herein before indicated, with reference to a default taken on the cause being regularly called on.

If inquest or default be taken against either party unawares, he will, as a general rule, be admitted to prosecute or defend under the enabling powers of sec. 174, provided he satisfies the court of the existence of a bona fide defence or cause of action, and that the adverse proceeding has been obtained against him, through "mistake, inadvertance, surprise, or excusable neglect." He must of course, in the case of inquest, swear to merits in the usual form.

The application for this purpose must be made on the usual notice. An order to show cause why the inquest or default should not be set aside, will probably be found the more convenient form, as, by adopting that mode, an interim stay of proceedings on the judgment entered or to be entered up, may be obtained as part of the order. In this case, a copy of the affidavit on which the order has been obtained, must be served with it in the usual manner. It is, of course, equally competent for the defendant or party against whom judgment has been entered, upon inquest or default, to move to set aside such proceeding as irregular, on affidavit of the irregularities committed, and that, either upon a notice or order to show cause as above. The opposite party may meet such application by counter affidavits, in order to show that the inquest has been regular, and that no real cause had been shown for opening the order.

If default or inquest, duly obtained, be opened or set aside, for the purpose of allowing the opposite party to try the case on the merits, payment of costs will be imposed on such party as a condition precedent; and it will likewise be competent for a plaintiff who has obtained such judgment, to apply to the court that proper restrictions may be imposed on the defence to be set up. See observations in the last chapter in respect to the analogous case of granting of leave to plead over, after the allowance of a demurrer. however, the inquest or default be set aside on the ground of irregularity, costs will of course fall upon the irregular party.

If,

The order to be made on the application as above, must be duly entered and a copy served by the prevailing party. If the inquest be set aside, or the default be opened upon terms, care must be taken that those terms be fully complied with forthwith, or, at all events, within the time limited by the court, a reasonable limitation to which effect should always be asked for by the adverse party. On

compliance with these terms, the cause is restored to the position. in which it previously stood, and must be noticed and brought on for trial accordingly. On failure in that compliance, the order setting aside the inquest or default becomes a nullity, and the opposite party will gain the right to proceed with the entry and enforcement of the judgment, as if it had never been made.

CHAPTER IV.

TRIAL BY JURY.

The practice on this subject is but slightly affected by the code, which merely provides as to the form of verdict and its consequences, and leaves the composition and duties of the jury, and the mode of trial before them, practically untouched. To enter therefore into details on these latter subjects would militate with the plan laid down at the outset.

The provisions of the Revised Statutes, as to the return and summoning of jurors, as to special or struck juries, and as to the trial before the jury when duly empannelled, will be found in articles 2, 3, and 4, of title IV. chap. VII. part III., of those statutes, 2 R. S. 411 to 424. The usual course in these matters has been so entirely settled, that decisions affecting any important alterations are rare, and the recent reported cases work no change in the law, as to the composition and duties of the jury in a practical point of view, and little, if any, alteration in relation to the progress of the trial before them, prior to the delivery of their verdict. In relation to the law as to challenges to jurors, &c., the recent case of The President of the Waterford and Whitehall Turnpike v. The People, 9 Barb. S. C. R. 161, may be referred to. The circumstances under which application may be made for a postponement of the trial, when necessary, and the conditions likely to be imposed on granting such application, have been before considered. A similar application may be made at the outset, or during the progress of the trial, when, through surprise or otherwise, it proves indispensable; though, of course, this privilege will not be

granted at that stage of the proceeding, on any other than on serious and important grounds, and on a perfectly bonâ fide application.

Referring then to the works on the old practice for all details on these points, and assuming that the jury, whether common or special, have been duly summoned and empannelled; that the parties have exhausted their rights of challenge, whether peremptory or otherwise, and either to the array or to the polls; that a tales, if necessary, has been prayed; that all objections in relation to the composition of the jury have been raised and disposed of; and that the required number of jurors have been duly chosen and sworn according to the former and still subsisting practice; we now come to consider the proceedings before the jury so constituted. The old rules that the counsel of the party who sustains the affirmative issue, is first heard in opening, and last in summing up the case, and also as to the general conduct of the cause during the hearing, are equally unaltered, whether by the code or by the recent decisions. By rule 13 of the Supreme Court, special provision is however made as to the hearing of counsel, in accordance with the practice as it stood before, viz., "On the trial of causes at the circuit, one counsel on each side shall examine or cross examine a witness, and one counsel only on each side shall sum up the cause to the jury, unless the justice who holds the circuit shall otherwise order."

