(IJnrnpU Ham ^rl|nnl IGibtary v.»t»'^ Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022784205 A TREATISE ON THE kutia itt the ^ttpwmc (f^mxt OP THE STATE OF NEW YORK, EdlllTY ACTIONS MD SPECUL PROCEBDMS, AN APPENDIX OF FORMS, ADAPTED TO THE CODE OF PROCEDURE; m TWO VOIiUMES. By GEORGE VAN SANTVOORD, COHNSELLOB-AT-LA'W. VOLUME I.— Second Edition. ALBANY : WEARE 0. LITTLE, LAW BOOKSELLER. 1862. / ^-f^^^^^-f^ ^ 5 ^^/7. c, / Entered aeoording to Act of Congress, in the year 1862, by WEAEE C. LITTLE, In the Clerk's Office of the District Court of the United States, for the Northern District of New York. WEED, PARSONS & COMPANY, PRINTERS. PREFACE The object of the present treatise is to present a connected view of the practice ia the Supreme Court of this state, in actions of an equit- able nature — that is in that class of actions which, under the practice as it existed prior to the Code, would have been prosecuted by suit in the Court of Chancery. No treatise of the kind, devoted exclusively to this branch of the practice, has been attempted since the Code went into effect. The works of Mr. Monell and Mr. Whittaker professedly treat of the pro- ceedings in aU kinds of civil actions, those of equitable, as well as those of common law origin ; but, as was unavoidable from the nature of the subject, the proceedings ia the latter class of actions are those which are most prominently kept in view by these authors, and the practice in that class of suits of which the Court of Chancery heretofore enter- tained jurisdiction, is not so fuUy considered, or even attempted to be sketched separately, or in detail. Hence, in a great variety of legal proceedings in cases of this description, the student, and sometimes even the experienced practitioner has been obliged to consult and rely upon former works on the practice in a court that is now abolished by law, and by comparing the principles and rules which governed in that court, with the provisions of the Code, to ascertain the correct mode of procedure under the present system. This has been especially the case in regard to proceedings for obtaining an injunction, for the appoiutment of a receiver, and other interlocutory applications; also in proceedings upon interlocutory or decretal orders, references to take IV PREFACE. and state accounts, to sell estates and the like ; interlocutory decisions and orders reserving further directions, bringing on the cause for hearing upon the same, and the rendering of final judgment thereon. In these cases and many others arising in a suit of an equitable nature, the former practice in the Court of Chancery, except where the same is altered or modified by the Code, furnishes the rules which regulate and control the proceedings. And no correct, or even general notion of the subject can be obtained, except by a careful study and analysis of this former, and in some respects, obsolete practice, and by the application of such of its principles as are not abrogated to the new system estab- lished by the Code. This the author has attempted to do in the present volume. His own judgment in regard to the utility of such a work has been con- firmed by the opinions of many experienced professional friends, which induce the beUef, that, however defective may be its execution, yet the general plan adopted in the treatment of the subject is that of a work which is calculated to supply a want of the profession. A former work, treating upon the system of pleading in civO. actions, as modified by the Code of Procedure, in a manner entirely similar to the present, has been received by the profession, ia this and other states which have adopted our Code, with far greater favor than the author could have ventured to anticipate or even hope. And he is therefore the more encouraged to submit the result of his present labors to his professional brethren. The work is divided into chapters and sections, each chapter being designed to embrace some general head, and each section some special branch of the practice. The proceedmgs in an equity suit are traced from their commencement down to their final determination ia the entry of judgment ; and subsequent to the judgment, the enforcement of the same, by the process of the court, and the appeal therefrom, as well as from interlocutory orders to the general term. As a necessary and essential branch of the subject, without which it could not be fuUy presented, the work contains a brief analysis of the principles and rules of pleadmg in equitable actions. That branch of the practice, PREFACE. V however, is treated in a general way, and without entering upon those special details, or that full review of cases which the author's former work, devoted exclusively to that subject, embraces. In the general arrangement of the matter of this volume, as weU as in the manner of treating particular branches of the subject, the author has availed himself of the valuable treatise of Mr. Baebouk, on the practice in Chancery, so long and so deservedly a standard authority in our courts. It was his original intention to follow out the plan of Mr. Baeboue in full, and to present in a second volume a sketch of the practice in particular kinds of equity actions, as modified by the Code, such as foreclosure suits, actions for the partition of real estate, for divoree and the Uke ; also in special proceediags, such as for the sale of infant's real estate, the appointment of committees of lunatics, &c., and to accompany the whole with an appendix of precedents. This part of the work, however, is for the present abandoned, with the expecta- tion of supplying it at some future period should it seem to be called for, and should the author be able to command, from his professional avocations, the necessary leisure to prepare it. G. V. S. Teoy, August, 1860. INTRODUCTION TO THE SECOND EDITION. In presenting to the profession a new edition of this Trea- tise, a word of explanation may not be inappropriate. In the preface to the first edition of this work — pub- lished something more than two years since — the author remarked that it was his original intention to follow out the plan of Mr. Barbour (in his work on Chancery Prac- tice) in full, and to present, in a second volume, a sketch of the practice in particular kinds of equity actions, as modified by the Code, such as foreclosure suits, actions for the partition of real estate, for divorce, and the like ; also in special proceedings, such as for the sale of infants' real estate, the appointment of committees of lunatics, &c., and to accompany the whole with an appendix of prece- dents. But that part of the work was then abandoned, with the expectation of supplying it at some future period, should it seem to be called for, and should a convenient opportunity offer. Encouraged by the favorable reception of his first volume, the author is induced to hope that the present edition, composed of the firsLjEoLume as originally puhr, lished, and of a second. JsMch^ comprises that portion of IV INTRODUCTION. his original plan then reluctantly abandoned, will not be unacceptable to the profession. The first volume of the present edition treats of the practice and proceedings generally in an action of an equitable nature from its commencement to its close, including provisional remedi-es, and incidental proceed- ings, as well as appeals to the court of review at general term. Some slight emendations, growing out of subsequent decisions, might no doubt have been profitably made, but it has been deemed best on the whole, to pre- sent that volume, in the present edition, witho ut altera- _ tion, in order to enable those who have it in their libraries to complete the set by the additional volume merely, which is printed uniform, and in all respects to correspond with the first. The second volume (now presented for the first time to the public) treats of the practice in particular equity ac- tions, and those of most frequent occurrence in our courts, to wit: actions for partition, actions for the foreclosure of mortgages, actions by judgment creditors, actions for an accounting, and actions for divorce. Also of a special equity proceeedings, not taken by action, such for example, as relate to cases of guardianship, appointing committees of lunatics, the sale, partition, &c., of the real estate of in- fants, lunatics, religious corporations, proceedings against corporations in equity, and the like. And the whole is accompanied by a full collection of forms applicable to each action and proceeding treated of in the volume, and arranged under their appropriate heads. Many of the forms now presented — especially those classed under the heads of actions by judgment creditors. -INTRODUCTION. V actions for accounting, proceedings against corporations, &c., are entirely new, the author having been able to find no precedents to meet such cases. He has, however, in this portion of the work availed himself to some extent of the industry of his predecessors, and acknowledges much valuable assistance derived from the labors of Mr. Barbour, Mr. Monell and Mr. Carey in their works on Practice, and Mr. Edwards in his late work on the law of Referees. Much care has been bestowed upon this part of the work with the intention of making it in all respect an accurate, and reliable, as well as a convenient book of practical reference. It is not, however, without much mistrust that the author submits the result of his labors to his professional brethren, with the hope that it may receive at their hands a favorable consideration. G. V. .S Tkoy, Odoher, 1862. CONTENTS, CHAPTER I. fflSTOET, GENERAL JURISDICTION, FORMER ORGANIZATION AND COURSE OF PROCEEDING IN COURTS OF EQUITY IN THIS STATE, AND CHANGES THEREIN WHICH RECENT STATUTES AND THE LATE CONSTITUTION HAVE EFFECTED. Section I. History, former organization, and general jurisdiction of courts of equity in this state, 1 II. Proceedings in an equity suit under the former practice. 8 m. Changes in equitable actions which recent statutes and the late Constitution have effected, 15 IV. Equitable actions, how distinguished from those which are of common law origin, 23 CHAPTER II. PROCEEDINGS ON THE PART OF PLAINTIFF IN COMMENCING ACTIONS. Section I. Of certain preliminary proceedings, such as appointing guardian for infant, filing security for costs, &c., 26 n. Issuing of summons and filing notice lis pendens, 32 m. Personal service of summons and proof of same, 42 IV. Service of summons by order of a judge and by publication and proof of same, 47 CHAPTER III. FURTHER PROCEEDINGS ON THE PART OP PLAINTIFF PREVIOUS TO THE defendant's ANSWER. Section I. Discovery of books and papers to enable plaintiff to frame his complaint, 55 VIU CONTENTS. PAGE. Sec. II. Complaint, and how framed as to title and parties, 66 III. Complaint, and how framed as to statement of facts, and prayer for relief, °9 IV. Verifying, amending, filing and serving complaint, 108 V. Obtaining injunction or other provisional remedy, 119 CHAPTER IV. JUDGMENT ON FAILURE TO ANSWER, OR TO APPEAR ON THE TRIAL, AND JUDGMENT BY CONSENT, Section I. Judgment on failure to answer, 125 II. Judgment on failure to appear at the trial, 140 III. Judgment by consent, 143 CHAPTER V. PROCEEDINGS ON THE PART OF THE DEFENDANT BEFORE ANSWER OR DEMURRER. Section I. Obtaining copy complaint, and motion to dismiss summons for omission to serve complaint, and to set aside summons for other irregularity, 146 n. Obtaining security for costs, 151 III. Appointing guardian for infant defendant, 152 IV. Offer of defendant to compromise, 156 V. Inspection of writings, and procuring production of books, papers or accounts, and demand of particulars, 158 VT. Motion to correct complaint by striking out redundant or irrele- vant matter, or to make complaint more definite, 161 VII. Motion to dissolve injunction or ne exeat, 172 VIII. Obtaining further time to demur or answer, 174 IX. Proceedings to answer after time has expired, or after judg- ment by default, 178 CHAPTER VI. FURTHER PROCEEDINGS BY DEFENDANT BEFORE NOTICE OF TRIAL. Section I. Demurrer and proceedings thereon, 283 II. Answer and counterclaim, jgy III. Verifying, amending, fihng and serving answer, 219 IV. Cross complaint and proceedings thereon, 223 CONTENTS. IX CHAPTER VII. FUETHEE PEOCEEDINGS ON THE PART OF PLAINTIFF SUBSE- QUENT TO ANSWEE, AND BEPOEE NOTICE OP TEIAL. PAGE. Section I. Discontinuing suit, amending complaint after answer, and ob- taining time to reply, 228 II. Objection to demurrer or answer for irregularity, 233 III. Motion to correct answer for uncertainty or redundancy, 235 IV. Motion to satisfy part of demand admitted, 236 V. Motion to strike out sham or irrelevant answer, and for judg- ment on frivolous answer or demurrer, 240 VI. Demurrer and reply to answer, and proceedings incident thereto, 248 CHAPTER VIII. PEOCEEDINGS ON THE PART OF EITHER, OR BOTH PARTIES, AFTER ISSUE JOINED AND BEFORE TEIAL. Section I. Motion to change place of trial, 256 II. Motion for issue to be tried by jury, 261 III. Motion to compel the deposit in court of money or other pro- perty held in trust, 268 IV. Obtaining admission of documentary evidence, and proceed- ings for obtaining inspection of same, . 272 V. Proceedings to perpetuate testimony, 277 VI. Proceedings to examine witnesses de bene esse, 280 VII. Proceedings to examine witnesses out of the state on commis- sion, 283 VIII. Examination of parties before trial, by adverse party, 297 IX. Abatement and revivor and substitution of parties on motion, 302 X. Supplemental pleading, and substitution of parties on supple- mental complaint, ' 312 CHAPTER IX. FUETHEE PEOCEEDINGS BEFOEE TELiL. Section I. Motion to dismiss complaint for want of prosecution, 319 II. Motion to refer cause, to hear and determine, 323 III. Noticing cause for trial and putting on calendar, 328 IV. Other incidental proceedings preparatory to trial, 332 B X CONTENTS. CHAPTER X. PEOVISIONAL EEMEDIES. INOXTNCTIONS. PAHB. Section I. Different kinds and uses of preliminary injunctions, 337 II. In what cases granted, 339 III. How applied for and allowed, 354 IV. Service of injunction and effect of same, 364 V. Dissolving, vacating and modifying injunction, 369 VI. Reviving and continuing injunction, 373 CHAPTER XL PEOVISIONAL EEMEDIES CONTINUED. EECEIVEES. Section I. Nature of the ofBce, and general powers and duties of a receiver, 374 II. In what cases appointed, 383 III. Who may be receivers, 398 IV. Appointment, when and how made, 401 CHAPTER XII. PEOVISIONAL EEMEDIES CONTINUED. NE EXEAT. Section I. Nature and use of writ ; in what cases, against whom, and on what demands allowed, 409 II. Application for writ; how granted, and how and when dis- charged, 412 CHAPTER XIII. OTHEE INTEELOCUTOET PE0CEEDIN6S. Section I. AfiBdavits, 41g II. Petitions, 422 III. Motions, and orders to show cause, 426 I V_ Interlocutory orders, 440 CHAPTER XIV. HEAEING AND TEIAL OF THE CAUSE. Section I. Of certain incidental matters pertaining to the trial, 462 II. Trial by the court of an issue of law and of an issue of fact, . . 472 III. Trial by referees, ^gc IV. Trial of issue by jury, and subsequent proceedings thereon to judgment, 5qq CONTENTS. XI CHAPTER XV. INTEELOCUTORY OR DECRETAL ORDERS MADE ON THE. TRIAL, AND PROCEEDINGS THEREON TO FINAL JUDGMENT. PAGE. Section I. Decretal order reserving further directions, and order of refer- ence thereon, 512 II. General course of proceeding on reference, 522 III. Reference to take and state accounts, 531 IV. Reference to make inquiries, 541 V. Reference to sell estates, or adjust other matters before final judgment, 549 VI. Referee's report on decretal order, form, nature and use of, ... 560 VII. Exceptions to report, when and how taken and brought to hearing, 565 Vni. Final hearing of the cause on further directions upon the coming in of referee's report, 573 CHAPTER XVI. FINAL JUDGMENT. Section I. Nature, uses and kinds of final judgment, 578 II. Form of, and how drawn up and settled, 585 III. Costs, when allowed, and how taxed and entered in the judg- ment, 587 IV. Entry of judgment on trial of the whole issue by the court, by referees, or on the finding of a jury, 607 V. Entry of judgment on interlocutory decision, and subsequent report of referee, 611 VI. Rectifying and amending judgment, and vacating same for irregularity or other cause, 613 CHAPTER XVII. JUDGMENT, HOW ENFORCED AND CARRIED INTO EFFECT. Section I. By execution, 618 II. By process of contempt, 623 III. By writ of assistance, injunction, sequestration, etc., and by re- ceiver or referee to carry judgment into effect, 637 IV. Execution of judgment against corporations, absent defendants, heirs, devisees, etc., 645 Sll CONTENTS. CHAPTER XVIII. APPEALS. PAGE, Section I. General rules applicable to and regulating appeals, 651 If. Appeal from interlocutory order, 669 III. Appeal from order or judgment in special proceedings made at special term, or by a county court or a county judge, 675 IV. Appeal from surrogate's decision or decree, 683 V. Appeal from final judgment in an equity action, 697 CHAPTER I. OF THE HISTORY, GENERAL JURISDICTION, FORMER ORGANIZATION AND COURSE OF PROCEEDING IN COURTS OF EQUITY IN THIS STATE, AND THE CHANGES THEREIN WHICH RECENT STATUTES AND THE LATE CONSTITUTION HAVE EFFECTED. Section I. History, former organization and general jurisdiction of courts of equi- ty IN THIS STATE. II. Proceedings in an equity suit under the former practice. III. Changes in equitable actions which recent statutes and the late con- stitution HATE effected. IV. KquiTABLE actions, how distinguished from TH0S5 WHICH ARK OF OOMHOM LAW ORIGIN. SECTION I, HISTORY, FORMER ORGANIZATION AND GENERAL JUKISMCTION OF COURTS OF EQUITY IN THIS STATE, The principles which govern our equity system, as well as the mode of procedure and practice therein in our courts, as formerly organized, are derived mainly from the equitable jurisprudence of England. It would be beyond the scope of this work to trace the origin and growth of that system, or attempt to explore the sources of jurisdiction which the English Chancellors exercised from the earliest periods. It is sufficient to observe that the existence of the Court of Chancery, as a separate court, it is thought, can be traced back as far as the reign of Richard I, towards the close of the twelfth century.^ Although it was not until nearly two centuries later that its proceedings began to be kept with some degree of care and regularity. Maddox Hist. Exchequer, 131. 2 COURTS OF EQUITY. The study of the civil law had previously been introduced into England, but was mainly confined to the clergy, from which class the early Chancellors were taken. Hence, not only the principles pervading the civil law, but also the pleadings, practice, and modes of procedure peculiar to that celebrated code of jurispru- dence, became engrafted upon, or perhaps more accurately speak- ing, became the foundation stone of the English Chancery system. The common law was of a different and more exclusive origin. It adhered to its own forms, looked with jealousy upon the ever- expanding jurisdiction exercised by the Chancellors, and refused to accommodate itself to the liberal maxims and pliable modes of procedure which gave efficacy to that jurisdiction. And thus, though the two systems wei'e nearly co-eval, and grew side by side together, a marked line of distinction divided them, and they became and continued, two separate systems of jurisprudence, dif- fering from each other in some important respects in the principles in which relief was administered in their respective tribunals — differing widely in the kinds of relief administered, — and differing totally and radically in the mode and forms under which that relief was administered. These forms and modes of procedure, comprising what we classify under the general term of practice, constituted one of the most distinguishing characteristics of equitable relief. Drawn in the main from the civil law, or from the ecclesiastical courts, which themselves divided them from the civil law, they were moulded into shape and consistency by a long line of able Chancellors in England. They had become a well defined and perfectly arranged, though somewhat complex, system at the time of the colonization of our country, and were inherited as part of what was regarded as the necessary machinery for a proper and correct administration of justice. The practice, as it was established in the English Courts of Chancery, became the model which our own courts adopted, first under the Colonial, and after- wards under the State government. The institution of a Court of Chancery in this state is to be traced as early as the year 1683, being the next year after the people were first admitted, under the English government, to participate in the legislative power. An act was then passed to FOEMEE OEGANIZATION. 3 settle courts of justice, which provided that there should be a Court of Chancery within the province which should have power to hear and determine all matters of equity, and should 'be esteemed and accounted the Supreme Court ; that the governor and council should be such court, and hold and keep the same ; and that the governor might depute and nominate, in his stead, a Chancellor, and be assisted by such other persons as should be necessary. 1 With some opposition on the part of the General. Assembly, the court continued to exist in this form down to the year 1711; at which time, without remodeling the court, or interfering with its mode of practice or jurisdiction, a law was passed empowering the governor to act as Chancellor, and from that period down to the Revolution the court continued under that organization, and all proceedings in Chancery were before the governor alone. The first State Constitution, framed in 1777, adopted such acts of the Colonial Legislature as formed the law of the state on the 19th April, 1775, and as were not repugnant to that instrument. Without undertaking to organize or define the jurisdiction of the Court of Chancery, it treated it as an existing tribunal and separated the office of Chancellor from that of Grovernor. Under this Constitution the first Chancellor was appointed, and the office continued to exist until finally abolished by the Constitution of 1846.2 The Constitution of 1821, like the original Constitution of the state, neither organized nor attempted to define the jurisdiction of ' Appendix No. 4 to the Revised Laws. 1 Hqffman's Ch. Pr., 8. 2 The following is a list of the Chancellors of the State of New York with the date of their appointment, from the adoption of the first constitution down to the time when the office of Chancellor was abolished. Robert R. Livingston appointed Oct. 17th, 1777. John Lansing appointed Oct. 21st, 1801, in place of Chancellor Livingston, resigned. James Kent appointed Teb. 25th, 1814, in place of John Lansing. Nathan Sandford appointed Jan. 27th, 1823, in place of James Kent. Entered on the duties of his office Aug. 1, 1823. Samuel Jones appointed Jan. 26th, 1826, in place of Nathan Sandford. Reuben H. Walworth appointed April 13th, 1828, in place of Samuel Jones, appointed Chief Justice of the Superior Court of New York. 4 COURTS OF EQUITY. the Court of Chancery. It treated the Chancellor as an officer in being, and the jurisdiction of his court as already established and defined by law. The fifth section, article fifth, declares that such equity powers may be vested in the circuit judges, or in the County Courts, or in such other subordinate courts as the Legis- lature may by law direct, subject to the appellate jurisdiction of the Chaucellor. Under this authority, the Legislature accordingly proceeded to define the power and jurisdiction of these subordi- nate officers, and completed the organization of the court, as it continued to exist in this state down to the time it was abolished. The jurisdiction and power of the Court of Chancery was declared to be co-extensive with that of the high Court of Chancery in England, with the exceptions, additions, and limitations, created and imposed by the Constitution and laws of this state. ' The whole power of the courts was vested in the Chancellor.^ He exercised an original jurisdiction in every case co-extensive with the state ; and an appellate jurisdiction where a concurrent power was vested in the vice-chancellor. The circuit judges in each of the eight circuits into which the state was divided, exercised, under the name of vice-chancellors, concurrently with the Chancellor, within their respective districts, and exclusive of any other circuit judge, all the powers of the Chancellor in the following cases : When either the cause or mat- ter arose within the circuit ; or the subject matter in controversy was situated therein; or the defendants or persons proceeded against, or either of them resided therein ; subject to the appel- late jurisdiction of the Chancellor. ^ The Chancellor was autho- rized, not only to review any decisions of the vice-chancellors on appeal, but also to withdraw a cause from them when it was ready to be set down for a hearing and hear it himself. * He might also refer to them the hearing or decision of any motion or of any cause set down for hearing before him; and might require them to execute such other powers and duties in relation to any matter in the Court of Chancery as he should from time to time ' 2 R. S., 175 (3d ed. p. 334), § 36. » Ibid., p. 168 (3d ed., p. 226) § 1 ' ^^'^■> § ?• '2 R. S., p. 178 (3d ed. p. 241), § 63. FORMER ORGANIZATION. 5 direct; ' and might by general rules prescribe the time and manner in which proceedings might be had, and causes brought to a hearing before them, and the cases in which a rehearing might be had before them. ^ The officers of the court were masters, examiners, a register, as- sistant register, clerks, sheriffs, solicitors and counselors. Of these it is only necessary here to speak of the masters and examiners. Both were very important officers to the organization of the court, and to the prosecution of a suit or proceediag in equity. They were appointed by the governor by aud with the consent of the senate. It- was the duty of the former to hear and determine or report to the court upon such interlocutory matters in suits or pro- ceedings as might by order be referred to them ; and of the latter to take and reduce to writing all the oral testimony or proof, as it was called, in an equity suit upon which the cause was to be heard by the Chancellor or one of the vice-chancellor's. Both these offices were abolished by the Constitution of 1846. The duties of the one were thereafter discharged by referees appointed by the court in each particular case, and named in the order directing the reference ; the other was superseded by the provi- sion which required testimony in equity cases to be thenceforth taken in like manner as in cases at law, ^ that is orally, in open court, before the judge. The office of Chancellor was also abolished by the Constitution "of 1846, from and after the first Monday of July, 1847 ; * and the jurisdiction and power of the court were vested in the Supreme Court. It was declared as the fundamental law of the state that there should be a Supreme Court having general jurisdiction in law and equity. ® Instead of the Chancellor and one vice-chancellor in each of the eight circuits, four j ustice of the Supreme Court were to be elected in each of the eight judicial districts into which the state was divided, ® who, in addition to their common law powers, were to exercise all the original equity powers which had been ■ Ibid., p. 169, §§ 94, 95 (3d ed., p. 228). ^ ibid., p. 177, § 52 (3d ed., p. 239). 3 Const. 1846, art. 6, § 10. ■• Ibid., art. 14, § 8. = Ibid., art. 6, § 3. « Ibid., art. 6, § 4. 6 COURTS OF EQUITY. vested in the Chancellor and vice-chancellors; ^ and it was declared that the Legislature should have the same powers to alter and regulate the jurisdiction and proceedings in law and equity as it had theretofore possessed. ^ The act of the Legislature, known as the Judiciary act, passed May 12th, 1847, was designed to give effect to and put into practi- cal operation these radical changes in the organization of the courts. The sixteenth section of article third provides that the Supreme Court organized by this act shall possess the same powers and exercise the same jurisdiction as is now possessed and exercised by the present Supreme Court and Court of Chancery ; and the justices of said court shall possess the powers and exercise the jurisdiction now possessed and exercised by the justices of the present Supreme Court, Chancellor, vice-chancellor and circuit judges, so far as the powers and jurisdiction of said courts aud officers shall be consistent with the Constitution and provisions of this act ; and all laws relating to the present Supreme Court and Court of Chancery, or any court held by any vice-chancellor, and the jurisdiction, powers and duties of said courts, the pro- ceedings therein, and the officers thereof, their powers and duties, shall be applicable to the Supreme Court organized by this act, the powers and duties thereof, the proceedings therein, and the officers thereof, their powers and duties, so far as the same can be so applied and are consistent with the Constitution and provisions of this act. ^ By the twentieth section of article third of the same act, special terms of the Supreme Court were directed to be held for the purpose, among other things, of taking testimony (which by the Constitution was required to be taken orally, before the judge in court), and hearing and determining suits and proceedings in equity, at which termb, orders and decrees in suits and proceedings in equity might be made; and all such suits and proceedings were required to be first heard and determined at a special term unless the justice holding it should direct the same to be heard at a general term. In case any suit or proceeding in equity should be heard and • Wilcox V. Wilcox, 4 Kern., 580. •■' Const. 1846, art. 6 5 5 8 Laws of 1847, p. 324, § 16. FORMER ORGANIZATION. 7 determined at a special term, either party might apply at a gene- ral term for a re-hearing. ^ It is unnecessary, in this place, to notice the further provisions of this important act, with the amendments thereto passed in December of the same year. They will be considered so far as they aifect the present practice in their proper connections in the course of this work. It is sufficient to observe here, that while the Constitution and the Judiciary act abolished the old Court of Chancery and transferred its jurisdiction and powers to the new Supreme Court, they did not in any considerable degree work a change in the customary forms of procedure under which equit- able relief was administered. Though the same court had both common law and equity powers, and the same judge administered both kinds of relief, yet the forms under which these powers were executed and relief administered, were in reality kept as separate and distinct as they had been under the old Chancery system. Suits in equity were still by bill and subpoena ; the defense by plea or answer, and the proceedings to a hearing and decree nearly the same as formerly, except the -taking of the testimony orally before the judge. Instead of entitling the bill, " In Chancery before the Chancellor," or " before the vice-chancellor of the circuit," it was now entitled " Supreme Court in equity." Instead of the address of the petition " To the Chan- cellor of the State of New York," it was " To the Supreme Court of the State of New York in equity," &c. In all other respects the suit or proceeding bore upon its face the plain marks of its equitable character as contradistinguished from a suit or proceed- ing at common law. No attempt was made to blend the two juris- dictions, or to establish a uniform system of pleading and practice until the adoption of the Code of Procedure of 1848, framed by commissioners appointed by the Legislature pursuant to that sec- tion of the new Constitution which provided for the appointment of three commissioners " whose duty it shall be to revise, reform, simplify and abridge the rules and proceedings of the courts of record of this state and to report thereon to the Legislature."^ I Laws of 1847, p. 325, § 20. « Const. 1846, art. 6, § 24. 8 COUKTS OF EQUITY. This act wrought a fundamental change, not only in the machinery and external organization of the courts, but in the entire mode of procedure, assimilating the equity and common law suits, as far as the different kinds of relief in the two classes of actions permits, and making the form of the process and remedy by which the relief is ultimately administered substantially the same. It will be a prominent object in this work to point out those changes, and to ascertain, as nearly as may be, their nature and extent; but the further consideration of the subject more properly belongs to a subsequent section. SECTION II. PROCEEDINGS IN AN EQUITY SUIT UNDER THE FORMER PRACTICE. Having thus summarily noticed the main features in the organ- ization of the Court of Chancery 'in this state, as it formerly existed, it will be necessary, in order to a correct understanding of the subject, to glance in the same general way at the former course of proceeding in an ordinary suit or action in equity. An equity suit, commenced by what was called an original bill, was usually either for relief, that is, praying the decree of the court upon some right or claim insisted upon by the plaintiff, in opposition to those set up by the defendant ; or for discovery, or to obtain and perpetuate the testimony of witnesses. In either case, under the old practice in Chancery, the appearance, as it was called, of a defendant, was essential to enable the complainant to obtain either relief or discovery ; for, until the rules established > by the Chancellor under the authority of the Revised Statutes, no bill could be taken as confessed, until the appearance of the defendant had been entered. ^ In case of a bill of discovery, of course an answer was essential to the remedy sought, which could be put in only after appearance. Hence the first step on the part of the complainant in an equity suit, was to compel the defendant to appear. The suit was commenced by filing, in the proper office, a bill of complaint, which contained a statement of the facts, out of ' 1 Dan. Ch. Pr., 679, 680. MODE OF PEOCEDUEE. 9 which the complainant's claim had arisen, and praying the relief sought in the action, and also process of subpcena to compel the defendant to appear and answer the bill. Upon filing the bill, a writ of subpcena issued, commanding the defendant to appear in court on a certain day, before the Chancellor, or the proper vice-chancellor, to answer the bill of complaint. Upon the service of the subpoena on the defendant, he was bound to enter his appearance within twenty days after the appearance day mentioned in the writ. If he neglected or refused to do so, the complainant obtained an order of course that an attachment issue to compel an appearance. The proceedings upon the process of attachment, will be found detailed in the books on Chancery practice, but as these proceedings are now obsolete in our courts, it is not necessary to dwell upon them here. ^ If the sheriff returned non est inventm to the attachment, the next proceeding to bring the defendant into court was an attach- ment with proclamation. This was a writ nearly in the same form as the ordinary attachment, with a command to the sheriff to cause public proclamation to be made in all places in his baili- wick, wheresoever he should think it most convenient, that the defendant do, upon his allegiance, appear in the Court of Chancery on a certain day therein named, and in the meantime to attach him if he could be found. Should he still continue to disobey, he was treated as a rebel and contemner of the law, and a com- mission of rebellion issued against him, which was a writ directed to special commissioners therein named, commanding them to attach the defendant wherever he should be found within the state, as a rebel and contemner of the law. If this process (the practice upon which is also fully defined and laid down in the books) proved ineffectual to bring the defendant into court, the party was ordered to stand committed as for contempt, and a war- rant was issued, according to the English practice, to the sergeant- at-arms, but according to our practice to the sheriff, directing him to apprehend the defendant, which process was not bailable. ^ ' 1 Hoff. Ch. Pr., 144. 1 Barb. Ch. Pr., 63-66. 2 10 COUETS OF EQUITY. In case the sergeant-at-arms, or the sheriff failed to arrest him, the proper return of non est inventus was made and filed, and a writ of sequestration then issued directed either to the sheriff, or certain persons named therein, empowering him or them to enter upon and sequester the real and personal estate and effects of the defendant (or some particular part thereof), and to take, receive and sequester, the rents, issues and profits thereof, and keep the same in their hands, or pay over in such manner as the court should direct, until the defendant should have appeared to answer the complainant's bill, or performed such other matter as has been enjoined upon him by the court, for not doing which he was in contempt.^ This was the general course of proceeding against natural per- sons to compel an appearance. The proceedings against corpora- tions, refusing to appear were somewhat different, the first process after subpoena, being the writ of distringas directed to the sheriff, commanding him to distrain the defendant's lands, goods and chattels. After the issuing of an alias and pluries distringas, if the defendant remained recusant, a writ of sequestration issued to the sheriff or commissioner as in the cases above mentioned, in actions against natural persons. It is to be observed that these extreme proceedings against defendants were by no means common. A subpoena in case of a resident dafendant, usually answered the purpose of bringing him into court; and if he was not a resident, or was absent, or con- cealed, so that personal service could not be made, the law directed publication to be made against him, and his appearance to be entered. If he then failed to answer, the bill would be ordered to be taken as confessed. By the later practice in this state, as has been already remarked, the bill might also be taken as con- fessed after service of subpoena on a resident defendant, and his failure to appear, unless a discovery therefore was required from the defendant, it was really unnecessary to carry through these various measures to compel an actual appearance. The defendant having appeared, if he determined to contest the plaintiff's claim, proceeded to obtain a copy of the bill and prepare 1 Barb. Ch. Pr., 68. MODE OF PROCEDURE. 11 to put in his defense, which was either by demurrer, plea, or answer. A demurrer was interposed when it appeared that there was no equity in the case on the part of the complainant. A 'plea was used to set up some matter of defense, not appearing in the bill, suflBcient to show that the suit should be dismissed, delayed or barred. The answer, however, was the most common mode of defense, whereby the defendant either confessed and avoided, or traversed and denied, the several allegations in the bill; or admit- ting the case made by it, submitted to the judgment of the court upon it, or upon a new case made by the answer, or both. All these defenses might be joined; that is, the defendant might at the same time demur, plead, and answer, to separate parts of the same bill. He might also put in a disclaimer, and at once terminate the suit by disclaiming all right and interest in the matter sought in the bill. 1 The pleadings in an equity suit formed one of the most charac- teristic features of the Chancery practice. A regular bill in Chan- cery, consisted of nine parts, the address, the introduction, the slating part, the covfederating part, the charging part, the clause of jurisdiction, the interrogating part, the -prayer for relief, and the prayer for process, ^ Some of these were formal merely, and not essential either to be set forth in the bill or responded to in the answer. The most important parts of the bill were the stating and interrogatory parts. The former was a simple narrative of the facts and circumstances of the plaintiff's case, and of the wrong or grievance of which he complained, and of the names of the persons by whom done and against whom redress was sought, and constituted the real sub- stance of the bill. It was similar in all respects to the statement of facts required in a complaint under the Code. Very little of the old equity bill remains under our present practice except the stating part, and the prayer for relief. ^ ' Mitf. Eq. PI., 106. 1 Barb. Oh. Pr., 105. ^ See a precedent of a regular chancery bill, with an analysis of its several parts and explanation of their uses in the appendix to Van Santvoord's Pleadings, pages 1 and 2 and notes. 5 Appendix to Van Santyoord's Pleadings, p. 2, note 2. 12 COUETS OF EQUITY. But the distinguishing feature of an equity bill was, that it was used not only as a pleading, or mere statement of the facts consti- tuting the cause of action, but also as an examination of the defendant; and it was the object of the interrogatory part of the bill to perform this important function. The complainant was allowed in his bill to set forth not only the facts upon which his claim for relief was based, but also col- lateral circumstances; and the evidence going to substantiate those facts, and by means of special interrogatories in his bill, compel the defendant to make oath in answer to these interroga- tories. The great utility of this mode of procedure was well understood, not only in ordinary equity suits for relief, but also in bills filed in aid or defence of suits at law, in which parties to the record being unable to compel a disclosure of testimony from their adversary in the legal tribunal, resorted to a court of equity to obtain a full discovery. ' The answer of the defendant was put in under oath (unless expressly waived by the complainant), and was required to be a full answer to all the statements and charges, and all the inter- rogatories in the bill. ^ He was not bound, however, to answer matter not well pleaded, such as matters of law and legal conclusions, or an interrogatory not founded upon some previous statement or charge in the bill. ? With certain privileged excep- tions, * however, in all other cases, where he submitted to answer, he could not excuse himself from making a complete discovery; and must answer fully, every statement, charge and interrogatory which was well pleaded, whether relating to a ' The practice has now entirely ceased with the removal of the necessity which gave rise to it. A discovery from or examination of the witness is now performed in the more direct and simple manner of producing him upon the stand as a witness upon the trial. Every allegation introduced into a complaint, either on a legal or equitable cause of action by way of interrogatory or for the mere purpose of an examination of the defendant, will be struck out as redundant- The bill of discovery in aid of the prosecution or defense of another action is abolished by the Code, § 389. 2 Cuyler v. Bogart, 3 Paige, 386 ; Bank of Utica v. Messam, 7 Paige, 517. 3 Mechanics' Bank v. Levy, 3 Paige, 606. * See these exceptions stated; 1 Barb. Ch. Pr., 1, 2, 3. MODE OF PROCEDUEE. 13 material or issuable fact, a collateral circumstance, or a mere matter of pertinent evidence. If the answer were not a full and sufficient response to the allegations, interrogatories and charges of the bill, the plaintiff might except to the same for insufficiency. The practice upon exceptions to an answer for insufficiency, is fully laid down in the books of Chancery practice;' but as it has become entirely obsolete under the present system, it is unnecessary to notice it here, further than to say that if the answer was reported by the master and adjudged insufficient, a second, and if necessary, a third answer was compelled. If these answers also proved evasive, or otherwise insufficient, the defendant might be ordered to be attached for contempt, and stand committed until he should have fully answered the interrogatories to the satisfaction of the master ; and in case he should still neglect or refuse to answer, the bill might be taiien as confessed against him, and he be further punished for contempt, in the discretion of the court. I pass over without notice various other interlocutory pro- ceedings peculiar to equity suits mostly on the part of the complainant, such as the writ of ne exeat, the writ of injunction, the appointment of receiver, &c., inasmuch as these being in substance preserved by the present practice, will be considered hereafter in their proper connections. If no reply was served to the defendant's answer, the matters contained in it were deemed admitted, and the cause was brought on for hearing on bill and answer. If, however, the complainant intended to controvert the answer, he served a replication within ten days after the answer was deemed sufficient. The replication was a mere general averment of the truth of the matters contained in the bill, and a denial of the allegations in the answer. The cause was then at issue and ready for the taking of proofs. The customary mode of taking the testimony in an equity suit, was by an examiner in Chancery, if the witnesses resided within twenty miles of such examiner, or in case they resided more than ' 1 Hoff. Ch. Pr., p. 245, 260; 1 Barb. Ch. Pr., p. 176, 202. 14 COURTS OP EQUITY. that distance, by commissioners nnder a commission granted by the court. Testimony, however, might be taken under the provisions of the Revised Statutes, by a vice-chancellor, at a stated or special term, if it was made to appear to him that it was expedient that the witness in any cause authorized to be heard by bim, should be examined m his presence ;i or, in a proper case, it might even be taken in open court, on the hearing of the cause under an order granted, on good cause shown by either party. ^ Testimony before an examiner was taken under an order granted on the application of either party to produce witnesses within forty days after notice of the order. The testimony of the witnesses was reduced to writing by the examiner, in the form of question and answer, subscribed by the witness, and certified by the examiner, and was filed with the register or clerk, within ten days after the order to close the proofs was entered. The cause was then ready for hearing, and either party might notice it at the next or any subsequent term, and have it entered on the calendar. Upon the hearing, if it appeared that any material facts were rendered doubtful by conflicting testimony, the court might order a feigned issue, comprehendirtg the disputed facts in question, and the issue, when settled, was sent down to a court of law to be tried by a jury. Under the provisions of the statute, ^ an issue of law might also be made up, on application to the court, before the hearing, and sent down to a court of law for trial by jury. With these exceptions, the Court of Chancery, following the course of the civil law, administered its remedies without the intervention of a jury. Feigned issues are now abolished by law,* and a substitute provided for them which will be hereafter considered. The proceedings of the court at the hearing of the cause, the practice in regard to the drawing up, settling, entering and enrolling of the decree, and the subsequent proceedings, including the execution of the decree, were all parts of the same system — a system peculiar to the Court of Chancery, and widely different from the practice and proceedings in suits at law. It is unnecessary to ' 2 R. S., 3d ed., p. 180, § 84 ; 3d ed., p. 243. ^ Ohy. Rules, p. 67. » Laws of 1839, p. 292. ' Code § 72. CHANGES IN PRACTICE. 15 pursue the subject further in this place, as we shall have frequent occasion in the course of this work to refer to some of the more prominent features of the old practice, in connection with, and, as illustrating, some of the corresponding branches of the new. SECTION III. CHANGES IN' EQUITABLE ACTIONS WHICH RECENT STATUTES AND THE LATE CON- STITUTION HAVE EFFECTED. We have observed, in a former section, that the Constitution of 1846, eflfected a twofold change in the administration of equity jurisprudence in the courts of this state, namely Jirst, by abolish- ing the Court of Chancery, and devolving its powers upon the new Supreme Court, creating, so to speak, thirty-two Chancellors, of co-ordinate jurisdiction, instead of one, in whom the whole power of the court had been vested j^ and second, by providing that the testimony in equity cases should be taken in like manner as in cases at law, that is orally, in court, at the hearing. In most other respects the customary mode of procedure in equity cases, and the practice generally were not disturbed, either by the Con- stitution, or the Judiciary act of 1847, and the amendments thereto.^ The Code of Procedure of 1848, with its subsequent amend- ments, effected a wider and more radical change. The preamble to the Code declares the object which the Legislature had in view in passing that act, namely, "that the present form of actions and pleading in cases at common law should be abolished, that the distinction between legal and equitable remedies should no longer con- tinue, and that an uniform course of proceeding, in all cases, should be established.^'' This is fully carried out by the 69th section of the amended Code, which enacts, that "the distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing are abolished, and there shall be in this state. ' By the recent case of Wilcox v. Wilcox, 4 Kern., 580, in the Court of Appeals it is held that in matters of equitable cognizance, the Justices of the Supreme Court may exercise the same powers at Chambers, which formerly the Chancello'" could rightfully exercise out of term. ^ See ante, page 7. 16 COUKTS OP EQUITY. hereafter, but one form of action, for the enforcement or protection of private rights, and the redress of private wrongs, which shall be denominated a civil action." There can be very little doubt as to the intention and true meaning of this enactment, especially when taken in connection with the sections of the Code which relate to the pleadings in civil actions. Its manifest design is to abolish all distinction between legal and equitable actions, not only as to the form of the pleadings, but as to the entire mode of procedure, including the trial and judgment, except indeed so far as the constitution has fixed a distinction by providing that a certain class of cases, that is to say common law actions, as contradistinguished from equity actions, shall be tried by jury. But in the earlier discussions which arose on this subject, some of the judges were inclined to give those provisions of the Code a more restricted meaning. A distinction, it was thought existed between equitable remedies and equitable relief; and while the Code assimilated legal and equitable remedies, it did not and could not abolish the inherent difierence between legal and equitable relief. ' The Constitution, it was contended, had established a distinction between the two classes of actions which the Legislature could not abolish, and it was urged, with much plausibility of argument, that the legislature did not intend to blend the modes of proceed- ing at law and in equity, any further than was compatible with both jurisdictions.^ And so far were these views carried, that the late Justice Barculo did not hesitate to express his astonishment, "that any man of common understanding" should have suffered the idea to enter his head, that legal and equitable proceedings could be moulded in the same form and be measured by the same rules. ^ ' Lindon v. Hepburn, 3 Sand., p. 668 ; Howard v. Tiffany, 3 Sand., p. 665 ; Mc- Master v. Bortle, 4 How. p. 427 ; Hill v. McCarthy, 3 Code R., p. 49; Craig v. Goodwin, 9 Barb. p. 657 ; Le Roy v. Marshall, 8 How., p. 373. = Wooden v. Waffle, 6 How., p. 193; Rochester City Bank v. Suydam, 5 How., p. 216 ; Knowles v. Gee, 8 Barb. p. 300 ; Merrifield v. Cooly, 4 How., p. 70. ^ Leroy v. Marshall, 8 How., p. 373. CHANGES IN PRACTICE. 17 In several of the earlier decisions, which may now be referred to merely as indicating the tendency of the judicial mind at the period in which they were rendered, the courts seemed inclined to lay down and perpetuate in the new practice a marked line of distinction, between legal and equitable remedies, as for example, in Otis V. Sill, ' holding that the principles of law and equity could not be administered in the same action so as to allow a com- plaint to demand both legal and equitable relief; and in Crary v. Goodman, ^ that an equitable right in the defendant could not be interposed as a defense to an action to recover the possession of land ; and in Wooden v. Waffle, ^ that if an equitable defense to a purely legal cause of action could be set up, the answer must be defensive, merely, and could not allege facts with a view to affir- mative relief.* But the Legislature steadily resisted these attempts of the courts to place so narrow a construction upon the provisions of the Code, and by subsequent amendments swept away one by one these and similar adjudications. * So that for all practical pur- ' 8 Barb., 201; see also Cahoon v. Pres. of the Bank of Utica, 3 Code R., 110. ^ 9 Barb., 657 ; see also Cochran v. U'ebb, 4 Sand., 653. ^ 6 Hovr., 193. Tbe Court of Appeals in Haire v. Baker, 1 Seld,, 357, a case under the Code of 1848, countenanced the same doctrine. ' See this subject more fully considered. Van Santvoord's Plead. (2d ed.), pp. 39-56. In the recent case of Reubens v. Joel, 3 Kern., -188, the subject is elaborately discussed by Judge Selden, who undertakes to show that the Legislature " has not tlie constitutional power to reduce all actions to one homogeneous form ; because it could only be done by abolishing trial by jury with its inseparable accompani- ment, compensation in damages, which would not only conflict with art. 1, se6. 2, which preserves trial by jury, but would in efi'ect subvert all jurisdiction at law, as all actions would thereby be rendered equitable ; or by abolishing trial by the caurt with its appropriate incident specific relief, which would destroy all equity jurisdiction and convert every suit into an action at law." And by a comparison of various sections of the Code, he arrives at the conclusion that in point of fact, "instead of being abolished, the essential distinctions between actions at law, and suits in equity, are by these sections expressly preserved." And that the general declaration made in sec. 69, which abolishes these distinctions " is plainly in conflict, not only with the Constrtution, but with the subsequent provisions of the Code itself." ^ Section 167, Code, as amended, provides that in the cases mentioned in that section, " the plaintiff may unite in the same complaint several causes of actioDj 3 18 COURTS OF EQUITY. poses, in view of the Code as it now stands, and the later decisions, there is no longer any distinction between legal and equitable remedies ; either may be administered under the same forms, both may be sought in the same action ; they are governed by the same general rules of pleading and practice, so far as the nature of the different kinds of relief admit ; the plaintiff may prosecute to judg- ment in the same suit, before the same tribunal, under the same forms, a claim that could be heretofore determined in a court of law alone, united with one of which only the Court of Chancery had jurisdiction; or, if he proceed simply upon his legal claim, he may encounter a purely equitable defense, or a counter-claim looking to a judgment of affirmative relief, based upon tlie principles of equity jurisprudence. Nor, though all this has been accomplished, is it pretended that the principles of equity jurisprudence, are either abolished or in the slightest degree impaired. The kind of relief which equity administers is essentially different from that administered by courts of law, the latter being (except in actions to recover real or personal property) compensatory in damages merely, while the former adapts itself to the peculiar circumstances of the case, and frequently administers its benign and wholesome remedies on the principle that a mere compensatory judgment in damages would not afford an adequate redress of the grievance or injury com- plained of. The distinction, therefore, taken in some of the cases cited above, between remedies, that is, modes and forms of pro- cedure, and relief, is perfectly proper.^ While the distinction whether they be such as have been heretofore denominated legal or equitable, or both." Section 150 declares that " the defendant may set forth by answer as many defenses and counter-claims as he may have, whether they may be such as have been heretofore denominated legal or equitable, or both ; " and section 274, as amended, declares that the judgment in the action " may determine the ulti- mate rights of the parties on each side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled.''^ 1 And this, as I understand the views of Judge Selden in Reubens v. Joel, 3 Kern., 488, is nearly the doctrine contended for by him. The mode of relief adopted by equity resting upon diflferent principles is inherently different from that of the common law. It is, he concedes, possible to abolish one or the other, or both, but it is not possible to abolish the distinction between them, nor has the Code professed to do this ; but only tha forms under which the remedy is applied. CHANGES IN PRACTICE. 19 between legal and equitable remedies is abolished, the nature of equitable relief is unchanged.' There is of course an inherent diffe- rence between a mere compensatory judgment in damages, and a judgment, rendered upon precisely the same facts, for specific relief, based on the idea that damages alone do not afford a full redress. The former is the strict common law, the latter the equity, remedy. The principles upon which the relief is administered in the two classes of cases are to be drawn from two separate systems of jurisprudence, and yet the mode of procedure in ascer- taining and administering the relief is the same, except that the trial by jury is guaranteed by the Constitution to one class of actions, and not to the other. In order to determine which actions are so triable, therefore, it is still necessary to distinguish between those which are of equitable origin, and those which depend upon common law principles alone. In the following section, I shall endeavor to point out more fully where that line of distinction is to be drawn. Having thus noticed the general changes which recent statutes arid the Constitution have effected in the theory of equity practice, let us next briefly glance at the changes which have beeji made in the machinery of an equity suit. Like an action at law, it is commenced by the service of a summons, either with or without a copy of the complaint. The defendant either answers, or judg- ment is taken against him by default for the relief demanded. The writ of subpoena is abolished, and with it all those intricate proceedings (noticed in the previous section) to compel the appear- ance, and, if desired, the answer of the defendant. There is no necessity of his appearance in order to obtain a judgment against him. Nor is there in any case a necessity of an answer, the Code having abolished a discovery in aid of the prosecution or defense of another action, ^ and it being no longer allowable to frame the complaint for the purpose of a mere examination oi the defendant.^ If his testimony be essential the plaintiff may obtain it, either at ' See also Ten Byck v. Hough taling, 12 How., 529; Trull v. Granger, 4 Seld., 119. 2 Code, § 389. ' Millikin v. Gary, 5 How., 272 ; Williams v. Hayes, 5 How., 470. 20 COURTS OF EQUITY. the trial, or on commission, &c., the same as that of any other -witness ; or if he desire the production and inspection of books or •documents in the defendant's possession, material to the prosecu- tion of the suit, he need not in his complaint put the defend- ant to his sworn answer in respect to them ; but the statutes and Code furnish a summary remedy which will be hereafter con- sidered. The class of cases referred to on a preceding page, ^ attempted to establish the doctrine that a distinction was still to be recog- nized between the mode of pleading a legal and an equitable cause of action. But notwithstanding these decisions the judicial mind seems to have nearly settled upon the other view of the question, and the current of authority appears to have followed the case of Williams ». Hayes, ^ and similar cases, holding that the new practice has adopted an entire uniformity in the mode of allegation in all cases and that the rules to determine the sufficiency of the pleadings are the same, whether the action be legal or equitable. The important Qhange made by the Constitution of 1846, in regard ^o the manner of taking the testimony in an equity suit, has already been noticed. ^ It abolished the office of examiner and the entire practice of taking testimony out of court, except in cases where testimony is taken under the provisions of the statute conditionally, or to be perpetuated, or witnesses out of the state are examined under a commission, &c., as in suits at law. The cause being at issue is now brought on for trial, and tried before the court, precisely the same as a common law issue in a case where a jury trial is waived, and the proceedings down to, and including, the entry of judgment are in all respects similar. Besides this ordinary routine of au equity suit, there are various interlocutory proceedings mostly preliminary to the final judg- ment, such as the granting of an injunction, the appointment of a receiver, the framing and settlement of an issue of fact for trial ■ Wooden v. Waffle, 6 How., 193 ; Rochester Cit3r Bank v. Sujdam, 5 IIow., 216 ; and others. ' 5 How., 150. 3 Ante pages 8, 10. 2 CHANGES IN PRACTICE. 21 by a jury, the taking and stating of an account, &c., «fec., which are in the main peculiar to and inseparable from this class of actions. The practitioner will find, in conducting a suit of an equitable nature, far less of a change from the old Chancery practice in this respect than any other. Experience has abundantly shown that all these interlocutory remedies are essential to a complete administra- tion of equitable relief; hence they are substantially retained by the new practice, their application, however, being for the most part confined to the same class of cases to which they were hereto- fore pertinent, namely, actions for equitable relief. The Code, by its enactrtients on the subject of " provisional remedies," has under- taken, by general rules, to prescribe the practice in regard to some of these proceedings, and of course so much of the old practice as conflicted with these enactments is abrogated. But it is obvious that these general provisions of the Code do not and cannot embrace all the details of practice, even in an ordinary, much less a complex and intricate, equity suit. Hence the Code has found it necessary to provide generally for the application of the rules of the former practice in cases not provided for by the new. And the general provision is made that " the present rules and practice of the courts in civil actions inconsistent with this act, are abrogated, but where consistent with this act, they shall con- tinue in force, subject to the power of the respective courts to relax, modify or alter the same." ^ This important provision, followed up as it is by the 93d rule of the present revision of the Supreme Court, ^ directing that where no other provision is made, " the proceedings shall be according to the customary practice in the Court of Chancery and the Supreme Court," furnishes the ke)"- to unlock many difficulties arising under the new system. It is a legislative recognition and sanction not only of the customary practice as it had been estab- lished by the usage of the Court of Chancery, but also of the special rules of that court, existing at the time of the adoption of the Code, and consistent with the Code, except so far as these rules had been abrogated or modified by the new rules of the Supreme Court. Nor have our courts failed to see the utility, ' Code, § 469. = The revision of 1858. 22 COURTS OF EQUITY. and, indeed, necessity, of this provision, or to apply it to actual practice; as for example in regard to the mode of accounting before a referee, the Code and present rules of the court being silent on the subject, the rules of the old Court of Chancery, ' requiring parties to bring in their accounts before a master in the form of debtor and creditor, and verified as prescribed by the rule, was held applicable ;2 in such cases the referee is the mere subtitute for a master in Chancery and must conform to the former Chancery practice. ^ If either party desire to review the referee's finding, he must file his objections, and take his exceptions based upon such objections according to the former practice. * And so in various other cases which will be hereafter referred to, when we shall have occasion to consider more fully the proper applica- tion of this important provision to particular cases, in the various stages and proceedings of an equity suit. ® It is to be observed, also, that the changes which the new practice has made, relate almost exclusively to civil actions, and not to what are called special proceedings. ^ These remain for the most part subject to the rules of procedure which governed them before. The Code defines an action to be " an ordinary proceed- ing in a court of justice by which a party prosecutes another arty for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." '' Every other remedy is a special proceeding. ' And that part of > Chancery Kules, 107, 108, 109, 110. ' Wiggins V. Gans, 4 Sand., C46. ' Palmer v. Palmer and others, 13 How., 363. * Ketchum v. Clark, 22 Barb., 319. ^ The Code " lays down certain rules of practice and pleading, and so far as these rules extend it is absolute ; but in cases left unprovided for by the Code the courts are left to their former practice as their guide." Per Mitchell, J. Wilcox V. Wilcox, 4 Kern., 580. ^ Except incidentally in certain cases which will be hereafter noticed, as for example in regulating the mode of appeals to the Court of Appeals from a gene- ral term decision on a final order affecting a substantial right in a special proceed- ing, §§ 11, 333, et seq.j also by the act of 1854 (p. 592), allowing appeals from orders in such cases from the special to the general term and making certain sec- tions of the Code applicable to special proceedings, &c., &c. ' Code, § 2. ^ Code, § 3. EQUITABLE ACTIONS, HOW DISTINGUISHED. 23 the Code which professes to regulate proceedings in our courts of iustice relates to " civil actions" only. Hence we are to look for the practice in cases of special pro- ceedings mainly to the former practice established in the usages and decisions of the courts, and in the present rules of the Supreme Court. The section of the Code applying the former rules, as well as practice of the courts where they are consistent, &c., to the new practice, applies in terms only to civil actions, and not to special proceedings, although, perhaps, the 93d of the present rules of the court above referred to, is sufficiently broad to include both classes of cases. The Code also provides, that if a case shall arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong cannot be had under its provisions that the former practice may be adopted, so far as may be necessary to prevent a failure of justice. ^ SECTION IV. EQUITABLE ACTIONS, HOW" DISTINeUISHED TEOM THOSE "WHICH ARE OF COMMON LAW ORIGIN. While we have thus substantially arrived at a uniformity in the mode of procedure in all actions, whether legal or equitable, it still becomes necessary, for certain purposes, to draw a line of distinction between them. For, a trial by jury, as a matter of course, or unless where an issue is specially ordered, is only to be had in actions of common law origin, with the single exception of an action for a divorce from the marriage contract on the ground of adultery. Every other issue is triable (unless referred as provided in the Code) by the court. ^ It is claimed in some of the earlier cases ^ under the Code, that the Legislature did not intend to abolish the distinction between legal and equitable remedies, because these two modes of pro- cedure necessarily required different modes of trial. It would ' Code, § 468. = Code, §§ 253, 254. 3 Crary v. Goodman, 9 Barb., 663 ; Hill v. McCarty, 3 Code K., 49. And this view is also enforced by Selden, J., in_the late case of Reubens v. Joel, 3 Kern., 488, above referred to. 24 COURTS OF EQUITY. not be difficult, I think, to show that this is not so. The differ- ent modes of trial are not necessarily traceable to any such fancied inherent distinction between the two forms of remedies, but rather to certain constitutional provisions which it may be well now to notice, and which, if removed, would leave no difficulty in the way of providing a strict uniformity of trial in all actions, either all by jury, or all by the court in the first instance, with power to refer or to order any issue for trial by a jury. Our Constitutions, both federal and state, contain provisions relative to the preservation of the trial by jury in civil cases. The former, by article 7 of the amendments of 1789, provides that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of ti'ial by jury shall be pre- served." This has been construed to embrace nil suits which are not of equity or admiralty jurisdiction, whatever may be the pecu- liar form which they may assume to settle legal rights.^ So far as the proceedings in suits in our state courts are concerned, this provision of the Federal Constitution is of no practical importance, as it is held restrictive upon and applicable only to proceedings in the federal courts; and is no restraint whatever upon the power of the Legislature of a state to interfere to any extent with the trial by jury. ^ But the real restriction placed upon the legislative power in regard to limiting the trial by jury, is that contained in the State Constitution. It is the second section of article 1st of the Con- stitution of 1846,^ and is as follows: "The trial by jury, in ail cases in which it has been heretofore used, shall remain inviolate forever. But a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law." The provision relates only to the trial of issues of fict in civil and criminal causes in courts of justice;* and only in that class ' Parsons v. Bedford et al., 3 Pet. U. S. R., 434. = In the matter of Smith, 10 Wend., 449 ; Livingston v. Mayor, &c., of N. Y. 8 Wend., 100 ; Jackson v. AVood; 2 Cow., 818;n. b. ; Colt o. Eves, 12 Conn., 243' Lee V. Tillotson, 24 Wend , 337. ^ See also Constitutions of 1777 and 1822. * Beekman v. Saratoga and Schenectady R. R. Co., 3 Paige, 45. In the mat- ter of Smith, 10 Wend., 449. EQUITABLE ACTIONS, HOW DISTINGUISHED. 25 of suits in which trial by jury was used at the time of the adoption of the Constitution. But it does not forbid the reference and trial by referees of such actions as by statute, and the prac- tice of the courts were referable before the Constitution of the state was adopted.' With these exceptions, therefore, it will be seen that the Legislature has no power to take away from a jury, the trial of a common law action, or authorize tiie courts to do so. Nor has the Code attempted anything of the kind. In regard to the trial of that class of actions, it provides that they must he tried by a jury, unless a jury trial be waived or a reference ordered. The entire section is as follows : ^ "An issue of law must be tried by the court, unless it be referred as provided in sections two hundred and seventy and two hundred and seventy-one. An issue of fact in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived as provided in section two hundred and sixty-six, or a reference be ordered as provided in sections two hundi'ed and seventy and two hundred and seventy-one." Perhaps the language of this section indicates as nearly as may be practicable, the true line of distinction between actions which are brought for legal, and those for equitable relief. It refers to three kinds of cases, the Ji/st where the action is brought for the recovery of money damages only ; the second, where it is brought to recover real property (the former action of ejectment) or per- sonal property (the former action of replevin), and these two general divisions it is believed, embrace all the cases which existed at common law, or where the trial by jury " has been heretofore used" within the meaning of the Constitution. If the prayer for relief in the complaint be not simply for one or the other of these alone, the action must be treated as of an equitable nature.^ The mode of trial in which will be considered 4iere- after. ' Lee -;. Tillotson, 24 Wend., 337. = Code, § 253. s Willard's Eq. Juris., 42. 4 26 PRELIMINARY PROCEEDINGS. The third kind of case referred to in the above section, is divorce for adultery, an action wholly of an equitable natiire, but in which a trial by jury is given by the Legislature, for special reasons, not resting, however, on any constitutional limitation or requirement. CHAPTER II. PEOCEEDINGS ON THE PART OF PLAINTIFF IN COMMENCING ACTIONS. Section I. Of cebtain preliminary proceedings, such as appointing guardian foe INFANT, FILING SECURITY FOE COSTS, &C. II. Issuing of summons and filing notice op lis pendens. III. Personal service. of summons and peoof of same. IV. Seetice of summons bt oedee of a judge, and by publication, and proof of same. SECTION I. OF CERTAIN PRELIMINARY PROCEEDINGS, SUCH AS APPOINTING GUARDIAN POB INFANT, FILING SECURITY FOR COSTS, Code 134, sub. 3. = Morrell v. Kimball, 4 Abbott, 352. ' The Fanners' Loan and Trust Co. v. Dickson, 9 Abbott, 71. « Code, § 135. = Supreme Court Rule 18. ■•• Board v. Board, 4 Abbott, 306. SERVICE BY ORDER. 47 the signature of a defendant who has not appeared, and therefore his signature must be verified and properly identified.' The court, therefore, will not proceed to grant the relief, or allow judgment to be taken, unless an affidavit to the genuineness of the admission, or some other proof is presented. If, however, the court should allow such a judgment, I apprehend it would not even be an irregularity, and could not properly be vacated or set aside, except on proof by the defendant going to impeach the genuineness of the signature. If this is not denied, the service is of course complete, and the court has acquired jurisdiction. On such motion, the proper order would be to allow the plaintiff to file the proper proof nunc pro tunc, leaving the judgment to stand. And this, it is held, will be done, even where the proof of service is wholly insufficient in substance and not merely in form, as where the sheriff of one county has certified to the service of process in another. In such case the affidavit, and not the cer- tificate of the sheriff, is the proper proof, and it may be allowed to be filed nunc fro tunc to sustain the judgment. ^ SECTION IV. SERVICE BY ORDER OF A JUDGE AND Br PUBLICATION, AND PROOF OF SAME. Substituted service. By a recent statute ^ a mode of substituted service of the sum- mons, as well as other papers in a suit, is provided, in the case of a defendant residing in, this state who cannot be found, or if found, who avoids, or evades, personal service. * The mode of such ' Litchfield I!. Burwell, 5 How., 341. And the sheriff's certificate should identify the summons served ; it is not sufiicient for him to certify that he served a copy of a summons on the defendant, without showing either by the name of the cause or some other proper reference, that it is the summons in the action. Ibid. ^ Farmers' Land and Trust Co. v. Dickson, 9 Abbott, 71. 3 Laws of 1853, p. 974. ^ Tlie statute seems to supply an omission in the Code in regard to the service of a summons, by publication, upon a resident defendant who cannot be found, and the case does not fall within either subdivision 2 or 4 of section 135. In such cases, it has been held that the act of April, 1842 (Laws of 1842, p. 363), applied. See Close v. Van Heusen, 6 How., 157. That construction, however, seems to be rendered unnecessary by the provisions of the present statute. 48 PROCEEDINGS IN COMMENCING ACTIONS. service is clearly pointed out in the statute ; namely : by leaving a copy of the summons (or other paper to be served) at the resi- dence of the person to be served, with some person of proper age ; if admittance cannot be obtained or any such proper person found, who will receive the same, by affixing such copy to the outer or other door of said residence, and by putting another copy thereof, properly folded or enveloped, and directed to the person to be served, at his place of residence, into the post office, in the town or city where such defendant resides, and paying the postage thereon. This mode of service by order, it will be observed, is only ap- plicable where the defendant has a known place of residence, within the state. In commencing a suit in this way, an effort must be made to procure the service of the summons by first delivering it, to be served, to the sheriff (or a deputy-sheriff) of the county where the defendant resides. For it is only on the return, or affidavit, of such officer that the court, or judge, can be satisfied that " proper and diligent effort has been made " to serve such summons. On being so satisfied, the court, or judge, or any county judge of the county, will grant an order, that ser- vice be made as above, in the manner pointed out by the statute. The statute applies only when the party cannot be found in or out of the state. Accordingly, where it appears that the defendant resides ia this state, but has gone to another state or county on a temporary visit, the order for substituted service cannot be made.' The order must direct the service to be made in strict conformity with the statute. ^ On filing with the clerk of the same county proof, by affidavit, of the service according to the order, it is deemed complete; and the same proceedings may be taken as though the summons had been personally served. ^ Service by publication. When the defendant cannot, " after due diligence, be found within 'this state," service may be made, in certain cases, by pub- lication, under an order of the court or judge. These cases, in which service may be so made, are specified in section 135 of the Code, as follows : Collins V. Campfield, 9 Sow., 519 ; Foot v. Harris, 2 Abbott, 454. ' Ibid. " Laws of 1853, p. 954. SERVICE BY PUBLICATION. 49 1. Where the defendant is a foreign corporation and has pro- perty within the state, or the cause of action arose therein. 2. Wliere the defendant, being a resident of this state has de- parted therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein, with the like intent. 3. Where he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action, 4. Where the subject of the action is real or personal property in this state, and the defendant has or claims a lien or interest- actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein. 5. Where the action is for divorce, in the cases prescribed by law. Affidavit on application for order. The affidavit for obtaining an order of publication may be made by the plaintiff, or any other person acquainted with the facts. It should show by positive allegations that a cause of action exists in favor of the plaintiff and against the defendant, and the nature of such cause of action ; or, if the action relate to real property, it should show that the defendant is a proper party, not by simply alleging that he is, but by stating the nature of his interest or claim, so that the court or judge can see that he is a proper party. If application be made on the ground that the defendant is a non-resident of the state, the fact of his having property within this state must appear distinctly and affirmatively, or the court will have no jurisdiction. In such cases proof that the party is a non-resident, without any previous attempt to serve process, is sufficient.^ So, too, it would seem where he cannot be found in the state, his last place of residence in the state being unknown, and the application is made under subdivision 4. But if his last place of residence in the state be known, or if he have left a family resident within the state, an effort should be made to serve the process, and the sheriff's return, of not found, on the summons, should be annexed to the affidavit. ' Vernam v. Holbrook, 5 How., 3. 50 PROCEEDINGS IK COMMENCING ACTIONS. A person, it is said, may be a non-resident while his domicil continues within the state, as where he has been detained abroad for a long period of time, though intending to return, and keeping and having kept a house here.' The affidavit in such a case should show from the personal knowledge of the deponent, that the non-resident has property within the state, and an affidavit on information and belief is insufficient.^ Nor will an order of publication be made against a non-resident in case where his property is only brought temporarily within the state, with the design of removing it forthwith, and if so made, it will be set aside as irregular and a fraud upon the statute.^ So also if the application be under the 2d subdivision of the section under consideration (§ 135) the affidavit must speak as to facts, and must not be mere hearsay and belief. As, for instance, if it merely state that the defendant is a resident of the state, and that the deponent is informed that he is absent from the state, and that he believes that he is absent for the purpose of defrauding his creditors, without showing grounds for that belief, it is insuffi- cient, and an order granted on such an affidavit is irregular, and will, with all subsequent proceedings thereon, be set aside on -motion.* The affidavit must show the residence of the defendant, if known ; or if not known, and cannot with reasonable diligence be ascertained, that fact must be shown by the affidavit.* Similar rules are applicable in case of a foreign corporation, except that an order will be allowed against it, whether it has property within the state or not, provided the cause of action arose therein. A substitute for the service by publication on a foreign corporation, is provided by section 134 of the Code.* And such service by publication can only be necessary when the corporation has no officer or managing agent here. Under the ' Haggart v. Morgan, 1 Seld.,422 ; Collins v. Campfleld, 9 How., 519. ' Evertson v. Thomas, 5 How., 46. " Haigbt V. Husted, 4 Abbott, 348; same case, on appeal, 5 Abbott, 170. * Warren v. Tiffany, 9 Abbott, 66. = Hyatt V. Wagenriglit, 18 How., 248. « Bates V. The New Orleans, &c., Railroad Co., 4 Abbott, 72; 13 How., 516. SERVICE BY OEDEE. 51 former practice, it was held, that the affidavit should state the place of the institution of such corporation, and that no officer, &c., onwliom service could be made, could be found in this state.' But by the Code, it seems, either mode of service is proper, and these allegations need not be stated in the affidavit. If the cause of action did not arise here, however, it must affirmatively appear that the corporation has property within the state, or the court, as in case of a non-resident, would have no jurisdiction, and it should also appear that the property is such as is liable to be taken by attachment, precisely the same as in case of service upon an officer of the corporation. ^ In order to confer jurisdiction, the requirements of the statute must be strictly pursued and fully complied with, ^ and the affidavit must contain all the facts necessary to show such com- pliance. It is said, however, to rest in the discretion of the judge who grants the order, to determine whether due diligence has been used or not, to effect a personal service, and that the granting of the order is evidence that it appeared to his satisfaction that due diligence has been used, and that if there be but little ^■vidence as to due diligence, the determination of the judge granting the order, will not be reviewed by another judge on a motion to set it aside. ^ Order of puhlicntion. The order of publication may be allowed by the court on motion ex parte, or by a judge of the court or county judge at Chambers. In the latter case it is without any caption, and may be indorsed on the affidavit, or drawn separately under the title of the cause, and signed by the judge at the foot of the order. The order directs the publication of the summons to be made in two newspapers to be designated as most likely to give notice to the person to be served, for such length of time as may be deemed reasonable, not less than once a week for six weeks, and, unless it appear that the residence of the person to be served, is neither known, nor can with reasonable diligence be ascertained. The order ' 1 Barb. Ch. Pr., 96. 2 Bates V. New Orleans, &c., Railroad Co., 4 Abbott, 72. 3 Hallett V. Kighters, 13 How., 43. ■> Roche v. Ward, 7 How., 416. 53 PROCEEDINGS IN COMMENCING ACTIONS. also directs a copy of the summons and complaint to be forth- with deposited in the post office, directed to the person to be served, at his place of residence. ' It must direct such copy to be forthwith deposited in the post office, merely directing it to be deposited, &c., is insufficient.^ The plaintiff's attorney draws up the order and inserts the uames of the papers in which he wishes the publication to be made, and it is the usual practice (except in very special cases) to make the time of publication no more than six weeks. The order it is said should either recite the summons or, what will answer the same purpose, refer to it as being annexed, for the purpose of identifying the summcns. ^ It is believed, how- ever, to be a common practice to entitle the order fully in the cause and to insert in it merely a direction that the summons "in the above entitled action be published," &c. Puilication mid service. The Code provides that in all cases where publication is made, the complaint must be first filed, and the summons as published must state tlie time and place of filing. In a case where the sum- mons, dated and published on the same day, stated that the complaint has this day been filed, and it appeared that the com- plaint was actually filed the day before, it was held to be a sufficient compliance with the statute.* The order having been obtained and complaint filed, the plaintiff's attorney, if the order so direct, \s forthwith to deposit in the post office at his place of business, a copy of the summons and complaint directed to the person to be served, at his place of residence. The meaning of the term forthwith, as here used, has not been judicially determined. No doubt service within twenty- four hours would be deemed a substantial compliance with the statute, and in all cases it is advisable to make it within this period. A deposit in the post office on the 9th of November, ' Code, § 135. A defect in this respect is a fatal irregularity, for which the proceedings will be set aside on motion. Warren v. Tiffany, 9 Abbott, 66. 2 Hyatt V. Wagenright, 18 How., 248. 2 Vernon v. Holbrook, 5 How., 3 ; Everts v. Thomas, 5 How., 46. * Jacquerson v. Van Erben, 2 Abbott, 315. SEEVICE BY ORDER. 53 und^T an order of publication made on the 24tli of the previous month, was held to be irregular. ' The statute does not in terms require the postage to be paid, but its object beiug to give the party to be served notice, the prepayment of postage seems clearly to be contemplated, and the affidavit of service should show that this was done. When publication is ordered, personal service of a copy of the summons and complaint, out of the state, is equivalent to publi- cation and deposit in the post office.^ In case such personal service can be made, however, a regular order of publication must firsr be obtained, otherwise the service is a nullity. Contents of summons as published. The summons as published, must state the time nnd place of filing the complaint.^ This has been considered a jurisdictional requirement which, unless complied with, will render a judgment entered on default void.* It was also held in the same case that a mere notice at the bottom of the summons as published, stating the time and place of filing the complaint, is not sufficient, but that the summons itself must contain such notice, and that the summons as published must also contain the name of the state. ^ The contrary doctrine, however, was established in a case at general term in the second district, and that decision affirmed by the court of appeals.^ Filing affidavit and order. The affidavit and order of publication must be filed in the office of the clerk of the county mentioned in the summons. This is now regulated by the new rules of the court which require the affidavit and order for the service of a summons by publication, or for a substituted service to be filed, and if not done within five days after the same are granted, the defendant may move to vacate with costs.'' ' Buck V. Crussell, 2 Abbott, 386. 2 Code, § 135. 3 Code, § 135. ^ Titus V. Relyea, 8 Abbott, 177 ; Justice Rosekrans dissenting, 17 How., 266. 5 Ibid. " Cook V. Esleeck, 8 Abbott, 170 ; 17 How., 134 ; same case, 19 N. Y. R,, 412. ' Rule 4. 54 PROCEEDINGS IN COMMENCING ACTIONS. Service when com-ph te. The service is complete at the expiration of the time prescribed by the order/ that is on a six weeks' order it is complete at the expiration of six full weeks from the time of the first publication, and not on the day of the sixth publication. The defendant has twenty days after the expiration of the time mentioned in the ordar of publication to put in his answer.^ In case of a personal service made out of the state or an order of publication, the time for answering commences to run from the personal service.^ Froof of serv ice. The affidavits on which to move for judgment must show that the provisions of the order of publication have been fully com- plied with. Proof of the publication may be made by the printer of the paper or his foreman or principal clerk, and should show that the person making such affidavit is such printer, foreman, or principal clerk. The affidavits of mailing the summons and com- plaint should show the name and address of the person on whom service is made, and should state the name of the post office in which the letter was deposited, the date of depositing it, and that the postage was paid thereon. If personal service be made out of the state, proof may be furnished by affidavit, which, if taken out of the state, must be sworn to before the proper officer, and attested according to the provisions of the statute. Right to defend after judgment. The section of the Code under consideration provides that the defendant, on application and sufficient cause shown at any time before judgment, must be allowed to come in to defend the action; and, except in an action of divorce, the defendant, against whom publication is ordered, or his representatives, may in like manner and upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just.^ It ' Code, § 137 ; Vernon v. Holbrook, 5 How., 8. * Tomlinson v. Van Vechten, 6 How., 199. ^ Dykers v. Woodward, 7 How., 313. * Code, § 135. DISCOVERY OF BOOKS AND PAPERS. 55 is held under this provision that the mere admitting a defendant, in such case, to defend after judgment, does not open the judg- ment nor stay the proceedings upon the execution.^ CHAPTER III. FURTHER PROCEEDINGS ON THE PART OB^ PLAINTIFF PREVIOUS TO THE defendant's ANSWER. Section X. Discovert of booes and papers to enable plaintiff to fra3ie his coiiPLAiNT. II. Cojiplaist, and hotf framed as to title and parties. III. Complaint, and how framed as to statement of facts. IV- Verifting, amending, filing and serving complaint. V. Obtaining injunction or other provisional remedy. SECTION I. DISCOVERT OF BOOKS AN'D PAPERS TO ENABLE PLAINTIFF TO FRAME HIS COMPLAINT. It has ah-eady been mentioned that an action may be commenced by service of a summons, either with or without a copy of the complaint. If the complaint be not served with the summons, the defendant may, within twenty days, cause notice of appear- ance to be served on the plaintiff's attorney, and demand in writing a copy of the complaint, specifying a place within the state where it may be served, and the plaintiff, within twenty days thereafter (or if service of the demand had been by mail, within forty days), must serve a copy of his complaint pursuant to such demand.^ It may sometimes happen that the plaintiff is not able to frame his complaint without an opportunity to inspect papers or docu- ments in the possession or under the control of the opposite 1 Oarswell v. Neville, 12 How., 443. » Code, §§ 130, 412. 56 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. party. In such cases he will be obliged to serve his summons without a complaint, and then apply for a discovery of such papers or documents according to the practice prescribed by the statutes and rules of court which we are now to consider. Application, in what cases may be made. The application for a discovery of books and papers with a view to aid in framing the pleadings in a cause, seems to rest more particularly upon the statutes and the present rules of the court, and not upon section 3S8 of the Code, which it is thought, is more properly, if not solely, applicable to proceedings of this nature taken after issue joined with a view to obtain evidence or prepare for trial.' That section and the proceedings to obtain evidence under it and prepare for trial, will be considered in a subsequent part of this work. In regard to applications made with a view of properly framing the pleadings in a cause, it is provided by the 14th of the present rules of the court. "Applications may be made in the manner provided bylaw, to compel the production and discovery of books, papers, and docu- ments relating to the merits of any civil action pending in this court, or of any defense in such action, in the following cases : 1. By the plaintiff, to compel the discovery of books, papers or documents in the possession or under the control of the defendant, which may be necessary to enable the plaintiff to frame his com- plaint, or to answer any pleading of the defendant. 2. The plaintiff may be compelled to make the like discovery of books, papers, or documents, when the same shall be necessary to enable the defendant to answer any pleading of the plaintiff. 3. Either party may be compelled to make discovery as pro- vided by -^ 388 of the Code." The last clause was added in the late revision of the rules. The Court of Appeals had previously held that the provision of the section of the Code referred to was merely auxiliary to the 1 1 Whit. Pr., 613, ei seq.; Gelston v. Marshall, 6 How., 398 ; Keeler v. Dusen- bury, 1 Duer, 660 ; 11 L. C, 287. DISCOVERY OF BOOKS AND PAPERS. 57 provisions of the Revised Statutes and not a substitute for them.* A party has a right to avail himself of either mode, the proceed- ings in the two cases being different, and different modes of enforc- ing the discovery being provided.^ The Revised Statutes provide ^ that the court shall have povs^er, " in such cases as shall be deemed proper, to compel any party to a suit pending therein, to produce and discover books, papers, and documeats, in his possession or power, relating to the merits of any such suit, or of any defense therein." And further, that " the court shall, by general rules, prescribe the cases in which such discovery may be compelled, and the proceedings for that purpose, where the same are not herein provided ; and therein the court shall be governed by the principles and practice of the Court of Chancery in compelling discovery, except that the costs of such proceedings shall always be awarded in the discretion of the court." The general rules prescribed by the court as to " the cases in which, such discovery may be compelled," are given above. They relate to a discovery in aid of the plaintiff, as well as of the defendant, to enable each of them to frame his respective plead- ings, and it will be more convenient to consider the subject as it relates to both parties here, than to treat it separately, so far as it relates to the defendant, in a subsequent part of the work. The provisions of the statute clothing the " Supreme Court " with power to order the discovery, of course related exclusively to suits at law. But the distinction between suits at law and in equity being abolished, the statute and rules of court now apply to all cases. Under the old Chancery practice the defendant could not compel a production of documents in the complainant's pos- session, even though he swore that an inspection of them was necessary to enable him to answer; but if the books or documepts were material to his defense, he was driven to file a cross bill against the complainant for a discovery of them.^ So, too, the 1 Gould V. McCarthy, 1 Kern., 575. 2 Dole V. Fellows, 1 Code R., N. S., 146 ; Davis v. Dunham, 13 How., 427. 3 2 R. S. (3d ed.), 262, §§ 30, 31 ; Ibid., 377, § 16. ' Denning v. Smith, 3 John. Ch. R., 409 ; Kelly v. Eckford, 5 Paige, 548. 8 58 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. complainant, if he desired an inspection of books and documents in the defendant's possession, was required to frame his bill with a view to discovery, that is to obtain an admission in the defend- ant's answer that he was in possession of them, and the motion or petition for the production of the books, &c., was founded on such admission.! This practice no longer obtains, but both plain- tiff and defendant may have a discovery in equity as well as common law cases under the simple provisions of the statute and according to the principles upon which discovery was heretofore granted. The books, papers and documents, whose production the court is authorized by statute to require, are such as relate "to the merits of any such suit, or of any defense therein." Those referred to by the Code are such as contain " evidence relating to the merits of the action or the defense therein." The plaintiff must have a direct and immediate interest in the deeds or docu- ments or in their production. Thus the plaintiff is entitled to the production of a deed which sustains his title, but not of a deed which is not connected with his title and which gives title to the defendant. ^ If the defendant has a deed relating to the title of both parties production of it will be ordered. ^ So, if the plaintiff has a direct interest in deeds in the defendant's possession, and they do not relate solely to any separate and independent title of the defendant, they will be ordered to be produced.'' It is laid down as a general rule that, if the applicant has what is termed a common interest in the instrument with the other party, he is entitled to the production, and this term embraces the interests of landlord and tenant ; principal and agent ; copart- ners ; trustees and cestuis que trust; and tenants in common.* Thus, in a suit between partners, both parties having an equal ' Watson V. Renwick, 4 John. Ch. R., 384; Eager v. Wiswall, 2 Paige, 369; Erskine v. Bize, 2 Cox's Ca., 226. '^ Sparks ». Montrion, 1 Young and Col., 103; Tyler «. Drayton, 2 Sim. and Stu., 309. ^Bolton V. Corporation of Liverpool, 3 Sim., 489. ^ Attorney General v. Ellison, 4 Sim., 238, ' 1 Barb. Oh. Pr., 232, and cases there cited; 1 Hofle. Ch. Pr., 310. DISCOVERY OF BOOKS AND PAPERS. 59 interest in the copartnership books and papers, inspection of them will be ordered on the application of either party, at any stage of the suit.^ The party making the application for discovery must show that it is material for the support of the claim, or defense of the applicant, that it should be made.^ The order is not a matter of course, but is in all cases in the discretion of the court.^ A party has no right to make a general search and examination for evi- dence, among the books and papers of his adversarJ^^ or to require the production of private or confidential papers of the opposite party, as for example, letters which passed between him and his solicitor, in the progress of the cause and with reference to it ;* or a correspondence between the defendant's solicitor and a person not a party to the suit.^ Gross negligence, or bad faith, in the applicant, will prevent the court from granting the discovery ; or if he can obtain the production of the paper, under a subpoena duces tecum.'' But as a party cannot procure the books of a corporation tinder a subpoena duces tecum, he may properly apply for inspection under the Statute or Code.' Not only must the applicant satisfy the court that the produc- tion of the document sought, is " material for the support of the claim or defense," but also, that it is in the power of the opposite party to furnish it ; and if the party proceeded against, distinctly deny, under oath, the possession or control of the document, the applicant must abide by such answer.^ And where the applica- tion showed the paper to have been delivered to the adverse party, • Kelly V. Eckford, 5 Paige, 548. '^ Hoyt V. American Exchange Bank, 8 How., 89. ^ Hooker ^). Matthews, 3 How., 329; Van Zandt v. Cobb, 12 How., 544; Keeler V. Dusenbury, 1 Duer, 660. * Brevoort v. Warner, 8 How., 321 ; Cassardt). Hinman, 6 Duer, 695. 5 Garland v. Scott, 3 Sim., 396. ^ Curling v. Perring, 4 My. and Keen, 380. .' Com. Bank of Albany v. Dunham, 13 How., 541 ; Van Zandt v. Cobb, 12 How., 544; Terry i;. Rubel, 12 L. 0., 138. ^ La Farge v. La Farge, Fire Ins. Co., 14 How., 26. ' Hoyt V. American Exchange Bank, 8 How., 89, 1 Duer, 622 ; Bradstreet v. Bailey, 4 Abbott, 233 ; Abork v. Wolcott, 4 Abbott, 41. 60 FURTHER PROCEEDINGS BT PLAINTIFF BEFORE ANSWER. he mast, in order to excuse himself from discovering it, swear positively, that it is not in his possession, or under his control ; or must state facts which, with his denial on his knowledge, informa- tion and belief, are equivalent to a positive negative on oath.^ The possession, however, need not be an actual personal posses- sion ; as if books or papers are in the hands of defendant's solicitor, or a joint agent of himself and other persons, the court will order them to be inspected ; or if they are in another country, or are coming over to this country, will order them to be pro- duced within a reasonable time.^ Application, how made. The application for discovery, under the statute, is made by petition. It is provided that, " to entitle a party to any such dis- covery, he shall present a petition, verified by oath, to the court, or to any justice thereof, or to any circuit judge in vacation, upon which an order may be granted by the court, or such officer, for the discovery sought, or that the party against whom the same is sought, should show cause why the prayer of such petition should not be granted." ^ The practice in a proceeding for the discovery of books and papers, is governed by the principles and practice of the late Court of Chancery, and the Legislature, it is said, did not intend to introduce any new rule by the Code. * The application is to be made in the manner provided by law, and that manner is by petition.^ The rule of the Supreme Court* requires that the moving papers shall state the facts and circumstances on which the discovery is claimed, and shall be verified by affidavit, stating that the books, papers and documents whereof discovery is sought, are not in the possession nor under the control of the party ■ Southart v. Dwight, 2 Sand., 672. ^ 1 Barb. Ch. Pr., 231. 3 2 R. S. (3d ed.), 262, § 32. ' McAllister v. Pond, 6 Duer, 702 ; 15 How., 297. 5 Dole V. Fellows, 1 0. R., N. S., 146 ; 5 How., 451. ^ Sup. Court Rules (1858), 14, and see cases cited in note to same. The former rules merely required the applicant to swear to advice of counsel and belief that the discovery of the books, &c., was necessary to enable him to draw his pleading or prepare for trial, and did not require him to show the materiality and neces- sity, &c. DISCOVERY OP BOOKS ANB PAPERS. 61 applying therefor; and the applicant shall also show to the satis- faction of the court or judge, the materiality and necessity of the discovery sought, and the particular information which he requires. One of the first facts to be set forth in the petition for the discovery of books and documents, is that the applicant has not in his possession the same information, or, if he has, that he has not the means of establishing, by other available proof, the con- tents of such books and papers. ^ But it has been held sufficient, if the petition shows that the books, &c., are in possession of the adverse party. ^ In every case, the party seeking the discovery, must show, to the satisfaction of the court, or officer, that the books or papers which he seek to have produced, contain evi- dence relating to the merits of the action. ^ The mere statement that in the opinion of counsel this discovery is necessary, will not suffice.^ The court or judge must be satis" fied from ths facts stated, how the discovery is material and necessary. ^ Thus, a petition must show, that entries in books, &c., affijcting or throwing some light on the matters in contro- versy exist, or are enough to call on the adverse party, to answer whether they do or not ; that they are material, and state enough, if not denied, to enable the court to see that they are material. ^ When the application is made to enable the plaintiff to frame Ms complaint, strong affidavits showing the necessity of the dis- covery, will be required. ' But it is not necessary that the facts should be made to appear by the oath of the party himself They may be made to appear by the oath of any other person. ^ The petition, however, should, no doubt, be signed by the applicant, and verified by him, and should he not be acquainted with the " facts and circumstances," the affidavit of any other person may be supplied and used on the application. ' McAllister v. Pond, 6 Duer, 702. 2 Exchange Bank v. Monteith, 4 How., 280. ^ Davis V. Dunham, 14 How., 428. " McAllister v. Pond, 6 Duer, 702 ; 15 How., 297. 5 Gelston V. Marshall, 6 How., 398 ; Stanton v. Delaware Mut. In. Co., 2 Sand., 662. ^ Cassard v. Hinman, 6 Duer, 695 ; Supj Court Rule, 15. ' Keeler v. Dusenbury, 1 Duer, 661. " Exchange Bank v. Monteith, 4 How., 280. 62 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. Order, how and when granted. Copies of the petition and affidavit of verification, with any affidavits to be used in support of the motion must be served eight days before the motion on the opposite party, or, if he has appeared, on his attorney ; or an order to show cause (which is equivalent to a notice,) may be obtained in the first instance, and a copy, with copies of the petition, &c., served. The opposite party may oppose the motion, and read counter affidavits. If the party answer distinctly and unequivocally, that as to all or any of the papers or documents, or entries of which a discovery is sought, there are no such papers or documents in his possession, or under his control, and that there are no entries relating to the specified subject matter, or, except such as he has furnished copies of, then that is an end of the application, and the applicant must abide by the answer so far as the proceedings for discovery are concerned,' The burden is on the petitioner of proving the ability of the party to discover, or show, the papers, and a simple denial of the party that the paper, &c., is in his pos- session, or under his control, is a sufficient answer to the motion.^ But a mere excuse, or an evasive or equivocal answer, is insufficient. The party must make an affidavit in the terms prescribed by statute, and swear positively, that the papers are not in his pos- session or under his control.^ The opposing affidavits may show gross negligence or bad faith on the part of the petitioner, which will be a sufficient answer to the application ; or any facts, going to show that the papers are not material, or their discovery necessary to the recovering party.* The court will not act on mere suspicions, but facts must be shown sufficient to make out a case, to the " satisfaction of the court or judge," within the rule® and the provisions of the statute. It is therefore, not a matter of course, even if there be no opposition, to grant the order ; but it is altogether in the discretion of the judge or court. ' Hoyt V. American Exchange Bank, 8 How., 89 ; 1 Duer, 652. 2 Bradstreet v. Bailey, 4 Abbott, 233. ^ Southart v. Dwight, 2 Sand., Sup. 0. R., 672. < Van Zandt v. Cobb, 12 How., 544 ; Stalker v. Grant, 12 Leg. Obs., 124. ' Sup. Court Rules, 15. DISCOVERY OF BOOKS AND PAPERS. 63 Form of order, and proceedings on obtaining it. The requisites for the order of discovery, are specified in the 16th rule of the court, namely: that it shall specify the mode in which the discovery is to be made ; which may be either by requiring the party to deliver sworn copies of the matters to be discovered, or by requiring him to produce and deposit the same with the clerk of the county in which the trial is to be had, unless otherwise directed in the order. The order shall also specify the time within which the discoveiy is to be made. And when papers are required to be deposited, the order shall specify the time that the deposit shall continue ; and shall also declare the consequences of an omission to comply with the same. The order should also specify the terms upon which it is granted, as to costs, &c. If copies of papers are ordered, it should be at the expense of the moving party. ^ The party obtaining the order should draw it strictly in accord- ance with the rules, and present it to the judge, if the motion is at chambers, for his signature ; or, if the motion is in court, have the order allowed in the usual way, and filed with the moving and op- posing papers, in the clerk's office. A copy of the order must be served on the opposite attorney. Effect of order, and how enforced. The statute ^ directs that the court shall provide, by general rules, for the staying of the proceedings of any party against whom such discovery shall have been ordered, either by the court or by an officer, until the same shall have been complied with or vacated. And, in compliance with the statute, the 17th of the new rules provides, that the order shall operate as a stay of all other proceedings in the cause until such order shall have been complied with or vacated ; and the party obtaining such order, after the same shall be complied with or vacated, shall have the like time to prepare his complaint, answer, reply or demurrer, to which he was entitled at the making of the order. But the justice in granting the order may limit its effect, by declaring how far it shall operate as a stay of proceedings. 1 Brevoort v. VVarner, 8 How., 321. ^ 2 r. s. (3d ed.), 262, § 34. 64 FUETHEE PEOCEEDINGS BY PLAINTIFF BEFOEE ANSWER. The mode of enforcing the order under the statute differs from that under the Code. In the latter case, the court, " on motion, may exclude the paper from being given in evidence, or jmnish the party refusing, or both." ' Under the statute ^ the only power given to the court, to compel a discovery, is to nonsuit the party refusing, or strike out any plea or notice he may have given, or debar him of any particular defense in relation to which such dis- covery was sought. The 16th rule of court makes provision for enforcing both these modes of compelling a discovery, and au- thorizes the court, at any special term, upon proof of the default, to grant a rule absolute, giving effect to such order, either by nonsuiting the plaintiff, striking out the defendant's answer, debarring him from a particular defense, excluding the paper from being given in evidence, or punishing the party in default as for a contempt, as the oi-der for the discovery may require. If the proceeding, however, be under the statute, the court has no power to punish, as for a contempt, by any proceedings against the person or property of the party refusing.^ Where the pro- ceeding, therefore, is on the part of the plaintiff, for the purpbse of obtaining books or documents, necessary to enable him to frame his complaint, the order of discovery should provide, that in case of non-compliance by the defendant, he be debarred of any particular defense founded upon, or relating to, the books or papers of which discovery is sought. The order of discovery will not itself operate to shut out the defense, &c.,but a motion must be made at special term, for an order absolute, founded on the previous order, and an affidavit of its service on the defendant, and of his de- fault. The motion is granted of course, and without the usual service of copies of the moving papers or notice of motion.* Mode of discovery. If the application be under the Code, the court has no discre- tion as to the mode of allowing an inspection of the documents, &c., to be made The only alternative that can be presented to the party against whom the motion is made, is to give a copy, or 1 Code, § 388. 2 2 R. S. (3d ed.), 262, § 35. 3 Birdiall v. Pixley, 4 Wend., 196 ; Gould v. MoCarty, 1 Kern., 575. * Sup. Court Rules, 16. DISCOVERY OP BOOKS AND PAPERS. 65 permit the petitioner to take one. But in an application under the statute, the court may exercise its discretion in specify- ing the manner in which it is to be made. In ordinary cases, and unless indispensable to protect the rights of the party applying, it will not order an actual inspection to be given or deposit to be made, but will order sworn copies to be furnished ; ^ and at the expense of the party applying. ^ Where an actual inspection and deposit with liberty to take copies is ordered, the usual practice in Chancery, it is presumed will be followed. The papers must be delivered to the officer of the court named in the order, to be open to the view of the petitioner whenever he pleases ; and it will not be a compliance with the order, to deposit a box containing the papers, under lock, with a notice to send for the key whenever it is wanted ; ^ but the defendant may seal up such parts of the books, &c., as he swears do not relate to the claims of the plaintiff. * The inspection may be conducted without the presence of the party depositing the books, &c., or his attorney, and as soon as the examination is completed he is entitled to have them restored to him. ^ Further order where the discovery is not complete. Where the sworn copies furnished in obedience to an order for a discovery indicate that a discovery may not be complete, it is proper for the petitioner to apply for a further order based on the return and previous proceedings, or on them and further affidavits, for an order requiring the opposite party to show cause at a time to be named, why sworn copies should not be furnished of such other entries, papers or documents, relating to the points as to which a discovery had been ordered, as the return and other papers may induce the court to believe to be in his possession or control ; and unless the possession and control of such papers and documents, or the existence of such entries, be explicitly and unequivocally denied, a peremptory order will be granted. ^ ' Hoyt V. American Exchange Bank, 8 How., 89 ; 1 Duer, 652. 2 Brevoort v. "Warner, 8 How., 321. ^ preston v. Carr, 1 McCle. & Y., 457. * Campbell v. French, 2 Cox's Ca., 286 ; Dias v. Merle, 2 Paige, 594 ; Gerard ;;, Penswick, 1 Wils. Ch. R., 222. 2 1 Barb. Ch. Pr., 235, 236. • Hoyt 0. American Exchange Bank, 8 How., 89 ; 1 Duer, 653. V, 8. 9 66 FUETHEK PEOCEEDINGS BY PLAINTIFF BEFORE ANSWEE. Vacating order. The statute 1 provides that every such order may be vacated by the officer granting the same, or by the court. 1. Upon satisfactory evidence that it ought not to have been granted. 2. Upon the discovery sought being made. 3. Upon the party required to make the discovery denying on oath the possession or control of the books, papers or documents, ordered to be produced. Where a party against whom an order of discovery is made, denies ^positively on oath the possession or control of the papers, &c., the order will be vacated, and the court will not speculate as to the probability of his having possession, notwithstanding the denial. ^ If he merely swear that to the best of his knowledge and belief the paper is not in his possession or under his control, he must in addition state facts which will show that such denial is equivalent to the positive oath required by the statute. * The motion to vacate the order of discovery is made upon affidavits stating the facts upon which the moving party relies, and on the usual eight days' notice, and if not made to the court at special term, must be made before the judge who granted the order. A copy of the order to vacate duly entered, and certified by the clerk, if granted in court, should be served on the opposite party. SECTION II. OF THE COMPLAINT, AND HOW FRAMED AS TO TITLE AND PARTIES. In a former chapter * reference was made to the formal parts and general frame-work of a regular bill in Chancery, and the radical nature of the changes introduced by the new practice was noticed. Of the nine parts of an ordinary bill it was remarked that seven were entirely matter of form, or peculiar to the old practice, and only two are considered in substance as applicable ' 2 R. S. (3d ed.), 262, § 33. = Ahoyke v. Wolcott, 4 Abbott, 41. ^ Southwell V. Dwight, 2 Sand. S. C. R., 672. * Chap. 1, sec. 2, ante, page 11. TITLE OF COMPLAINT. 67 to the new. These two, namely, the stating -part and the prayer for relief, together with the title of the cause (which was no part of the old Chancery bill) constitute the complaint, both in equity and common law actions, of the Code. Without undertaking to enter upon a full consideration of the subject, which more appro- priately belongs to a separate treatise on pleading, I propose merely to glance at some of the general features of the complaint in actions of equitable jurisdiction, and to notice a few of the leading principles which govern it, drawn from the Code, and the analogies of the former practice. And first the title of the cause must specify " the name of the court in which the action is brought, the name of the county in which the plaintiiF desires the trial to be had, and the names of the parties to the action, plaintiff and defendant." * Name of the court. This is essential to be set forth in the title of the complaint, unless indeed it is inserted in the summons annexed, in which case it is said the court will disregard the omission and hold the statute substantially complied with.^ If no name of the court is set forth, either in the summons or complaint, no action is com- menced in any court, and the judgment would perhaps be void,^ though it is said the Supreme Court will entertain a motion under such circumstances to set aside the summons and complaint as irregular ; and a similar motion may be made for the omission to set forth the name of the county where the trial is to be had.^ Naine of the coimty. Certain actions are required by the Code to be tried in the county where the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, in the cases provided by statute. In this class of actions the place of trial laid — that is, county mentioned in the com- plaint — should always be that where the property is situated. ' Code, § 141, sub. 1. 2 Merrill v. Grinnell, 10 How., 32; "Van Namee v. Peoble, 9 How., 198. But see Hotchkiss v. Crocker, 15 How., 336. 3 Ward V. Stringham, 1 Code R., 118. ' Ihid. Hall v. Huntly, 1 Code R., N, S., 21 ; DaYison v. Powell, 13 How., 288 5 Merrill o. Grinnell, 10 How., 32. 68 FUETHER PE0CEEDIN6S BY PLAINTIFF BEFORE ANSWER. Such actions may still be designated by the term of local actions as at common law. Local actions which are of equitable origin or jurisdiction may all be embraced within the first three subdivisions specified in section 123 of the Code, viz., where the action is brought, 1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property. 2. For the partition of real property. 3. For the foreclosure of a mortgage of real property. A large class of actions of an equitable nature are referrible to the first of .these subdivisions, namely, where they involve the determination of some right, estate or interest in real property. In such case it is the defendant's right to have the trial in the county where the real estate is situated.^ And if the plaintifi" name the wrong county in his complaint, the defendant may have the same changed in the manner designated in section 126. A simple demand in writing, however, does not of itself change the place of trial. This can only be done by order of the court, on motion and notice. The demand is proper in order to give the plaintiff an opportunity, by stipulation, or amendment of his com- plaint, to change the place of trial to the proper county. If he refuse or neglect to do so, a motion by the defendant, at any time before trial, to change the venue to the proper county, will be granted with costs.^ Actions for injunctions to restrain the commission of waste or irreparable damage to real estate, are classed under subdivision 1 of the above section, and must be tried in the county where the land lies. So also actions for obstructing a water-course; actions for the construction of wills and other instruments in writing, or conveyances of real estate ; actions to carry trusts of real estate ' Starks v. Bates, 12 How., 465. 2 Bangs V. Selden, 13 How., 374; Hasbrouck v. MoAdam, 3 Code E., 39; 4 How., 342; Mairs v. Remsen, 3 Code R., 138 ; Vermont Cent. R. R. v. Northern E. R., 6 How., 107 ; Hubbard v. Nat. Pro. Ins. Co., 11 How., 149 ; Conroy v. Nat. Pro. Ins. Co., 10 How., 403. And see generally as to the practice in such cases, and also as to changing the venue for the convenience of witnesses. Notes to Voorhies' Code, pp. 98-103. TITLE OF COMPLAINT. 69 into execution ; actions to set aside conveyances of real estate as fraudulent," &c.; but when the land, the subject of the action, lies out of the state, the provision does not apply.^ Where a complaint prays that the right of the defendant to the land in question may be adjudged to be subordinate to the right of the plaintiff, and that the defendant may be ordered to give up possession of the land, the case is within subdivision 1 of the above section. But it has been held that an action to enforce the specific performance of a contract to convey land is not with- in the provision of the statute, and may be tried in another county than that where the land is situated.^ In actions for the partition of real estate and for the foreclosure of mortgages, the subject of the action is the land; such actions are local,. and must be tried in the county where the land, or some part of it, is situated. So held under the original Code in an action to foreclose a mortgage, the money having been loaned in a county other than that in which the mortgaged premises were situated.* The cases specified in section 124 in which actions are to be tried in the county where the cause of action arose, are exclusively of common law jurisdiction, and need not be referred to here. Except, therefore, the action be local, requiring the place of trial to be the county where the premises are situated, the venue in actions of an equitable nature, under section 125, may be laid in the county in which the parties, or any of them, shall reside at the commencement of the action ; or, if none of the parties shall reside in -the state, then in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial in the cases provided by statute. It seems to -be essential to the regularity of a complaint that the name of the county where the trial is to be had, should be inserted in it; and the omission is not cured by reference to the summons.* The mode of taking the objection on the part of the defendant has been already stated. 1 Wood V. Hollister, 3 Abbott, 14. ^ Newton «. Bronson, 3 Kern., 587. 3 Auchincloss v. Nott, 12 L. 0., 119. * Miller v. Hall, 1 Code R., 113. s Merrill v. Grinnell, 10 How., 32; Hotchkiss v. Crocker, 15 How., 336. 70 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWEK. Parties to the action. Besides the name of the court in which the action is brought, and the county in which the plaintiff desires the trial to be had, the title of the complaint must specify "'the names of the parties to the action, plaintiff and defendant." Nothing is more essential to the proper institution and correct determination of an equity suit than that the necessary parties in interest be brought before the court and subjected to the opera- tion of the final judgment or decree in the cause. No person who is not regularly brought before the court, and made a party to the suit, is bound by any order, judgment, or decree rendered therein.' Hence, in that class of actions especially which are brought to establish or transfer some title, or determine some right, interest or claim to real estate, it is of the utmost import- ance that the plaintiff at the outset, or at all events before final judgment, bring in not only all who are necessary, but also all who are proper parties to a full and final determination of the controversy. An omission or neglect in this respect often results in the most serious embarrassments. Thus, if a subsequent incumbrancer by mortgage or judgment be not made a party defendant in a foreclosure suit, he is not con- cluded by the judgment in the suit or the sale of the premises, but is entitled to maintain his action against the purchaser for a redemption of the property so sold. So in an action for partition, if a remainderman, or the owner of a life estate, or any other party in interest is omitted, the pro- ceedings as to him are a nullity even though an actual partition be awarded ; and the title of the parties between whom partition is made will be invalid. Or if an infant be omitted, though the proceedings be in all other respects correct, the sale under a judg- ment or decree will pass no valid title, and the court will release a purchaser, under such circumstances, from completing his pur- chase.^ • 1 Barb. Ch. Pr., 321 ; Wallace v. Baton et al, 5 How., 99. ' Jennings v. Jennings, 2 Abbott, 2 ; but see Croghan v. LiTingston, 3 Smith {17th N. Y. K), 218. PARTIES. 71 Even where all those who are made parties, appear in the action and take no objection whatever to the omission of other persons as parties, the, court will not proceed to judgment if it perceives that a complete determination of the controversy requires the presence of other parties, but will either dismiss the complaint, or cause such other parties to be brought in. ^ And thus on the trial or final hearing of the cause, and even on the argument of an appeal to the general teim, ^ the plaintiff is liable to be met with this objection which must result either in the dismissal and discontinuance of the suit according to the old practice, ® or that the further hearing be suspended, and the cause stand over on payment by the plaintiff of costs, * or on such tei'ms as the court may prescribe, ® in order to bring before the court the necessary parties who have been omitted. The rules adopted by the Code of Procedure in regard to parties, and made applicable to common law as well as equity actions, are those which formerly obtained in equity, as far as the same are susceptible of being compressed into a few general pro- positions as that : 1. " Every action must be prosecuted in the name of the real party in interest except," &c. ^ 2. " Any persons having an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title." '' 3. " Any person may be made a defendant, who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein." ' ■ Under section 122, Code. * See Shaver c. Brainard, 29 Barb., 25, where a judgment in an equitable action was reversed at general term for the reason that a necessary party, defendant, was not before the court ; and he was ordered to be brought in. 3 Beresford v. Adair, 2 Cox's Ca., 156 ; 1 Hoff. Ch. Pr., 497. < Ibid., 4 Paige, 64; 1 Barb. Ch. Pr., 321; Colt v. Lasnier, 9 Cow., 320; O'Brien v. Heeney, 2 Edw., 242. 5 Vanderwerker v. Vanderwerker, 7 Barb., 221. If the defendant have not taken the objection before, the court, it is said, will not on his motion, dismiss the complaint for defect of parties on the hearing. General Mutual Ins. Co. v. Benson, 5 Duer, 168. s Code, § 111. ' Code, § 117. « Code, § 118. 72 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. 4. " Of the parties to the action, those who are tiiiited in inte- rest must be joined as plaintiffs or defendants ; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint ; and when the question is one of a com- mon or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole." i 5. " The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights, but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in." ^ The foregoing general provisions comprise all the rules laid down by the Code as applicable to the making of parties in a suit of an equitable nature, except the rules which relate to execu- tors and trustees, ^ married women, * and infants ^ which will be elsewhere noticed. They express, substantially, the former equity practice, and the courts, in adopting and applying them, have been guided by that practice, and the former decisions of the Court of Chancery. And where a case occurs which is not within either of the foregoing five general statutory rules, the old equity practice as to parties will undoubtedly apply. Let us in a sum- mary way glance at each of these five provisions. 1st. The rule that the action must he -prosecuted iji the name of the real party in interest, was always the rule in equitable actions, as distinguished from actions at common law, the latter being required to be brought by the party to the contract, even though he had parted with his entire interest in it by assignment. Chancery, however, not only recognized the right of the assignee to bring the suit, but absolutely required him to do so. If the assignee himself was but a nominal owner he could not sue, but the suit must be brought by the real party in interest ;^ unless indeed such assignee • Code, § 119. 2 Part of section 122, Code. = Code, § 113. * Code, 114. s Code, 115. ° Rogers v. Traders' Ins. Co., 6 Paige, 597 ; Field v. Mi^ee, 5 Paige, 639. PAETIES. 73 held such nominal interest as trustee, &c. ; ^ and this is precisely the rule adopted by the Code, which, requiring the action to be brought by the real party in interest, excepts executors and admin- istrators, triistees of an express trust, and persons expressly autho- rized by statute, who may sue alone without joining the person for whose benefit the action is prosecuted. ^ But, in the case of a trustee of an express trust, the Code greatly relaxes the equity rule by declaring that the term " shall be construed to include a person with whom, or in whose name, a contract is made for the bwiefit of another."^ Such an one, therefore, though he hold no real interest in the subject matter of the suit, may properly be named as the party plaintiff; as in the case of an agent taking a contract in his own name, but for his principal, for the convey- ance of real estate, if the vendor violate his contract by refusing to convey, the agent may maintain an action for specific perform- ance. It is held, however, in such cases to be equally proper for the principal to sue ; or, in other words, that the action may be either in the name of the principal or of the agent. * With these exceptions, however, the rule that every action must be prosecuted in the name of the real party in interest is but a statutory enactment of the rule respecting parties, which has always prevailed in equity, and the courts, in its application, adopt as far as practicable the principles which, according to the practice in those courts, have been found best suited to advance the ends of justice. ® The first important inquiry, therefore, in drawing the com- plaint is, who is the real party in interest — who is the owner of the claim or demand — who is the party having the legal right to ' Story Eq. PI., 152, note. ^ Oode, § 113. ^ In equity, a mere nominal trustee must join with ihecesttd que trust in bring- ing a suit, though the cestui que trust was not in all cases a necessary party. Fisk V. Howland, 1 Paige, 20 ; Schenok v. EUingwood, 3 Edw., 175 ; 2 John. Ch. K., 38. * Eriokson v. Compton, 6 How., 471 ; Morgan v. Keid, 7 Abbott, 215 ; Grin- nell V. Schmidt, 2 Sand. S. 0. K., 706 ; Habicht v. Pemberton, 4 Sand. S. 0. K., 657. s Grinnell v. Schmidt, 2 Sand. S. 0. K., 706 ; Hallenbeck v. Van Valkenburgh, 5 How., 284; 'Wallace v. Eaton, 5 How., 100 ; Brownson v. Giflfbrdi 8 How., 395 ; Report of Com., pp. 123, 124. V. S. 10 74 FUETHEE PEOCEEDINGS BY PLAINTIFF BEFORE ANSWEE. call upon the court to redress the injury complained of, or to prevent the threatened wrong. A mistake in this respect will be fatal, as the party prosecuted has the right in all cases (other than those excepted in section 113), to set up in his answer, and prove in his defense, the plaintiff's want of interest in the subject matter of the suit. The benejicial claimant, that is, the party who has sustained the injury, and is entitled to the damages recovered, the party benefi- cially interested in the ,subject matter, is the proper party to prosecute the action. Thus, a mere tenant cannot maintain an action for an injunction to restrain waste, or irreparable damage to the freehold, the party in interest being the owner of the fee. An executor or administrator cannot maintain an action for a specific performance of a contract made with the testator or intes- tate to convey lands, the proper party plaintiff being the devisee or heir. On the other hand the devisee or heir cannot maintain an action to foreclose a mortgage on real estate, the right of action being with the executor or administrator in whose hands the mortgage is assets. Many other illustrations of the rule might be given, but the above vnll suffice as the subject may be conveniently referred to in the modem works on equity pleading. 2. As to the Joinder of plaintiff's. The rule of the Code laid down in the section above quoted * is also the rule which heretofore prevailed in equity. The gene- ral rule as given by Judge Story is, " that all persons interested in the object of the suit ought to be made parties ;"^ and very nearly expresses the idea of the section referred to, namely, " All ' Code, § 117. * The rule is stated by Lord Hardwick to be : " All persons ought to be made parties before the court, who are necessary to make the determination complete." Lord Eldon defines it : " All persons materially interested in the subject of the suit, however numerous, ought to be parties, that there may be a complete decree between all the parties having material interests" Sir William Grant lays down the rule thus : " In equity it is sufiBcient that all parties interested in the subject of the suit should be before the court either in the shape of plaintifis or defendants." Judge Stort very properly remarks that " the rule does not seem to be founded on any positive and uniform principles ; and therefore it does not admit of being expounded by the application of any universal theorem as a test." Story's Eq. PL, § 76, and uotes. PARTIES. 75 persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title." The " interest " referred to in this section is not necessarily a joint interest, but it is a common or general interest, in the subject matter of the suit or in the relief sought ; and several persons having a common interest arising out of the same transaction, or subject of litigation,^ though their interests be separate, may join in one suit for equitable relief, provided their interests be not adverse or conflicting. ^ As if the vt^aters of a stream are diverted to the common injury of the mills below, the owners of the mills, though their titles are several, may properly unite in one bill for an injunction.^ So, since the Code, persons owning separate tenements, affected by the same nuisance, may join as plaintiffs. ^ But though a perpetual inj unction in such a case may be obtained in a suit by several plaintiffs, affected by the same nuisance, they cannot also sue for damaged severally sustained by them.* The common interest, it seems, which authorizes parties who might maintain separate actions, to join in bringing a single action, must be a common interest in obtaining exactly the same measure and kind of relief. There must be one distinct general right asserted, not merely in the subject matter involved, but also in the relief demanded. There must be a common right, not in one particular item or part of the claim, but in the entire subject matter. Thus, if an estate is sold in differ- ent parcels, to different purchasers, the vendor cannot unite them all in one bill for specific performance, nor can they unite in one suit against the vendor, for each contract is separate and inde- pendent ; and persons having distinct and independent claims to relief against a defendant, cannot join in the suit for the separate relief of each. ^ ' Robinson v. Smith, 3 Paige, 222 ; Grant v. Van Schoonhoven, 9 Paige, 255 ; Alston and Wife v. Jones, 3 Barb. Ch. R., 397. '^ Belknap v. Trimble, 3 Paige, 577. ^ Peck V. Elder, 3 Sand. S. 0. R., 126, and cases there cited. * Murray v. Hay, 1 Barb. Ch. R., 59. 5 Case cited by the Chancellor in Fellows v. Fellows, 4 Cow., 683. See also various other illustrations of the rule qited by the Chancellor in the same 76 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. But while parties having merely a common interest (not adverse or conflicting) may he joined, those who. have a joint interest must be joined as plaintiffs, both under the former equity practice and the Code. This depends upon another of the general provisions of the Code above cited, namely : 3. " Of the parties to the action, those who are united in interest must be joined as plaintiff's or defendants," Sfc. ^ This is precisely the rule which prevailed under the old practice in courts of equity, where it was held to be indispensa- ble, except under peculiar circumstances, and the court would not proceed to a decree where the rights of persons not before the court were so inseparably connected with the claims of parties litigant, that no decree could be made without impairing the rights of the former. ^ And the distinction between parties who have merely " a common or general interest," and those who are " united in interest," under the Code, is very clearly taken in a case since the Code, ^ holding, in accordance with the equity practice, that the former may and the latter must join as parties plaintiff; the former are proper, the latter necessary parties. Thus, all persons who are entitled to litigate the same questions, are necessary parties to a suit to determine them. So, all persons who are entitled to any share of a fund are necessary parties to a bill for an account and distribution of it. So, all creditors, or cestuis que trust, are necessary parties to a suit brought to carry an assignment or trust into execution. ^ So, in a suit brought by one of two joint makers of a note, alleged to be usurious, to set aside a judgment confessed in it, the other maker was considered a necessary party plaintiff, unless a sufficient excuse for not case. See also Bouton v. City of Brooklyn, 15 Barb., 375; Conro v. Port Henry Iron Co., 12 Barb., 28 ; Eeed v. Stryker, 6 Abbott, i07 ; Voorhies v. Voorliies, 24 Barb., 151. ■ Code, § 119. 2 Hallett V. Hallett and otbers, 2 Paige, 15 ; Bailey v. Ingalls and others, 2 Paige, 278 ; Boughton v. Allen, 11 Paige, 321. ^ McKenzie v. L'Amoureau, 11 Barb., 516. ^ But not if the credKor is seeking to set the assignment aside, or acting in hostility to it. Wakeman v. Grover et al, 4 Paige, 23 ; Bank of British North America v. Suydam, 6 How., 479. PARTIES, 77 making Mm such party was alleged in the bill, in which case he should have been made a party defendant. ^ So, in a suit by legatees, praying for an account of the personal estate of the testator, and to have the real estate sold, and the proceeds applied in payment of the debts and legacies, the parties must all be brought before the court. ^ Here, however, is to be noticed a very important principle, which was perfectly well established under the old system, and is amply provided for by the new, namely, that "when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracti- cable to bring them all before the court, one or more may sue or defend for the benefit of the whole. ^ In such cases, though the parties are all jointly interested, they need not appear upon the record, but one, or more, of them may institute the suit " as well in his (or their) own behalf, as of all others similarly situated, who may come in and contribute to the expenses of the suit ;" and an objection for want of proper parties will not be sustained, but the other parties may avail themselves of the decree, or after- wards come in, and have a rehearing. ^ Thus legatees seeking relief and an account against executors, may sue in behalf of themselves and all other persons interested. * So, in the common case of creditors suing in behalf of the rest, and seeking an account of the estate of their deceased debtor, or an account against an assignee of a trust fund, to obtain payment of their demands.* So, also, of suits by members of a voluntary > Broughton v. Allen, 11 Paige, 322. ^ McKenzie v. L'Amoureau, 11 Barb., 516. ^ Code, § 119. " Mechanics' Bank of Alexandria v. Seton, 1 Pet. IT. S. R., 299-306 ; Mande- ville V. Riggs, 2 Pet. U. S..R., 482. 5 McKenzie v. L'Amoureau, 11 Barb., 516. In this case, under the Code, it was held that the action might be brought by one or more legatees without showing that the parties were very numerous, or that it would be impracticable to bring them all before the court, and the action was held well brought, though there were but three .persons whose interests were identical with the plaintiff. It was considered essential, however, that the parties have a common or general interest. See complaint in this case. Van Sant. Prec. of PI., p. 335. ^ See precedent of complaint in such case. Van Sant. Prec. of PL, p. 175. 78 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. society, or unincorporated body of proprietors, where a few members have been permitted to sue on behalf of the whole seeking relief and an account against their own agents and committees ;i though in such case a general allegation that the parties are numerous is insufficient, but the nature of their common interest must appear to be such as to entitle them, were they all before the court, to maintain the action in their own right, or in their own names, ^ A suit by a tax-payer for an injunction to restrain the imposi- tion or collection of an illegal tax, if maintainable at all,^ can only be brought in his own behalf, and in behalf of all others similarly situated, on an averment that it is so brought, being essen- tial to a complete determination of the rights affected by the suit.* In the same form must a suit be brought by a tax-payer against a municipal corporation to restrain it from wasting or misappropriating the corporate property.' So of a suit by a stockholder of a moneyed corporation, to prevent misapplication of the corporate funds,^ or a suit to dissolve the corporation.'' So a suit by a shareholder of a private association, where the associates are numerous, to compel the execution of the trust, and for an account and distribution of the funds and property among the shareholders must be brought on behalf of them all. So also as to a complaint by stockholders of a company against the directors and secretary to restrain the fraudulent over-issue of stock, and the appropriations of the corporate funds or property by the defendants to their own use, all the stockholders must join, or ' West V. Randall et al, 2 Mason, 187. ^ Habicht v. Pemberton, 4 Sand., S. 0. R., 657. In case of voluntary asso- ciations or joint stock companies, consisting of seven or more persons, provision is now made by statute that they may sue or be sued,in the name of their trea- surer or president for the time being. Laws of 1849, p. 389. Laws of 1851, p. 838. See form of complaint in such cases. Van Sant. Preo. of PI., p. 394. ^ See post, under title " Injunctions." ■• Wood V. Draper, 24 Barb., 187 ; Shepherd v. Wood et al, 13 How., 47. ^ See post, under title " Injunction." « Ca^-peiiter v. New Haven and New York R. R. Co., 5 Abbott, 277. ' See Precedent of Complaint in such case, Van Sant. Prec. of PI., p. 318. PARTIES. 79 the suit be brought by one or more for the benefit of himself ( or themselves), and all others interested.' And so in other and analogous cases. The provision under consideration is clear in its application as to parties plaintiff, but it is also made to apply to parties defend- ant, one or more of whom, in the cases mentioned, may defend for the benefit of the whole. The application of this principle will be found in such cases more difficult in practice. For every party against whom relief is sought, and whom it is intended to bind by the judgment, should in general be brought in as defend- ant ; and no action is commenced, and no decree can be made against any party until he is served with the summons or appears. The rule, however, is analogous to that of the old equity prac- tice, as in Mandeville v. Eiggs et al.,^ which was a bill filed against stockholders of a voluntary corporation, and the process was returned " served" upon some of the parties named in the bill, and as to others, who were not within the reach of process, "not served." The court stated that it was not meant to say that in cases of this nature it is necessary to bring all the stock- holders before the court before any decree can be made. It is well known that there are cases in which a court of equity dis- penses with such a proceeding when the parties are very nume- rous and unknown, and the adoption of the rule would evidently impede, if not defeat, the purposes of justice. And Judge Story, in the same case says : " It is a matter of justice as well as con- venience that all parties who are ultimately liable to contribution should, when practicable, be brought before the court, so that the equities between them may be adjusted, as well as the rights of the plaintiff. There are exceptions, it is true, but they are founded upon special considerations, such as where a decree of contribution would be useless, or where the proceeding would defeat the jurisdiction of the court, and the parties are not indis- pensable to a decree, or where the convenient administration of justice forbids it in the particular case." ' Wells V. Jewett, 11 How., 242 ; Bell v. Mali, 11 How., 254. 2 2 Pet. U. S. R., 482. 80 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. In these exceptional cases, undoubtedly, the rule of the Code that one or more of the defendants may defend for the whole, where there is " a common or general interest of many persons," or where " the parties are very numerous, and it may be imprac- ticable to bring them all before the court," will apply. Perhaps the best example that can be given of it is the case of unknown owners in a suit for the partition of lands against whom the plaintiff is authorized by statute to proceed by publication against " owners unknown ;" the parties appearing, if they choose, may answer and defend for themselves and all others similarly situated.^ 4. As to parties defendants generally. " Any person may be made a defendant who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein"^ is the general enactment of the Code in regard to defendants, and is also borrowed from the Chancery practice,- being intended to preserve the right and make it the daty of a plaintiff to make all persons parties who are directly interested in the question or controversy stated in the complaint.^ Thus it was under the former practice and still is (subject to the exceptions above noticed), a general principle in relation to par- ties to suits in equity, that eve7-y -person who is at all interested in the subject matter of the suit, or necessary to the relief, must be a party in order to enable the court to settle the rights of all, and make a final decree on the merits.* The interest referred to, is the interest involved in the issue, and the parties having such interest, and who necessarily are to be affected by the judgment, and they alone, are the proper parties defendants in an equity suit.* And, in case of several defendants, their interest must be a common or general interest centering in the point in issue, and a complainant will not be permitted to demand ■ See precedent of such answer, Van Sant. Prec. of PI., p. 630. 2 Code, i 218. ' Voorhies v. Baxter, 1 Abbott, 45. ^ Boughton V. Allen, 11 Paige, 321 ; Trustees of Watertown v. Oowen, 4 Paige, 510; Christie v. Herriok, 1 Barb. Ch. R., 254; Colt v. Lasnier, 9 Cow., 321; Whelan v. Whelan, 3 Cow., 538; Bailey v. Inglee, 2 Paige, 278. 5 "Wendell v. Van Rensselaer, 2 John. Ch. R., 349. PARTIES. 81 several matters of different natures against several defendants ; ^ as in the case before referred to of an estate sold in different parcels, to different purchasers, the vendor cannot unite them all in one bill for a specific performance. Nor can a plaintiff bring one suit to avoid several conveyances executed by him to several grantees. ^ But where one general right is claimed, which is opposed to the interests of all the defendants, the parties interested in the subject matter may be joined as defendants, though they have separate and distinct rights ; as in the case mentioned of a bill to quiet a general right of fishery against several defendants, although there was no privity between them and the plaintiff, and they claimed distinct rights.* The rule in such cases is laid down by Chancellor Kent * that " a bill against several persons must relate to matters of the same nature, and having a connection with each other, and in which all the defendants are more or less concerned, though their rights in respect to the general subject of the case may be distinct." ' A bill against several unconnected ' Fellows V. Fellows, 4 Cow., 700. 2 Voorhies v. Voorhies, 24 Barb., 151 ; Reed v. Stryker, 6 Abbott, 107. 3 Mayor of York v. Pilkenton, 1 Atk., 282. * Brinkerhoff v. Brown, 6 John. Oh. R., 138. ^ The principle upon which courts of equity proceed in the joinder of defend- ants claiming under diiferent titles, is fully considered in the recent case of New York and New Haven Railroad Co. v. Schuyler et al., 3 Smith (17 N. Y. R.), 592, and the cases on the subject reviewed by Comstock, J. The action was brought by the company against Robert Schuyler, its former president and transfer agent, and three hundred and twenty-six other persons, the holders of spurious and fraudulent stock issued by Schuyler, and received, for the most part, by the defendants at different times, in different amounts, and from different persons. The relief demanded was that these certificates of stock be declared fraudulent and void, that they be surrendered up and canceled, and that the defendants be enjoined from proceeding in suits already commenced upon their cer- tificates, and from commencing new suits against the company. Upon demurrer to this complaint the Court of Appeals held that there was but a single interest in the plaintiff directly opposed to the interests of all the defendants ; and that the false certificates having a common origin and common ground of invalidity, the parties holding them could be united as defendants because there was " such a unity in the controversy with all of them as to render it fit and proper, accord- ing to settled principles, that they should be joined in a single suit." V. S. 11 82 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. defendants to establish the custom of a mill, and a right to tithes has been sustained upon the same general principle, and that it was for the establishment of a right liable to invasion by all the world.i Many examples might be given in illustration of these princi- .ples, but the above general definitions must suffice, as a more minute examination of the subject vsrould require a greater space than would be proper in a work on practice merely. It may be remarked, however, that according to the equity practice, a distinction was taken between such persons as were necessary parties — that is, parties who were absolutely required to be brought before the court before it would make any decree — and such as were proper parties merely, that is, those who might be brought in or not, joined with the real party in interest, at the option of the plaintiff. This subject, also, is passed by leaving it to be examined in works professedly devoted to equity pleadings.^ 6. Other parties may he brought in. The last of the five general provisions or rules of the Code in regard to parties applicable to equity suits, above noticed, autho- rizes the court to determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights ; but when a complete determi- nation of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in.^ This also is strictly in accordance with the former Chancery practice. A decree could not be made unless all the parties in interest — that is necessary parties — were before the court.* The practice of ordering parties on the hearing to be brought in, has already been referred to. Where the court can perceive that necessary and indispensable parties are wanting, this will usually be done.* By such parties under the Code is meant persons not » Whaley v. Dawson, 2 Sch. and Lef., 370. "^ See generally Edwards on Parties, Story's Equity Pleadings, Mitford's Plead- ings, &c. 3 Code, § 122. * La Grange v. Merrill, I Barb,, Oh. R., 625 ; 4 Paige, 64. = Mechanic's Bank v. Setoi), J Pet., A. S. R., 299-306. PAETIES. 83 parties to the suit, whose rights must be ascertained and settled before the rights of the parties to the suit can be determined.^ And where it is apparent that the claim of a third party must be first ascertained and settled before there can be a final determina- tion of the rights of the parties already before the court, the plaintiff, on motion of defendant, will be compelled to amend his summons and complaint by malting such third person a party even though he be a non-resident.^ And there are cases in which, for the protection of his rights alone, the defendant may require other parties to be brought in ; but this is his privilege, and he may waive it.^ But though no objection be taken by either side, it is the imperative duty of the court, on the hearing, or at any stage of the suit,* when it appears that the presence of other parties is necessary to a complete determination of the controversy, to order such persons to be made parties f and the court, as under the former equity practice, will not proceed to judgment without them. Thus, in an action against several for a specific perform- ance of their joint contract to purchase real estate and secure part of the price by their bond and mortgage, all the joint contractors must be made parties defendants to enable the court to render a judgment which will be a complete determination of the contro- versy ; and, though there has been an attempted or partial trial, the court will not permit the action to proceed when part of the contractors only are before it, but will treat the trial which has been had as a nullity, and order the cause to stand over and the proper parties to be brought in.^ And even on an appeal to the general term from a judgment defective by reason of not having the necessary parties defendants before the court, though no such objection was raised on the trial in the court below, or even on the appeal, the appellate ' McMahon, Administrator, &c., v. Allen, 12 How., 39. 2 Sturtevant v. Brown & Caldwell, 17 How., 571. 3 McMahon, Administrator, &c., v. Allen, 12 How., 45. - < State of New York v. Mayor of New York, 3 Duer, 121. ^ Davis V. Mayor of New York, 2 Duer, 663. » Powell V. Finch et al, 5 Duer, 666. 84 FUETHEE PEOCEEDINGS BY PLAINTIFF BEFOEE ANSWEE. court has in a recent case ^ exercised the power of reversing the judgment and ordering the proper parties to be brought before the court by an amendment of the summons and complaint. The action in that case was brought by a receiver to set aside a con- veyance of real estate as a fraud upon creditors, and the debtor who had originally made the conveyance was not made a party. It was held that, though he had parted nominally with the title, he was a necessary party, and that,> under the above section, he must be brought in, so that there might be a complete determina- tion of the controversy. It was in the discretion of the Court of Chancery, it seems, where the necessary parties had not been brought in, and an objection for want of parties was taken, either to dismiss the bill on the hearing, or order the cause to stand over and the proper parties to be brought in.^ But the rule indicated by the Code, it is said, is, in all cases, to allow an amendment by ordering, at the hearing, the cause to stand over, the proper parties to be brought in on such terms as the court may prescribe.* The five foregoing provisions, or rather definitions of the Code, are all of a general nature that are applicable to parties in a suit of equitable jurisdiction. In addition to these there are three other provisions that are applicable to particular classes of cases which will be here briefly noticed, namely, in regard, 1st, to exe- cutors and administrators, or trustees ; 2d, married women ; 3d, infants. And, 1st. An executor or administrator, trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is pro- secuted. * This provision, it is thought, considerably enlarges the rule in Chancery, where it was long the practice when the trustee com- menced a suit, to require the cestui que trust to be made a party ; otherwise, it was said, the latter would neither obtain relief nor ' Shaver v. Brainard, 29 Barb., 25. 2 Van Eps v. Van Deusen, 4 Paige, 75 ; Greenleaf v. Queen et al, 1 Pet., U. S. R., 138. ^ Vanderwerker v, Vanderwerker, 7 Barb., 221. * Code, 113. PARTIES. 85 be bound by it.^ The extension of the equity rule is more appa- rent from the last clause which defines the term trustee, &c., as follows : " A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another."^ Thus, a factor or general agent, either of an individual or society, may sue in his own name for the benefit of his principal.^ Within this rule committees of lunatics, receivers appointed pursuant to the Code, sheriffs in the cases specified in section 252, and even the people of the state itself ( in case of a bond taken by the people for the benefit of others — The People v. Norton, 5 Seld., 176), and many other classes of persons may all sue in their own name though not really the party in interest, either as being trustees of an express trust, or as suing for the benefit of others. "Whether the words "express trust" can be construed in such a manner as to authorize the committee of a lunatic to prosecute an action concerning the real property* of the lunatic without joining him, may be doubted ; in such cases it is, no doubt, the safest way to join the lunatic with the committee according to the old equity rule of considering him a proper if not a necessary party. And I see no impropriety in all cases of trusteeship, in joining the cestuis que trust as parties properly to be brought before the court, if the plaintiff wishes, according to the practice in ' See Edw. on Parties, 158, and cases cited ; 2 John. Ch. R., 38. But trustees of real estate, for the payment of debts or legacies, might sustain a suit, either as plaintiffs or defendants, without bringing before the court the creditors or lega- tees for whom they were trustees. (Mitt. Bq. PI., 174.) So assignees, or other trustees of a fund, for the benefit of creditors, might sue for the protection of the fund, or the collection of part of it, without making the cestuis que trust parties (1 Barb. Ch. E., 254) ; and precisely the same rule has been applied since the Code. (Lewis V. Grraham, 4 Abbott, 106.) 2 Code, § 113. See Grinnell v. Schmidt, 2 Sand. S. 0. R., 706. ' Ibid. Ericson v. Compton, 6 How., 471 ; Habicht v. Pemberton, 4 Sand. S. C. R., 657. * By statute (Laws of 1845, p. 90) he is authorized to sue in personal actions. See subject discussed and power of committee to sue examined in Person, Com- mittee, v. Warren, 14 Barb., 488. 86 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. Chancery,! At least there is nothing in the language of section 113 of the Code to forbid this.* In respect to married women. The Code as it now stands makes but a single important change from the former Chancery practice in regard to a married woman being a party to a suit, namely : that "in no case need she pro- secute or defend by a guardian or next friend."^ This is contrary to the equity rule which required the wife in all cases to appear by next friend ; * a rule which has been held applicable under the Code, except in the single case of a suit for divorce, before the above amendment.^ In other respects the equity practice is preserved, namely : that she is looked upon as to her separate estate as a feme sole, and as a distinct person from her husband, and that a husband may file a bill against his wife, and the wife against her husband ; and that when the suit is brought in regard to her separate pro- perty, the husband is not a proper party plaintiff. ^ But in such a suit she should be the party plaintiff and her husband should be made a defendant ; ' and on the other hand, that when the hus- band and wife have conflicting interests, they cannot join as co-plain- tiffs, but the husband must sue alone and make the wife a defend- ant. ^ ' Gorham v. Gorham, 2 Barb. Ch. R., 24; Fisk v. Howland, 1 Paige, 20; Schenck v. EUingwood, 3 Edw., 175. ^ The case of Grinnell v. Schmidt, 2 Sand. S. C. R., 106, contains a dictum apparently adverse to this view, namely, that the word " may," in the statute, is to be construed " must." But this was not necessary to the decision of the case. The plaintiflFs, in that case, were factors, and it was held that the action was well brought ; and this was the point decided, though the court went further and remarked that the plaintiff's were " the proper and only proper parties to bring the action." See Van Sant. PI., 137-140. ^ Code, § 114. < Edw. on Parties, 144 ; 5 Paige, 519. 5 Coit V. Coit, 6 How., 53 ; Forrest v. Forrest, 8 Code R., 254. Though there are adverse decisions, see Van Sant, PI. (2d ed.), 93. « Story Eq. PL, 63 ; Grant v. Van Schoonhoven, 9 Paige, 255 ; Bowers v. Smith, 10 Paige, 201. ' Stuart V. Kissam, 2 Barb. S. C. R., 394 ; Sherman v. Burnham et al., 6 Barb., 403 ; Grant v. Van Schoonhoven, 9 Paige, 255 ; Bowers v. Smith, 10 Paige, 201. « Alston and wife v. Jones, 3 Barb. Ch. R., 397. PARTIES. 87 These rules it is believed are substantially preserved by the new practice. The Code makes provision that, " when a married woman is a party, her husband must be joined with her except that : 1st. When the action concerns her separate property, she may sue alone ; 2d. When the action is between herself and her husband, she may sue or be sued alone.^ Where the wife is made a party defendant to an equity suit by any other person than her husband, even if the suit concern her separate property, the husband, as under the former Chancery prac- tice, must be joined.^ But where she is plaintiff in a suit which concerns her separate property, she must, as under the former practice, sue alone, and her husband, where their interests conflict, is properly made a party defendant ; though he need not be unless he claim an interest in the subject of the action, or a complete determination of the matter cannot be made without him ; and so the weight of authority seems now to have established the rule. * In respect to infants. The Code re-enacts the equity rule that when an infant is a party, he must appear by guardian. ^ ' An infant has no legal capa- city to sue, and in no case can he appear in person. If an infant plaintiff sue and the defendant answer without raising the objection, it will be held to be waived.^ But a judgment cannot regularly be taken against an infant for want of an answer, even if the plaintiff . have no knowledge that the defendant is an infant. ® And even if there be an answer, if the guardian has not been regularly or properly appointed there is no valid appearance, and the judg- ' Code, § 114. ^ But see "Walker v. Swayzee, 3 Abbott, 136 ; Billings v. Baker, 15 How., 525. ^ The cases have generally followed the decision in Brownson v, Gifford, 8 How., 395, establishing, it is believed, this important principle ; see also Smith v. Kearney, 9 How., 466; Hillman v. Hillman, 14 How., 456; Howland v. Fort Edward Paper Mill, 8 How., 506 ; see contra Willis v. Underbill, 6 How., 396 ' Eusher and wife v. Morris, 9 How., 266. * Code, § 115. * Hastings v. McKinley, Court of Appeals, Oct. 1853. « Kelley v. Klock, 2 Code K., 28. 88 FUETHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. ment is irregular. * The mode of appointment is pointed out by the Code, and has been heretofore spoken of. * The party plaintiff, if an infant, however, is the infant himself by his guardian, and not the guardian, and the complaint, it has been held, as in cases of suits by receivers, committees, &c., should state the facts showing a regular appointment by the court or judge, as these facts are traversable. * This, however, has not been the usual practice, and I am not aware that it is generally followed.^ Substitution of Parties, Provision is made by the Code, also, for the substitution of parties in case of the death, marriage or other disability of a party, or the transfer of interest; but as this subject more pro- perly belongs to a subsequent chapter, it will be omitted in this place. ' Jennings v. Jennings, 2 Abbott, 2. « Code, § 116, ante, pages 27, 28. 3 Hurlbut V. Young, 13 How., 414. * The contrary has been held at special term in a case not reported (PuWer by his guardian v. Smith, Gould, J., Rensselaer special term, December, 1858), and that case was affirmed at general term. See also Sere v. Coit (5 Abbott, 482). The rule of pleading is no doubt well settled, that where a committee or receiver would make title to property be represents, he must set out the facts showing his appointment; and state the proceedings, so that the court may see that the appointment is legal ; and the mere describing himself as receiyer in the complaint, or even averring that he was duly appointed, will not suffice. White v. Joy (3 Kern., 86), and cases there cited ; so also in respect to administrators and execu- tors. The case of Hurlbut v. Young was decided on the same reasons. But there is a manifest difference in the cases. In the case of the administrator, committee or receiver, the suit is by statute given to him, but his complaint makes no title to the thing in controversy, or the relief prayed, unless he shows his right to recover it by a regular appointment as administrator, committee, &c., and thus these allegations, being matter of proof on the trial, are traversable facts. But in case of the guardian, the suit is not his, but the infant's, and for all the purposes of the suit the infant's title to relief does not depend at all upon the appointment of guardian, and such appointment is not necessary to be proved on the trial. The fact of infancy is simply a question of legal capacity to sue. If it appear on the face of the complaint that the plaintiff is an infant not suing by guardian, the defendant may demur. If it do not so appear, he may set up in his answer the legal incapacity, that is, simply the fact, that the plaintiff is an OF THE COMPLAINT, AND HOW FRAMED, 89 SECTION III. OF THE COMPLAINT, AND HOW FRAMED AS TO STATEMENT OF FACTS AND PRATER FOB RELIEF. It is not the design of the present section to go into a full discussion of the rules of pleading, which the author has heretofore made the subject of a separate treatise. But it is intended, merely, to glance at some of the ruling principles which the new practice lays down, as they apply to suits of an equitable nature; and to point out some of the analogies between them and the principles which governed the former equity practice. The bill in equity, was a statement " in due legal form of the facts of the case, on which the plaintiff founded his title to relief, or to some equitable interposition, or aid from the court." ^ This definition is substantially that which the Code adopts in the single rule which it lays down in regard to the mode in which the plain- tiff must state his case. It provides, that the complaint shall contain " a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition." ^ In this attempted legislative definition, or enunciation, of a general rule, embracing every description of civil action, legal as well as equitable, three general propositions are involved, viz.: 1st. That the statement required is to be one oi facts, which relates to the mode or manner of the statement ; 2d. That the facts so stated, must constitute a cause of action which relates to the substance or sufficiency of the statement ; 3d. That the state- ment must be plain and concise, and without unnecessary repetition, which relates to the form. Let us notice each of these three ele- mentary propositions. 1st. As to the mode or manner of statement. The Code requires the statement to be of facts, and of facts alone. This is the radical change which the new practice introduces in respect to infant, which if proved on the trial will throw on the plaintiff the burden of proving that his guardian has been regularly appointed. If no objection be taken either way, it will be held to be waived. Hastings v. McKinley, supra, » Story's Eq. PL, 34; Cooper's, Eq. PL, 6. ^ Code, § 114. V. S. 12 90 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. equity pleadings. It is, indeed, the only substantial change, for everything else relates to mere matter of form. A prominent object in a Chancery bill, as has been noticed on a previous page, ^ was an examination of the defendant by his ansvrer, under oath. The bill was used as a vehicle for discovery as well as a pleading. Hence, it was not only allowable, but cus- tomary, in all equity bills, to introduce allegations that did not go to make up, or constitute a cause of action, but were matters of evidence, merely. Hence, too, a very important part of the bill was the charging part and the interrogating clause, in which the pleader exercised his ingenuity in stating questions pertinent to the subject matter of the bill (and which the defendant was bound fully to answer), in every conceivable variety of form, so that the defendant, as it was expressed, might not "escape on a negative pregnant." It is now considered as settled, that all this is abolished by the new practice, even in actions that were heretofore of equity jurisdiction ; such a result, however, was not attained until after some considerable conflict of judicial opinion. The practice of introducing into the complaint pretenses and charges, and of put- ting the defendant upon his answer to interrogatories, fell without much resistance and under a single decision at special term. ^ The opinion that the pleadings in an equity suit might still in some form be used as the vehicle for examining the defendants, did not so easily yield, ^ though the point was finally and after a slight struggle conceded.* But the notion that the same rules of pleading cannot be made applicable both to a common law and "an equity action, and that the same strictness as to allegations of fact, is not required in the one as in the other of these kinds of action, made a more vigorous resistance,* and does not seem yet to be finally abandoned. ° The weight of authority, however. ' Ante, page 12. ' Clark V. Harwood and others, 8 How., 470. ' Rochester City Bank v. Suydam, 5 How., 216 ; Coit v. Coit, 6 How., 53. ' "Wooden v. Waffle, 6 How., 146 ; Wooden v. Strew, 10 How., 50. ' Ibid. ; Le Roy v. Marshall, 8 How., 373 ; Fay v. Grimsteed, 11 Barb., 321. * Per Selden, J., in Reubens v. Joel, 3 Kern., 488. OF THE COMPLAINT, AND HOW FRAMED. 91 seems to be the other way ; and from the latter decisions I under- stand the rule to be in accordance with that class of cases which hold that, in an equitable as well as a legal action, the facts in the complaint of which the Code speaks, are those only which are material in proof to establish the cause of action, and to obtain the particular relief demanded. ^ The complaint, then, in an equity as in a common law action, must, in the first place, state facts as opposed to matters, however pertinent, which are mere evidence. In the next place, it must state facts as opposed to mere legal conclusions, or matters of law. This is a very important and essen- tial principle, and should never be lost sight of in drawing a pleading. But it must be confessed, that it is not so easy to trace the dividing line which separates the domains of fact from those of legal inference. ^ Thus, it is held, in an early case ' under the Code, that, in an action to recover for goods sold and delivered, the sale and delivery are the issuable yacte, which alone are neces- sary to be alleged in the pleading, and that a 'promise (implied from the sale) to pay, is a mere legal inference which cannot be alleged, and if controverted, would form an immaterial issue. But the delivery itself, as was shown in another case, ^ is not purely a fact, but a mixed question of law and fact ; for it may be a constructive instead of a manual delivery. Accordingly, in ' See this subject considered, and authorities cited, ante, pages 16, 17, 18. ^ The question is nowhere more ably discussed than by Selden, J., in Dows V. Hotchkiss (10 Leg. Obs., 281). Judge Selden undertakes to show, and with much force, that "some latitude of interpretation is to be given to the word, facts, when used as a rule of pleading ; " and that it must, of necessity, embrace a class of mixed facts into which more or less of legal inference is admitted, and cannot always mean those absolute " physical facts," which would seem to be indicated in the opinion of the court in Lawrence v. Wright (2 Duer, 673). Any other rule would tend to "intolerable prolixity." Thus, in the illustrations given by Judge Selden, the common averment that a defendant executed a contract, may be a mixed question of law and fact, and so the averment that he signed, sealed and delivered it. " The delivery may have been actual, or it may have been constructive merely. What amounts to a delivery is a question of law." s Glenny v. Hitchins, 4 How., 98. * Dows V. Hotchkiss, 10 Leg. Obs., 281. 92 FUKTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. a subsequent case in the New York Superior Court, ^ it was held, that though a delivery of goods sold, under an authority of the purchaser to a third person, for the use of such person, was in judgment of law a delivery to such purchaser ; yet, it is not so as a fact, but a mere conclusion of law, and the facts constituting the delivery must be averred. And in the Supreme Court a similar rule of pleading was adopted in a case^ holding that the act of an agent, though in judgment of law the act of the principal, cannot be so pleaded, though it was thought there was no objection, after stating the fact itself, for the ' Smith V. Leland, 2 Duev, 497. That court has steadily adhered to the doc- trine that /acis only — meaning "physical facts," capable as such of being estab- lished by oral or documentary evidence — can be alleged. Accordingly it is held that allegations in an action of ejectment, that the plaintiff became seised by a lawful title, to premises which the defendant unlawfully withholds, are merely inferences of law and insufScient. (Lawrence ■;;. Wright, 2 Duer, 673.) Though a general allegation of ownership, it seems, would be regarded as the allegation of a fact. (Heine v. Anderson, 2 Duer, 318). So an allegation in a complaint that defendant had received money or property to the use of the plaintiff' was held bad on demurrer, the question whether one has received money to the use of another being a question of law depending on the facts to be proved. (Lie- nan V. Lincoln, 2 Duer, 670.) So in case of a complaint which alleged an in- debtedness, arising from an overpayment of money, on the settlement of an account, when the overpayment was really effected by the delivery of stock, not money, though a payment in stock might be in judgment of law a payment in money, yet the allegation, being a mere legal conclusion, was considered insuffi- cient to justify proof of the facts, namely, the overpayment of stock. (Mann v. Morewood, 5 Sand., 558.) And again, in another case, where, in a suit to recover personal property, the plaintiff claiming title under a certain mortgage which was not set forth in the complaint, it was held that this should have been done, or at least so much of the instrument as gave it its character of a mortgage, should be set forth as would enable the court to draw the legal conclusion, from the facts pleaded, that it was such an instrument as vested in the plaintiffs the legal right of possession. (Fairbanks v. Bloomfleld, 2 Duer, 349.) The New York Common Pleas acted on the same principle in Ives v. Hum- phrey (1 Smith Com. PI. R. 196), where, in an action of trespass, it was held, the facts were well pleaded, as the act of two of the defendants committed on the instigation of the third, and not as the direct act of all three defendants. 2 St. John V. Griflath (1 Abbott, 35), overruling the case of Dollner v. Gibson (3 Code, R. 153). Substantially the same principle was recognized by Judge Bronson, in Eno v. Woodworth, in the Court of Appeals (4 Com., 247) ; and see this subject more fully discussed in Van Sant. PI., 241-254. OF THE COMPLAINT, AOT) HOW FRAMED. 93 plaintiff to state in addition what he considered its legal effect. ^ But the averment of a mere conclusion, without any fact to war- rant it, is always disregarded.^ And if such conclusion is at variance with admitted facts, the facts will be regarded and the conclusion disregarded. ' The rule indicated in these and similar cases is no doubt in consonance with the spirit as well as the letter of the Code. The facts which go to establish a legal conclusion, or even a mixed proposition of law and fact, ^ should always be stated, even at the disadvantage of a little prolixity. Thus, if a plaintiff wish to show that he is the holder and ojvner of a promissory note or bill, he must do something more than aver that he is so, that is to say, he must allege the indorsement and transfer to him of the note or bill. ^ If he would show that he is authorized to bring the suit, an allegation that he is " duly aathorized " is not enough, but he must state the facts which establish it.^ If he would prove facts going to excuse the service of notice of protest, he must plead such facts, and not merely allege that due notice was given.' If he would show that he is entitled to the possession of chattels or real estate, he must set forth the facts showing himself to be so entitled.' If he would prove a constructive delivery, he must not plead merely that the thing was delivered, but must allege the facts which he claims constitutes a delivery. ^ If he would ' See Decker v. Kernan, 2 Kern., 361. , " Schenck v. Naylor, 2 Duer, 678. 3 Jones V. The Phoenix Bank, 4 Seld., 236. * But it is said there are a certain class of allegations of mixed law and fact which the pleader may make in either form, that is by stating the conclusion, or the facts which go to establish it ; as, for example, after alleging the recoTery of a judgment, to state that it is a lien on real estate, without alleging the facts which make it a lien. (Casey v. Allen, 22 Barb., 395 ; see also Dows v. Hotchkiss, supra.) So an allegation that there is " due " the plaintiff, or that the defendant is " indebted," &c., has been held to be an allegation of fact. (See Allen v. Patter- son, 3 Seld., 80 ; Second Avenue R. R. Co. v. Coleman, 24 Barb., 300.) s Appleby v. Elkins, 2 Sand., 388 ; Mitchell v. Hyde, 12 How., 460 ; Bank of Lowville V. Edwards, 11 How., 217. •= Myers v. Machado, 6 Abbott, 198. ' Garvey v. Fowler, 4 Sand., 665 ; Oakley v. Morton, 1 Kern., 26. " Patterson et al. v. Adams, 7 Hill, 126 ; Lawrence v. Wright, 2 Duer, 674 ; Adams v. Holley, 12 How., 330; Thomas v. Desmond, 12 How., 321. ' See, ante, page 92. 94 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. plead a mere right or legal obligatioa, or duty, it will not be sufficient to allege generally such right, or legal obligation, or duty, but he must state the facts which raise or constitute it, and the circumstances out of which it arises. * If a contract has been executed, or any act done by an agent or attorney, though its legal effect be that it is the act of the principal, still the facts to establish the legal conclusion should be set forth in the plead- ing. 2 If the contract or act is void for fraud, the facts which it is claimed constitute the fraud should be alleged.^ If it be claimed that the party pleading, or any adverse party, has an interest in the subject matter of the controversy, the pleading should contain the facts showing the nature or extent of such interest, and which will enable the court to determine that such interest really exists. * And so in many other and similar cases which might be enumerated. Facts must be pleaded also, as affirmative or positive facts, and not by way of mere argument or inference. Hypothetical plead- ing, conditional statements, or allegations in the alternative, ^ are not allowed. ^ But by the term positive and unconditional allegations is not meant allegations set forth absolutely in form upon the personal knowledge of the plaintiff. Though this has been held necessary in one case '' since the Code, yet the general practice is to allow the facts to be set forth on information and belief, and even on ' City of Buffalo v. Holloway, 3 Seld., 493 ; Van Schaack v. Winne, 16 Barb., 95 ; Corey v. Mann, 14 How., 163 ; 6 Duer, 628 ; Schenck v. Naylor, 2 Duer, 678 ; Lewis v. Acker, 11 How., 163 ; and this was precisely the rule of pleading at common law, 1 Chitty PI., 137 ; 1 Saund., 312 ; 12 East., 89 ; Van Sant. PL, 277, 278. " See cases supra. ^ McMurray v. Thomas, 5 How., 14; Wells v- Jewett, 11 How., 242; Fisher'!;. Fredenhall, 21 Barb., 84. * Aldrlch V. Lapham, 6 How., 129. ^ Corbin v. George, 2 Abbott, 465. ^ Wies and wife v. Fanning, 9 How., 544; Arthur v. Brooks, 14 Barb., 533 ; Sayles v. Wooden, 6 How., 85. As to what is hypothetical pleading, see Ketchum V. Zerega, 1 Smith's Com. PI. R., 554 ; Brown v. Ruckman, 12 How., 313. ' Prescott V. Dole, 7 How., 281 ; see also Rickets v. Green, 6 Abbott, 82. OF THE COMPLAINT, AND HOW FRAMED. 95 belief alone, ^ unless in particular cases, as where the fact is pre- sumptively within the knowledge of the party pleading. ^ u4.s to the substance or sufficiency of the statement. The statement of the facts in a complaint, must be a state- ment of " the facts constituting a cause of action." The courts have had frequent occasion to consider this provision of the Code, and various general propositions have been laid down as indicat- ing its proper application. They do not seem, however, in any respect to differ from the general rule governing an equity plead- ing, which was, as defined by Judge Stoet, that every fact essential to the plaintiff's title to maintain the bill, and obtain the relief, must be stated in the bill, otherwise the defect will be fatal.* That is to say, a well drawn complaint should contain every fact, which, unless admitted by the defendant, it will be necessary for the plaintiff to prove on the trial, in order to enable the court to grant him the particular relief sought ; for no facts are properly in issue, unless charged in the complaint, and of course no proofs can generally be offered of facts not in the complaint, nor can relief be granted for matters not charged although they may be apparent from other parts of the pleadings and evidence ;^ or as the rule is laid down in the recent cases since the Code, the complaint must be sufficiently full to enable the court, upon the proof or admission of all the facts contained in it, to grant the relief sought, and if not it is objectionable on demurrer for insufficiency.^ It must set forth all the material and issuable facts which are relied on as establishing the plaintiff's right of action.^ It must contain all the facts which, if controverted, the plaintiff will be bound to prove in the first instance in order to show himself entitled to the judgment demanded.'' And the court must not only be able to see that the plaintiff has sustained or is threatened with a legal injury,' but if ' Howell V. Frazer, 6 How., 221 ; New York Marbled Iron "Work^ v. Smith, 4 Duer, 362; Radway v. Mather, 5 Sand., 654. 2 Richardson v. Wilton, 4 Sand., 707. ^StoryEq. PI., §256. * Ibid. 5 Tallman v. Green, 3 Sand., 437. " Mann v. Morewood, 5 Sand., 558. ' Garvey v. Fowler, 4 Sand., 665 ; Safford v. Drew, 3 Duer, 632 ; Allen v. Pat- terson, 3 Seld., 478. * Smith V. Lockwood, 13 Barb., 209 ; Mann v. Morewood, 5 Sand., 558, 96 FUETHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. equitable relief is sought, the character, nature and extent of the injury must be set forth, in order that the court may be enabled to adapt the particular relief to the nature of the case. Thus, in a complaint framed with a view of obtaining an injunction as a part of the final relief, not only is it absolutely necessary to set forth all the facts upon which, taken collectively, the right to the injunction depends, but it will be proper to set forth any other facts which bear upon the particular relief sought, although they may not be absolutely essential to, or decisive of, the right of action.* And in this feature, undoubtedly, consists the difference, if any, between the allegations in a complaint for equitable relief and the allegations ia a common law action. So, also, inasmuch as the question of costs, in equitable actions, is in the discretion of the court, and as costs may be awarded as part of the plaintiff's final relief, it will be proper, in analogy with the old Chancery practice, to state in the complaint facts which may be proved on the trial as bearing upon this particular part of the relief demanded.^ All the facts necessary to confer jurisdiction must of necessity be stated.^ So too every fact must be alleged upon which the particular right of the plaratiff to maintain the suit, or obtain the relief demanded in the complaint, depends. As in the case of receivers,, committeemen, assignees, or trustees, administrators and executors, the right which has been effected having been originally vested in another, the plaintiff is required to set forth particularly the facts, shovnng his appointment,* or the authority under which he sues, from which facts, if proved or admitted, on the trial, the court may infer as a conclusion of law, that he is entitled to maintain the suit and ask the relief. The principle 1 Minor V Terry, 6 How., 208 ; Howard v. Tiffany, 3 Sand., 695. 2 Martin v. Kanouse, 2 Abbott, 330 ; Howard v. Tiffany, 3 Sand., 695 ; Van Rensselaer v. Brice, 4 Paige, 174 ; Hawley v. Woolverton, 3 Paige, 522 ; Des- places V. Goris, 1 Bdw., 350 ; 5 Paige, 522 ; Mechanics Bank v. Lerj, 3 Paige, 506 ; Woods v. Morrell, 1 John Ch. R., 103. 3 Frees v. Ford, 2 Seld., 176 ; 1 Barb. Ch. Pr., 39. * White V. Joy, 11 How., 36 ; same case, 3 Kern., 86 ; Bangs v. Mcintosh, 23 Barb., 591 ; White v. Law, 7 Barb., 206 ; Hull's Executors v. Taylor, 8 How., 428. OF THE COMPLAINT, AND HOW FRAMED. 97 has even been applied to the case of an infant suing by guardian/ the court considering the appointment of the guardian a traversa- ble fact which the defendant had a right to controvert ; but this rule has not in all cases been followed/ and its strict application to a guardian can scarcely be drawn from the class of cases above referred to. In the case of the receiver, committeeman, &c., the right of action is vested in the plaintiff, and his title to main- tain the suit can appear only by proof of the facts showing his appointment. In the case of the guardian the right of action is not vested in him, but in the infant, and proof of his appoint- ment cannot be necessary to maintain the action, and is not properly a traversable fact in the pleading. The complaint must contain the requisite facts to show the defendant's as well as the plaintiff's interest. A mere general allegation that one or more of several defendants are "interested" is insufficient. In the case of infant defendants especially, this is essential, the facts which entitle the plaintifi" to judgment, which in their case are never admitted, must be stated and sustained by legitimate proof.' It is a customary practice in a foreclosure complaint, in the case of subsequent incumbrancers who are made parties defendants, merely to allege that they " have or claim some interest in the premises by judgment, decree or otherwise." This is not strictly the allegation of a fact, and the more correct practice is to allege (on information and belief if the pleader prefers) that such defendants have obtained judgments which have been docketed, &c., or a mortgage which has been duly recorded in the county > Hulbert v. Young, 13 How., 413. ^ See Ser6 v. Coit, 5 Abbott, 482. In Pulver v. Smith, at the Rensselaer special term, December, 1858, a complaint of an infant stating that he sued by A. B., his guardian " duly appointed by order of the court," was held good on demurrer, and the reasoning of the court in Hulbert v. Young, was not acquiesced in. And this case has been affirmed by the general term on appeal. ^ Aldrich v. Laphara, 6 How., 129. The same precision is not required in set- ting out the defendant's interest, because a complainant cannot always be supposed to be cognizant of its nature. And even where it is evident, from the nature of the case, that the complainant must be cognizant of the defendant's title, and sets out the same informally, yet if he alleges enough to show that the defend- ant has an interest it will be sufficient. 1 Barb. Ch. Pr., 40. V. s. 13 98 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. where the premises are situated, &c., or otherwise as the fact may be, so as to show the nature of the defendants interest or claim. The same principles have been applied to the case of a partition suit, and a general allegation that certain of the defendants " claimed some right, interest, estate, or title in the lands in question," &c., adverse to the plaintiff and the other defendants, held bad on demurrer.' The court says that something more is necessary than merely to state that the defendants claim such interest ; the nature of the claim should be stated, otherwise there would be no method of ascertaining whether it could be joined with the main subject of the litigation. The question in regard to the suiBciency of a complaint in an equity suit is not whether it embraces all the facts which might properly be averred to enable the plaintiff to obtain full and ample relief, but whether it contains facts which, if proved or admlitted, are sufficient to enable the court to render judgment for the plain- tiff. Thus, in a suit for an account between partners, a complaint which sets forth a partnership, a dissolution of such partnership, the existence of unsettled accounts, and a balance in favor of the plaintiff, contains a sufficient cause of action, without setting forth all the matters in detail necessary for a full and final account.^ So a complaint seeking specific performance of an agreement to convey land, which did not set forth a particular description of the land, but described it generally, as so many acres of the defendant lying in a specified place in another state, was held, on demurrer, to contain a cause of action, the court being of opinion that if the defendant required a greater degree of certainty he must seek it by motion to correct the pleading." It is to be remarked, however, that complaints of such a character can scarcely be regarded as specimens of correct pleading ; and the argument of the defendant in that case, no doubt, indicates the only safe rule, namely, that the complaint should have supplied the circumstances which would • Stryker v. Lynch, 11 Leg. Obs., 116. 2 Luddington v. Taft, 10 Barb., 447. ■ Richards v. Edick, 17 Barb., 260. OP THE COMPLAINT, AND HOW FRAMED. 99 furnish materials and guidance for drawing a decree or judgment directing a conveyance, with a definite description, so that an offi- cer might go' upon the ground and select the farm. Such a des- cription would seem almost essential to the rendering of a proper judgment, especially on failure by defendant to answer, in which case the relief granted cannot exceed that which the plaintiff has demanded in his complaint.' Statement of several causes of action. It is to be further remarked that, when it is said the complaint must contain a statement of the facts constituting a cause of action, it is not meant only a single cause of action. The same complaint may embrace, in separate statements, two or more distinct causes of action, if they are such as may be properly united, and this whether they are legal or equitable, or both,^ and it may close with a general prayer for relief. This is entirely similar to the old equity practice in which two or more causes of action arising out of the same, or even distinct transactions, if of the same nature, might be joined against the same parties; though joint and separate demands could not be joined, nor could several com- plainants demand distinct matters against the same defendant, nor the same complainant against several defendants, though it was not necessary that all the complainants should be interested to an equal extent.^ What actions may he joined. The Code, in section 167, classifies the actions that may be united in the same complaint under seven general heads. Those under which actions of an equitable nature would fall, are the first, second, third, and seventh subdivisions ( the other three referring to common law actions alone), namely, where the action arises out of 1. The same transaction or transactions, connected with the same subject of action ; or 2. Contract, express or implied ; or 3. Injuries with, or without force, to person and property, or either ; or ' Code, § 275. " Code, § 167. 3 1 Barb. Ch. Pr., 40 ; 5 Paige, 137. 100 FURTHEB PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. 7. 1 Claims against a trustee, by virtue of a contract, or by ope- ration of law. But in order to be joined, such causes of action must all belong to one of these classes only ; and must affect all the parties to the action ; and not require different places of trial ; and must be separately stated. These are important qualifications, and place a very consider- able restriction upon the right to enforce several distinct demands in one suit. Thus, the causes of action must all belong to one of these classes. An action to enforce the specific execution of a contract which belongs to the second class, cannot be joined with an action for an injunction to stay the commission of waste, which belongs to the third. But a claim for specific performance may be united with a claim for the payment of a reasonable sum for the use and possession thereof;^ both belonging to the first subdivision. So a claim to re-form an agreement, erroneous in form through the fraud of the defendant, may be united with a claim for damages for an alleged breach of it;^ and a claim to recover an alleged balance due on a building contract, and for extra work and mate- rial, &c., with a claim to set aside, for fraud and undue influence, an award made by an arbitrator in relation to certain disputes growing out of the same contract. * But such claims, though they arise out of the same transaction or transactions, cannot be joined unless they are connected with the same subject of action.^ Thus, a public officer cannot claim in the same suit to recover a statute penalty incurred by a defendant, for putting up a building in violation of a city ordinance, and an injunction to restrain the defendant from completing the building.^ Nor can a cause of ' The 4th subdivision is applicable to "injuries to character;" the 5th, to " claims to recover real property," the former action of ejectment ; and the 6th, " claims to recover personal property," the former action of replevin. ° Spier et al. v. Robinson el al., 9 How., 326. 5 Jerolimon v. Cohen, 1 Duer, 629. * Lee v. Partridge, 2 Duer, 463. ^ As in the cases of Hulce v. Thompson, 9 How., 113, and Smith v. Ilalleck, 8 How., 73, holding that a claim for the recovery of real estate could not be joined with a claim for damages for trespass. See also Furniss v. Brown, 8 How., 59 ; Colwell v. N. Y. & Erie R. R. Co., 9 How., 312. « Lamport v. Abbott, 12 How., 340. OF THE COMPLAINT, AND HOW FRAMED. ' ^''♦^'ilU..^ action to enjoin some of the part owners of a vessel, from 311-^ posing of her in derogation of the rights of other part owners who are plaintiffs, be joined with a cause of action for the hire of such vessel. ' Limited divorce, on the ground of cruel and inhu- man treatment, belongs to the third subdivision, being an injury to the person, and an action to obtain it, cannot be joined with one for absolute divorce for adultery, which does not belong to that class. ^ Nor can equitable causes of action, not falling under either of the subdivisions of section 167, such for example as a bill for 'partition, and a creditor's bill be united. ^ The causes of action which may be united also, are only such as " affect all the parties to the action." They must all exist m the same right, in favor of all the plaintiffs, and against all the defendants. The rule, it has been held, prohibits the guarantor of a written instrument from being sued with the maker, because the causes of action are distinct, and neither cause, separately, affects "all the parties to the action."* The rule prohibits the joining of a cause of action against two defendants, as to recover the possession of real estate, with a cause of action against one for moneys recovered by him for rents and profits ; ' or a cause of action for equitable relief against a cor- poration, with a claim for damages against individual defendants.* For a similar reason, where a person in whose hands securities have been deposited as collateral, has assigned them to several persons, by different instruments, each of which are claimed to be void as against the plaintiff, he cannot embrace them all aa defendants in one suit brought to compel the surrendering of the securities, and asking a temporary injunction in the meantime, to restrain their transfer. '' Nor in an ordinary creditors' suit, can a plaintiff seek to set aside as fraudulent, various conveyances made by the debtor to different persons at different times. * This * Costar V. New York & Erie R. R. Co., 3 Abbott, 332. 2 Mcintosh V. Mcintosh, 12 How., 289. ^ Dewey v. Ward, 12 How., 419. * Le Roy v. Shaw, 2 Duer, 626. ' Tompkins and White v. White and Robinson, 8 How., 520. ' House V. Cooper, 16 How., 293. ' Lexington and Big Sandy Rail Road Co. v. Goodman, 25 Barb,, 469. * Reed v. Stryker, 6 Abbott, 109. And upon a similar principle is the case of 102 PUETHEE PEOCEEDINGS BY PLAINTIFF BEFOEE ANSWEE. subject has been already alluded to in what has been said in regard to parties to the action. A cause of action to declare a deed by a person entitled to dower, void for fraud as against the heirs of the grantee, cannot be joined with a cause of action to recover dower against one of the heirs in possession, though the objection is too late, unless taken by answer;' the causes of action do not affect all the par- ties to the action. Not only must the causes of action affect all the parties to the action, but they must all exist in the same right. Thus, now, as under the old practice, a plaintiff Cannot include, in the same action, claims in his individual right, and claims due him in a representative capacity as administrator or executor of another. * Nor can a cause of action against the executor or administrator, individually, be united with a cause of aetioa against the testator or intestate.* Or a cause of action against the defendant, indivi- dually, with a cause of action against him as trustee. * The causes of action which may be joined must also be such a* do not require different places of trial. This obstacle to the join- der of different causes of action will not often arise in practice. It would probably prohibit the foreclosure, in one action, of two- mortgages between the same parties on separate real estate situated in different counties. As to the partition of lands lying in different counties, and held in common, these may, and by rule 77, should be embraced in the same action, and the action maybe brought in any county where some part of the land is situated, pursuant to section 123 of the Code. Voorhies v. Voorhies (24 Barb., 151) where an infant, haying conveyed different portions of land by separate deeds to two persons, one of whom conveyed to five persons, on coming of age disavowed his deeds and brought an action against all the grantees to recover possession, it was held that the several causes of action were improperly united. The cases of Brinkerhoof d. Brown (6 John Ch. R., 139) j Fellows V. Fellows (4 Cow., 482). and Hammond v. Hudson River Iron & Machine Co., (20 Barb., 378), are not at variance with this principle, per Mason. J. Reed V. Stryker, (6 Abbott, 111.) ' Springsteen v. Haber, Rens. Special Term, Dec. 1858, not reported. ' Lu( as V. N. Y. Central R. R. Co., 21 Barb., 245 ; 4 Hill, 492; 1 Tenn. R., 489- 8 McMahon v. Allen, 3 Abb., 89 ; 12 How., 39; Pugsley v. Aiken, 14 Barb^ 144. * Landon v. Levy, 1 Abbott, 376. OF THE COMPLAINT, AND HOW FRAMED. 