court would be: "That whenever a cause was moved on the trial calendar in which there was an issue of law pending, the court will then determine whether the issue of fact shall be first tried or not, and it is not necessary to obtain a previous order on the subject."

$252. [207.] (Amended.)--Issues how tried.—An issue of law must be tried by the court unless it be referred, as provided in sections 270 and 271. 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 266, or a reference be ordered as provided in sections 270 and 271.

This section is entirely changed. As it stood prior to amendment, it read as follows: A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.

This section before amendment was so far as an issue of fact is concerned merely declaratory of the existing law. (3 Blk. Com. 330.) It is true, it included the examination of issues of law as well as of fact within its definition, so that what was formerly an" argument" or "hearing" is now a trial. This is the only difference between a trial under the code, and under the former system. Per Gridley J., in Dodd v. Curry, 4 Pr. R., 123, 124. It will be seen that this section embraces a large portion of the provision contained in section 253. The taking a dismissal of the complaint under section 258, was held to be a trial within the definition of a trial contained in this section. Dodd v. Curry, 4 Pr. R., 123. For the benefit of those who do not know the details of the history of the recent amendments we may state, that when the provisions contained in this section were first introduced, it was intended to strike out the present section 253. It was afterwards decided to retain section 253, but its provision in this section was omitted to be stricken out. See note to section 253.

$253. [208.] Issue of fact to be tried by jury, unless waived or reference ordered.-Whenever in an action for the recovery of money only, or of specific real or personal property, there shall be an issue of fact, it must be tried by a jury unless a jury trial be waived, as provided in section 266, or reference be ordered, as provided in sections 270 and 271.

The words "specific, real or personal property in this section," relate to personal property, which was formerly the subject of an action of replevin, and does not relate to claims in equity. Cahoon v. President, &c., of Bank of Utica, 4 Pr. R., 423, 424. 3 Code Rep., 110.

In the cases where the trial of issues of fact is not provided for in this section, if either party desires a trial by jury, such party must within ten days after issue joined, give notice of a special motion to settle the issues, and the court, or judge may settle the issues, or may refer it to a referee to settle the issues. Such issues must be settled in the form prescribed in section 72 of this code. See rule 74 of supreme court rules in appendix.

$254. [209.] Other issues to be tried by the court.--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 sections 270 and 271.

§ 255. [210.] (Amended.)-Issues where to be tried.--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 general term, unless the court order the trial to be had at a special term.

This section prior to amendment was as follows:

All issues, whether of law or fact, triable by a jury or by the court, shall be tried before a single judge. Issues of fact in the supreme court, shall be tried at the circuit courts, issues of law in the first instance at a circuit court or special term. See Hill v. McCarthy, 3 Code Rep., 50.

§ 256. [211.] Either party may give notice of trial.—Note of issue. At any time after issue, and at least ten days before the court, either party may give notice of trial. The party giving the notice shall furnish the clerk at least four days before the court with a note of the issue, containing the title of the action, the names of the attorneys and the time when the last pleading was served; and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue.

This section is identical with section 211 of the code of 1848, under which it was held, that, a notice of trial served on the 9th, for the 19th, the 19th being a Monday, was a notice of ten days, and a sufficient notice under this section, Easton v. Chamberlin, 3 Pr. R., 412, 413. And a notice of trial served on the 11th for the 21st held good. Dayton v. McIntyre, 5 Pr. R., 117. See section 407, note.

By the rules of the New-York common pleas, the notice of trial must be for the first day of the term, and where the parties agree in writing to waive a trial by jury, the note of issue is to state such consent. See rules in appendix.

Notes of issue for the general term are to be filed eight days before the commencement of the court at which the cause may be noticed. See rule 37 of supreme court rules in appendix. In the court of appeals either party may bring on the argument on a notice of eight days, which notice except in criminal cases is to be for the first day of the term. A copy of the notice specifying the judicial district in which the cause, originated, is to be furnished to the clerk eight days before the first day of the term. See rule 8, of rules of the court of appeals in appendix.

In Wilkin v. Pearce, 4 Pr. R., 26, it was held by the court of appeals, that an attorney should not wait until the last day but one for filing notices of argument or issue before sending to the clerk a copy to file for the calendar, and if he does thus wait without a sufficient excuse, and circumstances then transpire which prevent him from sending the notice in season for the calendar, he will not be allowed to put his cause on the calendar, whatever his excuse may be after that time. And where there are several defendants defending by separate attorneys, and the plaintiff notice the cause, he must serve each defendant with notice of trial. 3 Price, 72. May one of several defendants appearing by separate attorneys notice the cause for trial?

Where there are two actions depending between the same parties and prosecuted and defended by the same attorney, and one action only is noticed for trial, the no-tice should specify the action intended to be tried, or it may be considered insufficient, Lesher v, Parmelee, 1 Wend., 22.

