cer approves of the security to be given in any case, or reports upon its sufficiency, it shall be his duty to require personal sureties to justify, or, if the security offered is by way of mortgage on real estate, to require proof of the value of such estate. And all bonds and undertakings, and other securities in writing, shall be duly proved or acknowledged, in like manner as deeds of real estate, before the same shall be received or filed.

RULE 7. Sheriff to file affidavits on arrest.-The sheriff shall file with the clerk the affidavits on which an arrest is made, within ten days after the arrest.

RULE 8. Sheriff compelled to return process.-At any time after the day when it is the duty of the sheriff, or other officer, to return, deliver, or file any process, undertaking, order, or other paper, by the provisions of the Code of Procedure, any party entitled to have such act done may serve on the officer a notice to return, deliver, or file such process, undertaking, order, or other paper, as the case may be, within ten days, or show cause, at a special term to be designated in said notice, why an attachment should not issue against him.

RULE 9. Clerks to keep books. Judgments to be filed, &c., only during office hours.-The several clerks of this court shall keep in their respective offices, in addition to the "judgment-book" required to be kept by § 279 of the Code of Procedure, a book, properly indexed, in which shall be entered the titles of all civil actions and special proceedings, with proper entries under each, denoting the papers filed and the orders made, and the steps taken therein, with the dates of the several proceedings; an index of all undertakings filed in the office, stating, in appropriate columns, the title of the cause or proceeding in which it is given, with a general statement of its condition, or a reference to the statute under which it is given; the date when and before whom acknowledged or proved, by whom approved, and when filed, with a statement of any disposition or order made of or concerning it; and such other books, properly indexed, as may be necessary to enter the minutes of the court, docket judgments, enter orders and all other necessary matters and proceedings; and such other books as the courts of the respective districts, at a general term, may direct.

Judgments shall only be filed and entered, or docketed, in the offices of the clerks of the courts of this State, within the hours during which, by law, they are required to keep open their respective offices for the transaction of business.

RULE 10. Attorneys to endorse name and residence on papers served. On process or papers to be served, the attorney, besides subscribing or endorsing his name, shall add thereto his place of business; and if he shall neglect to do so, papers may be served on

him at his place of residence, through the mail, by directing them according to the best information which can conveniently be obtained concerning his residence.

This rule shall apply to a party who prosecutes or defends in person, whether he be an attorney or not.

RULE 11. What to be deemed an appearance.-Service of notice of an appearance or retainer generally, by an attorney for the defendant, shall in all cases be deemed an appearance. And the plaintiff, on filing such notice, at any time thereafter, with proof of service thereof, may have the appearance of the defendant entered as of the time when such notice was served.

RULE 12. Change of attorney.-An attorney may be changed by consent, or upon cause shown, and upon such terms as shall be just, upon the application of the client, by order of the justice of the court, and not otherwise.

RULE 13. Stipulation must be in writing or entered.—No private agreement or consent between the parties or their attorneys, in respect to the proceedings in a cause, shall be binding, unless the same shall have been reduced to the form of an order, by consent, and entered, or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel.

RULE 14. Application for discovery, how made.-Applications may be made in the manner provided by law to compel the production and discovery of books, papers, and documents relating to the merits of any civil action pending in this court, or of any defence in such action, in the following cases:

1. By the plaintiff, to compel the discovery of books, papers, or documents in the possession or under the control of the defendant, which may be necessary to enable the plaintiff to frame his complaint, or to answer any pleading of the defendant.

2. The plaintiff may be compelled to make the like discovery of books, papers, or documents, when the same shall be necessary to enable the defendant to answer any pleading of the plaintiff.

3. Either party may be compelled to make discovery as provided by § 388 of the Code.

RULE 15. Moving papers, what to state. The moving papers upon the application for such discovery, shall state the facts and circumstances on which the same is claimed, and shall be verified by affidavit, stating that the books, papers, and documents whereof discovery is sought, are not in the possession nor under the control of the party applying therefor. The party applying shall show to the satisfaction of the court, or judge, the materiality and ne

cessity of the discovery sought, and the particular information which he requires.

RULE 16. Order for discovery.-The order for granting the discovery shall specify the mode in which the same is to be made, which may be either by requiring the party to deliver sworn copies of the matters to be discovered, or by requiring him to produce and deposit the same with the clerk of the county in which the trial is to be had, unless otherwise directed in the order. The order shall also specify the time within which the discovery is to be made. And when papers are required to be deposited, the order shall specify the time that the deposit shall continue, and shall also declare the consequences of an omission to comply with the same; and the court, at any special term, upon proof of the default, may of course grant a rule absolute giving effect to such order, either by non-suiting the plaintiff, striking out the defendant's answer, debarring him from a particular defence, excluding the paper from being given in evidence, or punishing the party in default as for a contempt, as the order for the discovery may require.