103 The causes of action also must be separately stated. This was, at one time, supposed to be matter of substance, and a complaint, defective in this respect, was considered bad on demurrer, ' but the courts now incline to the opinion that it is a matter of form merely, which can be objected to only by motion to correct the pleading. ^ 3. As to the form of the statement. The statement which the Code requires is to be plain and con- cise, and without unnecessary repetition. In an equity pleading impertinence — that is the 'insertion in the pleading of foreign or irrelevant matter, or unnecessary prolixity in the manner of state- ment — might be excepted to, referred to a master, and on his report that it was impertinent matter, expunged by order of the court. The Code provides a shorter and more summary mode of reaching and correcting such a defect, namely, by motion to the court. This motion may be made by any person aggrieved, where the pleading contains " irrelevant or redundant matter ;" or, when its allegations are " so indefinite or uncertain that the precise nature of the charge or defense is not apparent.'"" If it be not "plain and- concise," and be not made "without unjiecessary repeti- tion," the court will correct the defect on motion. The proper time and mode of making this motion will be noticed hereafter. Irrelevant and redundant matter, as the term is used in the Code, means what was usually understood as impertinence in an equity pleading ; * and the test by which such matter may be determined is now the same as formerly, with the important exception already noticed, namely, that matters of evidence only, or matters alleged merely for the purpose of an examination of the defendant, can- not be inserted in the complaint of the Code. Otherwise what- ever matter would be struck, out by the Chancery bill upon ■ Van Namee v. Peoble, 9 How., 198 ; Pike v. Van Wormer, 5 How., 172 , Moore r. Smith and Marshall, 10 How., 361, and cases cited in Van Sant. PL; 344-350. ' Robinson v. Judd, 9 How., 372 ; Welles, Executor, v. Webster, 9 How., 251 Dorman v. Kellam, 14 How., 184 ; Harsen v. Bayaud, 5 Duer, 656 ; Cheesborough V. N. Y. & Erie Railroad Co., 13 How., 558 ; Woodbury v. Sackrider, 2 Abbott, 402, and cases cited in Voorhies' Code (6th Ed ), p. 197. 3 Code, § 160. * Carpenter v. West, 5 How., 52. 104 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. exceptions for impertinence, will now be struck out of the com- plaint as irrelevant and redundant. ^ Chancellor Kent remarks, that the best rule to ascertain whether matter be impertinent or not, is to see whether the subject of the allegation can be put in issue, or be given in evidence between the parties. 2 And a similar rule is recognized under the new practice. ^ Whatever is material is not impertinent.^ If the mat- ter can have any influence in the decision of the suit, either as to the subject matter of the controversy, the particular relief to be given, or as to the costs, it is not impertinent.^ Thus a state- ment introduced into an answer (and the same principle will apply to a complaint) to show the temper with which a bill is filed, and the oppressive course pursued by the complainant, is not imperti- nent, as it may have an effect upon the costs, ^ But tedious and useless recitals, copies of receipts, deeds, &c., and unnecessary prolixity of statement, are redundant matters and will be struck out.' A useless repetition of the language not only, but also of the cause of action, as by setting it forth more than once, or in differ- ent forms, is a violation of the rule, and will be corrected on motion. A complaint has been set aside for this cause, * but the better practice seems to be a motion to strike out all the objec- tionable matter not essential to a single cause of action, or compel the plaintiff" to elect which single cause of action he will retain. * The practice of taking exceptions to a bill in equity for imper- tinence was not oftr-n resorted to, and the court sanctioned it only in extreme cases and to prevent abuse. An exception for imperti- nence founded on a few unnecessary words, was not allowed, ' Rensselaer and Washington Plank Road Co. v. Wetsell, 6 How., 68 ; Stewart et al. V. Bouton, 6 How., 71 ; Williams u. Hayes, 5 How., 475. 2 Woods V. Morrell, 1 John. Ch. R., 103. ' Rensselaer and Washington Plank Road Co. v. Wetsell, 6 How., 68. * Bull V. William.'!, McCle and Young, 334. 5 Van Rensselaer v. B -ice, 4 Paige, 174 ; Martin v. Eanouse, 2 Abbott, 330. ' Displaces v. Gores, 1 Edw., 350. ' Scudder v Bogert, 1 Edw., 372. « Churchill V. Churchill, 9 How., 552. ' Stockbridge Iron Co v. Mellen, 5 How., 439 ; Sipperly et al. v. Troy and Boston Railroad Co., 9 How., 83 ; Ford v. Mattice, 14 How., 91 ; Molony v. Dows, 15 How., 261. OF THE COMPLAINT, AND HOW FEAMED. 105 unless they might lead to the introduction of improper evidence; and a short sentence, although it contained no fact or material matter, and was only inserted from abundant caution, was not deemed impertinent.^ The tendency of the decisions of our courts under the section of the Code referred to is the same. The prac- tice of taking exceptions to trivial and unimportant allegations by motion to strike them out, is not encourfeiged ; and so far as my observation extends, these motions are generally granted in those cases only where, 1st, the opposite parly might in some respect be aggrieved^ should the redundant matter be allowed to stand, as where it might lead to the introduction of improper evidence or the like ; or 2d, where the matter is needlessly prolix or will tend to incumber the record. ^ As to the mere formal requisites- of the comjUnint. Several causes of action united in the same complaint are not only required by the Code* to be separately stated, but are also required by the rule to be plainly numbered.^ A failure to com- ply with this rule is an irregularity, and it has been held, would constitute a ground for setting the pleading aside ; ^ but the better practice seems to be to return the pleading immediately, 1 Story Eq. PL, § 267 ; see also 5 Paige, 522; 6 Paige, 239 ; 1 Edw-, 350. " A party is not to be deemed aggrieved by unnecessary particularity in the pleading of his adversary, which only gives him more distinct notice than is requisite of the nature of the proof to be given against him. Denithorne v. De- nithorhe, 15 How., 232 ; Molony v. Dows, 15 How., 261. 3 Van Sant. Plead, 314 ; St. John v. GrifBth, 1 Abbott Pr., 39 ; Hynds ». Gris- wold, 4 How., 69; Follett v. Jewett, 11 Leg. Obs., 193 ; Root v. Foster, 9 How., 37 ; Rensselaer and Washington Plank Road Co. v. Wetsell, 6 How., 68; Moflfat V. Pratt, 12 How., 48 ; Martin v. Kanouse, 2 Abbott, 330. These matters being very much in the discretion of the court no invariable rule has been laid down in regard to striking out redundant matter, and sometimes pleadings are very closely scrutinized by the courts, as in Truscott v. Dole (7 How., 221), in which the words " on information and belief" were struck out ; and in Warner v. Nclligar (12 How., 402), where a part of a sentence was struck out which merely stated the conveyance under wfich the plaintiff claimed title and possession to real estate. * Code, § 167. ' Supreme Court Rule 19. « Blanchard v. Strait, 8 How., 83. V. s. 14 106 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. pointing out the defect, or perhaps a motion may be made to correct it so as to make it conform to the rule.* The rules 2 also require every pleading, &c., exceeding two folios in length, to have the folios distinctly numbered and marked in the margin thereof, and all copies, either for the parties, or the court, must be numbered or marked in the margin so as to conform to the orginal draft and to each other, and that they shall be indorsed with the title of the cause. And all the plead- ings and other proceedings and copies thereof shall be fairly and legibly written ; and if not so written, and folioed, and indorsed as aforesaid, the clerks shall not file such as may be offered to them for that purpose, nor will the court hear any motion or application founded thereon. So far as any objection to be taken by the adverse party on account of any violation of the rule is concerned, the rule itself prescribes that the party upon whom the paper is served, shall be deemed to have waived the objection, unless, within twenty- four hours after the receipt thereof, he returns such papers to the party serving the same, with a statement of the particular objection to its receipt. Before this provision (which was first made in the new rules of 1858), it was supposed that a motion would lie to set aside a complaint for their regularity of omitting to folio it ; but the court denied the motion, the aflBdavit on which it was made being liable to the same objection, and, besides, it was thought the pleading should have been returned and the defect pointed out.^ These technical objections are never encouraged ; even when insisted upon m limine by an opposing party. There is no doubt, however, but that a party has a right to have the rule strictly complied with, and may return the paper served with his objections if it be not folioed, or indorsed with the title of the cause, or legibly written. The rule seems to be mandatory upon the clerks, though it has not been strictly ' Wood V. Antony, 9 IIow., 78. « Supreme Court, Rule 20. ' Sawyer v. Schoonmaker, 8 How., 198. And in another case a party who retained a complaint not folioed, twelve days without objection, was held to have waived any objection to such irregularity. The Chatham Bank v. Vau Veghten, 5 Duer, 628. OP THE COMPLAINT, AND HOW FRAMED. 107 complied with, and discretionary with the courts, by whom, how- ever, it is not usually enforced, except in case of gross abuse. The pleading also is required to be subscribed by the party or his attorney. ' This is a statutory requisition, and if not observed the pleading is irregular and will be set aside on motion with costs. In one case such a defective pleading (an answer) was held to be a nullity, and the plaintiff entitled to enter judgment;* but this practice it is believed has not been followed. And the safer course, no doubt, is, either to return the pleading with notice of the defect, or move, before any step taken which waives the irregularity, to set it aside. In analogy to the subscription of the summons, it is supposed that the subscription to the com- plaint cannot be made by a mere agent, but must be by an attorney at law.^ But a subscription to the affidavit of verifica- tion alone, it is said, is a sufficient subscription to the pleading within the meaning of the Code. * The demand for relief is the last requisite of the complaint that will be noticed in this section. This is a very important part of a pleading in an equitable action, especially in cases where it is probable that judgment maybe obtained on default of an answer; for, in such cases, the relief cannot exceed that which the plaintiff shall have demanded in his complaint; though in any other case the court may grant him any relief consistent with the case made by the complaint, and embraced within the issue.' It is obvious, therefore, that the plaintiff should be careful to make his prayer for relief embrace specifically and fully the particular relief which he desires to obtain, inasmuch as, if even one of several defend- ants omits to appear and answer, he will be concluded as to him by the particular form of relief prayed for, and will not be enabled to obtain a regular judgment against him, for a different form, or greater measure of relief, under the general prayer " of such other and further relief," &e., with which a complaint in equity usually closes. If, however, issues are joined as to all the defendants, the form of the prayer for relief is of very little consequence. In such cases » Code, § 156. * Hubbel v. Livingston, 1 Code K., 63. ' Weare v. Slocum, 3 How., 307. * Hubbel v. Livingston, 1 Code R., 63. s Code, § 275. 108 FUETHEE PEOCEEDINGS BY PLAINTIFF BEFOEE ANSWER. as is said in Marquat v. Marquat, ' " it is of no consequence what is the demand for relief in the complaint, or whether there is any demand for specific relief. Whether the plaintiff has mistaken the kind of relief to which he is entitled is entirely immaterial." The prayer for relief does not constitute any part of " the statement of facts," and a demurrer therefore will not lie to it.^ The Code, however, requires every complaint to contain such a prayer, and its entire omission, like the omission of a title, the signature, &c^, is undoubtedly an irregularity, and should be taken advantage of in the same way as any similar irregularity, namely, by motion to set the pleading aside for such irregularity.^ SECTION IV. ' VERIFICATION OF, AMENDING, FILING AND SERVING COMPLAINT. Verification of complaint. The party has his option in all cases to verify the complaint or not as he may choose. It is usual to do so, and it must be verified if he intends to use it as the basis of a motion for a provisional remedy, as for an injunction or receiver. If the complaint be not verified, or though verified, if the copy served do not contain a copy of the verification, including the jurat and name of the officer before whom it is sworn, the defendant may serve an unverified answer.* The Code prescribes the particular form of the verification in section 157, as follows : § 157. "The verification must be to theteflfect, that the same is true to the knowledge of the person making it except as to those matters stated on information and belief, and as to those matters he believes it to be true ; and must be by the affidavit of the party, or if there be several parties united in interest, and pleading together, by one at least of such parties acquainted with the facts, if such party be within the county where the attorney resides, and capable of making the affidavit. The affidavit may also be made by the agent or attorney, if the action or • 7 How., 423 ; affirmed in Court of Appeals, 2 Kern., 336. » Averill v. Taylor, 5 IIow., 478 ; Beale v. Hayes, 5 Sand., 640. ' Ibid., and see Van Sant. PI., 204, 367, 368. * Hughes V. Wood, 5 Duer, 603, note. VERIFICATION OF COMPLAINT. 109 defense be founded upon a written instrument for the payment of money only, and such instrument be in the possession of the agent or attorney, or if all the material allegations of the pleading be within the per- sonal knowledge of the agent or attorney. When the pleading is veri- fied by any other person than the party, he shall set forth in the affida- vit his knowledge, or the grounds of his belief on the subject, and the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof; and when the state or any officer thereof in its behalf is a party, the verification may be made by any person acquainted with the facts. The verification may be omitted when an admission of the truth of the allegation might subject the party to prosecution for felony. And no pleading can be used in a criminal prosecution against the party, as proof of a fact admitted or alleged in such pleading." The verification must be made by thfe party, except in certain cases above specified, when it may be made by the agent or attorney. When made by the party. The verification must be to the efiect that the complaint is true to his knowledge, except the matters, &c. ; a verification that it is substantially true is insufficient.' But it has been held sufficient to swear that " the complaint is true" without adding to the know- ledge, &c., of the person making it. ^ And where all the allega- tions of a complaint are upon information and belief, a verification by the party that "he believes it to be true" has been also held sufficient. ^ It is better, however, in all cases to follow the exact words of the statute ; and though the verification is required only to be to the effect that the same is true, &c., yet parties will not be permit- ted to evade the statute by reservations or qualifications of any kind. ' Waggoner v. Brown, 8 How., 212. ^ Southworth v. Curtis, 6 How., 271 ; Kincaid and wife v. Kipp, 1 Duer, 692. But see Tibballs v. Selfridge, 12 How., 64; also, Williams v. Kiel and Granger, 5 Duer, 600; 11 How., 375, holding the contrary. 3 Harnes v. Tripp, 4 Abbott, 232. But see Van Home v. Willis, 5 How., 238 ; Davis V. Potter, 4 How., 156, decided under the Code of 1849, before the amend- ments. 110 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. When several parties united in interest are plaintiffs, the complaint to be properly verified must be sworn to, either by all the plain- tiffs, or by one of them acquainted with the facts, if he be within the county where the attorney resides and capable of making the affidavit ; and the affidavit should show affirmatively that such party is acquainted with the facts. In such case if the material alliegations of the complaint are set forth on the information and belief of cZ^ the plaintiffs, the general form of verification by one of them would not be enough, but the affidavit of verification should be special, stating what knowledge he has or the grounds of his belief. When made by the agent or attorney the verification must in all cases set forth the reasons why it is not made by the party. ^ And the general rule is stated to be, that the person who makes the affidavit that the facts set forth in the pleading are true of his own knowledge, must state what knowledge he has on the subject? and when he states that he believes the facts alleged on informa- tion and belief to be true, he must state the grounds upon which his belief is founded ; and then in addition to this he must state why he makes the affidavit instead of the party. ^ The verification must specifically set forth the affiant's knowledge of each material fact, or the grounds of his belief. So far as he speaks of his own knowledge, he must state what that knowledge is ; and so far as he speaks on belief, he must state the sources of his information as well as the grounds of his belief. * Thus, an agent making the verification must show that his knowledge grew out of, or per- tained to, his business or trust. And the verification will be insufficient if it does not show that the agency has such a relation to the subject matter of the suit, or the matter in dispute, as would ordinarily bring all the material allegations within the agent's personal knowledge. It is not enough that the affiant states that he is more familiar with the matters in suit than the ' Fitch v. Bigelow, 5 How., 237 ; Van Home ». Willis, 5 How., 238. ' Meads i>. Gleason, 13 How., 309 ; .Treadwell v. Fassett, 10 How., 184 ; Hub- bard V. National Pro. Ins. Co., 11 How., 149, disapproving Smith v. Rosenthal!, 11 How., 442. 2 People V. Allen, 14 How., 334 ; Bank of State of Maine v. Buel, 14 How., 311. VERIFICATION OF COMPLAINT. Ill plaintiff. ^ The rule above indicated, that a person other than a party verifying a pleading must make a special verification — that is, must state what knowledge he has, &c., — holds good, even though none of the allegations in the pleading are stated to be on information and belief. ^ An affidavit by an attorney to a pleading that the same was true without adding to his own knowledge, was held insufficient, and an unverified answer properly served;^ but a verification stating that " his knowledge of all the material allegations, &c., was derived," instead of saying his information, &c., was held suffifient. ■* The absence of the party from the county is a sufficient reason for a verification by attorney, even though the action is not upon a written instrument, or the attorney have not personal know- ledge of all the material allegations. And if the party be within the county, it may still be verified by the attornej^ if the action be upon a written instrument in his possession, or if he have per- sonal knowledge of all the material allegations.^ In all cases, however, the foregoing rules, as to stating the sources of the deponent's knowledge or the grounds of his belief, should be followed. When an infant is a party, the verification may be made by his guardian. ^ Before whom taken. The affidavit to the verification may be taken before any officer authorized to administer an oath, if taken within the jurisdiction of such officer ; and, in case it is taken out of the state, it may be taken by commissioners of deeds specially appointed for that pur- pose.' But a complaint cannot be verified before the attorney of the party. Such a verification is a nullity, and if made to a complaint an unverified answer may be served, and if made to '■ Boston Locomotive "Works v. Wright, 15 How., 253. ^ Ibid. 3 Tibballs v. Seefridge, 12 How., 64. * Meads v. Gleason, 13 How., 309. 5 Stannard v. Mattice, 7 How., 4 ; Roscoe v. Maison, 7 How., 121 ; Lefevre v. Latson, 5 Sand., 650. But see Hunt v. Meachan, 6 How., 400, a decision before the amendments to this section. « Hill V. Thacter, 6 How., 407. ' Laws of 1850, chap. 270. 112 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. an answer, the plaintiff may return the answer and disregard it, or move to set it aside as irregular. ' When to be made. The verification is usually made to the complaint before service; though the court has allowed a pleading to be verified after it has been served on good cause shown. ^ But the verification to a complaint is no part of the pleading itself, and hence, if a com- plaint be actually served without a verification, the plaintiff cannot amend of course by serving the same pleading with a verification. If he does so, such subsequent service is a nullity, and may be disregarded. ' If any special circumstances arise after service to render it necessary or proper that the complaint should be verified, the plaintiff should obtain leave of the court to do so, on notice if after appearance, and ex parte if before. How subscribed and certified. The affidavit of verification must have a venue in the margin to show where it is taken. It must also be subscribed by the party, and the certificate or jurat signed by the officer, otherwise it will be defective. When taken before a commissioner of deeds, or other officer whose jurisdiction is limited to a particular place or county, the omission of the jurat is fatal and the affidavit a nullity ; * and such too would be the effect of omitting the signa ture of the party, or of the officer taking the affidavit. ^ But the mere omission of the date of the jurat was considered not to be a fatal objection. * And though a commissioner of deeds is required by law to state the place of his residence after his signature, the omission to do so will not vitiate the affidavit. How treated if defective. If the verification be defective in any of the foregoing respects, it does not vitiate the complaint itself, but the verification being a nullity, the complaint must be regarded as an unverified plead- ing. Even though the verification be in all respects correct, yet, ' Gilmore v. Ilempsted, 4 How., 153 ; Anon-., 4 How., 290. '^ Bragg V. Bickford, 4 How., 21. 3 George v McAvoy, 1 Code R., N. S., 318. * Lane v. Jlorse, 6 How., 394. ^ Liambeer v. Allen, 2 Sand., 648 ; Grahani v. McOoun, 5 How., 353. ° Schoolcraft v. Thompson, 7 How., 446. VEEIFICATION OF COMPLAINT. 113 if the copy served be defective, either in omitting the venue, the signature of the party, officer, &c., the opposite party may treat the verification as a nullity ; for a defendant has a right to con- sider the complaint served on him as the one he is required to answer. * Amendment of complaint before appearance or answer. Any pleading may be once amended by the party, of course, without costs, and without prejudice to the proceedings already had, at any time before the period for answering it expires ; or it can be once amended, &c., after answer, as prescribed by the Code. ^ We notice here only such amendments as are made before answer. An amendment of course, before answer, to a complaint, may be such as to make the pleading pretty much as the party wishes it, with one important exception or restriction, namely, the amendment must not be such as necessarily to require an amend- ment of, or to make the complaint a departure from, the sum- mons ; because the summons being process, can only be amended by the court. ^ Thus, as we have already seen, if a plaintiff wish to add, or strike out, or change the names of parties to the sum- mons, even before appearance, he must apply to the court ; and the same rule is applicable to a complaint ; it cannot be done by amendment of course. * So too, where the summons is that the plaintiff will take judgment for a certain sum, and the complaint is framed for that kind of action, it cannot be amended of course by asking equitable relief ; ^ because the summons must control the complaint, and if the complaint do not conform to the sum- mons in the kind of relief demanded, it (the complaint) will be irregular, and will be set aside on motion. ° Such an amendment, therefore, would involve an amendment of the summons, which can only be made by the court, ' on notice to the adverse party after appearance, and ex parte before. • Trowbridge v. Didier, 3 Duer, 448. ^ Code, § 172. 3 Code, § 173. ' Kussell V. Spear, 5 How., 142 ; Billings v. Baker, 6 Abbott, 214. * Gray v. Brown and wife, 15 How., 556. ' Shafer, Receiver, v. Humphrey, 15 How., 565. ' Ibid. V. S. 15 114 FUETHEE PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. On the same principle where the summons demands relief, and the complaint is for an equitable action, it cannot be amended of course by substituting for it a cause of action on a money demand. In that case, however, such a cause of action, if it can properly be joined in the same suit, may be added by amendment. So too, within the above restrictions, the complaint may be amended, of course, before answer, by changing the cause of action, or by increasing the damages, or in any other way consist- tent with the summons, and which will not require an alteration or amendment of it ; for a liberal view of amendments is now the prevailing doctrine of the courts. > It has been said, however, that a party cannot amend by introducing a substantially new cause of action without the express leave of the court ; ^ nor by adding allegations which have occurred subsequent to the com- mencement of the suit;^ nor by changing the place of trial.* Amendment, when may he made. The amendment of course may be made at any time before the period for answering the pleading expires. If the complaint has been served personally, the amendment may be made within twenty, and if by mail, within forty, days ; and no proceedings on the part of the defendant can prejudice the plaintiff's right to amend within the time allowed him. ^ He can, however, amend only once as a matter of course, and if he wish to make a second amendment, he must apply to the court for leave. * 1 Troy and Boston R. R. Co. v. Tibbetts, 11 How., 168 ; Prindle v. Aldrich, 13 How., 466 ; Beardsley v. Stover, 7 How., 294. ^ HolUster v. Livingston, 9 How., 140 ; Field v. Morse, 8 How., 47. But see Getty V. Hudson River Railroad Co., 6 How., 269. ^ Such allegations must be introduced by supplemental complaint. (Hornfager V. Hornfager, 6 How., 13.) ^ Hasbrouck v. McAdam, 3 Code R., 39. Such amendments, however, have been common in practice, as under the old system. (7 Cow., 164.) Where the summons has been served without any copy complaint, in which case it is required to state where the complaint will be filed, it is probably the more correct prac- tice, if a plaintiff desires to amend by changing the place of trial, to obtain leave of the court to do so, inasmuch as such an amendment may in some sense be said to require an alteration of the summons. = 1 WhitPr., 337, 338, and cases there cited. " White V. Mayor, &c., of New York, 14 How., 495 ; 6 Duer, 685 ; Jeroliman V. Cohen, 1 Duer, 631. AMENDMENT OF COMPLAINT. 115 Restrictions upon right to amend. But the power to amend extends only to cases where the pro- ceedings have been regular, and a party cannot amend a defective pleading, of course, and without costs, after notice of a motion to correct the same in regard to such irregularity. ^ An amendment, as has been already noticed, cannot be made by serving the same pleading verified in place of the original not verified. Nor must it be made for the purpose of delay. ^ When a verified pleading is amended, the plaintiff, if he desire a verified answer, or if he intends to move on it for an injunction, &c., must also verify his amended pleading ; for the latter takes the place of and supersedes the former. Service of amended complaint. A copy of the amended complaint must be served upon the opposite party ; but if, in the meantime, he has appeared by attorney, the service must be upon the attorney and not the party, and if made upon the party it is irregular. ■* The defendant has the same length of time to answer as from the service of the original. And when a complaint and summons have been amended by order as to parties, even by adding merely nominal parties, the process and amended complaint must both be served on such parties, otherwise no regular judgment can be entered. ^ Filing complaint. Though the Code directs the several pleadings, &c., in an action to be filed within ten days after the service thereof, ^ and the new rule of court requires the respective clerks to keep a book in which, under the titles of all civil actions and special proceedings, entries are to be made denoting the papers filed, orders made, &c., '' yet these provisions are in practice commonly disregarded. The penalty provided for not filing is merely that a party shall be compelled to file after service of an order, obtained without notice, by the opposite party. ' After he shall have so filed the plead- ' 1 Whit. Pr., 340. ^ Code, § 172; Cooper v. Jones, 4 Sand. S. C. R., ' Seneca County Bank v. Garlinghouse, 4 How., 174. * Mercer v. Pearlstone, 7 Abbott, 325. * Akin V. Albany Northern Railroad Co., 14 How., 337. « Code, § 416. '' Sup. Court, Rule 9. » Code, § 416. 116 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. ing, he need not in turn notify the party obtaining the order thereof. ' There are two cases, however, in which the complaint is required to be filed, namely, first, where the service of summons is by publication ; and second, where notice of lis pendens is also filed. An omission to do so will afiect the regularity of the proceedings. But this subject has been heretofore considered.^ Serving complaint. We have already spoken of the service of the summons. * The complaint may in all cases be served with the summons, where the service is personal, in which case nothing further need be said in this place. If the service of summons is made by publication, the complaint, as we have seen, must be first filed, and a copy of the complaint must be mailed pursuant to the order of publica- tion. The defendant has twenty days to answer after the expira- tion of the full six weeks (or longer if the order so direct), required for publication. Or the plaintiff may expedite the proceedings by making personal service out of the state, in which case an order of publication must first be obtained, though actual publi- cation need not be made ; and the defendant will have only twenty days to answer after such personal service.'* After service by publication the defendant cannot, of course, demand a copy of the complaint, and have twenty days to answer after such service.^ Service after notice of appearance and demand of complaint. If the complaint has not been served with the summons, the plaintiif may apply for his judgment at the proper time, without serving any notice or copy complaint upon the defendant, ^ unless within twenty days the defendant, in person or by attorney, sei-ves a notice of appearance and demand of a copy complaint, specify- ing a place within the state where such service may be made. ' If such notice and demand have been personally served on the plaintiff's attorney, a copy of the complaint must be served ' Douoy r Hoyt, 1 Code R., N. S., 286. ^ Ante, pages § 40, 41. 3 Ante, pages 42-47. < Djkers v. Woodward, 7 How., 313. ^ Mackay v. Laidlaw, 13 How., 129. • Bngs V. Overing, 2 Code E., 79 ; Bennett v. Delicker, 3 Code R., 117. "< Code, § 130. SERVICE OF COMPLAINT. 117 within twenty days thereafter. If, however, the notice has been served by mail, the plaintiff's attorney will have forty days. ^ The copy complaint must be served personally, or in the manner prescribed in section 409 of the Code, unless the person making the service, and the person to be served, reside in different places, between which there is a regular communication by mail, in which case it may be by mail. ^ And the defendant in such case will have forty days from the time of mailing the complaint to put in his answer. By " the person making such service " is meant the party ( if he appear in person) or his attorney, and not an intermediate agent employed by the attorney ; and a service by such agent in a different town from which the attorney resides is not regular, or any service at all, except from the time the paper is actually received; the Code requires that there shall be a regular communi- cation by mail between the two places to make such service avail- able. * It may here be observed, generally, that service of a copy complaint, after notice of appearance and demand. Is governed in all respects by the rules which apply to the service of notices and other papers in an action which will hereafter be more fully considered. The service by mail, if otherwise in conformity with the statute and rules of court, is good, if made on the last day of service after the mail has closed. * Extension of time to serve complaint. The plaintiff, on showing by affidavit sufficient cause therefor, may obtain from a judge of the court, or a county judge, further time to furnish a copy of the complaint. ^ In such case the affida- vit, or a copy, must be served, with a copy of the order ; if not, the order may be disregarded, * though the order itself need not be entered with the clerk. ' The mode of service is the same as in case of service of other papers or orders in the suit. » Code, § 412. « Code, § 410. ' Schenck v. McKie, 4 How., 246 ; Peebles v. Rogers, 5 How., 208. * Ibid. Noble v. Trotter, 4 How., 322 ; Radcliffes. Van Benthuysen, 3 How., 67. « Littlefield v. Merwin, 2 Code R., 128 ; 4 How., 806. « Code, § 405. ' Savage v. Relyea, 3 How., 276. 118 FUKTHEE PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. But an order granting further time to serve the complaint can- not be granted ex 'parte, after the time for serving the complaint has expired, the defendant in such case must have notice of the motion or application for such order. ' The consequences of an omission to serve the complaint within the requisite time will be noticed hereafter when we come to treat of proceedings on the part of the defendant. Service wpon one or more hut not all the defendants. Where one or more, but not all, of several defendants have ap- peared, and demanded a copy of the complaint, it need be served only upon such as have appeared ; and where several appear by one attorney, only one copy of the complaint need be served. ^ la such case the application for judgment cannot be made until the time for answering the complaint has expired. Section 136 of the Code, which authorizes service to be made on one or more, and not on all, and the plaintiff to proceed against the defendant or defendants so served, seems properly applicable only to cases of contract in common law actions. In an action not founded on contract (as an action for a tort) where process is not served on all the defendants, those not served are not parties to the action. * In cases for equitable relief, none should be made parties who are not necessary to the relief sought, or to a final determination of the controversy, and all such should regularly be served vsdth process and brought before the court, in one of the modes before stated, before judgment is applied for ; and the court will not usually grant the relief until such parties have been brought in by service. * Partition cases, where there are owners unknown, may be an exception ; but that depends upon peculiar reasons, and is specially provided for by statute ; the mode of proceeding in such cases will be considered hereafter under that head. ' Stephens v. Moore, 4 Sand., 674. ' Where the demand is made by the same attorney on behalf of two or more several defendants, the copy complaint must be served within twenty days of service of the first demand. (Luce v. Trempert, 9 How., 212.) 3 Robinsons. Frost, 14 Barb., 536 ; McKenzie v. Haekstaff, 2E.B.SniithR.,75. * Powell V. Finch, 5 Duer, 666. INJUNCTION. 119 SECTION V. OBTAINING INJUNCTION OR OTHER PROVISIONAL REMEDY. It was observed in the first chapter of this work, that besides the ordinary routine of an equity cause, from its commencement to the joining of issue therein, and its final hearing, there are various interlocutory, or as they are called in the Code, provisional reme- dies, such as the issuing of a preliminary injunction, the appoint- ment of a receiver, &c., which are in many cases essential to a full and complete administration of equitable relief, or without which the remedy sought by the plaintiff would be inefiectual. A full consideration of this subject will be reserved for a subse- quent part of this work, and I will here merely glance, very briefly, at those equitable remedies of a provisional nature which may be resorted to by the plaintiff at the commencement of the action. Injunction by order. Though the writ of injunction, as used in Chancery proceed- ings, is abolished by the Code, and an injunction by order Is substituted therefor, ' yet the nature of this remedy remains sub- stantially the same. Its uses and character, the cases in which it may issue, the mode of obtaining it, and the practice thereon generally, will be fully considered hereafter. It is sufficient to remark here, that while it has been thought that the Code some- what enlarges the power of the court in granting preliminaiy injunctions, it cannot be construed to create new rights of action or give new remedies. ^ When may issue. The injunction may be granted at the time of commencing the action, or at any time afterwards. ^ Although the papers may be presented to the court or judge and the injunction allowed before the suit is actually commenced, either by service of the summons ' Code, § 218. "W oodworth v. Lyon, 5 How., 463 ; Marshall v. Peters, 12 How., 218 ; Bruce V. Delaware and Hudson Canal Co., 19 Barb., 371. 3 Code, § 220. 120 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. or delivery to the sheriff to be served ; yet an injunction cannot regularly be served before suit commenced. The usual practice is to serve the summons and injunction order, with the complaint and other papers on which it has been allowed, together. On what papers allowed. The injunction must be allowed on a complaint, or a complaint and affidavits, and cannot be allowed on affidavits alone without a complaint, or unless a complaint has been served or filed.' But an affidavit, it is said, which contains all the requisites of a com- plain^, may be treated as a complaint, i and used as the basis of an injunction order. ^ The complaint itself may be used alone as the foundation of an injunction order, if it is verified as to all the piaterial facts positively, as within the knowledge of the party making the veri- fication. ^ Otherwise it must be accompanied by affidavits verified positively ; as all the facts material to the right to an injunction must be supported either by the oath of the party to the com- plaint or of witnesses.* Who may grant injunction, and how granted and served. The injunction may be granted by " the court or by a judge thereof, or by a county judge." ^ The application for an injunc- tion order at the commencement of a suit is, of course, ex parte. These applications are often made in cases of pressing emergency when the immediate inteiference of the court is necessary, and there is no time for notice. Nevertheless, although the court may. grant the order at once, yet, especially in cases of importance or doubt, it usually provides for giving the opposite party a notice by means of an order to show cause, that is an order requiring the defendant to appear before the court, or before the judge granting the order (if made by a judge out of court), at a time and place specified, and show cause why a preliminary injunction should ' The People v. N. Y. Com. Pleas, 3 Abbott, 181 ; Badger v. Wagstaff 11 How., 562. * Morgan v. Quackenbush, 22 Barb., 76. ' Woodruff V. Fisher, 17 Barb., 229 ; Penfield v. White, 8 How., 87 ; Minor v. Terry, 6 How., 208. . * Same cases; also Crocker v. Baker, 3 Abbolt, 182; Livingston v. Bank of New York, 26 Barb., 304. « Code, § 218. INJUNCTION. 121 not be allowed, and that the defendant in the meantime, until the hearing of the motion, be enjoined. This is the most usual order in such cases, and has the double advantage of protecting the plaintiff's rights in case of emergency, and of giving the defendant an opportunity to be heard. The order may be granted " by the court " — that is, generally, by the court at special term, unless when otherwise directed bylaw.' Or, it may be made by " a judge of the court," — that is by any j udge of the Supreme Court, out of court, and in any part of the state. Or, he may make an order to show cause, returnable before himself, out of court, and the motion on the return of the order is to be heard at chambers, and the order granted with the like effect as at special term. Or, it may be made by "a county judge ;" but such order can only be made in actions triable in his county, or in the county where the attorney for the moving party resides, ^ and in cases where he is not restricted by section 224 of the Code. The form and contents of the order, and the manner in which it is applied for and granted, will be more fully considered here- after in a subsequent part of this work. An absolute preliminary injunction, and an order to show cause, if allowed by the court, are both of them drawn up in the ordinary form of special term orders with the usual caption, "At a special term of the Supreme Court," &c. If granted in the same county where the action is triable, they are filed and entered with the clerk; or, if granted in another county, they are certified by the clerk to the county where the action is triable, and there filed and entered, and a cer- tified copy served on the party to be restrained. Such service of a certified copy is good without showing the original. ^ ' If the order is granted by a judge, it is regular, without any caption, and is simply entitled in the cause and signed by the judge at the foot of the order. In such case it is not necessary to file the injunction or affidavits, or the complaint, unless the plaintiff is compelled to do so by an order of the court. ' Kule Sup. Court, 40, " Code, i 401, as amended in 1858 and in 1859 ; Ctiubbuck ti. Morrison, 6 How., 307. ^ Mayor, &c., v. ConoTer, 5 Abbott, 244. V. S. 16 122 FURTHER PROCEEDINGS BY PLAINTIFF BEFORE ANSWER. The service is made by delivering to, and leaving with, the defendant a copy of the order, and at the same time showing him the original with the signature of the judge attached thereto. This is necessary in order to found a proceeding against the party served for a contempt in disobeying the injunction.^ A copy of the affidavit must also be served, and this, of course, includes the complaint when it is used as an affidavit on which to obtain an injunction. If this is not done, it is an irregularity sufficient to set the injunction aside ; but it is not probably enough to authorize the defendant to disregard the injunction entirely.^ In discussing more fully the subject of the injunction in another part of this work, we shall have occasion to consider the practice on the motion to dissolve an inj unction, made on behalf of the defendant, as well as the proceedings on the part of the plaintiff in regard to the issuing and service of the order. Receivers. Another of these interlocutory remedies which the Code has provided for, and which was of frequent and essential use in Chan- cery practice, is the receiver, that is, according to the usual defi- nition, an indifferent person between the parties, appointed by the court to receive the rents, issues or profits of land or other pro- perty, or thing in question, pending the suit, where it does not seem reasonable to the court that either party should receive them. ^ While the Code does not undertake to define the nature and character of the office, or the powers and duties of a receiver, but leaves them precisely where they stood under the former practice, it yet defines generally the cases in which a receiver may be appointed. * Leaving this subject, however, for future considera- tion in the chapters devoted to the consideration of provi- sional and interlocutory remedies, I shall only remark here that the appointment of a receiver, unlike the granting of an injunction i^ only made by the court and not by a judge at ' Coddington v. Webb, 4 Sand., 439 ; Watson v. Fuller, 9 How., 426. " The People v. Sturteyant, 5 Seld., 277, 278 ; Penfleld v. White, 8 How., 87. ' Edw. on Receivers, 2. * Code, } 244. RECEIVER, NE EXEAT. 123 chambers; nor ♦sit ever, except under very special circumstances, made ex -parte on the commencement of a suit, or without notice to the adverse party. The practice now is believed to be the same as the former practice in equity, namely, that a receiver cannot be appointed without notice to the party interested except under peculiar circumstances, demanding immediate action, to be made to appear upon the papers upon which the application is made.^ Nor can he be appointed without an action com- menced ; ^ and it has been held, under the present practice, that an order to show cause why a receiver should not be appointed, served before the action is commenced, is irregular.^ Indeed, unless it clearly appears that there is danger to the property or fund either by the insolvency of the party having possession of it or from some other cause, the rule is that a receiver will not be, appointed before answer.^ Though when it appears by affidavit that the complainant has an equitable claim to the property in controversy, and that a receiver is necessary to preserve the pro- perty from loss, or that in other respects justice requires the appointment of a receiver before* answer, it will be made.® These cases, and the practice generally in regard to the appoint- ment of a receiver, will be considered in a subsequent chapter devoted to that subject. Ne exeat. The writ of ne exeat was an ordinary process of courts of equity, and a writ of right, as much as any other process used in the administration of justice. Its object was to prevent a person from leaving the state.® There has been some diversity of opinion as to whether the remedy has been preserved by the Code, although it has been more than once allowed. The nature and uses, and the practice in regard to the allowance, service, &c., of the ne exeat, will be considered in the chapter devoted to that subject under the head of provisional remedies. ' People V. Norton, 1 Paige, 17 ; Sandford v. Sinclair, 8 Paige, 373 ; 1 Barb. Oh. Pr., 669 ; Allen v. Harding, 4 How., 78 ; Dorr v. Noxon, 5 How., 29. « 1 Barb. Oh. Pr., 667. 3 Kattenstroth v. The Astor Bank, 2 Duer, 632. * West V. Swan, 3 Edw., 420. » Bloodgood V. Clark, 4 Paige, 577 ; 1 Barb. Ch. Pr., 667. « 1 Barb. Oh. Pr., 647. 124 JUDGMENT CHAPTER IV. JUDGMENT ON FAILURE TO ANSWER OR TO APPEAR ON THE TRIAL, AND JUDGMENT BT CONSENT. Bection I. Jddoment on failcrp to answer. IL JnDSMENT ON FAILURE TO APPEAR AT THE TRIAL. III. Judgment bt consent. Under the former equity practice, decrees might be taken yro confesso, that is, for want of " an appearance and answer," in which case the cause was brought to a hearing, as well as other causes, and the court pronounced the decree upon the pleadings ; ^ or, they might be taken by default, after answer and proofs, where the defendant did not, on the complainant's notice, appear at the hearing and furnish the necessary papers, in which case the court allowed the plaintiff to take what decree he chose, at his peril of not being al9le to support it by the pleadings and proofs, the decree being considered as thte act of the party, and not the judg- ment of the court. ^ The practice is somewhat modified by the Code, there being now no such thing properly as a decree by default. * The term ■ decree is not used in the Code, but the ^ovA judgment substituted, and a uniform mode is provided for obtaining a final judgment in actions both of an equitable and legal nature. Such judgment may now be obtained in actions of an equitable nature by appli- cation to the court, on a failure to answer, in a manner similar to the old method of obtaining a decree pro confesso, at the hearing ; and after answer, if the defendant fail to appear at the trial, on proof of notice of trial, and of the plaintiff's case, in the manner which will be presently noticed. This latter mode of obtaining a judgment properly belongs to a subsequent portion of this work, but as it is in some of its aspects connected with the practice of obtaining a judgment on default of an answer, it will be conve- > Rose V. Woodruff, 4 John. Ch. B., 547; Geary v. Sheridan, 8 Ves., 192. ' 1 Hoff. Ch. Pr., 557 ; 1 Barb. Ch. Pr., 323-372. 3 1 Monell Pr., 499. ON FAILUEE TO ANSWEE. 125 nient to treat it in this connection. The same may be said of a judgment by consent, or on the offer of the defendant. SECTION I. JUDGMENT ON FAILURE TO ANSWER. If the defendant do not answer within the prescribed time, after the service of the summons and complaint, or the summons alone, either personally or by publication, on all the defendants, is com- plete, the plaintiff is entitled to judgment on application to the court. Such application must always be made, and a judgment entered without it is irregular. ^ Ajiplication, where made. The rule ^ provides that the application may be made at any special term in the district embracing the county in which the action is triable, or in an adjoining county ; and such application may also be made at a circuit court in the county in which the action is triable. Special terms are usually held at the same time and place with a Circuit Court; in which cases, of course, the applica- tion may be made at any such Circuit Court and special term in the district, or in a county adjoining the county in which the action is triable ; ^ unless, perhaps in cases where the applica- tion is made on notice after defendant appears, and is "contested," in which case it will not be heard at a circuit and special term, except in the same county.* The application must be made to the court, that is at special term (or circuit when allowable), and cannot be made either at general term or to a judge at chambers.^ But in the first district motions may be made to a judge or justice sitting at chambers, who by the rules of that court, holds a special term at the same time for any ex parte business.^ » McNeff u. Short, 14 How., 463. ^ gup. Court, Rule 24. ^ Not in any county adjoining the district in which the action is triable ; Inglehart v. Johnston, 6 How., 80. < Sup. Court, Rule 40. = Aymar v. Chase, 12 Barb., 301 ; Ryan v. McCannell, 1 Sand., 709. * Voorhies' Code, 655. 126 JUDGMENT An application for judgment, on failure to answer, is no doubt a motion, as well as an application for judgment under section 247, which has been held to be a motion.^ The fifth of the New York Superior Court rules provide that non-enumerated motions will be heard daily by one of the justices at chambers, and under this rule it has been considered that an application for judgment may be there made. * The application for judgment in every description of equitable actions may be made as above, even those which are properly triable in another county ; as in an action for the foreclosure of a mortgage, such a judgment may be applied for and rendered in a county other than that in which the mortgaged premises are situated.' Application, how made. Where the defendant has not given notice of appearance, the application for relief is ex parte. The mode of application is pointed out in the second subdivision of section 246 of the Code. So much of that subdivision as refers to actions of an equitable nature, is as follows : " In other actions, the plaintiff may, upon like proof (namely, proof of the personal service of the summons, according to the provisions of section 130, and that no answer has been received), apply to the court, after the expiration of the time for answering, for the relief demanded in the complaint. If the taking of an account, or the proof of any fact, be neces- sary to enable the court to give judgment, or to carry the judg- ment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose." The same subdivision of the section also prescribes that, "If the defendant give notice of appearance in the action, before the expiration of the time for answering, he shall be entitled to eight days' notice of the time and place of application to the court for the relief demanded by the complaint." It may be observed here, that where no notice of appearance has been given, the plaintiff applying for judgment is not required ' Roberts v. Clark, 10 How., 415 ; see contra, Jones v. Bently, 4 How., 335 5 King V. Stafford, 5 How., 30 ; Anon. 1 Code R., 82. » Porter v. Lent, 2 Abbott, 115. ' La Farge v. Van Wagonen, 14 How., 54. ON FAILURE TO ANSWER. 127 to show that fact by affidavit or otherwise. The court will not in general inquire into it, but the plaintiff takes his judgment at his peril ; and should it turn out that notice of appearance has been served, and no notice of the application for judgment given, such judgment is irregular and will be set aside, on motion, with costs. The plaintiff, in moving for judgment, is in all cases under this subdivision ^ required to furnish proof to the court (which is made by affidavit) of " the personal service of the summons, according to the provisions of section 130, and that no answer has been received." This of course includes demurrer, and is usually and properly so stated in the affidavit ; for, if a defendant has interposed a demurrer, a judgment for failure to answer cannot regularly be entered against him. ^ This is all the proof on the plaintiff's part that is usually required on an application for judgment, except in special cases, regulated either by statute or the rules of the court ; as, for example, in an action to foreclose a mortgage where the plaintiff must show that notice of lis 'pendens has been filed, ^ or that some of the defendants (if such be the case), are absentees, &c., ^ so that the nature of the order of reference may be determined ; or, in actions for partition for a like reason, that there are infants, absentees, or unknown owners ; * or in an action for divorce for adultery or non-age, that the parties have not cohabited, &c., as prescribed by the rules of the court. ^ These special cases, how- ever, will be more fully considered under their respective titles in a subsequent part of this work. The plaintiff's affidavit should show service on all the defend- ants, for the court will not ordinarily, as has been already observed ^ in equity cases, render judgment against a portion only of the defendants where there are others who are necessary par- ' We are speaking, it will be recollected, of subdivision 2, which refers only to personal service. Subdivision 3, which will be presently noticed, refers to ser- vice by publidatien. ' Broadhead v. Broadhead, 4 How., 408. 3 Code, § 132; Sup. Court, Rule 71. ■■ Sup. Court, Rule 71. ' Sup. Court, Rule 78. « Sup. Court, Rules 86, 87. ' Ante, page 118. 128 JUDGMENT ties to a final determination. If, however, the plaintiff has named in his summons and complaint defendants who are not necessary- parties, or whose interest in the subject matter of the suit has terminated, he may, whether they have been summoned or not, on an affidavit showing their want of interest, or that their interest has ceased, move to strike them out, and having obtained an order to that effect, take his judgment against the residue of the defend- ants. Such motion may be made ex •parte, if none of the defendants have appeared ; or, if there has been an appearance, the notice of the application for relief should also contain a notice of the plain- tiff's intention to move to strike out such parties, with a copy of the affidavit intended to be read on the motion. The failure of the defendant to appear where the service has been personal, and where there are no infant defendants (for nothing can be taken against them by admission), is usually regarded by the court as sufficient proof of the facts stated in the complaint ; although the court has exercised the right to require further proof of the allegations in a complaint than such bare statements, or the mere affidavit thereto of the plaintiff's belief.^ But the practice seems to be that, ordinarily, a failure to answer by an adult after personal service, will be regarded as an admis- sion of the truth even of an unverified complaint. If proof of the service of the summons only is made, and the complaint has not been served, the court may, as it undoubtedly has the right to do, and perhaps ought to do, require on its own motion, further proof of the truth of the complaint. The judgment pronounced upon an equitable cause of action, thus admitted by failure to answer, is the judgment of the court. The court has not power to grant, and the plaintiff cannot obtain, greater relief than he shall have demanded.^ He may obtain much less, for he is by no means entitled as a matter of course to take his own judgment even in strict conformity to the prayer for relief in his complaint. The court grants him such a judgment as it considers the nature of the case, as disclosed by the com- plaint, requires. This is in strict accordance with the former ' Didier v. Warner, 1 Code, 42. 2 Code, § 275 ; Hurd v. Leavenworth, 1 Code R., N. S., 278. ON FAILURE TO ANSWER. 129 Chancery practice of taking a decree pro covfesso; and it may be useful here to glance briefly at the analogies of that practice, as it seems to me to be in this particular similar in all respects to the present. If the plaintiff appears to have any equity against the defend- ant, the court will decree accordingly ; and the plaintiff will not be permitted, on his own motion, to take such a decree as he thinks will stand. In one case where it appeared on the face of the bill that the complaint had no equity, the bill was dismissed.^ Such would undoubtedly be the practice now. Nor is it a matter of course to award costs in such a suit, although the complaint demands it. Costs in equity cases are in the discretion of the court. ^ Indeed, it seems, under the former practice, that they were not usually given in a decree 'pro confesso, unless the com- plainant's case presented so strong an equity against the defendant as to warrant it. Thus in one case, where a supplemental bill, brought against judgment creditors to have their several demands bound by the decree, was taken, fro confesso, and it appeared that the suit had become necessary by the unreasonable refusal of the defendants to comply with a plainly equitable request, the court decreed, inter alia, that they should pay the costs of the suit.^ In cases of this kind, under the present practice, where it is not apparent on the face of the complaint that the plaintiff would be entitled to costs (which are in the discretion of the court), the court has power to order a reference.* The language of the section of the Code under consideration is, that if "the taking of an account, or the proof of any fact, be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account, or hear the proof, or may, in its discretion, order a reference for that purpose." Many cases of an equitable nature will be found referable to this provision, in which the complaint itself, even though admitted, will not enable the court to render a final judgment ; or if it seek to wind up the affairs of a copartnership, or be filed by a trustee • Landon v. Ready, 1 Sim. & Stu., 44. ^ Code, § 306. ' Barrett v. Birmingham, 1 Irish Eq. R., 417 ; cited 1 Barb. Ch. Pr., 370. « Elmore v. Thomas, 7 Abbott, 70. V. S. 17 130 JUDGMENT or receiver for the settlement of his accounts, or the action be brought to call an executor, guardian or other trustee to account ; in these and similar cases it is necessary, if the court decline, as it usually does, to take the account, or hear proof of the fact, that an interlocutory order of reference ^ should be made to take and state such account, or take proof of such fact before final judg- ment. The proceedings upon such an order are the same as upon any other reference in the progress of a cause ;^ and will be hereafter considered. If the defendant has appeared, he must have the usual notice of the time and place of reference ; and the report of the referee being made, must be filed with the clerk (who makes a note of the day of filing, &c.), and notice thereof should be immediately given to the opposite party, ^ together with notice of confirmation and motion for final judgment. The court, on such report, and upon proof of service of notice, will grant final judgment if no exception has been taken to the report. In actions of foreclosure, it has been held regular for a plaintiff to obtain his order of reference to compute the amount due, and pro- ceed thereon forthwith, without any further notice to the opposite party, and having obtained a report, present it to the court on the same day and obtain final judgment.^ In an ordinary case of foreclosure, however, the whole amount being due, and there being no infants, or absentees, it can scarcely be necessary to have a reference, but the plaintifi" moving for judgment may show by affidavit the necessary facts that he has computed the amount, &c., or he may be sworn orally in court, and obtain judgment at once. The practice above indicated, it is conceived, is proper to be pursued in all other cases where a simple account is to be taken. ' Porter v. Lent, 2 Abbott, 115. = 1 Barb. Ch. Pr., 372. ^ See Rule 32 as amended in the revision of 1858, wbich requires reports of referees in references other than for the trial of issues to be filed, and a note thereof made by the clerk ; and which also provides that the report shall become absolute, and stand as in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of filing such report. A motion to confirm, therefore, does not seem to be absolutely necessary. Still the appli- cation for judgment must be made to the court. • Kelly V. Searing, 4 Abbott, 354. ON FAILURE TO ANSWER. 131 or any other fact ascertained, which may be necessary to enable the court to render judgment, or to carry the judgment into effect. ^ Should the court decline to hear the proof, it may be referred to a referee, and the account taken before him, or fact proved on the spot (an order of reference being for that purpose first obtained and filed with the clerk, if the place of trial be in the county where the application is made, or certified by him, if in another county), and the referee's report be presented to the court on the same day without further notice, the whole being considered as one proceeding on the application for judgment. On presenting such report, the court will allow the judgment (which the plaintiff's attorney should have already prepared), either with or without costs. The judgment, like the order of reference, and report thereon, if allowed in another county, will be certified by the clerk of the court where allowed, and entered with the clerk of the county where the action is triable. If costs are allowed, they can be taxed at once, and inserted by the clerk in the judgment. Where there has been an appearance, notice of the taxation must be given to the opposite attorney ; though in some cases the practice has prevailed of having the costs taxed and entered, and notice of re-taxation given, and the costs re-adjusted on such notice. ^ Application where service has been made by publication. Where the service has been made by publication, the proceed- ings on application for judgment are somewhat different. The papers on which the plaintiff moves, in addition to the affidavit that no demurrer or answer has been received, and the proof of filing notice of lis pendens, &c., as above, will consist of the order (or certified copy thereof) of publication, the affidavits of the printer, or his foreman or principal clerk, of the publication of ' In actions for divorce or separation by the 86th rule, the court must order a reference to take proof of "all the material facts charged in the complaint." This includes proof of the marriage and residence of the parties, as well as of the adultery charged. (9 Paige, 589 ; 3 Bdw. Oh. R., 377 ; 8 How., 298.) In a parti- tion suit the plaintiff is, in like manner, entitled, on default of an answer, to apply for the relief demanded ; and may have an order of reference to take proof of title, as required by the Revised Statutes, and as provided in Rules 78 and 79. 2 See cases cited, Voorhies' Code (5th ed.), 448 ; Toll v. Thomas, 15 How., 815. 132 JUDGMENT the summons for the requisite time, proof by affidavit of the filing of the complaint before publication, and of the service by mail of a copy on the defendant according to the requirements of the order. The affidavits must show that the requirements of the Code have been strictly complied vs^ith, or the judgment entered thereon vfill be void. ^ Nor vpill judgment be rendered without proof of the demand mentioned in the complaint; nor, if the defendant is a non-resident of the state, without an examination of the plaintiff, or his agent, on oath, respecting any payments that have been made to the plaintiff, or to any one for his use, on account of the demand. ^ It is competent for the court to take this proof in both cases, and it will do so where the case is very plain, and the proof simple ; and this is the better way, as it saves the expense, and sometimes delay, of a reference. A reference, however, is usually ordered, the proceedings on which are the same as in other cases, and the party may proceed at once to execute it, and move on the same day, on the report of the referee, for final judgment as above. It should be added that the plaintiff, in addition to his moving papers, above mentioned, should present an affidavit showing whether the defendant is a non-resident or not. If he be not, the order of reference need not contain the clause that the plaintiff or his agent be examined,^ but may be simply that the referee take proof of the allegations stated in the complaint, and report to the court. The proof so taken (other than that which is documentary), should regularly be annexed to the report of the referee, and the report be presented, and motion for final judgment upon it, made to the court.* If it appear by the affidavit that the defendant is a non-resident, the order of reference must then further direct the examination of the plaintiff or his agent to be taken, and such examination should 1 Kendall v. Washburn, 14 How., 380 ; Hallett v. Righters, 13 How., 43. 2 Code, § 246, sub. 2. ^ In a foreclosure case, if any of the defendants are " absentees" the rule (71) requires the plaintiff to be examined. The language of the rule in this respect differs from that of section 246 of the Code. ■■ Chapman v. Lemon and wife, 11 How., 239. ON FAILURE TO ANSWER. 133 also be annexed to the report of the referee. The judgment is then rendered by the court as in other cases of reference. In cases of foreclosure, or other cases where proof of amount due, or an account, or other fact is necessary, the order of refe- rence may contain a further provision to that effect. So, too, the order will be- in all respects similar where some of the defendants have been personally served, and some have been served by publication ; a single order may combine all that is necessary to bring before the court the requisite proof, and if there be but a single non-resident, no regular judgment can be taken against any of the defendants, until such proof is taken and the cause is in readiness for final judgment against all. There is no statute or rule of court requiring the referee to be sworn. He is generally an attorney, or other officer of the court, and no oath is usually administered to him. Until recently, too, it was the common practice to appoint a referee in foreclosure as in other cases on the nomination of the mo'vdng party, no one appearing to object, but this is nowprohibted in foreclosure cases by the new rules,' and it is also prohibited in references in divorce cases.^ The rule ^ requires the reference to be executed in the county in which the action is triable unless the court shall otherwise order. It has been seen that a very convenient practice in these cases of reference on failure to answer, is to have the order of reference drawn, the proof ready, the final judgment prepared, and to have the reference executed on the spot, whether the application is made in a county other than where the action is triable or not. In such cases the order of reference, to conform to the rule, should direct the reference to be executed in such other county, and this is usually the practice. Security may be required before judgment. The court is clothed with discretionary power, by the sec- tion of the Code under consideration, to require the plaip- tiff to cause to be filed satisfactory security, to abide the order of the court, touching the restitution of any estate or effects which may be directed by such judgment to be transferred or ■ Sup. Court, Rule 72. ^ Sup. Court, Rule 86. ^ gup, (jox\.vt, Rule 24. 134 JUDGMENT delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defense.^ The new rule of the court,^ virhich renders it obligatoiy upon the plaintiff, when the summons has been served by publication, to comply with this provision, by filing an undertaking with two sureties to be approved by the court, applies to " actions for the recovery of money only," and not to actions of an equitable character. In the latter class of actions it is still discretionary with the court to compel the security to be filed, and that discre- tion will be exercised according to the circumstances of each par- ticular case as it arises. Amplication for judgment on counterclaim. The amendment of 1858 to section 246 of the Code, providing that where the defendant by his answer does not deny the plain- tiff's claim, but merely sets up a counterclaim amounting to less than the plaintiff's claim, the plaintiff may, on admitting such counterclaim, take judgment for the excess, as in case of default for want of an answer, applies only to actions arising on contract for the payment of money only ; that is, common law actions. In actions of an equitable nature, where such partial counter- claim is set up, which the plaintiff is willing to admit, he cannot take judgment without application to the court; that is, without bringing the cause to hearing, or trial upon the pleadings, a pro- ceeding which will be considered in a subsequent chapter. And where matters are set up as a counterclaim which really do not constitute one, or constitute a bar to a recovery, then, on such application, the plaintiff should have judgment, notwithstanding such counterclaim, by reason of there being no reply, stands admitted on the record as true. ^ Code, § 246. » Sup. Court, Rule 25. ' Van Valen v. Lapham, 13 How., 243. ON FAILUEE TO ANSWER. 135 Of the entry and 'perfecting of the judgment, and making up judg- ment roll. The decision of the court having been obtained, and judgment pronounced, either on the original application and proof of the demand before the court, or after reference and report of the referee, such judgment, if obtained in a county other than where the roll is to be filed, must be verified, either by the allov^ance or allocatur of the judge, or the certificate of the clerk indorsed thereon, " allowed to be entered in county." The papers read on the application are also marked by the clerk, and certified to the county v^here the judgment is to be entered. The plain- tiff's attorney then causes such papers and judgment to be filed in the proper county, the judgment to be entered, and makes up the judgment roll. It has been observed, that vphere there is no appearance of the defendant, costs may be taxed immediately, and judgment per- fected, the clerk entering the amount of costs in the judgment, and signing it. If there has been an appearance, notice of the taxation of the costs must be given, or the costs taxed ex parte, and notice of re-adjustment given immediately, as in taxing costs in an ordinary litigated suit, which will be hereafter noticed. What the judgment roll must contain. Every judgment roll should contain the evidence within itself that the court has authority to render judgment, and that a judg- ment has in fact been rendered by the court. If it be a judgment by default, the roll must contain evidence that the summons was served, and that no answer has been received ; thus showing juris- diction over the defendant, and that he has waived his right to defend. ^ Especially where the summons is served by publication, the record must show jurisdiction on its face, as nothing can be intended on that point by implication.^ Thus, if the judgment roll do not show affirmatively that publication was made for the proper time, or that a complaint was first filed, or a summons in the form required was published for the time specified, or proof ' Thomas v. Tanner, 14 How., 426. » Hallett v. Righters, 13 How., 43. 136 JUDGMENT of service by mail, &c., &c., ^ jurisdiction will not be shown and the judgment is void; and so of any other material omission. ^ If the judgment is in rem, that is against the property, it should contain directions for enforcing the lien which it declares, and if it does not do this, the party in whose favor it is rendered is under the necessity of applying for such directions before he can proceed to enforce it by execution. The judgment must specify clearly the relief granted or other determination of the action.* Like an injunction, it should be complete and explicit in itself, and clearly to be understood with- out reference to the complaint or other pleadings. A judgment in foreclosure must contain the description and particular boundaries of the property to be sold, and is otherwise regulated by the 72d Rule of the court. To he entered in the judgment hook. It is provided by the Code that " the clerk shall keep, among the records of the court, a book for the entry of judgments to be called the "judgment book." ^ And "the judgment shall be entered in the judgment book, and shall specify clearly the relief granted, or other determination of the action.'"' The judgment is signed by the clerk and copied in full by him in the judgment book. If it direct, in whole or in part, the pay- ment of money, it may be docketed with the clerk of the county where it is entered, and in any other county, upon the filing with the clerk thereof a transcript of the original docket, and thereupon becomes a lien as prescribed by law. ^ How the judgment roll is made up and what it must contain. It is also provided by the Code as follows : " Unless the party or his attorney shall furnish a judgment roll, the clerk, immediately after entering the judgment, shall attach together and file the following papers, which shall constitute the judgment roll : > Hallett V. Righters, 13 How., 43. 2 Titus v. Relyea, 16 How., 371 ; Kendall v. Washburn, 14 How., 380 ; Bulkley v. Bulkley, 6 Abbott, 307. 3 Chapman v. Lemon, 11 How., 236. « Code, § 280. « Code, § 279. « Code, § 280. ' Code, § 282. ON FAILURE TO ANSWER. 137 "1. In case the complaint be not answered by any defendant, the] summons and complaint, or copies thereof, proof of service, and that no answer has been received, the report, if any, and a copy of the judgment. " 2. In all other cases, the summons, pleadings or copies there- of, and a copy of the judgment, with any .verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits and necessarily affecting the judgment." It is almost the invariable practice that the plaintiff's attorney makes up the judgment roll ; and, for that purpose, the clerk will furnish him the necessary papers which have been filed, to which he will add such as he may have in his own possession, not filed, or copies thereof. We have already spoken of the suffi- ciency of the judgment roll, and what papers it must contain to show a valid judgment. It may be added, however, that though subdivision 1 above, which applies to cases only where the com- plaint is not answered, specifies what the roll shall contain in such cases, yet it should really contain, in addition, all orders and papers "necessarily affecting the judgment," as required by sub- vision 2 ; as, if the summons have been amended by order of the court, or if parties be added or struck out, the order of amend- ment, or of adding or striking out, should be inserted, as well in cases of default as in other cases, otherwise the judgment appear- ing to vary from the original summons will show on the face of the record that it is irregular. The taxed bill of costs, and affidavits used upon taxation, notice of adjustment, and notice of application for judgment, the proof of the filing of lis pendens, &c., which are collateral merely to the judgment, and do not " necessarily affect " it, need not be inserted in the judgment roll, though they should be filed. ^ The provisions of the Code, regulating the mode of the entering judgment and filing the judgment roll, have been considered direc- 1 Schenectady and Saratoga Plank Road Co. v. Thatcher, 6 How., 226 ; Cook v, Dickerson, 1 Duer, 679 ; Kerrigan v. Roy, 10 How., 213 ; 2 Whit. Pr., 13. 18 138 JUDGMENT tory merely, and not imperative.* This, however, vrould seem to lead to a somewhat loose and unsafe practice. Thus, omitting to annex the summons and complaint to the judgment roll, it is said, is an irregularity only ; it does not pre- vent there being a judgment in the action. ^ On the other hand, it is held, that notwithstanding a judgment, absolute and final, shall have been directed by a judge, and the judgment so directed duly entered by the clerk, yet, until the papers which are to con- stitute the judgment roll shall have been attached and filed, and the judgment, evidenced by the roll so filed, has been regularly docketed, there is no judgment creating a lien on the lands of the debtor. ^ This is in efiect a similar practice to that which heretofore obtained in the Court of Chancery. The entry of the judgment by the clerk is the same as the entry of a decree in Chancery. The making up and filing of the judgment roll is similar to enrolling the decree in equity, and no doubt similar rules will be held to apply. Thus, until a decree was settled and entered, it was con- sidered as only inchoate, and neither party could have any benefit from the decision until that time. * And in some cases it might be entered nunc pro tunc, so as to relate back as of the day of the final hearing. ^ And such is still the practice. ^ It was considered as entered from the time it was left with the register or clerk for that purpose, although from a press of business it might not be actually copied into the book of minutes for some time after- wards ; and the practice in this respect also is the same. But, though after entry of the decree — that is, after leaving it with the clerk to be entered — the decree was considered as a final decree, and the court would treat it as the foundation for ulterior proceedings ; yet, it did not strictly become a record until enrolled. It might be altered by the court itself upon a rehear- ' Stimson v. Huggins, 9 How., 86. 2 Martin v. Kanouse, 2 Abbott, 393 ; Oalkins v. Parker, 21 Barb., 276. ^ Townshend v. Wesson, 4 Duer, 342. * Oban. Rule 98 ; Whitney v. Belden, 4 Paige, 140. s Campbell v. Mesier, 4 John. Oh. R., 348 ; Wood v. Keyes, 6 Paige, 478 ; Downe v. Lewis, 11 Ves., 601. ' Ehle V. Moyer, 8 How., 244. ON FAILURE TO ANSWER. 139 ing, and could not be pleaded in bar to another suit for the same matter, and the practice in this respect seems to be unchanged. Real estate directed to be sold under a decree, could not, by the rules of the court, ^ be sold until the decree was enrolled, though previous to that, and after entry of the decree, the master might give notice of sale. It was the enrolled decree only that was entitled in other courts to the attention that is paid by one court of record to the records of other courts of the same nature.^ The same is true of the judgment roll of the new practice ; for, it is only by the judgment roll that the jurisdiction of the court, upon which the validity and vitality of the judgment depend, is made to appear. If the judgment is to be used as evidence in the same court, a copy of it as entered, certified by the clerk, is sufficient. This subject will be again alluded to when I shall have occasion to speak of the judgment rendered on the trial or heat- ing of a cause, and the practice in settling, correcting and enter- ing the same. Docketing of judgment. If the judgment do not direct, in whole or in part, the pay- ment of money, it cannot, of course, be docketed.* If it does direct such payment, even though it be for specific relief only, and direct the payment of costs, the clerk, if the party or attorney request, will docket it in the book kept by him for that purpose, and make out one or more transcripts of the docket, which may be filed and docketed in any other county or counties, and such ' See as to amendments of judgment, Tidd v. Hawkhurst, 9 How., 75; Pica- bia V. Everard, 4 How., 113; Mann v. Brooks, 7 How., 449; Montgomery j). Ellis, 6 How., 326 ; Code, § 174. ^ Chan. Rule 111. And the actual making up and filing of a judgment roll is still held to be essential to the validity of a sale of lands under a judgment. (Townshend v. Wesson, 4 Duer, 542.) 3 1 Barb. Ch. Pr., 342 ; 2 Dan. Oh., 674. * It is said in D'Agreda v. Mantel (1 Abbott, 134), that the test of a right to docket a judgment, is whether there is a right to issue execution upon it imme- mediately, and, therefore, a judgment for the sale of real estate, and that the defendant pay any deficiency, cannot be docketed until such deficiency is ascer- tained. 140 JUDGMENT judgment thereupon becomes a lien on the real property of the judgment debtor in the county where so docketed. Section 282 of the Code provides for such docketing of the judgment, and specifies the lien thereby created, and directs how such lien shall be discharged on an appeal taken from the judgment. In the absence of the clerk, a deputy clerk may certify to a tran- script, and such transcipt will be good, although the fact of the clerk's absence is not shown upon its face. The law will presume it, and that the document has been duly issued.' In the case of a judgment docketed correctly as to the christian and surname of the defendant, but incorrectly as to the initial of his middle name, an amendment was allowed, and it was considered that the judgment retained its priority, as of the date of the original docketing.^. The date and order of a judgment lien is in all cases a question of time, depending on the day and hour when the judg- ment was docketed.^ But it has been held that a judgment will not be considered as fi.led before the hour of nine ia the morning, and no preference can be obtained by taking it to the clerk's office before that hour.* SECTION II. JUDGMENT ON PAILUKE TO APPEAR ON THE TEIAL. Though, as before remarked, the consideration of this subject properly belongs to a subsequent chapter, yet it may be conve- nient to glance at it in this place in connection with the judgment for want of an answer. Such a judgment is properly a judgment hij default, and is in some respects similar to the former decree by default at the hear- ing. There is, however, one very marked and perceptible differ- ence. Thus, under the former practice, a decree rendered by default, was not considered the judgment of the court, but the act of the party obtaining it ; and it was the constant practice of the court upon a default, to hear an affidavit of service of notice of 1 "Whit. Pr., 17 ; Miller «. Lewis, 4 Oomst., 264.. ^ Geller v. Hoyt, 7 How., 265. s Blydenburgh v. Northrop, 13 How., 289. < 10 Wend., 573. ON FAILURE TO APPEAR. 141 hearing read and tell the counsel to take his decree. ^ This was the most natural course of proceeding and arose from the peculiar practice of that court, in which causes were brought on for hearing on the pleadings and proofs taken out of court before an examiner. The party, therefore, in cases of default, took such a decree as he thought proper, at his peril of not being able to sustain it by- pleadings and proofs. This practice is no longer in force,, and in this respect a judg- ment by default is a very different thing from the old equity decree. Such judgment is the judgment of the court, and not the act of the party, and the plaintiff can only obtain it by proving his case. On default to appear at the trial, therefore, after notice, the practice is as follows : If the defendant have noticed the cause, and the plaintiff fail to appear, the defendant's counsel may read proof of his notice of trial, and take a judgment of dismissal of the complaint, with costs. This was precisely the course in equity on default made by the complainant. ^ If the plaintiff have noticed the cause for trial, and the defend- ant fail to appear, the plaintiff's counsel may read proof of service of his notice, and produce his witnesses to prove the material allegations in the complaint which are denied in the answer. Having established his right to relief by such proof, the case stands precisely the same as upon an application to the court on a complaint to which no demurrer or answer has been interposed, and which thereby stands admitted, and the subsequent proceed- ings are, with one exception, to be presently noticed, the same. As upon an application for judgment on failure to answer, if the taking of an account, or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account, or hear the proof, or may, in its discretion, order a reference for that purpose. The court, in ordinary cases, will hear the evidence, and render a final judgment on the whole case. But if the rights of the parties depend upon the examination, or stating, of a long and ' 1 HofF. Oh. Pr., 557 ; 1 Barb. Oh. Pr., 373. "- I Barb. Oh. Pr., 323. 142 JUDGMENT complicated account, as in actions between partners, or against trustees, &c., or upon ascertaining the existence and priority of specific or general liens upon real estate, and deducing title there- to, as in partition cases, &c., &c., a reference is almost a matter of course, and final judgment is in the meantime suspended. The proceedings are then the same as in cases where judgment is rendered on failure to answer, with the one exception already alluded to, namely, that the decision of the cpmt in all cases of default must be made in writing, and filed, as upon the actual trial of an issue of fact, ^ the proceedings in which will be here- after noticed. If no reference be ordered, and the decision disposes of the whole case, final judgment is entered upon such decision being filed. = If a reference has been ordered to take an account, &c., &c., an order of reference must be drawn and entered, stating specifically the matters referred to the referee ; and the decision, signed by the judge, containing all the points of the case actually passed upon and decided by him, must also be filed. The reference proceeds, on notice to the opposite party, in the same manner as the reference spoken of in the foregoing section. ^ On the coming in of the report, and filing the same, and notice to the opposite party, a motion is made to the court for final judgment, founded on the decision of the court on file, the order of reference, and the report of the referee, which stands confirmed, - unless exceptions thereto have been filed and served within eight days after service of notice of filing thereof. * Judgment is then, rendered and perfected in the same manner as in other cases of application to the court, which have been already considered in the preceding section. We shall, hereafter, have occasion to consider more fully the subject of the decision in writing, which the Code requires the court to make in cases of trial without a jury ; and the practice, consequent thereon, of ordering a reference to state an account, ' Code, § 267 ; Burger v. Baker, 4 Abbott, 13. * Schenectady and Saratoga Plankroad Co. v. Thatcher, 6 How., 226 ; Lynds v- Covenhoven, 4 How., 327 ; Thomas v. Tanner, 14 How., 426. ' Ante, page 132 * Rule 32. BY CONSENT. 143 or take proof of other facts not passed upon in the decision, the final judgment being in the meantime suspended. ^ If the defendant have set up a counterclaim, to which there is no reply, such counterclaim is deemed admitted, even though the defendant make default and fails to appear on the trial ; and the court, in the exercise of its admitted povsrer to dispose of the whole case, will render judgment for only so much of the cause of action as is not answered by the counterclaim ; but if the matter so set up do not really constitute a counterclaim, the court will disregard it. ^ SECTION m. JUDGMENT BY CONSENT. A decree in Chancery might be taken by consent, between parties competent to consent, and was binding unless procured by fraud. ^ It was usually made by consent of the counsel for the parties, who gave such consent upon their own conceptions of their authority, and the client was bound by the act of his counsel. ^ The court would not, however, in general, allow a decree by consent where infants were concerned, without referring it to a master to inquire whether it would be for their benefit ; yet, when once such a decree was pronounced, the infant was bound by it. ® And a decree for divorce, according to the rules of the court, could not be entered by consent. ^ This practice is no doubt, substantially, still in force. The decrees by consent, however, here spoken of, are such as are made by the court. By the new practice there is another kind of decree or judgment, by consent, which is entered without application to the court, '' and upon the written ofier of the defendant. Section 385 of the Code provides as follows : ' See post, Chap. 15. ^ Van Valen v. Lapham, 13 How., 246. » French v. Shotwell, 6 John. Oh. R., 564. * Bradish v. Gee, Amb., 229 ; Mole v. Smith, 1 Jac. and W., 673. ■= Wall V. Rushby, 1 Bro. C. C, 487. * Chan. Rule 170. And this is also prohibited by the present rules of the Supreme Court. See Rule 39. ■< Hill V. Northup, 9 How., 525. 144 JUDGMENT " The defendant may, at any time before the trial or verdict, serve upon the plaintiff an offer in writing, to allow judgment to be taken against him, for the sum or property, or to the effect therein specified, with costs. If the plaintiff accept the offer, and give notice thereof in writing, within ten days, he may file the summons, complaint and offer, with an affidavit of notice of acceptance ; and the clerk must thereupon enter judgment accord- ingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence ; and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's costs from the time of the offer." The offer may be made in every class of actions, equitable as well as legal, and like the old decree by consent, may be made by the attorney instead of the party ; and if the attorney acts without authority, his acts are nevertheless valid and the remedy of the party is against the attorney. ^ The offer when made should be distinct in its terms, and so plain that there can be no doubt, uncertainty, or misunderstanding about it. In equity actions, this is especially necessary, and it should point out very clearly and unmistakably the precise form and measure of relief that the defendant is willing to concede to the plaintiff. It has been likened, in its nature, to a pleading ; ^ and, when accepted, is said to stand as the decision of the court on the trial of an issue. ^ But an offer is held to be sufficient, if, by reference to the pleadings, it makes the amount easily ascertainable from them by the clerk, though it does not in terms specify the sum for which judgment is to be entered. * In cases of equity jurisdiction, how- ever, it is always advisable to make the offer sufficiently specific to enable the plaintiff to understand from it, without reference to the pleadings, the kind, nature and extent of the relief, and the form of the judgment, which the defendant is willing the plaintiff should take. ' Blodgett V. Conklin, 9 How., 442 ; Sterne v. Bentley, 3 How., 331. 2 Post V. N. Y. Central R. R. Co., 12 How., 552. ^ Johnson v. Sagar, 10 How., 453. * Burnett v. Westfall, 15 How., 420. BY CONSENT. 145 The " offer " of the Code is a substitute, in common law actions, for the tender after suit brought provided by statute. Tender after suit brought, however, was confined to " actions at law," and had no application to suits in equity. Hence, in an action to foreclose a mortgage, the defendant cannot tender the amount due, and then pay the money into court and plead pay- ment. But he must make it in the form of an offer under the Code, to the plaintiff, to take judgment with costs ;^ nor will such a tender, or even an offer to take judgment, defeat the plaintiff's right to an extra allowance of costs in such cases, the costs in an equity suit being in the discretion of the court.^ When persons are sued jointly, the offer to allow judgment should be made by all or by the attorney representing all. Thus a judgment against two partners, upon an offer in writing made by oue, will be set aside as irregular, as against the other, unless there is evidence from which it may be inferred that he authorized or ratified the offer.^ And such judgment will not be allowed to stand against the other, even as security, where it appears to have been entered by collusion between the debtor offering and the plaintiff.* Practice in entering judgment. The offer having been made, the plaintiff cannot take any further steps in the suit if he intends to accept it ; and if he do he will not be allowed any further costs for such proceedings. ' If he accept, he will serve notice of acceptance, within ten days, on the defendant's attorney. He may thereupon proceed to have his costs taxed in the usual manner, and if the case admits, move for .his extra allowance on notice. The costs having been taxed, the plain- tiff's attorney makes affidavit of service of notice of acceptance, and enters judgment, without any further application to the court.* ' Thurston v. Marsh, 5 Abbott, 389. ^ The Connecticut River Banking Co. v. Voorhies, 3 Abbott, 174 ; N. Y. Fire In- surance Co. V. Burrcll, 9 How., 398 ; and see MeQuade v. N. Y. & Erie R. R, Co., 11 How., 434. 2 Binney v. Its Gal, 1 Abbott, 283. But see Lipman i>. Joel, 1 Code R., N. S., 161, n. ' Everson v. Gehrman, 1 Abbott, 167. = Hill «,, Northrop, 9 How., 526. V. S. 19 146 PROCEEDINGS BY DEFENDANT BEFORE ANSWER. No proof of service of summons or complaint, or that no answer has been received, is necessary to be filed, the oiFer for judgment being a sufficient appearance. The judgment roll will consist of the summons, complaint and offer (with answer or demurrer, if served, and any order affecting the judgment), together with the affidavit of service of notice of acceptance, and the final judg- ment. CHAPTER V. OF PROCEEDINGS ON THE PART OF THE DEFENDANT BEFORE ANSWER OR DEMURRER. Section I. Obtaining copy complaint, and motion to dismiss summons for omission to sbbt* COMPLAINT, AND TO SET ASIDE SUMMONS FOR OTHER IRREGDLARITT. II. Obtaining secdbitt for costs- III- Appointing guardian for infant defendant. IV. Offer of defendant to compromise. v. Inspection op writings and procuring production of books, papers or accounts. VI. Motion to correct pleading by striking out redundant or irrelevant matter, or TO make complaint more definite. VII. Motion to dissolve injunction or ne exeat. VIII. Obtaining further time to demur or answer. IX. Obtaining leave to answer after default. Certain preliminary steps are often necessary to be taken by the defendant before putting in his defense by the service of a demur- rer or answer. These will be considered in the present chapter. SECTIOlSr I. OBTAINING COPT COMPLAINT, AND MOTION TO DISMISS SUMMONS FOE OMIS- SION TO SERVE COMPLAINT OE TO SET ASIDE TOE OTHEE lEEEGtrLAEITT. The first step on the part of the defendant, if he intends to defend the suit, and the summons is regular, and has been regu- larly served, is to obtain a copy of the complaint, in case none has been served on him. OBTAINING COPY COMPLAINT. 147 Ajypearance, For this purpose, if an attorney be employed, he must, within twenty days after personal service of the summons, or twenty days after the expiration of the full time specified in the order of publi- cation, from the first publishing of the notice (in case service has been made that way) serve a notice in writing that he appears for the defendants, or one or more of them, demanding that a copy of the complaint be served on him, at some place within the state to be specified in the notice. A copy of the complaint must thereupon be served accordingly within twenty days, if the notice has been personally served, or forty, if by mail. ^ If the defendant choose, he may serve notice of appearance merely, without demand of a copy complaint. This will entitle him to notice of the application for judgment (which may then be made "by plaintiff at the expiration of the twenty days), and of every subsequent step taken in the suit. Effect of notice of a'ppearance. A notice of appearance, and even a mere constructive notice of appearance, as by signing a notice of motion to set aside a sum- mons, without limiting it to an appearance for the purposes of the motion only, is a waiver of all irregularity in the process or plead- ing served, up to the time of service of notice. But if notice of appearance has been given on the service of the summons alone, it is no waiver of an irregularity in the complaint subsequently served ; as, for example, if such complaint do not conform to the summons, or be otherwise irregular. This subject has been already sufficiently considered, and the recent practice cases cited, in another part of this volume. ^ Defendant's course if no complaint be served. If the plaintiff does not serve a copy complaint within the time required, after demand for that purpose, and no order to en- large the time have been served on defendant's attorney, the de- fendant may move for an order dismissing the summons and for judgment.* •Code, §§130,412. * Ante pages 34, 35. See Shafer, Receiver, v. Humphrey, 15 How., 564. » Monell's Pr. (2d ed.), 508 ; Littlefield v. Merwin, 4 How., 306. 148 PEOCEEDINGS BY DEFENDANT BEFORE ANSWER. The motion is made upon an affidavit, showing the time when the summons was served, the time of service of demand of copy com- plaint (with the notice annexed), and that no complaint has been served. The movingpapers should also show, either by annexingthe copy summons, or otherwise, in what county the action is triable. This is necessary, in order to show the court that the motion is made in the proper county ; it being allowed to be brought on in the district, or county adjoining the district, in which the summons states the complaint will be filed, which will be presumed, for the purposes of the motion, to be the county where the action is triable.^ The motion is made, and order granted, and entered, as in other cases. Judgment of discontinuance is thereupon entered. And if the plaintifi" desire to obtain his costs, he must be careful to have them allowed in the order, the costs of an equity suit being, as we have seen, in the discretion of the court. Motion to dismiss summons for irregularity. If the summons, or service of it, be not in accordance with the statute, it is a mere nullity, and no motion to dismiss or set aside is necessary ; as where it contains no name of any plaintiff, or defendant, or demand for relief, or specifies no place where the answer may be served, or is defective in any other of the requi- sites of the Code. Or where the service has been made by leaving a copy at defendant's residence, no order of substituted service having been obtained. In all cases of this nature, a judgment entered on such defective service is an absolute nullity, the court having acquired no jurisdiction, and such judgment, if entered, will be set aside at any time on motion ; though the defendant may, if he prefer that course, treat it as a mere irregularity, and move to set the summons aside. Where, however, the summons or service is not absolutely in violation of the requirement of the statute, but only of some rule, or of the established practice of the court, then it is not a nullity, but a mere irregularity, which must be taken advantage of by motion to set aside, or the objection will be held to be waived. ' Johnston v, Bryan, 1 Code R., N. S., 46. IRREGULARITY IN COMPLAINT. 149 Motion to set aside complaint for irregularity. The same remarks are applicable where the defect is in the summons, and the summons and complaint have been served together. If, however, a valid summons have been properly ■ served, and the defendant has given notice of appearance, and a subsequent irregular complaint be served, the motion should not be to dismiss the suit, and for judgment, but only to set aside the complaint for the irregularity, with costs. Where the summons and complaint are served together and the irregularity consists in the complaint only, this also would seem to be the pi'oper form of the order, rather than to set aside both and dismiss the suit. ' Iq a case where the statute of limitations would run against the demand, the court would no doubt set aside the complaint only with leave to amend, leaving the summons to stand ; or, even if the irregularity was in the summons, would allow it to be amended on payment of costs. Irregularity, when waived. We have seen that a mere constructive notice of appearance is considered as a waiver of an irregularity in the process. But it seems-there are cases where a general notice of appearance is not a waiver of irregularities, as where a summons and complaint are served together, the complaint, not being in conformity with the summons, and a general notice of appearance is given, it is held that a motion may still be made to set aside the complaint for the irregularity. ^ "An appearance, it is said, admits the regularity of the summons and its service — the process which brings the defend- ant into court — but does not admit the identity of the cause of action indicated by the summons with that set out in the com- plaint, although both are served together. The complaint, although drawn and served with the summons, is in order, and in legal con- templation a subsequent step in the procedure ; ^ and the summons controlling the complaint, the irregularity is in the latter. '' ' Shafer, Receiver, v. Humphrey, 15 How., 564 ; Ridder v. Whitlock, 12 How., 208 ; Boington v. Lapham, 14 How., 360 ; Allen v. Allen, 14 How., 248. 2 Tuttle V. Smith, 14 How., 395. But see Voorhies v. Schofleld, 7 How., 51 ; Webb V. Mott, 6 How., 439. 3 Tuttle V. Smith, 14 How., 395. * Shafer, Receiver, v. Humphrey, 15 How., 564 ; Boington v. Lapham, 14 How., 360 ; Allen v. Allen, 14 How., 248. 150 PROCEEDINGS BY DEFENDANT BEFORE ANSWER. A party retaining and acting upon a paper is held to waive any irregularity in the service of it. And the mere retaining a plead- ing, vpithout returning it, or notice of the defect for a period of twelve days, has been held a waiver of the irregularity of not marking it by folios as required by the rule. ^ Indeed a pleading defective merely in form, should always be immediately (on the same day) returned, or notice of the defect given and that the pleading will be disregarded, in order to enable the opposite party to correct it, or the party receiving it will be held to have waived the defect. ^ Motion to set aside for irregularity, how and when made. The motion to set aside a process or pleading for irregularity, is founded upon an afiBdavit, showing the irregularity complained of, the time of the service, and that defendant has taken no steps in the action since the service. A copy of the process, or plead- ing, may be annexed to the affidavit, or the notice of motion may specify that the motion will be made upon the affidavit served, and the proceedings and pleadings in the action, in which case it is always competent for the moving party to read them upon the argument if he wishes. The notice of motion must also point out the irregularity complained of.^ The motion must be made at the earliest opportunity, other- wise the party will be held to have waived the irregularity. He will not, however, be held guilty of laches in not moving at a special term connected with a circuit, and at which it is not cer- tain his motion can be heard.* The motion is made, and order allowed, and certified by the clerk, or filed, and entered, as in other cases of non-enumerated motions, which will be hereafter considered. ' Chatham Bank v. Van Vechten, 5 Duer, 628. ' 1 Whit. Pr., 334 ; and cases there cited. ' Supreme Court Rules, 39. < Reddy v. Wilson, 9 How., 34. SECURITY FOR COSTS. 151 SECTION II. OBTAINING SECUEITT FOE COSTS. In certain cases specified by statute, the defendant after he has appeared may, unless the plaintiff has already filed security for costs, compel him to give such security, before he can proceed any further with the suit. The provisions of the statute on the subject, and the cases in which security for costs may be required, have been already considered, on a former page,^ and i^ will be necessary "here only to notice the mode of procedure in obtaining the security. The defendant may present, on notice to the opposite party, at any special term, a petition, or affidavit, stating the commence- ment of the suit, that he has appeared therein, that the complain- ant is a non-resident, or other reason for giving security, and that no security has been filed. Thereupon he moves that the plaintifi" file security, within a limited time, or that the complaint be dismissed with costs, and that in the meantime, proceedings be stayed on the part of the , plaintiff, and that the sureties shall justify if objected to.^ The order when allowed must be entered with the clerk, and a copy served on the opposite attorney. The plaintifi" 's proceedings are thereupon stayed until security is filed ; and if the order be not complied with, within the time limited, the complaint will be dismissed with costs. But to obtain an order dismissing the bill, a special application must be made to the court upon an affidavit of service of a copy of the order, and that no security has been filed.^ The defendant waives an order for security for costs by putting the cause on the calendar. * The form of the security for costs, the filing of the bond, &c., have been already spoken of. * The plaintifi" must give notice of the filing of the bond, and the defendant may, within twenty days after such notice, except to ' Ante pages, 29-32. » 1 Barb. Ch. Pr., 102. 3 1 Barb. Ch. Pr., 102 j Massay v. Gillelan, 1 Paige, 644. * 2 Edw. Ch. R., 494. * « jnte, pages 31, 32. 152 PKOCEEDINGS BY DEFENDANT BEFORE ANSWEE. the sufficiency of the sureties by giving notice of such exception to the plaintiff's attorney; and within twenty days after such notice of exception, the sureties must justify, by an affidavit, that they are worth double the penalty of the bond over and above all debts ; of which affidavit a copy must be served on the defendant's attorney. This justification will operate to discharge the order staying proceedings. ' SECTioisr m. APPOINTING GUAEDIAN FOE INPANT DEFENDANT. No proceeding can be taken against an infant defendant until a guardian has been appointed for him, and such guardian may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge. ^ If a judgment is taken against an infant defendant by default, without the previous appointment of a guardian, it will be set aside, on motion, with costs. * The provision of the Code relative to the appointment of a guardian for an infant defendant is contained in the second sub- division of section 116, as follows : ♦' When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the appli- cation of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this state ; if he has none, then to the infant himself, if over fourteen years of age ; or if under that age, and within this state, to the person with whom such infant resides." This provision of the Code is sufficiently explicit, and with the forms of petition for appointment, consent of guardian, notice of application when necessary, order of appointment, &c., to be found in the form books, will constitute a proper guide in such cases, and no further comment can be necessary. ' 2 R. S. 650, § 6 ; 1 Barb. Ch. Pr., 104. » Code, § 115. ' Kellogg T. Klock, 2 Code R., 28. APPOINTING GUARDIAN, 153 It may be remarked, however, that this provision of the statute is intended for the benefit of the infant, to secure him the oppor- tunity of having a guardian of his own selection, by giving him twenty days after the service of the summons in which no one else can apply. After that time, though the plaintiff or any rela- tive or friend may make the application, yet the infant is still at liberty to apply himself at any time, until forestalled by such adverse application. ^ The 60th rule provides that no person shall be appointed guar- dian ad litem, either on the application of the infant or otherwise, unless he be the general guardian of such infant, or is fully com- petent to understand and protect the rights of the infant, and who has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of the adverse party. And no person shall be appointed such guardian who is not of sufficient ability to answer to the infant for any damage which may be sustained by his negligence, or misconduct in the defense or prosecution of the suit. The rule is not applicable in actions for the recovery of money only, or of specific real or personal property (that is in common law actions), but is in all cases for equitable relief. This rule (though it is said its restrictions as to the guardian being of necessity the general guardian of the infant, or a person ^ fully competent to understand and protect the rights of the infant, &c., are not applicable to the appointment of a guardian for an infant ^laintiS), should in all cases be strictly observed in apply- ing foi: the guardian of an infant defendant. The petition, therefore, should show not only the facts neces- sary for an appointment of a guardian, namely, the commence- ment and actual pendency of an action against the infant, the age of the infant, place of residence, &c., but also that the person proposed in the petition, or notice of motion (if notice have been given) has no interest adverse to the infant, is not connected in ' McConnell v. Adams, 1 Code K., N. S., 114. » The rule before the late revision (1858) required the appointment of " the general guat^ian of such infant or an attorney or officer of this court who is fully competent," &c. The words in italics are now omitted, though it is still usual in practice to appoint an attorney guardian. V, s. 20 154 PROCEEDINGS BY DEFENDANT BEFORE ANSWER. business with the attorney or counsel of the adverse party, and is of sufficient ability to answer for any damage. Or, the petition may be in the usual form, and these facts shown to the court on the application by affidavit or otherwise. The petition should also show (especially if the application is made by any other party to the suit) whether the infant has any general or testamentary guardian or not within the state. If the application be made by any other party to the suit, it is not usual to name any person for appointment in the petition ; for the appointment of a guardian ad litem for an infant defendant, upon the complainant's nomination, has been refused.^ It has, however, been customary in the notice of application served o;i the general guardian, or infant, to name some competent and responsi- ble attorney as the proposed guardian, and to state in the notice that the plaintiff would move for the appointment of the person so named, " or of such other competent and proper person as the court should approve." If no cause be shown against tfie person proposed, he will be appointed, on proof to the courts either in the petition, or by affidavits, of the matters required by the sixtieth rule. The written consent of the person proposed as guardian should be indorsed upon the petition, with proof, by affidavit, of the genuineness of the signature thereto. This is not necessary, how- ever, in the case of an attorney or officer of the court, of whose signature the court will take notice, and who by the rules of the court ^ are required to act as guardian whenever appointed! It is provided by the same rule, that it shall be the guardian's duty to examine into the circumstances of the case, so far as to enable him to make the proper defense, when necessary for the protec- tion of the rights of the infant, and he shall be entitled to such compensation for his services, as the court may deem reasonable. The foregoing practice, as regulated by the Code, it has been held, is not applicable to the case of the appointment of a guardian ad litem in a partition suit. This is still governed by ■ Knickerbocker v. De Freest, 2 Paige, 304 ; Grant v. Van Schoonhoven, 9 Paige, 225. ^ Supreme Court, Rule 61. APPOINTING GUARDIAN. 155 the provisions of the Revised Statutes on the subject of partition, by virtue of that section of the Code ' which makes the general provisions of the Statutes relating to actions concerning real pro- perty applicable to actions brought under the Code.^ The appointment of a guardian under the statu teifet'^ch cases differs from the appointment in all other cases in the foUov^ing particulars : 1st. Such appointment must be made by the court, and cannot be made by a judge.* 2d. It can be made' only on ten, instead of eight days' notice, served either on the minor, if he reside in the state, or his general guardian ; if he reside out of the state, so that no notice can be given, then the court will appoint the clerk, without security, such guardian. ^ 3d. A bond must be executed by the guardian before entering upon his duties, in such penalty and with such sureties as the court shall direct, to the people of this state, conditioned for the faithful discharge of the trust committed to such guardian, and to render a just and true account of his guardianship in all courts and places when there- unto required.^ The bond must be signed by the guardian, ad litem, himself. A bond by sureties on his behalf, in which he does not join, will not satisfy the statute. ^ But it may be amended by consent of the obligors, and on leave of the court. '' It must be approved and filed by the guardian " before entering upon the execution of his duties." But by the act of April 14th, 1852," the court or any judge thereof may, on application of any party to the suit or proceeding, at any time before judgment or decree in all cases, or after judgment or decree in cases of actual partition, authorize and direct the filing of a bond by such guardian. » Code, § 255. ' Lyle v. Smith, 13 How., 105. ^ Disbrow v. Folger, 5 Abbott, 53 ; Lyle v. Smith and others, 13 How., 105 ; and this applies equally to the appointment of the guardian of an infant plaintiff in a proceeding under the act of April 14th, 1852, and if not so appointed the proceedings are a nullity. * Varian v. Stevens, 2 Duer, 635 ; Minor et al. v. Betts, 7 Paige^ 596. = 2 B. S. (3d ed.), p. 412, §§ 2-4; Laws of 1833, p. 311. ^ Jennings v. Jennings, 2 Abbott, 6. ^ Shaw v. Lawrence, 14 How., 94. 8 Laws of 1852, ch. 277. 156 PEOCEEDINGS BY DEFENDANT BEFORE ANSWER. The Court of Appeals have recently held that this act is an en- abling, and not a restrictive one, and does not impair the power of a court of equity, having original jurisdiction, to amend an irregularity of this kind by ordering a bond to be filed after a judgment and sale, as well as on actual partition.^ The act of April, 1833,^ provides that when no suitable or disin- terested person shall voluntarily signify his consent, in writing, to be appointed guardian, and offer to give the security required by the Revised Statutes in cases of partition, it shall be the duty of the court, on the petition of the complainants, to appoint the register, assistant register, or either of the clerks, the guardian of such minor or minors, and dispense with the security. The office of register and assistant register being abolished, no one but the clerk can be appointed guardian without security ; and he may be so appointed when the infant is an absentee with- out any notice of the application to the infant, except the general published notice for him to appear and answer.^ The infant defendant, if over the age of fourteen, may petition for a guardian though no summons have been served on him, and though proof of his signature should regularly be made, and appear on the record, yet a judgment will not be held invalid by reason of such an omission, but it will be presumed that such proof was furnished.* SECTION IV. OFFER OF DEFENDAIiCT TO COMPEOMISE. Should the defendant be willing to concede to the plaintiff a part of the relief demanded in the complaint, he may terminate the action, and save himself from further costs, by serving upon the plaintiff's attorney an offer in writing to allow judgment to be taken against him to the effect specified in the offer, with costs, under section 385 of the Code. The proceedings in such cases ' Croghan et al. v. Livingston, 17 New York Rep., 218 ; overruling Jennings v. Jennings, 2 Abbott, 6. 2 Laws of 1833, 311. 2 Minor v. Betts, 7 Paige, 596 ; Varian v. Stevens, 2 Duer, 635. * Varian v. Stevens, 2 Duer, 635. OFFER TO COMPROMISE. 157 have been already considered,^ and very little remains to be added here. Such an offer should, of course, be made on behalf of all the defendants, for, as we have already observed, a judgment in an equity action cannot be severed, but must be entered against all the defendants who are necessary parties to the suit. One or more members of a partnership consisting of themselves and others, cannot by such offer, consent to the entry of a valid judgment against the firm;^ and a judgment so entered binds only the de- fendant making the offer.* Though costs do not follow as a matter of course in an equity suit, yet an offer by the defendant to allow judgment to be taken against him is not sufficient unless it be with costs. If the plain- tiff accept the offer and give notice of acceptance, he may there- upon have his costs taxed in the usual way, without any applica- tion to, or order of, the court, and enter the same in the judgment. Though a defendant against whom judgment is obtained for a less amount than he offered in writing to allow judgment to be taken against him, is entitled to costs from the time of the offer, yet, it is said, he is not entitled to an extra allowance.* It is doubtful, however, whether such rule will govern equity cases, where costs, including the extra allowance, are discretionary, and where an offer for judgment on the part of the defendant will not defeat the plaintiff's right to an extra allowance, in actions where such allowance is given by the Code.® The defendant is not to be in any way prejudiced by the making of the offer on his part, whether it be accepted or not. If not so accepted, it is to be deemed withdrawn and cannot be given in evidence.^ If the plaintiff rejects the offer, it has been held that although the defendant's answer admits that there is due the plaintiff the * Anie, pages 143, 144. * Binney v. Le Gal, 1 Abbott, 283 ; Everson v, Gehnnan, 1 Abbott, 167 ; Con- tra, Olwell V. McLaughlin, 10 Leg. Obs., 316. 3 16 How., 203. * McLees v. Avery, 3 Code R., 104 ; 4 How., 441. The Connecticut River Banking Oo. v. Voorhies, 3 Abbott, 389 ; N. T. Fire Ins. Co, V. Burrell, 9 How., 398. ' Code, § 385. 158 PROCEEDINGS BY DEFENDANT BEPOKE ANSWER. amount so offered, the court will not order the defendant, under section 244, to satisfy such amount. The effect of an offer of this kind upon the proceedings of the defendant is to preclude him from taking any steps on his own be half during the ten days, within which the plaintiff may elect to accept the offer.^ But an offer cannot tie up the plaintiff for the ten days, so as to deprive him of the right of going to trial, if his cause is regularly on the calendar and reached.^ The mode of proceeding in entering up the judgment, on an offer of defendant, and the form of the judgment have already been spoken of Where a complaint seeks to obtain the perform- ance of some specific act, such as the satisfaction of a mortgage, &c., the j udgment itself will provide for the mode of obtaining such performance. No motion to the court for an order compelling the performance of the act is necessary after judgment entered, on defendant's offer in such case; but the judgment is enforced the same as any other judgment in equitable cases, by proceedings as for contempt,^ vrhich will be considered in a subsequent part of this work. SECTION V. INSPECTION OF WEITINGS AND PEOCUEING PEODUCTION OF BOOKS, PAPERS AND ACCOUNTS, AND DEMAND OF PAETICULAES. The subject of compelling the production of books and papers to enable the plaintiff to frame his complaint has been already considered.^ Much of vrhat was there said is equally applicable to proceedings on the part of the defendant, to compel the plaintiff to produce books, &c., to enable him to draw his answer. It was observed that section 388 of the Code, which provides for the obtaining an inspection, or copies of books, papers, &c., relates rather to proceedings after issue, with the view of obtain- ing evidence material to the cause, and preparing for trial ; while the application to obtain such inspection with the view of enabling the plaintiff to draw his complaint, or the defendant to answer ' Walker v. Johnson, 8 John., 240. = Pomroy v. Hulin, 7 How., 161. 3 Fero V. Evra, 9 How., 148. * Ante, pages 55, et seq. PEOBUCTION OP BOOKS, PAPERS AOT) ACCOUNTS. 159 the plaintiff's pleading, rests upon the provisions of the Eevised Statutes, which are still in force ; ^ and upon the present rules of the Supreme Court.^ The second subdivision of the fourteenth rule provides that " the plaintiff may be compelled to make the like discovery of books, papers or documents v?hen the same shall be necessary to enable the defendant to answer any pleading of the defendant. This provision undoubtedly extends to all cases, those in actions of equitable as well as of common law origin. And in this respect the practice is now somewhat different from the former Chancery practice. For,, if a defendant in an equity suit, desired a discovery of books, &c., he was usually driven to file a cross-bill against the plaintiff to obtain it.^ And the order- ing of papers to be produced before answer was not common ; although, under special circumstances, and where the defendant made it appear that he could not answer fully without them, the court would not compel the defendant to answer untU within a given time after the production of the required documents.* The cases in which the production of books and papers will be ordered, and the practice upon such application, both on behalf of the plaintiff and the defendant, have been already so fully treated in a former part of this work * that no further considera- tion of the subject in this place is necessary. If the proceeding is under the statute and rules, to enable the party to prepare his pleading and not under the Code, it must be by petition, though, it is held, that the application may be so framed as to embrace both a discovery under the Code, and the produc- tion of papers under the statute and rules.® Care must be taken to haye the petition strictly conform to the rules and practice of the court as indicated on a former page, or the motion will fail. Thus, on an application to enable the defendant to draw his answer, where no fact was stated, showing how a discovery was necessary for that purpose, but the petition merely stated that with the aid of a discovery the defendant expected to be able to prove that the note, the cause of action, had been ' Gould V. McCarthy, 1 Kern., 575. ^ Ante, page 57. = Ante, page 57. ■• 1 Barb. Ch. Pr., 101. ^ Ante, pages 56, et seq. « Snell ». Clark, 7 How., 158. 160 PEOCEEDINGS BY DEFENDANT BEFORE ANSWER. paid, it was held that the petition was defective. > The mode of making the application, the form and effect of the order, the man- ner of enforcing it, and of obtaining the discovery, and the conse- quences of omitting to make such discovery when ordered, have also been pointed out. ^ Demand of 'particulars. It is provided by section 158 of the Code, that it shall not be necessary for a party to set forth in a pleading the items of an account therein alleged ; but he shall deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, which, if the pleading is verified, must be verified by his own oath, or that of his agent or attorney, if^ithin the personal knowledge of such agent or attorney, to the effect that he believes it to be true, or be precluded from giving evidence thereof. The court, or a judge thereof, or a county judge, may order a " further account " when the one delivered is defective ; and the court may in all cases order a bill of particulars of the claun of either party to be furnished. This provision of the Code is for the most part applicable to common law actions; for though by its terms it applies to all actions indiscriminately, yet the instances in which it may be properly resorted to in actions of an equitable nature are not frequent. Indeed, under the former practice, the Chancellor held that a defendant was not entitled to a bill of particulars of the complainant's demand, previous to putting in his answer, the forms of the Court of Chancery rendering a bill of particulars unnecessary. ^ This rule is no doubt changed, and the defendant is probably entitled to a copy of the items of an account when- ever the plaintiff seeks to recover upon it, or enforce it against the defendant, and alleges it in his complaint, either in an equity or common law action. But where from the nature of the action the knowledge of the facts on which the plaintift's claim rests, is more with the defendant than with the plaintiff, the latter will not be required to furnish a bill of particulars. * > Gelston v. Marshall, 6 How., 398 ; Staunton v. Del. Mut. Ins. Co., 2 Sand., 662. * Ante, pages 60-66. ^ Cornell v. Bostwick, 3 Paige, 160. * Young ti. De Mott, 1 Barb. S. 0. R., 30. MOTION TO CORRECT PLEADINGS. 161 It is very evident that there must be many cases of an equitable nature, where an account is alleged in the pleadings, in which it would be not only unnecessary for the defendant to have, but impracticable for the plaintiff to furnish, the items before answer; as where the object of the action is to take and state the plaintifif s account as trustee, &c., or to distribute a fund, or to wind up the affairs of a partnership, &c., &c. In these and similar cases no issue is properly to be formed in the pleadings, upon the account, or any item thereof, but the decree or order for an accounting is interlocutory ; and the plaintiff, upon the reference and before final judgment, rpust render and state his account under oath, and on notice to the defendant, who may come in and dispute the whole or any item thereof, the proceedings in which cases will be. hereafter more fully noticed. Still there are cases in equitable actions where the defendant, under this section of the Code, may rightfully demand the items of an account ; but I apprehend, they are mainly those in which such account is peculiarly within the knowledge of the plaintiff, and is claimed by him to be enforced by a personal judgment against the defendant, and may therefore be properly put in issue by the pleadings ; otherwise a demand for the items of an account, as a matter of course, is confined to common law actions. By the section of the Code above cited, " the court may in all cases order a bill of particulars of the claim of either party to be furnished." Should the defendant, therefore, deem a bill of items necessary for him before answer, if there is any doubt as to his being enti- tled to it, as a matter of course, the .better way is to apply at once to the court. The application will be in the usual form, on notice to the opposite attorney, and the motion will be founded on the complaint and an affidavit showing the necessity of the account being furnished to enable him to frame his answer, or prepare for the trial. SECTION VI. MOTION TO COEEECT THE PLEADINGS BY STEIKING OUT EEDUNDAIOr OE lEEELEVANT MATTER, OR MAKE C03IPLAINT MOEE DEFINITE. Another proceeding on the part of the defendant, before demur- rer or answer, may be his motion to strike out from the complaint V. s. 21 162 PEOCEEDINGS BY DEFENDANT BEFORE ANSWEE. any irrelevant or redundant matter, and his motion to correct it on the ground of its being so ''indefinite or uncertain" that the precise nature of the charge is not apparent. This is regulated by section 160 of the Code. The motion is required by the rules^ to be noticed, before demurring to or answering the pleading, and within twenty days from the service ; or, if the service be by mail, forty days. The motion may be made either by the defend- ant upon the plaintiff's complaint or reply, or by the plaintiff upon the defendant's answer. For the sake of greater conve- nience I shall briefly consider the whole subject of motions to correct the pleadings in this place. Former equity jirnctice. If a bill in Chancery contained statements or charges which were scandalous or impertinent, the defendant might except to them and have such matter expunged with costs. Scandal consists in the allegation of anything which is unbe- coming the dignity of the court to hear, or is contrary to good manners, or which charges some person with a crime not neces- sary to be shown in the cause. To which may be added that any unnecessary allegation bearing cruelly upon the moral character of an individual is also scandalous.^ Impertinence is the same kind of fault in pleadings in equity which surplusage is in common law pleadings. Taken in its largest sense, this includes the introduction of unnecessary matter of whatever description, and includes the admission of matter wholly foreign, as well as of matter, which though not wholly foreign, does not require to be stated, or which, if stated, should be stated with conciseness.^ Mere matters of evidence, matters of law, that is legal inferences or conclusions, or other things which the court officially notices, matters coming more properly from the other side, matters necessarily implied ; as well as unnecessary prolixity in the manner of statement, were all regarded as surplusage.^ The mode of correcting this defect in a bill in Chancery was for the defendant, before putting in his answer, to file and serve 1 Sup. Court, Eule 50. ' 1 Barb. Ch. Pr., 41. 2 Ibid. * Steph. PI., 432, 421. MOTION TO COREECT PLEADINGS. 163 on the opposite party his excepions in which he specified the par- ticular objections to the bill. If the complainant did not, -within the proper time, submit to the exceptions, the defendant caused them to be referred to an exception master, or Vice-Chancellor acting as such, who, upon examination, made his report thereon. If he reported the bill scandalous or impertinent, the report was filed, and when the same became absolute, the defendant had an order of course that the proper officer of the court expunge the scandalous or impertinent matter. Or, the plaintiff, if he objected to the decision of the master, and chose to bring the matter before the court, might, before the report became abso- lute, file his exceptions to the report, and thereupon have a hear- ing and decision by the court.' A similar course was pursued by the plaintiff in regard to the defendant's answer ; ^ but this prac- . tice being now obsolete, it is unnecessary to notice it further. Practice under the Code. The Code provides a simpler and more expeditious mode of procedure in such cases. A pleading defective in this respect is now corrected on motion to the court, and on notice to the oppo- site party, and'no reference is necessary or allowable. When motion must he made. Under the former practice exceptions for scandal or imperti- nence must be taken before the defendant answered, or submitted to answer by obtaining an order for further trial. If not so taken, the objection was deemed to be waived.^ The same rule has been recognized in the new practice, and an extension of time to answer, either by order or consent, held a waiver of all formal objections to the complaint, and a bar to a motion to strike out irrfelevant matter, unless the right is expressly reserved in the order giving further time. * And, as has been above noticed, by the rules of the court, the motion must not only be noticed before demurring or answering the pleading, but within tvyenty days from the service thereof. A consent for further time to answer, reserving leave to the defendant " to make such application as he shall be advised," has been held sufficient to authorize the motion.* » 1 .Barb. Ch. Pr., 101, 181, 193. ^ Bid, 204. " Ibid, 101. - Bowman v. Sheldon, 5 Sand. S. C. R., 657. ° Lackey v. Vanderbilt, 10 How., 155. 164 PROCEEDINGS BY DEFENDANT BEFORE AJfSWEE. But though it is necessary to make the motion within the time limited, it has been held unnecessary for the moving papers to show affirmatively that the motion is made in due time, that being a matter of defense to be set up by the adverse party. ^ The right to make the motion is waived by the moving party having taken any steps recognizing the sufficiency of the pleading, as by noticing the cause for trial, which is an admission that the pleading is sufficient to raise an issue, either of law or fact. ^ In what cases motion to strike out redundant and irrelevant matter may be made. It may be laid down as a general rule that a motion to strike out a part of a pleading, as redundant or irrelevant, is properly made only when such redundant or irrelevant matter is set forth in connection with matter which would otherwise constitute a good cause of action or defense. If the entire cause of action, or . the entire defense be insufficient, or be irrelevant, the objection should be taken by demurrer and not by motion to strike out under section 160 of the Code. This has been the constant prac- tice of the courts, and may be regarded as well settled. ^ The redundancy or irrelevant matter which the Code contem- plates, as matter to be struck out on motion, is precisely what would have been surplusage in pleading at law, or scandal or im- fertinence in an equity pleading.^ Hence, unnecessary prolixity of statement, mere matters of evidence, conclusions of law, mat- ters properly coming from the other side as well as matters wholly foreign to the controversy, may be considered irrelevant and redundant.^ Various general propositions have been suggested as proper tests to determine whether the matter of a pleading is redundant or irrelevant or not. In one case it is said that the true criterion, by which to judge of the allegation, is whether it " can be made ' Barber v. Bennett, 4 Sand., 705 ; Roosa v. Saugerties and "Woodstock Turn- pike Co., 8 How., 237. But see Rogers v. Rathbone, 6 How., 66. 2 Esmond v. Van Benschoten, 5 How., 44; 1 Whit. Pr., 354. ^ It is deemed unnecessary to cite autiiorities to this point. Most of them may be found in the note to section 160 in Voorhies' Code, and in 1 Whit. Pr.,p. 352. * Carpenter v. West, 5 How., 53. = Van Sant. PL, p. 310. MOTION TO CORRECT PLEADINGS. 165 the subject of a material issue.'" And again, whether it can be made " the subject of a material issue, or affect the question of an injunction, or costs, or other relief to be granted."^ In another and one of the earliest cases under the Code, the true test of the materiality of averments in a complaint is held to be " to inquire whether such averments tend to constitute a cause of action, or would, if taken as true, be material to the cause of action."^ And in another case it was thought that the rule to determine whether matter was relevant or not, was to be drawn from the consideration whether the matter had any bearing on the subject of the controversy and could affect the decision of the court.^ Each of these various definitions may perhaps be the subject of criticism, especially when applied to actions of an equitable nature, in which, while they are governed by the same general rules of pleading, a greater latitude of averment must necessarily be allowed, than in actions of strictly common law origin. For, as has been already observed in the chapter on the complaint,^ now as formerly in an equitable action, the complaint demanding a particular kind and measure of relief may properly state any facts which may be material in establishing the general allegations of the bill as a pleading, or in ascertaining and determining the nature and extent, or the kind of relief to which the plaintiff may be entitled, consistently with the case made by his complaint.® Hence, the rule recognized in the old Court of Chancery, by which to determine whether allegations in a pleading were impertinent or not, is perhaps as good an one as can be adopted, namely : to see whether the allegation " may be put in issue and tried," '' or, as stated by the Chancellor in another case,' the best test by which to ascer- tain whether the matter is impertinent is, " to try whether the subject of the allegation could be put in issue, and would be matter proper to be given in evidence between the parties." ' Williams v. Hayes, 5 How., 470. "^ Martin v. Kanous, 2 Abbott, 330. ^ IngersoU v. IngersoU, 1 Code R., 102. * Fabricotti v. Launitz, 3 Sand., 743. = Ante, pages 95, 96. ^ Hawley et al. v. Woolverton, 3 Paige, 522. ' Mechanics' Bank v. Levy, 3 Paige, 506. s Woods V. Morrill, 1 John. Oh. R., 106. 166 PROCEEDINGS BY DEFENDANT BEFORE ANSWER. This rule will let in all allegations of fact (not mere matters of evidence or legal inference), whether direct, or collateral, which may be properly proved and which when so proved may have a bearing in determining the kind and measure, and limit of the plaintiff's relief, whether that relief consist in determining the subject matter of the suit, in awarding final process for the en- forcement of the judgment, or in granting costs.' Thus, though mere collateral circumstances, exclusively bear- ing upon the granting of a provisional remedy, the appointment of a receiver or a temporary injunction, are redundant and irrelevant, yet where such remedy is sought as a part of the final relief, as, for example, if a final injunction be demanded, every collateral fact which may be proved by way of showing the plaintiff's right to it is properly pleadable.^ The same may be said with regard to the granting of costs which, in an equity action, are always in the discretion of the court, and which, when granted, are a part of the final relief, and are expressly allowed, and provided for, both in the decision of the court and the final judgment. Facts which are material to show the plaintiff entitled to this branch of his belief, and which the defendant may put in issue, are properly alleged in the pleading and will not be struck out as redundant.^ The true rule, especially in equity actions, is undoubtedly that laid down in Boot v. Foster,* which holds that matter in a com- plaint, though not essential to support a cause of action, is not irrelevant or redundant, if it be such as may be proved on the trial in support of the issue, and to this may be added the remark of the court in the same case, " it does not lie with the defendant to object that the complaint is more specific than the law requires, unless some established rule of pleading has been violated, such as the statement of evidence or the like." The same rule has been ' The decision in McGowan v. Morrow (3 Code R., 9), that an allegation in a partition suit that a party had unreasonably refused to make partition by deed, with a view to charge him with costs was irrelevant, does not seem to be in accordance with the equity practice. See on this subject anie, page 96. ' Putnam v. Putnam, 2 Code R., 64 ; Milliken v. Crary, 5 How., 572. ' Martin v. Kauvas, 2 Abbot, 330. * 9 How., 37. MOTION TO CORRECT PLEADINGS. 167 recognized in other cases, and I think that, under the present liberal practice of the court in regard to pleadings, it may be taken as a general rule in stating an equitable cause of action, or an equitable defense, that nothing will be deemed irrelevant which it would be material to prove on the trial,^ and that unless it is clear that the facts and circumstances alleged cannot properly be received such matter will be retained- until the trial.^ If the matter is such as will not embarrass the court or the opposite party, it is said, it will not be struck out.^ It is unnecessary here to enter upon a minute review of the various decisions made in particular cases in regard to striking out redundant or irrelevant matter. They will be found collated in the works on practice and in the valuable notes to Voorhies' Code. They serve, indeed, to indicate the general practice of the courts upon this subject, but yet, at the same time, each particu- lar case must be determined by its own facts ; and the courts, too, often exercise a wide discretion in retaining matter which upon strict principles might scarcely be considered relevant or perti- nent to the issue. For, though an error in striking out matter which is really material is reviewable on appeal, yet a refusal to strike out being a matter of discretion merely, is not appealable. * This discretion, as has been already observed, is exercised with greater liberality in considering the pleadings in an equitable action than is done in an action of a strict common law character ; for, while in the latter the issue is generally narrowed down to a single, certain and definite point, the proving or disproving of which is decisive of the action, in the former the plaintiff's right to relief may depend upon a variety of independent facts, or a chain of circumstances, which, taken together, constitute the plaintiff's case, no one of which separately is necessarily decisive of the case, or indispensable to tha plaintiff 's right to a judgment in some form. The subject has been already partially considered in the pre- ceding section, which treats of the complaint ; and it was there ' Hynds v. Griswold, 4 How., 70. But see Low this rule should be modified in its application to common law actions. Van Sant. PL, 315. = Follett V. Jewett, 11 Leg. Obs., 193. ^ Martin v. Kanouse, 2 Abbott, 330. * Bedell v. Stickles, 4 How., 432. 168 PROCEEDINGS BY DEFENDANT BEFORE ANSWER. observed that while considerable strictness has been practiced in some cases, mostly those of pleadings in common law actions, yet the general tendency of the decisions has been to discourage the practice of taking exceptions to trivial and unimportant alle- gations. 1 The court, in one case, observes that these motions are to be liberally construed, with a view to substantial justice between the parties. ^ Still, whatever liberality of construction may be adopted in regard to pleadings in actions for equitable relief, yet, the courts do not hesitate to strike out redundant matter, which either tends unnecessarily to encumber the record, or may lead to the intro- duction of improper evidence ; and in this respect the same rule prevails in equitable as in legal cases. ^ Thus, mere matters of evidence can no longer be set forth in a complaint — ^that is, the complaint cannot be used for the purpose of compelling an exami- nation of, or discovery of evidence from, the defendant.^ Nor is it allowable to set forth a series of pretenses and charges, as was customary in the old bill in Chancery ; but all such matters will be struck out as redundant, with costs.* So, where in an action seeking to set aside a deed for fraud, the plaintiff alleged various acts, conversations, omissions and intentions of the defendant, tending to show that he committed the fraudulent act for which he was prosecuted, they were all struck out, on the ground that, though each might have been relevant testimony on the trial, yet neither of them, nor all combined, were the fraudulent aci, com- plained of ;^ they were not facts, but matters of proof merely. So, undoubtedly, the court would strike from the pleadings useless and tedious repetitions, and copies at length of documents that were necessary to be referred to only by name, or brief descrip- tion, as tending to unnecessary prolixity. It may, in brief, be laid down as a general rule, that these motions may be properly made, and will be granted in equitable actions. Where, ' See ante, page 105, and cases there cited. ^ St. John V. Griffiths, 1 Abbott, 43. ' Howard v. Tiffany, 3 Sand. S. C. R., 695 ; Carpenter v. West, 5 How., 53. < Wooden v. Waffle, 6 How., 145. » Clark v. Harwood, 8 How., 470. ' Wooden v. Strew, 10 How., 48. MOTION TO COEEECT PLEADINGS. 169 1st. The opposite party may, in some respect, be aggrieved, should the redundant matter be allowed to stand, as where it may lead to the introduction of improper evidence, or the like ; and, 2d. Where the matter is needlessly prolix, or will tend to encumber the record. ' Motion to correct for uncertainty. Besides the motion to strike out redundant and irrelevant mat- ter, the same section of the Code (section 160), provides that, " when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment." The provision is applicable to the pleadings of the defendant as well as to those of the plaintiif. It furnishes both parties an additional remedy, and a more summary one than existed either in the practice of the common law, or the Chancery courts. In the former, the objection going to the form of the pleading could be taken only by special demurrer; in the latter, if the objection of want of certainty could be taken at all it was only to the answer, and in the formal way oi exceptions as heretofore noticed.^ Pleadings under our present, as under the former system, are required to be reasonably certain and clear in their general state- ments of facts. Thus time and place ought to be regularly inserted, even where not necessary to be strictly proved. And though if this be not done, the pleading is not necessarily bad, nor «an the objection be raised on demurrer ; yet, when the oppo- site party is charged with having done any particular act, which in his defense he will be called upon to disprove, he has generally the right to be informed of the alleged time and place, if the court can see that such information is necessary to enable him to meet and answer the charge. And this information he can obtain by compelling the opposite party to amend his pleading on motion.^ A familiar example is afibrded in the case of a complaint for divorce. It will not do to charge generally that the defendant " Van Sant. PI., 314, et seq. = Ante, pages 162, 163. ' The People, ex rel. Crane, v. Ryder, 2 Kern., 433 ; Martin v. Kanouse, 2 Abbott, 327 ; Clark v. Dales, 20 Barb., 42 j Graham v. Oamman, 13 How., 360. V. S. 22 170 PROCEEDINGS BY DEFENDANT BEFORE ANSWER. committed adultery at some place, with some person, within five years ; but the plaintifF must specify time, place and person, with reasonable certainty ; or he may be compelled to do so by motion to make the pleading more deiinite. The same is true of location, boundaries, quantity, &c. ; if the pleading fails to state these particulars with reasonable clearness and certainty, the court, under section 160 of the Code, will order it to be done on the motion of the adverse party, and perhaps with costs. The provision of the Code embraces all cases where the plead- ings are ambiguous or doubtful ia meaning, or where there is a re])ugnancy , that is, an inconsistency with other statements in the same pleading, or where they are uninteUigible by reason of the omission of material words, in all which cases, under the old sys- tem, the pleading was bad in form, and might at common law be objected to by special demurrer. Now, however, the defect can only be reached by motion to the court, ^ before demurring or answering, and within twenty days from the service of the defec- tive pleading. Or, perhaps the court, on its own motion at the trial, may require the pleading to be made more definite and certain.^ Motion, how made. The motion to strike out redundant or irrelevant matter, or to make a pleading more certain, is made upon the pleading alone; and a simple notice of the motion is all that is necessary to be served. It was at one time thought that the moving party must show, by affidavit, when the pleading objected to was served, that the court might see that the application was made in time ; ^ but as has been already observed, * this is unnecessary, the omission to notice the motion in time being merely a matter of defense which the adverse party may bring before the court, by affidavit, in opposition to the motion. The complaint itself, containing the place where the action is triable, will show that the motion is made in the proper county and district. ' Huff V. Bennett, 2 Sand., 702 ; Beekman v. Platner, 15 Barb., 250 ; Powell v. Fraser, 1 Code R., N. S., 270. ' Van Sant. PL, 354. ^ Rogers v. Rathbone, 6 How., 66. * Ante, page 164, and cases cited. MOTION TO CORRECT PLEADINGS. 171 The notice of motion, however, must specify in what respect the pleading is defective or should be corrected. Where the whole complaint is objected to, a portion of it, not particularly specified, will not be struck out, though it be in fact irrelevant or redundant ; ^ and the rule no doubt applies to this kind of motion. Order to stay proceedings or show cause. It frequently happens that the motion cannot be actually brought on before the time to answer the pleading objected to will expire, in which case it is necessary for the moving party to obtain an order to stay proceedings until the motion can be heard. The order is usually obtained on an affidavit stating when the pleading was served, and that the party intends to move at the next special term (mentioning it) at which the motion can be heard, to strike out the objectionable matter or correct the plead- ing. If the application for a stay is made to a judge out of court, and a longer stay than twenty days is required in order to bring on the motion, the application must be made on notice to the adverse party, ^ otherwise it may be made ex parte. Or, the mov- ing party, on the same affidavit, may obtain an order to show cause why the objectionable matter should not be struck out, (which is equivalent to a notice of motion) and proceedings in the meantime, and until the motion can be heard and decided stayed, not exceeding twenty days. The order to stay and copies affidavit and notice of motion to strike out must be served on the opposite attorney eight days before the term at which the motion is noticed. The motion is brought on and the order filed, or certified to and entered in the proper county, and copy served on the opposite attorney as in other cases. If the motion is granted, the order usually directs the opposite party to serve a copy of his amended pleading upon the attorney for the moving party, giving him the same time to answer as to* the original pleading. If the motion is denied, the moving party should take the precaution to obtain by the order leave to answer (or reply if necessary), within a specified time, particularly if his time to answer has nearly expired, or if he has obtained a stay of » Benedict v. Dake, 6 How., 352. = Code," § 401. 172 PROCEEDINGS BY DEFENDANT BEFORE ANSWER. proceedings until the hearing of the motion, and to enable him to make the same. SECTIOIsr VII. MOTIOX TO DISSOLVE INJUNCTION" OE NE EXEAT. If an injunction, or ne exeat, have been allowed, on the com- plaint alone, the defendant may move to dissolve the one, or dis- charge the other, if he choose before answer. The usual course, however, is to make the motion on putting in the answer itself, either with, or without, affidavits in support of it, a proceeding which will be hereafter more fully considered. Let us briefly notice here the practice on moving to dissolve, vacate, or modify an injunction before answer served. Dissolving injunction. If the injunction has been granted by the court, it can only be vacated or modified by the court. If it have been granted by a judge of the court, or county judge, without notice, it may be va- cated or modified, on notice, by a judge of the court in which the action is brought,^ or by the court itself.^ And it has been held, that where it was granted out of court, without notice, it may, by virtue of section 324, be vacated or modified without notice, by the judge who made it.^ But this, it is also said, should never be done, except when from the urgency of the case, it is necessary to guard against serious loss which sometimes might be occa- sioned by the delay which is incident to serving notice.* If, on the service of an injunction order, therefore (except in these extraordinary cases) the defendant determines to move to vacate or modify it before answer, he may at once serve notice on the opposite attorney of his intention to move to vacate, &c., either to a "judge of the court," whether the one making the injunction order or not, or to the court at special term. The motion may be founded on the plaintiff's complaint, and papers used by him in obtaining the injunction, or on these papers, and also affidavits on the part of the defendant. ' Code, § 225. ' Woodruff v. Fisher, J7 Barb., 230. ^ Bruce v. Delaware and Hudson Canal Co., 8 How., 440. * Ibid, DISCHARGING NE EXEAT. 173 In, the first case nothing need be served on the opposite attor- ney but the simple notice of motion, stating upon what papers the party intends to move.' In the second case copies of the affidavits intended to be used by the defendant must also be served with the notice of motion. If the injunction be a mere temporary one, contained in an order to show cause, it cannot often be necessary, and will not usually be advisable, to move to vacate it before the return day of the order to show cause. At that time the defendant may show cause, and oppose the motion for an injunction either by affidavits, or answer, or both, precisely the same as though he had moved to vacate the order himself. No doubt, however, the defendant, if he desired the temporary injunction removed within a shorter time than prescribed by the order to show cause, might apply on motion to vacate or modify it ; or, in a case of great urgency, might even obtain from the judge who made the order an ex 'parte vacatur. The proceedings on the motion to dissolve the injunction before answer, are in all respects similar to the proceeding to vacate or modify on the coming in of the answer. The motion, however, is most commonly, and indeed almost universally, made on the coming in of the answer, either wit^ or without affidavits, the proceedings upon which will be more fully noticed when we come to consider the subject of injunctions generally. By section 401 of the Code, a motion to vacate or modify a provisional remedy, has a preference over all other motions. Discharging ne exeat. The discharge of a ne exeat, like the dissolution of an injunction, may be moved for before answer, on due notice, upon the matter of the bill itself. Or the party may apply by petition, on notice, for an order to discharge the writ.^ It is a matter of course, to order the writto be discharged upon the defendant's giving security to answer ; or, if defendant cannot give such security as will satisfy the sheriff, he may apply to the court to take such security as it deems sufficient and discharge the writ.^ ' Newbury v. Newbury, 6 How., 182. 2 1 Barb. Ch. Pr., 655. ^ Brayton v. Smith, 6 Paige, 489. 174 PROCEEDINGS BY DEFENDANT BEFORE ANSWER. The practice in regard to moving the discharge of a ne exeat or answer is also similar to that of moving to dissolve an injunction, and the defendant may read affidavits of other persons in support of his answer, to rebut the affidavits annexed to the complaint.' • The defendant in his affidavit may deny the allegation on which the suit was issued.^ But his affidavit denying his intention to go abroad will not be regarded, if the writ was granted upon facts, or declarations, as evidence of such intention; nor will the affidavit of the defendant that no debt is due, or evidence of an admission by the complainant to that effect, avail against the com- plainant's oath on this motion.^ Causes for discharging. The defendant may move to discharge the writ, not only upon giving security, but for a want of equity appearing upon the face of the bill — the insufficiency of the affidavit upon which the writ was granted — upon the facts set up in the defendant's answer or affidavits, or for an irregularity of any kind in the granting or issuing of the writ. And everything going to show that the writ ought not to have been issued, is a reason for discharging it.'* The giving of the usual security to the sheriff upon a ne exeat, does not preclude the defendant from applying upon the complaint only, or upon the coming in of the answer, to have the writ discharged and the bond to the sheriff given up and canceled ; unless, indeed, the defendant, for his own convenience, has applied to the court and given the usual bond, without asking to reserve the right of applying to cancel the bond.^ SECTION VIII. OBTAINING PUETHEE TlilE TO DEMUR OE ANSWEE. If the defendant concludes not to move to dismiss, or set aside the complaint or return it for irregularity, or defect in form or service, or move to correct it for redundancy or uncertainty (which must be done before submitting to answer by obtaining an order ' 1 Barb. Oh. Pr., 656. « Cowden v. Cram, 3 Edw., 231. 5 Jones V. Alephsin, 16 Ves., 470 ; 1 Barb. Ch. Pr., 657. < 1 Barb. Ch. Pr., 656. = Jessup v. Hill, 7 Paige, 95. rUETHER TIME TO ANSWER. 175 for further time ),' he may, if it be necessary, and upon showing proper cause, obtain an extension of time to put in his demurrer or answer. So, too, he may do so, whenever it becomes necessary, on making a motion for some interlocutory relief, such as the dis- covery of books, &c., or a motion to strike out for redundancy, &c., when such motion cannot regularly be brought on for argument before the expiration of the time to answer. General provision. The provision under which the time to demur or answer may be extended is contained in section 405 of the Code, as follows : " The time within which any proceeding in an action must be had, after its commencement, except the time within which an appeal must be taken, may be enlarged, upon an affidavit showing grounds therefor, by a judge of the court, or if the action be in the Supreme Court, by a county judge. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded." The order, however, if granted by a judge out of court without previous notice, cannot be to stay proceedings for a longer time than twenty days. If the defendant require a longer time, he should obtain an order to show cause why the time to answer, &c., should not be extended, &c., for the requisite period, specify- ing it, and proceedings in the meantime stayed. On proof of the service of the order to show cause, the judge, at the time ap- pointed, if no sufficient cause be shown against it, will grant the absolute order. Or, if the defendant prefer, he may obtain his first order, ex parte, and, at the expiration of the twenty days, apply on a suffi- cient affidavit for another order. In such case it is provided by the rule, that if any extension of time to answer or demur has been granted, by stipulation or order, the fact shall be stated in the affidavit. ^ What the affidavit must contain. The same rule, &s amended in 1858, contains the following provision : ' Bowman v. Sheldon, 5 Sand., 657 ; Isham v. "Williamson, 7 Leg. Obs., 340. 2 Slip. Court, Rule 22. 176 PROCEEDINGS BT DEFENDANT BEFORE ANSWER. " No order extending the time to answer or demur to a com- plaint shall be granted, unless the party applying for such order shall present to the justice or judge to whom the application shall be made, an affidavit of merits, or an affidavit of the attorney or counsel retained to defend the action ; that, from the statement of the case in the action made to him by the defendant, he verily believes that the defendant has a good and substantial defense, upon the merits, to the cause of action set forth in the complaint, or to some part thereof." Every affidavit on which to move for an extension of time must conform substantially with this rule, or the judge will not grant the order. If an order have been improvidently granted on an affidavit defective in this respect, which is served with the order, the court or judge granting such order will set it aside, or vacate it without notice. And so also, if, after one extension of time, an order be made on an affidavit which does not state the fact of the first extension, by stipulation or order, it will be vacated without notice. In addition to the requirements of the rule, the affidavit briefly states the reasons which render an extension of time necessary, as that the attorney has not been able to prepare his answer on account of professional engagements, or other cause, or the un- avoidable absence of the party, or the attorney's intention to move to correct the complaint, or to discover books and papers, or any other sufficient reason. Who may allow, and how granted. The order is usually granted by a judge out of court ; though it may be granted, no doubt, by the court at special term, and entered and served as the order of the court, and in such case may be for a longer time than twenty days. It is very usual to obtain ex -parte an order to show cause in court, returnable at some other special term (though held more than twenty days thereafter), proceedings in the meantime stayed. If made by a judge of the court, it may be made by any judge in any part of the state. If made by a county judge, it must be by a judge of the county where the action is triable, or of the county in which the attorney for the moving party resides ; ' and ' Code, § 401, as amended 1859. FURTHER TIME TO ANSWER. 177 in such case the affidavit should show where the action is triable, or where such attorney resides. The order is usually indorsed on the back of the affidavit as follows : " Let the defendant have days additional time to answer in the within entitled cause ;" and an order in this form extends the time to demur. ^ If more than twenty days time is required, and the defendant proceed on an order to show cause, it will be, " Let the plaintiff show cause before me at, &c., on, &c., why the defendani should not have days time to (demur or) answer in the within entitled cause, and in the meantime let all proceed- ings on the part of the plaintiiF be stayed." The signature of the judge being obtained to the order, it is sarved by delivering it (or inclosing by mail where service may be so made), with the affidavit, or a copy, and it is not necessary to file or enter it in the clerk's office. An order made ex parte may be vacated ex parte, but it is not usual to do so unless the affidavit on vrhich it is granted do not comply with the rule, or is otherwise substantially and manifestly defective. If the other party desire to have it vacated, he should, as a general rule, obtain a short order to show cause. If the affidavit or a copy be not served with the order, the plaintiff need not get it vacated at all. The order in such case is a nullity, and may be entirely disregarded, ^ and the plaintiff may proceed as though no order had been served. He should, how- ever, immediately return the order, or give notice of his intention to disregard it. Time to answer after amendment. After the amendment to a pleading, the time to answer it is the same from the date of its service, as after service of the original pleading, that is twenty days, if the service of the amended plead- ing has been personal, and double that time if by mail. ' Broadhead v. Broadhead, 4 flow., 308 ; 1 Whit. Pr., 450. 2 Code, § 405. V. s. 23 178 PROCEEDINGS BY DEFENDANT BEFORE ANSWER. SECTION IX. PROCEEDINGS BT DEFBNDAXT TO ANSWER AFTER TIME HAS EXPIRED, OR AFTER JUDGMENT BT DEFAULT. Answer after time has expired. If the defendant have inadvertently allovred the time to expire without putting in his defense, he is not allowed, as a matter of course, to put in an answer or demur at any time before judgment has been actually entered against him ; but, if he desire to answer, he must apply to the court by motion, and on notice for leave to do so.* And a plaintiff may refuse to receive, and may return an answer served on him after the time has expired ; if he do not do so, the defect is waived, and the answer will be good. ^ ' The affidavit for the motion should show an excuse for not put- ting in the defense in time, and contain either a general/affidavit of merits, or, what is the better and more safe practice, disclose the nature and substance of the defense so that the court may see whether it be a valid one or not. The court may impose such terms in granting the motion as shall be just, by requiring the delinquent party to pay the costs of the motion, by requiring him to answer within a limited time, and stipulate to go to trial on short notice, or submit to a refer- ence, if the other party would otherwise lose a circuit, &c. Or if the plaintiff have actually given notice of the application for relief as for want of answer, the defendant may appear on such application, with proper affidavits, and ask to be allowed to answer on such terms as the court may impose, which will usually include the payment of the costs of motion. After judgment for want of an answer has been entered. The defendant may be allowed to answer after default and judgment, both where the summons has been served by publica- tion, and where the service is personal. Default on service by publication. The defendant against whom publication is ordered, no doubt, has the right to appear and defend of his own accord, and without ' Snyder v. White 6 How., 321 ; Code, § 174. » x Whit. Pr., 454. ANSWER AFTER TIME HAS EXPIRED. 179 any leave of the court, at any time, within twenty days after the time of the publication has expired. But if he wish to come in more than twenty days after that time, but before judgment actually entered, he must, as in other cases, make his affidavit and show "sufficient cause." ^ The ser- vice of the summons upon him being complete, after full publica- tion, he has the same right that any other defendant has to appear before the time has expired ; but, like any other defendant, has no right to appear after expiration of time of appearance, except on leave of the court. And such seems to me the true construction of section 135 of the Code. > That section provides that " the defendant against whom publication is ordered, or his representa- tives, on application and sufficient cause shown, at any time before judgment, must be allowed to defend the action ; and, except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just." The exception of actions of divorce in the above provision does not, as it has been supposed, preclude a defendant in such actions from coming in to defend after judgment under all circumstances ; but simply limits the right to do so to one year after notice of the judgment, as in other cases of default, under section 174, to be presently noticed. In every other kind of action, where the summons has been by publication, the court may, on " good cause shown," and on "such terms as may be just," allow a defense to be made, at any time within one year after notice of the judgment, and within seven years after its rendition. Default for want of answer generally. Not oniy where the summons has been served by publication, but also where it has been served personally, the court may, in its discretion, and upon such terms as may be j ust, at any time within one year after notice thereof, relieve a party from a judg- ■ The section seems to have been construed so as to require the defendant, in all cases after publication, to ask leave of the court to defend. (1 Whit. Pr., 446.) 180 PEOCEEDINGS BY DEFENDANT BEFORE ANSWER. ment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect.^ In such case, the affidavit on v^hich the motion is made, must clearly show the mistake, or other excuse offered, so that the court can see whether it be a valid one ; and in addition, there must be an affidavit of merits by the defendant, or moving attor- ney, or the substance of the answer or defense must be stated. What will constitute surprise, or excusable neglect, cannot be accurately defined. It seems to be always in the sound discretion of the court to grant or refuse an application of this kind. ^ And a reasonable excuse will, at all times, be sufficient, and sometimes even a slight excuse, to let in a party to defend on terms ; ' unless an unconscientious or dishonest defense is sought to be set up, in which case the court will not relieve the party in default. * Application, how made and granted. The application is made, as has been seen, on an affidavit of the party in default, stating the grounds thereof, and a copy of the proposed answer, or the substance of the defense, with the usual affidavit of merits. It must be on notice to the opposite party, and should be noticed for the earliest special term at which the motion can be heard. The motion cannot be made to a judge out of court, except in the first district, where the order of a ju5ge at chambers operates as the order of the court. The motion is brought on by the moving party, and opposed by counter affidavits, or otherwise, of the adverse party, and the order granted, filed by the clerk (or certified, if allowed in another county), and entered as in other cases. If the defendant be allowed to come in and defend, the order should specify the time within which he may serve his answer, either after entry, or service of the order; and a copy of the order should be immediately served upon the opposite attorney. ' Code, § 174. " See Mann v. Provost, 3 Abbott, 446 ; Lynde v. "Verity, 3 How., 350 ; Grant «. McOaughin, 4 How., 216 ; Montgomery v. Ellis, 6 How., 326. ' Allen V. Ackley, 4 How., 5. ' King V. Merchants' Exchange Co., 2 Sand., 693. ANSWER AFTER TIME HAS EXPIRED. 181 On what terms granted. Where the judgment is simply for some form of equitable relief, other than the payment of money, it may be absolutely set aside, and the defendant permitted to answer. If the judgment be a lien upon real estate, or for the payment of money, &c., and there be any doubt whether the plaintiff, from the irresponsibility of the defendant or otherwise, may not be prejudiced by setting the judgment aside, the court will allow it to stand, with any levy made under it, as security, and permit the defendant to answer. The court may also impose other terms, as that the defendant take short notice of trial, or stipulate to try the cause at the next circuit ; or, as it has been held, even in an action for divorce, that it be referred to a referee ; ^ or, as in other actions, that the defense of usury, or the statute of limitations be not set up in the answer.^ After the default has been opened, and the defendant has obtained and served his order granting leave to put in an answer or demurrer, no objections, of course, can be taken to the com- plaint, other than those which may be raised by the demurrer or in the answer. The further proceedings, on the defendant's part, in putting in his defense, are the same as in ordinary cases, which will be considered in the next chapter. ' Fuller V. Fuller (not reported), Rens. Special Term, Dec, 1858. ^ Allen V. Ackley, 4 How., 5. 182 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. CHAPTER VI. FURTHER PROCEEDINGS BY DEFENDANT BEFORE NOTICE OP TRIAL. Section I. Of the demurrer and proceedings thereon. II. Of the answer and COnNTEROLAIBr. III. Vebifying, amending, filing and serving the answer. IV. Cross complaint and proceedings thereon. The defense to an equity suit was either by demurrer, by plea, by answer, or by disclaimer. By a demurrer the defendant demanded the judgment of the court whether he should be compelled to answer the bill or not. Such defense was resorted to where it appeared upon the face of the bill itself that there was no equity in the case on the part of the complainant. By a plea the defendant set up some matter of defense, not appearing in the bill, by which he showed some cause why the suit should be dismissed, delayed or barred. By the answer, the defendant either controverted the case made by the complainant, or confessed and avoided it ; or traversed and .denied the several parts of the bill ; or, admitting the case made by the bill, submitted to the judgment of the court upon it, or upon a new case made by the answer, or both. By a disclaimer, the defendant might at once terminate the suit by disclaiming all right or interest in the matter sought in the bill.i These various matters of defense to an equity suit are somewhat modified by the Code. The plea and answer are now substantially the same ; that is, the same matters which heretofore were set up by plea, may now be embraced in the answer ; and the disclaimer of the Chancery practice does not seem to have any place under the Code. It is provided by the Code, that the only pleading on the part of the defendant is either a demurrer, or an answer.^ Each of these will be now considered in their order. ' Barb. Oh. Pr., 105. ^ Code, § 143. DEMUERER TO COMPLAINT. 183 SECTION I. OF THE DEirUKEEE AND PROCEEDINGS THEEEON. By the former Chancery practice, whenever any ground of defense was apparent from the bill itself, either from the matter contained in it, or from defect in its frame, or in the case made by it, the proper mode of taking advantage of it was by demurrer. ^ A demurrer admitted, for the purposes of the argument, the facts stated in the* bill to be true, but raised the question that they were insufficient for the complainant to proceed upon, or to • oblige the defendant to answer ; or, that for some reason apparent on the face of the bill, or because of the omission of some matter which ought to be contained in it, or for want of some circum- stance which ought to be attendant thereon, the defendant ought not to be compelled to answer.^ The demurrer of the new practice is similar in most respects to that of the old. The principal and perhaps only exception is, that a demurrer cannot now be taken to the frame of the hill, that is to its form : but, if the pleading is correct in substance, and not in form, the remedy now is, not by demurrer, but by motion to have it made more definite and certain by amendment.^ The demurrer still admits, for the purposes of the argument, the facts stated in the complaint to be true, * as by the former practice. It is provided by the Code (section 144), that the defendant may demur to the complaint, when it shall appear upon the face thereof, either, 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action ; or, 2. That the plaintiff has not legal capacity to sue ; or, 3. That there is another action pending between the same parties, for the same cause ; or, 4. That there is a defect of parties, plaintiff or defendant ; or, 1 Mitf. Eq. PI., 107 ; 1 Barb. Oh. Pr., 105. ' 1 Barb. Ch. Pr., 106. ' Howell v. Eraser, ICode R., N. S., 270. * Hall V. Bartlett, 9 Barb., 297 ; Clark v. Van Duzer, 3 Code E., 219. 184 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. 5. That several causes of action have been improperly united ;, or, 6. That the complaint does not state facts sufficient to consti- tute a cause of action. A demurrer to the complaint can only be sustained where the objection appears on the face of the complaint itself ; if the ground of objection is to be established by other proof, it must be set up by way of answer .' And it will lie only when an entire pleading, that is an entire cause of action, or ground of defense, is insufficient. If a part only of the pleading is irrelevant, the proper mode of raising the objection is by motion to strike out ; if the whole be irrelevant, by demurrer.^ Under the former system the practice was somewhat different ; for, a defendant might demur to one part of a bill and answer the residue, and he might assign several causes of demurrers, either to the whole bill, or to each part of it, and he might even put in separate demurrers to separate and distinct causes; and, on the argument, one demurrer might be overruled and another allowed.' This cannot now be done. The. defendant, if he demur at all, must demur to an entire cause of action ; though, to such entire cause of action he may assign as many causes of demurrer as he chooses, within the provision of the Code ; and if there be more than one cause of action in the complaint, he may demur to one or more of them, and answer the residue. But if the demurrer is interposed to an entire complaint con- taining several causes of action, and one of them is good, the de- murrer will be overruled.* It must distinctly specify the cause of action to which it is intended to apply. And if it do so specify the parts to which it is intended to apply, though it purport in its commencement to be a demurrer to the whole pleading, it will » Carroll v. Carroll, 11 Barb., 293 ; Getty v. Hudson R. R. Co., 8 How., 177; Union Mut. Ins. Co. v. Osgood, 1 Duer, 707 ; Watson v. Husson, 1 Duer, 243. " See cases cited, 1 Whit. Pr., 456. ' Mitf. Eq. PL, 174 ; 1 Barb. Ch. Pr., 107. < Peabody v. Wash. Co. Mut. Ins. Co., 20 Barb., 342; Butler v. Wood, 10 How., 222 ; Cooper v. Classon, 1 Code B., N. S., 347. DEMURRER TO COMPLAINT. 185 be regarded as a demurrer only to the parts specified, and not to the whole preceding pleading.^ A demurrer must be to the substance of the complaint, and not to the mere formal parts. Thus, as we have seen, a demurrer can- not in any case be used as a substitute for a motion to strike out for irrelevancy, or to correct a pleading for uncertainty ,2 but can only be interposed where the entire pleading — that is a separate cause of action or defense — is bad ; ' so, also, it will not lie for a defect in the title of the complaint which is merely formal, but the proper mode of raising the objection is by motion. Nor will a demurrer lie to the demand for relief in the complaint.^ Nor, as it would seem, by the weight of authorities, although the ques- tion has been much discussed and is still claimed to be unsettled, will it lie for not separately stating two or more causes of action, which might otherwise have been united in the same complaint.^ Nor will it lie for any other merely formal defect in the structure of the complaint, or other pleading, such as omitting to folio the same, or to plainly number the separate causes of action or de- fense, &c., &c. A defendant can avail himself only of the causes of demurrer specified by the Code in the section above cited." Let us briefly glance at each of these. Jurisdiction, Under the former practice in Chancery, it was necessary that the bill must show a state of facts from which it would be ap- ■ parent that the court has jurisdiction.'' This is not, perhaps, es- sential under the uniform rule of pleadings adopted by the Code. ' Matthews v. Beach, 4 Seld., 173. " Cheesborough v. New York and Brie Railroad Co., 13 How., 557 ; Graham V. Camman, 13 How., 360 ; The People, ex rel. Crane, v. Ryder, 2 Kern., 433. ' Hammond v. Hudson River Iron and Machine Co., 20 Barb., 386 ; Graham V. Camman, 13 How., 362 ; Richards v. Edick, 17 Barb., 261. * Andrews v. Shaffer, 12 How., 443 ; Bealey v. Hayes, 5 Sand. S. C. R., 640. » See cases fully cited in note to' sub. 5, Voorhies' Code, § 144. ' Beale v. Hayes, 5 Sand., 640 ; Haire v. Baker, 1 Selden, 363 ; Simpson v. Loft, 8 How., 235. ^ Mitf. Eq. PI., 35. 186 FUETHEE PEOCEEDINGS BY DEFENDANT BEFOEE TEIAL. It is only where it appears on the face of the complaint that the court has no jurisdiction of the person of the defendant, or the sub- ject of the action, that a demurrer is allowed.^ This has been ex- pressly held under the Code ; and further, that on a demurrer, specifying for cause, that the complaint does not state facts suffi- cient to constitute a cause of action, the question, that the court has not jurisdiction of the subject of the action, cannot be raised.^ An objection of this description must be fully made out, and no presumption will be indulged against the jurisdiction of an inferior tribunal, where enough is shown to bring the case within the general language of the statute conferring jurisdiction.^ But, though the want of jurisdiction be not raised, either by demurrer or answer, yet, whenever such want of jurisdiction ap- pears, in any subsequent stage of the suit, the question may be raised and judgment, if entered, will be set aside.* The want of jurisdiction for which a demurrer will lie, is either jurisdiction of the subject matter, or jurisdiction of the person of the defendant. A demurrer for this cause is not common, and it will be unnecessary here to point out the various instances in which it may be taken.'' Plaintiff's want of capacity to sue. A demurrer for this cause may be taken when it shall appear on the face of the complaint ; first, that the plaintiff is not en- titled to sue by reason of some personal disability, as for example, if it appear that the plaintiif is an infant, and sues without a guardian ; or, if it appear that the plaintiff is a married woman, bringing a suit without her husband, which does not concern her separate property, &c.° And second, a demurrer will lie under this head if it appear from the complaint that the plaintiff has no title to the character in which he sues. And such was the 1 Code, § 144. ' Wilson V. Mayor, &e., of New York, 6 Abbott, 6. ' Foster v. Hazen, 12 Barb., 547. * Valarino v. Thompson, 3 Selden, 576. See Voorhies' Code, 102. (5th ed.) ' 5 See Van Sant. PL, 658 to 668. ' Code, § 114. DEMUERER TO COMPLAINT. 187 practice in the Court of Chancery before the Code. As, for ex- ample, if it appeared upon the face of the complaint that the plaintiiFsued as administrator under void letters of administration, or in virtue of a grant of letters of administration in a foreign country, the objection might be taken by demurrer, for the reason that the plaintiff has no right or legal capacity, under such letters, to sue in our courts.' So, under the Code, it is held, that a plaintiff suing as adminis- trator, &c., must show Ms appointment as administrator in the complaint, and that he is entitled to recover in that capacity, and a mere description in the complaint that he is administrator, &c., is not sufficient on demurrer.^ And the same is true of a receiver suing in his representative capacity ; a demurrer -will lie unless he set forth the time, place, and manner of his appointment.^ The same rule has been thought to apply to the case of an in- fant suing by guardian.^ But in such case the cause of action not being in the guardian, but in the infant, if the complaint al- leged that the infant sued by guardian, it would seem to be suffi- cient to show the legal capacity of the plaintiff to sue. The Court of Appeals held on demurrer to a complaint in a suit by the supervisors of a town, that a complaint which in its com- mencement simply recited " The complaint of the plaintiff above named as supervisor," &c., was sufficient.* If the defendant wish to raise the question of the legal capacity of the plaintiff to sue, he must raise it specifically in his demur- rer. It cannot be raised on a demurrer stating that the complaint does not contain facts sufficient to constitute a cause of action.^ If the objection does not appear on the face of the complaint it may (and must, if the defendant intend to rely upon it) be raised by the answer. And if not taken by demurrer or answer, the objection in all subsequent proceedings is held to be waived.'' ' Mitf. Eq. PI., 155 ; Cooper Eq. PI., 169, 170. « Sheldon v. Hoy, 11 How., 11. 3 White V. Joy, 11 How., 3 Kern., 86 ; Chautauque Bank v. White, 2 Seld., 236. ^ Hulbert v. Young, 13 How., 414. ^ Smith v. Levinus, 4 Seld., 472. « Bank of Lowville v. Edwards, 11 How., 216 ; Vibert v. Frost, 3 Abbott, 120. ' Code, § 148 ; Hastings v. McKinley, 1 Smith Com. PL R., 273. 188 rUETHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. Another action 'pending between the same parties. This ground of objection will not usually appear o^ the face of the complaint, and the defendant, therefore, will be obliged to set it up by his answer. If not taken either way the objection is deemed to be waived ; for a second proceeding or action cannot be set aside, on motion, because a prior one has been commenced and is pending.^ The second action thus pleaded should, in general, be between the same parties, and for the same cause of action. It is said, however, that there are exceptions to the rule, and no doubt there may be in actions of an equitable nature. Where one of the de- fendants brings a cross complaint against the plaintiff and his co-defendants, the proper remedy of the plaintiff, it would seem, if such cross-suit is identically the same and asks the same relief, is to demur. Whether the prior proceeding between the same parties, and for the same cause, be technically an action or not, it seems, if the objection appear on the face of the complaint, the defendant may demur.^ And where a trustee presented a petition, praying to be permitted to account as trustee, and to be discharged from his trust, and an order was made for him to account, such a proceed- ing is a bar to an action by one of the cestui que trusts against the trustee praying his removal and an account ; the causes of action are the same, and though the actor in one is the defendant in another, yet the objection may be taken by demurrer, if it appears on the pleading, and by answer if it do not.* That there is a defect of parties, plaintiff or defendant. The subject of the parties to the action has been already consi- dered in a former part of this work ; and the reader will there find the cases cited which generally govern the making of parties to an action under the Code. From the principles there laid down, it follows : 1st. As to parties plaintiff. The defendant may demur when- ever it shall appear by the complaint that there are others who ought to be joined, and who are proper and necessary parties to enable the court to determine the whole controversy. So, too, it ' Homfager v, Hornfager, 6 How., 279. 2 Ogden V. Bodle, 2 Duer, 611. ^ Greshon v. Lyon, 6 Barb., 461. DEMUKEER TO COMPLAINT, 189 seems, where there is an excess of parties, though this has been denied, ^ and if not so raised, it is waived.' Such, at all events, is the rule if the parties are mere formal parties, and the cause can be disposed of without bringing them in ; in such case, if there be a non-joinder, the court will not listen to an objection after answer at the hearing. ^ But there are cases in which the court, even at the hearing- and though no objection has been raised by the demurrer or answer, will order the cause to stand over and parties to be brought in whose presence is necessary to a complete determina- tion of the controversy.^ This, as will be found in practice, is not unfrequent in equity cases, where the parties are numerous, and it is not really easy for either side to determine who is neces- sary to a complete determination of the suit. If there be a defect of parties plaintiff, it is a good cause of demurrer by all the defendants. * 2d. As to parties defendant. It is now well settled that the former equity practice prevails under the Code, that a party who is properly a defendant cannot demur because another is impro- perly joined. « The rule, it has been intimated, extends further, and it is said that the demurrer, allowed by the Code, is only in case where there is a deficienaj of parties, and not where there are too many.' Therefore, it will not lie, in any case, by defend- ants, when they are improperly joined, that is, where there is an excess of parties." But it is believed the rule is generally applied to allow any defendant, against whom no cause of action is stated in the complaint, to interpose his demurrer on that ground.^ If the facts appear on the face of the complaint, the objection can only be taken by demurrer."" If the misjoinder of defendants ' Peabody v. Wash. Co. Mut. Ins. Co., 20 Barb., 342. = Leavitt v. Fisher, 4 Duer, 1. ^ 2 Story Eq. PL, § 542. * Van Sant. PI., 673 ; Wallace v. Eaton, 5 How., 99. ' Brownson v. Gifibrd, 8 How.. 389. ' Brownson v. GifFord, 8 How., 389 ; Churchill v. Trapp, 3 Abbott, 306. ' Peabody v. Wash. Co. Mut. Ins. Co., 20 Barb., 342. " Gregory v. Oaksmith, 12 How., 134; Churchill v. Trapp, 3 Abbott, 306. ' Voorhies v. Baxter, 1 Abbott,43 ; 18 Barb., 593 ; Eldridge v. Bell, 12 How., 549. '" Baggot V. Boulger, 2 Duer, 160. 190 PUETHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. be not objected to in the court below, the objection cannot be raised on appeal.' That several causes of action have been improperly united. Such a defect in the complaint under the old practice was called multifariousness. It consisted, 1st. In a misjoinder of causes of suit— that is, where the claims set up in the complaint are of so different a character that the court will not permit them to be litigated in one action. 2d. Where a party is brought in as defendant upon a record, with a large portion of which, and of the case made by which, he has no connection. ^ The latter objection differs from that arising from a mere mis- joinder of claims, and is nearer like the defect of misjoinder of parties which has just been noticed. The subject of multifariousness properly considered— that is, where the claims set up in the complaint are not such as may be joined by the provisions of section 167 of the Code — has been considered in a former page, and the general principles which govern pleadings in this respect pointed out. ^ When the com- plaint is defective in this respect, the proper and indeed only course is to demur, otherwise the objection is waived. It is only, however, where different causes of action are joined, which are forbidden to be joined by section 167, that the defend- ant may demur. For, though it has been considered, in several cases, that a demurrer would be proper where causes of action, that might otherwise be properly joined, had been mingled toge- ther in the same complaint, and not separately stated ; yet, the contrary seems to be the more approved doctrine, and sustained by the weight of authority.* Such a defect is not matter of sub- stance, and if corrected at all, must be before demurrer or answer, by motion to compel the plaintiff tft make his pleading more certain, by separating the causes of action, or electing by which he will abide. * If two causes of action of a class that admits of their being ' Tibbetts v. Percy, 24 Barb., 89. 2 Story Eq. PI., § 530 ; Brady v. McOosker, 1 Comst., 214. ' See as to demurrer in such cases, Van Sant. PI., 678, et seq. * See cases cited, Voorhies' Code, 159. DEMURRER TO COMPLAINT. 191 united, but of one of which the court has no jurisdiction be joined, a demurrer to the entire complaint, on the ground that several causes of action are improperly united, will not be sustained ; the demurrer must be confined to the cause of action of which the court has no jurisdiction, and must specify the ground of the want of jurisdiction in the court.' That the coirvplaint does not state fads sufficient to constitute a cause of action. This is the most usual form of demurrer. It is properly taken, not when the complaint shows that the plaintiff is not entitled to the relief which he has demanded, but to any relief or judgment whatever. Or, as it is better expressed in some of the cases, the complaint, to be overthrown by a demurrer on this ground, must present defects so substantial in their nature, and so fatal in their character, as to authorize the court to say, taking all the facts to be admitted, that they furnish no cause of action whatever. It applies only to such defects as would render the cause of action bad on general demurrer at law, or bad for want of equity in Chancery.^ It would be impracticable, and indeed unnecessary, to under- take here to point out what defects in the complaint, as to the substance of its allegations, will render it demurrable. The general principles governing the framing of a complaint, and the matter which it is required to contain, in order to constitute a cause of action, have been considered on a former page ; and we have also pointed out generally those defects in structure and form which cannot be reached by demurrer, but must be corrected on motion. ^ It may be stated generally, that a demurrer to a complaint in equitable actions is similar to the like proceeding under the former Chancery practice. And, in most cases, a demurrer to a complaiat for defect of substance will be proper, where a demurrer to a bill ' Cook V. Chase, 3 Duer, 643. 2 See Graham v. Camman, 13 How., 360 ; Richards v. Edick, 17 Barb., 260 ; Cudlipp V. Whipple, 1 Abbott, 106 ; Bank of Lowville v. Edwards, 11 How., 216 ; Prindle v. Caruthers, 15 N. Y. R., 425. 3 See Van Sant. PI., 686, et seq. 192 FUETHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. for the same cause would have been sustained. Thus, the objec- tion may be so taken when the complaint shows that the plaintiiF has no interest in the subject matter, and no title to institute a suit concerning it. ' But the want of that interest in the plaintiff which authorizes a demurrer, it is said, is to be understood with reference to the principle of representation which prevailed in the doctrine of parties in Chancery ; and as a general rule if the defendant will be perfectly protected by responding to the plain- tiff, and if there is no necessity or substantial equity, in protecting the fund against the plaintiff himself, if recovered, the plaintiff may be regarded, within the meaning of the Code, as the real party in interest.^ Want of interest in the subject matter of the suit in the case of a sole plaintiff, is not only a good cause of demurrer, but if the suit is joint, want of interest in either of the plaintiffs is equally defective.^ So, if two parties sue, and the title' is alleged to be in the one or the other of them, in the alternative, for this shows that there must necessarily be a misjoinder of one or the other of the parties.'* Want of interest in the defendant is also a matter of substance, and demurrable if it appear on the face of the complaint. Thus, a married woman, made a party with her husband to enforce a contract made by her jointly with him, may demur. And it has been held, under the Code, that, in an action against husband and wife, if the complaint seeks judgment solely against the separate estate of the wife, but fails to show a cause of action against her, the defendants may demur jointly.^ And, in general, if the case stated in the complaint is such, that, admitting the whole complaint to be true, the court ought not to give the plaintiff the relief, or assistance he requires, in whole or in part, against all or against any of the defendants, it is not only a sufficient but an appropriate ground of demurrer, by the defendants against whom no such cause of action is stated. This rule, derived from the former mode of pleading in equity • Cooper Eq. PI., 160-169 ; Mitf. Eq. PI., 154-231. " Myers v. Machado, 6 Abbott, 198. ^ Story Eq. PI., § 509. ' 1 Turn., 107. « Goodall v. McAdam, 14 How., 385. DEMURRER TO COMPIiAINT. 193 cases, is conceived to be equally applicable to pleadings under the Code.i The objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by a failure to answer, but the plaiQtifF may take advantage of such defect in the com- plaint at any stage of the case.^ Form of demurrer, and how drawn. It is provided by the Code that the demurrer shall distinctly specify the grounds of objection to the complaint. Unless it do so, it may be disregarded. It may be taken to the whole com- plaint or to any of the alleged causes of action stated therein.^ So also the grounds of a demurrer to the reply must be stated ; * and it is presumed also to an answer, although section 163 , as it now stands, does not require it in terms.^ Since tbe case of Haire v. Baker, ^ in the Court of Appeals, the practice is considered as settled, that a demurrer in the words of the statute, that " the complaint does not state facts sufficient to constitute a cause of action," is a sufficiently definite statement of the grounds of objection to raise the question of the sufficiency of the facts stated in the complaint ; ' but this general form is allow- able only when a fact or facts essential to the cause of action are wholly omitted, not where they are defectively stated merely,' though it is thought that a demurrer for the other causes allowed by the Code should be more specific.^ When a demurrer is taken for want of parties, the former practice in equity was that it must show who are the proper parties from the facts stated in the complaint ; not indeed in all cases by name, for that might be impossible, but in such a manner 1 Van Sant. PI., 695, and cases cited. 2 Code, 5 148 ; Gould v. Glass, 19 Barb. ; Higgins v. Freeman, 2 Duer, 650 ; Montgomery Co. Bank v. Albany City Bank, 3 Seld., 464. -' Code, § 145. * Code, § 15^. 5 The section, as it stood prior to the amendments of 1857, required the grounds of demurrer to the answer to be stated. The omission is, perhaps, unintentional. « 1 Selden, 357. ' See cases cited, Van Sant. PL, 712 ; Voorhies' Code, 160. " Bank of Lowville v. Edwards, 11 How., 216 ; Prindle v. Caruthers, 15 N. Y. R., 425. ' lUd. Getty v. Hudson River R. R. Co., 8 How., 177. v. S. 25 194 FUETHER PEOCEEDINGS BY DEFENDANT BEFORE TRIAL. as to point out to the plaintiff the objection to the complaint, and to enable him to amend by making proper parties.^ And the same rule is recognized under the Code.^ So a demurrer will not be sustained on a ground different from that stated ; as if the defect be a want of jurisdiction, and the demurrer be on the ground that the complaint does not state facts sufficient to constitute a cause of action.^' Nor will it be sus- tained on a ground not raised on the argument.* And if a demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action, specifies the particulars in which the complaint is defective, the defendant thereby excludes all other grounds of objection than those par- ticularly set forth, and cannot insist on any others on the argu- ment of the demurrer.^ A defendant may demur to one or more causes of action and answer the residue, it has been held, though the demurrer and answer are on one paper,^ and in form connected ; yet the demurrer and answer cannot be to the same cause of action.^ Thus it is said that there is no warrant for inserting in an answer to the whole complaint the claim that the complaint is insufficient ; such a claim is a demurrer and nothing else.^ And if the de- fendant do thus demur and answer to the same cause of action, the court, on motion, will compel him to elect whether he will abide by his demurrer or answer with the costs of the motion.' Serving, &fc., demurrer. The demurrer may be filed with the clerk of the county where the action is triable ; but it is not necessary to do so unless the defendant is compelled by an order of the court. It is never ' Story Eq. PI., § 543, and cases cited. ^ DeTTitt V. Swift, 3 How., 280 ; Getty v. Hudson River R. R. Co., 8 How., 177. ' Wilson V. The Mayor, &c., of New York, 6 Abbott, 6. ^ Doughty V. Develin, 2 Duer, 627. * ■'' Nellis 11. Deforest, 16 Barb., 65. " Howard v. Mich. S. R. R. Co., 5 How., 207. But such practice is extremely loose and ought not to be sanctioned. ' Muner v. Barnum, 12 How., 563 ; Slack v. Heath, 1 Abbott, 337 ; Streever V. Ocean Ins. Co., 16 How., 422. = Slack -J. Heath, 1 Abbott, 337. ^ Streever v. Ocean Ins. Co., 16 How., 422. FRIVOLOUS DEMUERER. 