at the next term. If the commission be not then returned, it will be incumbent on the other party to apply for a further stay. This will give to the party, desirous to go to trial, an opportu nity to answer the statements on which his adversary relies for continuing the stay of proceedings, and obtaining further time to procure the testimony. Such will be the practice in future, where it appears that sufficient time, primâ facie, has elapsed for the execution and return of the commission."

The questions as to the due execution and return of a commission of the above nature, will be found very fully entered upon, and the old authorities on the subject cited, in Fleming v. Hollenback, 7 Barb. S. C. R. 271, which case should be carefully read, in connection with the works on the former practice in relation to that subject.

In moving for a commission, it is sufficient, if the materiality of the testimony sought to be obtained is positively sworn to. The applicant is not bound to state what he expects to prove by the witness, whose testimony he seeks to procure.-Eaton v. North, 7 Barb. S. C. R. 631; 3 C. R. 234 ; and V. The People v. Vermilyea, there cited.

A party to the action, residing out of the state, may be examined on commission, at the instance of the adverse party, in the same manner.-Brockway v. Stanton, 2 Sandf. S. C. R. 640; 1 C. R. 128.

If a commission be defectively executed in matters of mere form, the court possesses, and will exercise the power of ordering it to be returned to the commissioners to have the defect amended, without its being necessary to issue a second commission and examine the witnesses again.

With reference to the taking of depositions in general, it may be remarked that, under the Code of 1848, those of witnesses residing in the state, but more than one hundred miles from the place of trial, were allowed to be taken in the same mode as testimony de bene esse, and to be so read on the trial, without further proof of the inability of the witness to attend. This provision was positively repealed by the act of 1849, without any saving clause. In a case where the depositions had been taken, pending the former measure, but the trial did not come on until after the passing of the latter, it was held that such depositions could not be read.-Mc Cotter v. Hooker, 1 C. R. (N.S.) 213, and 217.

The subject of the perpetuation of testimony, by special proceeding for that purpose, has been already alluded to. The proceedings for that purpose belong entirely to the former practice.

CHAPTER V.

OF THE FORMAL PREPARATIONS FOR TRIAL.

THE above precautionary or accelerative proceedings, with a view to the ultimate trial of the issue when joined, having thus been considered; the ordinary measures for placing the cause on the calendar, and bringing on the trial in due course, form the next subject for consideration.

The provisions of the Code on the subject of the notice of trial and note of issue, are contained in sections 256 and 258, and run as follows:

§ 256. 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.

§ 258. 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 thereby be promoted.

Although peculiarly incumbent upon the plaintiff, on whom rests the conduct of the cause, the above proceedings will, in almost every case, be equally necessary on the part of the defendant. It is true, that a notice on the part of the plaintiff will be sufficient to bring on the cause in regular course, and that,

if so brought on, the defendant will labor under no actual disability in respect to his defence; still, on the other hand, the latter, if he omit to give a counter-notice, and to put the cause regularly upon the calendar on his own behalf, will be without remedy, in case of the plaintiff's change of intention, or neglect to appear when called. He will stand, in fact, in the disadvantageous position of being bound by his adversary's notice, without the power of taking any affirmative measure on his own behalf.

In no case, therefore, should this precaution be omitted on his part. When, however, the defendant has given such a notice, he must move the cause in its order when called on. If he omit to do so, he cannot afterwards move for a dismissal under rule 23.-McCarthy v. Hancock, 6 How. 28; 1 C. R. (N. S.) 188.

Where the plaintiff only has noticed the cause, and omits to bring it on, the defendant, if he attends prepared, is entitled to the costs of the circuit. He must, however, apply for them on the first opportunity afterwards, or his right to enforce their payment will be gone. The plaintiff, on the other hand, will not be entitled to recover his, under such circumstances, though he ultimately obtain a verdict in the action.-Whipple v. Williams, 4 How. 28.

The usual forms of notice of trial of an issue of fact, or of argument of an issue of law or appeal, before the general or special terms, which all are subject to the same general conditions as to time, service, and otherwise, will be found in the Appendix.

In the court of appeals a different period is prescribed, as see hereafter.