If the notice is insufficient, and the party proceeds to trial, and obtains a verdict, in the absence of the opposite party, the court, on motion, will set the verdict aside. 15 Johns. R. 399, if the defect was such as misled the opposite party. 1 Caines, R, 154, a; 3 lb., 86, 133; 4 Cow., 60; 11 Wend., 178. And for this purpose they will look only at the notice. After noticing the cause, the party giving the notice may countermand the same, but he will have to pay the costs incurred by the opposite party in consequence of the notice. 2 R. S., 514, s. 37; 2 Wend., 241; 1 How. S. T. R, 66, 53. The notice of countermand would be unavailing where both parties notice the cause, and in such a case the party countermanding would not be liable for costs. It is now the more ordinary practice for both parties to notice the cause. The object of the defendant noticing the cause is usually to enable him to bring the issue to trial under section 258. See note to section 258. This provision appears to be a revival of the obsolete practice of a trial by proviso. See Tidd's Pr., Am. ed. of 1807, p. 700. And by the practice prior to the code, in actions of replevin, prohibition and quare impedit, the defendant might notice the cause for trial, and in equity, either party might notice the cause for hearing. Under the old practice of a trial by proviso, where the defendant noticed the cause for trial, he thenceforth occupied the position of a plaintiff, with respect to his rights, and liability as to paying costs on countermand, or for not proceeding to trial according to notice, or for postponing the trial. But where, in a replevin suit, brought prior to the code, the defendant noticed the cause for trial, and the plaintiff not having filed an affidavit of merits, the defendant moved the cause out of its order on the calendar, and took an inquest. The court set such inquest aside, and said there was no practice allowing a defendant to move the cause out of its order on the calendar, or requiring a plaintiff to file an affidavit of merits, to prevent an inquest being taken against him. Regan v. Priest, 3 Denio, 163.

$257. [212.] Order of disposing of issues on the calendar.— The issues on the calendar shall be disposed of in the following order; unless, for the convenience of parties, or the dispatch of business, the court shall otherwise direct:

1. Issues of fact to be tried by a jury;

2. Issues of fact to be tried by the court;

3. Issues of law.

By laws of 1850, cap. 128, p. 200, it is enacted, that:

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§ 1. Every issue of fact joined or hereafter to be joined, in any action brought by the attorney-general of this State, pursuant to the joint resolution of the senate and assembly of the 10th day of April, one thousand eight hundred and fortyeight, or proceedings in the nature of a quo warranto, shall have a preference at the court at which it shall be noticed for trial, over all other causes; and every case made, special verdict rendered, and bill of exceptions taken on such trial, and every issue of law joined on the pleadings in such suit or proceedings, and every appeal from any judgment rendered in any such suit or proceedings, shall have a preference in the argument thereof, in any court where the same may be pending."

The joint resolution above referred to, may be found in laws of 1848, p. 582,

and is as follows:

"Resolved, (if the senate concur,) that the attorney general be instructed carefully to inquire and ascertain whether, in any of the lands of this State, now claimed to be held under any of the manorial titles referred to in this report, the claim of the present landlords be open to just doubt and question, and whether, in his judgment, this State may justly and legally lay claim to the title of the same, or any part thereof, by escheat or otherwise; and if, in his opinion, the title of the present claimants may be justly questioned, and the right of the State to such lands, or to any part of the same, be established according to law, that he take such measures, either by suit at law. or any other proper proceedings, as will test the validity of such titles or claims."

As to causes on the calendar of the court of appeals, see section 13 of this code.

CHAPTER III.

Trial by Jury.

SECTION 258. Notice of trial. Separate trials.

259. Court to be furnished with copy summons, pleadings, &c.

261. Verdict in action for recovery of specific personal property, when in action for recovery of money only, or real property, jury may ren

der either general or special verdict; and when court may direct special finding.

262. Special finding, with general verdict.

263. Jury to assess defendant's damages in certain cases.

264. Eutry of verdict. Motion for new trial.

265. Motions for new trial, &c., where heard.

§ 258. [213.] (Amended.)—Notice of trial.—Separate trials. 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 with his case, and take a dismissal of the complaint, or a verdict or judgment, as the case may require. A separate trial between a plaintiff and any of the several defendants may be allowed by the court, whenever, in its opinion, justice will be thereby promoted.

The amendment is the addition of the words in italic. 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 circuits, and that an affidavit of merits was still necessary, to prevent an inquest. Dickenson v. Kim

By rule 12 of the supreme court rules, it is provided: "Inquests may be taken at the circuit in actions out of their order on the calendar, in cases in which they were heretofore allowed at the opening of the court, on any day after the first day of the circuit, provided the intention to take an inquest is expressed in the notice of trial, and a sufficient affidavit of merits shall not have been filed and served." This rule corresponds with the 31st of the law rules of 1847. The manner of stating the advice of counsel is prescribed by rule 39 of the present rules of the supreme court, which requires that the party shall swear he has fully and fairly stated the case to his counsel, and must give the name and place of residence of such counsel. 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 How. S. T. 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 39,) 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. But an affidavit that he has