The amendment is the addition of the words in italic.

a. The section before amendment, was identical with section 213 of the code of 1848. That section was held not to have changed the practice as to taking inquests at the circuit, and that an affidavit of merits was still necessary, to prevent an inquest. Dickerson v. Kimball, 1 Code Rep., 83; James v. Russell, 3 Pr. R., 324; 1 Code Rep., 113; Sheldon v. Martin, 1 Code Rep., 81; Anderson v. Hough, 1 Code Rep., 50; 1 Sand., 271. And it was no good reason for dispensing with an affidavit of merits, that the answer was verified by affidavit. Ib.

b. In the superior court an inquest cannot be regularly taken on the first day of a trial term, unless the action is regularly called on that day upon the calendar. Smith v. Brown, 1 Duer, 665. The 12th of the Supreme Court Rules applies to the superior court.

c. As to the affidavit to prevent an inquest, it must, in general, be made by the defendant himself; in his absence, however, it may be made by his attorney or counsel (11 Johns. R., 82). But in such case, it must contain a sufficient excuse for not being made by the defendant; 2 Cowen, 581. 1 Pr. R., 62. The substance of the ordinary affidavit is, that the defendant has fully and fairly stated the case to his counsel, giving the name and residence of such counsel (rule 36), and that he has a good and substantial defence on the merits thereof, as he is advised by his said counsel, after such statement made as aforesaid, and verily believes to be true. 5. Johns. R., 335; 16 Ib., 3. The language of the affidavit should strictly conform to the rules of court; otherwise, it may be treated as a nullity at the circuit. 2 Hill, 359. An affidavit, that the party has fully and fairly stated "this case," or "his case," to counsel, fairly implies that he has stated the whole case, and is a sufficient compliance, in that particular, with the rule. Jordan v. Garrison, 6 Pr. R., 6. But an affidavit that he has stated his "defence" to counsel, only implies that he has stated one side of the case, and is, therefore, insufficient. 22 Wendell, 636; 2 Hill, 359; Richards v. Swetzer, 1 Code Rep., 117; Tompkins v. Acer, 10 Pr. R. 310. So, au affidavit that the defendant has fully and fairly stated "the facts of his case," &c., is insufficient. 1 Hill, 644. And an affidavit which alleged that the defendant had stated "his case in this cause," was held insufficient. Ellis v. Jones, 6 Pr. R., 296. Nor will it do to qualify the requisition of the rule, by adding, "so far as the facts have come to defendant's knowledge," unless a sufficient excuse be shown. 19 Wendell, 617. An affidavit that the defendant has a "defence, &c., to the plaintiff's declaration filed in this suit," &c. (1 Pr. R., 68), or "to the bond," &c., or "a defence in the action," without stating "on the merits" (4 Hill, 534; 5 Pr. R., 14), has been held bad. So, where the person described as counsel, in the affidavit, was not, in fact, a counsellor of this court, although an attorney, the affidavit was insufficient. 1 Pr. R., 74.

d. Where a maker and endorser of a note are sued in one action, an affidavit of merits by the maker will not prevent an inquest against the endorser, unless it appear that the defence of both is identical. 19 Wend., 125. And where several suits are brought against the maker and endorsers of the same note, an affidavit of merits to set aside an inquest in all the causes, may be made by the maker, if he be acquainted with the facts, and the defence be the same in all the causes. 6 Cowell, 395. Having drafted the affidavit, make two copies, and endorse them properly. Let one be sworn to and filed in the office of the clerk of the circuit in which the cause is to be tried, and serve the other (with a notice endorsed, of the original being on file) upon the plaintiff's attorney, on or before the first day of the circuit. 15 Johns. R., 536. One affidavit of merits to prevent an inquest is sufficient, though the cause be several times noticed for trial and inquest. (6 Cowen, 45). And if filed, and served on a plaintiff's attorney, for a circuit in one county, it has been held sufficient, though the venue be afterwards changed to another county, and the cause be tried in the latter. Ib. But an affidavit of merits, made and used for one purpose in a cause, cannot be used for another: e. g., an affidavit to change the venue will not be received as the foundation of a motion to set aside a default for want of a plea. (2 Hill, 409.) And a verified answer was held not to be sufficient to pre

a. Where the answer consists only of new matter constituting a counter claim, no affidavit of merits is necessary or proper. Potter v. Smith, 9 Pr. R., 262. See further in note to Rule 12, Supreme Court Rules.