The

Page 386, line 22.

By the recent revision, this regulation is extended to the trial of issues of fact in general, whether by a jury or by the court. By Rule 14, as altered, the arguments of counsel on the hearing of causes at a general or special term, are limited to two hours each, not more than one counsel to be heard on each side, unless the court shall otherwise order. This provision may possibly be held as applicable to the trial of causes at the circuit.

converted allegation on the pleadings is to be taken as true, will, of course, be borne in mind in getting up the evidence for the hearing. A misapprehension, on this subject, will form no basis for an application for a new trial on the ground of surprise.-Wilcox v. Bennett, 10 L. O. 30.

The defendant's counsel will, of course, take especial care to restrict the plaintiff to such evidence as is warranted by the actual record, and to object to any testimony whatever, which goes beyond the allegations apparent upon the pleadings. The rule in

this respect will be found strictly laid down, in Bristol v. The Rensselaer and Saratoga Railroad Company, 9 Barb. S. C. R. 158.

Of course, objections of this nature must be taken at the moment such testimony is offered, with a view to its exclusion from being given at all.

It may, in fact, be laid down as a general rule, that all technical objections, whether affecting the case in general, or any particular branch of it, must be taken at once, either on the opening, if of a preliminary nature, or else, directly on the occurrence of the circumstance out of which the objection arises; or the right to make such objection will, in ordinary cases, be gone. Such objections must be thus taken, "so as to enable the party to supply, if possible, the alleged defect ;" and, if this be omitted, the party making that omission will not be permitted to avail himself of such objections, on the motion for a new trial.-Merritt v. Seaman, 6 Barb. S. C. R. 330. This is styled "a well-established rule," in New-York & Erie Railroad Company v. Cook, 2 Sandf. S. C. R. 732. Thus, too, objections cannot be so taken to the complaint, when the defendant has failed to demur.-Carly v. Wilkins, 6 Barb. S. C. R. 557. If the objection be overruled by the court, a formal exception should be at once taken, and the court requested to note it, according to the ordinary practice.

With a view to this, and, indeed, to the general conduct of the cause, it is impossible to insist too strongly upon the necessity of full and accurate notes being taken of all that passes at the hearing, a duty sometimes imperfectly performed.

The first subject in which the Code makes any definite alteration in relation to the conduct of a trial, is with reference to amendments on points of form during its progress. The enactments on this subject are contained in sections 169, 170, 171, and 176, forming a portion of the chapter as to amendments in pleading, though clearly referrible to amendments upon the trial, and to those alone. These provisions run as follows:

§ 169. No variance between the allegation in a pleading and the proof, shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. Whenever it shall be alleged, that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the

court may order the pleading to be amended, upon such terms as shall be just.

§ 170. Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without

costs.

§ 171. Where, however, the allegation of the cause of action or defence, to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof.

§ 176. The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

These provisions are, as will be seen, equally applicable to every species of trial, whether by a jury or otherwise, and the latter of them extends to all proceedings whatever, whether at that or any other stage of the action. The present, however, appears to be the most convenient period for their consideration, and for the citation of the recent cases thereon.

By the Revised Statutes, title V. chap. VII. of part III., 2 R. S. 424 to 426, extensive powers of amendment under similar circumstances, had already been given, and those powers appear to be still subsisting, in concurrence with those of the Code. See, to this effect, in Brown v. Babcock, 1 C. R. 66.

The following decisions have been pronounced, as to what will or will not be amended or disregarded at the trial, under the foregoing powers.

It was held in Diblee v. Mason, 1 C. R. 37, 6 L. O. 363, that these provisions apply to pleadings only, and not to process, and that a mistake in the latter cannot be disregarded at the hearing, though the court may have power to direct an amendment, on motion.

In De Peyster v. Wheeler, 1 Sandf. S. C. R. 719, 1 C. R. 93, it was held that variances, not affecting the merits, which do not surprise the adverse party, and on which he ought not, in good faith, to have relied, will be disregarded on arguments at bar, without directing any amendment. If, however, the prevailing party deem an amendment prudent, he may apply for leave, by motion, after