the argument, when the court will allow it, on such terms as may be just. It was further held, that, upon the trial of the cause, the court may, in their discretion, either order amendments in like manner, or may disregard the variance.

Where, however, the defect is one involving an insufficient statement of facts, the court will not disregard the objection, but will direct an amendment- Vanderpool v. Tasbox, 7 L. O. 150; in which case, an amendment of that nature was allowed without costs, the defect being merely of a technical description.

Where a defect, involving the question that the complaint might be true, and yet the plaintiff not entitled to recover, was first brought to light on the trial, the defendants having omitted to demur; the plaintiffs were allowed to amend, by inserting the necessary averments, on payment of the costs of the trial, the defendant to have twenty days' time to answer.-Executors of Keese & Lawrence v. Fullerton, 1 C. R. 52.

Where one party has been allowed to amend, the court will be disposed to grant the same privilege to the other, though otherwise it might not have been permitted.-Hoxie v. Cushman, 7 L. O.

149.

An exception will not lie to a refusal of a judge to order an amendment at the trial, unless the party has shown a clear case of unquestionable right.-Roth v. Schloss, 6 Barb. S. C. R. 308.

Amendments have been allowed on the trial, under the following circumstances:

Where the plaintiff sued two parties as jointly liable, but failed in proving the liability of one of them, he was allowed to amend, by striking out the name of such party, on condition of his forthwith paying, or giving security to him for his costs, and allowing the trial to stand over, if the other defendant desired.-Bemis v. Bronson, 1 C. R. 27. A mistake in the proper denomination of the plaintiffs, was allowed to be corrected upon the trial, in Barnes v. Perine, 9 Barb. S. C. R. 202.

In Jackson v. Sanders, 1 C. R. 27, permission was given to amend upon the trial, by substituting for a count upon two promissory notes, a count upon a special contract, under which such notes had been deposited, as a temporary security for an unfulfilled arrangement. The plaintiff, however, there refused to come to the terms imposed, and was nonsuited accordingly.

Where the complaint, in slander, had omitted to allege the words complained of, to have been spoken "in the presence or

hearing of some person," the court, at the trial, allowed the complaint to be amended in that respect, without costs, the defendant not having been thereby misled or injured.— Wood v. Gilchrist, 1 C. R. 117.

In relation to sec. 171, it was held, in Deifendorff v. Gage, 7 Barb. S. C. R. 18, that, under an answer averring that property in question in the cause, was "very poor, and of little value," proof could not be received that such property was "worth nothing and of no value."

In Hawkins v. Appleby, 2 Sandf. S. C. R. 421, a less strict view was taken; and the declaration, in that case, having averred representations by the defendant, that a note there in question was "a good note, and would pass in South-street," proof that he said "the note was good, and there were people in South-street who would take it," was held not to be a substantial variance.

Section 176 was held to have no retrospective effect, and to be confined solely to pleadings and proceedings under the Code, in Deifendorf v. Elwood, 3 How. 285; 1 C. R. 42; and Denniston v. Mudge, 4 Barb. S. C. R. 243.

Of course, amendments of the above description can, for the most part, be made, or be considered as having been made upon the spot. In some cases, however, it may be necessary to apply for a postponement of the trial for that purpose; and, even when the defect may have been disregarded by the court, it may sometimes be prudent to make the amendment subsequently, on special application, with a view to ulterior proceedings.-See De Peyster v. Wheeler, above cited.

In Lettman v. Ritz, 3 Sandf. S. C. R. 734, relief of this nature was granted, and the plaintiff was allowed to amend his complaint after verdict, the defect being, that the words complained of in slander had not been averred in the original language. This leave was, however, only given on terms, that he should reduce the amount of his verdict to a reasonable sum. See, as to this last point, Diblin v. Murphy, 3 Sandf. S. C. R. 19. An amendment, increasing the damages beyond the amount demanded by the complaint, is, however, inadmissible, and, if made, a new trial will be granted. -Corning v. Corning, 1 C. R. (N. S.) 351.

The powers of the court, in relation to the granting of amendments of this nature, are thus broadly stated in Corning v. Corning, 1 C. R. (N. S.) 351, above referred to. "The Code has made important changes in the system of nisi prius trials. Under the

new system, the judge at circuit possesses the same control over the pleadings, formerly exercised by the supreme court, after verdict, and before judgment. The pleadings may now, on the trial, be conformed to the proof-immaterial allegations disregarded, immaterial evidence rejected, and such judgment may be directed as the facts and the law of the case require."

The provisions of sec. 258, which allow of a separate trial between the plaintiff and any of several defendants, whenever, in the opinion of the court, justice will be thereby promoted, will, of course, not be overlooked.

