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a. An action against a receiver, as such, should not regularly be commenced without leave of the court for that purpose first obtained; but leave is usually granted of course, and, if necessary, can be granted at any stage of the action ; and the irregularity in suing a receiver without leave of the court is waived by an appearance in the action. Hubbell v. Dana, 9 Pr. R., 424.

b. A receiver should apply for an order, for leave to sue for a debt. Merritt v. Lyon, 16 Wend., 410. And if he does not obtain leave, and fail in the suit, he will be personally liable for costs. Thus, where a receiver had prosecuted an action as such receiver, without leave of the court for that purpose first obtained, and had failed in the action, on motion for costs agaiust him personally, the motion was granted. Phelps v. Cole, 3 Code Rep., 157.

c. A general creditor of insolvent general partners may, on complaint and an. swer, where the debt is not denied, have an injunction to protect the partoership property and assets, and a receiver appointed. Dillon v. Horn, 5 Pr. R. 35. It seems that the principle asserted by the chancellor in the case of Innes v. Lansing, 7 Paige, 583, sustaining a bill and injunction upon the application of a creditor, against insolvent limited partners, on the ground that the partnership effects were a trust sund for the benefit of all the creditors, should apply equally to an insolvent general partnership. 15.

d. Where a debt is not disputed, and where a preliminary judgment and execution would be no avail (the defendant having assigned the whole of his property), it is competent to the creditor in cases of a fraud, or contemplated fraud, to apply before judgment for an injunction and receiver, and have his demand liquidated and paid in one proceeding. (Mott v. Dunn, 10 Pr. R., 225.) Thus, the plaintiff may, in one action, unite his debtor and the assignee of such debtor, and on a proper alle gation of the facts demand (1) a judgment for his debt; (2) an adjudication on the validity of the assignment by the defendant; (3) the appointment of a receiver ; (4) an account against the assignee; and (5) payment out of the assets in the hands of the assignee.

e. A partner, who by his answer admits that he has in his hands partnership funds which appear to belong to the administrators of his deceased partner, will be ordered to pay over such funds to them, although there are outstanding contested claims against the firm, and it has claims to enforce which will require time and disbursernents. Roberts's Administrators v. Law, 4 Sand., 642.

f. The order for such payment will, however, require the administrators to give security to the surviving partner to contribute to the outstanding claims, if estab. lished, and to pay their share of the expenses that may be incurred in prosecuting the demands of the firm. Ib.

g. The surviving partner will also be permitted to retain sufficient to recover such claims against the deceased partner as are contested in the suit in which the order is made. Ib.

h. 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 pay. ment thereof to such third party), which money is in the defendant's possession, the court will order it to be deposited in court or paid to such third party, under subdivision 5. Burhans v. Casey, 4 Sand., 706.

i. In a suit for winding up a partnership, by one claiming to be a partner, but whose right as partner is wholly denied by the defendant, and is not clearly established by the affidavits, the court will not grant a receiver or an injunction, there being no proof that the fund is in danger. Goulding v. Bain, 4 Sand., 716.

j. When an order of reference is made for the selection of a person to be a receiver, and a receiver is subsequently appointed, his title vests by relation, from the date of the order, and attaches upon all the property to which the receivership could properly extend, exactly in the same manner and with the same effect as if the order, instead of directing a reference, had named the receiver. Rutter v. Tallis, 5 Sand. 612.

k. The court will not make an order for payment under the last clause of subdi

vision 5, unless the answer admits a specific sum to be due. Dolan v. Petty, 4 Sand, 673.

Q. Where the answer traversed the plaintiff's claim as stated, and then stated that the work was not worth more than a certain sum, less than that claimed, the court denied a motion for payment of the amount admitted to be due, and said: We feel impelled to be strict and guarded in making orders under this stringent remedy. Ib.

b. Where it appeared that the defendant, before answering, had made an offer under section 385 of the code, which offer the plaintiff had declined,—the court denied a motion for an order for the defendant to satisfy the amount admitted to be due by the auswer, and said, “The court does not feel called upon to grant such an order to the plaintiff under such circunstances, so long as it is not clearly settled to what exlent the court may be compelled to go in enforcing the order, " as it enforces a provisional remedy. If he insist upon claiming more than the sum for which the defendant has offered him a judgment, let him pursue the ordinary and ascertained course.” Smith v. Olssen, 4 Sand., 711.

c. Before the amendinent of 1851, it was held that where the answer admitted part of the plaintiff's claim to be due, the court might order judgment for the amount so admitted to be due. Tracy v. Humphrey, 3 Code Rep., 193.

d. When a fund in litigation has been brought into court, and the defendant, on the coming in of his answer, admits therein that a part of thó fund is due the plaintiff, disputing his claim to the residue, the court may order the part so admitted due to the plaintiff, to be paid over to him without prejudice to his further claims. Merritt v Thompson, 10 Pr. .R, 428; 1 Abbott, 223.

