with a margin on the outer edge of the leaf, not less than one and a half inch wide. The printed page, exclusive of any marginal note or reference, shall be seven inches long, and three and a half inches wide. The folio, numbering from the commencement to the end of the case, shall be printed on the outer margin of the page.

Of course these directions must be strictly adhered to. At least twenty-five copies should be struck off in every instance. In the Court of Appeals, sixteen are absolutely necessary; in the supreme court six, at the least. As to the disposition of these copies, see hereafter, under the proper head.

The same rules as to printing, &c., must be observed in reference to the points to be made out on the hearing, which must be prepared, in all instances where a printed case is required as above; but with this material difference, that points must be prepared and printed by both parties, whereas the preparation of the case rests exclusively with the appellant. These documents must, under rule 9 of the Court of Appeals, and rule 32 of the supreme court, contain "the points on which" the "party" intends to rely, with a reference to the authorities which he intends to cite, and, by rule 10 of the former, and 34 of the latter tribunal, it is thus provided:

In cases where it may be necessary for the court to go into an extended examination of evidence, each party shall briefly state upon his printed points, the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found. And the court will not hear an extended discussion upon any mere question of fact.

These documents need not be prepared until immediately before the hearing, nor need they be furnished to the opposing counsel until the actual commencement of the argument; and, indeed, to do so previously, unless by mutual arrangement, would be scarcely prudent. They must, however, be ready and be served at that time, or else judgment may be taken by default, on the ground of such neglect.

Although the points in question must be printed, written. corrections, to a reasonable extent, are universally allowed to be made in them, before their service as above directed. Once served, however, they are of necessity binding, and counsel will not then be permitted to enter into arguments, or cite authorities not disclosed upon them, or

not strictly responsive to those adduced by the adverse party. Of course, however, a strict observance of this rule rests entirely in the discretion of the court.

The mode of service of notice of argument, and of placing the appeal on the calendar, will be considered in the subsequent chapters, under the head of each different jurisdiction.

In each, criminal cases are entitled to preference, and may, in the Court of Appeals, be moved out of their order on the calendar, under rule 13.

By C. 128 of the laws of 1850, a similar preference is provided for, with reference to proceedings taken by the Attorney General, under the resolution of 6th April, 1848, for the purpose of impeaching manorial titles where practicable. Under rule 45 of the supreme court, cases on certiorari to remove interlocutory proceedings of subordinate courts, when placed on the calendar of a general Term, are entitled to a similar preference, any morning during the first week of Term.

The course of hearing in the different courts, will be found under the proper heads, in the succeeding chapters. The course to be pursued on an adverse dismissal of an appeal, will be also there treated. It may, however, be here remarked, in relation to all proceedings of this nature, without reference to the peculiar jurisdiction by which they may be cognizable, that it is competent for an appellant to dismiss his own appeal, if thought advisable. In order to do so, he must enter an order to that effect, and must pay the respondent's costs. A mere notice, or the entry of an order without such payment, is a nullity, and may be so treated by the respondent.--Burnett v. Harkness, 4 How. 158. Nor can a party whose appeal has been dismissed, commence a fresh one, until the costs of the former have been paid.-Dresser v. Brooks, 5 How. 75.

CHAPTER IV.

OF APPEALS FROM ORDERS TO THE GENERAL TERM.

THIS branch of appeals relates solely to the revision of the order of a single judge, on an interlocutory proceeding, by the full bench of the same court. When carried beyond the latter to the court of appeals, the proceeding assumes another shape, and, as such, will be hereafter treated.

The consideration of this branch of the subject naturally divides itself into two heads:

1. The appealability or non-appealability of orders so pronounced; and,

2. The course to be pursued on the appeal therefrom.

An ex parte order, made out of court without notice, cannot be made the subject of a regular appeal.-Savage v. Relyea, 3 How. 276; 1 C. R. 42; Lindsay v. Sherman, 5 How. 308; 1 C. R. (N. S.) 25. The course to be pursued, under these cir cumstances, is clearly pointed out by sec. 324, as follows:

§ 324. An order, made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made.

