ball, 1 Code Rep., 83. Jones v. Russell, 3 Pr. R., 324. 1 Code Rep., 113. Sheldon v. Martin, 1 Code Rep., 81. Anderson v. Hough, 1 Code Rep., 50. 1 Sand.

S. CR, 271. And itwas no good reason for dispensing with an affidavit of merits, that the answer was verified by affidavit. Ib.

The amendment to this section seems, the adoption of the practice in equity,

stated "his defence" to counsel, only implies that he has stated one side of the case, and is, therefore, insufficient. 22 Wendell, 636. 2 Hill, 359. Richards v. Swetzer, 1 Code Rep., 117. So, an affidavit that the defendant has fully and fairly stated "the facts of his case," &c., is insufficient. 1 Hill, 644. Nor will it do to qualify the requisition of the rule, by adding, "so far as the facts have come to defendant's knowledge," unless a sufficient excuse be shown. 19 Wendell, 617. An affidavit that the defendant has a “defence, &c., to the plaintiff's declaration filed in this suit," &c., (1 How. S. T. R., 63,) or "to the bond, &c.," or "a defence in the action," without stating "on the merits," (4 Hill, 534. 5 Pr. R., 14,) has been held bad. So, where the person described as counsel, in the affidavit, was not, in fact, a counsellor of this court, although an attorney, the affidavit was insufficient. 1 How. S. T. R., 74.

Where a maker and endorser of a note are sued in one action, an affidavit of merits by the maker will not prevent an inquest against the endorser, unless it appear that the defence of both is identical. 19 Wend., 125. And where several suits are brought against the maker and endorsers of the same note, an aidavit of merits to set aside an inquest in all the causes, may be made by the maker, if he be acquainted with the facts, and the defence be the same in all the causes. 6 Cowen, 395. Having drafted the affidavit, make two copies, and endorse them properly. Let one be sworn to, and filed in the office of the clerk of the circuit in which the cause is to be tried, and serve the other (with a notice endorsed, of the original being on file,) upon the plaintiff's attorney, on or before the first day of the circuit. 15 Johns. R., 536. One affidavit of merits to prevent an inquest is sufficient, though the cause be several times noticed for trial and inquest. (6 Cowen, 45) And if filed, and served on a plaintiff's attorney, for a circuit in one county, it has been held sufficient, though the venue be afterwards changed to another county, and the cause be tried in the latter. Ib. But an affidavit of merits, made and used for one purpose in a cause, cannot be used for another: e. g., an affidavit to change the venue will not be received as the foundation of a motion to set aside a default, for want of a plea. (2 Hill, 409.) And a verified answer was held not to be sufficient to prevent the taking of an inquest in the cause at the circuit, out of its order on the calendar. Ib. 1 Code Rep., 81, 113. 1 How. S. T. R., 166. Under the former practice it was said, that an affidavit to prevent an inquest sometimes might, and at other times, should be served in a different manner from what is required in relation to other papers. At the circuit, if the plaintiff's attorney was not present, it might be delivered to the counsel having the cause in charge. If not delivered at the circuit, it should be served in such a way that it will probably come to the knowledge of the attorney, in season to enable him to communicate with the counsel, before the inquest is taken. Accordingly, where the affidavit was served on the second day of the circuit, by leaving it at the office of the plaintiff's attorney, no one being in at the time, and he took the inquest a few moments afterwards, but without knowing that the affidavit had been served, his proceedings were held, regular. 6 Hill, 368.

An inquest taken before the defendant's time to amend his answer expires, will be irregular if the defendant afterwards in good faith and in due time serves an amended answer. Washburn v. Herrick, 2 Code Rep., 2.

Where the defendant omitted to serve an affidavit of merits and did not appear; after the discharge of the jury, the plaintiff took an inquest without a jury, and it was held to be irregular, and that it should have been taken before the jury were discharged. Dickinson v. Kimball, 1 Code Rep., 83.

A party who has taken an inquest regularly is not bound to waive it, he may put the adverse party to his motion. Smith v. Howard, 12 Wend., 198.

Where the cause is called in its order the defendant may appear and defend, although no affidavit of merits be filed. Starkweather v. Carswell, 1 Wend., 77.