RULE 17. Order for discovery to operate as a stay of proceedings. —The order directing the discovery of books, papers or documents, shall operate as a stay of all other proceedings in the cause, until such order shall have been complied with or vacated; and the party obtaining such order, after the same shall be complied with or vacated, shall have the like time to prepare his complaint, answer, reply or demurrer, to which he was entitled at the making of the order. But the justice, in granting the order, may limit its effect, by declaring how far it shall operate as a stay of proceedings.

RULE 18. Affidavit of serving summons.-Where the service of the summons and of the complaint, or notice, if any, accompanying the same, shall be made by any other person than the sheriff, it shall be necessary for such person to state, in his affidavit of service, when and at what particular place he served the same, and that he knew the person served to be the person mentioned and described in the summons as defendant therein; and also to state, in his affidavit, whether he left with the defendant such copy, as well as delivered it to him.

RULE 19. Numbering causes of action or grounds of defence.In all cases of more than one distinct cause of action, defence, counterclaim or reply, the same shall not only be separately stated, but plainly numbered.

RULE 20. Folios to be marked, and title of cause endorsed. Pleadings to be legibly written. Objections, when waived.-The attorney, or other officer of the court, who draws any pleading, deposition, affidavit, case, bill of exceptions, report, or other paper, or enters any judgment, exceeding two folios in length, shall distinctly number and mark each folio in the margin thereof; and all copies either for the parties or the court, shall be numbered or marked in the margin so as to conform to the original draft or entry and to each other, and shall be endorsed with the title of the cause. And all the pleadings and other proceedings, and copies thereof, shall be fairly and legibly written; and if not so written and folioed, and endorsed, as aforesaid, the clerks shall not file such as may be offered to them for that purpose; nor will the court hear any motion or application founded thereon. The party upon whom the paper is served shall be deemed to have waived the objection, unless, within twenty-four hours after the receipt thereof, he returns such paper to the party serving the same, with a statement of the particular objection to its receipt.

RULE 21. Advice of counsel, how stated.—Whenever it shall be necessary, in any affidavit, to swear to the advice of counsel, the party shall, in addition to what has usually been inserted, swear that he has fully and fairly stated the case to his counsel, and shall give the name and place of residence of such counsel.

RULE 22. Time to answer not extended without affidavit of merits. Subsequent extension.-No order extending the time to answer or demur to a complaint shall be granted, unless the party applying for such order shall present to the justice or judge to whom the application shall be made, an affidavit of merits, or an affidavit of the attorney or counsel retained to defend the action, that, from the statement of the case in the action made to him by the defendant, he verily believes that the defendant has a good and substantial defence, upon the merits, to the cause of action set forth in the complaint, or to some part thereof.

And if any extension of time to answer or demur has been granted, by stipulation or order, the fact shall be stated in the affidavit.

RULE 23. Subsequent application for order, after a refusal.—If any application for an order be made to any judge or justice, and such order be refused, in whole or in part, or be granted conditionally, or on terms, no subsequent application, upon the same state of facts, shall be made to any other judge or justice; and if, upon such subsequent application, any order be made, it shall be revoked; and in his affidavit for such order, the party shall state whether any previous application for such order has been made.

RULE 24. Judgment on failure to answer, where to be applied for. -When the plaintiff in the action is entitled to judgment, upon the failure of the defendant to answer the complaint, and the relief demanded requires application to be made to the court, such application may be made at any special term, in the district embracing the county in which the action is triable, or in an adjoining county; such application may also be made at a circuit court in the county in which the action is triable. But when a reference or writ of inquiry shall be ordered, the same shall be executed in the county in which the action is triable, unless the court shall otherwise order.

RULE 25. Judgment after service by publication.-In actions for the recovery of money only, when the summons has been served by publication, under section 135 of the Code, no judgment shall be entered, unless the plaintiff, at the time of making the application for judgment, shall show by affidavit that an attachment has been issued in the action, and levied upon property belonging to the defendant; which affidavit shall contain a specific description of such property, and a statement of its value, and shall be attached to and filed with the affidavits of publication; nor unless the plaintiff shall, at the same time, produce and file with the clerk an undertaking, with two sureties to be approved by the court, that the plaintiff will abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defence.

RULE 26. Plaintiff may stipulate to proceed to trial.-Whenever the plaintiff shall have neglected to bring his cause to trial according to the practice of the court, and the same shall not have been noticed by the defendant, the plaintiff may, if he has not before stipulated, tender a stipulation, and offer to pay the costs to which the defendant is entitled up to that time.

RULE 27. Dismissing complaint for not bringing cause to trial.-Whenever an issue of fact shall have been joined in any action, and the plaintiff therein shall fail to bring the same to trial according to the course and practice of the court, the defendant may move for the dismissal of the complaint with costs.

If it is made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court shall permit the plaintiff, on payment of costs, to bring the said action to trial at the next court where the same is triable.