point one or more referees, not exceeding three, who shall be free from exception.

SECTION 274.

CHAPTER VI.

Manner of entering judgment.

Judgment may be for or against any of the parties.

275. The relief to be awarded to the plaintiff.

276.

Rate of damages, where damages are recoverable.

277. Judgment in action for recovery of personal property.

278. Judgment upon issue of law or of fact, to be upon direction of a single judge, or on report of referees, subject to review at general

term.

279. Clerk to keep a judgment book.

280. Judgment to be entered in judgment book.

281. Judgment roll.

282. Judgment, in what cases and how to be docketed.

§ 274. [230.] (Amended 1849–1852.) Judgment may be for or against any of the parties.

Judgment may be given, for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties

express disallowance, as already suggested, of any charge for even actual expenses of the referee, much more of such as are merely constructive. A room, it may be said, is indispensable to a reference, and some equivalent, therefore, should be given for its use; the same argument, however, may be urged in favor of board, lodging, and travelling bills, and an indefinite variety of other items. Once open the door, and no check remains. The expenses of the referees under the old law, when allowed, were restricted expressly, as has been seen, to one dollar per day. If admitted now, under the provisions of the code, there is no limit to their amount. Such a field for favoritism and injustice could not fail to expose the judiciary to frequent temptation and constant suspicion, and would add greatly to the embarrassment, already sufficiently painful, although probably unavoidable, arising out of the law of extra percentage allowances."

a. The attorney in the action is not liable to the referee for his fees. Judson v. Gray, 1 Kernan, 408.

Costs,

b. As to costs, and as to extra allowances in cases tried before referees, see the chapter" Of costs," post.

References in "existing suits."

c. As to references in suits pending when the code went into effect, see notes to sections 3 and 4 of the supplementary act.

on each side, as between themselves,* and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. The court may also 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.

a. This section is substituted for section 230 in the code of 1848. In that code the section ended at the point where an asterisk is placed.

The amendment of 1852 is the addition of the words in italic.

b. This section consists of four distinct parts, passed by three separate legisla tures at three separate times, and for four distinct objects:

Part 1. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties as between themselves;

Part 2. And it may grant to the defendant any affirmative relief to which he may be entitled ;

Part 3. In an action against several defendants, the court may in its discretion render judgment against any one or more of them, leaving the action to proceed against the others whenever a several judgment may be proper;

Part 4. The court may also 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 proceed in the cause against the defendant or defendants served.

Part 1 was passed by the legislature of 1848; and its object was to give the court power in cases where the issues were tried by the court or referees, or the jury rendered a special verdict, to render a special judgment as the circumstances might require, in analogy to a decree in chancery.

Part 2 was passed by the legislature of 1852; and its object was to supply a supposed want of power in the court to give the defendant affirmative relief. (Haire v. Baker, 1 Selden, 357.)

Parts 3 and 4 were passed by the legislature of 1849. The object of part 3 was was to provide for such a case as an action against the several parties to a promissory note, where one party answered and another did not. There, a several judg. ment would be proper against the party not answering. Such a case is an excep. tion to the rule, not otherwise perhaps affected by the code, that in one action there can be but one judgment. The object of part 4, as the words express, was to give the court power to dismiss the complaint for neglect to serve the summons on all the defendants or to proceed against the defendants served.

c. Where a plaintiff dies after a referee has reported in favor of defendant, the defendant may perfect his judgment without making the representatives of the plaintiff parties to the action. Scranton v. Baxter, 1 Code Rep., N. S., 88.

d. Where a party after having obtained a verdict or nonsuit, dies while the cause is sub judice, the court will in all such cases, without regard to the lapse of time, allow the judgment to be entered up as of a time when the deceased party was alive. Rightmyer v. Dunham, 12 Wend., 245; Spalden v. Congden, 18 ib. 543; 4 Barb. 504, 524; 1 Johns. Cas. 408. And where a trial was had before a judgə without a jury, on a cross bill, and, at the 'same time, a hearing on a report of ref

erees on the original bill, and, some four months after, the judge made his decision, and rendered judgment for the plaintiff on the report of referees in the original action, and that the complaint in the cross action be dismissed with costs,-it was held, that judgment might be rendered, nunc pro tunc, as of the day of the trial and hearing, the plaintiff having died two days subsequent to such trial and hearing; and that such a case was not analogous to a case where the plaintiff dies before verdict Ehle v. Moyer, 8 Pr. R. 244.

a. The act in relation to the seventh-day Baptists (laws of 1839, p. 335), which prohibits the service and execution of all writs, process, warrants, orders, judg ments, &c., on Saturday, upon any person who keeps that day as the Sabbath, and declares that such service shall be void, does not affect a judgment rendered against such person on that day. Maxson v. Armas, 1 Denio, 204.