An inquest may be taken on any day after the first day of the circuit, immediately after the opening of the court, (Rule 12,) but not after the trial of a litigated cause has commenced. Nichols v. Chapman, 9 Wend., 451.

in accordance with which it was held, that if the defendants in the suit had not a common interest, or the defences set up by them were separate and distinct in their character, an issue might be awarded as to one defendant, although the case was not a proper one for an issue, as to his co-defendant. New-Orleans Gas Light Co. v. Dudry. Paige, 452. And see, Meach v. Chappell, th., 135. Germain v. Bench, 91b. 32. Sea Ins. Co. v. Day, ib., 369. As to moving for judgment, as in case of a nonsuit, see section 274.

§ 259. [214.] (Amended.)—Court to be furnished with copy, pleadings, &c.-When the issue shall be brought to trial by the plaintiff, he shall furnish the court with a copy of the summons and pleadings with the offer of the defendant, if any shall have been made. When the issue shall be brought to trial by the defendant, and the plaintiff shall neglect or refuse to furnish the court with a copy of the summons and pleadings and the offer of the defendant, the same may be furnished by the defendant.

Before amendment the section was as follows: The plaintiff shall furnish the court with a copy of the summons and pleadings, with the offer of the defendant, if any shall have been made.

260. [215.] General and special verdicts defined.-A general verdict is that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court.

§ 261. [216.] When jury may render either general or special verdict, and when court may direct special finding.—In an action for the recovery of specific personal property, if the property have not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property, and if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that

Upon an inquest, the defendant has a right to appear, and cross-examine the plaintiff's witness; but he cannot prove a defence by them, nor examine witnesses on his own behalf. He may, however, object to the plaintiff's evidence, and except to the judge's opinion as in ordinary cases. So the plaintiff may be nonsuited if he fail to make out his case. Willis v. Green, 1 Wend., 7. Hartness v. Boyd, 5 Ib. 563.

An inquest regularly taken will not be set aside, where it appears that the answer was insufficient or frivolous. Hunt v. Mails, 1 Code Rep., 118.

On setting aside a regular inquest, defendant was put under terms of withdrawing a plea of the statute of limitations. Foz v. Baker, 2 Wend., 244.

Where a cause is noticed for trial by both parties, the plaintiff need not, it is presumed, file an affidavit of a good cause of action to prevent the defendant moving the cause out of its order on the calendar, and taking a dismissal of the complaint. Regan v. Priest, 3 Denio, 163.

See notes to section 252, 256 and 274 of this code.

he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention, or taking and withholding such property.

In every action for the recovery of money only, or specific real property, the jury in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing upon all or any of the issues; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk and entered upon the minutes.

It is evident that this section must be read as though the word not were erased. The provision of the revised statutes as to the form of the verdict in ejectment must be considered as modified by this section. If the plaintiffs collectively are entitled to the whole of the property claimed, then a general verdict for the recovery of the whole property would be sufficient. If only a moiety belonged to them, collectively, a general verdict for such moiety would be proper. Wood v. Staniels,

3 Code Rep., 152, 153.

See rule 18 of supreme court rules in appendix.

$262. [217.] On special finding with general verdict, former to control.-Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.

§ 263. [218.] (Amended.)—Jury to assess defendant's damages in certain cases.—When a verdict is found for the plaintiff, in an action for the recovery of money, or for the defendant, when a set-off for the recovery of money is established, beyond the amount of the plaintiff's claim as established, the jury must also assess the amount of the recovery; they may also under the direction of the court, assess the amount of the recovery when the court give judgment for the plaintiff on the answer. If a set-off, established at the trial, exceed the plaintiff's demand so established, judgnient for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly.

This section before amendment was as follows: When a verdict shall be found for the plaintiff, in an action for the recovery of money only, the jury shall also assess the amount of the recovery.

The right conferred on the jury to assess the defendant's damages over and above

the plaintiff's claim, is similar to a provision in the revised statute relating to justices' courts (2 R. S. 333.) The right given by this section to grant the defendant affirmative relief, seems to be rather inaptly placed under this chapter, which treats of trial by jury. And for this reason, this relief can only be granted where the trial is by jury, but it is chiefly in cases, such as under the former practice, would have been designated equity causes, that it will be necessary to grant affirmative relief to a defendant, and this class of cases are to be tried by the court. Hill v. McCarthy. 3 Code Rep., 49, and see section 253, 254, 274 of this code.

