Ward agt. Davis and others.

commencement of this suit, in the county of Saratoga; and he has designated that as the place of trial.

If the foregoing provisions of the Code are to be construed literally, Saratoga is the county where this issue of law as well as the issue of fact is to be tried.

But I am of the opinion that title 4 of part 2 of the Code (§ 123 to 126) relates exclusively to the trial of issues of fact. The 125th section recognizes the power of the court "to change the place of trial in the cases provided by statute." The statute there referred to, is article 1, title 4, ch. 7 of part 3d of the Revised Statutes (2 R. S. 409), entitled "of the trial of issues of fact," and it provides in express terms, for issues of fact which are to be tried by a jury, and for no other cases. Issues of law, under the former practice, were always heard at the general term, without reference to the place where the venue was laid. The judiciary act of 1847, confined the trial of issues of fact to the county where the parties, or some of them resided, and in certain cases, where the venue was laid. It left issues of law to be brought to argument as formerly, without reference to the venue (Laws of 1847, 333, § 46, et seq.) The reason for confining the trial of an issue of fact to a particular locality, does not apply to the trial of an issue of law. The convenience of witnesses has nothing to do with the argument of a demurrer.

The whole embarrassment in this case has been created by adopting a new definition to the word trial in § 252. This word at the adoption of the Code, and for the two hundred years previous, was understood to mean, the examination, before a competent tribunal, according to the laws of the land, of the facts put in issue, for the purpose of determining such issue (Burrel's Law Dict., title Trial; 3 Bl. Com. 330; Stephens' Pl. 76, 77). The word was formerly used in a broader sense, according to Coke, and comprehended issues of law as well as of fact (Co. Lyt. 125, a. b). But even then, it was usually applied to the determination of questions of fact; and all the commentary of Coke upon the nature and locality of trials, is predicated exclusively of trials of matters of fact (see Co. Lyt. 125,

Robb agt. Jewell.

a. b. &c.) The Code recognizes two sorts of issue, namely, an issue of law and an issue fact, and it provides for trial of an issue of law by the court, or a referee, and an issue of fact by a jury, by the court without a jury, and by a referee. It fixes the place of trial for issues of fact, and provides for changing it for sufficient reason, but makes no such express provision for the trial of issues of law. Effect can be given to all the provisions of the Code, if we construe title 4 of part 2 of the Code (§ 123 to 126), as providing only for issues of fact. The practice then, with reference to issues of law, will be left as it was before the Code, so far as relates to locality. The argument of a demurrer may, therefore, be brought on at any special term in the district, or at a special term in a county adjoining that in which it is triable, though in another district (Code, § 401); except that when the action is triable in the first judicial district, the motion must be made there (id).

I should not hesitate, therefore, to take cognizance of this demurrer, at this special term, though the place of trial is Saratoga, were it not for a defect in the papers.

The plaintiff is at liberty to withdraw the motion.

NOTE. Since the foregoing decision the legislature have altered the 252d section of the Code, so as to leave no doubt that an issue of law may be brought to argument at any general term in the district.

SUPREME COURT.

ROBB agt. JEWELL.

Where a new trial is granted on application of the defendant, a copy of the order must be served on the plaintiff's attorney before the defendant can move for a dismissal of the complaint, for not proceeding to trial. Otherwise, where a new trial is granted on motion of the plaintiff.

Albany Special Term, November 1851. This was a motion to dismiss the complaint, under rule 23.

J. BRUYN, for Defendant.

J. HARDENBURGH, for Plaintiff.

Robb agt. Jewell.

PARKER, Justice.-The defendant moves for a dismissal of the complaint, on the ground that the plaintiff neglected to bring this cause to trial at the Ulster circuit, held on the 27th of last October.

It appears by the affidavits that this cause was tried at the Ulster circuit in April 1850, when judgment was recovered by the plaintiff. The defendant appealed and judgment was reversed, and a new trial ordered at general term in September last. The defendant's attorney states in his affidavit that more than twenty days before the circuit, he served on the plaintiff's attorney a copy of the order granting a new trial. The plaintiff's attorney swears that no such paper was served on him. On the evidence before me, therefore, the defendant has failed to establish the service of the order.