In Lindsay v. Sherman, above cited, it was considered that an application to vacate an order upon notice, may be made at once, without a previous application to the judge by whom it was originally granted. See, likewise, to the same effect, Blake v. Locey, 6 How. 108.

The application to the judge who made the order, to vacate it without notice, seems only applicable to an order of course. In all cases where such order in any manner involves the merits, a motion upon the usual notice is evidently the more proper course. Thus, it has been held that an injunction order cannot be dissolved, on motion without notice un

der this section, even by the judge who made it. The case is governed by sec. 225. See Mills v. Thursby, 1 C. R. 121, where an injunction so vacated was restored.

This section does not apply to an order, made out of court, but upon notice to the adverse party.-Follett v. Weed, 3 How. 360. It must be looked upon as an order of special term, and an appeal may therefore be taken to it, if otherwise admissible. This point is clear, under sec. 350 of the measure as it now stands.

In Nicholson v. Dunham, 2 Sandf. S. C. R. 636, 1 C. R. 119, it was also held that an appeal, will lie from an order made at Chambers, as well as from one at special term.

Although, too, an order originally granted out of court without notice, is not appealable, an order refusing to vacate or modify such order, on a motion founded on notice to the adverse party, is so reviewable.-V. Savage v. Relyea, above cited; and the question, if of sufficient importance, may always, in that shape, be carried up to the general term. See, likewise, on a similar point, the recent decision of Conway v. Hitchins, 9 Barb. S. C. R. 378.

The appealability of orders under the Code, is governed by sections 349 and 350, which run as follows:-The courts there referred to, being "the supreme court, the superior court of the city of New York, and the court of common pleas for the city and county of New York, and the manner and time being those specifically laid down in the last chapter.

§ 349. An appeal may, in like manner, and within the same time, be taken from an order made at a special term, or by a single judge of the same court, or a county or a special county judge, in any stage of the action, including proceedings supplementary to the execution, and may be thereupon reviewed in the following cases:

1. When the order grants or refuses, continues or modifies, a provisional remedy.

2. When it grants or refuses a new trial, or when it sustains or overrules a demurrer.

3. When it involves the merits of the action, or some part thereof, or affects a substantial right.

4. When the order in effect determines the action, and prevents a judgment from which an appeal may be taken.

5. When the order is made upon a summary application in an action after judgment, and affects a substantial right.

§ 350. The last section shall include an order made out of court upon notice; but in such case the order must be first entered with the clerk. And, for the purpose of an appeal, any party affected by such order, may require it be entered with the clerk, and it shall be entered accordingly.

The phraseology of the former of these sections, has been slightly extended, and rendered on the whole more definite, by the recent amendment.

In the court of common pleas it has been held that, independent of the above provisions, the powers of the court to allow a rehearing before the full bench, as under the former practice, are still existent. In Perry v. Moore, 3 C. R. 221, this doctrine was enounced by Woodruff, J., as follows:-"I think that the power of the court to allow a rehearing, before a full bench, of an order by a single judge at special term, is still subsisting, and that such rehearing, where granted, is not an appeal under the Code. It is not, however, a matter of right, except when the order is appealable from under sec. 349, and should only be allowed in cases of importance and doubt."

The views thus stated, have since been carried out by the following general rule, adopted by the court in question; V. 3 C. R. 236. It will be observed, however, that the position taken in Perry v. Moore, is receded from, so far as regards orders appealable under sec. 349:

"For the purpose of regulating the review of questions of practice decided by a single judge, the court adopt the following rule:

"Upon the decision of motions, made before a single judge, at chambers, or at special term, in cases in which no appeal is allowed by sec. 349 of the Code, the judge may, if he deem the question of such importance and doubt as to render a review by the general term proper, give a certificate thereof, and the party desiring such review shall, within six days after the decision of such notice, procure such certificate, and serve a copy thereof, with a motion of hearing for the next general Term for which the same can be noticed, and thereupon such motion shall be brought on and submitted for review, on written points, to be shown to the opposite counsel, and then handed to the court.

"Such certificate shall not operate as a stay of proceedings, unless such stay of proceedings be expressly ordered.

"March 22, 1851.

(By the Court.")

In Bedell v. Stickles, 4 How. 432, it is laid down as the conclu