b. It was held that section 230 of the code of 1848, did not apply in an action against several defendants, where only one defendant answered, and his answer stated facts which did not constitute a defence, and which were immaterial as between him and the plaintiff, but were intended to form a case for the adjudication of the equities between the defendant so answering and a co-defendant, for a motion that the court might allow the defendant so answering to be subrogated in the place of the plaintiff. Woodworth v. Bellows, 4 Pr. R., 24; 1 Code Rep., 129. But if the defendant's answer had been admitted by his co-defendant, it would have been a case within this provision.

c. On this section, as worded in 1849, an action was brought against three defendants, two as principals and one as surety. None of the defendants put in any answer; but before the entry of judgment, one of the defendants, on an affidavit that he was only surety, moved that a provision might be made in the judgment for an execution in his favor against the other defendants, in case he should be obliged to pay the judgment. The court denied the motion, and Harris, J., said, "It is supposed that this provision confers upon the court the power, when rendering judgment for the plaintiffs upon the note, to proceed further, and render judgment contingently in favor of the surety against his principals. Perhaps this is so. The language of the section referred to seems to be broad enough to authorize it, and yet, it would seem, from the language of the next section, that it was intended that in case of failure to answer, no judgment should be given beyond that asked for in the complaint. It is true, that this restriction in the 275th section is, in terms, confined' to the relief granted to the plaintiff.' Yet there is equal reason for applying the same restriction to the relief sought by one defendant against another. The defendants, who are alleged to be the principal debtors, were in effect apprised by the summons served on them, that if they failed to answer, judgment would be rendered against them for the amount due upon the note. This was the relief demanded in the complaint. They were not and have not been apprised that any relief would be sought against them by their co-defendant. I am not prepared to say that it would not be proper to make some provision in a judgment like that contemplated by this motion, upon notice to all the parties to be affected by it. But even then, it may be doubted whether the rights of the defendants, as between themselves, ought to be determined upon mere motions. I regard the provision upon which this application is founded as judicious and valuable; but I am inclined to think it safer and more in accordance with the object for which it was inserted in the code, to confine its operation to parties actually litigating before the court." Norbury v. Seeley, 4 Pr. R. 73; 2 Code Rep., 47.

d. "The general object of this section (sec. 274), I suppose was to leave the court at liberty to apply the rules which prevailed in the late court of chancery to actions under the code. Having abolished the distinction between actions at law and suits in equity, such a provision or power in the court would become quite necessary to the due administration of justice in actions founded upon principles of equity. The section also embraces provisions applicable to actions founded upon rules of law, and perhaps to both. For instance, in case of several defendants a judgment may be rendered against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. I think here is a plain recognition of the rule that in actions against several defendants, founded upon legal principles, sounding in contract, the recovery must be against all or none of them, ex

cepting those cases provided by statute, where the defendants hold different relations to the plaintiff, such as maker and endorser of the note upon which the action is brought, and where, in the language of the section, a several judgment may be proper.' It seems to be here pretty clearly implied, that in some cases several judg ments would not be proper. I am therefore prepared to hold that the rules of law in force at the passage of the code, in regard to actions at law, still prevail, and apply to actions under the code which are based upon legal as distinguished from equitable principles; and, in like manner, that those equitable principles which were in force under the old regime, are still applicable to actions founded upon those principles, excepting where the code in express terms provides otherwise; that in an action against several defendants, to recover damages for the breach of a contract, the plaintiff must recover against all the defendants, or not at all, unless in one of the excepted cases above referred to."-Per Welles, J., in Merrifield v. Cooley, 4 Pr. R., 272.

a. Section 167 of the code of practice in California, is a literal transcript of this section as it stood prior to the amendment of 1852 (Laws of California, 1850, page 443); and under that section it was held by the supreme court of the State of California, that the case of Merrifield v. Cooley, supra, was wrongly decided, and that where two persons are sued jointly, upon a joint contract, judgment may be rendered in favor of the plaintiff against one of the defendants, and in favor of one of the defendants against the plaintiff. Thus, where A. sued B. & C. as partners, and the misjoinder was not set up in the answer, and the plaintiff's demand was proved against B., but not against C., and verdict and judgment were given in favor of the plaintiff against B., and in favor of C. against the plaintiff'; on appeal, the case was affirmed. Rowe v. Chandler, 1 California Rep., 167. This case seems hardly consistent with Sterling v. Hanson, 1 California Rep., 478, decided by the same judge (Bennett), and in which it is intimated, that the joinder of two persons as co-defendants who have no joint interest, is erroneous.

b. Where an action was against three defendants on a joint contract for work, &c., the material allegations of the complaint were denied. The cause was referred, and the referee reported that the defendants were not indebted to the plaintiff, that the work was not done in pursuance of any contract made with the defendants, but that the contract was made with and the work done for E. A. T., one of the defendants, who was indebted to the plaintiff to a certain amount therefor. On this report the plaintiff entered judgment against E. A. T., for the amount reported due, with costs. On motion to set that judgment aside, it was held, that the 1st paragraph of section 274 is qualified and restrained by the next clause of that section to the entry of judgment for or against one or more of several defendants, "whenever a several judgment may be proper." Fullerton v. Taylor, 6 Pr. Rr., 259; 1 Code Rep. N. S., 411.