b. "The circuit as now constituted has jurisdiction, not to try a cause merely, but to render a judgment, whether of dismissal or otherwise, as the case (in the opinion of the judge) may require." Moffatt v. Ford, 14 Barb., 577. A cause was reached at the circuit, and called on for trial by the defendants; whereupon the

vent the taking of an inquest in the cause at the circuit, out of its order on the calendar. Ib. 1 Code Rep., 81, 113; 1 Pr. R.. 166. Under the former practice it was said that an affidavit to prevent an inquest sometimes might, and at other times should, be served in a different manner from what is required in relation to other papers. At the circuit, if the plaintiff's attorney was not present, it might be delivered to the counsel having the cause in charge. If not delivered at the circuit, it should be served in such a way that it will probably come to the knowledge of the attorney in season to enable him to communicate with the counsel before the inquest is taken. Accordingly, when the affidavit was served on the second day of the circuit, by leaving it at the office of the plaintiff's attorney, no one being in at the time, and he took the inquest a few moments afterwards, but without knowing that the affidavit had been served, his proceedings were held regular. 6 Hill, 368.

c. An inquest taken before the defendant's time to amend his answer expires, will be irregular, if the defendant afterwards in good faith and in due time serves an amended answer. Washburn v. Herrick, 2 Code Rep., 2.

d. Where the defendant omitted to serve an affidavit of merits and did not appear, after the discharge of the jury the plaintiff took an inquest without a jury, and it was held to be irregular, and that it should have been taken before the jury were discharged. Dickinson v. Kimball, 1 Code Rep., 83; Hines v. Davis, 6 Pr. R, 118; 1 Code Rep., N. S. 407.

e. A party who has taken an inquest regularly is not bound to waive it, he may put the adverse party to his motion. Smith v. Howard, 12 Wend., 128. f. Where the cause is called in its order the defendant may appear and defend, although no affidavit of merits be filed. Starkweather v. Carswell, 1 Wend., 77. g. An inquest may be taken on any day after the first day of the circuit, immediately after the opening of the court (Rule 12), but not after the trial of a litigated cause has commenced. Nichols v. Chapman, 9 Wend., 451.

h. Where the complaint demanded judgment for $114 10, the answer with other defences set up a counter-claim of $40. There was no reply. The cause was noticed for trial and no affidavit of merits having been served, the plaintiff took an inquest, and judgment for the whole amount of his claim, making no allowance for the counter-claim. On motion to set aside the judgment, it was held that as there was no reply the counter-claim was admitted, and could not be disputed on the trial; and the plaintiff, upon the inquest, was bound "to allow the counter-claim as it stood admitted on the record, and that it was irregular for him to disregard it and take judgment for the amount claimed in his complaint." Potter v. Smith, 9 Pr. R., 262.

i. Upon an inquest, the defendant has a right to appear, and cross-examine the plaintiff's witnesses; but he cannot prove a defence by them, nor examine witnesses on his own behalf. He may, however, object to the plaintiff's evidence, and except to the judges opinion as in ordinary cases. So, the plaintiff may be nonsuited if he fail to make out his case. Willis v. Green, 1 Wend., 78; Hartness v. Boyd, 5 Ib. 563.

j. An inquest regularly taken will not be set aside, where it appears that the answer was insufficient or frivolous. Hunt v. Mails, 1 Code Rep., 118.

k. On setting aside a regular inquest, defendant was put under terms of withdrawing a plea of the statute of limitations. Fox v. Baker, 2 Wend., 244.

