opponent's courtesy, to give him reasonable time to perfect that security after the actual entry of judgment, no further order will be required. If, on the contrary, the case be conducted in a hostile spirit, application should be made for a further stay, suspending the issuing of execution on the judgment, when signed, for a limited period, in order to give time for the due perfection of the appeal. This application, as in the former instance, should, in all cases, be made to the judge who tried the cause, and has settled the bill of exceptions, though, as before shown, it may be made to any other, in case of necessity, the facts being shown by affidavit, which otherwise is not requisite. The order may be obtained ex parte, and must, of course, be duly served. If not obtained before judgment is actually signed, the opposite party will be entitled to issue execution, immediately upon the entry of such judgment, without regard to the losing party's intention to appeal; and he may do so, even if such appeal have actually been taken, unless the necessary security have been given. See hereafter, under the head of Appeals.

The old practice as to a demurrer to the evidence, appears to be entirely abolished, or, to speak more correctly, superseded by the review upon exceptions in the manner above prescribed.

CHAPTER VIII.

PROCEEDINGS BY PREVAILING PARTY BETWEEN TRIAL AND

JUDGMENT.

THE proceedings to be taken on the part of the losing party, before the actual entry of judgment, with a view to obtain the revision of the decision of the court, jury, or referees, on questions of fact, or to place exceptions on the record, with the view of obtaining a similar revision on points of law, by appeal, having thus been considered: the intermediate proceedings that are, or may be, necessary on the part of the prevailing party, remain to be dealt with, before passing on to the actual entry of judgment and its consequences, the subject of the next book.

The first matter to be noticed, is the course to be pursued in the event of a special verdict, or verdict subject to the opinion of the court, or of an order that the cause be reserved for argument or further consideration, of all which proceedings the plaintiff has the carriage.

The last of these proceedings, though provided for by the Code, seems to have fallen through in practice. Throughout the whole of the reports, not one single case appears in direct relation to the construction of this provision, or arising under it. The phraseology appears to have been retained on the last amendments of the Code, for no particular reason, further than that it was contained in the measure of 1849. To trial by jury, the connection by which it is placed, it seems totally inapplicable, inasmuch as the jury, once separated, cannot be reassembled. It more probably was intended to bear reference to the power of the court, on trials of equity cases, or issues of law, on which the decision is reserved, to order a re-argument on points on which doubt is entertained; or to applications to the court in similar cases, and particularly in those of an equitable nature, for settlement of the minutes of the proper decree or order, before its actual entry. In cases of this description, it was not unusual, under the old practice, to have the cause called on afresh, for the purpose of arguing questions arising upon the proposed minutes, and having them regularly disposed of by the court, and the words in question may probably have been introduced with a view to this practice. In the Code of 1849, they may possibly have had the operation of keeping alive the old practice of entering a verdict subject to the opinion of the court; and, in that sense, their applicability to trial by jury might well have been maintained. Under the last amendments, however, this practice being restored in terms, they seem to become surplusage, except, possibly, in so far as they may held declaratory of the power of the court to grant a stay of proceedings upon the trial, until any reserved questions may have been disposed of: a point of jurisdiction so obvious, that it did not seem to need any declaration whatever.

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In ordinary causes, no special preparation of the minutes of the judgment to be entered will be necessary. In equity cases, however, or in others, where the judgment embraces special relief, it may be necessary or convenient for the prevailing party to prepare his minutes of the decree or judgment to be

entered, and serve a copy on the opposite party, with a notice to attend before the judge who tried the cause, at some specified time, in order that such minutes may be settled by him. The opposite party may, of course, either alter the minutes served, or prepare counter-minutes on his part, with a view to such settlement. The appointment being attended, the minutes on both sides may either be submitted to and settled by the judge, at the time, or left with him for settlement at his leisure. If, on his settlement of such minutes, any questions arise, it is competent for the party dissatisfied to bring such questions again before him, on an application for a re-settlement-notice being, of course, given to his opponent. If, on such re-settlement, the judge persevere in the view claimed to be erroneous, there seems to be no further remedy, except an appeal from his decision, in due form, either in the shape of one from the judgment itself, or from his order on the application for a re-settlement, which order should be entered accordingly, where the former course cannot be pursued. These proceedings are ordinarily, and will be most conveniently taken, before such judge at chambers. There seems, however, no obstacle to their being taken in actual court, and to the cause being put on the calendar for that purpose, according to the old practice in chancery, where that course is considered desirable, though this will rarely be necessary.