195 verified, but should be signed by the defendant's attorney, and folioed, if it exceed two folios in length. A copy must be served on the plaintifi''s attorney within twenty days (unless the time to demur has been extended) from service of the complaint, if service has been personal, or forty days if service has been by mail. The defendant may serve notice of trial at the same time the de- murrer is served, which vsdll be effectual if the plaintiff does not amend his complaint as hereafter stated. Plaintrff^s proceedings after demurrer, amending complaint, Sfc. If no ground of objection has been stated in the demurrer, the plaintiff may proceed precisely as though no demurrer or answer has been received, namely : after returning the copy demurrer, he may give notice of his motion to apply to the court for the relief demanded in the complaint in the manner already pointed out.' If the plaintiff consider the demurrer good in form but not well taken, he may at once notice it for trial, and place the cause on the calendar of the first special term for the trial of issues, or Circuit Court, of the county where the action is triable, and bring it on as in other cases. If, however, he conceive the demurrer well taken, and that the complaint is defective, he may amend the complaint, within twenty days after demurrer served, of course, and without costs.^ This, however, must be understood as limited to such amendments as may be made strictly of course, and without application to the court. If a change of parties be necessary, or an alteration of the summons in any respect, the amendment can only be made on application to the court, and on notice to the adverse party .^ If the amendment of course be made, a copy of the amended pleading must be served upon each of the defendants who have appeared, or their attorneys, and if several have appeared by one attorney service of a single copy on such attorney is sufiicient. If the amendment is made o^n application to the court, a copy of the amended complaint and summons should be served within the time allowed, which is usually stated in the order ; and if new parties are brought in a copy of the amended summons and com- plaint must be regularly served on each of them. ■ Ante, pages 126, et seq. ^ Owde, i 172. ^ Code, § 173, and see on this subject ante, page. 196 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. The defendant has twenty days to answer or demur to the amended pleading. If he fails to do so, the plaintiff may proceed in the usual manner to make his application to the court for the relief demanded in the complaint and for final judgment.^ Frivolous demurrer. If the demurrer be frivolous— th&t is, if it clearly appear to be without foundation, and interposed merely for delay^— the plaintiff, on five days' notice to the defendant's attorney, may apply to a judge of the court, either in or out of court, for judgment thereon, and judgment may be given accordingly.^ The court will not give judgment on a demurrer, as frivolous, unless it appears to have been taken for delay merely, or unless the grounds of the demurrer, as set forth, are clearly untenable.^ It is generally considered that where the question raised by the demurrer fairly admits of argument, it will not be adjudged to be frivolous, but the plaintiff will be left to the usual course of bringing on the demurrer for trial as an issue. Though it has been held, that where there is a decision directly in point against the demurrer, it is untenable and will be adjudged to be frivolous. The plaintiff's motion for judgment on account of the frivolous- ness of the demurrer, is founded upon the complaint and the de- murrer alone. No other papers are necessary. If the defendant's attorney do not appear, and proof of the service of notice is fur- nished, or if the judge is satisfied that the demurrer is frivolous, he will make an order overruling the demurrer, and granting such relief as the plaintiff's complaint shows that he is entitled to, in precisely the same manner as though the application had been made to the court for want of an answer, and the plaintiff's pro- ceedings for the entry of judgment are similar to the proceedings on such an application, as heretofore pointed out ; ^ except that the order of the judge overruling the demurrer as frivolous and specifying the relief granted must be drawn up and signed, and ' 1 Monell Pr. (2d ed.), 554. ^ n^^^^ i Qode, § 247. ^ 1 Monell Pr. (2d ed.), 554; Acome v. Am. Min. Co., 11 How., 27. ^ Bank of Wilmington v. Barnes, 4 Abbott, 227. ANSWER. 197 having been served on the opposite attorney, must be filed with the clerk, to be entered in the judgment roll. The defendant, it seems, may appeal, either from the order overruling the demurrer as frivolous, in vs^hich case he should im- mediately take his appeal and obtain a stay of proceedings ; or he may appeal from the judgment, after it has been entered. In the latter case, however, he cannot review the order, and the only question on the appeal will be the sufficiency, and not the frivolous- ness of the demurrer, the demurrer itself being regularly incor- porated in the judgment roll. The court will sometimes, upon overruling a demurrer as frivo- lous, especially where it appears to have been put in in good faith, permit the defendant to answer the complaint upon payment of costs. But the good faith of the demurrer must be manifest, for if it was put in for delay, no such indulgence will be granted.^ SECTION II. OF THE ANSWER AND COUNTEECLAIM. By the former practice in Chancery, a defendant, if he did not demur to the bill, might take his defense either by plea or answer. Equity 'plea. A plea was a special answer, showing or relying upon one or more things as a cause why the suit should be either dismissed, delayed, or barred.^ Of this nature were all declinatory or dilatory pleas, which, if not properly pleas in abatement, were in the nature of pleas in abatement, which, in general, were to be put in before taking a defense on the merits, and were not available by way of answer at the hearing. ^ Thus, the plea might raise the objection of a want of proper parties, where such objection did not appear on the face of the bill, in which case it must point out distinctly who the proper parties were.* > Monell Pr. (2d ed.), 555. " 1 Barb. Oh. Pr., 114 ; Heartt v. Corning, 3 Paige, 566. 3 Story Eq. PL, § 708. * Robinson v. Smith, 3 Paige, 222 ; Mitchell v. Lenox, 2 Paige, 280. 198 FUETHEE PROCEEDINGS BY DEFENDANT BEFORE TRIAL. So, it might set up a fact showing want of jurisdiction, as that the subject matter in dispute did not exceed in value the sum of one hundred doUarS;' So, also, the want of legal capacity to sue, where it did not appear on the face of the complaint, as that the plaintiff was an infant, and no guardian appointed, or a married woman, &c. So, also, that another action was pending between, the same parties for the same cause. These various declinatory or dilatory defenses enumerated in section 144 of the Code are now required to be taken by answer if they do not appear on the face of the complaint,^ and if not so taken they are waived, except only the objection to the jurisdic- tion of the court.^ It was at one time supposed that these declinatory defenses or answers in abatement must be taken before interposing a general answer on the merits, and that an answer in abatement, under the new practice, as under the old, could not be united with an answer in bar ;^ and this practice, if such had been sanctioned, would have been in strict accordance with the practice both in the common law and equity courts.^ But the courts do not seem inclined to follow this construction, and the practice is not un- common of allowing a defense in abatement, as for want of par- ties, another action pending, &c., to be united in the same answer, with a defense upon the merits.^ And such practice has been sanctioned and settled by a recent case in the Court of Appeals.' Equity answer. The answer in an equity suit was the most usual mode of ' Smets V. Williams, 4 Paige, 364. ^ Code, § 147. Union Mut. Ins. Co. v. Osgood, 1 Duer, 707 ; Hornfager v. Hornfager, 1 Code R., N. S., 412. ^ Code, § 148. Posgate v. Herkimer Man. Co., 2 Kern., 584; Bowdoin v. Coleman, 3 Abbott, 431 ; Bates v. James, 3 Duer, 45 ; Youngs v. Saley, 12 How., 395. * Gardner v. Clark, 6 How., 449 ; King v. Vanderbilt, 7 How., 385 ; Van Bus- kirk V. Roberts, 14 How., 61. 5 See this subject discussed, Van Sant. PI., 386, et seq. ^ Bridge v. Payson, 5 Sand., 210 ; Maybew v. Robinson, 10 How., 164 ; Sweet ■V. Tuttle, 10 How., 40. ' Sweet V. Tuttle, 4 Kern., 465. ANSWER. 199 defense. We have seen how the complaint or bill in Chancery was framed, and what it might contain ; and that it answered the double purpose of, 1st. a statement of the plaintiff's cause of action, and 2d. a mode of discovery of evidence, or of the exami- nation of the defendant. Hence, the rule that, when the defend- ant submittedto answer, he must answer fully; that is, he must not only answer all the allegations of fact going to constitute the cause of action, but also all the charges in the bill and the interro- gatories pertinent to the case, with as much minuteness and cer- tainty as though put upon the stand as a witness. And if the answer was not sufficient, the plaintiff might except to it and obtain a further ansv^er.' Indeed, bills for discovery alone, that is to take the examination of the defendant in aid of the prosecution or defense of a suit at law, were a common proceeding in equity. For, in an action at law, a party to the record could not be called upon to give evidence, and the opposite party had in such case no remedy, except by filing his bill of discovery, and obtaining, in the mean- time, a stay of the proceeding in the suit at law. By this means the party against whom the bill was filed was compelled to answer the charges and interrogatories alleged, and his answer could be read in evidence on the trial of the suit at law. Answer of the Code. It has already been observed that the Code, which provides a direct mode of examining parties as witnesses on the trial of all civil actions, has also abolished the discovery which equity per- mitted ; ^ and that now no pleading can be used, in any sense, simply to compel or procure an examination of the defendant. The answer can now be used only as the vehicle of defense : 1st. by denials of the plaintiffs allegations ; 2d. by statement of defensive matter ; 3d. by statement of counterclaim, or an inde- pendent cause of action existing in favor of the defendant against the plaintiff, and which may not only defeat the plaintiflT's cause of action, but, if substantiated, entitle the defendant to some affirmative relief or judgment in the same suit. Let us briefly notice each of these branches of defense. 1 Ante, pages 12, 13. » Code, § 389. 200 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. 1st, General or specific denial. In the first place the answer by the Code is required to contain " a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief." ^ The denial may be general, to the whole complaint ; that is, in the language usually employed, " The defendant denies each and every allegation contained in the complaint." A denial of each and every material allegation, &c., has been considered insufficient, as leaving it in the mind of the defendant to judge of the materiality of the allegations. Or, if there should be some one or more of the allegations which the defendant is willing to admit, and deny the residue, he may say generally that he denies each and every allegation, except, &c., &c. ^ It is not necessary, or indeed proper, that he should in terms admit any particular allegation or allegations. The Code does not specify such admissions as any part of the answer, and though not uncommon in actual practice, yet in one case, at least, they have been held surplusage and improperly inserted in the answer.^ Instead of this general form of denial to each of the allegations in the complaint, or each of them, except, &c., the defendant, if he choose, may specifically deny each, or any number, of the alle- gations of the complaint separately. Or, if the fact which the defendant wishes to controvert be not correctly stated, or the defendant consider it necessary to vary such statement in any way, he may specifically deny the allegation as stated, and accompany such denial with a correct statement of the alleged fact ; as, for example, " the defendant denies the allegations that, &c., &c., as stated in said complaint ; but on the contrary alleges that the only," &c., &c., as the fact actually is. Merely making a counter-statement, or giving a different version of the matter from that contained in the com- plaint, without denying the allegations thereof, is not specifically controverting such allegations. The plaintiff's allegations, there- fore, will be deemed admitted, unless put in issue by some general, or by a direct specific, denial.^ ' Code, § 149. 2 Parshall v. Tillou, 13 How., 7. 3 Gould V. Williams, 9 How., 51. * Wood v. Whiting, 21 Barb., 190. ANSWER. 201 The denial need not be in all cases in form positive, but a denial upon information and belief seems to be one of the forms of denial allowed by the Code ; ^ and even a denial upon belief alone is thought to be sufficient,^ as it was under the old practice in regard to matters not within the defendant's personal knowledge.^ The defendant may also, either as to each of the allegations, or as to any particular allegation in the complaint, deny " any know- ledge or information thereof sufficient to form a belief" * Such a denial is sufficient to put the allegation at issue, and oblige the plaintiff to sustain it by proof as effectually as a positive denial, and it is unnecessary to go further and state, " and therefore he denies the same."^ Defective denials of knowledge or information, Sfc. But the fonner equity rvile, in regard to such a form of denial, has been fully applied to pleadings under the Code, that is to say, such a denial cannot be interposed to an allegation which is presumptively within the knowledge of the defendant ; nor can it be interposed even to an allegation as to which the defendant is bound to make inquiries and inform himself before answer.^ And if it be so interposed, it will be adjudged /moZoMs;'' or at least struck out on motion as sham? This rule was constantly recognized in the Chancery practice, and its application there was similar in all respects to the practice under the Code. Thus, where matters charged in the bill, as the acts of the defendant himself, were of such a nature that he could ' The cases in which it may be properly used are pointed out by Harris, J., in Edwards v. Lent, 8 How., 28. See also Sackett v. Havens, 7 Abbott, 371, note. See also Van Sant. PI., 437, et seq. But see Hackett v. Richards, 3 E. D. Smith, Com. PI. R., 13. * Davis V. Potter, 4 How., 155 ; Kincaid v. Kipp and Brown, 1 Duer, 692. ^ Bolton V. Gardner, 3 Paige, 372. ^ Code, § 158. 5 Flood V. Reynolds, 13 How., 112; Leach v. Boynton, 3 Abbott, 1 ; Duncan V. Lawrence, 6 Abbott, 304. See various forms and precedents of denials, Van Sant. Prec. of PI., 530-544. ^ Chapman v. Palmer, 12 How., 37 ; Fales v. Hicks, 12 How., 153 ; Richardson V. Wilton, 4 Sand., 708 ; Sherman v. New York Central Mills, 1 Abbott, 187 ; Thorn v. Same, 10 How., 19 ; Wesson v. Judd, 1 Abbott, 254 ; Hance v. Reming, 2 E. D. Smith, 48 ; Mott v. Burnett, ib., 50 ; 1 Code R., N. S., 255. ' Ibid. ^ Leach v. Boynton, 3 Abbott, 1, V. S. 26 202 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. be presumed to recollect them, if they ever took place, a positive answer was required.^ Where a bill charges usury, an answer that the defendant does not remember the terms on which the money was lent, is considered evasive, and tantamount to an admission of usury. So, where the bill directly charges upon the defendant that he had made and entered into a certain agreement, it has been held that a simple denial by the defendant in his an- swer, " according to his recollection and belief," is insufficient, and ought to be treated as a mere evasion.^ Similar rules have been applied to the new pleadings, and the form of denial that " the defendant is ignorant of whether," fec..^ or " is not informed and cannot state," has been considered insuffi- cient.* So a denial to the effect that the defendant " has no recollection sufficient to form a belief," was held a mere evasion, and as form- ing no material issue.* But where the facts are such that it is probable the defendant cannot recollect them, so as to answer more positively, a denial of the facts according to his knowledge, recollection and belief (by the Chancery practice),^ and a denial of any knowledge or information sufficient to form a belief (by the practice under the Code), will be sufficient. If the defendant never heard of, or knew of the facts charged, except as they are stated in the complaint, he is not bound to ad- mit or deny them, or to express any belief one way or the other.'' In such case he may use the form of denial of knowledge, &c., as provided by the Code. But if he has any information on the subject, other than such as is derived from the complaint, he must answer as to such information (under the former practice), and as to his belief or disbelief of the facts charged.^ By the same principle under the Code, he cannot simply deny Icnowledge suffi- ' Hall V. Wood, 1 Page, 404 ; Sloan v. Little, 3 Paige, 103. 2 Taylor v. Lather, 2 Sumner, 228 ; 1 Barb. Ch. Pr., 134. 3 Wood V. Staniel, 3 Code R., 152. ■• Elton V. Markham, 20 Barb., 348. See Sayre v. Gushing, 7 Abbott, 371. 5 Nichols V. Jones, 6 How., 355. ' Hall v. Wood, 1 Paige, 404. ' Sloan V. Little, 3 Paige, 103 ; TJtica Ins. Co. v. Lynch, lb., 210. * Ibid. See also Sackett v. Haven, 7 Abbott, 371, note. ANSWER. 203 cient to form a belief without referring to his information ; but he must deny both knowledge or information sufficient to form a belief, otherwise such denial will not be valid.^ When the defendant has no knowledge or information as to the facts stated he may deny in this form generally, without answer- ing each charge separately.^ But he cannot so answer matters, either known to him or charged in the complaint to be within his personal knowledge, but must answer the substance of each charge distinctly and particularly.^ Under the old practice, and so, also, under the new, as has been already observed,^ a defendant is bound to make use of due dili- gence to acquire the information necessary to enable him to answer. Thus he must answer positively (if he answer at all), not only as to all facts within his knowledge, but as to those which he can ascertain from an inspection of books and papers in his possession or under his control f or as to records to which he is a party, or as to facts which he can ascertain by inquiry of parties who are connected with him in the transaction or suit. The defendant may answer one or more of the allegations by a positive denial, or admit one or more to be true, and answer the residue in the general form of traverse, that he has no knowledge or information sufficient to form a belief,^ or he may, in this form, take issue upon one or more of the material allegations in the complaint, leaving the residue unanswered. Or pursuing the practice indicated in some of the cases,'' he may resort to the three modes of denial in the same answer, and deny some of the allega- tions positively ; others, which are not presumptively within his own knowledge, either on information and belief, or any know- ledge or information thereof sufficient to form a belief.^ It must be borne in mind that an answer to an equity bill, when the defendant submitted to answer, was required to be full to every particular and charge well pleaded. The answer of the ■ Edwards v. Lent, 8 How., 28. ^ Utica Ins. Co. v. Lyncli, 3 Paige, 210. 3 lUd. ^ Ante, page 201. = Davis v. Mapes, 2Paige, 105. ' Genesee Mut. Ins. Co. v. Moynihen, 5 How., 321 ; Utica Ins. Co. v. Lynch, 3 Paige, 210 ; Lube Bq. PI., 269. ' Edwards v. Lent, 8 How., 28, and similar cases above cited. ^ See this subject more fully discussed and cases cited, Van Sant. PI., 430-449. 204 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAJL. Code is altogether optional with the defendant, and he may answer just so far, and just so many allegations as he chooses, leaving the residue unanswered, which for the purposes of the action are in such cases taken as admitted.^ In this respect the answers of the present and the former practice differ essentially. But, as to what constitutes a good or suificient answer — in res- pect to the traverse or denial of the complaint — the rules are entirely similar, and indeed almost identical. Thus, the defend- ant must answer the charges directly, without evasion, and not by way of negative pregnant. He must not answer the charges merely literally, but he must confess or traverse the substance of each charge, positively, and with certainty. Particular and pre- cise charges must be answered particularly and positively, and not in a general manner, even though the general answer may amount to a full denial of the charge.^ It is not enough when a charge is made with all the circumstances of time, place, &c., to deny such charge generally in the words thereof ; but in all cases where the charge embraces several particulars, the answer should be in the disjunctive, denying each particular.^ These and similar rules, were well understood as rules of plead- ing in equity, and they have been repeatedly recognized and applied in cases arising under our new system.^ A further dis- cussion of them, however, would be out of place here, as they belong more properly to the province of pleading, a subject which I have, heretofore, considered in a separate treatise, to which the reader is referred. Answer of new matter. The answer in equity on the merits (and not when called for by way of discovery) served, as we have seen, a similar purpose to the answer of the Code. It was used, ^rst, for the purpose of answering — that is of denial, or taking issue upon — the case made by the plaintifl's bill ; and second, for the purpose of stating to • Code, § 168. 2 1 Barb. Ch. Pr., 136. 2 King V. Ray, 11 Paige, 239 ; Davis v. Mapes, 2 Paige, 105. * Davison v. Powell, 16 How., 467 ; Otis v. Ross, 8 How., 168 ; Salinger r. Rusk, 7 How., 430 ; Sherman v. N. Y. Central Mills, 1 Abbott, 187. And see other cases cited and various examples of defective denials given in Van Sant. PI., 427, et seq. ANSWER. 205 the court and apprising the plaintiff of the nature of any substan- tive matter of defense, which the defendant might have to the action, not appearing on the face of the complaint. This is precisely the order of the new practice ; and ha-ving considered, in the first place the denial or traverse, which the answer is required to contain, let us, secondly, briefly glance at the affirmative matters of defense, dehors the complaint which the defendant may set up in his answer. These may be of two kinds, namely, 1st. a defensive answer of new matter merely ; and 2d. a counterclaim ; the provision of the Code upon the subject being that, besides the general or specific denial, the answer may contain " A statement of any new matter constituting a defense, or counterclaim, in ordinary and concise language, without repetition." ^ Defensive answer of new matter. The Code indicates only two requisites which a defensive answer of new matter must contain, namely : 1st. It must be new matter constituting a defense; this relates to the substance. And 2d. it must be " in ordinary and concise language without repetition," which relates merely to theybrm." If an answer of new matter substantially conform to these two requisites, it will be good ; and nothing else is necessary to make it an available defense. There are, it is true, certain other matters of form pertaining to it which are governed either by the rules or the practice of the court, and will be hereafter noticed ; but defects in these respects are, for the most part, mere irregularities, and not matters of substance. 1. As to the substance of the answer. An answer of new matter, then, to be good in substance must be of such new matter as " constitutes a defense.''^ If it be not, it is in all cases liable to be demurred to.^ The question as to what is the true meaning of the term " defense," as used in the Code, has been frequently before the courts, and has been the subject of repeated judicial construc- ' Code, § 149. 2 co^e, § 153. 206 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. tion.i "Without entering upon a full review or analysis of the cases, it is sufficient to observe here, that while an occasional decision ^ would seem to show a tendency to restrict the term to the limits and uses of the old common law plea, which was required to be an answer to the entire declaration or count, yet the decisions on the whole seem to have finally settled the prac- tice the other way, namely, that the answer of the Code assimi- lates itself, in every respect, to the answer in Chancery ; and that the defense of new matter which may be pleaded, need not be such as technically constitutes a bar to the action, but may include, as in an answer in Chancery, a defense 'pro tanto, or a partial defense, such as abatement of damages going to a part of the consideration, and other cases of recoupment,^ or set-oiF, payment, and the like.'' Indeed, the Court of Appeals, following similar decisions of the Supreme Court, has recently held, that such matters of partial defense, as payment, &c., are defenses as far as they go, and not only may but must be taken by answer, in order to be available in proof on the trial.^ This was exactly the rule in equity, where the defendant was, in all cases, bound to apprise the complainant, by his answer, of the nature of the case he intended to set up ; and that, too, in a clear, unambiguous manner ; and could not avail himself of any matter in defense, not stated in his answer, even though it should appear in his evidence.^ In equity there was no general issue proper, as at law, and so it has been held with regard to the denial of the Code.' It was, therefore, allowable in equity to state all matters of defense which ' Benedict v. Seymour, 6 How., 298 ; Hougliton v. Townsend, 8 How., 442 ; Stoddard v. Onondaga Annual Conference, 12 Barb., 573 ; "Willis •;;. laggard, 6 How., 433 ; Edson v. Dillaye, 8 How., 272 ; Kneedler v. Sternburgh, 10 How., 67 ; Bush v. Prosser,.l Kern., 347 ; McKyring v. Bull, 16 N. Y. R., 297. ■^ Like that of Kneedler v. Sternburgh, 10 How., 67. ^ Van Epps v. Harrison, 5 Hill, 63. •' Houghton V. Townsend, 8 How., 442 ; Bush v. Prosser, 1 Kern., 347. •■= McKyring v. Ball, 2 Smith, 16 N. Y. R., 297 ; Willis v. Taggard, 6 How. 433 ; Wightman v. Shankland, 18 How., 80. " 1 Barb. Ch. Pr., 137, and cases cited. ' Pay V. Grimsteed, 10 Barb., 321 ; Catlin v. Gunter, 1 Duer, 253 ; Houghton V. Townsend, 8 How., 441. ANSWER. 207 were not the subject of a plea, whether partial or not, in the answer.^ And, indeed, almost everything which might have a bearing on the result of the controversy, might be alleged. The rule is laid down by the Chancellor in Van Eensselaer v. Brice,^ " If the matter of an answer is relevant, that is, if it can have any influence whatever in the decision of the suit, either as to the subject matter of the controversy, the particular relief to be given, or as to the costs, it is not impertinent." This, as I under- stand the decisions, is precisely the nature of the " new matter constituting a defense " mentioned in the Code. Matter which answers any part of the plaintifiF's case or demand, or shows him entitled to other, or less, or diiferent relief than he claims, or goes even to the question of the amount of the recovery, or his right to costs, is a proper defense, which may and should be pleaded.^ In short, to adopt the language used in the prevailing opinion in the recent case of McKyring v. Bull, in the Court of Appeals,* "It has been found most conducive to justice to require the parties virtually to apprise each other of the precise grounds upon which they intend to rely, and the system of pleading prescribed by the Code appears to have been conceived in the same spirit. It was evidently designed to require of parties, in all cases, a plain and distinct statement of the facts which they intended to prove, and any rule which would enable defendants in a large class of cases to evade this requirement, would be inconsistent with this design." And again in the same case,^ "My conclusion therefore is, that section one hundred and forty-nine should be so construed as to require the defendants, in all cases, to plead any nfew matter constituting either an entire or partial defense, and to prohibit them from giving such matter in evidence upon the assessment of damages, when not set up in the answer. Not only payment, therefore, in whole or in part, but release, accord and satisfaction, arbitrament, &c., which may still, for aught I see, be made avail- 1 Lub6 Eq. PI., 178 ; Mitf. Eq. PI., 249. = 4 Paige, 174. 2 Bush V. Prosser, 1 Kern., 347 ; McKyring v. Bull, 2 Smith, 16 N. Y. R., 297 ; Hynds v. Griswold, 4 How., 69 ; Wightman t. Shankland, 18 How., 80. 4 Per Selden, J., 303. = jftj^/,^ 309. 208 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. able in England in mitigation of damages without plea, must here be pleaded. In this respect our new system of pleadings under the Code is more symmetrical than that prescribed by the recent rules adopted by the English judges." As to answers of new matter in bar of the plaintiff's cause of action— that is, answers which contain within themselves a full defense to the entire cause of action — all that it will be proper to say here is, that the general rules which govern the statement of the essential facts in a complaint are equally applicable to the answer. Thus, the facts themselves, constituting the defense, must be stated, and not the evidence of the facts, or collateral circumstances. The facts alone must be stated, and not legal conclusions, or inferences of law. The facts which are material to the defense only must be stated, and not immaterial allegations or frivolous averments. The facts must be stated as facts, logically and directly, and not in hypothetical form, or in an evasive or ambiguous manner ; ^ nor in the alternative, and if so stated, will be struck out on motion.^ Nothing but these general rules can be appropriately given here, because answers in equity suits depend so much upon the peculiar facts of each case that it would be impossible to enter upon a disquisition as to what might be properly pleaded in defense of particular classes of actions, or the proper mode of framing and presenting defenses therein. And the particular adjudicated cases and decisions may be found collated and con- veniently referred to in other works of practice. Two additional observations only will close what remains to be said on this subject. 1. It was the practice in Chancery to allow a defendant to set up in his answer matter which has occurred between the filing of the bill and the putting in of the answer.* This is still the prac- tice in actions under the Code, and it is competent for the defend- ' See these general rules of pleading laid down, ante, pages 89-99. 2 Oorbin v. George, 2 Abbott, 465. 3 Lyon V. Brooks, 2 Bdw., 110 ; 1 Barb. Oh. Pr., 141. ANSWER. 209 ant to set up in his answer matters of defense arising after suit brought, such as settlement, discharge of action, and the like.^ 2. An equitable defense may be interposed to a purely legal cause of action. This is a novelty in the practice in our courts, both of law and of equity, and is introduced by those provisions of the Code which abolish the distinction which heretofore existed in the form of actions, and which allows the defendant to set forth by answer several defenses, whether such as have been denomi- nated legal, or equitable, or both.^ Thus, while in equity a defendant, against whom a specific performance of a written agreement was sought, might insist, by way of answer, upon any equitable defense, such, for example, as a mistake in the contract, as a bar to the bill, ^ yet, if the action had been brought at law for damages for breach of the contract, he could not do so, but must first go to equity, and have the mistake corrected. He may now, however, whether the relief demanded be legal, as for compensation in damages, or equitable, as for specific performance or otherwise, set up the same defense.^ Thus, also, in an action on a judgment, he may set up in defense that it was obtained by fraud.^ In an action to recover possession of land, he may set up in answer a mistake in the conveyance ; ^ or that he is equitably the owner of the premises and entitled to a conveyance thereof ; as, for example, the plaintiff having proved legal title to the premises in dispute, occupied by the defendant, the latter may be allowed to show that the land was included in the purchase by him, or his lessor, of the adjacent premises from the plaintiff's grantors, and that, by a mutual mistake of the parties, it was not included in the conveyance thereof, and th9,t in equity the defendant (or his lessor) is entitled, as against the plaintifi" and his grantors, to a conveyance of the premises.^ ' Willis V. Chipp, 9 How., 568; Donovan v. Hunt, 7 Abbott, 29. 2 Code, § 150. 3 Story Eq. Juris., § 161. * See also Foot v. Sprague, 12 How., 355 ; Hunt v. Farmers' Loan and Trust Co., 8 How., 418 ; Van De Sande v. Hall, 13 How., 458 ; Haire v. Baker, 1 Seld., 357 ; Hinman v. Judson, 13 Barb., 629. 5 Dobson V. Pearce, 2 Kern., 156. « Bartlett v. Judd., 23 Barb., 262. ' Orary v. Goodman, 2 Kern., 266. V. S. 27 210 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL, It is not every equitable claim, however, that may be thus set up in defense. Thus, it is held, that in an action for damages for diverting a water-course, the defendant cannot set up, either by way of equitable defense, or counterclaim, the violation by plain- tiff of an agreement relative to the deepening of the channel made four years prior to the alleged diversion of the water.^ The equitable defense which may be set up, seems to be of the same character with and governed by the same rules as the counter- claim allowed by section 150 of the Code, which will be presently noticed. It should be observed also that the setting up of an equitable defense to a legal cause of action, does not transform such cause of action into an equitable action for the purpose of making it triable without a jury, by the court ; but that it must stUl be tried by jury. 3. Counterclaim or answer ashing affirmative relief. Before pro- ceeding to speak of the form of an answer, and certain other matters pertaining to it, it is proper here, very briefly to notice that important part of a pleading which the Code denominates a counterclaim. Neither the professional nor the judicial mind seems to have as yet fully settled the meaning and true interpretation of this term as used in the Code. I have already discussed the subject > to some considerable extent in a treatise devoted exclusively to the subject of pleading, and the reader is referred to what is there stated in relation to it ; ^ taking this occasion to remark, that I have since that time seen no reason to change, to any considerable degree, the views then expressed. I shall merely add here a few observations, suggested by, and founded upon, the decisions reported since that work was published.^ The Code (section 150), as it now stands, contains the follow- ing legislative definitions of the term " counterclaim :" " The counterclaim mentioned in the last section must be one existing in favor of a defendant, and against a plaintiff, between ' Pattison v. Richards, 22 Barb., 143. ^ Most of the cases which had been decided at the time of the publication of that work will be found there collated and commented on, at pages 544 to 583. ' A. D., 1855. COUNTERCLAIM 211 whom a several judgment might be had in the action, and arising out of one of the following causes of action : *' 1. Cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiflf's claim, or connected with the subject of the action. " 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action." In the first place it is obvious that a counterclaim proper is a demand — or, as it is called, a cross demand — existing in favor of a defendant and against a plaintiff. It must be such a demand as would enable the defendant to bring a suit upon it.^ It must con- stitute a cause of action in the defendant against the plaintiff to the record, independent of the plaintiff's cause of action, and which would entitle the defendant to maintain an action against the plaintiff, if the plaintiff had brought no suit against the de- fendant ; otherwise, and if it be defensive merely, tending to show that the plaintiff has no cause of action, or tending to defeat his recovery in whole or in part, it does not properly constitute a counterclaim ; and, though it may be pleaded as a defensive an- swer, it need not be replied to.^ It is not necessary, however, that the counterclaim should equal the amount of the plaintiff's claim, but it is enough if it be a cause of action in favor of the defendant, and against the plain- tiff, arising out of the contract or transaction set forth in the com- plaint, or connected with the subject of the action f and it should then be pleaded as a counterclaim in order to call for a reply, and not as defensive merely.^ And it must show the facts making it such counterclaim, for the mere allegation that it " is a counter- claim, existing^at the commencement of the action," is unavailing.* 1 Gleason v. Moer, 2 Duer, 642 ; Kingston Bank v. Gay. 19 Barb., 461 ; Spen- cer V. Babcock, 22 Barb., 335 ; Lemon v. Trull, 13 How., 248 ; Vassar v. Liv- ingston, 3 Kern., 252; Dillaye v. Niles, 4 Abbott, 253. 2 Nichols V. Boerum, 6 Abbott, 290. 2 Allen V. Haskins, 5 Duer, 332. * Burrell v. De Groot, 5 Duer, 379 ; Gildersleeve v. Mahony, 5 Duer, 383, 385- * Van Valen v. Lapham, 5 Duer, 689. 212 FUETHEE PEOCEEDINGS BY DEPENDANT BEFORE TEIAL. In the next place it is equally obvious that, though a counter- claim is a cross demand, yet it is not every cross demand that is a counterclaim. It must come v^ithin one of the definitions above stated. Thus, in an action for a wrong no other cause of action for a wrong is admissible. In an action for damages for the con- version of a ring, it was held that a defense alleging an exchange of rings, each to be kept until the other should be returned, and averring a tender of the one and a demand of the other, and asking judgment for the defendant's ring, or for its value, was not a counterclaim ;i though the principle of this case has since been doubted, it being suggested that the exchange of the rings being really a mutual agreement, the defense was in fact a counterclaim.^ So in an action for divorce for adultery ; though the adultery of the plaintiff may be set up by the defendant as a counterclaim, as has been done since the Code,^ yet the defendant cannot so set up the cruel and inhuman treatment, or abandonment, by the plain- tiff.* And in an action for diverting a watercourse, the defendant cannot set up as a counterclaim the violation by plaintiff of an agreement relative to the deepening of the channel of the stream through their respective lands, made four years previously.* These and similar cases, though the claims really constitute causes of action by the defendants against the plaintiffs in the respective cases, are not claims properly arising out of the con- tract or transaction set forth by the plaintiff or " connected with the subject of the action," and cannot, therefore, be pleaded as counterclaims. The counterclaim of the Code, while more comprehensive than the statutory set-off, will not, it has been thought, include defenses which would not have been available either as legal or equitable set-offs, or by way of a cross action, when the suit was in Chan- cery, and of an equitable nature." This definition, however, ' Askins v, Hearns, 3 Abbott, 1 84. = Per Hoffman, J. The Xeiiia Branch Bank v. Lee, 7 Abbott, 377. 3 Anon., 11 Leg. Obs., 350. < Diddell v. Diddell, 3 Abbott, 187. sPattison v. Richards, 22 Barb., 143. ' Per Hoffman, J. Peabody v. Bloomer, 3 Abbott, 359. COUNTERCLAIM. 213 still makes the counterclaim a bfoad and descriptive term, and may be said to comprise, as stated iu one of the cases, " any claim or contract, sealed or unsealed, and whether the damages are liquidated or unliquidated, and also any breaches by the plaintiff of any promise or contract on his part contained in the contract sued on, any equitable relief against a legal demand, formerly obtainable by a bill in Chancery, and any affirmative relief which, in equity suits, could be had by a cross-bill."^ Accordingly it was held that in an action of trover by a plaintiff who has indorsed notes and bills of exchange, and brought to recover the value thereof from a defendant in whose possession they are, and who claims title thereto through the plaintiff's indorsement, the de- fendant may set up title in himself, demand of payment, protest, and notice, and ask, by way of counterclaim, a judgment against the plaintiff as indorser.^ Within the above definition the counterclaim may include "any equitable relief against a legal demand formerly obtainable by a bill in Chancery." Thus in answer to an action on a note or bond, a defendant may set up facts to show not only that he ought not to be required to pay the note or bond sued upon, but that it ought to be given up to be canceled.^ In an action founded on a legal title to obtain possession of land, the defendant may set up an equitable right to a conveyance from the plaintiff, and if he prove himself equitably the owner, with a right of possession, and entitled to a conveyance from the plaintiff, he will not only defeat the action, but may obtain his affirmative relief;* or he may set up a mistake in the conveyance, and ask that such conveyance be reformed,* and he need not first, by a separate equitable suit, have the mistake corrected or his equitable right adjudicated before he can interpose it to the legal title, but it may be set up in the same suit and brought to trial and hearing together. ' The Xenia Branch Bank v. Lee, 7 Abbott, 376 ; see authorities cited in that case by Hoffman, J. Gleason v. Moer, 2 Duer, 642. ^ The Xenia Branch Bank v. Lee, 7 Abbott, 373. 2 Per WooDRurr, J. The Xenia Branch Bank v. Lee, 7 Abbott, 397. ' Crary v. Goodman, 2 Kern., 266. « Bartlett v. Judd, 23 Barb., 262. 214 FUKTHEK PROCEEDINGS BY DEFENDANT BEFOEE TEIAL. So, also, within the above definition, the counterelaim may in- clude " any affirmative relief which, in equity suits, could be had by cross-bill." The defendant's answer in Chancery was in all cases defensive merely, and could not go further than ask a dis- missal of the bill. If he desired to ask affirmative relief he must file his cross-bill.^ But the cross-bill, except, perhaps, in special cases (which will be noticed in the following section), may now be dispensed with, and whatever was heretofore the proper subject of a cross-bill in equity for relief, may now be set up by way of counterclaim in the action. But a cross-bill could not introduce new and distinct matters not embraced in the original bill ; ^ or, as the Code expresses it, not " connected with the subject of the action." It was always founded upon matters in question in the original suit.^ Thus, to a bill brought to enforce a contract, a cross-bill to rescind a different contract, respecting the same property, would not lie. But where a vendor of land, among other things in his bill, asserted a lien for the purchase money against an assignee of his covenant for a title, the latter might maintain a cross-bill for a rescision of that contract.^ It lay in a suit for specific perform- ance of an agreement, to have the agreement delivered up and canceled ; also on a bill filed to set aside an agreement or con- veyance, to have the agreement or conveyance established.^ And precisely the same objects may be now sought through the instrumentality of the counterclaim, set up in the answer, and determined in the same suit. Several defenses, or counterclaims. Having thus considered the substantial parts of the answer con- taining " new matter," both the defensive answer and the counter- claim, let us notice, in the next place, the practice in regard to setting forth two or more defenses to the same complaint, or the same cause of action. ' Lube Eq. PI., 39, 2 Barb. Ch. Pr., 126, et seq. » Hopk. Ch. R., 48. s Mitf. Eq. PI. 81; Cooper Eq. PJ., 85. • 1 Dana, 588. ' 2 Barb. Ch. Pr., 128. SEPARATE ANSWERS. 215 The provision of the Code on this subject is contained in section 150, as follows: " The defendant may set forth by answer, as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal, or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished." WTiat kind of seigarate defenses may he pleaded together. There is no rule prohibiting the defendant from uniting in the same answer any kind of defenses "he may have;" except that such defenses shall not be inconsistent — that is to say, they must not be such that one of them must necessarily be false.^ If he do, one of them will be struck out, or the defendant will be com- pelled to elect by which he will abide. But the correct rule is held to be that answers which were not inconsistent under the former practice will not be held inconsistent under the Code.^ A defendant in an equity answer could not set up two defenses that could not both be true in fact, but he could deny the truth of the allegations of the bill, and set up any other matters not wholly inconsistent, with his denial on a full or partial defense.^ The same rule may now be considered well settled under the present practice ; and answers are regarded as inconsistent only when one of them is conceded or shown to be false ; ^ or, as it is well expressed in one of the cases,* when " the several defenses contain matter so inconsistent that the proof of one defense would necessarily disprove the other." The defendant may, therefore, subject to the above limitation, deny any, or all, the allegations in the complaint. He may set up matter in avoidance, going to defeat, or bar, the same cause of action. He may set up matter in abatement, or a dilatory defense ' Schneider v. Schultz, 4 Sand. S. 0. K., 664 ; Arnold v. Dimon, 4 Sand. S. C. R., 680 ; Roe v. Rogers, 8 How., 356 ; Livingston v. Harris, 2 E. D. Smith Com. PI. R., 197. " Lansing v. Parker, 9 How., 288. . ^ Hopper v. Hopper, 11 Paige, 46. * Ostrom V. Bixby, 9 How., 57. * Hollenbeck v. Clow, 9 How., 289 ; see also, Otis v. Ross, 8 How., 184. 216 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. to the same cause of action ; or he may meet it with a counter- claim, going not only to defeat the plaintiff's demand, but show- ing the defendant entitled to an affirmative judgment. And the defendant may also avail himself of as many defenses as he pleases, whether they be such as would be strictly legal, or defenses of a purely equitable nature. And all this in the same answer. How they must be stated. Each defense must be separate in itself,^ and it must be a com- plete single defense in itself, without reference to others ; for, a defense cannot be made out by connecting two or more separate defenses together .= And a defense claiming to be separately stated, but not complete in itself, and only to be made complete and sufficient by resorting to portions of other defenses contained in the same answer, is insufficient, and bad on demurrer.^ But this rule, it seems, is subject to this qualification, which is always very convenient in practice, that where facts are alike applicable to each of several defenses (as, for example, the character which the defendant wishes to establish in his defense, or the facts show- ing his appointment as trustee, receiver, committee, &c., if it become necessary to plead such facts and the like), the pleader, for the purpose of avoiding repetition, may aver them in one of his distinct and separate statements of defense, &c., or by way of introduction to all, and thereafter, in his subsequent separate statements, by distinct and intelligible reference, clearly include them in each.'' The Code requires that they must not only be separately stated, but must "refer to the causes of action which they are intended to answer in such manner that they may be intelligibly distin- guished ;" ^ and the rule requires that they shall not only be separately stated, but plainly numbered.' If the answer fail to do this, every allegation, not material to a single defense, is liable 1 Swift V. Kingsley, 24 Barb., 541. ° Spencer v. Babcock, 22 Barb., 327 ; Bridge v. Payson, 5 Sand., 200 ; Brown V. Ryckman, 12 How., 314. 3 The Xenia Branch Bank v. Lee, 7 Abbott, 373. * Ibid. And see cases cited in note on page 373, of same case. « Code, § 150. ^ Sup. Court, Rule 19. SEPARATE ANSWERS. 217 to be struck out ; ^ though the irregularity of failing to number the defenses, it is held, is waived by not returning the answer immediately, with notice of the objection.^ No formal commencement or conclusion is necessary to mark each separate defense, but such defense should be indicated by some clear and appropriate language f as, for example, " 2d. And as to the cause of action secondly set forth in the plaintiff's com- plaint, the defendant, for further answer, says," &c.^ Effect of separate answer. Each separate answer must not only stand or fall by itself, but each defense is separate in itself, and a defendant has the right to avail himself of it without reference to the others. The plaintiff must recover upon the whole record, and an admission in one answer does not preclude the defendant from proving the matter of defense set up in another.^ Joint or separate defense of two or more defendants. Where there are two or more defendants, the equity rule as to whether the answer should be joint or separate, is the rule of the Code. Where the defendants, if liable at all, are liable as joint contractors, or where a joint fiduciary capacity exists, the answer should be joint.^ But the rule does not apply where the joint parties are liable to account and incur responsibility, as in the case of executors and trustees.'' When the interests of the defend- ants are not the same, they should put in separate answers, which may be by the same or by different attorneys. Counterclaim in favor of one or more of several defendants. The counterclaim mentioned in the Code (section 150), " must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action;" that is, for example, where an action is brought against several defendants who are Jointly but not severally liable, the plaintiff, if he obtain judgment at all, must have a judgment against all, and therefore a separate counterclaim, held by one of the defendants. ' 1 Whit. Pr., 327. ^ Oorbin v. George, 2 Abbott, 465. '' Bridge v, Payson, 5 Sand. S. C. R., 210 ; Lippencott v. Goodwin, 8 How., 242. ^ Van Sant. PI., 538 ; see this subject discussed and cases cited, 535-541. = Swift V. Kingsley, 24 Barb., 541. = 1 Barb. Ch. Pr., 159. ' Ibid. V. s. 28 218 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. cannot be pleaded. But if the defendants be severally liable, so that the plaintiff, if he succeed, might have a separate judgment, then one of the defendants having a counterclaim against the plaintiff, may interpose it as a defense. This seems to be the result of the cases, thus far, under this novel provision of the Code ; the practice in regard to which is yet quite unsettled.^ Where such a separate counterclaim is set up in defense, it should of course be by the separate answer of the defendant to whom it belongs, and cannot be claimed or relied upon by the others. Answer must he in concise language and without repetition. The second of the two essential requisites of a good answer of " new matter," under the definition of the Code (the first being that it must be " new matter constituting a defense "), is, that it must be " in ordinary and concise language, without repetition."^ The language slightly differs from that used in regard to the complaint, which is "without unnecessary repetition."^ The change in the phraseology was not intended, I apprehend, to convey any different meaning, as no mere repetition in a pleading can ever be necessary. The same principles, therefore, which apply to the complaint in this respect, are equally applicable to the answer, and it is sufficient to refer to what has been already said on that subject.^ If, under the pretense of setting forth several separate defenses, the defendant set forth the same defense in different forms, the court will, as in case of a complaint, strike out all but one, or compel the defendant to elect by which he will abide. So in any other case of unnecessary repetition, or other offense against this provision, as if the pleading be not in " ordinary " or "concise" language, the remedy of the aggrieved party is by motion ; for, it being a mere defect of form, the pleading is not for that cause demurrable. ' Peabody v. Bloomer, 3 Abbott, 353 ; Parsons v. Nash, 8 How., 454 ; People V. Crane, 8 How., 451 ; Briggs v. Briggs and Vose, 20 Barb., 477. " Code, § 149. ' Code, § 142. * Ante, page 104. VERIFICATION OF ANSWER. 219 sECTioisr in. VEEIFTING, AMENDING, FILING AND SERVING ANSWEE. Verification of answer. If a verified complaint has been served, the answer must be verified,! except in the cases mentioned by the act of 1854,^ namely, that " the verification may be omitted in all cases where the party called upon to verify would be privileged from testify- ing as a witness to the truth of any matter denied by such pleading." If the complaint has not been verified, the defendant may, if he choose, verify his answer, and the effect will be, that if the answer set up a counterclaim, so as to require a reply, the reply must be verified.^ The privilege of a party from testifying as a witness (and there- fore from verifying his answer) extends to the following cases : ■* 1. Where the answer will have a tendency to expose the wit- ness to a penal liability, or to any kind of punishment, or to a criminal charge. If the fact to which he is interrogated forms but one link in the chain of testimony which is to convict him, he is privileged, and the witness need not explain how he might be criminated by the answer. If the prosecution to which he might be exposed is barred by lapse of time, the privilege ceases, and the witness must answer. So if the prosecution be under a foreign law. 2. Where the answer will subject him to a civil action, or pecuniary loss, or charge him with a debt, or would establish facts which would work a forfeiture of a debt he claims to be due to him, or subject him to a forfeiture of his estate. ' Code, § 156. ^ Laws of 1854, p. 153. As to proper form of answer in such cases, see Van Sant. PI., 587-589 ; also Scoville v. New, 12 How., 319 ; Lynch v. Todd, 13 How., 546. ' Code, § 156 ; Levi v. Jacqueys, 4 How., 126. * Voorhies' Code (5th Ed.), p. 184, citing, Henry a. Bank of Salina, 1 Comst., 86 ; King of the Two Sicilies v. Wilcox, 15 Jurist, 214 ; People v. Gay, 3 Seld., 382. 220 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. If the answer merely has a tendency to degrade the character of the defendant, he is not privileged from verifying except as to collateral matter.^ Verification by several defendants. Separate ansvs^ers on the part of separate defendants, not united in interest, must be separately verified by each defendant.^ If there be several parties united in interest, and pleading together, the verification must be by one at least of the parties acquainted with the facts, if he be within the county where the attorney resides, and capable of making the affidavit.^ In such case the verification should show that the party making the affidavit is acquainted with the facts. If the defendants are not united in interest, but put in a joint answer, the answer should be verified by all. Each defendant not united in interest must defend for himself, and the verification, if not made by all, is, in such case, defective.* Should there be several defendants, and all join in an affidavit to verify the complaint, one cannot swear to the want of sufficient knowledge or information to form a belief on the part of a co- defendant. In such case a proper form of verification would be, " These defendants severally say, each for himself, that he has no knowledge or information," &c.^ When made by agent or attorney. The section of the Code under consideration specifies in what cases the verification may be made by the agent or attorney. The requisites of a verification when so made have been already con- sidered in the foregoing chapter on the complaint,^ and the same general rules are applicable to the answer. A managing officer of a corporation, on whom service is made, is deemed an officer of the corporation for the purpose of verifying the pleading.'' ' The People v. Gay, 3 Seld., 382. « Alfred v. Watkins, 1 C. R., N. S., 348 ; Andrews v. Storms, 5 Sand., 609. 3 Code, § 157. " Hull v. Ball, 14 How., 305. ' Kincaid v. Kipp and Brown, 1 Duer, 692 ; and see Van Sant. PI., 590, 591. * Ante, page 110. ' Glanbensklee v. Hamburgh and American Packet Co., 9 Abbott, 104. AMENDING ANSWER. 221 Effect of omitting to verify, and effect of defective verification. If a defendant either omit to verify his answer, or verify it defectively, in a case in which a verified answer is required, the plaintiff may return it, and proceed for want of an answer.^ It should, however, be immediately returned, and the defect pointed out, and it has been held, that where it was kept nineteen days, and then returned as defective, and the plaintiff moved for judg- ment, an objection that the answer was not sooner returned and the defect pointed out was well taken.^ The proper practice, no doubt, is to return a pleading which is defectively verified immediately, with notice, and if the defect is not remedied to move for judgment as in case of default.^ Moving to set aside an answer for want of a sufficient verification, it is said, is not to be commended, although it may not be improper ; and, if it be doubtful whether the verification is sufficient or not, the better plan is to make no question about it and to treat it as sufficient.* Amending answer. An answer, like a complaint, may be amended, of course, and made very much as the party wishes it to be. It may be amended either by changing the grounds of the defense set up, or by en- larging the defense, or adding one or more additional defenses, or counterclaims, that is such as may be properly pleaded ; and every answer containing new matter may be so amended.^ If, however, the answer be one merely of denial, it cannot be amended of course, because no reply or demurrer can be inter- posed to such an answer." If, therefore, a defendant wish to amend such an answer by setting up new matter or a counter- claim, or in any other way he must apply to the court on motion, which can only be done on due notice to the plaintiflf. The amendment can be made at any time before the period for answering expires.'' This, of course, allows the party to amend. • Strout V. Ourran, 7 How., 36. '^ White v. Oummings, 1 Code R., N. S., 107. 3 Van Sant. PI., 589, and cases cited. ■■ Wilkin v. Gilman, 13 How., 225. 5 Townsend v. Piatt, 3 Abbott, 325. " Ferrand v. Herbeson, 3 Duer, 655 ; Plumb v. Whipples, 7 How., 411. ' Code, § 172. 222 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. before the expiration of the time for serving a demurrer to an answer — twenty days, if served personally, and forty days, if served by mail — or, if the plaintiff shall have actually served a reply, or demurrer, to the answer, the defendant may amend of course, within twenty days (forty, if served by mail) after service of such reply or demurrer.^ The only limit upon a defendant's right to amend of course, is, that it shall not be for the purpose of delay .^ It has been seen, that a defendant may set up by way of answer any facts making out a defense which occur before answer is actually put in. Facts which occur after issue or service of answer, and facts of which he was ignorant at the time of putting in the answer, must be brought before the court by supplemental answer, which can only be allowed on motion to the court.^ The defendant cannot set up such facts by way of amendment of the answer, and if he attempt to do so the amended answer will be irregular and will be set aside on motion. Filing answer. The same rules which apply to the complaint in regard to the filing are applicable to the answer. It is to be filed within ten days from the service thereof, and if the defendant neglect to do so he may be compelled by an ex parte order. Unless such an order be served, the filing of the pleading, as has been already ob- served, is usually dispensed with in practice.^ Serving answer. The answer, having been regularly prepared, a copy of it is to be served on the plaintifi"'s attorney within twenty days (or forty, if service of complaint has been by mail) after service of the com- plaint. If the last day be Sunday the defendant will have the whole of the following day. The service may be personal or by mail, and in the usual mode of serving notices and other papers in the course of a suit, as prescribed by sections 409, 410, 411 of the Code, which will be hereafter more particularly considered. The same rules govern as in case of the service of copy complaint on defendant's attorney after notice of appearance.' • Code, § 172. Cooper v. Jones, 4 Sand., 699. » Ibid. ' Code, § 177. * Ante, page 115. » Ante, page 117. CEOSS COMPLAINT. 223 It is not generally necessary for one defendant to serve a copy of the answer on his co-defendants; except perhaps in cases where he seeks affirmative relief both against the plaintiff and also against his co-defendants ; or, where he sets up against them a conflicting claim, upon grounds not attempted to be brought in issue by the complaint itself. Such affirmative relief, it has been held, will not be adjudged in favor of one of the defendants, and against another, who makes default and has not been served with a copy of the answer, or a cross complaint.^ In such cases, there- fore, it is always the best and safest course for the defendant, who claims such equities, to serve his co-defendant with a copy of his answer ; unless, indeed, he prefer to proceed by cross complaint, a proceeding which will be considered in the next section. SECTION IV. CEOSS COMPLAHiTT AND PEOCEEDIl>rGS THBEBON. Under the former practice in equity, it has been already remarked, a defendant could not pray any affirmative relief against the plaintiff, but, if he desired to obtain such relief, arising upon any cross or counter demand or claim, he must file against the plaintiff what was called a cross-bill.^ So, where there were several defendants, between one or more of whom and the rest there were collateral and conflicting claims growing out of, or connected with the transactions in the original suit, the defendant, if he desired to settle such claims and to obtain affirmative relief founded upon them, must file his cross- bill against his co-defendants and the plaintiff in the original bill .^ The cross-bill was usually considered a defense, and the original and cross-bill but one cause,* and when both causes were at issue and ready for a hearing, the defendant in the cross-bill might have an order that they be both brought on for hearing together.* ' Tracy v. N. Y. Steam Faucet Co., 1 Smith Com. PI. R. 350. = Lubg Eq. PI., 39. = Cooper Eq. PI., 85 ; Mitf. Eq. PL, 81. * Field V. Sdiiefielin, 7 John. Ch. R., 252 ; Galatian v. Erwin, Hopk., 48. «2Barb. Ch. Pr., 135. 224 FURTHEE PROCEEDINGS BY DEFENDANT BEFORE TRIAL. From what has been said on the subject of the counterclaim it is obvious that a cross-bill, or complaint, is no longer necessary or proper in case of a mere cross demand or claim for affirmative relief existing in favor of one or more defendants against the plaintiff in the action alone. In such case the defense can, and should, always be set up by way of counterclaim, and the whole matter litigated and brought to a final determination in one suit. But it is thought that there are still cases under the Code in which a cross action is not only proper, but necessary, in order to enable a defendant to bring his defense properly before the court, and to settle equities which may exist between him and his co- defendants. In what cases cross action may be brought. Thus, in an early case under the Code,' it was held, that in order to enable a defendant to obtain an injunction he must serve a complaint in the nature of a cross suit, unless where the defend- ant's right to the injunction appears from the original complaint. However this may be as between the defendant and a plaintiff, it would seem very clear that, if in the final relief to be granted, the defendant would be entitled to an injunction against one or more of his co-defendants, he should serve a cross complaint asking such relief against them, and making the plaintiff also a party defendant thereto. It was held, in one case,^ that an " answer by one defendant which is immaterial as between him and the plaintiff, but is intended to form a case for the adjudication of equities between him and a co-defendant, is immaterial on the plaintiff's right to recover, and should be struck out on motion. The practice in this respect, however, seemed to be unsettled, for it was decided in a subsequent case^ that in a partition suit the conflicting interests in, and liens upon, the property sought to be partitioned of several defendants, might be disputed by their respective answers, and for this purpose it was not necessary for them even to serve their respective answers on each other* but the defendant ' Thursby u. Mills, 1 Code R..83. ^ "Woodworth v. Bellows et al., 4 How., 24. ' Bogardus v. Parker, 7 How., 505. * Ibid. CROSS COMPLAINT AND PROCEEDINGS THEREIN. 225 claiming judgment against a co-defendant must actually appear as a litigating party in court.' It has been shown, however, very clearly, I think, in a subsequent case in the New York Common Pleas,^ that affirmative relief in favor of one defendant will not be adj udged against a co-defendant who has not answered in the action, where neither a cross complaint, nor an answer has been served on him, and he has not been apprised that it will be demanded ; nor would it be just to allow this to be done. In such cases a cross complaint will be the fairer course to pursue, as it will enable the defendant, against whom the affirmative relief is demanded, to place his defense thereto upon the record in the shape of an answer. Though the filing of a cross complaint has not been frequent in practice, and, indeed, cannot often be necessary, under the new system, the defense proper to that fonn of proceeding being now in most cases available by way of counterclaim set up in the answer, yet it has in special cases been sometimes resorted to and allowed since the Code. As in the cases above mentioned, where, in the adjustment of all the equities, on a complete determination of the matters in controversy, a defendant will be entitled to some affirmative relief, as an injunction, for example, against a co-defend- ant. So in an adjustment of equities between parties on a disso- lution and copartnership account,^ and in similar cases.^ The former Chancery rule may no doubt be safely taken as a guide, • Norbury v. Seely, 4 How., 73. 2 Tracy v. N. Y. Steam Faucet Co., 1 Smith Com. PI. R., 350. 3 McCracken -v. Ware, 3 Sand. S. C. R., 688. ^ In a suit by a municipal corporation against several railroad companies to obtain a specific performance of an agreement relative to the use of one of the roads built by loans obtained on the credit of such municipality, and also to obtain the payment of tolls by the other roads under their contract for the use of the same, one of the defendants served a cross complaimt against its co-defend- ants and the plaintiif to obtain a specific performance of the same contract in its favor a^ against the other roads, and the two causes, as under the former equity practice, were brought on for hearing and tried together, and one decision pro- nounced in both. Mayor, &c., of Troy v. Troy Union Railroad Co. and others, at Rensselaer Circuit, October, 1858 ; not reported. V. s. 29 226 FURTHER PROCEEDINGS BY DEFENDANT BEFORE TRIAL. namely, that, if the defense can be taken and made available in an answer, a cross complaint will not be permitted.^ Matter of a cross com-plaint. A cross-bill or complaint is treated as a mere auxiliary suit, or as a dependency upon the original suit.^ Hence it should be confined to the matters stated in the original bill, and should not introduce new and distinct matter not embraced therein ; and if it does, no decree can be founded upon these matters, for, as to them, it is an original bill.^ It should state the parties, prayer and object of the original complaint, and the proceedings therein, and the rights of the party exhibiting the complaint, which are necessary to be made the subjects of the cross litigation, or the ground on which the defendant resists the claim of the plaintiff in the original com- plaint, and the equities he sets up as between him and his co- defendants.^ It does not diifer from the form of an ordinary com- plaint, and should distinctly set up the relief which the defend- ant claims, and the court will decree such relief as the nature" of the case may require.^ Under the Chancery cross-bill the relief prayed must be purely equitable relief, and could not be such as might be obtained in an action at law.^ Under the Code this rule is no longer appli- cable. But it has been already observed that a cross complaint, under the present practice, cannot seek relief against the plaintiff alone. This may in all cases be obtained by answer. And it has been held that where the defendant has set up a counterclaim in his answer, and has also commenced a cross action for the same cause of action, he may be compelled, on motion, to elect on which he will rely, his cross action or counterclaim.'' Or, a reference may be ordered to ascertain whether the cross action is for the ' 1 Barb. Oh. Pr., 129. ' Story Eq. PI., 318 ; Mitf. Eq. PI., 81 ; Cooper Eq. PI., 86. * 2 Ibid, Galatian v. Erwin, Hopk., 48. * Mitf. Eq. PI., 81, 82 ; 2 Barb. Ch. Pr., 131, 132. = IbU. ' Cooper Eq. PI., 80 ; 2 Barb. Ch. Pr., 131. ' Fabricotti v. Launitz, 1 Code R., X. S., 121 ; Hammond v. Baker, 1 Code R., N. S., 105. CROSS COMPLAINT AND PROCEEDINGS THEREIN. 227 same cause as the counterclaim, and if the report is in the affirma- tive the plaintiff may have an order dismissing the cross action.^ And if a cross complaint is not confined to the matters in liti- gation in the original suit, but seeks to bring before the court other distinct matters and rights, it is, according to the former practice, no longer entitled to be deemed a cross complaint, but is an original suit, and it seems a demurrer will lie.^ At what time to be brought. When a cross complaint is necessary, the proper time for serv- ing it is at the time of putting in the ansvs^er to the original suit ; and the matters of defense upon vs'hich the cross suit is founded must also be stated in the answer to the original suit, as well as in the cross complaint.^ The court itself, at the hearing, will sometimes, in its discre- tion, direct a cross-bill to be filed, when it is necessary to bring before the court the rights of the parties, and the matters neces- sary to a full and just determination. This will happen when" persons in opposite interest are co-defendants, so that the court cannot determine their opposite interests upon the bill already filed, and yet the determination of their interest is necessary to a complete decree upon the subject matter of the suit.* Proceedings on cross complaint. The cross complaint is to be served on each of the parties named as defendants in it. The defendants must put in their answers to the cross complaint, the same as to an original com- plaint ; and the effect of not answering will be the same as that of not serving a reply to a counterclaim under the Code, namely, the cross complaint will, upon the trial, for the purposes of the action, be taken as true. ^ By the former practice, when both causes were at issue, or in a situation to be heard, the complainant in the cross suit might have an order that they be heard together. The order was ' Farmers' Loan and Trust Co. v. Hunt, 1 Code R., N. S., 1. 2 2 Barb. Ch. Pr., 133 ; Story Eq. PL, 483. 3 2 Barb. Ch. Pr., 129, 130. < Ibid. Story Eq. PL, 316 ; Field v. Schieffelin, 7 John. Cli. R., 252. 5 Code, § 168. 228 PROCEEDINGS BY PLAINTIFF APTER ANSWER. obtained on motion ; but was ex 'parte, and a copy was regularly- served on the opposite party .^ But the delay of the complainant in the cross suit in obtaining such order was not permitted to delay the hearing of the original suit. ^ By the present practice, an order does not seem to be necessary, but the causes may be noticed for trial at the same time, and brought on for hearing, and finally determined together as one suit. CHAPTER VII. PROCEEDINGS ON THE PART OF PLAINTIFF SUBSEQUENT TO ANSWER AND BEFORE NOTICE OF TRIAL. Section I. Discontinuing suit, and amending complaint after answer, and obtaining time TO REPLY. II Objection to demurrer or answer for irregularity. III. Motion to correct answer for uncertainty or redundancy. IV. Motion to satisfy part of demand admitted. V. Motion to strike out sham oe irrelevant answer, and for judgment on frivolous answer or demurrer. VI. Demurrer and reply to answer. SECTioisr I. DISCONTINUING SUIT AND AMENDING COMPLAINT AFTEE ANSWEE AND OBTAINING TIME TO EEPLY. The plaintiff may, at any time, discontinue his action on pay- ment of costs. If the answer be such as to satisfy the plaintiff that he cannot succeed, he should discontinue at once, and before the defendant shall have given notice of trial, inasmuch as by so doing he will save the costs for proceedings subsequent to notice 2 Barb. Ch. Pr., 135. » Md. DISCONTINUANCE. 229 of trial, which the defendant will be entitled to immediately after his notice is served. The discontinuance may, however, be made at any time. And the plaintiff may discontinue even after an answer setting up a counterclaim has been interposed, before the time to reply or de- mur to such counterclaim has expired.^ Though, it seems, that after the time to reply or demur has expired in such case, the dis- continuance cannot be made of course, but only on application to the court, and on a case showing that the discontinuance will not work any practical wrong to the defendant.^ And where the ' defendant would lose his remedy on the counterclaim by reason of the statute of limitations, on the discontinuance of the suit, it will not be granted.^ There are other cases too, which, it appears, cannot be discon- tinued without special application to the court. Thus, in a suit for the dissolution of a partnership, and settlement of the partnei'- ship debts, a discontinuance should be not only on motion to the court, but on notice to the partnership creditors.* So, in an action prosecuted by one of several parties on behalf of himself and others similarly interested, a discontinuance ought not to be allowed at the option of the party plaintiff on the record, but only on application and cause shown to the court, for such discontinu- ance might operate to cut off the right of action of the other parties in interest, for whose benefit, as well as for himself, he sues. The action, however, may be discontinued as to one of several plaintiffs on his own motion, leaving it to proceed in favor of the other plaintiffs, who may thereupon, if they choose, make the party dismissed a party defendant.^ And where an action has been commenced in the name of a party, without his authority or consent, he may, on an affidavit that it has been so commenced witliout authority, have the action as to him discontinued.^ ' Oaksmith v. Sutherland, 4 Abbott, 17 ; Seaboard and Roanoke R. R. Co. V. Ward, 1 Abbott, 47 ; 18 Barb., 595. 2 Cockle V. Underwood, 1 Abbott, 8 ; 3 Duer, 676. 5 Rees V. Patten, 13 How., 258 ; Van Alen v. Schermerhorn, 14 How., 287. ' Rutter V. Talis, 5 Sand., 612. = 1 Barb. Ch. Pr., 227. « Ibid. 230 PROCEEDINGS BY PLAINTIFF AFTER ANSWER. Terms of discontinuance. A discontinuance without payment, or tender of costs, is, in general, a nullity.' And if an attorney has actually been retained, though no notice of retainer has been served, the defendant, it seems, is entitled to his costs on a discontinuance.^ And, if the discontinuance be against several defendants who have properly interposed separate answers by different attorneys, they will each be entitled to costs. The court will permit a person suing in forma pauperis to dis- continue without costs.^ So, where a defendant, by his own act, has rendered it impossible for the plaintiff to attain the object of his suit, as, for example, by surrendering a lease to obtain an as- signment of which is the object of the suit, and then absconds.'' But not where the object of the suit is defeated by the complain- ant's own act or procurement.^ So, where an executor or admin- istrator has commenced a wrong action, by mistake, or has ascertained that it would be useless to proceed, in consequence of facts subsequently discovered, he will be permitted to discontinue without the payment of costs.^ So, in an action against several, and one of them sets up the defense of infancy, the court will give leave to discontinue as to him without costs.' So, in a fore- closure suit, the court will permit the plaintiff, on receiving his debt and costs, to discontinue his suit without paying costs to junior incumbrancers who have appeared to protect their rights ; and so, also, as to the mortgagor personally liable for the debt who has conveyed the mortgaged premises subject to its pay- ment.' Action, how discontinued. In the cases above mentioned, and similar cases, where the dis- continuance is granted on leave of the court, a motion must be made in the usual way, on affidavits showing cause for discon- ' Weigan v. Held, 3 Abbott, 462; Moirison v. Ide, 3 Code R., 27. " Foster v. Brown, 1 Code R., N. S., 236. But see contra, Schenck v. Fancher, 14 How., 95. 3 1 Barb. Ch. Pr., 225, 226, * Ibid. ■^ Hammersley v. Barker, 2 Paige, 372 ' Arnoux v. Steinbrenner, 1 Paige, 82 ; St. John v. Denison, 9 How., 345. ' Cuyler v. Coates, 10 How., 141. = Gallagher v. Egan, 2 Sand., 742. AMENDING COMPLAINT. 231 tinuance, or the ground on which the discontinuance is asiied without the payment of costs, and on the usual notice to the opposite attorney ; or, if other parties are interested, on notice to them. The motion is brought on, and order granted, entered and served as in other cases. If granted on payment of costs, they must be taxed on notice, or the plaintiff, at his own risk, may tender what he conceives the amount to be at the time of serving the order. In other cases the plaintiff has the right to discontinue of course, and without leave of the court. To effect this he must draw up and enter with the clerk an order of discontinuance, and service of a copy, or of notice of the order and discontinuance, with pay- ment, or tender of the costs. A mere notice of discontinuance without an order entered, it seems, is ineffectual.* Amending complaint after answer or dem,urrer. The amendment of the complaint, of course, before answer has been already considered. The section (Code, § 172) also pro- vides that a pleading maybe amended " at any time within twenty days after the service of the answer or demurrer to such pleading, unless it be made to appear to the court that it was done for the purpose of delay, and the plaintiff or defendant will thereby lose the benefit of a circuit or term for which the cause is or may be noticed ; and if it appear to the court that such amendment was made for such purpose, the same may be stricken out, and such terms imposed as to the court may seem just." Much of what was said in regard to the amendment of the com- plaint, of course, before answer or demurrer, is applicable to the case of an amendment after answer.^ It may be amended in the same particulars and to the same extent after as before answer or demurrer, and within these rules the only restriction to the right to amend is that it must not be done for the purpose of delay.* If the party on whom an amended pleading has been served supposes the object is for delay he should not disregard it, but his proper course is to apply to the court, on motion, to strike it out, ' Averill v. Patterson, 10 How., 85 ; Schenck v. Fancher, 14 How., 95. " Ante, pages 113-115. ^ Cooper v. Jones, 4 Sand. S. 0. R., 6£9. 232 PEOCEEDINGS BY PLAINTIFF AFTER ANSWER. if he have time, to do so before the circuit or term.' Though, if the amendment be palpably frivolous, and be served at so late a period as to throw the cause over the circuit, the party served may give the opposite party notice that he will disregard it, and in such case the question of the good faith of the pleading may be raised at the circuit.^ The other restrictions upon the right to amend of course have already been noticed, particularly that which prohibits an amend- ment without leave of the court, which will necessarily require an amendment of the summtms, as by bringing in other parties, &c.* If the demurrer or answer, therefore, show that the proper parties are not before the court the plaintiff must apply to the court, on motion, for leave to amend not only the complaint but the process also. Leave of the court must also be obtained to amend the com- plaint, if the plaintiff find it necessary to do so after demurrer or answer, when one amendment of course has already been made.^ Within what time to he made. The plaintiff has twenty days after answer or demurrer to amend his complaint. The usual rule as to the allowance of double time in cases of service by mail is also applicable, and, if the answer or demurrer have been so served, the plaintiff will have forty days to amend. Or, if the defendant should serve an amended answer, the plaintiff will have the same time to amend as to the original answer.' Amended complaint to be served. A copy of the amended complaint is required to be served on the adverse party.* If he has appeared in the suit by attorney, the service must be made upon the attorney and not on the party. It may be made personally, or by mail, as in other cases, and the ' Rogers v. Rathbun, 8 How., 466 ; Griffen v. Cohen, 8 How., 452 ; Farrand V. Herbeson, 3 Duer, 658. ' Vanderbilt v. Bleeker, 4 Abbott, 289 ; Allen v. Compton, 8 How., 251. ' Ante, page 113. < White 13. Mayor, &e., of New York, 14 How., 495 ; 6 Duer, 685 ; Jerolamon V. Cohen, 1 Duer, 631. 5 Seneca Countj' Bank v. Garlinghouse, 4 How., 174. ' Code, § 172. OBJECTION FOR IREEGULAEITY. 233 amended complaint thereupon takes the place of the original, and is to be inserted instead of the original in the judgment roll. Obtaining further time to reply. If the answer of the defendant contains a counterclaim so as to require a reply, and the plaintiff's attorney should be unable to prepare his reply within the time limited for that purpose, he may obtain an order from any judge of the court, or, if the action be in the Supreme Court, from a county judge of the county where the action is triable, or where the attorney for the plaintiff resides, enlarging the time.^ The proceedings on obtaining and serving this order are pre- cisely the same as those in regard to obtaining further time to answer.^ It may be observed, however, that the 22d rule of the court, which requires the production of an affidavit of merits in such cases, applies in terms only to an order extending the time " to answer or demur to a complaint." The spirit of the rule no doubt requires such an affidavit also on an application for an order enlarging the time to reply to a counterclaim, and it is believed that it is usually required in practice. If an order is allowed, however, on an affidavit defective in this particular, it pould scarcely be treated as irregular for that cause, and could not cer- tainly be disregarded, as it has been held an order extending the time to answer, granted on such defective papers, might be.^ There must, however, be an affidavit showing the necessity of further time to reply, and a copy must be served with the order or it may be disregarded.^ SECTION II. OBJECTION TO DEMUEEEK OE ANSTVEE FOE lEEEGULAEITY. When objection for irregularity must be taken. Exceptions to the regularity either of the defendant's demurrer or answer must be made by the plaintiff before taking any further step in the progress of the cause. Any subsequent proceeding 'Code, §405. = vinie, pages 174-176. 3 Ellis V. Van Ness and Hogmire, 14 How., 313. ^ Code, ? 405. V. s. 30 234 PROCEEDINGS BY PLAINTIFF AFTER ANSWER. whatever, as for example the obtaining an order to extend the time to reply, will be deemed a waiver of the irregular pleading, though it has been held that the obtaining of such an order is not sufficient to prevent the plaintiff from moving to strike out the answer as sham.' The plaintiff must, also, take his objection without delay. He must move at the earliest opportunity (or show some sufficient excuse), or his motion will be held to be waived. And even the retaining of a pleading defective in form merely, for several days, before offering to return it, is held to be a waiver of the irregu- larity.^ And the general rule is, that objections on the mere ground of irregularity of practice must immediately be brought to the notice of the adverse party, to the end that he may have an opportunity of correcting the same.^ How objection taken- As in the case of irregularity in the complaint, if the irregu- larity be in the service, or if it consist in the omission of some mere formal requisite, as, for example, the numbering of the folios, &c., the defective pleading should be immediately returned, and tjie defect pointed out ; or the plaintiff, if he choose, may merely give notice of the defect, and that he will disregard the pleading for that cause. If the irregularity be a matter of substance calculated to embarrass the plaintiff's proceedings, he may either return the irregular pleading or move to set it aside, or correct it, as the nature of the case may require. Thus, if a demurrer and answer be served together to the same cause of action, the plaintiff may move to compel the defendant • to elect by which he will abide ; or, if the same defense be set forth in various forms, he may move to strike out all but one;^ or, if the several defenses and counterclaims be not separately stated and plainly numbered, he may move to compel the defend- ant to correct his pleading in this respect f or, if an amended ' Miln V. Vose, 4 Sand. S. C. R., 660. * Chatham v. Van Vechten, 5 Ducr, 628. =' Harder v. Harder, 26 Barb., 409. * Ante, page 104. ^ Ante, page 106. MOTIOK TO CORRECT ANSWER. 235 answer have been irregularly served, as, for example, v^ithout an order of the court after one amendment has already been made, he may move to set it aside ; and so in other and similar cases. The motion to set aside the answer for the irregularity, or to correct it, is made precisely the same as a similar motion in regard to the complaint which has been alluded to on a previous page.^ The notice of motion must specify the irregularity complained of.^ Copies of the moving papers must be served on the opposite attorney at least eight days before the term at which the motion is noticed ; and the motion is made and order allowed and entered as in other cases. If the defective pleading is corrected, the order usually directs that the opposite attorney serve a copy of the corrected pleading within a time limited by the order, and that the moving party have leave to answer within the usual time. If the pleading is set aside for the irregularity, absolutely and without terms, the plaintiiF is at liberty to proceed as on a default for want of' an answer. SECTION III. MOTION TO COEEBCT ANSWER FOK UNCEETAINTY OE EEDUNDANCY. Nearly allied to the motion to correct a pleading irregular in point of form, mentioned in the previous section, is the motion allowed by section 160 of the Code, to strike out irrelevant or redundant matter from the answer, or to make its allegations more definite and certain, by amendment, when the precise nature of the defense is not apparent. The proceedings in this respect are substantially the same, and are governed by similar rules with those which apply to the motion by a defendant to correct, or strike out redundant matter from the complaint.^ They are likewise governed by the rule (No. 50), which requires the motion to be made before demurring to, or answering the pleading, and within twenty days from the service thereof. The motion, likewise, should be made, if at all, before the plaintiff takes any further steps in the suit ; for, it ■ Ante, pages 149, 150. ^ gyp. Court, Rule 39. ^ ggg ante, pages 163-169. 236 PEOCEEDINGS BY PLAINTIFF AFTER ANSWER. is held, that a mere ejitension of time to answer is a waiver of all formal objections, and a bar to a motion to strike out irrelevant matter unless the right is expressly reserved.^ The Code has introduced a great change in this respect in abolishing the practice of taking exceptions to the answer for insufficiency. This practice was founded upon the necessity which existed, under the former equity system, of compelling a full and perfect answer by the defendant to all the material allegations, charges and interrogatories contained in the bill. If they were not fully answered, that practice provided a mode whereby such answer might be enforced ;2 and the plaintiff, in this way, obtained the defendant's testimony, which he is now permitted to do, if he wishes, by calling him as a witness on the trial. This practice is now entirely abolished. No exceptions can be taken under the Code on account of any omissions in the answer, that is, because it does not contain enough ; but only when it con- tains too much ; or, when it is so obscure and indefinite that the plaintiif is not able to understand the precise nature of the defense intended to be set up and relied on. If the answer either fails to deny enough to defeat the plaintiff's claim, or omits to set forth the necessary allegations to bar the cause of action, the remedy is by demurrer, and not by exceptions to the answer for insufficiency, as under the former practice, or by motion under section 160 of the Code. The subject of irrelevancy and uncertainty in pleadings gene- rally, has been already fully considered in a former chapter, and the practice in regard to making the motion and the proceedings incident to, and consequent thereon, pointed out. And it is unnecessary, therefore, to pursue the subject further in this place.^ SECTION IV. MOTIOS TO SATISFY PART OF DEMAj^fD ADMITTED. Under the former practice in equity the court would order, under special circumstances, money in the hands of the defendant to be paid into court to abide the event of the litigation. Section ' Bowman v. Sheldon, 5 Sand. S. 0. R., 657 ; 1 Whit. Pr., 354. ^ 1 Barb. Ch. Pr., 176, et seq. ^ See ante, pages 161, et.seq. MOTION TO SATISFY DEMAND ADMITTED. 237 244 of the Code continues the Chancery practice in this respect, and indeed extends it by allowing the motion to be made by either party for the deposit in court of money, or other thing capable of delivery, which is the subject of the litigation, and which is held as trustee for another party, or which belongs, or is due, to another party. The practice in such cases will be considered in the following chapter treating of proceedings on the part of both plaintiffs and defendants. The same section of the Code also provides a somewhat new remedy, which, though mainly applicable to common law actions, and perhaps intended as a substitute for the interlocutory judg- ment and assessment of damages upon some counts by default, and an issue of trial as to others,^ is yet, no doubt, in a proper case equally applicable to actions of equitable j urisdiction. The proceeding is wholly on the part of the plaintiff, and will be briefly noticed here. The provision of the Code on the subject is as follows : " When the answer of the defendant expressly, or by not denying, admits part of the plaintiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a Judgment or provisional remedy." ^ The words in italics'were inserted by the amendments of 1857. The necessity of the amendment was occasioned by a conflict of opinion in the courts as to the mode of enforcing the order ; and whether in a case in which, on final judgment for the whole demand, no execution against the body could issue, the court, on such an interlocutory order for part of the demand, could enforce the order by process of contempt or attachment. It was claimed, in one or two of the cases, that this might be done, though it was considered that the inability of the defendant to pay, might be an excuse for proceeding against him by imprisonment for contempt.^ This view, however, was not concurred in, and the language of the clause under consideration was construed to imply a discretion, and not to be imperative, and that when an answer has admitted ■ Catlin V. Billings, 13 How., 514. ^ Code, § 244, last clause. 2 Myers v. Trimble, 1 Abbott, 399 ; Quintard v. Secor, 1 Abbott, 393. 238 PROCEEDINGS BY PLAINTIFF AFTER ANSWER. such a claim as might formerly have been enforced by process of contempt, it may be so enforced now, otherwise an execution must be resorted to, and the party must wait until final judg- ment.' Accordingly, the courts, in some cases, have refused to order the defendant to satisfy a part of a money demand admitted by the answer ; ^ and until it appeared that the defendant was able to pay, considered it most discreet not to order him to pay, especially when the plaintiff had refused to accept an offer made him of the demand admitted.^ It being a new and extraordinary remedy, the courts proceed with great caution, in applying it, and only when a clear case is established, and a specific sum is admitted to be due,* and the plaintiff's right to the fund is con- ceded.* The amendment above noticed has, in a great degree, obviated all these difficulties. No question can now arise as to the mode of enforcing the remedy. It may be enforced as a judgment or provisional remedy, that is by execution against the property, if the claim be on contract, and in other actions by process of con- tempt. The practice is clearly indicated, too, in a recent case arising since the amendment ^ to be, in an action on a money de- mand, or mere contract, to allow a judgment, on motion, for the amount admitted to be due. On entering the judgment, execu- tion may, of course, issue to collect the amount, leaving the action to proceed for the residue. In other cases, that is, where it is sought to enforce the order as a provisional remedy, a judgment is not entered, but a mere order is allowed, dh-ecting the defendant to satisfy that part of the claim admitted to be just, whether it be the payment of money, the delivering over of papers and documents, or the performance of any other act ; for, the section is so drawn as to embrace all these, and, indeed, most other remedies ordinarily claimed in an equity suit. ' Dusenbury v. Woodward, 1 Abbott, 444 ; and see opinion of the court in this case, as to mode of enforcing the order. 2 Lane v. Losee, 11 How., 360; 2 Abbott, 126. 3 St. John V. Thorne, 2 Abbott, 166 ; Smith v. Olssen, 4 Sand. S. C. R., 711. < Dolan V. Petty, 4 Sand. S. 0. R., 673. « Bender v. Sherwood, 15 How., 258. " Duncan v. Ainslie, 26 Barb., 199. MOTION TO SATISFY DEMAND ADMITTED. 239 Order, how made, served and enforced. The order is obtained at special term on the usual notice of motioDi or order to show cause. No papers, except the pleadings, are required on the argument, and consequently nothing is neces- sary to be served on the opposite attorney but the notice of motion. The motion is made, and order allowed, certified and entered as in other cases. It should direct the specific sum of money to be paid, or describe, with reasonable certainty, the particular thing or-act required to be done, and should limit or specify a time of performance. A copy of -the order, certified by the clerk, should be served, and upon the party, if it is intended to bring him in contempt, as well as upon the attorney. If the money be not paid, or act performed within the time limited by the order, the plaintiff, on an affidavit of the fact, and on the order, may apply to the court, on due notice of the motion, for an attachment to punish the party as for a contempt,' the proceedings in which, as regulated by statute, are still left in full force, by section 471 of the Code^^ These proceedings are sub- stantially the same with those taken in case of the refusal of a party to obey an order to deposit money or other thing capable of delivery in court, or to obey an injunction order, and will be hereafter more fully considered. If, as before mentioned, the order be to satisfy a mere money demand on contract, the party obtaining the order must enter judgment upon it for the amount directed, usually with the costs of the motion ; and the court may impose such terms as to giving security or otherwise as, in its discretion, it deems proper.' Upon such an order the entry of judgment will be similar to the case of a judgment upon a frivolous answer; and the judgment roll will consist of the summons, pleadings, order and judgment. An order directing the defendant to pay the amount admitted due by the answer is an appealable order. But where no right -of the defendant and no rule of law has been violated, it seems ' Meyers v. Trimble, 1 Abbott, 399. ^ The People v. Compton, 1 Duer, 512 ; Dusenbery v. Woodward, 1 Abbott, 444. 3 Eoberts v. Law, 4 Sand., 642. 240 PROCEEDINGS BY PLAINTIFF AFTER ANSWER. the discretion of the court making the order in respect to the terms and conditions upon which it is made, will not be reviewed on appeal.^ SECTION V. MOTION TO STEIKE OUT SHAM OE lEEELEVANT ANS"VVEE, AND FOE JtJDG- MENT ON FEIVOLOUS ANSWEE OE DBMUEEEE. It is proper to notice in this place those provisions of the Code which are intended to prevent the defendant from obstructing the enforcement of the plaintiif's claim by means of a palpably frivolous or false defense. Although these provisions, heretofore, were in substance applicable only to common law actions, and there was nothing entirely analogous in the equity practice, yet they may now be indifferently applied to both, although it is but proper to remark that they are, from their nature, of much more frequent use in the former than in the latter class of actions. I shall, therefore, merely glance at those remedies, in a general manner, without entering upon a full consideration of the sub- ject, which more appropriately belongs to works on common law practice. There are two sections of the Code which furnish to the plain- tiff a summary method of dealing with a sham or frivolous de- fense; and, though their object is similar, the mode of procedure which they authorize is different. They are as follows : § 152. Sham and irrelevant answers and defenses may he stricken out on motion, and upon such terms as the court may, in their discre- tion, impose. § 247. If a demurrer, answer or reply be frivolous, the party preju- diced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of court, for judgment thereon, and judgment may be given accordingly. I shall consider the proceedings under these sections as pro- ceedings on the part of the plaintiff, by whom they are most usually taken, although it will be observed that they are equally ' Merritt v. Thompson, 1 Abbott, 223. SHAM OK IRRELEVANT ANSWER. 241 available to the defendant, in case of a frivolous demurrer to his answer, or defense to his counterclaim. The distinction between a sham and irrelevant, and an irrele- vant and frivolous defense, has been the subject of much discus- sion since the Code, and the result of the decisions seems to be that a sham answer is one that is good upon its face but false in fact.i A frivolous answer is one which denies no material averment in the complaint,' and sets up no defense;^ and an irrelevant answer is one which hUs no substantial relation to the controversy ^between the parties to the action,^ and is no defense, although the matter it contains would constitute a good cause of action to the defendant in another suit.* While, however, a sham answer is now pretty generally con- ceded to be one that is false in fact, whether it be of new matter or consists of denials merely,^ and as such is easily distinguished from an answer which is irrelevant, or one which is meYe\y frivolom, yet the courts do not, in practice, seem to have preserved any intelligible line of distinction between an irrdevajit and afiivolous answer. Thus, in an action to foreclose a mortgage made by a married woman of her separate estate, an answer that the mort- gage was not acknowledged by her on her separate examination, was held frivolous f while, in another case an answer in the old Chancery form, which neither controverted any allegation in the complaint, nor set up any new fact by way of defense, was thought to be irrelevant, and would have been struck out on a • Nichols V. Jones, 6 How., 257 ; Leach v. Boynton, 3 Abbott, 1 ; Walker v. Hewett, 11 How., 398. " Ibid. Hull V. Smith, 8 How., 150 ; Brown v. Jenison, 3 Sand., 732 ; Lefferts V. Snediker, 1 Abbott, 42 ; Hecker v. Mitchell, 5 Abbott, 454. ^Ibid.. Seward D. Miller, 6 How., 313; Herr v. Bamburgh, 10 How., 128; Darrow v. Miller, 5 How., 247 ; Harlow v. Hamilton, 6 How., 475 ; and see full collection of cases cited in Voorhies' Code, notes to sections 152 and 247. < Kurtz V. McGuire, 5 Duer, 660. 5 See The People v. McOuraber, 15 How., 186 ; affirmed by Court of Appeals, 18 N. Y. R., 315 ; and see full collection of cases on this subject cited Voorhies' Code, 6th ed., 224. ' Cramer v. Comstock, 11 How., 486. V. S. 31 242 PROCEEDINGS BY PLAINTIFF AFTER ANSWER. proper motion for that purpose.^ And where one frivolous defense was united with a good one in the same answer, the former has been struck out on a general motion for judgment, the court not being able to render judgment on the whole answer as frivolous.^ The distinction, however, is not practically of much import- ance, except so far as regards the mode of raising the question, and getting rid of the objectionable pleading ; in the one case it being a motion to strike it out altogether, and in the other, a motion for judgment leaving the pleading remaining on the record. Let us briefly notice each of these modes of proceeding. Motion to strike out pleading. The motion to strike out an answer or defense is authorized only in case the answer or defense be sham — that is false; or irrelevant — that is substantially and in form good as matter of defense, but not applicable, or a defense to the action in which it is interposed. The question has been much discussed whether an answer con- sisting of mere denials, or such an answer verified, can be struck out as sham, and the practice in the courts is by no means uniform on that subject ; it is supposed, however, that the weight of autho- rity is that a motion to strike out is not proper in such cases. But where new matter is set up, such a motion vsdll be granted, whether the answer is verified or not, if the motion papers estab- lish a strong prima facie case of falsity and fraud in the answer, unless the defendant show by affidavit, or other proof, the parti- cular facts on which he relies in support of his answer, so far as to satisfy the court that his answer is not mere pretense.^ Motion, where and how made. The motion to strike out a sham or irrelevant answer must be made to the court, and not to a judge at chambers (except in the 1st district). It must be made, too, on the usual notice of eight ' Gould V. "Williams, 9 How., 51. ^ Hecker v. Mitchell, 5 Abbott, 454 ; and see this subject of the distinction be- tween sham, irrelevant and frivolous defenses considered, Van Sant. PL, 592- 605. ^ See a full collection of cases cited in Digest, 6 Abbott, 537. ^ Bank of Rochester v. Hitchcock, 14 How., 406. SHAM OR IRRELEVANT ANSWER. 243 days served on the opposite attorney, or on an order to show cause. , The plaintiff having obtained an order extending the time to reply, it seems, is no objection to a motion to strike out the answer.! In case the motion is made on the ground that the answer is irrelevant, the pleadings themselves will show the irrelevancy, and the motion may be brought on upon the pleadings alone on the service merely of a notice of motion. If it be made on the ground that the answer is sham, it must be supported by affidavits showing clearly and incontestibly the fact of the falsity of the answer. In both cases the notice of motion should be not only of the plaintiff's intention to move to strike out the answer, but also to apply to the court for the relief demanded in the complaint; so that if the answer is struck out, the plaintiff may, at the same time, proceed to judgment, as in other cases, for want of an answer. Effect of striking out answer. If the answer is struck out, as has been already mentioned, it will form no part of the record, and the plaintiff may proceed to judgment in the same manner as though no answer had been put in;^ — that is, apply to the court and either obtain at once the judgment prayed for, or an order of reference as the case may require, and proceed to perfect his judgment as in other cases ot default.^ Unless, indeed, the court grant the defendant leave to serve a new answer, which, it seems, under the section of the Code as amended, may be done, although the contrary was at one time held.^ The answer or defense will be struck out " upon such terms as the court, in their discretion, impose." This, undoubtedly, would allow a new answer to be served on good and meritorious cause being shown, and on such terms as to costs and short notice of trial, or otherwise, as the court might think proper to impose. 1 Miln V. Vose, 4 Sand. S. 0. R., 660. 2 Aymer v. Chase, 1 Code R. N. S., 141. 'See proceedings in such cases, ante, pages 125-140. * Aymer v. Chase, 1 Code R., N. S., 141. 244 PEOCEEDINGS BY PLAINTIFF AFTER ANSWER. Appeal. If the defendant wishes to appeal, he should take such appeal, from the order, and not wait until judgment is entered, for, the' answer being struck from the record, the judgment will show no ground of appeal. For the purpose of an appeal the defendant should immediately obtain an order staying the plaintiff's proceedings In entering judgment, to enable him to appeal. The order may be at once granted by the court which decides the motion. If it be not, and it be intended to stay proceedings more than twenty days, the defendant may obtain an order to show cause why the proceed- ings should not be stayed, operating as a stay in the meantime and until the motion can be heard. The motion in the appellate court is brought on as an appeal from an order, and the order of the special term either affirmed or reversed. If affirmed, the plaintiff may proceed by ^plica- tion for judgment on due notice as in case no answer has been served. If reversed, the answer is restored to precisely where it was before the motion, and either party may proceed to bring the cause on for trial. Motion for judgment on frivolous defense or demurrer. The motion for judgment on five days' notice, is authorized only in case the demurrer, answer, or reply be frivolous. Frivolous demurrer. A frivolous demurrer is one which, without argument and at first glance, must be pronounced bad. The grounds thereof should be clearly untenable ; ^ and if the demurrer is fairly sus- ceptible of argument, it should not be treated as a frivolous de- murrer. The mere argument of counsel in opposition is not sufficient; there should be some color or semblance of reality.^ Though it has been held that where there is a decision of the general term directly in point adverse to the demurrer, it is clearly bad, and will be adjudged frivolous.^ The rule is that a demurrer, to be adjudged frivolous, must ap- pear clearly to be taken for the mere purposes of delay, and its ' Neefus v. Kloppenburgh, 2 Code R., 276. ^ Grab. Pr., 759. ' Bank of Wilmington v. Barnes, 4 Abbott, 227. FRIVOLOUS DEMURRER AND ANSWER. 245 insufficiency as a pleading must be so apparent that the court can determine it on bare inspection without argument.^ The dividing line, however, between a real and frivolous de- murrer is not by any means clearly defined, and it will, in gene- ral, rest much in the discretion of the court whether to entertain the motion at chambers, on five days' notice, or put the party to his regular motion as on a trial at the circuit or special term.^ Frivolous atiswer. The distinction between a frivolous and an irrelevant answer has been already alluded to. A frivolous answer is one, which, even though the facts alleged are true, the court can clearly see constitutes no defense.^ And the rule in regard to testing the frivolousness of an answer is, no doubt, the same as in the case of a demurrer ; that is, that its insufficiency must be so apparent that the court can determine it on bare inspection without argu- ment. If there is any fair question in regard to it the court will allow it to stand until the trial. Motion, where and liow made. The motion for judgment on a frivolous answer or demurrer, may be made to a judge of the court, at chambers, on a previous notice of five days, or, on like notice, it may be made to the court. The motion is made on the pleadings alone, and the mere service of notice of motion on the opposite attorney is all that is neces- sary. The notice of motion is that the plaintiff will apply for judg- ment on account of the frivolousness of the answer, or demurrer (as the case may be), and will ask for the relief demanded in the complaint, and not that the plaintiff will move to strike out the answer or demurrer. Order for judgment and entry thereof. If the motion is granted the plaintiff is entitled to an order for judgment. The order will be in substance the same as is granted at special term on application for judgment, as for want of an ' Sixpenny Saving Bank v. Sloans, 12 How., 544 ; Munn v. Barnum, 12 How., 563 ; Parker v. Totten, 10 How., 233. 2 Van Sant. PL, 730, 731. " Hecker v. Mitchell, 5 Abbott, 454. 246 PEOCEEDINGS BY PLAINTIFF AFTER ANSWEK. answer. If a reference is necessary to take proof of any fact, or take and state an account before final judgment is entered, the order will provide for such reference.^ If the case be such that judgment may be rendered on the complaint without any further proof of the facts, the order may simply direct that the plaintiff have judgment for the relief demanded in the complaint ; or it may proceed to specify the particular relief which is awarded to the plaintiff, in which case the order will be drawn, settled and entered, as hereafter noticed in other cases of orders on contested motions. The costs of motion are usually granted in orders for judgment on frivolous answer or demurrer, and if the costs of the suit are also awarded, the plaintiff proceeds to tax his costs and enter judgment as in other cases. The order for judgment constitutes a part of the judgment roll. Appeal. If the defendant is dissatisfied with the decision he may take an appeal to the general term. There have been some conflicting decisions as to whether the appeal should be taken from the order allowing judgpient on the demurrer, or from the judgment itself.^ The practice, it is thought, may be very easily rendered uniform and the cases reconciled by allowing an appeal, either from the order or from the judgment. An appeal may properly be taken from the order, and it is not necessary that the judgment should first be entered.^ In such case the defendant, if he desire to appeal, should obtain an order staying the proceedings in entering the judgment in the same manner as upon an order striking out a defense as sham or irrelevant.* The appeal is brought on at the general term as a motion on the regular motion days of term. * See proceedings on entry of judgment, ante, pages, 126, 135 ; King v. Stafford, 5 How., 30. »Lee V. Ainslee, 4 Abbott, 463 ; Ford v. Davis, 13 How., 193 ; Western R. R. Co. •«. ,Kortwright, 10 How., 457; Roberts i;. Morrison, 7 How., 396; Hull «. Smith, 8 How., 150; Martini;. Kanouse, 2 Abbott, 390; Bruce v. Pinlsney, 8 How., 397. ^ Lee V. Ainslee, 4 Abbott, 463 ; Phipps v. Van Oott, 4 Abbott, 90. ■• Ante, page 244. FRIVOLOUS DEMUEEER AND AJSTSWEE. 247 If the order is affirmed the plaintiff proceeds to the entry of j udgment in the same way as though no appeal had been taken, the general term order of affirmance being first regularly entered with the clerk, of the proper county, and a copy served on the opposite attorney. If the order be reversed it is to be filed and a copy served in the same way, and the demurrer then stands as though no motion had been made, to be noticed for trial by either party at any regular circuit or special term of the court. Or the defendant, if he choose, may allow judgment to be entered against him and take an appeal from the judgment. In such case the appeal is perfected and brought on for argument precisely the same as in case of an appeal from a judgment on demurrer against a defendant on a regular trial at circuit or special term, which will be hereafter considered. The demurrer, it will be recollected, is not, as in the case of a sham or irrelevant pleading, struck out, but remains a part of the record, and the court having before it the whole record will determine the question as in the case of an appeal from a regular judgment on demurrer. The question on such appeal will not be, as at special term, whether the demurrer is frivolous or not, but whether the answer is good and sufficient; and if the answer does not establish a good defense the general term will sustain the order, although it may not regard the answer as frivolous.^ It may be added that the advantage of an appeal from a judg- ment, entered on a frivolous demurrer or answer, is that either party, if the decision of the general term be adverse to him, may, if he choose, go to the Court of Appeals. This he cannot do if the appeal be taken merely from the order. Leave to answer over after order for judgment on frivolous answer or demurrer. The section of the Code (section 247) which authorizes judg- ment on a frivolous demurrer or answer does not, in terms, give the court authority to allow the defendant to answer over on terms, as in case of striking out a defense as sham or irrelevant. Though the power of the court to allow this to be done has been Martin v. Kanouse, 2 Abbott, 328. 248 PROCEEDINGS BY PLAINTIFF AFTER ANSWER. disputed,^ yet it is not uncommon in practice to permit it.^ The court will usually, on the defendant producing an affidavit of merits, give him an opportunity to come in and defend ; in which case the order is not that the defendant may answer within a certain time, but that the plaintiff is to have judgment unless the defendant, within a certain time, give notice of a motion for leave to answer, accompanying such notice of motion with a copy of his intended answer. The proposed answer must also be accompanied with a positive affidavit of merits, or if, on belief, stating the grounds for such belief; and to enable the defendant to make this motion, the order for judgment should be without prejudice to his right to move the court to put in such answer, and may be upon such terms as to costs, and as to accepting short notice of trial or othervsrise, as the court shall think proper to impose.^ SECTIOlsr VI. DEMUEEEE AND EEPLT TO ANSWEE, AND PEOCEEDINGS INCIDENT THEEETO. If the answer be insufficient, that is, if it be neither a defense to the whole nor any part of the plaintiff's claim, or if it do not constitute a counterclaim, the plaintiff may take an objection to it by demurrer. If the answer sets up a counterclaim, the plain- tiff, if he do not choose to admit the truth of it, must put it in issue by serving a reply. The provision of the Code (section 153) on the subject is as follows : " When the answer contains new matter constituting a coun- terclaim, the plaintiff may, within twenty days, reply to such new matter, denying generally or specifically each allegation contro- verted by him, or any knowledge or information thereof sufficient to form a belief; and he may allege, in ordinary and concise lan- guage, w^ithOut repetition, any new matter not inconsistent with the complaint, constituting a defense to such new matter in the answer; and the plaintiff may, in all cases, demur to an answer con- taining new matter where, upon its face, it does not constitute a ' Sherman v. N. Y. Central Mills, 1 Abbott, 190. = Fales 1). Hicks, 12 How., 155. ^ See Voorhies' Code, 309 ; Marquisel v. Brigham, 12 How., 400 ; Fleury v. Ro- get, 5 Sand. S. C. R., 646 ; Brown v. Ward, 3 Duer, 660. DEMURRER AND REPLY TO ANSWER. 249 counterclaim or defense ; and the plaintiff may demur to one or more of such defenses or counterclaims and reply to the residue of the counterclaims. And in other cases, when an answer contains new matter, constituting a defense by way of avoidance, the court may, in its discretion, on the defendants motion, require a reply lo such new matter ; and in that case the rejply shall be subject to the same rules as a reply to a counterclaim." The part in italics is the amendment made to this section by the Legislature of 1860. Of the demurrer to the answer. By the section of the Code under consideration, as it now stands, the plaintiff may demur to an answer of new matter, whether it set up a counterclaim, or be merely defensive. The former decisions, which upon this question were very conflicting, are no longer applicable. But the section of the Code, as now amended, does not, probably, authorize a demurrer to an answer which does not set up any new matter or counterclaim, but con- sists of denials merely, though, under the amendment of 1855, it is thought tliat a demurrer would lie in such cases.^ The demurrer may be interposed to new matter where it does not constitute a counterclaim or a defense. We have seen, in a former section,^ what constitutes a proper and legitimate counter- claim ; also what constitutes a defense, to which no demurrer on behalf of the plaintiff will lie.^ The defense, as has been already stated, need not be a full defense.^ An answer, therefore, which sets up merely a partial defense, if otherwise well pleaded, cannot be demurred to.'' The demurrer, however, must be to the whole of a defense in the answer, and cannot be to part of it. Mere surplusage or redundancy is never a ground of demurrer; that is to say if the answer contain irrelevant matter, but contain also a valid defense which may be separated from the irrelevant matter, the demurrer will be overruled.^ But an answer which is irrelevant as a whole may be demurred to, and so may a frivo- ' See this subject discussed and cases cited, Van Sant. PI., 701, 702, note. 2 Ante, pages 197, et seq. ^ Ante, pages 205-208. ■• Ante, page 206. 5 Wightman v. Shankland, 18 How., 80. ' Watson v. Husson, 1 Duer, 242. V. s, 32 250 PEOCEEDINGS BY PLAINTIFF AFTER ANSWEE. lous answer, and the plaintiff may elect whether he will move to strike out an irrelevant, or for judgment on a frivolous answer, or demur. And if it be doubtful whether the answer is palpably- frivolous or not, the better course is to demur, as the court will not, as has been already shown, render judgment on an answer as frivolous where it is fairly susceptible of argument, whether it be really frivolous or not.' The section of the Code under consideration permits the plain- tiff to demur to one or more of the defenses or counterclaims set up in the answer, and reply to the residue of the counterclaims. In such case, that is, where there are issues of law and issues of fact in the same case, the issues of law must be first tried unless the court otherwise order.^ The whole matter, however, is left in the discretion of the court,^ and in practice in equity cases, the trial being before the court, all the issues may be noticed and brought on for trial together. If, however, the court otherwise order, the issue of law is first heard, and if the demurrer is sus- tained, the defendant is allowed to amend, and the trial of the issue of fact in the meantime suspended. If it is overruled, the cause may be brought to trial at once on the issue of fact, unless the demurrer was to a counterclaim, which, on the overruling of the demurrer, will render it necessary for a reply to be put in, which, of course, will suspend the trial. Judgment on an issue of law should not be entered until the issues of fact are disposed of.* The decision in such case is not a judgment but a mere order.* A demurrer may be interposed to a counterclaim, either where the counterclaim, though pertinent to the action, is insufficient, or, where it is wholly irrelevant, as a counterclaim, to the matter of the complaint, though otherwise constituting a good cause of action in favor of the defendant against the plaintift". Mnie, page 244. != Code, § 251. ^ Warner v. Wigers, 2 Sand., 635. * Masters v. Barnard, 6 How., 114. 5 Bowman v. N. Y. Central Pv,. R. Co., 10 How., 210 ; Cook v. Pomeroy, 10 How., 221. DEMUEEER AND EEPLY TO ANSWER. 251 Thus, if a counterclaim be not one existing in favor of a de- fendant and against a plaintiff", between whom a several judgment may be had, a demurrer vsrill lie, whether such counterclaim con- stitutes a good cause of action against the plaintiff" or not. So, if it does not arise out of the contract or transaction which is the foundation of the plaintiff" 's action, such defect, if apparent, and capable of being pointed out in the pleading, is a valid ground of demurrer .1 If, however, the counterclaim be relevant, and perti- nent to the action, that is, one which, if it really contained a good cause of action against the plaintiff", is well pleaded, then the only test to be applied to it is, whether it is sufficient or not. The rules which have been already considered as applicable to the sufficiency of the complaint are those which govern the counterclaim, and it may be said generally that a demurrer will lie to such counter- claim for insufficiency in those cases where a demurrer would lie to the same matter if set up in an original complaint. Reply. A reply is necessary and proper only where the answer sets up a counterclaim. In no other case is it admissible ; and if a reply be interposed to a merely defensive answer it will be struck out or set aside as an unauthorized pleading. The objection in such case should be taken by motion and not by demurrer- This is to be understood, however, only in regard to the reply when interposed as a matter of course, in the regular course of pleading without any order of the court. A reply may now, by direction of the court, be required to be put in to a merely defen- sive answer, not constituting a counterclaim, under the amend- ment of I860, to section 153 of the Code, which has been noticed on a former page.^ By that amendment the court has discre- tionary power, on the defendant's motion, to require the plaintiff" to reply to new matter constituting a defense by way of avoid- ance ; and such a reply is subject to the same rules as a reply to a counterclaim. There are many cases in which such a reply is manifestly proper, in order to narrow down the questions of fact to be tried, and to place upon the record the true issue between 1 Van Sant. PL, 709, 710. "^ Ante, page 249. 252 PKOCEEDINGS BY PLAINTIFF AFTER TEIAL. the parties ; but we are as yet without the light of any judicial decision upon this new rule of practice. The motion to compel the plaintiff to reply in such cases is made upon the pleadings alone, and on the usual notice to the plaintiff of eight days. If the defendant conceive his answer is such as to require a reply, he should serve, with his answer, notice of the motion for the first special term at which the motion can be heard. The notice should not ask for costs of the motion, otherwise the plaintiff will be entitled to costs for attending to oppose it, it being manifestly improper to grant costs to either party on such a motion when made in good faith, whether it be granted or denied. The counterclaim, as we have seen, is in all respects analogous to the complaint; and the reply to the counterclaim is used for precisely the same purposes as the answer to the complaint. What has been already said, therefore, in regard to the answer is equally applicable to the reply. It may put in issue the allega- tions of the counterclaim, or of the answer, when allowed to be interposed to an answer in avoidance, either by denial or by the statement of new matter, and may contain as many defenses to the counterclaim, or answer, as the plaintiff may have. They should be pleaded in precisely the same way in point of form, that is, they should be separately stated, and plainly numbered and folioed, and refer to the several counterclaims, or answers (if there be more than one), in such manner that they may be in- telligibly distinguished ; and if the reply do not conform to these rules it will be corrected in the same manner as a defective answer.^ It has been held that a reply to a counterclaim may be some- thing more than a mere defensive answer, and that a plaintiff may reply a set-off or counterclaim to the defendant's answer of set-off or counterclaim.^ The practice in this respect, however, seems to be unsettled ; ^ and it may still be a question, even if the plaintiff is allowed to reply a set-off to the defendant's set-off, whether he would be entitled to recover the excess in addition to the amount claimed in his complaint. ' See ante, pages 209, et seq. ^ Miller v. Losee, 9 How., 356. 5 Van Sant. PI., 629, 630, and note. DEMUEREK AND REPLY TO ANSWER. 253 A reply to a counterclaim may set forth " any new matter not inconsistent with the complaint, constituting a defense to such new matter in the answer.'" A reply defective in such respect, that is, which is a departure from the complaint, is either insufficient, and may be demurred to, or an unauthorized pleading, to be set aside or struck out, on motion. The subject has-been discussed in a recent case in the Court of Appeals, which does not seem, how- ever, clearly to have settled the practice.^ Demurrer to reply. The plaintiff may demur to the reply, if it be "insufficient," and in his demurrer must " state the grounds thereof." ^ It has been decided in one case, at general term,* that a demurrer to a reply may be generally for insufficiency without pointing out on what particular grounds it is deemed insufficient. On the reversal of that case by the Court of Appeals it does not appear from the prevailing opinion^ whether this doctrine is approved or not, while it is directly disapproved by one of the judges of that court,^ who says: "As no grounds of demurrer were stated, showing wherein the reply was insufficient, the plaintiff had the right to require the demurrer to be made more definite ; or, perhaps he could have moved to strike it out, upon the ground that it did not conform to the requirements of the Code." Whether abso- lutely required or not, it is certainly best, in all cases, to point out briefly in the demurrer to both a reply and an answer the grounds of the alleged insufficiency. ' Code, § 153. ^ White, receiver, v. Joy, 3 Kern., 83. The opinion expressed in the case by Marvin, J., is, that the Code does not authorize a demurrer to a reply alleging " new matter inconsistent with the complaint." This opinion, however, can scarcely be regarded as an adjudication of the point in question, inasmuch as the prevailing opinion, in which the rest of the court concurred, was delivered by Denio, J., who considered the reply in the case as supporting the complaint, and not a departure, and overruled the demurrer on that ground. The actual decision of the court, therefore, would seem to imply that the demurrer was considered as raising the question, and was overruled, not because improperly pleaded, but be- cause the matter demurred to was in itself sufficient. And I can see no good reason why a demurrer will not lie to a reply defective in this respect. See this subject discussed, Van Sant. PI., 635-637. 2 Code, § 155. •• White, receiver, v. Joy, 11 How., 36, " Per Denio, J., White, receiver, v. Joy, 3 Kern., 83. « Per Marvin, J. 254 PROCEEDINGS BY DEPENDANT AFTER ANSWER. If a demurrer to a reply do not state any grounds of demurrer at ^11, perhaps in analogy to the practice of a demurrer to a com- plaint, it may be wholly disregarded.^ Proceedings on service of reply or demurrer to answer. The reply or demurrer to the answer, and the demurrer to the reply, must be served within the same time and in the same man- ner as the answer or demurrer to the complaint, and the defend- ant in like manner may raise any objections to its regularity, or may amend his answer of course, or, on motion to the court, as the plaintiff might do under similar circumstances.' On the service of a reply to a counterclaim or answer, an issue of fact is raised upon the whole pleadings which may be noticed for trial by the defendant immediately, without waiting for the time to expire within which the plaintiff may amend, and by the plaintiff without waiting for the time to expi^'e within which the defendant may demur. On the service of a demurrer to the answer or reply an issue of law is raised, which may be brought on for trial in like man- ner by either party. On the decision of the demurrer the right to amend or plead over, given by section 172, is usually granted as part of the order, unless it appear that the demurrer was inter- posed in bad faith. Proceedings when no reply is served to a counterclaim. It is provided by the Code (section 154) that if the answer con- tain a statement of new matter constituting a defense,^ and the plaintiff fail to reply or demur thereto within the time prescribed by law, the defendant may move, on a notice of not less than ten days, for such judgment as he is entitled to upon such statement, and if the case require it a writ of inquiry of damages may be issued. The defendant, however, is not bound to take this course, but if he choose may go to tidal and take advantage of the admissions made by a failure to answer the counterclaim.^ 1 Code, § 145. ^Ante, page 195. 5 This undoubtedly has the same meaning as though the word " counterclaim ' had been used ; see cases cited Vooi-hies' Code, note to section 154. * Bridge V. Payson, 5 Sand,, 217. DEMUERER AND REPLY TO ANSWER. 255 The motion should be made on the pleadings, and an affidavit showing that the time for replying to the answer has expired, and that no reply or demurrer has been served ; a copy of the affidavit" should be served with the notice of motion. Upon the motion all the facts in the complaint not controverted by the answer are to be taken as true, and all the facts set forth in the counterclaim. Upon these facts the court pronounces judgment, either final or, if it be necessary, orders a reference to take an account, &c., and the proceedings to the entry of judgment are the same as in cases of default where the opposite party has given notice of appearance, as already noticed.^ The motion for judgment under this section may be met by the plaintiff by an applicatioh, under section 174, to allow him to put in a reply on terms. For this purpose the plaintiff must prepare an affidavit showing an excuse for not serving a reply, accompanied by an affidavit of merits. The motion for judgment being on ten days' notice, the plaintiff will have time to serve a copy of his affidavit on the opposite attorney, with the usual eight days' notice of his counter motion for leave to put in a reply. The two motions will be brought on together, and if the plaintiff show a proper and reasonable excuse, the court will relieve him from his default and allow him to serve a reply, usually on payment of the costs of the motion, or such other terms as the court may impose. ' Ante, pages 126j et seq. 256 PROCEEDINGS AFTER ISSUE. CHAPTER VIII. PROCEEDINGS ON THE PART OF EITHER OR BOTH PARTIES AFTER ISSUE JOINED AND BEFORE TRIAL. Section I. Motion to change place of trial. II. Motion fob issue to bb tried by jury. III. Motion to compel the deposit in court of money or other property held in trust. IV. Obtaining admission op documentary evidence and proceedings for discotkby OF same. V. Procerdings to perpetuate testimony. VI. Proceedings to examine witnesses db bene esse. VII. Proceedings to take testimony on commission. VIU. Examination of parties before trial, IX. Revivor and substitution of parties, on motion. X. Supplemental pleading; and substitution of parties on supplemental complaint. The issue having been joined, either by the service of an answer, or of a reply, when the answer contains a counterclaim, or a reply has been allowed to a mere defensive answer,' the cause is in readiness to be noticed for trial and hearing. Before this is done, however, certain preliminary steps are often necessary to be taken in order to get the cause presented before the proper tribunal in proper shape, or to prepare for its final trial and submission to the court. It will be proper in this place to glance at these pro- ceedings. SECTION I. MOTIOlir TO CHANGE THE PLACE OF TEIAL. I have considered in a former chapter the subject of the place of trial with reference to the frame and structure of the complaint in regard to the title of the cause ; ^ and have there shown what classes of action are transitory, and what are local, and pointed out generally the rules which govern in respect to the selec- tion of the county in which the place of trial is to be had. I shall here merely consider the customary practice regulating the making of the motion to change the place of trial. ' Code, § 153, as amended in 1860. * Ante, pages 68, 69. MOTION TO CHANGE THE PLACE OP ' TRIAL. 257 The change may be made in three cases (mentioned in section 126 of the Code), namely : 1st, When the county designated in the complaint is not the proper county — the practice in respect to which has been already considered.^ 2d, When there is reason to believe that an impartial trial cannot be had in the county named ; and 3d, when the convenience of witnesses and the ends of justice would be promoted by the change. The most usual ground on which to move for a change of the place of trial is on account of the convenience of witnesses, and I shall consider the subject mainly with reference to a motion for that cause, simply remarking that it in no respect differs from the motion to change on the ground that an impartial trial cannot be had. Motion when, where, and by whom made: The motion to change the place of trial cannot be made before issue joined;^ but it maybe made at any time after issue and Jjefore trial had.^ Though the party making it desire a stay of proceedings, for the purpose of the motion he must use due dili- gence in preparing his motion for the earliest practicable day after issue joined.^ The motion must be made by the defendant and cannot be made by a plaintiff, unless, perhaps, by a plaintiff in a cross action, who has put in an answer to the original complaint, and who may, in one motion, move to change the place of trial in the original suit, and for leave to amend his complaint in the cross suit by substi- tuting the name of the county where the place of trial is sought to be had.^ In ordinary cases, if the plaintiff wish the place of trial changed, he may amend, either of course, or on motion to the court as in other cases of the amendment of a complaint. Kegularly, too, the motion on behalf of defendants united in interest should be made by all ; but if the defendants are only ' Ante, pages 68, 69. 2 Merrill v. Grinnell, 10 How., 32 ; Hubbard v. Nat. Ins. Co., 11 How., 149. 3 Ibid. Conroe v. Nat. Ins. Co., 10 How., 403. < Rule, Sup. Court, 58. 5 Such a motion was recently heard at the Dutchess Special Term (March, 1859), in a case not reported, Church v. Freeman et al. V. s. 33 258 PEOCEEDINGS AFTER ISSUE. severally liable, or have adverse interests, or only a common inte- rest, and appear by different attorneys, the motion, it seems, may be properly made by one or more of them, on notice to the rest, as well as to the plaintiff.' The motion must be made in the district embracing the county named in the complaint, or adjoining county ; ^ though a different practice has, in one or tw^o instances, been followed. On what papers made. The motion to change the place of trial is made on the plead- ings, and on an affidavit or affidavits showing a proper cause therefor, namely, either that an impartial trial cannot be had in the county designated ; or, that the convenience of witnesses requires it, and that such change can be made subservient to pro- moting " the ends of justice ;"^ together with the usual affidavit of merits. The usual form and the contents of the affidavit in equity cases, do not differ from that used in cases of common law origin, the practice in regard to which is now tolerably settled by. a series of adjudications both before and since the Code.^ The affidavit should be made by the party, or reasons shown why it is not so made.* The number of witnesses is no longer regarded as controlling, but the character and materiality of their testimony, the nature of the action, and the probable facility which will be afforded, or delay which may be occasioned in obtaining a speedy trial, will be considered in determining the propriety of the change. For it is provided by the rule,^ that, in addition to what has usually been stated in affidavits concerning venue, either party may state the nature of the controversy and show how his witnesses are material ; and may also show where the cause of action or the defense, or both of them, arose ; and these facts will be taken into consideration by the court in fixing the place for trial. 1 See Voorliies' Code, 98-100, and cases there cited; Mairs v. Remsen, 3 Code R., 138. ^ Bangs V. Selden, 13 How., 379. ^ q^^^^ ^ 126. < See Voorhies' Code, 101-103 ; 1 Whit. Pr., 578-582. ■^ 1 Whit. Pr., 576, 577. * Sup. Court, Rule 59, same as No. 45 of the Revision of 1856. MOTION TO CHANGE THE PLACE OF TRIAL. 25 9 It will be observed that the place of trial is changed for the convenience of witnesses only when "the ends of justice would be promoted by the change." ' The courts, therefore, sometimes refuse to change the venue from a county where a speedy trial may be had, to one where, from the state of the calendar, or other cause, a delay is likely to ensue. In such case, however, the objection that a delay is apprehended, has been met and overcome by substituting an adjoining county where a speedy trial may be had.^ Staying proceedings to make motion. The defendant may obtain from a judge at chambers, an order, if it be necessary to do so, staying the plaintiff's proceedings, to enable him, to make the motion. But it is provided by the rule (No. 58), that no order to stay proceedings, for the purpose of moving to change the place of trial, shall be granted, unless it shall appear, from the papers, that the defendant has used due diligence in preparing the motion for the earliest practicable day after issue joined. If an order should be improvidently granted on papers defective in this respect, it is irregular and will be set aside or vacated, without notice, by the judge who granted it; though it is not absolutely a nullity, but must be obeyed until vacated or set aside. Effect of order and how revolced. The same rule declares that such order shall not stay the plain- tiff from taking any step, except subpoenaing witnesses for the trial, without a special clause to that effect. The plaintiff, there- fore, may notice his cause, or take any other preparatory step, except as above, notwithstanding the order, unless such proceed- ing be restrained by the terms of the order. The rule also provides the plaintiff with a mode of obtaining a prompt revocation of the order, and without notice to the oppo- site party, namely, by presenting to, and filing with, the officer granting the order an affidavit showing such facts as will entitle the plaintiff, according to the settled practice of the court, to ' Sub. 3, § 126, Code. = Goodrich v. Vanderbilt, 7 How., 467 ; Kiug v. Vanderbilt, 7 How., 385. 260 PROCEEDINGS AFTER ISSUE- retain the place of trial ; and when such revocation is obtained, the plaintiff must give immediate notice to the defendant's attor- ney. If the defendant be dissatisfied with the revocation, and a stay- is absolutely necessary for him to make his motion, his better course is to obtain an order to show cause why the stay should not be granted, with the usual clause suspending proceedings until the return of that order. It would doubtless be competent for him, in such a proceeding, to meet the afiidavit on which the plaintiff has obtained the revocation, by counter affidavits on his part, either showing his own right to require a change, or im- peaching the plaintiff's statement.^ Notice of the motion. Due service of eight days' notice of the motion must be given as in other cases ; or the plaintiff may bring on the motion on an order to show cause made at special term, ex parte, and containing the stay of proceedings contemplated by the rule. The notice or order to show cause should specify the grounds of the motion, namely, that an impartial trial cannot be had in the county named in the complaint, or for the convenience of witnesses, as the case may be, and should also specify the county to which it is proposed to transfer the trial. Motion, how made and opposed. The motion is brought on at the special term in the same man- ner as other special motions. This subject will be further consid- ered in a subsequent chapter, when we come to speak of motions generally. The plaintiff may read affidavits in opposition to the motion, stating the number and names of his witnesses, the facts he expects to prove by them, and showing generally how they are material ; and if the defendant's case be substantially answered, or if the defendant's affidavits be defective, or if the object of the motion is clearly delay, the motion will usually be denied, though it is no answer to the application that by granting it the plaintiff will lose a trial, or a term, where the defendant is not chargeable ' 1 Whit. Pr., 582, 583. MOTION TO CHANGE THE PLACE OF TRIAL. 261 with laches.i But if a party meets such an application made by his adversary by a stipulation not to give any evidence except as to facts occurring in the county where the venue is laid, the motion will be denied.^ Fo7-m of order. The order is usually absolute that the place of trial be changed from the county mentioned in the complaint to the county men- tioned in the notice of motion, and it may contain a direction that the papers on file be transferred to such substituted county. It is sometimes conditional, however, that it be changed unless the plaintiff stipulate to refer the cause to take testimony where the witnesses reside ; or that the defendant stipulate (if the plain- tiff so desire) to refer the cause to a referee residing in the county where the defendant wishes the trial to be had. The costs of the motion are usually directed by the order to abide the event of the suit, and this whether the motion is granted or denied.^ Proceedings on allowance of order. On the order being allowed it is, as in other cases, filed (or if allowed in another county, certified by the clerk of such county to be filed) in the county where the place of trial is laid, and a copy should be served on the opposite attorney. The papers and proceedings on file should regularly be trans- ferred to the substituted county, for which purpose the order changing the place of trial should contain such directions. The rule of the court (No. 3), which directs such transfer of papers as a matter of course, seems to apply only to the case of the place of trial being changed for the reason that the proper county is not specified in the complaint. SECTION n. MOTION FOE ISSUE TO BE TEIED BY JUEY. Though the usual mode of disposing of an equity issue under the old system was, as it is by the present practice, to bring it on ' Cases cited, Voorhies' Code, 102, 103. = gmith v. Averill, 1 Barb., 28. 3 Northrop v. Van Dusen, 3 Code K., 140 ; Hubbard v. Nat. Pro. Ins. Co., 11 How., 149. 262 PEOCEEDINGS AFTEE ISSUE. for hearing before the court, without the intervention of a jury, yet it was sometimes found convenient not only, but necessary to the due administration of justice, to direct an issue of fact to be tried by a jury. This was done by awarding what was called a, feigned, issue, and sending it down to a court of law for trial. Previous to the act of 1838 to regulate the trial by jury, and the taking of testimony in Chancery,^ as amended by the act of May 2d, 1839,^ a feigned issue was awarded by the court, only when the cause had been brought on for hearing, and upon the pleadings and proofs taken in the cause, when it appeared that a material fact, such, for example, as the sanity of a testator in the execution of a will, or the fraudulent execution of a deed, and the like, was rendered doubtful in consequence of conflicting tes- timony. By the act'last mentioned the court was authorized, be- fore the hearing, on the application of either party, to direct issues to be framed for trial, and questions of fact to be tried by a jury, when in its opinion the proceedings would be thereby expedited, or costs diminished, or the ends of justice promoted. The prac- tice in regard to the drawing up and settling of a feigned issue was peculiar to the Court of Chancery, and the trial and subse- quent proceedings thereon were rendered somewhat more compli- cated and artificial from the necessity which existed of preserving the appropriate functions of the two tribunals separate and dis- tinct. It is unnecessary to consider those proceedings in detail, as they may be conveniently referred to in the standard works on Chancery Practice.^ It maybe remarked, however, that the court might grant a feigned issue either on application before the hear- ing, or on the hearing ; for it was decided by the Chancellor that the act of 1839 did not deprive the court of the power it formerly possessed to award an issue at the hearing upon pleadings and proofs when a material fact was rendered doubtful in consequence of conflicting testimony.^ The abolition of the Court of Chancery, and the union of law and equity powers in the same tribunal, rendered it necessary to 1 Laws of 1838, p. 244. » Laws of 1839, p. 292. ' See 1 Barb. Ch. Pr., 446-465. ■* New Orleans Gas Light and Banking Co. v. Dudley, 8 Paige, 452. MOTION FOE ISSUE TO BE TEIED BY JUEY. 263 effect a change in the proceedings upon feigned issues, modifying essentially the practice so as to conform to the new system, while preserving the substance of this useful part of the Chancery system unimpaired. Accordingly, the Code (section 72) provides that " feigned issues are abolished ; and instead thereof, in the cases where the power now exists to order a, feigned issue, or where a question of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried ; and such order shall be tlie only authority necessary for a trial." The trial by jury is provided for in common law actions, and also, in an action for divorce, for adultery, by section 253 of the Code. The following section (section 254) provides that " every other issue is triable by the court, which, however, may order the whole issue or any specific question of fact involved therein to be tried by a jury ; or may refer it as prescribed in sections 270, 271." Under these general provisions of the Code the rules of the court prescribe the manner of applying for and settling the issues of fact which are to be tried by a jury. The 33d of the new rules directs as follows : " In cases where the trial of issues of fact is not provided for in section 253 of the Code, if either party shall desire a trial by jury, such party shall, within ten days after issue joined, give notice of a special motion to be made upon the pleadings, that the whole issue, or any specific question of fact involved therein, be tried by a jury. With the notice of motion shall be served a copy of the questions of fact proposed to be submitted to the jury for trial, and in proper form to be incorporated in the order ; and the court or judge may settle the issues, or may refer it to a referee to settle the issues. Such issues must be settled in the form prescribed in section 72 of the Code of Procedure. " In an action for divorce, when issue is joined by the pleadings upon the question of adultery, such issue shall not be tried by a jury until the issue to be tried shall be settled in like manner as in other actions where issues arising out of the pleadings are required to be settled." ' Of the revision of 1858, as amended, and the 69tli of the former rules. 264 PROCEEDINGS AETEE ISSUE. The remainder of the rule has reference to the review of the trial of such an issue, and will be hereafter considered. The rule obviously contemplates an application to the court for the settlement of issues in all cases where a trial by jury is to be had in an equitable action. Notwithstanding this, how- ever, it has been held by a very distinguished judge at special term,' that the court has still the power, as under the old prac- tice, at the trial, to order the whole issue, or any specific question of fact involved therein, to be tried by a jury, whether a prior application for issues has been made or not. The practice indi- cated in this decision is laid down as follows : " In all this class of cases the mode of trial is a question addressed to the discretion of the court. If the nature of the issue is such that a trial by jury will be likely to subserve the ends of justice, and facilitate the determination of the action, that mode of trial should be adopted, if not the case should be tried without a jury. " Nor does it lie with the parties, as it seems sometimes to have been supposed, to determine whether the issue or a specific ques- tion of fact shall be tried by a jury. It is true that either party, if he desire a trial by jury, may, within ten days after the cause is in readiness for trial, give notice of an application for that pur- pose. Upon the hearing of this application the court may or may not direct that the issues in the action be tried by a jury. This will depend very much upon the probable course of the trial, and the nature of the questions to be decided. But, if the application for a trial by jury be denied, or if no application be made, the court still has the power at the trial to order the whole issue, or any specific question of fact involved therein, to be tried by a jury. Issues of fact in common law actions must be tried by a jury, unless the parties choose to waive this right. But it is for the court to say in other cases, whether an issue of fact shall be tried by a jury, or by the court without a jury. I suppose it is the right of the court, in every case embraced in the 254th section of the Code, to have the aid of a jury upon the trial, and to submit to its determination as many or as few of the questions of fact presented by the pleadings as it may deem expedient. I ' Church V. Freeman ef al., 16 How., 294; per Harris, J. MOTION FOR ISSUE TO BE TEIED BY JURY. 265 have in repeated instances availed myself of this poveer at the circuit. " Entertaining this view of the power of the court upon the trial, it has not seemed to me to be a proper exercise of the dis- cretion of the court, in ordinary cases, to instruct the court before which the case is to be tried, beforehand, what question it shall submit to a jury, and what it shall not. It is better, I think, as a general rule, to leave the court which is to be charged with the conduct of the trial, to determine for itself the manner in which the questions of fact in the case shall be decided." The motion was accordingly denied. It is proper to add, how- ever, that the suit, having been discontinued and a new one com- menced, another justice in the same district,^ before whom the cause was called for trial, declined to order the issue to be tried by a jury, on the ground that a notice of the settlement of the issues had not been served within ten days, as required by the rule. Though the power, therefore, no doubt exists to order an issue of fact, in an equity case, on the trial, and without previous notice, to be tried by a jury, and is sometimes exercised,^ jet the safer course, in all cases, if either party desire such trial, is to move for a settlement of the issues within ten days, as required by the rule. The decision above referred to was made before the amend- ment of rule 33 (No. 69 of the former revision), above quoted, which now provides that an issue in an action of divorce shall not be tried by jury until such issue "shall be settled in like manner as in other actions," notwithstanding the statute (Code, § 253) is peremptory that an issue of fact in an action for divorce '^must be tried by a jury." Previous to this amendment of the rule it was a question whether this language of the statute 1 Wm. B. Wright, J. ^ The trial of a question of usury in an action to foreclose a mortgage was ordered by Justice Hogeboom to be by jury, at the Rensselaer circuit, February, 1859, without any issue having been previously settled on motion, and the same practice has been repeatedly followed in other cases ; see also Wood v. Harrison, 2 Sand., 265, where issues of an equitable nature were submitted by the court to a jury. 266 PROCEEDINGS AFTER ISSUE. dispensed, with the necessity of an order for issues in an action of divorce, stating the questions of fact to be tried.^ The rule is now specific upon that point, and absolutely prohibits a trial until such issues shall be settled "in like i^manner as in other actions." If an application to settle issues, therefore, be not made before the cause is moved for trial, it is quite clear that the court must either dispense with the rule, or frame and settle the issues on the spot, or allow the cause to stand over for that pur- pose. For there is no power in the court by its rules to over- ride a statute, and no valid judgment can be rendered otherwise than on a trial by jury where the party is entitled to one, even though the action be in form for equitable relief,^ unless, indeed, the parties waive such right by proceeding to the trial without objection.^ Motion for issue. The motion for an issue of fact must be made within ten days after issue joined, and is made upon the pleadings in the case. The rule (No. 33) provides that there shall be served with the notice of motion a copy of the questions of fact proposed to be submitted to the jury for trial. The motion may be made by any or either of the parties to the action ; though where there are several defendants united in inte- rest, it should be made by all those who are so united, and notice of motion given to the attorneys of all the other parties who have appeared. If there be no opposition, the moving party will of course take the order asked for, namely, that the issues be tried by jury; and he will incorporate in such order the questions of fact precisely as stated and served in the notice. If, on the other hand, the adverse party is either dissatisfied with the form of the questions of fact proposed, or does not wish a jury trial at all, he will appear on the motion and make his ' Forrest v. Forrest, 3 Abbott, 144 ; and see in this case the practice in regard to framing and submitting to the jury the issues of fact in a divorce case, and as to what specific facts are to be submitted, fully considered by Woodruff, J. 2 Salters v. Genin, 7 Abbott, 193. 3 Greason v. Keteltas, 17 N. Y. R,, 491. MOTION FOE ISSUE TO BE TRIED BY JURY. 267 objection. The granting of such issues, to be tried by jury, is by no means a matter of course, but is now, as under the former practice, entirely discretionary with the court.^ Should the mo- tion be denied, it seems, that it may still be proper for the judge, at the trial (when, the cause is tried at circuit), to submit it, or any specific question of fact arising on the pleading in it, to the jury. If, on the motion for issues, the objection be not generally against the granting of any issues at all, but merely to the form of the proposed questions of fact which have been served, the court is then to settle such issues, or, if it think proper, refer it to a referee to settle them. The objecting party in such cases should be prepared on tlie motion with a counter-statement of the proposed questions of fact, or with his amendments to the questions of fact served by the moving party. Grenerally the court will be able on the spot to settle substantially the issues to be tried, unless in very complicated cases, or where there is a great number or variety of questions arising on the pleadings, in which cases a reference will be ordered. The settlement of the issues, whether by the court or a referee, will be substantially the same as under the old practice.^ It will be proper to state in the order not only the several proposed questions of fact, but also the names of the parties to the issue, and which party is to be considered as holding the aifirmative upon each question to be ti'ied. The questions stated should be in the form of interrogatories, to be answered by the verdict of the jury. ^ The proceedings before the referee should be on notice, as in other cases. The former practice before the master in settling issues may be easily adapted.** The referee may report the issues as settled by him, and the report should be filed, and a copy served on the opposite party, with a copy of the order stating the issues to be tried in conformity with the report. The issues are then in readiness for trial. ' Apthorpe v. Coinstock, 2 Paige, 482; Church v. Freeman, 16 How., 294. 2 Chancery, Rule 67. ' 1 Barb. Ch. Pr., 447. ^ 1 Barb. Ch. Pr.,448. 268 PROCEEDINGS AFTER ISSUE. The proceedings upon the trial of the issue, and subsequent proceedings to judgment, including an application for a new trial when such application is made, will be considered in a subsequent part of this work. (See fost, section IV, chap. XIV.) SECTION III. MOTION TO COMPEL THE DEPOSIT IN COURT OP MONET OE OTHEE PEO- PEETT HELD IN TEUST. It was the practice in equity that where the defendant's answer contained a clear admission that there were trust moneys in his hands the court would always, on an interlocutory application, order it to be paid into court. And, generally, whenever it appeared that a complainant was solely entitled, or had such an interest jointly with others as to entitle him, on behalf of himself and of those others, to have a fund in the hands of the defendant secured, the court would, on motion and before the hearing, order it to be paid into court.^ The instances in which the application for the order was most usually made, were upon admissions in the answer, in cases of executors and trustees, and of vendors and purchasers.^ By the new practice this interlocutory remedy is continued and somewhat enlarged. The provision of the Code which clothes the court with power to order the defendant to satisfy an admit- ted part of the plaintiff's claim has already been considered.' The same section* also makes provision, in analogy to the Chancery practice for compelling a defendant to deposit " money, or other thing capable of delivery" in court, subject to the direction of the court, and is as follows : " Where it is admitted by the pleading or examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with, or without security, subject to the further direction of the court." ' 1 Barb. Ch. Pr., 240. ' 1 Barb. Ch. Pr., 237. ^ Ante, pages 236-240. * Code, § 244. MOTION TO DEPOSIT TRUST MONEY. 269 In the absence of any contrary adjudications upon this statute, I suppose the former equity practice is to be followed in the application of the statute under our present system. It will be observed that it is not restricted to the possession of money only, or to mere cases of trusteeship, but extends to all cases where " money or other thing capable of delivery" which " belongs or is due to another party." Hence, it has been held, that where it appears by the pleadings that the plaintiff deposited money with the defendant to pay for him to a third party (the defendant being surety for the payment thereof to such third party), which money is in the defendant's possession, the court will order it to be deposited in court, under this provision, or paid to such third party.^ The motion to pay into court may be made by either party, plaintiff or defendant, and it may be made though the defendant holds the money as-agent merely, and not as trustee, as was done in a case since the Code, in which a complaint was filed, to recover from the defendant a sum of money which came into his hands, as agent for the plaintiff; and an injunction having been granted to restrain the disposition of the fund, the defendant moved for, and obtained, an order to pay the money into court.^ And in such case, on the coming in of the answer admitting a sum to be due, the plaintiff may have an order directing the pay- ment to him of the money so brought into court.^ The money, &c., may be ordered to be deposited in court upon the mere admission of the defendant in his answer.'' Or, the admission may appear from the examination of the defendant before a master * (referee) ; or, no doubt, upon the examination of the defendant as a witness, made at the instance of the plaintiff before trial. As a general rule, upon a bill filed against an executor or administrator for a distribution of the estate of a decedent, if it appears that there is a clear balance in his hands uninvested, beyond all just claims made by him upon the fund, such balance > Burhans v. Casey, 4 Sand. S. C. R., 706. 2 Merritt v. Thompson, 1 Abbott, 223. ^ Ibid. ' Mills V. Hemsen, 8 Ves., 67. ^ Quarrell v. Beckford, 14 Ves., 177. 270 PEOCEEDINGS AFTER ISSUE. will be directed to be brougbt into court and invested pending the suit.i An order will often be made also against the purchaser of an estate, being in possession under the agreement, to pay the pur- chase money into court, where he has approved of the title.^ And so in other cases between vendor and purchaser.^ But in general a partner in trade admitting the receipts of money, but insisting that there is a balance in his favor, will not be ordered to pay the money in his hands into court ; but, if he have received the money contrary to good faith, which he ought not to have received, he will be ordered to bring it into court.^ The general equity rule was, that whenever it appeared that the defendant was indebted, the balance thus ascertained would be directed to be paid into court before the hearing.' But, by our present practice, as heretofore noticed, in such cases the defend- ant may be ordered to satisfy and pay to the plaintiff such part of the demand admitted. And the provision of the Code above noticed, in regard to the payment of money which is held by trustees or others, applies only to cases where there is a question as to the proper distribution of the fund, and where it appears that the fund is in danger from the insolvency of the defendant, or any other cause. It is a mode of providing for the safe keep- ing of a fund without the appointment of a receiver ; but, in order to authorize a resort to such a proceeding, it must appear from the admission of a party that he holds such a fund which belongs to, or is due to another party. The provision applies not only to money, but to any other thing " capable of delivery," such as books, papers, title deeds, chattels and personal property. Or, instead of the delivery of such property into court, the same may be ordered to be delivered to the party to whom they belong, with or with- out security as the court may direct, and subject to the further direction of the court.'' ' Hosack V. Rogers, 6 Paige, 415. ^ 1 Baib. Oh. Pr., 238. ^ Ibid. * Ibid. 5 jrjj'ti.^ 240. = Code, § 244. MOTION TO DEPOSIT TRUST MONEY. 271 Motion, how made. The motion is made either upon the pleadings, or the pleadings and examination, or other proceedings in the cause showing the admission of the defendant. No copies of any papers need be served except the notice of motion, which must be served as in other cases. The motion is made at special term of the court. The order will direct what disposition is to be made of the money or other property, whether to be paid into court, or delivered to the claimant. It is not usually the practice to order it to be paid or deposited "forthwith," but by a certain day named in the order.i The formal proceedings upon obtaining, entering and serving the order are the same as in other cases. The property, or thing, directed to be brought into court, is to be deposited with the clerk of the county where the action is triable.^ If, however, it be money, it is to -be paid to the county treasurer of the county in which the action is triable, unless the court shall otherwise direct, pursuant to the directions of the 81st rule of the court, and the rule makes provision for the manner in which the county treasurer shall invest such moneys. Order, how enforced. When an order for the deposit of money or other property in court has been made, a certified copy should be served upon the party who is directed to make the deposit. If he refuse or neg- lect to comply with the order, the party obtaining such order may move, upon proof of the fact of his refusal, and due notice of motion, for an attachment against him as for contempt in disobey- ing the order, and the proceedings will be the same as in other cases of proceedings for the punishment of contempts. Besides the ordinary proceeding, as for contempt, on the dis- obedience of such an order, the section under consideration (Code, % 244) provides that " whenever, in the exercise of its authority, a court shall have ordered the deposit, delivery, or conveyance of money or other property, and the order is disobeyed, the court, besides punishing the disobedience, as for contempt, may make an • 1 Barb. Ch. Pr., 241. » 1 Barb. Ch. Pr., 241, 242. 272 PROCEEDINGS AFTER ISSUE. order, requiring the sheriff to take the money or property, and deposit, deliver, or convey it in conformity with the direction of the court." SECTION IV. OBTAINING ADMISSION OP DOCUMENTAEY EVIDENCE, AND PEOCEEDINGS rOE OBTAINING INSPECTION OF SAME. Obtaining admission of documentary evidence. The new practice provides (by section 388) a mode of saving expense in the proving of papers and documents material in evi- dence on the trial of the cause, namely : that either party may exhibit to the other, or to his attorney, at any time before the trial, any paper material to the action, and request an admission in writing of its genuineness. If the adverse party or his attor- ney fail to give the admission, within four days after the request, and if the party exhibiting the paper be afterwards put to expense in order to prove its genuineness, and the same be finally proved, or admitted on the trial, such expense, to be ascertained at the trial, shall be paid by the party refusing the admission, utiless it appear to the satisfaction of the court that there were good rea- sons for the refusal. Although not prescribed in terms, the more convenient course will be, to accompany the exhibition of the document with a written notice, and request for an admission as above ; the proof of the giving of which notice will, in case of refusal, be more convenient and more satisfactory to the court than the adduction of exclusively verbal evidence.' Questions extending merely to the construction or purport of the instrument adduced, apart from any as to its genuineness, or where, as must frequently be the case, the genuineness of it is not in question, though its real effect is, may easily be guarded against by a special form of admission ; and indeed no properly drawn request will require more, than a mere dispensation from the ne- cessity of giving technical evidence of the existence of such an instrument.^ ' 1 WWt. Pr., 584. = Ibid., 585. INSPECTION OF DOCUMENTS. 273 Obtaining ins-pection of documentary evidence. The same section of the Code (section 388) which makes pro- vision, as above, provides also, a mode of obtaining, by order of the court, an inspection of documents or papers material in evi- dence, as follows : " The court before which an action is pending, or a judge or justice thereof, may, in their discretion, and upon due notice, order either party to give to- the other, within a specified time, an inspection and copy,'or permission to take a copy, of any books papers and documents in his possession or under his control, con- taining evidence relating to the merits of the action, or the defense therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both." The proceedings for a discovery of books and papers to enable the plaintiff to frame his complaint, or the defendant his answer^ have been considered in a former part of this work ;' and we have there seen that those proceedings rest more particularly upon the provisions of the Revised Statutes (which are still in force), and the rules of the court ; and that the section of the Code (section 388) above given is more properly, and perhaps solely, applicable, to proceedings of this nature taken after issue joined with a view to obtain evidence and prepare for trial,^ and as such it will be con- sidered in this place. Under the former equity practice the court would order the production of books and papers only upon two principles, name- ly : security pending the litigation, and discovery or inspection for the purposes of the suit in court.^ The section of the Code under consideration seems to limit the power of the court in al- lowing this remedy to the case last mentioned. ' Ante, pages 55-66. ^ 1 Whit. Pr., 613, et seq. ; Keeler v. Dusenbury, 1 Duer, 660 ; Gelston v. Marshall, 6 How., 398. 3 1 Barb. Ch. Pr., 229 ; "Watts v. Lawrence, 3 Paige, 159. V. S. 35 274 PEOCEEDINGS AFTER ISSUE. In what cases inspection ordered. The court is clothed with power (by section 388) to order an inspection of books, papers and documents which contain " evidence relating to the action or the defense therein." And the present rule of the court^ provides that " either party may be compelled to make discovery as provided by section 388 of the Code," that is, in case the book or document is shown to contain evidence relating to the action or defense. There is no authority to order it in any other case. It seems to be immaterial, however, whether the particular instrument would be evidence for or against the party moving its production, the only limitation of the statute in this respect being that it shall be shown to be " evidence relating to the merits of the action or defense." Hence no doubt under the present, as under the former equity practice, a plaintiff seeking to enforce against a defendant an instrument which the latter believes to be forged, will, on motion of defendant, be ordered to produce it for inspection in order to enable the defendant either to answer or prepare for trial.^ The granting of the order, however, is in all cases, by the express terms of the statute, in the discretion of the court or judge applied to.^ The cautious principles upon which courts proceed in granting this somewhat summary inquisitorial remedy have been very clearly marked out by Justice Hoffmak in the case of Stalker v. Gaunt (12 Leg. Obs., 132), in which he lays down two important principles as controlling such applications, namely, 1st. "If the discovery is plainly attainable by competent and , available testimony other than that of the party, a production of books, &c., should not be allowed without special circumstances." 2d. "If it is attainable by an examination of the party as a wit- ness, it should also be refused, except upon some special ground." A general search and examination for evidence among the pri- vate books and papers of an adversary, says the same judge, can- ' Sup. Court, Rule 14. ^ jgngs v. Lewis, 2 Sim. and Stu., 242. ^ See Van Zandt v. Cobb, 12 How., 544 ; Keeler v. Dusenbury, 1 Duer, 660 ; Commercial Bank of Albany v. Dunham, 13 How., 541. INSPECTION OF DOCUMENTS. 275 not be allowed. If the paper or document can be described and its contents are known, " the court can determine whether there shall be a production or inspection, and to what extent and in what manner. If the applicant cannot specify, it cannot be necessary, safe, or prpper to compel a general and unrestricted examination and inspection of the private books and papers of an adversary.^" Where the paper or document can be reached by a subpcena duces tecum, and an examination of the party in whose custody it is, as a witness, whether before or at the trial, the application will not usually be granted.^ A paper in the possession of a party to the action may be reached by a subpoena duces tecum, and a party is bound to produce it on pain of contempt.^ And by section 391 of the Code, the examination, instead of being at the trial, may be had at any time before trial, at the option of the party claiming it, on five days' notice, for good cause shown. Thus, in all cases where the paper can be reached by such an examination of a party, there can be no necessity of resorting to the compulsory process of obtaining an inspection of the paper under section 388. But as the production of the books of a cor- poration cannot be compelled by subpoena duces tecum, the proper remedy of a party entitled to use such books as evidence is an application under this section, or under the Eevised Statutes.* Mode of applying for order, and proceedings thereon. It was observed in a preceding section^ that the proceeding on an application for the discovery of books, papers, and documents, under the Revised Statutes, in general applied to a discovery to enable the plaintiff to prepare his complaint, or the defendant his answer. And this proceeding is invariably by petition as pre- scribed by statute. On the other hand, the proceeding under the ' See the reasoning in this case fully affirmed by Justice Harris in Commer- cial Banli of Albany v. Dunham, 13 How., 542 ; see also Davis v. Dunham and others, 13 How., 425 ; Hoyt v. American Exchange Bank, 8 How., 89; 1 Duer, 652. 2 Van Zandt v. Cobb, 12 How., 544; Commercial Bank v. Dunham, 13 How., 541. ^ Bonesteel v. Lynd, 8 How., 226, affirmed on appeal. * La Farge v. La Farge Fire Ins. Co., 14 How. 26. = Ante, page 55. 274 PROCEEDINGS AFTER ISSUE. Code (section 388), which we are now considering, relates rather to the obtaining oi evidence to be used on the trial, and it need not, it seems, be by petition, but may be made on the pleadings or affidavits, although no doubt the party may proceed by peti- tion if he chooses. The rules of the court as amended in 1858 (Rules 14, 15, 16, 17) comprehend, no doubt, both modes of pro- ceeding. The 15th rule prescribes what the " moving papers" (either the petition or, if under the Code, the affidavits) shall contain, as follows : " The moving papers upon the application for such discovery shall state the facts and circumstances on which the same is claimed, and shall be verified by affidavit, stating that the books, papers and documents whereof discovery is sought are not in the possession nor under the control of the party applying therefor. The party applying shall show to the satisfaction of the court, or judge, the materiality and necessity of the discovery sought, and the particular information which he requires." It has been shown above that the granting of the order is, in all cases, by the express terms of the Code, in the discretion of the court or judge. Therefore, in addition to showing the essential fact that the paper or document will be " evidence relating to the merits of the action or defense," the moving papers should also show the particular reasons which exist for the granting of such an order, so that a clear case for the exercise of a judicious discre- tion in compelling the discovery may appear upon the face of the papers. The mode of proceeding in making and resisting the application and subsequent proceedings, including the form of the order and the manner of its enforcement, have been sufficiently considered in the former section of this work already alluded to.' It may be remarked here, however, that, if the proceeding be under the Code, the order of discovery in declaring the consequences of an omission to comply with it may provide that the defaulting party be punished as for a contempt,^ which, it seems, cannot be done if the proceeding be by petition under the statute. The mode of ■ ' See ante, pages 55-66. " Code, § 388 ; Sup. Court, Rule 16. PERPETUATING TESTIMONY. 277 enforcing the order and its effect as a stay of proceedings under Rule 17, have also been already considered.' It may be added, that the order being discretionary is not reviewable on appeal. If the papers on which it is granted do not comply with the rules, it is an irregularity, and for that reason, or any other irregularity, the order may be vacated or set aside. SECTION V. PROCEEDINGS TO PEEPETUATE TESTIMONY. Under the former Chancery practice a bill might be filed either to perpetuate the testimony of witnesses, or to take their testi- mony de bene esse, or conditionally. A bill to perpetuate testimony was brought when a person interested in any property was in danger of losing the evidence of his right before it could be judicially investigated, in which case he could file a bill against the persons who would be. benefited by the loss for the purpose 6f examining the witnesses and per- petuating their testimony. The sole object of the bill was to assist other courts and to preserve evidence to prevent future litigation.^ A bill to examine witnesses de bene esse was similar to that for perpetuating testimony, the difference being that the latter could be maintained only in cases where no present suit could be brought at law by the person seeking the aid of the court to try his right, or in aid of a suit about to be brought, while, on the other hand, the former was sustainable only in aid of a suit already depending.^ Though both these forms of procedure existed in this state up to the time of the adoption of the Code, yet they were rarely resorted to, as the Revised Statutes afforded a more simple mode of remedy by summary application in both classes of cases. These provisions of the statute are still in force, unaffected by the Code ; and, it is supposed, are sufficiently comprehensive to afford relief in most cases that are likely now to arise without resorting to the former Chancery practice or undertaking to ■ Ante, pages 63, 64. . ^ 2 Barb. Ch. Pr., 136, 137. ' 2 Barb. Ch. Pr., 144. 278 PEOCEEDINGS AFTER ISSUE. reconcile the incongruity which exists in this respect between it and our present system. Perhaps special cases may arise in which a resort to the bill to perpetuate testimony may be necessary, by reason of the statutory remedy not being sufficiently broad to afford full relief; but if so, they are rare, and it can scarcely be necessary, therefore, in this place, to give even an outline of the former practice in Chancery in this respect.^ I shall, therefore, consider only the statutory remedy provided in such cases. Of proceedings to 'per'petuate testimony. It is provided by statute that " any person who is a party to a suit pending in any court of this state, or who expects to be a party in any suit about to be commenced, may cause the testimony of any witness material to him in the prosecution or defense of such suit to be taken conditionally, and to be perpetuated." ^ The order for the examination of the witness is granted by a justice of the Supreme Court at chambers, or county judge, on the presentation to him of " proof by affidavit." 1st. That the applicant is a party to a suit actually pending in some court of record in this state, or that such applicant has good reason to expect to be made a party to a suit in such court of record ; and 2d. That the testimony of any witness within this state is material and necessary to the prosecution or defense of such suit; and 3d. If such suit be not actually commenced, that the party ex- pected to be adverse to the applicant, resides within this state and is of full age.^ The affidavit is sufficient if it comply with the statute ; it is not necessary to state the probable inability of the witness sought to be examined to attend the trial.* The officer to whom application is made will, by order, appoint a place within the county where the witness resides, and specify a time, not less than fourteen days from the date of the order, for the examination of the witness ; and the examination may, by the ^ See proceedings on bills to perpetuate testimony, 2 Barb. Ch. Pr., 136-144. 2 2 R. S. (3d ed.), 495. ^ jj,-^^. * Jackson v. Perkins, 2 Wend., 308. PEEPETUATING TESTIMONY. 2*79 order, be directed to be taken by the officer allowing the order, or any other officer to whom the application might have been originally made, residing in the same county with the witness.^ The mode of the service of the order, and the further proceed- ings thereon are particularly pointed out by statute.^ It may be remarked that on the examination a witness is bound to give evidence in the same cases, and to the same extent, that he would were he called as a witness upon the trial of the cause.'^ But the act does not authorize the examination of a witness who would not be compelled to testify on the trial, nor can a witness be compelled, under it, to answer a question which he would not be obliged to answer on the trial.* The depositions having been taken by the officer, and filed with the original affidavits in the manner provided by statute, may be used as evidence on the trial " between the persons named in the original affidavits as parties, or named therein as expected parties, or between any parties claiming under such persons, or either of them, upon due proof of the death or insanity of the witness ex- amined pursuant to the foregoing provisions, or of the inability of such witness to attend such trial by reason of old age, sickness, or settled infirmity." * To authorize the reading of such a deposition, however, it has been held, that the party must produce yroof of the inability of the witness to attend at the trial, and not rely on the presumption of such inability arising from the advanced age of the witness.^ But proof of the advanced age of the witness and the belief of another, from his knowledge of the situation and infinnities of the witness, that he could not endure the fatigue of a journey to the place of trial without serious hazard to the witness' health, has been held sufficient to authorize the deposition to be read in evi- dence.'' And see further as to the practice in such cases under next head. ' 2 R. S. (3d ed.), 496. » jbig, ^ In the matter of Kip, 1 Paige, 601. * Ibid. 5 2 E. S. (3d ed.), 496. = Jackson v. Rice, 3 Wend., 180. ' Jackson v. Perkins, 2 Wend., 308, 280 PROCEEDINGS AFTER ISSUE. SECTION IV. PROCEEDINGS TO TAKE TESTIMONY DE BENE ESSE. Testimony taken de bene esse, under article 1, title 3, chap. 7, part 3 of the statute, can only be taken after an action is actually commenced by the service of process, or appearance of the par- ties. It may, however be taken before there is an issue of any kind, and, it seems, at any stage of the cause.^ The application is to be made to a judge of the court, and must be upon affidavit, vs^hich is required by statute to state: 1. The nature of the action and the plaintiff's demand. 2. If the application be made by the defendant, the nature of his defense. 3. The name and residence of the witness. 4. That the testimony of such witness is material, and necessary for the party making such application in the prosecution or de- fense of such suit, as the case may be ; and 6. That such witness is about to depart this state, or that he is so sick or infirm as to afford reasonable grounds for apprehension that he will not be able to attend the trial of such suit.^ Order and examination, how obtained. If the judge shall be satisfied that the circumstances of the case require the examination of such witness, he shall make an order requiring the adverse party to appear before such officer, and attend the examination of such witness, at such time and place as shall be therein specified, which time shall not exceed twenty days from the date of such order, and shall be as much shorter as the exigency of the case may require, and the residence of the adverse party, or his attorney, will allow, in order to affiird sufficient opportunity to attend such examination.^ By an amendment of the statute^ the judge, instead of taking the testimony himself, may, in his discretion, make an order requiring the adverse party to show cause, on a day in such order to be named, why such testimony should not be taken by a referee to be appointed by him, and directing the mode of service in such ' Packard v. Hill, 7 Cow., 489. "' 2 2 R. S. (3d ed.), 488. ' Ibid. « Laws of 1851, page 871. TESTIMONY DE BENE ESSE. 281 order. On proof of such service, if no sufficient cause be shown against the same, the judge may appoint the referee, who is authorized to proceed in the same manner as if the examination were taken by the judge. The statute provides that the adverse party may show cause against proceeding in such examination by proof that such wit- ness is not about to depart from this state, or that he is not sick or infirm, or that the application for his examination is made coUusively to avoid his being examined on the trial of the cause ; and upon any such cause being shown the officer shall dismiss such application.^ It would also, perhaps, be sufficient cause against examining the witness if it should appear that the appli- cation was delayed, with a sinister intention to prevent the cross- examination of the witness, until a very short time before his departure, more especially as the officer is required by the spirit of the statute to allow a reasonable time for the examination of the witness.^ If no sufficient cause be shown to the contrary, on proof of the due service of the order and copy affidavit on which the same was granted, the officer proceeds with the examination in the manner provided by statute. The statute provides for compelling the attendance of witnesses, and regulates the manner of taking, signing and filing the depositions, and declares its effect as evi- dence. Though the statute requires the judge to take the deposition,- yet it is not necessary for him to write down the examination of the witness. It is sufficient that he administers the proper oath, and then after the witness has been examined in his presence, and the examination has been written down by counsel, that he reads it over to the witness before signing and certifying it.^ And though the statute provides that the deposition must be filed in the office of the clerk of the county, within ten days from its date, that provision, it has been held, is directory only, and in cases calling for that indulgence, may be dispensed with.* 1 2 R. S. (3d ed.), 488. " 1 Monell Pr. (2d ed.), 611. ' McDonald v. Garrison, 9 Abbott, 34. ■" Burdell v. Burdell, 1 Duer, 625. V. S. 36 282 PROCEEDINGS AFTER ISSUE. Examination, when evidence. It is provided by statute that the deposition may be given in evidence after it shall have been satisfactorily proved that such witness is unable to attend such trial or assessment of damages, personally, by reason of his death, insanity, sickness, or settled infirmity, or that he has continued absent out of this state, so that his attendance at such trial or assessment of damages could not be compelled by the ordinary process of lav/.^ The preliminary proof may be made by a party to, or one interested in, the suit. And the deposition of a foreign witness may be read, though it appear that he came to this state on the request of the party for the purpose, and that he resides in a foreign country, and might have been examined on a commission, and even though a commission may have been obtained for the purpose of examining him at his foreign residence.^ But the party against whom the deposition is to be used may prevent the reading of it by satisfactory proof that sufficient notice was not given to him to enable him to attend the examination, or that such examination was not in all respects fair, and conducted according to the statute. But it seems that the party cannot object that the notice of examination was too short, where he appears before the officer, and omits to object for that reason, but puts his objection on other grounds.^ So, too, it is competent for the objecting party to prevent the deposition from being read by proof that the witness' attendance could have been obtained on sufficient notice.^ In a case where a witness was a transient person, without any fixed habitation — a journeyman carpenter, who was seeking em- ployment — and said, at the time of his examination, that he was about leaving the state, and departed, and was not seen after- wards by one who had before seen him frequently ; upon proof of this state of facts, the deposition was held admissible.^ And in > 2 R. S. (3d ed.), 489. =! Jackson v. Kent, 7 Cow., 59 ; Wait v. Whitney, 7 Cow., 69. ' Ibid. 1 Monell Pr. (2d ed.), 613. * Weeks v. Lowry, 8 Barb., 530. = Guyon v. Lewis, 7 Wend., 26. TESTIMONY DE BENE ESSE. 283 all cases of absence from the state where a deposition taken de bene esse is offered in evidence, the party offering it must prove that he has used due diligence to procure the attendance of the witness, and particularly, that he has made inquiries at the last place of abode of the witness, in order to have him served with a subpoena.^ If the deposition be offered on the ground that the witness is unable to attend by reason of insanity, sickness, or settled infir- mity, this also must be shown to the satisfaction of the court. Mere old age, as has been shown on a former page, is not of itself sufficient ; but the party must also prove that the witness is too infirm to attend.^ That the witness is ill, from being very far advanced in pregnancy, is a sufficient inability from " sickness " to make her deposition de bene esse admissible.^ Testimony taken de bene esse is admissible upon the trial, not- withstanding one of the original plaintiffs has died, and the suit is continued by the survivor. And it is also admissible, not- withstanding the witness may have returned to the state since his examination, if he is not within the state at the time of the trial.^ A witness whose testimony has been taken de bene esse, cannot be impeached on the trial by proving that, subsequent to his examination he made statements inconsistent with his testimony, or said that what he had sworn to was false. Before such state- ments can be given in evidence to impeach a witness, he must be interrogated as to the same.^ SECTION VII. PKOCBEDINGS TO EXAMINE WITNESSES OUT OP THE STATE ON COMMISSION. When the Court of Chancery was in existence as a separate court, the Chancellor and Vice-Chancellors were authorized to issue commissions to any person or persons to take testimony, either within this state, in certain cases specified by statute, or ' 1 Monell Pr., 612. ^ See cases cited, ante, page 279. 3 Clark V. Dibble, 16 Wend., 601. * Markol v. Aldrich, 1 Abbott, 55. 5 Stacy et al. v. Graham, 14 N. Y. E., 492. 284 PEOCEEDINGS AFTER ISSUE. of foreign witnesses. The mode of proceeding upon these commis- sions was peculiar to the practice in Chancery, and was entirely different from that prescribed by statute in other cases. Perhaps this power, which existed in the Court of Chancery, is not abo- lished, but exists in the Supreme Court or judges thereof, and that they might still authorize the issuing of a commission, as heretofore out of Chancery, to examine witnesses living without the state. It is not necessary, however, to determine this, as the Chancery commission is not now resorted to in practice, and the customary, and, so far as my knowledge extends, universal course of proceeding in such cases is, to take the witnesses' testimony under commission pursuant to the statute. Let us briefly glance at the proceedings in such cases. In what cases commission issues. It is provided by statute, that when an issue of fact has been joined in any action in a court of record, and it appears on the application of either party that any witness not residing within the state is material in the prosecution or defense of such action, the court may, upon such terms as it shall think proper, award a commission to one or more competent persons, authorizing them, or any one of them, to examine such witness on oath upon the interrogatories annexed to such commission, to take and certify the deposition of such witness, and to return the same according to the directions given with such commission.^ By section 390 of the Code, a party may be examined as a wit- ness, on commission, at the instance of an adverse party. The motion cannot be made, it will be seen, until after issue joined. Though in case an interlocutory judgment shall have been obtained in any action, a commission may be awarded on the application of the plaintifi", in like cases, and in the same manner as if an issue of fact had been joined thereon.^ Motion for commission. An application for a commission is a non-enumerated motion, and must be founded on an affidavit, stating that the cause is at issue, or that the time for answering has expired and no answer received, as the case may be. It must likewise state the names 1 2 R. S. (3d ed.), 490. '^ 2 K. S. (3d ed.)., 492. TESTIMONY ON COMMISSION. 285 of the witnesses, with an affidavit of merits, if the party desires a stay of proceedings,' and that the witnesses are material, as the party is advised by his counsel and verily believes, and are with- out the state.^ And an affidavit by a defendant was held defective which omitted the clause, that he has a good and substantial defense on the merits, as advised by his counsel and verily believes, although it detailed the probable testimony of the wit- ness, but not in a sufficiently explicit manner to enable the court to judge whether it would amount to a good defense.^ But the affidavit need not add " that he cannot safely proceed to trial without the testimony of such witness, as he is advised by coun- sel and verily believes." And the affidavit of a third person, cognizant of the facts, instead of the party, is sufficient.^ It has been held in the New York Superior Court, that where a party upon an affidavit sets forth the facts which he wishes to establish under a commission to a foreign country, and shows that these facts can only be proved by persons in the employ of his antagonist, whose names are unknown to him, the court will permit the commission to issue generally, without the names of the witnesses, or vsdll grant a stay of proceedings until their names can be ascertained.^ The rule that the witnesses' names must be stated, is never departed from, however, except under very special circumstances.^ The commission will not operate as a stay of proceedings unless so ordered by the court ; and the only rule that can be laid down, in order to entitle a party to a stay is, that the application must be made with due and reasonable diligence, of which the court will judge.'' In a former case' a commission, with stay of pro- ceedings, was allowed, notwitstanding the application was not made until the fourth special term after issue joined. In granting or refusing a commission, with a stay of proceed- ings (for without a stay it would seem to be a matter of course to ' Franklin v. United Ins. Co., 2 John. C, 285. ^ jjjij^ ^ Hoyt V. Brisban, 1 Wend., 27. < 1 Monell Pr. (2d ed.), p. 600, and cases there cited. 5 Shaffer v. Wilcox, 2 Hall, 502. " Wright v. Jessup, 3 Duer, 642. ' 1 Monell Pr. (2d ed.), 600. ' Seal v. Dey, 7 Wend., 513. 286 PROCEEDINGS AFTER ISSUE. allow the commission, at any time, at the peril of the party), the court has a right to exercise a sound discretion according to the circumstances of the case. It is therefore competent for the opposite party to resist the application if he can show reasonable grounds on which it ought to be denied ; and if such grounds be shown, the court will order the party applying for the commis- sion to disclose, by affidavit, what he expects to prove, and may then, in its discretion, grant the rule either absolutely or condi- tionally, unless the adverse party will admit the facts sought to be proved ; and he must admit the facts, not that the witness will testify to such facts.^ In one case, since the Code,^ the practice is laid down thus : " It has always been regarded as very much a matter of course, to allow a commission to issue when a party shows that he has a material witness not within the reach of a subpcsna, unless it is made to appear that the application is not made in good faith. I think the same rule should still prevail, even where the witness to be examined is a party to the action, unless it is made to appear that the examination cannot be received as evidence upon the trial. Where a party swears upon the advice of counsel, that another party, who is absent from the state, is a material witness, he should be regarded as having made a prima facie case for a commission." It would seem that the rule, with regard to putting off a trial, is fully applicable in case of a commission, namely, that the court will not require a specification of the testimony unless circum- stances of suspicion are made to appear. And in a former case it was held, that on a motion for a commission to examine witnesses, with a stay of proceedings, where doubt was cast upon the bona fides of the application, the commission would not be granted on the common affidavit ; bnt, if, at a subsequent term, a prima facie case for a commission be made out, the motion would be granted.^ As respects the nomination of commissioners, the notice of motion should contain the names of one or more persons for that purpose, and, if there be no opposition, those named by the party applying ' See cases cited, Voorhies' Code (5th ed.), p. 550 ; 1 Monell's Pr., 601. ^ Shufelt V. Power, 16 How., 288, per Harris, J. 3 1 Monell's Pr. (2d ed.), 601, citing 7 Wend., 514. TESTIMONY ON COMMIiSSION. 287 will, of course, be appointed. The opposite party may, however, in all cases object to any commission on showing sufficient cause by affidavit ; but, it seems, he has not an absolute right to name one of the commissioners ; a substitution will be made only on cause shown against one or more of the commissioners named by the party moving. The commission may also be directed to per- sons residing within the state.^ By whom granted, and application where and how made. The application may be made either to the court at special term, or to a judge or county judge, in the cases in which, by section 401 of the Code, he may act.^ The application for a com- mission is a motion, and must be made within the district in which the action is triable, or in a county adjoining that in which it is triable ; ^ and though a county j udge of the proper county may allow the commission, he has no power to settle and allow inter- rogatories to be annexed to it in an action pending in the Supreme Court.* The power to issue a commission is an innovation on the com- mon law, and must be strictly pursued.^ A commission will issue to examine a party only as to such matter as can be used on the trial, not as to matter to be used on a mere collateral motion.® And if the bona Jides be doubtful, a commission (that is with stay of proceedings), will not be ordered on the common affidavit.'' A commission may issue to examine a non-resident party under section 399 (as amended), in the usual manner.' It has been observed that the motion is made on affidavit. It may also be on petition ; or an order to show cause, with a pre- liminary stay, if absolutely necessary. Ten days' notice of the application must be given, when made to a judge at chambers or 1 1 Monell Pr. (2d ed.), 602, citing 3 Oaines, 105 ; 2 Wend., 627. " See Erwin v. Voorhies, 26 Barb., 127, as to cases in which a county judge may act in granting commission in connection with section 401 Code, as amended in 1859. ' Erwin v. Voorhies, 26 Barb., 127. * Ibid. = Chamber v. Jackson, 4 Abbott, 413. ^ Harlin v. Eidner, 6 Abbott, 19. ' Vandervoort v. The Col. Ins. Co., 3 John. Gas., 137. " Block V. Haws, 8 Abbott, 335. 288 PROCEEDINGS AFTER ISSUE. county judge.^ "When made at court, the usual notice of eight days, it seems, is sufficient. The adverse party may oppose by affidavits, and if he shows good grounds of resistance, the application will be denied, the granting of a commission being always in the discretion of the court.^ If allowed by the court the order will, of course, be filed and entered with the clerk of the county in the usual way ; and, by statute, if allowed by a judge out of court, it is also to be filed with the clerk, and is to be allowed only in like cases and on the same terms that the court allows such orders.^ The commission then issues to the persons named in the order. It must be under the seal of the court out of which it issues, otherwise it is defec- tive.