when the verdict or inquest shall have been set aside, the clerk of the supreme court, in case such roll shall be filed in his office, shall re-deliver the same to the attorney of the party who filed such roll; and the proper continuances may be entered on such roll, and the same may be used from time to time until the trial of the cause."31 SECTION II. OF NOTICE OF TRIAL, AND INQUEST, OF COUNTERMANDING THE Notice of trial.] Previous to the circuit at which the plaintiff intends to try the cause, he must give due notice of trial: and if he proceed to trial without giving any notice, or without giving it a sufficient time before the trial, the verdict may be set aside for irregularity. It is incumbent on the plaintiff, if nothing is done on either side by which the proceedings are stayed, to avail himself of the first opportunity, after issue is joined, for going to trial. And the plaintiff, after an issue Plaintiff is tendered to the country, is not obliged, as we have before wait twenty seen,34 to wait twenty days before giving notice of trial, to see sue tendered, whether the defendant will demur or not; but he may immediately notice the cause for trial at the peril, however, of the defendant's putting in a demurrer, bona fide, within the twenty days.35 33 need not days after is Notice must be in wri ting. Contents of notice. 36 The notice must be in writing, and must be served in the same manner as other notices which occur in the progress of the cause.$7 The purport of the notice is, that the cause will be brought to trial on the first day of the sittings, or circuit, at the hour when the court usually opens, or as soon thereafter as counsel can be heard and this is a sufficient intimation to the defendant, that he must attend in court until the cause is called on, whenever that may be. If there are two or more causes pending between the same parties, one of which only is noticed for trial, the notice must specify the action intended to be tried. Several de- Where there are several defendants who appear by different attorneys, a separate notice should be served on each attorney;39 and where there are several defendants, and one of them pleads and the other lets judgment go by default, the notice should express, that the issue joined with the former will be tried, and that the jury will at the same time assess the damages against the latter.40 fendants, separate no ticesi Inquest. When it is apparent that the defendant can make no defence, and that the plea which he has put in was intended merely for delay, the plaintiff may notice the cause for trial as an inquest; by which means he is enabled to take an inquest by the default of the defendant, at any convenient time during the circuit, without waiting until the cause is called on in its regular order on the calendar. Inquests of this kind appear to have been long in use, and to have been sanctioned by the practice of the court before the general rule of November term, 1808, by which they were first regulated.41 The ⚫ substance of this rule is comprised in the revised rules of the court, by which it is ordered, that, "inquests in causes may be taken at the circuit out of their order on the calendar at the opening of the court, on any day after 36 R. St. P. 3. Ch. 7. T. 4. s. 7. Vol. 2. p. 410. 37 See post, Vol. 2. 381 Wendell Rep. 22. 39 3 Price. 72. 40 2 Tidd. Pract. 814. 41 3 Johns. Rep. 535. 1 Dunlap. Pract. 589. the first day of the circuit, provided the intention to take an inquest is expressed in the notice of trial; and if a sufficient affidavit of merits shall not have been filed and served; and when an inquest shall have been regularly taken, the same shall not be set aside except on payment of the costs thereof."4 days notice. Formerly notices of trial were either of eight or fourteen Fourteen days, according to the circumstances of the case ;43 but now it is required by statute, that "written notice of trial of every issue of fact shall, in all cases, be served at least fourteen days before the first day of the court at which such trial shall be intended to be had."44 The time is calculated, as in other cases, by excluding from the computation the day on which the notice is served.45 When the court grants the defendant some favour, such as Short notice. to set aside a default incurred by him, a condition is frequently annexed, that he shall accept short notice of trial. By short notice was formerly understood a notice of four days, exclusive of the day on which it was given ;46 but seven days notice would probably now be considered requisite. Where