It was decided in Jackson vs. Wilson (9 John. R. 265), that where a verdict is set aside and a new trial granted on motion of the defendant, a copy of the rule must be served on the plaintiff's attorney before the defendant can move for non suit for not proceeding to trial. But where the new trial is granted on the plaintiff's motion, he must proceed to trial without notice from the defendant, or he may be nonsuited (Jackson vs. Johnson, 7 Cowen, 419). I see no reason for changing this practice under the Code. The service of a copy of the order being therefore necessary in this case, and it not being affirmatively shown to have been served, the defendant is not in a situation to move for a dismissal of the complaint.

The defendant also seeks to sustain this motion on the ground that the plaintiff is a feme covert, and has not sued by guardian. Conceding that the affidavits and notice are properly framed to raise this question, which is at least doubtful, yet, it appearing by the opposing affidavits that the same question has been before raised on motion and decided against the defendant, this motion can not be sustained on that ground.

This motion must, therefore, be denied, with $10 costs.

Whalen agt. The Board of Supervisors of Albany County.

SUPREME COURT.

WHALEN, Appellant, agt. THE BOARD OF SUPERVISORS OF THE COUNTY OF ALBANY, Respondents.

A written stipulation by the parties to refer a cause to a referee “to hear and report thereon," is sufficient to confer jurisdiction and sustain the judgment, although the referee may not have been sworn, or a rule of court entered upon his appointment. The court will order a rule entered nunc pro tunc, if necessary. (This appears to overrule the decision in Litchfield agt. Bennett, 5 How. Pr. R. 341.)

Where the parties appear and argue the cause before the referee, without objection, it is a waiver of such defects.

Albany General Term, December 1851-HARRIS, PARKER and WATSON, Justices. This was an appeal from an order of Justice Wright at the Albany special term, held in May 1850.

The cause was referred by a written stipulation of the parties in January 1850, to a referee," to hear and report thereon."

The referee on the hearing decided that the complaint did not state facts sufficient to constitute a cause of action, and reported that nothing was due the plaintiff. Judgment was entered by defendants on the report.

The plaintiff moved to set aside the judgment for irregularity, on the ground that the referee had not been sworn in the cause, and on the ground that no rule of court had been entered upon the stipulation appointing the referee.

The motion was denied, and the plaintiff appealed.

C. PEPPER, for Appellant.

AUSTIN & MCMAHON, for Respondents.

By the Court, HARRIS, Justice.-The only question in this case is whether the defects specified are sufficient to warrant us in setting aside the judgment. These defects, such as they were, were waived by the plaintiff appearing before the referee and arguing the cause without any objection. Besides, we think, the stipulation by its terms was sufficient to confer jurisdiction upon the referee, and we should feel bound, even now, to order

Hornfager agt. Hornfager.

a rule of reference to be entered upon it nunc pro tunc. The decision of the judge below must be affirmed in this and the four other causes depending on the same question, with ten dollars

costs.

SUPREME COURT.

HORNFAGER agt. HORNFAGER.

Where it does not appear from the face of the complaint that another action is pending for the same cause, the objection should be stated as a defence in the answer (147), otherwise by demurrer (§ 144).

And this applies to actions for partition.

Columbia Special Term, October 1850. This was a motion by plaintiff to set aside the proceedings in an action for partition, commenced by the defendant, on the ground that an action for the partition of the same premises had been previously commenced by the plaintiff.

J. C. NEWKIRK, for Plaintiff.

A. L. JORDAN, for Defendant.

PARKER, Justice.--Where it appears by the complaint that there is another action pending between the same parties for the same cause, the remedy is by demurrer (Code, § 144, sub. 3). When any of the matters enumerated in section 141 do not appear upon the face of the complaint, the objection may be taken by answer (Code, § 147). This is applicable to a suit brought by a defendant for partition. It is a suit between the same parties for the same cause.

The remedy is to set forth in the answer in the suit last commenced, the fact of the pendency of the first suit commenced. Motion denied, but without costs.