* Interrogatories, hoiu and when settled. The statute provides that the interrogatories to be annexed to the commission shall be settled by a judge of the court, in vaca. tion, or, if the action be in the (Supreme) Court, by a justice thereof, county judge or other officer authorized to perform the duties of such judge, upon such notice as shall be established by the practice of the court.' But it has been held that a county judge has no power to settle or allow interrogatories.^ The interrogatories must embrace the subject of inquiry and be governed by the rules applicable to oral examinations. The parties, however, ai'e authorized to insert a general interrogatory, whether the witness knows of any other matter or thing material to the party, besides what he has been particularly interrogated unto ; under which the witness may state facts not previously called for under the particular interrogatories. And if this inter- rogatory be not answered, the deposition cannot be read ; it being an undoubted principle, that the witness must answer substan- tially all the interrogatories, as it is otherwise impossible to say that he has told the whole truth. And it is no objection to a de- '■2 R. S. (3d ed.), 490, § 13. ^ Vandervoort v. Col. Ins. Co., 3 John. Cas., 137. 3 2 R. S. (3d ed.), 490, § 14. ■» Whitney v. Wyncoop, 4 Abbott, 370. « 2 R. S. (3d ed.), 490. » Erwin v. Voorhies, 26 Barb., 127 TESTIMONY ON COMMISSION. 289 position that a inaterial part of the evidence comes out under the general interrogatory .^ The following directions may be pursued in preparing and settling 'the interrogatories :^ They are to be annexed to the cominission, and must be signed by counsel, and must be settled by a justice of the Supreme Court. To procure the settlement, serve a copy of the proposed inter- rogatories on the opposite attorney vyith a notice (of four days) of the time and place at which they will be presented for settlement. The opposite party may propose cross-interrogatories, a copy of which must be served two days before the time of settlement of the interrogatories. At the time of settlement either party may except to the interrogatories of the other, and the judge will decide on the exceptions. If an interrogatory is allowed to pass without exception the answer to such interrogatory cannot be objected to at the trial as incompetent evidence, provided it be fairly within the scope of the interrogatory. Further questions may also be proposed and, if allowed, inserted among the interroga- tories. The interrogatories being settled and engrossed, the judge indorses his allowance, and directs the manner in which the com- mission, with the interrogatories annexed, shall be returned.^ To the commission must be annexed a copy of the sixteenth section of article 2, title 3, chapter 7, part 3, of the Revised Statutes, which contains instructions to the commissioners for executing the commission, together with any other particular directions that special circumstances may render necessary.* The statute^ provides that in settling such interrogatories either party shall be allowed to insert any question pertinent to the cause, which he shall propose. The officer settling the same shall indorse his allowance thereof, and annex them to the commission. Upon the commission he shall direct the manner in which it shall 1 IMonellPr. (2ded.), 703. ' Voorhies' Code (5th ed.), 552, and cases there cited. 'Ibid. * Ibid. " R. S. (3d ed.), 490. V. s. 37 290 PKOCEEDINGS AFTER ISSUE. be returned, and may, in his discretion, direct the same to be returned by mail, addressed to the clerk of the court out of which it shall issue ; or, if issued out of the Supreme Court, addressed to the clerk of the county in which the venue in such action shall be laid, designating the name of such clerk, and his resi- dence. The officer's direction of the manner in which the commission shall be returned, it has been held, is good though not indorsed on the commission itself, if it be indorsed upon the interrogatories annexed to the commission.^ But it is essential that the officer direct the manner of the return, otherwise the depositions can- not be read, although returned by mail addressed to the clerk, &c.^ Execution of commission. The mode in which the commission is to be executed and returned is specially pointed out by the statute, and it is unneces- sary here to cite the statutory provisions on that subject. It may be proper, however, to notice a few of the decisions of our courts, both before and since the Code, on the subject. The power conferred on the commissioners is strictly personal, and they cannot delegate their authority.^ But the commissioners may employ a clerk (though they are not bound to do so) who may write the deposition under the direction of the commissioners. So held in a case in the Supreme Court of the United States,^ and so held in a recent case in our own Supreme Court.^ Parties have a right to appear by counsel on the execution of a commission.^ The witness must be sworn by the commissioners, according to the directions of the statute, to tell " the truth, the whole truth, and nothing but the truth," and if it appears that, instead of this oath, the witnesses had been sworn "to make true answers to the interrogatories read to them," it is insufficient, and the deposi- tions will not be allowed to be read in evidence.'' It has been • Hurd V. Pendrigh, 2 Hill, 502. ^^ Richardson v. Gere, 21 "Wend., 156. ' 1 Harr. and Gil., 154. ' Keane v. Meade, 3 Peter's V. S. R., 1. * McDonald v. Garrison, 9 Abbott, 34. ' Union Bank of Sandusky v. Terry, 2 Abbott, 269. ' Whitney v. Wyncoop, 4 Abbott, 380. •TESTIMONY ON COMMISSION. 291 held, however, that it is not necessary to set out in the return what particular form of oath was administered, but it will be presumed from the fact that the commissioners certify the witness to have been duly sworn, that the proper oath was administered.^ It has been before observed that all the interrogatories and cross-interrogatories must be put and answered, or the. deposition cannot be read on the trial. And where it does not appear by the return that the last general cross-interrogatory was put to and answered by the witness, the depositions cannot in general be read in evidence, though if it also appear that the counsel of the parties was present at the execution of the commission, and no objection was taken at the time to the omission, the depositions will be received.^ A cross-interrogatory cannot be withdrawn, but must be put to the witness and answered.^ But where two of several cross- interrogatories, each embracing several propositions, are unan- swered in part, it is not an unjustifiable exercise of discretion to refuse to suppress the entire deposition. It is only where the oifi- cer neglects to put all the interrogatories as settled, or the witness refuses to answer, that the deposition will be suppressed on the ground of the commission having been imperfectly executed.^ Where the taking of a deposition, having been commenced, was adjourned, after four or five interrogatories were answered, upon the witness refusing to answer further because of vertigo and confusion of mind, and subsequently the witness appeared again with his counsel, and the examination being commenced from the beginning, the witness read his answers from a paper he brought, which had been prepared by himself and counsel, and was in his counsel's handwriting ; it was held that the deposition must be suppressed. It seems that in such a case the answers taken upon the first examination should not have been disregarded by the commissioner, but that the proceedings should have been ' Keane v. Meade, 3 Peter's U. S. R., 10. 2 Brown v. Kimball, 25 Wend., 259. 3 Union Bank of Sandusky v. Terry, 2 Abbott, 269. ^ Valton V. Nat. Loan Fund Life Assurance Co., 22 Barb., 9. 292 PROCEEDINGS AFTER ISSUE. stated by him as they took place, and both examinations should , ^ have been included in the deposition returned.^ If it be intended to prove a paper or document, the original thereof need not be annexed to the interrogatories, but if a copy be annexed, and the original produced on such examination, the witness may be examined as to it by identifying the original with such copy.^ Return of commission, and depositions when evidence. The statute requires the commissioners to indorse their return on the commission, and, after enclosing the depositions under seal, address them, according to the direction in the commission, either to the clerk of the court, or the clerk of the county, and return them either by mail, or by an agent of the party, as the commission directs. In the case of Williams v. Eldridge^ the following important propositions relative to the return of the commission and the regularity of the taking of the depositions were laid down : It is not essential that the return should show that a copy of section 16 was annexed to the commission; the court would intend it to have been done unless the contrary was shown. It will be presumed that the commissioner who took the testi- mony closed and sealed the package himself. That the papers composing the return are connected by wafers only, is not an objection to the deposition being read. It need not appear by the return that the oath was publicly administered to the witness, as that will be presumed to have been regularly done. The commissioner being quoad hoc an officer of the court, his signature will be judicially noticed, though his name be not written at length. And on the same principle the court will presume that the commissioner discharged his duty by doing all those things in the ' Creamer v. Jackson, 4 Abbott, 413. = Com. Bank of Pennsylvania v. Union Bank of New York, 19 Barb., 392; aflSrmed on appeal, 1 Kern., 203. s 1 Hill, 249. TESTIMONY ON COMMISSION. 293 execution of the commission, which he is not bound specifically to certify as done. The same case in which the foregoing propositions are laid down, also holds, that where there is a stipulation between the attorneys that either party may receive the return of the com- missioners, duly sealed, and deliver it to the clerk, which was done, an objection that the direction on the return did not specify the clerk's residence as required by statute will not be sustained. But in a case since the Code^ it is decided that where a commission is returned by an agent {i. e., an express company), the affidavit of the agent, as prescribed by statute, that he received it from the hands of the commissioners, and that it has not been opened or altered since he received it, is indispensable in order to admit the depositions in evidence, unless such affidavit be waived ; and that, too, notwithstanding the stipulation of the parties that the commission might be returned in the precise way it was.^ It has already been noticed that it is no objection to receiving in evidence a deposition, taken on commission, that the return to the commission is indorsed upon the interrogatories which, to- gether with the deposition, are annexed and secured to the com- mission.^ Objection to reading of deposition, and motion to suppress. Most of the cases above cited, of the irregular or defective execution or return of a commission, have been cases in which the objection has been taken to the reading of the deposition on the trial. And this seems to be the practice in the Supreme Court, where, in one case, it is said, that the absence of the return which the statute requires the commissioner to indorse upon the com- mission, though it may be a ground for not allowing the deposition to be read, is no ground for suppressing it on motion.* But in the New York Superior Court the general rule was laid down by the court and announced to the bar to be that, when a commission has been returned, and opened, so that its contents ' Dwinell v. Howland, 1 Abbott, 87; as explained by Creamer v. Jackson, 4 Abbott, 413. 2 Ibid. ^ McCleary v. Edwards, 27 Barb., 239. * Creamer v. Jackson, 4 Abbott, 413. 294 PEOCEEDINGS AFTER ISSUE. might, with reasonable diligence, have been known to the parties before the trial of the cause, a motion for the. suppression or re-execution, on the ground of its irregular or defective execution, must be made at chambers, and would not be entertained by the judge upon the trial. The objection upon the trial would be limited to the competency of the witnesses, or the admissibility of their testimony.^ And no doubt in the Supreme Court, also, a motion to suppress the deposition in all such cases, or at least to set it aside and order the commission to be re-executed, may properly be made in accordance with the practice of the old Supreme Court as laid down in Jackson v. Hobby ,^ that " it is the right of either party to move the court to suppress the depositions for fraud, partiality or irregularity, and this cannot be done at nisi jirius, nor until the depositions are filed." In that case the depositions were not suf- fered to be read in evidence on the trial because they had not been And in a late case in the Court of Appeals^ it it said that, if a witness examined on commission is imposed upon, or any fact misstated, colored or concealed, the court, on motion for that purpose (made before trial), may set aside the deposition and order the commission to be executed anew, or grant other proper relief. And in the same case it is held that an entire deposition will not be suppressed at the trial on the ground that some of the inter- rogatories and parts of the deposition are improper. It is provided by statute* that examinations and depositions taken in pursuance of the statute may be used in evidence on the trial of the cause by either party, and any objection to the com- petency or credibility of a witness so examined, or to the compe- tency or relevancy of any question put to him, or of any answer given by him, may be made in the same manner, and with the like effect, as if such witness were personally examined at such trial. ' Union Bank of Sandusky v. Torrey, 2 Abbott, 271. ' 20 John., 362. 5 Com. Bank of Penn. ■». Union Bank of N. Y., 1 Kern., 205. < 2 R. S. (3d ed,), 492, § 24 (orig. 23). TESTIMONY ON COMMISSION. 295 If the witness come into the state after being examined on commission, and can be had on the trial, he can of course be examined.' Motion to suppress, how made. The motion to suppress a deposition may be made at special term, on the usual notice of eight days, at any time after the depositions are opened or filed. If it be for any imperfection or irregularity apparent on the face of the return, no papers need be served on the adverse party other than a notice of the motion, which should point out the irregularity or imperfection com- plained of, and state that the motion will be made on the com- mission, interrogatories, depositions and return on file. If the motion be made on account of fraud, or mistake of the witness, or for any other cause not appearing on the face of the papers, the facts must be set forth in an affidavit, a copy of which must be served with the notice of motion, and in such case the court will generally order the commission to be re-executed ; or the motion may be made for that purpose directly. If a commis- sion be defectively executed the court has power to order it to be returned to have the defect amended, and it is not necessary to issue a new commission,^ Second commission. The court has the discretionary power, in a proper case, to order a second commission to issue. Thus, where depositions of witnesses residing abroad, taken under a commission, were read on the trial of a cause, and the jury, not being able to agree, were discharged, a second commission was issued to re-examine the same witnesses, it being stated by affidavit that some of the doubts which existed at the trial would probably be removed by such re-examination.^ But a party cannot have a new commission to re-examine a witness, merely on the expectation that he may now swear more definitely than before, where there is no suggestion that the wit- 1 1 Monell Pr. (2d ed.), 607. 2 Keeler v. Vanderpool, 1 Code K., N. S. 289. ' Fisher v. Dale, 17 John., 343. 296 PROCEEDINGS AFTER ISSUE. ness has made a mistake, or that new evidence has been discover- ed ; especially v^hen the only other witness, who is cognizant oj the fact to which the witness is sought to be re-examined, is dead.' Newly discovered evidence, or imposition, or fraud practised upon the witness, or a mistake clearly shown on his part, and the like, will be sufficient causes to authorize the court, in its discre- tion, to issue a new commission. So, no doubt, if, after the depositions have been taken and filed, the pleadings are amended so as to present new issues, or sub- stantially to change the issue, in such manner as to render the depositions taken inapplicable. But where the issues are left sub- stantially the same by an amendment, the deposition previously taken is admissible ; ^ and such amendment is no ground of itself for the issuing of a second commission. Proceeding to U'ial noticiihstanding commission. If a stay of proceedings, have been granted with the commission, which has been issued on the part of the defendant, the plaintiff, after the expiration of a reasonable time, may move for leave to go to trial. The court will, in like manner, if the commission have been sued out by the plaintiff, permit the defendant to move for judgment as in case of nonsuit, and compel the plaintiff to stipulate as in ordinary cases.^ As to what shall be considered a reasonable time, no general rule can be laid down. It must, in all cases, depend upon the remoteness or proximity of the residence of the commissioners and witnesses, and the frequency and facilities of intercourse. The Superior Court of New York refused a vacatur where a com- mission was sent to Liverpool, and four months had elapsed since issuing the same.^ So where one commission, issued on the part of the defendant, had proved ineffectual, and a second commission was issued, after which the plaintiff obtained leave to go to trial, the rule granting such leave was vacated, and further time allowed for the return of the commission, on the defendant shovnng that ■ Raney v. Weed, 1 Barb., 220. 2 Vincent v. Oonkling, 1 B. D. Smith R., 204. 3 1 Monell Pr. (2d ed.), 607, 608. ^ Md. Hesketh v. Mulock, MSS., Oct. term, 1830. EXAMINATION OF PARTY BEFORE TRIAL. 297 the testimony- of the witness to be examined would be almost conclusive on the question, and that the first commission had been sent, without a knowledge of the exact spot where the witness was.i The motion for leave to proceed, notwithstanding the commis- sion, may also be resisted, on the ground that the delay of its return has been occasioned by the opposite party ; but this must be clearly shown ; and an affidavit, stating merely the belief of the defendant's counsel, that the return of the commission was delayed by the acts of the plaintiff, without setting forth any information or facts, on which the belief was founded, was held insufficient to prevent the court from allowing the plaintiff to proceed with the trial.^ SECTION vm. EXAMIKATIOiS' OF A PAETT TO THE ACTION BT AN ADTEESE PAETT BEFOEE TEIAX. Under the former practice in equity, as we have seen in another part of this work, the bill of complaint might be used as the vehicle of an examination of the adverse party, and his discovery on oath compelled by means of an answer.^ If the object was to obtain and use the testimony of an adverse party in some other suit, the plaintiff (or defendant, as the case might be), filed his bill of discovery to obtain such testimony in aid of the prosecution (or defense) of such action, the proceedings in the first suit in the meantime, and until such testimony was obtained by means of the answer to the bill of discovery, being stayed. The Code has abolished the practice of allowing the pleadings to be used as a vehicle of discovery,* and has also, in express terms, abolished actions in aid of the prosecution or defense of another action.^ The Code now makes provision preserving the substance of the old bill of discovery which, when used, always preceded the trial. The remedy, in its substance, is not intended to be taken away. ' 2 Oaines, 47. ^ Bouchereau v. Le Guen, 2 John., 196. » Ante, page 90. * Ibid. « Code, § 389. 298 PROCEEDINGS AFTER ISSUE. « As an independent action in aid of the prosecution or defense of another action, it is repealed, but not as an auxiliary proceeding, summary and informal, in the same action.^ The right to examine an adverse party at the trial, or on com- mission, in the same manner as any other witness, existed before the Code, and was given by the act of December 12th, 1847.^ This statute is substantially incorporated into the Code, which, by section 390, gives to either party to an action the right to compel the other party to be examined as a witness, and for that purpose to compel him, in the same manner, and subject to the same rules of examination as any other witness, to testify, either at the trial, or conditionally, or upon commission. The right to so examine on the trial, is absolute, as much so as the right of either party to examine any third person as a witness.^ To this provision of statute is now added the provision con- tained in section 391 of the Code, allowing the examination to be had before the trial, and is as follows : " The examination, instead of being had at the trial, as pro- vided in the last section, may be had at any time before the trial, at the option of the party claiming it, before a judge of the court, or a county judge, on a previous notice to the party to be exam- ined, and any other adverse party, of at least five days, unless, for good cause shown, the judge order otherwise. But the party to be examined shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance." It has been held, that under this section the examination of an adverse party before trial is equally a matter of right, as is such examination on the trial, and a refusal to compel such examination is an order affecting a substantial right which is appealable.* And it is no good reason for refusing to compel such examination that the defendant prefers to be examined at the trial, and will stipu- late to attend, so that he can then be examined.^ The examination before trial is at the option of the party claiming it, unless, for ' Leeds v. Brown, 5 Abbott, 418 ; Taggardt). Gardner, 2 Sand., 669. ' Laws of 1847, p. 630. ^ Qj-een v. "Wood, 15 How., 338. * Green v. Wood, 15 How., 338 ; 6 Duer, 702 ; 6 Abbott, 277. « Ibid. EXAMINATION OF PARTY BEFORE TRIAL. 299 good cause shown, the judge otherwise order. The burden is reversed. Instead of requiring good cause to be shown for the examination, the law expressly requires good cause to be shown against it.^ The provision, " unless for good cause shown, the judge otherwise order," has been thought applicable only to the five days' notice, and not to the right of the party to compel an examination.^ How adverse parti/ to be brought before the judge. The section under consideration seems to contemplate in the first instance a simple notice to the party to appear before the judge, which must be a notice of not less than five days, unless the judge, for good cause, otherwise order. The only case, therefore, in which an order is necessary is, where the party desiring the examination wishes to abridge the time, and the order in such case merely determines the length of time of the notice. He can- not be compelled to appear and attend under an ordinary sub- pcsna, but a summons must be issued, on special application, for that purpose.^ No process to compel an appearance or punishment for con- tempt can be based upon a refusal to appear on a mere notice.* If, therefore, the party refuses or neglects to appear, an applica- tion may be made to the judge for a summons, which is defined in the statute to be " a requisition under the hand of the judge or officer issuing the same."^ The summons may be applied for, and issued, and served at the same time with the notice; and, indeed, a convenient practice would seem to be in all cases to obtain a summons at the outset, and indorse thereon a notice to the adverse party to appear before the judge pursuant to the requisitions thereof. It should be served by copy, and at the same time showing the original, with the judge's signature ; and witnesses, fees must be paid the same as in subpoenaing any other witness.* 1 Leeds v. Brown, 5 Abbott, 418. = Ibid. Green v. Wood, 15 How., 342. ' Bleecker v. CanoU, 2 Abbott, 82 ; Gauche v. Laroche, 14 How., 451. * Hewlett V. Brown, 1 Bosw., 655. 5 Gauche v. Laroche, 14 How., 452. A form of such a summons, issued by Justice Hoffman, will be found in the case last cited. See also Jarvis v. Clark, 12 Leg. Obs., 129. « Taggard *. Gardner, 2 Sand., 669 ; 2 Code R., 82. 300 PKOCKEDINGS AFTER ISSUE. Examination, at what stage of the action. An examination under section 391 can only be had after issue joined, such an examination being a mere substitute for the exam- ination at the trial. With the single exception that, after issue joined, a party may be called, on this five days' notice, to submit to an examination to be read on the trial, or may be actually called to the stand at the trial, at the option of the adverse party, there is no distinction betvreen the time and manner of examining an adverse party to the suit and any third person as a witness.^ The adverse party may, however, be examined conditionally (pursuant to section 390), upon an order made for that purpose, just when any third person might be so examined under the statute ; and so, also, he may be examined on commission, just when any third person might be so examined. Such proceedings are conducted in all respects pursuant to the practice stated in the foregoing sections relative to examinations de bene esse and on commission. Examination, how taken. No particular mode of examination is pointed out by the Code, except that it is to be taken and filed by the judge in like ma,n- ner as in cases of conditional or de bene esse examinations.^ When so taken the deposition may be read on the trial (in the absense of the adverse party) as a matter of right. And in some cases, it is said, that after such examination, the court will not allow the action to be discontinued without requiring the plaintifi" to stipulate that the defendants might read their examination in evidence upon the trial of any new action that might be brought, they, as well as the plaintiff on whose behalf the examination has been taken, being entitled to use their own depositions on the trial of the action in which they are taken.^ This mode of examination being a substitute for the discovery in Chancery, the rules of a court of equity are in principle applicable to the examination, with the necessary alterations in the method and details.* Accordingly, so far as a married woman 1 Suydam v. Suydam, 11 How., 518. " Code, § 392. ^ Per Oakley, J., Cockle v. Underwood, 3 Duer, 679. * Draper v. Henningsen, 16 How., 284; 1 Bosw., 614. EXAMINATION OF PARTY BEFORE TRIAL. 301 could be called upon to discover upon a properly framed bill of discovery before the Code, she may be called upon to answer now ; as where the complaint makes the case of a charge created by a married woman upon her separate estate, she can be compelled to discover every matter as to her estate, and her responsibility, which could properly be inquired into if she were a feme sole} Testimony of party may be rebutted. The Code provides (section 393) that the examination of the party thus taken may be rebutted by adverse testimony. That is, the party taking the examination may prove by other witnesses, or even by the prior admissions of his adversary, that a fact sworn to by him is different from what he has stated it to be.^ Party, how compelled to attend, and consequence of refusal to attend and testify. Section 392 provides that the party to be examined may be compelled to attend in the same manner as a witness who is to be examined conditionally ; and section 394 that, if a party refuse to attend and testify, he may be punished as for a contempt, and his complaint, answer or reply may be stricken out. The party making the application, therefore, may, on the refusal of the adverse party to attend, adopt one of two courses : 1st, If he deem the actual examination of the adverse party essential, he may procure his attendance in the manner to be presently noticed ; or, 2d, He may proceed against him as for a contempt merely, and also move to have bis pleadings stricken out. In the first case, it is to be observed, that, inasmuch as an ordi- nary subpoena is not the proper mode to bring the party before the judge, but a summons, so, if a compulsory appearance is required, it must be enforced by a warrant, and not by attachment.^ The warrant is that authorized by the Eevised Statutes to be issued by the judge to the sheriff, to apprehend such witness and bring him before such judge to be examined, "in case of his failure to attend."* ' Draper v. Henningsen, 16 How, 284 ; 1 Bosw., 614. 2 Armstrong v. Clark, 2 Code R., 145 ; Parsons v. Suydam, 2 E. D. Smith R., 275. ^ Bleecker v. Oanoll, 2 Abbott, 82 ; Gauche v. Laroche, 14 How., 452. < 2 K. S. (4th ed.), 646, § 59. 302 PEOCEEDINGS AFTER ISSUE. To obtain such warrant the applicant must, on the return day of the summons, make proof of the due service of the summons in the mode prescribed by statute : 1st. Showing to the witness the original summons under the hand of the judge or officer issuing the same. 2d. Delivering to such witness a copy of the summons or a ticket containing its substance ; and, 3d. Paying or tendering to such witness the fees allowed bylaw for traveling to and returning from the place where he is required to attend, and the fee allowed for one day's attendance.^ If the witness (party) attends, or is brought up on a warrant be- fore the judge, and without reasonable cause refuses to be exam- iiied, or to answer any legal and pertinent question, or to suliscribe his deposition after the same has been reduced to writing, the judge shall, by warrant, commit him to the county jail, there to remain until he submits to be examined, &c., or until discharged by law.^ If the proceeding be against the party for contempt, or to have his complaint, answer or reply struck out, or both, the application is made upon affidavits showing the service of the summons, as above, and of the notice, the payment or tender of the legal fees as a witness, and that the party did not attend pursuant to the sum- mons, and accompanied with a notice of the motion of eight days.^ On such a motion, if no good cause be shown to the contrary, the judge may either strike out the pleading of the defaulting party, or grant an order to attach him for the contempt, or both. SECTION^ IX. ABATEMENT AND EEVIVOK, AND SUBSTITUTION OF PAETIES ON MOTION. A suit in equity was abated by the death, marriage, or other disability of a party. Such abatement was merely an interruption to the suit, suspending its progress until new parties were brought before the court.^ • 2 R. S. (4th ed.), 646, § 57. ^ n^i^^ j gO. ^Hewlett V. Brown, 1 Bosw., 655. * 1 Barb. Ch. Pr., 674 ; Hoxie v. Carr, 1 Sum., 173. ABATEMENT AND REVIVOR. 303 WTiat is an abatement. Abatement was either as to the suit, or as to a party. The former happened when, in consequence of some event, there was no longer any person before the court, by or against whom the proceedings could be carried forward ; in which case the suit must be revived"' before any further proceedings could be had. The latter, that is abatement as to a party, did not necessarily require a revivor of the suit ; as where, on the death of a party, the cause of action survived to or against some other of the parties, so that a perfect decree, as to every part of the subject of litigation, could be made between the surviving parties, in which case the suit did not abate as to the survivors ; but, on motion of either party, the court would order it to proceed between the survivors.^ These distinctions seem to be still preserved in practice, though the Code has provided a new mode of procedure in reviving a suit by substitution of parties. It is provided by the Code (section 121), that "no action shall abate by the death, marriage, or other disability of a party, if the cause of action survive or continue ;" the same section further prescribes the mode in which the action shall be continued in such cases by or against the representatives or successors in inte- rest. This section should be considered in connection with certain provisions of the Eevised Statutes relative to the abatement of equity causes, for which, it is said, to be a re-enactment,^ and which seem still in force, independent of, or as auxiliary to, the Code, so far at least as not repugnant to, or inconsistent with, the Code. 3 The follovring are among the provisions of the Revised Statutes relative to the abatement and revival of equity suits : " When the cause of action shall survive, no suit in Chancery shall abate by the death of one or more of the complainants or defendants ; but, upon satisfactory suggestion to the court of such ' 1 Barb. Oh. Pr., 674; Hoxie«. CJarr, 1 Sum., 173 ; Leggettii. Dubois, 2 Paige, 212. ^ Ridgewayy. Bulkley, 7 How., 269. " Keene v. Lafarge, 16 How., 377 ; Hastings v. McKinley, 8 How.j 175 ; Wil- liamson V. Moore, 5 Sand., 647. 304 PROCEEDINGS AFTEE ISSUE. death, the suit shall proceed in favor of or against the surviving parties."^ " When one or more of the complainants or defendants shall die, and the cause of action shall not survive, the suit shall abate only as to the person or persons so dying, and the surviving par- ties may proceed without reviving the suit." ^ " When a complainant shall die, and the cause of action shall not survive, his representatives may, on affidavit of such death, and on motion in open court, be made complainants in the suit, and be permitted, if necessary, to amend the bill.'' " When the representatives shall not cause themselves to be made complainants within eighty days after the death of a deceased complainant, the surviving complainant may proceed to make them defendants in the suit, as in cases where the represen- tatives of a deceased defendant are made parties."* Further provision is made by the statute, that a defendant may proceed to have a suit revived as against the representatives of a deceased sole complainant, or one of several complainants, where the survivors neglect to proceed against the representatives of the deceased complainant as defendants.^ Also, that a surviving defendant, where the cause of action shall not survive, and the complainant neglects to revive the suit, may obtain an order of the court that the suit stand revived against the representatives of a deceased co-defendant.'^ These provisions of the statute, it was held, under the former practice, applied only to those cases where the proceedings could be continued by a simple bill of revivor ; and the representatives alluded to in these provisions are such as become so by operation of law on the death of a party, and not those who become so by devise, grant, or other title, which may be contested in the suit. In the latter class of cases a simple bill of revivor was not suffi- 1 2 R. S., 184 (3d ed., 246), § 107. ^ Ibid, § 108. Section 109 provides that a suit may be revived byorder of the court on petition of complainant against the representatives of a deceased defend- ant, without a bill of revivor ; and the five following sections prescribe the sub- sequent practice thereon, which is no doubt superseded by the present practice under the Code, and a further notice of these sections therefore is unnecessary. ' Ibid, § 115. ^ Ibid, § 117. « Ibid, § 118. « Ibid, § 120. ABATEMENT AND KEVIVOR. 305 cient, but a supplemental bill was necessary to bring the interests of such devisees, trustees, &c., before the court, and the above statutory provisions di^ not apply to such cases. ^ I have remarked, that some> of these statutory provisions seem to be still in force, notvs^ithstanding the provisions of the Code relative to the abatement and revival of suits. Thus, by the former practice, under the statute, on the death of a party defendant, if the cause of action against him does not survive, but some third person becomes vested with his interest, or subject to his liabilities, the complainant may elect to proceed "without reviving the suit against the representatives of the deceased defendant, provided a perfect decree can be made between the survivors, without bringing such representatives before the court ; and in such case the complainant must elect to revive the suit against the legal representatives of the deceased party, or proceed against the surviving defendants within such time as may be deemed reasonable by the court, or the defendants may revive the suit.^ So, in a case under the new practice, where some of several complainants die, and the cause of action does not survive, but continues as to the survivors, the latter cannot be compelled to revive the suit against the representatives of the deceased complainants,^ but the survivors have a right to proceed with their suit. In such case it is the privilege of the defendant to have an order requiring such representatives to show cause why the suit should not stand revived in the names, or that the suit be dismissed so far as their interests are concerned. To obtain such order, a petition under the statute must be presented, the provi- sions of the Code not applying to thfe case.^ And in case of the death of. one of such co-complainants, no order or leave of the court to continue the action is now necessary,^ because no party is to be substituted, and the section of the Code on that subject does not apply ; but a mere suggestion on the record of the death of such co-complainant, is sufficient.^ ' Douglass V. Sherman, 2 Paige, 358. ' Leggett v. Dubois, 2 Paige, 211. ^ Williamson v. Moore, 5 Sand., 647. ^ Ibid. = As was said to be the proper course in Leggett i7. Dubois, 2 Paige, 211, supra « Taylor v. Church, 9 How., 109. 306 PKOCEEDINGS AFTER ISSUE. Under the former practice, also, it was held that the statute authorizing the defendants in the suit, or the survi\'ing defendant, to revive the suit where the complainant, or his representatives, neglect to revive the same, does not extend to the case of an abatement of the suit by the death of all the defendants therein.' The same rule is held applicable in practice in a recent case under the Code ; ^ and it is considered that the former practice in this respect is not modified by the Code, and that a plaintiff cannot be compelled, against his will, to continue an action against the representatives of a deceased sole defendant. But the representatives of a deceased sole plaintiff, it has been held, have not the right to elect whether the action shall stand revived or not. If the cause of action survive, the defendants are entitled, on .their motion, to have the suit continued in the name of the deceased plaintiff's representatives. This, also, in the case referred to,^ was held in analogy to the former practice in Chancery, it being considered that section 121 of the Code, was for the most part a re-enactment of the provisions of the Revised Statutes, in relation to the abatement of suits in equity. Effect of abatement. Where the abatement is total, as where it is caused by the death, &c., of a party, it is a general rule that the cause is com- pletely suspended, and cannot be proceeded in until it has been revived, and the proper parties brought before the court in the manner presently to be noticed; and all orders made pending such abatement (with some special exceptions*) will be considered nugatory, and will be discharged. And where one of several plaintiffs dies pending an action, the cause of which survives, and the defendant enters judgment against all, no order to proceed by, or against, the surviving plaintiffs having been made, the judgment is irregular and will be set aside ; and it cannot be amended and allowed to stand as against the surviving plaintiffs.* If a party be civilly dead — as if he be sentenced to imprison- ment in a state's prison, although only for a term of years — the » Souilliard v. Bias, 9 Paige, 393. = Ridgway v. Bulkley, 7 How., 269. ' Ibid., per Harris, J. ' See exceptions, 1 Barb. Ch. Pr., 677. « Holmes ». Honie, 8 How., '383. ABATEMENT AND EEVIVOE. 307 action is abated.^ But the dissolution of a corporation pending an action, does not create an abatement ; and the action may be continued in the corporate name, without a special application to the court.^ Abatement might be caused by marriage of a female plaintiff pending the suit, and even after decree, and the suit must be revived in favor of, or against the husband.* But if the suit is brought by husband and wife for a claim of the latter, and he dies, the suit does not abate, for she alone has the whole interest. In such case the court will permit the wife, upon an ex j)arte application, to suggest the death of the husband, and will grant an order allowing her to continue the suit in her own name.* And if a female defendant marry, 'pendente lite, the suit is not abated ; and it is necessary only to obtain an order that the suit proceed against her by her new name, in conjunction with her husband, who is also to be named in the subsequent proceedings.* Since the Code which authorizes a married woman to sue alone, where the action concerns her separate property, I do not doubt that the rule above laid down in regard to the abatement of an action by the marriage of a female plaintiff, no longer applies in such cases, but that on such marriage the proper practice would be to suggest, upon ex parte application, the fact of such marriage, and obtain an order allowing her to continue the suit in her new name. Bankruptcy and insolvency, and the transfer of property into the hands of trustees, guardians, &c., do not cause an abatement, but, according to the former practice, merely render the suit defec- tive.^ By section 121 of the Code, in case of any transfer of interest other than that consequent on death, marriage, or other disability of a party, " the action shall be continued in the name of the original party ; or the court may allow the person to whom the ' O'Brien v. Hagan, 1 Duer, 664. = N. Y. Marbled Iron Works v. Smith, 4 Duer, 362. ' Quackenbush v. Leonard, 10 Paige, 131. ■" 1 Barb. Oh. Pr., 676. ° Ibid. Quackenbush v. Leonard, 10 Paige, 131 ; Oampbell v. Brown, 5 Paige, 34 « 1 Lub6 Eq. PL, 270. 308 PKOCEEDINGS AFTER ISSUE. transfer is made to be substituted in the action." It has been held that when such a transfer is made by assignment after suit commenced, a substitution of parties will not be allowed except on motion of the assignee himself, nor then unless special circum- stances are shown to satisfy the court of its propriety or necessity .1 But an assignee, on his own motion, may be so substituted as plaintiff, and takes then the place of the assignor, and is subject to the same right of set-off.^ So, it has been held, the grantee of a defendant in a partition suit, after action commenced, might be substituted in place of the original defendant.^ Where one of two plaintiffs transfers his interest in the suit, and afterwards the other dies, it is optional with the court to allow the assignee to be substituted and the action continued in his name alone ; and this was refused where it appeared that such assignee was administrator, and therefore would not be liable for costs.^ And, generally, in all cases of transfer of interest after suit brought, the substitution is in the discretion of the court, and will not be allowed where it will operate to the prejudice of any party, or unless special circumstances render it proper. or necessary.^ Substitution after trial and appeal. Where a suit has abated by the death of a party since argument, the judgment of the court may be pronounced not- withstanding such abatement.^ And the rule is the same where the suit has abated by the death of a party after the entry of an appeal, and before the argument in the appellate court, if the fact of his death was unknown.'' But the decree in the one case should be entered nunc pro tunc, as of the time of the argument, and in the other as of a day previous to the death of the party, and after the entering of the appeal.' ' Howard v. Taylor, 11 How., 380 ; 5 Duer, 604. " Terry v. Roberts, 15 How., 75. ^Hornfager v. Hornfager, 1 Code R., N. S., 180. * Sheldon v. Phelps, 7 How., 268. 5 Murray v. Genl. Mut. Ins. Co., 2 Duer, 607 ; Ford v. David, 1 Bosw., 571. ^ Campbell v. Messier, 4 John. Ch. R., 342 ; Davies v. Davies, 9 Ves., 461. ■^ Vroom V. Ditmars, 5 Paige, 528 ; Rogers v. Paterson, 4 Paige, 409. « Ibid. Wood V. Keyes, 6 Paige, 478. SUBSTITUTION OF PARTIES. 309 Where a suit abates after an appeal, but before the appellate court has become possessed of the cause, it must be revived in the court below before any further proceedings can be had on the appeal.i This is precisely the doctrine since the Code, as in Mil- ler V. Gunn,^ where, the defendant having died pending an appeal, after verdict and judgment, it was held that, though not necessary to substitute his personal representatives in reference to the pend- ing appeal, yet they may be allowed to be made parties in refer- ence to a further appeal if desired. But the Court of Appeals in Hastings v. McKinley^ held that where the court had become possessed of a. cause, and then an abatement occurred by death, the suit should, on motion of the persona] representatives, stand revived in their names, and that the proceeding would be by 'petition to that court, as under the Chancery practice, and not by motion to the court below under section 121 of the Code. This decision recognized the doctrine of Chancery, that the appellate court may, by petition, order the suit to stand revived in the names of the representatives of the deceased party,* and also that the appellate court ought not, if the death of the party is known, to proceed to the hearing of the cause on appeal until the suit is revived, unless it is heard with the consent of those who have succeeded to the rights of the deceased party.® Revivor and substitution, how made. Under the former practice suits might be revived by petition under the statute, or by bill of revivor, and in cases where there has been a transfer of interest, without abating the suit, so as to give a new interest to the persons to whom such interest has been transferred, and thus new parties become necessary, by supple- mental bill.^ The petition of the statute, as in the case, supra, of reviving a suit, and substituting parties, in the Court of Appeals, may some- times be used where the provisions of the Code do not furnish an ' 1 Barb. Ch. Pr., 678. = 7 How., 159. ^ g How., 175. * Kogers v. Paterson, 4 Paige, 409. s Vroom V. Ditmars, 5 Paige, 528 ; 1 Barb. Ch. Pr., 678. • 2 Barb. Ch. Pr., 64. 310 PROCEEDINGS AFTER ISSUE. adequate remedy. But, as a general thing, both the petition and the bill of revivor have become obsolete. The supplemental complaint is only resorted to after one year's delay in making the motion. The Code provides one general mode of proceeding in all cases by section 121, as follovps: " No action shall abate by the death, marriage, or other disability of a party, or by a transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage, or other disabiUty of a party, the court, on motion, at any time Avithin one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representatives or successor ia interest. In case of any other transfer of interest, the action shall be continued in the name of the original party ; or the court niay aUow the person to whom the transfer is made to be substituted iu the action." ' Froceedings on motion. The suit is revived when necessary to do so, and the new par- ties are substituted on motion, which should usually be on notice, and may be made on affidavit, or other proof; or, if the party prefer, by petition verified, as in proceedings under the statute. Though notice of the motion is usually- given, and in some cases absolutely necessary, yet, where the surviving defendants have no interest in the question, and would have no right to oppose, notice is unnecessary ; as in case of the death of one of several defendants in a partition suit, all that is necessary to put the case in a position to proceed is, for the plaintiff to obtain, within a year, an order that the action be continued against those who have succeeded to the interests of the deceased party .^ It should be observed, however, in regard to this, that the rule of proceeding ex parte to revive and substitute parties without notice, if it can be safely acted upon at all, should be confined to those cases in which the party might have proceeded by petition ^ The section (by amendment of 1857), further provides, that after verdict in an action for a wrong, such action shall not abate by the death of a party, but the case shall proceed in the same manner as in cases where the cause of action now survives by law. This, no doubt, was the law before such amendment. (See Norton V. Wiswall, 14 How., 42.) » Gordon v. Sterling, 13 How., 405. SUBSTITUTION OF PARTIES. 311 under the statute, and not applied to cases where a supplemental bill was necessary ; 1 that is to say, where the "representative" succeeds to the interest of the deceased party by operation of law merely, as an heir, executor, administrator, &c. ; and not where he takes by devise, grant, assignment, or other title which may be contested in the suit. In the latter class of cases notice should always be given. Thus, in case of the plaintiff's transfer of interest pendente lite, the assignee will not be substituted, as plaintiff, on the motion of the plaintiflF to the record, without notice ; the assignee himself must move for the substitution, and on notice to the plaintiif as well as to the defendant.^ And if such substitution should be allowed to be made, without notice to the opposite party, the party so substituted stands in the place of the assignor and sub- ject to the same claims of set-oif.^ A motion to be substituted pendente lite, by the assignee of a plaintiff, since deceased, made on notice to the defendant, was denied in the New York Common Pleas, for want of notice to the personal representatives of the deceased plaintiff.* The motion for substitution is brought on to be heard the same as other motions, and the proceedings thereon, down to entry and service of order, are in all respects similar. The right and title of the party claiming to be substituted may be litigated, by opposing affidavits or other proof. In case of transfer of interest by assignment, &c., pending suit, the substitution, as already ttoticed, is not of course, but is only permitted by the court when it can see special circumstances requiring it to be done, and that such substitution can work no prejudice to any of the parties to the action. Application by motion must be made within one year. Not only must the application to substitute be made on motion, if made within one year, but it cannot be made on motion after that time. The statute, it has been held, is restrictive, and if the ' See ante, pages 304, 305. ' Howard and Brown v. Taylor, 11 How., 380 ; 5 Duer, 604 ; and see McGowen V. Leavenworth, 2 E. D. Smith, 24. ' Terry v. Roberts, 15 How., 65. * Franklin v. Graham, cited 6th ed. Voorhies' Code, 99. 312 PROCEEDINGS AFTER ISSUE. party entitled neglect to apply within the year, his right to the simpler form of remedy by motion is gone, and he is driven to his supplemental bill.^ The proceedings to revive and substitute parties by supplemental bill will be considered in the next section. Order, when appealable. An appeal to the general term may be taken from the order only when it affects a substantial right, or when the denial of such order effectually puts an end to the action.^ But where the granting of the order rests in the discretion of the court, as an order to continue the action in the name of an assignee, in case of a transfer pending the action, the order is not appealable.^ SECTION X. SUPPLEMENTAL PLEADING, AND SUBSTITUTION OE PAETIES ON SUPPLE- MENTAL COMPLAINT. There are two sections of the Code which authorize a supple- mental pleading, namely, the one which has been considered in the foregoing section (section 121), by which an action is to be continued, and parties substituted, on a supplemental complaint ; and the other (section 177), the general provision authorizing a supplemental complaint, answer, or reply, alleging facts material to the case occurring after the former complaint, answer or reply, or of which the party was ignorant when his former pleading was made. This general provision, of course, includes the case of the " supplemental complaint " mentioned in section 121, and it will therefore be proper to notice both provisions. In equity, where, by an event subsequent to the commence- ment of the suit, a new interest in the matter in litigation was claimed by an existing party to the suit, or a new party claimed the interest of an existing party (otherwise than by mere opera- tion of law), a supplemental bill was allowed.^ A supplemental ' Greene v. Bates, 7 How., 296 ; Coon v. Knapp, 13 How., 175 ; Gordon V. Sterling, 13 How., 405. ^ = Norton v. Wiswall, 14 How., 42 ; St. John v. Caoel, 10 How., 253. ^ McGowen v. Leavenworth, 2 E. D. Smith, 24 ; Murray v. Mut. Ins. Co., 2 Duer, 607. * 2 Barb. Ch. Pr., 59; 3 Paige, 164. SUPPLEMENTAL COMPLAINT. 313 bill was proper to set up circumstances material to the original bill which have happened after the filing of the bill ; or, whenever the imperfection in the original bill arose from the omission of some material fact, which existed before the filing of the bill, but the time had passed in which it could be introduced into the bill by amendment. And generally a supplemental bill was not per- mitted to be filed whenever the same end could be obtained by amendment.^ Matters arising since the original bill was filed, and which were material to perfect the complainant's case, might be introduced by supplemental bill, if the record was not in a state to admit of any amendment.^ Matters which arose previous to the filing of the original bill, although discovered by the complainant afterwards, should be introduced by way of amendment, provided the cause was in that stage in which an amendment was allow- able.^ But if the cause had progressed so far that an amendment could not be made, or if material facts had occurred after the commencement of the suit, a supplemental bill might be filed. And so also if it became necessary to bring before the court some party essential to the proceedings who had been omitted to be introduced at the stage of the cause in which an amendment could be made, a supplemental bill might be filed for that purpose.* Nothing could be inserted in an original bill, by way of amend- ment, which arose subsequent to the commencement of the suit, but the same must be stated in a supplemental bill.^ These rules, it is presumed, are still, in the main, applicable to the practice under the Code, in cases where a supplemental com- plaint is allowed. The Code provides as follows : " The plaintiff and defendant respectively may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts mate- rial to the case, occurring after the former complaint, answer or reply, or of which the party was ignorant when his former pleading was made."^ It has been held under the Code, that circumstances happening after the commencement of the action, cannot be introduced into ' Story Bq. PI., §§ 332, 333. <" 2 Barb. Oh. Pr., 60, 61. ' Stafford v. Hewlett, 1 Paige, 200. < Story Eq. PI., § 268; Welf. Eq. PI., 191 ; 2 Barb. Ch. Pr., 60. 5 2 Barb. Ch. Pr., 63 ; Stafford v. Hewlett, 1 Paige, 200. « Am. Code, § 177. V. S. 40 314 PKOCEEDINGS AFTER ISSUE. the complaint by amendment ; sueh matters must be brought before the court by a supplemental complaint, pursuant to section 177.' This is in accordance with the former rule in equity .^ But when a defendant is made a party by an amended, instead of a supplemental complaint, the facts as to him occurring after issuing the original complaint, the complaint is merely irregular, and not a nullity, where no substantial rights or interests of such defend- ant are affected,^ and such irregularity is waived by notice of appearance of the defendant. Under the liberal system of amendments allowed by the Code, it is presumed that almost all other matters which might have been the subject of a supplemental bill may now be introduced by amendment, except only in the case provided by the Code, to be presently noticed, where, after the expiration of a year from the death, marriage, or disability of a party, the action is to be continued by or against his personal representatives. In such case it must be done by supplemental complaint^ and cannot be done by amendment or motion.* In most other cases an amend- ment of the proceedings, by leave of the court, will be the proper course to pursue. The court, before or after judgment, may amend the pleadings, &c., by adding or striking out the name of a party, or correcting a mistake, or inserting oth§r allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. Parties might be brought in by amendment at any time prior to a decree under the Chancery practice.* Matters arising previous to the commencement of the action, and of which the party was ignorant, might be introduced into the complaint by amendment, before issue and the examination of witnesses ; but, it seems, after that time, should be brought before the court by supplemental complaint.^ A supplemental complaint might also ' Hornfager v. Hornfager, 1 0. R., N. S., 180. " Story Eq. PL, § 363 ; and cases above cited. = Beck V. StepUani, 9 How. Pr. R., 193. * Greene v. Bates, 7 How. Pr. R., 296. « 2 Atk., 370. 5 2 Barb. Ch. Pr., 60. SUPPLEMENTAL COMPLAINT. 315 bring before the court a party who was out of the jurisdiction of the court when the original bill was filed, and who had since returned, in cases where it could not be done by amendment.^ Now, by the Code, the pleadings may be amended, even after judgment, by "inserting other allegations material to the case," as well as by " adding or striking out the name of a party." Whether or not, in analogy to the Chancery practice, a supple- mental complaint will be allowed under the Code after judgment, for the purpose of enabling the court to give directions not prayed in the original complaint, but which the result of the proceedings under the judgment has rendered proper, or whether a supple- mental complaint may be allowed in case of a judgment of the court, quere? The provision of the Code is : " In case of death, marriage, or other disability of a party, the court, on motion, at any time within one year thereafter, or afterwards, on a supplemental complaint, may allow the action to be continued by or against his representative, or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party ; or the court may allow the person to whom the transfer is made to be substituted in the action." ' Under the equity practice, as we have seen, if the interest of the defendant become vested in another, the defect was remedied by a supplemental bill; as in the case of aliena- tion by deed or otherwise, or by bankruptcy or insolvency, the defect in the suit might be supplied by supplemental bill, whether the suit had become defective merely, or abated as well as become defective.^ So also in case of other substitution or change of interest, as if a new trustee be appointed in place of a trustee made a party defendant to a suit, such new trustee must be brought before the court by Supplemental bill.^ The same principle has been applied since the Code, as where one co-part- ner, with the consent of the other, made an assignment of a portion of the partnership property for the payment of partner- ship debts, and an original bill was filed for a partnership account, ' 2 Barb. Ch. Pr., 60 ; 2 Denio, 155. « Story Eq. PI, § 342. 3 Am. Code, § 121. ^ KiDg v. Donnelly, 5 Paige, 46. 316 PROCEEDINGS AFTER ISSUE. but before the appearance of the assignee as one of the defendants, he died, and a trustee was appointed by the court in his place, it was held that such trustee was a necessary party, and that the proper way to make him such was by supplemental hill?- If this is to be regarded as a .judicial construction of the foregoing section (which, however, is somewhat doubtful),^ it would seem that the continuance of the action in case of "any other transfer of inte- rest " referred to in the section, is not to be on motion, but by supplemental complaint, no matter whether the application was made before or after the expiration of one year. Such, however, I apprehend, is not the true construction. The continuance of the action and the substitution of parties referred to in case of any transfer of interest after action commenced, if applied for within the year, may be obtained on motion. A supplemental complaint is only necessary if the application be made afterwards. A supplemental complaint should state the original complaint and the proceedings thereon f but it is not necessary to set out at length the allegations contained in the original bill, though it does not follow that for that reason the bill is demurrable.* If it be occasioned by an event subsequent to the original complaint, it should state that event, and the consequent alteration with respect to the parties, and should demand relief against all the parties. The facts stated should be material to the matters in controversy ; if they are not, a demurrer vnll lie to the supple- mental complaint f or, under the Code, perhaps the defect would be reached more properly by motion to strike out, or set aside the supplemental complaint. If the original complaint is wholly defective, and there is no ground for proceeding upon it, it cannot be sustained by filing a supplemental complaint founded upon matters which have subsequently occurred. Yet, if the original complaint was sufficient for one kind of relief, and facts after- wards occur which entitle the plaintifi" to other and more exten- 1 Johnson v. Snyder, 7 How. Pr. R., 395. ° It does not appear from the report in this case whether the original pleadings were under the Code, or under the former equity system. The question is stated to have arisen on " demurrer to supplemental bilW 3 Story Eq. PI., 343. < Johnson v. Snyder, 7 How. Pr. R., 396. = Story Eq. PL, § 43. SUPPLEMENTAL COMPLAINT. 317 sive relief, he may obtain it by setting out the new matter in a supplemental complaint.^ A supplemental complaint is not like an amended complaint, a substitute for the original complaint by which the former com- plaint is superseded ; but it is a further complaint, and assumes that the original complaint is to stand. Hence, where a supple- mental complaint is made after answer, the answer is not, as in the case of an amendment after answer, at an end ; but it remains in full force, and an answer is required only as to the supplemental matter. In such case, it is considered not allowable, in answering the supplemental complaint to answer anew or further the original complaint, at least without special permission; and if such further answer is necessary, the court should be applied to on notice to the adverse party for leave to do so.^ Where a supplemental complaint sets up new facts, it should make all the original defendants parties ; otherwise where it is filed merely to bring in parties.^ A supplemental bill could not, under the former practice, be filed without a previous order of the court giving permission ; * but the order might be granted on an ex parte application.^ So , too, under the Code, the plaintiif is " allowed on motion" only, to put in a supplemental complaint, and an application for leave must first be made to the court.^ The application may, perhaps, be allowed ex parte in those cases where a motion (if made within a year) to substitute parties might have been so made ; but the usual practice is to give notice of the motion. Leave will not be granted where the object of the supplemental complaint can be accomplished by an amendment ; nor to bring before the court a fact known to the plaintiff at the time of commencing the action.'' So, also, in regard to a supplemental answer setting up new matter for the purpose of equitable relief; it can only be put in on leave of the court, which must be granted on notice or order ' Chandler v. Pettit, 1 Paige, 168. See Lampson v. McQueen, 15 How., 345. 2 Dann v. Baker, 12 How., 521. 5 Farmers' Loan and Trust Co. v. Seymour, 9 Paige, 539. < Eager v. Price, 2 Paige, 333. = Ihid. « Johnson v. Williams, 2 Abbott, 229. ' McMahon v. Allen, 12 How., 39. 318 PEOCEEDINGS AFTER ISSUE. to show cause.' But the court will not, as a general rule, grant leave to fill a supplemental answer, to set up a technical defense, which may operate as a forfeiture of a just claim.^ The Code is silent as to the practice to be pursued in case a suit has been suspended over a year after the death, &c., of a party, except that it must be continued on supplemental com- plaint, the mode of procedure on which is not marked out. In Greene v. Bates,^ it was said by Justice Mason, that the former practice in Chancery furnished the mode of proceeding in such cases. This is to be understood, of course, as the practice has been subsequently modified by the Code. Thus, the supplemen- tary complaint is framed according to the rules of pleading, pre- scribed by the Code. So, a defendant may demur to or answer the supplemental complaint, as under the old Chancery practice,'' but the demurrer and answer are governed by precisely the same rules as govern such pleadings to the original complaint. After issue is joined, the original and supplemental suits are noticed for trial and brought to hearing together, and one decision and judgment rendered in both.* If the cause has been brought to trial, or judgment rendered, however, before the event by which the supplemental complaint is rendered necessary, and issue be joined on the supplemental complaint, it must be brought to a hearing alone, or it may be heard with the original cause on further directions.^ In Green v. Bates, supra,'' the former Chancery practice was followed in a case where the plaintiff" having died pending the suit, the defendant moved, after a year had elapsed, to revive the suit by making the plaintiff's administrators parties ; the court held that this could not be done on the defendant's motion, but that, as under the former practice, an order should be granted requiring the administrator to file a supplemental complaint within a specified time, or that the complaint be dismissed.' ' Garner v. Hannah, 6 Daer, 263. ^ Hoyt v. Sheldon, 6 Duer, 661. 3 7 How., 296. * 2 Barb. Oh. Pr., 74, 76. 5 2 Barb. Oh. Pr., 79. « Ibid. ' 7 How., 296. ® Ibid, and see cases therein cited. MOTION TO DISMISS FOR WANT OF PROSECUTION. 319 CHAPTER IX. FURTHER PROCEEDINGS BEFORE TRIAL. Seetion I, Motion to dismiss complaint for want of prosecution. IL Motion to refer cause. III. NOTICEING CAUSE FOR TRIAL AND PUTTING ON CALENDAR. IV. Other incidental proceedings prbparatort to trial. SECTION" I. MOTION TO DISMISS COMPLAINT FOE WANT OF PEOSECUTION. It is provided by the 4th subdivision of section 274 of the Code, that the court may dismiss the complaint with costs in favor of one or more defendants in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served. This is in effect continuing the practice of the Court of Chan- cery in cases where there are more defendants than one, it having been provided by the rules of that court- that where the cause stood for hearing on bill and answer against part of the defendants, if the complainant did not use due diligence in proceeding against the other defendants, any of those who had perfected their answer might apply to dismiss the bill for want of prosecution, and, on such application, further time should not be allowed to the com- , plainant, of course, without excuse shown for the delay. The rule did not apply to a case where there was but one defendant, as in such case, under the Chancery rules (and so also under the Code),^ the defendant, after answer, might speed the cause, if he wished, by noticing it for hearing himself. Accord- ingly it was held that a motion to dismiss could be made only where there were other defendants against whom the cause was not in readiness, and could not be made where the defendant him- self was in a situation to notice the cause for hearing.^ 1 Code, § 256. * Whitney v. Mayor, &o., of New York, 1 Paige, 548 ; Vermilyea v. Odell, 4 Paige, 121 ; Lee v. Brush, 3 Code R., 165. 320 FURTHER PROCEEDINGS BEFORE TRIAL. Yet by the present practice, under the 27th rule of the court, a sole defendant may, in case the plaintiff neglects to proceed with the cause and bring it to trial, according to the practice of the court, move to dismiss the complaint with costs. For though the Code (section 256) permits a defendant, after issue joined, to notice the cause for trial, it does not compel him to do so, and the plaintiff is bound to proceed therein.^ But where the defendant has himself noticed the cause he can- not charge delay or default upon his opponent for not bringing it to trial,^ especially where he omits an opportunity to move it at the circuit.* And the motion will not, it is said, be allowed merely on the ground that the plaintiff has failed to notice it for trial at the first circuit for which such notice might have been given, but the defendant must also show by his affidavit that younger issues have been reached on the calendar, and tried.^ The defendant, too, should not sleep upon his right to dismiss the complaint, but should make his motion at the earliest special term or circuit after that at which it could be tried.^ The rule (No. 27) further provides that if (on the motion to dis- miss in such cases) it is made to appear that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court shall permit the plaintiff, on payment of costs, to bring the said action to trial at the next court where the same is triable. And the rule immediately preceding (No. 26), that whenever ' Rule 27, authorizing a motion to dismiss where the plaintiff fails to bring the cause to trial, is the same as rule 21 of the revision of 1852. This rule was left out of the revision of 1854, but is reinstated in the present rules (1858). The case of Schroeder v. Kohlenback (6 Abbott, 66), holding that a defendant after issue could not move to dismiss, but must himself notice the cause for trial, was decided before the present rule was reinstated, which no doubt restores the former practice that the defendant is not bound to notice the cause, but may move to dismiss. (Roy v. Thompson, 8 How., 253.) The same rule of practice with that in Schroeder v. Kohlenback is reiterated by Harris, J., in Moeller v. Baily (14 How., 359), decided before the present new rule. = Thompson v. Krider, 8 How., 248 ; Moeller v. Bailey, 14 How., 359. ^ McCarthy v. Hancock, 6 How., 28. ' Roy V. Thompson, 8 How., 253. ^ Hawley v. Seymour, 8 How., 96 ; Whipple v. Williams, 4 How., 28. MOTION TO DISMISS FOR WANT OF PROSECUTION. 321 the plaintiff shall have neglected to bring his cause to trial according to the practice of the court, and the same shall not have been noticed by the defendant, the plaintiff may, if he has not before stipulated, tender a stipulation, and offer to pay the costs to which the defendant is entitled up to that time. Such a stipulation to try at the tiext circuit (or in an equity case special term) has been construed to mean the next circuit for which there is time to give a regular notice.^ But under the rule allowing a defendant his motion to dismiss, he can have nothing but a simple dismissal of the complaint, and, if he require other relief against the plaintiff, his only remedy is to notice and bring on the cause for trial himself.^ In regard to the section of the Code (section 274), above cited, it is to be considered independent of the rule, providing for cases to which the rule does not apply, namely, cases in which there is no other mode to compel the plaintiff to proceed. Thus, where the plaintiff dies, the cause of action surviving, and the repre- sentative in interest unreasonably neglects to be made a party, this motion may be made ; and it is no answer for the plaintiff's attorney to say that he hopes to find a representative.^ So where one of several defendants dies, his interest vesting in his heirs or devisees, and the plaintiff unreasonably neglects to take the proper steps to bring them in, the surviving defendant may make this motion. And the court in such a case has ordered that the complaint be dismissed as to the moving defendant, with costs, unless the plaintiff, within sixty days from the service of the order, obtained leave to file, and filed, a supplemental complaint, and issued a summons thereon against the persons representing the interests of the deceased defendants.* By the terms of the section under consideration, the motion may be made by the defendant served, in case of unreasonable neglect to serve the summons on other defendants. But a plain- tiff may serve a summons containing the names of several parties ' Jackson v. Phoenix Bank, 5 Wend., 101. 2 Roy V. Thompson, 8 How., 283 ; Wilson v. Wheeler, 6 How., 49. 3 Crawford v. Whitehead, 1 Code R., N. S., 345. < Chapman v. Foster, 15 How., 241. V. S. 41 322 FURTHER PROCEEDINGS BEFORE TRIAL. defendants on one of them only, and afterwards serve on him a complaint containing only the name of such defendant served, taking no proceedings against the defendants not served. In such case the motion to dismiss will not be granted.^ If, in such case, the action be improperly served, the defendant so served must pursue another remedy. Nor can a defendant who has not been served with the summons, voluntarily appear and make a motion to dismiss the complaint,^ unless, perhaps, in a case where the defendant not served, has some right to protect, and the plaintiff neglects " to proceed in the cause against the defendant or defendants served."^ So, should the plaintiff, after serving the summons upon all the defendants, unreasonably neglect to proceed against one or more of them by serving the complaint, they neglecting to take advantage of the delay, the parties served with the complaint, may, under this section, move to dismiss the complaint ; for the issues cannot be moved for trial until joined as to all, and the defendants served have no other remedy. The practice on moving to dismiss on the ground of not serving a copy complaint within the time required after demand, has been already noticed.^ The dismissal, however, in such cases, depends rather on section 130 of the Code, and the motion may be made as a motion to dismiss the summons or action, independent of the statute under consideration. It has been considered, however, that such failure to serve a complaint within the statutory time, is an unreasonable neglect to proceed within the meaning of this section, and a motion to dismiss the complaint may be made, though no complaint has been actually served.^ Although a bill (complaint) which has been dismissed for want of prosecution, is so effectually out of court that no motion or proceeding can be had in the cause, except for the purpose of ' Travis v. Tobias, 7 How., 90 ; Robinson v. Frost, 14 Barb., 536. ^ Tracy v. Reynolds, 7 How., 327. 3 Code, § 247, sub. 4; and see Higgins v. Rockwell, 2 Duer, 650; "Waffle c Vanderbeyden, 8 Paige, 45 ; Georgia Lumber Co. v. Bissell, 9 Paige, 226. * Ante, pages 147, 148. ' Calvin V Bragden, 5 How., 124; Baker v. Curtis, 7 How., 479. MOTION TO REFER. 323 carrying the order of dismissal into effect, it seems the court will, under certain circumstances, entertain a motion to restore it. It is not, however, the ordinary course of the court to restore a bill (complaint) which has once been dismissed. It must be shown that substantial justice requires that it should be done ; and then, upon the particular circumstances, the court will make the order.' The method of restoring a cause, after a dismissal for want of prosecution, appears to be by obtaining an order to discharge the order dismissing the bill, which can be procured only upon the terms of the complainant paying the costs of obtaining tha* order and of the application of the order to discharge it.^ Where a complaint, or summons, is dismissed, for want of prose- cution, it operates as a 'discontinuance, and ■ does not prevent the plaintiff from bringing a new suit.^ SECTION" n. MOTIOIT TO EEFEE CATJSE TO A EEFEKEB TO HEAR AKD DETEEMINE, Issues in all actions of an equitable nature (except actions for divorce from the marriage contract for adultery), are to be tried by the court without a jury, at special term, unless the issue shall be ordered by the court to be tried by a jury, or shall be referred, as provided by sections 270, 271 of the Code.'* Section 270 provides that all or any of the issues in the action, whether of fact or of law, or both, may be referred upon the writ- ten consent of the parties. Section 271, by subdivision 1, provides that a compulsory refer- ence (except when the investigation will require the decision of difficult questions at law), may be ordered where the trial of an issue of fact shall require the examination of a long account on either side ; in which case, the referees may be directed to hear and decide the whole issue, or to report upon any specific ques- tion of fact involved therein. » 1 Barb. Ch. Pr., 245 ; Jackson v. Purnell, 16 Ves., 204, « Ibid. 3 McBrown v. Somerville, 2 Stew., 515. * Code, § 254. 324 FURTHER PROCEEDINGS BEFORE TRIAL. This provision of the Code, therefore, applies equally to all actions, whether in their nature equitable or legal. But the trial of an equitable issue of fact cannot be referred without consent, unless the trial of such issue require the examination of a long account, but must be tried by the court.^ And where there is an issue in the action, upon the decision of which the taking and examination of a long account depends, the court will first try the issue before sending it to a referee to examine the account. Thus, where there is a question, in the issues joined, of part- nership or no partnership, upon the decision of which (if a part- nership was found to exist), the examination of a long account would be necessary, a reference will not be ordered until that issue be first tried by the court.^ But, if it be made to appear that such an issue of partnership or no partnership cannot be tried without first going into the accounts to ascertain whether a partnership existed — as where a plaintiff being entitled to be a partner on his bringing into the business a certain amount of capital, and he insists that his books and accounts show it — there it is held proper for the court to order the whole issue to be referred to a referee to hear and determine.^ This, perhaps, sufficiently indicates what the practice is in such cases, namely, that a compulsory reference cannot be ordered in equity cases where there is some preliminary issue of fact to be disposed of, which is to determine the right to an accounting, even though an accounting be the object of the suit and be necessary to be had before a final judgment, unless the neces- sary proof to establish, or disprove, such issue itself embrace some matter of account of many items, in which case, no doubt, all the issues, as well the issue of fact joined, as the accounting thereon, should be referred to hear and determine. ' Draper v. Day, 11 How., 439 ; Cheesbrough v. House, 5 Duer, 125 ; Wilson V. Forsyth, 16 How., 448 ; Hill v. McCarthy, 3 Code R., 50. The contrary doc- trine which seems to be countenanced by the case of McMahon v. Allen, 10 How., 384, is clearly incorrect, and that case may be regarded as overruled ; and see 27 Barb., 336. '^ Graham v. Golding, 7 How., 266 ; Cameron v. Freeman and others, 18 How., 310. 5 Smith V. Dodd, 3 E. D. Smith, 348 ; Mills v. Thursby, 11 How., 113. See Palmer v. Palmer, 13 How., 363 ; Jackson v. Deforest, 14 How., 81. MOTION TO REFER. 325 The courts, however, have not been entirely uniform in their decisions upon this subject, and, perhaps, it may be difficult to draw a dividing line between the cases where an accounting is actually consequent upon the decision of a preliminary issue, and where such accounting is really a part of the issue itself. Thus in a case not reported,^ where the plaintiifs brought an action to charge the defendant as guardian, and demanding an accounting of the trust moneys and property in his hands, and the defendant, among other matters in his answer, denied that he was or had ever acted as guardian ; on an affidavit showing that he was and had acted as guardian, and as such had received, or was properly chargeable with, moneys of his wards, who were the plaintiffs, the court referred the whole issue to a referee to hear and determine. This case is somewhat at variance with the foregoing cases referred to, and may, perhaps, have been decided on the ground that the court did not regard the issue of guardian or no guardian as properly raised in the case. And the rule is no doubt correctly laid down that, where the main issue to be established does not call for evidence of accounts between the parties, it must be first tried by the court, and if upon its decision it appear that an accounting is necessary between the parties, before judgment, the court will make an interlocutory order directing such reference, and suspend final judgment until the coming in of the report, the practice in which cases will be considered hereafter. Thus, in a recent case, where the copartnership creditors of an insolvent copartnership sought to make certain real estate copart- nership assets, and demanded an accounting against the assignee, and it was set up in the answer that such real estate was the individual property of one of the copartners, and not of the copartnership, the court proceeded to try and determine that issue, and in its decision and order directed a reference to take the accounting, the final judgment being meanwhile suspended.^ A reference can only be compelled where the court can see that the trial must necessarily and directly involve the examination of ■ Ooman and others v. Mallory, afBrmed by general term of third district, Sept., 1859. ^ Kendall v. Rider and others, Albany special term, 1858. 326 FUETHEE PEOCEEDINGS BEFOEE TEIAL. a long account.! It is not sufficient that in certain exigencies the examination of such an account will be requisite.^ And, to authorize a reference, there must be an account between the parties in the ordinary acceptation of the term ; for, though the class of actions is extended in which an accounting by the Code may be allowed (in equitable as well as legal actions), yet the fact which warrants the exercise of the power is the same now as when the Kevised Statutes alone gave the authority to refer.^ Where the defendant's answer admits, or the pleadings show, that the plaintiff is entitled to an accounting in an equity action, though there are other questions of fact material to the taking of the account, the court, where there are no difficult questions of law, will refer the whole cause to a referee, first to find the facts upon the several issues presented by the pleadings, and upon such finding to take and state the account between the parties.* And it has been held, in an action between partners, that the court will, on its own motion, direct a reference to hear and decide all the issues in an action where it can see that such issues will require the examination of a long account.* And even where the answer alleges that the partnership accounts were adjusted and settled on a certain day named therein, it was held in the New York Common Pleas that such issue did not prevent a reference of the whole matter, because, conceding its truth, the plaintiff was still entitled to an accounting from the time of settlement.^ Order for reference, when and how applied for and allowed. The order to refer the issues to a referee to hear and determine, unless entered on stipulation and consent, can only be granted at special term, and (if not made on the regular calling of the cause for trial), on motion, upon regular notice to the opposite ' Cameron v. Freeman, 18 How., 310. ° Ibid. Keeler v. The Poughkeepsie and Salt Point Plankroad Co., 10 How., 11. 3 McCuUough V. Brodie, 13 How., 346 ; Dewey v. Field, 13 How., 437. And Bee 6 Hill, 373; 6 Wend., 503; 19 Wend., 31; 25 Wend., 687; 2 How., 79, Idem., 171 ; 3 Code R., 139. * Van Zandt v. Cobb, 10 How., 348. ^ Jackson v. De Forest, 14 How., 82. • Kennedy v. Shilton, 9 Abbott, 157, n. MOTION TO REFER. 327 attorney ; the motion for a reference being non-enumerated, and such motions being required by the rule to be made at special term.i The motion may be made at any time, after issue joined in the action, and may be made at any intervening special term when held separately from a circuit in the district, or in a county adjoining the county where the place of trial is laid. By the 40th rule the motion may also be made at a circuit in the county where the place of trial is laid, the cause being first placed upon the calendar. That rule, however, prohibits the making of such motions at the circuits held in any other county. If, by the pleadings themselves, or the admissions in the answer, it appears that the plaintiff is entitled to an accounting, the mo- tion may be made upon the pleadings alone, and nothing but a simple notice of such motion, stating the name of some person proposed as referee, is necessary to be served upon the opposite attorney. If, however, it does not appear from the issues them- selves that their trial will involve the examination of an account, the motion must be made upon affidavits in connection with the pleadings. The pleadings themselves will sufficiently show the place of trial, that an issue of fact has been joined, and the nature of such issue ; and nothing is really essential in the moving affida- vits except that they contain enough to show the court that the trial mmt necessarily involve the examination of a long account ; not (as has been before observed), that in certain exigencies such an examination may become necessary.^ The presumption is, that the trial of the issue will not involve the decision of difficult questions of law, and therefore the affidavit need not state this unless the moving party prefer to do so.^ The affidavit must be made by the party himself, and not by his agent or attorney, unless a sufficient excuse is made for the omission. Such was the old rule, but it is believed to be now modified in practiee, and an agent or attorney who shows himself acquainted with the facts may, no doubt, properly make such ' Conway v. Hitchin, 9 Barb., 386. Kule 40. 2 Keeler v. The Poughkeepsie and Salt Point Plankroad Co., 10 How., 11. 3 Barber v. Cromwell, 10 How., 351. 328 FURTHER PROCEEDINGS BEFORE TRIAL. affidavit. The notice of motion, according to the former practice in law cases, usually named three persons as proposed referees ; and this practice is still generally followed, .though good practi- tioners have sometimes disregarded it, and mentioned but a single person as referee in their notice of motion. Copies of the affida- vits and notice of motion should be served on the opposite attor- ney the usual time before the motion is to be made. The motion is made, order allowed, entered and served, as in other cases of special motions. The motion may also be made by either party at the time the cause is called in its order on the calendar, and without the prior service of copies affidavits, in which case, if the opposite party desire to oppose the reference by showing that the trial will involve the decision of difficult questions of law, or if he wish to controvert the affidavits of the moving party by showing that such trial will not involve the examination of a long account, the court will give him a sufficient opportunity to draw his affidavits for that purpose. Or, as has been remarked before,' the court will sometimes, of its own motion, arrest the trial and order a reference to hear and determine the issues, where, either on the pleadings, or on the evidence as far as adduced, it is satisfied that the trial of such issues must necessarily require the examination of a long account.^ SECTION in. NOTICING CAUSE FOE TEIAL AND PUTTING ON CALENDAR. The cause being in readiness for trial, it is incumbent on the plaintiff to notice it for trial, and have it properly entered on the calendar. The consequences of his failure to do so have been alluded to in the first section of this chapter. The defendant also may notice and put the cause on the calen- dar, and this whether the plaintiff have noticed the cause for trial or not. And the defendant must notice it if he wish to compel the plaintiflTto go to trial, or in default thereof obtain a dismissal of the complaint under section 258. 1 Ante, page 326. 2 Jackson v. Deforest, 14 How., 82. NOTICE OF TEIAL. 329 The time of notice of trial, as now fixed by the Code (section 256), 1 is, when personal service is made, fourteen days, before the court ; when the service is by mail, sixteen days, including the day of service.^ It is incumbent upon a plaintiff to serve a notice of trial upon every defendant who has separately appeared in the cause, either by attorney or in person, otherwise he cannot bring on the cause as against those with respect to whom he has omitted to do so. So, on the other hand, where there are several defendants, answer- ing separately, they must, each and all of them, give notice of trial to the plaintiff before the trial can be brought on as against him ; for the plaintiff cannot be defaulted on the notice of one defendant where the cause is not in readiness for trial as to other defendants.^ Under ordinary circumstances it is not necessary for a defendant to serve his co-defendants with a notice of trial, yet it has been recommended as prudent practice to do so where a defendant seeks affirmative relief as against his co-defendants.* And in cases where a defendant has commenced a cross action against the plaintiff and co-defendants, it is necessary for him, if he desire to bring on both actions together, to notice the cause for trial as against each of the defendants in the cross action who separately appear. Where a party merely appears in the action, without taking any further proceeding, he is entitled to notice of every step therein, and, therefore, if he appears with other defendants who answer, notice of trial must be served upon him, though he have put in no answer.^ In the first judicial district there need be but one notice and one note of issue from either party, and the cause then remains on the calendar until disposed of.^ The notice of trial may be given immediately on issue being joined by service of an answer, or of a reply to a counterclaim. This notice, however, is always subject to be defeated if interven- 1 Amendment of 1859. « Ibid, § 412, Code. 3 "Ward V. Dewey, 12 How., 193. * 1 Whit. Pr., 596. s Tracy v. N. Y. Steam Faucet Co., 1 E. D. Smith, 346. « Code, § 256, as amended in 1860. V. S. 42 330 FUETHEE PEOCEEDINGS BEFOEE TEIAL. ing the time of service and the court the opposite party amends his last pleading, which of course raises a new issue that requires to be noticed anew. The plaintiff, however, it seems, is not bound to go on immediately on joining issue, but may wait until the time to amend has expired, and even a reasonable time to prepare for trial after that, before he will be in default for not bringing on his cause under rule 27. But when the defendant has given notice of trial he waives his right to amend, and the plaintiff, after a reasonable time to prepare, is bound to go on. The notice of trial is similar in all respects to that heretofore and still in use in actions at law, except that the intention to take an inquest should not be inserted, as an inquest is not appro- priate to an action of an equitable nature. The notice should be served as other notices and papers in the suit are required to be served. An admission of service by an attorney of the court is sufiBcient proof of service without proof of the signature of the attorney. If the party making such service can get no such admission, he should be prepared with proof of service by affidavit, in order to enable him to bring on the cause, or move for a dismissal of the complaint, as the case may be. Putting cause on calendar. The party giving the notice must put the cause on the calendar, and this is done by furnishing the clerk, at least eight days before the court, with a note of the issue, containing the title of the action, the names of the attorneys, and the time when the last pleading was served ; the clerk thereupon enters the cause on the calendar according to the date of the issue.^ The defendant, as well as the plaintiff, should file a note of issue, if he design to compel the plaintiff either to proceed with the cause, or be driven out of court ; for there can be no dismissal of the complaint until the cause is on the calendar, and it has been held even that it cannot be dismissed until put regularly on the calendar,^ that is, placed there by the party giving the notice, on the regular note of issue filed eight days before the court. In the New York Superior Court, the New York common Pleas, and the first and second judicial district, special rules have ' Code, § 256. » Browning v. Paige, 7 How., 487. PUTTING CAUSE ON CALENDAR. 331 been adopted in regard to filing notes of issue, the calendars of those courts, and the mode of regulating the same. These special or additional rules may readily be consulted,^ and the peculiarity in the practice which they introduce need not be further alluded to. At what court action to he noticed and note of issue filed. Issues of fact in equity cases may be noticed and placed upon the calendar of either a circuit court or special term in the county where the action is triable, unless an issue has been ordered to be tried by a jury, in which case the cause must of course be placed on the circuit calendar. The special term at which an equity cause can be noticed, however, is a special term appointed for the trial of equity actions and issues of law, and not a special term for the hearing of motions only. The latter kind of special terms (unless in the first judicial district) have no calendars. Calendar how disposed of. The clerk of the court furnishes a printed calendar for the use of the court ; and in some or all the districts also for the use of counsel. And motions to correct the calendar are usually the first motions entertained at the opening of the court. If the note of issue have not been served in time, the cause is usually put at the foot of the calendar, but is not considered as regularly upon it for any purpose. The parties, by consent, however, may enter a cause on the calendar, at its foot, after the printing of the calen- dar, and indeed at any time during term. The whole subject of the calendar and the disposition of causes on it is entirely under the control of the court. The statute scarcely undertakes to regulate, but leaves everything discre- tionary with the court. Thus, by section 257 of the Code, issues of fact are to be tried before issues of law (demurrers) " unless, for the convenience of parties or the dispatch of business, the court shall otherwise direct ;" and, by section 255, issues of law are to have preference on the calendar, " unless the court otherwise direct." ^ ■ See Appendix to Voorhies' Code (6th ed). And by the amendments of 1860, to section 256 of the Code, in the first judicial district, there need be but one note of issue filed, and the cause then remains on the calendar until disposed of. ^ The inconsistency between sections 255 and 257 is occasioned by one of those frequent amendments to which the Code has been subject. The provision of section 255, giving an issue of law preference, was one of the amendments of 1852. 332 FURTHER PROCEEDINGS BEFORE TRIAL. The court therefore, it seems (except in some few cases, as in actions by the attorney-general, actions against corporations on notes for the payment of money on demand, and the like, where an absolute preference is given by statute), has full control of the calendar, and may give preference to either kind of issue, or neither, or hear each case indiscriminately as it is reached in its order ; and the practice, in this respect, varies in the different dis- tricts, and even in some cases among the judges of the same district. The court may also take a case out of its order, and give it preference over others, where it is not entitled to such preference. But this is rarely done, and never, even where the parties consent, vnthout making out a strong case to show the necessity or pro- priety of such a course. SECTION IV. OTHBE nsrCIDENTAL PROCEEDINGS BEFORE TRIAl. Affidavit of merits not necessary. It was observed in the preceding section that the notice of trial should not express an intention of taking an inquest, as that was a proceeding solely applicable to actions at common law. No affidavit of merits," therefore, need be served or filed in the class of actions which we have been considering ; for the rule (No. 29), allows inquests, out of their order on the calendar, to be taken only in cases " in which they were heretofore allowed." Copies papers for the court. The plaintiff must prepare for the court copies of the summons and pleadings, and the offer of the defendant, if any have been made ; and if the defendant bring on the trial, and the plaintiiF neglect to furnish copies of such papers, the defendant may fur- nish them himself.^ It is quite customary in practice, instead of preparing formal copies of the papers, to furnish the court vnth the originals, which are returned to the party furnishing them after the trial. > Code, § 259. INCIDENTAL PROCEEDINGS. 333 The former rule of the Court of Chancery required the com- plainant to furnish the court with a case containing an abbrevia- tion of the pleadings, not exceeding one-sixth of the number of folios. The case also stated the time of filing the bill and other pleadings, the names of the original parties, the change of parties, if any had taken place, and a very brief history of the proceedings in the cause. There is now no rule of court requiring this to be done in any case, yet the obvious convenience of the practice, in cases of great intricacy, cannot fail to recommend itself at once to the practitioner. Motion to suppress depositions. If the motion to suppress depositions, taken conditionally, or on commission, have not been previously made, it may be now noticed, on the usual notice of eight days, for the same circuit, or special term, at which the trial is noticed for hearing ; and may be brought on either at the opening of the court, or on moving the cause for trial. The subject has been already considered in a previous section.^ Subpena. The cause being in readiness for trial, each party is to subpena the witnesses whom he desires to have sworn in the cause. If either party desires the adverse party to attend as a witness, such adverse party should also be regularly subpenaed in the same way as other witnesses. The subpena is similar, in all respects, to the old subpena in common law actions, except that it is tested in the name of one of the justices of the court the day on which it issues, and may, by the judiciary act of 1847, issue without seal, being simply subscribed, vnth the name of the clerk of the county where the place of trial is (usually written by the attorney), and also signed by the attorney of the party issuing it. The names of all the witnesses intended to be called by the party, may, if he thinks fit, be inserted in one subpena ; and this is usually done, if the witnesses all reside in the same county. The attorney then makes out subpena tickets, that is, a ticket or notice directed to each witness mentioned in the subpena, and ' Ante, page 290. 334 FURTHER PROCEEDINGS BEFORE TRIAL. containing the substance of the subpena, namely, the command to appear, the place where and time when, the name of the party on whose behalf the witness is subpenaed, &c. It also states the penalty of disobedience, as stated in the original subpena. The subpena is served by delivering to the witness a ticket directed to him, and at the same time showing him the original, and paying or tendering to him his lawful fees for travel and one day's attendance. The fees of witnesses are, by statute, fifty cents for each day's attendance, and four cents a mile going, and four cents returning, for travel, from the witness' residence to the place of trial when such residence is more than three miles from such place of trial. If he reside within three miles of the place of attendance, he is not allowed travel fees. A witness cannot, of course, be legally subpenaed out of the state, or com- pelled to attend ; but if he do attend, he is entitled to travel fees from the point where he enters this state by the usual traveled route from his residence to the place of trial. A party subpenaed as a witness by an opposite party, or a co-plaintiif or defendant, is as much entitled to witness' fees, as a condition to creating his duty to attend and be sworn, as any third person.' If it be intended, therefore, to compel the attend- ance of such party, he should not only be subpenaed, but also paid or tendered, his fees for travel and one day's attendance. Suhpena duces tecum. This form of subpena is used for compelling the production of books and papers or documents in the hands of a witness. It may also be used to compel an adverse party to attend as a wit- ness on the trial and produce papers and books in his possession, the same as any other witness ; and this, when so subpenaed, he is bound to do, or render himself liable to be punished for a con- tempt of court.^ The subpena duces tecum is similar in form to the ordinary sub- pena, with the exception that it further commands the witness " Hewlett V. Brown, 7 Abbott, 74 ; 1 Bosw., 655 ; Walker v. Russell, 16 How., 91. ^ Bonesteel v. Lynde, 8 How., 226, overruling Trotter v. Lansing, 7 How., 261 ; see also Stalker v. Gaunt, 12 Leg. Obs., 124; Garighe v. Losohe, 6 Abbott, 284, note. INCIDENTAL PROCEEDINGS. 335 to produce the books or documents required, which must be specified so clearly as to avoid the possibility of any mistake. And if the witness (and so also, no doubt, the party when subpenaed as a witness), neglect to produce the documents required, he is liable for all damages sustained by that neglect, nor will his mere appearance to give evidence protect him. And in an action for that purpose, the plaintiff will not be required to prove that he had a good cause of action. The mere fact that he was nonsuited, for want of the production of the papers, will be sufficient.^ Notice to 'produce papers without suhpena. Should the party not wish to put his adversary on the stand as a witness, and should he have secondary proof of the contents of papers and documents in his hands, instead of subpenaing such adverse party as a witness to produce the documents, he may merely give him notice to do so, specifying clearly and distinctly the documents required, and if they are not produced, pursuant to the notice on the trial, the party so calling for them, on due proof of service of such notice, may introduce his secondary proof of the contents of such papers. Service ofsubpena and proof of same. The subpena may be served by any person, whether an officer or not. And the witness may be subpenaed to attend on the first or any subsequent day of the court. If served by the sheriff, his certificate of the service indorsed on the subpena will be sufficient proof. If served by any other person, an affidavit of the service will be required, stating the time, place and mode of ser- vice, and the payment or tendering of the fees for travel and one day's attendance. It is frequently the practice to indorse on the original subpena a general admission by the witnesses, severally, of the due service and payment of their legal fees for travel and attendance, and this whether the fees are actually paid or not, the witnesses, or such of them as are willing to do^o, signing their names to such admission. But the mere signature of the witness, it seems, is not of itself a sufficient proof of the service ' Lans V. Oole, 12 Barb., 80 ; Bonesteel v. Lynde, 8 Hovr., 226. 336 FUETHEK PROCEEDINGS BEFORE TRIAL. on which to move for an attachment ; an affidavit to the genuine- ness of the signature being required. Attachment for non-attendance. If the witness fail to attend on the day for which he is subpe- naed, the attorney for the party requiring his attendance, on due proof of the service of the subpena, may move for an attachment to compel the witness' attendance forthwith. An order for the attachment is thereupon entered by the clerk, and the attachment made out by the attorney, under the seal of the court, and put in the hands of the sheriff for service. The witness is then brought into court, and if no sufficient excuse be rendered, is punished for contempt. If a party be in prison, his testimony may be obtained by means of a habeas corpus ad testificandum, the proceedings for- obtaining which are pointed out by statute.^ The subpena must be legally served ; and if force be used, the person using it will be responsible, and will not be protected by the process in his hands.^ The statute makes full provisions as to issuing process of sub- pena for witnesses, compelling their attendance, and as to the power of the courts to punish them, as for contempt, in disobey- ing the process ; ^ and these provisions of the statute are in no wise changed or modified by the Code, but remain in force, applicable to every description of action, equitable as well as legal. ' R. S., art. 1, title 1, chap. 9, part 3. 2 Hager v. Danforth, 8 How., 435. ^ See generally as to the power to punish witnesses by process of contempt for refusal to obey subpena. (R. S., title 13, chap. 8, part 3.) And as to com- pelling attendance of witnesses, &o. (Art. 6, title 3, chap. 7, part 3.) INJUNCTIONS. 337 CHAPTER X. PROVISIONAL EEMEDIES. INJUNCTIONS. Section I. Different kinds and uses of preliminary injunctions. II. In what oases granted. lit. How APPLIED FOR AND ALLOWED. IV. SbBVICE OF INJUNCTION AND EFFECT OF SAME. V. DlSSOLTINO, VACATING! AND MODIFYING INJUNCTION. VI. Reviving and continuing injunction. Before proceeding to consider the proceedings on the trial of an action, it is proper to notice the subject of provisional reme- dies as applicable to the practice in cases of an equitable nature, and as modified-by the Code of Procedure. The present chapter will be devoted to the subject of preliminary or temporary in- junctions. SECTION" I. DIFFEEENT KINDS AND USES OF PEELIMINAET INJUNCTIONS. An injunction is one of the provisional remedies in civil actions retained and regulated by the Code. By the former practice the injunction, as a provisional remedy, was always by writ, but this is abolished by the Code and an injunction by order is substituted therefor. The order may be made by the court in which the action is brought, or by a judge thereof, or by a county judge in the cases specified by the Code ; and when made by a judge may be enforced as the order of the court.' Different Jcinds of injunctions. The injunction under the former practice, as at present, was either provisional, ox final and perpetual, the former issuing before, and the latter after judgment. The final or perpetual injunction was awarded by the decree, and consisted either in commanding an act to be done which the court regarded as essential to justice, or in restraining an act? ■ Code, § 218. V. s. 43 338 INJUNCTIONS, which it considered contrary to equity and good conscience.^ It issued to enforce the execution of the decree, and was in the nature of an execution, and when commanding an act to be done, as the delivery of the possession of lands or other property, the execution of deeds or other instruments, &c., was called the judicial writ. Where it operated simply as a restraint upon the party, it was called the remedial writ of injunction. These final injunctions, did not, like preliminary injunctions, rest in the discretion of the court merely, but were in most cases matter of strict right, depending upon equitable principles in the final ad- judication of a cause, like every other kind of equitable relief. With this species of injunction, namely, that which is involved in the final adjudication, and follows as a necessary consequence of the decree made, the provisional remedy of the Code has nothing to do. The latter relates entirely to injunctions issued during the pendency of the action, and either at the time of its commence- ment or at any time afterwards before judgment.^ It is to this class of injunctions only that the remarks in this chapter are intended to apply. Provisional injunctions. Provisional injunctions are either preliminary or temporary. The distinction does not seem to be of any importance in prac- tice, the diiference consisting mainly in the fact that, while a pre- liminary general injunction will not be granted without notice after a defendant has appeared, or at least, after he shall have an- swered,^ yet, in order to prevent irreparable injury, an order to show cause will be allowed with a temporary injunction in the meantime in order to prevent the anticipated injury. If the order to show cause is made absolute on the hearing of the motion, the temporary injunction will, of course, fall.* This provision of the former practice, in regard to temporary injunctions, is embodied in the Code, which provides that " an injunction shall not be allowed after the defendant shall have answered unless upon notice, or upon an order to show cause ; ' Jer. Eq. Jurisprudence, 307. " Code, § 220. ^ Code, § 221. * Bloomfield v. Snowden, 2 Paige, 355 ; Campbell v. Morrison, 7 Paige, 157. DIFFERENT KINDS AND USES OF. 339 but in such case the defendant may be restrained, until the deci- sion of the court or judge granting or refusing the injunction." While by the fornier practice the mere appearance of a defendant before answer would entitle him to notice, and an opportunity of being heard on such an application,' yet, by the Code, it seems, that the court has power to grant an injunction without notice at any time before answer, notwithstanding the defendant may have served notice of appearance ; ^ a power, however, which will not often, in such cases, be exercised, as the plaintiff can always obtain the same remedy by an order to show cause (which is equivalent to notice), with a temporary injunction in the mean- time, and until the order shall have been made absolute or denied. SECTION II. I2Sr WHAT CASES PEOVISIONAL INJUNCTIONS AEE AXLOWED. The cases in which an inj unction is now allowed as a provisional remedy are prescribed generally by the Code. The provision is contained in a single section,^' which, while it undertakes to lay down a general rule, leaves its particular application to each individual case as it arises in practice, to be determined, upon its own circumstances and merits, by the court. The section is one of great importance, and is as follows : " Where it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or con- tinuance of which, during the litigation, would produce injury to the plaintiff, or when, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or procur- ing or suffering some act to be done, in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. And where, during the pendency of an action, it shall appear, by affidavit, that the defendant threatens, or is ■ 1 Barb. Oh. Pr., 612. * And so it has been held, at special term, under the Code. (Becker v. Hager 8 How., 68.) ' Code, § 219. 340 INJUNCTIONS. about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction may be granted to restrain such removal or disposition." The foregoing provision, it will be seen, contemplates three classes of cases in which an injunction may issue before judgment. In regard to the iirst of these classes, namely, where an injunction may issue at the commencement of an action, it may be observed that it is obviously designed to embrace every possible case in which a temporary injunction might issue, at the commencement of an action, under the old practice. It has, indeed, been thought to embrace much more. By the original Code, the injunction was authorized to issue in cases only where the acts complained of would produce " great or irreparable injury to the plaintiff," but the qualification was left out by the amendments of the next year, and the paragraph altered as it stands at present. And this alteration of the phraseology of the section was the foundation of the decision in Cure v. Crawford,^ in which a motion to dissolve an injunction issued to stay summary proceedings, to remove the plaintiff from certain premises, was denied.^ It was considered in that case that this enactment of the Code greatly enlarges the power of the court in the use of a preliminary injunction, and removes the inquiry which formerly was made, namely, whether the injury was irreparable in its character, or would destroy the freehold ; the only inquiry being simply, whether the act com- plained of would produce injury to the plaintifi". That this construction is wrong, has been clearly shown by subsequent adjudications. For, though it may be true, as intimated in Words- worth V. Lyon,^ and some other cases,^ that the section under review may, and probably does, authorize a preliminary injunc- i 5 How., 293 ; 1 Code R. (N. S.), 18. ^ The better opinion seems to be, that an injunction will not be allowed in such cases. See Capet et ux. v. Parker, 1 Code R. (N. S.), 90, allowing an injunc- tion in such cases ; also, Forrester v. Wilson, 1 Duer, 624. But see, contra, Wordsworth v. Lyon, 5 How., 463 ; 1 Code R. (N. S.), 163, following the rule laid down in Smith v. Moffatt, 1 Barb., 65 ; see also Hyatt v. Burr, 8 How., 168 ; Vallotin v. Seignett, 2 Abbott, 121 ; Duigan v. Hogan, 16 How., 164. s 5 How., 463 ; 1 Code R. (N. S.), 90. * Thompson v. Commissioners Canal Fund, 2 Abbott, 252 ; Perkins v. Warren, 6 How., 341. IN WHAT CASES ALLOWED. 341 tion in some cases where -it could not be granted by the former practice, yet it is at the same time true, as stated in the case of Thompson v. The Commissioners of the Canal Fund,^ that it is only the temporary injunction which is regulated by the Code, and the right to & final injunction is not enlarged, but the law on that subject stands precisely where it did before. Now, it is only in cases where it appears from the complaint that the plaintiff is entitled to the relief demanded, and such relief consists in restraining the commission, &c., of any act which would produce injury to the plaintiff, that a preliminary injunction may issue at the com- mencement of the action at all. In other words, it is only where the plaintiff shows himself entitled to a perpetual injunction, as a part of the final relief, that he may have a preliminary injunction, provided it is necessary to protect him from injury. This doctrine is asserted in Corning and Winslow v. The Troy Iron and Nail Factory ^ by Justice Paekee, who dissents from the case of Cure v. Crawford, and holds, that the law in regard to injunctions has not been materially changed by the Code. A similar conclusion is reached by Justice Mitchell, in The Chemical Bank v. The Mayor of New York,^ and probably ex- presses the correct and just construction of this section of the statute.^ In regai'd to the right to a preliminary Injunction, he remarks: "It is not when the plaintiff is entitled to a7iy relief , but to the relief demanded. If, by the law, as it stood before, the plaintiff had no right to the relief sought in a suit in his own name, he has none now; as the section does not profess to extend the relief which the plaintifi" might claim in such suit. If the only final relief which, he demands is a judgment for an injunction, then he must show by the law, as it stood before, that he was entitled ■ 2 Abbott, 252. = g How., 89. ' 12 How., 476 ; 1 Abbott, 79. See also Ward v. Dewey, 7 How., 17 ; 2 Smith, 519 ; Wordsworth v. Lyon, 5 How., 463 ; Wood v. Draper, 24 Barb., 187. ^ A directly opposite conclusion is arrived at by Justice Johnson, in Vermi- lyea v. Vermilyea (14 How., 471), who holds, that it is enoughif the relief demanded, or part of it, and which the complaint shows the plaintiff is entitled to, is provisional and not final relief And he accordingly allowed an injunction in a divorce case to stand. The subject is of great practical importance, and ought to be removed beyond the region of judicial doubts. 342 INJUNCTIONS. to that relief. If the Code allowed the injunction whenever the plaintiff was entitled to any relief, either in his own name or as relator in the name of the people ; then, if a mandamus or certiorari would lie, the preliminary injunction might be allowable, but such is not the language." It was accordingly held, that a preli- minary injunction could not be granted to restrain the collection of a tax illegally assessed, the plaintiff not being entitled to such injunction as a final remedy in the action.^ The plaintiff must show, besides the fact that the commission or continuance of the acts complained of will do him an injury, the additional fact, that it is a case in which he will be entitled to the final relief of a perpetual injunction.^ And where the complaint does not demand any such final judgment, as, for example, if it be simply for the delivery of possession of real estate, and demand that in the mean- time the defendant be restrained from committing trespasses upon it, a temporary injunction cannot be allowed.^ In regard to the second of the classes of cases referred to in the section of the Code above quoted, namely, when, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done, in violation of the plaintiff's rights respecting the sub- ject of the action, and tending to render the judgment ineffectual, it may be remarked, that this also is an attempt to reduce within the compass of a brief statutory enactment the well recognized principles of equitable relief in such cases, as they had been previously applied in practice. In an early decision, under this clause,^ it was very properly held, that the injunction could not be granted unless the act to be prevented should tend "to render the judgment ineffectual," and that the necessity for the injunc- tion must arise during the litigation. It cannot be granted for acts done anterior to the suit. And this doctrine has been ap- ' See this subject fully discussed by Woodruff, J., in Wilson v. Mayor, &c., of New York, 1 Abbott, 4. See also Bouton v. City of Brooklyn, 7 How., 198 ; Messerole v. City of Brooklyn, 26 Wend., 132 (reversing 8 Paige, 198); Van Doran v. Mayor of New York, 9 Paige, 388. " Corning v. Troy Iron and Nail Factory, 6 How., 87 ; Ward v. Dewey, 7 How., 17 ; Crocker v. Baker, 3 Abbott, 182. 5 Hulce V. Thompson, 8 How., 475. ' Hovey v. McCrea, 4 How., 31. IN WHAT CASES ALLOWED. 343 proved in subsequent cases.^ To authorize the issuing of such an injunction, therefore, the complaint need not contain a prayer for it, as it must in cases under the first clause of the section,^ but the injunction is to be moved for on aflfidavits, which, together with the pleadings, must show a suificient ground for making the motion.^ The last clause of the section of the Code relative to injunc- tions is new, and was first introduced into our practice by the amendments of 1849. It is the first attempt made in our courts to extend the equitable remedy by injunction to actions strictly of common law origin, as, for example, actions to recover in damages for claims or demands on contract.^ Under this clause, too, it is held that where the threats, &c., were made before suit, and not during the pendency of the action, no injunction can issue.^ This new and extraordinary feature of the present prac- tice received a very careful consideration in the case of Perkins V. Warren,^ which established several important principles and limitations under which this remedy was to be applied, among which are the following : that the remedy by injunction is only applicable where the act is threatened, or is about to be done, not where it is done ; '' that it will not be granted where the plaintiff's demand or legal right is denied on oath as broadly as it is asserted, in the complaint, and is unsupported by any other evidence, and there is no proof that the plaintifi" has any interest in restraining the defendant ; and that it will not be granted unless the plaintifi" ' Malcomb v. Miller, 6 How., 456 ; Sebring v. Lant, 9 How., 347. 2 Ibid. Olssen v. Smith, 7 How., 481 ; Vincent v. King, 13 How., 239. 3 Willard's Eq. Juris., 342, 343. ^ It is to be remarked, however, that by the construction which the courts have given to the Jirst clause of the section an injunction may issue in aid of an action to recover possession of personal property, which is strictly a common law action. (Erpstein v. Berg, 13 How., 92 ; Furniss v. Brown, 8 How., 59.) This however, seems to be at variance with the rule laid down in the cases above cited, particularly that of Hulse v. Thompson (8 How, 475). 5 Olssen V. Smith, 7 How., 481. ^ 6 How., 341, at general term, 3d district. '' And this rule is fully sustained in the Court of Appeals in Reubens v. Joel, 3 Kern., 488. 344 INJUNCTIONS. establishes an equitable right for interference by showing that he is a creditor, or that he will be injured by the threatened fraudu- lent transfer. In alluding to the extent and construction of this new provision of the statute, Justice Parkee says : " The statute (Code, -^ 219) only authorizes a temporary injunction where it shall appear, by affidavit, that the defendant threatens or is about to remove, or dispose of his property, with intent to defraud his creditors ; and then the injunction can only restrain ' such removal or disposition,' that is to say, the removal or disposition threat- ened, or about to be made. If it be a threat to remove property generally, the injunction may perhaps, there being no other ob- jection, be as general as the threat. But I am inclined to think the statute was only intended to prevent the consummation of some particular act, which the defendant threatens or is about to do, rather than to restrain generally the sale or disposition of property, and thus tie up all the business concerns of the defendant pending the litigation." The case of Malcomb v. Miller,^ holding that a temporary in- junction might issue in an action by a plaintiff against a fraudu- lent purchaser and his vendee with knowledge of the fraud, to restrain a sale or disposition of the property, does not seem to come within either of the clauses of the section of the Code allowing a temporary injunction to issue. The court seems to have regarded the case as being within the first clause of the section.^ But that decision is substantially overruled by the Court of Ap- peals in Reubens v. Joel,'' holding, as applicable to the Code, the well settled equity rule that a mere creditor before judgment is not entitled to the, interference of the court by injunction against the debtor and his fraudulent assignee. And, of course, if not entitled to the relief demanded of a, final injunction, no temporary injunction can properly issue. An injunction under this section of the Code does not restrain the defendant from any removal or disposition of his goods, but only from a removal or disposition of them with intent to defraud ' 6 How., 456. See also, as to when injunction and receiyer will be appointed in such cases, Mitchell v. Bettman, 25 Barb., 408. 2 Code, § 219. 3 3 gern., 488. IN WHAT CASES ALLOWED. 345 his creditors ; and, on a motion to dissolve it, the only question is, whether such intent exists.^ And a mere refusal to pay a debt, though the defendant be insolvent, is no cause fqr issuing an in • junction.^ In Bruce v. The Delaware and Hudson Canal Company,^ it is said, that the provisions of the section of the Code, which allows an injunction are permissive, not imperative, and that a temporary injunction would not be granted in every case in which a plaintiff brings himself within the letter of that section. Some regard must be had to the nature and extent of the injury which the plaintiff would suffer if the injunction should be withheld, ■ and also to the consequences to the defendant if it be granted. It must appear from the complaint that the act sought to be re- strained is unlawful.* It must appear also, that it is such an act as cannot be amply compensated in damages ; and a party cannot have an injunction to restrain merely the commission or the ap- prehended commission of a trespass ; ® unless the trespass, or waste, will Ipe attended with irreparable mischief,'^ or unless under very special circumstances.'' And such was also the rule before the Code. Indeed, within the limitations laid down in the section of the Code referred to, and the decisions above cited, it may be assumed that, with the exception of that class of new cases pro- vided for by the third clause of section 219, the Code has left the remedy by preliminary injunction very much as it found it, and the former practice and decision of the courts on that subject are still to be regarded as proper guides. It will not be practicable to undertake here to specify the vari- ous cases in which this remedy may be refused or granted. A few of them only will be noticed, and first as to cases in which an injunction will not be allowed. In what cases will not be allowed. An injunction will not be granted unless the rights sought to ' Brewster v. Hodges, 1 Duer, 609. 2 Pomeroy v. Hindmarsh, 5 How., 437. ^ 19 Barb., 371. ^ Ibid. 5 Marshall v. Peters, 12 How., 218 ; Townsend v. Tanner, 3 How., 384. 6 Spear v. Cutter, 5 Barb., 486. ' Mayor of New York v. Conover, 5 Abbott, 171 ; Same, 5 Abbott, 252. 346 IXJDNCTIOHS. be protected are clear, or at least free from reasonable doubt,^ nor unless the party applying has a vested right which may be greatly or irreparably affected by the acts sought to be prevented or restrained, and the injury is pressing and delay dangerous;^ and not before answer unless necessary to protect some interest or right which may be injured or endangered by the defendant's proceedings in the meantime.^ It is in the sound discretion of the court to grant or refuse, to continue, modify, or dissolve, an injunction.* And it is never granted against a person not a party to the suit,* and if served on such person can have no effect except as a notice.^ The court will not in the first instance enjoin a trustee charged with abusing his trust,' unless there is evidence of fraud on facts admitted ; " nor restrain a sale under a power in trust unless it is about to be inequitably exercised ; ^ nor grant an injunction, the indirect effect of which will be to reinstate the plaintiff in posses- sion.'" In like manner the court will not restrain the further negotiation of an overdue promissory note and order it to be delivered up ;'^ nor restrain or prohibit the publication of a libel ;'^ nor restrain a defendant from collecting notes and other indebtedness, and tie up and endanger a large amount of property for the purpose of obtaining by the plaintiff payment of a comparatively small claim ;'^ nor restrain a public performer from violating a contract ' Snowden v. Noah, Hopk., 347. ^ N. Y. Printing and Dyeing Establishment v. Fitch, 1 Paige, 97 ; City of New York V. Mapes, 6 John. Oh., 46; Androvetti v. Brown, 15 How., 75. ^ Osborn v. Taylor, 5 Paige, 515. * Roberts v. Andrews, 2 John. Oh., 202 ; New York Printing and Dyeing Establishment v. Fitch, 1 Paige, 97 ; McCafferty v. Glazier, 10 How., 475 ; Crocker v. Baker, 3 Abbott, 183. « Fellows V. Fellows, 2 John. Ch., 25 ; Watson v. Fuller, 9 How., 426. ^ Edmondston v. McLoud, 19 Barb., 356. ' Boyd V. Murray, 3 John. Ch., 48. « Churchill v. Bennett, 8 How., 309. « Selden v. Vermilyea, 1 Barb., 58. i" Akrill v. Selden, 1 Barb., 316. " Geer v.Kissam, 3 Edw., 129. '^ Brandreth v. Lance, 8 Paige, 24. " Gallatin, President, v. The Oriental Bank, 16 How., 253. IN WHAT CASES ALLOWED. 347 to perform for the plaintiff and him only ;' nor restrain the propri- etor of a newspaper, who has sold it, from the publication of the paper unless it is very clear that it is the same as the first -^ nor restrain the use of a trade mark where the name or phrase claimed as such is calculated and intended to deceive the public;^ nor restrain the defendant from exercising or carrying on a certain trade or profession in violation of a covenant or agreement in which a sum is fixed as a penalty for the breach of the covenant ;* nor restrain the acts of officers of the state, proceeding under the authority of a law of the state;' nor the collection of a tax illegally imposed f nor, in a suit by a freeholder and taxpayer of a municipal corporation, against a person about to act as alder- man and vote upon questions affecting the property of the plain- tiff, although he is without any lawful authority to do so ;'' nor restrain the proceedings of subordinate tribunals of special or local jurisdiction;' nor of a municipal corporation in prosecuting a local improvement ;' nor a contractor under it, in violating his contract in making improvements ;" nor restrain a mere trespass where the injury is not irreparable and destructive to the plain- tiff's estate, but is susceptible of perfect pecuniary compensation,^! unless the complainant has been in the previous undisturbed en- ' Sanquirico v. Benedetti, 1 Barb., 315 ; Hamblin v. Dinneford, 2 Edw. , 529 ; De Rivafinoli v. Corsetti, 4 Paige, 264. But see contra, Fredericks v. Mayer and Gurney, 13 How., 566. ^ Snowden v. Noah, Ilopk., 347. 3 Fetridge v. Wells, 4 Abbott, 144. But see Fetridge v. Marchant, 4 Abbott, 156, and cases there cited. " Vincent v. King, 13 How., 234. 5 Thompson v. Commissioners of the Canal Fund, 2 Abbott, 248 ; Hartwell v. Armstrong, 19 Barb., 166. « Chemical Bank v. Mayor of New York, 1 Abbott, 79 ; N. Y. Life Ins. Co. v. Board of Supervisors, 1 Abbott, 250. See contra, Shepherd v. Wood and others, 13 How., 47. ' Lewis V. Oliver, 4 Abbott, 121. » Thatcher v. Dusenbury, 9 How., 32. ' Mace V. Trustees of Newburgh, 15 How., 161. 1" McCafi'erty v. McOabe, 4 Abbott, 57. " Jerome v. Ross, 7 John. Oh. R., 315 ; Stevens v. Beekman, 1 John. Oh. R., 368 J Marshall v. Peters, 12 How., 218; Townsend u. Tanner, 3 How., 318; Mayor of New York v. Conover, 5 Abbott, 171, 252. 348 INJTJNCTIONS. joyment of the property under claim of right, or unless, from the irresponsibility of the defendants, or otherwise, the complainant cannot obtain relief at law,^ or other peculiar circumstances,^ or where the mischief would be irreparable, and to prevent a multiplicity of suits.^ An injunction will not be allowed to restrain a defendant from divulging a certain invention agreed by him to be kept secret ; an action for damages is the only redress a plaintiff has in such cases.^ Equity will not afford relief to a party who, by his own negli- gence, has lost the opportunity of making a defense at law,* nor enjoin a party from proceeding, upon a judgment, fairly obtained, upon the mere ground that there was a perfect defense to the action, if that defense might have been set up in the action.^ It is to be observed, also, that the former practice, so common in equity, of granting injunctions to stay proceedings in actions at law, is abolished, and no court of this state will enjoin a de- fendant from proceeding in another suit, in the same court, or in any other court of the state having equal power to grant the relief sought by the complaint.' The only ground upon which courts of Chancery acted in granting injunctions in such cases was the inability of the court of law in which the suit was pending to grant the necessary relief; but as, since the Code, the jurisdiction of all our courts is equitable as well as legal, or more properly as the distinction between legal and equitable actions, except in relation to the nature of the relief demanded, is now abolished, the reason, by which the exercise of a power, always invidious, and frequently abused, could alone be justified, have ' Hart V. Mayor of Albany, 3 Paige, 213. " Stevens v. Beekman, 1 John. Ch. E,, 318. ^ Livingston v. Livingston, 6 John. Ch. R., 497 ; Spear v. Cutter, 2 Code R., 100. * Deming v. Chapman, 11 How., 382. 5 Dodge V. Strong, 2 John. Oh. R., 228 ; Murray v. Graham, 2 Paige, 622. ^ Gardner v. Oliver Lee Bank, 11 Barb., 558. ' Grant v. Quick, 3 Sand., 612; Dederick v. Hoysradt, 4 How., 350 ; Hunt v. Farmers' Loan and Trust Co., 8 How., 416 ; Bennett v. Le Roy, 5 Abbott, 55 • 6 Duer, 683 ; Arndt v. Williams, 16 How., 244. IN WHAT CASES ALLOWED. 349 ceased to exist, and have left a case to which the maxim emphati- cally applies, cessante ratione, cessat etiam lex} The rule, however, it has been held, applies only to cases in which the whole object of the injunction could be accomplished by a simple order to stay the proceedings in the same suit.^ Where a plaintiff seeks for relief against a judgment entered, by setting it aside for fraud or other cause, a complaint may be filed for that purpose, and in a proper case an injunction issued to restrain the plaintiff in the judgment from proceeding under it.^ And it has been held that the Code of Procedure has not altered the provi- sions of the Revised Statutes* prescribing the security and the terms on which injunctions may issue in such cases.* But where a suit is brought between parties who reside in this state, upon a contract to be performed within this state, and such suit is one effectual in its structure to determine the whole controversy, and the defendant threatens a suit against the plaintiff, founded upon the same controversy, in a foreign court, it has been held, that an injunction may be granted to restrain him from bringing it.^ And when one court obtains jurisdiction in a suit to which every one interested is a party, and in which the whole contro- versy could be decided at the trial, the pendency of a suit in another court, in which some of the parties are not included, forms no objection to a decision in the first. An injunction on a complaint in the nature of a creditor's bill may be ordered in such case.' The courts have latterly proceeded with more caution in allow- ing temporary injunctions, and have been inclined rather to restrict than enlarge this formidable power, as is evident from the decision in Bruce v. Delaware and Hudson Canal Company,^ above cited. In a still more recent case^ the court, in denying a motion to ' Per DuER, J. Grant v. Quick, 5 Sand., 612. 2 Ohappell V. Potter, 11 How., 365. 5 See Van Wagenen v. La Farge, 13 How., 16. ^ 2 R. S., 189, 190, §§ 141 to 149. * Oook v. Dickerson, 2 Sand., 691. ^ Field V. Holbrook and others, 3 Abbott, 377. ' Paton and others v. Wright and others, 15 How., 481. 8 19 Barb., 371. See ante, page 345. ' Blake v. The City of Brooklyn, 26 Barb,, 301. 350 INJUNCTIONS. restrain the collection of an assessment about to be laid by a municipal corporation, declares that it is not every wrongful, or even unconstitutional, act of individuals, and still less of public bodies and municipal corporations, v^hich vpill entitle the injured party to an injunction. And in still another case' a judge at chambers refused to allow an order to show cause with the usual restraining clause or temporary injunction, because no case of an immediate pressing character was shown, and that, too, without examining the appli<5ation on its merits. And generally a prelimi- nary injunction will not be granted or continued where the plain- tiff's title to relief is disputed, or where actual injury or damage is not clearly shown.^ In what cases allowed. As to cases in which courts have granted a temporary or pre- liminary injunction. It will be allowed, in very special circum- stances, to restrain a trespass, as where the mischief would be irreparable or to prevent a multiplicity of suits f or, where from the irresponsibility of the defendant, the plaintiff cannot obtain adequate relief in damages.* It will be allowed to stay waste, but only to stay or prevent future waste, unless there is some other ground for equitable interference, the account for waste already committed being merely incidental.^ It will be allowed also to prevent waste against a mortgagor,^ or a tenant in common, in possession,'' but will not be granted where the right is doubtful, or where the defendant is in possessioii claiming adversely.^ ' Androvette v. Bowne and others, 15 How., 75. " Goulding v. Bain, 4 Sand. S. 0. R., 716 ; Austin v. Chapman, 11 Leg. Obs., 103 ; Bennett v. American Art Union, 5 Sand. S. C. R., 132. ^ Stevens v. Beekman, 1 John. Oh. R., 318 ; Livingston v. Livingston, 6 John. Ch. R., 497 ; Stevens v. Beelcman, 1 Oaines, 318 ; N. Y. Printing and Dyeing Establishment o. Fitch, 1 Paige, 97. And see authorities cited in note, ante, page 347. * Spear v. Cutter, 2 Code R., 100 ; 5 Barb., 486. = Winship v. Pitts, 3 Paige, 259; Kane v. Vandenburgh, 1 John. Ch. R., 11 ; Johnson v. "White, 11 Barb., 194; Rodgers v. Rodgers, 11 Barb., 595. « Brady v. Waldron, 2 John. Ch. R., 148. ' Hawley v. Clowes, 2 John. Ch. R., 122. 8 Storm V. Mann, 4 John. Ch. R., 21. m WHAT CASES ALLOWED. 351 It will be allowed to prevent, or restrain a nuisance at the suit of any individual who sustains a special injury from it.^ It will be allowed against a grantee to enforce a covenant in a deed of real estate not to carry on any offensive business upon it,^ and against a lessee to enforce a covenant to use the premises only in a particular business, though no damage be shovs^n from their employment for another, and to restrict the use of demised prem- ises according to the terms of the lease.* An injunction will lie to restrain the obstruction of a -water course,* or its diversion after a long enjoyment of it by the plain- tiff,^ but only when his right is capable of clear ascertainment and to prevent irreparable injury.^ And it will lie also against a grantee of a water privilege who encroaches upon a privilege reserved in the gi'ant.'' An injunction, as well as a receiver, is an ordinary preliminary remedy on the winding up of copartnership affairs by one partner or his representatives against another, and it has been allowed at the suit of a general creditor of insolvent general partners, the debt not being denied.^ And the same remedy has been repeat- edly allowed in the case of insolvent limited partners.' But to authorize the granting of an injunction in such cases, the action must be commenced in behalf of all the creditors of the insolvent ' Gardner v. Trustees of Newburgh, 2 John. Ch. R., 162 ; Mohawk Bridge Co. V. Utica and Schenectady R. R. Co., 6 Paige, 554 ; Thompson v. N. Y. and Har- lem R. R. Co., 3 Sand. Ch. R., 625'; Penniman v. N. Y. Balance Co., 13 How., 40 ; Harrison v. Newton, 1 Code R., N. S., 207 ; Phoenix v. Commissioners of Emigration, 1 Abbott, 466. " Barrow v. Richards, 3 Edw., 96 ; aflBrmed 8 Paige, 351. 3 Stewart v. Winters, 4 Sand. Ch. R., 587 ; Howard v. Ellis, 4 Sand. S. C. R., 369 ; Engle v. Owen, 3 Duer, 15. * Corning v. Troy Iron and Nail Factory, 6 How., 89. 5 Gardner v. Trustees of Newburgh, 2 John. Ch. R., 162. " Eisk V. Wilber, 7 Barb., 395. '' Olmsted v. Loomis, 5 Seld., 423 ; reversing 6 Barb., 153. 8 Dillon V. Horn, 5 How., 35 ; Levy . Ely, 5 How., 395 ' Innes v. Lansing, 7 Paige, 583 ; Haggerty v. Taylor, 10 Paige, 261 ; White- wright V. Stimpson, 2 Barb., 379 ; La Cliaise v. Lord, 10 How., 461 ; 1 Abbott, 213. See also Paton v. Wright, 15 How., 481. 352 INJUNCTIONS. firm, and the indebtedness should be admitted by all the defend- ants sought to be made liable as partners.^ On a complaint, in an action between partners to close a part- nership concern, where the complainant shows himself entitled to a dissolution, it is a matter of course to appoint a receiver,^ unless the party applying be in possession of the stock ; ^ and if the complaint be by insolvent general partners, against a solvent partner in possession, the latter may be appointed.* A temporary injunction may also be granted whenever a proper case for it is shown, as, for example, if the partner in possession be insolvent, or threaten fraudulently to dispose of the partnership property, or any other abuse be apprehended.^ Where there are cross suits between partners, in respect to partnership property, in which both parties claim an equal right, and an injunction and receiver had been granted in one suit, the same remedy will be granted in the other, of course, and without special cause shown.^ A preliminary injunction will be allowed to restrain the publi- cation of private letters whether they are literary compositions, or familiar letters, or letters of business. The court will, at the suit of the writer of such letters, restrain the person receiving them, unless their publication be necessary to vindicate his own rights or conduct against unjust claims or imputations ; and will, in all cases, restrain a stranger who has obtained possession of the letters or copies unlawfully,'' An injunction will not be granted to prevent the perpetration of an act prohibited by a public statute, on the ground that it 1 Ibid. La Cliaise v. Lord, 10 How., 461. ^ Law V. Ford, 2 Paige, 310 ; Marten v. Van Schaack, 4 Paige, 479. ^ Smith V. Lowe, 1 Edw., 33. • Hubbard v. Guild, 1 Duer, 662. 5 Dunham v. Jarvis, 8 Barb., 88 ; Smith v. Danvers, 5 Sand., 669. " MoCracken v. "Ware, 3 Sand. S. 0. R., 688. 'See this question elaborately discussed by Duer, J., in Woolsey i;. Judd, and others, 4 Duer, 379 ; 10 How., 49, in which the leading American and Eng- lish cases are cited and commented on. The court holds that the cases of Wet- more V. Scovell, (3 Edw. Oh. R., 515), Hoyt v. McKensie (3 Barb. Oh. R., 314), in which it was decided that an injunction to restrain the publication of private letters can only granted when it appears that the letters possess a certain value as literary compositions, ought not to be regarded as binding authorities. IN WHAT CASES ALLOWED. 353 might diminish the profits of a trade or business pursued by the applicant in common with others.^ But a damage to the trade of a plaintiff resulting from a fraud upon the public, practised by the defendant in the sale of an article manufactured by the plain- tiff, is a sufficient ground for an injunction.^ A preliminary injunction will, in certain cases, be allowed to restrain the unauthorized use of a trade mark where the legal right of the plaintiff and the violation of it are very clear.^ It will be granted also to restrain the defendants fi-om making use of the name of the plaintiff's hotel ;■* and upon the same principle the assumption and use of a style and name of a popular place of amusement will be restrained by injunction.* And an injunction will lie, at the suit of one against another, his former co-partner, restraining the continuance of the use of the signs containing the old firm name without sufficient alterations or additions to give distinct notice of a change in the firm.^ The right of a taxpayer to an injunction to restrain the collec- tion of a tax illegally imposed, has been denied in several well considered cases since the Code ; '' though, on the contrary, the right has been asserted in one or two cases, as, for example, in a suit by a taxpayer, on behalf of himself and other taxpayers ; in which case, the complaint must aver that the action is brought not only on the plaintiff's own behalf, but on behalf of all others similarly situated.^ The question has lately been incidentally 1 Smith V. Lockwood, 13 Barb., 209 ; 10 L. 0., 12. 2 Gillotv. Kettle, 3 Duer, 624; 10 L. 0., 120. 3 Fetridge v. Marchant, 4 Abbott, 156 ; Amoskeag Manufacturing Co. v. Spear, 2 Sand., 600 ; Merrimack Manufacturing Co. v. Garner, 2 Abbott, 318 ; and see the subject discussed in Samuel v. Berger, 24 Barb., 164 ; 4 Abbott, 88; Fetridge V. Wells, 4 Abbott, 144 ; and see Corastock v. Moore, 18 How, 422. ■• Howard v. Henriques, 3 Sand. S. C. R., 725. ' Christy v. Murphy, 12 How., 77; Wolfe v. Gourland, 18 How., 64. ' Peterson v. Humphrey, 4 Abbott, 394. '' See Chemical Bank v. Mayor of New York, 12 How., 477 ; New York Life Insurance Co. v. Board of Supervisors of New York, 4 Duer, 192; 1 Abbott, 250; Wilson v. Mayor of New York, 1 Abbott, 4; 4E. D. Smith's New York Com. Plea R., 676 ; Wood v. Draper, 24 Barb., 187. * Shepherd v. Wood and others, 13 How., 47. See as to injunction to restrain the collection of an assessment not yet laid ; Blake v. City of Brooklyn, 26 Barb., 301. V, S. 45 354 INJUNCTIONS. discussed in the Court of Appeals, but the court declined to express an opinion whether one or more taxpayers could main- tain a suit in behalf of themselves and all other taxpayers to res- train the municipal authorities in the exercise of their corporate powers.i The Supreme Court has repeatedly exercised jurisdiction at the suit of a taxpayer, on behalf of himself and others, to restrain a corporation from appropriating or expending money to be raised by taxation contrary to law.^ On similar principles a stockholder of a moneyed corporation may have an injunction, on behalf of himself and all others simi- larly situated, to restrain the corporation from wasting or misap- plying the corporate funds or property.^ SECTION m. HOW APPLIED FOE AND ALLOWED. The application for an injunction is made under section 220 of the Code, which provides : " The injunction may be granted at the time of commencing the action, or at any time afterwards, before judgment, upon its appearing satisfactorily to the court or judge, by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor. A copy of the affidavit must be served with the injunction." The injunction of the Code can issue only in an action, that is, at the time of its commencement, or at any time afterwards. It can only issue upon a comjilaint, and will not be allowed upon affidavits alone where there is no complaint.* But an affidavit, it is said, which contains all the requisites of a complaint, may be ' Ketchum v. City of Buffalo, 4 Kern., 356 ; and see Haywood v. City of Buffalo, 4 Kern., 534. ^ Christopher v. Mayor of New York, 13 Barb., 567 ; De Baum v. Mayor of New York, 16 Barb., 392 ; Adriance v. Mayor of New York, 1 Barb., 19 ; Roose- velt V. Varnum and others, 12 How., 469. ^ Carpenter v. New York and New Haven R. R. Co., 5 Abbott, 277. * The People, &c., v. The Judges of the New York Common Pleas, 3 Abbott, 181 ; Badger v. Wagstaff, 11 How., 562. HOW APPLIED FOE AND ALLOWED. 355 treated as a complaint, and used as the basis of an injunction order.^ It seems there are cases, however, in which, as under the former practice, an injunction may issue on petition, and without any action; as, for example, upon "a special statutory remedy not heretofore obtained by action," which, with the various parts of the Revised Statutes, mentioned in section 471 of the Code, is expressly excepted from the operation of the second part of that act. So, also, by section 468, "if a case arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this act (the Code), the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice." By that practice, though the statute required the bill to be first filed before an injunction could issue,^ yet there were cases in which a court of equity enforced its orders and decrees by injunc- tion where the proceeding was founded on petition only ; and in those cases the filing of the petition, which was regarded as a substitute for the bill, was considered a substantial compliance with the statute.^ As in the case of Hemiup,^ which was an application for an injunction on a petition, based on a " special statutory remedy," it was not denied that an injunction might be granted at a proper stage of the proceedings. An injunction has also been granted on petition, without bill filed, on the applica- tion of the committee of a lunatic to restrain waste by the tenants of the lunatic's estate.^ Such practice, it seems, may still be followed, the statutory provisions relative to the custody and disposition of the estates of lunatics, &c., being excepted by section 471 from the operation of this part of the Code. And so in other special cases which may arise. Generally, however, a preliminary injunction, as above stated, cannot be granted except on commencing the action ; and can issue only on a complaint. ' Morgan v. Quackenbush, 22 Barb., 72. 2 2 R. S. (3J ed.), 242. ^ i B^r^. Ch. Pr., 616. ■" Matter of Uemiup, 2 Paige, 318. Matter of Creagle, 1 Ball & B., 108. 35 G INJUNCTIONS. What officers and courts may grant injunctions. Injunctions under the old practice were granted by the Chan- cellor, the Vice-Chancellors, and, in certain cases, by a master appointed for that purpose, styled an injunction master. These offices being abolished, the Code provides who shall have power to grant an injunction order. Such order may be made by "the court, or by a judge thereof, or by a county judge."^ By " the court," is to be understood, generally, the court at special term. A motion for an injunction is a non-enumerated motion, and by the rules of the court ^ is to be heard at special term, except when otherwise directed by law. The general term has no doubt the power to dispense with the rule and to hear a motion for an injunction,^ though the practice, it is believed, is very rare. But when " directed by law " to be first heard at general term, the application for an injunction must be there made. Thus, by statute,^ whenever any duty shall be devolved by law upon any state officer or board of officers, no injunction shall be issued to restrain such officer or board, or any person employed by them, or to prevent the execution of any such law, unless the same be granted by the Supreme Court sitting in the district in which such board shall be located, or such duty shall be required to be performed, at a general term of said court. Nor can such appli- cation be heard unless on a notice of eight days.^ When an injunction order is made by a judge out of court, it may be made by any judge of the Supreme Court in any part of the state. If made by a county judge, it can only be made by the judge of the county where the action is triable, or in which the attorney for the moving party resides. The contrary was at one time supposed,^ though this doctrine was not concurred in ;' but the question is now settled by the recent amendment of the Code,^ which restricts the power of a county judge in making an 1 Code, § 218. = Supreme Court Rules, 40. ' Drake v. Hudson River Railroad Co., 2 Code R., 67. ' Laws of 1851, p. 920. = Ibid. " Peobles v. Rogers, 5 How., 208. ' Chubbuck v. Morrison, 6 How., 367 ; Eddy v. Howjett, 2 Code R., 76. ' Code, § 401, as amended in 1858, and further amended in 1859. HOW APPLIED FOR AND ALLOWED. 357 order to actions which are triable in the county where he resides, or the county where the attorney for the moving party resides. But a county judge cannot allow aii injunction to suspend the general and ordinary business of a corporation ; such an injunction can only be granted by the court or a judge thereof. Nor shall it be granted without due notice of the application, except where the people of this state are a party to the proceedings, and except in proceedings to enforce the liability of stockholders in corpora- tions and associations for banking purposes, after January 1st, 1S50, as such proceedings are or shall be provided by law, unless the plaintiff shall give a written undertaking, executed by two sufficient sureties, to be approved by the court or judge, to the effect that the plaiotiff will pay all damages not exceeding the sum to be mentioned in the undertaking, which such corporation may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto.^ What facts must appear, and how verified. The preliminary injunction is granted on " its appearing satis- factorily to the court or judge, by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor." ^ A complaint alone, properly verified, is an affidavit within the meaning of this section.^ But such complaint must be verified positively, and where the material allegations are set forth on information and belief it will not be sufficient.* If the complaint is not verified positively, or if the material allegations in it are set forth on information and belief only, the complaint must be supported by positive affidavits of such alle- gations. All the material allegations must be supported either by the oath of the party to the complaint, or of witnesses.^ 1 Code, § 224. = Oode, § 220. 3 Woodruff V. Fister, 17 Barb., 229 ; Penfleld v. White, 8 How., 87 ; Krom V. Hogan, 4 How., 225 ; Smith v. Remo, 6 How., 124 ; Minor v. Terry, 6 How., 208 (overruling Milliken v. Crary, 5 How., 272). * Same cases. Also, Pomeroy v Hindmarsh, 5 How., 439 ; Jones v. Atterbury, 1 Code R., N. S., 87 ; Rateau v. Bernard, 12 How., 464; Levy v. Ely, 15 How., 395 ; Croker v. Baker, 3 Abbott, 182. = Livingston v. Bank of New York, 26 Barb., 304 ; Croker v. Baker, 3 Abbott, 182, and cases supra. 358 INJUNCTIONS. Such was precisely the rule under the former system, A com- jjlainant was not entitled to an injunction ex parte on a bill verified by his own oath merely, where the facts were not within his own knowledge.^ But in such case he must state the facts on his information and belief, and annex the affidavit of some person who can swear positively to the facts.^ The facts themselves, as stated in the complaint, and those only, are to be verified ; but, it seems, where an affidavit in corrobora- tion of such facts goes beyond the complaint, and states more than the complaint, the application is properly treated as an application on the complaint, and not on the affidavit, and an injunction may be allowed.^ But though the plaintiff may fortify, by affidavit, the statements of his complaint, he cannot set up a new ground for an injunction.^ Notice and service ofpnpers. We have already alluded to the provisions of the Code, and the practice of the courts in regard to the cases in which a notice of the application for an injunction is necessary.^ Though, it seems, that the court has the power, in special cases, to grant a prelimi- nary injunction order without notice, at any time before answer, yet, as was observed on a former page,^ it is a power which is not often exercised, as the plaintiff can always obtain the same remedy by an order to show cause, under section 223 (which is equivalent to a notice), with a temporary injunction in the meantime, and until the order shall have been made absolute or denied. The proceedings on such an order, to show cause, will be presently noticed, and I shall now merely glance at the course of proceed- ings where the plaintiff proceeds on his usual notice of motion. The application, it will be remembered, may be made at any stage of the action before judgment. If the plaintiff moves before answer, on the complaint alone, no papers are necessary to be ' Campbell v. Morrison, 7 Paige, 157 ; Christie v. Bogardus, 1 Barb. Ch. R., 167; Bogart-y. Haight, 9 Paige, 297 ; Waddell v. Bruen, 4 Edw., 671 ; Williams V. Lockwood, Clarke, 192. ^ Itjid. Bank of Orleans v. Skinner, 9 Paige, 305. 3 Badger v. Wagstaff, 11 How., 562. ' Hentz V. The Long Island Railroad Co., 13 Barb., 646. 5 Ante, page 338. ' Ante, page 339. HOW APPLIED FOR AIJD ALLOWED. 359 served but the notice itself. If he moves upon the complaint and affidavits, copies of the latter must be served with the notice. The almost invariable course, however, in all such cases is, to obtain an order to show cause before the process is actually- served, and then serve all together — summons and copies com- plaint, affidavits and injunction. If the application is made after judgment, it may be made upon the pleadings, accompanied either by a petition or affidavits stat- ing the facts relied upon to satisfy the court that " sufficient grounds exist therefor."^ Copies of the petitionor affidavits must, of course, be served with the notice of motion. The notice should specify the papers on which it is intended to make the motion. The usual form is on " the affidavits, with copies of which you are herewith served, and the pleadings and proceedings in this action." It should also shortly, but clearly, express the object of the application ; for, in analogy to the practice on motions for a receiver, the court will not extend the order beyond the notice.'' The service of the notice and other papers is made as in ordinary cases, and is governed by the same rule. Motion, hoio made and opposed. ■• The motion is brought on and argued as in other cases. The defendant may oppose the case made by the plaintiff's complaint and affidavits, either by afSdavits alone, if he be not ready yet to answer fully, or by affidavits and his own sworn answer, which may be read either as a pleading or an affidavit in the cause. If the case made by the plaintiff be fully met and controverted by the defendant, the application will be denied. See on this subject the following section relating to the motion to vacate the injunc- tion and the cases there cited. Order to show cause. Section 223 of the Code provides that the court or judge, if it is deemed proper that the defendant be heard before granting the injunction, may make an order requiring cause to be shown, at a specified time and place, why the injunction should not be granted, ' Code, § 220. » Edw. on Receivers, 77. 360 INJUNCTIONS. and restraining the defendant in the meantime ; and this, as has just been observed, is the usual way of proceeding where the in- junction is obtained at the time of commencing the action. This proceeding is entirely in accordance with the former equity prac- tice.^ In such case the temporary injunction falls, of course, if the order to show cause is not made absolute.^ The order to show cause is granted in the same way as an ex 'parte preliminary injunction. Its form is that the defendant show cause at, &c., on, &c., why he should not be restrained from doing the act complained of, specifying it with the same particu- larity as in an ordinary preliminary injunction, and that in the meantime he be restrained from doing such act. A copy, with copies of the papers on which it is allowed, must be served, either the usual time or such shorter time as the order prescribes. It has been held before the new rules (of 1858), that an order to show cause made by a judge out of court could not be made returnable before the court.^ If such was the correct practice it seems to have been changed by rule 39, which provides that (except in the first judicial district) the order to show cause shall be returnable only before the judge who grants it, or at a special term appointed to be held in the district in which such judge resides. At the time and place specified in the order to show cause the moving party will attend, and if there be no appearance, will, on proof of service of the order to show cause or other papers, take his absolute order, which (with a slight variation in the recital), is substantially the same both as to form and contents with an original preliminary injunction. If the defendant appears he may oppose the application by affi- davits or answer, or both, as in cases of a motion on notice, and the hearing and subsequent proceedings as to drawing, settling, entering and serving the order are the same as in other cases. SeUling, entering, and serving order. The order having been allowed is to be settled, either by agree- ment of the respective attorneys, or by the court, and forthwith filed with the clerk of the proper county, together with all the ' 1 Barb. Oh. Pr., 624. ^^Bloomfleld v. Snowden, 2 Paige, 355. ^ Merrilt v. Slocum, 6 How., 350 ; Hasbrouck v. Blirick, 7 Abbott, 76. HOW APPLIED FOE AND ALLOWED. 361 affidavits upon which it was allowed/ and a copy of the order served on the opposite attorney. The proceedings in this respect are entirely similar with those in case of an order appointing a receiver, which will be considered more fully in the following chapter. Security upon injunction. The giving of security upon the allowance of an injunction, is regulated by section 222 of the Code, as follows : " Where no provision is made by statute as to security upon injunction, the court or judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto." The section (which was enacted in place of the 31st rule of the Court of Chancery) contains a further provision for ascertaining the damages on the dissolution of an injunction. Though a written undertaking is required in all cases, yet, it is discretionary with the court or judge to require one or more sure- ties, or dispense with them entirely, except where the statute otherwise provides. Thus, on an injunction to stay proceedings in a personal action after judgment, a deposit, or a bond with sureties, is required by statute.^ The statute has been held applicable to proceedings under the Code, and an injunction issued in violation of it, was adjudged irregular and set aside.^ But, it has been held, that this statute does not apply to the case of an injunction issued in a suit founded on the 56th section of the article of the Eevised Statutes, entitled : " Of proceedings against corporations in equity." ^ This is an independent provi- sion of the statute, and not at all subject to the general provisions relative to injunctions to restrain proceedings at law which require a deposit, or bond with sureties. ^ ' Rule 4. ^ 2 R. S. (3d ed.), pp. 251, 252. » Cook V. Dickinson, 2 Sand. S. 0. R., 691. ■> 2 R. S. (3d ed.), p. 561. s Hutchinson v. N. Y. Central Mills, 2 Abbott, 394. 362 INJUNCTIONS. Section 224 of the Code, referred to on a former page,^ requires a written undertaking with two sureties in the cases therein specified. As to the form of the undertaking on injunction, it may pursue substantially, or in terms, the language of the Code. No pro- vision for a reference to ascertain damages, need be made in it, as the court may direct a reference, though it contains no such consent.^ Where there are sureties, they will be usually required to justify in double the sum specified in the -undertaking.^ So, also, in case the plaintiff execute the undertaking alone, without sure- ties. And it is the practice in the New York Superior Court (and it is believed also generally in the Supreme Court) to require a non-resident plaintiff, to furnish an undertaking executed by a resident surety.* This, however, seems to be left discretionary with the court, and is not essential to the validity of the under- taking, or the regularity of the injunction. The rules of the court,^ however, require the sureties (if there be any) to justify, and the undertaking to be proved or acknow- ledged. This, also, was necessary to the regularity of the injunc- tion under the former practice.^ The undertaking must be approved by the justice, and filed with the clerk of the proper county, forthwith, and if not filed within five days after the injunction is granted, the defendant may move the court to vacate the proceedings for irregularity, with costs, as if no undertaking had been given.' Before this rule, the filing of the undertaking was regulated by section 423 of the Code, which did not prescribe any definite time. It was held, however, that a designed omis- sion to file the undertaking, might have been cause to vacate the injunction, but where such omission was occasioned by mistake ' Ante, page 357. ' Higgins V. Allen, 6 How., 30. This is contrary to the old practice. Garcie V. Sheldon, 3 Barb., 232. ' Carroll v. Sand, 10 Paige, 298 ; Sullivan v. Judah, 4 Paige, 444. The rules of the Court (Rule 6) require the judge, before approving the undertaking, to have the sureties justify. * Sheldon v. Allen, 1 Sand. S. C. R., 700. ^ Sup. Court, Rule 6 (amending former rule 71). * Loveland v. Burnham, 1 Barb. Ch. R., 65. ' Sup. Court, Rule 4. HOW APPLIED FOE AND ALLOWED. 363 or inadvertence, the plaintiff would be directed to file it, and charged with the costs of the motion.^ The approval of the judge should be indorsed upon the under- taking : " I approve the v?ithin undertaking as to its form and manner of execution, and certify that the within named surety is worth $ over and above all debts and responsibilities he owes or has incurred." ^ Form and contents of injunction order. If the order is allowed by the court, it will have the usual caption : " At a special term," &c., and, if allowed in the county where the place of trial is, need only be filed by the clerk, or if in another county, certified by the clerk thereof, as other orders, to the proper county, without any signature or allocatur of the judge. A copy of the order, certified by the clerk of the county where it is entered, will be a sufficient verification of its genuine- ness for all purposes of making service. If granted by a judge out of court, or a county judge, it is regularly without any caption, and is simply entitled in the >cause, and signed by the ju'dge at the foot of the order. In such case it is unnecessary to file the injunction order or affidavits, or the complaint on which it is issued, unless compelled to do so on an order obtained by the defendant, which must be done if he intends to appeal.^ As to the matter and contents of an injunction order, it should be sufficiently explicit upon its face to advertise the party clearly of what he must do.* There should appear in it enough to apprise him of what he is restrained from doing, without the necessity of his resorting to the complaint on file to ascertain what it means.* The language should be so clear and explicit, that an unlearned man can understand its meaning, without the necessity of employ- ing counsel to advise hira what he has a right to do without subjecting himself to punishment.^ > O'Donsell V. McMurn, 3 Abbott, 391. ° The certificate that the surety is worth the sum specified, which was re- quired by the former rule (No. 71), is not required by the present rule (No. 6 of the Revision of 1858), though it may still very properly be used. ' Code, § 350. ■* Moat v. Holbein, 2 Edw., 188. = Sullivan v. Judah, 4 Paige, 444. " Laurie v. Laurie, 9 Paige, 234. 364 INJUNCTIONS. Thus an injunction forbiding the use of certain machinery and processes, and referring for a description of them to the bill, and an agreement and letters patent therein mentioned, is defec- tive ; but if the defendant knows what machinery and processes are intended, he is liable for a violation of the injunction if he uses them.i But a defendant is not to be enjoined any further than following the prayer of the bill would require ; and he is not to be punished for violating the injunction in a particular not covered by the prayer.^ So, too, as a general rule, the injunction should be only against persons who are parties to the suit,^ though the rule is said to be subject to some exceptions, as where a court has power, in conse- quence of having jurisdiction over the subject matter, to make an order which a person is bound to obey, as being actually, or con- structively, a party to the suit, it may enforce obedience to such order by the process of injunction.^ And it is the common prac- tice for an injunction to go against a party, his agents, attorneys, solicitors, &c. This practice is founded upon a provision of the Eevised Statutes, and is still in force under the Code.^ In ordi- nary cases, however, an injunction as against such persons as are not defendants, is inoperative as to them, except as a notice.^ SECTION IV. SERVICE OF AN INJUNCTION OEDEE, AND EFFECT OF SAME. The injunction having been allowed, and the undertaking duly approved by the judge and filed, the next step on the part of the plaintiff is to cause service to be made on the defendant. The service must be personal upon the defendant, or party enjoined, by delivering to, and leaving with him a copy of the ' Byam v. Stevens, 4 Edw., 119. « Freeman v. Deming, 4 Edw., 598. ' Weller v. Harris, 7 Paige, 167 ; Fellows v. Fellows, 4 John. Ch. R., 25 ; Watson V. Fuller, 9 How., 426. ' 1 Barb. Ch. Pr., 619. 5 See opinion of Bosworth, J., in The People v. Compton, 1 Duer, 555, citing 2 R. S., 534, § 1. See also post, page 367. ' Sage V. Quay, Clarke, 34. SERVICE OF. 365 order, and at the same time showing him the original with the signature of the judge attached. Such was the old practice,' and the same practice is still followed. A service by copy, without showing the party served the original, will not suffice to found a proceeding for a contempt, though it may be effectual as a mere notice.^ If the injunction order is allowed by the court, service of a copy certified by the clerk, without exhibiting the original, is sufficient.^ Service must be made upon the party even where he has appeared by attorney, and service upon the attorney is irregular.^ The Code requires that " a copy of the affidavit must be served with the injunction.'" This of course includes the complaint when verified and used as 1 HofF. Master, 156. 376 EECEIVERS. volunteered the act, but whether he ought to have done it with out direction;^ hence, the safer course is, in all cases, for the receiver to keep within the line of the authority conferred upon him by his appointment, and whenever it becomes necessary to step beyond that, to apply to the court for further authority and directions, which, being an officer of the court, he has at all times the right to do.^ When rights of strangers are interfered with. Though appointed for the benefit of the parties, yet, if the receivership interferes with the rights of a stranger, the latter may apply to the court and be heard pro interesse sua for the pro- tection of his rights;^ and upon such application of a person, not a party to the suit, the court will give such directions to a receiver as will be necessary to protect the rights of the appli- cant.^ But if a receiver has rightful possession of the property, it is a contempt for a third pers9n to attempt to deprive him of it by force, or even by a suit, or other proceeding at law, without the permission of the court authorizing such suit or proceeding to be commenced.' And, on the other hand, the court will not protect a receiver who attempts to obtain by violence, property in the possession of a third person, under claim of title." Cannot em.'ploy attorney of one of the parties. / The rule that a receiver is appointed for the benefit of all the parties interested in the suit, prohibits him from employing the attorney of either party ; '' if he do so, either of the other parties may object, though a stranger sued by the receiver cannot.s The rule does not prohibit the employment by the receiver of the counsel of one of the parties, where the object is to obtain or create a fund for the joint benefit of all the parties.' ' Edw. on Receivers, 6. = Ourtis v. Leavitt, 1 Abbott, 274. " Howell V. Ripley, 10 Paige, 43. * Vincent v. Parker, 7 Paige, 65. = Noe V. Gibson, 7 Paige, 513 ; Albany City Bank v. Schermerhorn, 9 Paige, 372 ; Hubbell v. Dana, 9 How., 24. ' Parker v. Browning, 8 Paige, 388. ^ Ryckman v. Parkins, 5 Paige, 543. = Warren v. Sprague, 11 Paige, 200 ; "Warren v. Sprague, 4 Edw., 416. " Bennett v. Chapin, 3 Sand. S. C. R., 673. GENERAL POWERS AND DUTIES. 377 General powers as to bringing suits and collecting and disposing of property of the receivership. By the act of April 28th, 1845, receivers and committees of lunatics and habitual drunkards, are authorized to sue in their own names for any debt, claim or demand transferred to them, or to the possession and control of which they are entitled as such receiver or committee. The cases in which a receiver may main- tain an action under this statute, have been referred to on a pre- ceding page.^ It was formerly held that this act was not broad enough to transfer the title of real estate to the receiver by the mere order of the court, and without an actual conveyance to him.^ But a more recent case in the Court of Appeals ^ has settled the doc- trine otherwise, and the title now passes to the receiver by force of his appointment, when perfected, and without any assignment; and he may maintain an action to set aside a fraudulent assignment of real as well as personal property,^ A receiver could not regularly institute a suit without leave of the Court ; * and if he did so and failed in the suit, he was held personally liable for costs.^ The rules of the court (the 92d of the last revision) make general provision for the commencement of suits by receivers, and prescribe their powers and duties in other respects, and is as follows : " Every receiver of the property and effects of the debtor shall, unless restricted by the special order of the court, have general power and authority to sue for and collect all the debts, demands and rents belong- ing to such debtor, and to compromise and settle such as are xmsafe and of a doubtful character. He may also stie in the name of a debtor when it is necessary or proper for him to do so ; and he may apply for and obtain an order of course, that the tenants of any real estate belong- ing to the debtor, or of which he is entitled to the rents and profits, attorn to such receiver, and pay their rents to him. He shall also be • See ante, page 85. ^ Wilson v. Wilson, 1 Barb. Ch. R., 594. 3 Porter v. Williams, 5 Seld., 142. < Overruling the decision of the Supreme Court in Seymour v. Wilson, 16 Barb., 294, and Haynor v. Fowler, 16 Barb., 300. ' Merritt v. Lyon, 16 Wend., 410. « Phelps v. Cole, 3 Code R., 157. V. S. 48 378 RECEIVERS. permitted to make leases from time to time, as may be necessary, for terms not exceeding one year. And it shall be his duty, without any unreasonable delay, to convert all the personal estate and effects into money ; but he shall not seU any real estate of the debtor without the special order of the court, until after judgment in the cause. He is not to be allowed for the costs of any suit brought by him against an insol- vent from whom he is unable to collect his costs, unless such suit is brought by order of the court, or by consent of all persons interested in the funds in his hands. But he may, by leave of the court, sell such desperate debts, and all other doubtful claims to personal property, at public auction, giving at least ten days' public notice of the time and jjlace of such sale." It will be observed, that the receiver has general power to sue in the name of a debtor "when it is necessary or proper for him to do so." These words, as Mr. Edwards, in his treatise on Eeceivers,' very properly remarks, leave it still doubtful in what cases he would choose to risk a suit in the debtor's name, without the particular sanction of the court, and where no indemnity is given ; for, it is not common to bring actions without leave of the court, or where indemnity is not given. It would, therefore, be more desirable in most cases to apply for leave to sue. A suit by a receiver in the name of the debtor is not common under the Code ; the action is usually brought in the receiver's name alone.^ In such cases, though by the rule he need not, unless specially restricted by the order appointing him, apply to the court for leave to sue, yet, in all doubful cases, it is advisable for him to do so, in order to avoid being personally chargeable with the costs, in the event of an adverse determination of the action. So, also, in regard to defending a suit, for in such case, the costs and counsel's fees of an unsuccessful defense, are not chargeable on the fund.^ So in the case of compromising disputed or doubtful claims, or of compromising with debtors of a corporation,* the receiver should apply to the court and receive authority to do so. ' Edw. on Keceivers, 481. = See Parties to Actions, ante, page 85. 3 The Utica Insurance Co. v. Lynch, 2 Barb. Ch. R., 573. ' Matter of the Croton Insurance Co., 3 Barb. Oh. R., 642. GENERAL POWERS AND DUTIES. 379 Repairs and improvements. Eeceivers are not permitted to lay out money in repairs at their discretion.! Though "necessary" or "reasonable" repairs will be sanctioned by the court, when made without a prior applica- tion,2 still the receiver had better apply to the court before he makes the repairs, unless they are small in amount, or require to be instantly made. Indeed, it is a general principle that the court will not, in the broad discharge of its duty, permit a receiver to lay out more than a very small sum at his own discretion for repairs or improvements.^ And he does so at his own risk of being personally charged with the outlay, unless he first obtain the order of the court. Leasing. A receiver may lease premises from year to year without a spe- cial order of the court, but not longer unless under the direction of the court. This was the practice of courts of equity before the rule of the Court of Chancery, which is substantially re- enacted by the present rule of the court above given. When a tenant is entitled to a renewal of a lease, the receiver is the proper person to apply to the court for a reference as to it.* But a ten- ant who has taken from a receiver a lease for a term, and desires to release it and take a new lease at a reduced rent, will not be favored where he has suffered the rent to run in arrear.* A receiver cannot, without leave, nor unless under the direction of the court, determine a subsisting lease.* Nor can he become tenant of any part of the lands over which he has been appointed without the special leave of the court.'' Carrying on trade. It is not the business of the court to manage or carry on, from time to time, a partnership of any kind, and it is impracticable to ■ Blunt V. Clitherow, 6 Ves., 801. ^The Attorney-General v. Vigor, 11 Ves., 563. 3 Waters v. Taylor, 15 Ves., 25. * Edw. on Receivers, 124. ^ Lorillard v. Lorillard,4 Abbott, 210. * Doe, lessee, &c., v. Read, 12 East., 58. ' Alven V. Bond, 3 Jr. Eq. R., 224. 380 EECEIVEES. do so.i Nor will the court take upon itself the responsibility of carrying on the publication of a political newspaper by a receiver any longer than is absolutely necessary to prevent a sacrifice of the property.^ It is the duty of the receiver in such cases, and indeed in all cases where the effects of a business come into his hands, to proceed and sell the establishment without delay, but in the meantime, and until a sale can be effected, he may carry on the business as usual, so that the good will thereof may be secured to the purchaser, and the full value of the establishment realized by the partners, on such sale.^ Thus a vessel was run for two seasons, under the directions of a receiver, appointed on a bill filed to determine the rights of part owners, but the court holding it improper that such operations should be conducted for so long a time under the direction of the court, ordered the vessel to be sold.^ To cancel policies and re-insure risks. The receiver of an insolvent insurance company may cancel policies, with the assent of the assured, and refund proportionate parts of the premiums,^ but he is not authorized to reinsure for risks already assumed by the company, and to pay the new pre- mium out of the assets of the company. His proper course, in such case, is to refund the unearned portion of the premiums received, where the assured are willing to do so, and let them re-insure for themselves.^ Possession of property, how obtained and preserved. A receiver is under no obligation to attempt to take property from the possession of a third person, or even from the defendant himself, by force, without an express order of the court directing him to do so. If the property is in the possession or under the control of the defendant, the court (or referee to whom the mat- ter is referred) will decide what property is so in his possession, or under his power or control, and will direct the defendant to ' Const V. Harris, 1 Turn. & Russ., 518. ' Martin v. Van Schaick, 4 Paige, 480. ' Edw. on Receivers, 142 ; Jackson v. He Forest, 14 How., 81. ' Crane v. Ford, Hopk., 114. = 2 R. S. (3d ed.), 565. ^ Matter of the Croton Ins. Co., 3 Barb. Ch. R., 642. GENEKAL POWERS AND DUTIES. 381 deliver it up to the receiver, or allow Mm to take possession of it, and the defendant must obey the order on pain of contempt, unless he is relieved on appeal or application to the court to review the decision. If the property is in the possession of a third person claiming it, the receiver must either proceed by suit against him, or the complainant must make him a party to his suit, and apply to have the receivership extended to the property in his hands, so that an order may be made for its delivery, and may be enforced by process of contempt.^ Where a defendant refused to deliver over his property to the receiver, and was de- creed in contempt, he was ordered into custody, and the court gave liberty to have his property sequestrated and delivered to the receiver, and to prohibit all persons who had any such prop- erty or effects in their possession, or under their control, or who were indebted to the defendant, from delivering such property or effects, or paying debts to him or on his order, or applying the same to his use, after publication of notice of the order, on pain of contempt.^ When the receiver has obtained possession of the property he will be protected by the court. The court will assume exclusive jurisdiction over it, and, as has been already mentioned, will not suffer the receiver to be sued for taking the property.^ And it will even protect the rights of a receiver by a summary proceed- ing against a person, not a party to the suit, who seizes upon property which has never been in the possession of the receiver or his agents.* If the estate over which the receiver is appointed is at a distance, he may appoint his own agent.^ He may also appoint agents to keep the property, or take care of it, in all cases where, from the circumstances in which it is placed, it is impracticable for the receiver to exercise his personal supervision over it. The prior 1 Parker v. Browning, 8 Paige, 389. "People, ex rel. Lovett, v. Rogers, 2 Paige, 103. ' Ante, page 376 ; Parker v. Brown, 8 Paige, 388. * Albany City Bank v. Schermerhorn, 9 Paige, 372 ; Ames v. Trustees of Birk- enhead, 20 Hare, 332. 5 V. Lindsay, 15 Ves., 91. 382 EECEIVERS. direction of the court to that eifect, however, would be no more than a proper precaution. Application to the court for instructions. It has already been mentioned that a receiver is the [mere instrument or hand of the court, and that he has a right at any- time to apply to the court for instructions in relation to the property in his hands, and his duty in regard to it.^ It is said, however, that the receiver ought not himself, of his own motion, to make any application to the court. If he finds himself in circumstances of difficulty he should apply to the plaintiff" to make the necessary application, and on his default should be considered as properly applying to the court.^ Liability and duty as to trust funds. A receiver should keep the exclusive control of the trust funds. If he do not, and loss ensue, he will be liable.^ He must make good to the estate any rent, or any other thing, which has been lost to the estate by his neglect.* He is liable to account and pay over the amount of any benefit or interest which he may make of the moneys in his hands.^ It is the duty of the receiver to keep trust funds entirely sepa- rate and distinct from his own moneys ; and if he loans out any of them, even temporarily, it is a breach of trust.^ If he mixes the trust funds with his own he is chargeable with interest, and if he employs them in trade he will be charged either with simple interest or the profits of the trade, as the party in interest may elect.' If he acts as counsel in the business of the trust he is not entitled to special remuneration beyond taxable fees as counsel, his regular commissions being intended by law to be a full com- pensation for his personal services.^ Discharge of receiver and appointing a new one. A receiver may be discharged by the court for misconduct or 1 Ante, page 376 ; Ourtiss v. Leavitt, 1 Abbott, 274. ^ Edw. on Receivers, 158, and cases cited. 3 Edw. on Receivers, 573. ' In re Skerretts, 2 Hog., 192. ' Shaw V. Rhodes, 2 Russ., 539. •^ The Utica Ins. Co. v. Lynch, 11 Paige, 520. ' Ibid. ^ Matter of the Banlc of Niagara, 6 Paige, 213. IN WHAT CASES APPOINTED. 383 otherwise on the application of any party interested, and a new one appointed. He may also be discharged on his own applica- tion, but not unless he shows reasonable cause, especially where it might inconvenience parties in interest and third persons. The pressure of his own business and the difficulties of the duties of the trust are not sufficient reasons.^ The discontinuance of the suit is not a discharge of the receiver* but if the rights of the defendant require he will be continued, and the defendant will be required to file a bill forthwith to settle his rights.^ SECTION II. IN WHAT CASES EECEIVEES WHX BE APPOIISTED. Prior to the adoption of the Code, there was no statutory pro- vision which professed to define the powers of a court of equity in the appointment of receivers. But a long line of decisions, and a uniform course of practice in the Courts of Chancery, both in this country and in England, had marked out the jurisdiction asserted by the courts in this respect, and defined, with tolerable accuracy, the cases in which this extraordinary power would be exercised. By section 244, the Code attempts, in a few general statutory provisions, to condense the whole body of the practice, both in law and equity, in this respect ; and to mark out the general rules governing the appointment of receivers. The section speci- fies five distinct cases in which receivers may be appointed, which, as amended by the Legislature of 1858, are as follows : " A receiver may be appointed, \ "1. Before judgment, on the application of either party, when he estabUshes an apparent right to property which is the subject of the action, and which is in the possession of an adverse party ; and the property, or its rents and profits, are in danger of being lost, or mate- rially injured or impaired; except in cases where judgment upon failure to answer may be had without application to the court. ' Beers v. The Chelsea Bank, 4 Edw., 277. * Whiteside v. Prendergast, 2 Barb. Ch. R., 471. 384 RECEIVERS. " 2. After judgment, to carry the judgment into effect. " 3. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been retui-ned unsatisfied, and the judg- ment debtor refuses to apply his property in satisfaction of the judgment. " 4. In cases provided in this Code, and by special statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights; and in like cases of the property within this state of foreign corporations. " 5. In such other cases as are now provided by law, or may be in accordance with the existing practice, except as otherwise provided in this act." It will be observed, that so far as a receivership is regarded as a provisional remedy, the first and last of the above subdivisions are the controlling features of the statute. The fourth is special, relating only to corporations, and the second and third apply only to proceedings after judgment, which we shall have occasion to consider when we come to the subject of the execution and the carrying into effect of the judgment. The first subdivision of the section establishes pretty nearly the general doctrine of the old Court of Chancery in the appoint- ment of receivers. And though it has been claimed that it ex- tended the powers of the court, and that the words " an afparent right " were intended to confer a wider discretion than existed before, yet our courts have generally not been disposed to go beyond the well established practice in Chancery, and the rules governing that practice have, as a general thing, been considered as still applicable. Thus, in a recent case,' on a motion for an injunction, and the appointment of a receiver against an incorporated company, it is said that such appointment should not be made unless at least there is the strongest probalnlity that the court will ultimately decide that the plaintiff is entitled to the relief demanded, and unless it also appears that the property is in danger of being lost, or materially injured, or impaired, before the full investigation and final deter- mination of the case. This is perhaps stating the rule more ' Hamilton v. The Accessory Transit Co., 3 Abbott, 255. IN WHAT CASES APPOINTED. 385 strongly against the appointment of a receiver than it was under- stood to be under the former equity practice. Thus, it is said, a receiver will not be appointed where the rights as between the plaintiff and defendant are doubtful, if the defendant has obtained the legal estate without fraud, and no case of danger as to his security is alleged.^ So, in other cases, where the plaintiff's right is denied or doubtful, or is to be established by an issue ; as, for example, where a devisee claims under a will, the validity of which is disputed by the heir, and an issue framed thereon, a receiver would not be appointed unless the claimant satisfied the court that there was reasonable probability of his succeeding in the issue, and that the property would be endangered by being left in the possession of the heir-at-law.^ The Code, in subdivision 1, above, authorizes the appointment of a receiver only when either party " establishes an apparent right," &c. This language is not very definite, for it is well remarked,^ that the plaintiff may show on his pleadings and depositions an apparent (prima facie) right, and so may the defendant, and all this is likely so to appear until the end of the trial ; and it is difficult to get at the establishment of right (where the plaintiff's claim is controverted or denied), until we come to certainty embraced by a judgment. The true construction of the Code, no doubt, requires nothing more than the adoption of the ordinary Chancery practice, and the application of the sound discretion of the court to each par- ticular case as it arises, under the well established rules which have heretofore obtained in courts of equity.^ While subdivision 1 provides a general rule for the appoint- ment of receivers, provision is made for cases not coming within its purview by subdivision 5, which allows the appointment of a receiver " in such other cases as are now pro>dded by law, or may be in accordance with the existing practice, except as other- wise provided in this act." * ' Edw. on Receivers, 29. ^ Clark v. Dew, 1 Rubs, and My., 103. ' Edw. on Receivers, 364. * Verplanck v. Caines, 1 John. Ch. R., 57 ; 2 Story Bq. Juris., § 831. 5 Code, § 244, sub. 5. V. S. 49 386 EECEIVEES. This preserves the old practice, and it may be assumed, there- fore, that the practice, as respects the cases in which receivers are appointed in equity suits, generally, is substantially un- changed. In the next place, I shall briefly specify some of the cases in which this power is exercised ; and do so in the same order in which the subject of injunctions was considered, namely, first, in what cases a receiver will not be appointed; second, in what cases a receiver will be appointed. 1st. In what cases not appointed. It has been just remarked, that a receiver will not be appointed where the validity of the plaintiff's claim is to be determined by an issue.* Nor will a receiver be appointed unless there is danger that the property will be " lost or materially injured or impair- ed ;" and this fact is important as the basis of an application for a receiver under section 244 of the Code.^ A receiver of the rents and profits of lands is not usually ap- pointed against the legal title, though the court will do so in cases where fraud in obtaining a conveyance is clearly proved ; and of imminent danger if the intermediate possession should not be taken under the care of the court ; and of strong ground of title in the claimant.^ In mortgage cases a receiver will not be appointed if the vali- dity of the mortgage is impeached ; * nor, even if the plaintiff's apparent right be established, unless it also appear that there is a clear inadequacy of security, or the rents have been expressly pledged for the debt ; ^ nor even then, if the defendant in posses- sion will give security to account for the rents and profits, as the court may direct, in case there should be a deficiency on the sale under the decree.^ A receiver will not, unless under special cir- ' Ante, page 385. 1 Barb. Ch. Pr., 655. ^ Hamilton v. The Accessory Transit Co., 3 Abbott, 355. ' Mordaunt v. Hooper, 3 Amb., 311 ; Haguenin v. Basely, 13 Ves., 105 ; Lloyd V. Passingham, 16 Ves., 59. ^ Leahy v. Arthur, 1 Hogan, 92 ; Darcy v. Blake, 1 MoUoy, 248. ^ Warner v. Gouverneur's Executors, 1 Barb. S. C. R., 36 ; Shotwell v. Smith, 3 Edw., 588. See Edw. on Receivers, 356, et seq. ' Sea Ins. Co. v. Stebbins, 8 Paige, 565. IN WHAT CASES APPOINTED. 387 cumstances, be appointed of chattels or lands against a mortga- gee in possession.^ Nor where the mortgage is not wholly due, and the mortgagee has neglected to take a pledge of the rents and profits of the whole premises to keep down the accruing interest in the meantime.^ Nor will a receiver be appointed over the whole property where . the mortgaged premises can be sold in parcels, so that a sale of part will satisfy the debt in arrear, with costs, and the entire debt is not payable.^ And where the validity of the mortgage is impeached, on probable grounds, or from length of time, or other circumstances, it should be presumed to be paid off, a receiver will not be appointed.* Executors, administrators, and other trustees, entrusted by law with authority to collect and administer assets, will not be inter- fered with by courts of equity on slight grounds. Whenever, therefore, the appointment of a receiver is sought in such cases, it is necessary to establish, by suitable proofs, that there is some positive loss, or danger of loss, of the funds ; as, for instance, some waste or misapplication of the funds, or some apprehended danger from the bankruptcy, insolvency or personal fraud,^ misconduct or negligence of the executor, &c. Mere poverty of the party will not, of itself, constitute a sufficient ground ; but there must be other ingredients to justify the appointment;^ the unfitness of the person must be shown ; '' or there must be an abuse of the trust, or danger of insolvency existing or expected.^ A trustee, with power to sell lands to pay debts, is not to be controlled, unless under strong circumstances, and where the equitable title of the plaintifi"is apparent.' And where a corpora- tion is trustee, whether for charitable or other purposes, and its rights as trustee do not arise from the private acts of individuals, but from the original act or grant, on which its authority as trus- ' Edw. on Receivers, 53-55, and cases cited; Patten v. The Accessory Transit Co., 4 Abbott, 235. = Bank of Ogdensburgh v. Arnold, 5 Paige, 58. ' Quincy v. Cheesman, 4 Sand. Cii. R., 4Q5. * Siiepherd v. Murdock, 2 Molloy, 231 ; Darcy v. Blake, 1 Molloy, 247. ' See Ohautauque Co. Bank v. ^hite, 3 Seld., and cases there cited on page 252. = 2 Story Eq. Juris., § 836. ' Anonymous, 12 Ves., 4. « Middleton v. Dodwell, 13 Ves„ 266. " Edw. on Receivers, 35. 388 EECEIVEES. tee rests, there the court will not, without grave consideration, where the usual mode of dealing with the property has jiot been departed from, interfere by the appointment of a receiver.' Nor will a receiver be appointed over a trustee, merely because he mixes the trust funds with his own,^ but will be appointed if the trustee is violating his trust.^ A receiver will not ordinarily be appointed on a charge of inadequacy of price. If allowed, it must be where the inadequacy is so monstrous as to make it hardly possible that the transaction can stand.^ It is not usual to grant a receiver against a tenant in common. Even in case of any actual exclusion of one tenant in common by another, it is doubtful whether equity will appoint a receiver, though, it is said, that under special circumstances a receiver of a moiety of an estate, held or claimed in common, will be appointed." A receiver, it is said, will not be appointed on the application of one defendant against another.' Where a receivership is denied in such cases, the defendant, it would seem, should file a cross complaint against his co-defendants and the plaintiff, and move for the appointment of a receiver in such cross suit.'' Under the 1st subdivision of section 244 of the Code, a receiver, by the terms of the act, is to be appointed only when the property " is in the possession of the adverse party." And though subdi- vision 5 of the same section allows the appointment in " such other cases as are now provided by law, or may be in accordance with the existing practice," &c., yet this does not establish any essencially different rule. An adult plaintiff could not obtain an order for the appoint- ment of a receiver over his own estate.^ And in cases of partner- ship," it is held, that there is no ground for a receiver where the partner making the application has the property in his own pos- session and the other does hot object to such possession.' ' Edw. on Receivers, 36. 2 The Orphan Asylum Society v. McCartee, Hopk., 429. ' Boyd V. Murray, 3 John. Ch. R., 48. ^ Stillwell v. Wilkins, 6 Mad., 49. ^ Edw. on Receivers, 42-44, citing Hargrave v. Hargrave, 9 Beavan, 549. ' Halst. Dig., 178 ; Robinson v. Hadley, 11 Beavan, 614. ' See McOracken v. Ware, 3 Sand. S. C. R., 688. • Piers V, Latouche, 1 Hogan, 310. * Smith v. Lowe, 1 Edw., 33. IN WHAT CASES APPOINTED. 389 The principle upon which a court of equity interferes between partners, by appointing a receiver, is that such interference is proper only to facilitate the winding up and disposing of the concern, and dividing the produce. Therefore, as a general rule, a receiver will not be appointed of a subsisting and continuing partnership, unless it satisfactorily appears that the complainant will be entitled to have the partnership dissolved at the hearing.^ Nor merely because the partners quarrel.^ Nor where the claim of the plaintiff that he is a partner, is wholly denied by the defendant, and is not clearly established by the affidavits, and there is no proof that the fund is in danger, will the court grant a receiver or an injunction.^ It was at one time supposed that, since the Code, a simple con- tract creditor, where the debt was not disputed, might apply before judgment and execution returned unsatisfied for an injunc- tion and receiver against a debtor and his fraudulent assignee.* But this is contrary to the doctrine of a subsequent case decided in the Court of Appeals.^ A receiver will not be appointed where the party applying has been guilty of delay, and has lost a proper opportunity of advancing his cause." And generally the granting or refusing of an order appointing a receiver, is in the sound discretion of the court, to be exercised, not when it can merely do no harm,' but only when it will contribute to the object in view, which is the speedy getting in of the estate or property, and securing it for the benefit of the parties who shall appear to be entitled to it.^ 2d. In what cases appointed. Having thus generally glanced at the cases in which a receiver will not be appointed, let us in the next place briefly consider in ' Garretson v. Weaver, 3 Bdw., 385; Goodman v. Whitcomb, 1 Jac. and W., 589. 2 Henn v. Walsh, 2 Edw., 129. ^ Goulding v. Bain, 4 Sand. S. 0. R., 716. And see further on this subject, and as to injunction and appointment of receiver in cases of limited partnership, ante, page 351. * Mott V. Dunn, 10 How., 225, affirmed by general term, March, 1854. 5 Reubens v. Joel, 3 Kern., 488. " Edw. on Receivers, 49, 50. ' Orphan Asylum v. McCartee, Hopk., 435. " Story Eq. Juris., § 831 ; Verplanlf v. Gaines, 1 Johns. Ch. R., 57. 390 RECEIVERS. what cases a court of equity will allow a receivership, and take the fund or property into its own possession pending the litigation. The classes of cases in which this power is most usually exer- cised, are as follows : Creditors' suits, mortgage cases, partnership cases, executors and trustees, suits against corporations, and some miscellaneous cases, such as suits for specific performance, or by one tenant in common against another, and the like, which, how- ever, are not very common in practice. I have already alluded to some of these cases, and will now further consider each class of them only for the purpose of pointing out in what cases the court will interfere by the appointment of a receiver. Creditors' suits. Prior to the Code (which has established a more summary and expeditious remedy, by proceedings supplementary to the execu- tion, and which in most instances is equally available), a creditor's suit was the most usual case of the appointment of a receiver in this state. But, notwithstanding the Code, the creditor's bill, as it was called, is still in force, and may be resorted to against the debtor alone, or against the debtor and his fraudulent assignee, after the creditor's remedy at law is exhausted, that is, after a judgment recovered and execution returned unsatisfied.' Or, in case of a judgment in a justice's court, after it shall have beeu docketed in the county clerk's office, and an execution against the real as well as the personal property of the debtor returned unsatisfied.