1. Where a cause is noticed for trial by both parties, the plaintiff need not, it is presumed, file an affidavit of a good cause of action to prevent the defendant moving the cause out of its order on the calendar, and taking a dismissal of the complaint. Regan v. Priest, 5 Denio, 163.

plaintiff applied for a postponement, which was denied. He then gave notice of discontinuance, and made a tender of costs; ten days afterwards, but, during the same circuit, the judge at the circuit made an order dismissing the complaint with costs and directing an extra allowance,-held that the judge had jurisdiction to make such order. Ib.

4. Where parties proceed to trial before a jury without objection to the manner in which such jury was empanelled, it is too late after verdict to make such objection. Dayharsh v. Enos, 1 Selden, 531; Mayor of New York v. Mason, 1 Abbott, 352.

b. In the case of Burnham v. De Bevoise (8 Pr. R., 159), there were many defendants. Two of the defendants, after putting in an answer denying all the material allegations of the complaint, moved for judgment on the ground that the complaint did not contain a cause of action. Barculo, J., said, "The view that I take of the principal question, renders it unnecessary for me to consider what I conceive to be the highly objectionable if not irregular practice of allowing two (of several) defendants to bring on the case for argument, while there are thirty others who, by the same rule, may make thirty more arguments of a matter which is common to all, and decisive of all their rights. The old rule requiring an issue of law or fact to be joined in regard to every defendant, except those who are defaulted before the cause could be brought to argument, has never to my knowledge been abrogated; and as long as legal proceedings retain any degree of consistency and symmetry, it never can be disregarded."

c. "I hold it to be correct practice at the circuit to lay out of the cause all the irrelevant allegations as well as the immaterial issues contained in the pleadings, and hold the parties to trial upon the material issues or points in the case, and if the complaint does not contain a good cause of action, or the answer does not contain a defence, I direct judgment accordingly." Barculo, J., Fox v. Hunt, 8 Pr. R., 13.

d. Evidence offered in support of immaterial issues may be rejected on the trial, although not objected to by either party. Corning v. Corning, 2 Selden, 97; and per Jewett, J. "It would be a reproach to the administration of justice to require the court to try such issues of fact as are wholly impertinent and foreign to the merits of the case between the parties, because the parties should from any motive think proper to present them by their pleadings." Ib.

e. In an action for an assault under a general denial the defendant may on the trial give evidence in mitigation. Semble, Corning v. Corning, 2 Selden, 103.

f. Facts constituting a defence by tending to show the plaintiff never had any cause of action, cannot be given in evidence on the trial under a general denial, nor unless such facts are alleged in the answer. Semble, Catlin v. Gunter, 1 Duer, 265.

g. It rests wholly in the discretion of the judge who tries a cause whether or not he will permit the pleadings to be read to the jury (Willis v. Forrest, 2 Duer, 310); and when the issues raised upon the pleadings are irrelevant or immaterial, the judge is not bound to submit them to the determination of the jury, and may therefore withhold from the jury the pleadings in which they are contained. Ib.

h. In an action against the several parties to a bill or note, jointly under the act of April 25, 1832, if the trial was put off by any of such parties [or if one of them filed an affidavit of merits, 19 Wend., 125], the plaintiff night proceed to trial or inquest against the others, in the same manner as if the suit had been commenced against such other parties only, and the action was thereby severed. Laws of 1835, p. 248, s. 2. But unless the trial was so put off, the plaintiff was not at liberty to sever the action as between two defendants who had pleaded, and proceed to trial or inquest against one only. 4 Hill, 563. Nor can the action in any case be severed as to the joint makers of a note or bill, and judgment taken against one of them, without the other, whether they be sued jointly with endorsers or not. Id. 35.

i. The plaintiff will also be allowed to sever the action after verdict, and proceed to judgment against one of the defendants, not being a joint contractor, when an obstacle is interposed by another defendant. See 19 Wend., 118.

