and such other questions of law, as fall within the exercise of their jurisdiction.

At these sittings, - of the time and place of which, the judges give notice, all those cases, in which the entry of "law," or "no jury," was made, at the calling of the docket, or subsequently on the trial list, and those which have been put upon the “nisi list,” as it is called, during the term, as presenting questions on trustees' answers, motions, or on any points of law, - of all which, a list is made by the clerk, at the end of the term, are heard, determined and disposed of, by the judge or judges, who are present.

SECT. II. IN SUPREME JUDICIAL COURT.

1. At nisi prius terms. — Calling the docket. On the first day of each term, in every county, the list of continued actions is called over by the judge, and the new entries, at such subsequent day, as he may appoint, giving due notice.'

Trial list. At the calling of the dockets, the counsel on both sides, in every case, should be present; and such cases, as are signified by them, to be for trial, are put upon the trial list, which list is made up by the clerk, in the same manner, as in the Court of Common Pleas.2

Vide "Rules of the Supreme Court for the county of Suffolk," 1,2. Appendix A.

2 Note. In the county of Suffolk, if an action be not put on the trial list, at the calling of the docket, it cannot be afterwards, unless satisfactory reason be shewn. And all actions, which are not put upon the trial list, will be nonsuited or defaulted, on the motion of the counsel respectively, or dismissed from the court without costs to either party, on the day after the making out of the trial list as aforesaid, unless it ap

Order of cases for trial. The pleadings having been filed, and the juries empannelled, the actions come on for trial, in their order on the trial list, unless by consent of parties, and by leave of court, one action be substituted in the place of another, in which case, each will come on in the place of the other,' or unless a continuance or postponement be granted, upon good cause shewn.

All

Motions for continuance or postponement. motions for the continuance or postponement of civil actions, must be made on the first day of the term, or on the first day after the entry of the action, unless prevented by sufficient cause, or unless the ground of the motion, arise after that time, in which cases, the motion must be made, as soon afterwards as it can be, in the course of the court.2

The manner of making such motions, will be stated in the succeeding section.

2. At law terms. The actions which have been duly entered on the law docket, in the manner stated in the preceding chapter, come on for argument, in their order on that docket. There is no stated calling

pear by entry on the docket, that they are not in a state for trial. This applies both to continued actions, and new entries. Rules of the Supreme Court, for the county of Suffolk, 1, 2.

2

Reg. Gen. S. J. C. 19.

Appendix A.

Appendix A. Note. In the county of Suffolk, these motions for postponement must be made, immediately after the making out of the trial list, if the cause be then known to exist, otherwise, on the next day, after it is known. The motion must be sustained by affidavit, unless the ground of it appear upon the docket. All continued actions, which are postponed, are placed, in their order, at the end of the continued list, and stand for trial in that order, subject to be further postponed, if sufficient cause continue to exist. Rules of Supreme Court for the county of Suffolk, 3. Appendix A.

'Reg. Gen. S. J. C. 29. Appendix A.

of this docket, as it is of itself a trial list, no actions being entered thereon, but those "intended for argument."

If an action be called for argument, and neither party appear, it will be stricken from the docket. If one party only appear, he will be heard ex parte, or the court will render judgment, on nonsuit, or default, or such other judgment, as the case may require, except in cases of libels for divorce, and appeals from the Probate Court, where there may be an issue of fact.'

SECT. III. MOTIONS, &c.

Time of making. In the Supreme Judicial Court, when the court is holden by a single judge, for jury trials, in those counties, in which the court is usually in session, for more than two weeks, all motions, reports of referees, petitions, and other like applications, must be made and presented, on the first day of the term, or at the opening of the court, on the morning of each Monday, during the term:—and in those counties, in which the court is not usually in session, more than two weeks, all such motions and applications must be made, on the first day of the term, or at the opening of the court on the morning of each day. If, however, the ground of any such motion or application, first exist, or become known to the party, after these appointed times, it may be made, if the case require it, at any intermediate time.2

Notice to adverse party. If a motion be made at

Ibid. For the order of proceedings in cases of written arguments, vide Reg. Gen. S. J. C. 43. Appendix A.

Reg. Gen. S. J. C. 21. Appendix A.

any of these specified times, notice to the adverse party, is not required, though, if it be not given, the court will allow him time to oppose the motion, if necessary. But if the motion be made, at any intermediate time, such notice must be given, before a hearing can be had.1

The Court of Common Pleas, has prescribed no rule, as to the time of making motions, &c.

Mode of making. By a rule in both courts, no motion, grounded on facts, will be heard, unless the facts are verified by affidavit, or appear from the record, or from the papers on file in the case, or are agreed, and stated in writing signed by the parties, or their attornies; and the same rule will be applied, as to all facts relied on, in opposing any motion.2

The special affidavit, required on a motion for continuance, grounded on the want of material testimony, will be stated in the chapter on Continuance.3

All motions should be in writing, and after having been made to the court, should be filed with the clerk.

2

1 Reg. Gen. S. J. C. 22.

Reg. Gen. S. J. C. 16.

pendix B.

Supra Book II.

Appendix A.

Appendix A. 19th Rule C. C. Pleas. Ap

CHAPTER XX.

PLEADINGS, &c.

The defendant, having, by the foregoing proceedings, been brought into court, and the declaration being contained in the writ, which having been duly entered by the plaintiff, is on file with the clerk, the next step, in the order of proceedings, is taken by the defendant, who must, in some way, answer the plaintiff's action. This he may do in one of several ways, — by motion to dismiss the action, by plea in abatement, — by plea in bar, or by demurrer.

It would not be within the limits of this book, to treat of the subject of pleading generally, or to specify, in what cases, the different forms of pleading would be proper. The mode and time of using them, after they have been determined on, will be all that we are to consider.

SECT. I. MOTION TO DISMISS.

How made. If there be any defect in the plaintiff's writ, or in any of his proceedings, which constitutes a good ground for dismissing the action on motion, and the defendant intend so to avail himself of it, the motion must be made in writing, according to the general rule which has been stated.1

The party making the motion, should then file it

' Vide ante Chap. XIX. Sect. III.