^ As under the old practice, so now, on a complaint by a creditor against his judgment debtor, on the return of an execution unsatis- fied, it is a matter of course to appoint a receiver, if the equity of the bill is not denied upon the hearing of the application f which should regularly be made on service of a copy of the bill and notice;* a temporary injunction being previously obtained, if any fraudulent transfer by the debtor is apprehended or threat- ened. And when such an injunction is in force, it is the duty of ' Collin V. Doughty, 12 How., 458 ; Parshall v. Tillou, 13 How., 7 ; Reubens V. Joel, 3 Kern., 488 ; overruling Mott v. Dunn, 10 How., 225. ' Crippen v. Hudson, 3 Kern., 167. " Bloodgood v. Clark, 4 Paige, 575. * Hart V. Tims, 3 Edw., 226. IN WHAT CASES APPOINTED. 391 the complainant to apply for a receiver, and the court will dissolve the injunction if he omits to do so.^ It is no objection to the application, that the defendant has not yet answered the bill, or that he denies that he has any pro- perty, or that he has property to the amount of $100 ; though it would be if he should make it appear that he had property previous to the return of the execution, which could have been levied on.^ But where the complaint is by the creditor against the debtor and his assignee to reach the assigned property, a receiver is not a matter of course, and v?ill be appointed only in cases of fraud,^ or where it is made to appear that the property, by reason of the insolvency of the assignee, or for some other cause, is in danger of being wasted or lost.^ In mortgage cases. The cases in which a receiver will not be appointed in mort- gage suits, have been noticed on a former page.* It may be here added, that a plaintiff is entitled to a receiver of the rents and profits of the premises in a foreclosure suit, where he can make it appear that the premises will not, upon a sale thereof, under the judgment, bring sufficient to pay the debt and costs, and the party who is personally liable for the mortgage debt, is irrespon- sible. And in the complaint or petition for the appointment of the receiver, the plaintiff must state that the premises are not of sufficient value to satisfy his debt and costs, and that the mort- gagor, or other person who is personally liable for the payment of the mortgage, is irresponsible or unable to pay the expected deficiency. He must also show who is in possession of the mort- gaged premises, as a receiver can be appointed only when the person in possession, by himself or his tenants, is a party to the suit.^ The possession of the tenant, who is not a party to the ' Osborn v. Heyer, 2 Paige, 342. 2 1 Barb. Oh. Pr., 660, citing Parker v. Moore, 3 Edw., 234 ; Browning v. Bettis, 8 Paige, 560 ; Fitzhugh v. Everingham, 2 Paige, 29 ; Bloodgood v. Clark, 4 Paige, 475. 3 Chautauqua Co. Bank v. White, 2 Seld., 252. < Haggarty v. Pitman, 1 Paige, 298. = Ante, pages 386, 387. " 1 Barb. Ch. Pr., 660; Sea Ins. Co. v. Stebbins, 8 Paige, 565; Bank of Og- densburgh v. Arnold, 5 Paige, 38. 392 EECEIVEES. suit, will not be disturbed by the appointment, but he will be ordered to attorn to the receiver.^ So a receiver will be ap- pointed in a suit to foreclose a mortgage on leasehold premises, and an assignee in possession of an insolvent mortgagor will be directed to pay to the receiver an occupation i-ent.^ Eeceivers in mortgage cases, however, are allowed with great caution, and only where there is a clear inadequacy of security, or the rents have been expressly pledged for the debt ; and it is laid down that the best criterion to test the inadequacy of the security is the amount of the rental.^ And in all cases, it seems, a receiver will be dispensed with if the defendant in possession gives security to account for the rents and profits, as the court may direct, in case there should be a deficiency.* If the complaint contain sufficient grounds for the appointment of a receiver, and is sworn to, the motion may be made on it alone, without presenting any petition.* In such case the com- plaint should allege the inadequacy of the premises to pay the amount due the holder, and the irresponsibility of the mortgagor, and pray for a receiver. It is well understood that such an officer will not be appointed on a mere allegation that the mortgaged premises are not an adequate security for " all just incumbrances thereon." ^ In partnership cases. The Court of Chancery held it to be a matter of course to appoint a receiver on a bill filed by one partner against another, or others, to close up a partnership concern, where the parties could not agree among themselves.' This was to be understood, however, with the qualification that it must be such a case as would authorize a decree for dissolution,^ and with the further ' 1 Barb. Ch. Pr., 660 ; Sea Insurance Company v. Stebbins, 8 Paige, 565 ; Bank of Ogdensburgh v. Arnold, 5 Paige, 38. = Astor V. Turner, 2 Barb. S. 0. R., 244. 3 Shotwell V. Smith, 3 Edw., 588. * Sea Ins. Co. v. Stebbins, 8 Paige, 565 ; Frelinghuysen v. Golden, 4 Paige, 204. = 1 Barb. Ch. Pr., 661. " Warner r. Gouverneur's Exrs., 1 Barb. S. C. R., 36 ; Edw. on Receivers, 356. ' Marten v. Van Schaick, 4 Paige, 479 ; Law v. Ford, 2 Paige, 310. ' Edw. on ReceiTers, 308, and cases there cited ; Henry v. Walsh, 2 Edw., 129 ; Garretson v. Weaver, 3 Edw., 385, IN WHAT CASES APPOINTED. 393 qualification that the partner applying has not the undisputed possession of the property.' The court would not appoint a receiver of any partnership concern unless the suit was so framed that a decree might be made, either that the concern should be carried on according to the terms of an instrument which, by the agreement of the parties, regulated the mode of its being carried on, or that it should be wholly put an end to.^ The foregoing general and well established equity principles, have been fully recognized since the Code;^ and it is held that, where a partnership is dissolved, or either party is entitled to have it dissolved, on a complaint to wind up such partnership, a receiver will be appointed where the parties cannot agree, as a matter of course, on the application of either party. In such case, while the court may give the receiver power to carry on the business tem- porarily, it will not take upon itself the responsibility of carrying it on for any length of time ; and where a compljiint asks merely for the appointment of a receiver to collect debts and sell the partnership property, he cannot on motion, ask the appointment of a receiver to carry on the partnership business.^ The rules which prevail respecting the appointment of a re- ceiver in a suit between partners are said to be applicable in a suit between the representatives of a deceased partner and the surviving partners.* This is not strictly so, for the appointment of a receiver is not, in such cases, a matter of course. It is more like the rule formerly recognized in the English Chancery courts, where a receiver in partnership cases was not appointed merely on the ground of dissolution, but there must be some breach of the duty of a partner, or of the contract of partnership.^ Thus, surviving partners have a right to carry on a joint business, in the nanie of the late firm, or in any other name, and limit it to winding up the business of the late firm ; and, therefore, the court will not appoint a receiver and deprive a surviving partner of that right if he be responsible, and acts in good faith. And the mere ■ Smith V. Lowe, 1 Edw., 33. 2 Const V. Harris, Tur. and Russ., 517 ; S. C, 5 Bligh, N. S., 496. 2 Jackson v. De Forest, 14 How., 81. * Ibid., per Paige, J. s Coll. on Part., 197 ; Edw. on Receivers, 309. « Harding v. Glover, 18 Ves., 281. V. s. 50 394 EECEIVEES. fact that he resides abroad, is no reason for interfering with the exercise of this right through a competent agent.^ Such right will not be interfered with in the absence of dishonesty or unfit- ness, and when only slight irregularities are proved, and there has not been sufficient time to settle the afiairs of the partnership.^* It will only be interfered with on the ground of faithlessness or insolvency.^ Where one of two partners made a general assignment without preferences, and without the knowledge or suspicion of the other, a motion for a receiver in a suit brought to set aside the assign- ment, there being no charge that the assignee was not fully responsible, nor any reason to believe the fund in his hands inse- cure, was denied.* Such an assignment, however, is held to be void, and on a decree setting it aside a receiver will be appointed.* And in a suit brought by one partner against another on an assignment with preferences made by one without the knowledge or assent of the other, the fact of such assignment not being denied in the answer, a motion founded on the pleadings for a receiver was granted.^ Where a partnership is dissolved by the insolvency of one part- ner, the other partner has not the sole right to wind it up. The insolvent partner may file his complaint and obtain a receiver ; but in such cases it has been held that the solvent partner ought to be appointed receiver when his capacity and integrity are unquestioned, and on giving the necessary security.'' Where all the partners are dead and a suit is instituted between their representatives, a receiver will be appointed as a matter of course.' A receiver will be appointed where any of the partners seek to exclude another from taking that part in the concern which he ' Evans v. Evans, 9 Paige, 178. ^ "Walker v. House, 4 Md. Ch. Dec, 39. ' Jacquin v. Buisson, 11 How., 394. " Hayes v. Heyer & Ketchum, 4 Sand. Ch. R., 485. ^ Same case on appeal, 3 Sand. S. 0. R., 293 ; Deming v. Colt, 3 Sand. S, C. R., 284 ; Paton v. Wright, 15 How., 488, 489, and cases cited by Hoffman, J. " Rutter V. Tallis, 5 Sand. S. C. R., 610. ' Hubbard and others v. Guild, 1 Duer, 662. " Phillips V. Atkinson, 2 Br. Ch. U., 272 ; Edw. on Receivers, 329. IN WHAT CASES APPOINTED. 395 is entitled to have, and this applies as well to a period when the ordinary course of trade is going on as to the time of winding up the affairs after the determination of the partnership.' A receiver will be appointed where persons have a share in the profits of a business, and the party who agreed that they should have such share, makes a subsequent assignment of the debts of the business to a third person.^ A receiver will be appointed of real property which has been held in severalty, if it has been treated as partnership property, in an action by one partner for a settlement of the concern.^ If, after the dissolution of a partnership, any one of the part- ners makes any use of the partnership property inconsistent with the winding up of its affairs, it is a fraud on the copartners, and on the creditors of the partnership, and a court will interfere and take the property out of the hands of such partner by the appoint- ment of a receiver.^ A regular judgment obtained on default against partners, where one or more, but not all, have been served with process, binds the property of the firm ; and in a suit in the nature of a creditor's bill, when properly brought, a receiver may be appointed of the partnership assets.* It was the practice in equity, and still is in the Supreme Court, that where a limited partnership becomes insolvent, and the mem- bers thereof neglect to place their assets in the hands of a proper and responsible trustee, to be distributed among all the creditors of the firm ratably, in proportion to the amount of their several debts, a creditor, though he had not proceeded to judgment and execution, may file a bill on behalf of himself and all other credi- tors, to have the copartnership assets distributed ratably among all the creditors, on the ground that such assets were a tru^ fund ; and in such suit may have an injunction and a receiver appointed.^ ' Edw. on Receivers, 329 ; Wilson v. Greenwood, 1 Swanst., 481 ; Williamson V. Wilson, 1 Bland. Ch. R., 418. ^ Edw. on Receivers, 336. 3 Ibid. Smith v. Danvers, 5 Sand. S. C. R., 669. ■• Gardner v. Trustees of Canajoharie, 2 Barb. S. 0. R., 625. 5 Paton V. Wright, 15 How., 481. ^ Innes v. Lansing and others, 7 Paige, 583 ; Whitewright et al. v. Stimpson, 2 Barb. S. C. R., 379. 396 RECEIVEES. The same rule has been held applicable in similar cases in a suit by a general creditor of insolvent general partners ; > but to authorize it the complaint must be by one or more creditors on behalf of themselves and all others similarly interested.^ Against executors and trustees. Courts of equity exercise jurisdiction over executors and ad- ministrators on the ground of their being trustees. In such cases, and in all cases of trusteeship, a receiver v^ill be appointed where there is a breach of the trust. There must be strong grounds to induce the court to interfere, especially before answer, and it must be made to appear that there is danger to the property from the circumstance of the insolvency, existing or expected, negli- gence, misconduct, or wasting.^ A receiver was granted before answer against an executor charged with being insolvent who did not effectually answer the fact of such insolvency ."' So if an executor turns over all the assets of the estate to his co-executor, and leaves the estate, and the latter is intemperate and insolvent.' But the mere circum- stance that the executor is in mean circumstances, is not sufficient.* In suits against corporations. There are various cases provided by special statutes in which a receiver may be appointed of a corporation which has been dis- solved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights. These are not effected by the Code of Procedure ; '' and by a recent amendment of section 244 of the Code,^ receivers may also be appointed " in like cases of the property within this state of a foreign corporation." Receivers of the property of a corporation are by stS,tute au- thorized to be appointed whenever a judgment at law, or a decree ' Dillon V. Horn, 5 How., 35. " La Cliaise and Fanche v. Lord et al., 10 How., 462. 3 Middleton v. Dodswell, 13 Ves., 226 ; Scott v. Beecher, 4 Price, 346 ; Lang- ley V. Hawk, 4 Mad., 46; Jenkins v. Jenkins, 1 Paige, 243; Orphan Asylum V. McCarter, Hopk., 429. * Scott V. Beecher, 4 Price, 346 ; ex parte, Walker, 25 Ala., 81. = Ex parte, Galluchat, 1 Hill Ch. R. (South Car.), 150. ' Anon., 12 Ves., 41 ; 1 Barb. Ch. Pr., 663. ' Code, § 47l", 244, sub. 4. * Amendments of 1858. IN WHAT CASES APPOINTED. 397 in equity, is obtained against it, and an execution has been returned unsatisfied, in whole or in part, upon the petition of the person obtaining the judgment or decree, or of his representative.' Also when corporations having banking powers, or the power to make loans on pledges or deposits, or authorized by law to make insurances, shall become insolvent or unable to pay their debts, or have violated their charter, or any other statute binding upon them, the court may, upon the application of the attorney- general, or of any creditor or stockholder, appoint one or more receivers thereof.^ Such receiver may also be appointed in certain cases at the instance of the bank commissioners.^ The court is also authorized, upon the voluntary dissolution of a corporation, to appoint one or more receivers of its estate or effects.* The receiver appointed on the application of the judgment creditor against a corporation, when proceedings are commenced against it after execution on a judgment returned unsatisfied, is like any other receiver appointed merely to protect the fund, and has no authority except what is conferred upon him by order of the court.^ But a receiver appointed in the cases above referred to, of corporations having banking powers, &c., becoming insol- vent or violating their charters, is something more than a mere creditor suit receiver; he becomes absolutely invested with all the effects of the corporation ; he is a statutory assignee, and is vested with nearly all the powers and duties of the assignee of an insolvent debtor.^ A receiver of an insolvent company is trustee, not only for the stockholders, but for the creditors also, and may assert their rights when affected by the fraudulent or illegal acts of the insti- tution.'' Where the holders of a majority of the stock of a corporation neglect to choose officers to take charge of the property of the ' 2 K. S. (3d ed.), 559, § 36. =2 R. S. (3d ed.), 559, §§ 39, 41. 3 1 E. S., 610, § 18 ; 614, § 6. ■• 2 E. S. (3d ed.), 564. ' Mann v. Pentz, 3 Com., 415. * Verplanck v. Mercantile Ins. Co., 2 Paige, 452. ' Gillett, Eeceiyer, &c., v. Moody, 3 Com., 480; Tallmadge v. Pell, 3 Seld., 328. 398 KECEIVEES. corporation, a receiver will be appointed upon the application of the owners of a minority of the stock, to take possession of the eftects of the corporation, and to preserve the same for the benefit of the stockholders generally." In other cases. Some miscellaneous cases of the appointment of the receiver, not referable to either of the foregoing heads, have already been noticed. It may be added, that the receiver may, in all cases, be appointed where a fraud is shown in the defendant, and the fund is in danger of being wasted ; and also where the defendant admits he is trustee for the plaintiff;^ or to receive the rents and profits of an estate for the benefit of an executory devisee until the vest- ing of an estate.^ And where lands are charged with the payment of an annual sum, a receiver may be appointed as a means of enforcing payment.* A receiver has been appointed of a lunatic's estate where no one acted as committee ; ^ also in other cases of trusteeship where any of the trustees refuse to act ; ^ also, in some cases of suits brought to enforce the specific performance of a contract to pur- chase an estate against the purchaser ;'' and in various other cases which it would not be practicable to enumerate here. SECTION m. WHO MAT BE EBCEIVBES. The appointment of a receiver, heretofore usuaHy made by a master in Chancery, on a reference to him for that purpose, is now, commonly in practice, made by the court. And the court acts upon the principle which governed the master in making such appointment, namely, by appointing such person as it con- siders most fit, without regard to the fact of his being recom- mended or proposed by the one or the other of the parties.' It is ' Lawrence v. The Greenwich Fire Ins. Co., 1 Paige, 587. * Malone v. Malone, 1 Molloy, 27. ' Rogers v. Ross, 4 John. Ch. R., 388. * Herrop v. Hungerford, 1 Molloy, 26 ; 1 Barb. Ch. Pr., 664. = 1 Barb. Ch. Pr., 665. ». Ibid. ' Ibid. Hall v. Jenkinson, 2 Ves. and B., 225. « 1 Barb. Ch. Pr., 666. WHO MAY BE APPOINTED. 399 not unusual, however, for the parties, especially the moving pai-ty, to propose the names of one or more fit persons ; and, unless some objection be made to appear, the receiver is selected from such persons. There are certain descriptions of persons who, however other- wise competent to act, are disqualified by reason of their relations to the parties, or the subject matter, &c. Such, for example, are attorneys or solicitors in the cause, or under a commission of lunacy, or solicitor for the guardian of an infant.^ And although attorneys and solicitors as such are not disqualified, yet, when appointed, they cannot act as solicitor in any of the proceedings which may be necessary to be taken in their ofiicial character.^ Nor should the next friend of an infant be appointed ; and this has been so held, although there was a consent that he should be appointed.^ Nor even, it is said, should the son of a next friend be appointed.* Neither, generally, will a trustee to let and manage an estate, whether he is a sole trustee, or jointly with others, be appointed receiver, if any other can be procured.^ Unless, perhaps, when he will consent to act without emolument, or w^here all the par- ties are before the court and consent to the appointment.^ It is said also that a mortgagee of property will not be appointed receiver over it ; because if he receives compensation, he is receiv- ing more than legal interest ; and if he consent to act without compensation, his course of policy might be an injury to the mortgagor.'' It has been decided that it is improper for an officer of an insol- vent corporation to be the receiver of its property.' But, under the act of voluntary dissolutions of corporations, any of its officers or stockholders can be appointed receiver, if not otherwise dis- ' 1 Barb. Oh. Pr., 666 ; Garland v. Garland, 6 Ves., 137. 2 Edw. on Receivers, 67 ; Wilson v. Poe, 1 Hogan, 322. 3 Stone V. Wishart, 2 Mad. Oh. R., 64. ^ Edw. on Receirers, 68, citing Taylor v. Oldham, 1 Jac, 527. s Sykes v. Hastings, 11 Ves., 363. « Brodie v. Barry, 3 Meriv., 695 ; Edw. on Receivers, 73. ' Edw. on Receivers, 70, and cases there cited. ^ The Attorney-General v. The Bank of Columbia, 1 Paige, 517. 400 EECEIVEES. qualified.' And a stockholder of a bank which is complainant in the suit is not disqualified from acting as receiver.^ A party to the suit cannot propose himself as receiver without leave of the court.^ And though as a general rule the court will appoint an indifferent person, and not a party to the cause, yet a party is not absolutely disqualified ; and, indeed, there are some cases in which a party to a suit, if otherwise unobjectionable, should be appointed in preference to any one else ; as in the case mentioned on a former page where an insolvent partner has filed his complaint for a dissolution of the copartnership, the solvent partner should be appointed when his capacity and integrity are unquestioned, and on giving the necessary security.^ The same would be true if a receiver should be appointed against a sur- viving partner. And generally in partnership cases, one of the partners may be appointed receiver with the consent of the others. But a party in a cause becoming receiver is entitled to no pound- age.^ The court, however, instead of making the appointment, may refer it to a referee (the practice on which will be noticed in the following section), to make such appointment, and vC^hen so made, it will not be disturbed, because the court may think a better selection might have been made among the several candidates proposed. Such was the former practice ; ^ and it is, no doubt, still the same. The appointment made by the referee will not be set aside unless the person selected is legally disqualified, or his situation is such as to induce a belief that the interests of the parties will not be properly attended to by hira.'' 1 2 R. S., 468, § 66. Matter of the Eagle Iron Works, 8 Paige, 385 ; S. C, 3 Bdw., 385. ' Bank of Monroe v. Schermerhorn, Clarke, 366. ' Edw. on Receivers, 73. ■* Hubbard and others v. Guild, 1 Duer, 662. = Edw. on Receivers, 74, 75. « Matter of the Eagle Iron "Works, 8 Paige, 388. ' Md. 1 Barb. Oh. Pr., 667. APPOINTMENT OF, WHEN AND HOW MADE. 401 SECTION IV. APPOINTMENT OF EBCBIVEK, "WHEN AND HOW MADE. The Code, which indicates generally the cases in which a re- ceiver will be appointed (section 244), has not prescribed any par- ticulars in regard to the manner of such appointment. Hence, the customary practice of the Court of Chancery in this respect, and the rules and decisions regulating the same, are in the main applicable to this subject.^ At what time appointed. By the section of the Code (section244) above alluded to, it will be observed that a receiver, may be appointed in the cases prescribed both before judgment, and after judgment. He may be appointed at any time, and at any stage of the action before judgment, whenever aproper case is brought before the court. But in strict analogy with the old practice, he cannot be appointed before action actually commenced by the service of process.^ For the court has not jurisdiction to deprive a man who is not present to defend himself of the possession of his estate.^ Nor is it usual to appoint a receiver before answer, especially where one is not prayed for in the complaint. Nor unless it clearly appear that there' is danger to the property, or fund, by the insolvency of the party having possession of it, or from some other cause.^ But when it is made to appear, by affidavit, in sup- port of the complaint, that justice requires it, or that a complain-, ant has an equitable claim to the property in controversy, and that a receiver is necessary to preserve the same from loss, one will be appointed. Suits against executors, wasting the assets ; or in favor of infants entitled to real estate and requiring the protec- ' The appointment of receivers in proceedings supplementary to the execu- tion is not now referred to. This is a part of the practice peculiar to itself and regulated by the Code ; and though it is designed to take the place of the former equity creditor's bill, is not exclusively, as regulated by the Code, an equity pro- ceeding. * Kattenstroth v. Astor Bank, 2 Duer, 632. 2 Tanfield v. Irvine, 2 Russ., 151 ; Stratton v. Davidson, 1 Russ. and My., 184. * West V. Swan, 3 Edw., 420. See People and Taylor v. Mayor of N. Y., 8 Abbott, 7. V. s. 51 402 RECEIVERS. tion of the court ; or between partners, are instances of this kind.^ But an application for a receiver, if denied at one stage of the suit, may, on a proper state of facts, be renewed at another. Even after a hearing and rehearing a party may be entitled, on the cause coming on for further directions, and upon showing a new state of facts, to renew an application for a receiver.^ But a receiver will not in general, even at the hearing, be appointed without a special application.'' Application, how made. The application for a receiver is by motion, at a special term of the court, and must be made by a plaintiff. A motion by a de- fendant for a receiver is irregular ; ■* unless, perhaps, in case of a cross-complaint filed; or where a plaintiff has obtained an in- junction which ties up the property, and unreasonably delay ap- plying for a receiver, it being his duty to move immediately or without unnecessary delay.® On what papers made. A motion for a receiver is generally made on the complaint and answer ; affidavits may also be used in support of the complaint. It seems also, that it may be made on petition if made before complaint actually served. It may also be made on affidavits before answer, in the cases cited supra, where the plaintiff can clearly satisfy the court that he has an equitable claim to the pro- perty in controversy, and that a receiver is necessary to preserve the same from loss.^ Notice and service of papers. The motion is special, and notice of it must be given to all necessary and interested parties.' There are cases, however, in • 1 Barb. Oh. Pr., 667, 668, citing Bloodgood v. Clark, 4 Paige. 577 ; Osbom V. Heyer, 2 Paige, 343; Metcalf v. Pulvertoft, 1 Ves. and B., 180. ' Ibid. Attorney General v. Mayor of Galway, 1 MoUoy, 95. ^ Boylan v. Byrene, 1 MoUoy, 29. ' Robinson v. Hadley, 11 Beavan, 614. 5 Waters v. Taylor, 15 Ves., 10. ' Edw. on Receivers, 77, Duckworth v. Trafford, 18 Ves., 283. ■^ 2 Brown's Cb. Pr., 77 ; Devoe v. Ithaca & Owego R. R. Co., 5 Paige, 521. APPOINTMENT OF, WHEN AND HOW MADE. 403 which an application may be made and granted without notice, even before the time for the defendant to answer has expired. Thus in a case of emergency, as for example, where the injury occasioned by the delay of giving notice v?ould be irreparable ; ^ or where the defendant is unknown, or is an absentee and during the pendency of the publication of the summons against him, to prevent the property from wasting or being removed beyond the jurisdiction of the court, a receiver may be ap- pointed ex 'parte? So also where a defendant has fraudulently withdrawn himself out of the jurisdiction of the court to avoid the service of process.^ And a defendant who is in contempt, although he may have appeared in the action, is not entitled to notice of motion for a receiver.* The notice must express shortly, but clearly, the object of the application ; for, in general, the court will not extend the order beyond the notice.^ The notice is to be served like ordinary notices ; and where affidavits are used, they should, of course, verify such facts and circumstances as are deemed to constitute the necessity for the appointment ; and a copy of them be served with the notice.^ If the complaint has not already been served, and it is intended to move also on that, a copy should be served with the notice. And if the application be ex -parte, the complaint or petition should set forth the particular -circumstances which render such sum- mary proceedings necessary.'' Instead of a notice of motion, however, an ex parte order to show cause may be obtained, as in injunction cases, on the papers intended to be used on the motion, and copies of such papers, and of the order to show cause served on each of the defendants as in other cases. These are the general features of the former practice as to notices of such motions; and the Code of Procedure has not ' People V. Norton, 1 Paige, 17 ; Gibson v. Norton, 8 Paige, 481. ' Sandford v. Sinclair, 8 Paige, 373. = 1 Barb. Oh. Pr., 669. ■• ritzpatrick v. Hawkshaw, 1 Hogan, 82. ' Edvr. on Rec, 77. ' Ibid. Goodyear v. Betts, 7 How., 187 ; Austin v. Chapman, 11 Leg. Obs., 103. '■ Verplanck v. Mer. Ins. Co., 2 Paige, 438. 404 EECEIVEES- altered the practice in the appointment of receiver, so far as notice to parties to be affected is concerned.^ Motion, how made and opposed. The motion, whether made on regular notice, or on an order to show cause, is to be brought on and conducted like any other motion at a special term of the court, in a county in the same judicial district, or county adjoining the county where the place of trial is laid. If the motion be made after complaint served, and before answer, the defendant may use his answer as an affidavit ; and so also where the plaintiff has affidavits in support of his complaint, the defendant may read depositions/ But, though affidavits- may be read in support of the complaint, they cannot be read to enlarge the case made by it,^ and, it is said, that affidavits are not admissible to contradict an answer on a motion for the appoint- ment of a receiver.* In a petition for the appointment of a receiver of mortgaged premises in a foreclosure suit, the complainant must state that the premises are not of sufficient value to satisfy his debt and costs, and that the mortgagor, or other person who is personally liable for the payment of the mortgage debt, is irresponsible, or is unable to pay the expected deficiency. He must also show who is in possession of the mortgaged premises; because a receiver can only be appointed where the person in possession of the mortgage premises, by himself or his tenants, is a party to the suit.* And in an action for lands, where the plaintiff shows an apparent right, and the party in possession has no legal title, and the rents and profits are in danger of being impaired, a receiver may be appointed in the first instance. And, where some of the defendants in possession are irresponsible, and before the com- mencement of the action, the rents and profits are in danger of being lost, it is no answer to the application that, since the com- mencement of the action, the responsible defendants, who have ' Kemp V. Harding, 4 How., 178 ; Dorr v. Noxon, 5 How., 29. = Bdw. on Receivers, 78. ' Hayes v. Heyer, 4 Sand., Oh. R., 485. ' Edw. on Receiver, 78. = Sea Ins. Co. v. Stebbings, 8 Paige, 565. APPOINTMENT OF, HOW MADE. 405 clearly no title, have taken measures for their collection and pre- servation .^ If an order to show cause against the appointment, appears to have been served before the action was commenced, the motion to appoint a receiver will be denied as irregular.^ Order of the court appointing receiver. According to the former practice, the court itself would either appoint the receiver, or refer it to a master to do so, or to inquire and report to the court a suitable person to appoint. The same practice seems to be still substantially in vogue, and it has been held to be the duty of the court, in regard to the mode of appointment, whether by the court itself, or by a master (referee), to adhere to the rules and practice of the Court of Chancery, in like cases, so far as consistent with our present mode of proceeding, and that an appointment in the old mode by a referee, is good.^ The most usual mode of appointment, however, is by the court, either by naming the receiver on the spot, and prescribing the amount of security to be given, and the general terms of the order ; or, if the decision has been reserved on the argument, and is made afterwards, then by giving a brief abstract of the general form of the decision and order, leaving the name of the receiver blank, to be filled up by the judge himself, at chambers (if the parties do not otherwise agree), on notice of settlement of the order in the usual way by the moving party. What the order must contain, and how settled. It is well observed by Mr. Edwards in his excellent treatise on Receivers, that when the motion for a receiver has been made by counsel and allowed, care should be taken in drawing the order for his appointment, that it contain and explain fully his powers ; and he quotes the language of the master of the rolls in Crow v. Wood, 13 Beavan, 271 : "I am clearly of opinion that an order for a receiver ought to state so distinctly, on the face of it, over * The People and Taylor v. Mayor of New York, 8 Abbott, 7. 2 Kattenstroth v. Astor Bank, 2 Duer, 632. 2 Wetter v. Schlipper, 7 Abbott, 92. 406 EECEIVEES. what property the receiver is appointed, that a party may know what it is that the officer of the court is in possession of." ' It is of course perfectly competent and proper for the judge making the decision, if he thinks proper, to draw up the order himself, or to allow the order precisely in the shape submitted to him by the moving party, without submitting it to the opposite party. This is correct practice, no doubt, and is sometimes done. But the more usual practice is, if the order is special in any of its provisions, for the moving party to submit a copy to his oppo- nent, and if the parties do not agree upon the terms of the order, to apply to the judge, either at court or at his chambers, informally to settle the same. Or the party on whom the order is served, may prepare amendments, and the original and amendments are then submitted to the judge (not the clerk of the court as for- merly^) for settlement. The moving party is entitled to enter the order, and a copy as settled and entered should be served on all parties interested.' If the defendant has not appeared, the service of the order should be made upon him, personally ; although it is believed that when this cannot be done, the same course of service which can be taken in the service of a notice, may be had by section 409 of the Code.* Order referring to a referee to apjpoint or re-port a suitable person to the court. The order, when allowed and settled in court, is to be entered with the clerk, or certified to and entered in another county, as in other cases. If settled out of court by the judge, it is allowed by the indorsement of his allocatur upon it, and then filed and entered in the proper county, as in other cases. Such an order is made, settled, and entered in precisely the same manner as above. If the order be that the referee appoint the receiver on his filing the security mentioned in the order, &c., the proceedings are as follows : The party obtaining the order will give the opposite party the usual notice to attend before the referee. If, however, such notice be not given, or indeed no notice at all, and the other party voluntarily appear before the referee, such appearance waives all ' Edw. on Receivers, 79. ^ "Whitney v. Belden, 4 Paige, 140. 2 Edw. on Eeceivers, 81, 82. ^ Ibid. APPOINTMENT OF, HOW MADE. 407 irregularity, and no objection can afterwards be taken to the referee's appointment.^ The party obtaining the order proposes to the referee the name or names of the persons to be appointed, and if the opposite party objects, he also proposes names, and the referee determines be- tween them. The referee may no doubt summon parties or wit- nesses before him, if necessary, as under the former practice. Under equal circumstances, that is, the parties being equally interested in the funds, and the persons proposed on both sides being unobjectionable, the party obtaining the order has prima facie the right of preference.^ Security will be required to be executed, approved and filed with the clerk. The referee fixes the penalty of the bond, and it is then drawn by the attorney (the sureties justifying) approved by the referee or judge, acknowledged and filed with the clerk of the county.^ The appointment becomes complete on filing the security, and no order for the confirmation is necessary .* The title of the receiver to the property described in the order is then perfect. Indeed," the title of the receiver, on filing such security, relates back to the date of the order appointing him, in the same manner as if that order had appointed him without directing a reference.^ Such order is per se a sequestration, and gives all the necessary means of enforcing the receiver's rights, and no order for seques- tration, and no assignment of the debtor's property is necessary.'^ If, however, the order be to the referee merely to report to the court the name of a suitable person as receiver, the report is not complete until it is confirmed by the special order of the court.'' In such case the referee will deliver to the moving party his report. This must be filed with the clerk of the county where the action is triable, and a copy or notice thereof^ served I Wetter v. Schlipper, 7 Abbott, 92, » 1 Barb. Ch. Pr., 672. ^ See Rule 6 ; also see proceedings in regard to taking security in injunction cases, which in most respects are similar. ^ Matter of Eagle Iron Works, 8 Paige, 385 ; Edw. on Receivers, 95, 96. 5 Rutter V. Tallis, 5 Sand., 510. = Porter v. Williams, 5 Seld., 142. ' Matter of Eagle Iron Works, 8 Paige, 385. « See Rule 32. 408 RECEIVERS. with the usual notice of motion, and the report presented to the court at special term, and the appointment made by another order of the court, directing the execution of the security, in the proper sum, and its approval, either by the judge or the referee, as the order may direct. If a party summoned fails to appear, the referee may proceed ex farte, and the proceedings will not be open to review, unless proper cause be shown, and the costs of the proceeding paid.^ A party dissatisfied with the appointment by a master or referee cannot except to his report, but the proper mode is to make an application to the court on notice, stating in the affidavit or peti- tion on which the application is made, the grounds of objection and asking for an order that the referee review his appointment^ or that the court substitute another person. Nor will such an appointment be set aside unless the person selected is legally dis- qualified, or his situation is such as to induce a belief that the interests of the parties will not be properly attended to by him.^ ' Edw. on Receivers, 85. * Matter of the Eagle Iron Works, 8 Paige, 96 ; Wynne v. Lord Newborough, 15 Ves., 283 ; 1 Barb. Ch. Pr., 674. NE EXEAT, NATUEE AND USE OF. 409 CHAPTER XII. PROVISIONAL REMEDIES CONTINUED. NE EXEAT. Seotioa I. ITatitee and uses of wkit ; in what oases, against whom, and on what demands ALLOWED. II. Application fob writ, now granted, and how and when discharged. SECTION I. NATUEE AND USE OF NE EXEAT ; IN WHAT CASES, AGAINST WHOM, AND ON WHAT DEMANDS ALLOWED. Nature and use of writ. The writ of ne exeat regno was a process to prevent a person from leaving the state. It was resorted to for the purpose of ob- taining what was called equitable hail ; ^ and its object and design were to hold a party amenable to justice, and to render him per- sonally responsible for the performance of the orders and decrees of the court, by preventing him from withdrawing himself from its jurisdiction.^ It was proper only for the purpose of detaining the person of the defendant to respond to the decree of the court. It has been, and perhaps still is, a question whether the writ of ne exeat has been retained by the Code. Section 178 declares that " no person shall be arrested in a civil action except as pre- scribed by this act ; " and the present Code nowhere retains or recognizes the writ of ne exeat. Still it has been considered by the Supreme Court, both before and since the amendments of 1851, that the process of we exeat still exists as a prerogative writ, its end being to ensure the performance of some act by the de- fendant, to compel which, the ordinary process of execution will be insuificient, if he be suffered to leave the state.^ This is put ■ Mitchell V. Bunce, 2 Paige, 606 ; Dunham v. Jackson, 1 Paige, 629 ; De Kivafanoli v. Oorsetti, 4 Paige, 264. ^ Gleason v. Bisby, 1 Clarke, 351 ; Johnson v. Clendenin, 5 Gill and John., 463- 3 See Forest v. Forest, 10 Barb., 46 ; 5 How., 125 ; Bushnell v. Bushnell, 7 How. 389 ; affirmed, 15 Barb., 399. V. s. 52 410 NE EXEAT. upon the ground that otherwise there would be a failure of justice, no sufficient substitute being provided by the Code ; and section 468 is supposed to countenance this view, which section provides that " if a case shall arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this act, the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice." According to this view of the case; section 178 of the Code, forbidding the arrest of any person in a civil action, except as prescribed in the Code, does not apply to the issuing of the writ of »e exeat. It may be added, as corroborating this view, that it was held, as matter of judicial construction, in the former Court of Chancery, that the act to abolish imprisonment for debt did not deprive the Court of Chancery of the power to issue a writ of we exeat in cases of equitable cognizance, where such writ would have been allowed previous to the passage of that act. But the writ would not be granted upon a mere legal demand, upon which, before the act abolishing imprisonment was passed, the com- plainant would have been entitled to legal bail, even though the defendant were about to remove from the state.^ We shall assume, therefore, for the purposes of this chapter, that the writ of ne exeat still exists, as a prerogative writ, in cases of equitable cog- nizance.' In vihat cases, and against whom, and on what demands allowed. The court, under the old practice, was justified in issuing the writ only where a bill had been actually filed stating the proper facts on which the discretion of the court is to be exercised, and where there was an affidavit verifying the facts stated in the bill.^ But by the present practice, it seems the writ may issue at the commencement of the action, and before complaint filed, the filing of the complaint being no longer essential.^ The writ is issued only for the purpose of detaining the person of the party to respond to the judgment of the court ; and where the cause of action is such that the person of the defendant can- ' Brown v. Haff, 5 Paige, 235. = ggg i ^ijjt. p,.^ 208, 209. ^ 1 Barb. Oh. Pr., 651. ■" Bushnell v. Bushnell, 7 How., 389. WHEN WILL BE ALLOWED. 411 not be touched under the decree, either by execution or attach- ment the writ will not be issued.^ If a party, against whom a final decree is made, intends to remove beyond the jurisdiction of the court before the decree can be enforced by execution, a we exeat will be granted.^ It is, how- ever, mpst usually applied for and issued before decree made, in cases where the defendant threatens or is about to depart from the state, to the end that the relief finally awarded may not be rendered wholly inoperative by reason of the defendant having withdrawn himself from the jurisdiction of the court. Such were the cases of Forrest v. Forrest,^ and Bushnell v. Bushnell,^ that have arisen since the Code, both of which were divorce cases, and the plaintifis in both cases applying for this process for the pur- pose of securing alimony, which they claimed to have adjudged them as part of the final relief. The case of Vermilyea v. Vermil- yea,^ at chambers, seems to have been a similar case, the action being for a divorce a mensa, and for support and maintenance from the husband's property, though in that case the process asked was a temporary injunction. The complaint, in addition to the facts constituting the cause of action, alleged that the defendant threatened to dispose of his property and remove from the state, without making any provision for the support of the plaintiff, and asked for an order to restrain him from doing so. The order was allowed, although a perpetual injunction was not a part of the relief sought. This was contrary to that class of decisions heretofore cited,"' holding that a temporary injunction will not be allowed unless in a case where it appears that a per- petual injunction will be granted as part of the final relief sought. The process of ne exeat, it seems to me, would be in such case not only an appropriate, but adequate, remedy. This would be entirely in accordance with the old practice in which the writ was allowed, previous to the decree, on a bill filed by a wife against her husband for alimony.' » Gleason v. Bisby, 1 Clarke, 551. " Dunham v. Jackson, 1 Paige, 629. 3 5 How., 125 ; 10 Barb., 46. * 7 How., 389. =^4 How., 470. « Ante, pages 341, 342. ' Denton v. Denton, 1 John. Ch. R., 264 ; Buford, v. Francisco, 3 Dana, 68. 412 NE EXEAT. In a suit by a vendor for a specific performance, a we exeat ought not to issue against the purchaser, unless a mere judgment for damages will not give adequate relief, and the court deems it quite clear that there must be a decree for the specific perform- ance of the contract.^ And to sustain the vrrit on a bill for spe- cific performance against the vendee, the plaintiff must shovs^ a debt actually due, and therefore show affirmatively that he is able to make a good title to the premises agreed to be sold.^ And, generally, to sustain the writ the debt must be due, or the claim and right of action have accrued,^ and must be satisfac- torily and fully stated, and there must be a positive affidavit of a threat or purpose of the debtor to leave the state, and that the debt would be lost, or at least endangered by his departure.^ Sufficient equity must appear on the face of the complaint ; mere apprehension that the defendant will misapply funds in his hands, or abuse his trust, is not sufficient.^ The writ may issue against a foreigner, or citizen of another state, on demands arising abroad." SECTION II. APPLICATION EOE WEIT ; HOW GBANTBD AND HOW AND WHEN DISCHAEGED. An application for a writ of we exeat is founded either upon an affidavit (or the complaint verified and used as an affidavit) or a petition. It may be applied for, as has been seen, at any stage of the cause. And if the party, in the progress of the suit, threatens to leave the country, the writ may be applied for by petition, without its being prayed for in the bill, and without an amend- ment to insert such prayer.' 1 Morris v. McNeil, 2 Russ., 604. ' Brown v. Haflf, 5 Paige, 235. ' De Riyafanoli v. Oorsetti, 4 Paige, 264 ; Seymour v. Hazard, 1 John. Oh. R., 1 . '' Mattucks V. Tremain, 3 John. Ch. R., 75. s Woodword v. Schaltzell, 8 John. Ch. R., 412. " Ibid. Mitchell v. Bunce, 2 Paige, 606. ' 1 Barb. Oh. Pr., 648. HOW ALLOWED. 413 By whom allowed. By the former practice writs of ne exeat were allowed by the same officers who were authorized to allow injunctions.' The same practice, it is presumed, is to be followed, and the writ may be granted either by the court, or a judge thereof, or county judge in the cases in which he may grant an injunction.^ Notice, when necessary. The practice as to notice, it is presumed, is also the same, that is, previous to the defendant's appearance in the cause, the writ may be applied for ex •parte, but if the application is made after he has appeared he must have notice of it.'' Affidavit or 'petition. ' The affidavit (or complaint when used as an affidavit), or the petition when the motion is made on petition, must state posi- tively the existence of the debt or claim, and show the facts and circumstances out of which it arose.^ It should be as positive as an affidavit is required to be to hold a defendant to bail at law.^ It must also show that the defendant intends going abroad ; and must be positive upon this point, stating his threats or declarations to that effect, or alleging facts which evince it, or circumstances amounting to it. It has been held sufficient, however, if the declaration of such an intention is sworn to on information from members of his family.® The affidavit may be made by a third person.' But it need not state that the defendant is going abroad for the purpose of avoid- ing the payment of the debt, or escaping the obligation. If it can be collected from it, that it is the intention of the party to go abroad before the debt can be got out of his hands, it is a case in which, in the exercise of a sound discretion, the writ ought to issue.^ The affidavit of a wife, in a' suit against her husband for divorce and alimony, is admissable, the wife being considered in such proceedings independent of her husband.' 1 1 Barb. Oh. Pr., 649. ^ See ante, page 360. 3 1 Barb. Oh. Pr., 649. •• 2 Ves. Senr., 489. « Ibid. « Collinson v. ; 18 Ves., 353. ' Ibid. " 1 Barb. Oh. Pr., 650, and cases there cited. ^ Ibid. 414 NE EXEAT. Allowance of writ. If the application be made ex farte to a judge at chambers, the officer indorses upon the complaint, affidavit or petition, an allow- ance of the writ, and the amount of the penalty of the bond to be required of the defendant on his arrest. An order to that effect is then drawn and entered and the papers placed on file with the clerk. The writ is then issued by the clerk under the seal of the court. If the application be made on notice at special term, the de- fendant may appearand oppose, by reading affidavits contradicting the plaintiff's case, or his sworn answer used as an affidavit. The proceedings are much the same in all respects as those upon a motion for an injunction. The order, if granted, is to be drawn, settled, and entered in the usual way. It will contain the allow- ance of the writ, and direct the penalty of the bond ; and upon its entry with the clerk the writ issues. Service of writ and hand by defendant. The writ is served by the sheriff of the proper county. Upon its service, he is to take a bond from the defendant to himself in the penalty marked on the writ, conditioned that the defendant will not depart from or leave the state.^ The sheriff is answei-able for the sufficiency of the sureties. But where he has taken bail upon the writ, if the defendant leaves the state, the court will allow the sheriff a reasonable time to produce him; or in case the defendant cannot be produced, will allow a reasonable time to the sheriff to prosecute the bond and recover the amount which he is ordered to pay.^ If the defendant, on being arrested upon a ?ie exeat, fails to give such bail as shall be satisfactory to the sheriff, he must be kept in custody according to the command of the writ, and the sheriff must state that fact in his return to the writ.^ Discharging ne exeat. The defendant, after he has been arrested, may apply to the court, by motion, to discharge the writ for a variety of causes. ' 1 Barb. Oh. Pr., 654. « Bray ton v. Smith, 6 Paige, 489. ^ 1 Barb. Ch. Pr,, 654; and see on same page as to obligations and responsibili- ties of sureties. WHEN AND HOW DISCHAEGED. 415 It is a matter of course to order the writ dischai-ged on the defendant giving proper security. This security, if not accepted by the plaintiff, is to be approved by the officer allowing the writ, or a judge of the court, on notice to the plaintiff, so that he may be heard in relation to the sufficiency of the sureties.i Or if the defendant cannot find such security as will satisfy the sheriff, he may apply to the court, which will take such security as it may deem sufficient, and discharge the sheriff from liability.^ The defendant, as in cases of motions to discharge injunctions, may move to discharge a ne exeat, upon the matter of the bill only, or upon a sworn answer, or affidavits, or both. Affidavits may be read both in support of and against the motion. And though the defendant may, in his affidavit, deny the allegation on which the writ was granted,^ yet it is not a matter of course to discharge the ne exeat, on such affidavit alone, if the plaintiff's complaint is sworn to, and the affidavit of other persons is annexed thereto.^ Not only is the want of equity appearing upon the face of the complaint, or the insufficiency of the plaintiff's affidavits, or the case made by the defendant in his answer or affidavits, good causes for discharging a ne exeat, but an irregularity of any kind in granting or issuing the writ is a sufficient cause.* The affidavit of the defendant denying his intention of going abroad, will not be regarded if the writ was granted upon facts or declarations as evidence of such intention.^ Nor will the affi- davit of the defendant that no debt is due, or evidence of an admission by the complainant to that effect, avail against the complainant's own oath upon this motion.' The writ will not be discharged because it appears to have been issued for a sum exceeding that for which it can be sustained ; but, in such case, the amount of bail will be reduced. Nor will ' McNamara v. Dwyer, 7 Paige, 239 ; Mitchell v. Bunce, 2 Paige, 606. ' Brayton v. Smith, 6 Paige, 489. ^ Corodin v. Craw, 3 Edw., 231. < 1 Barb. Oh. Pr., 656. = Ihid. ^ Amswick v. Burkley, 8 Ves., 594. ' Jones V. Alephsin, 16 Ves., 470. 416 OTHER INTEELOCUTOEY PEOCEEDINGS. it be discharged because the complaint has been amended, if the amendments do not vary the substance of the plaintiff's case.^ The giving of the usual security to a sheriff upon a we exeat does not preclude a defendant from applying upon the complaint only, or upon the coming in of the answer, to have th"fe writ dis- charged and the bond to the sheriff given up and canceled. But where the defendant, for his own convenience, applies to the court and gives the usual bond, without asking to reserve the right of applying to cancel the bond, the right to raise the question as to the propriety of holding him to bail originally, will be deemed to be waived.^ CHAPTER XIII. OTHEE INTEELOCUTOEY APPLICATIONS, AFFIDAVITS, PETITIONS, MOTIONS AND OEDEES. Section I. Affidavits. II. Petitions. III. Notices, motions, and orders to show cause. IV. Interlocutory special orders. Befoee entering upon the subjects of the trial of the cause, the final judgment, and the mode of executing and enforcing the same, I shall briefly consider that important branch of practice which relates to motions and orders, and the papers upon which they are founded. The present chapter will be devoted to this subject. SECTION I. AFFIDAVITS. An affidavit is an oath in writing, sworn to before some person who has authority to administer an oath. 1 1 Barb. Ch. Pr., 657. ^Ibid. Jesup v. Hill, 7 Paige, 95. AFFIDAVITS. 417 Affidavits are resorted to in support of, or in opposition to, motions, or for certifying the service of process, notices, &c., and may be used in support of a complaint or a petition in making a motion, or in support of the defendant's answer in opposing the same. By the Code, as we have seen in the chapters on the complaint and answer, the former of those pleadings may be verified by the affidavit of the party, or in some cases by his agent or attorney, and when so verified,, the latter must be verified also. In some cases, such as in making or opposing a motion for an injunction, both the complaint and answer i are regarded as affidavits ; ^ and the subject generally of the reading of affidavits upon the various motions for an injunction, and to vacate or modify the same, has been fully considered in the chapter on injunctions.^ So also^ in case of a motion for a receiver, the pleadhigs may in some cases be regarded as affidavits, and the opposite party may read affidavits in answer to them. This subject has also been noticed in the chapter upon receivers. • By whom to he made. As a general rule an affidavit should be made by a person who has a personal knowledge of the facts, unless a good reason is shown for its being made by some other person. But, upon suffi- cient cause shown, a substituted affidavit by another person will be allowed, as where the party is sick or absent, and where the suit is conducted by an agent or attorney in fact.^ An affidavit to set aside proceedings for irregularity should be made either by the party or his attorney in the action. The affidavit of the counsel has been held insufficient unless a good reason is shown for not producing the affidavit of the party or ' Levy V. Levy, 6 Abbott, 89 ; and see cases cited in the preceding chapter on injunctions, ante, pages 357, 37L 2 But the sworn answer of an indorser denying demand and refusal of payment, protest, &c., is not an affidavit within the meaning of the statute, so as to exclude the notary's certificate from being reai in evidence. (Arnold v. Rock River E. R. Co., 5 Duer, 207 ; Young v. Catlett, 6 Duer, 437.) ^ Ante, pages 357, et seq. - Murray v. Kirkpatriok, 1 Cow., 210; 1 Barb. Ch. Pr., 599. v. 8. 53 418 OTHER INTERLOCUTORY PROCEEDINGS. his solicitor.' And, in fact, wherever the affidavit relates to the proceedings in a cause, it should, in general, be made either by the solicitor, or by his clerk who has had the principal manage- ment of the cause.^ ' But on an application to open a default the affidavit of the solicitor, showing a meritorious defense, and the nature thereof, has been considered insufficient unless he himself was acquainted with the facts ; and even then a sufficient excuse should be shown for not producing the affidavit or sworn answer of the defendant.^ But on an application to extend the time to answer, the affida- vit of merits, by Kule 22, may be made by the attorney or counsel. The affidavit, on motion to change the place of trial, must be made by the party, or sufficient reason shown why it is not so made.* Form and requisites of an affidavit. Under the former practice great strictness was observefl in re- quiring affidavit's to be correctly entitled in the cause. Though the court would disregai'd the misentitling of other papers, when it did not mislead the party, it was not so with affidavits, for the reason that the misentitling of an affidavit would exempt the de- ponent from the punishment of perjury when his oath was false.* The Code has greatly relaxed the practice in this respect by the provision contained in section 406, as follows : " It shall not be necessary to entitle an aflSdavit in the action ; but an affidavit made without a title, or with a defective title, shall be as valid and effectual, for every purpose, as if it were duly entitled, if it in- teUigihly refer to the action or proceeding in which it is made." Under this section it was held, in an early case,* that an affida- vit entitled in a cause which had no existence, and referring to an unknown party, designated by the title of the '• real defend- ant," was sufficient to sustain an order for the arrest of such party. The misentitling of affidavits has also been disregarded in various other cases.' ' The People v. Spalding, 2 Paige, 326. ' 1 Barb. Oh. Pr., 599. 3 Ibid. Hunt v. "Wallis, 6 Paige, 371. ^ Ante, page 258. ' Hawley v. Donelly, 8 Paige, 415. " Pindar v. Black, 4 How., 95. ' See Blake v. Locey, 6 How., 108 ; Bowman v. Shelden, 5 Sand., 357. AFFIDAVITS. 419 But in the Court of Appeals an affidavit entitled in the Supreme Court was considered defective, notwithstanding the above provi- sion of the Code.' And the limitation, prescribed in the above section, that the affidavit must " intelligibly refer to the action or proceeding in which it is made," has been very properly construed with more strictness. Thus, an attachment was v5,cated for want of any title, or other statement in the affidavit on which it was granted, showing who was plaintiff and who defendant, or in what action the affidavit was to be employed.^ And a motion to post- pone a trial for want of material evidence denied, which was founded on an affidavit not entitled, and which also failed to show, either by naming the parties, or otherwise, in what action the same was made.^ It must be evident that surch an affidavit is a mere nullity when offered in support of any proceedings in a cause. If, therefore, a party omits to entitle his affidavit, he should be careful to see that the body of it contains matter suffi- cient to identify the particular action or proceeding in which it is to be used. And it is always better, and is no doubt the correct and proper practice, as has been well observed,* to entitle the affidavit in the cause in which it is to be used, in all cases, pre- cisely as is necessary with reference to other proceedings therein. Not only the names of the parties, but the name of the court, ought to be properly and correctly stated, at least where the affidavit is not indorsed upon, or annexed to, some other paper properly entitled in the cause to which it refers, and which, in most cases, no doubt would be sufficient. After the title of the cause follows tlie venue. This was an essential part of the affidavit under the old practice ; and is still held to be since the Code. The ve7iue is prima facie evidence of the place where it is taken, and an affidavit without a venue is a nullity, although sworn to before an officer whose residence is mentioned in, the jurat.' ' Clickman v. Clickman, 1 Comst., 610. 2 Burgess v. Stitt, 12 How., 410. = Inoy V. Nathan, 4 E. D. Smith C. P. R., 68. * 1 Whit. Pr. (2d ed.), 164. « Cook V. Staats, 18 Barb., 407 ; Lane v. Morse, 6 How., 394. 420 OTHER INTEELOCUTOEY PROCEEDINGS. An affidavit should describe the true place of residence of the deponent, though this is not in general essential to its validity. When made by one person only it begins, " A. B., of , being duly sworn, says"— proceeding with the substance of the affidavit. When made by more than one, the form is, " A. B., of , and C. D., of , being duly sworn, severally depose and say ; and first this deponent A. B. for himself says that," &c., " and this deponent C. D. for himself says that ;" and if there are any facts to which both of them can swear, then, " and these deponents A. B. and C. D. severally say that," &c.i An affidavit must be true in substance, with all necessary cir- cumstances of time and place, manner, and other material inci- dents. It must also be sufficient to sustain the case made by the motion or petition of which it is the groundwork. It must set forth the matter positively, and all material circumstances attend- ing it, that the court may judge whether deponent's conclusion be just or not.^ Facts are frequently set forth, in an affidavit, on information and belief; and in such cases the circumstances on which the be- lief is founded should also be set forth; and where the party ao-ainst whom the motion is made, does not controvert the alle- gation on such motion, the affidavit is, of course, as effectual as though the facts were set forth as being within the personal knowledge of the deponent. Such an affidavit alone, however, is not sufficient to sustain an injunction, as we have seen in the chapter devoted to that subject. Where spoken words are set forth in an affidavit and sworn to, the addition of, " or to that effect," is a proper precaution.^ Affidavits must be fairly and legibly written ; and like the pleadings in a cause they are required, by the rules of the court,* if they exceed two folios in length, to be folioed in the margin, both the original and copies. They are also to be indorsed ; and if not so written, folioed, and indorsed, the clerk is prohibited ' 1 Barb. Ch. Pr., 601. ^ Ibid. ' Ibid. * Eule 20, as amended 1858. The 3d and 4th of the new rules also contain directions as to the filing of affidavits used upon non-enumerated motions, the Jatter rulp referring to injunction cases. AFFIDAVITS. 421 from filing them, and the opposite party may, also, within twenty- four hours, return the copies served with a statement of his par- ticular objection. Otherwise the objection is deemed to be waived. The affidavit must be subscribed by the party making it. And, the oath having been administered, the officer certifies that fact in a jurat usually at, the left side of the paper. If the affidavit is made by two or more persons the form of the jurat is, " The above named deponents A. B. and C. D., &c., were severally sworn this day of before me." If the deponent is a lunatic, or is blind, or is an illiterate person and makes his mark for a signature, the jurat should be special, and certify to enough to show that the contents of the affidavit were fully made known to the deponent, and that the signature is his and the oath he has taken is his act.' An irregularity in the jurat will be a ground for the court to refuse to hear it read.^ The mere omission of the date of the jurat, however, has been considered not a fatal objection.^ But the signatures both of the party and of the officer taking it are essential, and without either the document will be a nullity.'* Before whom taken. Affidavits to be read in the Supreme Court may be taken before a judge or clerk of any court of record, a commissioner of deeds, or a justice of the peace, in any part of the state. But the officer cannot act out of the district for which he was appointed. Thus county clerks, justices of the peace, and com- missioners of deeds can administer oaths only within the limits of their respective counties or cities. It has been decided, however, that where nothing appears to show that an affidavit was taken out of the jurisdiction of the officer before whom it was sworn, it will be presumed to have been taken within the limits of his jurisdiction; nor will the court inquire collaterally into the legality of the appointment of an officer de facto who is acting under color of appointment.* ' See 1 Barb. Uh. Pr., 154, 155. = 1 Barb. Ch. Pr., 604. ' Schoolcraft v. Thompson, 7 How., 446. * Liambeer v. Allen, 2 Sand., 648, and cases cited 1 Whit. Pr. (2d ed.), 166. 5 Parker v. Baker, 8 Paige, 428. 422 OTHER INTEELOCUTOEY PEOCEEDINGS. Filing affidavits. We have seen, incidentally, in various parts of this work, that vphen affidavits are used as motion papers, they should invariably be filed in the office of the clerk of the proper county, with the order allowed on the motion. The rules of the court, as amended, have made special provision on this subject, as follows : By the third rule, " When the affidavits and papers upon a non-enume- rated motion are required by law to be filed, and the order to be entered in a county other than that in which the motion is made, the clerk shall deliver to the party prevailing in the motion, unless the court shall otherwise direct, a certified copy of the rough minutes, showing what papers were used or read, together with the affidavits and papers used or read upon such motion, with a note of the decision thereon, or the order directed to be entered property certified. And it shall be the duty of the party to whom such papers are delivered, to cause the same to be filed, and the proper order entered in the proper county within ten days thereafter, or, in default thereof, he shall lose the benefit of the said order." The fourth rule relates, among other things, to the filing of affidavits on which an injunction or attachment is allowed, or an order for service of summons by publication, or substituted service, granted ; making it the duty of the attorney to file such affidavits within five days after allowance of order, under penalty of a motion to vacate the proceeding for irregularity, with costs. Where a party, in opposing a motion, has affidavits to read in opposition, and the motion is decided in his favor, on the opening of the adverse party, he should file his affidavits in order to have the benefit of them on appeal, should it be taken from the order denying the motion.' SECTION II. PETITIONS. Applications to the court, and motions, are not unfrequently made on petition as well as affidavit. A petition is an application to the court in writing, for an order of the court, stating the circum- ' Bloodgood V. Clark, 4 Paige, 574. PETITIONS. 423 stances of the case, and is resorted to whenever the nature of the application requires a fuller statement than can be conveniently made in a notice of motion.^ It may be verified by affidavit or not, as the nature of the application may require; when so verified, it may be consi- dered in all respects, for the purposes of the motion, as an affidavit. Petitions may be presented, either in some cause pending — that is in the language of the Code — in an action, or in some matter over which the court has jurisdiction under some act of the legislature, or other special authority — that is in a special •pro- ceeding — such for example as for the sale of infant's real estate, for the issuing of a writ de lunatico inquirendo, and the like. These special proceedings, are almost universally commenced by petition. It is not proposed, however, to speak of them in this volume, which is designed to embrace only the practice in civil actions. With respect to petitions made in an action pending, there does not appear to be any very distinct line of demarcation between the cases in which applications to the court should be made by motion on affidavit, and those in which they should be made by petition, the practice being generally regulated by the circum- stances of each case.^ We have seen in the course of this work, various cases in which the application is properly made by petition, such as for the appointment of guardian,^ the discovery of books and documents when the application is made pursuant to the Revised Statutes, to enable the plaintiff' to frame his complaint, or the defendant his answer,* and the like. In all these cases, and, generally, in all cases where the application is upon some collateral matter which has reference to a suit in court, a party may be relieved on peti- tion.^ All applications for orders which partake more of the nature of decrees (judgments) or of decretal orders, than of inter- locutory proceedings, should be made by petition,^ and so must all applications upon matters arising out of decrees (judgments), ' 1 Barb. Oh. Pr., 578. ^ 1 Barb. Oh. Pr., 587. ' Ante, page 28. * Ante, page 60. ' Oodwiso v. Gelston, 10 John., 508. « 1 Barb. Ch. Pr., 579. 424 OTHER INTERLOCUTORY PROCEEDINGS. or decretal orders, except those relating to the process of the court or for enforcing the performance of them, which are made usually upon motion founded on affidavit.^ A petition may be presented by any person, whether a party to a suit or not. But, in general, it cannot be presented in a . cause until the bill (complaint) is filed, though the case of a plain- tiff applying to sue in forma pauperis appears to form an excep- tion to the rule.^ Form and contents of. The petition in an equity suit was formerly addressed '^ To the Chancellor of the State of New York," without the addition of his name or any other title or designation. Since the office of chancellor has been abolished, the petition is addressed " To the Supreme Court of the State of New York," if the motion is to be made at court, or if at chambers, then "To Hon. Gr. G. (stating the name of the judge) one of the justices of the Supreme Court of the State of New York." A petition in a cause, it has been held in the equity practice, must be entitled in the cause in which it is presented.^ But it may be well doubted whether this equity rule is not abrogated by the Code, and whether the petition verified, whenever used as a moving paper, is not an affidavit, and does not come within the meaning of section 406 of the Code, considered on a former page.* When the petition is presented in some collateral matter, or there is no suit pending, it is simply entitled, " In the matter of A. B." After the entitling and address to the court, the petition pro- ceeds to state by whom it is presented, and the particulars of the case, and concludes with praying the court to make the order required.^ Petitions are to be signed by the petitioner, and should usually be sworn to, and always, when intended to be used as affidavits in the making of a motion or application to the court. The affidavit may be similar to that attached to a complaint. The 1 Barb. Ch. Pr., 579. » Ibid. ' Ibid. ' Jnte, pages 418, 419. ' 1 Barb. Ch. Pr., 580. PETITIONS. 425 former practice of signing the petition by solicitor and counsel is no longer followed. The petition, like affidavits and other papers in the cause, must be fairly and legibly written, folioed and indorsed in the manner directed by the rule of the court. Service of copy. In case there is any person who has a right to be heard in oppo- sition to the petition, a copy of it must be served upon him, with notice of the time and place of presenting the same. This service must be made in the same manner, and the same length of time, before presenting the petition, as a notice of motion is required to be served.^ Hearing of petition. Petitions are heard in the same manner as special motions. If upon the hearing the petitioner does not appear, the petition will be dismissed with costs, upon production of a copy of the petition, with the notice of motion. On the other hand, if no one appears in opposition to the petition, an order conformable to the prayer thereof will be made, on producing an affidavit of service of the petition and notice upon all the parties interested, provided the case justifies the order.^ The former Chancery practice was, that every party served, with a petition, was considered entitled to his costs of appearing to oppose it, whether he was interested in the matter or not. This is not now the invariable practice, costs in such cases being allowed or refused in the discretion of the court. If a party having an objection to the form of a petition, has also a case upon the merits, he should be prepared with his affi- davits in opposition to the petition, upon the merits, in case the objection to the form should be overruled ; as the court will not permit the petition to stand over, in order that he may file affida- vits, except upon the terms of his paying the costs of the peti- tion standing over.^ ' Barb. Oh. Pr., 580. '^ Ibid. ^ 1 Ba^i,, oh. Pr., 581. V. S. 54 426 OTHEE INTEELOCUTOEY PKOCEEDINGS. SECTION III. MOTIONS AND OEDEES TO SHOW CAUSE. The definition, by the Code, of a motion, is " an application for an order." ^ And such it was under the former equity practice.^ Motions were either of course, or special ; the former were those upon which orders were entered at the request of the party, by the register or clerk, and without any application to the court. These have become obsolete under the present practice.^ The latter were made on actual application, either to the court, or a judge thereof, and were not a matter of course, but required some ground to be laid for them, either by a previous order, or by the pleadings in the cause, or petition or affidavit.* Every " applica- tion for an order," therefore, by the present practice, is a special motion. They are now, as formerly, either ex parte, or upon notice to the opposite party, and each class will be now con- sidered. Ex parte applications. There are by the present, as under the former practice, a great variety of applications, in actions, as well as special proceedings, Avhich may be made ex parte. It is not practicable to give a com- plete list, but among them may be enumerated orders for the ap- pointment of a guardian ad litem ; to enlarge the time to answer or reply, or to make a case or exceptions ; to show cause why an injunction should not issue, and indeed, all orders to show cause ; an order for publication of summons, and for substituted service of same ; for a ne exeat ; ^ to file pleadings in a cause ; ^ for an order of reference in a foreclosure suit, or any other preliminary order, before final judgment, where there is no answer or appear- ance of any defendant ; to amend the summons, or indeed, any 1 Code, § 401. "- 1 Barb. Oh. Pr., 566. ^ Perhaps the entry of an order by consent, or on stipulation, forms an ex- ception to this remarlc, and such an order may still be said to be made on a mo- tion of course. " 1 Barb. Ch. Pr., 567. = Ibid. « Code, § 416. EX PAETE MOTION. 427 other application in the cause before the defendant has appeared therein; to remove a mere technical difficulty by which other parties cannot be affected, ^ &c., &c. There is also a great variety of ex parte applications, or motions which may be made in special proceedings, as, for exam- ple, to permit a person over whom a committee has been appointed to make a will ; ^ by the general guardian of an infant, for the sale of his real estate ; by the next of kin of a lunatic for a commission de lunatico inquirendo ; for the appointment of a general guardian of an infant, on the infant's petition, if of the age of fourteen and upwards, or on petition of a relative or friend of the infant if under that age, &c., &c. By section 414 of the Code, where a defendant shall not have demurred or answered, service of notice or papers, in the ordinary proceedings in an action, need not be made upon him, unless he be imprisoned for want of bail. In such cases, of course, all motions in the cause, whether to the court or a judge at cham- bers, are ex -parte. Where an order is made by which a particular act is to be done, unless the other party shall, within a certain time, show cause to the contrary (which order is generally termed an order nisi), the party obtaining the order must, after the expiration of the time limited by it, if no cause is shown, move for another order to confirm the previous order nisi, and make it absolute ; and this motion is ex parte, but it must be supported by an affidavit to prove the due service of the order nisi? And after a bill has been taken as confessed (or under the pre- sent practice the defendant is in default), for failure to appear and answer, an application for the appointment of a receiver, or for an injunction, or we exeat against the defendant may be made without notice.^ The court will sometimes refuse to hear an application ex parte, and direct notice to be given where the order asked for is not required by some pressing emergency, or where there exists no necessity that the party to be affected by the motion should not ' In re Patterson, 4 How., 84. ^ Ibid. 3 1 Barb. Ch. Pr., 567. ■" Austin v. Figueira, 7 Paige, 56. 428 OTHER INTERLOCUTORY PROCEEDINGS. have any previous intimation thereof. So also, instead of grant- ing an absolute order on an ex -parte motion, the court vpill some- times grant an order to show cause, restraining the defendant in the meanwhile, if necessary, or staying his proceedings. 'Ex parte applications must be supported by the affidavit or verified petition of the party applying for them, and by such collateral affidavits or papers as may be necessary to make out a sufficient case for the interference of the court.' When required to be made to the court, they must be made on a regular motion day, or at a regular or special term of the court j and the court always gives preference to ex -parte applications. The proceedings upon such motions, and the mode of obtaining and entering the order thereon, will be further considered in the next section. Special motions, when must he on notice. When an application or motion is not such as can be made ex •parte, written notice thereof must be served upon the opposite party ; or an order to show cause must be obtained and served. Such order is ex parte and answers the purpose of a notice. By the 39th of the new rules, " all questions for argument, and all motions, shall be brought before the court on a notice, or when a notice less than eight days is prescribed by the judge or court, under section 402 of the Code, by an order to show cause." This, no doubt, means all motions in which a notice is requisite, and does not include the class oi ex parte applications above referred to. As a general rule, notice of every application to the court must be given to the opposite party in case he has appeared, where the motion relates to any matter pending in court, or where a final order is sought ; orders for time and those of a like nature (above noticed) alone excepted ; otherwise, the applicant will only be entitled to an order nisi.^ Therefore, where a reference to make preliminary inquiries, preparatory to the hearing of a cause, is necessary, or proper in a case, if an order therefor is not assented to by all the parties interested therein, a special application must be made to the court, upon due notice to all such parties as have 1 1 Barb. Oh. Pr., 568. ^ Isnard v. Cazeaux, 1 Paige, 39 ; Harl v. Small, 4 Paige, 551. MOTIONS ON NOTICE. 429 appeared in the suit.^ And a defendant who has appeared, is entitled to notice of the subsequent proceedings, although he is in contempt and is in default for want of an answer.^ A motion for an order which may have the effect of delaying the cause, must be made on notice.^ So an injunction affecting the rights of a party who has appeared, upon a supplemental bill, will not be granted upon an ex parte application. Regular notice of the motion must be given.* Motions, before what court and where to he made. By the -3d subdivision of section 401 of the Code, ex parte a-ppli- calions may be made to any judge of the court in any part of the state. They may also be made to the county judge of the county where the action is triable, or in which the attorney for the moving party resides,^ except to stay proceedings after verdict. An order to show cause (which, for the purposes of a motion, is equivalent to a notice ° ), may, by the rules of the court, be made returnable by a judge out of court before himself; '' and (except in the first district) must be made so returnable, or returnable at a special term appointed to be held in the district in which such judge resides.^ It had been held, before the amendment to this rule, that a judge out of court could not make an order to show cause returnable at special term.' It is presumed that the rule above referred to settles the practice to the contrary. Other motions, made on the orditiary notice, must be made to the court, either at a general or special terra,^" in all the judicial dis- tricts but the first ; in that district any motion may be made to a judge or justice out of court, except for a new trial on the merits.'^ An order at chambers, in the first district, however, is considered as made during a term of the court, as a special term is always held during the hours of attending at chambers.'^ ' Austin V. Figueira, 7 Paige, 56. ^ Fitzpatrick v. Ilawkshaw, 1 Hogan, 82. 3 Brien v. Brien, 1 Hogan, 389. < Bloomfield v. Snowden, 2 Paige, 355 ; 1 Barb. Oh. Pr., 570. ^ See ante, pages 356, 357, as to power of county judge to grant an injunction order. ^ N. Y. and Harlem Railroad Co. v. Mayor, &c., of New York, 1 Hilton, 568. ^ Code, § 404. Sup. Court, Rule 39. « j^j^/. » Merritt v. Slocum, 6 How., 350; Hasbrouck v. Ehrick, 7 Abbott, 76. '» Bedell v. Powell, 3 Code R., 61. " Code, § 401, sub. 2. " Main v. Pope, 16 How., 271. 430 OTHER INTEELOCUTOEY PROCEEDINGS. Eule 40 of the amended rules defines the class of enumerated motions, and provides for the hearing of other motions, as follows : " Enumerated motions are motions arising on special verdict, issues of law, cases, exceptions, appeals from orders sustaining or overruling demurrers, appeals from an inferior court and appeals by virtue of sec- tion 348 of the Code. " Non-enumerated motions include all other questions submitted to the court, and shall be heard at special term, except vs^hen otherwise directed by law. " Contested motions shaU not be noticed or brought to a hearing at any special term held at the same time and place with a circuit, except in actions upon the calendar for trial at such circuit, and in which the hearing of the motion is necessary to the disposal of the cause, and except also that, in counties in which no special term distinct from a circuit is appointed to be held, motions in actions triable in any such county may be noticed and brought on at the time of holding the cir- cuit and special term in the county in which such actions are triable." I shall hereafter have occasion to speak oi enumerated motions, as they are above defined (except motions arising on special verdict which do not properly belong to actions of an equitable nature), and to consider, in its proper connection, the practice of bringing such motions to hearing. I will merely remark, in this place, in regard to these motions, that some of them, by the express provi- sions of the Code, are required to be heard in the first instance at circuit or special term. Thus, by section 255, an issue of law must be so heard ; and by section 265, a motion for a new trial arising on " a case," or " exceptions," or application for judgment on a "special verdict," must also, in the first instance, be heard and decided at circuit or special term, except that the judge try- ing the cause may, when exceptions are taken, order them to be heard in the first instance at the general term, and judgment in the meantime suspended. It is only when an appeal is taken from the special term order in these cases that the non-enumerated motion becomes a calendar cause for the general term. By the rule above given, non-enumerated motions include all other questions submitted to the court, and must be heard at special term except when otherwise directed hy law} I am not ' By the Laws of 1851, chap. 488, motions for injunctions against state ofB- cers, in the cases prescribed therein, must, in the first instance, be made at MOTIONS ON NOTICE. 431 aware of any statutory restriction upon the power of the general term, taking away its jurisdiction to hear and decide a non-enume- rated motion, iinless perhaps it may be the 20th section of article third of the judiciary act of 1847 ,i relative to the hearing of suits and proceedings in equity, which requires all such suits and pro- ceedings to be first heard and determined at a special term, unless the justice holding it should direct the same to be heard at a general term. It is considered doubtful, at least, whether this provision can be now construed as taking away the fower of the general term to entertain and decide a non-enumerated motion. Such a jurisdiction has been asserted and exercised since the Code, in the case of a motion for an injunction.^ The prohibition con- tained in the rule of the court goes to the regularity merely, and not to the jurisdiction ; and the court at general term, has no doubt the power, if it thinks proper to exercise it, to relax its own rules. Such a power, however, is rarely exercised, and never except under very special circumstances. The general term of the fourth district, in a case not reported,^ refused to hear a non- enumerated motion for the appointment of a receiver, though the case was one of great importance and difficulty, and special reasons were shown for making the application at general term. There is but one Supreme Court which acts and decides ; whether it acts through the special term or the general term its powers are the same. And it has accordingly been held, in one case,^ that none of the ancient powers of the general term are taken from it ;^ and it can, therefore, make an original order in any matter general terra. So by the judiciary act of 1847, applications for judgment in par- tition cases may be made at a general term, if the moving party thinks proper. In this class of cases, however, the application is almost invariably made at the special term. ' Laws of 1847. ' Drake v. Hudson River R. R. Co., 2 Code R., 67. ' Rensselaer and Saratoga R. R. Co. v. The Mayor of Troy and others, July general term, 1857. ■• Anon., 10 How., 353 ; See also Gracie v. Freeland, 1 Comst., 228 ; Ayres v. Covin, 9 How., 573 ; Corning v. Powers, 9 How., 54. ^ The Constitution prescribes what justices shall hold the general and special terms ; but " it leaves their powers to be prescribed by the legislature." GrifBn V. Griffith, 6 How., 428. 432 OTHER INTERLOCUTORY PROCEEDINGS. (as for re-taxation of costs) in which it might formerly have made such an order. Tlie Code specifies the manner in which appeals shall be brought before the general term, but does not attempt to limit its powers. It is moreover to be observed, that there are certain special non-enumerated motions, which must be heard at the general term, other than those required by statute to be so heard and referred to on a former page.' Thus the general term alone can entertain an application to correct its own judgments. So it alone has authority to hear and decide a motion to dismiss an appeal from the special to the general term.^ And generally where the hearing of a motion necessarily affects the decision, or requires a reconsideration of the adjudication at general term, the motion must be there made, and cannot be made at the special term.^ But the special term has jurisdiction to set aside the judgment or order of the general term on the ground of irregularity, merely, or where the point presented was not before the court.* And an application to amend a judgment of the general term for irre- gularity, merely, may be made at special term.^ Having thus considered the subject with reference to the court at which special motions on notice must be made, I remark, in regard to the place at which they must be made, that the Code provides (section 401, sub. 4), that motions upon notice must be madf within the district in which the action is triable, or in a county adjoining that in which it is triable ; except that when the action is triable in the first judicial district, the motion must be made therein ; and no motion upon notice can be made in the first judicial district in an action triable elsewhere. The plain meaning of this provision is, that the county in which " the action is triable," is the county named in the com- plaint as the place of trial, and the word "triable" applies only ' Ante, page 430, note. " Harris v. Clark, 10 How., 415. 3 Ayres v. Covill, 9 How, 573. < Ibid. 5 D'Agreda v. Mantel, 1 Abbott, 133 ; see also, Corning v. Powers, 9 How; 54 ; Ayres v. Covil, 9 How., 573 ; Masoa v. Jones, 1 Code, R. N. S., 338. Garcie v. Freeland, 1 Comst., 228 ; Dana v. Howe, 3 Kern., 308. MOTIONS ON NOTICE. 433 to the county so named in the complaint ; ' and does not include any county to which the defendant may have the right to transfer the cause, although this has been held in one or two cases,'' which are now pretty generally regarded as erroneous. Where no complaint is served, the defendant may regard the county in which the summons states the complaint will be filed, as the county where the action is triable for the purposes of making a motion.^ And if the complaint is defective in not stating a county, and the accompanying summons in like manner omits to inform the defendant where the action is triable, he may move in any district within which the action is properly triable.'' The last subdivision of rule 40, above cited, is new, and pro- hibits contested motions from being heard at the circuits, unless in the cases specified in the rule itself. Motion wh'n to be made. By the 4Sth rule of the court, non-enumerated motions made in term time, at a general term, will be heard on the first day, and Thursday of the first week, and Friday of the second week of the term, immediately after the opening of the court on those days. Except in the first judicial district, a party attending, pursuant to notice, to oppose a non-enumerated motion, if the same shall not be made on the day for which it is noticed, may, at the close of that order of business, take a rule against the party giving the notice for costs for attending to oppose. The 49th rule is applicable to all special motions, whether noticed for the general or special term, and provides that non- enumerated motions, except in the first district, shall be noticed for the first day of the term or sitting of the court, accompanied with copies of the affidavits and papers on which the same shall be made ; and the notice shall not be for a later day, unless suffi- cient cause be shown (and contained in the affidavits served) for not giving notice for the first day. ' Gould V. Chapin, 4 How., 185 ; Ohubbuck v. Morrison, 6 How,, 367; Bangs V. Selden, 13 How., 163, 374; Atkins v. Hearne, 3 Abbott, 184. = Peobles v. Rogers, 5 How., 208 ; Whitehouse r, Tilley, MS. Rensselaer special term, 1857, by Gould, J. 3 Davison v Powell, 13 How., 287 ; Johann v. Bryan, \ Code R., N. S., 46, * Hotchkiss V. Crocker, 15 IIow,, 336. V. s. 65 434 OTHEE INTEELOCUTOKY PEOCEEDINGS. In the Supreme Court, for the first district, the practice pre- vails to hear all seriously contested motions at special term, and, as a general rule, to take cognizance at chambers of those only which are unopposed, or which do not require any long discussion. A regular calendar of motions for special term is made out each month, and the motions entered on that calendar are called and brought on in their order accordingly. A note of the motion should be filed with the clerk in these cases. The cause is then placed on the special term calendar, and brought on in due course. In the other courts this rule does not obtain. In the court in question (first district), every Saturday, in term, is set apart for the hearing motions, so noticed for the special term, and other days are occasionally appropriated.' Notice of motion, what it mvst contain. The notice of motion is attached to the papers upon which the application is to be made, if any papers are to be used which a party has it in his power to serve, and specifies that the motion will be founded thereon, and the copies papers (by rule 49, supra), are to be served with the notice. If it is to be founded on the pleadings or other papers on file, the notice should mention that fact, specifying such papers particularly.^ The pleadings or other papers already served on the opposite party, need not, of course, be served again ; but if it is the intention to use them on the motion, or read any affidavits which have been filed in the cause, such intention ought to be mentioned in the notice; but a separate notice of the intention of the mover to read them duly served is sufficient.^ The general form of notice that the motion will be made upon "the afiidavits with copies of which you are herewith served, and upon the pleadings and proceedings in this action," &c., is generally, and, indeed, almost invariably used. A notice of the motion must state clearly the terms of the order asked for ; and everything which the party seeks to have al- ' 1 Whit. Pr. (2d ed.), 187, 188. See rules as to terms and calendars in first district, Voorhies Code (6th ed.), 648. As to when and where special motions may be heard in New York Superior Court, and Common Pleas, see rules of these courts, Voorhies' Code (6th ed.), pp. 652, 657. » 1 Barb. Oh. Pr., 570. = j^^^. NOTICE OF MOTION. 435 lowed him, should be expressed as the court will not, usually, ex- tend the order beyond the notice. For this reason it is customary to adda prayer for general relief " and for such further or such other order or relief as the court shall think proper to grant ; " so that if the court should think the party entitled to some relief, but not to precisely the specific relief asked for, he may have such order as the court will grant.^ Costs of the motion are not allowed to the party moving, unless asked for in tlie notice.^ But the moving party should be careful not to ask, in his notice, for costs, if he is not entitled to them, otherwise he may be made to pay the costs of the other party attending to oppose. Where the motion is made on the ground of irregularity, the notice or order to show cause must specify the irregularity com- plained of.^ And the court will regard only such irregularities as are pointed out by the notice and papers of the moving party.* And generally, it is said, where there are several grounds on which a motion may be granted, those on which a moving party means to rely must be distinctly stated, either in the notice or in the affidavits that accompany it ; and to the grounds thus stated the party will be confined upon the hearing.* And though, as above remarked, relief will sometimes be granted under the gene- ral notice that the party will ask " such further or such other relief," &c., yet the court has intimated that it would be the better practice, and tend to prevent surprise, if the court would not listen to a prayer until the petitioner had discovered, and is able to give notice of what he wants.^ Several objects may be included in the same notice of motion, such as the appointment of a receiver, for an injunction, and for the payment of money into court ; or for the appointment of a receiver, and payment of money into court, and the production of papers.'' ' 1 Barb. Ch. Pr., 570. But see Mann v. Brooks, 7 How., 457. = 1 Barb. Ch. Pr., 570. ^ Sup. Court, Rule 39. * Roche V. Ward, 7 How., 416 ; Baxter v. Arnold, 9 How., 445. ^ Bowman v. Shelden, 5 Sand., 660. « Roche V. Ward, 7 How., 457. ' 1 Barb. Ch. Pr, 670, 436 OTHEE INTEELOCUTOEY PEOCEEDINGS. Time of serving notice. This also is regulated by the Code. Section 413 provides that notice of a motion or other proceeding before a court or judge, when personally served, shall be given at least eight days before the time appointed therefor. And section 402 that, when a notice of a motion is necessary, it must be served eight days before the time appointed for the hearing ; but the court or j udge may, by an order to show cause, prescribe a shorter time. And by section 407, the time within which an act is to be done is computed by excluding the first day and including the last. If the last day be Sunday it shall be excluded. Thus an eight days' notice served on the 1st for the 9th of the same month is suffi- cient. And a five days' notice served on Wednesday for the fol- lowing Monday is good service, it being held that the intervening Sunday is not to be excluded.^ In regard to orders to show cause, the late amendments to the rules (rule 39, revision of 1858) have introduced an important restriction upon the granting of such orders. After prescribing that all questions for argument, and all motions, shall be brought before the court on a notice or order to show cause, it provides that " such order to show cause shall only be granted where a special reason for a notice less than eight days appears on the papers presented, and the party shall, in his affidavit, state the present condition of the action, and whether at issue, and the time appointed for holding the next circuit in the county where the action is triable. The order shall also (except in the first judicial district) be returnable only before the judge who grants it, or at a special term appointed to be held in the district in which such judge resides." The mere order to show cause, unaccompanied by a temporary injunction or stay of proceedings, is considered as very nearly, if not quite, the same as a notice, and if an order of not less than ' Taylor u. Corbiere (8 How., 385), and cases cited in Voorhies' Code (6th ed.) 558. But it was held in the case of Whipple v. "Williams (4 How., 28), that a service on Saturday for Monday is not a good two days' notice, and that Sunday should be excluded in computing time where the notice is less than a week. NOTICE OF MOTION. 437 eight days is granted almost as a matter of course. But when it is asked to include a stay or injunction in the order, or that it be made returnable in less than eight days, its allowance is entirely discretionary, even though brought strictly within the above rule. The court, or judge, if not satisfied that the party should be allowed to move on such shorter notice, will refuse to grant such order to show cause, without prejudice to the right of the applicant tc^move on the usual eight days' notice.' It is further to be observed that the service of the notice of motion, and other motion papers (by section 410 of the Code), may be made by mail where the person making the service, and the person on whom it is to be made, reside in different places, between which there is a regular communication by mail. And by section 412, where the service is by mail, it shall be double the time required in cases of personal service.^ Mode of service of notice. The service must be made on the party if he has not appeared by attorney, or if he has so appeared then on the attorney.^ The " attorney," however, means an attorney at law, or the attorney of record, and does not include an agent or attorney in fact.^ But by section 415 of the Code, if the party appearing in the action resides out of the state, and has no attorney in the action, the service may be made by mail, if his residence be known ; if not known, on the clerk for the party. Service may also be made by mail, by section 410, as above noticed, where the person making the service, and the person on whom it is to be made, reside in different places, between which there is a regular communication by mail. Let us glance briefly at the two principal modes of service, viz. : first, by delivery ; second, by mail. Service by delivery. This service is made either by personal delivery of the notice ' Androvette v. Bowne, 4 Abbott, 440 ; 15 How., 75. = Except service of notice of trial, which may be made by mail sixteen days before the day of trial, including the day of service, as section 412 was amended in 1859. 3 Code, § 408 ; Tripp v. De Bow, 5 How., 114. ♦ Weare v. Slocum, 1 Code R., 105. 438 OTHER INTEKLOCUTOEY PROCEEDINGS. to the party or attorney, or in certain cases delivering and leaving the same at his office or house, and is prescribed by section 409 as follows : " The service may be personal, or by delivery to the party or attor- ney on whom the service is required to be made ; or it may be as fol- lows : "1. If upon an attorney, it may be made during his absence from office by leaving the paper with his clerk therein, or with a person hav- ing charge thereof; or, when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office ; or, if it be not open so as to admit of such service, then by leaving it at the attorney's residence, with some person of suitable age and discretion. " 2. If upon a party it may be made by leaving the paper at his resi- dence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion." The above provisions are sufficiently explicit, and though various decisions have been made in regard to this kind of service, both before and since the Code, it is scarcely necessary to notice them here. It has already been observed that where the party has an attorney the service must be on the attorney, and not on the party. It may be further observed that the place of service is the place designated in the summons, and a party cannot be compelled to serve his papers at another place, though the oppo- site attorney actually resides at such other place.' It may be important, also, to notice a decision since the Code, that where a party makes the best service the circumstances of the case will admit, and follows it up promptly by regular service with notice of the facts, the service will be deemed sufficient.^ Service by mail. Section 411 of the Code provides that in case of service by mail the paper must be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid. Though not absolutely required by this section of the Code, ' Lord V. Vandcnburgb, 15 How., 368. " Falconer v. Ucopple, 2 Code R., 71. NOTICE OF MOTION. 439 yet it is always proper, and perhaps necessary, as under the old practice, to enclose the paper served in an envelop, and that the affidavit of service shovsr this to have been done. So, though the above section does not in terms require that the papers be depos- ited in the post office at the residence of the attorney making service, yet this has been held to be necessary,^ and, in like man- ner, the affidavit of service should shovr it to have been so done. The service is deemed complete by so depositing and directing the paper, and paying the postage, even though such service be made on the last day for service after the mail has closed, and the party served takes the risk of the failure of the mail.^ An irregularity in the service is waived if the paper be retained and acted on. The party served should return it within a rea- sonable time (never limited to less than one day), with a notice of the particular irregularity complained of.^ Froof of service. A written admission by the opposite attorney of due proof of the service of the notice and motion papers is always competent proof, the court taking judicial notice of the signatures of its own officers. But the mere written admission of a party is not sufficient, and the court will not consider it good proof of service, or allow a default to be entered thereon without an affidavit to the genuineness of such signature. If the service be not admitted, the moving party should be pre- pared with an affidavit showing that such service was made in one of the modes above specified. The affidavit should be full and specific, and show a case of service clearly within the require- ments of statute. Thus, if made by leaving the paper at the attorney's office, it should specify all the circumstances necessary to show the right to make such service, as that the attorney was absent and no person was found therein, and also the circum- stances showing such service regular, as that the paper was left in a conspicuous place in the office (specifying it), between the 1 Schenck v. McKie, 4 How., 246. ^ See Voorhies' Code, and various cases cited in regard to serrice by mail under sections 410 and 411. ' Ibid. Chemung Canal Bank v. Judson, 10 How., 133. 440 OTHER INTEELOCUTOKY PROCEEDINGS. hours of six in the moruing and nine in the evening. So if ser- vice be by mail, all the circumstances necessary to show a perfect and regular service should be mentioned ; as the depositing the paper in the post office, at the attorney's place of residence, the address to the opposite attorney at his place of residence, the payment of postage, &c. It is provided by statute^ that whenever it shall be necessary on the trial of an action, or in any judicial proceeding, to prove the service of any notice, an affidavit showing such service to have been made by the person making such affidavit, shall be received as presumptive evidence of such service, upon first proving that such person is dead or insane. Hearing of motion. The times and places of making special motions having been considered, we are next to notice the mode of proceeding in bringing on the motion for hearing. As to the order of hearing motions, a preference, whether at general or special term, is always given to ex parte applications. By sub. 5, section 401 of the Code, a motion to vacate or modify a provisional remedy, and an appeal from an order allowing a provisional remedy, has a preference over all other motions in all the districts.^ Other motions and applications are made without any regular order, and as the respective counsel moving may happen to get the ear of the court, except in the first district, where, as above remarked, a special term calendar i§ made up and motions are called in their order. The course of proceeding on the hearing is for the moving counsel to read his notice of motion and the papers on which the motion is founded, or state their contents, and, if there be no appearance by the other side, on producing due proof of the service of the notice, the court will allow him either to take by default the order asked for, or will grant such order as the moving 'Laws of 1858, chap. 244. ^ By section 255 an issue of law also has preference on the calendar, unless the court otherwise direct ; a provision, it is to bo observed, which in practice amounta to a nullity. HEARING OF MOTION. 441 papers show the party is entitled to, it being in all cases a matter of course, to allow the party to take by default and at his own peril, such order as his notice specifies. The rule is (rule 39) that " if the opposite party shall not appear to oppose, the party making the motion or obtaining the order shall be entitled to the rule or judgment moved for, on proof of the due service of the notice or order and papers required to be served by him, unless the court shall othencise direct." The court may exercise its discretion, therefore, as to the terms of the order allowed on default. But the court will not grant more than is asked for by the notice of motion, or a substantially different order than the notice specifies, even though the general clause " for such other or further order, or relief," &c., be added. Thus, costs of motion will not be allowed on default under this general clause, if the motion does not specifically state that they will be asked for; and if taken it will be an irregularity.' But under this general clause, if the other party appears on the motion, such relief other than that specifically asked on the motion, may be granted as the case made by the moving party authorizes; and even a new defendant, if necessary, may be ordered to be joined in the action.2 If the service be irregular, or proof of service insufficient, the motion will be denied though no one appear to oppose.^ If the moving party fail to appear, no default could'be taken against him, by the practice which prevailed before the recent amendment of the rules (rule 4S), until the last day of the term, it being optional with the party to bring on his motion at any time before the close of the court. But by that amendment it is provided that, " except in the first judicial district, a party attend- ing pursuant to notice, to oppose a non-enumerated motion, if the same shall not be made on the day for which, it is noticed, may, at the close of that order of business, take a rule against the party giving the notice, for costs for attending to oppose." The rule is not, perhaps, applicable to special terms for the hear- ' Northrup v. Van Duzeii, 3 Code R., 140. ^ Martin v. Kanouse, 2 Abbott, 390. See Mann v. Brooks, 7 How., 457. 5 3 Caines, 88. 442 OTHER INTERLOCUTOEY PROCEEDINGS. ing of motions only, as there is not, at such terms, any " close to that order of business" until the close of the term. And if the moving party should get no opportunity to make his motion on the day actually noticed, but from press of business be obliged to wait until the next or some following day, he undoubtedly may do so without incurring the penalty fixed by the rule. It may be mentioned here, in connection with this rule, that it has been held, and such is believed to be the common practice, that where a motion is noticed for a day out of an appointed term, it must be moved on the day specified, and a default cannot be taken on a subsequent day.^ If the judge is unable to hear it, he may, by order, transfer it to some other judge.^ If not so made or transferred, it must be re-noticed before it can be brought on ; the party need not, however, serve other copies of his affida- vits, but the notice may state that the motion will be made on the papers already served, referring to them, and such papers may be read on the second motion.^ It should also be noticed, in case of an order by default, that by rule 55, the counsel obtaining it, whether at general or special term, must indorse his name, as counsel, on the paper containing the proof of notice ; and clerk, in entering the order, shall specify the name of such counsel. It is further provided by the 23d rule that " if any application for an order be made to any judge or justice and such order be refused in whole or in part, or be granted conditionally, or on terms, no subsequent application, upon the same state of facts, shall be made to any oVaer judge or justice; and if upon such subsequent application, any order be made, it shall be revoked ; and in this affidavit for such order, the party shall state whether any previous njiplication for such order has been made." * As to the course of proceeding upon the hearing of a special motion made upon notice where the opposite party appears to oppose, it is to be observed, in the first place, that if the opposing 1 Vernony v. Tanney, 3 How., 360. » Code, § 404. ' Van Benthuyscn v. Stevens, 14 How., 70. * The part in italics is the alteration to the rule made by the amendments of 1858. HEARING OF MOTION. 443 party has any objections to make to the regularity of the service of the papers, or any objections of a mere teclinical character, they should be raised before the merits of the motion are gone into, otherwise they will be considered as waived.^ So, objec- tions to the jurisdiction of the court to hear the motion may be, and usually are (though they need not necessarily be), raised pre- liminarily, before the moving party states his case, and if such objection be sustained, the court will simply refuse to hear the motion, as it can make no order in a case in which it has no juris- diction. If there be no such preliminary objection, the motion will pro- ceed as follows : The moving counsel reads or states the contents of his papers, including the notice of motion ; after which, if there are any affidavits or papers to be used upon the other side, the counsel opposed reads them. The counsel for the moving party then makes his argument; the counsel opposing the motion follows ; and the counsel for the motion has a right to reply, closing the argument. On an order to show cause, which, as has been observed, is considered a notice for the purposes of the motion, the party obtaining the order is regarded as tiie moving party, and as such, is entitled to open and close the argument.^ One counsel only can be heard on each side, and not more than one hour each, except when the court sliall otherwise order.^ The motion may be resisted by the opposing party by reading affidavits, or any of the pleadings or proceedings in the action, whether they have been served or filed or not. His affidavits or papers may either controvert the case made by the moving party, by denial of the same, or by setting up new facts. Nor will the moving party be allowed to read affidavits in support of his mo- tion which have not been served, or to contradict the case made in opposition to the motion. Though, where opposing affidavits introduce new matter, which may operate as a surprise upon the moving party, he is sometimes allowed to have the motion stand over for the purpose of obtaining affidavits to contradict or explain ' 16 How., 271. 2 N. Y. and Harlem Railroad Co. v. Mayor, &o., of New York, 1 Hilton, 568. => Sup. Court, Rule 54. 444 OTHER INTEELOCUTOEY PEOCEEDINGS. the new matter alleged, especially when the new matter charges the moving party with bad faith.^ Disputed facts, how determined on motion. If the case made by the moving papers be in terms met, and positively negatived, tiiat is, if the affidavit of the moving party is controverted by an opposing affidavit, the motion will be denied. In such case nothing is proved to the court, and no relief can be granted ; for the party making the motion must establish his case, and the preponderance of evidence must be on his side, although, as a matter of course, the court is the judge of both the credibility and weight of the testimony. Thus, a positive allegation of facts within the deponent's own knowledge, is not sufficiently answered by a denial upon information and belief. So, where there are positive affidavits of two credible witnesses to the existence of a fact, a single affidavit of denial is not usually sufficient to defeat the motion. Where the circumstances of the case are intricate, or there are several conflicting affidavits, and it is difficult for the court to determine the precise questions of fact involved, a reference will be ordered, either on the application of one of the 23arties, or on the court's own motion to ascertain what are the facts involved and report to the court. This proceeding is authorized by the Code (sub. 3 of section 271), which allows such reference " where a question of fact, other than upon the pleadings shall arise, upon motion or otherwise, in any stage of the action." And the courts sometimes resort to this mode of ascertaining the facts, though, it is said, the case ought to be very special, such as where the judge himself cannot come to a satisfactory and definite conclusion upon the facts as stated.^ Or where the affidavits upon a motion are not sufficiently definite and certain to authorize the court either to grant, or absolutely deny, the motion.^ But though the judge may order the question referred, he cannot direct the responding party to appear before him and be examined, orally, touching the matters of fact involved in the controversy ; ' Schermerhom v. Van Vorst, 1 Code R., N. S., 400. " Stelle V. Palmer, 7 Abbott, 181. ' Meyer v. Lent, 7 Abbott, 225. HEARING OP MOTION. 445 and upon his refusing to submit to such examination, determine the motion against him therefor.^ He may refer the question to a referee, and require the parties to submit to an oral cross-exami- nation before such referee, in respect to the facts stated in the affidavits, with leave to either party to call and examine other ■witnesses on the question.^ Where the facts are left equivocal and uncertain by the affida- vits used on the motion, the court may either deny the motion absolutely, or without prejudice to another application, or, in its discretion, may direcb a reference as above.^ The proceedings upon the reference, will be the same as in interlocutory references, and the referee will report to the court the facts so found by him, either with or without the evidence, as the order of reference may direct. If motion denied, when may be renewed. The 23d rule of the court, above given, prohibits the making of a second application on the same state of facts, if a previous application has been refused, in whole or in part, or granted con- ditionally, or on terms. That is to say, the rule prohibits such second application, unless on the decision of the previous motion, leave to renew the motion has been granted, or the motion has been denied without prejudice to the right of the party to move again ; and to authorize the granting of such leave, the necessary facts must be shown and the special relief asked for.* It has been held under this rule, that it does not prevent a motion to modify, or vacate, on matter arising or discovered since the first motion where there is no laches.^ It has been held, also, that the denial of a motion, on the default of the moving party, is no bar to its renewal if that default be sufficiently excused." ' Meyer v. Lent, 7 Abbott, 225. 2 Barron v. Sanford, 6 Abbott, 320, note ; 14 How., 443.J ^ Meyer v. Lent, 7 Abbott, 225 ; see also Flagg v. Munger, 3 Barb., 9 ; Munn V. Bamum, 2 Abbott, 441; Barber v. Case, 12 How., 351; Pendleton t;. Weed, 17 N. Y. R., 72. ■* Bellinger v. Martindale, 8 How., 113. « Caznean v. Bryant, 4 Abbott, 402; Mills v. Thursby, 11 IIow., 115. ' Bowman v. Seldon, 5 Sand., 657. 446 OTHER INTERLOCUTORY PROCEEDINGS. Costs of mofion. Costs may be allowed on a motion, in the discretion of the court or judge, not exceeding ten dollars.' The principles upon which costs are now allowed in the class of actions we are considering, are the same which prevailed under the old Chancery practice. By that practice generally a party making a successful motion was entitled to costs, but not for an unsuccessful motion ; though, in some cases, he would be ordered to pay costs of the motion even if he succeeded, as where he applied for an order which was for his own benefit.^ If a party has good ground for opposing a motion he may be entitled to the costs of opposing it, notwithstanding the motion is granted. Therefore, where a party moves for more than he is entitled to, he may be ordered to pay the costs of opposing the motion, although the same is granted in part, inasmuch as he has compelled his adversary to come into court and resist his mo- tion.^ And if a party attends for the purpose of opposing a motion, in pursuance of the notice, he is entitled to costs of opposing in case the other party does not appear and bring on the motion.* A moving party is not entitled to costs where he asks for greater relief than the court, on the hearing, decides he is enti- tled to * And if the notice of motion asks f(5r two different modes of relief in the alternative, one of which the moving party is not entitled to, costs of opposing the motion will be allowed to the opposite party .^ And if he claims costs without presenting in his own papers a case which, under any circumstances, would entitle him to costs, the motion will be denied with costs.' The Code provides for no costs of motion unless the same are allowed, and the amount fixed by the court, on the decision of the ' Code, § 315. 2 1 Barb. Ch. Pr., 576. 5 Ibid. Bates v. Loomis, 5 "Wend., 78 ; North American Coal Co. v. Dyett, 2 Edw., ]15. * 1 Barb. Ch. Pr., 576. 5 Steam Nav. Co. v. Weed, 8 How., 50 ; Penfield v. White, 8 How., 88 ; Cor- bin V. George, 2 Abbott, 465. « Smith V. Jones, 2 Code R., 33. ' Wicks v. Southwick, 12 How., 170. HEARING OF MOTION, 447 motion.^ And the amount must be inserted in the order allowing them ; and in cases where the party is required to pay costs, as the condition of granting him a favor, the order should specify the amount, or designate some officer to settle such costs.^ Where costs are asked for by the notice, the motion is made at the peril of the party praying costs if unsuccessful ; and the court will not give costs unless specifically asked for in the notice.^ And where a motion is granted by default, the notice for which does not ask for costs, and the moving party takes his order with costs, it is irregular, and cannot be sustained under the general clause in the notice that he will apply for such other and further relief as the court may think proper to grant.* Costs, how collected. The mode of collecting costs, awarded by orders of the court, is pointed out by statute ; ^ and these provisions of law are not repealed by the Code.® Whenever there is an order of the court directing the payment of costs, process in the nature of a fieri facias may issue against the personal property of the party ordered to pay them without application to the court, upon ex- piration of the time prescribed for payment.' Papers to be filed. The papers used upon the motion are to be certified by the clerk, as read on the motion, and filed with the clerk of the county where the action is triable with the order allowed thereon, which will be considered in the next section. ' Morrison v. Ide, 3 Code R. 27 ; Van Wjck v. Allger, 4 How., 164 ; Nellis v. Deforest, 6 How., 413. 2 Van Schaick v. Winne, 8 How., 6. ^ i B^rb. Ch. Pr., 575. * Northrup v. Van Deusen, 3 Code R., 140. ' Laws of 1840, p. 333, § 15 ; Laws of 1847, p. 491, §§ 2, 3. * Lucas V. Johnson, 1 Code R., N. S., 301 ; Poillon v. Haughton, 2 Code R., 14, '' Weitzel v. ScLultz, 3 Abbott, 468. 448 OTHER INTEELOCUTOEY PROCEEDINGS. SECTIOIST IV. INTEELOCUTOEY OEDEES. An order is said to be the decision of a motion, as contradis- tinguished from a judgment, which is the decision of a trial.^ Perhaps this definition is too narrow. That of the Code is more comprehensive, and is as follows : " § 400. Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order." There can be no doubt, I think, that the "judgment" here referred to means h. final judgment, that is, a judgment corres- ponding with the former final decree in Chancery, as contradis- tinguished from a mere intcrhciitonj decree. An interlocutory- decree was properly a decree pronounced for the purpose of ascer- taining matter of law or fact preparatory to a final decree. Thus, where it was found necessary to make a reference to a master for the purpose of making further inquiries, or to take and state accounts, or sell estates, or adjust other matters which must necessarily be disposed of before a final decision could be made upon the subject matter of the suit, the court, on the hearing, would make an interlocutory decree, settling the rights of the parties, as far as they could then be ascertained, and ordering such reference, leaving the final decree to be pronounced and entered on the coming in of the report, and after the rights of the parties were fully ascertained. This practice is still pursued under the Code, and, indeed, is indispensably necessary in a certain class of equity cases. We shall have occasion to consider it more fully hereafter in speaking of the trial of the cause and the proceedings thereon. It is sufficient to say, here, that such a decision of the court, not being included in a final judgment, is, under the above definition of the Code, an order. And such it has been held to be for the purposes of an appeal.^ Eeserving, therefore, for a subse- quent part of this work, the consideration of such interlocutory ' Bentley v. Jones, 3 Code R., 37 ; King v. Stafford, 5 How., 30. ^ Cruger v. Douglass, 4 How., 215 ; Harris v. Clark, 4 How., 78 ; Beebe v. Grif- fing, 2 Seld., 465 ; Hollister Bank of Buffalo v. Vail, 15 N. Y. R., 593. SPECIAL ORDER, HOW SETTLED. 449 orders, made upon the trial, as correspond with the former inter- locutory decrees of Chancery, I shall, in this section, consider only those other orders which are usually made in the ordinary course of an equity action. Orders under the former practice were either common, or spe- cial, or by consent. Common orders were such as a party was entitled to of course, under the practice of the court, without notice to, or consent of, the adverse party, and without application to the court. As was observed in the preceding section in regard to motions, these do not seem to have a place under our present system. Orders by consent are now entered as formerly in the same manner as common orders were, without application to the court. They are founded upon the written stipulation or consent of the parties or their attorneys, which consent must be filed with the clerk at the time of entering the order. An order on the oral consent of the parties is often made in court, but such consent must be made in presence of the court, and such order entered as the order of the court. It must be reduced to the form of an order by consent, and entered ; other- wise, by the rule of the court,^ it is not binding unless the order be founded on a written stipulation subscribed by the party or his attorney. Special orders, hotv drawn up and settled. An ex parte order is of course always drawn up by the party applying for it, whether the application be made to the court, or to a judge at chambers. The judge will modify the order, or the court direct such modifications of the order presented as it may deem proper. An order to show cause, being a mere notice, is usually allowed in the precise form the party applying for it desires. On the return of such order, the order absolute thereon, if granted, is to be drawn, settled and entered, as other orders allowed on litigated motions. Where a motion has been brought to argument on notice, the court frequently disposes of the motion on the hearing, and directs the terms of the order. In such case, the prevailing party ' Sup. Court, Rule 13. Corning v. Cooper, 7 Paige, 587. V. S. 57 450 OTHER INTEELOCUTOKY PEOCEEDINGS. draws it up on the spot and submits it to his adversary, and if no objection be made, presents it to the clerk to be filed and entered. If there be any objection to the terms of the order, the question is submitted to the court and decided at once. The judge hold- ing the court, however, frequently takes the papers on the motion and reserves his decision. In such cases the judge, after making his decision, usually signifies the result by indorsing a minute of such decision on the papers, which he transmits to the attorney for the prevailing party. It is then the business of such attorney to draft the proper order and have it settled and entered. If the order be special in its provisions, the party entitled to draw it up should submit a copy thereof to the adverse party in order that he may propose amendments to it if he think proper. The former practice was, that the draft order and proposed amend- ments were submitted to the register to be settled by him and entered.^ But the practice now is, if there be any misunderstand- ing or question in regard to the terms of the order, to submit the same for settlement to the judge who made it. And if the parties cannot otherwise agree, the order may be noticed for settlement, on the usual notice, before the judge at chambers. Or the prevailing party may enter, without notice, such order as he conceives the minutes of the judge entitles him to, at his peril of having the same set aside for irregularity, or corrected on motion for embracing other or difierent relief from what the actual decision gives him. The judge granting the order may, if he thinks proper, draw the order himself, or even adopt that previously drawn and furnished him by the moving party, and indorse his allocatur, or allowance upon it ; in which case it may be entered and served without further settlement or notice to the opposite party. Form of the order. If an order is made by a judge at chambers, no caption of the order is necessary. The title of the cause only is set forth, and the order follows, to which the judge affixes his signature. If, however, a chamber order have a caption, as though made at ' 1 Barb. Oh. Pr., 584. FORM OF SPECIAL ORDER. 451 special term, and be signed by the judge, it is not for that reason irregular or imperfect.^ When made as orders of the court in term, they have always the caption usual to Chancery orders : " At a special term of the Supreme Court, held for the State of New York at the Court House, in the city of , on the day of . "Present — Hon. H. H., Justice." The caption is usually of the term at which the motion was made. Though, according to the former practice, it seems, it may be of the term at which the decision was pronounced, or even corresponding to the true time of the entry of the order ; and if a party enters the order as of the time the decision of the court was pronounced, he cannot afterwards object that it was not actually entered at that time.^ The court will not allow a party to be prejudiced by its own delay ; and where its decision of a motion is delayed, the decision relates back to the time when the motion was made, and any proceedings taken intermediate the making of the motion and the announcement of the decision, will be at the risk of having them set aside if conflicting with the decision.^ The caption is followed by the title of the cause, setting forth at length the names of the parties plaintiffs and defendants. Orders are sometimes drawn, where there are several defendants, by set- ting forth the names of one or two of them, and adding "and others" ; but this is not deemed the correct practice ; the names of all the parties should be inserted at length. Where a suit is revived or continued against other parties, the order of revival should be entitled as of the original cause ; but all subsequent orders and proceedings must be entitled in the cause as revived.^ After the title, the order proceeds with a brief reference to the moving papers, and concludes with the ordering part, which contains the directions of the court upon the matter of the appli- cation. It has been well said that, in drawing Orders upon motion. ' In the matter of the Knickerbocker Bank, 19 Barb., 602 ; Dresser v. Van Felt, 15 How., 19. . ' Whitney v. Belden, 4 Paige, 140. ' Wilson V. Henderson , 15 How., 90. * Rogers, v. Paterson 4 Paige, 450. 452 OTHER INTERLOCUTOEY PROCEEDINGS. brevity should be studied, so far as may be consistent with a statement expressing the grounds upon which the order is made, and showing that its entry is regular.^ And thus, to prevent unnecessary prolixity, the 56th rule provides, that orders granted on petitions, or relating thereto, shall refer to such petitions by the names and descriptions of the petitioners, and the date of the petitions, if the same be dated, without reciting or setting forth the tenor or substance thereof unnecessarily. The same rule may very properly be applied to orders made upon affidavits or other papers. It is always sufficient to refer to them by the name of the deponent and date, or in some other way so as to specify the particular paper upon which the order is allowed. How entered or certified, to another county for entry. Orders granted by a justice at chambers ex 'parte need not be filed or entered with the clerk.^ This, however, is to be under- stood with the qualification made by the new rule of the court (Rale 4, revision of 185S), which requires an order for the service of a summons by publication, or an order for a substituted ser- vice of summons, together with the affidavit on which it is allowed to be filed with the clerk of the proper county, forthwith ; and if not filed within five days from the time the same was granted, the defendant may move to set aside the proceedings for irregularity, with costs. The same rule requires the affidavits, on which an injunction order or attachment has been granted, and the under- takings thereon, to be filed in like manner, but does not in terms require the order to be filed or entered. No appeal, however, can be made from an order until it is entered and the moving papers filed with the clerk.^ When an order is made out of court, on notice, the affidavits, &c., used on the motion must be filed with the clerk of the county where the venue is laid.* And in such case, for the pur- pose of an appeal, any party aflTected by such order may require ' 1 Barb. Ch. Pr., 587. ^ Savage v. Relyea, 3 How., 276. 3 Smith V. Dodd, 3 E. D. Smith R., 215 ; Marshall v. Francisco, 10 How., 147. * Nicholson v. Dunham, 1 Code E., 119. ORDERS, HOW ENTERED. 453 it to be entered with the clerk, and it shall be entered accord- ingly.! Where a motion is made to the court in the same county where the action is triable, or in which the special proceeding is insti- tuted, and an order is granted thereon, the order, after being settled, together with the papers used on the motion, is to be filed with the clerk of the county, and the order entered by such clerk in a book kept for that purpose. The amendment to the present 9th rule of the court provides that the respective clerks of the court " shall keep in their respective offices, in addition to the judgment book required to be kept by section 279 of the Code of Procedure, a book properly indexed, in which shall be entered the title of all civil actions and special proceedings, with proper entries under each, denoting the papers filed and orders made, and the steps taken therein, with the dates of the several proceedings." The rule further, among other things, provides, that the clerks shall keep " such other books, properly indexed, as may be necessary, to enter the minutes of the court, docket judgments, enter orders and all other necessary matters and pro- ceedings ; and such other books as the courts of the respective districts, at a general term, may direct." A minute of the order made on motion is entered by the clerk of the court, in his rough minutes, and it seems to be contempla- ted by the above rule that these minutes, as well as the order granted on the motion, are to be entered separately — that is, copied — in a book kept by the clerk for that purpose. The rule has not been strictly carried out in some of the districts so far as regards the entry of the minutes of the court. Orders granted on motion, however, are actually entered, and are deemed so entered, from the time of their being filed with the clerk, and the clerk, if required, will give a certified copy of the order immedi- ately on filing the same, and such order so certified will be evi- dence of the authenticity of the order. If the motion in made and the order granted in a county other than that in which the action is triable, the practice is somewhat different. The clerk makes an entry under the title of the cause Code, § 350. 454 OTHER INTERLOCUTORY PROCEEDINGS. in liis minutes. The order, if settled at special term, is then pre- sented with the affidavits on which it was granted, to the clerk or l)is deputy in court, who certifies the order to the county in which the action is triable, usually as follows : " Allowed to be entered in the office of the clerk of county," dating and signing his name to the certificate. At the same time he indorses the affidavits read by either party "read on motion," dating and signing his name to the same. The attorney for the prevailing party then takes the papers and files them, and enters the order in the proper county. The third rule of the court provides that papers shall be filed in the county specified in the complaint as the place of trial, or in the county to which the place of trial has been changed. And the late amendments (1S6S) to the same rule further provides, that " When the affidavits and papers upon a non-enumerated motion, are required by law to be filed, and the order to be entered in a county other than that in which the motion is made, the clerk shall deliver to the party prevailing in the motion, unless the court shall otherwise direct, a certified copy of the rough minutes, showing what papers were used or read, together with the affidavits and papers used or read upon such motion, with a note of the decision thereon, or the order directed to be entered, properly certified. And it shall be the duty of the party to whom such papers are delivered, to cause the same to be filed and the proper order entered in the proper county within ten days there- after, or in default thereof he shall lose the benefit of the said order." If the decision has been reserved, and the judge subsequently grants the motion and allows the order, no certificate of the clerk is necessary, but the decision of the judge, usually indorsed upon the moving papers, is filed as a sufficient authority for the entry of the order. Or if the judge has himself drawn or allowed an order drawn for that purpose, such order, with his certificate of allowance thereon, is filed with the moving papers and entered by the clerk of the proper county. In the Superior Court of New York, if an order is entered ex ■parte and the opposite party is dissatisfied with it, he may, on a ORDER, now SERVED. 455 notice of two days, have a re-settlement.i In the Supreme Court no practice seems to be settled on this subject other than that if the party be dissatisfied with the entry of a special order ex parte, or without being properly settled, the party dissatisfied may move, on the usual notice, before the judge who granted the order for a resettlement. Service of orders. After an order has been drawn up, settled and entered, it is then to be served when service is necessary. Where an act is directed to be done within so many days after service of the order, a copy must be served on the opposite attorney. But where the act is directed to be done within so many days after the date, or of the entering of the order, the court intends the party shall take notice of the order without service or express notice thereof;^ that is, of course, where the opposite party is present in court at the time of the granting of the order, in which case only he is intended to have notice, so as to render service unnecessary. It is a general rule that all orders which are to have the effect of requiring or limiting any act of the opposite party to be done within a specific time, or to bring him into contempt for disobe- dience, must be served, or actual notice thereof given.^ With respect to the manner of the service, it is to be observed, that all orders which do not seek to bring a party into contempt, may (and, indeed, must) be served upon the attorney of such party, if he has appeared by such attorney.^ But where the object is to bring a party into contempt, the order must be served personally upon the party, which is done by delivering a copy of such order to such party, and at the same time showing him a certified copy thereof, or the original. That is, if the order has been made by a judge out of court, the service is made by deliver- ing a copy to the party, and at the same time showing him the original with the signature of the judge.® But, if the order is made in court, service of a copy, certified by the clerk, is suffi- ' Voorhies' Code (Oth ed ), 551. " 1 Barb. Oh. Pr., 590. 3 Ibid. * Ihid. Tripp v. De Bow, 5 How.. 114. ' Coddington u.Webb, 4 Sand., 439; Watson v. Fuller, 9 How., 426. And see opinion of Bosworth, J., in People v. Compton, 1 Duer, 553, 554. 456 OTHER INTERLOCUTORY PROCEEDINGS. cient, without exhibiting the original.^ And in all cases of bring- ing a party into contempt, service must be made upon the party though he has appeared by attorney ;2 and the general provisions of the Code respecting the service of papers are, by section 418, declared not to be applicable to the service of any yaj)er to bring a iiarty into contempt. A personal service of the order, however, is sometimes dis- pensed with, as where the party cannot be found, or for some other reason service upon him is impracticable, in which case substituted service may be made upon his attorney, or in such other way as the court in the order may direct. And where an order is served upon the attorney, if knowledge of such service is brought home to the party, he will be in contempt for not obey- ing the order, in the same manner as if it had been served upon him personally.* There is no such thing now as a contempt for disobeying an order of the court for the payment of interlocutory costs. Such costs are now, as above remarked, collected by execution, and the order, therefore, need be served only on the attorney in the usual way of serving other papers in the cause. In regard to all orders other than those to bring a party into contempt, the service is made in all respects like the service of notices, which has been already sufficiently considered. The attorney usually indorses on the copy served a notice to the oppo- site attorney, that it is " a copy of an order entered in this cause in the office of the clerk of county," but this is unneces- sary. Construction and effect of orders, and within what time to he comjilied with. An order made by an officer or court having no jurisdiction is void and may be treated as a nullity, as for example an injunc- tion order, granted by a county judge, to suspend the general and ordinary business of a corporation;'' or an order made on ' Maydr, &c., v. Conover, 5 Abbott, 244. ^ Becker v. Hager, 8 IIow., 68. ' People V. Brower, 4 Paige, 360 j People ti. Compton, 1 Duer., 558. And see preceding chapter on " Injimctions," and mode of service of same, ante, pages 364-3C6. * Code, § 224. CONSTRUCTION AND EFFECT OF ORDERS. 457 motion in a wrong county .^ So an order returnable on a Sunday- is void f and so also, it is said, an order made out of court, and without notice, staying proceedings for more than twenty days.^ But, on the other hand, an order which is irregular merely, though made ex "parte, is not void, but remains in force until it is ■ set aside or is waived by stipulation.'' Nor can it be treated as a nullity on the ground that it was improvidently granted, or improperly, or even fraudulently, obtained ; but the proper remedy, in such cases, is to move to have it vacated.* And in like manner if an order has been entered in violation of one of the standing rules of the court it cannot be disregarded by the parties or the officers of the court, so long as it remains in force.^ In all such cases a motion should be made to set it aside on account of the irregularity ; and where it has been obtained through inadvertence, or mistake, or fraud, the injured party should apply to open the motion or vacate the order. It is a general rule that every irregularity in an order is waived by the party taking a step which recognizes the order, or by his delaying to move to set it aside.' But there is a distinction between orders which are merely irregular, and such as are altogether erroneous, and in which there is a substantial, not merely a formal defect.^ As to the time when orders take effect, and within which they are to be complied with, it is to be observed, that an order must be drawn up and entered before it can take effect, or either party can claim or have any benefit from it.' • Newcomb v. Reed, 14 How., 100. And see 13 How., 374 ; 6 How., 3G7 ; 19 Barb., 587 ; 12 How., 35. '^ Arctic Fire Ins. Co. v. Hicks, 7 Abbott, 204. ^ Bangs V. Selden, 13 How., 374. And see cases cited in Voorhies' Code (6th ed.), p. 555. ■• Hunt V. Wallis, 6 Paige, 371. ° Harris v. Clark, 10 How., 416 ; Hempstead v. Hempstead, 7 How., 8. And see preceding chapter on " Injunctions" as to the force and effect of an irregular injunction order, ante, page 367. « Osgood V. Joslin, 3 Paige, 195 ; Studwell v. Palmer, 5 Paige, 82. ' Brashcr's executors v. Van Cortlandt, 2 John. Ch. R., 247. » Levi V. Ward, 1 Sim. and Stu., 334. ' Whitney v. Belden, 4 Paige, 140. V. S. 58 458 OTHEE INTERLOCUTORY PROCEEDINGS. There is a large class of orders which, either from their nature, or by the express direction of the court, take effect only from the time of service thereof; such are orders to deliver possession, to produce books, to sh6w cause upon contempts, for time to • answer, &c., &c.' In regard to the time within which an act is required by an order to be done, or a proceeding had, the practice now is similar to the former Chancery practice, which, by its rules, in the com- putation of time, included one day and excluded one, Section 407 of the Code, provides that "the time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded." Thus, an act required to be done within twenty days after service of the order, must, if the order have been served on the 1st of the month, be performed on the 21st, or the party will be in default. If an order, however, direct an act to be done after the expiration of a certain number of days, — say thirty days — it cannot be performed till the 31st day.^ Where an order is granted on a condition, the condition must, by the former practice, be performed within twenty-four hours, unless otherwise expressed in the order.^ That is, a conditional order, if not otherwise directed, must be performed instanter, which it is said means twenty-four hours.^ But it was held, in one case, in the former Court of Chancery, that where a paper was directed to be deposited forthwith, the party was not entitled to twenty- four hours after service of the order, but must comply imme- diately, or within a reasonable time after service of the order.' Twenty-four hours, however, is in general considered a "reason- able time." But by the 57th rule (of the revision of 1858) it is provided in regard to the time of complying with conditional orders, that "in all cases where a motion shall be granted on payment of costs, or > 1 Barb. Ch. Pr., 588. 2 Judd V. Fulton, 4 How., 298. And see as to mode of computing time of serving notices, ante, page. " Labin v. Johnson, 7 Cow., 421. ■" 1 Barb. Ch. Pr., 588. ^ The People v. Brower, 4 Paige, 405, OEDEE, HOW ENFOECED. 459 on the performance of aiay condition, or where the order shall require such payment or performance, the party whose duty it shall be to comply therewith, shall have twenty days for that purpose, unless otherwise directed in the order. But where costs to be adjusted are to be paid, the party shall have fifteen days to comply with the rule, after the costs shall have been adjusted by the clerk on notice, unless otherwise ordered." Where such conditional order has been entered, the party claiming the benefit of it must, within the time limited by the above rule, perform the condition, and for this purpose he must seek out the attorney for the adverse party and perform, or offer to perform, the terms, or he will lose the benefit of the order ; ' and the other party may proceed as if no such order had been made.^ Care should always be taken to distinguish between such orders as are properly conditional, that is such as make the terms imposed a condition precedent to the doing of the act, and such as do not. Thus an order granted on payment of costs is a con- ditional order, and is of no force unless the costs be paid in- stanter — that is within twenty-four hours by the old rule,^ but within twenty days by the new. But an order granted allowing or requiring an act to be done, and costs to be paid, is not a con- ditional order, the payment of the costs not being a condition precedent.* Orders, how enforced. It has been before observed that the proceeding, so common under the former equity practice, to enforce payment of interlo- cutory costs by process of contempt, is abolished ; and such costs are now collected by means of an execution in the nature of a fieri facias. The court may enforce other orders for the payment of money, or the doing of some other specific act, by process of contempt, according to the former practice. In order, however, to found pro- cess of contempt, for disobedience of an order to pay money, 1 Hoffman v. Tredwell, 5 Paige, 82. » Pugsley V. Van Allen, 18 John., 352. » Ihid. < 4 Sand.. 647. 460 OTHER INTEELOCUTOEY PEOCEEDINGS. proof must be made to the court of a demand made by a person authorized to receive it.' But where some other specific act is required to be done, within a time or at a place mentioned in the order, service of the order will be a sufficient demand, and pro- cess of contempt may be founded on proof of the service of the order, and neglect or refusal of the party to comply therewith. On such an application the court will give the party proceeded against the benefit of the fact that the order ought not to have been made.^ It is provided by the 56th rule of the court (corresponding with 123d Chancery rule), that any order or judgment directing the payment of money, or affecting the title to property, if founded on petition, where no complaint is filed, may, at the request of any party interested, be enrolled and docketed, as other judgments. When a decretal order is thus enrolled and docketed it may be enforced in the same manner as a judgment, which proceeding will be noticed in a subsequent chapter. It was the practice in equity (which no doubt still prevails), that where it is intended to enforce an order against a person not a party to the record, he must be personally served with the order directing him to pay in the money or do the act which he is ordered to perform, and then upon an affidavit of the personal service of that order, and that the act has not been performed, or upon production of the register's (clerk's) certificate that the money is not paid in, an order may be obtained upon a notice of motion (which notice must be also personally served), that the money may be paid in, or the act required done, within a limited time, or that the person may stand committed. This order is usually called an order nisi. It cannot be obtained, however, unless there has been a previous order limiting a time for pay- ment ; except in the case of a balance due to an attorney upon taxation of his bill.^ The order nisi having been obtained, and served personally, the party prosecuting the contempt may apply by motion ex parte, that the contemner may stand committed, upon producing an ' Wilkins v. Stevens, 19 Ves., 117. " 1 Barb. Ch. Pr., 594. s Ibid., 594, 595. ORDER, HOW MODIFIED, &C. 461 affidavit of personal service of the order nisi^ and that the act required to be done has not been performed, or the register's (clerk's) certificate that the money has not been paid in.i , The provisions of the Revised Statutes, relative to proceedings as for contempts to enforce civil remedies, and to protect the rights of parties in civil actions, are saved from the operation of the Code by section 471; and such proceedings may still be taken, according to the former practice, under the thirteenth title of chapter 8, part 3 of the Statutes.^ Opening, modifying and discharging orders. It is a general rule, that every order made in the progress of a cause, may be set aside or vacated, rescinded or modified, upon a proper case being made out.^ It has been observed on a former page,^ that orders, unless void for want of jurisdiction, or some other substantial and fatal defect, are to be obeyed until set aside, and that where an order is taken against a party irregularly, or in violation of the rules of the court, or by inadvertence, or surprise, or through fraud, his remedy is by motion to set it aside for the irregularity, or in a proper case shown of mistake, surprise, &c., to open the motion or vacate the order, or to modify the same. The motion in such cases is noticed, and brought on for hearing, in precisely the same manner as other special motions, and as already described in the former part of this section. In the three preceding chapters on " Injunctions," " Receivers " and " Ne Exeats," I have had occasion to allude to the subject of motions to open, vacate, or modify orders granted in proceedings to enforce these several provisional remedies ; and as the practice in such cases does not materially difier from the practice in respect to any other kind of motion to open, vacate or modify an order, it is scarcely necessary to pursue the subject further in this connection. » 1 Barb. Ch. Pr., 594, 595. " See post, chap. XVII, sec. 2, as to mode of enforcing judgment by process as for contempt, the proceedings upon which are similar to those had on such process when used to enforce an order. " 1 Barb. Ch. Pr., 595. ■* Ante, page 457. 462 HEARING AND TRIAL. CHAPTER XIV. HEARING AND TRIAL OF THE CAUSE. Section I. Of certain incidental matters pertaining to the trial, II. Trial by the court of an issue of law and of an issue of fact. III. Trial by referees. IV. Trial of issue of fact bt jury, and subsequent Ipboceedings thereon to judo- ment, SECTION I. OF CEETAIK INCIDENTAL MATTEES PERTAINING TO THE TEIAL. The cause having been fully prepared and regularly noticed, and (unless to be tried by a referee,) placed for trial upon the calen- dar, either of the Circuit Court, or regular special term for the trial of issues, in the county where the action is triable, is brought on for hearing, usually in its order on the calendar, unless the court, for some very special reason, give it a preference, or reserve it for some future day in term. Motion to correct calendar. If the cause is not properly on the calendar, or is not in its proper place, a motion may be made to correct the calendar, in respect to its position thereon. These motions are made before calling the calendar, and have preference over other motions. Motion to suppress depositions. In case notice has been given of a motion to suppress depositions at the hearing, it is usual to bring it on before entering upon the trial of the cause. The court may either decide the question at once as to the admissibility of the depositions, or may allow them to be read de bene esse, reserving the question until the final disposition of the cause.' » 1 Barb. Oh. Pr., 316. And see ante, pages 293, 295. INCIDENTAL MATTEES PERTAINING TO. 463 Motion to postpone cause. If either party is unprepared to go to trial for any cause, a motion may be made to put the cause over the term when it is called in its order, or at any time before, without notice if the attorney of the adverse party is present. The motion is made upon affidavit, stating the particular cause for postponement, as the absence from the state of a material witness, the inability of the attor- ney of the moving party to attend by reason of sickness, &c., &c. ; though not unfrequently the motion is made less formally, on the mere oral statement of the counsel moving, unless the same be denied by the opposite party, or be required to be put in the form of an affidavit. The court will allow the adverse party, if he desire it, time to prepare an opposing affidavit before deciding the motion ; and the application is then granted or refused upon the case as presented by the affidavits. The motion to postpone is always addressed to the discretion of the court, and will not be granted where it appears that the object is for delay merely, or that the party moving seeks to obtain thereby any unfair advantage, or that no substantial right will be jeoparded by a refusal to grant the motion. When allowed as a favor to the moving party, it is, in most cases, upon terms, which usually are that the moving party pay the costs of the cir- cuit or term, including the fees of witnesses.' It has been held that where a party obtains the postponement of a trial to a subsequent term on payment of costs, if he omits to pay, the adverse party, on the cause being moved for trial, may insist on having the trial proceed, or may waive that right and the court will compel payment.^ But this decision seems now inapplicable, unless indeed the adverse party take the precaution to obtain a provision in the order granting the postponement that the costs be pa.id forthwith. If he do not, the 67th of the present rules applies, which gives the party twenty days for the payment, unless the order otherwise direct ; and where costs are to be ' The costs on postponing a cause at the circuit or special term cannot exceed ten dollars, besides the fees of witnesses, though they may be less than that sum. See Code, § 314; Noxon v. Bentley, 6 How., 418. 2 Bulkley v. Keteltas, 2 Sand., 375. 464 HEARING AND TRIAL. adjusted (as in such case the witnesses' fees may be directed by the court to be) the party has fifteen days after such adjustment to comply, unless otherwise ordered. The only mode, therefore, to enforce the payment of such costs, unless the same be directed to be paid (or adjusted without notice and ])a.id) forthwith, seems to be by process in the nature of an execution, as noticed in a preceding section ;' for, an attachment to enforce payment will not be allowed.^ Referring cause on trial. The practice on moving to refer a cause of an equitable nature upon notice before trial, has been already fully considered in a separate section.^ It is only necessary here to observe further, that, like the motion to pospone, it may also be made on moving the cause for trial in its order on the calendar, or even at any time before in term, without notice, in the presence of the oppo- site attorney, who will be allowed a proper time to prepare his counter affidavits if he desires. And the court, in its discretion, may even arrest the trial after it has begun and progressed, and order the whole issue referred to a referee to hear and determine, if satisfied that the cause is one which ought to be referred within the rules heretofore noticed in regard to references.^ But if the court is satisfied from the facts before it that the plaintiff cannot establish a sufficient title to relief, a reference will not be ordered.* Hear ins; cause out of its order or two causes together. Although, as already remarked, the usual course is to hear causes in their order on the calendar without giving any prefer- ence to one issue of fact in an equity case over another, yet they are sometimes heard out of their order,^ and on application and sufficient cause shown, advanced for hearing.'' In cross-suits, and also in other suits where there are two causes between the same parties, involving the same point in dis- 1 Ante, chap. XIII, sec. 3. " Vreeland v. Hughes, 2 Code R., 42. 3 Ante, page 323, et seq. ^ Ibid. ^ Dominick v. Michael, 4 Sand., 374. ' Reference is here made, of course, only to such issues of fact as do not have preference over each other; and does not include those which have preference under some special statute. ' 1 Barb. Ch. Pr., 319. INCIDENTAL MATTERS PERTAINING TO. 465 pute, and where it is material that both causes should be heard together, if both are noticed and on the calendar, but stand at a distance from each other, the court will permit the cause which stands last to be advanced, or that which stands first to be post- poned, so that both may come on at the same time ; and, if it be necessary, the depositions taken in one cause to be read in the other — an order for that purpose having been previously ob- tained.* Default on the hearing. Section 258 of the Code provides, that, in the absence of the adverse party, either party noticing the cause may proceed with it, unless the court for good cause otherwise direct, and take a dismissal of the complaint, or a verdict or judgment, as the case may require. The proceedings in such cases have been already fully considered in another part of this work.^ Separate trial. The same section of the Code further provides that a separate trial between a plaintiff and any of the several defendants, may be allowed by the court whenever, in its opinion, justice will be thereby promoted. And the third subdivision of section 274 provides, that in an action against several defendants the court may, in its discretion, render judgmeni; against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. These provisions of the Code seem, thus far, to have been use- ful in practice when applied to actions of a common law origin ; as, for example, in actions against several parties separately liable on a bill or note, where tlie trial is put off on the application of some of them, the plaintiff may be allowed to go to trial against the others and take a separate j udgment. Generally, in an action of an equitable nature, only a single decree or final judgment can be made which must determine the rights of, and embrace all the parties before the court interested in the controversy ; and how- ever diverse or conflicting those rights may be, the court will usually dispose of them by a single judgment or decision that ' 1 Barb. Oh. Pr., 319. = Ante, pages 140-143. V. 8. 59 466 HEAEING AND TEIAl,. will finally determine the whole controversy. The action will not generally be allowed to be severed as between different de- fendants. Thus, it has been held, that the court has no authority to divide an action for the foreclosure of a mortgage and render a contingent judgment for the balance of a debt remaining un- satisfied after a sale of the mortgaged premises, previous to the rendition of the principal judgment for the foreclosure and sale of the premises.' Nor where defendants separately appear will the court allow the action to be brought on upon notice given either by, or to one of them, and permit a separate trial.^ Perhaps the practice may be properly allowed, and, in some cases, useful, where one or more defendants, under, subdivisions one and two of section 274 of the Code, claim a separate judg- ment for affirmative relief against the plaintiff, and the separate answer of the others is defensive merely. If the court can see that such separate judgment for affirmative relief would be proper on the facts alleged, the trial might he allowed to proceed on mo- tion of such defendants, where the other defendants made out a case for a postponement as to them. In such case, however, the defendant claiming such relief must have noticed the cause and must move it for trial .^ Perhaps, also, it is allowable where some of the defendants set up equitable rights against others of the defendants, growing out of or connected with the plaintiff's claim, leaving still others of the defendants not affected by such claims, but relying upon defensive answers merely. These casesj however, must be rare, and none have fallen under my observation, either reported or in practice. The power of the court, sitting without a jury, or of a referee, in the trial of equitable actions, to adapt such trial to circumstances both as regards the issues and the parties, and to mould the judg- ment in such form as to determine all the matters in controversy, however diversified, dismissing the complaint as to some of the defendants, and sustaining it as against others; granting affirmative relief to a portion of them, and settling equitable claims between the rest, and embracing all this in one final decision and judgment, ' Cobb V. Thornton, 8 How., 66. ^ Ward v. Dewey, 12 How., 193. 5 Wheeler v. Wilson, 6 How., 49 ; Roy v. Thompson, 8 How., 253. INCIDENTAL MATTERS PERTAINING TO. 467 renders it, as a general rule, unnecessary, if not improper, to allow, in equitable cases, a severance of the action and separate trials as to a part of the defendants. Bringing cause to hearing and motion for judgment on -pleadings alone. It was the practice in the Court of Chancery, in certain cases, to bring on a cause for hearing on bill and answer alone (without taking any proofs) in which cases every allegation set up in the answer, whether responsive to the bill, or of pure avoidance, and whether set forth positively, or on belief alone, was taken as true.* The same may be done now by the simple process of inter- posing a demurrer to the answer. Or, if the answer is in the nature of a counterclaim, or defense to only a part of the plain- tiff's complaint, admitting the residue, the plaintiff, if- he choose to take judgment for such residue alone, may move for such judg- ment at the hearing (or before on notice), conceding on such motion the counterclaim or answer to be true. Even if the plaintiff have served a reply to a counterclaim going to only a part of the plaintiff's complaint, leaving another por- tion unanswered, such plaintiff may, if he choose, waive the reply and move for judgment, on such part of the cause of action as remains unanswered, conceding thereby, of course, the truth of such counterclaim. Or, if it be not really a valid counterclaim, he may move for and obtain judgment on his complaint, disre- garding the counterclaim.^ And, generally, it may be said, that when a cause is moved for trial on notice, either party, before going into any proof, may move for such judgment as he conceives he is entitled to on the pleadings alone.^ By section 168 of the Code, it will be recol- lected, every material allegation of the complaint not controverted by the answer ; and every material allegation in a counterclaim, ' Brinkerhoff «. Brown, 7 John. Ch. E., 217. 2 Van Valen v. Lapham, 13 How., 246. ' The N. Y. Superior Court has adopted a rule (see Voorhies' Code, 6th ed., p. 655), which gives either party the right, with his notice of trial, to give notice also that he will move, on the first day of the term, for judgment upon the plead- ings, or upon the pleadings with such admission on his part, as he may specify ; and he may thereupon move for such judgment as he may be entitled to upon the pleadings, wit or without such admission. 468 HEAEING AND TRIAL. not controverted by a reply, are to be taken as true. These uncontroverted allegations, therefore, are admissions for the pur- poses of such motion, which cannot be contradicted or varied by ' proof on the trial, and a judgment vi^ill not be permitted to stand contrary to such admissions.' But the material facts in a mere defensive answ^er are (by the same section) deemed controverted, and if the plaintiif moves for judgment on his complaint and such an answer, be concedes the truth of every material allegation therein, and the question is presented precisely the same as though brought up on demurrer. The defendant, also, may, before entering into proofs, move for judgment against the plaintiif on the pleadings as they stand, as for example if his answer be a counterclaim to which no reply has been served, and he has not yet availed himself of the- motion for judgment allowed by section 154.^ Or, though a reply by the plaintiff be interposed denying the truth of the counterclaim, yet, if the complaint show upon its face that the plaintiff has no title to relief, the defendant may move for judgment of dismissal, for no proof can supply such a defect, which is fatal everywhere, whether a demurrer have been interposed or not.^ On such a motion for judgment upon complaint and counter- claim to which no reply is filed, the court might, perhaps, in a special case, permit a reply to be filed nunc pro tunc, in analogy to the former practice.* But the general rule no doubt is, now as formerly, that unless a reply be put in, the complainant, if he brings the cause on to a hearing, must submit to take the answer (counterclaim) as wholly true, because the defendant has been thereby prevented from proving the truth thereof.* ' Hackett v. Richards, 11 Leg. Obs., 315 ; Bridge v. Payson, 5 Sand., 310. ^ That section is to be construed (in connection with section 168) as though the word "counterclaim," was used therein instead of the word " defense." See cases cited under section 154, Voorhies' Code. 2 Code, § 148 and cases cited in Voorhies' Code, 6th ed.; Bumham v. De Be- voise, 8 How., 159 ; Budd v. Bingham, 8 Barb., 494 ; Bennett v. American Art Union, 5 Sand., 614. " 1 Barb. Ch. Pr., 319. s jjj^. INCIDENTAL MATTERS PERTAINING TO. 469 Objection to the jurisdiction. Equity had no jurisdiction where the complainant had a perfect remedy at law ; but if the defendant brought on his cause without objecting this by answer, it was too late to raise the objection at the hearing.i This, of course, is wholly inapplicable to the present system, as no such objection can now be taken. An objection to the jurisdiction is not waived by any pleading on the part of the defendant.^ He may, therefore, if it appear on the face of the complaint that the court has not jurisdiction, no matter what may be the subsequent pleadings, move for judgment of dismissal before or after entering upon the trial.^ , The proper time, if the objection has not been previously taken, would seem to be when the cause is called and before entering upon the proofs. Objection for want of •parlies. The subject of parties to the action was fully considered in a former part of this work.* It was observed that the plaintiff must bring all necessary parties before the court, and that no one was bound by the judgment who was not a party to the suit. The subject of bringing in other parties was also considered^ in con- nection with that provision of section 122 of the Code (which is entirely similar to the former rule in equity) that "when a com- plete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in." It frequently happens that after a cause has been gone into and partly, or even thoroughly heard, the court has found it neces- sary, on its own motion, to let it stand over for the purpose of amendment by adding and bringing in parties. This objection, though it may be raised by the court at any time, either during the trial, or after a trial has been had,^ or even on appeal at gene- ral term from a judgment,' ought to proceed from the defendant, ' Le Roy v. Piatt, 4 Paige, 77. = Code, § 148. ^ Valarino v. Thompson, 3 Seld., 576 ; Hernandez v. Carnobeli, 10 How., 433. * Sec. 2, chap. 3, ante, pages 70-78. = Ante, pages 82-84. ' Powell V. Finch, 5 Duer, 666. ^^ 7 Shaver v. Brainard, 29 Barb., 25. See also State of New York v. Mayor of New York, 3 Duer, 121 ; Caswell v. Neville, 12 How., 445. 470 HEARING AND TRIAL. for, the analogous practice ia Chancery was, that the complainant, bringing his cause to a hearing without proper parties, cannot put it off without the consent of the defendant; though cases of exception sometime occurred, as where, for instance, the com- plainant was not aware of the existence of persons whose claims could touch the interests of those who were upon the record.' There are cases also where the bringing in of another party is for the protection of the defendant's rights, in which cases the bring- ing in of such party is his privilege which he may waive if he chooses.^ An objection at the hearing for want of a particular party, may be obvfated by the complainant's waiving the relief he is entitled to against such party, where this can be done "without prejudice to the rights of others or by saving their rights."^ On the same principle the defect of parties may be cured at the hearing, now as under the former practice, by the undertaking of the complainant to give full effect to the utmost rights which the absent party could have claimed; those rights being such as could not affect the interests of the defendants before the court.^ Ordering cause to stand over to add 'parlies. If the objection for want of parties has been taken by answer, and the complainant proceeded to hearing, by the former practice the court naight refuse to permit the cause to stand over and dismiss the bill with costs.^ But in other cases, where the defect appeared on the hearing, it was never the practice to dismiss the bill, but only to order it to stand over on payment of costs, in order to give the complainant an opportunity to make the proper parties.^ The same practice is now pursued. Indeed, it is held, that niere is no discretion in the court in such cases to dismiss the bill, ' James v. Jackson, 16 Ves., 356 ; 1 Barb. Ch. Pr., 320. 2 MoMahon, adm'r, v. Allen, 12 How., 45 ; Sturtevant v. Brewer, 17 How., 571. 3 Ibid. Code, § 122. * Ibid. ' Van Epps v. Van Deusen, 4 Paige, 64. « Ibid. O'Brien v. Heeny, 2 Edw., 242; Colt v. Lasnier, 9 Cow., 320 ; 1 Barb. Ch.Pr., 321. INCIDENTAL MATTERS PERTAINING TO. 471 but that it is its imperative duty, to order the cause to stand over and allow an amendment to the process and pleadings by adding the proper parties.^ How other parties are to be brought before the court. This must be by an amendment of the process (summons), and pleadings. An order is dravrn up and entered in the usual v?ay with the clerk, that the cause be put over to a subsequent term of the court (either with or without the payment of costs, as the court may direct), and that the plaintiff amend the summons, pleadings and proceedings in the cause, by adding the proposed parties,^ mentioning their names, and (if necessary) also by insert- ing in the complaint proper allegations to connect such parties with the cause of action. When this is done, the plaintiff must serve a copy of the amended complaint upon all the defendants who have appeared ; for the effect of making amendments is to strike out the issues that have been joined, and it is the right of the defendant who has already answered, to put in a new answer to the amended complaint.* The amended summons and complaint should also be filed. In all cases the party to be brought into court, must be served with the amended summons, and amended complaint, if he demand a copy within the specified time, the same as any other defendant ; for there is no mode of bringing a party into court against his will, except by service of process.^ The usual course is to serve the amended summons and complaint together, as it will facilitate the joining of issue, the defendant so served having the usual time to answer. The mere service upon the parties to be brought in of an order making them such parties, without service of a summons, is inefiectual to bring them into court, even where they have succeeded to the right of a defendant who has appeared in the ' Davis V. Mayor, &c., of N. Y., 2 Duer, 663 ; Vandewerken v. Vandewer- ken, 7 Barb., 221. 2 Ibid. Shaver v. Brainard, 29 Barb., 25 ; Powell v. Finch, 5 Duer, 666 ; Stur- tevant v. Brewer and Caldwell, 17 How., 581. ^ Ward V. Dewey, 12 How., 193 ; Akin v. Albany Northern Railroad and others, 14 How., 337. * Akin V. Albany Northern R. R. Co. and others, 14 How., 337 472 HEAKING AND TEIAL. action, and stand in a purely representative capacity, as, for example, receivers or trustees of such defendant served with process. A proceeding of this kind, is ineiFecual for any purpose, and, unless the defendants so served with an order only and not a summons, choose to appear, voluntarily in court, and submit to the jurisdiction, a judgment rendered against them is irregular, and will be set aside on motion, with costs.^ When a cause is directed to stand over for the purpose of adding parties, and the plaintiff neglects to proceed under the order and bring the proper parties before the court, the defendant may move to dismiss the complaint for want of prosecution.^ SECTION II. TEIAL BY THE COUBT OF AK ISSUE OF LAW, AND OF AN ISSUE OF FACT. The trial of an issue (of fact) in an action of an equitable nature by the court, is what, under the former Chancery practice, the hearing of an equity suit was, by the chancellor or a vice- chancellor, the most important difference being that noticed in the commencement of this work, that the testimony is now taken orally in court, instead of being read from depositions previously taken on commission or by an examiner. The term trial, also, is more comprehensive and embraces as well the determination of an issue raised by a demurrer, as of an issue of fact. It is thus defined by the Code, section 252 : " A trial is the judicial examination of the issues between the parties whether they be issues of law or of fact." Hence every final determination upon " the issues" joined in an action, resulting or embraced in a judgment, is a trial. A judg- ment of dismissal of the complaint, after answer, on the ground that it contains no cause of action, or discloses a want of juris- diction, or a judgment for either party upon the pleadings in the various cases mentioned in the preceding section, is a trial. The mode of bringing the issue to trial, the tribunal before which it is to be heard, and the various incidental proceedings ' Akin V. Albany Northen R. R. Co. and others, 14 How., 337. « 1 Barb. Ch. Pr., 322 ; Rule 27. OP ISSUE OF LAW. 473 connected with such trial up to the time when it is actually entered upon, have been already noticed. I propose here to con- sider the course taken upon the actual trial, 1st, of an issue of law ; 2d, of an issue of fact. Issue of law. By section 249 of the Code an issue of law is defined to be one which arises : " Upon a demurrer to the complaint, answer, or reply, or to some part thereof." When issue of law has preference. There is some discrepancy in the several provisions of the Code on this subject, thus : Section 255 provides that issues of lavf shall, unless the court otherwise direct, have preference on the calendar. Section 251 also provides that when issues of law and of fact arise upon different parts of the pleadings in the same action, the issues of law must be first tried unless the court otherwise direct. But section 257 provides that, unless for the convenience of parties or the dispatch of business, the court shall otherwise direct the issues on the calendar shall be disposed of in the following order : 1. Issues of fact to be tried by a jury. 2. Issues of fact to be tried by the court. 3. Issues of law. The discrepancy between these various enactments is to be reconciled only by referring the whole subject to the discretion of the court, which, it is to be observed, is to be exercised in each case, and indeed, as was elsewhere observed,^ the whole subject of the calendar and the order of trials is under the power and control of the court. Section 251, above noticed, however, is pretty generally ob- served, and is manifestly the most proper and convenient practice. Issue of law, how tried. The trial of an issue of law is merely an oral argument in court before the judge ; sometimes a submission of the cause on Ante, page 331. 474 HKAEING AND TRIAL. written points without argument, the papers (copies of the plead- ings) being furnished to the court by the party bringing on the argument. Copies of the points to be used on the argument, containing references to the authorities cited, should also be furnished to the court and the opposite counsel. The argument is opened by the counsel for the party demurring. The counsel for the opposite party replies ; and the argument is closed by the counsel for the demurrant. If there be an issue of law and of fact in the same case, the court will determine, when the cause is moved, whether the trial of the issue of law shall be postponed to that of the issue of fact, and no previous order is necessary. Judgment on issioe of law, when and how rendered. The decision may be pronounced on the argument, in which case an order may be drawn up on the spot and submitted to the opposite counsel, or settled by the court and entered. And by the amendment to section 267 of the Code, in 1860, the decision must state the conclusions of law found. Or, the court may take the papers for examination, and render the decision at any time thereafter; which is usually done by briefly indorsing the same on the papers (unless an opinion is written out in full), and transmitting them to the attorney for the prevailing party. The order is then drawn up by him, and entered and copy served in the usual manner. Where there is an issue both of law and of fact in the same action, the trial of the former almost invariably occasions a post- ponement of the trial of the latter. Thus, where the defendant has demurred to one of several separate causes of action in the complaint, and answered the residue, it would be manifestly improper to allow the action to be partly tried on the issues of fact, leaving the other issues to be settled and tried in future ; for, the court on the decision of a demurrer, usually gives the party against whom the decision is made, leave to amend, who then has the opportunity of framing other issues of fact in the action. Cases occur, however, in which, the decision being made on the argument, such issues are framed on the spot. As where the OF ISSUE OF LAW. 475 plaintiff demurs to one of several answers, and the demurrer is overruled, the answer thus demurred to then makes an issue, unless it be a counterclaim, in which case the plaintiff, if he please, may draw and serve a reply at once and go to trial. Or, if such demurrer be sustained, the defendant, if he please, may abandon the answer demurred to, or amend it on the spot and go to trial. Final judgment against a defendant on an issue of law, cannot be perfected where there are issues of fact undisposed of. The decision remains an order merely, from v^hich the losing party has the right of appeal to the general term, but not to the Court of Appeals, and the prevailing party must await the determination of the issues of fact before he can enter and perfect final judgment on the whole record.^ Final judgment against a plaintiff, however, may be entered on an issue of law, where there are still issues of fact in the same action. The practice in this respect is well expressed in a recent case^ to be that, " If there is an issue of fact and also an issue of law, and the latter is first tried, and the decision upon it is in favor of the defendant, but the question decided does not bar the action,^ the issue of fact must be tried before the judgment roll is made up ; but if the defendant's plea in answer is sufficient to bar the action, and is demurred to, and the demurrer is determined in favor of the answer, the judgment that the plaintiff take nothing by his complaint, is the proper judgment, though there may be issues of fact joined in the cause. The reason of this is quite obvious. If the defendant states in one answer facts which constitute a bar to the action, and these facts are admitted by the demurrer, there can be no necessity of trying any of the issues of fact, as the defendant must have judgment upon the whole record." • Paddock v. The Springfield Fire Ins. Co., 2 Kern., 591. See cases cited Voor- hies' Code (6th ed.), pp. 485, 486. 2 Wightman v. Shankland, 18 How., 82 ; per Marvin, J. ^ A partial defense may be pleaded ; see ante, pages 205-208. Therefore, if a demurrer to such partial defense be interposed and be overruled, the defendant cannot have final judgment dismissing the complaint, as such defense does not go to the whole cause of action. 476 HEARING AND TEIAL. The foregoing will sufficiently indicate the nature of the deci- sion on a demurrer where there are issues of fact in the same action, and it may be summed up briefly thus : The plaintiff may set forth as many causes of action (such as can properly be united) as he may have. If one or more of them be adjudged bad on demurrer, he is still entitled to go to trial on the others, and no judgment on the whole record can be had until after such trial. The defendant may set forth as many defenses as he may have. If one or more of them be pronounced bad on demurrer, he may, in like manner, go to trial on the others, and no final judgment can be entered until after such trial. But if one of them be ad- judged to be a har, that is, a full and complete answer to all the plaintiff's causes of action, the suit is at an end, and final judg- ment may be entered dismissing the complaint. The decision of a demurrer against a party must remain an order merely, and must be so entered and treated in all respects, so long as there remains an issue of fact in the action, which, if brought to trial and determined in favor of such party, will avail him, if defendant, to sustain his defense or some part of it, if plaintiff, one or more of his claims, or some portion of them. For a judgment is defined to be " the final determination of the rights of the parties in the action," ^ and can only be entered upon the whole record after all those rights are judicially ascertained. Amendment on decision of issue of law. , The decision on a demurrer is, however, usually accompanied with leave to amend, or, as it is expressed in the Code (section 172) "to plead over on such terms as may be just." This is allowed, either at general or special term, in the discretion of the court, in all cases where it appears that the demurrer was interposed in good faith,^ a discretion which is very liberally exercised. In such case, therefore, it would seem that though the examination of the issue of law is a trial within the meaning of the Code, yet the actual decision of the court is an order merely so long as the right to amend exists, although but a single issue be presented in 1 Code, § 245. « Code, § 172. OF ISSUE OF FACT. 477 the case ; and, as an order, it must be drawn and entered and treated, in all respects, even for the purposes of an appeal, and so it has been held in case of a decision overruling a demurrer to a complaint with leave to the defendant to answer over.^ When the time to amend expires, and the right to amend has not been exercised, there being no issues of fact undisposed of, final judgment may be entered. This, if against the plaintiff, will be simply a dismissal of the complaint,^ with or without costs, as the court may allow. If against the defendant, it will be for the relief demanded in the complaint. But frequently, in equity cases, a further application to the court is necessary, for an order of reference to take an accounting, or to prove some fact necessary to the final judgment, or to carry it into execution, or to ascertain the nature, extent and character of the relief to be adjudged. Such application will, of course, be upon notice to the opposite party. Section 269 prescribes that it must be made in the same manner as an application for judgment on failure to answer, where the summons has been personally served, the pro- ceedings upon which have been pointed out in an earlier part of this work.^ Issue of fact, how tried^ The trial of an issue of fact, like that of an issue of law, may be brought on upon the motion of either party giving the notice. But, as was observed in a former section, it cannot be moved until the cause is in readiness for trial as to all the parties ; for the court will not allow it to be tried in sections, that is separate trials, except in the class of cases heretofore referred to.' The rules regulating this branch of the practice are well laid down by Justice Harris in Ward v. Dewey, as follows :^ " Where the action is at issue as against all of several defendants, any one of them giving notice of trial, cannot, on failure of the plaintiff to ' Ford V. Turner, 5 Duer, 684. ^ Wightman v. Shankland, 18 How., 80. ' Ante, pages, 126, et seq. ' Issues of fact, as defined by section 250 of the Code, arise : 1. Upon a material allegation in the complaint controverted by the answer ; or 2. Upon new matter in the answer controverted by the reply ; or 3. Upon new matter in the reply, except an issue of law is joined thereon. 5 Ante, pages 465, 466. « 12 How., 193. 478 HEARING AND TRIAL. appear, take a judgment against him by default. The cause must not only be in readiness for trial as between aU the parties to the action, but it must also have been noticed for trial by all the defendants who have a right to appear.' If there be several defendants, who are each entitled to notice of trial, aU must have notice from the plaintiff before he can move on the trial. And on the other hand all the defendants must have given notice of trial to the plaintiff before any of them can move the trial as against the plaintiff." Issues of law and fact. In addition to what was said above, relative to preferences given on the trial,^ and especially to the provision of section 251, that where issues of law and of fact arise in the same action the former are to be first tried, unless the court otherwise direct, it may be remarked, that if an issue of fact be first tried, without any actual direction of the court, but, also, without any objection from the adverse party, it will be deemed to have been first tried by order of the court.^ And further, that the court will deter- mine when the cause is moved on for trial whether the issue of fact shall be first tried, or not ; and it is not necessary to obtain a previous order on the subject.'' Course and mode of trial of issue of fact by the court. It is not intended to go into the details of a trial by the court of an issue of fact, but merely to glance at its prominent features, as well the actual hearing of the cause, as the decision rendered thereon and subsequent proceedings to final judgment. The plaintifi" furnishes copies of the pleadings (and abstracts thereof, if necessary) for the use of the court, and opens the cause in the same manner as on a trial by jury. The examination of the witnesses is oral, unless depositions have been taken and filed with the clerk in one of the cases men- tioned, ante, sections 5, 6, 7, 8 of Chap. VIII. And such deposi- tions so filed may be called for, if properly admissible, and read by ' See also Burnham v De Bevoise, 8 How., 159. " Ante, pages 473. ' -Warner v. VVigers, 2 Sand., 635. * Ibid. Voorhies' Code (6th ed.), § 251, note. OF ISSUE OF FACT. 479 either party. The examination of parties to the action, or con- tract, is conducted in the same mode as that of other witnesses, under the limitations of section 399 of the Code, as amended in 1860. Eather more latitude is allowed by the court in regard to the formalities of the trial, and a wider discretion exercised in per- mitting parties to recall witnesses and supply proofs, than on a trial before a jury. The rule, however (No. 30), is pretty closely enforced, that but one counsel shall examine or cross-examine a witness, and one counsel only shall sum up the cause. The further provision of the rule that " during such examination the examining counsel shall stand ; and the testimony, if taken down in writing, shall be written by some person other than the examining counsel," was never very rigidly enforced, and, indeed, was pretty generally ignored ; and in the late revision, though the rule still remains, it is modified by allowing the justice who holds the court, to dis- pense with this requirement altogether. On the close of the plaintiff's case, the defendant, or one of several defendants, may move to dismiss the complaint as to him, the same as on a trial by jury ; the only difierence in the form of the order of dismissal (if granted), being that it cannot be with costs, unless they are actually allowed, inasmuch as costs in an action of an equity nature are not of course, but always in the discretion of the court, and to be obtained must be awarded by the court. If the complaint is dismissed as to one or more of the defendants, an order to that effect is entered and the action proceeds as against the others, and when decided as to them, one final judgment as to all issues and all the defendants is entered. Or, separate judgments may be entered in favor of the defendants as to whom the action is dismissed for their costs, and in favor of the plaintiff against the other defendants. At the close of the plain tifi"'s testimony the counsel for the defendant opens the case on his behalf to the court, and proceeds with the examination of his witnesses. At its close, it is either submitted to the court, by consent, without argument, or upon written briefs, or orally argued by counsel. The rule (No 30) that restricts counsel to one hour in summing up, unless by per- 480 HEARING AND TRIAL. mission of the court, applies to trials of such issues by the court without a jury. In regard to exceptions taken during the trial to the admission or exclusion of evidence, or any erroneous ruling of the judge, such exception must be taken on the spot, and are noted by the counsel, as well as by the court, in the minutes of trial. The exception may be reduced to writing at the time, or entered in the judge's minutes, and afterwards settled as provided by the rules of the court, and then, for the purposes of an appeal, stated in writing in a case.^ The clause of section 268 of the Code which authorizes either party to except to a decision on a matter of law arising on the trial, within ten days after notice in writing of the judgment, does not apply to matters arising during the trial where there is an opportunity to except to the ruling at the time ; for where a party can except to a point ruled against him as the trial is proceeding, and omits to do so, he cannot afterwards raise the objection.^ Decision of the court. The trial having been closed, the judge either pronounces his decision on the spot, or reserves the matter for further considera- tion. If the decision is immediately announced, the successful party may draw it up at once, and having presented it to the inspection of the opposite counsel, submit it to the judge for his signature. It is then to be filed with the clerk, and the prevail- ing party will proceed to enter judgment thereon in the manner hereafter pointed out, unless it direct a reference to take an a-c- count, or ascertain some necessary fact not yet presented, the practice upon which will be considered in a subsequent section. If the case is reserved for further consideration, the decision, under the provisions of section 267 of the Code, is required to be made in writing and filed with the clerk within twenty days after the court at which the trial took place. This requirement, however, as to the time within which the decision must be made ■ Code, § 264; compare § 268. ' Hunt V. Bloomer, 3 Kern., 341; Johnson v. Whitlock, 3 Kern., 344. OF ISSUE OF FACT. 481 and filed, is generally regarded as directory merely, and a decision made after the twenty days is considered valid.^ Such decision is drawn up and signed by the judge himself and transmitted to the prevailing party, or an abstract or minute of the decision is indorsed on the papers, or stated separately, leaving the prevailing party to draw up the decision in form ; who there- upon submits it to the opposite party for his concurrence or cor-' rection, and in case the attorneys do not agree upon the form or substance of the decision it may, on due notice, be brought be- fore the judge for settlement. Thus settled, it is to be signed by the judge and filed ; and the successful party (unless a reference be ordered) may proceed immediately to enter judgment thereon.^ Decision, nature and use of. The decision of the judge is merely the authority for entering the judgment.^ There can be no regular or valid judgment with- out it. It is required by the Code to be " in writing," and " filed with the clerk." * It has been thought that the clerk, under the direction of the judge, given at the trial, may make up and enter a sufficient decision.'^ Perhaps this may be done ; but if so, it should not be a mere entry in the clerk's minutes, but made up separately, or a transcript taken from the minutes and Jiled, which paper becomes a part, and a very essential part, of the judgment roll.^ The practice, however, can scarcely be regarded as correct, for the Code manifestly contemplates a written decision signed by the judge. At all events, as was said in Burger v. Baker,'' this is undoubtedly the more correct and the safer prac- tice. Again, the " decision " is neither an order nor a judgment. It is not a direction of the court in writing within the definition of section 400, but a mere finding of facts, equivalent to, and to be treated like, the verdict of a jury;^ and, therefore, it cannot be ■ The People v. Dodge, 5 How., 47; Burger v. Baker, 4 Abbott, 11 ; Stewart V. Slater, 6 Duer, 83. 2 Lynde v. Chamberlain, 4 How., 327 ; Renouil v. Harris, 2 Sand., 641. 3 Per CoMSTOcK, J., Otis v. Spencer, 16 N. Y. E., 610, 15 How., 425. * Code, § 267. = 1 Whit. Pr., 700. « Code, § 281. ■' 4 Abbott, 13. « Cases cited 1 Whit. Pr., 701 ; also Mann v. Witbeck, 17 Barb., 388 V. S. 61 482 HEARING AND TEIAL. denominated an order. And, it has been expressly held, such a decision in writing and filed is not a judgment, but that in all cases the clerk must enter judgment thereon in the judgment book.i Form of decision, and what it must contain. As to the form of the decision a very important alteration in the practice is made by the amendments of 1860 of the Code. Section 267, as now amended, provides that " upon a trial of a question of fact by the court, its decision shall be given in writ- ing, a7id shall contain a statement of the facts found, and the con- clusions of law separately ; and wpon a trial of an issue of law the decision shall be made in the same manner, stating the conclusions of law. Such decision shall be filed with the clerk within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly." The amendment of 1860 is in italics. This of course establishes a different practice from that indicated by the Court of Appeals in Johnson v. Whitlock,^ and Otis v. Spencer,^ holding that it is enough if the decision state in general terms what the judgment ought to be, without any finding of facts, or statement of con- clusions of law. It is, therefore, obvious that now, the decision of the court, by the express provision of the statute, must state the facts found and the conclusions of law separately. And it will be entirely similar in its general frame and features to the report of a referee, and if imperfect may be rectified in the same manner; which will be more'fuUy considered in the following section, in connection with the subject of the trial by referees. Though the decision is in the nature of a verdict, yet it is not a special verdict, and, therefore, it was said (before the above amendment) the judge is not bound to set forth all the facts of the case ; but, so far as questions of fact are concerned, he fulfills his duty by determining the issues which, in his opinion, are mate- ' Schenectady and Saratoga Plankroad Co. v. Thatcher, 6 How., 226. And see Sentilhon v. Mayor, &c., New York, 1 Code R., N. S., 111. " 2 Kernan, 234. ' 16 N. Y. R., 610 ; 6 Abbott, 127 ; and see Burger v. Baker, 6 Abbott, 14. OF ISSUE OF FACT. 483 rial.' All the material facts, however, upon whith the judgment of the court is based should be found by the decision. It should dispose of all the issues between all the parties. It may find some of them in favor of one, and some against others of the defendants. And it should be a finding on all the facts sufficient to point out the nature and form of the judgment to be entered, and to determine the rights of the parties as between themselves so as to put a final end to the controversy. Decision, how drawn and settled. In point of fact, the decision is almost always drawn by the attorney for the prevailing party. Before the amendment, above referred to, the decision being a mere general finding, was gene- rally drawn and presented to the judge for his signature, without being submitted to the opposite party. Now, however, when the facts are required to be stated, it is not only a convenient and safe, but is regarded as the proper practice, for the prevailing party to draw up what he conceives to be the finding of the judge upon the facts, and his conclusions of law, and submit it to the opposite party, who, if dissatisfied, may either propose amendments, or prepare what he conceives to be the finding, and submit the same to the judge for settlement. Or, the parties may go before the judge, in an informal manner, and obtain a settlement of the decision in precisely the same way as an order as heretofore noticed.^ So, it is perfectly competent for the judge, if he thinks proper, to draw the decision himself, or adopt one furnished him by the prevailing party, without any previous settlement, precisely as in case of an order.^ Exceptions and mode oj" review. The decision, however, cannot be in the nature of a verdict, subject to the opinion of the court at general term, as prescribed by section 265 of the Code ; that practice applies only to cases of trial by jury, and not to cases where the trial is by the court alone.'* In a trial by the court there is but one mode of obtaining 'Attorney-General v. Mayor of New York, 12 Leg. Obs., 17. '^ Ante, page 445. ^ Ibid. * Malloy V. Wood, 3 Abbott, 369 ; 14 How., 67 ; Wright v. Delafield, H How., 484 HEARING AND TEIAL. a review, and that is by an appeal.