e. The circumstance that the defendant, both before and after the commence. ment of the action, offered the plaintiffs to pay them the sum so admitted due (provided he would accept it in full satisfaction), or that he has offered to allow judgmeal to be taken for that sum, is no reason for refusing the order. Ib.

f. Where a defendant, who is insolvent or unable to make present payment, makes an offer of judgment pursuant to section 385 of the code, or makes the like offer in his answer, the court will be careful not to substitute an order that he pay the money (under section 244) to be enforced by an attachment for contempt and taking of the person in the place of an ordivary judgment and execution. The legislature did not intend by section 244, to introduce imprisonment for debt if the debtor was not able to pay. But where the money is in court, and where the defendant admits the sum due, and offers to pay it, no such reason exists, and the order should be granted. Ib.

g. Whether on appeal from an order made in pursuance of this provision, the general term will review the discretion exercised at special term in respect to the terms or conditions upon which such order should be granted, where no right of the appellant and no rule of law is violated-Quære? It seems not. Ib.

h. When judgment creditors have acquired a lien upon a fund in the hands of a receiver, the court will not, upon their petition, make an order upon the receiver to satisfy the judgment out of the moneys in his hands until a decree has been made in the action in which the receiver was appointed, and notice has been given to all other creditors interested in the distribution of the fund. But in order to protect the petitioners, an order will be made upon the receiver forbidding him to make any payments out of the fund without notice to the petitioners, or their attorney, and allowing the petitioners to institute such an action against the receiver and other parties as they may be advised. Hubbard v. Guild, 2 Duer, 685.

i. In an action to recover the value of goods alleged to have been unlawfully converted by the defendants, the defendants' answer alleged the receipt of the goods from the plaintiff, and that the same were sold by the plaintiff to the defendants at a certain specified price,-on motion that the defendant pay the price of the goods as specified in the answer, the court said, “ Strictly the case is not within ibe provision. In principle it is;" and the order for payment was made. Slawson v. Conkey, 1 Abbott, 228.

a. Where the plaintiffs, on a sale of goods on a credit of six months, claimed by their complaint that the sale was conditional; that the title, although the goods were received by the defendant, did not pass from them in consequence of the condition not having been complied with, and alleged that the defendant had wrong. fully converted said goods to his own use and claimed damages (the value of the goods) by reason thereof, the answer admitted the purchase, price, and receipt of the goods, but denied the condition alleged and the conversion. Order was there. upon made under this section, " directing the defendant to pay and satisfy to the plaintiffs the amount of $678 54, with interest from, &c., being the amount admitted by the answer to be due.” On the trial of the action this order was introduced, and by Morris, J., “ This provisional order was improvidently granted; because (1) the order is applicable only where the answer admits part of the plaintiffs' claim. When the whole claim is admitted, there should be judgment. This order is for payment of the whole, not merely a part ; (2) This is an action for a tort for trover and conversion. The answer does not admit any part of this claim made for the trover and conversion, but expressly denies the trover and conversion, and all liability in that action-denies the whole claim made in that action. The facts stated in the defendant's answer, admitting he was indebted to the plaintiffs upon a contract, were essential facts to show that the property belonged to the defendant, and not to the plaintiffs, and therefore were a denial of plaintiffs' claim in that suit, instead of an admission. The difficulty originated in an effort of the plaintiffs to convert a simple contract debt into a fraud so that they could extort payment from the defendant or his friends by obtaining the power to imprison the person of the defendant. Against such fraudulent attempts to violate the humane and just principles of the non-imprisonment act, courts should be watchful.” Slawson F. Conkey, 10 Pr. R., 57.

6. Where there was no defence other than a counter-claim, less by $310 than the sum claimed by the plaintiff, the defendant served an offer for judgment for $310, it was held, that the offer of judgment did not debar the plaintiff of his right to an order to have the sum admitted due paid to him. Meyers v. Trimble, 1 Abbott, 220.

c. Where an order for payment of the amount admitted due by the answer is not complied with within twenty days, the plaintiff may move for an attachment, and it will be granted him, as by the non-compliance with the order the defendant is presumptively in contempt. On the return of the attachment he may, if he can, purge his contempt by proof of his inability to comply with the order. Meyers v. Trimble, 1 Abbott, 220, 223.

d. An order, directing the defendant to pay the amount admitted due by the answer, is an appealable order. Merritt v. Thompson, 1 Abbott, 223; 10 Pr. R., 428.

e. By laws of 1845, cap. 87, b. 73, "any purchaser from the receiver of a bank. ing corporation, of any chose in action belonging to the assets of such corporation, may prosecute the same in his own panie in all cases where by law the same could be prosecuted in the name of such receiver." And see now section 111 of this code.

f. See rule 76 of Supreme Court Rules.

g. As to receivers, in proceedings supplementary to the execution, see section 298.

TITLE VIII.

Of the trial and judgment in Civil Actions.

CHAPTER 1. Judgment upon failure to answer.

II. Issues and the mode of trial.
III. Trial by jury.
IV. T:ial by the court.

V. Trial by referees.
VI. The manner of entering judgment.

CHAPTER I.

Judgment upon failure to answer.

