeal from the doings or report of the commissioners on such an estate in disallowing his claim against the estate or any part of it, and shall recover or be allowed in the superior court a greater sum than was allowed to him by the commissioners, the costs on appeal will be taxed in his favor against the estate.

Sec. 9. If any creditor of such an estate shall appeal to the superior court from the doings or report of the commissioners in allowing the claim of any other creditor, costs, at the discretion of the court, may be taxed