^ For this purpose, if the ap- peal is upon the law, exceptions must be taken ; and, as we have seen, when taken to the rulings of the court on the trial, they must be taken, and entered on the judge's minutes when made, and cannot be raised afterwards. But it being impracticable, as a matter of course, to except to the points of law involved in the decision itself at the time of its delivery, the Code provides (sec- tion 26S), that such exceptions may be made within ten days after written notice of the judgment. This subject, however, is properly connected with the subject of appeals, and will be con- sidered more fully in another part of this work. I have thus far considered the subject of the decision by the court upon the trial of an equity case, in the light of a Jinal decision, that is a decision of all the issues involved, and of the whole controversy, forming of itself the basis for the entry of an immediate final judgment. There is a class of equity cases, how- ever, in which the decision is not final, but "interlocutory," merely ; as where, for example, the rights of the parties have been ascertained, but something yet remains to be done ( such as the taking and stating of an account between them and the like) before a final judgment can be rendered. The decision of the court, it is true, must determine the issues tried before it, but this determination may be of the whole case absolutely, or, in a proper case, by directing a reference or issues,^ which when done suspends the final entry of judgment until the coming in of the report or determination of the issue.^ The practice in this respect will be fully considered in the following chapter ; and the subject of the entry of judgment on the absolute or final decision of the 465. This is no doubt correct, though the practice has sometimes been other- wise. In a case in which the author was engaged as counsel (Clint v. Clint, MS. Rensselaer special term), an action brought for the construction of a will, Justice Parker directed a. judgment subject to the opinion of the court at gene- ral term, and the general term of the third district subsequently heard and de- cided the case without objection to the mode in which it was brought before the court. ' Malloy V. Wood, 3 Abbott, 369. 2 Malloy V. Wood, 3 Abbott, 371 ; 14 How., 67. ^ McMahon v. Allen, 7 Abbott, 1. BY REFEREES. 485 court, as well as upon the report of a referee, and the finding of a jury upon issues of fact, will be considered in a subsequent section of the present chapter. It may be added, in regard to the decision of the court, that in one respect it is not analogous to the verdict of a jury, namely, in regard to the decease of a plaintiff subsequent to the actual hearing. In such a case, the plaintiff having died before the decision was pronounced, judgment (including of course the de- cision) was ordered to be entered nunc jpro tunc, as of the date of the original hearing.^ SECTION m. TRIAL BY EEFEEEES. Under the former practice, the trial by referees was a proceed- ing wholly confined to cases of common law jurisdiction and entirely unknown to suits in Chancery. It is true, references to masters were common and indeed indispensable proceedings in almost every kind of suit ; but these were mere interlocutory mat- ters in the progress of the cause, and a reference, after issue joined, taking the cause away from the court, and sending it to referees, or a referee, "to hear and determine," was not practised. These interlocutory references are also very frequent and common in equitable actions under the Code, and the referee therein is a mere substitute for a master in Chancery.^ Such references will be spoken of more fully in the next chapter. In this place we are to consider only such references as are made to referees to hear and determine all the issues and matters in controversy be- tween the parties, or some specific question of fact involved therein ; in which cases the referee stands in place of the court.* The reference of an action, whether in its nature legal or equit- able, may be either by the consent of the parties, or it may be ordered compulsorily, on application of one of the parties, or by the court on its own motion. 1 Ehle V. Moyer, 8 How., 244. ' Palmer v. Palmer, 13 How., 363 ; Ketchum v. Clark, 22 Barb., 319 ; Elmore V. Thomas, 7 Abbott, 70. ^ Graves v. Blanchard, 4 How., 300. 486 HEARING AND TRIAL. Reference by consent, and what may he so referred. An issue of law, that is, an issue arising on a demurrer, may be referred by consent, as well as an issue of fact. The provision of the Code (section 270), on this subject, is as follows : " All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties." This is to be understood, of course, as referring only to parties .who are capable of consenting. An infant, for example, cannot consent to submit a controversy without action ; ' nor, on the same principle, can he consent to a reference. Whether, after having a guardian appointed for him in the action, such guardian, or his attorney, may consent, quere ? If this may be done, still such consent can only extend to the agreement to refer the cause, and the court must appoint the referee ; for section 273, which allows the parties to agree upon a suitable referee, excepts cases in which an infant is a party. The reference by consent is made on written stipulation. This is drawn up by one of the attorneys of the parties, and signed by the parties themselves or their attorneys, who, for this purpose, are clothed with an implied general authority. The necessity of a written consent to refer, it is said, may be waived, and such waiver may be by parol, or by the parties proceeding with the reference.^ The parties to the action, whether in case of a reference by consent or compulsory (except when an infant may be a party), may, by section 273, agree upon a suitable person or persons not exceeding three, and the reference shall be ordered accordingly. The stipulation usually contains both an agreement to refer, and the name of the person or persons to whom the reference is to be made. Such a stipulation, however, does not clothe the referee with power to act, but an order appointing him must be first entered.^ The order is sometimes entered by the clerk on filing the stipu- lation without motion ; but the more correct practice, it is con- ' Fisher v. Stilson, 9 Abbott, 33. ' Keator v. Ulster Plankroad Co., 7 How., 41. ^ Litchfield v. Burwell, 5 How., 841. BY REFEREES. 487 ceived, is to enter such order in term on motion and allowance by the court. If the parties do not agree, the court appoints one or more referees, not exceeding three, who shall be free from exception.^ In such case, though the cause be referred by consent, an appli- cation must necessarily be made to the court for an order direct- ing the reference and appointing the referee or referees. Each party has a right to be heard on such application, which must, therefore, be on the usual notice, unless such notice be waived by agreement, or the voluntary appearance of the parties before the court. Compulsory reference. I have, in a former section,^ considered fully the subject of the compulsory reference of equity causes, whether made on applica- tion of one of the parties, or by the court on its own motion, and both as to the character of the cases that may be so referred, and the time and manner of making the application. It is only necessary here to add, that when such compulsory reference is ordered, the parties, pursuant to section 273, may agree upon one or more referees, not exceeding three, precisely as noticed above, in cases of reference by consent. And, by the same sec- tion, if they do not agree, the court is in like manner to appoint the referee or referees. It may be added further that the customary practice now is to appoint but a single person referee, and this is always preferable in an equity case where an accounting is necessary. In contro- versies of great importance, however, the parties frequently agree upon, and the court sometimes of its own motion appoints, three persons to act as referees. ^ What order of reference must contain. The reference under the Code, when resorted to for the pur- poses of a trial, or in aid of a trial,, is of two kinds, the distinc- tion between which it will be important to bear in mind : first, it may be for the decision of all the issues and the determination of the entire controversy ; and, second, it may be simply to ascer- ' Code, § 273. ' Ante, pages 323, et seq. 488 HEAEING AND TRIAL, tain the facts and report them to the court for its decision and final judgment thereon. A reference simply to take the testi- mony and report the same to the court, does not seem to have any place in the present practice. The proper order, if the refer- ence be not "to hear and decide" the cause, is an order referring the cause to a referee to report all the facts, or on any specific question of fact involved in the issues. This is provided by the first subdivision of section 271 which directs a reference as follows : " When the trial of an issue of fact shall require the examination of a long account on either side ; in which case the referees may be directed to hear and decide the whole issue, or to report upon any specific ques- tion of fact involved therein." In either case the referee stands in place of the court, and both cases will be duly considered in the course of the present section. General slalutory iwwers and duties of referees. The powers of referees have been greatly enlarged by recent amendments to the Code, and for all practical purposes their autho- rity on the trial of issues, is co-ordinate with that of the court. In Billings V. Baker,! decided in 1858, it was said that the theory of the Code was that the referee is to try the action which the court sends to him, and may exercise therein the powers expresshj enumerated ; but for every other purpose the 'process in the action, and the par- ties to the action, remain in the court and subject to its control. It was held, therefore, that the referee had no power to amend the process by striking out the name of a party. By the amendments of 1859, however, a referee is clothed with this power; and although the action as to process and parties may still, for some purposes, be considered as remaining in the court,^ yet, on a gene- ral reference, there can be no doubt that the whole action, pro- cess as well as pleadings, is before the referee, and that he stands in place of the court, clothed with similar powers, his repoit upon the whole issue, when made, standing as the decision of the court. The section of the Code which clothes him with this power is a highly important one, and is as follows : ' 6 Abbott, 217, per Potter, J. s See Seeley v. Jobson, note to same page. BY EEFEKEES. 489 Section 272. The trial by referees shall be conducted in the same manner, and on siaular notice, as a trial by the court. They shall have the same power to grant adjournments, and to allow amendments to any pleadings, and to the summons, as the court upon such trial, upon the same terms, and with like effect. They shall have the same power to preserve order, and punish all violations thereof upon such trial, and to compel the attendance of witnesses before them by attachment, and to punish them as for a contempt for non-attendance or refusal to be sworn or testify, as is possessed by the court. They must state the facts found and the conplusions of law separately, and their decision must be given and may be excepted to and reviewed in like manner, but not other- wise ; and they may, ia like manner, settle a case or exceptions. The report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. "When the reference is to report the facts, the report shall have the effect of a special verdict. Under this provision, therefore, there exists, in point of fact, but very little difference, in regard to the trial of the issues in an equity action between a trial by the court, and a trial before referees. * The diiference mainly consists in the fact that the court will not take an account, or ascertain any other facts necessary to the judgment, and embraced in the issues, which the referee (if the whole controversy is referred to him), must do ; in which cases there is a further difference as regards the form of the finding, that of the court being in the shape of a decision which, as has been seen, is interlocutory merely, while that of the referee is in the shape of a re-port which is in its nature final, and must state the facts and conclusions of law separately.^ What has been said, therefore, in regard to the preparations for, and the incidents to, the trial by the court, and the trial itself, is in the main applicable to trials before referees ; and in the further dis- cussion of the subject I shall confine my remarks to those points in which such frials diverge and differ from trials by the court, 1st, in regard to references of the whole issue to hear and deter- ' See Rule 32, as amended in revision of 1858, and compare section 272 Code. "When the decision of the court \s final, there seems to be no difference between it and the report of a referee since the amendment of 1860, to section 267, which requires a decision by the court to contain " a statement of the facts found and the conclusions of law separately." See ante, page 482. V. s. 62 490 HEAEING AND TRIAL. mine ; 2d, in regard to references to report the facts, wLicli may also be considered a species of trial by referees, and at all events are widely different from mere interlocutory references, a subject to be hereafter considered. Proceeding on reference to hear and determine the whole issue. When the order appointing the referee has been entered, and copy, certified by the clerk, served upon him, he may proceed at once by appointing a time and place for hearing. The time must be not less (if the parties do not otherwise agree) than fourteen days, in order to give sufficient opportunity for notice of the trial, which is to be the same length as on a trial before the court. The place of meeting need not necessarily be in the county,' and the appointment of both time and place may be by parol.^ The Code provides (section 272), that " the trial by referees shall be conducted in the same manner, and on similar notice, as a trial by the court ; " and certain powers are enumerated in the same section above cited. Besides these powers, the provisions of the Eevised Statutes relative to trials by referees, YJ^ich are additional to, and do not conflict with the Code, are no doubt still in force. These provisions will be found in article 4, title 6, chapter 6, part 3 of the Eevised Statutes, and among them are the following : By section 44, the referees are required to be sworn, and the form of the oath is usually in the very language of that section. It has been held under the former practice, that if not so sworn, the proceeding is an arbitration merely and not a reference. But the parties, it is said, by proceeding before the referee without objection, waive the irregularity.^ They must all meet together and hear all the proofs and allegations of the par- ties, and an adjournment cannot be granted, except by the full number. Any one of the referees, however, may administer an oath to the witnesses,^ and two of them may make a report (section 1 Wheeler v. Maitland, 12 How., 35. ^ Stevens v. Strong, 8 How., 339. ' Keator v. Ulster Plankroad Co., 7 How., 41. * By section 421 of the Code, eyery referee appointed pursuant to its provi- sions, has power to administer oaths in any proceeding before him, and has generally the powers now (at the time the Code was enacted) vested in a referee by law. BY REFEREES. 491 46). They may be compelled by order of the court to proceed, and to report on the matters submitted to them, and the court may require them to report any proceeding before them, and their reasons for allowing or disallowing any claim, if necessary (section 47). The Code does not in terms give them the power to order the production of books, papers and documents in the custody or under the control of the parties ; nor does the statute, except when the reference is consequent upon judgment in an action of account (sections 55 to 59), in which case the referee acts as a master merely, and not as a court. * It has been held that, in order to obtain the production of books, &c., on a trial before a referee, a special application to the court was necessary, the cer- tificate of the referee that such books, &c., were required being a sufBcient ground for the application.^ But the original order of appointment, it was said, might contain a direction to produce books and papers, which the referee might then order to be done, there being no way, however, to enforce such order, or to punish as for contempt, in disobeying it, except by an application to the court.^ This, it is to be observed, was before the recent amendments to the Code, enlarging the power of referees. Having now the power to compel the attendance of witnesses hy attachment, and to punish them as for a contempt for non-attend- ance, refusal to be sworn or testify,^ they may, no doubt, enforce the production of books and papers in all cases where the party having the custody thereof has been regularly served with a sub- pcena duces tecum. For, a party properly subpenaed to produce books and papers in his possession as evidence, is as much bound to do so, as he is to testify orally at the trial, and his neglect or refusal is a contempt.* So in most other respects, down to the making of the referee's decision or report, the trial is similar to that before the court. He may exercise the same discretion in regard to the order of 1 Fraser v. Phelps, 3 Sand., 741. 2 Ibid. 4 Sand., 682; Bonesteel v. Lynde, 8 How., 226. ^ Cojg, § 272. * Bonesteel v. Lynde, 8 How., 226, affirmed at general term, overruling Trotter v. Lansing, 7 How., 261. 492 HEARING AND TEIAL. admitting proof; ^ the permitting counsel to ask leading questions,^' the number of witnesses to be examined on each side in regard to character;^ the hearing of further testimony after the case is closed and before it is finally submitted/ and the refusal to hear such further testimony ,= &c. These and all similar matters are equally within the discretion of the referee and the court. So, too, it is a common practice before the referee, as well as before the court on the trial, to take testimony subject to an objection, reserving the question of its admissibility until the close of the trial ; or, if the parties do not object, even until his final decision, stating in his report whether such testimony has been admitted or excluded. But, it seems, either party has the right to require the referee to decide upon the objections taken to the testimony before the cause is finally submitted, and to ex- cept to such decision; and the referee, it has been held, cannot, while professing to admit evidence absolutely, admit it in fact de bene esse, and then reject it upon making up his report on the whole issue.^ By rule 32 the plaintiff may submit to a nonsuit or dismissal of his complaint, or may be nonsuited (on the defendant's motion), or his complaint dismissed at any time before the cause has been finally submitted ; in which case the referee reports according to the fact, and judgment thereon is perfected by the defendant. This is also entirely similar to the mode practised in trials before the court. It may be thought doubtful whether or not rule 27 which allows the defendant to move the court for a dismissal of the complaint, when the plaintiff shall fail to bring the cause to trial according to the practice of the court,'' is, strictly speaking, applicable to a reference. At all events a motion to the court to dismiss for this cause cannot be necessary, as either party, defend- ' Gibson v. Pearsall, 1 E. D. Smith, 90. 2 Beach v. Raymond, 2 E. D. Smith, 497. 5 Green v. Brown, 3 Barb., 319. ' Duguid v. Ogilvie, 3 E. D. Smith, 527. 5 Trimble v. Stilwell, 4 E. D. Smith, 513. * Allen V. Way, 7 Barb., 585. But see Brooks v. Christopher, 5 Duer, 216. ' See on this subject ante, pages 319, 320. BY EEFEEEES. 493 ant or plaintiff, may notice the action for trial before the referee, and proceed upon such notice precisely as on a trial by the court.* In such case the proper judgment to be entered on the report is a judgment of dismissal of the complaint, and not an absolute judgment as upon a vei'dict.^ It has been already noticed that the referee may open the case and hear further testimony at any time before it is finally sub- mitted. Indeed, it has been held that he may do this after the cause has been submitted, on notice to the parties.^ The case is, it is said, within his control until the decision is actually made and delivered to the successful party. His decision is not made until his report is signed and delivered. At any time before this he may change or modify it to any extent, in conformity to his better judgment, and may open the case for a further hearing, and receive evidence upon any question on which he may desire new or additional light.* Reference on specific questions of fact. This proceeding, authorized by the first subdivision of section 271 of the Code, may properly be regarded in the light of a trial, and not a mere interlocutory reference where all the issues or questions of fact are so referred. The object of such a reference is like that of the reference as to facts on a contested motion to leave to the referee the judicial examination of the questions of fact embraced in the issue, reserving to the court the right to pro- nounce the law and render judgment upon the facts found and reported by the referee. The referee is to find and report the facts and not the evidence of such facts ; he is, therefore, bound by the same rules, in regard to the admission or rejection of testimony, which are applicable to trials in other cases ; and, generally, the proceedings before him are similar in all respects to the proceed- ings in other cases of reference above noticed, except that the provisions of rule 32, respecting a nonsuit or dismissal of the complaint, are not applicable. The character and form of the report, however, and its effect and the course of proceedings 1 See cases cited, 1 Whit. Pr., 711. = gaUer „_ Malcomb, 1 Duer, 596. ' Duguid V. Ogilvie, 1 Abbott, 145. * Ayrault v. Sackett, 9 Abbott, 154, note. 494 HEARING AND TEIAL. thereon, are different, and will be further considered after we shall have noticed the subject of the report in ordinary cases of reference of the whole issue. Report of referees, fonn of, and what it must contain. The section of the Code in regard to trials before referees (sec- tion 272), provides, that "they must state the facts found and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed in like manner, but not otherwise (as on a trial by the court) ; and they may, in like man- ner, settle a case or exceptions," &c. Previous to the decision of Johnson v. Whitlock,^ by the Court of Appeals, it was generally considered that the report of the referee must contain a finding separately of the facts, and also of the conclusions of law. If it did not so find,, the court would, either on its own motion, or on the application of either party, refer it back to the referee and order a further report.^ That decision, however, it was considered, settled the practice to the contrary. It was there said that the language of the Code did not necessarily mean that the report of the referee should contain such separate statement of the facts and conclusions of law ; but that the referee's " decision " might be given " in like manner " as a decision by the court ; that is, that there might be a mere general finding in the report of the judgment to which the plaintiff or defendant was entitled, leaving the separate statement of the facts and conclusions of law to be set forth in the case or excep- tions made and settled for the purpose of reviewing the trial, precisely as in cases of a trial by the court without a jury.^ The Supreme Court, however, has not been disposed to ac- quiesce in the rule of practice thus indicated by the Court of Appeals. Accordingly, in the late revision of the rules (1858) it is provided, as a part of rule 32, that " upon a trial by referees, they shall, in their decision and final report, state the facts found ' 3 Kern., 344. " Snook V. Fries, 19 Barb., 313 ; Parsons v. Suydam, 3 E. D. Smith, 276. And see Church v. Erben, 4 Sand., 691 ; Lakins v. Erie R. K. Co., 11 How., 41 ; Hulse V. Sherman, 13 How., 411. ' Hunt V. Bloomer, 3 Kern., 341. BY REFEREES. 495 by them separately ;" and the late amendment to section 267 (amendments of 1860), requiring a decision by the court to state the facts and conclusions of law separately, leaves no further question in regard to the form of the report of a referee which must be given (according to the decision in Johnson v. Whitlock, supra), "in like manner," as a decision by the court. This brings back the practice in this respect precisely where it stood before the case of Johnson v. Whitlock ; and the previous decisions (above referred to) are applicable, which hold, that a report defective in this particular may, on motion of either party to the court, upon the usual notice, be corrected, by referring it back to the referee, with directions to make a further report. An opinion referring argumentatively, and in a general way, to the conclusions of fact and law at which the referees arrived, is not such a statement of the facts found by them, and their con- clusions of law thereon, as is contemplated.^ And if a report, generally regular, be defective in not reporting on some one par- ticular issue, it seems, that it may be amended almost as of course.^ In cases involving issues of fact where an accounting, conse- quent upon the determination of such issues, is necessary, to enable the court to render a final judgment, and where all the issues and the whole matter in controversy are submitted, it is within the scope of the duties of the referee, not only to hear and determine such issues, but to take and state the account, and to make one general report upon the whole subject matter so refer- red. In such cases, if the trial were before the court, it would only determine the issues by an interlocutory decision or order, and then refer it to a referee to take the account, reserving final judgment until the coming in of the report.^ But the referee, it is held, may, if he choose, make a separate and special report or finding upon the issues referred (like the decision, of the court), with a view to its decision in the first ' Mills V. Thursby, 12 How., 418. ^See Renouil v. Harris, 2 Sand., 641 ; also Sisson v. Barrett, 2 Comst., 406; Doke V. Peck, 1 Code R., 54. 3 McMahon v. Allen, 27 Barb., 336. 496 HEARING AND TRIAL. instance without proceeding to take the accounts which would be consequent on such decision.^ In such cases, where a special report is made, and the referee states that before a final judgment can be entered an accounting must be had, an order should be entered referring it back to the referee to take and state the ac- count, and no final judgment can be rendered until the coming in of his report upon the accounting.^ Or, it seems, he may announce his decision upon the issues, by way of special report, and then upon notice to the parties proceed to take the account and de- termine what is due to the plaintiff and report thereon to the court.^ The party, however, must, in such case, demand, on the hearing, that such account be taken ; and if he make no such demand or request, but go through the trial and take the referee's report on the whole issues referred, without offering to go into the accounting, he cannot afterwards raise the question in any way except to apply for a new trial ; and an order referring it back to the referee to take the account will be irregular.^ Accounts, however, of rents and profits, fendeiite lite, as in actions to foreclose a mortgage of real estate, and similar matters which are not strictly consequent upon the determination of the issues involved in the action, may, no doubt, be referred by a sub- sequent order, in an analogy with the former practice in Chancery in similar cases.^ And this seems to come within the province of the third subdivision of section 271, which authorizes a reference " where a question of fact other than upon the pleadings shall arise, upon motion or otherwise, in any stage of the action." In such case, however, the reference is properly interlocutory, and the referee acts as a substitute for a master in Chancery," the practice in regard to Avhich will be hereafter considered. And generally, where the whole issues are referred to a referee he may himself determine the manner in which he will proceed. He may either (and this is probably the better way) make one ' Bantes v. Brady, 8 How., 216. " McMahon v. Allen, 27 Barb., 336. " Pratt V. Stiles, 9 Abbott, 158. * Ibid. Palmer v. Palmer, 13 How., 363. = Broom v. Ditmars, 4 Paige, 526 ; Barton v. May, 3 Sand. Ch. E., 450, 456. " Ketehum v. Clark, 22 Barb., 319. See Elmore v. Thomas, 7 Abbott, 70, and cases therein cited by Potter, J. BY REFEREES. 497 general report, embracing a decision of all the issues submitted to him, and the statement of the accounting, if one have been taken by him, together with his award of costs to the successful party* if costs be awarded ; ^ or he may make a separate and special report upon the main issues before taking the account, as above pointed out ; it being within the discretion of the referee, and within his powers, in cases like these, to determine how he will conduct the trial ^ down to its close, that is down to the time when his authority over the proceedings terminates by his rendering a final report therein to the court.^ Effect of report on the whole issue, and subsequent proceedings thereon before judgment. It is provided by section 272 of the Code, that the report of the referees upon the whole issue shall stand as the decision of the court, and j udgment may be entered thereon in the same manner, as if the action had been tried by the court. This, of course, is to be understood as referring only to a full and final report, and not to a special report leaving an accounting or other matter undetermined ; and if a party proceed upon such special report and enter judgment, it is irregular and will be set aside ; and an appeal from such judgment to the general term will be dismissed.* The report of a referee on the whole issue, is like the general verdict of a jury. Though it may be reviewed upon the facts as well as the law, yet, as a general rule, where there is a conflict of evidence, the report upon questions of fact will not be disturbed ; ' but like such verdict, it may be set aside where such finding is clearly against the weight of evidence, or where, upon the trial, some rule of evidence, or principle of law is violated ; or where an improper measure of damages is adopted ; or for excessive damages, or for admitting improper, or refusing to admit proper ' The question of costs is within the power of the referee (Graves v. Blan- ohard, 4 llow., 303 ; Pratt v. Stiles, 9 Abbott, 154 ; Luddington v. Taft, 10 Barb., 448). Being always discretionary in any equity suit, they must be in terms allowed by the report, or the prevailing party will not be entitled to insert them in his judgment. = Palmer v. Palmer, 13 How., 363. ' Allen v. Way, 7 Barb., 585. ■< McMahon v. Allen, 27 Barb., 336. ' See cases cited, note to section 272, Voorhies' Code, V. S. 63 498 HEAEING AND TEIAL. evidence.^ The setting aside of the report in such cases, is done on a case or exceptions, a proceeding which will be hereafter considered. The report, also, may not only be sent back to the referees, on motion, but may be set aside for misconduct of the referees, or other irregularity. This is done at special terra, on motion of the party aggrieved. The motion should be made, if possible, before judgment, and should be made promptly, or it will be held to be waived.^ It may be brought on upon affidavits, showing the irre- gularity complained of, or upon the certificate of the referees, and upon the usual notice of motion ; and must be made to the court which appointed the referees.* The report need not be filed before the entry of the judgment ; but by the amendments to rule 32, a copy must be served on the opposite attorney, with notice of the judgment ; and the time within which exceptions may be taken to the report, shall be computed from the time of such service. The report of the referee on the whole issue, stands " as the decision of the court," and therefore no order to confirm it is necessary, but judgment may be entered upon it immediately, in the manner hereafter to be stated. The rule, it seems, will be satisfied with this ; and the " notice of the judgment" mentioned therein, is no doubt the notice after judgment, which is required by the rule to be served with a copy of the report. The party having the carriage of the report (always the suc- cessful party) must proceed to take the necessary steps to enter judgment. And if he refuse, the other party may obtain an order directing him to file the report and enter up judgment thereon, and in default thereof, giving the moving party leave to do so without costs. And if the plaintifi" in the action dies, before judgment, but after the report of a referee in favor of a defendant, judgment may be entered on the report nunc -pro tunc, without making the plaintifi''s representatives parties to the action.* ' See cases cited, note to section 272 Voorhies' Code. ° Patterson v. Graves, 11 Howard, 41. 3 Goulard v. Castillon, 12 Barb., 126. * Scranton v. Baxter, 1 Code R., N. S,, 88. BY REFEREES. 499 Report on reference as to facts alone, effect of and proceedings upon. The contents and form of the report where the reference is to report the facts, have already been noticed.' The report, when signed by the referee, is usually delivered to the party in whose favor the issues are decided. It will be recollected that we are now speaking of the trial of issues, that is, of questions of fact which arise upon the pleadings, not references as to questions of fact arising upon motion or otherwise, other than upon the pleadings under subdivision 3 of section 271. Under the provi- sions of rule 32, therefore (regarding the hearing and decision of such issues as a trial), a copy of the report should be served upon the adverse party, and (if the reference has been of the whole issues) notice served at the same time that the party will apply at a special term of the court, or at a circuit court (where such motion can be made at circuit),^ for confirmation of the report, and judgment thereon. If the reference be of but one or more of the issues of fact, leaving others still undetermined, the notice, served with the copy report, should be that the party will bring the cause to trial, and move upon the issues so found and other issues to be determined by the court for judgment. References, however, of only a part of the issues of fact, leaving others for subsequent hearing before the court, are not common in practice. It is provided by the Code (last clause of section 272), that "when the reference is to report the facts, the report shall have the effect of a special verdict." This, no doubt, refers to a refer- ence of all the issues, and can scarcely be considered as applicable to a report on a single issue where others are left undetermined. For a special verdict, now as formerly,^ is a finding not only of facts, but of all the facts which, with the case as made by the pleadings, are necessary for the information of the court in order to the rendering of judgment. And in deciding on special ver- dicts, the court cannot pass on any fact not stated or deriveable from the facts appearing upon such verdict, except such as are admitted by the pleadings.* ' Ante, page 496.) ' See ante, page 430. 3 Williams v. Willis, 7 Abbott, 90. * Barto V. Himrod, 4 Seld., 483; Williams v. Jackson, 5 Johns., 502. 500 HEARING AND TRIAL. All ,the issues submitted should be decided by tjie referee in his report. Some may be decided for the plaintiff, and some for the defendant, or in favor of one or more of several defendants. If one or more of the issues are left undetermined, the court, on motion, may refer the report back to the referee for correction, and the same rules govern the practice in this respect as apply to references of the whole issue. The mode of entering judgment v?ill be similar in all respects to that pursued upon the decision of the court. The mode of reviewing the decision is by excepting to the finding of the facts (as well as to the conclusions of law which the court pronounces on the facts so found), after notice of the judgment, and taking an appeal from such judgment, in precisely the same way as on an appeal upon a judgment on report of a referee on the whole controversy. SECTIOISr IV. TRIAL OF ISSUE BY JUET AND SUBSEQUENT PEOCEEDINGS THEEEON TO JUDGMENT. We have in a previous chapter of this work ^ considered the mode of framing and settling issues to be tried by a jury. The issues spoken of are those which properly arise in, or pertain to, civil actions of an equitable nature, including actions for divorce. It is proper here to remark, that there is another kind of issue sometimes directed by the court, which cannot properly be said to be an issue arising in a civil action (to which alone the provi- sions of the second part of the Code apply),^nanie]y, issues which by statute the court must direct to be made up and tried by a jury, on the reversal, upon a question of fact, of a surrogate's decree, admitting or refusing to admit a will for record or probate.* This is properly still a, feigned issue, not coming within the provi- sions of section 72 of the Code, though in practice, it is believed, such issues are now made and settled, and brought to trial in all ' Ante, pages 261, et seq. " Code, § 8. Section 72, abolishing feigned issues, is therefore applicable only to civil actions. = 2 K. S., 66, § 57. OF ISSUES OF FACT BY JURY. 501 respects in a manner similar to other issues framed under the provisions of the 33d rule. The proceedings thereon subsequent to the rendering of the verdict of the jury, are somewhat dif- ferent, being regulated by the statute, and vpill be noticed in the course of the present section. Neither the Code, nor the rules, undertake to prescribe or regu- late the mode of proceeding and practice upon the trial by jury of issues framed in equitable actions, nor the proceedings subse- quent to the rendition of the verdict to final judgment. We are therefore to be guided in such cases by the analogies of the former practice, so far as applicable and consistent with the changes which the new practice has introduced.^ Mode of hrhiging on trial. It is to be observed then, in the first place, that the issues being framed and settled according to the practice noticed in a former chapter,^ and being in readiness for trial, they are to be noticed for trial, as in ordinary cases, and may be so noticed and the trial brought on by either party. The issues are to be noticed for trial, and the cause put upon the calendar (by either party) at a circuit court in the county where the action is triable. Proceedings upon trial. The course of proceeding upon the trial of an issue is generally the same as that adopted in ordinary trials at law; and such was the course of trial under the former practice, except where the Court of Chancery prescribed some special directions upon the subject.* If the order directing the issues and trial do not contain a special provision that the parties produce documents and papers ' in their possession or custody which the other parties may require or which the court may think necessary for a complete investiga- tion, an additional order may be afterwards obtained, on notice and motion, requiring the production of such documents and papers on the trial.* It was the practice in case of a feigned issue directed by the 1 Code, § 469. ' Ante, pages 261, et seq. ' 1 Barb. Ch. Pr., 451 ; 2 Dan. Gh. Pr., 742. ' 1 Barb. Ch. Pr., 448, 449. 502 HEAEING AND TRIAL. Court of Chancery, that if the plaintiff made default in taking the record down for trial at the time appointed, the court would order the issue to be taken pro covfesso against him. Yet, where there was reasonable ground shown for the indulgence, the court would, upon application, give the plaintiff leave to postpone the trial.i In analogy with this practice, it would seem, that where the plaintiff fails to appear, or to bring on the trial pursuant to the defendant's notice, the court, on proof by defendant of service of his notice of trial, may order the issues to be found in his favor ; and if the defendant make default, will allow the plaintiff to pro- ceed ex parte to the proof of the issues on his part. And upon such finding, the cause may be afterwards brought on before the court upon further directions, in precisely the same way as in other cases of trial and verdict upon such issues to be presently noticed. It was a rule of the Court of Chancery, which is no doubt still applicable in practice, that where a devisee seeks to establish a will of real estate against the heir, the due execution of the will must be proved by the examination of all the attesting witnesses to it who are in existence, or capable of being examined. And the same course was required upon the trial of an issue devisavit vel non, except where the circumstances are such that, by the common rules of evidence, proof of the witness' handwriting may be substituted for the testimony of the witness himself; as where the witness is dead or abroad, or is insane, or where, after diligent search, he cannot be found.^ Upon the trial of an issue in a suit by a wife for divorce, the court may allow proof of acts of cruelty on the part of the defend- ant, for the purpose of showing that the affections of the husband were alienated from the wife ; that there was a course of abuse from the time of his connection with another woman, down to, and terminating in a separation from his wife ; and that such cruelty resulted from that connection, and was part of the plan contrived between them to drive the wife from home, in order that the intimacy might be more easily carried on.^ ' 1 Barb. Ch. Pr., 464. » 1 Barb. Ch. Pr., 451 ; and cases cited. 5 Ibid. Mulock ■». Mulock, 1 Edw. Ch. R., 14. OF ISSUES OF FACT BY JUEY. 503 If depositions have been taken in the cause, either on commis- sion or de bene, the order directing the issues should provide that they be read at the trial, in case the witnesses, or either of them, be dead or out of the state at the time of the trial, or be proved at such time unable, from old age or sickness, to attend the trial.^ But such provision in the original order does not seem to be absolutely necessary to render such depositions admissible, the judge who tries the cause having control of the matter. And such was considered a proper course in regard to the reading of the regular depositions in an equity suit, under the English, as well as our own, Chancery practice.^ In an order by the Court of Chancery, directing issues, a pro- vision was inserted that either party should be at liberty, at the trial, to re-examine any witness whose testimony had been read upon the hearing of the cause, or to read their depositions if they were dead, or out of the jurisdiction, as also to read the deposi- tions of any witness of the opposite party .^ This, no doubt, would still be proper. And where a witness, who has been examined in a cause, and afterwards viva voce upon the trial of an issue, dies, and a new trial of the issue is directed, not only his depositions in the cause may be read at the new trial, but what he swore to at the former trial may be given in evidence.* Verdict of the jury. The finding of the jury upon the issues is in the nature of a special verdict. Such verdict is defined by section 260 as follows : " A special verdict is that by which the jury find the facts only, leaving the judgment to the court." And such finding, no doubt, is to be regarded like the report of a referee upon the facts, which, it is declared by section 272 of the Code, as already noticed, " shall have the efiect of a special verdict." The re- quisites and form of such special verdicts have already been considered.* ' Palmer v. Lord Aylesbury, 15 Ves., 176. => Jones V. Jones, 1 Cox, 184; 1 Barb. Ch. Pr., 452. ' Apthorpe V. Comstock, 2 Paige, 485. < Coker v. Farewell, 2 P. Wms., 563; 1 Barb. Ch. Pr., 453. » Ante, page 499. 504 HEARING AND TRIAL. If but a single proposition or question of fact be submitted, the finding, it is said, may be general,' though the better course is to make it special, embracing such facts as are necessary to enable the court to, pronounce judgment. Where several propositions are submitted, each must be answered separately ; and where the issues framed are in the form of interrogatories, they must be answered seriatim, and the interrogatories specially referred to in such answers, so as to distinguish the particular interrogatoiy to which each answer is applicable. The second subdivision of section 261 is no doubt applicable to the trial of such issues. It manifestly contemplates a finding by the jury or verdict in writing, and not a mere oral verdict or answer to the questions of fact submitted, to be entered by the clerk in his minutes. The same section provides, that "the special verdict or finding shall be filed with the clerk and entered upon the minutes." Proceedings subsequent to verdict. The verdict of the jury having been rendered, entered on the clerk's minutes, and filed, the next proceeding will be (unless an application for a new trial is made, to be presently noticed) to bring the cause on for further directions, upon the equity reserved ; that is, to bring it on for final hearing upon the pleadings and issues so found and determined by the jury. No particular mode of practice is prescribed in such cases either by the Code or by the rules. The usual mode of proceeding now is for the party in whose favor the issues have been decided to serve a copy of such finding or verdict on the adverse party, with the usual notice that he will move at the next special term (mentioning it), or Circuit Court (when such motion may be made at circuit), for final judg- ment on the pleadings and issues so found. Or, if but one or more of the issues have been so tried, leaving other issues unde- termined, that he will bring the cause to trial at such special term, in which case the cause should again regularly be placed on the calendar, and the notice should be the usual trial notice of four- teen days. ' McMaster v. Western Mut. Ins. Co., 25 Wend., 379 ; Williams tj. Willis, 7 Abbott, 90. OF ISSUE OF FACT BY JUKY. 505 If there be such remaining issues undisposed of, the cause is brought to trial and the proceedings thereon are in all respects similar to other trials of equity actions before the court without a jury, except that, as to the issues tried, the finding and verdict of the jury (if there be no motion for a new trial) will be deethed conclusive upon such facts, and cannot be questioned upon such final hearing of the cause or in any subsequent proceeding therein.' If all the issues of fact have been disposed of, the cause is brought to hearing in like manner, the finding of the jury having the same effect, namely : that it is to be considered as acquiesced iu, unless a motion for a new trial be made, as provided for by the rule.^ In such case, if the finding of the issues has been for the plaintiff', the hearing is similar in most of its features to an ordinary appli- cation for judgment by a plaintiff" on his complaint admitted by reason of the defendant failing to answer; and the judgment may be allowed and perfected in the same manner. If the taking of an account or proof of any fact, not embraced in the issues, be neces- sary in order to enable the court to give judgment, or to carry it into effect, the court may take the account, or hear the proof, or may, in its discretion, "order a reference for that purpose, precisely the same as in applications for judgment under section 246, and pur- suant to the mode of proceeding already pointed out.^ Upon such final hearing or application for judgment, the evidence of the finding of the jury upon the issues of fact will (pursuant to the C7th of the former Chancery rules) consist of a copy of the minutes of the court before which iAie issue has been tried, containing the verdict of the jury upon the issues, certified by the clerk. The court, upon such hearing, renders such final or other judg- ment as the case calls for. This judgment is usually in accord- ance with the finding of the jury upon the issues ; or, if there has been more than one trial, with the last verdict. This, however, under the former practice, was not always the case, as the court, if it considered that the issue as tried did not answer the purpose for which it was intended, would sometimes direct a new issue or issues, in such form as might suit the justice of the case, and in ' Sup. Court, Rule 33. « Ibid. ' Ante, pages 126, et seq. V. S. 64 506 HEAEING AND TEIAL. one case^ a decision was at once made against the party in whose favor the verdict was found, without directing a new issue.^ The provisions of the rule above noticed (Rule 33) that the parties on the final hearing are held to acquiesce in the finding, if no motion for "a new trial be made, have probably changed this practice of awarding new issues by the court. Yet notwithstanding this, and assuming as undisputed facts the finding of the jury, the court may, upon the whole case, render judgment for or against the party in whose favor the issues are found, as the justice of the case may demand. Motion for new trial of issues, when made. By the English practice the motion for a new trial of an issue must be made before the hearing on further directions ; but the rule was difierent here, and the motion was allowed to be brought on at the hearing upon the equity reserved.^ This, it is presumed, may still be done, if the party has made and settled his case or exceptions, and has the same ready for argument. The usual practice, however, is for the party desiring a new trial of the issues to apply to the court at the close of the trial for a stay of proceedings, in order to enable him to make and settle his excep- tions or case. When so made and settled the motion may be brought on at a special term, either prior to the final hearing or at the same term for which such hearing is noticed. Motion for new trial, how made. This was formerly regulated by the 67th rule of the Court of Chancery, which, for the purposes of such motion, required a case to be made up and settled in the manner prescribed by the rules of the Supreme Court. It is now, however, prescribed by the recent amendments to the present rules of the Supreme Court (Rule 33) as follows : " When any specific question of fact involved in an action, or any question of fact not put in issue, is ordered to be tried by a jury as a substitute for a feigned issue, or has been tried, and a reference other than of the whole issue has been ordered under section 271 of the Code, ■ Armstrong v. Armstrong, 3 My. & Keene, 45. * 1 Barb. Ch. Pr., 461. ^ Ibid., 454; Apthorpe v. Comstock, 2 Paige, 485 ; Van Alst v. Hunter, 5 John. Ch. R., 153. OF ISSUE OF FACT BY JURY. 507 and a trial had, if either party shall desire to apply for a new trial, on the ground of any error of the judge or referee, or on the ground that the verdict or report is against evidence (except when the judge directs such motion to be made upon his minutes, at the same term or court at which the issues are tried), a case or exceptions shall be made, or a case contaiaing exceptions, as the case may require, which case or exceptions shall be served and settled in the manner described by the rules of court for the settlement of cases and exceptions in other cases. Such motion shall be made in the first instance at special term ; and if neither party moves for a new trial in such case, they shaU be deemed to have acqui- esced in the decision of the judge or referee, and the verdict of the jury or report of the referee ; and the same shall not be questioned upon the final hearing of the cause, or in any subsequent proceeding therein." The foregoing rule specifies two cases only, in which a motion for a new trial on a case or exceptions may be made, namely, for error of the judge or referee, and that the verdict or report is against evidence. Besides these two, however, there were various cases, under the former practice, in which a verdict or finding upon such issues might be set aside, and a new trial granted ; as, for example, fraud or surprise, and newly discovered, evidence, where there has been some surprise or fraud on the party applying, or for the misconduct of the jury, or irregularity in the trial, &.c.' But the motion for a new trial for such causes was usually upon affidavit, showing the fraud, surprise, irregu- larity or misconduct complained of, and not by making a case. And the practice is still the same under the present system. As to the two cases in which the motion should be made on a case or exceptions, I will briefly notice each separately. 1. Verdict contrary to evidence. A trial by jury, on a feigned issue in Chancery, was awarded for the purpose of informing the conscience of the court. And if, therefore, the verdict was such as not to satisfy the court that it ought to found a decree upon it, there were cases in which the court would direct a new trial, for further satisfaction, not- withstanding it would not under the same circumstances be granted in a court of common law. Accordingly, it was held, » 1 Barb. Ch. Pr., 457, 458. 508 HEARING AND TRIAL. that the court would grant a new trial, not only in cases where the verdict was against evidence, but it would nicely balance the evidence on both sides, and where the verdict appeared to be con- trary to the weight of evidence, the issue would be directed to be tried over again.i But if, on the whole, the judge was not dis- satisfied with the verdict, it would not be disturbed.^ And a new trial was granted upon the production of new evi- dence, which was not before the jury upon the original trial; or where, after the trial, a witness had been convicted of perjury, or a party of forgery. But it was not allowed for the purpose of introducing any matter which might have been made use of at the trial ; or where the court was of opinion that the evidence, though newly discovered, would not aflFord a foundation for a different verdict.^ These rules are probably still applicable to the present practice in such cases. 2. Error of the judge on the trial. A new trial of the issues will be granted on the ground of the error of the judge, either in misdirecting the jury on questions of law, or in admitting improper, or rejecting proper testimony. Here, also, the rules applicable to common law trials, were not strictly followed ; for the court would not direct a new trial of an issue merely on the ground that improper testimony was received on the trial, or that the judge rejected that which was proper, if, upon the whole facts and circumstances, the court was satisfied that the result ought not to have been different, had such testi- mony been rejected in the one case, or received in the other.* If the erroneous ruling of the judge, however, is such as may have influenced the verdict, a new trial will be granted. And where the court is satisfied that the points in the case have not been distinctly presented by the judge to the jury, it will, without entering into the question whether the verdict was or was not satisfactory upon the facts, direct a new trial.^ ' 1 Barb. Ch. Pr., 456, citing 1 Amb., 210 ; Ibid., 323. ° Ibid, Gibbs v. Hooper, 2 My. and Keen, 355. 3 1 Barb. Ch. Pr., 456, 457. * Ibid. 459. = Tatham v. Wright, 2 Buss, and My., 31. OF ISSUE OP FACTS BY JURY. 509 After a second trial, the court would sometimes award a third and even a fourth, where it saw reason to be dissatisfied with the verdict, and in cases of great importance, particularly, where the effect of the verdict and decree was to bind the inheritance.' But this was not common, and a verdict upon a third trial was usu- ally conclusive. Scay of proceedings to maJce case for new trial. The provision in the 33d rule, above cited, that if neither party moves for a new trial, the finding of the jury shall be deemed acquiesced in, and shall not be questioned on the final hearing, it will be remarked, renders it necessary, if a party desires to move for a new trial, to obtain a stay of proceedings to enable him to make his case or exceptions, otherwise the other side may imme- diately notice and bring on the cause for final hearing on further direction. By the English practice this cannot be done until after the first four days of the term next after the trial have elapsed, -in order that the party against whom the verdict has been found, may have an opportunity of moving for a new trial.^ But there is nothing in our practice requiring this. Indeed, since the union of equity and common law jurisdiction in the same court, there is nothing prohibiting the bringing on the cause for final hearing and judgment, immediately on the rendition of the verdict before the same judge who tried the issue. If either party, therefore, wishes to move for a new trial, he must, immediately on the verdict being rendered, obtain from the judge a stay of fur- ther proceedings in the cause until he shall have an opportunity to make and settle his case, &c. The motion for a new trial may then be made at special term, either before or at the same term at which the cause shall be noticed for final hearing. Motion for new trial on judge's minutes. It is proper here to remark, that in all cases of the trial by jury of equitable issues, the party wishing a new trial, instead of obtaining a stay of proceedings and making a case or excep- tions to move at special term, may adopt the simpler, and often- times more convenient, mode of moving for a new trial on the ' Pemberton v. Pemberton, 13 Ves., 290; 2 Dan. Ch. Pr., 750. » 2 Dan. Ch. Pr., 758. 510 HEABINa AND TEIAL. judge's minutes.^ This must be done immediately on rendering the verdict, or at some other time, at the same circuit, when the opposite attorney is present. Such a motion is, in all respects, similar to the motion for a new trial at a subsequent special term, the judge's minutes serving the purpose of a case or excep- tions. An appeal from the order granting or refusing a new trial will lie in either case. And in case of an appeal from an order made on motion upon the judge's minutes, a formal case or excep- tions may be made and settled afterwards, precisely the same as upon appeals under like circumstances in actions at law.^ If the motion for a new trial be denied, and it be intended to appeal to the general term, of course it will be desirable and necessary to obtain a stay of further proceedings in the cause, until the appeal can be heard and determined. Proceedings subfequeni to verdict on a feigned issue awarded by the court on appeal upon the reversal of a surrogates decision admit- ting, or refusing to admit, will to probate. These proceedings have been alluded 'to in a previous part of this section.^ They are the same with proceedings upon other issues down to the rendering and entry of the verdict. On the rendition and entry upon the clerk's minutes of the verdict, the cause is not to be moved again before the court, but the verdict must he certified directly to the surrogate, it being provided by statute that where a surrogate's decision upon a question of fact has been reversed by the court, and issues thereon awarded and tried, upon the final determination thereof being certified to the surrogate, he must proceed in the manner directed in the first title of the sixth chapter of the second part of the Eevised Statutes. The final determination of such issue is conclusive as to the facts therein controverted, in respect to wills of personal estate only, upon the parties to the proceedings. If the determination is in favor of the validity of the will, whether it be of real or of personal estate, or in favor of the sufficiency of the proof there- of, the surrogate to whom such determination shall be certified, must record the will, or admit the same to probate, as the case ' See rule 33, in connection with sec. 264, Code. ' Ibid. * Ante, pages 500, 601. OF ISSUE OF FACTS BY JURY. 511 may be. But if the determination is against the validity of the will, or against the competency of the proof thereof, the surro- gate is to annul and revoke the record or probate thereof, if any has been made.^ A new trial may be granted by the Supreme Court, in the same manner as if the issue had been formed in a suit originally com- menced in that court.^ ' 2 R. S., 67, §§ 59, 60. <> Ibid., § 58 ; Ibid., 609, § 98. 512 DECRETAL ORDERS. CHAPTER XV. INTERLOCUTORY OR DECRETAL ORDERS MADE ON THE TRIAL, AND PROCEEDINGS THEREON TO FINAL JUDGMENT. Section I. Decretal ordee eeseeting further directions ; and order op reference THERBON. 11. G-enebal course of proceedings on reference usder decretal order. III. Reference to take and state accounts. IV. Reference to make inquiries. V. Reference to sell estates or adjust other matters before final judgment. Vr. Referee's report on decretal order, form, nature and use of. VII. Exceptions to report, when and how taken, and brought to hearing. VIII. Final hearing of the cause on further directions upon the coming in of referee's report. SECTION I. DECRETAL OEDEE EESERTIN& EUETHBE DIEECTIONS, AND OEDEE OP EEFEEBNCE THEEEON. The line of distinction between final and mere interlocutory decrees was well defined under the former equity practice, and this distinction existed from the very nature of the remedies ad- ministered in courts of equity. The same distinction, though not marked out in terms by the Code, exists, and is constantly recog- nized in practice under the present system. We have seen, in a former section,^ that on a trial by the court without a jury, the decision might be final, that is, determining all the questions involved in the controversy, upon which a final judgment might be at once entered ; or it might be interlocutory merely, ascertaining the rights of the parties involved in the issues, but reserving the consequential directions, and the ques- tion of costs, until the coming in of the report, and directing a reference for the purpose of taking an account, or determining some other fact or material circumstance, not strictly embraced within the issues, but necessary to be known to the court before » Ante, pages 480, 481. EESEEVING FURTHER DIRECTIONS. 513 a final judgment could be rendered.' In these cases, such deci- sion of the court and the order entered upon it, corresponds with the interlocutory decree of the Court of Chancery. Its eiFect is to suspend the final decree or judgment, until, by the report of the referee, or the verdict of a jury (if issues have been awarded), the court is enabled to decide finally upon the whole controversy. The most usual ground for not rendering a perfect judgment in the first instance is the necessity which frequently exists for a reference to make inquiries, or to take accounts, or sell estates and adjust other matters which are necessary to be disposed of before a final decision can be made in the suit.^ In these cases, and, indeed, in all cases in which a reference was directed, or a feigned issue, for the purpose of ascertaining any material fact in the case, the decree was held to be interlocutory and not final? And in precisely the same light are such decrees or orders still regarded under the present practice .^ A great variety of examples of these interlocutory decisions or orders preparatory to final judgment might be given. A few, for the purpose of illustration merely, will suffice. They may be arranged under three general heads : 1st, to take accounts; 2d, to make inquiries; 3d, to sell estates or adjust other matters necessary to be done before a final judgment.^ I. Interlocutory reference to take accounts and make cojwputations. These are common and necessary in all cases where the action is brought for the purpose of obtaining a general accounting, \& where an action is brought by legatees against an executor for the ' Kane v. Whitlock, 8 Wend., 219 ; Johnson v. Everett, 9 Paige, 636. 2 2 Dan. Ch. Pr., 632. ^ Jacques v. Methodist Episcopal Church, 17 John., 558. * Cruger v. Douglass, 4 How., 215 ; Harris v. Clark, 4 How., 78 ; Hollister Bank of Buffalo v. Tail, 15 N. Y. R., 593 ; McMahon v. Allen, 27 Barb., 336, 7 Abbott, 1 ; Tompkins v. Hyatt, 19 N. Y. R., 534. ^ The 2d and 3d subdivision of section 271 of the Code embraces all these general classes. Subdivision 2 authorizes a reference " where the taking of an account shall be necessary for the information of the court ie/ore judgment," &c., which embraces the first class above ; and the second and third classes are em- braced in subdivision 3, which authorizes a reference " where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action." V. S. 65 514 DECRETAL OEDEES. purpose of compelling him to render an account, and to obtain from him payment of legacies ; or by a creditor for a similar pur- pose against an assignee ; or a cestui que trust against any other trustee ; or by one partner against his copartner for winding up the affairs of the partnership ; ' or in an action for the foreclosure of a mortgage, after the decision of the issues declaring the plaintiff's rights on his bond and mortgage, for a computation of the amount due preparatory to entering final judgment.^ In an action brought by preferred creditors, under a copartnership, against the assignees and others, to obtain a general accounting, including the proceeds of certain real estate sought to be charged as co- partnership property, the cause was tried and an interlocutory decision made, charging the value of the improvements to the real estate as copartnership assets, and ordering a reference to compute such value and take an account.^ So in an action brought by the assignee himself to settle certain equities between the creditors under the assignment, and to render a final account and obtain his discharge, on an interlocutory decision upon the issues, a reference to take the account was ordered.* 2. To make inquiries. An example of this kind of reference before final judgment may be given in the case of an action for a specific performance of a contract to convey real estate, in which the court directs a reference to inquire whether the vendor can make a good title. The rule, it is said, was invariably acted upon in suits of this nature, and the court would not permit the question whether a good title can be made or not to be argued before it in the first instance, even though the objections to the title are stated in, and the questions arising upon them are properly raised by, the plead- ings.^ The present practice, though there is no reported case on the subject, it is supposed is the same, inasmuch as there is ' Graham v. Golding, 7 How., 266. 2 HoUister Bank of Buftalo v. Vail, 15 N. Y. R., 593 ; Johnson v. Everett, 9 Paige 636. ^ Kendall v. Rider and others, Albany special term, 1858, not reported. * Van Santvoord v. Floyd and others, Rensselaer special term, December, 1858 not reported. " 2 Dan. Ch. Pr., 632 ; Jenkins v. Hiles, 6 Vesey, 646. EESEKVING FURTHER DIRECTIONS. 515 nothing inconsistent with such practice in the Code or the exist- ing rules of the court.^ The interlocutory decree for a reference as to the title of a vendor, directs an inquiry whether he can make a good title at the time of the reference, not whether he could make a good title at the time of entering into the contract.^ And, under such a reference, it has been held, that if the vendor can show a good title at any time before the master's report, it will entitle him to a decree.^ The order for such a reference should contain a decla- ration that the contract ought to be specifically performed.* An interlocutory order for a reference is sometimes made to inquire what persons are interested in the subject matter of the suit. As in cases relating to the distribution of the estate of an intestate, the court will, before making any decree aifecting the estate, or even before ordering an account of it to be taken, direct a reference to inquire and repoit who were the next of kin of the intestate at the time of his decease, and which of them are living or dead, and if dead, who are their personal representatives.* The same course is generally pursued in other cases where there is a fund distributable among persons constituting a particu- lar class consisting of numerous individuals ; as in the case of a bequest to the cousins of a testator, &c. In such case, as well as in that of intestacy, the court will, before it directs any steps to be taken, either toward a distribution, or for ascertaining the amount of the fund, satisfy itself by a previous reference, that all the individuals constituting the class amongst whom the fund is- distributable, are parties to the proceeding.* Another example of such a reference is, in actions for the partition of real estate, in which actions an interlocutory order of ■ Code, § 469 ; and see on this subject what is said in the first chapter of this work in regard to the application of the former rules and practice of the Court of Chancery to civil actions under the Code, ante, pages 21, 22 ; also Elmore v. Thomas (7 Abbott, 72), in which it is said that the court possesses this equity power to order references inherently, and without the provisions of the Code. 2 Mortlock V. Buller, 10 Ves., 292, 315 ; Langford v. Pitt, 2 P. Wms., 630. ^ Ibid. Hepburn v. Dunlap, 1 Wheat., 179. * Mole V. Smith, Jacob, 495 ; 1 Barb. Ch. Pr., 328. 5 2 Dan. Ch. Pr., 636. « Ibid. 1 Barb. Ch. Pr., 328. 516 DECRETAL OEDEES. reference (now regulated by the 79th rule), is made before final judgment to inquire and report whether an actual partition of the premises may be had, and if not, then to inquire and report as to specific and general liens, &c.^ 3. To sell estates or adjust other matters before final judgment. Interlocutory references are also often ordered in these cases. It is to be observed, however, that a decree or order is not inter- locutory merely because it directs a reference, such as to sell, convey, or partition land, &c. If it contain all the consequential directions depending upon the result of the master's report, so that no further decree or order of the court will be necessary, upon the confirmation of the report, to give the parties the full and entire benefit of the previous decision of the court, it is a final judgment, and not a mere interlocutory decision.^ Such is a decree directing land to be conveyed and appointing a commis- sioner to convey it; or a decree ascertaining the amount due, directing a sale and giving costs ; or upon a bill for specific per- formance, a decree made upon the coming in of a report, by which the quantity of land to be conveyed, and the balance of money to be paid are ascertained, and directing that a conveyance be executed on such balance being tendered.^ All these are final decrees. And although a decree or judgment appoints a commissioner to sell part of the subject, and account for and pay part of the pro- ceeds to the parties, with liberty to them to apply to the court to add other, or substitute niew commissioners, or for a partition of the subject to be sold in kind, it is final.* And the general rule seems to be, that a decree or judgment which settles the rights ' Another example of an interlocutory order for a reference to make inquiries is found in the case of Elmore v. Thomas (7 Abbott, 70), in which it being neces- sary to ascertain a particular description of the plaintiff's real estate, in order that a judgment for defendant might be made a specific lien upon it, this in- quiry, which was not embraced in the issues, was referred to a referee prepara- tory to final judgment. And see the subject of such references generally discus- sed in that case by Potter, J. ^ Mills V. Hoag, 7 Paige, 18 ; Quackonbush v. Leonard, 10 Paige, 131. 2 Travis v. Waters, 1 John. Oh. R., 85 ; 1 Barb. Oh. Pr., 330. * Ibid. Harvey v. Branson, 1 Leigh, 108. RESERVING FURTHER DIRECTIONS. 517 of the parties, and disposes of all the questions in controversy, including the general costs of the suit, and which contains the consequential directions for carrying the decree into effect, though such decree do direct a reference on the coming in of the report of which a further order of confirmation is necessary, it is sub- stantially a final and not a mere interlocutory decree.^ Such is the usual decree or judgment in a foreclosure suit, which reserves no questions or further directions, but directs the referee or sheriff to sell the mortgaged premises, and pay the costs to be taxed, and the amount due on the plaintiff's mortgage, depositing the balance, if any, in some bank, &c. This substantially disposes of the whole controversy, and though a further order of confirmation is necessary on the coming in of the referee's report, it is a final judgment. But where the reference is merely to compute and ascertain the arftount due, and questions and directions (including the question of costs), are reserved until the coming in of the report, the decision is interlocutory, and the plain biff cannot ob- tain final judgment until he brings the cause on to be heard again upon the equity reserved, and for further directions as to a sale of the mortgaged premises and the payment of his debt and costs out of the proceeds of the sale.^ Such an order in a foreclosure suit, even though it do not in terms reserve any questions or fur- ther directions, is merely an interlocutory order, and not a final j udgment.^ One or two examples of interlocutory decisions and references, under the class above referred to,* namely, to sell estates or ad- just other matters before final judgment, will close what remains to be said on this subject. A decree or judgment empowering an executor to sell the lands of his testator for the payment of his debts, and to report his proceedings in execution thereof to the court, is not final, but interlocutory.'' A decree deciding the right to the property in controversy, and awarding costs of suit, is only interlocutory if '■ Taylor v. Read, 4 Paige, 561 ; Mills v. Hoag, 7 Paige, 18 ; Quackenbush V. Leonard, 10 Paige, 131. 2 Johnson v. Everett, 9 Paige, 636. ^ Swartwout v. Curtis, 4 Comst., 415 ^ Ante, page 516. ^ Goodwin v. Miller, 2 Munf., 42. 518 DECEETAX, ORDEES. commissioners be appointed to carry it into effect, and the court has yet to act upon their report, and has reserved further direc- tions as to the subject matter of the suit or as to costs.^ So a decision, decree, or order, disposing of the main points of the con- troversy, and directing a reference to do any act relative to the subject matter of the suit, or to settle any equities between the parties, if such decision or order also add, " the question of costs and all other questions are reserved till the coming in of the report, and final hearing," is merely an interlocutory decision or order.^ A decree for specific performance, directing a conveyance and ordering a reference to take an account of the land to be conveyed, and of the payments, and to ascertain the balance due (on payment of which the conveyance was to be executed), and reserving the question of costs until the coming in of the report, is not a final decree ; it makes no difference that the decree in such case settles the main point in controversy, namely, the right to a specific performance upon payment of the balance due ; for, so long as other material questions are left unsettled, namely, the quantity of land to be conveyed, and the balance due, the refer- ence to investigate and settle these points is interlocutory merely, and the cause must be brought to argument and final hearing on further directions.^ And so also, it has been lately held in the Court of Appeals, a judgment for the sale of lands and the dispo- sition of the proceeds in accordance with the report to be made upon a reference therein ordered to ascertain the shares of the respective parties, is not final, and no appeal can be taken from it to the Court of Appeals, even though it do not contain a pro- vision for a review of the report, or for suspending the actual payment of the money to give an opportunity for appeal ; the general rule being, that the judgment is not final so long as there may be future litigation under it.'' The foregoing general principles, mainly drawn from the old practice, are useful in their application to the new. Under the ' Mackay v. Bell, 1 Root, 523. " Thompson v. Peobles' heirs, 6 Dana, 391. See also Cruger v. Douglass, 4 How., 215 ; Harris v. Clark, 4 How., 78. 3 Travis v. Waters, 1 John. Ch. R., 85 ; S. C, 12 John., 500. * Tompkins v. Hyatt, 19 N. Y. R., 534. RESERVING FURTHER DIRECTIONS. 519 former system, it was said, the distinction in practice between a final and an interlocutory decree, was a nice one ; and it was often of considerable importance to the parties, to ascertain it correctly.' The remark holds good in respect to our present system. Perhaps the distinction is now of more practical im- portance than formerly. The course of procedure upon a mere interlocutory decision, is entirely different from that upon a final judgment. So also in regard to the time and mode of taking an appeal, in the latter case it being an appeal from a judgment, and in the former case an appeal (if it can be taken at all) from an order merely, though, it is held, that no appeal is allowed at all to the general term from a mere interlocutory decision and order in the cause, where an accounting is ordered, until such account- ing has been actually taken and final judgment entered.^ But if such an appeal has been taken to the general term on the order allowed upon an interlocutory decision, and heard there, an appeal will not lie, from the general term decision, to the Court of Appeals; such an appeal being only allowed from a final judg- ment.^ The subject of appeals will be more fully considered in a subsequent part of this work. In the remaining portions of the present chapter, without entering upon that subject at all, I shall consider the course of proceeding and practice on the rendering of interlocutory decisions and orders of reference, down to the entry of judgment. Order vpon interlocutory decision. Section 269 requires that upon a trial of a question of fact by the court, its decision shall be given in writing and filed, &c.;* and a trial (by section 252), is the judicial examination of the issues between the parties, whether they be issues of law or of fact. The hearing of the cause in the first instance, therefore, and the examination and determining of those issues by interlocutory > 1 Barb. Ch. Pr., 333. 2 D'lvernois v. Leavitt, 8 Abbott, 59; McMahon v. Allen, 7 Abbott, 1. See also Lawrence v. Farmers' Loan and Trust Co., 15 How., 57. 3 Hollister Bank of Buffalo v. Vail, 15 N. Y. R., 593 ; Smith v. Grant, 15 N. Y. R., 590; Swartwout v. Curtis, 4 Oomst., 415 ; D'lvernois v. Learitt, 8 Abb., 63. * See ante, page 481. 520 DECRETAL ORDERS. decision, so far as the court can then determine them, it is conceived, is a trial within the meaning of the Code, requiring a written decision of the judge to be made and filed. The decision itself, however, as has already been shown, is not an order, although it should properly contain all the elements on which an order in form directing the I'eference or further proceeding, may be founded. Both the Code, and the rules being silent as to the practice to be pursued in such cases, it has not been entirely uniform. The proper practice I conceive to be, on filing the written decision of the judge, to draw and enter an order, in the shape of the former interlocutory or decretal order, following the terms of the decision, and appointing and naming the referee, and specifying and directing the subject of the reference. In the case of Kendall v. Rider et ah, referred to on a preceding page, ^ the course of proceeding was substantially as follows : The issues joined in the action having been tried at special term, and the rights of the parties ascertained, by which it appeared that the plaintiffs were entitled to an accounting, the judge having furnished brief minutes of his conclusion upon the facts and the law, a written decision in form was prepared by the plaintiifs' attorney, and submitted to the attorneys on the other side for their inspection. The form of the decision not being agreed upon, it was submitted to the judge by consent (service of the di-aft, decision and notice of settlement would otherwise be necessairy) for settlement. The decision being settled, and signed by the judge, was filed in the clerk's office; and thereupon the plaintiff's attorney prepared, and procured to be settled in like manner, an order upon such decision, which followed the terms of the decision in all respects, and contained in addition the appoint- ment and name of the referee, specifying the subject matter and mode of reference, reserving further directions and all other ■ Ante, page 514. The author, as attorney and counsel, conducted this case, which was an action by creditors against the assignees of a copartnership and others for an accounting and seeking to charge the proceeds of certain assigned real estate as partnership assets. Issues of fact were joined, presenting the question as to whether such real estate was copartnership property or not, and tried by Justice Hogeboom at special term in 1858. RESERVING FURTHER DIRECTIONS. 521 questions not passed upon in the decision, including the question of costs, until the coming in of the report. This order really constituted the authority for the referee to proceed. It was filed, entered, and served, as in other cases ; ' and under it the referee proceeded with the hearing of the matters so referred, and made his i-eport, and the cause was brought to final hearing thereon, in the manner to be considered in the last section of this chapter. This, I suppose, may be regarded as the proper practice in all cases of this description, the order entered upon the decision, and not the decision itself, being the basis of the subsequent proceed- ings before the referee. As to the right of appeal from such an order it may be observed that while, perhaps, an appeal might be allowed on the ground that the matter referred was not referable, or in respect to the direction given for such reference,^ yet it must be obvious at a glance that there can be no appeal on the merits, either upon the questions of law or of fact.^ A sufficient reason for this is found in the fact that there is no mode of bringing the matters in question before the appellate court. A case or exceptions to review questions of law or fact on a trial by the court without a jury can be made to review a judgment only, and not an order. Such exceptions or case (by section 268) are to be made within ten days after "notice in writing of the judgment." If a party, therefore, consider himself aggrieved by an interlocutory decision of the court on a trial without a jury, he must wait until the referee shall have reported and final judgment entered before making his exceptions. He may then take his exceptions and appeal from the judgment to the general term, and if he choose from the general term decision to the Court of Appeals. ' See practice on drawing and entering orders, ante, pages 449-454. If the judge's decision merely directs a reference without specifying the name of the referee, such referee, unless agreed upon by the party, is to be selected or appointed in the same manner as in other cases of reference. See ante, pages 486, 487. 2 See Wiggins v. Gans, 4 Sand., 646. 3 D'lvernois v. Leavitt, 8 Abbott, 59; McMahon v. Allen, 7 Abbott, 1 ; Law- rence V. Farmers' Loan and Trust Co., 15 How., 57. 522 DECRETAL ORDERS. SECTION n.^ GENEEAL COUESE OP PEOCBEDING ON EEFEEENCE UNDEE DECEETAIi OEDEE. The proceedings before the referee upoo interlocutory orders of reference for the information of the court, preparatory to final judgment, will now be considered. The nature of these references has been spoken of in the preceding section, where it was shown that they may be classed under one of the three following heads, viz.: 1st. To take accounts ; 2d. To make inquiries ; 3d. To sell estates or adjust other matters necessary to be done before final judgment.^ I shall notice, in the subsequent sections of this chapter, the course of proceedings before the referee in each of these three classes of cases, in their order. The present section will be confined to some general considerations respecting the powers and duties of the referee in such cases, and certain matters preliminary or incident to the hearing and execution of the reference. Reference, to whom made- Under the old Chancery practice, references were always made to a master in Chancery. The office was local so far as to require the master to reside in the county for which he was appointed ; though he might act as master In any county in the state.^ The office of master in Chancery having been abolished by the Consti- tution of 1846, the functions of such officer were thereafter, under the provisions of the judiciary act of 1847, discharged by a person appointed to act as referee by the court in each parti- cular case. Such referee may be any indifferent person, not a party to the suit, agreed upon by the parties or nominated by the court. It is usual, however, though not necessary, that he be an attorney or counselor, or the clerk of the court. General powers and duties. The general powers of referees on interlocutory orders, are not prescribed in any section of the Code. Section 272, which has been fully considered in a previous chapter, in connection with 1 Ante, page 513. = 1 Barb. Ch. Pr., 469. REFERENCE THEREON. 523 the subject of the trial by referees,^ applies only to the trial of issues. Hence, the provisions of that section respecting the power of referees to punish for contempts, &c., and to amend the pleadings and summons, are not applicable to mere inter- locutory references. So far, indeed, as amendments to the process and pleadings are concerned, it is obvious from the nature of things, that a referee in such cases has no poveer. For, it has been held in the Court of Appeals,^ that on a reference in a fore- / closure suit to compute the amount due, and to take proofs of the allegation in a complaint as against an absent defendant, &c., the parties who have appeared and answered are concluded by the order as to the issues in the pleadings ; and the referee has no power to examine the plaintiff as to any facts, except those rela- tive to payments on the mortgage; nor to examine an absent defendant, in behalf of Ris co-defendants, as to a defense of fraud set up in the answer. And generally the facts and issues established by the interlocu- tory decision and order are to be taken as conclusive by the referee for the purposes of the reference. A referee in these cases is a mere substitute for a master in Chancery and must conform to the rules and practice of the court so far as applicable under the Code.^ The general powers and duties of such referees, therefore, not being prescribed by the Code, or by the rules of the court, are the same with those possessed by a master in Chancery while proceeding in the execution of a decre- tal order. That part of the former Chancery practice, or at least, so much of it as is not inconsistent with the Code, is still in force.* It will be so considered in its application to such references in the further discussion of this subject. Change of r'feree. After a matter has been referred, it cannot be withdrawn from the referee named without an order of the court. And such an order will not be made unless on very special occasions, such as ' Ante, pages 489, et seq. ^ McCracken v. Valentine, 5 Seld., 43. ' Palmer v. Palmer, 13 How., 363; Ketchum v. Clark, 22 Barb., 319; Graves V. Blanchard, 4 How., 303 ; Van Zandt v. Cobb, 10 How., 348. ^ Ibid. See ante, pages 21, 22, and cases there cited. 524 DECRETAL ORDERS. the incapacity of the referee from illness, to attend to the busi- ness, or other cause of an urgent nature, sufficient to justify a re- moval.' In a recent case in the New York Superior Court,^ it was considered that unreasonable delay on the part of the referee in proceeding with the reference, or granting an adjournment for an an unreasonable time against the wish of one of the parties, was good cause' for substituting another referee with directions to pro- ceed with the reference. In that case, which was a reference as to alimony in a divorce suit, an adjournment, agatast the objec- tions of the plaintiff's counsel, from June till October, partly on the ground that defendant's counsel was about to go to Europe, and partly on the ground that a vacation and relief from the duty of proceeding with the reference was proper, was held unreason- able; and the court directed that the order of reference, so far as designating the. referee, should be vacated and a new referee appointed, unless the defendant consented to vacate the adjourn- ment and go on with the reference. Fixing time and place of hearing. It is customary to deliver to and leave with the referee a certified copy of the order of reference for his u^e ; and under the former practice it was held irregular for the master to issue a summons to proceed with the reference until the decretal order was actually entered and an authenticated copy brought into his office.^ The actual service of a copy order, however, is now frequently omitted in practice until the hearing. It is proper and usual for the referee to appoint in writing a time and place for the hearing of the cause, a copy of which should be served with or before the notice of hearing.* This was required to be done by the rules of the Court of Chancery.^ The time of reference is usually sufficient to enable the party prosecuting the reference to give the ordinary notice of eight days, unless the adverse party is brought before the referee by sum- mons, when it may be a shorter time — by the rules of the former practice not less than two days where the solicitor of the adverse ' 1 Barb. Oh. Pr., 471. ' Forrest v. Forrest, 3 Bosw., 650. ^ Quackenbush v. Leonard, 10 Paige, 131. " Sage V. Mosher, 17 How., 367. ^ Chancery, Rule 100. REFERENCE THEREON. 525 party resides in the place where the hearing is to be had, and not less than four days where he resides elsewhere, not exceeding fifty miles from the place of hearing, nor less than six days if over fifty and not exceeding one hundred miles, and where he resides more than one hundred miles from the place of hearing, not less than eight days, unless a shorter time was fixed in the order of reference.! If the order do not fix the place of reference, it is usually appointed in the county where the referee resides, or in which the action is triable, though there is no rule of court com- pelling it to be held there. In cases, however, where a reference is ordered on failure of the defendant to answer, it must be held in the county where the action is triable, unless the court otherwise order .^ Both time and place may be fixed by the referee in the sum- mons which he issues to the parties to attend. Parties, how brought before the referee. By the former practice the parties interested in the subject matter of the reference were in all cases brought before the master by means of a summons or warrant. The summons was a paper entitled in the cause and signed by the master, appoint- ing a time and place for the parties concerned to attend him, and containing by means of an underwriting or memorandum a gene- ral statement of the subject of the reference.^ A direction was indorsed upon it by the master, stating the length of time that the summons should be served on the adverse party. Service upon the party was not necessary, but personal service upon the solicitor was sufficient, even for the purpose of bringing the party into contempt for disobeying the summons.* This practice, it is thought, is still proper to be pursued in all cases, though it is quite common for a party prosecuting an inter- locutory reference to obtain from the referee a simple appointment of the time and place, and thereupon to serve an ordinary notice of hearing upon the adverse attorney, and in case of his failure to ' Chancery Rule, 100. = Sup. Court, Rule 24. 3 1 Barb. Ch. Pr., 472. ■> Merritt v. Annan, 7 Paige, 151. 526 DECRETAL ORDEES. attend proceed with the reference ex farte ; ^ unless, indeed, the testimony of the party himself is required upon such hearing, in which case a summons by the referee must be first issued in order to enforce his attendance, as will be presently noticed. Who to prosecute the order of reference. The party obtaining an order of reference, or when both parties are interested in the prosecution, the plaintiff, is in the first in- stance entitled to the prosecution thereof.^ There seems nothing in this rule inconsistent with the present practice, as there is no provision made authorizing an adverse party to notice the matter for hearing and take the plaintift's default or proceed on the reference adversely against him. Should the party entitled to prosecute the order neglect to do so, the practice established in Chancery, it is thought, may also be properly pursued ; that is, if he did not procure and serve the summons within thirty days after the entry of the order, any other party or person interested in the matter of the reference was at liberty to apply to the court, by motion or petition, to expedite the proceedings, and on such motion have the prosecution of the reference committed to him.^ Or, if the party neglected to prose- cute the reference with due diligence after the proceedings were commenced by the service of the summons, the master was at liberty, upon the application of any other person interested, either as a party to the suit or as coming in to prove his debt or establish a claim under the decree or order, to commit to him the prosecution of the reference. In this case notice to the complain- ant's solicitor must be given of the application to the master, and of the papers on which it was founded ; or the party so applying should deliver to the master the evidence of the complainant's neglect and procure a summons for the adverse party underwritten ' By the 104th Rule in Chancery the master might proceed ex parte if he thought it expedient where the parties, or some of them, neglected to attend after service of the summons ; and such proceedings were not to be reviewed by him unless upon a special application by the party who was absent, the master was satisfied that such party was not guilty of willful delay or negligence. « 1 Barb. Ch. Pr., 474. ^ Chancery, Rule 191 ; Quackenbush v. Leonard, 10 Paige, 131. EEFEEENCE THEEEON. 527 to show cause why the prosecution of the order should not be taken from him and committed to the applicant.^ Regulating reference, as to parties who may attend, and miotics to parties. Uuder the former practice the master, at the first meeting be- fore him, proceeded to regulate the manner of executing the order by determining what parties were entitled to attend future pro- ceedings, directing advertisements and stating the several steps to be taken by the parties as far as could conveniently be done ; and a wide discretion was given to him in allowing or refusing to allow parties to attend before him. These formal proceedings are no longer observed, and it is believed to be the universal practice on such references to allow all parties to the action to attend, or even quasi parties who have an interest or claim in the contro- versy. All th« parties who have appeared are entitled to notice, either by summons, or the service of a notice of hearing ; and the referee, in his discretion, may direct other parties, who he thinks are properly entitled to it, to be notified of the proceedings. Adjournments. By the former as well as by the present practice the reference may proceed de die in diem, or by adjournment from time to time, as the referee may think proper.^ Such adjournment must not be for an unreasonable time.^ And the fact that adjournments by a referee are not formally made from one hearing to another, does not render the proceedings irregular, if both parties gave all the testimony they desired, and submitted the cause on such testi- mony.* Compelling attendance of wit7iesses and parties to testify. It has been observed that a common practice in regard to bring- ing on interlocutory references since the Court of Chancery was abolished, has been, instead of notifying the parties by summons to attend, to serve upon their respective attorneys an ordinary notice of hearing, and in case they made default, to proceed with the reference ex yarte. This course, however, cannot properly be 1 Chancery, Rule 191 ; Quackenbush v. Leonard, 10 Paige, 131 ; HoUey v. Gro- ver, 9 Paige, 7. 2 1 Barb. Oh. Pr., 477. ' Forrest v. Forrest, 3 Bosw., 650. * The Accessory Transit Co. v. Garrison, 9 Abbott, 141. 528 DECEETAL OEDEES. pursued where it is necessary to have the evidence of the parties, or any of them, on the hearing. In such cases they cannot he compelled to attend by the process of subpoena, but a summons must be served. By the former practice, if the party neglected to attend, or refused to put in his examination, an application was made to the court by motion for an order that he be compel- led to put in his examination by a specified time, or that an attachment issue.^ A more summary mode, however, may now be pursued to procure the personal attendance of the party as a witness under the general provisions of the Revised Statutes here- tofore noticed,^ which authorize the referee as an officer of the court, in case the summons be not obeyed, to issue his warrant and bring in the defaulting party. Section 390 of the Code gives a party to an action the right to examine the adverse party as a witness, and also provides that he may be compelled, in the same manner and subject to the same rules of examination as any other witness, to testify, either at the trial, or conditionally, or upon commission.^ The mode of proceeding, therefore, to" procure his attendance and testimony at the hearing of the reference, will be similar in all respects to that pursued to procure the attendance and testimony of a party before a judge on an examination before trial, which has been already pointed out in the section devoted to that subject.^ By the former rules of the Court of Chancery,^ process of sub- poena to compel the attendance of witnesses issued of course, and if the witness failed to attend and submit to an examination, he was liable to be punished for a contempt. Witnesses, other than parties, and even parties themselves, may still be subpenaed to 1 2 Dan. Pr., 820 ; 1 Barb. Ch. Pr., 491. ^ ^J^te, pages 301, 302. ' The case of Huelin v. Ridner (6 Abbott, 19), holds that such examination cannot be compelled for the purposes of a mere preliminary or collateral motion. It must be " as to matters pertinent, or supposed to be pertinent, to the trial of the action." An examination upon the kind of interlocutory references under consideration, which are consequent upon and auxiliary to the trial, must be regarded, I doubt not, as an examination "at the trial," within the meaning of section 390. * Ante, pages 297, et seq. ^ Chancery, Rule 76. EEFEEENCE THEEEON. 529 attend before tlie referee in the same manner as upon a trial ,' and this is a very common course of proceeding. Disobedience to such subpoena, however, as has been noticed, will not authorize the referee to issue the statutory warrant to bring the witnesses before him to testify ; he must first issue his summons ; or, if that course be preferred, in case of disobedience, a motion to the court may be made to attach the witness and punish him for contempt.^ Production of documents, hoiv enforced. It was the usual and almost invariable practice, to insert in a decretal order of reference, a direction that the parties produce before the master, upon oath, all deeds, books, papers, and writ- ings in their custody or power, relating to the matter of the reference, as the master shall direct. Upon this order the master exercised a discretion in determining what books and papers were necessary to be produced ; but this discretion was limited by the rules which govern the court in compelling a discovery and pro- duction of documents and books in other cases.^ The mode of compelling the production of documents in cases of disobedience to the order, was by application to the court for process of contempt as in other cases.* The same course may, if it be deemed advisable, be pursued at present. It cannot, however, at least in many cases, be absolutely necessary ; inasmuch as a party, as we have just seen, may be summoned and made to attend and testify the same as any other witness. And it has been decided under the Code, that a party may, at the instance of an adverse party, not only be compelled to attend and submit to a personal examination, but to produce papers and books precisely as any other witness may be compelled to do ; and a witness, when properly subpenaed, is as much bound ' A party subpenaed must be paid his fees the same as any other witness ; Hewlett V. Brown, 1 Bosw., 655. ' It will be observed that I assume throughout that the provisions of section 272 apply only to trials before referees and not to these interlocutory references. If they are applicable to such references, of course, the referee may issue attach- ments for witnesses and, punish them for contempt. 3 1 Barb. Ch. Pr., 480, 481. ^ For mode of proceeding to enforce the production of documents, &c., on such references, see 1 Barb. Oh. Pr., 481, 482. V. S. 67 530 DECRETAL ORDERS. to produce books and papers in his possession as to testify orally, his neglect of either being a contempt.^ The proper mode of proceeding in such case, it is supposed, would be for the referee to issue his summons to the party or witness in the usual form, with an underwriting, as iij^the former practice, to the following effect : " At which time and place you are required to produce before me all such deeds, books, and papers as are in your custody or power relating to the matters referred to me." Should any particular document or paper be required it should be specified in the underwriting.^ General course of examination hefore referee. It is not proposed to consider in detail the course of proceeding before the master, under the former practice, in regard to the examination of parties and witnesses. Much of it was pecuhar to certain forms of the Court of Chancery which are inconsistent with the .present practice and have become obsolete, such as the examination upon interrogatories,^ the exceptions to the examina- tion, the taking examinations of witnesses residing in this state on commission, &c. It is sufficient, generally, to remark that all examinations of witnesses before referees are now viva voce ; that the course of proceeding on such examinations is similar in all respects to that pursued on the trial of a cause ; that the general rules of evidence which govern the courts of law as well as of equity, regulate also the proceedings before the referee ; and that the practice is the same now as heretofore, that, where the court directs an inquiry into a fact, it is in the nature of a new issue joined ; and what would be evidence in any other case will be evidence before the referee.* The parties are at liberty to make use of all the proceedings which are of record in the cause, in the nature of evidence, such as depositions taken in the cause on commission, &c., or the plead- " Bonesteel v. Lynde, 8 How., 226, affirmed by general term on appeal, Garighe v. Loscbe, 6 Abbott, 284, note. 2 1 Barb. Oh. Pr., 481. ^ Except, perhaps, in the case of takhig and stating accounts to be presently noticed. And see Wiggins v. Gans, 4 Sand., 646. * Smith V. Althus, 11 Ves., 564 ; 1 Barb. Oh. Pr., 493. REFERENCE TO TAKE ACCOUNTS. 531 ings ; but the. pleadings can be made use of only for the same purposes as before the court, namely, as admissions, and not as evidence for or against any other party.^ Nor can any evidence be given as to any issues iu the pleadings vrhich have been deter- mined by the decision of the court, the order of reference setting forth such decision, and the decision being, as to such issues, for the purpose of the reference, conclusive upon the parties who have appeared.^ When the witness is examined the questions are not put from written interrogatories previously prepared, but are such as sug- gest themselves at the time. The witness is first examined by the party calling him, and then cross-examined by the opposite party, the answers alone, and not the questions, being taken down by the referee, who may also put such questions to the witness as he thinks proper. The witness is sworn by the referee before being examined, in the following form : " You do solemnly swear [or affirm] that you will true answers make to such questions as shall be put to you touching the matters in reference in a certain cause depend- ing in the Supreme Court of the State of New York, wherein A. B. is plaintiff and C. D. and others are defendants, and therein will speak the truth, the whole truth, and nothing but the truth, so help you God." The examination being completed is read over to the witness, who may make any corrections he thinks proper, and is then signed by him, the referee adding thereto his jurat in the usual form. The signature of the witnesses, and jurat of the referee, however (unless in cases where the proofs are to be returned with the report to the court), are frequently omitted, the testi- mony being taken as at the trial of an issue by a referee. SECTION III. EEPEKBNCB TO TAKE ACCOUlStTS. The taking and stating accounts, whether in cases of executors and administrators, or of guardians, assignees or other trustees, 1 Smith V. Althus, 11 Ves., 564 ; 1 Barb. Oh. Pr., 493. ^McCracken v. Valentine, 5 Seld., 493. 532 DECEETAL OEDERS. or in the winding up of partnerships, &c., are some of the most common subjects of interlocutory or decretal orders. It is proper in this place to notice the proceedings upon such references, and to consider how far such proceedings have been altered by the new practice. An accounting before a master in Chancery, was regulated by the rules of that court, the 107th of which rules, adoj)ted in 1829 and remaining in force down to the time the Court of Chancery was abolished, directed that "all parties accounting before a master, shall bring in their accounts in the form of debtor and creditor ; and any of the other parties who shall not be satisfied with the accounts so brought in, shall be at liberty to examine the _accounting party ujpon interrogalories as the master shall direct." And in the revision of 1837, the following was added : " On any reference to take or state an account, the master shall be at liberty to allow interest as shall be just and equitable, without any special directions for that purpose, unless a contrary direc- tion is contained in the order of reference. And every charge, discharge, or state of facts, brought in before a master, shall be verified by oath as true, either positively, or upon information and belief" The mode of verifying the accounts so brought in, was pre- scribed by the chancellor,' and it was required to be an affidavit by the party accounting that the account, including both credit and debit, is correct, and that such party accounting does not know of any error or omission therein to the prejudice of any of the other parties. In the case of Wiggins v. Gans,2 decided in 1851 in the New York Superior Court, with the concurrence of three judges of that court, it was held, that the rules and practice of the Court of Chancery, on the subject of accounting, existing at the time of the adoption of the Code, are not inconsistent with any provision of the Code, and that consequently, by section 469, they are still in force. The defendant, in that case, was thereupon ordered to bring in an account like that prescribed in the rule above given. ' Story V. Brown, 4 Paige, 112 ; Benson v. Le Roy, 1 Paige, 122. = 4 Sand., 646. REFERENCE TO TAKE ACCOUNTS. 533 duly verified as above, and file it with the referee within ten days, in default of which the plaintiff might apply for an attachment. Since that time the same rule has been recognized and acted upon by the Supreme Court,^ and the practice in this respect, therefore, may be regarded as settled. Notwithstanding the rule is positive, in directing the parties to bring in their accounts in the form of debtor and creditor, it was not always necessary to call upon them to do so. If sufficient appeared from the admissions of the party to be charged, either in his answer, or in the schedules to it, or in any proceeding in the cause, to enable the account against him to be properly made out, the party conducting the proceedings might immediately bring in his charge — that is, the items on the debit side — without calling for any account under the 107th rule.^ So, also, since the Code, in many references of this nature, the formal mode of pro- ceeding under the Chancery rules is not pursued, ^but the referee, from the papers and accounts (often not verified), produced before him, and the vouchers and evidence, proceeds to make up and state the account ; still the parties have the right, if they demand it, to the formal bringing in of the account in the form of debit and credit, as prescribed by the rule, and duly verified by affidavit. Form of account. The following is the form of an account, in the case of an exe- cutor directed to account for the personal estate and effects of the testator received by hun, as given in the books on Chancery prac- tice : ^ [title of the CATXSE.j The account of the defendant, A. B., of the personal estate and effects of C. H., deceased, the testator in the pleadings in this cause named, come to the hands of, and received by, the said defendant as executor of said testator, and of the disbursements and payments made by the said executor thereof: ' Palmer v. Palmer, 13 How., 364 ; Ketchum v. Clark, 22 Barb., 319. 2 1 Barb. Ch. Pr., 505. « 2 Browne's Ch. Pr., 817 ; 1 Barb. Ch. Pr., 506. 534 DECRETAL ORDERS. 1860. Dr., 1850. Cr., June 1. Cash found in testator's June 10. Cash paid, funeral ex- dwelling at the time of penses of testator as his death, «150 pr bill of Mr. A. B., $60.00 " 20. Cash received from sale July 1. Paid surrogate fees on of two Hudson River proof of will, Irf.OO Railroad 3d mortgage &o., &o., &c. bonds, 1,500 &c., &c., &c. The affidavit annexed may be in substantially the following form : Rbnssei-aee County, ss : A. B., the executor of the last will and testament of C. H., deceased, the testator in the pleadings in this cause named, being duly sworn, says : that the foregoing account, including both debits and credits, is correct, and this deponent, the party accounting therein, does not know of any error or omission in said accoimt to the prejudice of any of the other j)arties. •^- -"• Sworn, &c. The account is to be made up by stating on the debit side the property with which the accounting party is chargeable ; [it must set forth every sum which has come to his hands, the persons from whom, and the times when such sums were received. On the credit side should be set forth whatever sums the executor has a right to charge or set off in discharge ' of the debits, in- cluding his necessary disbursements and his lawful commissions ; and he should specify every sum paid, the person to whom, the purpose for which, and times when, such respective sum or sums were expended. The accounts in regard to the rents and profits of the real estate (if any) are to be framed in a similar manner, in a separate statement.^ ^ The terms charge, discharge and surcharge are used upon such accounting A charge is a statement of the debit side of the account rendered by the party accounting. A discharge is his exhibit of the credit side. A surcharge is a statement of items disclosed by the accounting, but omitted in the debit side of the account rendered. 2 1 Barb. Ch. Pr., 506. EEFEEENCE TO TAKE ACCOTOITS. 535 If the party accounting fails to render such account when required by any person interested, an application may be made to the court, on notice and motion, for an order requiring him to render and file it with the referee within a specified time, and in default, that an attachment issue.^ Exnmining party upon interrogatories, I do not propose to consider the practice of examining the party accomiting on interrogatories, further than to say generally that it was very special,^ and was peculiar to the Chancery practice. Written interrogatories were drawn, settled, and allowed, designed " chiefly to sift the conscience of the party, and to obtain admis- sions from him." These interrogatories, on an accounting, were directed to those points wherein the accounts were deemed in- sufficient or inaccurate ; and the answers thereto, by the party examined, were required to be in writing, and under oath, to the end that the examinants, by means of the disclosures thus made, might discover matters of surcharge against the accounting party and omitted by him. It was a peculiarity upon such examination that the party so examined in relation to his accounts, could give no testimony in his own favor, any further than his answers were considered fairly responsive to the interrogatories of the adverse party.^ In the case of Wiggins v. Gans, above cited,^ it was distinctly held, that, if required to do so, a party accounting must submit to be examined " upon interrogatories," as directed by rule 107 ; and that, as under the former practice, he could not, by reason of such examination, give testimony in his own favor, any further than his answers were fairly responsive to the interrogatories of the adverse party. So much of the decision as referred to the examination upon interrogatories, was based upon the consideration that if such examination was not allowed in that form, the parties interested in the accounting would have no means of obtaining his testinaony except to call him as an adverse party to testify under section 395 of the Code, in which case, by that section, he • 1 Barb. Ch. Pr., 491-507 ; Wiggins v. Gans, 4 Sand., 646. 2 See the course of proceeding on such examination, 1 Barb. Oh. Pr., 484, et seq. 3 Benson v. Le Roy, 1 Paige, 122. ^ Ante, page 532. 536 DECEETAL OEDEES. might be examined as a witness on his own behalf, and thus prove all his own payments and discharges, which the court considered manifestly unjust. Since that decision, however, parties to actions or proceedings, have been allowed (section 399, Code), to testify as witnesses in their own behalf. -In these cases, therefore, where the party accounting may now by law testify generally as a witness for himself, the reason for his examination upon interrogatories no longer exists; for upon such examination he cannot now be restricted to answers only responsive to the interrogatories, but may, under his general right to be a witness in his own behalf, testify to matters in his ovvn discharge. There can be no objection, then, urged by any party interested, who desires to examine him, against calling him as a witness to testify, orally, the same as any other witness. And I do not think that the practice of examining the party upon interrogatories is any longer useful, or applicable to such references. Mode of proceeding upon accounting. When the party accounting shall have brought in his account duly verified, and the parties have appeared at the time appointed for the hearing, the referee proceeds to take the proof offered by the party accounting in support of his discharges or payments. These he is required to vouch, by producing receipts for the same, or such of them as exceed twenty dollars in amount; and he must not only vouch his payments, but establish the propriety of such payments having been made, if the same is disputed.' This of course he can now do, as well as prove the genuineness of the vouchers, by his own verbal testimony. If any item of payment or discharge is objected to, the objec- tion should be made to the referee at the time, and the attention of the party accounting called to it, so as to enable him to supply the proper proof. If either of the parties seeks to charge the party accounting with the receipt, or liability to account for money, &c., with which he has not charged himself in his account, a statement of the facts, on which he relies to sustain such charge, should be furnished ■ 2 Smith Oh. Pr., 106 ; 1 Barb. Ch. Pr., 510. EEFEEENCE TO TAKE ACCOUNTS. 537 to the referee. In strictness, this statement of facts should be in writing, and entitled in the cause, and, if required, sworn to, according to the provisions of the 107th Chancery rule; cited supra ; ^ though it is believed that, in practice, this is not now Usually required, or done, as the same object can be accomplished by means of the less formal proceedings on verbal examination, and objection taken by either of the parties. It is provided by statute, that on the settlement of an account of an executor or administrator, he may be allowed any item of expenditure not exceeding twenty dollars, for which no voucher is produced, if such item be supported by his own oath positively to the fact of payment, specifying when and to whom such pay- ment was made. But such allowance shall not, in the whole, exceed five hundred dollars, for payments in behalf of any one estate.^ The rule, thus introduced in the statute, has been for a long time,^ and still is, considered applicable in all cases of accounting before a master under the old practice, and before a referee under the new. A party accounting, however, is sometimes allowed to dis- charge himself by other means than the ordinary vouchers. Thus, when an account is of long standing, the court will sometimes permit the accounting party to discharge himself, upon oath, of all such matters as he cannot prove by vouchers, by reason of their loss.* WTiat allowances may be made. The referee is authorized to allow the party accounting such disbursements as may appear to have been fairly and properly made by him. Whatever a trustee or personal representative fairly expends in the proper execution of his trust, may be allowed him in passing his accounts.^ 1 Wiggins V. Gans, 4 Sand., 646; Palmer v. Palmer, 13 How., 363. 2 2 R. S., 92, § 55. 5 Since the case of Remsen v. Remsen, 2 John. Ch. R., 501, by Chancellor Kent. " 1 Barb. Oh. Pr., 501, 502. And this, it seems, being a competent witness, he may now do without any leave of the court. 5 See Laws of 1858, chap. 314, § 3. V. S. 68 538 DECRETAL ORDERS. Thus, where a trustee in the fair execution of his trust has ex- pended money by reasonably and properly taking opinions and procuring directions necessary to the due execution of his trust, he is entitled not only to his costs, but to his charges and ex- penses — that is, his disbursements actually paid or incurred— under the head of just allowances.^ So the expenses of a sale may be allowed.' And if the executor or trustee requires the assistance of a solicitor or counsel in the execution of the trust he will be allowed the amount he has properhj paid for such services.^ But the referee should judge, from the facts proved before him, of the propriety and necessity, both of the employment of the attorney or counsel, and of the reasonableness of the amount paid for the service. Upon the same principle trustees, and persons acting in a fidu- ciary or representative capacity in regard to the estate of another, may employ a clerk, or accountant, or agent, when necessary in the due and proper execution of their office and when the situa- tion, amount, and character of the trust property is such as to justify such employment, and all sums properly disbursed on such services will be allowed on passing their accounts. Necessary disbursements in traveling, expenses for carriage and horse hire, and other personal expenses, have been frequently al- lowed on the accounting of trustees, executors, &c., under the same head of "just allowances." But they are to be allowed only for expenses and disburse- ments ; not for loss of time or compensation for services (be- yond the regular commission), even in case of an attorney or counsel for his professional opinion or services. Nor is anything to be placed to account under the name of general expenses, but the accounting party must prove the particular items.* Allowance of commissions. The statute prescribes the allowance of commissions to exe- cutors or administrators in the settlement of their accounts, namely : two and a half per cent on all sums received, and the same on all sums disbursed or paid out by them on an amount not 1 Pearnes v. Young, 10 Ves., 184. " Crump v. Baker, 18 Ves., 285. 3 1 Barb. Oh. Pr., 285, and cases cited. * 1 Barb. Oh. Pr., 448, 512. EEFERENCE TO TAKE ACCOUNTS. 539 exceeding one thousand dollars ; one and one-quarter per cent on all sums received'and the same on sums disbursed, beyond one thou- sand, and not exceeding five thousand dollars; and one-half of one per cent on all sums exceeding five thousand dollars. And the same commissions, or compensations for services, it has been held, are to be allowed to guardians, committees of lunatics, and other trustees in passing their accounts. It is the duty of the referee, therefore, to ascertain and determine the proper amount of commissions to be allowed to the party accounting, and to credit him with it in taking and stating his account. Allowing and computing interest. It is provided in the 107th Chancery rule, above cited, that on a reference to take or state an account, the master (referee) shall be at liberty to allow interest as shall be just and equitable with- out any special direction for that purpose; unless a contrary direction is contained in the order of reference. In the allowance of interest the referee now usually follows the established principles of law and equity, both in regard to the allowance or disallowance of interest, and in making rests in the account. As to debts on simple contract, and other debts which do not carry interest on the face of them, equity, in giving interest, fol- lows the rules of law, and the court will allow interest to be computed, in the administration of assets, upon all debts on which interest is given by courts of law. Thus the balance due upon a stated account, between the parties, will carry interest. But interest is never computed on debts not previously carrying interest.^ In regard to the allowance of compound interest, and the making of rests in the account, it was the rule, under the former practice, that the master was not at liberty to make rests in the account unless directed to do so by the decretal order. It fre- quently happened,' that although such direction was not contained in the order, and the master had proceeded to take the account in the usual way, yet, when the cause came on for hearing upon Cases cited in 1 Barb. Ch. Pr., S15, 516. 540 DECRETAL OEDEES. further directions, he was ordered to make rests in the account, the object of the court being to charge the party with compound interest.^ The computation was made by adding the interest to the principal at the time of the rest, and computing interest upon the aggregate sum.^ Without entering upon a consideration of the principles upon which a court of equity acts in charging executors, guardians, and other trustees, with compound interest, it is sufficient here to say, that the facts to which these principles may be applied, are usually before the court in each case as it arises, at the time of making an interlocutory decision and order of reference to take an account ; and, therefore, if compound interest is to be allowed, the order of reference should contain such direction. It is a question still for the court, rather than the referee, to determine ; and I cannot conceive it proper, in any case, on a mere reference to take an account, for the referee to make rests, and compute compound interest, without some special direction or authority given in the order of reference. Where the reference is to hear and decide all the issues, involv- ing also the taking of an account, the referee stands in place of the court ; and, having the whole subject before him, may, if the case admit of it, make rests in the account, and charge the default- ing party with compound interest. The referee's report on the accounting, and the mode of taking exceptions to and reviewing the same, will be spoken of in a subsequent section of this chapter. When the accounting is com- pleted, the charge and discharge, that is, the statement of items of debit and credit, are usually attached to the report in the form of schedules, and are the sources from which the referee ascer- tains the balance.* ' 1 Barb. Ch. Pr., 514, 515. 2 Ibid. Raphael v. Boehin, 11 Ves., 97, 103. ^ 1 Barb. Ch. Pr., 513. REFERENCE TO MAKE INQUIRIES. 541 SECTION" IV. EEFBEENCB TO MAKE INQUIEIES. This second general division or class of interlocutory references embraces a variety of subjects, some of which have been alluded to in a preceding section.^ Inquiries, before decree or judgment, are usually directed either as to persons or facts. Inquiries as to fersons. When inquiries are directed as to persons, as, for example, to ascertain the heir at law or next of kin of a deceased person, or to ascertain individuals forming a particular class, such as grand- children, or cousins of a person deceased, or persons entitled to a particular fund, or a portion thereof, the interlocutory or decretal order usually specifies the mode in which the inquiries are to be prosecuted ; as, for example, that the referee cause an advertise- ment to be published that such heirs, or other persons, come in by a day appointed and prove or establish their claims ; in default of which they are to be excluded from the benefit of the decree.^ The parties so claiiliing should appear before the referee on the day and place named and establish their claims. But the referee, it seems, may let them in afterwards, and at any time before his report is made and filed. After that time, their application to be let in m*ust be made to the court ; and it may be made, it seems, at any time so long as there is a fund in court unapportioned and in which the parties are interested.^ The course of proceeding by advertisement requiring persons having claims to come in under a decree, is resorted to only where it is unknown who all the parties are. We have elsewhere seen, that all persons who have or claim an interest in the controversy, if hnovm, must be made parties,, and that if the proper and neces- sary parties are not before the court, on the hearing, the court will cause them to be brought. in.^ Where the parties, there- fore, are known, such a reference is never proper. As, for ex- ' Ante, section II, of this chapter page 522. ^ 1 Barb. Ch. Pr., 517. « Ibid. Lashley v. Hogg, 11 Ves., 602. ■> Ante, pages 82, 84, 469, 470. 542 DECRETAL OEDEES. ample, where a reference is ordered to take an account of the legacies or annuities given by a will, the legatees or annuitants appearing by the will itself, no direction in the order to advertise for them to come in is necessary, unless the legacy is given to persons constituting a class, in which case it may be necessary to ascertain by advertisement who the persons constituting the class are.i In 'making his report, the referee does not notice any parties or creditors other than those who come in under the order. He merely states the names of the parties who have appeared and established their interest, and the claims which have been proved, taking no notice of the possible claims of others who, whether entitled or not, did not come in.^ The mode of procedure by a party wishing to come in after a report has been made, is by petition to the court stating the reason of his not having come in within the time limited by the advertisement and praying to be at liberty now to establish his claim. The petition must be verified by the affidavit of the claimant ; upon which the court will make an order referring it back to the referee to make the inquiries. Inquiries as to facts. These inquiries, as we have seen, refer to titles, the existence and priorities of liens and incumbrances, the situation, descrip- tion and boundaries of real estate, claims, &c., &c. Some of these matters of inquiry, such, for example, as the claim of a lien upon surplus moneys on a foreclosure sale, and ascertaining the priorities of the several liens'thereon, are not properly matters of interlocatory inquiry before judgment, but are proceedings sub- sequent to, and consequent upon, final judgment. As they are similar, however, in their general features to other references of this kind, it will be convenient to consider them in this connec- tion. Inquiries as to titles, liens, Sfc. These inquiries are in nearly all cases preliminary to judgment, and must be directed by interlocutory order. They may be 1 2 Dan. Oh. Pr., 869 ; 1 Barb. Ch. Pr., .519. 2 Ibid. Good v. Blewitt, 19 Ves., 336. REFERENCE TO MAKE INQUIRIES. 543 necessary not only in actions for specific performance, but also incidentally in actions having other objects ; as, for example, in a partition suit, as^regulated by the former rules and practice, and by the provisions of the 78th and 79th of the present rules of the Supreme Court. The inquiry under the 79th rule (corresponding to the 17Stli Chancery rule), is an inquiry both as to perso7is and fads — that is, the referee is not only to take proof of the title and to inquire into the situation of the property, for the purpose of ascertaining if it can be actually partitioned, but he is also to ascertain and report as to the claims of creditors not parties to the suit, in the shape of specific or general liens upon the premises. This being absolutely required by statute, can in no case be dis- pensed with.' And to accomplish this, the referee proceeds, as above noticed, by advertisement for six weeks in the state paper, and also in a newspaper printed in each county in which the lands are situated, as required by statute.^ The proceedings upon these partition reference are special, and are governed by the customary Chancery practice, based upon the provisions of the statute, which are still in force, and the rules of court.^ In regard to proof of title, generally, before the referee, it may be observed, that the party charged with the conduct of the reference, usually furnishes an abstract for the use of the referee, and causes the necessary searches to be made, which he lays before him, with the proper certificates of search, title, deeds, &c. The referee may summon witnesses and examine them, as in other cases, in regard to deaths, intestacy, descent, and whatever other facts may be necessary, bearing upon the question before him. On litigated questions of title, written objections to the abstract are brought in by the party objecting, and the referee is either attended by counsel on both sides, or the written opinions of counsel upon the abstract are produced to him, according to cir- cumstances. He may also, in cases of difficulty, direct the abstract to be laid before a conveyancer for his opinion.'' ' 2 K. S., 324, § 43 ; Wilde v. Jenkins, 4 Paige, 481. = 2 R. S., 324, § 44. ^2 Barb. Oh. Pr., 305, 307. ^ 1 Barb. Oh. Pr., 520. 544 DECRETAL OEDEES. The report of the referee must state whether the title is good or not, and is usually accompanied with an abstract of the con- veyances. If the referee is not satisfied with the title, he must state the points wherein it is defective.' Exceptions may be taken to the report, as in other cases to be noticed in a following section of this chapter ; and upon the argu- ment of such exceptions the court may refer it back to the referee to review his report, and alloy? further evidence to be adduced, or otherwise clear up objections to the title, or show it to be valid upon other grounds than those already taken. Reference in divorce cases. Various matters may be the subjects of an interlocutory refer- ence in actions for absolute or limited divorce ; as, for example, to inquire into and take proof of all the material facts charged in the complaint where a divorce is sought on the ground of adultery under the 86th rule ; also where it is claimed on the ground that the party was under the age of legal consent, or a lunatic, or that plaintiff's consent was obtained by force or fraud, pursuant to 87th rule. A reference may also be ordered to take proof of facts in an action for limited divorce, under the S8th rule ; to inquire into the question of the legitimacy of children on complaint of a husband for divorce, pursuant to the 90tli rule ; also, a reference to inquire and ascertain the amount which should be allowed a wife as alimony for the support of herself and children, &c., &c. These references proceed in much the same way as other refei- ences of the class under consideration. Witnesses are summoned, the parties notified, testimony taken, and the referee's report made, filed, and excepted to in like manner. If the report is found insufficient, the court may order it to be recommitted to the referee to take further proof.^ Reference as to claims. This class of references may occur either upon interlocutory orders before final judgment, or subsequent to final judgment, or consequent thereon, and rendered necessary for the purpose. of ' 1 Barb. Ch. Pr., 520; Green v. Monks, 2 MoUoy, 325. 2 Arborgast v. Arborgast, 8 How., 297. EEFEEENCE TO MAKE INQUIRIES. 545 the distribution of a fund among creditors, or the surplus thereof, as in the common case of claims to surplus moneys arising on a foreclosure sale. , In actions instituted by creditors, or others of a class, in behalf of themselves and all other persons of the same class similarly situated,! ^j^^g order of reference usually directs such creditors or persons to come in before the referee and establish their claims. The 105th rule of Chancery, authorized the master to examine any witness or party, or any creditor or other person coming in to claim before him either upon written interrogatories, or viva voce, or in both modes as the nature of the case might appear to him to require. And it was decided to be the practice of the court that a creditor coming in to clahn before a master, under a decree for the benefit of creditors, must present the particulars of his claim in writing, supported by an affidavit that the amount claimed is justly due, and that neither he, nor any other person for his use, has received the amount claimed or any part thereof, or any security or satisfaction therefor.^ This practice is still fol- lowed, except that, as in the case of taking accounts, the exami- nation is now viva voce, instead of upon written interrogatories. The object of the affidavit is not to prove the claim, but merely to guard against fictitious claims being produced ; and if the claim is contested by any person having a right to contest the same, it must be supported by legal proofs A complainant in a creditor's suit will be required to prove his debt under the decree. So under a decree directing an account of the estate of the complainant's testator, and of his debts, &c., and that the creditors come in and prove their debts, the com- plainant may come in and prove his debt, and be examined res- pecting it.^ Witnesses may be examined in support of, or against the claim. But it is said, the strict rules of evidence, in supporting charges ' See generally as to this class of suits, and the cases in which an action may- be so brought, ante, pages 77, 78. ■' Morris v. Mowatt, 4 Paige, 149. 3 Morris v. Mowatt, 4 Paige, 149 ; Fladong v. "Winter, 19 Ves., 199. ' 1 Barb. Oh. Pr., 522, 523. V. s. 69 546 DECEETAL ORDERS. are, by mutual understanding, frequently dispensed with ; and that bonds, deeds, notes and other securities are almost invariably proved by affidavit, recourse being had' to the examination of witnesses only in very contested cases, or where fraud is sus- pected.i Where a person, not a party to the suit, carries in a claim, the party representing the estate upon which the claim is made may make any defense which he could have made to a bill filed by the claimant, or to an action at law brought to establish such claim. Therefore the statute of limitations may be set up in bar of the claim, provided the claim was within the operation of the statute previous to the decree.^ So, also, if it is objected that a person is not a creditor for a valuable consideration, that question may be entered into on the reference.^ Exceptions may be taken to the master's report on either the allowance or disallowance of the claim, in the same manner as exceptions are taken in other cases, the present practice in regard to which will be considered in another section of this chapter. If the master, however, refuses to pass upon the claim or take it into consideration at all, it seems it is not a ground of excep- tion, but the proper course is to apply to the court by motion or petition.^ Claim to surplus money on a foreclosure sale. This proceeding is subsequent to final judgment, and is had .after the filing of the report of sale. The practice is similar to the former practice in Chancery, and is founded on the present rule of the court (Rule 76), which (with some slight modifica- tions) is similar in its provisions to the 136th Chancery rule as amended by the chancellor in 1840. In the late revision of the rules (1858) it is provided by rule 72 that surplus moneys arising on the sale of mortgaged premises under any judgment, must be paid over, within five days after the same shall be received and ascertainable, to the chamberlain of the city of New York, and in other counties to the treasurer ' 1 Barb. Oh. Pr., 522, 523 ; 2 Smith Ch. Pr., 276 ; 2 Dan. Ch. Pr., 865. = Ibid. 3 Ibid. Peacock v. Monk, 1 Ves., 127, 131. ' 2 Dan. Ch. Pr., 868 ; 1 Barb. Oh. Pr., 523. REFERENCE TO MAKE INQUIRIES. 547 thereof, unless otherwise specially directed, subject to the further order of the court ; and no report of sale shall be filed or con- firmed, unless accompanied with a proper voucher for the surplus moneys, and showing that they have been paid over, deposited or disposed of in pursuance of the judgment. Rule 76, relative to claims for surplus moneys, corresponding with the 136th Chancery rule, regulates the practice thereon as follows : " On filing the report of the sale, any party to the suit, or any person who had a lien on the mortgaged premises at the time of the sale, upon filing with the clerk where the report of sale is filed, a notice stating that he is entitled to such surplus moneys, or some part thereof, and the nature and extent of his claim, may have an order of reference to ascertain and report the amount due to him, or to any other person, which is a lien upon such surplus moneys, and to ascertain the priorities of the several hens thereon ; to the end that, on the coming iu and confirmation of the report on such reference, such further order may be made for the distribution of such surplus moneys as may be just. Every party who appeared in the cavise, or who shall have filed such notice with the clerk previous to the entry of the order of reference, shall be entitled to service of a notice of the application for the reference, and to attend on such reference, and to the usual notices of subsequent proceedings relative to such surplus. But if such claimant has not appeared, or made his claim by an attorney of this court, the notice may be served by putting the same into the post ofBce, directed to the claimant at his place of residence, as stated in the notice of his claim." The order of reference in these cases, by the former Chancery rule, was an order of course. By the present rule, it will be obsei-ved, an application or motion must be made to the court on notice, to every party who has appeared in the cause, and also to every person who has filed with the clerk a notice of claim. The claimant having filed with the clerk the statement of his claim, may serve upon the parties entitled thereto a simple notice (of eight days), of the application, referring to the statement on file, and without serving any copy of such statement. The reference is usually made to the same person who has acted as referee on the sale, though the court may appoint any other person. 548 DECEETAL OEDERS. The reference then proceeds in a similar manner with other references noticed in a preceding section,^ the parties entitled thereto being notified to appear as in other cases, either by sum- mons of the referee, or an ordinary notice. Before the referee proceeds, he should ascertain by the certificate of the clerk, or other evidence, that all persons having claims on file and other proper parties have been notified, or summoned to attend before him ; and the fact that such certificate or evidence was produced before him, should be stated in his report.^ The plaintiff in a foreclosure suit has the same right to present and establish a claim to the surplus moneys, as a defendant or any other person ; and he is not required to establish beforehand all the claims he may have upon the mortgaged premises.^ Such parties or claimants must verify their claims in the same manner as creditors coming in under a decree are required to do ; and the referee may examine them on oath touching their respective claims.^ The priorities of the several liens must also be established before the referee, and he must state in his report the facts found as to such priorities. By the 136th Chancery rule, as amended in 1840, the liens upon which such claims to surplus moneys might be founded, were those only created hy judgment or decree. The present rule of the Supreme Court is silent upon this subject, but the practice, nevertheless, seems still to be the same. For it has been held that the liens referred to by the rule are those which subject the estate to be sold under execution, without any further intervention of the court ; and that claims, however equitable, which are not matured into liens under wbich the property can be charged in execution and sold without further adjudication, cannot be taken into consideration by the referee.^ An incumbrancer who has neglected to file his claim, may go before the referee, pending the reference, and file his claim with him duly verified ; and he will then be entitled to be heard upon ' Ante, section 2 of this chapter. ^ Hurlburt v. McKay, 8 Paige, 651. 3 Field V. Hawkhurst, 9 How., 75. « Hurlburt v. McKay, 8 Paige, 651. = King«. West, 10 How., 333. REFEKENCE TO SELL ESTATES, ETC. 549 the reference, as to the validity of such claim, upon such equita- ble terms as to costs, as the referee shall direct.' The report of the referee is made, filed, and may be excepted to or confirmed as in other cases. The rule is silent as to the costs of the proceeding. If allowed at all they are allowed by the court on the motion to confirm the report and distribute the surplus, and not by the referee. The former practice, which, perhaps, still governs, was, that a party to the suit, if a creditor, was allowed the costs of carrying in and supporting his charge. But a creditor who was not a party to the suit must bear the expense of carrying on and sometimes even of proving his charge,^ though this was so only where there would still remain a surplus of a fund to be distributed among other parties. Where the fund was wholly divisible among the creditors, they would be allowed the cost of proving their debts. So also they will be allowed such costs where the proceeding is beneficial to the estate, as where it would save the expense of bringing a suit, and the creditor has incurred considerable extraordinary costs.^ There is no particular rate of costs established, but the court will allow such reasonable sum as it may deem proper. SECTION V. EErEEENCE TO SELL ESTATES OE ADJUST OTHER MATTEES BEPOEE FINAL JUDGMENT. The third and last general class of interlocutory references which I shall notice, comprises those references which are made for the purpose of doing some act in regard to the disposition of the property in controversy, or in respect to the subject matter of the suit, or the parties thereto, necessary to be done as the basis of the final judgment to be rendered upon the whole con- troversy. Such act may consist in the settlement of deeds, in the appointment of new trustees, or of receivers and the like, and especially in the partition and division of estates, and the sale of real property. ' Hurlbut V. McKay, 8 Paige, 651. ^ Abell v. Screech, 10 Ves., 359. •= 1 Barb. Ch. Pr., 525 ; Harvey v. Harvey, Mad. & Geld., 91. 550 DECRETAL ORDERS. The present section will be devoted mainly to a consideration of references ordered for the last mentioned object; though it should be observed, that such references, that is to say, references to sell estates, are by no means always upon interlocutory orders, but may be, and very frequently are — as in mortgage foreclosures, for example — consequent upon final judgment, and either pro- vided for by the judgment itself, or directed by a subsequent order of reference for the purpose of carrying the judgment into effect. In such cases, though the proceedings upon the reference are in all respects similar to interlocutory references for the like purposes, yet, upon the coming in of the report, nothing but a simple order of confirmation is necessary, everything else, includ- ing the question of costs, being adjusted by the judgment.^ It will be proper, therefore, to consider both these kinds of references together, keeping in mind the distinction, already pointed out, which exists between a mere interlocutory and a^waZ judgment.^ Partition and division of real estate. An interlocutory decree or order may be made for the appor- tionment or partition of real estate, the coui't having ascertained the rights and interests of the respective parties in the premises, preparatory to making a final decree or judgment declaring such partition final and effectual between such parties. If such actual apportionment and division be made in a suit brought for the partition of real estate, it is not done through the medium of an ordinary referee ; but, by the provisions of the Revised Statutes (which by section 448 of the Code are made applicable to actions for the partition of lands), the decretal order, directing the partition, appoints three reputable freeholders, commissioners, to make the partition so adjudged, according to the respective rights and interests of the parties, as the same were ascertained and determined by the court.* And if the persons thus appointed, or either of them, die, resign, or neglect to serve, the court may, from time to time, appoint others in their places.^ The statute prescribes the mode of proceeding by the commis- sioners in such cases. After completing the partition and divi- '■ Ante, page 512, et seq. 2 Ibid. 3 2 R. S., 321, § 26. 4 Ibid., § 27. EEFEEENCE TO SELL ESTATES, ETC. 551 sion of the real estate, they must make a full report of their proceedings, under the hands of any two of them, specifying therein the manner of executing their trust, and describing the land divided, and the shares alloted to each party, with the quan- tity, courses, and distances of each share, and a description of the posts, stones, or other monuments, etc. ; and if an equal division cannot be made except by awarding compensation to be paid by one party to another, for equality of partition, the report must specify the proper compensation to be made.^ These proceedings, and the report thereon, are in all respects like the proceedings by a referee upon an interlocutory order. The report must, in like manner, be filed with the clerk; ^ and the cause is brought to a hearing upon the report, and a final judgment rendered (similar to the former final decree in equity), that the partition made by the commissioners be firm and efiectual forever.® The report of the commissioners, however, is not liable to be excepted to, under the provisions of the 32d rule, relative to the reports of referees ; but, as under the former practice, if any party is dissatisfied, the report, on good cause shown, may be set aside by the court, and new commissioners be appointed as often as may be necessary ; or the report may be amended in respect to any mere formal inaccuracy.* Sale of real estate. A sale of premises, by the former Chancery practice, under a decree or decretal order, was made by ',a master in Chancery, either by the master himself, or by an auctioneer or some person employed by him for that purpose, in his presence, and under his immediate direction.^ The Constitution of 1846 abolished the ofiice of master in Chancery, and the judiciary act of 1847 (§ 77) provided that any matter before referred to a clerk, master or referee, might be referred to a clerk, county judge, etc., or other suitable personor persons, with the same power as heretofore pos- sessed by such officer or person. 1 2 R. S., p. 322, § 31 ; Ch. Rule, 179. = Bid., § 34. ^ Ibid., § 36. ' Ibid., § 35 ; 2 Barb. Ch. Pr., 301. s Hyer v. Deaves, 2 John. Ch. R., 154; 1 Barb. Oh. Pr., 525, 526. 552 DECRETAL OEDEES. A saje and conveyance of real estate by a referee in partition, as well as in other cases, after the Code was adopted, depended upon this section of the judiciary act, and section 471 of the Code.i until 1851, when, for the purpose perhaps of obviating any question which might arise as to the power of a referee to sell, the legislature amended section 287 of the Code by adding the clause: " Real property adjudged to be sold, must be sold in the county where it lies, by the sheriff of the county, or by a referee appointed by the court for that purpose ; and thereupon the sheriff or referee must execute a conveyance to the purchaser, which conveyance shall be effectual to pass the rights and interests of the parties adjudged to be sold." It has been before observed that these sales are usually made, as in foreclosure cases, upon a final, and not a mere interlocutory judgment. The principles which govern them, however, are the same in both cases, and for convenience the whole subject will be considered in this place. Time and place of sale. This is governed now as formerly, by the rules of the court and by statute. Rule 73 provides : " Where lands in the city of New York are sold under a decree, order, or judgment of any court, they shall be sold at pubUc vendue, at the Merchants' Exchange, between twelve o'clock at noon, and three in the afternoon, unless otherwise specially directed. The notice of the sale of lands, lying in any of the cities of this state ia which a daily paper is printed, except where a different notice is required by law, or by the order of the court, shall be published in one or more of the daily papers of that city, for three weeks immediately previous to the time of sale, at least twice in each week. When lands in any other part of the state are directed to be sold at auction, notice of the sale shaU be given for the same time and in the same manner as is required by law on sales of real estate by sheriffs on execution." ' It was decided in an early case, under the Code (3 How., 120), that a fore- closure sale might be made by a referee as well as by the sheriff; and the judges of the Supreme Court amended their rule (No. 47 of the former rules, and No. 72 of the present revision), by adding the words " or a referee " in the clause providing for a sale under the direction of the sheriff. (See Jennings v. Jen- nings, 2 Abbott, 17.) referj:nce to sell estates, etc. 553 The rule, as thus given, it will be observed, while fixing the time of the notice, does not specify any place where the sale must be made, except as regards sales in the city of New York. The section of the Code referred to (§ 287), merely directs that sales must be made in the county where the real estate lies. With this limitation, therefore, sales, out of the city of New York, may be made anywhere in the county, either upon the premises, in the town where the property lies, or in any other town in the same county. Notice of sale. The notice of sale as prescribed by the above rule, in the case of lands lying in cities where a daily paper is printed, is, unless a different notice is required by law, or by the order of the court, a publication of twice a week, for three weeks immediately pre- vious to the time of sale. In other places the sale must be on the same notice and in the same manner as is by law required in case of sales of real estate by sheriffs on execution. Such notice on sheriffs' sales is, by statute, required to be as follows : " The time and place of holding the sale shall be publicly advertised, previously, for six weeks successively, as follows : " 1. A written or printed notice thereof shall be fastened up ia three public places in the town where such real estate shall be sold ; and if such sale be in a town different from that in which the premises are situated, then such notice shall also be fastened up ia three pubUc places of the town in which the premises are situated. "2. A copy of such notice shall be printed once in each week in a newspaper of such county, if there be one. " 3. If there be no newspaper printed ia such county, and the pre- mises to be sold are not occupied by any person against whom the exe- cution is issued, or by some person holding the same as tenant, or purchaser under such person, then such notice shall be published ia the state paper once in each week." And it is further provided, that in every such notice the real estate to be sold shall be described with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there be any ; and if not, by some other appropriate description.^ '2K. S., 368,§§34, 35. V. s. 70 554 DECRETAL ORDERS. The decree or order of sale, however, usually describes the lands by metes and bounds, or some other appropriate and definite description; and in foreclosure judgments, this is required to be done by the rule.^ Such description should be accurately followed in the notice of sale. And in the description of the property to be sold, the referee must not add any particulars which may unduly enhance the value thereof, or mislead the purchaser.^ It is proper, but not absolutely necessary, to insert in the notice of sale the title of the cause ; ^ and the usual mode is to state the names of the first plaintifi" and the first defendant, adding the words " and others " where there are several plaintiffs or defend- ants.* Where lands are advertised for sale in a partition suit, the plaintiff having died before sale, and his heirs having been substi- tuted in his place, it was held unnecessary to advertise the sale anew, changing the title of the cause.* It has been held, that the rule requiring but three weeks' notice in cities, has no application to sales of land in partition suits ; such notices, being governed by statute, must be for six weeks. The rule applies only in cases where there is no time fixed by statute, as upon foreclosure sales, or sales of the lands of infants or lunatics, etc." The notice must be published in a regular paper, and not in a mere slip headed " extra." It must also be published six full weeks, once a week ; and merely six insertions, the first being published only thirty-nine days previous to the day of sale, it has been held, is an insufficient publication.'' In point of fact the notice of sale is usually drawn up, and posting made, and proceedings on the sale generally supervised, by the plaintiff's attorney, who is, as to all questions arising between the vendor and purchaser, considered as the agent of all the parties to the action.^ ' Supreme Court, Rule 72. ^ Veeder v. Fonda, 3 Paige, 97. 3 Ray V. Oliver, 6 Paige, 489. « 1 Barb. Oh. Pr., 526. 5 Thwing V. Thwing, 9 Abbott, 323.- « Romaine v. McMillen, 5 How., 318. ■' Olcott V. Robinson, 20 Barb., 148. « 1 Barb. Oh. Pr., 526 ; Dalby v. PuUen, 1 Russ. and My., 296. EEFEKENCE TO SELL ESTATES, ETC. 555 Conditions of sale. Before the time of sale, the plaintiff's attorney prepares a statement of the conditions of sale. This is usually annexed to a printed notice of sale containing a description of the property. It should specify the terms and conditions of the sale, time of payment of the purchase money, what amount is to be paid down, when and where the deed is to be delivered, whether there is to be any deduction for taxes and assessments, etc. It is also always proper and prudent for the conditions of sale to state that if the purchaser fails to comply with the terms of sale by paying down the requisite portion of the purchase money, a re-sale will take place immediately ; otherwise, if bidders leave the place of sale, supposing the sale would be completed, and, in default of its being so completed, the premises should be again put up and bid off for a less price, such second sale may be set aside.^ Postponement. The sale may be postponed from time to time in the discretion of the referee, either for want of bidders, or for any other reason- able cause sufficient to satisfy him that a future day will be a more favorable opportunity for effecting a sale. The postpone- ment is frequently at the instance or request of the plaintiff's attorney. The referee, however, should not exercise an arbitrary discretion, nor be governed solely by the direction of the plain- tiff's attorney. He is not the mere agent of the plaintiff, but an officer of the court, having a discretion, and a duty to exercise such discretion ; and in case he acts unreasonably, the sale will be set aside, and a re-sale ordered.^ In case of a postponement, the day and place of the postponed sale should both be mentioned in the hearing of the persons who attend ; * and if it be for a sufficient length of time, so as to render a publication of such notice of postponement practicable, it should be so published, as well as posted in three public places, as in case of the original notice. Mode of conducting sale. The referee or person conducting the sale, is to expose the pre- mises for sale to the highest bidder, first reading the notice of ' Lents V. Craig, 13 How., 72. ^ Breese v. Busby, 13 How., 485. ' La Farge v. Van Wagenen, 14 How., 54. 556 DECRETAL ORDERS. sale, including the description of the premises, and the terms and conditions of the sale in the hearing of the persons who attend. If there are several lots or parcels, they are to be offered, separately, according to the provisions of the 74th rule, which corresponds with the 138th Chancery rule, and is as follows : "Where mortgaged premises or other real estate directed to be sold, consists of several distinct lots or parcels, which can be sold separately ■without diminislung the value thereof on such sale, it shall be the duty of the sheriff, or other person conducting the sale, to sell the same in separate lots or parcels, unless otherwise speciaUy directed by the court. But if the sheriff or other person is satisfied the property will produce a greater price if sold together than it will in separate lots or parcels, he may sell it together, unless otherwise directed in the order of sale." The rule is general and applies to, all sales of real estate under a judgment or order of the court ; and it leaves a discretion in the oflBcer to sell in parcels or together, as he may be satisfied will be most advantageous to the estate. In a judgment for the sale of mortgaged premises on fore- closure, it is provided (by rule 72) that the mortgaged premises, or so much thereof as may be sufficient to raise the amount due to the plaintiff, for principal, interest and costs, and which may be sold separately without material injury to the parties interested, be sold, etc. This leaves a similar discretion in the referee in regard to the sale as in the case of other sales of real estate. And although it is a general rule that no more of the real estate should be sold than is sufficient to satisfy the judgment, as in the case of sales by sheriffs under executions ; ^ yet, the provision of the statute, as of the rule, is only directory, and if it be not fol- lowed, it is an irregularity, merely, which does not vitiate the sale, but may be a ground of setting it aside on motion of any party aggrieved who may have claimed at the time of sale to have the sale made separately in parcels, and who has not waived the right by a delay in objecting to the sale on that account.^ 1 2 R. S., 369, § 38; 6 Wend., 522. ^ Cunningham v. Cassidy, 7 Abbott, 183, and cases there cited ; Wood v. Mo- nell, 1 John. Ch. R., 503 ; Ames v. Lookwood, 13 How., 555 ; Merchants' Ins. Co. V. Hinman, 3 Abbott, 455. REFERENCE TO SELL ESTATES, ETC. 557 The complainant, or any other party to the suit, may become the purchaser at a mortgage sale, the judgment or decree con- taining a clause to that effect under the provisions of rule 72. Such a provision should also be inserted in any other order or judgment directing a sale of real estate, if it be intended to give any owner of a reversionary or other interest in the land, who is a party to the record, the right to become a bidder at the sale."^ The plaintiff's attorney may bid off the property, and if bid off in his own name, the presumption is that it was bid off on his own account.^ One defendant may become the purchaser of the real estate of a co-defendant ; ^ and the owner of land subject to a lien, not being the debtor, may become the purchaser and acquire a title under the sale.* The sale must be between the hours of 9 A. m. and sunset, and a sale after sunset would be void.^ Re-sale, when ordered and how made. In all cases where a sale has been made at an improper time, or in such a manner as to prevent a fair competition, or where the conduct of the person making it has been improper or oppres- sive, or where, for any other reason, it would be unfair or inequit- able to allow the sale to stand, the biddings will be opened and a re-sale ordered, on such terms and conditions as may be just, so as to protect the rights of the purchaser as well as of the parties interested in the sale. It would be impracticable here to enter into a full review of the cases in which re-sales have been ordered, or to discuss the principles which govern the courts in granting them ; the matter being now, as formerly, altogether in the discretion of the court, which, of course, acts upon the circumstances of each particular case as it is presented on its own merits.* • 1 Barb. Ch. Pr., 527, 528. 2 Chappell V. Dann, 21 Barb., 17. ^ Neilson v. Neilson, 5 Barb., 565. 4 Ohautauque Co. Bank v. Risley, 19 N. Y. R., 370. " Carnrick v. Meyers, 14 Barb., 9. ^ The following general references to cases, explanatory of the principles upon which our courts, both under the former and present practice, have acted in regard to ordering re-sales, may be of use : Billington v. Forbes, 10 Paige, 487 ; Tripp V. Cook, 26 Wend., 143 ; American Ins. Co. v. Oakley, 9 Paige, 259 ; Millspaugh v. McBride, 7 Paige, 509 ; Tripp v. Vincent, 8 Paige, 176 ; Brin- 658 DECRETAL ORDERS. It is proper, however, to remark generally, that now, as for- merly, mere inadequacy of price, and the fact that on a re-sale the property will bring a greater sum, is not of itself in this state a ground for ordering a re-sale, unless the inadequacy is so great as to be evidence of unfairness or fraud in the sale.' A mere offer of an advance price is not sufficient, but special circumstances must in all cases exist, where the sale is not void, to justify an order for a re-sale.^ Parties who are adults and competent to pro- tect their own rights on the sale will not, on a fair sale, duly advertised, be protected against the consequences of their own negligence.^ But the rule will not be harshly applied where it may injuriously affect the rights of infants.* Mode of applying for re-sale. If the referee sells at an improper time, or in such a manner as to prevent a fair competition ; or if, for any other cause, it would be equitable to permit the sale to stand, the proper remedy is by an application to the court, on motion, for an order setting aside the sale and directing a re-sale of the premises. The motion is made on notice to every party who has appeared in the cause and who has an interest in the question, as well as to the purchaser at the first sale.^ The proper time for applying for a re-sale is before the master's report of the sale has been confirmed absolutely ; but, under very kerhoff u. Brown, 4 John. Oh. R., 675; Requa v. Res, 2 Paige, 339; Post V. Leet, 8 Paige, 337 ; Laight v. Pell, 1 Edw., 577 ; Jackson v. Edwards, 7 Paige, 387 ; Lentz v. Craig, 2 Abbott, 294 ; 13 How., 72 ; King v. Morris, 2 Abbott, 296 ; Merchants' Ins. Co. v. Hinman, 3 Abbott, 455 ; Banta v. Max- well, 12 How., 479; Gerry v. Post, 13 How., 118; Ames v. Lockwood^ 13 How., 555 ; Lefevre v. Laraway, 22 Barb., 167 ; Stahl v. Charles, 5 Ab- bott, 348 ; Gregory v. Campbell, 16 How., 417 ; March v. Lowry, 16 How., 41 ; Breese v. Bushby, 13 How., 485. ' Murdock v. Empie, 9 Abbott, 283 ; American Ins. Co. v. Oakley, 9 Paige, 259 ; Collier v. Whipple, 13 Wend., 224 ; Duncan v. Dodd, 2 Paige, 100. ^ Lefevre v. Laraway, 22 Barb., 167. ' American Ins. Co. v. Oakley, 9 Paige, 259. ^ Merchants' Ins. Co. v. Hinman, 3 Abbott, 455. ' 1 Barb. Ch. Pr., 541, citing Robinson v. Meigs — ^In Chancery Jan. 4, 1843. REFERENCE TO SELL ESTATES, ETC. 559 special circumstances, the court may, after confirmation of the report, set the same aside, and order a resale.^ It has been held that a defendant who is personally liable for the deficiency upon a sale of mortgaged premises, but who has no interest in the premises themselves, cannot apply for a re-sale, if he has been discharged from liability for the deficiency, to the extent of the full value of the premises over and above the amount bid at the former sale.^ If a re-sale is ordered, the proceedings thereon will be the same as those upon the original sale.^ Completing sale. The premises- being struck off to the highest bidder, the pur- chaser is to sign an acknowledgment, usually written under the conditions of sale, to the effect that he has purchased the pre- mises on those conditions, for the sum bid by him, and agreeing to conform to such conditions. Notwithstanding the signing of such agreement, however, the contract is not regarded as complete, nor the purchaser entitled to the benefit of it, till the referee's report of the sale is absolutely confirmed.* This, however, is not strictly so in foreclosure cases, in which the deed is given to the purchaser, and the money paid and distributed by the referee before the report of the sale is made. No proceedings, however, can be taken under the deed to obtain the possession until the coming in and confirmation of the referee's report of sale. The subject of making and filing the report, and of the order to confirm same, will be hereafter spoken of; as also the subject of enforcing the delivery of the possession, which will be considered in the subsequent chapter of this work treating of the mode of enforcing the judgment, and carrying it into effect. ' 1 Barb. Oh. Pr., 541, citing Robinson v. Meigs — in Chancery, Jan. 4, 1843. 2 1 Barb. Oh. Pr., 541, citing Bodinei;. Edwards — in Chancery, Aug. 1, 1843. 3 Ibid. 2 Smith Oh. Pr., 197. ' 1 Barb. Ch. Pr., 528. 560 DECRETAL ORDERS. SECTION VI. eefeeeb's repoet on deceetal oedbe, foem, natuee and use of. In a former section, treating of the trial by referees, I considered fully' the subject of the report upon a reference of the whole issue, and also the subject of the report upon a reference of spe- cific questions of facts, which kind of reference is also regarded as a trial, and not a mere interlocutory reference.^ The subject of the report upon interlocutory references was reserved for that consideration, which I propose to give it in this place. It is important to bear in mind the distinction between these different kinds of reference — that is a trial reference (of the whole issue, or of specific questions of fact), and an interlocutory refer- ence. Section 272, prescribing the form of the report, and how it may be excepted to and reviewed, etc., applies only to the former. As to the latter, that is, references other than for the trial of issues, no provision in this respect is made by the Code, and none by the rules, other than the general provision of rule 32 as amended, allowing such reports to be excepted to, within eight days after notice of filing, and exceptions brought to hearing at special term, a course of procedure which will be considered in the following section. We, therefore, arrive at the important proposition, that the practice in regard to these interlocutory reference reports, is to be governed by, and to be in accordance with, " the customary prac- tice, as it has heretofore existed in the Court of Chancery" (see rule 93, present revision), except where inconsistent with the Code. (See <^ 469.) And it has been accordingly held, in several well con- sidered cases, that such " customary Chancery practice," includ- ing even the printed rules of the court on this subject, is still applicable.' It becomes necessary, therefore, to examine the subject in this aspect. ' Ante, pages 494, et seq. ' Ante, page 493. ^ Ketchum v. Clark, 22 Barb., 319. And see ante, page 22, and cases there cited. eefeeee's report thereon. 561 Different hinds of re]port. By the former practice a report might be general, that is, embracing the master's conclusions upon all the matters referred to him ; or it might be special, or separate, that is, a report embracing but one distinct object of the reference, where there were several of them, and it became of importance that a part of the decree or order should be satisfied before the whole of the proceedings were sufficiently matured to enable the master to make a general report. Special report. Formerly the master was not at liberty, unless authorized by the decree or order, to make a separate report. But by the 108th Chancery rule, which existed when the Code took eiFect, and which it is held is still applicable,^ it was provided that in all matters referred to a master (referee) he should be at liberty, upon the application of any party interested, to make a separate report or reports, from time to time, as he shall deem expedient ; the costs of such separate reports to be in the discretion of the court. And when the master (referee) should make a separate report of debts or legacies, he should be at liberty to make such certificate as he thought fit with respect to the state of the assets ; and any person interested might thereupon apply to the court as he should be advised. The practice of making separate reports upon one of the issues, leaving other matters, such as an accounting, &c., for a further and final report, has been sanctioned in several reported cases under the present system.^ These cases, however, have been where the whole issue^ involving, after the decision of the main questions, the further matter of an accounting, &c., has been referred;^ and no case, to my knowledge, has been reported, under the new system, illustrating the practice of making a separate report upon a mere interlocutory order of reference. ' Ketchum v. Clark, 22 Barb., 319. And see ante, page 22, and cases there cited. " Palmer v. Palmer, 13 How., 363 ; Pratt v. Stiles, 9 Abbott, 157 ; Bantes v. Bradj, 8 How., 316 ; McMahon v. Allen, 27 Barb., 336. ' See ante, pages 495, 496. V. S. 71 562 DECRETAL OEDEES. Such practice, however, no doubt, in a proper case, may be still resorted to (though it cannot often be necessary) under the pre- sent system, as under the former ; as, for example, where a decre- tal order directs, among other things, a receiver, or trustee to be appointed, the master (referee) may certify, or report separately, such appointment, and afterwards proceed upon the accounting or other matter referred. ^ The form, manner of preparing, objecting and. excepting to, and confirming separate reports, are nearly the same as upon gene- ral reports. The only difference being that where it is intended to act upon them, the cause is not set down for hearing, as it is upon a general report, but a petition must be presented to the court praying such directions as arise out of the separate report.^ General report. The further consideration of the subject, therefore, renders it necessary to speak only of the general report — that is, a report' upon all the matters embraced in the order of reference, the form, manner of settling which, &c., will now be considered. Form of report. The report commences with the title of the cause, and is ad- dressed to the Supreme Court. It refers to the order of reference by its date, and may recite the substance of the directions con- tained in it. If a separate report have been made, it will be necessary in the general report, shortly to allude to the date and particulars of it, so that the court may see that all the inquiries directed by the order have been in some way disposed of ^ It may be and fre- quently is, in point of form, like the master's report under the former practice, divided into two parts, the body and the schedules. The body is a short epitome of the proceedings laid before the referee, with his opinion and finding thereon, containing the results of the accounts or statements, and referring to the sche- dules for detailed particulars.* ' Harris v. Kemble, 4 Russ., 474. " 1 Barb. Oh. Pr., 545 ; 2 Dan. Ch. Pr., 935. 3 1 Barb. Ch. Pr., 548. < Ibid. eeferee's repoet theeeon. 563 When it is referred to a referee to examine and report as to par- ticular facts, or as to any other matter, it is his duty to draw the conclusions from the evidence before him, and to report such con- clusions only, and not the evidence, unless by the special direc- tion of the court.^ The order, hovsrever, may direct the referee to report the testi- mony, or to report it if either party require him to do so. In these cases the testimony should be annexed, certified by him, but not embodied in the report. Either party may obtain certi- fied copies of the testimony from the referee, to be used upon the argument of exceptions to the report ; ^ and this, it •will be seen , in the following section, is the manner in which the case, as pre- sented by the exceptions, is brought on for hearing before the court. It is believed to be the usual practice, at present, in ordinary cases at least, for the referee, after the testimony is closed, and the case finally submitted, to draw up and sign his report, and deliver it to the prevailing party, without pursuing the mode of settlement, and hearing objections, which was practised before a master in Chancery at the time the Code went into effect. And this mode of procedure, it is thought, is proper, at least unless objected to. The referee, however, if he choose, may, no doubt, follow the former Chancery practice, as regulated by the 109th Chancery rule. The cases since the Code, above alluded to, seem to recognize that, as well as the other Chancery rules on the subject of this kind of reference, as still in existence.^ The rule provides, that when the master (referee) has prepared the draft of his report, he shall deliver copies thereof to such of the parties as apply for the same, ^nd shall assign a time and place for the par- ties to bring in objections, and for settling the draft of the report, and shall issue his warrant for that purpose ; and no summons to see the draft of the report and take copies thereof shall be neces- sary. On the return of the warrant, or on such other day as may then be assigned by the master (referee) for that purpose, if ' In re Hemiup, 3 Paige, 305. 2 1 Hoff. Ch. Pr., 545 ; 1 Barb. Oh. Pr., 549. 3 Ketchum v. Clark, 22 Barb., 319 ; Palmer v. Palmer, 13 How., 363. 564 DECEETAL ORDERS. objections are filed by either party, he may proceed to hear the parties on such objections ; and the master (referee) shall settle and siga his report ; and cause it to be filed in the proper office within twenty days after the argument on such objections is closed. If no objections are made to the draft, the master (referee) shall sign his report, and file it in the proper ofiice, within ten days after the time assigned for bringing in objections. If it be desired by either party that this course be pursued, the referee should so be informed at the close of the hearing, or at least before his report is actually delivered to the prevailing party. Either party, then, on examining the draft of the report, may bring in his objections, on the day assigned, stating that some evidence has been misunderstood, some fact not found or impro- perly found, or that some irregularity or error is apparent on the face of the report, or whatever other objection he may have to the finding, or the substance of the report. The objections are the ground work of the exceptions to be ultimately filed against the report, so much so that if the excep- tions go beyond the objections, or assign matter not comprised ia them, they will so far be deemed irregular and overruled.^ After hearing the parties upon their objections, the referee, if he thinks proper, may modify or alter his draft accordingly. And may then make and sign his report, and, if he thinks fit, file it himself in the proper clerk's office, according to the provisions of the foregoing Chancery rule; though, it is believed, as above intimated, that the customary practice now is for him to deliver it to the prevailing party, or party prosecuting the reference, on receiving his fees, who thereupon files it, and gives notice thereof to the opposite parties, according to the provisions of the 32d of the present rules. > 1 Barb. Ch. Pr., 547. EXCEPTIONS TO refeeee's eepoet. 565 SECTION VII. EXCEPTIONS TO EEPOET, WHEN AND HOW TAKEN, AND BEOTJGHT TO HEAEING. The usual mode of reviewing or correcting a referee's report, in all cases other than a report made upon the trial of issues, is by taking exceptions to it ; that is, by filing exceptions with the clerk within eight days after notice received of the filing of the report, pursuant to the 32d of the present rules of the court (corresponding to the 110th Chancery rule), and bringing such exceptions to a hearing at a special term of the court. This proceeding will now be considered. It is proper, however, first to observe, that by the former practice, and it is presumed also by the present, the court will sometimes direct the master (referee) to review his report, with- out requiring exceptions to be taken ; or if taken, will direct it to be reviewed upon other grounds than those covered by the ex- ceptions.^ This may sometimes be done on motion, as where there has been some omission or error in the report which would prevent the matter from being properly raised by exceptions.^ Or it may be on the hearing for further directions, or final judg- ment ; as where the court is not satisfied with the referee's find- ing, or he has not found sufficient facts for the court to render judgment upon.^ It must be also observed that a report is not properly review- able on exceptions, on the ground of mere irregularity in the pro- ceedings before the referee; but that a motion to correct the irregularity, or to set aside the report and refer it back, is the ap- propriate remedy.* And so if the objections to the report are not apparent upon its face, the court, where the report is made in a special proceeding, will entertain a petition to refer it back to the referee to be reviewed.^ ' 1 Barb. Oh. Pr., 556 ; 2 Dan. Oh. Pr., 961. « A.non., 3 Mad., 246. 5 Turner v. Turner, 1 Swanst., 146. ■■ Tyler v. Simmons, 6 Paige, 127. 5 2 Dan. Oh. Pr., 961 ; 1 Barb. Ch. Pr., 556. 56G DECEETAli OEDEES. Mode of reviewing report by exceptions. The present mode of reviewing a report on exceptions, conforms in all respects to the former Chancery practice. This doctrine is now settled by the amendment made to the rules in the revision of 1858 (Rule 32), which requires the report to be filed with the clerk, and makes it absolute, unless, within eight days after notice of such filing, exceptions shall be filed and served, &c. But prior to this amendment, though the practice of filing the referee's i-eport does not seem to have been regarded, yet, the Chancery practice in respect to reviewing such reports upon exceptions was, to some extent at least, recognized and followed. In a case not reported,^ in the third district, Justice Haeeis, in a well con- sidered opinion (which was subsequently affirmed by the gene- ral term of that district), clearly pointed out the practice to be pursued in such cases, namely, that the only way to review such a report was by means of exceptions, founded on objections before the referee, according to the customary Chancery practice, such exceptions to be brought to argument on notice at special term, and heard upon the report, the exceptions thereto, and a copy of the testimony taken by the referee and certified by him.^ In what cases and upon what grounds exceptions lie. Exceptions may be taken to any erroneous ruling of the referee upon matters of law, upon the proceedings before him, either in the erroneous admission, or rejection of testimony or the like. It was not, however, under the former practice, deemed necessary to except to an erroneous conclusion arrived at by the master (referee), as to the legal consequences of the facts, where the facts themselves are correctly stated, as this question may be opened and decided by the court on the argument upon further ' In the matter of Merritt, trustee, &c., Albany special term, July, 1858. The proceeding was by petition for the removal of a trustee and to take his account. On a motion to confirm the report, objections being for the first time taken to it, the court held that, as both parties had proceeded upon a misapprehension of the practice, the application should not be granted, in order to allow the object- ing party to make and file his exceptions within twenty days, in default of doing which, the report to stand in all things confirmed. = See also Ketchum v. Clark, 22 Barb., 319. EXCEPTIONS TO EEFEEEE's REPORT. 567 directions without exceptions.^ Nor is it ji proper ground of exception where he omits to point out the- legal consequences, for the court will act upon the facts reported where they are so clearly stated, as necessarily to involve a particular consequence.^ Exceptions may be taken, also, to the finding of the facts. Thus, where a party wishes to object to the principle upon which an account is taken, he should except to the report ; and if he neglects to do so, the court will not send back the report to be reviewed, even if it appears that the referee has proceeded upon an erro- neous principle.^ And where a party neglects, on the reference, to inquire of a witness as to a particular item in the account which the witness alone could explain, he cannot afterwards except to the report as incorrect in respect to such item.* Who may except. All the parties to a suit, who are interested in the matter in question, may except to the report. And where there are several sets of parties, appearing by different solicitors, they may, if they are not disposed to join, each take exceptions, although their grounds of exception are the same.* Creditors, also, who have established their claims before the referee, are permitted to except to the report although they are not parties to the suit, and so also creditors who have preferred claims which have been rejected.^ But, by the former practice, it was necessary first to obtain permission of the court, which might be done on motion of course ;' and such it is presumed is still the practice. So persons claiming as next of kin, whose claims have been disallowed by the master (referee) may except ; and so also pur- chasers under a decree for sale.^ Exceptions, how taken and form of. By the former practice much care was required in preparing the exceptions so that they might point out the precise objection ' Adams v. Claxton, 6 Ves., 226. ^ bjcJj „_ Motley, 2 My. and Keen, 312. 5 Brown v. Sausonie, McOle. and Young, 427 ; 1 Barb. Oh. Pr., 552. * Barrow v. Rhinelander, 3 John Ch. Pr., 614. " 1 Barb. Ch. Pr., 563 ; 2 Dan. Ch. Pr., 943, 953. « Ibid. ' Ibid. = Ibid. 568 DECEETAIi ORDERS. and raise the particular question which the party desired to review. They were in the nature of special demurrers, and the objecting party must point out the error, otherwise the part not objected to would be taken as admitted.' And where one general excep- tion was taken to a report, including several distinct matters, and the report appeared right in any one instance, the exceptions would be overruled.^ In a recent special term case,^ however, exceptions to the report were considered merely as points of counsel upon which the argument against the report was to be founded ; and there being specific exceptions to the evidence on the hearing, it was deemed unnecessary to repeat them at any other time, or indeed to file any exceptions at all. This case was decided just before the late amendment to the rule,* which requires such reports of a referee to be filed, and makes them absolute, unless exceptions thereto are filed and served within eight days after service of notice of filing the same,^ thus bringing back the former Chan- cery practice, and the above decision is, therefore, perhaps, no longer applicable, except so far as it indicates that the former practice of carrying informal objections to the draft of the master's (referee's) report is abolished. It is enough if the objections be taken on the hearing and entered by the referee in his minutes, as in case of a trial before him, and after notice of filing the report, specific exceptions be filed and served within the eight days, and substantially in the form of the Chancery practice. It is to be observed, however, that this is altogether a matter of practice, and perhaps of discretionary practice, and though excep- tions are absolutely necessary to be filed if the party desire to raise his objection (otherwise by the rule the report stands con- firmed without motion or further order), yet, if he file a mere general exception, or exceptions not sufliciently specific, the court may, no doubt, if it choose, review the whole report, both ' Wilkes V. Rogers, 6 John., 566. " Franklin v. Hunt, 4 Paige, 382; Chandler v. Pettit, 1 Paige, 427 ; 1 Barb. Ch. Pr., 552. ' Evertson v. Given, 16 How., 25. * At the New York special term, April, 1858. ' Rule 32, supra, as amended, August, 1858. EXCEPTIONS TO eefeeee's eepoet. 569 upon tlie referee's conclusions of law and of fact. Such, indeed, was the course in some cases even under the former practice. As on a master's report upon a question of title ; though it was customary to state the ground of objection to the title in the exceptions, yet the rule was only adopted for convenience, and if there was any substantial objection, not stated in the exceptions, the court would not preclude the party from arguing it.^ It was held,^ on an exception to a master's report, in regard to the manner of computing interest, that such exception, instead of merely stating that the master has not adopted the usual or legal mode, should indicate in what manner the interest should be com- puted, so that if the exception is allowed, the master will know in what manner to correct the report. Filing and serving exceptions and noticing for hearing. The exceptions having been properly drawn must be filed in the office of the clerk of the county where the action is triable, who by the rule (No. 32) is required to make a note of the day of filing in the proper book, under the title of the cause, or proceed- ing ; and a copy of the exceptions must be served on the opposite party, which filing and service must be within eight days after notice served of filing the report. Any party interested may immediately give an eight days' notice to the adverse parties who have appeared that such exceptions will be bro.ught to argument at special term. If the party excepting bring on the hearing, the notice thereof may be served at the same time with service of a copy of the exceptions. If the party filing the report is satisfied with it, and desires to bring on the cause for hearing thereon upon further directions, and obtain his final judgment, he may give notice of such hearing immediately on filing the report, and at. the same time serve notice of filing thereof; ^ and such notices may both be embraced in the same paper. If any adverse party wishes to except, he must do so VTithin eight days thereafter, and the moving party " 1 Barb. Ch. Pr., 551. " Ibid., citing matter of Crittenden, in Chancery, May 17th, 1842. " Kendall v. Rider and others, MS. ; Albany special term, 1860. V. S. 72 570 DECEETAL OEDEES. may then immediately notice the exceptions for hearing at the same time and place with the final hearing of the cause, if he have sufBcient time to do so ; and if not, then may serve a new notice either to bring on the exceptions separately, or the excep- tions and final hearing of the cause together. Hearing and argument of exceptions. The practice above indicated of bringing on the exceptions and final hearing of the cause upon further directions together, accord- ing to the former Chancery practice, was sanctioned and adopted in the New York Superior Court at special term,^ in a recent case, ' The following report of the decision and remarks of f^ounsel is from the New York Herald of February 10th, 1860 : Superior Oourt — Special Term. (Before Hod. Judge Moncriepf.) Feb. 9. — Forrest v. Forrest. On the last occasion (the 6th inst.) that this cause was before the court, the plaintiffs counsel was about to bring on a motion, noticed on behalf of the plaintiff, to. confirm the report of the referee in her favor. The defendant's counsel objected to the cause being brought on, and moved to strike it from the calendar, on the ground that the defendant had filed exceptions to the referee's report, and the plaintifl' was not in a condition to move for the confirmation of the referee's report until those exceptions had been disposed of; the plaintiff's counsel contended that the exception could be disposed of on the hearing of the motion to confirm. The judge took time to consider, and this morning announced his decision. He premised by observing that his other duties in court had been so pressing, that he had not had the leisure he desired to prepare an opinion, with the reasons for his opinion at length, but he had come to the conclusion that, according to the practice in the late Court of Chancery, and as laid down in the books of practice, and the former rules of practice, and the case of Arden v. Arden (1 Johnson's Chancery Reports), that the plaintiff ought to be allowed to bring on her motion to confirm the report, and that on such motion the exceptions could be heard and disposed of; and he therefore denied the defendant's motion to strike the cause from the calendar. Mr. Brady then, on behalf of the defendant, inquired of the court which party would be allowed to open and close the argument. Mr. O'OoNOR, for plaintiff, said he thought it a matter of no great concern as ,to who began or closed in any cause argued before a judge, whatever it might be injury trials, and he would, in general, as soon give away the privilege as retain it; but as in this case the parties put themselves on their strictum jus, he con- sidered they might as well adhere to the well-settled practice of the courts, and insist on his right to begin. The rule was uniform, and without a single excep- tion, to his knowledge, before Chancellor Walworth, that exceptions and hear- EXCEPTIONS TO REFEEEe's REPORT. 571 and such, it is believed, has been and is the practice in the Su- preme Court.' The plaintiff, however, may undoubtedly, if he prefer, move the exceptions for argument separately, and before bringing the cause to final hearing upon further directions. On such hearing the party excepting must furnish the court with the proper papers, copies of the report, exceptions, and pleadings.^ If the testimony be not annexed to, or returned with, the report, under the order of the court, and the party excepting desire to review some question arising upon the evidence before the referee, oi* indeed either party desire to use such evidence on the argument of the exceptions, copies of such evidence, duly certified, must be obtained from the referee, and may be used on the hearing ; such was the former practice,^ and has been followed since the Code.^ ing on further directions came on together, and the party moving for the hearing on further directions always opened and closed. So it was the uniform practice at law for the plaintiff, whenever he had anything to prove, to begin and close, notwithstanding that there were affirmative issues for the defendant to prove ; and here, although the defendant had exceptions, it did not take away the plain- tiff's right to open and close any more than in the case of a defendant having af&rmative issues to sustain. Mr. Brady, for the defendant, answered: An order of reference was made. The reference was had, and the referee has made his report. The report was filed pursuant to rule 32, and this of itself operated as an order nisi, that the report would be confirmed, as of course, unless exceptions were filed in due time. Exceptions were duly filed, and notice of their filing and of bringing them on to be heard had been served. If those exceptions were well taken, the referee's report must be set aside and a re-hearing had, and there would be nothing to move to confirm. The disposing of the exceptions in the first instance seems the most consistent course. Mr. Van Buren, for defendant, referred the court to the case of Lawrence V. Lawrence (3 Paige Reports, 267), as a case in which the Chancellor (Wal- worth) had ordered exceptions to a report to be first heard. Mr. O'CoNOR — That case was a reference to fix alimony pending the suit, and is not in point. The defendant gets all the benefit of his exceptions on our mo- tion to confirm. It was then arranged to set the motion to confirm down for hearing on Mon- day, the 20th inst., at which time the judge was to determine which party should open/ nd close. ' See Gregory v. Campbell, 16 How., 417. 2 1 Barb. Ch. Pr., 192, 554. ' 1 Hoff. Ch. Pr., 545 ; 1 Barb. Ch. Pr., 549. * In re Merritt, trustee, &c., supra, ante, page 566, note. 572 DECRETAL ORDERS. No affidavits, however, taken subsequent to the report, can be read on the argument of the exceptions ; nor any evidence not used before the referee. And this rule, under the former practice, precluded the reading of any part of the defendant's ansv^er vsrhich was not read in the master's office.^ The rule is now, no doubt, changed in this respect, the present answer being a 'plead- ing, merely, and the Chancery answer serving the double purpose of a pleading and of evidence. Indeed it has been held since the Code, that where exceptions are taken and the cause is brought on for final hearing with the exceptions, the court "will not only look to the pleadings, but will receive other evidence in its dis- cretion, and vsdll consider any stipulations offered, and admissions of the parties, or of other persons presented to it on the hearing.^ Decision on argument of exceptions and proceeding thereon. If the exceptions are overruled, it has all the effect of confirm- ing the report absolutely ; and if the cause has been set down to be heard on further directions, to come on at the same time with the hearing of the exceptions, the court proceeds at once to hear the cause upon further directions. If the exceptions, or any of them, are allowed, the court may set aside the report, and refer the matter back to the referee to proceed therein de novo, under proper instructions, or may refer it to a new referee. In such case, an order is entered to that efiect, which order should contain a clause to continue the reservation of the further directions, and of the costs of the suit until the coming in of the new report. But it is sometimes unnecessary, on the allowance of an excep- tion, to send back the report for review. Thus the court may modify a report as to the amount of damages, and settle the account itself, without referring it back to the referee.^ So in various other cases; and when this is done, the hearing upon further directions may be proceeded with, and final judgment rendered upon the report as modified, in the same manner as if the exceptions had been overruled.* 1 Hedges v. Oardonnell, 2 Atk., 408 ; 1 Barb. Oh. Pr., 554. " Gregory v. Campbell, 16 How., 417. ^ Taylor v. Reed, 4 Paige, 561. < 1 Barb. Ch. Pr., 555. FINAIi HEARING ON FUETHER DIRECTIONS. 573 Or, if the court think proper, it may, before deciding the exceptions, send the report back to be corrected, by suppljring some defect, or ascertaining some fact which may be necessary to enable the court to come to a proper conclusion. In such cases the court usually adjourns the consideration of the exceptions, or of the particular exception in question, until after the referee shall have made the supplemental report.^ SECTION VIII. FINAL HEAEING OF THE CAUSE ON EUETHBR DIEBCTIONS UPON THE COMING IN or THE EEFEEBE's EEPOET. The report of the referee upon an interlocutory decision or order reserving further directions until the coming in of the report, having been filed, and notice thereof served, it is neces- sary to bring the cause to hearing for further directions, pursuant to the interlocutory decision or order. Such hearing is usually Jinal, but need not necessarily be, for the report may be sent back for review, or other inquiries instituted necessary for final judg- ment, on an order again reserving further directions with the question of costs ; and the cause must, in such case, be brought on again for hearing on notice in the same manner as before, and no final judgment can be pronounced until the execution of the last order reserving further directions.^ TVhen cause may be heard u^pon further directions. The cause can be heard upon further directions only when the referee shall have fully executed the order of reference; that is, there must be a general report. If there has bepn a separate report,^ it canaot be so brought to a hearing, but the party desir- ing an order upon such separate report, must apply for it on petition ; ^ or, perhaps, under the present practice, on motion. And the court will not allow the cause to be set down for fur- ther directions before the report has been made ; even though it 2 1 Barb. Ch. Pr., 555 ; 2 Dan. Ch. Pr., 960. 2 2 Dan. Ch. Pr., 964 ; 1 Barb. Ch. Pr., 558. ^ See this subject considered, ante, pages 561, 562. 4 Van Kamp v. Bell, 3 Mad., 430. 574 DECRETAL OEDEES. is found that the reference has become useless ; in such case a modification should be sought of the order of reference.' As remarked in the preceding section, there seems to be no objection to the plaintiff's noticing his cause for hearing upon further directions immediately on filing the report of the referee. He need not wait eight days to see whether exceptions will be filed or not ; and the notice of hearing may be served with and embraced, in the notice of filing. And he may so bring on the hearing of the cause, even though he himself have excepted to the report." If exceptions be filed within the time, the final hearing and exceptions may be noticed together by either party ; as, by the rule (32), any party interested may bring the exceptions to argu- ment. The former practice was, that where exceptions were taken by either party, the complainant might apply, by a petition of course, that the cause might be set down for further directions and costs, and might come on to be heard, together with the exceptions.^ But this, under the present practice, seems to be unnecessary. The proper mode is, no doubt, to bring them to a hearing together on a simple notice.* Where to he heard. The hearing upon further directions is at special term or circuit ; and the cause is not only noticed for hearing, but usually placed regularly upon the calendar,^ the date of the issue being the date of the original trial issue. It does not seem indispensable, how- ever, to put the cause upon the calendar, inasmuch as the hearing upon further directions is not a trial, but in the nature of an application for judgment after trial and decision by the court. They have, therefore, been allowed to be brought on as non- enumerated motions, at a mere motion term, and in a county other than the place of trial in the same district. Hearing. The hearing is brought on by the plaintiff's counsel, who furnishes the court with the necessary papers, that is to say, the ' Dixon V. Olmius, 1 Ves. Jr., 153. ^ Yeo v. Frere, 5 Ves., 424. 3 1 Barb. Ch. Pr., 560 ; 2 Smith Pr., 361. ^ Gregory v. Campbell, 16 How., 417. = Ibid. PINAL HEARING ON FURTHER DIRECTIONS, 575 pleadings, copies of tlie decision and order, and the report of the referee. As on other motions, the plaintiff's counsel opens, the defendant's counsel replies, and the plaintiff's counsel closes the argument.! If the defendant make default, the court, on proof of filing the report eight days previous, and of service of notice thereof and of hearing, v^ill grant final judgment in conformity with the former decision and the report of the referee. If the question of costs has been reserved, that question must be settled at the same time, and the extra allowance, if any, moved for, and direction given as to charging the same upon the fund or otherwise. If this be not done, and no direction given in regard to costs, none can be taxed or entered in the judgment. If exceptions had been taken and set down for argument at the same time with the further directions, the exceptions are to be first disposed of and the cause then heard upon the further directions.