Name, &c. court, and without any nisi prius clause." The next section provides, that "such transcript shall be denominated a circuit roll, and shall be filed with the clerk of the court at which such issue or issues are to be tried; but no such transcript shall be necessary, unless the cause is to be tried at a circuit court, nor shall a seal to such roll in any case be necessary." Of what term. 112 These provisions in the statute are derived from the second section of the "act for regulating trials of issues," &c., in the former edition of the revised laws; and in some respects essentially alter the practice. The name of roll is changed, it having been formerly termed the nisi prius roll; and the nisi prius clause, the award of the venire, and the use of a seal are abolished. In other respects, as no form is prescribed, it is presumed to be the intention of the statute that the circuit roll should correspond with the nisi prius roll formerly in use.4 Placita.] The circuit roll should commence with a title, or placita, as it is called, containing the style of the court, and the term of which issue was joined, in the following words: "Pleas hefore the justices of the people of the state of New York, of the supreme court of judicature of the same people, at the city hall in the city of New York," (or "the capitol in the city of Albany," or "the academy in the town of Utica, in the county of Oneida," as the case may be,) “of term, in the year of our Lord. Witness John Savage, esquire, chief justice, Fairlie, Paige and Hubbard, clerks." In actions by bill, the record must be made up, or as it is frequently termed, the issue must be entered of the term in which issue was joined: and although the issue were in fact joined in vacation, yet it always has relation to the antecedent term, original. and is so stated in the record.10 In actions by original, it is Actions by said to be more correct to entitle the issue of the same term as the declaration; but it may be entitled of the term in which issue is joined, in the same manner as in actions by bill. After the placita, follows the issue, being a transcript of what was contained in the issue roll, formerly required to be filed;" but since abolished.10 The issue contains an entry or tran- The issue. script of the declaration, and the other subsequent pleadings. cases it va Memorandum.] In actions by bill, the issue commences with a memorandum, stating the exhibiting of the bill, and that there are pledges for the prosecution of it." The memo- In what randum varies in four cases: first, where the issue is of the same ries. term with the declaration; secondly, where it is of the same term with the declaration, and the cause of action arose after the first day in term; thirdly, where it is of a term subsequent to the declaration, and within four terms after; fourthly, where it is more than four terms after the declaration. In the first case, the memorandum states the bill to have been exhibited on the first day of the term on which the declaration was filed, or which is tantamount, in the term generally in the second case, the memorandum is special, stating the bill to have been exhibited on a particular day in term, after the cause of action accrued: in the third and fourth cases, it pursues the fact, with this difference, that in the third case the term of exhibiting the bill is referred to as last past; and in the fourth, as in a particular year.12 A special memorandum is necessary, where the cause of action has arisen after the ral memo plaintiff may first day of the term, of which the declaration is entitled. Where gene- But if a general memorandum, which relates to the first day randum, of term, be by mistake inserted instead of a special one, the plaintiff may produce the writ, in order to show that the action was not actually commenced until after the cause of action accrued ;14 or he may have leave to amend the issue, on payment of costs.15 In actions by original, no memorandum is requisite.16 site. Imparlance.] In actions by original, no imparlances are When requi- necessary;17 but in actions by bill, if the plea be of a term subsequent to the declaration, it is preceded on the record by the entry of an imparlance.18 Only one imparlance is neces sary, which must be from the time of the declaration to that of pleading, without regarding any intervening term: nor is any imparlance requisite before the replication, or subsequent pleadings, for they are all supposed to be pleaded the same term as the plea.19 After the imparlance, the other pleadings, if any, are copied in their proper order. other county. Suggestions on roll.] In local actions, where an impartial Trial in an trial cannot be had in the county in which the venue is laid, the practice has been to move the court for leave to enter a suggestion on the roll, in order to have the trial in the next adjoining county, with a nient dedire, so called from the language used in entering the suggestion; (because the said A B doth not deny the allegation aforesaid) and such suggestion could not be traversed.20 In the revised statutes, however, the power is given to the court to change the venue, when it shall appear that a fair and impartial trial cannot be had in 13 See 7 Term Rep. 4. 