c. The code has not declared when such a judgment is proper, it is therefore to be settled by the former practice. Ib.

d. In an action against several defendants upon a joint contract—not joint and several-a several judgment cannot be rendered for or against one defendant only, except where the other defendants establish some personal defence, or a disability to contract exists on the part of such defendants. Ib.

e. In an action against two or more defendants upon a contract made by or in behalf of a firm or association, if one of the defendants makes default and others appear and deny their liability, it is sufficient on the trial for the plaintiff to prove that the contract was made by the firm or association, and that the defendants who appeared are members thereof; and it is not necessary for the plaintiff to prove that the defaulting defendant is also a member. Downing v. Mann, 9 Pr. R., 204. In that case the plaintiff sought to recover for goods sold, at the defendants' request, to the "Morgan & Webb Association," of which the defendants were alleged to be members. One defendant (Martin), suffered judgment by default. The other defendants answered, denying their liability. On the trial the defendants moved for non-suit, on the ground that the plaintiff had not proved a joint liability of all the defendants, i. e., had not shown that Martin was liable. The judge refused to nonsuit and directed the jury that if the plaintiff had proved a joint liability of all the defendants, they should find for him; otherwise not. The jury found for the plaintiff. The special term granted an order for a new trial, on the assumption that there was

no evidence of Martin's liability jointly with the other defendants, and that the plaintiff had to show a joint liability of all the defendants on trial, and that the motion for a non-suit was improperly refused; but on appeal the general term reversed the order for a new trial, and plaintiff had judgment.

a. "This section has given rise to much discussion, and the decisions under it are conflicting; but I am not aware that any attempt has been made to apply it" so that where, in a suit to foreclose a mortgage, some of the defendants answer and some do not, the court may order judgment against those who do not answer, and allow the action to proceed against those who do. And a motion for such a judg

ment was denied. Cobb v. Thornton, 8 Pr. R., 66; Marvin, J.

b. The court has no authority, where the action is to foreclose a mortgage, to render a contingent judgment for the balance of the debt remaining unsatisfied after a sale of the mortgaged premises previous to the rendition of the principal judgment for a foreclosure and sale of the premises mortgaged. The action cannot be so divided. The object of the action is a foreclosure and sale, and the recovery of any deficiency from those who are personally liable. The amount of the personal liability cannot, in this action, be known until after a sale of the mortgaged premises. Section 274 of the code is not applicable to the case. It would not be proper to render a contingent personal judgment" against any of the defendants until the final judgment of foreclosure and sale. Per Marvin, J., in Cobb v. Thornton, supra.

c. In an action against two persons as joint debtors, the defendants were described as William Beach and John Doe; the summons was served on the defend. ant Beach only, and he answered by a general denial. On the trial, the plaintiff's counsel opened that the cause of action was against a firm doing business under the name and style of Beach & Co.; that the defendant Beach was the Beach of said firm; and that the name of John Doe was fictitious, the plaintiff not knowing who was the other member of the firm. The evidence showed the liability of the firm of Beach & Co., and that the defendant Beach was a member of that firm; there was no proof as to who was his copartner, nor whether he had any copartner. A nonsuit was moved for on the ground that no joint liability of the defendants had been proved. The motion for a non-suit was denied. On a motion at special term, the court held that the plaintiff ought to have been non-suited, and ordered a new trial. Crandall v. Beach, 7 Pr. R., 271.

d. Whenever a plaintiff establishes a cause of action against one or more of the defendants in an action for a tort, or upon contract, and it appears in the latter case that the other defendants were not joint contractors or jointly liable, he is entitled to a judgment against those as to whom he establishes his cause of action. Thus, in an action on a joint and several bond purporting to have been executed by the defendants, on the trial it appeared that only one of the defendants had signed the bond. The breach of the condition of the bond was proved. The plaintiff claimed that he was entitled to a verdict as against the defendant who it was proved had executed the bond. The court decided that, as the action was on contract, and two defendants sued thereon, no judgment could be rendered against one, and non-suited the plaintiff; the plaintiff excepted, and the general term (Marvin, Taggart, and Mullet, JJ.) set aside the non-suit, and granted a new trial. The People v. Cram, 8 Pr. R., 151.

e. Where in an action for a tort the jury severed in their verdict, rendering separate damages against two defendants, and the plaintiff entered judgment against both defendants for the larger sum,-semble, that such judgment was erroneous. Bulkeley v. Smith, 1 Duer, 643. The judgment was right. Beal v. Finch, 1 Kernan, 128.

f. Where a separate action could be maintained, a separate judgment would be proper. Harrington v. Higham, 15 Barb., 525.

g. The code has modified the common-law rule that in an action on an alleged joint contract the plaintiff must recover against all the defendants or be defeated in the action. Thus, in an action against two persons on a note alleged to have been made by them in 1846 as copartners, in their firm name, it was proved that the note was signed by one in the alleged firm name, and that the other defendant was then his wife, held that the plaintiff could recover against the husband alone. Brumskill v. James, 1 Kernan, 294.