The foregoing observations apply to the settlement of the minutes of a decree or judgment pronounced, with respect to which no further action is necessary, except the mere ministerial act of dictating the precise terms, in which the judgment actually pronounced is to be properly entered. The questions as to special verdict, or verdict subject to the opinion of the court, fall, however, under a different category, inasmuch as no judgment can there be entered at all, until the questions thus reserved have been duly disposed of. Of both these proceedings, the prevailing party has the conduct, and both are, in all respects, the same as under the former practice, with this distinction, that the proceeding by special verdict has never been intermitted under the code, since its original passage, whereas the practice of entering a verdict subject to the opinion of the court, has been in abeyance under the measures of 1848 and 1849, and was only restored in terms by the amendment of 1851. It may be safe, when the case assumes either of these

forms, to ask for the entry of an order that "the cause be reserved for argument or further consideration" (see Ball v. The Syracuse and Utica Railroad Company, 6 How. 198; 1 C. R. N. S. 410); but it seems, in no respect, to be absolutely necessary. The very proceedings themselves, import, in their nature, a reservation of this description.

The opinion of the court on a verdict can only be obtained, as under the former practice, on a case duly made. The case for this purpose, must be prepared and settled, like that on the part of the losing party, as detailed in the last chapter. The

Page 432, line 10.

Express provision is made to this effect, by Rule 15 of the supreme court, as recently amended.

tially the same as respects the formal proceedings, and it is therefore equally unnecessary to do more than to refer to the last chapter on that head. As respects, however, the original preparation of the document, a most material distinction is to be drawn. The evidence bearing on the points, on which the opinion of the court, or a review of its decision is sought, is not only admissible but proper to be stated upon a case, exactly as that evidence was delivered; a detailed statement of such evidence is, on the contrary, inadmissible in the preparation of a special verdict. The facts which have been found should alone be stated on the latter, so as to refer to the court the consideration of questions of law only, unmixed with discussions on points of fact. See Hill v. Covell, 1 Comst. 522; Sisson v. Barrett, 2 Comst. 406; Langley v. Warner, 3 Comst. 327, before cited; also Livingston v. Radcliff, and three other cases, 2 Comst. 189. This distinction should be carefully attended to, and the statement of the facts found by the jury, made as succinct and clear as possible, on the original preparation of the document.

The case, or special verdict, when duly settled, must be set down for argument before the special term; the latter in the form of a motion for judgment thereon. A copy of the special verdict must also be served upon the opposite party, at least eight days before the argument. See rule 31 of the supreme court. By analogy from this rule it seems also to be the safest, nay, the only safe course to serve such a copy of a case for the opinion of the court, though of course not expressly provided

for, as the practice was in abeyance at the time of the passage of that rule. The motion will be an "enumerated" one, and the papers for the court must be furnished by the plaintiff.

The same rule provides that cases reserved for argument or further consideration, are also to be so brought on, but that no case need be prepared in writing, unless by direction of the justice who tried the cause. See, however, former observations as to this proceeding.

By sec. 265, as last amended, a power is given to the justice trying the cause, to direct that cases of this description shall be heard and decided at the general term. Where, therefore, it is thought expedient, this direction may be applied for. In cases where the review is sought on alleged errors of fact, the transfer to the general term seems inappropriate, and the direction will probably be refused; in those presenting questions of pure law, the provision may doubtless be beneficial in its working. As yet, no decision appears upon the subject, the provision being so recent. The point is evidently one that will rest in the entire discretion of the judge, and, from the nature of the case, the application seems to be one on which notice to the adverse party will be requisite. If heard before the special term, it will not, of course, be necessary to print the papers. If, on the contrary, the general term be the forum prescribed, it seems evident that the papers must be printed, and points regularly prepared, according to the practice in appeals to that tribunal, as prescribed by rule 32. This seems to follow as an evident conclusion from the nature of such hearing, which, although not in the form of an appeal, is evidently, for practical purposes, a substitute for that proceeding, with the omission of the intermediate stage of a hearing at special term.

The decision of either special or general term, when pronounced, should be entered as an order by the prevailing party, who will then proceed to sign judgment accordingly, in due course. It remains shortly to notice the preliminaries to this latter proceeding.

The bill of costs of the prevailing party must of course be prepared, and two days notice of taxation must be given to the opposite party. The application for an allowance, under sec. 308, must also be made at this stage of the cause. See both these subjects fully considered in a subsequent chapter, under the head of costs. They are, however, alluded to here, to