Cusson agt. Whalon.

going to trial, could not now be made; nor a motion for judgment as in case of nonsuit.

S. AMES, for the Motion.

A. POND, Contra.

HAND, Justice. No doubt, where both parties were actors, as in an action of replevin, no motion for judgment as in case of nonsuit, would be entertained, before the Revised Statutes (2 Tidd's Pr., 703; Forrester vs. Barrett, Coleman's Pr. Ca., 92, S. C. 1 J. C. 247. And see Rogers vs. Tifft. 17 J. R. 267). By the Revised Statutes, where neither party noticed the cause in replevin, the defendant might move (2 R. S. 530, § 46. And see Potter vs. Babcock, id. in notes). By § 258 of the Code, either party may notice the cause for trial. It would have been more analagous to the old practice, to have considered this as abolishing the right to move for judgment as in case of nonsuit, or for dismissal of the complaint for not trying the cause, as no such right is given to defendant by the Code, or at least in such direct terms, as was by the Revised Statutes in case of replevin. But the Supreme Court has, by rule, adopted a different construction. Rule 23, expressly authorizes a motion to dismiss the complaint, with costs, for the neglect of the plaintiff to bring the cause to trial. And perhaps this is better than to put parties to the trouble and expense of the defendant attending prepared for trial, when all he asks is to terminate the cause, Lee vs. Brush, cited by the plaintiff's counsel, of which a very brief note is found in 3 Code R. 165, was probably an issue of law. It is enough, however, that the rule does not conflict with any statute and is the act of the whole court, which always had power to change its own practice, when that can be done without violating a statute. When prescribed by legislation, it is an iron rule, that can not be broken or bent by the courts, whatever be its effect; because it is made by a higher power. And therein consists the danger of legislating in relation to the mere details of the practice of the court, which should be allowed sometimes to conform to the exigencies of the occasion, to prevent injustice (3 Chit. G. Pr. 50-55).

Cusson agt. Whalon.

But it is said this notice is for judgment as in case of nonsuit; whereas the act and the rule allow the court to " dismiss the complaint, with costs" (Code, § 274, Rule 23). The last part of §274 is: "The court may also dismiss the complaint, with costs, in favor of one or more defendants, in case of an unreasonable neglect of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served." But notwithstanding this phraseology and that of the 258th section would seem to require the defendant to notice the cause in order to take a judgment, that is only necessary when he asks for some relief, or something more than 'a dismissal of the suit; and I think the defendant may have a judgment for his costs where the complaint is dismissed. Calling it a judgment as in case of nonsuit in the notice, does not mislead, and is the same thing in effect though by another name.

Another objection to the motion is, that the plaintiff was not bound to consider the cause as finally at issue, until the lapse of forty, or at least twenty days, after he served his reply; and if the latter time only, then he insists it was too late to notice. The defendant has a right to move for judgment as in case of nonsuit, whenever there is, after issue joined, time to notice the cause for trial (Brooks vs. Hunt, 3 Cai. R. 94). But formerly, not till all the pleadings in a cause were carried to an issue (Mumford vs. Stocker, 1 Cow. 602). Before the Code, perhaps this precise question could not well arise, for the party was not at liberty after plea to amend a pleading already answered (Cowles vs. Coster, 4 Hill, 550); though cases very analagous have been decided in our courts. The right to amend is now given by § 172. "Any pleading may be once amended by the party, of course without costs, and without prejudice to the proceedings already had, at any time before the period of answering it shall expire, or within twenty days after the answer to such pleading shall be served. In such case a copy of the amended pleading shall be served on the adverse party."

There is no doubt but that both parties in this case could have served notice of trial, immediately after the reply was served.

Cusson agt. Whalon.

By $256, at any time after issue, and at least ten days before the court, either party may give notice of trial." When a reply denying the answer is put in, there is an issue, notwithstanding the parties may have the mere right to amend. Though it has been decided, that if the plaintiff notices the cause for trial, before the time the defendant has to amend expires, he does so at his peril (Paige, J. in Washburn vs. Herrick, 4 How. Pr. R. 15. See Shultys vs. Owens, 14 J. R. 345). And Mr. Justice GRIDLEY set aside a judgment where the defendant demurred to the complaint, and noticed it for argument and took judgment by default within twenty days after service of the demurrer, and before the service of amended complaint, which was also put in within twenty days. Though he admitted both sides had pursued the plain language of the act (Morgan vs. Leland, 1 Code R. 123). And see Hawley vs. Hanchet, 1 Cow. R. 152). No doubt if the plaintiff had not amended, the defendant in that case would have been regular. The right to amend is not per se a stay of proceedings.