tried, new notice. If the plaintiff do not bring on the cause pursuant to notice, or if the judge has not time to try it, or it is put off by the not consent of parties, the plaintiff cannot go to trial at the next circuit, without giving new notice. So if the trial be put off by rule of court, there must be a fresh notice of trial; 47and even where the plaintiff gives a peremptory undertaking to go to trial at the next sittings, there also a new notice of trial must be given, because, notwithstanding such undertaking, the plaintiff may decline trying his cause.48 Sufficiency of notice. Must be given four circuit. In determining the sufficiency of a notice for trial, and similar notices, the court will inquire whether the attorney or party was misled by the defect ;49 and for this purpose they will look not only to the face of the notice, but to other circumstances, to see whether the opposite party was in fact misled.50 A notice in which Jeunis was written Teunis, was held good." So a notice of trial for Tuesday, the 18th, instead of Monday, the 18th, was considered sufficient; the period at which the circuit is to be held being a matter of public notoriety.52 But it seems that if it should appear that the party was in fact misled by such a defect, it would be otherwise.53 Note of issue.] At least four days before the opening of days before the court, a note of the issue must be served on the clerk of the court in which the cause is to be tried.54 This is a brief statement, containing the title of the cause, the nature of the action, with the situation of the pleadings, the day on which issue was joined, and the names of the respective attornies. This rule is for the convenience of the clerk in making up the calendar, in which the causes are arranged and numbered ac cording to the dates of their issues. Countermanding notice.] If the plaintiff discover that he will not be able to proceed to trial at the sittings for which the cause has been noticed, he should countermand the notice; otherwise he will be obliged to pay the defendant the costs of the circuit. The countermand of notice of trial must be in writing, and must be served at least six days before the day Costs after for which the notice was given.55 If the plaintiff, after giving notice of trial countermands it, he must pay the defendant his costs, if any have arisen, between the time of receiving the countermand. 49 3 Caines' Rep. 87. 133. 4 50 4 Cowen. Rep. 60. 53 4 Cowen. Rep. 60. 54 R. St. P. 3. Ch. 7. T. 4. s. 8. Vol. 2. p. 410. 55 Rule 22. notice of trial, and the service of the countermand.56 And though the act of God be the cause of not proceeding to trial, yet if the impossibility of proceeding be discovered in time for a countermand, which the plaintiff neglects to give, he must pay the costs.57 made. Affidavit of merits.] The rule before cited,5 puts it in the power of the defendant to prevent the plaintiff from taking an inquest, by filing and serving an affidavit of merits. The Contents. affidavit to prevent an inquest must state that the defendant has a good and substantial defence on the merits, as he is advised by counsel and verily believes.59 The general rule is, that the affidavit must be made by the defendant, but in the absence of the defendant, it may be made by his attorney or counsel. By whom But when the affidavit is made by another person than the defendant, it must contain some sufficient excuse for omitting the defendant's affidavit.61 One who marries a feme defendant, pending the action, though not technically a party, is yet substantially a defendant, and may accordingly make an affidavit of merits.62 The affidavit cannot be made before the plaintiff has declared, because, until the declaration is filed, the defendant cannot be presumed to know the grounds of the action, and cannot, therefore, be legally advised as to a defence.63 A Copy must copy of the affidavit must be served on the plaintiff's attorney, as expressly required by the rule ;64 and if this be not done, the defendant must pay the costs, in case the inquest is afterwards set aside.65 When a cause is called in its regular order on the calendar, the defendant has a right to appear and defend, though no affidavit, or an insufficient one, has been filed.“ be served. 66 R. St. P. 3. Ch. 10. T. 1. s. 36. Vol. 2. p. 618. et vide 1 Wendell. Rep. 97. 18 Johns. Rep. 135. 571 Caines' Rep. 484. 58 Rule 32. 59 5 Johns. Rep. 355. 60 11 Johns. Rep. 82. 3 Johns. Rep. 142. 61 2 Cowen. Rep. 583. 645 Johns. Rep. 55. 15 Johns. 65 15 Johns. Rep. 536. 66 1 Wend. Rep. 77. |