(e.) 3. MIXED ISSUES.

In these cases, it is expressly provided, by section 251, that the issues of law must be first tried, unless the court should otherwise direct. Where the issue of fact has been in fact tried first, it has been held. that the court will presume a direction. Warner vs. Wigers, 2

Sandf., 635.

Where mixed issues have been joined, the course will be to set down the case for general trial, and either to bring on the issues of law preliminarily, or to ask the court for its directions as to the proper mode and order of trial. Same case; Fry vs. Bennett, 9 Abb., 45.

Where, however, if decided in favor of the party demurring, a partial issue of law will, in fact, involve a disposition of the whole case, as where the defendant has demurred by answer, on the ground of the pendency of another action, it has been held that an immediate reference on that specific point is admissible, and that the plaintiff should apply for one, instead of waiting to bring on the cause regularly. Groshon vs. Lyons, 1 C. R. (N. S.), 348. See also Farmers' Loan and Trust Company vs. Hunt, 1 C. R. (N. Š.), 1.

Where an issue of law does not go to the whole, but only to a portion of a pleading, it has been held that the case may be put on the calendar for trial of issues of fact, joined by other portions, without waiting for the decision on the former. Palmer vs. Smedley, 13 Abb., 185.

(f.) 4. SPECIAL ISSUES.

The fourth and last form of issue is the special issue, to be settled by the court, under the powers conferred by section 72.

This form of practice is more peculiarly applicable to proceedings in equity, or the settlement of collateral questions of fact, not directly put in issue by the pleadings. In suits for divorce, on the ground of adultery, this course is now not merely admissible, but imperative.

It may be adopted either on application of the parties, or on the motion of the court itself, signified at the trial.

In the former case, the practice is clearly pointed out by rule 33 The motion must be noticed within ten days after issue joined; it must be grounded upon the pleadings; and the relief asked must be either that the whole issue, or that any specific questions of fact involved therein, be tried by a jury. The questions of fact proposed to be so submitted to the jury must be prepared by the moving party, in the form of simple propositions, capable of a direct answer, similar to those submitted by the judge to the jury, at the close of an ordinary trial. and a copy of those questions served with the notice. Where the proposed submission is in respect of collateral facts, not directly apparent

upon the pleadings, the existence and nature of those facts must be shown by affidavit.

This motion cannot be made as of right, after the period prescribed by the rule. See O'Brien vs. Bowes, 4 Bosw., 657; 10 Abb., 106. It has not been decided, but it might probably be held, that, when the pleading of a party is amendable, that period will not commence to run till the time allowed him for that purpose has expired. The motion may, of course, be brought on at any time, on consent to waive the technical objection. But, after trial, even the leave of the court will not sustain it, if opposed. See O'Brien vs. Bowes, supra.

On the hearing, the court or judge may either settle the proposed issues, or may order a reference for the purpose. Where the questions are clear and simple, the former course may probably be pursued. Where they are complicated, and involve a detailed investigation into facts, the latter is usual.

When settled, the special issues, with the order under which they are settled, which order forms, in fact, the ground of the proceeding (see section 72), must be incorporated in and form part of the actual record. When settled by a referee, his report thereon is also a necessary constituent, and, that report being interlocutory, it should be confirmed in the usual manner, and evidence of its confirmation subjoined.

The issues, when thus settled, must be brought on for trial at the circuit in the usual manner, and the final disposition of the cause may be either made upon the same occasion, or at a subsequent hearing at special term, as the case may require.

In equity cases, the court has the power of directing any question to be tried by a jury, of its own motion, and without any application of the parties. If not convinced that the formation of a special issue is it may refuse the motion, in the first instance, and leave it to come up upon the trial. See Church vs. Freeman, 16 How., 294, where a motion was refused on this ground, leaving the question for subsequent determination.

necessary,

In McMahon vs. Allen, 10 How., 384, a motion to settle special issues was denied, on the ground of the crowded state of the calendars in the first district, and a reference directed. See likewise Wilson vs. Forsyth, 16 How., 448, where an order of this description was vacated, the court not considering that there was any adequate reason for the intervention of a jury. Nor will an issue be granted upon a question already adjudicated. Nichols vs. Romaine, 3 Abb., 122.

At the trial, the question rests entirely in the discretion of the court, which may or may not order an issue to be made and tried by a jury, as it may see fit, and this in the absence of any application of the parties, and even without regard to their wishes on the subject. See VOL. II-15

Church vs. Freeman, supra. And such direction may be made by the court of its own motion, and for its own relief, either before or at the trial. O'Brien vs. Bowes, 4 Bosw., 657; 10 Abb., 106. But, when once the trial is over, and the cause reserved for decision, the power of the judge, in this respect, is exhausted, and he must pass upon the questions, as submitted, and cannot order an issue, or authorize a subsequent motion for that purpose, and any order made on such motion. will be void. Same case.

When ordered at the actual trial, the issues to be submitted may either be settled by the judge at the time or subsequently; or, if expedient, a reference may doubtless be directed by him, in the manner above prescribed.