^ This rule, however, is always discretionary with the court, which, for its own convenience, or other good cause, may direct the whole matter to be disposed of together in one argument. If a party has not excepted to the referee's report, he is concluded by the findings therein ; though he is not so concluded if the referee has exceeded his authority.^ And if all the circumstances appear upon the face of the report, a question decided by the referee may be opened on the hearing upon further directions, without any exceptions having been taken.^ It has been lately held, in an action to foreclose a mortgage, that where the cause is brought to hearing on the report of the referee to which exceptions had been duly taken, that the report is but part of the evidence before the court, and upon which it is called upon to decide whether it will or will not be most bene- ficial to the parties to decree a sale of the whole premises in one parcel in the first instance ; and the court, it is said, in such case. ' See case of Forrest v. Forrest, supra, ante, page 570, note. 2 2 Dan. Ch. Pr., 973 ; Yeo. v. Frere, 5 Ves., 424. 3 1 Barb. Ch. Pr., 561. ^ Adams v. Claxton, 6 Ves., 230 ; Evertson v. Givan, 16 How., 25. 576 DECEETAL ORDERS. will look to the pleadings and will receive other evidence in its discretion, and will consider any stipulations offered, and admis- sions of the parties or of other persons presented to it on the hearing.' But, generally, the court, upon the hearing of further direc- tions, will not enter on any matter extraneous to the decree or decision, or receive any evidence beyond the report ; and when- ^ ever such matter arises, it is necessary to present a petition to come on to be heard together with the further directions.^ Thus, if any new facts have occurred since the original decision, which have altered the situation of the parties, or affected their rights in the subject matter; as if the interest of a party in the fund in court, or any part of it, which is to be disposed of on further directions, has been sold or assigned, the purchaser or assignee may apply by a special petition, to come on with the further directions, that the money may be paid over to him, which peti- tion need only be served on the vendor or assignor of the share.' Decision and order upon further directions. In many cases the hearing upon further directions on the coming in of the referee's report is final, and the court upon the decision already rendered, and upon the report, renders a final judgment, the manner of entering which, and the practice thereon, generally, will be considered in the next chapter. I may remark, however, that in such cases, if the moving party has his judg- ment prepared he may take the judgment at once, and have it allowed and certified by the clerk, without any intermediate order, as in cases of judgment by default, which have been here- tofore spoken of.* But, as a general rule, in litigated actions of an equitable nature, this is not practicable, inasmuch as the par- ticular provisions and even form of the judgment are so much a matter of specific direction by the court. It is, therefore, a con- venient practice upon the decision of a cause on a hearing upon further directions, and the rendering of a final judgment, to ' Gregory v. Campbell, 16 How., 419. 2 2 Smith Oh. Pr., 365 ; Parnell v. Price, 14 Ves., 502. ' 1 Barb. Ch. Pr., 561 ; 2 Smith Ch. Pr., 370. * Ante, pages 128, et seq. FINAL HEARING ON FURTHER DIRECTIONS. 577 embody the finding and direction of the court into an order for judgment, which is drawn up, filed, and served in the usual man- ner, and becomes the basis of the final judgment, being of course entered in the judgment roll. Even when judgment is entered altogether in conformity with the report and finding, and nothing but the question of costs has been passed upon in addition, this practice may be properly, and sometimes profitably, followed. Where other questions have been reserved, and at the hearing are decided, and final judgment is directed, such direction almost necessarily assumes the form of an order. So, where the court is dissatisfied with the report, or for any other reason it appears that the case cannot be finally disposed of, the decision upon the hear- ing is in the shape of an order again reserving the consideration of further directions ; and this process may be repeated again and again until the case is so presented that final judgment may be rendered. In general the court will make no order upon further direc- tions altering or varying the original decree (decision of the court) ; 1 even though a new state of circumstances appears by the referee's report, showing that if the facts, as they are stated in the report, had been before the court at the time the decision was pronounced, it would not have given the directions contained in the decision.^ But the court will make an order in aid of, or additional to, the decision on further directions, even though no question of the kind was reserved. Thus, in cases where upon the decree (deci- sion), and the report under it, a proper ground appears for giving interest, the court will direct it to be computed on further direc- tions, though the question of interest had not been reserved ; but it will, if the report makes a new case against the defendant for charging him with sums which, but for his willful default, he might have received, make an order for so charging him on fur- ther directions ; even where it was prayed in the bill of com- plaint and refused at the hearing from deficiency of proof.^ ' Lord Shipbrooke v. Lord Hinchinbrooke, 13 Ves., 394. 2 Wilson V. Metcalf, 1 Kuss., 530. ' Franklin v. Beamish, 2 Molloy, 383. V. s. 73 578 FINAL JUDGMENT. And so, although a receiver has been refused at the hearing of the cause, yet, if upon the report a new state of facts appears, for example, a balance in the hands of the defendant, the court will entertain a renewed application for a receiver upon the hear- ing on further directions.^ CHAPTER XVI. FINAL JUDGMENT, Section I. Nature, uses and kinds of final judgment. II. Form op, and how drawn up and settled. III. Costs, when allowed, and how taxed and entered in the judgment. IV. Entry of judgment on teial of the whole issue by the court, by referees, or ON THE FINDING OF A JURY. V. Entry of judgment on interlocutory decision, and subsequent report op refereeJ VI. Rectifying and amending judgment, and vacating same for irregularity or OTHER CAUSE. SECTION I. NATURE, USES AND KINDS OF PINAL JUDGMENT. The nomenclature of the Code has substituted the woidjudg- ment for the term decree, which was the ordinary term, in the Chancer)'' practice, to express the final determination of the court upon the matters in controversy between the parties to the suit. Final judgment, nature of. A final decree in Chancery was, when all the facts and circum- stances material and necessary to a complete explanation of the matters in litigation were brought before the court, and so fully and clearly ascertained on both sides, that the court was enabled, ' Attorney-General v. Mayor of Galway, 1 Molloy, 95. NATURE, USES AND KINDS OF. 579 upon a full consideration of the case made out and* relied upon by each party, finally to determine between them, according to equity and good conscience.^ In other words, when a decree finally decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the court, so that it will not be necessary to bring the cause again before the court, for its final decision, it is a final decree.* That is to say, the Chancery decree was precisely what the final judgment of the Code is, which by section 245 is thus defined : " A judgment is the final determination of the rights of the parties in the action." That a complete determination of every controversy brought into court is contemplated by the Code, as under the former Chan- cery practice, is evident from section 122, which, in regard to parties, provides, that, when a complete determination of the con- troversy cannot be had without the presence of other parties, the court must cause them to be brought in. The construction and extent of this provision of the Code, have been considered in a previous part of this work.^ Interlocutory judgment. The distinction between interlocutory audi final decrees, has been pointed out on a former page.* In strictness, it is said, a decree is interlocutory until it is signed and enrolled;' but as the term is generally understood and used in practice, an interlocutory decree is one pronounced for the purpose of ascertaining matter of law or of fact previous to a final decree, and reserving the consideration of the particular question, or of further directions, generally.^ Every other kind of decree is final. We have seen that a decree may be final although it directs a reference, such as to ascertain the amount due, directing a sale and giving costs ; or directing a conveyance to be executed or tendering a balance of money ascertained to be due, &c.'' ' Kane v. Whittick, 8 "Wend., 219 ; Johnson v. Everett, 9 Paige, 636. 2 Mills V. Hoag, 7 Paige, 18 ; 1 Barb. Ch. Pr., 330. ^ Ante, pages 82, 84. * Ante, pages 512, 513, et seq. s Seaton on Decrees, 2. « Ibid. 1 Newl. Pr., 322. '' Ante, pages 516, 517. 580 FINAL JUDGMENT. Judgment requiring further order to complete it. Such final decree or judgment directing a reference to carry out its provisions, requires also a final order to complete it. When the act is done, the referee or person appointed to do such act, must make his report. The report when made is to be filed with the clerk, and confirmed in the manner already pointed out. ' Judgment reserving liberty to apply to the court. Although it is the usual practice of the court, in making a decree or judgment, to make it complete upon all the points con- nected with the case, so as to make a final disposition thereof, yet it sometimes happens that a decision upon all the points cannot be pronounced until a future period. Thus, for instance, the interest of a fund may belong to a person for life, and after his death the fund may be distributable amongst a particular class of individuals ; and although the persons who form that class, as well as the tenant for life, must be, and in general are, before the court at the time when the decree is pronounced, the court will not, at that time, take upon itself to declare their interests in the fund ; because it is a rule never to declare rights which are not immediately to be acted upon, lest events should occur before the time of acting upon them, which may create an alteration in those rights. All that the court does, therefore, under such cir- cumstances, is to decree the interest of the fund to be paid to the person entitled to the dividends during his life, and to declare that, upon his death the parties interested in the fund, are to be at liberty to apply to the court as they may be advised.^ And the same kind of liberty is given in other cases. In such cases the simple provision is inserted at the end of the judgment, " And any of the parties are at liberty to apply to the court, as occasion shall require." ^ Such a judgment, however, is still a final judgment, and may be pleaded in bar to another action for the same matter. The efiect of it is to permit persons having an interest under the judgment to apply to the court, in a summary way, either by petition or motion, without the necessity of again setting the cause down.^ ' 1 Barb. Ch. Ft., 332. = Seaton on Decrees, 41. s Ibid. 2 Dan. Ch. Pr., 641. NATUEE, USES AND KINDS OF. 581 ?F/io hound hy judgment, and against whom may be made. The general rule is that all parties to a judgment are bound by it, and none others.^ An exception is made in special cases in regard to infant defendants, who may show cause against a decree or judgment as that it was obtained by fraud or collusion, &c., within six months after coming of age.^ But an infant plaintiff is as much bound by a judgment as a person of full age,^ and though, as a general rule, he may show error in it when he arrives at age, yet, if the judgment is obviously for his benefit, his rights will be absolutely bound by it.^ The judgment usually, and, indeed, in equity suits, it is thought, invariably, includes all the parties to the action, and embraces the whole controversy in one final decision. That provision of the Code (section 274) which allows the court, in its discretion, to render judgment against one or more of several defendants when- ever several judgment may be proper, leaving the action to pro- ceed against the others, has already been considered, and the class of actions to which it refers, pointed out on a former page.^ What the judgment must contain. The judgment must " specify clearly the relief granted, or other determination of the action." ^ This is the general provi- sion of the Code and it expresses substantially the essential requisite of the Chancery decree. The .ordering or mandatory part contains the specific directions of the court upon the matter before it. These must, of course, depend upon the nature of the relief granted and the special circumstances of each case, and no particular directions can be given to meet the variety of cases that arise in practice. Where the relief prayed is a declaration of the rights of the parties, the ordering part may be prefaced by ■ 1 Barb. Oh. Pr., 334, and cases there cited. ^ Ibid. ' Gregory v. Molesworth, 3 Atk., 626. * 1 Barb. Oh. Pr., 335, citing Brown v. Armisted, 6 Rand., 594. ^ Ante, pages 465, 466, and see, also, as to the nature of the judgment, in equity -actions, rendered for or against one or more of several plaintiffs, or several defe'idants, as provided for in the same section of the Code. « Code, § 280. 582 FINAL JUDGMENT. such a declaration ; but this is not necessary, and the omission of it will not invalidate the judgment.' In a judgment against an infant a day is usually given him to show cause against the judgment after he comes of age, as fol- lows : " And this judgment is to be binding on the said A. B., unless he shall, within six months after he shall have attained the age of twenty- one years, being served with process for that purpose, show unto this court good cause to the contrary." ' This was the customary equity practice, and the omission of it was said to be error in the decree.^ So in regard to the reservation of liberty to apply in a judg- ment against an infant heir, declaring the right of creditors of an intestate to satisfaction out of his real assets, " and the parties are to be at liberty to apply to the court for satisfaction of their demands out of the real estate, when the defendant A. B. shall attain the age of twenty-one years." * And generally, in an equity suit, where the rights of all the parties cannot be ascertained, or a decision pronounced until a future period, the judgment should contain such a reservation : " And the said parties are to be at liberty to apply to the court for," &c., stating the subject matter of the reservation, or "for such further order as they may be advised." Where a complaint seeks two remedies in the alternative, it has been held, judgment cannot be entered in that form, but the plaintiff must elect, or the court determine, which of the two remedies the judgment shall embrace.^ But in a more recent case,^ it is said that such a judgment may be rendered ; as in an action against a vendor for specific performance, where his defence is that he has no title to the premises agreed to be conveyed, the court ordered a reference to ascertain the plaintiff's damages sus- tained by reason of the defendant's refusal to comply with his contract, and also, on the coming in of the report, judgment, that ' 1 Barb. Oh. Pr., 339, and cases cited. = i ^ewl. Ch. Pr., 501. ^ Seaton on Decrees, ^66. * Ibid., 270. s Commercial Bank v. White, 3 How., 292; Aldrich v. Thiel, 3 Code R., 91. ^ Stevenson v. Buxton, 8 Abbott, 414. NATURE, USES AND KINDS OF. 583 the defendant specifically perform his contract, or on his failure to do so, that he pay plaintiff the amount of damages so reported and costs of action. The plaintiff, in a foreclosure suit, cannot take a contingent personal judgment in the first instance as part of the original judgment. He must take his judgment for a sale in the usual manner, and then make a further application after such sale if necessary." The contents of the judgment in foreclosure are prescribed by the 72d rule of the court substantially in accordance with the former Chancery practice, as regulated by the 135th Chancery rule. No particular directions are given, or rules prescribed, in regard to the contents, substance or form of any other kind of judgment. The substance of the former decree in equity may be adopted, and the precedents usually given,^ divested of the formal parts and unnecessary verbiage, may be follovred so far as appli- cable to the particular case. A decree in equity vv^as always founded upon, and in conformity with, the allegations and proofs, and could not be based upon a fact-not put in issue by the pleadings.^ But where a bill con- tained a prayer for general as well as special relief, the court, in making a decree, was not confined to the particular relief prayed for, but might grant such relief as was warranted by the case made out in the bill.* The rule, under the new practice, is similar, as established by section 275 of the Code, which provides that the relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint ; but in any other case, the court may grant him any relief consistent with the case made by the complaint, and embraced within the issue. Under this section it has been held, that in an action for a specific performance of a contract, a judgment may be rendered for damages for the non-performance.* And that in an action to ' Oobb V. Thornton, 8 How., 66. ' See Seaton's Forms of Decrees in Equity. ' Carneal v. Banks, 10 Wheat., 181. * Crumbourgh v. Smock, 1 Black., 305 ; 1 Barb. Ch. Pr., 338. ^ Marquat v. Marquat, 2 Kern., 336. 584 FINAL JUDGMENT. reform a contract a judgment may be rendered to reform the con- tract, and also giving damages for the breach of it as reformed.' The practice in Chancery authorized a decree adjudicating upon the rights and settling the equities between co-defendants ; and this was allowed upon the principle of preventing a multiplicity of suits. But such decree, to be binding upon co-defendants, was founded upon, and connected with the subject matter in litigation between the complainant and one or more of the defendants.^ A similar practice is prescribed by the Code which, in section 274, subdivision 1, provides that the judgment "may determine the ultimate rights of the parties on each side, as between them- selves." This, however, has been held not to prejudice the plain- tiff's right to judgment against all the defendants, where his title to relief has not been controverted by the answer put in.^ In a case, since the Code, at special term,* it was intimated that the rights of co-defendants which might thus be adjudicated, were rights arising from the claim of the plaintiff only ; for, as to all other claims between co-defendants, neither knows what the other sets up against him.^ In cases, however, where the defend- ants have answered, and the granting of relief between them does not prejudice the plaintiff's case, there seems no limit to the power of the court to adjudicate on their mutual rights or equities, as between themselves, and independent- of the plaintiff. But such judgment is not conclusive upon the defendant's rights, unless it contains express and positive provisions settling the rights of the defendants as between themselves.^ It is provided by the Code, also, that the judgment may be in favor of a defendant for any affirmative relief to which he may be entitled, and that it may be for or against one or more of several plaintiffs, and for or against one or more of several defendants.'' This provision is new, and gives the court a more extended power in molding and framing a judgment in an equity case than it heretofore possessed. ' Bidwell V. Astor Mut. Ins. Co., 16 N. Y. R., 263. = Elliott V. Pell, 1 Paige, 268. ' Woodworth v. Bellows, 4 How., 21. " Mechanics' Savings Institution v. Roberts, 1 Abbott, 382. ^ See ante, pages 223-228 ; also, Norbury v. Seely, 4 How., 73. « "Woodgate v. Fleet, 9 Abbott, 222. ' Code, § 274. FORM OF, AND HOW SETTLED. 585 SECTION II. FOEM OP JUDGMENT, AND HOW DRAWN UP AND SETTLED. The equity decree in form consisted of three parts : 1st. The caption and title. 2d. The recitals. 3d. The ordering part ; to which was s'ometimes added the declaratory part, which, when used, generally preceded the ordering part.' These formal parts of a decree are no longer regarded, the sub- stance being all that is preserved under the new practice. Caption and title. The judgment need not have any caption, although it is comrnon, in practice, to insert one, as follows : " At a special term (and circuit court) held for the State of New York, at the on the . Present, Hon. , Justice." Whether this caption is used or not, however, the judgment must contain the title of the cause setting forth the names of the parties, plain- tiiFs and defendants, in full. Recitals. These are now merely matters of form. They are never pro- perly made in a judgment other than in the most general way; Ind, indeed, were not necessary under the former practice. The preliminary steps towards the maturing of the decree, and bring- ing the cause to a hearing, were not necessary to be stated, it being intended, where the cause was set down for hearing, that it was regularly done, unless the party attempting to impugn the decree showed the contrary.^ The ordering and declaratory part. This was of the substance of the decree, and has been just considered so far as the material part is concerned. In regard to the form, the ordering or mandatory clause commenced as follows : " It is therefore ordered, adjudged and decreed, and this court in virtue of the power therein vested, doth order, adjudge and decree." ^ The word " decree " is now omitted, the Code using, ' 1 Barb. Ch. Pr., 337 ; 2 Dan. Oh. Pr., 663. 2 Quarrier v. Carter's Kep,, 4 Hen. and Munf., 242. 2 1 Barb. Ch. Pr., 338. V. S. 74 586 FINAL JUDGMENT. instead of it, the term "judgment." The usual form of the ordering part, therefore, is "It is adjudged," etc.; and this is proper to be used either in the ordering, or in the declaratory- part of the judgment. If a judgment is entered nunc pro tunc, the following direction, as under the former practice, should be inserted : " And it appear- ing, to the satisfaction of the court, that the plaintiff A. B. ( or the defendant E. C), has departed this life since the argument of this cause, it is further adjudged, that this judgment be entered nunc fro tunc as of the day of , when this cause was argued." ^ Drawing wp judgment. The former practice of either party drawing up and delivering to the court on the hearing minutes of the decree to which he conceived himself entitled, may be still advantageously adopted. From the drafts so presented, the court will be enabled to pass upon, and generally to settle the substantial parts of the judgment. Or, from the oral decision pronounced by the court, or written minutes furnished, or opinion delivered, the attorney for the pre- vailing party may draw up the final judgment, which, as has been already observed, must always be in conformity with the decision of the judge pronounced on the trial, and on file with the clerk, and also with the subsequent report of the referee, unless the same shall have been altered or modified by the court. Settling judgment. What has been said in a former chapter in regard to the manner of settling an order made at special term,^ is in all respects appli- cable to the settling of a final judgment. The prevailing party should prepare the draft of the proposed judgment, and submit it to the opposite attorney; and, unless the same is agreed to in form, serve him with a copy, together with notice, of the settle- ment thereof, before the judge rendering the decision, at his chambers. The opposite party may propose amendments on his part, and attend at the time and place of settlement. The judg- ment may be either settled on the spot, or the judge may take ' 1 Barb. Ch. Pr., 340. » Ante, pages 449, 450. COSTS, HOW AND WHEN ALLOWED. 587 the papers, and settle it subsequently at his leisure. And it is competent for either party dissatisfied with such settlement, to bring the question again before him on an application for reset- tlement, notice being of course given to the opposite party. If on such resettlement the judge persevere in the view claimed to be erroneous, there is no further remedy, except by means of an appeal.^ It has been held that, where a defendant has appeared in the action, the plaintiff cannot settle, ex jiarte, the form of a judg- ment granting special relief, as in an equity case.^ If he do so, and proceed to enter the judgment without settlement, on notice, it will be at the risk of having it set aside on motion for such irregularity. SECTION ni. COSTS, "WHEN ALLOWED, AND HOW TAXED AND ENTEEED IN THE JTJDGJLENT. The Code, by section 303, repeals all statutes establishing or regulating the costs or fees of attorneys, solicitors and counsel in civil actions. Section 304 makes provision for the allowance of costs to the plaintiff, of course, on a recovery, in actions of common law jurisdiction; and section 305 allows costs, of course, to the defendant in such actions, unless the plaintiff be entitled to recover them. Section 306 provides that in other actions — that is in all actions of equitable jurisdiction^ — costs may be allowed or not in the discretion of the court. This section preserves the discretion of the court, as to the allowance of costs in equity cases, in its full vigor, leaving it to be exercised consistently with the equities of each case.^ And unless costs are expressly given by the decision or judgment, ' Whit. Pr., 854. ^ 3 gand., 724. ' Hines v. Myers, 4 How., 356. ^ Pratt V. Ramsdell, 7 Abbott, 341, n. ; Bartow v. Cleaveland, Ibid.; 16 How., 364; Wood v. Brooklyn Fire Ins. Co., 10 How., 154 ; Sunney v. Koach, 4 Abbott, 16. 588 PINAL JUDGMENT. they cannot be taxed or entered in the judgment. And where a judgment is silent as to costs, they are lost and cannot afterwards be ordered to be paid.' General rules respecting the granting of costs in equity cases. Costs do not always follow a judgment in favor of the party praying relief.^ And where both parties are equally innocent, and endeavoring to avoid a loss caused by a third person, no costs will be allowed to either party as against the other.^ So in a case of great novelty, or where the practice on the subject was unsettled, the court will not give costs to either party .^ Nor where both parties have claimed what they were not entitled to, and each has succeeded as to part of the matters in litigation between them.* It is not, however, to be inferred, that the discretion of the court in allowing or refusing costs, in an equity case, is an arbitrary discretion, depending upon the mere caprice of the judge before whom the cause is heard. The discretion is a sound discretion ; ^ and in its exercise the courts are governed by certain fixed rules and principles, which are applied in considering the circumstances of each particular case, and the situation and conduct of the parties.'' A leading principle in regard to costs in an equity suit was, and still is, that the prevailing party is -prima facie entitled to costs.^ Thus, where a creditor recovers a debt, or a party succeeds in establishing a claim against an adverse party, he recovers costs also, unless special and strong reasons to the contrary intervene. And those costs, in general, are the costs of the whole litigation, although the party may have failed as to part of his demand.' ' Travis v. Walters, 12 Johns.' 500. ^ Methodist Episcopal Church u. Jaques, 1 Johns. Ch. R., 65 ; Travis v. Walters, 12 Johns., 500. " Pendleton v. Eaton, 3 Johns. Ch. R., 69. ^ Hoffman v. Skinner, 5 Paige, 526 ; Jones v. Mason, 5 Rand., 577. ^ Crippen v. Hermance, 9 Paige, 211. « Tomlinson v. Ward, 2 Conn. R., 396. '' 2 Barb. Ch. Pr., 322. » Ibid. White v. Polgambe, 11 Ves., 337 ; Saunders v. Frost, 5 Pick., 260. ^ Hunn •;;. Norton, Hopk., 344. COSTS, HOW AND WHEN ALLOWED. 589 And though the successful party may, for special reasons, be deprived of his costs, he does not usually pay costs to the oppo- site party ; though there are cases in which the successful party has, under peculiar circumstances, been made to pay the costs, as where a purchaser files a bill for a specific performance, which is dismissed, because the defendant, the vendor, cannot make a title, yet the bill may be dismissed with costs against the vendor.^ Costs 02ct of the fund. When an estate, real or personal, is the subject of litigation, the court will, in general, order the costs of the suit, or those of some of the parties to it, to be defrayed out of the fund or estate.^ Trustees, personal representatives, &fc. Where executors and administrators, trustees, agents or re- ceivers, accounting fairly, and paying their money into court, are before the court, it is a general rule that they are entitled to their costs out of the estate as a matter of course. The rule is» the same whether they bring a suit for an accounting, or submit to, and ask the direction of the court, or litigate, bona fide, from a conviction of duty, without any intentional default. In all such cases they will not be charged with costs personally, but costs will be ordered to be paid out of the assets.^ And not only is a trustee, fairly before the court, whether as plaintiif or defendant, entitled to his costs out of the fund ;* but where he, in good faith, brings a suit for the direction of the court, and for his own protection makes other persons parties they will also be entitled to costs out of the fund.* So executors and others standing in a fiduciary capacity, who are compelled to come into court, or have a right to ask its aid and protection in settling the trust estate, or paying over the trust moneys, are entitled to costs out of the fund.^ ■ Nicholson v. Wordsworth, 2 Swans., 365 ; 2 Barb. Oh. Pr., 324. 2 2 Barb. Ch. Pr., 328. ^ Moses V. Murgatroyd, 1 John. Ch. R., 473 ; Morrell v. Dickey, Ihid., 153 ; Rashley/y. Masters, 1 Ves. Jr., 205; Decker v. Miller, 2 Paige, 749; Hosack v. Rogers, 9 Paige, 461 ; Dunscomb v. Dunscomb, 1 John. Oh. R., 508. 4 Hosack V. Rogers, 9 Paige, 461 ; 3 Dan. Ch. Pr., 345 ; 2 Barb. Ch. Pr., 329. 5 Ibid. ^ Ibid. Decker v. Miller, 2 Paige, 149. 590 FINAL JUDGMENT. The allowance of costs, however, is always governed by the consideration that the trustee, executor, etc., is without fault, and necessarily, or at least properly, and in good faith, comes into court, either to establish some claim, even though it be his own as a creditor, or protect some right, or obtain the aid and protec- tion of the court in regard to the estate in his hands. Where he commits a fraud, as by improperly retaining the trust moneys, or where the suit is occasioned by his neglect or misconduct, or is obviously vexatious, he will not be allowed his costs. And the court will sometimes go further and compel him to pay the costs of the suit out of his own funds ; as where it is occasioned by some particular instance of misconduct, or general dereliction of his duty as trustee.^ And so where he sues in his own right, and not as trustee, etc., and is defeated in the suit.^ In suits for the administration of assets. It was laid down as a general rule, that whenever it is neces- sarv to come into a court of equity to establish a demand upon the property of deceased persons, the costs of such proceedings must be borne out of the assets ; as where a bill is filed by a creditor for his debt ; or by a legatee for his legacy ; or by resi- duary legatees or next of kin for an account and distribution of an estate : in all such cases the costs of the suit are to be paid out of the general estate.^ Though the Code has established rules regulating costs which supersede all former rules upon the subject,* yet, it is believed, it contains nothing adverse to this general rule. Section 317 contains a provision substantially recognizing the same rule, and sufficiently broad to include most cases of equitable jurisdiction of this description, namely, that in an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered as in an action by and against a person prosecuting or defending in his own right ; but such costs shall be chargeable only upon, or collected of the estate, fund, or party represented, • 3 Dan. Ch. Pr., 51 ; 2 Barb. Oh. Pr., 329, 330, and cases there cited. ^ Murray v. Hendrickson, 6 Abbott, 96; 1 Bosw., 635. ^ 3 Dan. Ch. Pr., 63. ' Montgomery County Bank v. Albany City Bank, 3 Seld., 465 ; Code, § 303. COSTS, HOW AND WHEN ALLOWED. 591 unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in such action or defense. The section further provides that it shall not be construed to allow costs against executors or administrators where they are now (at the time the Code was adopted), exempted therefrom by section 41, of title 3, chapter 6, of the second part of the Eevised Statutes. These exceptions are not necessary to be considered in this connection, as they do not apply to the case of an equity suit necessarily brought for an accounting, or the distribution of assets, the payment of legacies, etc. It has been held under this section, that assignees, trustees and receivers stand in the same position as executors and administra- tors as to their liability for costs.^ And where a person suing as trustee, or in right of another has commenced a wrong suit by mistake, or has ascertained that it would be useless to prbceed in consequence of facts subsequently discovered, he will be permitted to discontinue without payment of costs.^ Where a suit has been fairly instituted for the administration of assets, the first payment, after paying the costs of the executor, should be the costs incurred by the plaintiiF in the suit. The heir at law, devisees, and trustee of the real estate, will then have their costs against the plaintiff, and he will be entitled to have them over against the fund ; and the other defendants will have their costs out of the fund, in the same order with their re- spective demands.^ This general rule is ordinarily sufficient to protect the executor or trustee, as the provisions in regard to costs charged against him are iisually made part of the decree or judgment ; but a further protection is afforded by a recent statute,^ which provides that any indorser, or other surety, and any assignee, executor, administrator or other trustee, shall be entitled to and allowed to recover from his principal or cestui que trust, all ' St. John V. Denison, 9 How., 344. See, also, Woodruff v. Cook, 14 How., 481 ; Curtis V. Dutton, 4 Sand., 419. ^ Arnoux v. Steinbrenner, 1 Paige, 82; St. John v. Denison, 9 How., 344, citing Phenix v. Hill, 3 John., 249. 3 2 Barb. Ch. Pr., 331, citing Hare v. Rose, 2 Ves., 558 ; Hamilton v. Hamil- ton, 1 Molloy, 535. < Laws of 1858, chap. 314, § 8. 592 FINAL JUDGMENT. necessary and reasonable costs and expenses paid or incurred by him, in good faith, as surety or trustee, in the prosecution or de- fense, in good faith, of any action by or against any assignee, exe- cutor, administrator or other trustee as such. In cases of the construction of wills and deeds. Where a will is so ambiguous in its terms as to render it proper for the executor to take the direction of the court as to the con- struction of its provisions, the costs of the necessary parties to the litigation are a proper charge upon the estate.^ And it is in- variably held that if, in the course of a suit for the administration of an estate, a difficulty arises upon the construction of a v?ill, the costs occasioned by such difficulty must be defrayed out of the assets ; even though the difficulty has arisen from parol evi- dence introduced on the part of the defendant.^ Where it is said, however, that a legatee filing a bill for his legacy, will be entitled to his costs out of the estate, it must be understood as only applying to those cases in which he is suc- cessful in the suit. If a person claims as legatee, and his bill is dismissed, he will not be entitled to his costs out of the testator's estate, notwithstanding there is an ambiguity in the will, which renders it necessary to apply to the court for its construction.^ The rule, it is said, does not apply to cases where difficulties arise upon the construction of deeds. In such cases, although if the deed which gives rise to the suit is fairly doubtful in its construc- tion, the court will excuse the unsuccessful party his costs, but will not compel the successful party to pay them out of the estate.* In cases of interpleader. Where a bill of interpleader is necessary, and properly filed, the costs are to be paid out of the fund.^ And under special cir- ' King V. Strong, 9 Paige, 94 ; Smith v. Smith, 4 Paige, 271 ; Rogers v. Ross, 4 John. Oh. R., 608. 2 ISTourse v. Pinch, 1 Ves. Jun., 362 ; 2 Barb. Oh. Pr., 332. ■ 3 Ibid. 3 Dan. Oh. Pr., 65. * Ibid. Hampson v. Brandwood, 1 Mad., 381, 394. " Badeau v. Rogers, 2 Paige, 209 ; Bedell v. HolFman, 2 Paige, 199 ; Aldridge, V. Messuer, 6 Ves., 418 ; 1 Barb. Oh. Pr., 333. COSTS, HOW AND WHEN ALLOWED. 593 cumstances the defendant, as well as the plaintiff, will be allowed costs.i They are to be paid in the first instance by the party enti- tled to the fund, but eventually by the party who is in the wrong, in the adjustment of the controversy between the defendants.^ In foreclosure cases. The costs in a foreclosure suit are usually directed by the judg- ment to be first paid out of the proceeds of the sale. The amount is now regulated by statute, as will be presently noticed. Where a defendant on whom notice of the object of the action is served with the summons, as prescribed by section 131 of the Code, unreasonably defends the action, he not only will fail to have his costs allowed out of the proceeds, but will be adjudged to pay costs to the plaintiff.^ If a valid defence is set up to a complaint to foreclose a mortgage, and judgment is rendered against the plaintiff, the costs, as in other equity actions, are in the discretion of the court, but the general rule that the losing party must pay costs is usually applied. The present provisions and practice in cases of the foreclosure of mortgages have, therefore, no doubt, changed the former practice that subsequent incumbrancers might answer and disclaim as to the mortgagee seeking to foreclose, and be entitled to the costs of their answers out of the fund.^ Where a junior mortgagee files a bill of foreclosure, making the holder of the prior mortgage a party defendant, and calls for an answer as to the amount due upon such prior mortgage, the prior mortgagee is entitled to the costs of his answer, as well as his other costs, to be first paid out of the proceeds of the sale ; or to be charged upon the complainant personally, in the discre- tion of the court.^ In 'partition cases. Upon a final judgment for partition the court must direct each of the parties, except the plaintiffs, to pay to the latter a propor- ' Atkinson v. Mants, 1 Cow., 681. 2 Canfield v. Morgan, Hopk.,224; Thompson v. Ebbetts, Hopk., 272. ^ See ante, page 36. ■* 2 Barb. Ch. Pr., 333, citing Mackie v. Cairns, 5 Cow., 547 ; Catlin v. Earned, 3 John. Ch. R., 61. 5 2 Barb. Ch.Pr., 333, citing Boyd v. Dodge, in Chan,, 1843. V. S. 75 594 FINAL JUDGMENT. tion of the costs and charges of the proceedings, to be ascertained by the court according to the respective rights of the parties ; and the proportion of such costs assessed upon unknown owners, to be chargeable on the part remaining undivided. And for th^ collection of such costs, an execution may be issued and levied on the property of the parties respectively charged with such costs, and upon any share or part of the premises allotted to any owner unknown, or not named, and upon every portion remaining undivided, for the proportion adjudged to be paid by such owners, or chargeable to the part remaining undivided. ^ This provision of the statute, with other provisions relative to partition suits, not inconsistent with the Code, remains in force. Where an actual partition of the premises is decreed, the costs of the plaintiffs and of all the defendants who have appeai'ed in the cause, are to be taxed as between party and party, and the aggregate amount of the several bills apportioned and charged upon the parties to the suit, according to their respective rights and interests in the premises ; and the parties whose taxed bills exceed their ratable proportions of the whole costs, are entitled to execution against those whose taxed bills are less. ^ Where the judgment is for the sale of the premises, it provides for the costs and charges of the respective parties, and directs their payment out of the proceeds of the sale, before distribution, as in cases of foreclosure. The court has no discretionary power to charge either party with the entire costs in partition, upon the ground that he has unreasonably refused to make partition by deed. ^ But when the plaintiff, in a suit in partition, makes persons defendants who have no interest in the subject matter of the suit, the costs of such defendants will not be charged upon the fund, or against their co-defendants, but luust be paid by the plaintiff personally, unless such unnecessary parties are brought in at the request of the other defendants.* A doweress, when properly a party to the suit, is chargeable with a portion of the costs.* f 2 R. S., p. 328, § 74 (orig, § 72). 2 Tibbetts v. Tibbotts, 7 Paige, 204. ' McGowan v. Morrow, 3 Code R., 9. * Hammersly v. Hammersly, 7 Leg. Obs., 127. ' Tanner v. Niles, 1 Barb., 560. COSTS, HOW AND WHEN ALLOWED. 595 Guardian ad litem. The Code provides (section 316) that when costs are adjudged against an infant plaintiff, the guardian by whom he appeared in the action shall be responsible therefor, and payment thereof may be enforced by attachment. In regard to the costs of an infant suing by a guardian, which are properly chargeable on a fund, the guardian may be allowed his taxable costs against a fund belonging to other parties. And it must be a very special case to authorize the court to allow any- thing beyond the taxable costs of the guardian ad litem to be charged upon a fund belonging to the infant.' How ordered, and out of what fund. Costs against trustees, executors, &c., can be obtained only on the express adjudication or order of the court. The plaintiff can- not include costs in his judgment without leave of the co"rt.^ And if he do so, they will, on the defendant's motion, be struck out, or the judgment set aside for irregularity.^ The allowance of costs is usually made as a part of the final judgment rendered, either on the decision of the whole case at the trial, or subse- quently on the application for judgment when the cause comes on for hearing upon further directions ; though, it seems, such costs may be allowed on a motion subsequently made for that purpose.* Costs are generally awarded to be paid first out of the assets. Even where there is a deficiency to pay the whole of the debts, they constitute the first charge upon the fund arising out of the personal estate." But where costs are awarded against the execu- tors, they can in no event be a charge upon real estate in the hands of an heir.^ Where a legacy, either general or specific, is to be paid out of the testator's estate, and any doubt or ambiguity arises under the will, which renders an application to the court necessary, the ' Union Ins. Co. v. Tan Rensselaer, 4 Paige, 85 ; 2 Barb. Ch. Pr., 334. ^ Merseroau v. Ryers, 12 IIow., 301. ^ Van Vleck v. Burroughs. 6 Barb., 341 ; Snyder v. Young, 4 How., 217. < Lansing v. Cole, 3 Code E., 346. 5 1 Barb. Ch. Pr., 331. ^ Sanford v. Granger, 12 Barb., 392. 596 FINAL JUDGMENT. costs occasioned by such application are to be paid, in the first instance, not out of the legacy or bequest, with respect to which the doubt arises, but out of the general assets not otherwise dis- posed of; that is, out of what is usually termed the general residue, or residuary estate.^ This residuary estate is the general fund for paying all the costs incurred in the course of administer- ing the estate, and is applicable before the particular fund which has occasioned the litigation ; but if insufficient, then the parti- cular fund is to be reached and first applied to the payment of the costs.^ Separate Mils of cost to different parties in the action. The plaintiffs in a suit, however numerous, can have but one bill of costs, and the same rule applies to defendants appearing by one attorney, however large their number or diversified their interests.'' In Chancery, though one attorney appearing for seve- ral defendants could have but one bill of costs, that is, only one term fee, and one attendance in court, &c., yet he might charge for the separate answers of any of them, and for the employ- ment of separate counsel at the hearing.* But now he can have but one bill of costs for all services f and if defendants appear by different attorneys, but, pending the suit, unite in employing the same attorney, only one bill of costs can be allowed.^ The general rule is, that several defendants jointly liable do not become entitled to separate bills of cost by defending by different attorneys, where the court can perceive that the object is to charge the plaintiff" with unnecessary expense, upon his failure in the action, provided the defense of each is substantially the same.'' But where defendants, not united in interest, put in different » Smith V. Smith, 4 Paige, 271 ; King v. Strong, 9 Paige, 94; 1 Barb. Ch. Pr., 334, and cases there cited. 2 Ibid. Nisbett v. Murray, 5 Ves., 158. ^ 2 Barb. Oh. Pr., 340. ' Ibid. 5 Latham v. Bliss, 14 How., 416; Phipps v. Van Cott, 15 How., 100; Walker ■V. Russell, 16 How., 61 ; Voorhies' Code (6th ed.), 431. ' Castellanos v. Beauville, 2 Sand., 670. ' Hall V. Lindo, 8 Abbott, 341. COSTS, HOW AND WHEN ALLOWED. 597 defenses by different attorneys,^ such of the defendants as have judgments in their favor, or any of them, may be allowed separate bills of cost.2 The section of the Code (section 306) allowing such costs, however, is permissive merely, and in an equity suit, the costs being alvi^ays discretionary v^ith the cojirt, are i)ot allowed, as a matter of course, to each separate defendant apj)ear- ing by a separate attorney and counsel. Thus> where the action was against seven insurance companies, who each alppeared by a separate attorney and counsel, on adjudgment in their favor, only three sets of costs were allowed.^ To be taxed as between 'party and party. All costs are now allowed and taxed as between party and party ; and there is no such thing as the taxation of costs as be- tween solicitor or attorney and client, as under the equity prdc- tice,^ the allowance of costs being, by section 303 of the Code, to the prevailing party, by way of indemnity for -his expenses .in the action, and not to the attorney. But the .Code has not affected the lien of the attorney upon the judgment for his costs,* though such lien is lost by an assignment of the attorney's claim to a third person.^ Rate of allowance. The rate of allowance of costs to be taxed is fixed by section 307 of the Code. On the trial of an equity action the costs are fifteen dollars to the plaintiff and ten dollars to the defendant, for all proceedings before notice of trial. Ten dollars to ieither party for all subsequent proceedings before trial. Fifte^ Hollars for trial of an issue of law, and twenty dollars for trial of an issue of fact ; and to either party ten dollars for every circuit or term, not ' And even it is said, by the same attorney if the court can see that such separate defenses are necessary, and interposed in good faith (Hall v. Lindo, 8 Abbott, 342). 2 Willbur V. Wiltsie, 12 How., 506 ; Code, § 306. " ' '. 3 Wood V. Brooklyn Fire Ins. Co., 10 How., 154. * See 2 Barb. Ch. Pr., 336-338. . ' ' 5 Creighton v. Ingersoll, 20 Barb., 541 ; Haight v. Holcomb, 16'How., 173 ; Voorhies' Code (6th ed.), 421, and cases there cited. « Chappell V. Dunn, 21 Barb., 17. .. ' 598 FINAL JUDGMENT. exceeding five, at whicli the cause is necessarily on the calendar, and not reached or postponed. The plaintiiF may also have tv?o dollars for each additional defendant upon whom process shall have been served, not exceeding ten such defendants in foreclo- sure suits, and five in other cases. Moreover, by section 308, the plaintiff" is allowed, as a matter of course, and without any further order for that purpose,' in addition to the allowances above mentioned, ten per cent on the recovery (as prescribed in section 309), for any amount not ex- ceeding two hundred dollars ; an additional sum of five per cent for any additional amount not exceeding four hundred dollars; and an additional sum of two per cent for any additional amount not exceeding one thousand dollars, in the following actions only : 1. For the partition of real property. 2. For the foreclosure of a mortgage. 3. An action in which a warrant of attachment has been issued. 4. An action for an adjudication upon a will or other instru- ment in writing. 5. In proceedings to compel the determination of claims to real property. In these five classes of actions or proceedings no further allow- ance than the above per centage can be made by the plaintiff", and no extra allowance to the defendant at all ; but in other actions, by the provisions of section 309 of the Code as it now stands amended,^ an extra allowance may be made "in difficult and extraordinary cases, when a trial has been had," to any party, plaintiff" or defendant, who succeeds " not exceeding five per cent ■upon the amount of the recovery or claim, or subject matter involved." Section 309 of the Code also provides that the rates of the per centage specified in section 308, "shall be estimated ' Hunt V. Middlebrook, 14 How., 300. Though it may, perhaps, be sometimes necessary to apply to, or obtain the order of, the court in regard to determining the amount of the value of tho property claimed, or affected by the adjudication, &c., as provided in section 309, in order to ascertain the sum upon which the per centage may be charged. = By the amendments ef 1858 and 1859. COSTS, HOW AND WHEN ALLOWED. 599 upon the value of the property claimed or attached, or affected by the adjudication upon the will or other instrument, or sought to be partitioned, or the amount found due upon the mortgage in an action for foreclosure. And whenever it shall be necessary to apply to the court for an order enforcing the payment of an installment falling due after judgment in an action for foreclosure, the plaintiff shall be entitled to the rate of allowance in the last section (section 30S) prescribed, but to no more in the aggregate than if the whole amount of the mortgage had been due when judg- ment was entered. Such amount of value must be determined by the court, or by the commissioners in case of actual partition." It is to be observed, that the court, or the referee hearing and determining the whole issue and acting as the court, may deter- mine and state such value in the actual decision, if one be rendered giving costs. In such case the allowances of the per centage mentioned in section 308,' may be calculated and taxed in the bill of costs without any special order for that purpose.^ If such value, however, be not determined and stated in such decision i-endered, a special motion must be made for the purpose of ascertaining it ; and in all cases where an extra allowance is claimed, other than those falling under section 308, it must be obtained on special motion, which, by rule 52, can be made only to the court before which the trial is had or the judgment rendered, which application must be upon notice, unless made on the trial, or at the term during which the trial is had, in presence of the adverse party .^ The sections of the Code relative to costs, both such as are allowed of course, and those granted by way of extra allowance, have been so often amended, and are still undergoing such con- stant changes, that it would be useless here to lay down any definite rules of practice upon this subject. Most of the decisions, since the Code, are to be found, well arranged and digested, in the notes to the last (6th) edition of Voorhies' Code, under the sec- ' Ante, page 598. = Hunt v. Middlebrook, 14 How., 300. 3 Mann v. Tyler, 6 How., 236 ; Van Kensselaer v. Kidd, 5 How., 242 ; Niver V. Rossman, 3 Code R., 192 ; Saratoga R. R. Co. v. McCoy, 9 How., 341. 600 FINAIi JUDGMENT. tions relative to costs, to which they respectively belong ; and these decisions serve to indicate pretty accurately the general course of practice in regard to the allowance of costs, both in common law and in equity actions, and also in regard to the prin- ciples which govern the courts, in making a further allowance "in difficult and extraordinary cases," and the mode and manner of making the application for the same. It is proper, however, before leaving this subject, to observe that, by the Code, as it now stands, with the recent amendments, there is a manifest incongruity on the subject of these extra allowances. Thus, no matter how "difficult or extraordinary" a case may be, or how obstinately contested, in an action for parti- tion, or for the foreclosure of a mortgage, or for an adjudication upon a will, or other instrument in writing (usually among the most difficult cases), yet, a successful defendant can neither be awarded a per centage, nor any extra allowance, but must be satisfied with his mere taxable costs and disbursements. As, for example, an action to set aside an assignment as fraudulent by reason of provisions appearing on the face of the assignment, is an action "for adjudication upon an instrument in writing;" and coming within the exceptions of sections 309, a successful plain- tiff cannot have an extra allowance as provided by that section in other cases, but only the per centage given by section 308 ; ^ and a successful defendant cannot even have such per centage. But where it is sought to be set aside on account of fraud dehors the instrument — that is, fraud established by the proof of extrin- sic facts — it is not an action for adjudication upon an instrument in writing, and this too, it seems, although the construction of the instrument may be material to the decision,^ and the successful party, whether plaintiff or defendant, may, on special application to the court, get an extra allowance under section 309, though he is not entitled to a per centage under section 308 as a matter of course. 1 Lewis V. Bryce, per Hofi'man, J., cited Voorhies' Code (6tli ed.), p. 439. " State of Michigan v. Phoenix Bank, Ibid. See also 1 Bosw., 618. COSTS, HOW AND WHEN ALLOWED. 601 Interest to he taxed in costs, when. By section 310 of the Code, when the judgment is for the recovery of money, interest, from the time of the verdict or report, until judgment be finally entered, shall be computed by the clerk, and added to the costs of the party entitled thereto. The provision may be made to apply to an equity suit in cases where a party has established his right to, liquidated damages as part of his relief, or to a sum certain, as the balance found due on an accounting, and the like. It has been held, under this section, that on the report of a referee, interest is to be computed from the time the report is made, and not from its date, if the date differs from the time when the report was in fact made.^ Dishirsemejits, Besides the sums regularly taxable as costs, the per centage or extra allowance and interest, when the same is properly added, the prevailing party,^ to whom costs are granted, may have his " necessary disbursements." These, by the Code (section 311), include " the fees of officers allov^ed by law, the fees of witnesses, the reasonable compensation of commissioners in taking deposi- tions, the fees of referees, and the expense of printing the papers for any hearing when required by any rule of the court." The note to this section in Voorhies' Code (6th ed.) contains a statement of the principal decisions in regard to the allowance of disbursements. Without entering upon any particular considera- tion of tlaese cases, I vpill merely observe, as v^as said in a recent case,^ that, though the section of the Code allowing disbursements is more comprehensive than the former provision of the Eevised Statutes on the subject, yet it should not be extended beyond such disbursements as are incident to the due and regular pro- ceedings in the action. Thus, the expense of printing a summons and complaint, or other papers, not required to be printed by a rule of the court, is not properly taxable as a disbursement ; though the expense of the publication of the summons, &c., when ' Fuller V. Squire, 8 How., 121. '^ By " prevailing party" is to be understood the party whose right to costs has prevailed. (Johnson v. Sagar, 10 How., 554; Peet v. Wurth, 1 Bosw., 653.) 3 Case V. Price, 9 Abbott, 115. V. S. 76 602 FINAL JUDGMENT. ordered, is. Nor, is the plaintiff's charges for witnesses' fees on his own behalf, or such charges by his attorney a proper item of disbursement, the allowance of disbursements being intended to embrace only the actual disbursements of attorneys in the neces- sary conduct of a case, and not the disbursements of the jiarties} Copies, notice of no personal claim in foreclosure or other suits, cannot be charged as disbursements, though a reasonable fee for service of such notice, whether made by the sheriff, or any other person, may be taxed.^ And so if a constable, or any private person, be employed to serve the summons and complaint, it is allowable to charge as a disbursement the sum actually paid for such service, within the limit, however, of the sheriff's fee for a similar service, and on an affidavit showing the reasonableness of the charge, and that it is a fair and just compensation for the time employed, and the distance traveled in making such service.^ By the same section of the Code (section 311), the disburse ments must be stated in detail and verified by affidavit. Each item of disbursement, and the occasion or circumstance of the expenditure, should be particularly specified in the bill of costs served on the opposite party. So the items of disburse- ments for the attendance of witnesses should be stated in the bill, which should show the names and places of residence of the respective witnesses, the distance they respectively traveled, and the number of days each attended ; and if not so stated they will be disallowed on the taxation ; * though it has been held, that if such items are particularly stated in the affidavit of disbursements produced on the taxation, it will be sufficient, and the fees for attendance of witnesses may be taxed though they be stated in gross in the bill. ^ And the affidavit to the disbursements should show that each witness was, or was believed to be, a material and necessary witness ; that copies of papers made were actually ■ Ibid. Cornell v. Potter, 15 How., 278 ; Logan v. Thomas, 11 How., 160 ; Querissle v. Hilliard, 3 Abbott, 31. 2 Gallagar v. Eagan, 2 Sand., 742. ^ c^se v. Price, 9 Abbott, 115. * Shannon v. Brower, 2 Abbott, 377. ^ Hagar v. Danforth, 8 How, 448. COSTS, HOW AND WHEN ALLOWED. 603 and necessarily made for use, or used, and, generally, that the disbursements were necessary and reasonable in amount.^ Notice of taxation. It is required by the same section of the Code (section 311), that a copy of the items of the costs and disbursements shall be served, with a notice of adjustment. The notice, by the same section, must be a notice of five days, unless the respective attorneys reside in the same city, village or town, and then a two days' notice is sufficient. If served by mail, double time is required, as in other cases of such service.^ The notice must be served upon every defendant who has appeared in the action, whether he has taken any steps to defend the same or not, or has merely given a notice of appearance therein.^ Service of a notice on Saturday for Monday, is not considered a notice of two days, though the contrary has been held by the New York Common Pleas.^ And it has been considered, that the notice may be served in anticipation of a default, or before the right to recover costs is established, for taxation on a day when the judgment can be regu- larly entered.^ Adjustment or taxation. The costs are adjusted, as it is called, or taxed, by the clerk of the county where the judgment is to be entered. At the time and place specified in the notice, the costs are presented to the clerk, and, if the opposite party do not appear, are taxed ex parte. An affidavit of service of bill of costs and notice of taxation, is usually furnished, though this is not necessary and is frequently dispensed with.^ And though there be no opposition, it is the duty of the clerk to examine the charges and disbursements, and ■ See Voorhies' Code (6th ed.), pages 444, 445, and cases there cited. Case v. Price, 9 Abbott, 115. 2 Code, § 412. 3 Elson v. N. Y. Equit. Ins. Co., 2 Code K., 30. < See Voorhies' Code (eth ed.), p. 443. ' Ibid. Anon., 4 Sand., 693. » 2 Barb. Ch. Pr., 340. 604 PINAL JUDGMENT. to strike out all such as in bis judgment are not proper, and all disbursements which are not properly verified by aifidavit, or do not appear to have been necessarily incurred.^ If the taxation of the costs is opposed, the opposing party cannot make a general objection to the whole bill, but must point out to the clerk the particular items objected to and the grounds of his objection, and unless this is done, the taxation will not be reviewed on appeal.^ The usual affidavit of the attorney annexed to the bill, stating, according to the best of his knowledge and belief, that the several disbursements, charged in the bill, have been actually, and neces- sarily, paid or incurred, and that the copies and exemplifications of documents, charged therein, were actually and necessarily used, or obtained for use, is sufficient evidence before the clerk, and makes it his duty, to allow the charges, if otherwise properly chargeable, unless evidence is produced to show that the affidavit is not con-ect.^ And if the opposing party desires to strike out any of such charges, he must produce before the clerk his affi- davit, or other evidence, or he will not be allowed to use such affidavit, etc., on the motion for retaxation.* The affidavit of attendance of witnesses, as to what it should contain, etc., has been noticed above. It is usually separate from the affidavit of disbursements, but need not be. The opposing party may produce affidavits, etc., to contest any particular item; and must do so if he wish to raise any question on appeal from the taxation. If he show that any of the witnesses named were not called on the trial, the clerk is not at liberty any longer to follow the general affidavit of attendance in the taxation, but the party asking for the witnesses' fees in such case, must explain why they were not called, or the charge will be disallowed.^ Entry of costs in judgment by the clerk. The costs having been adjusted, and such items struck out as the clerk decides are not taxable, the bill of costs is allowed at ' Belding v. Conkling, 4 How., 199 ; Stimson v. Huggins, 16 Barb., 662 ; 9 Howard, 86. ^ Cuyler v Coates, 10 How., 142. ^ Wendell v. Lewis, 8 Paige, 613. « Ibid. 5 Dowling v. Bush, 6 How., 410. COSTS, HOW AND WHEN ALLOWED. 605 the amount finally adjudged by the clerk, and signed by him, and the amount thereof entered in the blank left for that purpose in the judgment. The bill of costs so taxed, is filed by the clerk, but is not a necessary or proper part of the judgment roll.^ Entry of costs on ex jparte taxation, and retaxation. It is a common practice for a party entitled to judgment, to make out his costs and have them taxed without notice, and enter judgment forthwith, inserting the amount of the costs in the judg- ment ; and at the same time give notice to the opposite party of retaxation. If any items are struck out of the costs on such retaxation, the same are deducted from the execution, or the amount of costs charged against the opposite party. The objec- tion to this practice has arisen from certain decisions since the Code, holding, that the entry of judgment without notice of the taxation of the costs (where notice was required), affected the regularity of the judgment, and rendered it liable, on that account, to be set aside on motion.^ The better opinion, however, seems to be, that the entry of the costs in the judgment, without notice of the taxation, does not render the judgment itself irregular, but only the entry of costs, which may be set aside, or retaxed on notice.^ And such was the former practice in Chancery.^ When costs, therefore, are taxed by a clerk without notice, and entered in a judgment, and a notice of retaxation of the costs immediately given, accompanied by a bill of the items taxed, it is supposed that the entry of the judgment is perfectly valid, and cannot be affected by any retaxation or diminution of the costs. And such it is believed is the common practice.* Retaxation on appeal. If either party is dissatisfied with the decision of the clerk, either on the allowance of any item of costs, or disbursements, the opinion of the court may be taken, which is done on an appli- ' Schenectady and Saratoga Plankroad Co. v. Thatcher, 6 How., 226. ' See these cases cited Voorhies' Code (6th ed.), p. 443. ^ Ibid., citing, Stimson v. Higgins, 16 Barb., 658 ; Dix v. Palmer, 5 How., 233, and other cases. < Hofl'man v. Skinner, 5 Paige, 526. = See Gilmartin v. Smith, 4 Sand., 684. 606 FINAL JUDGMENT. cation to the court for retaxation, at special term, usually called an appeal from the taxation of the costs.' For the purposes of such review, the party dissatisfied with the taxation prepares an affidavit (to which a copy of the bill of costs is annexed), pointing out therein the particular items objected to, and stating that the allowance of such items was opposed on the taxation ; for, unless it appear that the items were pointed out and objected to before the clerk, the court will not review the decision.^ The affidavit may also state the facts which appeared before the clerk, either by the admission of the parties, or other- wise, and on which he based his decision. Copies of the affidavits, pro and con, relative to the allowance of witnesses' fees or other disbursements, certified by the clerk, may also be used on the motion ; but no new affidavits or other evidence, not before the clerk, can be introduced.^ Copies of the affidavit must be served on the opposite attorney with the usual eight days' notice of motion for retaxation, on appeal from the clerk's decision ; though if the copies of the affidavits, &c., used before the clerk are on file, it is not necessary to serve them, but the notice of motion may refer to these as among the papers on which the motion will be brought on. Motion for retaxation, how made. The motion is brought on and heard in the same manner as other special non-enumerated motions. The opposing party may controvert, by affidavit, the statements in the affidavit of the moving party as to what took place before the clerk, etc ; but cannot add to, or vary the facts which were made to appear before him. ' Whipple V. "Williams, 4 How., 28 ; Beattie v. Qua, 15 Barb., 132. ^ Cuyler v. Coates, 10 How., 142 ; People v. Oakes, 1 How., 195. ' But see Shultz v. Whitney, 9 Abbott, 71, in which it was held, on a new afBdavit in support of the clerk's decision being introduced, without objection, that while the court should determine the question upon the papers which were before the clerk at the time of the taxation, yet the new aflRdavit might be refer- red to for the purpose of ascertaining whether there were any new facts by rea- son of which the court should properly order a readjustment before the clerk, instead of correcting the error itself. ENTRY AFTER TRIAL. 607 Decision of the court on motion to retax costs. The decision of the court is to be embodied in an order, which is drawn up, entered, and served in the same manner as other special orders. If the costs have not been already entered in the judgment, the clerk will retax them according to the directions contained in the order; if they have been so entered, then the costs struck out on such retaxation are to be deducted from the amount of the judgment, or execution, if one be issued. The motion for retaxation should be made without unnecessary delay, and with reasonable diligence,' otherwise the court will not entertain it; and it should at all events be made (unless a good excuse ^s shown), before the costs are paid.^ SECTIOlSr IV. EJSTTET OrjUDGlIENT OX TRIAL OF THE WHOLE ISSUE BY THE COUET, BY EEFEEEES, OE ON THE FINDING OF A JUET. I have, in a former chapter, detailed the proceedings upon the trial of an equity cause, where the whole issue was submitted and passed upon, from the commencement of such trial down to the filing of the decision, if the trial has been by the court ; or of the report, if it has been by referee ; or of the verdict, and the subsequent motion for judgment thereon, in cases where issues have been tried by a jury ; ^ and in a former section of the present chapter I have spoken of the practice in regard to the drawing up and settling of the judgment. It remains now to consider the actual entry of the judgment, and the making up and filing of the judgment roll. Judgment, how entered. The judgment having been settled in the mode already des- cribed, leaving only the necessary blank for the insertion by the clerk of the costs, is taken to the office of the clerk of the county ' Dresser v. Wickes, 2 Abbott, 460. 2 Collomb V. Caldwell, 1 Code R., N. S., 41 ; Schermerhorn v. Van Vorst, 5 How., 458. ^ See, ante, chap, xiy, sections 2, 3 and 4. 608 FINAL JUDGMENT. where the place of trial is, and, the costs being taxed, as pointed out in the last preceding section, they are entered in the judg- ment, and the judgment signed by the clerk, and indorsed by him with the date of filing the same. It is provided by section 279 of the Code "that the clerk shall keep, among the records of the court, a book for the entry of judgments, to be called the 'judgment book.' " And by section 280 that " the judgment shall be entered in the judgment booki" The judgment is to be entered at length by the clerk in the judgment book, and it is deemed to be so entered from the time it is left with him for that purpose, and the judgment roll filed, although in fact it may not be actually recorded until some time afterwards.^ Making up and filing the judgment roll. This subject has been already considered in a former part of this work, in speaking of the entry of judgment by default, or on failure to answer.^ It may be remarked, that while the entry of the judgment, as provided by the Code, is in all respects similar to the entering of the former Chancery decree, in the register's book of decrees,^ so the filing of a judgment roll is similar to, and perhaps it may be said is the same, in its nature and effects, as the enrolling of a Chancery decree, which was necessary before the decree became a record of the court.* By a rule of the Court of Chancery (Kule 111), no process could issue or other proceeding be had, on any final decree until the same was duly enrolled. Under this rule, it was decided, that where the . decree was final as to any branch of the cause, or as to any of the parties, it must be enrolled before a deed could be executed, or a sale under that part of the decree, and before an execution could be issued to compel a compliance with such decree.^ And the same principle, it is considered, is applicable to a judgment roll under the Code.^ ' 1 Barb. Ch. Pr., 341. = Ante, pages 135-138. ' 1 Barb. Oh. Pr., 341. * See on this subject, ante, page 138. 5 Minthorne's Ex'rs. v. Tompkins' Ex'rs., 2 Paige, 102. ^ Townsend v. Wasson, 4 Duer, 342. And see ante, pages 138, 139. COSTS, TAXATION OF, AND ENTRY IN JUDGMENT. 609 Until the roll is made up and filed, the judgment, though duly entered by the clerk, does not create a lien upon lands, and an execution cannot lawfully issue upon it.^ An order or judgnient directing the payment of money, or affecting the title to property, founded on petition only, where no complaint Ms filed, may, also, by the 56th rule of the court, at the request of any party interested, be enrolled and docketed as other judgments.^ The Code (section 281) seems to contemplate that the party or his attorney will furnish the judgment roll. And this is the usual practice ; or, at least the judgment roll is usually made up under the supervision of the attorney of the party entering the judg- ment. If, however, this be not done, it is, by the same section of the Code, made the duty of the clerk, immediately after enter- ing the judgment, to make up the judgment roU,^ by attaching together and filing the following papers : " 1. In case the complaint be not answered by any defendant, the summons and complaint, or copies thereof, proof of service and that no answer has been received, the report, if any, and a copy of the judgment. " 2. In aU other cases, the summons, pleadings, or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and aU orders and papers in any way involving the merits, and necessarily affecting the judgment." The provision is designed to embrace every description of action, whether legal or equitable ; that is, it embraces the former judgment record in a common law action, and the enrolled decree in a Chancery suit. In regard to the latter, the Chancery rules (Rule 186), framed in pursuance of the statute,* made provision that the enrolled decree should contain " the original bill, or petition, and all other pleadings in the cause, including excep- tions to pleadings, reports thereon, and exceptions to such reports, petitions to revive, or in relation to any change of parties, or in any way affecting the merits of the cause ; and all reports affecting the merits or which are necessary to explain the ' Townsend v. Wasson, 5 Duer, 342, and see, ante, pages 138, 139. ^ And this is merely an adoption of the former rule (No. 123) of Chancery. 3 Eenouil v. Harris, 1 Code R., 125. * 2 R. S., 181, § 98 (orig. § 92). V. s. 77 610 FINAL JUDGMENT. decree, together with the original taxed bills of costs, of such of the parties as are entitled to costs under the decree." It has been decided since the Code, that the bill of costs, notice of adjustment, and affidavit of disbursements, should not be annexed to the judgment roll; and if they are, the court will order them to be taken off." So "exceptions 'to pleadings, reports thereon, and exceptions to such reports," being pro- ceedings peculiar to the former practice, are not applicable to a judgment roll under the present system. In other respects the foregoing equity rule may be advantageously followed. Proof of service of the summons or complaint is no part of the record of judgment upon demurrer.^ If a pleading be amended of course, the amended pleading alone, without the original, may be inserted in the judgment roll. If, however, the pleading or process (summons) be amended by order of the court, as by striking out or adding the name of a party, both the original and the amended process and pleading, with the order of the court allowing the amendment, should be included in the judgment roll. And so in regard to all orders and papers " involving the merits, and necessarily affecting the judgment" — in the language of the Code, and, as expressed in the Chancery rule, " necessary to explain the decree " — they should be incorporated in the judgment roll. A decree may be enrolled mine pro tunc, and such an enroll- ment will have relation back to the time of the decree, and protect an intermediate sale.^ And a decree may be enrolled notwithstanding an abatement of the suit.* Docketing of judgment. This is provided for by section 282 of the Code, prescribing that on filing a judgment roll, upon a judgment directing in whole ' Schenectady and Saratoga Plankroad Co. v. Thatcher, 6 How., 226. See also Cook V. Dickerson, 1 Duer, 679, as to what papers should be included in the judgment roll. ^ Smith V. Holmes, 19 N. T. R, 271. ^ Goelet V. Lansing, 6 John. Ch. R., 75 ; Waring v. Waring, 7 Abbott, 472 ; Croghan v. Livingston, 6 Abbott. 350 ; D'Agroda v. Mantel, 1 Abbott, 136. See ante, page 138. < Qartflide v. Isherwood, 2 Diok., 612 ; 1 Barb. Ch. Pr., 344. ENTRY OF, ON INTERLOCUTORY DECISION. 611 or in part, the payment of money, it may be docketed with the clerk of the county where it was rendered, and in any other county upon the filing with the clerk thereof a transcript of the original docket, and declaring that the judgment so docketed shall be a lien on real estate. The subject has been alluded to at a former page, citing several cases, to which the reader is referred.^ The section of the Code above referred to is general, applying to all judgments, those in equity as well as in common law actions. So far as the former is concerned, it is but a re-enactment of the Revised Statutes declaring that every final decree directing the payment of any debt, damages, or costs, or sum of money, shall bind and be a charge upon the lands, tenements, real estate and chattels real, of the defendant which he may have at the time of docketing such decree, or which he may acquire at any time thereafter.^ SECTION V. ENTET OF JUDGMENT ON INTEELOCUTOET DECISION, AND SUBSEQUENT EBPOET OF EEFEEEE. The practice of noticing and bringing on the cause for hearing upon farther directions, on the report of a referee, made undef an interlocutory decision and order, has been considered in a former section.^ Upon such hearing the court may render final judg- ment, either by the allowance of the judgment in form, as pre- viously prepared and submitted on such hearing by the moving party ; or, by granting an order specifying the substance or mate- rial points of the judgment, and directing such judgment to be settled in the usual way previous to its being entered. The latter is the more common mode of proceeding in all cases of judgment rendered upon further directions, after an interlocutory reference ; inasmuch as such judgment almost always contains special provi- sions and directions which render a previous settlement proper and necessary. 1 Ante, pages 139, 140. And see the subject of docketing judgments discussed by lioFrMAN, J , in D'Agreda v. Mantel, 1 Abbott, 134. = 2 E, S., 182, § 101 (orig. § 96). ' Ante, page 673. 612 FINAL JUDGMENT. In the former case, that is in case of judgment prepared before- hand by the moving party, and allowed on the hearing, the judg- ment (if to be entered in the same county), is simply filed with the clerk, and signed by him, the costs when taxed being inserted therein, and the judgment annexed to the judgment roll. If allowed in a county other than that in which it is to be entered, the clerk will certify it to such county, by indorsing his certificate upon it, after which the proceedings are the same as in cases of judgment certified to another county on default of an answer.' In the latter case, that is where the terms and the form of the judgment are to be settled, the order for judgment, as above mentioned, must be drawn, and either assented to by the opposite party, or settled, entered and served ; and the judgment, drawn in pursuance of such order, must be settled in the mode hereto- fore pointed out in regard to the settling of an order.^ When so settled, the judgment may be entered as in other cases. The judgment roll will contain not only the written decision of the court, and the order of reference thereon, but the report of the referee, and documents (if any), accompanying the same, the order for judgment, and the judgment itself. If exceptions have been taken to the report, and these have been brought to argu- ment, and passed upon, on the final hearing, and have in any res- pect afiected or modified the referee's report, they should properly form part of the judgment roll. Proof of the service of notice of filing report, or exceptions, or of notice of final hearing, and indeed all other merely formal proceedings, going to the regularity only, and not to the substance of the judgment, need not be included in the judgment roll. The regularity will be presumed for the purpose of sustaining the judgment, and the party com- plaining of any omission afiecting the regulaiity thereof, will be put to his motion to set aside the judgment on account of the irregularity. And the motion must be made, either at the earliest opportunity, or without any unnecessary delay, after notice of the judgment. If costs be entered in the judgment without any decision or ■ Ante, page 135. ^ Ante, pages 449-452. RECTIFYING, AMENDING AND VACATING. 613 order of the court allowing them, it is an irregularity rnerely, to be cora-ected by motion to set aside the judgment. This will not affect the judgment, either on appeal, or in respect to any pro- ceedings to enforce it, or upon any question arising in regard to its validity. Costs cannot be entered in a judgment in an equity suit, as already noticed, unless specially adjudged by the court; but if so entered without authority, the remedy of the party aggrieved is to move, at the earliest opportunity after notice, to set the judgment aside, or, if preferred, to strike out the allow- ance of costs. SECTION VI. EECTirTING XSB AMENDING JUDGMENT, AND VACATING SAME EOR lEEEGITLAEITT OE OTHER CAUSE. Under the former Chancery practice, an application to rectify a decree before enrollment, in matters of form, or where there was a mistake, or by the addition of some direction which had been omitted, and the like, might be made to the court either by petition or motion.' Where the alteration asked for was merely consequential upon the decree itself, or the addition of some direction which had' been omitted, the omission was supplied by a distinct order, without altering or interlining the decree itself.^ But where it could not be made by supplemental order, as in cases of error in the direction of the decree, the court ordered the register to attend with the book itself, and made the alteration in open court.^ This practice has been approved since the Code, in a recent case,* in which it is said that a judgment record should not be amended by an obliteration or erasure, even when it leaves the passage legible. The proper mode is, by appending the order of amendment to the roll, as well as by entering it in 1 Clark V. Hall, 7 Paige, 382 ; Murray v. Blatchford, 2 Wend., 221 ; Rogers v, Rogers, 1 Paige, 188 ; Wallis v. Thomas, 7 Ves., 292. « Lane v. Hobbs, 12 Ves., 458 ; Clark v. Hall, 7 Paige, 382. 3 Tomlins v. Palk, 1 Rus., 476 ; 1 Barb. Ch. Pr., 352. * Sluyter v. Smith, 2 Bosw., 673. 614 FINAL JUDGMENT. the proper book, and by referring in the margin of the entry of the judgment to the amendment as made by order of such a date. The portions changed or omitted could be designated by brackets, underscoring or otherwise; or the judgment might be entered anew as amended. But it was also held, that amending by an erasure was not ground for vacating the amended judgment.^ After enrollment, the general rule was, that a decree regularly obtained could not be altered in other respects than mere form, or on account of surprise, except by bill of review .^ But errors apparent upon the face of the decree, as clerical mistakes, or a miscasting, or where some part of the decree had been omitted in the enrollment, and the like, might be corrected by order after enrollment.^ Under the present practice a judgment may, in like manner, be amended after entry and enrollment, by correcting a mistake, on motion merely, atid without a rehearing. Thus, in one case, where, in a judgment of sale, the sale was directed to be adver- tised three weeks instead of six as required by law, but in fact the advertisement was published six weeks, it was held, even after sale, that the error might then be corrected on motion, and the purchaser be compelled to take title.* An enrolled judgment, may be amended and rectified on motion by filing and attaching to the judgment roll any papers necessary to the judgment, which the party making up the judgment roll has omitted to file.^ The court, it has been held, even after a sale in a partition suit, will allow a judgment roll to be so amended, by filing, nunc "pro tunc, a bond of a guardian ad litem, for an infant defendant." The omission to file such bond is an irregularity merely, and does not affect the validity of the judg- ment, or discharge the purchaser from completing his contract f but he is not compelled to do so, or take title until the amend- ment is made." ' Sluyter v. Smith, 2 Bosw., 673. = Bennet v. Winter, 2 John. Ch. K., 205 ; Wiser v. Blackley, Ibid., 488. 3 Ibid. Eadley v. Shaver, 1 John. Ch. R., 200. * Alvord V. Black, 5 Abbott, 451. = Waring v. Waring, 7 Abbott, 472. ' Croghan v. Livingston, 6 Abbott, 350. " Ibid. ' Waring v. Waring, 7 Abbott, 472. EECTIFYING, AMENDING AND VACATING. 615 A judgment roll may be amended by inserting an order, nunc pro tunc, withdrawing one of several causes of action that has been abandoned on the trial.i But such amendments, and indeed all amendments made after judgment, are allowed only for the purpose of sustaining the judgment.^ The general provision of the Code relative to amendments by order of the court, applies to a judgment, as well as to pleadings and process, and is as follows : " The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party ; or by correcting a mistake in the name of a party, or a mistake in any other respect ; or by inserting other allegations material to the case ; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.'"' This section is comprehensive, and includes, it is said, almost all cases which can arise and call for the interposition of the court.* Though a judgment of the general term cannot be altered or set aside by the special term upon any matter connected with the merits ; * yet, an application to correct a general' term judg- ment as to any matter of form merely, and, indeed, as to any proper amendment embraced within the foregoing section of the Code, may be made at special term." Correcting enrolled judgment hy hill of review. The practice of correcting an enrolled judgment or decree in other respects than mere form, mistake, or surprise, as, for exam- ple, for errors of law appearing upon the face of the judgment, or for matters dehors the record, such as the discovery of new evidence, it is presumed, is similar to that formerly pursued in the Court of Chancery by bill of review, the proceedings upon ' Fry V. Bennett, 9 Abbott, 45. 2 English V. Furnis, 3 Abbott, 82 ; Gasper v, Adams, 24 Barb., 288. 3 Code, § 173. * Sherman v. Fream, 8 Abbott, 33. ^ Englis v. Furnis, 3 Abbott, 83. " De Agreda v. Mantet, 1 Abbott, 130 ; Ayres v. Coville, 9 How., 573 ; Corning V. Powers, Ibid., 54. 616 FINAL JUDGMENT. which will be found fully treated of in the books on Chancery- practice ; and, if adopted, must be made to conform substantially to the new practice. Such a proceeding will not be sustained merely upon the ground that the court has decided wrong upon a question of fact.^ Nor, if brought to present new matters dis- covered since the judgment, will it be sufficient merely that the matter sought to be brought before the court is new ; it must also be material? In such case of bringing before the court newly discovered matter with a view of correcting a judgment, it may be done by supplemental bill (complaint) in the nature of a bill of review, or perhaps, as under the old practice, by application to the court for a rehearing before enrollment.^ Vacating judgment after roll filed. Another mode of obtaining an amendment or correction of an enrolled judgment is, by motion to set the same aside, to enable a party to make a defense upon the merits, when he has been deprived of such defense either by mistake or accident, or by the negligence of his attorney. This was allowed under the former practice in equity ; and a decree would be opened where the rights of third parties when not prejudiced thereby, though it had been p'artly executed, as by a sale under the decree where the complainant had purchased, but had not parted with his interest to a bona fide purchaser or mortgagee.^ Under the new practice, ample power is conferred in this respect by section 174 of the Code, which authorizes the court to relieve a party from a judgment taken against him, " through his mistake, inadvertence, surprise, or excusable neglect," at any time within one year after notice of the judgment. And, it has been held under this section, that a party may have relief even against a judgment in his own favor.^ He must, however, show sufficient excuse or cause, as will satisfy the court that the judgment ought to be opened.^ An irregularity in the entry of the judgment is always a ground for setting it aside. Even a judgment of the general 1 "Webb v. Pell, 3 Paige, 368. ^ Patridge v. Usborne, 5 Russ., 195. " 1 Barb. Ch. Pr., 352-362. , " Millspaugh v. McBride, 7 Paige, 509 ; Tripp v. Vincent, 8 Paige, 176. 5 Montgomery v. Ellis, 6 How., 326. « Mann v. ProTOst, 3 Abbott, 446. HOW ENFORCED BY EXECUTION. 617 term by motion at special term.^ Where, however, a party desires relief against a judgment, which can be fully obtained by means of an amendment thereof, he should apply for such amend- ment only, and a motion to vacate the judgment will, or at least may, properly be denied.^ CHAPTER XVII. JUDGMENT, HOW ENFORCED AND CARRIED INTO EFFECT. Section I. Bt execution. II. By process of contempt. III. Bt writ of assistance, injunction, sequestration, &c.; and bt referee or re- ceiver TO CARRT JUDGMENT INTO EFFECT. IV. Execution of judgment against corporations, absent defendants, personal re- FRESENTATITES, HEIRS, DETISEES, &.O. The next step after the obtaining and perfecting of a final judgment in an equity suit, if the proceedings be not stayed by an appeal and giving security (which will be considered in the following chapter), is to enforce the execution of such judgment by the process of the court. For this purpose, a court of equity is clothed with ample power, it being a general rule that the court has the power to issue all process necessary to carry its decrees or judgments into effectual execution.^ The principal modes in which an equitable decree is enforced, are by execution, by process as for contempt, by writ of assist- ance, injunction, and sometimes by sequestration, and by a referee or receiver to carry the provisions of a judgment into efiect. Each of these will now be briefly considered. 1 Englis V. Fumis, 3 Abbott, 82. "^ Sherman v. Fream, 8 Abbott, 33. ' Ludlow V. Lansing, Hopk., 231 ; 1 Barb. Ch. Pr., 441 ; Kershaw v. Thomp- son, 4 John. Ch. R., 610, and cases there cited. V. S. 78 618 JUDGMENT, HOW ENFORCED. SECTIOlSr I. BT EXECUTION. The practice in regard to the issuing of executions upon equit- able judgments, as well as in other cases, is somewhat modified by the Code. The 283d section provides, that writs of execu- tion for the enforcement of judgments (all judgments, equitable as well as legal), are modified in conformity to the provisions of that title; and the authority, therefore, to issue the writ, rests now exclusively upon the provisions of the Code. U])on what judgments, and when execution may issue. By the Revised Statutes, ' the Court of Chancery was empow- ered to enforce performance of any decree, or obedience thereto, by execution against the body of a party ; or by execution against his goods and chattels, and in default thereof, his lands and tene- ments. An execution, it seems, was the first process in all cases, and the party could not be proceeded against as for a contempt, before a writ of execution, commanding him to obey the decree, had been issued.^ Now, however, by the Code, an execution is to be issued only in a certain class of cases, namely, " where the judgment requires the payment of money, or the delivery of real or personal property." ^ Where it forbids or requires any other act to be done it is to be otherwise enforced, as will be hereafter noticed. No process could issue upon any final decree until it was enrolled. This was provided for both by the statute and the rules in Chancery.* If final as to any branch of the cause, or as to any of the parties, the decree must be enrolled before execu- tion could be issued to cofnpel a compliance with it.^ The prac- tice is, no doubt, substantially the same now, and execution should not be issued until the judgment is not only actually entered with the clerk, but evidence by a judgment roll made up and filed as required by law.° Until the papers constituting such ' 2 R. S., 183, § 110, (orig. § 104). ' 1 Barb. Oh. Pr., 441. » Code, § 285. < 2 E. S., 183, § 110 (orig. § 104) ; Chancery, Rule 111. ° Minthorne's Ex'rs v. Tompkins' Ex'rs, 2 Paige, 102. ' See, ante, pages 137-139. BY EXECUTION. 619 roll are actually attached together and filed, and the judgment so evidenced regularly docketed, it has been held, there is no judg- ment creating a lien on the lands of the debtor.^ A clause is usually inserted in an equity judgment that the party have execution to enforce the same, that is in such judg- ments as are properly enforced by execution ; and this too, whether the amount adjudged is to be paid at some specified future time, or generally. In either case, under the old practice, the execu- tion might issue immediately on the enrollment of the decree.^ I understand, however, that by the provision of the Code (section 290), which makes the execution returnable within sixty days after its receipt by the officer, such writ cannot now be issued immediately on a judgment directing a payment of money or delivery of real or personal property at some future specified time ; the party should wait until the expiration of such time. The issuing of an execution may depend upon the happening of a contingency, as in foreclosure cases, where a party, person- ally liable, is adjudged to pay the amount of any deficiency which there may be on the sale of the mortgaged premises, as it shall appear from the report of the sheriff or referee making the sale. In such case, also, the judgment should properly contain a clause that the plaintiif have execution for such deficiency. And upon such judgment execution may issue for the deficiency reported, as soon as an order confirming the report of the referee sliall have been entered. A party equitably entitled to costs, must apply to the court to obtain a positive order for the payment thereof, before he can take out an execution for them.^ Formerly such costs by statute were collected by precept to commit the party to prison.* Im- prisonment is now abolished in such cases by statute, and costs allowed by order are to be collected by execution.^ Different kinds of execution, and form and contents of same. There are three kinds of executions, namely : 1st, Against the property of the judgment debtor ; 2d, against his person ; 3d for ' Townsend v. Wesson, 4 Duer, 342. » 2 Hoff. Ch. Pr., 92. ^ Van Ness v. Cantine, 4 Paige, 55. < 2 K. S., 441, § 4 ; Chancery, Rule 171. » See ante, pages 447-459. 620 JUDGMENT, HOW ENFORCED. the delivery of the possession of real or personal property. The latter is used mainly in the common law actions which were formerly known as ejectment and replevin. It may be still issued in an action brought for equitable relief where the relief actually granted consists solely in a judgment directing the delivery of real estate, or of personal property in specie. Where, however, in addition to this, the judgment directs other acts to be done, or grants some other equitable relief, the mode of enforcing it is different, and will be pointed out in the next section ; for, an execution cannot be issued to enforce part of a judgment. It has been held that in an action to recover real estate and the mesne profits thereof, an execution against the person cannot issue.^ Execution against the property must in all cases issue and be returned, in whole or in part, unsatisfied, before an execution against the person can issue.^ But it is not necessary that sixty days should intervene between the issuing of an execution against property, and of an execution against the person. It is enough that the first has been actually returned by the sheriff when he has acted bona Jide.^ Nor, is it necessary that an execution against the property should be issued to the sheriff of the county where the plaintiff resides.^ Execution against the •person may be issued in the cases prescribed in section 179 of the Code.^ The second subdivision of this sec- tion includes all cases of actions brought for moneys received in a fiduciary capacity, embracing cases of the accounting of guardians, executors and administrators, committees of lunatics, and, generally, all cases of trusteeship. The other four subdivi- sions of the section are mostly, if not altogether, applicable to common law actions. It may be added, that executions against the person are entirely governed by the provisions of the Code ; inasmuch as section 178 declares that no person shall be arrested in a civil action except as it prescribes, though its provisions shall not affect the act to ' Fullerton v. Fitzgerald, ] 8 Barb., 441 ; 10 How., 37. » Code, § 288. ^ pa^e t,. Edgerton, 3 Abbott, 229 ; 5 Duer, 681. * Ibid. 5 Code, § 288. BY EXECUTION. 621 abolish imprisonment for debt, nor apply to proceedings for con- tempts, which remain as they were before. The judgment need not contain a clause expressly authorizing execution to issue against the person, in order to warrant such a process.! But such an execution is issuable of course, on the return of an execution against the property unsatisfied, where the facts constituting the right of arrest are necessarily and properly apparent on the record ; and in such cases no order is necessary^ If they do not so appear, a previous order must be obtained.^ As to the form and contents of an execution. It was heretofore required that the execution should be sealed, and it could be issued only by the register, assistant register, or clerk with whom the decree was enrolled. It now issues without seal,* and is merely required to be subscribed by the party issuing it, or his attoriiey.^ The attorney subscribing it must be an attor- ney at law, and not a mere agent or attorney in fact. He need not, however, be the attorney of record, but any other attorney of the party may subscribe it.^ If the judgment have been assigned, the assignee is the party issuing it, and it may be sub- scribed by him or his attorney. It must be directed to the sheriff, or coroner, when the sheriff is a party or interested, and must intelligibly refer to the judg- ment, stating the court, the county where the judgment roll or transcript is filed, the names of the parties, the amount of the judgment if it be for money, and the amount actually due thereon, and the time of docketing in the county to which the execution is issued.'' These requisites, together with the sub- scription by the party or his attorney, are common to all execu- tions, whether against the property, the person, or for the delivery of real or personal property, and are essential to their validity. The same section which prescribes them (section 289), ' Crowell V. Brown, 17 How., 68 ; Oooney v. Van Rensselaer, 1 Code R., 38. " Alden v. Larsen, 4 Abbott, 102, and cases cited in Voorhies' Code, note to section 288. ' 3 Ibid. Livesey v. Sanders, 3 Abbott, 176 ; 12 How., 25. ^ Code, § 286. ' Code, §§ 286, 289. 6 Cook V. Dickinson, 1 Duer, 679. '' Code, § 289. 622 JUDGMENT, HOW ENFOECED. prescribes also separately what the writ shall require the sheriflF to do in regard to each of the three kinds of execution. These direc- tions (which I deem it unnecessary to quote) are usually and very properly contained in the printed forms of executions in common use, in almost the identical language of the Code. While all the foregoing statutory provisions, as I have just remarked, are essential to the validity of the execution, without which it is not irregular merely, but absolutely void, yet the execution need not contain anything else whatever. Thus, though it is said to be the better practice to state, in an execu- tion against the person, the nature of the action, yet it is not necessary to do so ; ^ nor to state the facts which authorize it to issue, as that an execution against the property has been returned unsatisfied. It is sufficient if those facts exist.^ Nor need an execution state any time or place of its return, the law fixing such time and place.^ And upon the same principle it need not be tested in the name of any judge, nor be signed by the clerk. Indeed it is considered sufficient if it substantially follow the terms of the statute, and a mere defect in form is amendable.^ Thus, though the Code requires* that an execution against the person of the judgment debtor shall command the sheriff to arrest him, " and commit him to the jail of the county, until he shall pay the judgment or be discharged according to law," yet it is held in the Court of Appeals, that an execution commanding the sheriff" to commit the defendant " to the jail of said county of M., until he shall pay the said judgment according to law," is sufficient.^ Froceedings on execution. It is not within the scope of this work to enter upon a consideration of the proceedings upon the execution after its delivery to the sheriff", in regard to the levy upon and sale of property, the exemption of personal property, the sale and ' FuUerton v. Fitzgerald, 10 How., 37 ; 18 Barb., 441. = Hutchinson v. Brand, 5 Seld., 208. ' Fake v. Edgerton, 3 Abbott, 229 ; 5 Duer, 681. * Park V. Church, 5 How., 381 ; Pierce v. Crane, 4 How., 257. « Code, § 289, sub. 3. ° Hutchinson v. Brand, 4 Seld., 208. BY PROCESS OP CONTEMPT. 623 redemption of real e^ate, nor of the various matters of practice collateral and incident thereto. It may be remarked, generally, that these are not materially altered by the Code, and the practice is for the most part the same as heretofore in regard to executions in common law actions, it being provided by the Code (section 291), that " until otherwise provided by the legislature, the existing provisions of law, not in conflict with this chapter, relating to executions and their incidents, the property liable to sale on execution, the sale and redemption thereof, the powers and rights of officers, their duties thereon, and the proceedings to enforce those duties, and the liability of their sureties, shall apply to the execution prescribed by this chapter." SECTION II. BY PEOCESS OF CONTEMPT. The mode of enforcing the execution of a judgment in an equitable action, other than a judgment simply for the payment of money, or for delivering the possession of real or personal property is, except in some cases hereafter to be noticed, by pro- cess of contempt. This well established and formidable jurisdic- tion of the Court of Chancery, the right arm of its power in enforcing its decrees, and carrying them into eifect, is in no wise abridged or impaired by the Code. On the contrary it is pre- served in its full extent by express reservation.' Foundation for process of contempt. The mode of procedure in laying the foundation for this pro- cess in the Court of Chancery was somewhat different from that prescribed by the Code. In that court a writ of execution, com- manding the party to obey the decree, must issue in the iirst instance. If he neglected to perform the act required, the court, upon affidavit of the service of the writ of execution, and of the party's disobedience, would make an order that he be proceeded against by the ordinary process of contempt.^ • Code, §5 178, 471 ; The People v. Compton, 1 Duer, 512; In re Smethurst, 3 Code R., 55, 2 Sand., 724. " 1 Barb. Ch. Pr., 441. 624 JUDGMENT, HOW ENFORCED. By the Code no writ of execution, or previous order upon the defendant to compel him to do the required act is necessary ; but (by section 285) where a judgment requires the performance of any act other than the payment of money, or the delivery of real or personal property, " a certified copy of the judgment may be served upon the party against whom it is given, or the person or officer who is required thereby, or by law, to obey the same, and his obedience thereto enforced. If he refuse he may be punished by the court as for a contempt." Accordingly, where a judgment had been entered directing the defendant to acknowledge satisfac- tion of a mortgage, on a motion for an order to compel him to execute such satisfaction, it was held that the motion was unneces- sary. The judgment itself was the proper order, and personal service of a copy certified by the clerk, was sufficient.^ And so in all other cases, as where a mistake in a deed is directed to be corrected; or a deed or other instrument is directed to be executed by one party to a suit to another ; or title papers to be given up ; or a bill of exchange, bond, or other obligation, to be delivered up and canceled; or a contract directed to be specifically performed, all that is necessary to lay the foundation for an order that the recusant party be proceeded against as for a contempt, is simply service of a certified copy of the judgment. In what cases final judgment may be enforced by process of contempt. The section of the Code (section 285), as above noticed, pro- vides, that where a judgment requires the payment of money, it may be enforced by execution. In such cases no proceedings, as for contempt, can be had. This is perfectly consistent with the provisions of the Revised Statutes relative to contempts. The section of the statute,^ which enumerates the cases in which the courts have power to punish as for contempts, contains eight subdivisions, the third and eighth subdivisions of which only are properly applicable to the enforcement of judgments or final decrees of courts of record. Subdivision three specifies the following cases : " Parties to suits, attorneys, counsellors, solicitors, and all other persons, for the non-payment of any sum of money ordered by such court to ' Fero V. Van Eyra, 9 How., 148. » 2 R. S., 634, § 1. BY PROCESS OF CONTEMPT. 625 be paid, in cases where by law execution cannot be awarded for the collection of such sum ; and for any other disobedience to any other lawful order, decree, or process of such court," And subdivision 8 provides as follows: <'A1I other cases where attachments and proceedings as for contempts have been usually adopted and practised in courts of record, to enforce the civil remedies of any party to a suit in such court, or to protect the rights of any such party." These two subdivisions include substantially all the cases in which the remedy by process as for contempt may be resorted to in enforcing a final judgment. They include also cases in which the remedy is applicable in the enforcement of a mere interlocu- tory order, as, for example, an injunction order ;' an order to satisfy part of a demand admitted to be just under section 244 ; ^ an order directing the payment of alimony ; ^ an order directing the discovery of books and papers made pursuant to the Code,* and indeed all other interlocutory or decretal orders, whether they be orders requiring the party to do, or refrain from doing, some specific act, or orders for the payment of money, provided, however, that, in the latter case, they be such orders as cannot be enforced by execution.^ The mode of proceeding upon orders for punishing a party, as for a contempt in disobeying them, has been already spoken of, and, it may be remarked here, is similar to the proceedings upon a final judgment.* How judgment or order must be served to bring party into contempt. The mode of serving a mere injunction or restraining order, and the sufficiency of such service for the purpose of bringing a party into contempt, has been already noticed on a former page, and the recent cases bearing upon the subject cited.'' The practice • Ante, pages 366, 367. And see cases cited in regard to the violation of an injunction order and practice therein, Crary's Practice, 382-385. 2 Ante, pages 236-240. » Barker v. Barker, 15 How., 568. ^ Gould V. McCarty, 1 Kern., 575, and see ante, pages 63, 64. 5 See 2 Paige, 578 ; 1 Duer, 696-698. 1= Ante, pages 459-461. And see, generally, as to cases in which parties may be proceeded against as for contempts under the former Chancery practice, 2 Barb. Ch. Pr., 271-275 ; and under the new practice, Crary's Practice, 3,77-388. ' Ante, pages 364-367. V. S. 79 626 JUDGMENT, HOW ENFOECED. is no doubt precisely the same in case of the service of a final judgment granting a perpetual injunction. It has been held that, under certain circumstances, personal service of an injunction is not necessary, but that it is a contempt for a party who has actual knowledge of the injunction to disobey it.i The rule has been held to be otherwise where the judgment or order requires the doing of some specific act, as, for example, the acknowledgment of satisfaction of a mortgage and the like ; then the service must be personal, and service upon the attorney is insufficient, even though followed up by a personal demand upon the defendant.^ The language of the Code (section 285), in regard to the enforcement of a judgment by process of contempt is peculiar, " where it requires the ferformance of any other act, a certified copy of the judgment may be served upon the party," &c., &c. And he cannot be punished for disobedience until he has this evidence of the authenticity of the judgment.^ Application when may be made. The motion for an order to proceed against a party as for a contempt, may be made when he shall " refuse" to perform the act required by the judgment. If a time is limited within which the act is to be done, the motion may be made immediately after the expiration of such time. Where the time of performance is not limited, the party will have a reasonable time to comply, to be determined by the court from the circumstances of the case, as they shall be shown by the affidavits used upon the motion ; unless, indeed, the party, on being served with the judgment, expresses his determination to disobey, or otherwise sets the power of the court at defiance, in which case the motion may be made at once, and without giving further time to comply, the moving papers setting forth the refusal as the grounds of the motion. A subsequent compliance would, no doubt, be a suffi- cient answer to the motion, unless, perhaps, so far as to charge the defaulting party with the costs thereof, if sufficient grounds for making the motion appear. ' See ante, page 366 ; 1 Barb. Ch. Pr., 631 ; 2 Ibid., 275. '' Fero V. Van Evra, 9 How., 148. ^ Ibid. BY PROCESS OF CONTEMPT. 627 Application to what court and how made. The application to proceed against a party as for a contempt, must be made to the court in which the cause or matter pre- judiced by the misconduct alleged is depending.' The motion is non-enumerated and may be made at a special term of the Supreme Court (when the judgment or order is made in that court), as in case of other non-enumerated motions on notice.^ The application is made upon affidavits setting forth the neglect, or violation of duty, or the misconduct complained of; and (unless the contempt is committed in the immediate view and presence of the court) the court must be satisfied by such affidavits of the facts charged, and shall cause a copy of such affidavits to be served on such party accused a reasonable time, to enable him to make his defence.^ And thereupon, on being so satisfied, the court either grants an order on the accused party to show cause, at some reasonable time to be therein specified, why he should not be punished for the alleged misconduct ; or, in the first instance, issues an attach- ment to arrest such party, and bring him before the court to answer for such misconduct.^ Order for attachment. The application for an attachment may be made ex parte, or on notice of motion, accompanied with copies of papers on which the same is founded. And whether it shall issue in the first instance, ex parte, or on notice, is in the discretion of the court. The usual and more advisable course is — except in those cases where it may be important for the rights of the party prejudiced that the defendant be brought into court in the first instance — ' 2 R. S., 534, § 1. " Ante, pages 429-433. ^ 2 R. S., 535, §§ 2 and 3. Except in cases of disobedience to an order requir- ing the payment of money, and of disobedience to any subpena. In the former case, by section 4 of the same statute, the court, on proof of demand and refusal to pay, may issue a precept to commit the person so disobeying to prison. This, however, does not apply to orders for the payment of interlocutory costs, which by the act of 1847 are to be collected by process in the nature of a fien facias, unless, indeed, the costs are awarded against attorneys, &c., for misconduct as such. See Laws of 1847, page 491. See also, ante, pages 447, 459. * 2 R. S., 536, § 5 ; Albany City Bank v. Schermerhorn, 9 Paige, 372. 628 JUDGMENT, HOW ENFORCED. to apply for the attachment on notice in the usual manner, or on an order to show cause.^ The party proceeded against may oppose the motion by affidavits on his part ; but the court will generally grant the motion when the affidavits are conflicting, in order to enable the complainant to compel the attendance of witnesses to prove the facts.^ An order must be drawn up and entered allowing the attach- ment to issue. It is in the usual form of special orders, and entitled in the cause, where the attachment is against a party to the suit. It should not contain an adjudication that the defendant has been guilty of contempt, but, reciting that there is probable cause for attaching the defendant to answer the contempt, &c.> merely direct the issuing of the writ.^ Fo7-m of attachment and, what it must contain. The statute requires that whenever an attachment is issued by the special order of the court, the court must direct the penalty in which the defendant shall give bond for his appearance to answer.^ And the clerk should indorse on the attachment a cer- tificate to the effect that the same is issued by the special order of the court.^ The court, therefore, having fixed the penalty of the bond, the attachment issues of course on the entry of the order, and is so indorsed by the clerk, and the penalty of the bond is also indorsed thereon, over the signature of the judge granting the order. The writ issues to the sheriff of the county, or if the sheriff is the party proceeded against or interested, to the coroner. It should be made returnable at special term ; should issue under the seal of the court, and be tested, signed, &c., like ordinary process.^ Proceedings upon attachment. Upon arresting a defendant upon an attachment to answer for any alleged misconduct, the sheriff is required to keep such ' Orary's Practice, 393, 394, citing 9 Paige, 724; 2 Sand., 724 ; 1 Hill, 168, 10 John., 333. ' McCredie v. Senior, 4 Paige, 378. 3 Ibid. ^ 2 K S., 536, § 10. = 2 R. S., 536, § 14. = Orary's Practice, 396- • BY PROCESS OF CONTEMPT. 629 defendant in Ms actual custody, and to bring him personally be- fore the court issuing the attachment, and to keep and detain him in his custody until the court shall make some order in the pre- mises ; unless such defendant entitles himself to be discharged by giving the bond prescribed by statute.^ But if the party pro- ceeded against is unable to attend the court from sickness, or otherwise, it will be a sufficient excuse for not bringing him per- sonally before the court ; and the officer is not required to con- fine the person so attached in any prison, or otherwise restrain him of his personal liberty, except so far as shall be necessary to secure his personal attendance.^ The sheriff, however, if no bail is given, must detain him in custody when brought up on the return day until some order is made in the premises ; ^ or bail may then be given.* The statute further provides for the defendant's discharge on his executing the bond called for by the writ.' If the attachment is returned served, and the defendant does not appear, the court may either award another attachment, or may order the bond taken on the arrest to be prosecuted, or both.^ It is not, however, necessary, under the present practice, that the party be called on the first or return day. An appearance on the second day- is in time, and the party is not in default until the second day.' The attachment is not used for the purpose of punishing the defendant after a final adjudication ; but is merely a mode of bringing him before the court, to be dealt with for the alleged contempt, in case it shall appear to have been committed. When the defendant has appeared, therefore, he is to be proceeded against by filing interrogatories, etc., in the same manner as upon his appearance on an order to show cause, which proceeding must be first briefly noticed before considering the proceedings upon interrogatories. The order to show cause why the party proceeded against should not be punished for the alleged contempt, like the motion for an ' 2 R. S., 536, § 12. 2 2 R. g., 540, § 37. ^ Lovett V. Rogers, 2 Paige, 103. ' Matter of Vanderbilt, 4 John. Ch. R., 57. ^ £ R. g., 537, § 13. « 2 R. S., 538, § 27. ' People v. Munroe, 15 How., 494. 630 JUDGMENT, HOW ENFORCED, attachment, is founded on affidavits or other evidence shov^ing that the accused party is in contempt.' The order to show cause is obtained ex 'parte, and the court directs the length of time which the order and affidavits, on which it is founded, must be served, and which by statute is required to be a "reasonable time." ^ It must be served on the party in person, unless personal service is dispensed with on special grounds. This is the general rule as to all orders on which to found process of contempt.^ If the party does not appear on the return of the order, or appearing, does not deny the alleged misconduct, or show suffi- cient cause to the contrary, the court may immediately adjudge that he has been guilty of the contempt, and proceed to punish him for the same.^ If he appears, and denies the contempt, the court, in its discretion, may discharge the order, and no interro- gatories need be filed ;^ or may allow interrogatories to be filed, and refer it to a referee, to take the defendant's examination upon such interrogatories, and other proofs, in the same manner as upon his appearance upon an attachment which will now be noticed. Interrogatories. The statute provides that, upon the defendant appearing, or being brought into court, if he does not admit the contempt charged against him, the court must cause interrogatories to be filed, specifying the facts and circumstances alleged against such defendant, and requiring his answer thereto ; to which the defend- ant must make v^ritten answers on oath, v^ithin such reasonable time as the court shall allow. The court may receive any affida- vits or other proofs contradictory of the answers of the defendant, or in confirmation thereof; and upon the original affidavits such answers and such subsequent proof must determine whether the defendant has been guilty of the contempt.^ ' Albany City Bank v. Scliermerhorn, 9 Paige, 352. » 2 R. S., 537, § 5. 3 2 Barb. Ch. Pr., 278, and cases there cited. * Albany City Bank v. Schermerhorn, 9 Paige, 372. « Watson V. Fitzsimmons, 5 Duer, 629. « 2 R. S., 538, § 19. BY PROCESS OF CONTEMPT. 631 Unless the accused admits the contempt, the interrogatories must be filed, and answers obtained thereto, before the court can make any final order.^ Where the attachment is returned at special term, it is said, the interrogatories should be filed within two days of the return of the attachment.- A copy must be served upon the defendant ; and in one case, under the former practice,^ the court directed this to be done, and that the defendant put in written answers upon oath, and file the same within twenty-four hours. The interrogatories must be confined to the subject matter of the misconduct alleged, and not to any previous or other proceed- ing ; otherwise the defendant may except or demur to them.^ All the allegations, material to show the misconduct alleged, must be answered by the defendant. And so also interrogatories designed to show by the answers of the accused, the true nature and character of the misconduct, must be answered ; as whether the accused had voted for certain resolutions, the passage of which was relied on as evidence to show that his disobedience to an injunction was intentional and willful.^ • Upon the interrogatories being filed and answered, the court proceeds, in a summaiy manner, to decide whether defendant has been guilty of the misconduct alleged. And in determining that question, the court may receive and take into consideration the original affidavits, and also any other affidavits, or other proofs, contradictory of the answers of the defendant, or in confirmation thereof.^ It is considered, however, under the present practice, on the return of an order to show cause, not to be absolutely essential to the validity of a final order that interrogatories should be filed; but that it is sufficient in general, if the course pursued conforms ' Albany City Bank v. Schermerhorn, 9 Paige, 372. 2 Crary's Pr., citing People v. Munro, 15 How., 494. 3 People V. Rogers, 2 Paige, 103. ^ Albany City Bank v. Schermerhom, 9 Paige, 372. And see 1 Barb. S. C. R., 228. = People V. Compton, 1 Duer, 512. « 2 R. S., 537, § 19. 632 JUDGMENT, HOW ENFOECED. to the practice of the court, upon orders to show cause why relief should not be granted.' Reference to examine 'party and report as to contempt. Instead of proceeding in this summary manner, however, the court, in its discretion, may order a reference to some suitable and proper person, to take the answers of the defendant to the interrogatories, and to take and report such other evidence as either party may v^ish to produce before him, in respect to the alleged contempt.^ This V7as said to be the usual practice in Chancery ; ' aad it has, also, been followed since the Code.^ On such a reference, however, the referee, unless otherwise specially directed by the order of reference, is not authorized to receive the ex parte affidavits of witnesses ;° but the parties will be compelled to produce and examine the witnesses before the referee, so that they may be cross-examined by the adverse party.^ If the answers of the defendant to the interrogatories are short and evasive, they may be excepted to ; and if they appear to be insufficient, the interrogatories may be sent back to the referee, that they may be fully answered.' After the answers and proofs are taken, the referee reports the same to the court. He must, however, report the proofs and not merely his opinion or conclusions upon the proofs.^ The court then proceeds to determine the question of contempt as upon simple answers made and filed in court to the interrogatories ; and may, in its discretion, require notice of the hearing thereof to be given to the party proceeded against. Punishment for contempt. If the court shall adjudge the defendant to have been guilty of the misconduct alleged, and that such misconduct was calculated to, or actually did defeat, impair, impede, or prejudice the rights ' Watson V. Fitzsimmons, 5 Duer, 629. 2 2 Barb. Ch. Pr., 277 ; Orary's Pr., 407, and authorities cited. 5 See 2 Barb. Ch. Pr., 277, and cases cited in note ; 1 Hoff. Oh. Pr., 436. * See Neale v. Osborne, 15 How., 81. 5 Gummings v. Waggoner, 7 Paige, 603. ^ Ibid. ' 2 Barb. Ch. Pr., 277. = Albany City Bank v. Schermerhorn, 9 Paige, 372. BY PROCESS OF CONTEMPT. 633 or remedies of any party in a cause or matter depending in the court, it shall proceed to impose a fine, or to imprison him, or both, as the nature of the case may require.' The statute further provides, that if an actual loss or injury has been produced to any party by the misconduct, a fine shall be imposed sufficient to indemnify such party, and to satisfy his costs and expenses ; which shall be paid over to him on the order of the court.^ In all other cases the fine shall not exceed $250, over and above the costs and expenses of the proceedings.^ A further provision of the statute, which is peculiarly appli- cable to the case of enforcing an equitable judgment requiring the performance of some specific act, is, that where the miscon- duct complained of, consist in the omission to perform some act, or duty, which it is yet in the power of the defendant to perform, he shall be imprisoned only until he shall have performed such act or duty, and paid such fine as shall be imposed, and the costs and expenses of the proceedings.'' And further, that in all other cases, where no special provision is otherwise made by law, if imprisonment be ordered, it must be for some reasonable time, not exceeding six months, and until the expenses of the proceeding ai'e paid; and if a fine be imposed, until such fine be paid.^ If actual loss has arisen from the disobedience and contempt, the court has no discretion which will absolve it from imposing a fine sufficient to indemnify the injured party for the loss, and this too, whether the disobedience was willful or not.*' But the actual losses intended by the statute, are those which are pecuniary in their nature, and capable of being estimated as such, with reason- able certainty. And where there is no evidence that an actual loss has been sustained, the relator is entitled only to his costs and expenses.' But, even in such case, where the disobedience 1 2 R. S., 538, § 20. 2 2 R. S., 538, § 21. And see People v. Spalding, 2 Paige, 326. 3 R. S., 538, § 22. « 2 R. S., 538, § 23. =2 R. S., 538, § 24. « People V. Compton, 1 Duer, 512. And see 7 Paige, 364 ; 2 Id., 326 ; Neale ■ Osborne, 15 How., 81. ' People V. Compton, 1 Duer, 512. V. S. 80 634 JUDGMENT, HOW ENFOECED. has been willful, and designedly contemptuous, the court has the power and is bound to punish it as a criminal contempt, by a fine not exceeding $250, arid imprisonment not exceeding six months.^ In case of actual loss, a reference may be ordered to ascertain the amount. The court first determines the alleged misconduct, and then, if the party be guilty, sends it back to a further refer- ence to ascertain the damages.^ It is not proper to comprise the whole inquiry as to the misconduct and damages in one order.^ Order on conviction of contem'pt. On the conviction of a party of a contempt, in an action or proceeding to enforce a civil remedy, the court having determined and adjudicated upon the punishment to be inflicted, a special order is drawn up and entei-ed as in other cases. The order should recite the substance of the alleged misconduct, the adjudication of the court that the accused has been guilty thereof, and that such misconduct was calculated to, and did impair, defeat, impede and prejudice, the rights or the remedies of the prosecutor, or the parties in the cause. And it should direct the payment of a fine sufficient to indemnify the party injured, and to satisfy the costs and expenses of the proceeding. It should not direct the party to pay the costs of the proceedings to he taxed ; but the costs should be taxed and inserted in the order as a part of the fine imposed.'' It should direct to whom the fine is to be paid, or what is to be done with the money when paid ; and where any- thing remains to be done by the accused party to purge his con- tempt, the order should specify particularly what he is to do, and the manner in which it is to be done to entitle him to his dis- charge upon payment of his fine ; and, if the party is directed to be imprisoned, the order must also specify the duration of the imprisonment.* ' People V. Compton, 1 Duer, 512. ^ See Neale v. Osborne, 15 How., 81, in which this course was taken. A re- ference to ascertain the costs and expenses of the proceedings, may also be ordered in the discretion of the court. See 1 Duer, 546, note. 3 People V. Dygert, cited 1 Hoff. Ch. Pr., 441. * Albany City Bank v. Sohermerhorn, 9 Paige, 372. = Bid. See also People v. Rogers, 2 Paige, 103 ; 2 Barb. Ch. Pr., 280. BY PROCESS OF CONTEMPT. 635 In regard, however, to the order directing the payment of a fine sufficient to indemnify the injured party, it seems, it is not necessary to name the amount where a reference has been ordered to ascertain it, but the referee's report, when perfected, though made after the order, is to be regarded as part of it.^ Process of commitment. The defendant, it is said, may be committed either by an order of commitment, or by process, at the election of the relator, the term "process," including a rule or order of commitment.^ It is usual, however, on the entry of the order, to make out and issue process of commitment, upon Avhich the defendant is imprisoned.^ When the misconduct complained of consists in the omission to perform some act or duty which it is yet in the power of the party to perform, the process of commitment must specify the act or duty to be performed, and the amount of the fine and expenses to be paid.^ So, too, the process of commitment, as well as the order, should express the duration of the imprison- ment where the party is directed to be imprisoned for a specified time, or until a fine be paid.^ Sequestration. "Where a party, after being committed, persists in his refusal to do the act required, a sequestration may be issued to enforce the same (the proceedings upon which writ will be noticed in the following section), and his servants, agents, &c., may be prohibited from delivering his property to him, or applying it to his use on pain of contempt." Relief and discharge of 'party imprisoned. By the former statute, there was no authority to discharge a party in execution for a fine imposed for a contempt of court, or where he was committed for the non-performance of some act or duty which it was in his power to perform ; ' and the party could not be released unless by special act of the legislature. But by ■ Crary's Practice, 412, citing 1 Hill, 154. ^ jjj-^;^ 3 2 Barb. Oh. Pr., 280. ^ 2 R. S., 538, §§ 23, 24. 5 Ibid.,^ 25 ; People v. Rogers, 2 Paige, 103. « 2 Barb. Ch. Pr., 280, and cases there cited. ' Van Wezel v. Van Wezel, 3 Paige, 38. 636 JUDGMENT, HOW ENFOECED. the " act for the relief of persons imprisoned for contempts in certain cases,"i the court or tribunal ordering an imprisonment for a contempt, is authorized, in its discretion (in cases of inability to perform the requirements imposed), to relieve the party impri- soned, in such manner and upon such terms as it shall deem just and proper. Where a defendant, committed for violating an injunction, applied to be discharged on the ground that he had no means to pay the fine, the application was refused, because the defendant, instead of acknowledging his error, denied the offense of which he had been convicted, and thus impaired the credibility of his statement as to his inability to pay the fine.^ If the process of commitment has been irregularly issued, the defendant may, by motion or petition, apply to the court to set it aside or discharge it for the irregularity, with costs. But the motion must be made before the party complies with the process, otherwise he will be considered as waiving the irregularity.^ But, it is held, a party will not be discharged for a mere irregu- larity in the proceedings resulting in his committal, if the court or ofScer, before whom such proceedings were taken, had juris- diction.* Aijpeal. The order or decision of the court adjudging the defendant guilty of the contempt is appealable, such order being first filed and entered with the clerk.* The appeal is taken from the order, as in cases of special proceedings, and is substantially regulated by the Code under the provisions of the act of 1854," which will be hereafter considered.'' ' Laws of 1843, p. 8. =4 Sand. Ch. R., 575. 3 2 Barb. Oh. Pr., 281, 282, and cases cited. ^ 3 Abbott, 392. = See Crary's Practice, p. 418, citing 10 How., 147 ; 9 How., 304 ; 1 Duer, 453, note ; 5 Selden, 263. And see also appendix to same containing a variety of forms and precedents in proceedings for contempts. « Ibid., p. 418 ; Laws of 1854, p. 592. ' Post, chap, xviii, § 3. BY WKIT OF ASSISTANCE. 637 SECTION III. BY T7EIT OF ASSISTAJSTCE, IjrjTTNCTION, SBQXJESTEATION, ETC. ; AXD BY EEFEBBE, OE EECEn'EK, TO CAEET THE JUDGMENT INTO EFFECT. Having in the two preceding sections considered the mode of enforcing the judgment by the ordinary writ of execution, and also by process of contempt, I shall briefly notice in this sec- tion, some of those other processes and means to which courts of equity, sometimes, though not so frequently, resort, against a recusant or disobedient party, under its general authority, based upon the fundamental principle that a court of equity has power to issue all process necessary to carry its decrees into effectual execution.^ Among them is the ivrit of injunction when used as a judicial writ, commanding the party to obey the decree or judgment, by delivering up the possession of lands, etc. ; also the writ of assist- ance, ■ commanding the sheriff to put the party entitled into the possession of lands under the decree ; and, also, the writ of sequestration, used in aid of the process for contempt, or where that process is ineffectual, or cannot be resorted to ; by which writ the property of a recusant defendant, real and personal, is placed in the hands of sequestrators, to be held and kept until he shall have obeyed the judgment of the court. Writ of assistance. This writ, under the former practice, was ordinarily the first and only process for giving possession of land under an adjudica- tion of the court.^ It has not been abolished, nor has any substitute been provided for it by the new practice, and it remains as before a necessary, and in some cases indispensable instrument, in carrying into full effect a judgment of the court. As was mentioned in the first section of this chapter, where a judgment is simply for the delivery of the possession of real estate, either with or without a recovery of mesne profits, or ' Ludlow V. Lansing, Hopk., 231 ; Kershaw v. Thompson, 4 John. Oh. R., 610, and cases there cited. 2 Valentine v. Teller, Hopk., 422. 638 JUDGMENT, HOW ENFORCED. damages for withholding the same, the ordinary writ of execution, which issues of course, is the proper remedy, and a writ of assist- ance is unnecessary. But where a judgment directs a sale of the property, or some other act to be done in respect to it, or where some person, other than a party, becomes entitled to the posses- sion under the judgment, then the writ becomes proper and necessary. One of the most common uses of this summary process is to obtain the possession of real estate on a foreclosure sale. The foreclosure judgment contains a provision that the purchaser be let into possession on production of the sheriif 's or referee's deed, and a certified copy of the order confirming the report of sale.^ .When these are shown to the party in possession, accompanied by a demand of the possession, which he refuses to give, a writ of assistance will be granted to enforce possession.^ This, how- ever, is to be understood as authorizing the writ to issue against a person in possession only where he is party to the suit, or has come into possession under, or with the assent of, those who are parties subsequent to the commencement of the suit, and filing notice of lis -pendens; for the court has no jurisdiction to deter- mine in this way the rights of third persons, claiming adversely, nor of persons in possession at the time of commencing the suit, and who are not made parties thereto.^ The writ of assistance may also issue in all other cases against a party, or those claiming under a party subsequent to the com- mencement of the suit, to give possession of lands where the delivery of such possession is made a part of the judgment, or is consequent thereon, whether it be on a sale of such lands, or a division or partition thereof between the parties. It may issue, also, where lands have been sequestrated under the order of the court, and the sequestrators are obstructed by the party, or those claiming under him, in their attempts to take possession of the lands.* ' See Sup. Court, Rule 72. " Frelinghuysen v. Golden, 4 Paige, 204; 2 K. S., 191, ^ 158 (orig. § 152). ^ Ibid. Boynton v. Jackway, in Chancery Aug. 1, 1843, cited 1 Barb. Ch. Pr., 532. « 1 Dan. Ch. Pr., 643; 1 Barb. Ch. Pr., 72. BY WEIT OF INJUNCTION. 639 Writ, how and when issued. Unlike an ordinary execution, the writ of assistance does not issue of course, but only on the order of the court. The party entitled to it must apply for it by motion, at special term, on the usual notice to the adverse party. The application may be made either by petition, or on affidavits, vphich must set forth the facts shovs^ing the party entitled to the writ. Thus, in case of the refusal to deliver premises purchased at a foreclosure sale, the petition or affidavit must show that the purchaser has received from the sheriff or referee his deed of conveyance, describing the premises as set forth in the deed ; that the order confirming the report of sale has been made and entered, and has become absolute; that the deed and a certified copy of the order were shown to the person in possession, and a demand of the possession made, and a refusal to deliver the same. If the application is granted, an order allowing the writ to issue is made and entered in the same manner as other interlocu- tory orders in the suit,' and a copy served on the adverse party, whereupon the writ issues. The writ is directed to the sheriff of the county, and must describe the premises as set forth in the motion papers, and in the deed of conveyance ; and the description must be sufficient t 2 R. S., 455, § 54. » 2 R. S., 455, § 55. CHAPTER XVIII. OF APPEALS IN THE SUPREME COURT IN EQUITY ACTIONS AMD PROCEEDINGS. SeotioQ I. General rules applicable to and requlatixg appeals. II. Appeal from ihterlocutort order. III. Appeal from order or judgment in special proceedings made at special TERM, or by a county COURT OR A COUNTY JUDGE. IV. Appeal frojc surrogate's decision or decree. V. Appeal from final judgment in an equity action. SECTIOISr I. GENERAL EULES APPLICABLE TO AND EEGULATING APPEALS. The only mode of reviewing a judgment or order in a civil action, is that prescribed by the Code.^ This provision of the Code applies to every class of appellate cases in civil actions. It does not apply to appeals from decisions, orders and de- crees of Surrogates' Courts." These are still regulated by the former practice and present rules of the court. Nor is it properly applicable to appeals from orders or judg- ments id special proceedings,^ though by a recent statute,'' certain sections of the Code, relative to appeals, are made ap- plicable to appeals in such cases; as will be more fully noticed in a subsequent section of this chapter. And by the last amend- ment to section 344 of the Code,^ an appeal may be taken from an order affecting a substantial right, in a special proceeding made by a county court or county judge. This also will be hereafter considered,'' so far as it relates to orders made in pro- ceedings of an equitable nature. TV/io may appeal. Section 325 of the Code provides, that " any party aggrieved may appeal." And this is precisely the general doctrine as to ' Code, § 323. 2 Code, § 471. ^ Ibid. In re Cooperstown Plankroad Co., 3 Code R., 148. * Laws of 1854, page 592. = Amendments of 1860. 'See post, section 3 of this chapter. 652 APPEAL. appeals in equity.' And any one of several parties who is aggrieved by the judgment or order, or some part thereof, may appeal, whether his co-plaintiffs or co-defendants join in the appeal or not.^ And this was also the rule in Chancery.^ So one party aggrieved by one part of a judgment or order, and another party aggrieved by another part, may each bring his separate appeal. Such cross appeals, when perfected, may be brought on to be heard at the same time, and oae order made in both.* Several appeals from different parts of the same order or judg- ment, may thus be brought to hearing at the same time. There are cases, it is said, in which the original appeal has been dis- missed, and relief has been granted under the cross appeal ; and sometimes both appellants have succeeded in part in their respective appeals.* A person who has no interest in the subject matter of the suit, or whose interest has ceased since its commencement, cannot bring an appeal." Nor in general can he bring an appeal unless he is a party, or represents a party in the court below, although he may have an interest in the question.' It is sufficient, how- ever, to authorize an appeal, if the appellant represents a deceased party to the suit.^ But in a certain class of equity cases, it has been considered that it is not absolutely necessary that the person who appeals should be actually a party to the record, provided he has an interest in the question, which may be affected by the decree or order appealed from ; as, for example, a purchaser under a decree of sale, where an order is made setting aside his bidding and directing a new sale; or a creditor coming in after judgment before the master (referee), and having a claim disallowed on exceptions to the report, may appeal from the order disallowing ' 1 Barb. Ch. Pr., 383. 2 Mattison v. Jones, 9 &ow., 152. s 1 Barb. Ch. Pr., 382. < Ibid., 397; Hawley v. James, 16 Wend., 61. = Ibid. ^ Reid V. Vanderbeyden, 5 Cow., 719; Idley v. Brown, 11 "Wend., 238. ' Steele v. White, 2 Paige, 478 ; 1 Barb. Ch. Pr., 382, and cases cited. See also E. B. V. E. C. B., 8 Abbott, 44. ^ Beach v. Gregory, 2 Abbott, 209 ; Martin v. Kanouse, Id., 392. WITHIN WHAT TIME TAKEN. 653 the exceptions ; and so in similar cases.^ But it is only in cases in which the interest of the party wishing to appeal will be hound hy it, that an appeal is permitted at the instance of a party not on the record ; in no other case can he be considered as aggrieved.^ In general, a party in whose favor judgment is rendered, cannot be said to be aggrieved by it, and therefore cannot apply to reverse it.^ But this is not to be regarded as a rule universally applicable, especially in equity cases, where it has been always the practice to allow an appeal from part of a decree, though the residue thereof was favorable to the party appealing ; and section 327 of the Code, clearly recognizes the same practice.^ And a party who has judgment for less than he is entitled to, is aggrieved and may appeal.* But a party who is aggrieved by one part of the decree only, cannot, by appeal, call in question another part of it in which he is not interested, although the appeal is broad enough to embrace it.^ Nor can a party be allowed to appeal piecemeal, that is, he cannot appeal from part of a decree at one time, and afterwards appeal from another part, the rule being that if he appeals from a part of the decree, he admits the residue to be corrects But a voluntary abandonment or dismissal of one appeal has been held, since the Code, by the Court of Appeals, to be no bar to a further appeal by the same party, within the time prescribed by statute.^ Within what time appeal must be taken. An appeal from a judgment rendered by a single judge, or on report of referees, must^ by section 332, of the Code, be taken within thirty days after written notice of the judgment shall have been given ; and, by the same section, in connection with section 349, an appeal from an order, made in or out of court, must be > See cases cited, 1 Barb. Ch. Pr., 382. 2 Ibid. Winchelsea ■;;. Garretty, 1 My. and Keen, 253. 3 Fairbanks v. Corlies, 1 Abbott, 155. < See also 1 Monell Pr., 737. •■= Rankin v. Pine, 4 Abbott, 309. » Cuyler v. Moreland, 6 Paige ; Idley v. Brown, 11 Wend., 227 ; Hone v. Van Sohaack, 7 Paige, 221. ' 1 Barb. Ch. Pr., 388. 8 Craft V. Ives, Oct. term, 1852. See Voorhies' Code (6th ed.), p. 461, n. 654 APPEAL. taken within the same time. This also applies to appeals from orders in special proceedings.^ If the party obtaining the judgment omit to perfect it, the other party may compel him to do so, in order that aii appeal may be taken ;^ for, there can be no appeal until the judgment is per- fected in form and entered.^ In like manner there can be no appeal from an order until it is entered, and the moving papers filed with the clerk.* This is equally true of an order made out of court on notice ; and for the purpose of an appeal, any party affected by such order may require it to be entered with the clerk, and it shall be entered accordingly.^ It is now considered well settled, that it is not in the power of the court to extend the time to appeal beyond that prescribed by statute, or allow an appeal when the time has been suffered to expire." It has been considered improper for the court to attempt to effect the same thing indirectly, by ordering a new date to the judgment.^ And the court has refused to set aside a judgment, for the mere purpose of relieving a party from the loss of the remedy by appeal, although from no fault or neglect on his part.^ But in order to limit the time to appeal to thirty days, after notice of the judgment or order, there must in all cases be a service of written notice ; actual knowledge is not sufficient." Until such written notice of the judgment or order is served, the • ' Laws of 1854, p. 592, § 2. As to time of appeal from orders, etc., of Surro- gates' Courts, see post, section 4. ^ Bank of Geneva v. Hotchkiss, 5 How., 478. 3 Sherman v. AVells, 14 How., 527. * Smith 17. Dodd, 3 E. D. Smith, 215 ; Marshall v. Francisco, 10 How., 147. = Code, § 350. ^ See cases cited in Voorhies' Code to section 332, and see Fry v. Bennett, 16 How., 385. But see Toll u. Thomas, 18 How., 324, where it is said that the court, though not a judge at chambers, may, under section 174 of the Code, give a party leave to bring an appeal after the time for appealing has expired. ' Humphrey v. Chamberlain, 1 Kern., 274. " Marston v. Johnson, 13 How., 93 ; and see this subject fully discussed by WooDRurr, J., in Fry v. Bennett, 16 How., 385. ' Staring v. Jones, 13 How., 423. FROM WHAT JUDGMENTS AND ORDERS. 655 time to appeal continues unlimited.i And it has been held, that a party is not limited as to time of appeal from his own judgment, entered by himself, until served with written notice by the ad- verse party .^ The notice of appeal must be served as well on the clerk as the adverse party, within the thirty days.^ From what judgments and orders appeals may be talcen. The judgments from which an appeal may be taken are final judgments; and, therefore, where a decision is made which is merely interlocutory, leaving something to be done, such as an accounting, etc., no appeal can be taken from the judgment* So, it seems, that until the costs are finally adjusted and inserted in the judgment, it is not sufficiently perfected in form to allow an appeal.^ And a judgment is not final, so as to be the subject of appeal, so long as there may be future litigation under it. Thus, it is held, in the Court of Appeals, that a judgment for the sale of lands, and the disposition of the proceeds, in accordance with the report to be made upon a reference therein ordered, to ascertain the shares of the respective parties, is not final, so as to be the subject of an appeal to that court, though no provision is made in the judgment for a review of the report, or for suspend- ing the actual payment of the moneys to give an opportunity to appeal.'' And, it is said, the judgment from which an appeal may be taken to the general term, means the same thing as a judg- ment, from which an appeal may be taken to the Court of Appeals.^ Under the former practice, an appeal would not lie from a decree entered by consent,' or by default.^ Whether the Code, J Fry V Bennet, 6 How., 402. 2 Rankin v. Pine, 4 Abbott, 309. = Westcott v. Piatt, 1 Code R., 100. * Lawrence v. Farmers' Loan and Trust Co., 15 How., 57 ; D'lvernois v. Leavitt, 8 Abbott, 59 ; McMahon v. Allen, 7 Abbott, 1. 5 Sherman v. Wells, 14 How., 527 ; and see ante, pages 517-519, as to what judgments are considered final judgments. « Tompkins v. Hyatt at al, 19 N. Y. E., 534 ; Harris v. Clark, 4 How., 78 ; Cruger v. Douglass, 4 How., 215. See also Swartwout v. Curtiss, 4 Comst., 415. ' Lawrence v. Farmers' Loan and Trust Co., 15 How., 57. " Atkinson v. Manks, 1 Cow., 691. " 16 Wend., 369 ; 26 Wend., 249. 656 APPEAL. which gives an appeal upon the law from a judgment "in all cases " (section 348), authorizes such an appeal or not, has not, to my knowledge, been decided. It has been held, however, that an appeal from an order entered by consent, or on default, is not authorized.' In regard to final judgments, entered upon the report of re- ferees, or the direction of a single judge, an appeal upon the law may be taken in all cases, and upon the fact, when the trial is by the court or by referees.^ This embraces all suits of an equitable nature. The review therein is by the appellate court, on ap- peal from the judgment, and cannot be had in any other way. As to the review of specific question of fact in equity cases, which have been ordered to be tried by a jury as a substitute for a feigned issue, this is not by appeal,^ but is specially provided for by the 33d of the present rules of the court. So also in cases of a reference other than of the whole issue. The practice in such cases has been already considered on a former page.^ Tn regard to orders, an appeal is not a matter of course, but is allowed only in the cases specified in section 349 of the Code. I have heretofore fully considered the distinction between a final judgment, and an order or mere interlocutory decision of the court,^ and it is not necessary to enter upon any further discus- sion of the subject in this place. It is sufficient here to say that, wherever the decision sought to be reviewed is not a final judg- ment, within the definitions heretofore given, and is not embraced in and forms no part of such judgment,' the appeal is from an order merely, and the right of appeal is to be determined bv the principles governing the practice of the court in the latter class of appeals. I do not propose to enter into a review or analysis of the various decisions since the Code respecting the right of appeal from an order. Most of them will be found collected in the valuable notes 1 Boyd V. Bigelow, 14 How., 511. = Code, § 348. ' Though an appeal may be taken from the order granting or refusing a new trial. See ante, page 510. ^ Ante, pages 506-510. ^ Ante, pages 513, et seq. ' See Lawrence v. Farmers' Loan and Trust Co., 15 How., 57. FEOM WHAT JUDGMENTS AND ORDERS. 657 to Voorhies' Code, under section 349, I barely remark, that they seem to me to establish precisely the general rule which prevailed in the Court of Chancery in regard to such appeals, namely, that the only case in which a party cannot appeal from an order of the court in an action is where such order is merely the result of the exercise of discretion on the part of the judge, in a case where the matter was fairly a subject for the exercise of discretion ; for the court would not allow an appeal to be taken from the discre- tion of one judge to that of another.^ Perhaps to this may be added the further qualification, referred to in some of the cases since the Code, that, not only is an appeal not allowable from an order, in regard to matters resting in discretion merely, but it is not allowed, also, from an order relating to mere matters of prac- tice, or forms of proceeding.^ In all other cases (subject, how- ever, to another qualification which will now be considered), the order may be said, within the meaning of the Code (section 349), to " involve the merits of the action," or to " affect a substantial right," and is appealable. The qualification referred to is one of greajt practical import- ance, and must not be lost sight of in determining what interlo- cutory orders or decisions are appealable. An order from which an appeal may be taken, must be such an order as is defined by section 400 of the Code, namely, a " direction of a court or judge, made or entered in writing, and not included in a judgment." A mere interlocutory decision upon the trial by the court, dis- posing of the case, except that a reference is ordered to take an account before final judgment, it has been held, is not such a decision or order as can be appealed to the general term for the purpose of reviewing decisions made at the trial, because such interlocutory decision is to become part of, or, as the Code expressed it, is to be "included in the judgment," and, therefore, no appeal, to review the merits of such decision, can be taken ' 1 Barb. Oh. Pr., 376. And see various cases cited, pp. 376-381, in which the rule is applied. 2 St. John V. West, 4 How., 331 ; Kruger v. Douglass, 2 Code R., 123 ; 4 How., 215 ; Tallman v. Hinman, 10 How., 90 ; Tracy v. N. Y. Steam Faucet Co., 1 E. D. Smith, 357. V. S. S3 658 APPEAL. until after final j udgment is entered.' As was said in that case,^ the " order from which an appeal is allowed by section 349, when it 'involves the merits of the action, or some part thereof, or affects a substantial right,' must be something different from a decision daring the actual progress of the trial disposing of some claim made by either party affecting the relief to be granted, and something other than a conclusion of law included in the decision on which the judgment, in whole or in part, is to be entered." The interlocutory decision, therefore, if to be embraced in, and to become a part of, the final judgment, can be reviewed only on appeal from the judgment. And on the same principle, the order founded on such decision must be reviewed in the same way, and is not directly appealable as an order, except, perhaps, for the purpose of reviewing the competency of the court to make the order,' and the lilse.* The proceedings before the referee upon such order, and his report thereon, is altogether another matter. If a review of such proceedings and report is desired, it must be by exceptions to the report, and bringing on the same to argument as a special motion, in the manner heretofore pointed out ; ^ and such review cannot be had in any other way, inasmuch as an appeal from the j udgment does not bring such questions before the appellate court for review.^ From the order made at special term on the hearing of such exceptions, an appeal may be taken to the general term. Appeal, how nmde. The Code provides a uniform mode of appeal in all civil actions, legal as well as equitable. It abolishes the common law writ of error ; ' and provides a sinjpler and easier mode, applicable to all cases, as well appeals from orders, as from judgments in civil actions,* namely, ■" by the service of a notice in writing on the ' Lawrence v. Parnjers' Loan and Trust Co., 15 How., 57. '^ Ibid., page 60, per Bosworth, J. ^ Ibid., page 62. ' See ante, page 521. ^ Ante, chap, xy., section 7. « Ehlen v. Rutgers Fire Ins. Co., 2 Bosw., 482. ' Code, § 323. ' It applies also, by the act of 1854 (Laws of 1854, p. 592), to appeals from orders or judgments in special proceedings ; but does not include appeals from surrogates' decrees or decisions. (See post, § 4.) NOTICE OF, AST) SERVICE. 659 adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same, or some specified part thereof."^ What the Jiotice must contain. The notice must be in writing, and must contain correctly the names of the parties, and should describe the judgment accurately. It need not, however, state the grounds upon which the appeal is brought. And if the whole judgnient or order is appealed from, and the party appealing intends to review only a part of it, he should specify accurately the part or portion appealed from.^ Notice of appeal, how served. Though the language of the Code is that the notice must be served on the adverse party, yet, if he has an attorney in the action, the notice must be served npon such attorney, and not upon the party .^ The service may be personal, or by mail, and is governed by the same rules as the service of other notices which have been heretofore considered.^ And it may be upon the attorney, by mail, on the last day for bringing the appeal, though it should fail to reach him until after the time has expired. Such a service upon the clerk of the court, however, has been held irre- gular ; though the court has power, and will allow an amend- ment in such case so as to give the party the benefit of his appeal.* This is in pursuance of the last clause of the section of the Code we are considering (section 327), which provides that, " when a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit, through mistake, to do any other act necessary to perfect the appeal, or to stay proceedings, the court may permit an amendment on such terms as may be just." This, it has been held, authorizes an amendment in all cases of an appeal from an order or judgment where there are particular defects in the appeal which do not destroy its substantial character." 1 Code, § 327. » 1 Monell Pr., Ti9. 3 Crittenden u. Adams, 1 Code R., N. S., 51; 5 How. 310; 1 Monell Pr. (2d ed.), 740. ' Ante, pages 437-439. ^ Crittenden v. Adams, supra. ^ Fry V. Bennett, 16 How., 385. See also Mills v. Thursby, 11 How., 129 ; Sternhaus v. Schmidt, 5 Abbott, 66. 660 APPEAL. But where there is a failure to give notice of appeal in good, faith, there, can be no amendment.^ Nor can an amendment be allowed to a notice of appeal from a judgment so as to make it also a notice of appeal from an intermediate order, after the time for appealing from such order has expired. This would be indirectly extending the time to appeal from such order, which it is held the court has no power to do.^ Title of suit on appeal. The party appealing shall be known as the appellant, and the adverse party as the respondent.^ Hence the plaintiff's name is always placed first in the title: A. B., appellant (or respondent), against C. D., respondent (or appellant).* Effect of Of -peal as a stay of proceedings. An appeal from an order, it is now generally conceded, is not per se a stay of proceedings.^ The court, however, in its discre- tion, may order a stay until the appeal be heard. An appeal from a judgment, does not, by the provisions of sec- tion 348, stay the proceedings, unless security be given as upon an appeal to the Court of Appeals, and such security be renewed, as in cases required by section 335,* on motion to the court at special term, or unless the court or a judge thereof so order, which order may be made upon such terms . as to security, or otherwise, as may be just, such security not to exceed the amount required on an appeal to the Court of Appeals. The appeal may be taken from the judgment to the general term without giving any security whatever ; ' but in order to make it effectual as a stay of proceedings, the appellant must either give the security, or obtain an order for a stay from the court or a judge.^ ' The People v. Eldridge, 7 How., 168. ^ p^y v. Bennett, 16 How., 385. 3 Code, § 326. * 1 Monell Pr., 739. ^ Hicks V. Smith, 4 Abbott, 285 ; Johnson v. Scriven, 3 Abbott, 208 ; Forbes v. Oaks, 2 Abbott, 120 ; Story v. Duffy, 8 How., 487. See contra, Cook v. Pomeroy, 10 How., 103, and cases cited in Voorhies' Code (6th ed.), page 486. * That is when the sureties have become insolvent. ' Parsons v. Suydam, 4 Abbott, 134 ; 14 How., 511. ,* Staring v. Jones, 13 How., 423. STAY OF PROCEEDINGS ON. 661 The sections of the Code ^ which prescribe the security to be given, as the condition of staying the proceedings upon a judg- ment, and the terms upon which such proceedings will be stayed, correspond substantially with the provisions of the Revised Statutes relative to appeals from orders and decrees in equity.^ Section 336, prescribing the condition upon which proceedings shall be stayed on a judgment directing the assignment or delivery of documents, or personal property ; section 337, on a judgment directing the execution of a conveyance or other instrument ; and section 338 on a judgment directing the sale or delivery of pos- session of real property, are almost identical with the correspond- ing provisions of the Revised Statutes relative to appeals in equity suits ; as is also section 335 relative to security upon an appeal from a judgment for the payment of money only.^ These sections of the Code are too plain and explicit to require comment. An undertaking duly executed and filed pursuant thereto on an appeal from a judgment of the special term, in the several kinds of judgments mentioned therein, " stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein." * The same section (Code, § 339), further provides : " but the court below may proceed upon any other matter included in the action, and not affected by the judg- ment appealed from." This also is identical with the Revised Statutes relative to appeals in Chancery.^ In regard to appeals from judgments of the special term, not coming within either of the four classes of cases pointed out in sections 335, 336, 337 and 338 of the Code, above referred to, the proper course to pursue, if a stay of proceedings is desired, is for the appellant to obtain an order for such stay from the court or judge under the provisions of section 348,® upon such terms as ' Code, §§ 336, 337, 338. " 2 R. S., 605, 606, §§ 82, 83, 84, 85. 3 2 R. S., 605, § 82. ' Code, § 339. ^ 2 R. S., 607, § 86. " I consider section 342, which makes the giving of the ordinary undertaking of $250 on appeal a stay of proceedings, in all cases where the Code does not specifically require security, as applicable exclusively to appeals to the Court of Appeals. Section 348, allowing appeals in the Supreme Court, makes no provi- sions for such a stay of proceedings. 662 APPEAL. to security, &c., as sucli court or judge may think proper to im- pose. But if the order is granted by a judge out of court, it cannot be ex parte, if the stay be for more than twenty days. Notice to the opposite party must be given or an order to show cause obtained.^ Precisely the same course should be taken if the party desire a stay on an appeal from an order. Such an appeal may be taken without giving security.^ But, as above remarked, it does not stay the proceedings,^ unless security be given,^ or unless the court or a judge so order. While the Code, which has followed, as we have seen, most of the other provisions of the Revised Statutes relative to security upon appeals in equity suits, has not in terms adopted the sec- tion of the statute which relates to the giving of security and stay of proceediugs on appeals from interlocutory orders, yet I think the provisions of that section of the statute are not alto- gether disregarded in the present practice, or lost sight of by the judge or court in fixing the terms upon which a stay is granted. They are as follows, namely,^ that if an appeal be made from an interlocutory order, in a suit brought either for the payment of any sum of money, or to compel the delivery or assignment of any securities, evidences of debt, &c., or to compel the execution of any conveyance or other instrument, or in causes in which a decree may be made for the delivery of the possession, or for the sale of any real property ; this court may, in its discretion, require the doing of such other acts and things by the appellant as in similar cases are required to be done by him to stay the execu- tion of a final decree, on an appeal therefrom. And until such act or things so required to be done shall be performed, an appeal from an interlocutory order shall not stay any proceedings there- on. And the 116th rule of the Court of Chancery adopts these provisions of the statute, and makes them applicable to appeals ' Steam Navigation Co. v. Weed, 8 How., 50. 2 Emerson v. Burney, 6 How., 32 ; Cook v. Pomeroy, 10 How., 103 ; Allen v. Johnson, 2 Sand., 629. ^ Ante, page 660. ' Bacon v. Reading, 6 Duer, 622. 5 2 E. S., 607, § 87. WHAT QUESTIONS ARE RAISED BY. 663 from a Vice-Chancellor to the Chancellor, with the necessary variations as to form merely. Such was the customary practice in Chancery in regard to a stay of proceedings upon interlocutory orders, and it furnishes a safe rule (within the discretion of the court or judge), in similar cases under the present practice. An appeal from an order dissolving an injunction, does not uphold the injunction, or suspend the operation of the order ; though, where there is probable cause for appealing, and no parti- cular injury can arise from the delay, a temporary injunction may be granted until the appellant can be heard before the appellate court.' And if an order granting an injunction is appealed from, the inj unction will not be dissolved by the appeal ; although the present or immediate power of the court below, to punish the party for a breach of the injunction, pending the appeal, would probably be suspended until after the appeal was disposed of.^ An appeal from an order refusing a resale of premises sold by a referee, will not of itself prevent a purchaser from completing his purchase, without a special order obtained, upon giving security for the payment of the rents and profits of the premises in the meantime, and that no waste shall be committed.^ Where an appeal is perfected from an order or judgment, the court below, it seems, has no further jurisdiction over the matter, and cannot modify an injunction, which, by the judgment or order appealed from, was ordered to be issued.^ And if a party appealing from an order is proceeding to carry it into effect, notwithstanding the appeal, application may be made to the court below by the other party to stay such irregular proceedings.^ What questions are raised by an appeal, and power of the court thefeon. An appeal from an interlocutory or decreetal order, brings up only the order itself, or such parts of it as are complained of; and though such order be consequent upon a final decree or 1 Hart*. Mayor, &0., of Albany, 3 Paige, 381; Graves v. Maguire, 6 Paige, 379. 2 Jiyid^ 3 American Ins. Co. v. Oakley, 9 Paige, 496. < Sea Ins. Co. v. Ward, 20 Wend., 588. = Vail v. Remsen, 7 Paige, 607. 664 APPEAL. judgment, an appeal from it will not authorize the appellate court to reverse or alter the judgment.' If only a portion of an order or judgment is appealed from, as specified in the notice of appeal, the court will not review any other portions of such order or judgment.^ Nor will an appeal be heard and decided upon a ground, which has not been sub- mitted to and passed upon by the court below ;^ nor upon exceptions taken on the trial, to which the attention of the court was not directed on the argument of an appeal from the judgment.* It was, thought, under the former practice, that on an appeal from a final decree, the merits of an interlocutory decree, pre- viously made in the same suit, could not be inquired into, especially where the time for appealing from the interlocutorj'- decree has expired.^ That is to say, where a question has been definitely disposed of by an interlocutory decree or order, not appealed from, previous to the final decree, an appeal from such final decree does not bring before the appellate court for review such interlocutory order.* And on the same principle, in case of an app6al from an order, carrying into efiect a previous interlo- cutory order which has not been appealed from, the appellant was not entitled to have the order appealed from reversed, upon the ground that the previous order, not appealed from by him, was erroneous.' The rule seemed to be founded upon the prin- ciple, that a party complaining of an interlocutory order, must take his appeal within the time limited by statute, and obtain a review of such order, otherwise he is held to acquiesce in its correctness, and cannot question it on an appeal from the final judgment.^ ■ Taylor v. Read, 4 Paige, 561. '^ Sands ii. Codwise, 5 John., 531 ; Kelsey v. Western, 2 Oomst., 500. 3 2 Hoff. Oh. Pr., 53; I Barb. Oh. Pr., 396, and cases there cited. ^ Oummings v. Morris, 3 Bosw., 560. -" Bank of Orange Oo. v. Fink, 7 Paige, 87. " Mapes V. Ooffln, 5 Paige, 296 ; Kane v. Whittick, 8 Wend., 219. '' Copous V. Kauffman, 8 Paige, 583. ^ See this question discussed by the Chancellor, in Bank of Orange Co. v. Fink, 7 Paige, 87. WHAT QUESTIONS AEE RAISED BY. 665 Nothing more, however, seems to have been intended by this practice, than that the appeal from the final decree did not, of itself, bring up the prior unappealed interlocutory order, directly before the court for review. For, the court might still modify such prior order so as to make it consistent with the decree rendered on the appeal ; and this was done in cases where the different orders or decrees were so blended together, that the decision upon the one appealed from, necessarily involved a con- sideration of the other.i In such cases a review of the prior inter- locutory order became essential. I do not know that the practice in this respect, so far as the review of judgments and orders in equity cases is concerned, is much changed by that section of the Code, which provides (Code, § 329), that "upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment." This section certainly does not allow, on an appeal from the judgment, an indiscriminate review of all interlocutory orders, even such as may be said in some sense to " involve the merits." The orders which may be so reviewed, must be also orders ^^necessarily affecting the judgment ; " and also, as I have just shown, decisions and orders which are not a part of, or "included in," the judgment.^ Thus, it was held, under the former practice (and I suppose such is still the rule), that there is no such necessary connection between a decree confirming a master's report upon a reference, and the previous order directing the reference and settling the principles upon which it is to be conducted.^ And the Court of Appeals has decided, since the Code, that an intermediate order denying a motion to stay proceedings, is not reviewable in that court on an appeal from the judgment.* So in the Superior Court, it is held, that on an appeal to the general term from a judgment. 1 Kane v. Whittick, 8 Wend., 219-235 ; 1 Barb. Ch. Pr., 386. ^ See ante, pages 657, 658. Also Lawrence v. Farmers' Loan and Trust Co., 15 How., 57. 3 Kane v. Whittick, 8 Wend., 219. See Bhlen v. Kutgers Fire Ins. Co., 2 Bosw., 482. ' « James v. Chalmers, 2 Seld., 209. V. S. 84 666 APPEAL. the court will not review a special term order denying a motion for a new trial : such an order can only be reviewed on an appeal from the order itself.' Where the order, however, necessarily affects the judgment, that is, where the erroneous judgment is, in whole or in part, the result of the erroneous order, there the latter may be reviewed on an appeal from the judgment; as, for example, in case of an order overruling a demurrer as frivolous, or an order striking out a pleading as sham or irrelevant,^ and the like. As to the power of the court on an appeal, it is a general rule that, upon an appeal from any order or judgment of an inferior tri- bunal, the appellate court is to make such a judgment as the court below ought to have made when the judgment or order appealed from was entered.^ And the Code provides (section 330), that " upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed, the appellate court may make complete restitution of all property and rights lost by the erroneous judg- ment." The court is thus clothed with power, not only to render a simple judgment of affirmance, or of reversal, ordering, if neces- sary or proper, a new trial, but also to modify the judgment or order appealed from, and as to all or any of the parties. It may be reversed as to one defendant who appeals, without affecting the judgment as to another defendant who does not appeal, in cases where a several judgment below would be proper.* But it cannot be affirmed as to a part of the amount recovered, and reversed as to the residue, where a new trial is ordered as to the part which is reversed.^ ' Marquat v. La Farge, 5 Duer, 559 ; Brown v. Richardson, 1 Bosw,, 402. And see Try v. Bennett, 16 How., 385. ^ Oowles V. Cowles, 9 How., 361. 3 Bank of Orange Co. v. Fink, 7 Paige, 87. * Geraud v. Stagg, 10 How., 369 ; 4 B. D., Smith, 27. 5 Story V. New York and Harlem R. R. Co., 2 Seld., 86. PARTIES TO. 667 Parties to an appeal, and who entitled to he heard. All parties interested in sustaining the judgment or order appealed from, are entitled to be heard in its support. But no party, except the appellant, can be heard in support of the appeal. If, therefore, any party who is not included as a co- appellant in a notice of appeal, is desirous of appealing, he must give a separate notice ; otherwise he will be precluded from all benefit of the appeal, even though the result of it should be to show that the judgment was completely wrong, as well against him as against the appellant. Thus, where one of several defendants appealed, and an order was made dismissing the bill upon grounds which were equally applicable to other defendants who did not join in the appeal, it was held, that such other defendants could have no benefit of the order, although it rendered the decree useless.^ Nor can the appellate court reverse a decree against a party who has not appealed ; even though the court below had no jurisdiction to make the decree against him.^ If any of the parties have died after judgment, the suit must be revived, or the representative of the deceased party substi- tuted, for the purpose of prosecuting or defending an appeal. Under the former practice, where one of the parties had died, the Chancellor would not proceed to the hearing of a cause on appeal until the suit was revived. But, where the fact of the party's death was unknown, and the cause was heard and decided on appeal, it was held that a decree might be entered nunc pro tunc, as of a day previous to the death of the complainant, and after the appeal was entered.^ And the practice is no doubt still the same. In another part of this work,* I have considered the subject of the abatement and revivor of equity suits, and the substitution of parties therein on motion, as authorized by section 121 of the ' 1 Barb. Ch. Pr., 395, citing Tasker v. Small, 1 C. P. Coop. Rep., 255. 2 Ibid. Tate v. Liggot, 2 Leigh, 84. ^ Vroom V. Ditmas, 5 Paige, 528. And see on this subject, ante, pages 308, 309, and authorities there cited. • Ante, pages 302, et seq. 668 APPEAL. Code, in connection with the provisions of the Revised Statutes on that subject, and it is unnecessary to add anything further in regard to it in this place. These provisions are fully applicable in cases of appeals from a judgment or order in an equity, as well as a common law action. It is also considered that the provi- sions of the Revised Statutes, in respect to the parties, by and against whom writs of error may be brought, the joinder of parties, and the proceedings upon the death or marriage of parties, apply to appeals brought under the Code, there being nothing therein inconsistent with the provisions of the Code.^ Dismissing appeal. If the proper steps have not been taken to perfect the appeal, it is an irregularity, and a motion may be made to dismiss the appeal for such irregularity. Thus, if the appeal is made after the time allowed for appeal- ing, the objection should be taken by motion to dismiss, and it cannot be taken at the hearing.^ Answering to the appeal was considered a waiver of formal objections.^ Where the appeal bond was not duly acknowledged, or exe- cuted, according to the provisions of the rule, the appeal was irregular, and might be dismissed for that cause.^ This is, no doubt, still so in regard to appeals from the general term to the Court of Appeals, where, by section 334 of the Code, an under- taking is necessary to render an appeal effectual for any purpose. And so, too, in order to render the appeal regular, the sureties must justify as required by section 341. But on an appeal from the special to the general term, as before noticed, no undertaking is necessary, unless a stay be desired, and no motion to dismiss can be made for want of any such undertaking, or because of any irregularity in its execution, &c. Where an appeal is taken from a judgment which is interlocu- tory merely, and not final ; or from an order which is not appeal- able, the proper course for the opposite party to pursue is a 1 1 Monell's Pr. (2d ed.), 764, 765. = Bisbrow v. Henshaw, 8 Cow., 353. ' Rogers v. Cruger, 3 John., 564. « Ridaboch v. Levy, 8 Paige, 197. FROM INTERLOCUTORY ORDER. 669 motion to dismiss the appeal.' If the appeal be dismissed the proper order or judgment will be that the judgment below be affirmed with costs, and that the respondent have execution there- for when adjusted and inserted in the judgment.^ A motion to dismiss an appeal on account of any imperfection in the notice, or other irregularity arising from the inadvertence, or mistake of the party, may be met by an application on behalf of such party, for an amendment, allowing him, on terms, pur- suant to section 327, to do whatever is necessary to perfect his appeal, or stay the proceedings. Such application must show that the party has given his notice of appeal in good faith, and that the irregularity or omission complained of, is the result of mistake. By the 37th rule, where a party makes a case or exceptions, he must procure it to be filed within ten days after the same shall have been settled, or it will be deemed abandoned. On a motion to dismiss an appeal for such cause, however, the defaulting party has been allowed to file his case, and bring on his appeal, if he showed a proper excuse, on the terms of filing security, and pay- ing costs of motion.* SECTION II. APPEAL FEOM INTEELOCtTTOET OEDEE. In the last section I alluded in general terms to the distinction between interlocutory orders and final judgments, in respect to the right of appeal, and the practice thereon. This distinction has also been pointed out in other parts of this work,^ and, there- fore, without further considering that branch of the subject, or specifying more particularly the kind of decisions that may be reviewed on appeal as orders, I shall proceed to sketch the gene- ral course of practice on such appeals. ' Lawrence v. Farmers' Loan and Trust Co., 15 How., 57. = D'Agreda v. Mantel, 1 Abbott, 130. ■3 Beck V. N. Y. & Liverpool U. S. Mail Steamship Co., 3 Bosw., 622. See, also, Stemhaus v. Schmidt, 5 Abbott, 66. * Ante, pages 513, et seq. 670 APPEAL. Appeal from order, how and when taken. The appeal from the order of a single judge, or special term, to the general term, is authorized by section 349 of the Code, which provides as follows : " An appeal may, in like manner, and witliin the same time (that is the same as in case of appeal from a judgment') 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 pro- visional remedy. 2. When it grants or refuses a new trial, or when it sustains or over- rules 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 apphcation in an action after judgment, and affects a substantial right." And by the next following section of the Code (section 350) it is further provided : " 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 to be entered with the clerk, and it shall be entered accord- mgly." The 403d section of the Code which clothes a county judge, within his county, with the powers of a judge of the Supreme Court at chambers in an action in the Supreme Court, further provides, that " in all cases where an order is made by a comaty judge, it may be reviewed in the same manner as if it had been made by a judge of the Supreme Court." ^ ' Code, § 332, and see ante, pages 653, 654. ^ See § 844, as amended ia 1860, allowing an appeal from an order made by a county court or a county judge, "in any action or proceeding," which will be considered in the next section of this chapter. (See also Conklin v. Butcher 1 Code R., N. S., 49.) FROM INTERLOCUTORY ORDER. 671 In regard to an ex parte order, it is provided by section 324 : " An order, made out of court without notice to the adverse party, may fee 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." And these sections comprise the provisions of the Code which are exclusively applicable to the review of orders in civil actions. Service of notice of appeal, ^c. The time and mode of taking the appeal, I have already con- sidered.i The notice of appeal, as has been seen, should specify the part of the order sought to be reviewed, if it be only appealed from in part ; and such notice must be served on the clerk of the county where the order is entered, as well as on the opposite attorney. Security not necessary to 'perfect appeal. No undertaking, or other security is necessary ; ^ but the due and regular service of such notice of itself perfects the appeal. If a stay of proceedings on the order be desired, application there- for must be made to the court or judge, as pointed out in the last section. Proceedings on appeal. Appeals from orders are, as a general rule, brought on as mo- tions at the general term. The appeal being perfected by the service of notice, either party may give notice of the argument and bring the cause on, as any other special motion. What papers to he furnished. No papers other than the notice of argument are necessary to be served ; but the appellant obtains from the clerk a copy of the order and the affidavits and papers on which it was granted, which he reads or presents to the court on the hearing. No further copies are necessary, though it is usual to furnish each member of the court with a copy of the case ; nor is it necessary to furnish any points or brief for the court. In important cases, however, it is not uncommon for both parties to furnish each member of the ' Ante, pages 653, et seq. 2 Emerson v. Burney, 6 How., 32; Cook v. Pomeroy, 10 How., 103; Allen V. Johnson, 2 Sand., 629. 672 APPEAL. court with printed points, and for the moving party to furnish printed copies of the cases, though there is no rule or practice compelling him to do so. Appeal, when and how broiight to hearing. The motion being non-enumerated is not put upon the calen- dar (except in the case of an order overruling or sustaining a demurrer, to be presently noticed),' and by the 48th rule is to be heard on the usual motion days — that is, on the first day, and Thursday of the first v^eek, and Friday of the second veeek of the term. It is brought on for hearing, and argued in the same way as any other motion. The same preferences are given,^ and generally the proceedings do not differ from those taken on a motion at special term, as heretofore pointed out,^ except that the opposing party cannot read affidavits to contradict or vary the case as it stands upon the appeal papers. In what case an appeal from an order is an enumerated motion and calendar cause. The exception to the rule (above referred to), that appeals from orders are generally regarded as in the nature of non- enumerated motions, must now be noticed. This exception is found mainly in that class of orders specified in the second subdivision of the section (Code, <^ 349), relative to appeals from orders, namely : " 2. When it (the order) grants or refuses a new trial, or when it sustains or overrules a demurrer." And by the amendment to rule 40, enumerated motions include not only motions for a new trial, on a case or exception, but also " appeals from orders sustaining or overruling demurrers.^'' In such cases, therefore, the causes are regularly put upon the calendar, as of the date of the service of the notice of appeal ' See ante, page 430. ^ This, however, is to be understood with the qualification, that by a recent statute (Laws of 1860, p. 270), actions in which executors and administrators are sole plaintiffs or sole defendants have a preference, both in the Court of Appeals and at the general term of the Supreme Court, over all actions, except criminal cases, and may be moved out of their order on the calendar. The statute makes no distinction between issues of law and issues of fact, and is therefore applicable to an appeal from an order sustaining or overruling a demurrer. ^ Ante, pages 440, et seq. FROM INTERLOCUTORY ORDER. 673 (Rule 41), and the cases are printed,^ served upon the opposite attorney, and furnished to the court in precisely the same way as any other calendar cause ; and the practice in this respect in the Supreme Court, now conforms to that of the New York Superior Court, which court has always regarded such appeals as enumer- ated motions and calendar causes.^ Nevertheless the appeal, in such cases, is from the order, and is not an appeal from a judgment. Thus, it is held, that a decision at special term overruling a demurrer to the complaint, and giving leave to answer, is an interlocutory order, and not a final judg- ment while the privilege to answer continues. And the decision of the general term affirming such order, is itself an order merely, from which no appeal lies to the Court of Appeals.^ So, under section 247 of the Code, a conditional order for judgment on account of the frivolousness of a demurrer or answer may be made.^ And an appeal may be taken from such a decision as an order, within the time allowed by section 349.* If not so taken, and judgment be entered, then the appeal must be from the judg- ment.^ Appeals from orders granting or refusing a new trial. It is proper to state, that strictly speaking, there are no appeals from such orders in equity actions in which the trial is by the court alone or by referees ; such appeals are applicable only to trials by jury.^ In such trials, when it is intended to review the facts upon the evidence, the appeal must be taken from the order, ' The papers to be used upon the argument, and which are required to be printed and served, arc copies of the notice of appeal, the pleadings, and the order sustaining or overruling the demurrer, which are to be duly certified by the clerk of the court. " Reynolds v. Truman, 4 Sand., 704. 3 Ford V. Turner, 5 Duer, 684. ' Witherspoon v. Van Dolar, 15 How., 266. ' Witherhead v. Allen and others, 28 Barb., 661. ^ Ibid. ' It is proper here to observe, however, that in cases of trial by jury of an issue of fact, so ordered by the court to be so tried (see ante, pages 500, et seq.) the decision granting a retrial, whether the application is made on the judge's minutes or on a case or exceptions, is an order. And an appeal lies from such order. {Ante, page 510.) The remarks made in the text, therefore, as to appeals from orders granting a new trial are applicable to such cases. V. S. 85 674 APPEAL. and not from the judgment.^ And if an order is made denying a motion for a new trial , and j udgment is entered thereon, an appeal from the judgment does not authorize a review of the order denying a new trial.^ In such cases, it is said, two appeals are necessary, one from the order and one from the judgment, though they may be both included in the same notice of appeal.^ The same thing, no doubt, may be done when a judgment has been entered on an order declaring an answer or demurrer frivolous, or striking out an answer as sham ; that is, the notice of appeal may be both from the order and the judgment. In all such cases the appeal is an enumerated motion, and the cause must be put upon the calendar, and brought to argument like other calendar cases. But in equity suits where the trial is by the court or by refe- rees, the appeal is not from an order, granting or refusing a new trial, within the meaning of 2d subdivision of section 349 of the Code ; * but in all such cases, it is from the judgment.^ And it must be a final judgment, after all questions arising at the special term have been disposed of.* I have noticed on a former page, that a mere interlocutory decision or order of reference, or any other decision made during the actual progress of the trial, and which is to be included in and to become part of the judgment, cannot be separately appealed from to the general term ; ' but such order or decision, it is held, if reviewable at all, must be reviewed on appeal from the final judgment.' The course of practice on appeals from judgments, will be further considered in a subsequent section of the present chapter. Decision of appeal and order thereon. The power of the court at general term to reverse, affirm or modify the order appealed from, has already been spoken of. ' Marquat v. La Farge, 5 Duer, 559 ; Brown v. Richardson, 1 Bosw., 402. ^ Fry V. Bennett, 16 How., 385 ; 6 Duer, 589. ' Ibid. * Otherwise where a retrial is ordered of issues of fact in equity cases ordered to be tried by jury. See note, supra, page 673. =■ Code, §§ 268, 348. * See ante, pages 516-519. Also post, section 5 of this chapter. ' Unless perhaps in the cases mentioned ante, page 521. ' Lawrence v. Farmers' Loan and Trust Co., 15 How., 57. See ante, page 519. FROM ORDER, ETC., IN SPECIAL PROCEEDINGS. 675 The decision having been ma^e, is entered in the minutes of the court by the clerk of the county in which the general terra is held. The prevailing party then draws up his order in form with the usual caption of a general term order, and the title of the cause in full, and files it with the clerk ; or if the place of trial is in another county, the order is certified to, filed and entered in such county, and a copy served, on the opposite attorney, as in other cases. The order then becomes effectual and operative, and the party obtaining it is entitled to the advantages thereof; and if the order grant him a judgment, or other affirmative relief, he may proceed thereon in precisely the same way as in case of an original order made at special term. SECTION III. APPEAL FROM OEDEE OR JUDGMENT IN SPECIAL PROCEEDINGS MADE AT SPECIAL TEEM, OR BY A COUNTY COURT OR A COUNTY JUDGE. Prior to the passage of the act of 1854,^ the practice, as regu- lated by the Code (and as pointed out in the foregoing section), relative to appeals from orders, did not apply to appeals from orders, judgments, or final determinations in what are called " special proceedings," as contradistinguished from " civil actions," to which alone the second part of the Code (relating to practice) applies.^ That statute was passed for the purpose of obviating the difficulty of obtaining a review of the proceedings in such cases, and of providing therein a similar remedy with that allowed by the Code in appeals from other orders. The first section of the act of 1854, provides as follows : " An appeal may be taken to the general term of the Supreme Court, or the Superior Court, or Court of Common Pleas of the city of New York, from any judgment, order or final determination made at a special term of either of said courts in any special proceeding therein ; such an appeal, however, shaU not stay the proceedings unless the court, or judge thereof, so order, which order may be, made upon such terms, as to security, or otherwise, as may be just ; such security not to exceed the amount required on an appeal to the Court of Appeals." > Laws of 1854, p. 592. * Ante, page 21. See Code, first eight sections. 676 APPEAL. The second section of the act provides that sections 327, 329, 330 and 332 of the Code, shall apply to appeals in special pro- ceedings. And the third section, that, in special proceedings, and appeals therefrom, costs may be allowed in the discretion of the court, and when allowed shall be at the rate allowed for similar services in civil actions. The act, however, was found defective as not being applicable to appeals in case of judgments or final orders made in special proceedings, by a County Court (which, as will be presently noticed, has, among other things, jurisdiction in special proceed- ings of an equity nature), or other subordinate tribunals, and in like cases of orders by a judge or magistrate of chambers, in which cases (unless otherwise provided), the review may be by certiorari or an appeal to the Court of Chancery or Supreme Court under the former practice.* The amendment made by the Legislature of 1860 to section 344 of the Code, obviated this difficulty so far as respects orders made by a County Court, or a county judge ; but did not provide for an appeal from an order in a special proceeding made by a justice of the Supreme Court at chambers. That section as so amended reads as follows, the words in italics being the amend- ment : " An appeal may be taken to the Supreme Court, from the judgment rendered by a County Court, or by the Mayor's Court, or the Recorders' Courts of cities. An appeal may also be taken to the Supreme Court from any order affecting a substantial right, made by a County Court or a'county judge, in any action or proceeding, and such appeal shall be heard on a copy of the papers on which the order appealed from was made." Orders and decisions in special proceedings in Supreme Court. The act of 1654 provides only for appeals, from a "judgment, order, or final determination made at a special term," etc. It may, therefore, perhaps, still be a question for judicial construction, whether an order, etc., made in a special proceeding by a Supreme Court justice, out of court, is fairly within the purview of this ' See note to Crary's Practice, p. 19, and cases there cited. FROM ORDER ETC., IN SPECIAL PROCEEDINGS. 677 statute. The author just cited, seems to think it is not ; i and if this be so, the proceeding to review such an order is not by appeal under this act and the Code, but according to the former practice. As to what is a "special proceeding" within the meaning of this act and the Code, there has been much speculation, and indeed, some little contrariety of opinion. In one case, a civil action was considered to be any judicial proceeding which, if conducted to a termination, will result in a judgment, and in that case a suit and proceedings under the mechanics' lien law was regarded as an action.^ The converse therefore would be true, that a proceeding which does not terminate in a judgment, is a special proceeding. Other definitions have been given, and may be referred to in the various authorities since the Code.^ In his new work on the practice in special proceeding and cases,^ Mr. Crary thinks that the Code applies to the practice in cases of appeal where the pro- ceeding partakes of the character of an action, and an appeal from the judgment therein was allowed under the former system ; or where the judgment appealed from is a judgment upon which, under the former system, a writ of error would lie. In such cases, the writ of error being abolished, an appeal under the Code is substituted in its place, or the proceeding being in the nature of an action, and an appeal from the judgment being allowed, the appeal is regulated by the Code of Procedure, the same as appeals in actions. I do not, however, deem the question of much practical impor- tance so far as the subject now under consideration is concerned, namely, appeals from Supreme Court orders in proceedings of an equitable nature, which, by the act just referred to (Laws of 1854), as we shall presently see, are taken and conducted sub- stantially the same as appeals from orders in civil actions ; unless, perhaps, it may be, as above noticed, in regard to an appeal from ' See note to Orary's Practice, p. 19, and cases there cited. ' People V. County Judge of Rensselaer County, 13 How., 406. ' See these cases cited, notes to sections 2 and 3 of the Code ; also to section 349, Voorhies' 6th edition. Also Crary's Practice, note to pages 16 to 19, containing a full collection of references on this subject. < Page 18. 678 APPEAL. a chamber order of a Supreme Court justice, if that be considered as not properly falling within the act. Count]! ci'Mrf and county judge orders and judgments in equity cases and ^proceedings. Previous to the amendment of ISGO, to section 344 of the Code, there was no appeal to the general term in cases of an order of the County Court, or of a county judge, except when acting at cham- bers, in granting orders under section 403 of the Code. Section 344 merely allowed an appeal from a final determination of a County Court, &c., when embraced in a judgment. The amend- ment to that section not only allows an appeal from an order "affecting a substantial right" in " any action ov ^proceeding ;" but specifies how it shall be heard. By the Constitution,^ the County Courts have jurisdiction in " special cases, as the legislature may prescribe," but have " no original civil jurisdiction, except in such cases." The legislature, by section 30 of the Code, has prescribed, or attempted to prescribe, such jurisdiction. So far, however, as this act attempts to give jurisdiction in common law actions, even when limited as to the amount of damages claimed, it has been held by the Court of Appeals unconstitutional.^ The provisions, however, of the same section, vesting jurisdic- tion in the County Court, in special cases and actions of an equitable nature, are considered, for the most part at least, con- stitutional, and so far as adjudicated upon have been sustained. Thus, the third subdivision of the section (Code, ■§ 30, sub. 3), which gives the County Court jurisdiction of an action to fore- close a mortgage on premises situated within the county, has been held valid, both by the Supreme Court and the Court of Appeals.^ So, subdivision 4, relative to the partition of real estate situ- ated within the county, has been held valid by the Court of Appeals ; such proceedings may be prosecuted in the County Court when the lands lie within the county.* 1 Art. VI, § 14. '^ Kundolph v. Thalheimer, 2 Kern., 593. ' Benson i». Cromwell, 6 Abbott, 83 ; Arnold v. Rees, 17 How., 35 ; 7 Abbott, 328. < Doubleday «. Heath, 16 N. Y. R., 80. FROM OKDERS, ETC., IN SPECIAL PROCEEDINGS. 679 By other subdivisions of the same section, the County Court has further jurisdiction in special cases and proceedings (mostly of an equitable nature), as follows : Sub. 5. The admeasurement of dower in lands situated within the county. Sub. 6. The sale, mortgage, or other disposition of the real property, situated withui the county, of an infknt or person of unsound mind. Sub. 7. To compel the specific performance by an infant heir, or other person, of a contract made by a party who shall have died before the performance thereof.' Sub. 8. The care and custody of the person and estate of a lunatic, or person of imsound mind, or an habitual drunkard, residing within the county.' Sub. 9. The mortgage or sale of the real property, situated within the county, of a religious corporation, and the disposition of the pro- ceeds thereof. The remaining subdivisions of the same section, relate to matters other than those treated of in this v^ork, with the excep- tion, perhaps, of the 11th subdivision, which confers upon such courts powers in various cases therein enumerated, and, gener- ally, " all other powers and jurisdiction conferred by statute, which have not been repealed, on the late Court of Common Pleas of the county, or on the County Court, since the late Court of Common Pleas was abolished, except in the trial and deter- mination of civil actions." Appeal, how taken. By the second section of the act of 1854, above referred to, the 327th section of the Code (among others) is made applicable to appeals, from orders, etc., in special proceedings. That section of the Code provides that the appeal must be taken by the ' Such an application, it has been held by the Court of Appeals, is a " special proceeding" (1 Kern., 52) ; and, therefore, a " special case " within the meaning of the Constitution conferring jurisdiction upon County Courts. ^ This subdivision, in connection with the 11th subdivision of the same section, and with 2 R. S., p. 52, § 3 (not repealed by the Code), is held to confer jurisdiction on County Courts respecting habitual drunkards, only in cases where his property amounts to less than |250. In the matter of Smith, 16 How., 567. 680 APPEAL. service of a notice ; and the proceedings thereon, and the rules applicable thereto, are precisely the same as in cases of appeals from interlocutory orders in civil actions, which have been con- sidered in the last preceding section of this w^ork. The same act makes section 332 of the Code applicable to appeals in special proceedings, requiring the appeal to be taken v^'ithin thirty days after written notice of the judgment or order, and what was said in the preceding section on that subject, is also applicable to such appeals. Stay of proceedings. By the 1st section of the act of 1854, the appeal does not stay the proceedings, unless the court, or a judge thereof, so order, which order may be made upon such terms, as to security or otherwise, as may be just; such security not to exceed the amount required on an appeal to the Court of Appeals. The amendment of 1860, to section 344 of the Code, noticed supra, allowing an appeal from an order of a County Court, or a county judge, contains no provision relative to a stay of proceed- ings. The general principle, noticed in the preceding section, however, that an appeal from an order does not per se stay pro- ceedings, applies ; and the rule, therefore, in regard to such stay, is precisely the same, as in cases of appeal under the act of 1854. This is also the same rule in regard to a stay of proceedings, which applies in cases of appeal from an interlocutory order in civil actions, as heretofore noticed in this chapter; and the remarks already made relative to such stay, and the terms upon which it may be granted, are applicable to cases of appeals, from orders, etc., in special proceedings. If the appeal be from a judgment of the County Court, security must be given in the same manner, and to the same extent as on an appeal to the Court of Appeals.