difficult to conjecture on what ground this could have been held.

In cases where a demurrer is put in, an affidavit of merits may possibly be necessary. See Appleby v. Elkins, 2 Sandf. S. C. R. 673, 2 C. R. 80, where leave to answer was refused, on judgment being given on a frivolous demurrer, on the ground that there was no affidavit of merits.

The cause having thus been regularly put on the calendar, and noticed by either or both of the parties, and the necessary measures, in order to prevent an inquest, having been taken on behalf of the defendants, it remains to notice, shortly, the preparations for the trial itself.

On an issue of law, or an appeal, no witnesses, of course, are necessary. The proceedings for enforcing the attendance of those required upon the trial of an issue of tact, are identically the same as under the old practice; and therefore, under the general plan of the work, they will not be here entered upon in detail. The statute law on the subject of witnesses, their privileges, compelling their attendance, &c., will be found in art. VI. title III. chap. VII. part III. of the Revised Statutes, 2 R. S. 400 to 403; and the power of courts of record to issue subpœnas, at 2 R. S. 276. The punishment for refusal or neglect to obey such subpoena, by process of contempt, is prescribed in title XIII. of chap. VIII. part III. of the same statutes, 2 R. S. 534 to 541; the witness being also punishable by fine and imprisonment, under the article first referred to. The proceedings for obtaining the testimony of a party in prison, by means of a habeas corpus ad testificandum, will be found in the first five sections of art. I. title I. chap. IX. of part III., 2 R. S. 559.

The mode of service of subpoena, is by delivering a copy of it, or a ticket containing its substance, to the witness, showing him, at the same time, the original writ, under the seal of the court issuing the same. Both subpoena and ticket, are ordinary forms, to be procured at any legal stationers. The fees allowed by law to such witness, for traveling to and returning from the place where he is required to attend, and the fees allowed for one day's attendance, must be paid, or tendered to such witness at the time of service, or his attendance cannot be enforced.-V. 2 R. S. 401, sec. 52. Those fees will be found at 2 R. S. 643, sec. 49. They consist of traveling fees, at the

rate of 4 cents per mile, going and returning, if the witness resides more than three miles from the place of attendance. Within that distance, he is only allowed the fee for his attendance, which is fifty cents for each day during which he is engaged. One day's fee must, as before observed, be paid to him, at the time of the service of the subpoena. For further particulars, if required, see the books on the former practice. Under the Code, the evidence of the adverse party is obtainable in the same way as that of an ordinary witness, and may be compelled in the same manner,-sec. 390. He must be served with a subpoena, and his expenses tendered or paid, precisely as if he were an ordinary witness.

In cases where documents are in the hands of any person, and are required to be produced on the trial, the usual form of subpœna duces tecum should be, used, and the documents required to be produced, should be distinctly and clearly stated on its face, so as to avoid the possibility of any mistake occurring. Forms are similarly obtainable, and this process must be served in the same way as the ordinary subpoena. A party compelling the production of books upon the trial, must remember that, by so doing, he makes them evidence for both sides.-V. Low v. Payne, 4 Comst. 247.

If such documents be in the hands of the adverse party, a notice to produce them, or that secondary evidence will be given of their contents, should be served in the usual manner. This proceeding, and the last, are precisely the same as under the former practice.

The last point to be noticed is the preparation and furnishing of the papers necessary for the information of the court. This is provided for by section 259 of the Code, which runs as follows:

§ 259. When the issue shall be brought to trial by the plaintiff, he shall furnish the court with a copy of the summons and pleadings, with the offer of defendant, if any shall have been made. When the issue shall be brought to trial by the defendant, and the plaintiff shall neglect or refuse to furnish the court with a copy of the summons and pleadings, and the offer of the defendant, the same may be furnished by the defendant.

See as to the correctness of such copies, Wilcox v. Bennett, 10 L. O. 30. Where the defendant anticipates that the plaintiff may fail to attend, he should, of course, be prepared as above.

If, on the contrary, an inquest or judgment by default be anticipated, a calculation of the amount for which the verdict or judgment will have to be taken, should be prepared beforehand, so as to be ready to be sworn to, on the cause coming on. In cases of remittitur with "venire de novo" where an opinion has been pronounced by the court above, a copy of that opinion will probably be reqnired by the judge who presides at the second trial, and should be prepared accordingly.