Where notice of trial of an issue of fact is given by the plaintiff, and no affidavit of merits has been served on the part of the defendant, (as to which, see subsequent portion of the chapter,) it is necessary that the intention to take an inquest should be expressed upon the face of that notice. If omitted, it cannot be taken.-V. Rule 12 of supreme court. Where such affidavit has been served, or where the notice is on the part of the defendant, the correct practitioner will strike these words out of the ordinary form, though the omission to do this will not vitiate the notice, and usually happens.

If the plaintiff notice the cause for trial, and put it on the cal

endar in the ordinary form, he is bound to bring it on for trial when it is reached, or he will be liable to a motion for dismis sal on the ground of want of due prosecution.-Bishop v. Morgan, 1 C. R. (N. S.) 340.

The provisions of the Code on this subject extend to the case of a trial by referees, on which it is competent for both parties to give notice in the ordinary form, and for the defendant to proceed upon his notice, by default, and take a report in his favor, in the event of the plaintiff's omission to proceed; and such will be his proper course.- Williams v. Sage, 1 C. R. (N. S.) 358.

It is, of course, incumbent upon the plaintiff to serve notice upon every defendant, as, otherwise, he cannot bring on the cause as against those with respect to whom he has omitted to do so. Under ordinary circumstances, it will not be necessary for a defendant to serve co-defendants. Where, however, in his answer, he seeks relief as against them, it might be prudent. Section 258 gives him power to take "a dismissal of the complaint, or a verdict or judgment, as the case may require;" and, of course, he cannot obtain affirmative relief, as against any party who has not been duly cited to appear. Cases of this description are, however, not likely to be frequent; and it may be well doubted whether, even after notice so given, he could, in the event of a general default, do more than take a dismissal of the complaint as against the plaintiff. If the cause come on in due course, and all parties are heard, there is no question but that the court then possesses the power of passing upon the mutual claims of all parties; but the defendant's power to obtain affirmative relief, by default, as against parties other than the plaintiff, seems questionable. There is no reported case upon the point, but the more consistent view seems to be, that, on the plaintiff's default, the whole case falls to the ground, and is out of court; and that, if wished for, affirmative relief, as against other parties, can only be obtained by a party in that position, in the ordinary mode, by means of an affirmative proceeding. Allegations of equities between co-defendants, when standing alone, forms no defence as against the plaintiff's right to recover-V. Woodworth v. Bellows, 4 How. 24; and the converse of this proposition, i. e., that, if the plaintiff abandon his case, the whole proceeding becomes inoperative, and a dismissal of the complaint the only proper course, would seem to be

equally sound. The experiment appears, however, to be open for trial, if thought expedient.

With reference to the time prescribed by section 256, in Easton v. Chamberlin, 3 How. 412, it was held, that the language of this section is governed by that of section 407, and, therefore, that the day of service of a notice of trial is exclucluded from, and the first day of term included in the computation of the ten days required under the former. The same point was decided, and a notice served on the 11th for the 21st held good, in Dayton v. McIntyre, 5 How. 117; 3 C. R. 164. Where service by mail is admissible, the above time is, of course, double, and a twenty days' notice, instead of ten, must be given.

The notice should be for the first day of the term or circuit, on the calendar for which the cause is placed. In the court of common pleas this is the subject of a special order, No. 5 of orders of 1848, but in all the others it is equally necessary.

By giving notice of trial, the party admits that the pleadings are sufficient to raise an issue, and cannot afterwards move, under section 160, to strike out redundant matter.-Esmond v. Van Benschoten, 5 How. 44. The plaintiff may give notice of trial, &c., immediately on the service of the reply, though, of course, at his peril, if the defendant subsequently amend under section 172. The cause is then properly at issue, notwithstanding the defendant's right to do so. The former is not, however, obliged to bring the cause on, until the expiration of a reasonable time after the time to amend has elapsed, unless the defendant waive his right to amend by giving notice of trial, or that he shall not avail himself of that right. If the defendant so waive his right, the plaintiff is then, apparently, bound to go on-Cusson v. Whalon, 5 How. 302, 1 C. R. (N. S.) 27—and it would seem that ten days after the time to amend has expired, is a reasonable time to prepare for trial. In cases where service by mail is allowable, the defendant has forty days to amend, and the plaintiff will not be in default till after that time has elapsed. The provisions of section 172, allowing twenty days for that purpose, do not limit the period absolutely, without reference to section 412. Same case.

The notice of trial is, in a great measure, the same as that under the old practice, and is generally subject to the same incidents. If insufficient, of course no proceeding grounded on