SECTION 245. Judgment, what.

246. Judgment on failure of defendant to answer.
247. Judgment on frivolous demurrer, answer, or reply.

$ 245. [201.] Judgment, what.-A judgment is the final determination of the rights of the parties in the action.

a. The decision of the court on a demurrer, is a judgment. Bentley v. Jones, 3 Code Rep., 37 ; King v. Stafford, 5 Pr. R., 30.

b. The second subdivision of section 349 has not converted a decision on a demurrer, in all cases, from a judgment into a mere order. When a demurrer is sustained, which goes to the whole complaint or answer, the decision, as it determines that the party against whom it is given has no right of action or no defence, is in its nature a final judgment; and this is so even when liberty to amend is given, if the party fail to avail himself of the privilege within the limited time; but when the demurrer relates only to a part of a pleading, the decision sustaining or overruling it may, with great propriety, be termed an order, since its only effect is to strike out or retain that part of the pleading to which the demurrer applies, leaving the other issues undetermined. Drummond v. Husson, 8 Pr. R., 247; i Duer, 633.

c. A decision on an application under section 247, for judgment on demurrer to an answer as frivolous, is a judgment. Roberts v. Morrison, 7 Pr. R., 396; and Laurence v. Davis, ib., 354. The contrary was held in Gould v. Carpenter, ib., 97. Such a decision is called a judgment, in Hull v. Smith, 8 Pr. R., 150.

d. The dismissal of the complaint, for not proceeding in the action, is a judg. ment. Tillspaugh v. Dick, 8 Pr. R., 33.

e. Where a case involved the question, amongst others, of the existence or nonexistence of a partnership, and the cause was referred, and the referee reported that there was sufficient evidence to establish the existence of the copartnership, the party in whose favor the report is made cannot ex parte file the report, and enter an order dissolving the copartnership, and direct an accounting. Such an order is not a judgment. Bantes v. Brady, 8 Pr. R. 216.

f. An order of the supreme court at general term, reversiog a judgment obtained

a

at the circuit, and ordering a new trial, is not a judgment. Duane v. Northern R. R. Co., 4 Pr. R., 364.

a. The distinction between an“ order” and a " judgment," is this. An order is the decision of a motion. A judgment is the decision of a trial by the court. Par. ker, Watson, and Wright, JJ., in Bentley v. Jones, 3 Code, Rep., 37; King v. Stafford, 5 Pr. R. 30. The decision of a demurrer is not an order but a judgment. Ib.

b. The words "rule and order" in no case mean a judgment. Darrow v. Mil. ler, 3 Code Rep., 241,

c. It has always been considered that a decision of a demurrer was a judgment, whether it was absolute or whether it gave leave to amend. * * * The idea that a decision of a demurrer was not a judgment seems to have originated by the interpolation in section 349 of the provision that an order may be appealed from "when it sustains or overrules a demurrer.” It seems to be supposed by some of the profession, that this clause is equivalent to declaring that the decision of a demarrer is an order ; but no such effect can be fairly given to it.” Barculo, J. Lewis v. Acker, 7 Pr. R. 414.

d. A decision at special term ordering judgment on a demurrer, where no leave to amend is given, is a judgment and not an order, and the appeal from such decision must be from a judgment and not an order. Cook v. Pomeroy, 10 Pr. R., 221; Bauman v. N. Y. Cent. R. R. Co., ib. 218. In all cases where leave to amend is given as part of the decision on the demurrer, and also all decisions on a demurrer to part of a pleading containing several causes of action or defences, there such decision may be appealed as an order. 16.

e. “In every just, legal sense, a judgment under the code is a declaration of the legal or equitable rights of the parties: it is the application of legal and equitable principles to facts already ascertained. The facts must be found before judgment can be pronounced. The judgment on the facts may be right or it may be wrong, but its correctness is to be tested by inquiring whether the court have erred in the principles assumed, or in the application of those principles to the facts. In the very words of the code (s. 245), “ A judgment is the final determination of the rights of the parties in the action.” It is a legal conclosion from facts ascertained by the proofs or admitted by the parties. Section 348, as it now reads, in connection with section 245, is of precisely the same import as section 11 read in the same conneetion, i. e., an appeal may be taken to the general term from a (judgment), the final determination of the rights of the parties; and we can discover no reason for giving to the word “determination” in s. 245, when considering the appeal given by s. 348, a meaning different from that given to the same word in s. 11, by the court of appeals.” Morgan v. Bruce, 1 Code Rep., N. S., 366. Woodruff, J.

See note to section 400.

$ 216. [202.] (Amended 1849, 1851).-Judgment on fuil. ure of defendant to answer.

Judgment may be bad if the defendant fail to answer the complaint, as follows:

1. In any action arising on contract for the recovery of money only, the plaintiff may file with the clerk, proof of personal service of the summons and complaint, on one or more of the defendants, or of the summons according to the provisions of section 130, and that no answer has been received. The clerk shall thereupon enter judgment for the amount mentioned in the summons, against the defendant or defendants, or against one or more of several defendants, in the

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