the executors, is admissible.-Mesick v. Mesick, 7 Barb. S. C. R. 120. See, as to co-executors, Fort v. Gooding, 9 Barb. S. C. R. 371, before cited.

The objection to the competency of a witness, on the ground of interest, must be taken at the proper time, or it will be considered as waived Leach v. Kelsey, 7 Barb. S. C. R. 466, where the general term refused to entertain such an objection, the question not having been raised before the referee.

In Hollenbeck v. Van Valkenburgh, 5 How. 281, 1 C. R. (N. S.) 33, it was held, that the disqualification of sec. 399 extended equally to the case of an adverse party, as to that of one called on his own behalf, if he is interested in the event of the action. He can, however, be examined on formal points, in which he has no interest. In all cases of objections of this nature, the burden of proof rests on the party making them. "Every person is competent to be sworn as a witness, unless his disqualification is affirmatively shown."

In Morss v. Morss, 1 C. R. (N. S.) 374, 10 L. O. 151, it was held, that one of three referees of the cause, was not a competent witness on the trial before himself and his colleagues; the various authorities in analogy to that subject, and in relation to the evident incompetency of judges, and the possible competency of jurors, to give evidence on questions before them, being fully reviewed and considered.

BOOK VIII.

OF TRIAL, AND CONSEQUENT PROCEEDINGS BEFORE ENTRY OF JUDGMENT.

CHAPTER I.

OF TRIAL IN GENERAL.

THE mode of joinder of issue, and the preparations for bringing the cause forward for adjudication, having thus been considered, the next subject is the actual trial of that issue, whether of law or of fact.

The following definition of trial is given by sec. 252 of the Code, as last amended:

§ 252. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.

In the Code of 1851 this definition was omitted; but it is now restored, as it stood in the measure of 1849. A similar restoration has taken place with reference to the trial of issues of law, which, by the Code of 1851, was taken from the single judge, and given to the general term, unless by special direction of the court. The inconveniences of this change were so obvious, that the Supreme Court of the first district, and the New York Common Pleas, both abrogated it, in effect, by special rules, amounting to a continuance of the previous practice; and the Legislature has now readopted the same view.

The issue of law is, from its very nature, triable by the court alone, without the intervention of a jury.-V. sec. 252. It may, however, be referred, by consent, under sec. 270. The provision in sec. 252 runs, that it may be referred, as provided by secs. 270 and 271; but this is a manifest error of the Legislature, the latter section being totally inapplicable to such cases.

In reference to mixed issues, those, i. e. where a demurrable objection has been raised by answer, owing to the necessity of statements of fact to make that objection apparent, a question has been raised in The Farmers' Loan and Trust Company v. Hunt, 1 C. R. (N. S.) 1, as to whether such issues may not properly be looked upon in the light of issues of law, even when the facts in question are controverted, so far as to entitle the parties to bring them to an early decision, without waiting for the trial of the issues of fact; and a reference, according to the old Chancery practice, was suggested by the court, as a means of overcoming the difficulty. The case having, however, gone off upon another point, that in question was not directly passed upon, and there seems reason to doubt the soundness of the conclusion. The two issues of law and of fact, respectively, seem, under such circumstances, to be mutually dependent upon each other, and inseparable in their consideration. If, however, the facts on which the objection is grounded be, on the contrary, admitted, either directly or by non-denial, it might then well be contended, that, by such admission, a pure issue of law has been practically raised, and should be tried accordingly.

We now proceed to the trial of the issue of fact, either pure or mixed, for which three modes are open. Such issue may be tried1. By a jury.

2. By the court.

3. By referees: which modes of trial will be considered seriatim. The trial by referees, unless such reference be made by consent, is only applicable to those cases in which the examination of a long account is involved.-V. Code, sec. 270. Trial by the court, or by a jury, are the courses more usual in practice.

Of these, trial by jury may be said to form the rule, and trial by the court the exception. The former may, however, be waived, by consent of the parties, or by failure to appear.-V. sec. 266.

The following are the provisions of the Code, as contained in secs. 253 to 255, inclusive, defining the instances to which trial by jury, or trial by the court, are respectively peculiarly applicable :

§ 253. An issue of law must be tried by the court, unless it be referred, as provided in sections two hundred and seventy and two hundred and seventy-one. An issue of fact in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived, as provided in section two

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, been doubted.

has

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 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.

CHAPTER II.

TRIAL OF AN ISSUE OF LAW.

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.

Page 378, line 12.

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 bonâ 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