In Forrest vs. Forrest, 3 Abb., 144, it was considered that, even before the rule, a special issue must always be framed, in a suit for divorce on the ground of adultery. Such issue must, however, be confined simply to that question. It cannot properly comprise, nor can the jury properly pass upon, questions going to the subject of alimony, or other collateral or consequent relief. An issue as to the legitimacy or illegitimacy of any children, should, however, be passed upon at the same time. See rule 90 (68).

CHAPTER II.

PROCEEDINGS FOR SPEEDIER OR MORE CONVENIENT TRIAL.

THE proceedings of this nature, and which will be considered in the present chapter, consist of the following:

1. Motion to consolidate.

2. Motion to elect.

3. Motion for a reference.

4. Motion to dismiss complaint for want of prosecution.

5. Motion to place cause on special calendar, where admissible. Which subjects will be considered in the above order.

§ 195. Consolidation.

The Code is silent as to this remedy. It is obtainable, however, under article IV., title VI., chapter VI., part III. of the Revised Statutes, 2 R. S., 383, sections 36, 37 and 38, which run as follows:

§ 36. Whenever several suits shall be pending in the same court, by the same plaintiff against the same defendant, for causes of action which may be joined, the court in which the same shall be prosecuted may, in its discretion, if it shall appear expedient, order the several suits to be consolidated into one action.

§ 37. If one or more such suits be pending in the Supreme Court, and others be pending in any other court, the Supreme Court may order the suits in other courts to be consolidated with that in the Supreme Court.

§38. When several suits shall be commenced against joint and several debtors, in the same court, the plaintiff may, at any stage of the proceedings, consolidate them into one action.

It will be observed that the granting of this relief rests entirely in the discretion of the court, except in the case provided for in section 38. The enlarged facilities granted by the Code, with reference to the joinder of causes of action, materially extend the scope of this remedy beyond that originally conferred.

A special right to consolidation is given, where separate actions. have been brought by the attorney-general against several persons on one mortgage, covenant or agreement, or who claim under the same title; and it is made the duty of such officer to consent to such consolidation at the request of the defendants. Vide 1 R. S., 181,

section 14.

The motion should, as appears by the above sections, be made in the court in which the actions sought to be affected by it, are pending. If pending in different courts, one of which is the Supreme Court, it must be made in the latter. The case of actions pending in different tribunals of limited jurisdiction does not appear to be provided for. It may be reached, however, by a motion to elect. See next section.

The motion should be framed according to the terms of the particular section relied upon, a demand for further relief being always inserted. The facts necessary to bring the case within the scope of the section invoked, must be shown by affidavit, which must be positive, or it will be insufficient. See Crane vs. Koehler, 6 Abb., 328, note. It must be clearly evidenced that the suits sought to be affected, are for causes of action capable of being joined, and the nature of the defence must be disclosed; it must be also shown, that they are all pending by the same plaintiff, against the same defendant, and in the same court; or, if not, then that one, at least, is pending in the Supreme Court. If any statements of fact be necessary to establish these conditions clearly, those statements should be made. The motion should also be grounded upon the pleadings in the action in which it is made, and also, where feasible, in those sought to be consolidated. The allegations in those plead

ings, may often be sufficient, in themselves, to satisfy the court as to most of the facts required to be established.

The proper period for the motion is, upon the final joinder of issue in all the actions sought to be consolidated. If made before, it will be premature, and subject to be defeated by any subsequent pleading or amendment, where admissible. Le Roy vs. Bedell, 1 C. R. (N. S.), 201.

Where, however, the fact that a number of actions in different counties were brought for the same libel, an order to consolidate was granted, on motion of the defendant, immediately on his appearance made in the county of residence of the parties, the time to plead being that remaining in the county to which the suits were drawn by the consolidation. Percy vs. Seward, 6 Abb., 326.

The motion under section 38, must, under that section, be made by the plaintiff. Under the special statute in relation to actions brought by the attorney-general, the defendant must be the applicant, if a consent be refused. Under sections 36 and 37, it has been held that it is competent for either party to make the motion. Briggs vs. Gaunt, 4 Duer, 664; less fully, 2 Abb., 77. See, however, dictum to the contrary, and adverse to the plaintiff's right to move, in McMahon vs. Allen, 12 How., 39 (46).

Unless it is clearly shown that the defences in actions sought to be consolidated are identical, an order will be refused. Crane vs. Koehler, 6 Abb., 328, note; Morris vs. Knox, ibid.

In Cook vs. The Metropolitan Bank, 5 Sandf., 655, where the plaintiff had commenced sixty-four separate suits for penalties, and which suits were divisible into two main classes, the motion for an actual con solidation was denied, in the first instance, but on terms that the plaintiff was to notice and bring to trial one suit of each class, and that the proceedings in the other suits were to be stayed until after the trial of those selected with liberty to the defendants in the remaining causes, after such trials, to renew their motion for a consolidation, or further stay; and a like liberty to the plaintiff to move for a consolidation, unless the defendants in the remaining causes should consent to abide the ultimate result of the proceedings in the former; in which event, the plaintiff was not to be entitled to any further costs, for putting the subsequent causes on the calendar.

On a consolidation, provision should be made in the order for the costs in the discontinued actions; otherwise the plaintiff, if successful, cannot ultimately recover them. Blake vs. Michigan Southern and Northern Indiana Railroad Company, 17 How., 228.