§ 264. [219.] (Amended.)—Entry of the verdict.—Motion for new trial.-Upon receiving a verdict, the clerk shall make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment to be rendered thereon, or an order that the cause be reserved for argument or further consideration. The justice trying the cause may, in his discretion and upon such terms as may be just, stay the entry of judgment and further proceedings until the hearing and final decision of a motion for new trial, or to set aside the verdict or judgment upon the grounds of surprise or irregularity, or upon a case or bill of exceptions.

The court shall have power to order a verdict to be entered, subject to the opinion of the court thereon. The judge who tries the cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or as being against evidence, or for insufficient evidence, or for excessive damages; but such motions in actions hereafter tried shall only be heard upon the minutes at the same term or circuit at which the trial is had, and if not heard at the same term or circuit in actions hereafter tried, the motion must be made upon a case or bill of exceptions, or upon appeal. When such motion is heard and decided upon the minutes of the judge, an appeal may be taken from such decision, and in case of appeal, a case or bill of exceptions must be prepared and settled in the usual form, and upon which case or bill of exceptions the argument of the appeal must be had.

After the trial of a cause, either party may, in the manner prescribed by law and the rules of the court in which the action is pending, make and settle a case or bill of exceptions, which, when settled, shall be filed, and when filed before or

after judgment, shall be attached to and become a part of the judgment roll.

Before amendment this section was a follows:

Upon receiving a verdict, the court shall direct an entry to be made, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment to be rendered thereon, or an order that the case be reserved for argument or further consideration.

In cases reserved by the court for argument in pursuance of this section, no case need be prepared in writing unless by the direction of the justice who tried the cause, and where a case is so directed, it is to be prepared and settled according to rule 15 of the supreme court rules, and the party on whose motion the cases is reserved must furnish the papers for the argument. See rule 31 of the supreme court rules, and rules 8, 9, 10, and 11 of superior court rules of January, 1851, in appendix.

Under this section prior to amendment where two days after a verdict for defendants, they entered and perfected judgment. The plaintiff desiring to move to set aside the verdict as against evidence, obtained an order to stay proceedings on the second day after the verdict, but after the entry of judgment. The plaintiff subsequently prepared a case and moved to have the judgment set aside as irregular. The court upheld the judgment, and said: Upon the rendition of a verdict, the justice who tries the cause directs an entry of the judgment to be rendered thereon, unless he desires to consider the matter further. And judgment shall be entered by the clerk, in conformity to the verdict, which shall be final after the expiration of four days, unless there be an order reserving the case or staying the proceedings, (§ 264, 265.) The clerk is to make up the judgment roll immediately after entering the judgment. (Ib. § 281.) This is restricted in effect by the two days' previous notice required for the judgment of the costs.

We think the intent of section 265, was not to delay the entry of the judgment, or its completion in form, until after the expiration of four days; but that a judgment so entered and completed, will become absolute and final, unless before the end of four days, the losing party shall obtain from the court or a justice, a stay of proceedings. If he desire to move for a new trial, on the ground that the verdict is against evidence, he may obtain a stay for that purpose within the four days, and then move at special term on a case. If this motion be granted, the judgment never becomes final, and will be vacated of course. The defendants have been regular, and the plaintiff must be content with the order at chambers which preserves all his rights. Droz v. Lakey, 2 Sand. S. C. R., 681. 2 Code Rep., 83, 1 Ib. 125.

On a motion to set aside a judgment, the supreme court said, it is objected that section 265 makes the judgment final after four days, and that we can give no relief. "I think the section in question requires no such construction, it was only intended to declare what should be the course of practice in preparing for appeal or review, and was not intended to provide an exception to the powers conferred by the latter clause of section 173. On the contrary, both sections must be construed together, and these sections give ample power to afford relief. Traver v. Silvermail, 2 Code Rep., 96.

$265. [220.] (Amended.)-Motion for new trial, &c., where to be heard.-Motions for a new trial on a case or bill of exceptions, motions for judgment on a special verdict or case reserved subject to the opinion of the court, shall in the first instance be heard and decided at a special term, unless the justice trying the cause shall direct it to be heard in the first instance at a general term. If such order is granted, directing it to be heard at a general term, such motion may then be noticed and brought on to argument by either party at a general