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hundred and sixty-six, or a reference be ordered, as provided in sections two hundred and seventy and two hundred and seventy-one.

§ 254. Every other issue is triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury; or may refer it, as provided in secs. 270 and 271.

§ 255. All issues of fact, triable by a jury or by the court, must be tried before a single judge. Issues of fact, in the supreme court. must be tried at a circuit court, when the trial is by jury; otherwise, at a circuit court or special term, as the court may by its rules prescribe. Issues of law must be tried at a circuit court or a special term, and shall, unless the court otherwise direct, have preference on the calendar.

Certain descriptions of cases must, as above provided, be tried by a jury, unless such trial be waived; but every other issue is made "triable" by the court. The exact force of this word, "triable," and whether it imports a necessity or an option, has been doubted.

In Wood v. Harrison, 2 Sandf. S. C. R. 665, a controversy, strictly equitable in its nature, was tried by a jury, on issues specially prepared by the judge, and submitted to them for their decision; but the general tendency of the decided cases unquestionably runs in favor of all controversies of an equitable nature, being tried by the court alone, without a jury. The practical impossibility of complicated equitable questions being adequately dealt with by the latter, is well demonstrated in the recent case of Wooden v. Waffle, 6 How. 145; 1 C. R. (N. S.) 392.

Under the recent amendments in sec. 258, a 66 a separate trial between the plaintiff and any of several defendants may now be allowed by the court, whenever, in its opinion, justice will be thereby promoted." The limits of this newly-given authority remain to be settled by judicial construction. Numerous cases might be adduced, in which its exercise is likely to be beneficial.

In the event of the absence of a material witness, or any other cause rendering a postponement of the trial necessary, an application may be made to the court, as under the former practice, which remains unchanged in this respect. If the application be made in good faith, and with due diligence, a mere statement of the absence of such witness, and of the reason for such absence, will be sufficient, without entering into any details as to the nature of his supposed testimony.-See Pulver v. Hiserodt, 3 How. 49.



COMPARATIVELY few remarks will suffice for this branch of the subject, separately considered.

The papers necessary to be prepared, for the purpose of bringing on an issue of this description, have already been noticed, under the head of Preparations for Trial. They consist simply of a copy for the court, of the summons and the pleadings on which the issue has been joined. In many cases, however, the preparation and service of points, as on an appeal, would be convenient, though not indispensable. In no case need the papers be printed, under the rules as they at present stand. A default may be taken on a trial of this nature, as well as on that of an issue of fact. See the succeeding chapter on this subject.

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By Rule 14, as recently amended, it is provided that, on the hearing of causes at a general or special term, not more than one counsel shall be heard on each side, and then not more than two hours each, unless the court shall otherwise order.

This Rule seems unquestionably applicable to a trial of this description.

by counsel. This application will be a matter of absolute necessity, unless it be meant to abandon the litigation altogether, or to rest the case exclusively on an appeal from the allowance of the demurrer, without raising any contestation as to the facts.

The application for the above purpose may be made at the time the decision is pronounced, or afterwards, on special motion or order to show cause the former is the more usual course. If the application be made bona fide, the court will rarely refuse it; but it is competent to the adverse party to oppose, and, where the pleading is evidently of a frivolous nature, that opposition may possibly prevail. In cases where a demurrer has been allowed, on the ground of the improper joinder of divers causes of action, spe

cial powers are given to the court to impose strict terms upon the plaintiff, with regard to the proper division of those causes in the amended pleading, as a condition precedent to granting leave to amend. See the last sentence of sec. 172, as amended. The payment of the costs of the demurrer will also generally be imposed, and should be always asked for.

If, on the contrary, a demurrer to the whole pleading be overruled, the opposite party becomes entitled to sign judgment, as of course, unless leave be given to plead over. Where the demurrer has been clearly frivolous or untenable, such leave may be refused. by the court. See numerous cases to this effect, cited in the preceding chapters, and particularly in those on the subject of demurrer, and plaintiff's proceedings on receipt of the defendant's pleading.

Where, however, the demurrer has been taken in good faith, the courts have, as a general rule, been disposed to grant leave to the defendant to plead over. This is, in fact, made the subject of express provision in sec. 172. The imposition of terms is, however, a matter almost of course in such cases; and, if asked for at the time, the court will frequently prescribe conditions as to the nature of the substituted defence-as, for instance, that the statute of limitations should not be pleaded; though, if then omitted, it will be too late to make the same demand at a later period. The court will not, however, be disposed to take the same course with regard to the defence of usury.-Grant v. McCaughin, 4 How. 216.