If the defendant waives his right to amend, either by noticing the cause for trial, or by express notice that he shall not amend, unless the plaintiff alsó may take time to amend, the latter is bound to go on. But if the defendant does not do that, I think an equitable construction will not hold the plaintiff in default, where there is not a reasonable time before circuit, to prepare for trial, after the time to amend shall have elapsed. Perhaps the statute has determined that to be ten days. There is nothing in the way of noticing the cause at any time after service of the reply; and, if no amendment be interposed, the plaintiff then would have ten days to prepare. Vigilance is always beneficial to litigants. In this case, if the time in which to amend terminated on the 20th day of January, the plaintiff had fourteen days, and should have tried the cause. It is insisted, however, that as the reply was served by mail, the defendant had forty days in which to amend (Code, § 172, 412, Washburn vs. Herrick, supra). This is evidently the true construction of the statute, and the provision in § 172, allowing a pleading to be amended within twenty days after the answer to it shall be served, does not limit the

Anonymous.

period for amendment, absolutely, without reference to § 412. Mailing is service (Van Horne agt. Montgomery, 5 How. Pr. R. 238).

But there is another part of the case that, after some hesitation, I think, obviates this difficulty. This suit, which is for a trespass, it appears by the plaintiff's affidavit, was originally commenced in a justice's court, where the defendant pleaded title in another, and an entry under him, and gave the requisite undertaking. I do not see how the defendant could amend his answer in this court (Code, § 60. And see McNamara vs. Bitely, 4 How. Pr. R. 44). If I am right on this point, there was no danger in noticing the cause without waiting for an amendment. The motion must be granted, but with leave to stipulate. Ordered accordingly.

SUPREME COURT.

ANONYMOUS.

Under the Code, the court may order a feigned issue in an action for divorce on the ground of adultery, tried by referees, by consent of the respective parties. It is not now, as formerly, a matter of course to have such issues tried by a jury. They may, under the direction of the court, be tried by the court, a jury, or by reference.

New York Special Term, Oct. 1850. This was a suit for a divorce on the ground of adultery, in which the defendant had put in an answer denying the offence charged, thus bringing the case within section 38 of 2 R. S. 145, which requires the court in such cases to direct a feigned issue to be made up for the trial of the facts by a jury at some Circuit Court.

C. O'CONOR, for plaintiff, on a stipulation to that effect, signed by both parties, moved that the whole matter in issue be referred to referees agreed upon between them.

EDMONDS, Justice. I have ever regarded the provision of the Revised Statutes as a wise one, because calculated to guard against that collusion, which there is so much cause to appre

Anonymous.

hend in these cases, and I have been reluctant to admit that it has been superseded by more recent enactments. Yet upon a careful examination of such enactments, I do not well see how it can be doubted that the Revised Statutes have been superseded in this respect.

The Constitution, art. 1. § 2, declares that a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. The Code of practice, § 266, declares that it may be waived with the assent of the court, by written consent, in person or by attorney, filed with the clerk; and by §270, that all or any of the issues in an action, whether of fact or of law, or both, may be referred upon the written consent of the parties.

These sections would leave it optionable with the court to waive a trial by a jury and to order a reference or refuse it, as might seem best. But there are other provisions, which establish this option more conclusively still. Sections 253, 254, declare that whenever in an action for the recovery of money only, or of specific real or personal property, there shall be an issue of fact, it must be tried by a jury, unless a jury trial is waived or a reference be ordered, and that every other issue (including of course those in suits for a divorce) is triable by the court which may order a trial by jury or a reference.

So that in cases like this, a jury trial instead of being a matter of course, as it was under the Revised Statutes, is to be had only by a special order of the court. In an ordinary case, where neither party applied for it, the court would not be likely to order a trial by jury, and the result would be either a trial by the court or a reference.

In this case, neither party asks for a trial by jury, but both agree in asking a reference. The referees named being unexceptionable, I see no reason under this manifest alteration in the law for refusing the application.

Motion to refer granted.