* Hearing of appeal, upon what papers, and how brought on. The appeal is brought on at the general term on the usual notice, as in other cases. If the appeal is from an order, it is not > Code, § 345. FROM ORDER, ETC., IN SPECIAL PROCEEDINGS. 681 a calendar cause, but is heard on a motion day of the general term, as other appeals from orders. The papers on which the appeal is to be heard, are the order, and copies of the papers on which the order appealed from was made.i They must be certi- fied by. the clerk, and presented to, or copies furnished the court, as in other cases of appeals from orders heretofore noticed.^ ■ If the appeal be from a "final determination" or "judgment," under the provisions of the act of 1854, it is an enumerated motion, and calendar cause, and must be regularly noticed, put upon the calendar, and brought to hearing, in the same manner as other calendar causes. In such cases the provisions of the act of 1860 3 giving preference to cases in which executors and administrators are sole plaintiffs or sole defendants in the Court of Appeals, and at the general term of the Supreme Court, apply, and such cases may be moved out of their order on the calendar. Power of the court on appeal. The second section of the act of 1854, makes the 329th and 330th sections of the Code, applicable to appeals in cases of special proceedings. The former of these sections provides that upon an appeal from a judgment, the court may review any interlocutory order involv- ing the merits and necessarily afllecting the judgment. And the latter, that upon an appeal from a judgment or order, the appellate court may reverse, alBrm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. Where the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment. These provisions have been already sufficiently considered in the preceding sections of this chapter. Order or judgment upon appeal. If the appeal be from an order, the decision of affirmance or ■ Code, § 344, as amended in 1860 ; and the practice is the same in cases of appeals from other orders in special proceedings. '^ Ante, pages 669, 670. ^ L^^g ^f jgeo, p. 270. V. S. 86 682 APPEAL. reversal is an order, and is drawn, entered and served as in other cases ; and the successful party is thereupon entitled to the bene- fit of the same, and may proceed thereon, unless an appeal is taken therefrom to the Court of Appeals and perfected.' If the appeal be from a final determination of the County Court embraced in a judgment, then, by section 347, judgment upon the appeal shall be entered and docketed -with the clerk in whose office the judgment roll is filed. When the appeal is heard in a county other than that where the judgment roll is filed, the judgment upon the appeal shall be certified to the clerk with whom the rule is filed, to be there entered and docketed. This section, it is said, authorizes the entry of a new judg- ment, on the appeal to the Supreme Court.* Costs on appeal. The third section of the act of 1854 provides that in special proceedings, and on appeals therefrom, costs may. be allowed in the discretion of the court, and when allowed shall be at the rate allowed for similar services in civil actions. If, therefore, the appeal be from an order, the hearing is a motion, and only the costs of a motion (not exceeding ten dollars, Code, section 315) can be allowed. If from a judgment, the same costs are allowed as in other cases of appeals from a judgment. If the appeal be from the decision of an inferior court in a special proceeding, section 318 of the Code provides that, for all purposes of costs, it shall be deemed an action at issue on a ques- tion of law, from the time the same shall be brought into the Supreme Court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case.^ 1 The Court of Appeals has jurisdiction to review a final order aiFccting a substantial right, made in a special proceeding, or upon a summary application, in an action after judgment. Code, § 11, sub. 3. 2 Eno V. Crooke, 6 How., 462. ' See Crary's Practice, page 19, note, and cases there cited. FROM surrogate's DECISION. 683 SECTION IV. APPEALS FEOM SXTEEOGATe's DECISION OE DECEEE. Appeals from decisions, orders and decrees of surrogates' courts are not regulated by the provisions of the Code, but are expressly- excluded therefrom ; ^ and are governed by the Vdw in force pre- vious to the adoption of the Code, as well in regard to costs and fees, as in other particulars,^ except as modified by the present rule (No. 44) of the Supreme Court which will be presently noticed. To what court appeal lies. By the former practice, and under the provisions of the Revised Statutes, appeals might be taken to the Chancellor from the orders, decrees and sentences of surrogates, in all cases, except where provision was made for appeals to circuit judges, and except appeals from orders concerning any admeasurement of dower.^ From a decision admitting or refusing to admit a will to record or probate, an appeal was brought to a circuit judge ;* who, on the reversal of such decision on a question of fact, ordered a feigned issue to be made up and tried at the next circuit court.* From the decision of the circuit judge (unless a feigned issue had been awarded by him), an appeal lay to the Chancellor.* Since the Court of Chancery was abolished, appeals from surro- gate's orders or decrees in all cases are now made to the Supreme Court, and they are first heard at general term ; ' even an appeal from a decision of a surrogate admitting or refusing to admit a will to probate, is heard in the first instance at a general, and not special term. In other respects the provisions of the statute relative to appeals from surrogates' courts, in the main, apply, and the practice, as 1 Coije, § 471. ^ Brockway v. Jewett, 16 Barb., 590. 3 2 R. S., 609, § 104 ' 2 B. S., 66, § 55 ; Id., 608, § 90. = 2 R. S., 66, § 57. '2 R. S., 609, § 100. ' Wever v. Marvin, 14 Barb., 376 ; 7 How., 182. s Watts V. Aiken, 4 How., 439. 684 APPEAL. regulated by the present 44th rule of the court, is not materially changed from the former practice. Within what time appeal to be brought. Appeals from a decree for the final settlement of the account of any executor, administrator, or guardian, must be made within three months after such decree shall have been recorded.^ Appeals from an order for the Appointment of a guardian, or for his removal, must be made within six months after such order shall have been entered.^ The appeal from the decision of a surrogate by which any will of real estate, or of personal property, shall be admitted, or refused to be admitted, to record or probate, must be made within three months after the decision of the surrogate is made and entered.* In all other cases, not specified, and not otherwise limited by law, appeals from the orders, decrees, and sentences of surrogates, must be made within thirty days after the order, decree or sen- tence shall have been made;^ that is, within thirty days after it is pronounced — not thirty days from the service of a copy thereof.' This last provision includes a decree of a surrogate upon an accounting taken against an administrator, made on the applica- tion of one or more of the creditors of the estate, without citing the next of kin of the intestate ; such a decision, not being a decree for the final settlement of the administrator's account.^ Notice of appeal. The appeal is taken by filing and entering a notice thereof in the surrogate's ofiice, and is perfected by giving the bond required by law. This is declared by statute to be sufficient notice of appeal to the adverse party, without any other notice.' It is usual, however, to serve a copy of such notice on the attorney of the adverse party. ' 2 R. S., 610, § 105. 2 2 R. S., 610, § 106. ' 2 R. S., 66, § 55. *2 R. S., 610, § 107. ^ Bay V. Van Rensselaer, 1 Paige, 423. * Bronson v. "Ward, 3 Paige, 189. ' 2 R. S., 611, § 117. FROM SUKROGATE's DECISION. 685 Bond on appeal and stay of -proceedings. At the time of filing the appeal, the appellant must execute and file with the surrogate a bond, with two sufficient sureties, to be approved by the surrogate, in the penalty of at least one hun- dred dollars, to the adverse party, conditioned, substantially, that the appellant will prosecute his appeal, and will pay all costs that shall be adjudged against him by ^le court; and no appeal is efiectual until such bond is filed.i In cases of admitting or refusing to admit a will to record or probate, the bond is similar, except that the statute directs it to be executed to the people,^ and the appeal in such cases being so perfected, stays the recording and probate of the will until the appeal is determined.^ And, generally, except in certain cases, which are particularly pointed out by statute,* an appeal from the surrogate suspends all proceedings on the order appealed from, until such appeal is determined, or until the appellate court shall authorize proceed- ings thereon.* Appeals from the order of a surrogate, suspending or removing any executor, administrator or giiardian, will not affect any such order until the same is reversed.* Petition of appeal, and proceedings and practice thereon. The appeal having been entered, by filing notice thereof, within the time allowed by the statute, as above specified — and which time cannot be enlarged or extended by the court ' — the next proceeding is the filing of a petition of appeal, which by the present, as by the former practice, must be filed within fifteen days after the appeal is entered in the court below. The time to file the petition, it was considered by the Court of Chancery, might be extended by the court, « though the time for taking the appeal cannot be; that is to say, the omission to file the petition of appeal, within the fifteen days required by the rule (No. 44) of the Supreme Court (and in this respect, the rule ' 2 R. S., 610, § 108. » 2 R. S., 66, § 56. ^2 R. S., 66, § 55. * As to such excepted cases, see 2 R. S., 610, §§ 110, 111, 112. = 2 R. S., 610, } 109. ' 2 R. S., 611, § 116. ' Bronson v. Ward, 3 Paige, 189. = Halsey v. Van Amringe, 4 Paige, 279. 686 APPEAL. corresponds with the llSth Chancery rule), is not such a waiver as to deprive the court of all jurisdiction over the case, or to authorize the surrogate to proceed as if no appeal had been entered; but is such a waiver merely, as to authorize the appellate court to declare the appeal deserted, and to empower the surrogate to proceed notwithstanding the appeal.' The present rule of the court,^ respecting the filing of the petition of appeal, and the general course of proceeding thereon, upon appeals from surrogate's decisions to the Supreme Court, is as follows : . Rule 44. On an appeal to this court from the order, sentence, or decree of a surrogate's court, the party appealing shah file a petition of appeal, addressed to this court, with the clerk of the county in which the order, sentence or decree appealed from was made, within fifteen days after the appeal is entered in the court below, or the appeal shall be considered as waived ; and any party interested in the proceedings in the court below may thereupon apply to this court, ex parte, to dismiss the appeal with costs. The petition of appeal shall briefly state the general nature of the proceedings, and of the sentence, order or decree appealed from, and shall specify the part or parts thereof com- plained of as erroneous ; except where the whole sentence, order or decree is alleged to be erroneous, in which case it shall be sufficient to state that the same and every part thereof is erroneous. And where the appeal is from a sentence or decree on the settlement of the accounts^ of an executor, administrator, or guardian, if the appellant wishes to review the decision, as to the allowance or rejection of any particular items of the account, such items shaU be specified in the petition of appeal ; or the allowance or disallowance of any such items shall not be considered a sufficient ground for reversing or modifying the sentence or decree appealed from. The respondent, in his answer to the petition of appeal in such eases, may also specify any items in the account, as to which he supposes the sentence or decree is erroneous as against him and in favor of the appellant. And upon the hearing of the parties upon such appeal, the sentence or decree may be modified as to any such items, in the same manner as if a cross-appeal had been brought by such respondent. The appellant may have an order of ' Halsey i). Van Amringe, 4 Paige, 279. * Sup. Court Kule 44 of the revision of 1858, corresponding with Rule 77 of the former revision, and with 118 of the Chancery Court Rules. FROM surrogate's DECISION. 687 course, that the respondent in the petition of appeal answer the same within twenty days after the service of a copy of the petition of appeal and notice of the order, or that the appellant be heard ex parte. And where the respondent is an adult, upon filing an affidavit of such service upon the attorney of the respondent, if he has appeared either in this court, or in the court below by an attorney of this court, or upon the surrogate if he has not appeared by such attorney, and that no answer to the petition of appeal has been received, the appellant may have an order of coui'se that the appeal be heard ex parte as against such respondent. Where the respondent is a minor, if he does not procure a guardian ad litem upon the appeal, to be appointed within twenty days after the filing of the petition of appeal, the appellant may apply to a justice of this court, ex parte, for the appoint- ment of such guardian. And if the minor has appeared by his guardian ad litem in this court, the appellant may have an order of course that the guardian ad litem of the respondent answer the petition of appeal within twenty days after service of a copy thereof and notice of the order, or that an attachment issue against such guardian. When a petition of appeal is filed, if it has not been served on the adverse party, the respondent may have an order of course, that the appellant deUver a copy of the petition of appeal to the attorney, or to the guardian ad litem of the respondent, within ten days after the service of notice of such order, or that the appeal be dismissed ; and if the same is not delivered within the time limited by such order, the respondent, upon due notice to the adverse party, may apply at a special term to dismiss the appeal with costs. Upon the hearing of any such appeal as is referred to in this rule, it shall be the duty of the appellant to furnish the court with a copy of the petition of appeal, and of the answer thereto, if an answer has been received, and a copy of the proceedings below, including a copy of the appeal as entered. Wliat the 'petition should contain. The foregoing rule specifies generally the nature and requisites of the petition of appeal. In addition to this, it was held, in the Court of Chancery, and such is no doubt still the practice, that the petition should name the persons intended to be made defend- ants in the appeal, and should pray that they may answer the same.i And, if a party, who is interested in the sentence or decree appealed from, is not made a party to the petition, he may apply ' Kellet V. Bathbun, 4 Paige, 107. 688 APPEAL. to the appellate court to dismiss the appeal, or for leave to pro- ceed in the court below, notwithstanding the appeal.* The petition, in case of admitting or refusing to admit a will to record or probate, is in a similar form. It should name, among other things, the persons who are interested in sustaining the decree of the surrogate, making, at least, all those who appeared before the surrogate, in opposition to the appellant, parties to the appeal ; and should likewise pray that a day may be fixed for the persons thus made respondents, and the appellants, to be heard on such appeal, so that due notice of the hearing may be given to such of the parties as are entitled to appear and sustain the decision of the surrogate.^ Parties appellants. The party or parties against whom the surrogate's decision is made, or whose rights are claimed to be injuriously affected by it, are in general the proper parties appellants. From a sentence disallowing a will, the executor propounding the will is the party appellant, and the court has refused to change such appellant by substituting a legatee, in order to give the legatee the benefit of the executor's testimony in favor of the will.= Where there are several parties whose interests and rights are the same, they should not bring separate appeals from the same order; and, it has been held, where such separate appeals have been brought by different attorneys who were partners, only a single bill of costs can be allowed, though the appellate court decides in each appeal to reverse the order.* It is not absolutely necessary that an appeal from an order of a surrogate, appointing a guardian for an infant, should be in the name of the infant as the nominal appellant ; nor, that the appel- lant should have any pecuniary interest in the appointment or removal of the guardian to entitle him to bring an appeal in his ' Halsey v. Van Amringe, 4 Paige, 279. ^ 1 Barb. Ch. Pr., 433, citing Chaffee v. Baptist Missionary Convention, in Chancery, January, 1843, and Stewart v. Nicholson, in Chancery, April, 1841. ' Gardner v. Gardner, 5 Paige, 170. ^ Brockway v. Jewett, 16 Barb., 590. FROM SUEROGATE's DECISION. 689 own name.* But it is propei- tliat the infant himself should be a party to the appeal, especially where such appeal is from an order removing a guardian, or refusing to appoint the person by whom the appeal is brought. Even where the appeal is from an order appointing a guardian, if the infant does not appeal, by his next friend,^ the appellant may make him a party to the petition of appeal jointly with the person appointed as guardian by the sur- rogate.^ But iri that case, as the guardian himself must be made a party, there is no absolute necessity for making the infant a party also,* Parties responderits. The general rule is, that no person is considered a party respond- ent in a petition of appeal who is not named therein, and called upon by the prayer of the petition to answer the same.^ It is also considered a general rule that all parties to the proceedings before the surrogate, who are interested in sustaining the decree or order appealed from, should be made parties to the petition of the appeal.^ Where a testator has devised and bequeathed all his property to a stranger, all the heirs and next of kin, even though they did not in fact appear to litigate the suit before the surrogate, should be made parties to an appeal from a decision of the surrogate, admitting the will to probate, as they have all a technical interest in opposition to the will.' And a decree made upon an appeal to which only a part of the heirs and next of kin of the testator are made parties, will not affect the rights of those who are not made parties, and have had no opportunity to be heard on the appeal.'' A party interested in the subject matter of the suit may make himself a party to an appeal from the surrogate, although he was ' Underbill v. Dennis, 9 Paige, 203. " The provisions of §^ 115, 116, respecting tlie appointment of a guardian for an infant do not apply to appeals from surrogates' courts (Code, i 461), and, there- fore, I suppose, such next friend must be appointed according to the former practice. 3 Underbill v. Dennis, 9 Paige, 203. * Ibid. 5 Gardner v. Gardner, 5 Paige, 170. « Gilchrist v. Rea, 9 Paige, 66. ' 1 Barb. Ch. Pr., 434, citing Stewart v. Nicholson, in Chancery, April, 1841.' ^ Ibid. V. S. 87 690 APPEAL. not a party to the proceedings before him.^ But before he can be permitted to take part in the proceedings, either in the court below or in the appellate court, he must apply by petition to be made a party.^ Guardian ad litem for infant respondent. The rule above given, which is entirely similar to the former Chancery rule, provides for the appointment of a guardian ad litem for an infant respondent. The appointment is made in the manner specified in the rule, by a justice of the court, and ex parte, and not in the mode provided by the Code.* It should be made in all cases, where the infant has no general guardian, and is a party to the appeal ; or where the general guardian has an interest adverse to the infant.^ Dismissing appeal. If the appellant neglect to file his petition of appeal within fifteen days after the appeal is entered, any party interested in the proceedings may move to dismiss the appeal, on an affidavit showing such omission and neglect, which motion may be ex parte,^ and should be made at the general term, on any motion day thereof So, also, by the rule, if a copy of the petition of appeal be not served, pursuant to the order obtained by the respondent that the appellant serve such copy within ten days, the appeal may be dismissed on motion ; but such motion must be upon notice to the appellant, and may be made at special term.* By the Chancery rule (No. 118), if the appellant did not cause the transcript of the proceedings before the surrogate (except in will cases, the return in which is specially regulated by statute), to be made, authenticated and returned to the Court of Chancery, within twenty days from the time of entering the appeal, a motion to dismiss the appeal might be made, unless further time was allowed to return such transcript. Such application must be ' Foster v. Tyler, 7 Paige, 48. ^ Ibid. ' See note, ante, page 089. * 1 Barb. Ch. Pr., 434, citing Chaffee v. The Baptist Missionary Convention, in Chancery, January, 1843. ' Supreme Court, Rule 44. • Ibid. FROM SUKEOGATE's DECISION. 691 upon notice and would not be granted where a sufficient excuse was shown. After the actual return and filing of the transcript, though more than twenty days after entry of the appeal, if the respondent or his solicitor had notice of the fact, a motion to dis- miss could not be made.^ The present rule of the court contains no such provision, but within the principles laid down in the former part of this volume,^ it is presumed, the practice may still be followed. The surro- gate, however, will be compelled to make a return on pain of attachment, if his fees have been paid, or offered to be paid when ascertained.^ A party whose interests are affected by the appeal, but who has not been made a party to the petition, may also apply to dismiss the appeal, so far as it affects his rights, or stays the proceedings before the surrogate to his injury." But if the petition has been filed in time, such a motion must be made upon notice ; = and the motion should properly be made to the general term. Order to answer and proceedings thereon. The rule above given ^ is sufficiently explicit in regard to obtaining an order to answer, and the proceedings thereon, including the hearing of an appeal, ex parte, where the respondent does not answer. Its provisions, in this respect, are, also, entirely similar to those of the 118th Chancery rule. These provisions, it was thought, obviated, in a great measure, the necessity of cross-appeals, though they did not prohibit them.'' Accordingly, it was held, by the Chancellor, that where an appeal from the decree of a surrogate upon the settlement of the account of an executor, etc., is not in relation to the allowance or. rejection of particular items of the account ; or, if the respondent wishes the decree modified in any other respect than as to particular items of the account, he must bring a cross-appeal.' In such cases, it is said, the former practice with respect to cross-appeals in the ' Vreedenburgh v. Calf, 7 Paige, 419. ^ See ante, pages 21, 22. ^ Gardner v. Brown, 5 How., 351. * Scribner v. Williams, 1 Paige, 550. ^ Suffern v. Lawrence, 5 How., 129. ' Sup. Court, Rule 44. '' 1 Barb. Oh. Pr., 430. " ColIinB V. Hoxie, 9 Paige, 81. 692 APPEAL. Court for the Correction of Errors, would be applicable substan- tially.i The respondent cannot be compelled, according to the former practice, to answer the petition of appeal, until the transcript is filed.2 Surrogate's return. In cases of an appeal from a surrogate's decision, admitting or refusing to admit a will to record or probate, the statute provides that, upon the appeal being perfected, and upon the surrogate being paid the legal fees, he must immediately transmit to the circuit judge (Supreme Court) a copy of such appeal, and copies of the will, and of all papers, documents, and testimony pro- duced before him in relation to the subject of the appeal, duly certified by him, under his official seal, with a statement of the decision made by him, and the reasons of such decision, if required.' The statute further authorizes the appellate court, if the sur- rogate, unreasonably, neglect to make such return, to enforce the same by attachment, as in case of a witness refusing to obey a subpena to attend a Circuit Court.^ The motion, in such case, is on affidavit, showing that the appeal has been perfected, that the surrogate has been paid his fees, or an offer to pay them when they should be ascertained,^ and his neglect to make the return. Notice should be given of the motion, which may be made at special term. Or the party may apply, at special term, ex parte, for an order that the surro- gate make such return by a certain time, or show cause at some future special term why an attachment should not issue. In cases other than those arising on the pi'oof of wills, the surrogate returns a transcript of all the proceedings before him, which, by the Chancery rule," was required to be within twenty days from the time of entering the appeal. As before observed, in £ase he should neglect to do so, the respondent may move to ' See 1 Barb. Ch. Pr., 414, 430. ' Halsey v. Van Amringe, 4 Paige, 279. » 2 R. S., 608, § 91. "2 R. S., 608, § 92. ' Gardner v. Brown, 5 How.. 351. « Chancery Court Rule 118. FROM surrogate's DECISION. 693 dismiss the appeal ; i or, the surrogate may be compelled to make such return within a reasonable time, by an order of the court on pain of attachment.* If either party deem a further return necessary, an application should be made to the appellate court, before the hearing, for such further return.^ In will cases, the surrogate's return should state who pro- pounded the will before him ; when the proceedings to prove it were instituted ; who were ascertained by him to be the next of kin of the decedent, and which of them, if any, were infants; who were cited to attend upon the proving of the will, and who did in fact attend and litigate the will before him.^ Appeal papers, how entitled. Before the filing of the petition of appeal, affidavits, on a motion to dismiss, and other papers, are entitled as in the pro- ceedings before the surrogate. After the petition has been regu- larly filed, showing who are the parties to the appeal, affidavits, and other papers in the cause, should be entitled in the Supreme Court in the names of the appellants named in the petition, against the respondents as such.* The petition itself should also be entitled in the appeal.® Preparing the cause for argument. The surrogate's return having been duly made and filed, and no motion noticed by either party for a further or amended return, it is the duty of the appellant to prepare the cause for argument. For this purpose he must have the necessary papers printed, and must serve copies of the same upon the opposite attorney, the same length of time, and in the same manner as in other calendar causes, as will be noticed in the next section. And in like manner, printed copies of the cases and points (prd*- ' 1 Barb. Ch. Pr., 426. * Gardner v. Brown, 5 How., 351 ; Halsey v. Van Amringe, 4 Paige, 279. » Ibid. 1 Barb. Ch. Pr., 42G. * 1 Barb. Ch. Pr., 433, 434, citing Chaffee v. The Baptist Missionary Conv. In Chancery, January, 1843. s Foster v. Tyler, 7 Paige, 48 ; Gardner v. Gardner, 5 Paige, 170 ; Hawley v. Donelly, 8 Paige, 415. « Gardner v. Gardner, 5 Paige, 170. 694 APPEAL. pared like points in other calendar causes) must be furnished the court on the hearing, by the appellant. The papers so required to be furnished the court, are a copy of the petition of appeal, and of the answer thereto, if an answer has been received, and a copy of the proceedings below, including a copy of the appeal as entered.* The appeal is a calendar cause,' and must, therefore, be regu- larly placed on the calendar as of the date when the notice of appeal was served.^ And the cause may be struck from the calendar for the same irregularities, and in the same manner as other calendar causes, as will be noticed in the next section. The appeal must be brought to hearing on the regular notice to the adverse party or attorney as in other calendar causes. In will cases, the statute provides that the appellant must give fourteen days' notice of hearing to the parties who appeared before the surrogate in opposition to such appellant. This notice must be served on them personally if they can be found ; and if not, by leaving the same at their respective places of residence, with some proper person.'' There is nothing in the Code or pre- sent rules of the court, changing this provision of the statute. Hearing of the appeal. On the cause being regularly moved in its order, the same is argued by counsel, or submitted on printed points, as other cal- endar causes. If, however, the appeal is one in which executors or administrators are sole plaintiffs or defendants, or which prevents the issuing of letters testamentary or of general administration, it has preference, by the act of 1860, and may be moved out of its order on the calendar.^ Where on appeal from a decree on settlement of executor's or guardian's accounts, the answer to the petition of appeal, speci- fies any particular items of account as erroneously allowed or disallowed, the court, on the hearing, may modify such decree, as to any such items, in the same manner as if a cross-appeal had been brought by the respondent.^ > Sup. Court, Rule 44. ^ Brockway v. Jewett, 16 Barb., 590. s Sup. Court, Rule 41. * 2 R. S., 608, § 93. " Laws of 1860, p. 271. « Sup. Court, Rule 44. FROM SUREOGATe's DECISION. 695 In a contested will case, the court is to proceed to hear the allegations of the parties, upon the proofs submitted by them to the surrogate, and shall affirm or reverse the decision of the surrogate as shall be just.' If such reversal is founded on questions of fact, the court orders a feigned issue to try such questions by a jury, the pro- ceedings upon which have already been considered in another part of this volume.^ By the rules of the Court of Chancery .^ proceedings on appeals from surrogates were directed to be conducted according to the ordinary course of practice of that court in other cases, except when regulated in a different manner. It was said, however, that the court might observe the laws and principles of decision which govern the surrogate's court.^ Further evidence upon appeal. It is the practice in appellate courts, which proceed according to the course of the civil law, to allow the parties to introduce new allegations or further proofs.^ This rule, it has been held, is applicable to the present practice, in cases of appeal from a surrogate to the Supreme Court.^ It was considered, however, in the late Court of Chancery, that this principle did not apply to cases which were strictly appeals, and were not merely in the nature of a re-hearing ; as on an appeal from the decree of a Vice-Chancellor to the. Chancellor ; '' or an appeal from the Chancellor to the Court for the Correction of Errors.^ Yet, if the decree of the Vice-Chancellor was reversed on appeal to the Chancellor, the latter might, in his discretion, allow the respondent to introduce new testimony, as to facts discovered subsequently to the hearing before the Vice-Chancellor, before he proceeds to make a final decree upon such appeal.' ' 2 R. S., 608, § 95. ' Ante, pages 500-510. ' Chancery, Rule 118. * Vanderheyden v. Raid, Hopk., 408. « 1 Barb. Ch. Pr., 384. ' In the matter of Caujolle's appeal, 9 Abbott, 393. ' Mitchell V. Lenox, 14 Wend., 662 j Stud well v. Palmer, 5 Paige, 166 ; Blood- good V. Clark, 4 Paige, 574. ' Scribner v, Williams, 1 Paige, 550 ; Deas v. Thorne, 3 John., 543. » Wendell v. Lewis, 6 Paige, 233. 696 APPEAL. In cases where the right does exist, it is not a, matter of course to receive further proofs upon an appeal.' And, if the appellant wishes to introduce new evidence, he should, in his petition of appeal, ask leave to produce further proofs, and state his excuse for not producing such evidence in the court below.^ In the matter of CaujoUe's appeal,^ decided at general term in the first district, these principles of the former practice in Chancery were recognized and acted upon. It was an appeal to the Supreme Court from the decision of the surrogate granting letters of administration to one Ferrie, who claimed to be a son, and only son, of the intestate. The appeal was taken by CaujoUe, a distant relative' and resident of France, and the principal ques- tion involved was the legitimacy of Ferrie. The petition of appeal set forth, that since the argument before the surrogate, the petitioner had discovered additional documents, and other additional proofs, setting forth the names of the witnesses in France, and the facts expected to be proved by them, and also the circumstances which had precluded the appellant from offering the evidence before the closing of the proofs before the surrogate. The court held the evidence admissible, and received the same, but affirmed the surrogate's decision on the merits. The arguments of counsel in the case, as reported, present a full collection of authorities bearing upon this question. Proceedings on decree, and awarding costs by appellate court. Upon a reversal or modification of the decree appealed from, the proceedings may be remitted, with instructions to the surro- gate to enter a final decree upon the principles settled by the court;* or to take such further proceedings as may be necessary.* Or, if a just cause of action nevertheless appears, the appellate court might retain the cause.'' Thus, upon the affirmance of the decree of a surrogate, directing the payment of a balance due from the appellant, the respondent might have the decree of affirmance enrolled, and take out execution in the appellate court.'' 1 Scribner v. 'Williams, 1 Paige, 550. ' Ibid. ' 9 Abbott, 393. < Ilalsey v. Van Amringe, 6 Paige, 19. ' Gardner v. Gardner, 7 Paige, 112. " Van Wick, v. Alley, Hopk., 552. ' Kellet V. RathbuD, 4 Paige, 102 ; Shultz v. Pulver, 3 Paige, 182. FROM FINAL JUDGMENT. 697 In contested will cases (unless on a reversal upon a question of fact and a feigned issue directed, the practice upon which has been heretofore considered'), the circuit judge (Supreme Court) having made a decision upon the appeal, must certify it to the surrogate, with the award of costs thereon, and return the copies of papers sent up by the surrogate.^ If no appeal be taken there- from to the Court of Appeals, the surrogate must then proceed in the manner directed in the first title of the sixth chapter of the Kevised Statutes.^ If the surrogate's decision is affirmed, the court awards costs to be paid by the party appealing, either personally, or out of the estate of the deceased, as the court shall direct. If the decision is reversed upon a question of law, costs will in like manner be awarded against the party maintaining the decision of the surro- gate, either personally or out of the estate of the deceased/* And payment of the costs thus awarded, may be enforced by the sur- rogate, after the proceedings have been remitted to him, in the same manner as if the costs had been awarded by him.^ And, generally, the Supreme Court has power to award costs against either party, according to the laws in force at the time of the adoption of the Code ; the costs may be taxed by any judge of the Supreme Court, and are to be regulated by the fee bill of the former Court of Chancery." SECTIOlsr V. APPEAL FEOM FINAL JUDGMENT IN AN EQUITY ACTION. The mode of the trial of issues in equitable actions by the court without a jury, and by referees, and the proceedings upon such trials, and subsequent thereto, down to, and including the entry of the final judgment, have been fully pointed out in the pre- ceding chapters of this work. It remains now to consider the mode of reviewing such proceedings after the same shall have been brought to a complete determination by the entry of a final judgment. ' Ante, page 510. " 2 R. S., 609, § 97. 3 Ibid. * 2 Ibid, 608, § 96 ; Id., 67, § 62. = 2 R. S., 609, § 97. " Brockway v. Jewett, 16 Barb., 590. V. S. 88 698 APPEAli. This review is obtained by means of an appeal from the judg- ment, except where issues of fact have been settled and tried by a jury in which cases the review is by motion for a new trial before judgment, as pointed out on a preceding page.^ In all other cases the review must be had by appeal from the judgment, and not until final judgment is perfected, and entered;^ and it cannot be had in any other way.^ General provision relative to appeals. Such appeal is authorized and provided for by section 348 of the Code as follows : " In 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, an appeal upon the law may be taken to the general term from a judgment entered upon the report of referees, or the direc- tion of a single judge of the same court, in all cases, and upon the fact when the trial is by the court or referees. Such an appeal, however, does not stay the proceedings, unless security be given as upon an appeal to the Court of Appeals, and such security be renewed as in cases required by section -335 on motion to the court at special term, or unless the court, or a judge thereof, so order, which order may be made upon such terms, as to security or otherwise, as may be just, such security not to exceed the amount required on an appeal to the Court of Appeals. In the Supreme Court the appeal must be heard in the same manner as if it were an appeal from an inferior court." From what judgments appeal may he taken, and how and when mode. This has been already sufficiently considered in the first section of this chapter. The judgment appealed from must be a ^nal judgment;^ the appeal is taken by the service of a notice of appeal on the attorney for the opposite party, and on the clerk ' Ante, pages 506, et seq. " Watson V. Scriven, 7 How., 10; Wright v. Delafield, 11 How., 456; Hunt v. Bloomer, 3 Kernan, 341 ; Cheesbrough v. Agate, 7 Abbott, 32 ; 26 Barb., 603. ^ This of course refers to a review of the judgment upon the merits, and not to questions merely affecting the regularity of the judgment, as for example the misconduct of the referee, proceeding to trial without having given due notice thereof, and the like, in which cases a motion to set aside the judgment may be made at special term. See ante, page 498; also cases cited in Voorhies' Code, (6th ed.), pages 470, 471. ^ See ante, pages 655, 656. FROM FINAli JUDGMENT. 699 with whom the judgment is entered ; i and must be taken within thirty days after written notice of the judgment shall have been given to the party appealing.^ Exceptions, how and when taken. For the purpose of reviewing a final judgment, the party wish- ing to appeal must, within ten days after he shall have received written notice of the judgment, or such further time as the court or a judge may allow him for that purpose, make his exceptions as they are called, either separately, or stated in a case, in the manner which will be presently shown. Such exceptions must be taken in all cases of appeal from a final judgment, whether it be a judgment consequent upon the trial and decision of a pure issue of law or demurrer, or, upon the trial and decision of issues of fact ; and whether it be an appeal from a final judgment entered on the decision of a judge, where the trial has been by the court, or on a report, where the trial has been by a referee. Section 268 of the Code, which relates to trials by the court, provides that " for the purposes of an appeal, either party may except to a decision upon a matter of law arising upon such trial, within ten days after notice in writing of the judgment, in the same manner and with the same eflfect as upon a trial by jury." And section 272, which relates to trials by referees, provides that "they must state the facts found and the conclusions of law, separately, and their decision must be given and may be excepted to and reviewed in like manner and with like effect in all respects as in cases of op-peal under section two hundred and sixty-eight.'''' ' Within what time exceptions must be taken. By section 268 above, the exceptions must be taken within " ten days after notice in writing of the judgment;" and by section 272 relative to trials by referees, the report may be excepted to " in like manner," &c., as in cases of appeal under section 2G8. " Ante, pages 658, 659 ; Code, § 327. ^ ^^te, pages 653, 654 ; Code, § 332. ^ The words in italics are an amendment to this section, made by the Legisla- ture in I860, being inserted in place of the words " not otherwise ; " the clause previous to this amendment, reading : " and their decision must be given and may be excepted to and reviewed in like manner, but not otherwise." 700 APPEAL. In regard to exceptions in the latter case, however, the thirty- second rule of the Supreme Court, which requires service of a copy of the referee's report with notice of the judgment, provides that the time within which exceptions may be taken to the report shall be computed from the time of such service.^ The time, however, may be extended by an order of the court or judge, or by the consent of the adverse party. And it is usual, either upon the trial (if the judgment be then rendered) or after- wards, and before the expiration of the ten days, to obtain an extension of the time, both to make a case and to make and file exceptions ; and this is done in the same order, or written stipu- lation, if one be obtained. Leave to make a case, however, does not of itself extend the time to take exceptions beyond the ten days.^ But the court has power, under section 174, to relieve a party who has neglected to file his exceptions in time, and allow them to be filed nunc fro tunc? But this is a matter of discretion, and an order granting such relief is not reviewable.^ What the exceptions must contain. The exception spoken of by the Code is to " a decision on a matter of law arising upon such trial." No exception to any ques- tion or matter of fact is necessary. Such matters are reviewed upon a case, as I shall hereafter show. An exception, however, to the final decision that, upon the facts, the plaintiff is not entitled to recover, is an exception to a matter of law, and ia good ; though such exception only raises the question whether, upon the facts as found, the law has been coiTCctly decided.^ The decisions " arising upon the trial," to which the section refers, are not, however, those decisions which are made during the actual progress of the cause before it is finally submitted to the judge or referee; as, for example, exceptions to the improper admission or rejection of evidence, or to the ruling of the court or referee upon any other point to which the party has an oppor- ' See ante, page 498. = Beach r. Gregory, 3 Abbott, 78 ; 2 Bid., 203. 3 Sheldon D.Wood, 14 How, 18. ' King V. Merchants' Exchange Co., 1 Selden, 547. ' Belknap v. Seeley, 4 Kernan, 148. FROM FINAL JUDGMENT. 701 tunity to object while the trial is proceeding. Such exceptions he may, and indeed, must, take at the time ; and if he omits to do so, he cannot afterwards except.' When so taken, they are noted in the judge's minutes, and they will properly be embodied in the case or exceptions made to review the trial, without being re-stated in the " exceptions " which section 268 requires to be taken after notice of the judgment. These exceptions are such, and such only, as under the fonner practice were made to the ruling of the court after the evidence was closed, and before the jury retired.^ In the case of a trial by referees they are exceptions to the conclusions of law, or any of them, drawn by the referee from the facts, and separately set forth in his report as the present practice requires.^ If no exceptions be taken, then the appeal brings up no ques- tion whatever for review." For the court will not consider questions not raised, either on the trial, or aftervp^ards, by proper exceptions to the legal conclusions of the judge or referee.^ Form of, and how prepared, served, Sf'c. Previous to the decisions of the Court of Appeals in Hunt V. Bloomer,^ and Johnson v. Whitlock,'' the practice was some- what unsettled in regard to the mode of taking exceptions and bringing the same to argument on appeal from a judgment entered upon the decision of a single judge, or the report of a referee. Those cases established several important rules which for a time settled the practice. These rules, however, are considerably modified and changed by the recent amendments to the Code^ and rules.^ Thus, it was held in these decisions, that in order to review a judgment, a case must in every instance be made and settled. ' Hunt V. Bloomer, 3 Kern., 341 ; Johnson v. "Whitlock, 3 Kern., 344. = Ihid. ^ And, indeed, this is equally true of the decision of the judge which, in like manner, is required to state the facts and conclusions of law separately. (See ante, page 482.) ' Mills V. Thursby, 12 How., 418 ; Brewer v. Irish, Ibid., 481. = Morris v. Husson, 4 Seld., 204. « 3 Kern., 341 ; 12 How., 567. ' 3 Kern., 344 ; 12 How., 571. « Amendments of 1860. ' Revision of 1858. 702 APPEAL. which must contain the exceptions, both those taken during the trial, and those taken to the final conclusions of law after written notice of the judgment, and that such case and exceptions, if made and served within ten days after such notice, are a sufficient com- pliance with the requirements of the Code, and no formal excep- tions need be made, served, or filed. It was also held, that the report of the referee, like the decision of the court, need not con- tain a statement of the facts, and a separate statement of the conclusions of law ; but that these were to be contained and set forth in the case made for review, and that amendments might be proposed thereto, and the same finally settled by the judge or referee. Under this practice there could be no review of a judg- ment on appeal by the Court of Appeals, unless the exceptions were thus set forth in a case. It was not sufficient that they appeared in the decision of the court, or the report of the referee setting forth both the facts and the legal conclusions, even though formal exceptions had been made and filed within ten days after notice of the judgment. Such exceptions might be so made, filed, and served, within the time (ten days) prescribed, but they must afterwards be embodied in a case made and settled, otherwise they were unavailing. In the last revision of the rule, this practice, as noticed on a former page, is altered by requiring the referee's decision and report to state the facts found and conclusions of law separately ; ^ and the recent amendments to the Code^ require the same thing of the judge's decision when the trial is by the court. Excep- tions, therefore, may now be filed directly to the decision, or the report, and the cause brought on for argument, if the party choose, on these alone, without any case made ; and an appeal may be brought thereon from the general term decision to the Court of Appeals. For, by the amendment of section 272, it is declared, that "when the case on appeal shall have been heard and de- cided at the general term, upon the report of the referee and exceptions, without a case containing the evidence, the decision ' Rule 32, as ameDded in 1 858 ; see ante, pages 494, 495. ' Code, § 267, as amended in 1860 ; see ante, page 482. FROM FINAL JUDGMENT. 703 may be reviewed in like manner,^ on appeal to the Court of Appeals." 2 From this brief review and statement of the practice, it will be seen that the more safe, and I think the better, course is, for the party appealing to take his exceptions to the judge's decision, or the referee's report separately, without any reference to any case made containing the evidence, or exceptions taken on the trial. It may not be necessary to make any case at all, as where the facts set forth in the report, or the decision, sufficiently present the questions of law which are sought to be reviewed, and no review of the evidence is desired. Or, where the appeal is from a final judgment rendered on demurrer," in which also the party appealing must take his " exceptions," within ten days after written notice of the judgment. If, on the contrary, it become advisable or necessary to make a case, either to review the whole evidence, or to present any other exception or exceptions that have been taken during the trial, such case may be made pursuant to the practice of the court (to be presently noticed), and the formal "exceptions" to the conclusions embraced in the referee's report, or judge's decision, embodied therein. As to the mode in which the exceptions must be taken the Code is silent. There is no rule or practice requiring them to be ' As in case of an appeal, from a judgment rendered on a trial by the court, under section 268. ^ The same section, as amended, also provides, that " if the judgment be re- versed at the general term, and a new trial ordered, it shall not be deemed reversed on questions of fact, unless so stated in the judgment of reversal ; and in that case, the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review in the Court of Appeals." Precisely the same provision is, by the amendment to section 268, made applicable to appeals from judgments rendered on trials by the court ; with the further provision, that " no finding of facts, by the general term, shall be re- quired for the purpose of review in the Court of Appeals." Compare with Supreme Court, Rule 38. 3 By the amendment to section 267, the decision of the court must be in writing, and set forth the conclusions of law. The exceptions, therefore, will be to such conclusions, and on these the appeal is properly brought on for argument. 704 APPEAL. ^led within the ten'days, though it is usual, and no doubt proper, to do so. A copy must, within the prescribed time, be served on the opposite attorney. The exceptions should be entitled in the cause, and should briefly but clearly point out the precise point of objection to the decision.' They should not be general, but should specify, particularly, the matter complained of. Where the appellate court cannot determine whether the exception is to the award of judgment, or the manner of giving it, the exception will be disregarded as too general.^ The exceptions may be taken and filed and served at any time within the prescribed period, whether the notice of appeal has been served or not. Preparing case and exceptions. The next step to be taken toward perfecting the proceedings on an appeal is, for the party appealing, if he desire a review upon the evidence, either of the questions of fact or of law, to make a case or exceptions in like manner as upon a trial by jury. It must be made within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court.^ The time, however, may be enlarged by an order of the court or judge. The case is a mere narration of what took place on the trial, and may contain a statement in full of all the evidence given on both sides ; that is, if the party appealing desires to review the facts, and claims a new trial *on the ground that the decision is against the evidence, or the damages excessive, etc. The exceptions (which are to be embodied in the case), are the objections taken to the rulings and decisions of the court or judge. They comprise, as I have just shown, both the objections which have been taken by counsel during the trial, and entered in the minutes, and also the formal exceptions made to the decision or report of the judge or referee after notice of the judgment. ' See Price v. Powell, 3 Comst., 98. " Sands v. Church, 2 Seld., 347; Hunt v. Maybee, 3 Seld., 266. See also Jones r. Osgood, 2 Seld., 233 ; Caldwell v. Murphy, 1 Kern., 416 ; Decker v. Matthews, 2 Kern., 313. » Code, § 268. FEOM FINAL JUDGMENT. 705 The case, however, need not set forth the entire evidence, unless it be intended to review the facts. If a review of ques- tions of law only be desired, a concise statement of the facts, sufficient clearly to present the questions of law arising on the exceptions, is all that is necessary, or proper;^ and the record should not be encumbered with a useless statement of the evi- dence or other extraneous matters.^ And by the 36th rule, it is made the duty of the justice on the settlement, to strike out all evidence and other matters not necessarily inserted. The party desiring a review of a judgment, may, by section 268 of the Code, " make a case or exceptions in like manner as upon a trial hij jury, except that the judge in settling the case, must briefly specify the facts found by him, and his conclusions of law." And by section 264 relative to trials by jury, it is pro- vided that "if an exception be taken,^ it may be reduced to writ- ing at the time, or entered in the judge's minutes, and afterwards settled as provided by the rules of the court, and then stated in writing in a case, or separately, with so much of the evidence as may be material to the questions to be raised, but need not be sealed or signed, nor need a bill of exceptions be made. If the exceptions be in the first instance stated in a case, and it be after- wards necessary to separate them, the separation may .be made under the direction of the court, or a judge thereof." These pro- visions, in connection with the 34th rule of the court, which gives the party appealing an election to make either " a case, or exceptions, or a case containing ex'ceptions," serve very clearly to define the practice in this respect; and from the foregoing analysis of the statute and rules, I think the following general propositions may be considered as established : 1st. A party may simply file exceptions to the referee's report or judge's decision, and appeal directly from the judgment, with- out making or settling a case or exceptions of any kind ; or, ' Sup. Court, Rule 36. 2 Price V. Powell, 3 Oomst., 98; Bulkley v. Kitellas, 4 Sand., 450 ; Huff v. Bennett, 2 Sand,, 703. 3 That is on the trial of the cause. v. s. 89 706 APPEAL. 2d. He may make a case setting out the evidence in full, where he desires to review the same on the ground that the decision is contrary to evidence, or the damages are excessive, &c. ; or, 3d. He may embody in such case his exceptions to matters of law taken on the trial and entered in the judge's minutes, or subsequently taken in the form of exceptions to the final decision, or both ; or, 4th. Where exceptions to erroneous rulings have been taken during the trial, and the party does not wish a review of the evi- dence, or is satisfied with the statement of facts set forth in the decision or report, he may prepare exceptions merely, containing a brief statement of facts, or so much of the evidence only as may be necessary to present the questions of law upon which the exceptions were taken on the trial.^ 5th. Where the party wishes a review by the general term on the facts as well as the law, and for the purpose of such review has embodied his exceptions in a case containing the entire evidence, then, if an appeal be taken to the Court of Appeals, it may be necessary to separate the exceptions from the case, that is, to strike out from the case all evidence and other extraneous matters not necessary to present the questions of law arising on the trial ; and this, under section 264 of the Code, is done under the direction of the court or a judge thereof.^ 6th. But this separation of the exceptions from the evidence in the case should not be made where the judgment has been reversed by the general term on questions of fact, and so stated in the judgment of reversal; because, in such case, by the last amendment of section 268,^ the question whether the judgment should have been reversed, either upon questions of fact or of law, is open to review in the Court of Appeals. It is necessary, therefore, that the appellate court should see the evidence upon which the judgment was reversed, and such evidence should remain in the record which goes up to the Court of Appeals. ' Supreme Court, Rule 36. " Sec Gilchrist v. Stevenson, 7 How., 275; ^abriskie v. Smith, 1 Kernan, 480. ' Amendment of I8G0 ; see also similar amend^^ent to section 272. FROM FINAL JUDGMENT. 707 Proceedings in preparing case or exceptions. These are particularly specified by the rules of the court. The thirty-fourth rule provides as follows : Rule 34. Whenever it shall be intended to move for a new trial (except for irregularity, surprise, or upon the minutes of the judge), or to review by appeal or otherwise, a trial by a jury, by the court, or by referees, a case, or exceptions, or case containing exceptions, as may be proper and the party may elect, shall be prepared by the party intend- ing to make the motion, or to review the trial, and a copy thereof shall be served on the opposite party, within ten days after the trial if by a jury, or after written notice of the filing of the decision or report, if the trial be by the court or by referees ; and the party served, may, within ten days thereafter, propose amendments thereto, and serve a copy on the party proposing the case or exceptions, who may then, within four days thereafter, serve the opposite party with a notice, that the case or exceptions, with the proposed amendments, will be sub- mittted at a time and place to be specified in the notice, to the justice or referee before whom the cause was tried, for settlement. The justice or referee shall thereupon correct and settle the case, as he shall deem to consist with the truth of the facts. The time for settling the case must be specified in the notice, and it shall not be less than four, nor more than twenty days after service of such notice. The lines of the case shall be so numbered that each copy shall correspond. Cases reserved for argument, and special verdicts, shall be settled in the same manner. The case must be served, it will be observed, within ten days after written notice of the filing of the decision or report. Excep- tions, as we have just seen, must be taken " within ten days after notice in writing of the judgment,"' where the trial is by the court, and within ten days after service of a copy of the report with notice of the judgment, where the trial is by referees.^ In either case, however, the time may be enlarged by order of the court, or a j udge ; and it is usual to do so almost as a matter of course. The exceptions may be made and filed, and a copy served, at the same time, with a copy of the case and notice of appeal from the judgment. > Code, § 268. ' Sup. Court, Rule 32. 708 APPEAL. If the party shall omit to make a case within the time above limited, he shall be deemed to have waived his right thereto.^ If he shall have filed and served exceptions, and given regular notice of appeal, the cause will then be brought on upon the judgment roll (containing the decision or report) and the excep- tions. This is always the course taken upon the entry of judgment on a demurrer. The questions are properly presented by the exceptions taken to the judge's conclusions of law, as set forth in his decision under section 267 of the Code. Settlement of case and exceptions. It is provided by rule 3-5, that when a case is made and the parties shall omit, within the several times above limited, the one party to propose amendments, and the other to notify an appear- ance before the justice or referee, they shall respectively be deemed, the former to have agreed to the case as proposed, and the latter to have agreed to the amendments as proposed. The case, as so settled, must be filed with the clerk, within ten days after it shall be so considered settled, or it will be deemed abandoned.^ If the amendments be allowed, they must, of course, be incorporated in the case as engrossed for filing. When amendments have been proposed and noticed for settle- ment, as provided by the rule (No. 34, supra), the case and amend- ments must be submitted for settlement to the justice or referee who tried the cause, at the time and place proposed in the notice. The 36th rule provides that, before submitting the same, the party proposing the case or exceptions must mark upon the several amendments his proposed allowance or disallowance thereof. The parties have the right to be heard by counsel before the justice, and he will amend and correct the exceptions according to the facts. He may correct his charge, even although the par- ties have agreed upon it ; and he may also insert such proof as goes to waive the exception.^ The practice of inserting the judge's charge in extenso in the case has been disapproved.^ And, indeed, all other extraneous matters should be struck out. The ' Sup. Court, Rule 35. ^ Sup. Court, Rule 37. ' 1 Monell's Pr. (2d ed), 718. ■> Bulkley v. Keteltas, 4 Sand., 450. FROM FINAL JUDGMENT. 709 evidence should not be set forth in detached and scattered parcels.^ It is made the duty of the justice, upon settlement, to strike out all the evidence and other matters which shall not have been necessarily inserted.^ The usual practice, it is believed, is for the justice or referee to settle the exceptions vpithout argument, and having settled them to deliver the papers to the party proposing the case, by whom they are to be correctly engrossed, folioed, indorsed and filed within ten days from their delivery to him, by the judge, in the office of the clerk of the county where the action is triable. Consequence of omission to file exceptions. If not filed within the time so specified, the case or exceptions shall be deemed abandoned.^ And on filing affidavit that such case or exceptions has not been filed, and showing the time of the settlement thereof, and that more than ten days has elapsed from the time of such settlement, an order of course may be entered, declaring the same abandoned, and the party may proceed as if no case or exceptions had been made.* But the court, on good cause shown, may, under section 174 of the Code, relieve a party from such a default and allow him to file his case or exceptions nunc pro tunc? ^settlement. If the exceptions are improperly settled, the party objecting may move to set them aside, and to refer them back for a resettle- ment ; and if the court is satisfied that the exceptions are impro- perly settled, it may correct them, or refer them back to the justice vpho tried the cause, to be reviewed and corrected.^ The application must be made at special term of the Supreme Court, notwithstanding an appeal is pending in the Court of Appeals ; and it is not necessary to apply first to the Court of Appeals, to have the cause remitted to the Supreme Court, before making ■ Price V. Powell, 3 Comst., 98. ' Sup. Court, Rule 36. 5 Ibid., 37. ' Ibid. = Sheldon u. Wood, 14 How., 18. ' 1 Monell's Pr. (2d ed.), 714, citing 5 Wend., 132; 7 Id., 471; 10 Id., 254. 710 APPEAL. such application.! But a motion for resettlement cannot be made after the decision of an appeal.^ Undertaking to stay proceedwgs. Section 348 of the Code, which authorizes appeals from judg- ments in the Supreme Court, provides that scTch an appeal does not stay the proceedings, unless security he given as upon an appeal to the Court of Appeals ; and such security be renewed as in cases required by section 335 on motion to the court at special term, or unless the court, or a judge thereof, so order, which order may be made upon such terms, as to security, or otherwise, as may be just, such security not to exceed the amount required on an appeal to the Court of Appeals. This subject has been already alluded to in the first section of this chapter, and the general principles regulating the giving of security upon an appeal and the stay of proceedings on the judg- ment considered.^ I shall merely notice here (in addition to what has been already said), some general provisions of the statute, and rules of practice relative to the form and execution of the under- taking, and its sufficiency to stay proceedings on the judgment appealed from. The section above cited requires security to be given " as upon an appeal to the Court of Appeals," in order to operate as a stay. By section 334, applicable to appeals to the Court of Appeals, to render the appeal effectual for any purpose, a written undertak- ing must be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars. Or that sura may be deposited with the clerk to abide the event of the appeal. Or the security may be waived by a written consent on the part of the respondent. This section, however, it is to be observed, does not apply to appeals to the general term from a judgment of the special term, or on the report of a referee. Such appeals may be made without ' Witbeck v. Waine, 8 How., 433 ; Lyslie v. Sniffen, 3 How., 250. 2 Fish V. Wood, 2 Abbott, 419 ; Fitch v. Livingston, 7 How., 410. ^ Ante, pages 660-663. FROM FINAL JUDGMENT, 711 giving security ; except that if a stay of proceedings is desired, security for costs must be given as provided in that section.' The follovFing sections, 335, 336 and 338, specify what the undertaking shall be, in order to operate as a stay of proceedings on a judgment : 1st. For the payment of money ; 2d. A judg- ment directing the assignment or delivery of documents or per- sonal property ; and 3d. A judgment directing the sale or delivery of possession of real property. In other cases, not specially pro- vided for by sections 335 to 339 of the Code inclusive, the execu- tion of the undertaking to pay costs specified in section 334, stays all proceedings in the court below, except that when the judg- ment directs the sale of perishable property, the court may order it sold, and the proceeds deposited or invested to abide the judgment of the appellate court.^ Form of undertaking. The undertaking, need not be in any particular form, but it should correctly state the substance of the condition required by statute, and it is always the better course to adopt the precise language. It should set out or correctly recite the judgment appealed from, the names of the parties and the court, and the nature or substance of the judgment, with the amount thereof, if for the payment of money, and the amount of the costs.* It is not necessary that the appellant execute it; but it is sufficient if it be executed by two sureties, on his behalf.* If it substan- tially complies with the statute, and secures to the respondent all that the law designs for him it is sufficient.* The undertaking should also contain the residence of the sure- ties. This is required by section 340 so far as regards the copy to be served on the adverse party. The same section also provides that the undertakings prescribed by sections 334, 33-5, 336 and 338, may be in one instrument or several, at the option of the appellant. ' Parsons v. Sydam, 4 Abbott, 134; Staring v. Jones, 13 How., 423. ^ Code, § 342. 3 1 Monell's Pr. (2d ed.), 744. * Ibid., 743. = Smith V. Norral, 2 Code R., 14. 712 APPEAL. Affidavit annexed, and justification of sureties. It is further provided that an undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the sureties that they are each worth double the amount specified therein. The respondent may, hovpever, except to the sufficiency of the sureties, vi'ithin ten days after notice of the appeal ; and unless they, or other sureties, justify before a judge of the court belovi^, or a county judge, as prescribed by sections 195 and 196, within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall be upon nptice of not less than five days.^ The sureties should be freeholders or householders in this state, as they are required to justify in the same manner as bail taken upon the arrest of a defendant. But it is unnecessary to state in the affidavit that the sureties are householders or free- holders ; it will be sufficient if they swear that they are each worth double the amount specified in the undertaking, over and above all debts and liabilities.^ If the respondent require the sureties to justify, he must serve the appellant's attorney with written notice that he excepts to the sufficiency of the sureties.^ He will be in time, however, if he give such notice within ten days after the undertaking has been filed, although more than ten days has elapsed since service upon him of a copy of the undertaking and notice of appeal.* On receiving such notice of exception, the appellant's attorney must serve notice of not less than five days that the sureties will justify, before a judge of the court, or a county judge, within ten days thereafter. If the notice be served by mail, it must be double time.^ Or he may serve notice that other sureties (whose places of residence and occupations must be stated in the notice), will justify, in which case a new undertaking must be executed in the form and to the effect prescribed by law for the first under- taking.^ 1 Code, § 341. 2 1 Monell's Pr. (2d ed.), 745 ; Rich v. Beekman, 2 Code R., 63. 3 Young V. Colby, 2 Code R., 68. ' Webster v. Stevens, 3 Abbott, 227 ; 5 Duer, 690. s Dresser v. Brooks, 5 How., 75. « 1 Monell's Pr. (2d ed.), 747. FROM FINAL JUDGMENT. 713 * At the time and place specified in the notice, each of the sure- ties must attend before the judge, and the respondent's attorney- may examine them on oath in such manner as the judge may think proper. If required by the respondent's attorney, the examination of the sureties must be reduced to writing by the judge, and subscribed by the sureties. If the judge finds the sureties sufficient, he must annex their examination (if the same shall have been reduced to writing), to the undertaking, and indorse upon it an allowance of the sufficiency of the sureties.^ Acknowledging, filivg and serving copy of the undertaking. By the 6th rule of the court all bonds and undertakings, and other securities in writing, shall be duly proved or acknowledged in like manner as deeds of real estate, before the same shall be received or filed. A defect in this respect, however, may be remedied by amendment.^ By section 343 of the Code, the undertaking must be filed with the clerk with whom the judgment or order appealed from is entered. By section 340, a copy of the undertaking, including the names and residence of the sureties, must be served on the adverse party with the notice of appeal, unless a deposit is made as pro- vided in section 334, and notice thereof given. Under this section, it has been held, that copies of all the undertakings which the party is required to give, must be served, and the undertakings filed with the notice of appeal, otherwise it is ineffectual to stay the proceedings ; but if the omission to file the undertaking with the notice of appeal is shown to be the result of accident, the court will allow an amendment under section 327, and stay the proceedings.^ Requiring new sureties. It is provided by section 335 of the Code, that whenever it shall be made satisfactorily to appear to the court that since the execution of the undertaking, the sureties have become insolvent, 1 1 Monell's Pr. (2d ed.), 747. ^ Code, « 327. ' New York Central Ins. Co. v. SafTord, 10 How., 344 ; Cushman v. Martine, 13 How., 402; Mills v. Thursby, 11 How., 129. V. S 90 714 APPEAL. the court may, by rule or order, require the appellant to execute, file and serve, a new undertaking ; and, in case of neglect, to execute such undertaking within twenty days after the service of a copy of the rule or order requiring such new undertaking, the appeal may, on motion to the court, be dismissed with costs. This provision is new, and confers an additional power upon the court which it did not possess before.' It is made applicable in cases of appeals to the general term from a judgment entered upon the report of referees, or the direction of a single judge, where a stay of proceedings is denied pursuant to section 348' In these cases the change of security is obtained on motion to the court at special term. The motion should be on the usual notice, and on affidavits showing the facts which render a renewal of the security proper. Amending undertaking. Section 327 of the Code confers a large discretionary power upon the court, in regard to allowing amendments necessary to perfect the appeal or stay the proceedings. It provides that when a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit, through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just. An appeal is not " perfected " within the meaning of section 339, so as to operate as a stay of proceedings until a proper undertak- ing, with an affidavit of the sureties has been executed, and notice of the appeal served on the clerk and the adverse party .^ But, under the foregoing section, where an appeal has been taken in good faith, although no proper undertaking may have been filed and served with the notice of appeal, the court will allow the undertaking to be filed and a copy of it served, as of the day when the notice was served, with liberty to the respondent to except to the sureties, with a stay of proceedings until the appeal be decided.^ So if the undertaking is defective in not being of a sufficient amount to operate as a stay, the appellant can be ' "Willett V. Stringer, 15 How., 310. » Thompson v. Blanchard, 4 How., 210. ' Mills v. Thursby, 11 How., 129. FROM FINAL JUDGMENT. 715 relieved under this section, and time may be granted him to perfect his appeal, by filing a new or additional undertaking.' It must, however, satisfactorily appear to the court in all cases that the proper notice of appeal has been given within the prescribed time in good faith ; otherwise no amendment can be allowed.^ Preparing the appeal and papers for argument. The notice of appeal having been duly served on the clerk and the opposite attorney, and the appeal perfected by the giving security as above pointed out (if a stay of proceedings be desired), and the case or exceptions, or both, if any shall have been made, having been duly settled, filed, and annexed to the judgment roll, so as to be carried up with it before the appellate court, by the appeal, the next step is to prepare the appeal for argument. Upon what papers appeal to be heard. The appeal from a judgment in the Supreme Court is to be heard upon the notice of appeal, judgment roll, and exceptions thereto, including the case, or case and exceptions, when such has been duly settled and filed. It is not necessary to obtain the return of the clerk, as in the case of an appeal from a judgment of an inferior court, but the cause remains in the same court, and the appellate court has access to, and control over, the records in the office of the clerk. There is, therefore, no transcript necessary.* But the appellant must procure from the clerk copies of the notice of appeal, judg- ment roll, exceptions, and case, when such have been filed, and it is usual to annex to them the general certificate of the county clerk by way of authenticating them ; but this has been said to be unnecessary.^ The 43d rule of the court provides what papers shall be fur- nished to the court and by whom ; that is to say, when an appeal is noticed for a general term, in cases embraced in chapter 3 of title 11 of the Code (appeals from an inferior court,) and of section 348 of the Code (appeals from a judgment entered upon the report ' Stemliaus v. Schmidt, 5 Abbott, 66. 2 The People v. Eldridge, 7 How., 108. ' 1 Monell's Pr. (2d ed.), 770. " Ibid. 716 APPEAL. of a referee or the direction of a single judge), the appellant must furnish the papers for the court, which consist of a copy of the judgment roll, together with a case, stating the time of the commencement of the suit, and of the service of the respective pleadings, the names of the original parties in full, the change of parties, if any has taken place pending the suit, to which shall be added the opinion of the court below, or an affidavit that no opinion in writing was given, or if given, that a copy could not be procured. If a case has been prepared in the first instance, all these matters (except, perhaps, the opinion of the court), may properly be embraced in it. If no such case has been prepared, then a separate statement or case, containing these matters, must be furnished, which, if the party choose, may be set forth on his printed brief or points. Besides the foregoing papers, upon which the appeal is heard, the points intended to be relied upon, with a reference to the authorities intended to be cited, must be prepared.' And each party must, briefly, state upon his 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 on a mere question of fact.^ Printing cases and points. The cases and points, and all other papers furnished the court at a general term in calendar causes,^ must be printed on white writing paper, 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, must be seven inches long, and three and a half inches wide ; and the folio, numbering from the commencement to the end of the papers, must be printed on the outer margin of the page. • Sup. Court, Rule 43. " Sup. Court, Rule 45. ' This includes appeals from an order sustaining or overruling a demurrer, see ante, pages 672, 673 ; and also appeals from a decree or decision of a surro- gate, ante, pages 693j 694. FROM FINAL JUDGMENT. 717 Service on opposite attorney. The appellant must serve on the opposite attorney, at least eight days before the first day of the term, three printed copies of the cases and papers on which the appeal is to be heard ; and, at the commencement of the argument, each party must furnish his adversary with a printed copy of his points and authorities on which he intends to rely.^ Consequence of neglect to serve papers. If the appellant neglect so to serve his adversary with such papers, the latter is entitled to move, on affidavit and notice of motion, for the earliest practicable day in term for hearing non- enumerated motions, that the cause be stricken from the calendar, (whichever party may have noticed it for argument) and that judgment be rendered in his favor.^ In such case, however, the court may, upon sufficient cause shown, grant relief, upon such terms as may be just. The motion days at which such motions can be heard are the first day, and Thursday of the first week, and Friday of the second week of term. But as the notice of motion must be eight days, and the party whose duty it is to serve the papers has the whole of the eighth day before the first day of the term to do so, a motion cannot regularly be made to strike the cause from the calendar before Thursday of the first week. If the cause should be called previous to the day for which the notice is given, the court will pass it without prejudice, until the motion can be heard ; and when heard, unless the party charged with being in default excuses himself, the motion will be granted. And, it was held in the late Supreme Court, under a similar rule, where a party who is to furnish the papers has noticed the cause for argument, without serving a copy of the papers in due time, the other party may move to strike the cause from the calendar without noticing it himself. But where the cause has not been noticed by the party who is to furnish the papers, the other party must show, in his affidavit for the motion, that he has noticed the cause for argument.^ 'Sup. Court, Kule 43. = jjjYi. ^ Herkimer Co. Bank v. Devereaux, 5 Hill, 9; 1 Monell's Pr. (2d ed.), 772. 718 APPEAL. Notice of argument. Either party may notice the case for argument. The notice must be served eight days before the first day of the term at which it is intended to bring on the argument (or double that time if the service be by mail), and must specify the time and place, when and where, the appeal will be heard. The time and mode of the service of notice, and the manner of making proof thereof, are the same as ia case of service of other notices'as pre- scribed by the Code and rules of the court, and as have been con- sidered in a previous chapter of this work.' The appeal may be noticed for a general term held in any county iu the judicial district, embracing the county in which the judgment appealed from is entered ; or for a general term held in another district, in a county adjoining the county in which the judgment appealed from is entered, except, that when the judg- ment is entered in the city and county of New York, the appeal can be heard only in the first judicial district.^ Note of issue and putting cause on calendar. The party noticing the appeal for argument must prepare and file with the clerk of the county where the general term is to be held, at least eight days before the commencement of the court,* a note of issue. This is a brief note of the title of the cause, the nature of the question, the date of the issue (that is, the date of the service of the notice of appeal *), and the names of the at- torneys for the respective parties. In the Court of Appeals the note of issue is a copy of the notice of argument, specifying the judicial district in which the cause originated, and must, also, be furnished the clerk eight days before the first day of the term.^ And by the rules of the Supreme Court in the first judicial dis- trict no note of issue will be received or filed by the clerk, unless it shall appear distinctly on the face thereof, whether the same belongs to the class of enumerated or non-enumerated motions.® ' Ante, pages 436-439. = Code, § 346. 3 Sup. Court, Rule 41. * Ibid. " Court of Appeals, Rule 8. ^ See Additional rules Supreme Court, first district, Voorhies' Code (6th ed.), p. 650. And in the N. Y. Superior Court the note of issue must specify the FROM FINAL JUDGMENT. 719 The clerk is to make up a calendar of the causes and procure the same to be printed for the use of the justices holding the court, the causes being placed thereon according to the date of the service of the notice of appeal ; and other causes as of the time when the question to be reviewed arose.* Argument of appeal. The 43d rule requires that at the commencement of the argu- ment, the appellant must furnish a printed copy of the papers to each of the judges, together with a printed copy of the points on which he intends to rely, with a reference to the authorities which he intends to cite. Each party must also, at the same time, serve upon his adversary a printed copy of his points and authorities on which he intends to rely. The causes are called in their order upon the calendar, except in cases where they have a preference by statute or some rule of the court ; as, iu the cases specified in the act of 1860,^ in which executors and administrators are sole plaintiffs or sole defendants, or in cases of appeals which prevent the issuing of letters testa- mentary or of general administration, which cases have a prefer- ence, both in the Court of Appeals and at the general terms of the Supreme Court, over all actions except criminal cases, and may be moved out of their order on the calendar.^ In some of the districts, special rules are adopted in regard to the calendars of both general and special terms. Thus, in the first district, fifteen causes a day, and no more, are called at the number of the cause on the last preceding calendar, and the date of such calen- dar ; and, also, whether the cause is to be placed on the calendar of the general term, the special term or the trial terra. See Superior Court Rules, Voorhies' Code (6thed.), p.G54, ' Sup. Court, Rule 41. And see as to Kings county, Laws of 1859, ch. 212. " Laws of 1860, p. 270. ' Appeals from orders allowing a provisional remedy have preference over all other motions. (Code, § 401, sub. 5.) Actions by the attorney-general have also preference on the calendar. (See Laws of 1850, p. 200 ; Laws of 1858, ch. 37, § 1.) So also actions against corporations, on notes or ottier evidences of debt, for the absolute payment of money on demand. (2 R. S., 459, § 11.) And see as to discretion of the court in giving preferences, ante, pages 464, 465. 720 APPEAL. general and special terms ; ^ and in the second district ten causes only are called at the general terms.^ And in the first district, if a cause is regularly called and passed, without a postponement by the court, for good cause shown, it thenceforth takes its place on the same or any future calendar, as if the date of the issue were the time when it was thus passed.' When the cause is reached on the calendar, or regularly moved, the counsel for the appellant opens the argument ; the counsel for the respondent replies, and the counsel for the appellant closes the argument. Only one counsel can be heard on each side, and then not more than one hour each, except when the court shall otherwise order.* If the opposite party do not appear on the argument, the party giving the notice of appeal, and putting the cause on the calen- dar, may, upon furnishing due proof of the service of the notice, and of the papers required to be served by him, and unless the court otherwise direct, move for and take the judgment or order he is entitled to, either of affirmance or reversal of the judgment or order appealed from.^ Where a default is thus taken, it is the duty of the moving counsel to indorse his name upon the paper containing the proof of notice.* This enables the counsel for the party in default, to give him notice of an application to the court to open the default, it being the almost invariable practice of the court, on good cause shown, to open a default thus taken, provided the counsel who took it is at the place where the court is sitting, and has notice of the application, The court, however, may, as a condition of opening the default, require the cause to be heard at the same term,^ or may impose such other conditions or terms as it may deem just. ' Rules, first district, Voorhies' Code (6th ed.),648. " Rules, second district, Voorhies' Code (6th ed.), 650. And see further these special rules, as to when causes will be passed on the calendar and under what circumstances reserved. 3 See Laws 1849, p. 708, § 16. « Sup. Court, Rule 54. = Sup. Court, Rule 39. « Sup. Court, Rule 55. ' 1 Monell's Pr. (2d ed.), 774. FROM FINAL JUDGMENT. 721 Decision. The decisions of the court at the general term, are usually made at the end of the term, when they are handed to the clerk of the court — the county clerk of the county in which the gene- ral term is held — and entered by him in the minutes. The decision upon the appeal is either to reverse or affirm, or to modify the judgment appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and the court may, if necessary or proper, order a new trial.^ The subject of the power of the appellate court in hearing the appeal and ren- dering its decision has been considered in the first section of this chapter. Subsequent "proceedings. The 348th section of the Code, relative to appeals to the gene- ral term, from final judgments provides that : " In the Supreme Court the appeal must be heard in the same maa- ner as if it were an appeal from an inferior court." This, no doubt, relates to the place where the appeal may be heard, as provided by section 346 ; ^ and also to the entering and docketing of the judgment upon the appeal, as prescribed in sec- tion 347, which is as follows : " Judgment upon the appeal shall be entered and docketed with the clerk in whose office the judgment roU is filed, when the appeal is heard in a county other than that where the judgment roll is filed, or is not from a judgment of a county court,' the judgment upon the appeal shall be certified to the clerk with whom the roU is filed, to be there entered and docketed." The practice in this respect has been alluded to in a former page.* ' Code, § 330. ^ Code, § 346. " Appeals in the Supreme Court shall be heard at a general term, either in the district embracing the county where the judgment or order appealed from was entered, or in a county adjoining that county, except that where the judgment or order was entered in the city and county of New York, the appeal shall be heard in the first district.'' See ante, page 718. ^ Namely, the Mayors' courts or the Recorders' courts of cities, Code, § 344. " Ante, page 682. V. s. 91 722 APPEAL. The clerk of the county where the general term is held, having filed the brief minutes of the decisions of the general term deli- vered to him by the court, the attorney for the party prevailing in the appeal draws up an order in 'form corresponding with the decision. The order is in the usual form of special term orders noticed on a preceding page,^ except that the caption is, " at a general term," &c., and the names of all the justices holding the court are inserted. No notice of settlement need be given, but it may be entered immediately, ex 'parte, unless it contains special provisions, in which case it is usual for the minutes of the decision, as furnished by the court, to express the same, and to direct the order to be settled by some one of the judges (naming him), who rendered the decision ; and the order is then settled on notice, entered and served, in a similar manner with special term orders, as already pointed out.^ If the roll of the judgment appealed from is filed in another county, a copy of the order, certified by the clerk, is to be filed and entered in such county. If the order is not so settled, but has been entered ex parte, and does not correspond with the actual decision of the court as expressed in the minutes ; or if there be any irregularity in the form or manner of entry of the order, the remedy of the party aggrieved is to move, on an affidavit showing the irregularity and on the usual notice of motion, to set aside the order for the irre- gularity, or to correct or modify it so as to make it conform to the actual decision.^ The motion should be made-^t the general term (unless it be to set aside the order for irregularity merely),* and, if necessary, a stay of proceedings in entering the judgment may be obtained until the motion can be heard. Allowance and taxation of costs on appeal. Costs in equity action are always in the discretion of the court; and the general principles which govern the allowance thereof ■ Ante, page 451. ^ Ante, page 449, et seq. ^ See ante, page 461. « See ante, 432, 615. FROM FINAL JUDGMENT. 723 have been heretofore fully considered in the section devoted to that subject.! The same principles govern in regard to the allowance of costs on an appeal, as in case of a trial at circuit or special term. If the judgment be affirmed, it is usually with costs. If the judgment be reversed and a new trial be ordered, costs, when allowed, are usually directed to abide the event. But in such a case, and also in case where a judgment is affirmed in part and reversed in part, the costs of the appeal are also in the dis- cretion of the court.^ And where there are several defendants, not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them.^ Where a judgment against two defendants is reversed wholly as to one and affirmed as against the other, and no special circumstances render a different disposition proper, the reversal is with costs to the appellant.^ When granted, they are to be taxed according to the rate of allowance prescribed in section 307. A bill of costs is to be made out, and the several items of costs, and disbursements, including the expenses of printing the neces- sary papers, are to be stated in detail, and such items of disburse- ment verified, a copy of the bill served on the opposite attorneys, with notice of taxation or settlement, and such costs and dis- bursements settled by the clerk, in the same manner, in all respects, as upon a trial, as already shown.^ Or the costs may be adjusted or taxed ex -parte, and notice of retaxation given as pointed out on a previous page.'' Entering judgment. The order for judgment upon the decision of the appellate court having been filed and entered in the proper county as noticed above, and the costs adjusted and settled, the next step ' Ante, pages 587, et seq. ^ Code, § 306. ' Ibid. See ante, pages 596, 597. < Montgomery Co. Bank v. Albany City Bank, 3 Seld., 459. = Ante, pages 601, et seq. ^ Ante, page 605. 724 APPEAL. to be taken is the entry of the judgment This is usually done by the attorney for the prevailing party. The judgment is a brief statement of the appeal, and the deci- sion thereon, and the judgment of the court, which is that the judgment appealed from is reversed, or aflBrmed, or modified in the particulars stated, and that the successful party recover his costs and disbursements. Such costs and disbursements are to be entered by the clerk in the judgment. When the appellate court grant a new trial no judgment is necessary, but the filing and service of the order on the decision granting such new trial is sufficient, unless costs on the appeal are awarded, in which case the judgment will be for costs.' As was said in regard to the order on the decision of the appel- late court, the judgment entered thereon being usually for a simple affirmance of the judgment of the court below, or for a reversal, and ordering a new trial, need not in general be settled on notice, but may be entered ex -parte, unless it contain special provisions, in which case it may be settled in the same way as the order, or other judgments as heretofore noticed.^ It should also be entered, and may be docketed, in the same manner as other judgments.^ It is important to remark, in conclusion, that on a judgment of affirmance upon appeal, a new judgment is not to be entered ; that is, a judgment including the amount of the former judgment and interest, and the costs, with costs of appeal. Such a practice has, in some cases, been followed, but is manifestly incon-ect.* The judgment on the appeal is simply a judgment of affirmance with the award of costs, if any, to the appellant, and should be attached to the original judgment roll ; it is improper to enter up two judgments in the same court for the same demand.* And a single execution may be issued to enforce the payment thereof. ' 1 Monell's Pr. (2d ed.), 774. On appeal to the general from a special term, if the appeal be dismissed, the judgment should be, " It is ordered and adjudged that the appeal be dismissed and judgment afBrmed, with costs, and that the respondent have execution for such costs when adjusted and entered in the entry of judgment." (D'Agreda v. Mantel, 1 Abbott, 130.) " Ante, pages 586, 587. ^ Ante, pages 609-611. " 1 Monell's Pr. (2d ed.), 775. 5 Ibid. Bno V. Orooke, 6 How., 460 ; D'Agreda v. Mantel, 1 Abbott, 130. FROM FINAL JUDGMENT. 725 Where a new judgment is entered embracing the original judg- ment and the costs of appeal, such new judgment is irregular, and will be set aside on motion, at special term, with costs ; and the court will direct the proper judgment of affirmance to be entered, and annexed to the original judgment roll. Such a course was adopted in a recent case, not reported,^ at special term, in the first judicial district. ' Bowers v. Tallmadge, N. Y. Special Term, April, 1860, per Sutherland, J. INDEX. ABATEMENT : ^^°^' matter in, may be pleaded with matter in bar of action, 215 of suit in equity, by death, or disability of parties, 302 what is under present practice 303-307 provisions of Revised Statutes in regard to , 304, 305 what portion of statutes still in force, , 305 revivor of suit by order after abatement 305 306 effect of abatement, and when action must be revived 806, 307 revivor and substitution, how made, 309, 312 ( See SuBSTiTtFTioif OP Parties, Supplemental Pleadikq. ) ABSENT DEFENDANT : summons, how served upon, by order, 47, 48 publication against, 48-55 execution, how enforced against, 648 ACCOUNTS AND ACCOUNTING: interlocutory or decretal order to take and state, 513, 514 in what actions allowed, 514 rules of former court of chancery apply, 532, 533 rule departed from, when, 538 form of an accounting before referee, 683 how made up as to charges, discharges and surcharges, 534 party failing to file account, may be compelled, on application to the court,. 535 examining party upon interrogations as to 535 party may be examined as a witness, on his own behalf, to prove payments and discharges, 536 general mode of proceeding before referee, 536, 537 what allowances may be made party accounting, 537, 538 allowance of commissions, 538, 539 necessary disbursements and expenses 538 allowance for attorney, clerk, accountant or agent, 538 allowance and computation of interest, 539 compound interest and rests, 539, 540 ACTION : in equity, and changes in the form thereof, 19 c< seq. equitable, how distinguished from legal, 28-25 how defined by the Code, 22 proceedings before commencement of, 26-32 ( See Guardian, Secdeitt op Costs. ) how commenced, • 32 «< seg.. ( See Summons, Service. ) another, pending between same parties, demurrer for 188 728 INDEX. Page. ADMINISTJRATOR { See Exeoittoks and ADMiifisTEATOEs ). ADMISSION OP DOCUMENTARY* EVIDENCE: obtaining, for purposes of the trial, 272 special form of admission, when proper, 272 ADMISSION OP SERVICE ( See Sekvioe, and Pkoop thbeeop ) : proof of genuineness of signature required, unless signature of attorney or officer of the court 46, 47, 335 mere written admission, without proof of signature, not sufficient, 439 AFPIDAVIT : for order of puhlication, what it must contain, 49 must be on personal knowledge, and not on information and belief, 50 must show residence of defendant, if known, 50 for order against foreign corporations, what must contain, 50, 51 must contain all the facts necessary to show compliance with statute, 51 of service of summons, what must contain, 46 of service by publication, what must show, 54 to obtain discovery of books and papers, 61, 62 of verification to complaint, 111-113 ( See Vebification. ) of verification to answer, 220 for judgment on failure to answer 127, 128 on motion to correct pleading for uncertainty, 170 to obtain further time to demur or answer, 175, 176 on motion for injunction, 357 et seq. ( See Injunction. ) on motion for receiver, 402 et t,eq. ( See Eeceivee. ) on motion for writ of ne exeat, 415, 416 ( See Ne Exeat. ) in general, definition of, 417 complaint and answer regarded as affidavits, when, 417 by whom affidavit must be made, 417 should be by party to the action, when 417, 418 form and requisites of 418. 419 not necessary to entitle 418 but must intelligibly refer to the action, 418, 419 limitation of the rule, 41 9 must be true in substance 420 facts in, may be set forth on information and belief 420 must be legibly written and folioed, 420, 421 subscription, and jurat to 421 irregularity in jurat, what and consequence of, 421 before whom may be taken, 421 when used as motion paper must be filed, 422 on issuing injunction, or allowing order for service by publication, must be filed within five days, 422 used on opposing motion, must be filed, 422 AFFIRMATIVE RELIEF ( See Relief, Complaint, Ceoss Complaint ) : in favor of one defendant against his co-defendants, making default, 223 answer claimirg, should be served on co-defendants 223 may be allowed in final judgment in favor of defendant 684 AMENDMENT : of summons must be allowed by the court, 38, 113 when and how made, , 38 of complaint before appearance or answer, 113 may be made of course, when 113, 114 INDEX. 729 AMENDMENT (Continued) : . not of course, when it involves an amendment of the summons, as by changing parties, &o., 113 nor by introducing a new cause of action, 114 liberal view of amendments prevails, 114 only one amendment of course can be made 114 may be made at any cime before time for answering pleading expires, ...... 114 defective pleading cannot be amended after notice of motion to correct, .... 115 nor by serving same pleading verified in place of an unverified pleading, .... 115 nor can it be made for purpose of delay, 115 amended pleading should be verified, when, 115 takes tlxe place of original pleading, 115 by striking out name of party having no interest may be made on applica- tion for judgment by default, when, 128 when allowed to save running of statute of limitations, 149 to answer, when may be, of course, 221 application for, must be made to the court, when 221 to answer, cannot set up facts occurring after issue, 222 to complaint after answer or demurrer, , 195, 231, 232 when allowed, and within what time 232 may be disregarded, when, 231, 232 after order for judgment on frivolous answer, 247 after the trial and decision of an issue of law 476, 477 power of referee, as to, 488 omissions and mistakes in judgment may be supplied by, when, 613-615 mistake in judgment corrected by amendments on motion, 614 omissions supplied by order without interlining the judgment, when 613 judgment corrected by attaching necessary papers to the roll 614 or by filing bond, nunc pro iunc, 614 application to amend general term judgment may, be made at special term, when, 615 amendment of undertaking on appeal from final judgment, 714, 715 court may relieve against accidental omission to serve or file undertaking, . . 713 ANSWER : to bill in equity 12 exceptions to, for insufiiciency, 13 extending time to serve 174-177 order for, how obtained and served 176-178 leave to answer after time expired, how obtained and on what terms, 178 after judgment, for want of an answer 178-180 after default, or service by publication and before judgment 178, 179 after judgment, in actions for divorce 179 application for leave to answer after default, how made and granted, 180 on what terms granted, 181 to one or more causes of action, and demurrer to the residue, 194 answer in chancery, and difference between it, and answer under the Code 198, 199 is used, now only as a means of defense, 199 different parts of, 199 denial, general and specific, 200-205 CSce Denial — Genekal and Specific) when fact is within defendant's personal knowledge, or may be ascertained, he must answer positively, 203, 204 new matter must constitute a defense, 224, 205 meaning of the term " defense," 205 -208 partial defense may be pleaded under the Code 206, 207 and unless so pleaded, evidence to sustain the same cannot be given, 207 examples and illustrations of the rule, 206, 207 of new matter in bar of plaintiffs' claim, ; 208 facts and not evidences must be set forth, 208 facts and not legal conclusions must be set forth 208 facts material to the defense only must be set forth, 208 V. s. 92 730 INDEX. Fagk. ANSWER (Continued) : must not be hypothetical, evasive, or in the alternative, , . 208 matter occurring between commencement on suit and putting in answer may be pleaded, 208, 209 equitable defense to legal action may be pleaded, 209 illustrations of the rule 209, 210 counterclaim or answer for affirmative relief, 210 -2 14 (See COUKTEKOLAIM.) separate answers, what kind may be pleaded together, 215 inconsistent, cannot be pleaded, 215 inconsistent answers, what are, 215 in abatement and in bar may be pleaded together, 215, 216 separate defenses, how pleaded, 216 each must be complete in itself, 216 but general allegation of facts equally applicable to each defense, made in one statement in answer, will apply to all, 216 formal commencement or conclusion unnecessary 217 effect of separate answer, 217 each answer stands by itself, 217 should be joint or separate, when, 217 counterclaim in favor of one or more of several defendants may be pleaded when, 217, 218 unnecessary repetition not allowed 218 nor several defenses substantially the same, 218 verifying, 219 amending, 221 serving and filing 222 APPEAL : from order overruling demurrer as frivolous, and fiom judgment entered thereon 197, 246, 247 from order striking out defense as sham or irrelevant, 244 substitution of parties, in case of abatement after appeal taken, 308, 309 from order allowing or refusing substitution of parties 312 from order continuing, modifying or vacating injunction, 374 from interlocutory or decretal order will not lie to court of appeals, 518 nor will appeal lie from mere decision of the court on the trial, 657 difference between appeal from decretal order and final judgment, 519, 655 from taxation of costs and proceedings thereon, 605-607 {See Costs.) from order adjudging party guilty of contempt, 636 general rules applicable to and regulating, 651 only party aggrieved may appeal 652 from several parts of same judgment, 652 person not party to the record may appeal, when 652 party obtaining judgment may appeal, when, 553 cannot appeal piecemeal from different parts of same judgment at different times, 653 within what time must be taken, , 653-655 from what judgments may be taken, 655 whether will lie from judgment by default, or on consent, 655, 656 notice of appeal, 658 what the notice of, must contain, 659 service of notice on adverse party and clerk, .■ 659, 660 title of suit on appeal not changed, 660 does not of itself stay proceedings, 660 how proceedings on appeal are stayed, 660-663 {See Stat of Proceedings.) effect of appeal from order granting or dissolving injunction, 663 when perfected, court below has no further jurisdiction, 663 what matters raised by appeal before appellate court, 663, 664 interlocutory decree or order, reviewable on appeal from final judgment, when, 664, 665 INDEX. 731 Paok. APPEAL (Continued) : only where order necessarily affects the judgment, 665, 666 power of appellate court on, 666 may reverse, affirm or modify judgment , 666 who are proper parties to appeal, 667 in case of death of party suit must he revived, 667 provisions of Revised Statutes in regard to parties applicable, 668 dismissing, for irregularity, or other cause, 668, 669 motion, when and how made and opposed 669 from decretal order, in what cases will lie, '. . 521 , 655-657 in what cases will lie from other interlocutory orders, 656-658 provisions of the Code in regard to appeals from orders, 670 mode of perfecting appeal from order, 671 proceedings on appeal from order, 671, 672 how brought to hearinj;, and on what papers, 671, 672 in what cases a calendar cause, 672 from order sustaining or overruling a demurrer, how brought to a hearing, 672, 673 from orders granting or refusing a new trial, 673, 674 decision of appeal from order, and order thereon, 674, 675 from order or judgment in special proceeding, 675 et seq. {See Special PeooeedingsJ how taken and perfected in such oases, 679, 680 stay of proceedings on, 680 hearing of, how brought on and on what papers 680, 681 power of the court on, and judgment or order upon, 681, 682 costs on, how and when awarded, 682 from orders and judgments of county court and county judge, 678, 679 from surrogate's decision or decree, 683-697 to what court must be taken, 683 within what time brought 684 notice of, must be filed and entered 684 bond on, and stay of proceedings 685 petition of appeal, and what it must contain 685-688 parties appellants, who must be, 688 parties respondents, who must be, 689 guardian for infant respondent, 690 dismissal of, for neglect to file petition or other cause, 690, 691 order to answer petition and proceedings thereon, 691, 692 surrogate's return, how made and what must contain, 692, 693 further return may be ordered, 693 appeal papers, how entitled, 693 preparing cause for argument, 693, 694 hearing and argument, how brought on 694, 695 further evidence on appeal, allowed when 695, 696 proceedings subsequent to decision of appeal, 696, 697 costs in appellate court 697 from final judgment in an equity action, proceedings on, 697 et seq. provision of Code, relative to 698 exceptions, how and when taken, 699-704 (See Exceptions.) preparing case and exceptions, 704^710 {See ExOEPTioss and Case.) undertaking to stay proceedings, 710-715 (See Undektaking, Stay of Peocebdings.) preparing appeal and papers for argument, 715 not necessary to obtain return from the clerk, 715 upon what papers to be heard '15 copies of, to be certified by the clerk 715 appellant to furnish papers, ; 715 case and points to be furnished 716 printing cases and points, ■ 716 service on opposite attorney 716 consequence of omission to serve, 716 732 INDEX. Page. APPEAL (Continued) : notice of argument, how and when served, . .' 717 note of issue and putting cause on calendar, 718, 719 (5ee Note of Issue, Calendar.) argument of cause, 719, 720 papers furnished the court on argument 719 causes called in their order except preferred causes 719 actions in which executors, &c., are sole plaintiffs or defendants, and appeals preventing the issuing of letters testamentary, &o., have preference, 719 course on argument if opposite party do not appear, 720 default may be opened, when and on what conditions, 720 decision of court on argument, 721 subsequent proceedings thereon to the entry of judgment 721-724 (See Judgment.) allowance and taxation of costs on appeal, 722, 723 new judgment not entered on judgment of affirmance, 723 APPEARANCE : of defendant in an equity suit 9 not necessary in action under the Code, 19 of infant and married woman, 28, 86, 87 action may he commenced by voluntary appearance, 32 when a waiver of irregular process, 34, 147 notice of, and effect thereof, 147 ASSIGNMENT OF DEMAND : action on, to be brought by assignee, 72 unless he is a mere nominal owner, and not the real party in interest, 73 [See Complaint.) ASSISTANCE, WRIT OF : not abolished by the Code, 637 use of, to obtain possession of real estate in enforcing judgment 638 how and when issued, 639 ATTACHMENT (See Contempt). ATTORNEY : liable for costs, when and to what amount, 30 for guardian may subscribe summons 37 priuted subscription of name to summons not sufficient 37 may verify complaint, when, 110 may verify answer, when, 220 in suit, cannot be appointed receiver, 399 lien upon judgment for costs 597 BANKS : injunctions to suspend business of, 357 (See Injunction.) BILL (See Complaint). BILL OF PARTICULARS : demand for, provision of Code in respect to, 160 applicable generally to common law actions, 160 may be required in equitable action, when 160 161 application to the court for, 161 BOND (See Undertaking) : for security for costs 3I must be filed and notice thereof given, 32 INDEX. 733 BOND (Continued) : ^''°^' on appeal from surrogate's decision or decree, 685 of guardian, and filing same, '...'...'. 155 amendment of defective bond, when allowed, ". . '.".'.'.*. . . .'.*."." VsV 156 BOOKS {See Discovert op Books, Papeks and Documents). CALENDAR: putting cause on for trial, 330 718 filing note of issue eight days before court, 33o| 718 in what court, and where note of issue to be filed, 331 to be printed, 33X_ 719 motions to correct, have a preference, 331 462 cause may be entered at foot of, by consent, ' 331 in the discretion and under control of the court, 331, 332 special rules in regard to, in first and second districts, 719^ 720 CAPTION : of orders 45I of judgments '..'.'........ 685 CASE {See Exceptions akd Case). CERTAINTY: motion to correct pleading, 169, 170 how motion made and brought to hearing, 171 in injunction order, 363 364 CHANCERY (See Equity and Equity Jukisdiction) : origin and history of court of, 1-7 courts of, under colonial government, 2, 3 under state government, 3 4 jurisdiction of, and power of chancellor and circuit judges, 4,' 5 officers of the court of chancery, 5 changes in organization, by the constitution of 1846, and ludiciary act of 1847 •: 5,7,15 general course of proceedings in, under the former practice, 8-15 COMMISSION, EXAMINATION OP WITNESSES ON : in what cases may issue, 284 papers on application for, what must contain, 284 motion for, cannot be made till after issue, 284 may issue generally, when, 285 stay of proceedings on, 285, 286 nomination of commissioners, 286 application for, when and where made, and by whom granted, 287 may issue to examine non-resident party, 287 only as to evidence to be used on the trial, not on mere collateral matters, , . 287 granting of, is always in discretion of the court, 288 allowance of commissioner, and form of, and filing with the clerk, 288 interrogatories on, how allowed and settled, 288, 289 judge must indorse allowance upon, 289 and direct manner in which they shall be returned, 289, 290 copy of instructions to commissioners to be annexed 289 how executed and returned, 290, 291 all interrogatories and cross-interrogatories must be answered, 291 formal defects on execution of, when received, 291 return of commission, 292 depositions, when may be read in evidence 292, 293 irregular or defective execution a ground for suppressing depositions, . 293, 294 motion to suppress, when made and allowed , 295, 333 second commission, when may issue, 295 734 INDEX. rAQB. COMMISSION, EXAMINATION OF WITNESSES ON (Continued) : newlv disoOTered evidence, mistake, &c., sufficient cause to authorize new . • 9Qfi commission, ~vi efiect of amendment of pleadings on depositions taken, 296 proceeding to trial notwithstanding commission, 296 motion to proceed, how may be opposed,. 297 COMMITTEE AND RECEIVER: service of summons upon - *"i ^° what actions may he brought bj, °^ committee and lunatic may join as parties plaintiff, when, 85 facts showing appointment of and right to maintain the suit must be set forth in complaint by "°j <'' > °\ if facts be not so set forth objection must be taken by demurrer or answer,. 187 COMPLAINT {See Cross Complaint) : difference between, and bill in chancery, Hi 66 must conform to summons 34 irregularity in, not waived by general appearance 34 {See Iekegulaeitt.) how framed as to title of the cause, 67-89 name of the court and county must be stated, 67 68 if wrong county be named amendment may be had, 68 (See Place of Tkial.) how framed as to parties • 70-88 (See Pakties.) how framed as to statement of facts, 89 et seg. as to the mode of the statement 89-95 statement must be of facts only, 90 cannot introduce matter for the purpose of examination of, or discovery from defendant, 91 nor pretences, charges and interrogatories, 90 nor matters of evidence merely, 90, 91 nor legal conclusions, 91 what are facts as opposed to legal conclusions, 91, 92 m. " physical facts " must be pleaded, 93 ». illustrations of the rule 92-95 act of agent cannot be pleaded as act of principal, 93, 94 averment as to ownership of note, 93 averment as to sale and delivery of property, 92, 93 facts showing constructive delivery must be alleged, 93 and facts constituting fraud, 94 and facts showing the party's interest in the subject matter, 94 mere argument or inference not pleadable, 94 nor hypothetical, nor conditional statements, 94 nor allegations in the alternative, , 94, 192 facts may be set forth on information and belief, 94 as to substance or sufBciency of statement, 95, 103 facts must constitute a cause of action, 95 all the material and issuable facts must be set forth, 95 facts bearing upon the particular relief sought may be pleaded, 96 facts showing right to costs may be pleaded, 96, 116 facts necessary to confer jurisdiction must be pleaded 96 facts showing the particular character in which the plaintiff sues, and his title to maintain the suit must be set forth 96,97 facts showing what interest defendant has must also be set forth, 97 but same precision not required as in regard to the plaintiff, 97 m. defendant's interest in foreclosure and partition suits, how stated, 97, 98 in action to dissolve partnership what facts sufficient, 98 for specific performance of contract to convey lands, what statement suf- ficient, 98 may contain several causes of action, 99 statement of several causes of action, how made, 99 INDEX. 735 COMPLAINT (Continued) : ^^™" in wliat cases complaint may join different causes of action 99-103 (See Joinder of Actions.) causes of action joined must be separately stated, 103 as to form of the statement, , 103 iQg must be set forth without unnecessary repetition, 103 irrelevant and redundant matter must not be inserted 103 104 {See Irrelevant And Kediindant Matter.) what is irrelevancy in complaint, test of, 104, 105 same cause of action must not be repeated in same complaint, , 104 causes of action must be plainly numbered, 105 and must be folioed and legibly written 106 and subscribed by the party or his attorney, 107 consequence of defect in these respects, 106, 107 demand for relief how set forth and what it must contain 107,' 108 verifying, amending, filing and serving complaint, , . 108-118 (See these titles respectively.) copy served may be treated by defendant as the true complaint, 113 demurrer to, 183-197 (See Demurrer.) defect in statement of facts not waived by failure to demur, 193 CONTEMPT : punishment by, for refusing to discover papers and documents, 64, 276 for refusing to obey order to pay money or trust property into court, 271 for refusing to satisfy part of demand admitted, 239 punishment of party by, for refusing to be examined as a witness, 302 for refusing to obey order directing payment of money or doing some other specific act, , 459, 460 process of, to enforce final judgment, 623 et scg. cases in which final judgment may be enforced by, 624, 625 not necessary to issue execution before proceeding for, 623, 624 service of copy judgment, to be first made, 624 how judgment or order must be served 625, 526 personal service of injunction order dispensed with, when, 626 application for process may be made, when, 626 subsequent compliance, an excuse, when, , 626 to what court application to be made 627 order for attachment, how and when allowed 627, 628 form of attachment, and what it must contain, 628 proceedings upon attachment, 628, 629 order to show cause why party should not be punished, 629, 680 proceedings on appearance of party in contempt 630 filing and service of interrogatories, 630, 631 answer to interrogatories and decision of the court thereon, 631 not necessary that interrogatories should be filed, when, 631 reference to examine party, and report as to contempt, 632 punishment for, and power of court thereon, 632-634 order on conviction, for, 634 process of commitment, 635 sequestration, in aid of, 635 relief and discharge of party imprisoned, 635, 636 appeal from order 636 CORPORATION : summons and process against, how served, 44, 45 receivers in suits against, when and how appointed, 396, 397 judgment against, how enforced, 645-647 by execution, 646 by appointment of receiver, 646 by sequestration, 641, 646, 547 in case corporation is insolvent, 647 736 INDEX. Pagb. COSTS ( See Secbeitt fob Costs ) : on judgment by default, not of course, 129 taxation and relaxation on judgment hj default 135 bill of, need not be inserted in judgment roll, 137 costs and extra allowance'on defendant's offer to compromise before judgment, 157 facts showing right to, may be inserted in complaint, 96, 166 on motion, how and when allowed, 446 to be collected by execution, 447 of reference as to claims to surplus money 549 in equity actions, in the discretion of the court, 687 general rules respecting the granting of, in equity oases 688 paid out of the fund, when, 589, 595 rule as to trustees, personal representatives, &o., 590, 59 1 how and when allowed, and out of what fund payable, 595 in suits for administration of assets, 690, 591 in oases of construction of wills and deeds, 591 in cases of interpleader, 592, 593 in foreclosure oases, 593 in partition cases, 593, 594 in suits by guardians, 595 separate bills of costs to different parties 596 597 to be taxed, as between party and party, when, 597 attorney's lien for, upon judgment, 697 rate of allowance 597, 598 per centage on amount recovered, 598 court or referee may determine value or amount in controversy, 599 extra allowance, in what cases granted, 598, 599 interest to be taxed in costs 601 disbursements, what may be taxed 601, 602 must be stated in detail and verified 602 items for attendance of witnesses, how stated and verified, 602 notice of taxation, how served, and time of service, 603 adjustment or taxation of, 603, 604 how opposed, and on what afHdavits, 604 entry of, in judgment by the clerk, C04, 605 entry of ex parte, and retaxation, 135, 605 retaxation on appeal, 605, 606 on what papers made, 606 motion for, how made, 606 should be made without delay, 607 decision of the court on motion, and proceedings thereon, 607 on appeal from order, &c. , in special proceedings, 682 on appeal from surrogate's decision or decree, , 697 on appeal from final judgment , . . . 722 taxation of, when allowed on appeal, 723 COUNTERCLAIM : application for judgment on, by default, 134 on judgment by default, deemed admitted where there is no reply, 143 to plaintiff 's complaint in equitable actions, 210 legislative definitions of, 210, 211 meaning and construction of term, 211 must constitute a cause of action in itself, 211 not necessary that it should equal the amount of the plaintiff's claim 211 but must be available either as a set-off or cross action, 212 illustrations of the rule, 212, 213 may include any demand which might have been asserted by cross bill,. . . . 214 in favor of one or more of several defendants, when may be pleaded, 217, 218 may set up matter formerly proper to be presented by cross bill, when, 224-228 {See Cboss Complaint.) may be demurred to, when, 250, 251 INDEX. 737 Page. COUNTY COURT AND COUNTY JUDGE: jurisdiotion in equity cases 678, 679 appeal from judgment in, 678, 679 appeal from order of, in special proceedings in equity oases, 678, 679 CROSS APPEALS : from different parts of same decree, .■ 652 when perfected may be brought to hearing at the same time, 652 CROSS COMPLAINT: defenses by way of, may now be set forth generally by counterclaim, . . 212, 214 is founded on matters in the original suit, 214 cases in which defense by counterclaim may now be used instead of cross bill, 214 nature of cross bill in equity, 224 original and cross bill but one cause, , 224 not necessary now in case of mere cross demand 224 but matter of, may be set up by counterclaim, 224 cases in which it may still be resorted to 224 as where one defendant demands affirmative relief against his co-defendants, 225 matter of, and what it must contain, 226 relief demanded on, may be purely equitable or legal, 226 defendant setting up counterclaim, and filing cross complaint may be com- pelled to elect, 226 must be confined to matters in original complaint, 226 otherwise demurrer will lie . 227 should be served at time of putting in answer, 227 court may order to be brought, at the hearing, when 227 proceedings on, and who to be served with, 227 original and cross suit to be heard together, 227> 228 no order necessary therefor, 228 DEATH (^See Substitution of Parties) : of party after appeal brought, effect of, 667 DE BENE ESSE {See Examinatioi? of "Wituess, Testimony — Pekpetuatihg). DECREE [See Judgment). DECISION OF THE COURT : on judgment by default 142 on trial of an issue o f law and proceedings thereon 474-477 on trial of issue of fact, form of, and what it must contain, 480-482 how drawn up, settled, and reviewed, 483, 484 on appeal at general term from final judgment, 721 DECRETAL ORDER (See Order Interlocutory or Decretal). DEFAULT {See Judgment) : application for leave to answer after, how and when granted, 179, 180 on what terms - ■ 181 DEFENSE (5ee Answer). DEFENSE AFTER JUDGMENT : right of, on judgment obtained upon order of publication, 54, 55 DEMAND FOR RELIEF (See Relief, Affirmative Relief) : in summons, what must contain, ., 35 {See Summons.) DEMAND OF PARTICULARS (See Bill of Particulars). V. s. 93 738 INDEX. Fagk. DEMAND, MOTION TO SATISFY PART ADMITTED : how and when may be made, 236-239 order thereon and how enforced 228 DEMURRER : to hill in chancery 11 extending tim,e for demurrer to complaint, 175 order to extend time, how ohtained and proceedings thereon, 176, 177 demurrer admits facts stated in pleading demurred to, 183 provisions of the Code in respect to, 183, 184 will only lie where entire pleading defective 184 difference between former and present practice, 184 must distiiictly specify cause of action demurred to 184 must be to the substance, and not to the form of the complaint, 185 cannot be to the relief in the complaint, 185 for want of jurisdiction, 185 for want of plaintiff's capacity to sue, 186, 187 that another action is pending between same parties, 188 for defect of parties plaintiff, 188, 189 for defect of parties defendant, 189, 190 for improper joinder of several causes of action, 190, 191 that complaint does not contain facts sufficient to constitute cause of action, 191-193 is proper where demurrer to bill in equity would lie, 191 want of interest in plaintiff or defendant, proper ground for, 192 obj eotion to complaint not waived by failure to demur, when, 1 93 form of, and how drawn, 193, 194 may be general that facts do not constitute cause of action, 193 for wa'nt of parties, must show who proper parties are, 193 will not be sustained on ground different from what is stated in, 194 to one or more causes of action and answer to the residue, 194 filing and service of, ],g4, 195 plaintiff's proceedings after demurrer, 195 {See Amendmekt.) frivolous, application for judgment on 196, 197, 244 {See Fkivoiods Demueeee.) demurrer to answer, 249, 251 counterclaim may be demurred to, when, 250 demurrer to reply, 253 DENIAL, GENERAL AND SPECIFIC : may be general to the whole complaint, 200 or to the whole with one or more exceptions, 200 admissions in terms, not proper in answer, 200 specific, how made and form of, 200 may be on information and belief, 201 or as to knowledge or information sufficient to form a belief, 201 defective, consequence of, and how treated 201, 202 defendant must answer positively as to facts within his knowledge, 203 answer to several charges must be in the disjunctive, 204 rules as to, similar to former chancery practice, 204 DEPOSITION {See ExAMnjATioN, Commission, Testimony — PekpehtAting). DEPOSIT IN COURT OF MONEY OR TRUST PROPERTY {See Motion) : motion, how and when made, 268-282 DISCONTINUING SUIT : after action brought, 228 when must be, on leave of the court 229 as to one of several plaintiffs, 229 on what terms will be allowed, . . , 230 motion for and order of discontinuanc s'soj 231 INDEX. 739 Page. DISCOVERY, BILL OF: abolisied by the Code, 19, 20, 297 {See Examination op Adverse Party.) DISCOVERT OF BOOKS, PAPERS AND DOCUMENTS : to enable plaintiff to frame his complaint, 55 application for, in what cases may be made 55-58 provisions of the rule, and of the Code, in regard to, 56 auxiliary to, and not a substitute for the statute, 56,57, 159 provisions of statute in regard to 67,159 may be had in equity as well as common law actions, 57 what papers and documents may be obtained, 68, 159 must contain evidence relatiog to the merits, 68 what facts party making application for, must show, 59, 159, 160 denial on oath that party has the possession or control of the documents, an answer to the application, 59 what possession of party sufficient, 60 application for, how made, 60 what the moving papers must contain, 60, 61 facts need not be verified by oath of party 61 to enable defendant to frame answer, 168-160 order for, how and when granted 62 form of order and proceedings in obtaining it 63 effect of order for, 63 mode of enforcing order. 63 manner in which discovery is made 64, 65 further order of discovery, 65 vacating order of discovery 66 to obtain inspection of documentary evidence for the purposes of the trial 273-277 application how made and proceedings thereon 275, 276 order for, when and how allowed and how enforced, 276, 277 DISMISSING COMPLAINT : for want of proper parties, ... 72, 84 for neglect to serve copy complaint, 147, 148, 322 motion for, on what papers, and how made 148 order for, and judgment thereon, 148 motion to dismiss for failure to file security for costs, 151 for want of prosecution, 319 sole defendant may move to dismiss, 320 motion to dismiss when and how granted 320, 321 must be made at earliest opportunity, 320 plaintiff may stipulate to bring cause to trial 321 motion to dismiss by defendant served, for failure of plaintiff to serve on other defendants, 321 defendant not served cannot move to dismiss, 322 cause may be restored after dismissal, when, , 322, 323 DOCKETING (5ee Judgment) : judgment when and how docketed, and effect of same, 139, 140, 610, 611 of order or judgment found on petition 460, b09 DOCUMENTS {See Disoovbet of Books, Papers and Documents) : production of, 56-60,158-160 obtaining admission of, as evidence, 97L977 obtaining inspection of, as evidence, ^'° ^j,' mode of proceeding to obtain inspection ^'Oi ^'o ' proceeding ^laui/iug of the ordc. ., ,- - „_„ order for, and how enforced, -^ '° granting of the order discretionary Wfi 277 740 INDEX. ' Page. ENROLLMENT OF JUDGMENT (See Judgment Roll) : of order or judgment founded on petition, 460, 609 EQUITY AND EQUITY JURISDICTION: forms and modes of procedure in equity under former jurisdiction, 8-15 courts of, under former organization, 1-8 equity suit under former practice, 8, 9 bill in equity and contents thereof, 11, 12, 89 defendant, how brought into court, 9, 10 answer to bill, and its uses, 12, 198 plea in equity, and its uses, 197, 19S demurrer to bill in chancery, 11 reply to bill in chancery 13 exceptions for insufficiency of answer, 13 testimony in equity suit, how taken 13, 14 feigned issues, 14 {See Issue op Fact to be Tkied by Jury.) changes in equitable actions by the constitution of 1846 and the Code, . . . 15-23 distinction between suits at law and in equity abolished, 15,16 distinction between remedies and relv.f, , 18, 23 review of decisions since the Code, 17-19 principles of equity jurisprudence not impaired by the Code, 18, 19 changes in the form of equity actions, 19 appearance not necessary, 19 mode of pleading in, how affected by the Code 20 (See Pleading, Complaint, Answer.) interlocutory remedies in, not abolished, 21 practice in, where not ineonsistant with the Code, retained 21-23 special proceedings in, not affected by the Code, 22, 23 practice before master in cases of accounting, not abolished, 22 (See Referee, Account and Accounting.) equitable actions, how distinguished from actions of common law origin, . 23-25 equity pleading substantially retained by the Code, except that discovery is abolished, 89 (See Complaint, Answer.) EXAMINATION OP WITNESSES (See Commission, Testimony — Perpetuating) : to perpetuate testimony, 278, 279 to take testimony conditionally 280-283 (See Testimony — Perpetuating.) out of the state, on commission, 283-297 (See Commission.) EXAMINATION OP ADVERSE PARTY : no longer allowed in a pleading 19 formerly obtained in chancery by bill of discovery 297 bill of discovery, and action in aid of another action, abolished by the Code, . 297 may be compelled either at the trial, or before, or conditionally, 298 before trial is matter of right, 298 at the option of the party claiming it, 298 unless the judge for good cause otherwise order, 299 summons to adverse party to appear before judge, 299 at what stage of action to be had, 300 how taken before trial and certified 300 rules of court of equity in general applicable to, 300 evidence of party may be rebutted 301 party, how compelled to attend, 299, 301 consequences of refusal of parly to attend, 301, 302 warrant may be issued for party disobeying, to compel appearance, 302 party may be punished for contempt in refusing to attend, 302 INDEX. 741 Page. EXAMINER IN CHANCERY: under tlie former practice 8, 10 office of, abolished, .... 20 EXCEPTIONS : for purpose of reviewing judgment, how and when taken. 699 within what time must be taken, 699, 700 nature of, and what must contain, 700, 701 differ from exceptions taken on trial, how 701 if none are taken, appeal brings up no question for review, 701 form of, and how prepared and served, 700-704 appeal may be heard on exceptions to judgment or report without any case made, 701-703 exceptions should be taken separately and before case made, 703 should be filed, and copy served 704 exceptions on trial, stated in case how taken, and practice thereon 704-710 {See Exceptions and Case.) may be allowed to be filed nunc pro tunc, 700 must be taken in all cases, even upon decision and judgment on an issue of law, 699,708 EXCEPTIONS AND CASE: nature and use of, 704 must be prepared within what time, 704 case need not set forth the whole evidence unless it he intended to review the facts, '. 705 exceptions must be embodied in case, 705 general propositions and rules governing practice in regard to, 705, 706 provisions of Code in regard to preparing case and exceptions, 707 within what time must be prepared and served 704, 707 consequence of omisbion to make case 708, 709 if none made, appeal is heard on judgment roll and exceptions, 708 settlement of, 708, 709 resettlement of, 709, 710 must be filed as settled, within ten days, 709 consequence of omission to file, 709 EXCEPTIONS TO REPORT : of referee on interlocutory order, 565 et seq. report reviewable on exceptions, when, 565 not on account of irregularity, $65 nor to correct an omission or error 565, 566 may be taken to any erroneous ruling of the referee on questions of law, 566, 567 also to his finding of facts 567 but not to erroneous conclusions from the facts when found correctly, 566, 667 who may except, 567 mode of reviewing by exceptions, and provisions of the rule in regard to, . . 566 how taken and form of exceptions, 567, 568 what sufficient certainty in, - 568, 567 filing and serving exceptions, 569 noticing cause for hearing, 569 hearing and argument of, 569-573 (See Heakino.) EXECUTION : to collect interlocutory costs 437, 459, 619 upon what judgments may issue, 618, 619 can issue only on final judgment, 618 and not until papers constituting judgment roll are attached together and filed, 618, 619 may issue immediately on filing judgment roll, 619 742 INDEX. Pagk. EXECUTION (Continaed): may issue on happening of a contingency, when, 619 different Icinda of, 619, 620 against the property, 620 against the person, in what cases may issue 620, 621 not until execution against property is returned unsatisfied, 621 order for, when necessary, 621 form and contents of, 621, 622 sufficient if it substantially follow the terms of the statute, 622 proceeding on , by sheriff, 622, 623 not necessary to be issued in order to found process for contempt 623, 624 against corporations 646 against absent defendants, 648 against personal representatives, heirs and devisees 648, 649 against lands and tenements held in trust, 650 EXECUTORS AND ADMINISTRATORS: suit by, to foreclose mortgage, 74 provision of the Code relating to suits by, 84 lacts showing appointment of, must be set forth in complaint by, ... 96, 97, 187 objection to complaint by, for not setting out facts, must be taken by de- murrer or answer, 187 receivers against, when and how, appointed, 39 6 rule as to costs in actions by and against, 589, 590 judgment against, how enforced by execution, 648, 649 EX PARTE ORDER ( See Order ). EXTRA ALLOWANCE ( See Costs ). FEIGNED ISSUES ( See Issues of Fact to be Tried et Jury ) : abolished 14, 262, 263 FILING PAPERS : summons, when required to be filed 39 notice of lis pendens, 39-41 ( See Notice or Pendency of Action. ) complaint must be filed, when, 39, 115, 116 order for substituted service of summons must be filed, 48 affidavit and order of publication must be filed, and consequence of omis- sion 53, 422 demurrer to complaint, &e-., 194 answer, 222 papers on motion must be filed, 422, 447, 454 consequence of omission to file, 454 affidavit and undertaking on injunction must be filed within five days, . 362, 422 consequence of omission 362, 622 case and exceptions must be filed within ten days after settlement, 709 consequence of omission, 709 undertakings on appeal must be filed, to render appeal effectual as a stay of proceedings, 713 but accidental omission to file may be remedied by amendment 713 FORECLOSURE : notice of pendency of suit must be filed in action for twenty days before judgment, 40, 41 action must be brought by executor or administrator of deceased mortgagee, 74 defendant's interest in suit, how stated in complaint, 97 judgment by default on personal service, and reference to computed amount due, 130 judgment on service by publication, and reference 133 ofi'er to compromise suit, how made, and effect of, 145 appointment of receiver in case of, 391, 392 INDEX. 743 Paob. FORECLOSURE (Continued) : proceedings after judgment in regard to claim to surplus moneys, 546, 547 order of reference and proceedings thereon, 547, 548 report of referee, 549 rule as to costs of reference, 549 proceedings on sale by referee, ^ .... 556 final judgment in, wliat must contain, 583 rule as to costs in case of foreclosure, 593 FRIVOLOUS DEMURRER {See Frivolous Answer akd Demctkrek). FRIVOLOUS ANSWER AND DEMURRER : {See Sham And Irreievant Answers and Defenses.) what is 244, 245 motion for judgment on, 196, 197, 244 motion, how and when made, 196, 245 on -what papers, 196, 245 notice for what must contain, 245 order for judgment and eniry thereof, 245, 246 reference on, when will be ordered, 246 appeal from order or judgment on, 197, 246, 247 (See Appeal.J leave to answer after order for judgment, 197, 245, 246 on what terms and how leave to answer is granted, 246 FURTHER DIRECTIONS (See Hearino, Okder Interlooutort or Decretal). decretal order reserving further directions, 512 cf seq, final hearing upon, 573 et seq. GUARDIAN : infant must appear by, 27 must be appointed before suit in all cases of infants, except infant married woman, 27, 87 how appointed, 28, 152 petition for appointment, 28, 153 consent to be appointed, 28, 154 order for appointment of, 28 change of guardian and substitution, 29 may be allowed costs out of fund, when, 595 may be required to give security for costs, 29 {See Seouritt for Costs.) liability for costs, and how enforced, 595 attorney for, may subscribe summons 37 need not be appointed for married women, 86, 87 in partition suits, must be appointed according to the provisions of Revised Statutes 155 bond of, and filing same, 155 amendment of defective bond, when allowed 155, 156 HEARING (See Trial op Motion): of special motions, time and place of, 440 mode of proceeding on, if party do not appear 441 no further relief can be granted in oases of non-appearance that notice asks for, 441 proceeding on, in case of appearance and motion opposed, 440-443 decision upon, and order, 442-448 e^ sej. (See Order.) disputed facts how determined on hearing of motion 444 incidental matters pertaining to, 462-472 (See Trial.) 744 INDEX. Pase. HEARING (Continued) : by the court of an issue of law and of an issue of fact, 472-485 {See Trial.) of argument on exceptions to referee's report on decretal order, 570-573 may be brought on at the same time with final hearing of the cause, 570 or separately before final hearing, 570, 571 when brought on together who entitled to open and close, 570, 571« what papers to be furnished on argument, 671 if facts are to be reviewed, certified copies of evidence must be obtained from referee, 571 affidavits and evidence not used before the referee inadmissable on argu- ment 572 decision on argument and proceedings thereon, 572, 573 report may be sent back for correction before court decides tbe exceptions, 573 final hearing on further directions, 573-578 when cause may be heard on further direction, 573, 574 where to be heard, 574 how brought on and what papers famished for, 574^576 proceedings on hearing, 575, 576 party not excepting to referee's report is concluded by the finding of facts, 575 court will not hear extraneous evidence, 576 decision and order upon further directions, 576, 577 final judgment upon, 576, 577 (See Judgment.) additional order will be made on hearing when 577 receiver appointed when, though refused on hearing of the cause 578 INFANT : must appear by guardian 28, 87 {See Guardian.) juflgment cannot be taken against, by default, without guardian, 87, 152 nor if there has been an answer unless guardian has been regulary appointed, 87 proceedings to appoint guardian, 152-156 {See GUAEDIAN.) infant is party plaintiff', and not the guardian 88 whether complaint by should state facts showing the appointment of guar- dian, 88 m judgment against, not allowed by consent, 143 when defendant may petition for guardian though no summons have been served, 156 INJUNCTION: writ of, abolished, and order substituted therefor, 119 order for, granted at commencement of suit or at any time afterwards 119 though allowed, cannot be actually served before suit commenced, 120 must be allowed on complaint with or without affidavits and not on affidavits alone, 112 if allowed on complaint alone, the complaint must be verified positively as to all material allegations, 120 who may grant injunction 120, 121 may be granted ex parte, when, 120, 121 on an order to show cause, when, 121 form of injunction order, 121 service, how made, 122 {See Service and Proof Thereof.) motion to dissolve, 112 different kinds of injunctions, 337 provisional injunctions, 338 339 may be granted without notice at any time before answer 338, 339 tor on an order to show cause, with temporary injunction in the meanwhile, . 338 INDEX. 745 Paqe. INJUNCTION (Contiuued) : in what cases provisional iiijanctions allowed 339 et seq. where great or irreparable injury is threatened 340 on allowed unless some part of relief demanded consists in granting final in- junction, 343-345 must appear that act sought to be restrained is unlawful, 345 and cannot be amply compensated in damages, 345 cases cited in which preliminary injunctions are not allowed, 345-350 oases in which preliminary injunctions are allowed, 350-354 can be allowed only in case action is commenced, 354 may issue on petition, when, 355 what officers and courts may grant, 356, 357 application first heard at general term, when, 356 out of court, may be made by any judge in any part of the state, 356 county judge, when may allow, 356 not to suspend business of corporation, 357 on what papers may be moved for, ' 357 complaint is a sufficient affidavit, 357 but must be verified positively, 357 if facts in, are set forth on information and belief, additional affidavit, swear- ing to such facts positively, must be produced 357, 358 notice of motion and service of papers therefor, 358, 359 motion for, how made and opposed, 359 order to show cause, with temporary injunction in the meanwhile, 359, 360 proceedings on return of order, or on appearance of defendant on notice, . . . 360 order allowing, must be settled, entered and served, 360, 361 security upon injunction in what cases required, 361 must be by undertaking, 361 form of undertaking, 362 sureties must justify and undertaking be proved or acknowledged, 362, 363 mast be filed within five days, 362 form and contents of order, 363 act restrained or commanded should be sufficiently specified, 363, 364 should be only against persons who are parties, 364 exceptions in case of agents, attorneys, &c. 364 service of, and proof of same, 364, 365 substituted service allowed, when, 366 failure to serve affidavit an irregularity merely, 366 efiect of Older served on party, 366-368 must be obeyed though irregularly issued, 368 and for disobedience court may punish for a contempt, 367 (See Contempt.) second application to same judge or court cannot be made on same facts, .... 368 discharging, dissolving and modifying, 369-372 motion to dissolve on comfilaint alone, 370 on defendant's affidavit with or without answer, 370 verified answer alone a sufficient affidavit 371 what affidavits may be read on motion, 371 plaintiir may fortily his case by additional affidavits, when 371, 372 order on motion to dissolve, entry and service of, 372 reviving and continuing injunction, 373 will be continued to the hearins, when 373 made perpetual by final judgment, when, 373 appeal from order continuing, modifying and vacating, 374 efiect of appeal from order granting or dissolving injunction, 663 INQUEST: . . not applicable to equity actions, odu INSPECTION OP DOCUMENTS : in what oases ordered, 274, 275 applications for and proceedings thereon 273,-277 {See Discovery of Books, Papebs and Documents.) V. s. 94 746 INDEX. Paob. INTERLOCUTORY REMEDIES : {See Provisional Eemedies, Injunction, Receiver, Ne Exeat.) not affected by tlie Code, where not inconsistent, 21 INTERLOCUTORY ORDER {See Oeder Inteelocutoet oe Deceetal). IRREGULARITY : in summons and complaint 34 in summons and service thereof, 148 appearance a waiver of, when, 34, 147, 149 retaining a paper and acting on it a waiver of, when, 154, 457 mere constructive appearance a waiver of, 35 alternative notice for relief in summons irregular, 35 gervice of summons by party to the action irregular 42 in entering judgment on defective proof of admission of service of sum- mons, 47 in not setting forth in complaint the name of the court, or county where place of trial is to be had 67, 69 in not separately stating different causes of action in the complaint, 105, 106, 190 for other formal defects in complaint, 1 05-107 omitting to subscribe complaint 107 complaint not conforming to summons irregular 34, 113 copy affidavit not served with injunction order an irregularity, 122 in what case motion to set aside summons for, may be made, 148 motion to set aside for, how and when made 149, 150 in order for further time to answer, 176, 178 in order for further time to reply, 233 objection to demurrer or answer for, must be made before taking any steps in the cause, 233, 234 must be taken without delay, 234 {See Waivee.) objection to irregular pleading, how taken, 234 motion to set aside for or correct, how and when made 234, 235 affidavit for motion to set aside for, should be made by party, 417 notice of motion for, must point out irregularity 435 in final judgment, is ground for setting it aside 616 but not where relief may be had by amendment, 617 motion to set aside for irregularity may be made at special term, 617 in form, or entry of order for judgment on decision of appeal 722 entering new judgment on appeal embracing former judgment irregular 724 IRRELEVANT AND REDUNDANT MATTER: pretences, charges and interrogatories, 90, 91 legal conclusions, 91-94 impertinence and unnecessary repetition, 103, 104 matters of evidence, 103, 104 few unnecessary words not irrelevant, 104 motion to strike out, not encouraged, 105 former practice in equity, in regard to, 162, 163 practice under the Code 163 motion to strike out, from complaint must be made before demurring or answering 162, 163 mere extension of time to answer a waiver, 236 when right to make motion waived, 163, 164, 236 what matter may be struck out 164, 165 test to determine irrelevancy, 165, 166 facts in complaint showing right to costs not irrelevant, 166 what matters not irrelevant in a pleading, 166, 167 order on refusal to strike out, not appealable, 167 liberal construction adopted in regard to 168 rules applicable to, 168, 169 unnecessary repetition in answer, struck out, when, 218 several defenses substantially the same, defendant compelled to elect between, 218 INDEX. 747 Faos. IRRELEVANT ANSWER {See Sham and Ikkeletant Answees and Defenses). ISSUES OF FACT TO BE TRIED BY JURY : feigned issues abolished, 14, 263 issues of fact in equity suits, 14, 262 what issues may be ordered to be so tried 263 application for issue, how made, 263-266 may be ordered by the court on its own motion, at the trial 265 in divorce oases issues must be first settled 265 motion for issues and proceedings thereon 266, 267 proposed questions of fact may be settled by the court or by a reference, . . . 267 proceedings before referee on settlement of issues, 267 mode of trial of issues not regulated by the Code, 501 former practice, how far applicable, 501 mode of bringing on trial, 501 proceedings upon trial 501-503 reading of depositions, and re-examination of witness on trial of issue, .... 503 verdict of the jury, 503 has the efiect of a special verdict, 503 verdict must be in writing, and filed with the clerk, 504 proceedings subsequent to verdict, 504-506 cause brought to hearing on, 505 at the same term, or subsequently, on notice 505, 506 judgment of the court thereon, 506, 507 motion for new trial, when and how made 506, 507 provisions of the Code in respect to, 506, 507 new trial on the ground that verdict is contrary to evidence, 507, 508 for error of judge ou the trial, 508 stay of proceedings to make case for, 509 motion for new trial on judge's minutes, 509 proceedings subsequent to verdict oi^ issue in contested will oases, .... 510, 511 JOINDER OF PARTIES ( See Pabxies ) : demurrer for non-joinder of parties plaintiff and defendant,. 188-190 JOINDER OF ACTIONS : provisions of the Code in respect to, 99-103 must all belong to one of the classes specified, 100 illustrations of the rule, 100, 101 equitable actions not belonging to either class cannot be joined, 101 what causes of action cannot be joined, 101, 102 must affect all the parties to the action, 101 must exist in the same right, 101 illustrations of the rule, 101 must not require different places of trial _ lOl as in cases of foreclosure of lands lying in different counties, 101 but does not apply to actions for partition, 101 demurrer for improper joinder of several causes of action, 190 JUDGMENT : term "judgment " substituted for " decree," 124, 585 pro confesso under former chancery practice, 124 on failure to answer, |^^ must be always on application to the court in equity suit, 1^5 at what place application for, may be made, 1^5. j^o application ex parte, if defendant does not appear, l^o fact of non-appearance need not be shown • l^o on proof of personal service of summons, and that no answer or demurrer Tijm nppTi T*f*ppnrPQ. ■•« •■■■■■••■••■•• *••■■•••*••••••■ •••*•* ••■* x^j ■ what other proof must'be "furnished on failure to answer in mortgage and partition cases, and actions for divorce • • • • 1^7 service on all the defendants must be shown, 1^/, iza 748 INDEX. Page. JUDGMENT (Continued) : on application for judgment, the name of a defendant having no interest may be struck out, 128 what proof of facts required on application, , 128 judgment must be in conformity with relief demanded in complaint 128 will be rendered for what relief tlie court thinks the party is entitled to, . . . 129 complaint may be dismissed though defendant do not appear 129 in what oases, on failure to answer, reference ordered to take account, or proof of other facts 129, 130 proceedings upon such reference, 130, 131 ( See Repeeence, Accounts and Accounting. ) in foreclosure cases and oases of simple accounting, reference may be imme- diately executed, and judgment thereon rendered, 130, 131 when allowed, judgment must be certified to and entered in proper county, . 131 applioittion for, when service is by publication, 131 what proof, on failure to answer, must be furnished, 132 court may take proof, or order a reference, 132 proceedings on reference, 132, 133 security before judgment may be required, when, 133, 134 application for, on counterclaim, 134 papers certified to another county 135 entry of costs, 135 making up judgment roll, 135-140 (See Jddoment Roll.) must be entered in judgment book, 136 may be docketed, when, 139 on failure to appear at the trial, 140-143 allowed only on proof of plaintiff's cause of action, 141 on pleadings alone at the trial, 467, 468 by consent on written offer by defendant 143 not allowed against infant without a reference 143 offer for, may be made in every class of actions, 144 what the ofl'er must contain, 144 offer by parties sued jointly, must be made by all 145 entry of judgment on written offer 145 what proof required thereon 145, 146 in what cases defective judgment is a nullity, 148 in what cases irregular merely 148, 149 [See Ikregulakity.) on order overruling demurrer or answer as frivolous 245, 246 on decision of an issue of law after trial by the court, 474-476 when final, where issues of fact are undisposed of, 475, 476 decision on issue of law is an order and not a final judgment, when, . . . 476, 579 amendment after decision on issue of law, 476 final, on hearing upon further directions, 576, 577 may be taken on final hearing, as in case of judgment by default, 576 but intermediate order for judgment usually entered, 577 final judgment, definition and nature of, 678, 579 not final until signed and enrolled, 579 may be final although it direct a reference, when, 579, 580 must embrace all the parties and the whole controversy, 581 requirine further order to complete ii, 680 reserving liberty to apply to the court, 580, 582 who bound by, and against whom may be made, 681 what must contain, 581 form of, against infant heir, 582 may contain a reservation, when, 582 may be in the alternative, when, 582 in foreclosuie suit, what must contain 583 must be according to allegations and proofs, 583 may be for specific performance and damages, 583 INDEX. 749 Pagi;. JUDGMENT (Continued) : to reform a contract, and damages for 'breaoli of it, 584 may settle equities between co-defendants, 584 but not to prejudice plaintiff 's rights, 584 may be for affirmative relief to defendant, 684 caption and title of, 585 recitals in 585 ordering and declaratory part of, 585 form of, entered nunc pro tunc, 586 drawing up of, from decision of court, 586 amendmenis to and settling judgment 586 cannot be settled ex parte, after defendant's appearance 587 costs, allowance of and entry in judgment 587 ei siq. (See Cosis.) entry of, by clerk, on trial of wbole issue by the court, by referees, or on finding of a jury 607, 608 making up and filing judgment roll, 608-610 {See Judgment Roll). transcripts and docketing 610, 611 entry of, on interlocutory order and subsequent report of referee, 611-613 if allowed in another county, must be certified to proper county, 612 settling and entering 612 judgment roll, what must contain 612 entry of costs, T 613 rectifying and amending judgment 613, 614 vacating for irregularity or other cause, 614-617 correcting by bill of review, 615 vacating after roll filed, 616, 617 in what cases, may be vacated 616, 617 how enforced and carried into effect 617, et seq. how enforced by execution, 618-623 (See Execution.) how enforced by process as for contempt, 623-636 (See Contempt.) how enforced by writ of assistance, 637-639 how enforced by writ of injunction, 639, 640 how enforced by writ of sequestration 641-643 (See Seotestkation.) successful party will be put in possession of the land, when, 641 how enforced by appointment of referee or receiver 643, 645 receiver appointed after judgment, on motion or petition, 644, 645 referee appointed by the judgment itself, • 644 how enforced against corporation, 645-647 (See Cokpokations.) how enforced against absent defendants, 648 how enforced against personal representatives, heirs and devisees, 648-650 how enforced against lands held in trust 650 appeal from, and proceedings thereon 697 et seq. (See Appeal.) entry of, on decision of general term on appeal, ''^■^~I?t order for on decision, how settled and entered _• • '.^.i judgment on appeal need not in general be settled, unless it contain special directions, V ' i ' ' V " " Ha on affirmance or reversal on appeal, new judgment should not be entered, .. U't but should be simply judgment of affirmance or reversal awarding costs, 724, 725 JUDGMENT ROLL: what it must contain on judgment by default, iqr " ■iqV flfn what papers necessary to be inserted in 1^0, 161, oiu how made up 750 INDEX. Paqe. JUDGMENT ROLL (Continued) : taxed bill of costs need not be inserted, •. 138 imperfections in, how remedied, 138 effect of enrollment of judgment, 138, 139 may be altered by the court when, 139 certified copy of, may be used as evidence, 139 on judgment by consent, made on written offer of the defendant, 140 making up and filing, after trial by the court, by referees, or on finding of jury 608-610 judgment interlocutory, until signed and enrolled, 579 no process can issue on judgment, until enrolled, 608, 609 order or judgment, founded on petition, may be enrolled, 460, 609 duty of the clerk to make up roll, if not done by party or attorney, 609 what papers are necessary, parts of, 610 judgment may be enrolled, nunc pro tunc, and effect of, 610 on entry of judgment upon interlocutory order, and subsequent report of referee, 612 correcting by bill of review, 615, 616 amendment of, after roll filed, 613, 614 vacating, for irregularity or other cause, after roll filed, 614-617 JURISDICTION : demurrer, for want of 185, 186 objection on account of, nflly be raised at any stage of the suit 186 judgment a nullity, unless it show jurisdiction, 188 LIMITATION, STATUTE OF : amendment of irregular summons when allowed to save running of the statute, 148 LIS PENDENS [See Notice op Pb'kdekot op Suit). LUNATIC [See Committee and Rboeivee). MARRIED WOMAN : appearance by 27, 86, 87 may sue or be sued alone when, 87 MASTER IN CHANCERY (See Referee) : ofSoe of, under former practice 5 abolished by Code and duties performed by referee, 5 accounting before, in equity suit, 22 {See Accounts and AcconNTiirG.) MERITS, AFFIDAVIT OP : not necessary in an equity suit, 332 MISTAKE (See Amendment). ' MORTaAGE {See Foreolosube") : receiver in mortgage cases will not be appointed, when 386, 387 when and how receiver will be appointed, 391, 392 MOTION : to dismiss summons for failure to serve copy complaint, 148 to dismiss summons for irregularity, ■ 148 to set aside complaint for irregularity, 150, 234, 235 to strike out redundant or irrelevant matter, 162-165, 235 (See Iebelevant and Redundant Matter.) INDEX. 751 MOTION (Continued) : ^''''^' to correct pleading for uncertainty, 169_ 170 235 how made and notice thereof, 17o' 17l' 235 to dissolve injunction, or ne exeat, 172, 173 to discontinue action, 230, 231 to satisfy part of demand admitted, 236-239 when and in what cases allowed, 287, 238 oi'der thereon and how enforced 238, 239 to strike out sham or irrelevant answer, 240-244 {See Sham and Ikhelevant Answers and Defenses ) for judgment on frivolous answer or demurrer, 244-248 {See Frivolous Answer and Demurrer.) to change place of trial, 256-261 {See Place op Trial.) for issue to be tried by jury 261-268 {See Issue op Pact to be tried by Jury.) to compel deposit in court of money anci trust property 268-272 in what eases application for, may be made, 268, 269 how and upon Tvhat papers made 271 order thereon, and how enforced, 271, 272 to suppress irregular or defective depositions taken on commission, . . 295, 333 to substitute parties on abatement of suit, when and how made, 309, 312 {See Substitution of Parties.) to dismiss complaint for want of prosecution 319-323 {See Dismissing Complaint.) to refer cause to a referee to hear and determine, 823-328 {See Reference, Referee.) when and how may be made, 326, 327 for appointment of receiver, ... , 404^08 motion in general, definition of, 426 ex parte applications and motions without notice, when may be made, 426-428 must be made at special term, when, 428 special, must be on notice, 428, 429 {See Notice.) before what court and where to be made, , 429 must be made at special term, when 429, 430 in first district may be made at chambers 429 general term may hear special motion, when, 430, 431 must be heard by general term, when 432 provisions of the Code in respect to, 430 in what judicial district must be heard, 432 county named in complaint is county where action is triable, for purposes of making motion, , 432 and county stated in summons, where no complaint is filed 433 on what day in general term motions must be brought on to be heard, 433 non-enumerated must be noticed for first day of term 433 in first district contested motions heard at special term 434 and calendar for special term made out 434 notice of motion, what it must contain, 434, 435 time and mode of serving notice, 436^39 (Sec Notice.) proof of service of notice, 439, 440 (Ste Service and Proof Thereof.) hearing of motion, 440-445 {See Hearing.) disputed facts, how determined , 444 reference to referee to determine facts on motion 444 second application for, cannot be renewed 445 but may be renewed where matter is discovered since the first motion 445 752 INDEX. Paoe. MOTION (Continued) : costs of, when and liow allowed, 446, 447 how collected and enforced, 447 (See Costs.) papers on, to be filed, 447 orders made on special motion, 449-456 (See Ordeb.) to correct ca'endar, 462 to suppress depositions on the hearing 462 to postpone cause, 463 to refer cause on the trial, 464 on exceptions to referee's report, made upon decretal order, 569-572 for relaxation of costs '. 606, 607 to enforce judgment by process of contempt, 627 appeal from order brought on as a motion, 6 ' 1 NE EXEAT: motion to discharge may be made before answer, 173 what affidavits may be read in support of motion to discharge, 174 nature and use of writ, 409 whether it has been retained by the Code, 409, 410 in what cases and for what puposes, may be resorted to, 410-412 against whom, and on what demands, 411, 412 in divorce cases may be allowed, when, 411 complaint, what must contain, 411 application for, on what founded, 412 may be made at any stage of the suit, 412 by whom granted, 413 notice of, when necessary, 413 affidavit or petition for, by whom made and what must contain, 413 writ of, how allowed and issued 414 service of, on defendant, 414 defendant's bond on arrest, '. 414, 415 discharge of writ on giving security 415, 416 causes for discharge of writ and motion, how and when made, 173, 174, 415, 416 NEW TRIAL ( See Appeal, Issue of Fact to be teied by Jdkt ). NEXT FRIEND ( See GnAKDiAN ). NOTE OP ISSUE ( See Calendar ) : must be filed eight days before court, 330, 718 in what court and where to be filed, 331 contents of 718 in court of appeals 718 in first judicial district, 718 NOTICE ( See Servtce akd Proof thebeop ) : of trial, when and how served, 328-330 ( See Trial.) to produce papers on the trial, 335 motions, when may be made without notice, 426, 427 special motions must be made on notice, when, 428, 429 party appearing entitled to notice, when 428, 429 time of notice of special motion, eight days, 428 order to show cause equivalent to a notice 360, 429 order may be for a shorter time than eight days, 428 what notice must contain, 434, 435 if motion made on ground of irregularity, the same must be pointed out.. . 435 INDEX. 753 Page. NOTICE (Continued) : several objects may be included in same notice 435 time and mode of serving 436-439 ( See Service akd Pkoop Thereof.) NOTICE OF PENDENCY OF SUIT • siould be filed, in what cases, 39 must be filed twenty days before judgment in mortgage cases 40, 41 must be filed at, or any time after, filing complaint, 40 is not operative if filed before suit commenced 40, 41 if complaint is amended new notice must be filed, 41 if amendment is merely by adding new parties, the amended notice neces- sary only as to such parties, 41 effect of notice as to subsequent purchasers, 41 NOTICE TO PRODUCE PAPERS ON TRIAL : how and when given, 335 on failure to produce, secondary proof admissible, 335 NULLITY : judgment a nullity, when 148 where it shows no jurisdiction in the court, 148 OFFER TO COMPROMISE {See JunOMEHT) : when and how made, and what it should contain, 143, 144 should be made on behalf of all the defendants 157 entry of judgment thereon, 145, 146 not sufficient unless it be to take judgment with costs, 157 extra allowance of costs on, when granted, 157 eflfect of offer on further proceedings in the cause 157, 158 ORDER : of publication, how and when allowed and contents thereof, 51, 52 {See Publication.) to produce papers aud documents, 62-66 {See Discovert of Books, Papebs, and DoonMBNTS.) of injunction, form of, 121 {See Injunction.) on motion to correct pleading, • • 171 to extend time to demur or answer 176, 177 to discontinue action, 230, 231 to satisfy part of demand admitted, aud how enforced, 239 to strike out sham or irrelevant answer, 243 for judgment on frivolous demurrer or answer, 245 to change place of trial, form of, and proceedings thereon 261 to compel deposit of trust money or property in court 271 how enforced and proceedings thereon, 211, 212 to substitute parties on abatement of action or transfer of interest 310-312 to refer cause to referee to hear and determine, 326, 327 {See Reference.) for appointment of receiver by the court, ._ 405, 406 of reference for appointment of receiver by referee, 406, 407 in general, definition of, ^Jq interlocutory under former practice, what was 448 common orders and orders by consent »48 ex parte orders, • ■ • • |!» order to show cause, practice on, • • **»> J^" special orders granted on motion, how drawn up and settled 44y, 4au counsel obtaining must indorse bis name on, ■•• 4*^ form of, : 450-^52 V. s. 95 754 INDEX. Page. ORDER (Continned): how entered or certified to another county for entry 452-455 how served on adverse party 455, 456 {See Seevioe and Pkoop Thereof.) construction and effect of, 456^59 ■within what time to be complied with, 457-459 irregularity in, when waived, 457 distinction between irregular and void orders 457 conditional, how and within what time performed, 458, 459 how enforced, 459-461 by execution to collect interlocutory costs _. . . . . 459 by process of contempt for disobedience in paying money or for refusing to do other specific act, 459, 460 opening, modifying and discharging, 461 interlocutory or decretal order reserving further directions, 512 et seq. {See Order, luTEKLOcrrTOKT or Decretal.) for judgment upon final hearing on further directions, 576, 677, 611 further order necessary to complete judgment, when, 581 requires final report and confirmation, 581 appeal from order, and proceedings thereon 669-675 {See Appeal.) for judgment on decision of general term, on appeal from final judgment, . . 722 settlement and entry of such order, 722 when such order must be certified to another county, 722 ORDER TO SHOW CAUSE: equivalent to notice, 429 to show cause why injunction should not issue, 360, 361 may be made by judge returnable before court, 360, 429 or by jud^e out of court before himself, , 429 to show cause why receiver should not be appointed, 403 may be for shorter time than eight days, 428 special reason for shorter time must be shown in the affidavits, 436 on return of, motion for absolute order, how made, 427, 449 ORDER INTERLOCUTORY OR DECRETAL : reserving further directions, 512 et seq. elTect of to suspend final judgment, 513 to take accounts and make computations, 513, 514 {See Accounts and Accounting.) to make inquiries, 514-516 to sell estates or adjust other matters before final judgment,. . .516,-519, 551-560 {See Sale op Real Estate bt Referee.) distinction between, and final judgment, 516, 519, 579 how entered on trial, and decision by the court, 519, 520 decision itself not an order 520 course of proceeding on interlocutory decision, 520, 521 right of appeal from order, in what cases, 521 {See Appeal.) reference upon, and proceedings thereon 522 et seq. {See Reference, Referee.) for apportionment or partition of real estate, and proceedings thereon, 550, 551 order for judgment upon final hearing on further directions, 576, 577 further order to complete judgment, 581 appeal from and proceedings thereon, 569-675 (See Appeal.) PAPERS {See Discovert of Books, Papers and Documents, Service and Proof Thereof). PARTICULARS, DEMAND OF {See Bill of Paeticolahs). INDEX. 755 PARTIES : importance of making proper parties in equity suits 70 consequence of omission in foreclosure and partition cases, 70 court will not proceed to judgment unless all necessary parties are brought in,..., 71 rules of the Code in regard to, 71, 72 action must be prosecuted by real party in interest, 72 meaning of the rule 72, 73 in case of assignment of cause of action, 72, 73 practice in chancery and under the Code the same, 73 mere nominal owner, not the beneficial claimant, cannot bring suit, 73, 74 exceptions in case of trustees, &c., 74, 85 tenant cannot sue to restrain waste or for irreparable damage, 74 nor executor or administrator for specific performance to convey land, 74 nor devisee or heir to foreclose mortgage, 74 joinder of plaintiffs, 74 all persons interested in obtaining the relief must be parties plaintiff, 75 what interest sufficient, 75 , 76 parties who may be joined as plaintiffs, 75, 76 parties who must he joined as plaintiffs, 76 in what eases one or more of many parties may sue for benefit of all, 77-79 in what cases one or more may defend for the benefit of all, 79 applies only where it is impracticable to bring them all before the court, 79 , 80 as to parties defendant generally, 80-82 all parties interested in the subject matter, or necessary to the relief, must be joined, 80 ■where one general right is claimed opposed to the interests of all the defend- ants 81 illustrations of the rule 81, 82 other parties may be brought in, , ■ 82 may be brought in at the hearing, 82, 469 though cause be partially entered upon 469 defendant's privilege to bring in parties, when waived, 83, 470 court will order parties brought in, though no objection be taken, when,. 83, 470 after judgment reversed on appeal, 83, 84 cause may be ordered to stand over to bring in parties, or complaint dismiss- ed, 84, 470, 472 trustees of express trusts may bring suit, 85 construction of term " express trust," 85 married woman, in what cases should join with her husband, 86, 87 in what cases may sue or be sued alone, 86, 87 substitution of parties, 302 et seq. {See Sd-bstitption op Pasties, Supplemental Pleading.) should all be brought before the court by service of process 168, 471 no mode of bringing before court except on process served 471 amended summons and complaint must both be served on new parties, 115, 471 demurrer for non-joinder of parties plaintiff, when allowed, 188, 189 for non-joinder of parties defendant, when allowed, 189, 190 PARTITION: consequence of omitting proper parties in action for, 70 facts showing defendant's interest should be pleaded, 98 where lands lie in different counties action triable in either county, 101 application for judgment on default .................. .......... 127 guardian for infant in suit for, must be appointed under the Revised Statutes, 155 must be by the court, and on ten instead of eight days' notice 155 proceedings on appointment of guardian in suit for, 155, 16b decretal or interlocutory order in action for, 515, 61b proceedings on reference as to title, &c • • • • 5« proceeding on reference for actual partition, • • »0U, SSI commissioners to make partition, their report and proceedings thereon, 550, 551 rule as to costs in partition cases, ^^^' °" 756 INDEX. Fags. PARTNERSHIP: application for judgment on default in cases of, 129, 130 application for injunction, 351, 352 to restrain use of partnership sign after dissolution, 353 receivers in cases of, when and how appointed, 391-396 one of several partners may he appointed receiver, when, 400 decretal or interlocutory order in actions of, 514 PERPETUATING TESTIMONY (See Testimokt— Pebpetuatikg). PETITION : in what cases injunctions may issue on petition without summons, 355 applications to the court may be made on 422 in general, definition of, 422 may be verified or not, 423 when verified, may be used as affidavit, 423 applications, when must be made on petition, 423 may be presented by any person, whether a party or not, 424 form and contents of, 424 must be legibly written, folioed and indorsed, 425 proceedings, on hearing of by the court, 425 rule as to costs, on hearing 425 PLACE OF TRIAL : must be designated in complaint, 67 provisions of the Code, in regard to, 68 in actions relating to real estate 68 in actions for injunctions 68 in actions for specific performance and to set aside conveyances, 68, 69 in actions for partition of real estate, 69 in other actions 68, 69 If wrong county named, may be changed ; 68 plaintiff may change by amendment on demand in writing by defendant, ... 68 otherwise must be changed by order of the court, 69 motion for change of, when and how made, 257 must be made by defendant, and all should join in the motion, 257 must be made in district or adjoining county 258, 432 on what papers motion made, 258 affidavit for motion, what must contain, 258 staying proceedings, to make motion, 259 effect of order to stay 259 irregular order to stay, and when and how revoked 259 notice of motion to change place of trial, 260 motion for, how made and opposed, 260, 261 order to change place of trial and proceedings thereon, 261 PLEA AND PLEADING: {See Complaint, Answek, ConNTEECLAm, Reply, Demukeek.) under the former practice , 11-13 general changes affected by the Code, 15-19 of the complaint, and how framed, 89 et sea. (See Complaint.) of the answer, and how framed 197 et sea. (See Answer.) counterclaim, how pleaded 210 et sea. {See CouNTEEOt AIM. ) of the reply, and how framed, 251-253 {See Reply.) demurrer and proceedings thereon, 183 ^t sea, (See Demukkee.) INDEX. 757 PLEA AND PLEADING (Continued) : ^^°'' reduzidancy and surplusage, 161-172 235 {See Ikrelevant akd Redukdant Matter.) motion to make pleading more definite and certain, 169, 170, 235, 236 POINTS : to be printed for argument of calendar cause, 716 must contain what, 716 each party must furnish the court and the opposite attorney with printed copies on the opening of the argument, 719 PRACTICE : not inconsistent with the Code remains in force, 21, 22 special proceedings governed by former practice 22, 23 PRELIMINARY INJUNCTION (See Injunction). PRODUCTION OF BOOKS AND DOCUMENTS: {See Discovert op Books, Papers and Documents.) how enforced on reference upon interlocutory order, 529 PROVISIONAL REMEDIES (See Injunction, Receiver, Ne Exeat). PUBLICATION (Sec Service and Proof Therbop) : summons served by, when 48-51 affidavit for, what must contain, 48, 49 {See Affidavit.) order for, must direct publication to be made in two newspapers, 51 may be drawn by plaintiff 's attorney, 52 should recite, or refer to summons, 51 must state time and place of filing complaint 51 such statement need not be in body of summons, 52 copy complaint must be forthwith directed to defendant by mail, 52 meaning of term ' forthwith," 52 and postage paid thereon, 53 personal service out of the state equivalent to publication and deposit in post office, 53 but in such case order of publication must first be obtained, 53 service by, when deemed complete, 54 must be six full weeks, 54 by advertisement for unknown parties to appear before referee and establish claims under a decree 641, 542 RECEIVER : general powers and duties of, not defined by the Code, 122 cases in which he may be appointed specified by the Code, 122, 383 et seg. general powers and duties of, 374 et seq. what interest he represents, 375 must act under authority of the court 375 rights of strangers to be protected, 376 contempt of court to interfere with his possession 376 cannot employ attorney of one of the parties, , . 376 may bring suits, when and how 377, 378 power of, to collect and dispose of property, 377, 378 power of, to make repairs and improvements, 379 power of, to lease, and to determine lease 379 power of, to carry on trade or business, 379, 380 power of, to cancel polices and reinsure risks, 380 possession of property by, how obtained and preserved, 380, 381 power of, to aijpoint agents to preserve and manage property, 381 758 INDEX. Pass. RECEIVER (Continued) : application by, to the court for instructions, 382 liability and duty of, as to trust funds 382 discharge of, and appointing new receiver,. 382, 383 appointment of, general rules in regard to 122, 384, 385 former chancery practice in general applicable to, 385, 386 cases in which receiver will not be appointed, 386-389 in what cases receiver may be appointed, 123, 389 et seq. appointment of, in creditor's suits, 390, 391 appointment of, in mortgage cases, 391, 392 appointment of, in partnership cases, 392-396 appointment of, against executors and trustees, 396 appointment of, in suits against corporations, 396, 397 appointment of, in miscellaneous cases, 398 who may be appointed, 398-400 appointment of, when and how made, 123, 401 et seq, at what time appointed 401 not before answer, when, 401 if application for denied, may be renewed when 402 application for, how made, 402 et seq. on what papers must" be moved for 402 cannot generally be appointed ex parte, 123, 402 when may be so appointed, 403 notice of motion for appointment of, . , 403 notice of motion for, how served 403 appointed only by the court, and not by a judge at chambers, 122, 402 motion for, how made and opposed, 404, 405 appointment of, may be by the court or reference ordered, 405 order of the court appointing 405 how made, settled and entered, 405, 406 appointment of, by referee, how made, 406-408 filing security upon appointment 407 party dissatisfied with, must apply to the court on notice, 408 appointment of, will be set aside, when, 408 appointment of, to carry judgment into effect 643, 645 may be made by the court on motion or petition, 644, 645 on final judgment, court may refer it to a referee to appoint, 645 REDUNDANCY {See Irrelevant and REi/nNDAHT Matter). REFERENCE : on application for judgment on failure to answer, 129-131 (See Judgmeht). where service has been by pablioation, 132, 133 on judgment by default 142 on order for judgment upon frivolous demurrer or answer, 246 before final judgment rendered on counterclaim in default of service of reply, 255 of whole issue to hear and determine, 323 et seq. in what cases compulsory reference ordered, 324-326 only where examination of long account is involved 324, 325 not sufficient ground for, that it may require examination of long account, . 326 court must see from admissions in the pleadings, or the papers, that such account is involved ■ 326 application for, when must be on motion, 326 cannot be made before issued joined, 327 may be made on pleadings alone, when, 327 affidavit for motion, when necessary and what it must contain, 327, 328 motion for, when cause is called in the calendar, 328, 464 court may onler, on its own motion 328, 464 by consent, and what may be so referred, 486 infant cannot consent to, 486 if parties do not agree on referees, the court will appoint 487 but one referee usually appointed, 487 INDEX. 759 REFEEENCE (Continued) : ^'""'• order of appointment, what must contain, 487 438 general statutory powers and duties of referees, .'.'.".'.".".'.".'. 488-490 proceedings on , to hear and determine the whole issue, ..'.'.'.' 490-493 powers as to amendments, &c., on hearing 488-493 reference on specific questions of fact, .....'.'...'.'.'. 493 report of referees, and what it must contain, 494' It neq. separate statements of facts and conclusions of law '.'. .'.".'.'.'.".'.'.. 494 495 report defective in this respect may he sent back for correction, '. '. 495 may embrace whole controversy including the taking and staling of an account, when, 495 or referee may make a separate and special report upon the issues, 495 496 and take the account afterwards, ' 495 report on whole issue, effect of, .".'!.'.'.".",!! 497 stands as the decision of the court, '.....!.'.! 497 proceedings on report before judgment, 497' 493 may be set aside for misconduct of referee or other irregularity, .' 498 copy report must be served, but need not be filed, ." 498 opposite party may compel judgment to be entered on report, 498 report on reference as to facts alone, 499 effect of, and proceedings thereon, 500 all the issues submitted must be decided, 500 if some are left undecided, the court will send the report back to be cor- rected, 500 on interlocutory or decretal order, 522 et seg. powers and duties of referees on such reference 522 623 {See Refekees.) time and place of hearing 524 S25 parties, how brought before referee, 525', 526 who entitled to prosecute order of reference, 526 as to parties who may attend and notice to parties 527 adjournments, 527 compelling attendance of witnesses and parties to testify, 527, 528 production of documents, how enforced, 529, 530 general course of examination before referee, 530, 531 reference to take accounts, 531 et seg. rules of former court of chancei-y apply, 532, 533 mode of proceeding before referee, 533 et seg. {See AcconNis and Accounting.) reference to make inquiries, 541 et seg. inquiries as to persons, next of kin, and individuals forming a class,. . 541, 542 advertisement requiring persons to come in under a decree, 541 proceeding by party to come in after report 542 inquiries as to facts, 542 inquiries as to titles to real estate, liens, &c., and proceedings thereon, . 542, 543 in divorce cases, 544 as to claims in actions by creditors or others of a class, 544, 545 creditors must come in before referee and prove their debts, 545 witnesses may be examined, 545, 546 what defense may be made thereto, 546 exceptions to master's report thereon, 546 as to claims to surplus moneys in foreclosure suit, 546-549 order of reference in such oases and proceedings thereon, 547, 548 report of referee and allowance of costs, 549 to sell estates or adjust other matters before final judgment 849-560 as to proceedings on reference for actual partition, 550, 551 as to proceedings for sale, 551-560 (See Sale of Real Estate bt Refebee.) report of referee, different kinds of, 560, 561 special report, what it must contain, 561, 562 general report, 562 form of report, 562 760 INDEX. Page. REFERENCE (Continued): how prepared by referee 563 objections and exceptions to, 563, 564 practice in regard to settling, signing and filing, 563, 564 exceptions to report, when and how taken and brought to hearing, .... 565-573 (See Exceptions to Report, Hearihg.) REFEREE : office of master abolished and duties performed by referee, 5 a substitute for master in interlocutory proceedings, and governed by same rules, 523 accounting before, governed by former chancery rules, 21, 532 (See Reference, Aocotjnts and Accountiitg.) cause may be referred, to hear and determine, when, 323-328 (See Reference.) a single person usually appointed, 487 court appoints when parties do not agree, 487 general powers and duties of, 488-490 as to amendments 488 as to production of books and papers, 491 report of, and what it must contain 494 et seq. (See Reference.) appointed to execute decretal order, general powers and duties of, 522, 523 may be any indifferent person, usually an attorney 522 has no power on interlocutory order of reference to amend pleadings or punish for contempt, 523 may be changed, when, 523, 624 proceedings before, on hearing of reference on interlocutory order, . . 624, et seq. (See Reference.) ■ appointment of, to carry judgment into effect, 643-645 sale of real estate by, 549 st seq. {See Sale of Real Estate bt Referee.) KELIEF : summons for 36 should not be in the alternative, 35 demand for, in complaint, . . '. 107 should embrace everything to which plaintiff is entitled, 107 omission of, in complaint an irregularity, 108 cannot be demurred to, 185 affirmative relief to defendant by way of counterclaim, what may be demanded, 210-214 judgment must clearly specify 581 alternative relief may be granted by final judgment, wlien, 582 to defendant against plaintiff, or against co-defendant, may be granted by final judgment, when 582-584 (See Judgment.) REPLY: obtaining further time to reply, 233 affidavit for further time, what must contain, 2.33 order thereon and service, 233 reply to counterclaim, ,", 251 may be required to new matter not constituting counterclaim, when, 251 motion to compel such reply| how made 252 to counterclaim, what may contain 252 253 ■demurrer to reply, ' 253 proceedings on service of reply 254 proceedings on failure to serve, " _ . 254 motion for judgment for want of, .!."'...'.'.'.' 255 ibow motion may be met and answered by the plaintiff, .'!".'.'.!.!. 255 INDEX. 761 Page. REPORT {See Refeeence) : of referee on trial of issue, form of, and what it must contain, 494 et seq. subsequent proceeding thereon, . . . .■ 497-500 on decretal order, form, nature and use of, 560-564 exceptions to report, when and how taken and brought to hearing,. . . . 565-573 [See Exceptions to eepokt, Hearins.) practice in regard to settling, signing, and filing exceptions, 563, 564 REVIVOR: {See Abatement, Substitutioit or Parties, Supplemental Pleading.) of action on abatement, how and when miade 309-312 SALE OP REAL ESTATE BY REFEREE : decretal or interlocutory order for, BIG et seq, what is final decree or order, 516, 617 what are interlocutory merely, 518, 519 reference to referee to sell, 549 et seq, authority of referee to sell under the statute and the Code, 552 time and place of sale, 552 notice of sale and what it must contain, 553, 554 advertising and posting of notice, 553, 654 drawing conditions of sale, 555 postponing sale, 555 mode of conducting sale, 555-557 who may become purchasers, 557 proceedings on sale of mortgaged premises 656 re-sale, when ordered and how made, 657, 658 mode of applying for re-sale, 558, 559 completing sale, 559 report of, and confirmation, 580 SECURITY FOR COSTS : guardian of infant may be required to give, 29 provisions of statute relative to, not repealed, 29 non-resident plaintiff must give security, 30 trustee of debtor, and insolvent must give security, when, 30 attorney liable for, when and to what amount, 30 under what circumstances defendant entitled to security, 29, 30 application for, how and when made, ^ 151 form of security, and in what amount, 31 order allowing same, and effect thereof, 151 bond should be executed by sureties alone 31 filing of bond and notice, 32, 151 defendant may except to sufficiency of, and require sureties to justify, 151, 152 on appeal from judgment, 710-714 {See Appeal, Unbebt akins. ) SEQUESTRATION : writ of, in aid of process for contempt to enforce judgment, 635 when may issue, • • • • 641 against corporations, "^l? °'*^ nature of proccess, and how obtained 641, 642 can issue only on order of the court, 642 writ of assistance may issue in aid of, • • • • 642 powers of sequestrators "12, 643 sequestrators must account, and pay receipts into court b4d writ discharged by appointment of receiver, 64d SERVICE AND PROOF THEREOF : by whom summons may be served, ^2 time of, may be limited by plaintiff, 38 V. s. 96 762 INDEX. Page. SERVICE AND PROOF THEREOF (Continued) : personal service, how made, ' ^, on husband and wife, • • *r on infants, lunatics and persons imprisoned, ....._ Iq mere delivery to persons served, not always sufficient 4d must be such as fairly to apprise defendant 43 service on wrong person, effect of, ■ • • ^ on corporation, how made, _ 44, 45 on " managing agent " of corporation, and who is, 44 on foreign corporation, how made 44, 45 on mayor, in suit against municipal corporation, 44 substituted service, in what cases allowed, 47 on resident defendant who evades service or cannot be found, 47 attempt to serve personally must first be made 48 order for substituted service must direct how service is to be made 48 s ervice by publication, in what cases allowed, 48, 49 affidavit for, what it must contain 49, 60 { See Affidavit. ) order for publication, 51-53 mnst be filed with affidavit and complaint 53 proof of personal service of summons, how made, 46 what affidavit must contain, 46 proof by written admission of service, 46 signature to admission must be verified, unless in case of attorney or other officer of the court, 47 proof of service by publication, 54 service of amended pleading, 115, 232 amended summons and complaint must both be served on new parties, 115, 232 service of original complaint, personally, 116, 117 service by mail 11' same rules apply as in service of notices and other papers 117 extension of time to serve complaint, 117 cannot be obtained ex parte after time of service expires, 118 service on one or more, but not all the defendants 118 should regularly be served on all the defendants, 118 exception in partition cases where the owners are unknown, 118 of injunction order, how made, 122 copy of affidavit for injunction must be served with order, 122 of order to extend time to demur or answer 177 of demurrer to complaint, 194, 195 of answer, % 222 answer of one defendant need not be served upon co-defendants, 223 except where affirmative relief is sought by some of them against others, 223, 224 of subpena, and proof thereof by admission or affidavit 335, 336 of notice, or order to show cause for appointment of receiver, 403 of notices generally in the action, 436-439 time of service 436 of service by delivery 437, 438 of service by mail 438, 439 proof of service generally, 439 service of order requiring or limiting act of opposite party, 455 of order to bring party into contempt, 455 general provisions of Code relative to service, do not apply to service of any paper to bring a party into contempt, 456 personal service sometimes dispensed with, 456 SHAM AND IRRELEVANT ANSWERS AND DEFENSES : may be struck out on motion, 240 difference between sham and irrelevant pleading, 241 difference between, and frivolous defense, 241, 242 motion to strike out, how and when made, 242, 243 motion must be made to the court and not to a judge at chambers, 242 INDEX. 763 Paok. SHAM AND IRRELEVANT ANSWERS AND DEFENSES (Continued) : notice of motion, what sliould contain 243 effect of striking out such defense, 243 appeal should be from the order and not from the judgment, 244 proceedings on appeal, 244 SPECIAL PROCEEDING : difference between, and action, 22 former equity practice mainly applicahle to, 22, 23 appeal from order or judgment in, and proceedings thereon, 675-682 in what cases may he taken 675, 676 what is special proceeding for purposes of appeal, 677, 678 orders and judgments of county courts and county judge in equity cases, 678, 679 how appeal in taken, and brought to hearing 680-682 proceedings on hearing, and decision of appellate court, 681, 682 costs on appeal, 682 STAY OF PROCEEDINGS : to enable party to make motion, 171, 259, 436, 43 ? allowed on order, until plaintiff files security for costs, 151 to make motion to correct pleading for uncertainty or redundancy, 171 to make motion to change place of trial, 259 effect of such stay, and order how revoked, .._.....- 259 on issuing commission to take testimony out of the state, 285-287 on appeal from order, stay may be obtained by order of the court 660, 661 appeal from order or judgment, does not of itself stay proceedings, .... 660, 661 to effect stay, on appeal from judgment, security must be given 660, 661 may be obtained by order of the court, when, 661 court may impose conditions in granting stay, 662, 663 undertaking on appeal from final judgment, of no effect unless accompanied by afiidavit of justification, 712 nor unless filed and served, 713 bat court may relieve against omission to file, , 713 SUBPENA : witness for trial to be subpenaed, when, 333 names of several witnesses may be inserted in one subpena, 333 form of, and how made out, 334 how served, 334 proof of service, 334 witnesses fees must be paid or tendered 324 not proper to bi-ing adverse party by subpena before judge to testify, 301 attachment for not obeying, 336 SUBPCENA DUCES TECUM: form of, and for what purpose used 334 consequence of refusal to obey, , 334, 335 SUBSTITUTED SERVICE: in what cases summons may be served by substitution 47, 48 order how obtained, and service how made, 47, 48 SUBSTITUTION OF PARTIES : on abatement of suit by death or other disability of party, 303-307 {See Abatement.) provision of the Code, in regard to 307, 308 in case of transfer of interest pending suit, 308 after trial and appeal, °^8 in reference to further appeal ^09 in court of appeals • |^9 how made under former practice, oud 764 INDEX. SUBSTITUTION OF PARTIES (Continued) : by petil.ion under the statute, 309, 310 by motion under tlie Code, 310 notice of motion for, when should be given, 310, 311 motion for, how brought on and heard, 311 motion for, must be made within one year, 311 order, when appealable, 312 must be made by supplemental complaint, when, 312-316 proceedings on supplemental complaint, 312-318 {See Supplemental Pleading.) practice in regard to, 318 SUMMONS : action commenced by, 32 different kinds of, 33 when void, and when voidable only, 33, 34 complaint must conform to 34 (5ce Irkeodlarity.) form of notice in summons 35 alternative notice irregular, 35 should be simply for relief in all equitable actions, 36 amendments to, 38 (See Amendment.) must be filed with clerk 39 consequence of omission, 39 notice of no personal claim attached to summons and use of, 36 should correctly describe object of action, 36 in foreclosure cases, 37 how subscribed, 37 printed subscription not sufficient, 37 irregularity in, effect of, 37 {See Ireequlakitt.) how served, and by whom 38, 42, ei seq. (See Service and Proof Thereof.) defective service of an irregularity, when, 148 amendment of, to save running of statute of limitations, 149 SUPPLEMENTAL PLEADING: supplemental bill in equity, when allowed 312 supplemental complaint under the Code 312, 313 where facts cannot be brought before the court by amendment 313, 314 must be of matters occurrina; after the former pleading, or of which party was ignorant, ° 313^ 314 as to cases of assignment pending suit or other transfer of interest, 315 (&e SnESTiTUTioN OF Parties.) matter of supplemental complaint and what it must contain, 316 not a substitute for original complaint, 317 should make all original defendants parties, except where filed merely to bring in parties 327 can be made only on leave of the court obtained on motion 317 motion for, may be made ex parte, when, 317 will not be allowed where object can be accomplished by amendment, 317 same rules apply to case of supplemental answer, 317 318 supplemental complaint may be demurred to or answered, ' 318 original and supplemental suits brought to hearing together, '.'.".'.' 318 SURROGATE: issues of fact ordered on appeal from, in contested will cases, 500 601 appeal from decision or decree of, 683-697 {See Appeal.) INDEX. . 765 Page. SURROGATE (Continued) : how appeal taken, and proceedings thereon 683-692 return to appeal, when must be made and what must contain, 692, 693 return may be enforced on pain of attachment, 693 further return may be ordered, 693 further evidence may be introduced on appeal, when, 695, 696 proceedings by, on decision of appeal certified to surrogate in contested will cases 697 proceedings by, on verdict of jury certified to surrogate in contested will cases, 510, 511 TAXATION (See Costs). TESTIMONY PERPETUATING : under former practice, bill would lie in what oases, ■. 277 provisions of Revised Statutes relative to, 277, 278 application for order to take testimony, how made, 278 testimony, how taken, 278, 279 depositions to be filed, 278 may be read in evidence on the trial, when, 279 testimony de bene esse, or conditional, when may be taken, 280 how examination obtained and proceedings thereon 281, 282 depositions, when evidence, 282, 283 what objections may be raised to reading depositions, 282, 283 TIME: of service by publication must be six full weeks, 54 to answer after publication complete, 54 time and place, when should be inserted in complaint and proved, 169 further time to demur or answer, 174-177 further time to reply, 233 to answer after amendment, 177 to amend complaint after answer or demurrer, 232 of notice of trial, 329 of service of notices generally, 430 of performing conditional order, 458, 459 of notice of taxation of costs!, 603 TITLE : ■ of the cause to be set forth in complaint, 67 requisites of, and what it must contain, 67, 69 affidavit need not contain title, 418, 419 TRADE MARKS : injunction to restrain use of, 353 TRANSCRIPT : of judgment may be filed, 139, 140, 611 [See Judgment.) TRIAL, PLACE OP (See Place of Tkial). TRIAL (See Hearing) : noticing cause for, 328, 329 notice of, may be by either party, 328 notice of, must be served on each defendant who has appeared, 329 defendant, when should serve co-defendant with notice, 329 may be served immediately on issue joined, 329 form of notice and service thereof, 330 putting cause on calendar, 330-332 (See Calendar.) furnishing copies papers for the court, 332, 333 incidental matters pertaining to '^^o^ara postponement of cause, ' • ^°^i ^°'* 766 INDEX. PAGfc. TRIAL (Continued) : referring cause on calling for trial ■ • *"* hearing cause out of its order, or two causes together, 464, 465 default at the trial ., 140-143, 465 separate trial, when and in what cases allowed in equity actions, 465, 466 trial on pleadings alone ; • • f^T, 468 either party may bring on and move for judgment without going into proofs, '■■ 467, 468 objection to the jurisdiction at the trial, 469 objection for want of parties at the trial, 469, 470 {See Parties. ) after trial commenced, parties ordered to be brought in, when, 469, 470 ordering cause to stand over, and bringing other parties before the court, 470, 471 {See Parties.) trial generally, definition of, 472 issue of law, what is, and how tried, 473, 474 decision upon, when and how made, 474, 475, 476 must be in writing and state conclusions of law, 482 decision, an order when, 476 amendment after trial of issue of law, 476, 477 issue of fact, how tried 477 provision of the Code In regard to, 477 may be tried before issue of law, when , 478 course and mode of trial by the court, of issue of fact, 478-480 decision of the court thereon, 480-482 form of decision and what it must contain, 482, 483 drawn up and settled, how, 483 exceptions to and mode of review, 483, 484 (^See Exceptions, Appeal.) decision may be final or interlocutory, 484 trial of the whole issue by referees, 485-600 (iSee Referee, Reference.) of issue of fact by jury, 500-511 {See Issue of Fact to be tried bt Jubt.) UNDERTAKING: on injunction, form and contents of, 361, 362 sureties therein must justify 362 must be proved or acknowledged, 362 and filed within five days, 362 on appeal from final judgment, must be executed, when, 660, 663 proceedings on appeal not stayed until undertaking executed, when, 660, 663, 710 and renewed as in cases required in section 835 of the Code 710 must be executed by two sureties, 710 appellant himself need not execute it 711 form of, and what it must contain, 711 should state residence of sureties, 711 of no effect unless accompanied by affidavit of justification of sureties, 712 qualification of sureties, 712 respondent may except to, how and when, 712 sureties must justify on exceptions, and practice thereon, 712, 713 must be acknowledged, filed and copy served 713 new sureties may be required, when 713, 714 amendment of defective undertaking to perfect appeal and stay proceedings, 714, 715 defective acknowledgment and accidental omission to file, may be remedied by amendment, 713, 714 VENUE (Sc€ Place op Trial). VERIFICATION : complaint may be verified or not, at plaintiff's option, 108 provision of Code in regard to 108 INDEX. 767 VERIFICATION (ConUnued) : must be made by party, when, 109 form of verification, 109 exact words of statute sliould be used, 109 by several parties united in interest, 110 wlien made by one of several parties, form of 110 may be made by agent or attorney, wben, 110 wben so made, form of, 110 what sufficient reason for verifying by attorney, Ill before whom affidavit may be taken Ill at what time may be made 112 if after service of the complaint, leave to amend must be obtained, 112 affidavit of, how subscribed and certified, 112 what imperfections vitiate affidavit, 112 no part of the pleading itself, 112 defective affidavit a nullity, when, 112, 113 complaint not vitiated by defective affidavit, but may be treated as not ver- ified, ■. 112, 113 defective copy of good verification may be treated as a nullity, 108, 113 of amended pleading, 115 of answer, 219 defendant privileged from verifying answer, when 219 several defendants must separately verify, when, 220 may be made to answer by agent or attorney, when, 220 omitting to verify answer, effect of, 221 defective verification of answer, effect of, 221 WAIVER: appearance a waiver of irregularity in the summons, when, 34, 35, 147 (S«C lEKEeDLAKIT Y. ) retaining and acting on defective pleading or paper, waives irregularity, when, 150, 234 neglect to move at earliest opportunity, a waiver, when, 150, 234 mere extension of time to answer, a waiver 235, 236 waiver of right to move to strike out irrelevant matter, 164, 236 in not returning answer served after time expired 178 of irregularity in order, 457 WITNESS. examination of adverse party as, before trial, , 297-302 {See ExAMfflATioN of Adverse Party.) examination of, on commission, 283 et seq. {See Commission.) examination of, conditionally, 277, 280-283 {See Testimony Perpetuating.) compelling attendance of, on trial upon subpena and attachment, .... 335, 336 {See Subpena.) WRIT: of ne exeat, when may issue, 409 ei seq. (See Ne Exeat.) of sequestration to enforce judgment, 635, 641-643 of assistance, nature and use of 637-639 of injunction, abolished and order substituted 339 cf seq. (See Injunction.) of injunction to enforce judgment, 639, 640 WRITINGS AND WRITTEN INSTRUMENT : obtaining inspection of, 55 ei! seq., 158, 159, 274^277 {See Discovert of Books, Papers and Documents.) obtaining admission of, as evidence for the trial, 272, 273