If leave to amend be granted to the plaintiff, on the one hand, or leave to plead over, to the defendant, on the other; or if the demurrer be only to part of a pleading, leaving other parts of it unaffected, on which a sufficient issue of fact has been raised, the decision of the judge should be entered as an order, and a copy served on the opposite party, in the usual manner; though no further action can be taken on such proceeding, until the remaining issues in the cause have been disposed of. Where the demurrer has been to part of a pleading, and has been allowed, that part becomes a nullity for all further purposes. Where leave is given to amend or plead over, nothing further can be done until the expiration of that period, or of any extension thereof duly obtained; and, if the adversary avail himself of the facilities thus granted in due time, a new issue will be raised, and the former proceedings will become obsolete, except in so far as they control those subsequent, by preventing the matter objected to from being again brought forward.


If, however, on the contrary, the party in default suffer the time allowed him to elapse, without taking the necessary steps, he will be precluded from further amendments, if the demurrer be partial; or, if it be to the whole pleading, the party prevailing will be entitled to sign judgment on such demurrer, in the usual manner, exactly as if leave to amend or plead over had not been asked for; or, if asked for, had been refused. All that will be required for the purpose of signing such judgment, will be proof of the service of the order, and, likewise, that the conditions thereby imposed have not been complied with. On these an order should be applied for ex parte, either that immediate judgment should be entered, or that the opposite party should show cause why such should not be the case; or a notice of motion may be given to the same effect. On the return of this order, or the hearing of the motion, the relief will be as of course, unless the opposite party be prepared with his fresh pleading, and obtain leave to put it in, which he can only do upon special leave, and on payment of all costs, including the costs of the motion.



THESE two proceedings are, in some respects, distinct; in others, analogous. They are distinct, in so far that inquest is an extraordinary remedy, obtainable out of the regular course, and only under peculiar circumstances, and is solely applicable to the trial of issues of fact; whilst default is a regular proceeding, taken in the ordinary march of the cause, and applicable to all trials whatever. The analogy between them, as being both ex parte proceedings, upon the failure of the opposite party to sustain his case, is, however, so close, that they will be most conveniently treated in the same chapter, and in connection with each other.

Where judgment by default is taken, the party taking such judgment must be in readiness in court at the time the cause is called on in its course, and must answer to the call. He must also

be prepared with the notice of trial, and with due proof of service, either by the admission of the opposite attorney, or by affidavit in the ordinary form. If the default be taken on the part of the plaintiff, evidence must be ready to prove the existence of the cause of action, if not admitted upon the pleadings, (in which case no further evidence is necessary ;) and, if the action be upon a promissory note, or other instrument for payment of money, the instrument itself must be in court. A calculation of the amount due for principal and interest, must also, in the last case, be prepared and sworn to. Where, however, unliquidated damages are claimed, the court will order them to be assessed by a jury. If a long account be involved, a reference may either be directed, or, if the account be simple, and the proof of it ready in court, the court may act upon such proof at their discretion, without going through the form of a reference.

The above observations have respect to the taking a default on the part of the plaintiff. If, on the contrary, that measure be taken on the part of the defendant, all that, under ordinary circumstances, will be required, will be the production of the counter notice of trial, and due proof of its service.

The defendant cannot, however, take such judgment as of course, unless he has himself noticed and placed the cause upon the calendar, by means of a counter note of issue. If he omit this precaution, he will be left to his motion to dismiss the complaint, in the ordinary course of proceedings, as before treated of. The precaution of filing a counter note of issue, and giving a counter notice, is so easy and so simple, that it ought never to be omitted.

The above is all that will be required on the part of the defendant, in order to obtain the ordinary judgment of dismissal against the plaintiff. If, however, he claim affirmative relief in his answer, and his right to such relief be not admitted upon the pleadings, he should be prepared with proof of the existence of such counter claim, and also of the amount due to him thereon, if in the nature of a set off, exactly as if the positions of the parties were reversed, and such affirmative relief was sought by him as plaintiff.

Either party attending thus prepared, is entitled to bring on the cause at once, when called, and to take his judgment, if the opposite party fail to appear. A jury is not necessary, as the very failure to appear of itself renders the action triable by the court, under sec. 266; and the affirmative right of the applicant to relief, and the amount of the relief claimable, being shown, either by

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