Miller v. Wilson

settled the following order ; and announced it as the proper form of the order to be entered in such cases :

At a Special Term, &c.

Present,-, one of the Justices.

A. B. vs. C. D. and E. F.—On reading and filing the affidavit of-, solicitor for the above named plaintiff (or defendant,) showing that this cause is at issue upon replications to the answers of all the defendants (or replication to the answer of the defendant C. D., and the bill being taken as confessed against the defendant E. F.,) and is in readiness to take testimony therein, and proving service of notice of a motion to settle the issues of fact joined therein, and on hearing Mr.-, of counsel for the plaintiff, no person appearing to oppose; it is ordered that the issues of fact joined by the pleadings pending in this suit between the respective parties thereto be settled pursuant to rule 59, to the end that testimony may be taken thereon. And it is farther ordered that for the purpose of settling the said issues, the pleadings in this suit be referred to-as referee to ascertain and settle the said issues in the form of interrogatories to be answered by the judgment of the court thereon, wherein shall be stated the several questions of fact to be passed upon, the names of tlm parties to each issue, and which party is to be considered as holding the affirmative on each question to be *223tried. And it is farther ordered that said referee do summon before him on such reference all the parties entitled to take testimony in the cause, and that upon the coming in and confirmation of his report the testimony to be taken in the cause shall be directed and be confined to the issues thus settled.