See notes to section 252, 256, and 274.

a. Does this section apply to trials before a referee? In Holmes v. Slocum (6 Pr. R., 219), Johnson, J. says, "This section clearly has no reference to a trial before a referee." The contrary was held by Allen, J., in Williams v. Sage (1 Code Rep., N. S., 359). In Matthews v. Jones (1 Smith, 432), Woodruff, J., says, "The 258th section, which alone is relied upon as warranting a dismissal of the complaint in the absence of the defendant, is expressly qualified by providing for, and to my mind plainly contemplating, the presence and discretion of the court; thus, either party giving the notice may bring the issue to trial, and in the absence of the adverse party, unless the court for good cause otherwise direct, may proceed and take a dismissal of the complaint. Surely this has no application to a trial before referees not conducted in the presence of the court, nor under circumstances in which the court can give any direction in the matter. But it is said the referees for this purpose are to be deemed the court. Not so. The distinction between the court and the referees is kept up throughout the code."

b. The now 22d rule of the supreme court which, as amended in 1852, provides that on a hearing before referees plaintiff may be non-suited, or his complaint be dismissed, in like manner as upon a trial.

See notes to sections 256 and 274.

§ 259. [214.] (Amended 1851.) Court to be furnished with copy pleadings, &c.

When the issue shall be brought to trial by the plaintiff he shall furnish the court with a copy of the summons and pleadings, with the offer of the defendant if any shall have been made. When the issue shall be brought to trial by the defendant, and the plaintiff shall neglect or refuse to furnish the court with a copy of the summons and pleadings and the offer of the defendant, the same may be furnished by the defendant.

c. Before amendment this section was as follows: The plaintiff shall furnish the court with a copy of the summons and pleadings, with the offer of the defendant, if any shall have been made.

§ 260. [215.] (Amended 1849.) General and special verdicts defined.

A general verdict is that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defend ant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court.

d. A special verdict must state the facts proved, not the evidence given to prove the facts. 5 Hill, 634; 4 ib., 171. And see Sisson v. Barrett, 2 Coms. 406.

e. It is an established rule that in deciding on special verdicts, the court cannot pass on any fact not stated or derivable from the facts appearing by such verdict. Williams v. Jackson, 5 Johns. R., 502.

§ 261. [216.] (Amended 1849.) When jury may render either general or special verdict, and when court may direct special finding.

In an action for the recovery of specific personal property

if the property have not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property, and if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention, or taking and withholding such property.

In every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing upon all or any of the issues; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk and entered upon the minutes.

a. The provisions of the revised statutes as to the form of the verdict in ⚫jectment must be considered as modified by this section. If the plaintiffs collectively are entitled to the whole of the property claimed, then a general verdict for the recovery of the whole property would be sufficient. If only a moiety belonged to them, collectively, a general verdict for such moiety would be proper. Wood v. Staniels, 3 Code Rep., 152.

b. In actions to recover the possession of personal property, and damages for its detention, a general verdict is proper:

1st. Where there has not been a delivery of the property to the plaintiff, and the answer does not deny the value of the property claimed to be as stated in the complaint;

2d. Where the property has been delivered to the plaintiff, and the answer does not claim a re-delivery. Archer v. Boudinet, 1 Code Rep. N. S., 372.

c. Where the value of property is stated in the complaint, and not denied by the answer, the jury cannot with propriety find the value of the property to be other than that stated in the complaint. If in such a case the jury omit to pass on the value of the property, the court may decide on the value, for the purpose of making an allowance in addition to costs. 1b.

d. The verdict should comprehend the whole issue or issues submitted to the jury, otherwise the judgment on the verdict will be subject to be reversed. 1 Ld. Raym., 324; 3 Salk., 372; 5 Ohio R., 227, 259; 6 Ib., 521; 9 Ib., 131; 21 Wend., 90, 19; 13 16., 425; 6 Ib., 272; 3 lb., 667.

e. In case of several issues, the jury may find some for the plaintiff and some for the defendant. 1 Arch. Pr., 213. So in an action in form ex delicto against several defendants, the jury may find one guilty and acquit another. 1 Cow., 322; 14 Johns. R., 166; 2 Ib., 382. As to a separate acquittal of one defendant in order to make him a witness for his co defendant, see 3 Hill, 104; 4 Ib., 549; 6 Ib., 583; 6 Ohio R., 144.

f. The jury can in no case give damages for an amount exceeding the amount claimed by the complaint, and it is the duty of the clerk, if the jury find a verdict for greater damages, to enter it for the amount claimed merely. If, however, entered