4 East. 75. 14 3 Burr. Rep. 1241. 1 W. Black. Rep. 312. 157 Term Rep. 474. 1 Archb. 75. Pract. 146. 16 2 Saund. 1. n. 1. 20 2 Tidd. Pract. 780. parties. the county in which the venue is laid, without making any distinction between local and transitory actions. 101 Where Death of there are several plaintiffs or defendants in a personal action, and one of them dies before issue joined, his death should be suggested21 in making up the issue; but if he die after issue has been joined, it need not be suggested till the judgment roll is made up.22 Variance between declaration and roll.] The defendant cannot take advantage, on the trial of any variance between the circuit roll and the declaration: the judge at the circuit is governed by the record. But such variance, if material, may be made the subject of an application to the court, and if it appear that the defendant was prejudiced thereby, the verdict will be set aside.23 Order for trial and continuances.] After the pleadings, follows the order24 for the trial of the cause. This may be in the following terms: "Therefore the issue above joined is ordered by the said supreme court to be tried at the circuit court appointed to be held at the court house, in the in and for the county of of aforesaid,” (or if in the city of New York, "at the the circuit court," or "sittings," "appointed to be held at the city hall, in and for the said city and county of New York,") "on the -day of tinuance re next."25 If the cause be not tried at the circuit or sit- When contings first held after issue has been joined, a continuance must quisite. be inserted after the order for trial. In relation to this, it is provided by statute, that "it shall be a sufficient continuance on the circuit roll, and on the record of judgment, to state the fact, that such cause was not tried, and that the process between the 101 R. St. P. 3. Ch. 7. T. 4. s. 2. 35. Barnes. 469. Burr. Rep. 362. Vol. 2. P. 409 2 Saund. 72. K. 21 See R. St. P. 3. Ch. 7. T. 1. s. 1. Vol. 2. p. 386. 22 Com. Dig. Pleader, H. 33. 23 13 Johns. Rep. 486. 8 Johns. Rep. 410. 24 Ante, p. 451 25 See Rules, &c. p. 44. parties is continued until the circuit when such issue shall be tried, or until the term when some judgment of the court shall be given, or some order be made concerning such suit.' 1726 Entry of ne recipiatur.] The circuit roll is made out by the plaintiff's attorney: and it should be filed with the clerk One circuit of the circuit, on or before the first day of the sittings, or roll only allowed and requisite. the defendant may on the next day take a rule for a ne recipiatur, and thus prevent the trial of the cause.27 And it has been held, that the defendant may enter a ne recipiatur, and yet move for judgment as in case of nonsuit.28 The circuit judge, however, should vacate the rule, where it is made to appear that the defendant and his witnesses have not left the court; and, under such circumstances, a motion for judgment, as in case of nonsuit, will be denied, and probably costs imposed upon the defendant.29 The circuit roll is made out by the plaintiff's attorney, unless the defendant has obtained leave to proceed to trial by proviso. One circuit roll only is allowed in the taxation of costs:30 and it is further provided by statute, that "where the cause shall not have been tried, the clerk of the circuit court or sittings at which any such roll shall have been filed, and 26 R. St. P. 3. Ch. 7. T. 4. s. 83. Vol. 2. p. 423. See form Rules, p. 46. 278 Cowen. Rep. 110. 28 Ib. 29 1 Wendell. Rep. 76. 30 R. St. P. 3. Ch. 10. T. 3. s. 22. Vol. 2. p. 634. A former statute Laws, 1818, p. 279. s. 4, contained a similar provision: and it was held, where a cause was put off at the circuit on motion of the defendants, on the usual terms of paying the costs of the circuit, that the nisi prius record was properly taxed as costs of the circuit, although the cause had been noticed and carried down at a previ ous circuit. 4 Cowen Rep. 539. Prima facie, the plaintiff's attor. ney is right in copying the defendant's notice of special matter into the circuit roll and judgment record, and may have this service taxed: but if it be in truth unnecessary, on showing this to the taxing officer, he should strike it out. 4 Cowen. Rep. 546. |