As a general rule, where any papers are likely to be required in the course of the trial, care must be taken that they are in court, and, where practicable, copies of them should be prepared, ready to hand in to the court when asked for. Of course, the moving party's attorney will take care that any documentary evidence, in the custody of the clerk or other officers of the court, such as depositions taken on commission, former records, or other documents of a like nature, are ready in court, when called for, and previous notice to that effect should be given to such officers accordingly.

In case a postponement of the trial be wished for on the part of the plaintiff, the court will grant an order for that purpose in any proper case, upon sufficient cause shown, on payment of costs to the defendant, and on giving a stipulation to bring the cause on at the next circuit or term, (v. rule 23.) or perhaps without imposing those terms, if the case be one of evident necessity, and involving no hardship on the defendant. With the latter view, it will be expedient not to delay the motion till the last moment, when expences may have been actually incurred, and, when necessary to be made, it must of course be so upon the usual notice. In the ordinary routine of practice, however, the necessity of an application for this purpose may generally be saved, by means of a consent on the part of the opposite party, which will rarely be refused, when the cause is conducted in a fitting spirit on both sides, and the request is really reasonable.

Before entering on the consideration of the actual trial of the cause, the subject of the examination of parties, and of the changes effected by the Code in the law of evidence, will be considered in the two succeeding chapters.

The former is, in strictness, a special proceeding, but it is nevertheless so peculiarly appropriate to this stage of the cause, that the present is evidently the most fitting period for its con

sideration; and the latter, though especially incident to the actual trial, will be more conveniently treated of in a separate form, and dissociated from the formal machinery at the hearing.

CHAPTER VI.

ENFORCEMENT OF ADMISSION, OR DISCOVERY.

THE following are the provisions of the Code, in reference to this subject, and to the rights and powers of litigant parties in this respect, as contained in sec. 388.

§ 388. Either party may exhibit to the other, or to his attorney, at any time before the trial, any paper, material to the action, and request an admission in writing of its genuineness. If the adverse party or his attorney fail to give the admission, within four days after the request, and if the party exhibiting the paper be afterwards put to expense in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense, to be ascertained at the trial, shall be paid by the party refusing the admission; unless it appear to the satisfaction of the court, that there were good reasons for the refusal. The court before which an action is pending, or a judge or justice thereof, may in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy of any books, papers and documents in his possession, or under his control, containing evidence relating to the merits of the action, or the defence therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both.

The first clause of this section speaks for itself, and does not appear to have given rise to any controversy, at least no reported decisions appear. The course seems to be to exhibit the subject matter of the request, at the time of making it, to the adverse attorney, and the request itself ought to be in writing, and must, of course, clearly describe the paper tendered for admission, otherwise following the words of the section. If a re

fusal be given, or if the party requested neglect to give the required admission, the party tendering the paper must be prepared to show upon the trial the exact expense incurred by him in consequence of the refusal, as, by the express provisions of the section, that expense must be then ascertained, in order to its forming an item of additional change, or of set off, as the case may be, on settling the costs. If the application be really a proper one, a refusal can rarely be anticipated. If, however, such refusal be made, the party making it must, of course, be prepared to allege and to show good ground for it upon the trial, to the satisfaction of the court, in which case he will discharge himself from any liability to costs as above.

The subject of discovery, as embraced in the latter part of the section, is one of a more complicated nature, and has given rise to more question and discussion.

This proceeding is, in its substantial elements, the same as that of the bill of discovery, under the former chancery system. It is also expressly provided for by the revised statutes, title III. chap. I. of part III. sections 21 to 27 inclusive; 2 R. S. 199, 200. By these sections, the supreme court are empowered to compel such discovery, in any proceeding therein, the practice to be prescribed by rule, but, in the meantime, to be governed by that of the court of chancery. The application is expressly prescribed to be made by petition, verified on oath, upon which an order for the discovery, or to show cause why it should not be made, may be granted by the court, or by a judge. Provisions are then made for vacating such order, on proof of compliance, or of impossibility to comply with it, or that it ought not to have been granted; but all proceedings of the party against whom it is granted, are, in the meantime, to be stayed. The penalty, in case of refusal or neglect, is next prescribed as a non-suit on the one hand, or the striking out the defendants' pleading or restricting him in his defence, on the other, but such penalty is not to extend to any further proceedings against the person or property of the party in default; and it is lastly prescribed, that any documents produced under any such order, should have the same effect, as evidence, as if produced on notice according to the practice of the court.

Rules were made by the supreme court in pursuance of these provisions, by which the former practice was governed.—See