It is competent, as heretofore, for either party to move for a reference, or for the court to direct one, either at the outset, or during the progress of the trial, in case it clearly appears that the examination of a long account is involved, or that the case is otherwise one in which a reference under the provisions of sec. 271, is the proper course. The granting of such reference, if involving the whole issue, at once stops the proceedings. If, on the contrary, such reference be merely subsidiary, and for the information of the court before judgment, (see subdivision 2 of that section,) and the main issues in the cause are capable of being at once submitted to the jury, the case will go on in its ordinary course.

The old practice, as to moving for a nonsuit, either on the plaintiff's statement, or on his proofs when he rests his case, including the discretionary powers of the court to allow or to refuse permission to enter into further evidence, after such resting; as to the summing up, by the counsel on both sides; as to the charge of the judge; as to the power of counsel to request him to charge upon any particular point, to any particular effect; as to the exceptions which may be taken to such charge, and the necessity of taking them at the time of its delivery; as to the framing of written issues, where expedient; as to the retirement and conduct of the jury; and, likewise, as to the powers of withdrawal of a juror, or of submitting to a nonsuit on the part of the plaintiff, before the jury have left the court, with the advantages of that course, under certain circumstances; remains entirely unaltered by the Code, or by the recent decisions.

"One of several defendants, sued for a tort, is entitled to a verdict before the case of his co-defendants is submitted to the jury, if the testimony be such, that, if he were sued alone, he would be entitled to a nonsuit. This is not matter of discretion, but of right."-Dominick v. Eacker, 3 Barb. S. C. R. 17.

In Bennett v. The American Art Union Company, 10 L. O. 132, it was held, in general terms, that objections to the right of the plaintiff to maintain a suit, cannot be so waived by the consent of the parties, as to deprive the court of the power or release it from the duty of considering them; which principle is doubtless capable of application to cases in which the defendant may be entitled to move for a non-suit, but might wish to waive his right.

It is no longer necessary that the plaintiff should be called, when the jury return to the bar to deliver their verdict. See rule 26. The same rule also debars the plaintiff from the right to submit to a nonsuit, after the jury have once gone from the bar to consider of their verdict.

Thus far, the old practice on a trial by jury remains practically unaltered by the code. On the subject of verdict, however, the latter contains express provisions, partly in declaration of, and partly in substitution for the former law upon the subject.

In the first place, the distinction between general and special verdicts is laid down by sec. 260 as follows:

$260. A general verdict is that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court.

The nature and effect of a special verdict, and the power of the jury to assess the damages of the party prevailing, whether plaintiff or defendant, are next defined as under by the three following

sections.

§ 261. In an action for the recovery of specific personal property, if the property have not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property. In every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing, upon all or any of the issues; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special

verdict or finding shall be filed with the clerk, and entered upon the

minutes.

§ 262. Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.

§ 263. When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a set-off for the recovery of money is established, beyond the amount of the plaintiff's claim as established, the jury must also assess the amount of the recovery; they may also, under the direction of the court, assess the amount of the recovery when the court give judgment for the plaintiff on the answer. If a set-off, established at the trial, exceed the plaintiff's demand so established, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly.

The first of these clauses appears, as it stands at present, hopelessly confused, but the erasure of a semicolon, and the substitution of "they" for "and," after the word "thereof" in the 6th line, will render it intelligible, and will doubtless express the meaning of the legislature. The erasure of the word "not," which has been suggested, seems, on the contrary, to increase rather than obviate the present difficulty.

The power given by sec. 261, to find a general or special verdict in cases for the recovery of specific real property, is an evident modification of the provisions of the Revised Statutes as to the verdict in ejectment, in which description of action a verdict can now be taken adapted to any peculiar state of the title.- Wood v. Staniels, 3 C. R. 152.

The trial by jury, of causes primarily triable by the court, seems to be contemplated in the powers to direct a special verdict in writing, or to give instructions to find upon particular questions of fact, though, of course, both these directions are generally applicable. The difficulties in the way of a trial by jury of causes of this description seem, however, in most instances, insurmountable, and trial by the court appears the far more expedient course in all. See these views fully enforced in the recent cases of Alger v. Scoville, 6 How. 131; 1 C. R. (N. S.) 303; and Wooden v. Waffle, 6 How. 145; 1 C. R. (N. S.) 392. The difficulties in the way of interposing an equitable defence to a legal claim, as regards the trial of the issues thus joined, had been previously insisted upon in Hill v. McCarthy, 3 C. R. 49.

It is evident that, however unequivocal the abolition of the dis