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Amended 1849.

CHAPTER V.

Trial by referees.
SECTION 270. All issues referable by consent.

271. When reference may be compulsorily ordered.
272. Report to stand as decision of the court.

273. Referees, how chosen. § 270. [Sec. 225.] All or any of the issues in the action, an issues whether of fact or of law, or both, may be referred, upon

by consent. the written consent of the parties.

After service of the reply, motion to refer may be made immediately.
Enos and others agt. Thomas and others, 4 How. 290.

Actions based upon carelessness or negligence cannot be referred. Mc-
Master et al. vs. Booth, 3 Code Rep. 111; S. C. 4 How. 427.
See Supreme Court Rules, 25, 69, 71.

$ 271. [Sec. 226.] Where the parties do not consent, the When recourt may, upon the application of either, or of its own may be.

compulsomotion, except where the investigation will require the cidy orderdecision of difficult questions of law, direct a reference in the following cases :

1. 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 question of fact involved therein ; or,

2. Where the taking of an account shall be necessary for the information of the court, before judgment, or for carrying a judgment or order into effect; or,

3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action. $ 272. The trial by referees is conducted in the same man- Trial by

referees, ner as a trial by court. They have the same power to grant adjournments as the court upon such trial. They must state the facts found and the conclusions of law separately, and 1851. their decision must be given, and may be excepted to and reviewed in like manner. The report of the referees upon the whole issue stands as the decision of the court, and judgment

how conducted

Passed

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 has the effect of a special verdict.

As to the manner of reviewing reports of referees, see Haight vs. Prince, 2 Sand. 720; Graham agt. Milliman, 4 How. 435; Leggett vs. Mott, id. 325; S. C. 2 Sand. 720; La Wall agt. Grigg, 5 How, 158 ; Nones vs. the Hope Mutual Ins. Co. id. 157; Pepper agt. Goulding, 4 How. 310; Rayner vs. Clark and Lawrence, 7 Barb. 581; Enos and others agt. Thomas and Hun. ter, 5 How. 361; Sturgis vs. Merry, 3 How. 418.

The prevailing party may enter judgment on the report of a referee, without any notice of the report to the adverse party. Renouil vs. Harris, 2 Sand. 641.

The referees are, as to matters of fact, merely a substitute for a jury, whose decision upon a question of fact cannot be reversed upon a writ of error. Davis vs. Allen, 3 Com. 168.

A report of referees requires to be confirmed for certain purposes. Griffing agt. Slate and Gardner, 5 How. 205.

Judgment upon the report of the referees may be entered without the aid of a judge. Vanvalkenburgh et al. vs. Allendorph et al., 4 How. 39.

Supreme Court Rule, 24. Referees, § 273. [Sec. 228 and 229.] In all cases of reference, the

parties, except when an infant may be a party, may agree Amended upon a suitable person, or persons, not exceeding three, and 1849, 1651.

the reference shall be ordered accordingly; and, if the parties do not agȚee, the court shall appoint one or more referees, not exceeding three, who shall be free from exception.

how chosen.

CHAPTER VI.

Manner of entering judgment.
SECTION 274. 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 re

view 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. Judgment may be for $274. [Sec. 230.] Judgment may be given, for or against or against any of the one or more of several plaintiffs, and for or against one or

. Amended 1349.

more of several defendants, and it may determine the ulti

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mate rights of the parties on each side, as between themselves. 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 á 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.

Inquests may be taken at the circuit as formerly. Anderson vs. Hough, 1 Sand. 721; Jones v. Russell, 3 How. 324.

In obtaining judgment against several defendants, see Merrifield vs. Cooley, et. al. 4 How. 272.; Norbury et al. vs. Seeley et al.,

Woodworth vs. Bellows et al., id. 24.

Judgments can not be taken in the alternative, Commercial Bank vs. White, 3 How. 292.

Where a court has jurisdiction, its judgment is never void because it is erroneous in point of law. Mason agt. Jones and others, 5 How. 118.

A final decree regularly obtained and enrolled, can not be opened or altered but on a bill of review. Picabia agt. Everard and others, 4 How. 113.

See notes to section 246 supra. $ 275. [Sec. 231.] The relief granted to the plaintiff, if the relief

awarded to there be no answer, cannot exceed that which he shall have the plaiddemanded in his complaint; but in any other case, the court may ġrant him any relief consistent with the case made by the complaint and embraced within the issue.

$ 276. [Sec. 232.] Whenever damages are recoverable, Rate.ee the plaintiff may claim and recover, if he show himself where

damages entitled thereto, any rate of damages, which he might have able. heretofore recovered for the same cause of action.

$ 277. In an action to recover the possession of person- Judgment al property, judgment for the plaintiff may be for the for recovepossession, or for the recovery of possession, or the value sonal prothereof, in case a delivery cannot be had, and of damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the

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Amended

Clerk to keep a judgment book.

Judgment

ment book.

property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same.

$278. [Sec. 233.] Judgment upon an issue of law not tried

at a general term or an issue of fact, or upon confession, or upon Judgment failure to answer, (except where the clerk is authorized to of face

, lo enter the same by the first sub-division of section two hundred rection of and forty-six, and by section three hundred and eighty-four,) a single judge or on shall in the first instance be entered upon the direction of a Telfereste single judge, or report of referees, subject to review at the subject to

general term on demand of either party, as herein provided.

Judgment upon the report of referees may be entered upon the whole issue. 1349, 1851. Van Valkenburgh et al. vs. Allendorph et al. 4 How. 39.

$ 279. [Sec. 234.] The clerk shall keep among the records of the court, a book for the entry of judgments, to be called the judgment book.”

§ 280. [Sec. 235.] The judgment shall be entered in to be enter the judgment book, and shall specify clearly the relief ed in

granted, or other determination of the action.

§ 281. [Sec. 236.] Unless the party or his attorney shall Judginent

furnish a judgment roll, the clerk, immediately after enAmended tering the judgment, shall attach together and file the fol1849, 1851,

lowing papers, which shall constitute the judgment roll;

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 thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, bill of exceptions, case, and all orders relating to a change of parties, and all orders and papers in any way involving the merits, and necessarily affecting the judgment.

The attorney has nothing to do with making up the judgment roll; it is the duty of the clerk. Renouil vs. Harris, 2 Sand. 642.

When the case is made and settled, it forms a part of the judgment roll. Lynde vs. Cowenhoven, 4 How. 327.

roll.

docketed

Amended

a

$282. | Sec. 237.] On filing a judgment roll upon a judgment, in What

Judgment directing in whole or in part the payment of money, it may be how to 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 tran-Ame. script of the original docket," and shall be a lien on the real property in the county where the same is docketed, of every person against whom,any such judgment shall be rendered, and which he may have at the time of docketing thereof, in the county in which such real estate is siluated, or which he shall acquire at any time thereafter for ten years from the time of docketing the same in the county where it was rendered. But whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution on such judgment shall have been given, and the appeal perfected as provided in the Code, the court in which such judgment was recovered may, on special motion, after notice to the person owning the judgment, in such terms as they shall see fit, direct an entry to be made by the clerk on the docket of such judgment that the same is "secured on appeal,and thereupon it shall cease during the pending of the appeal to be a lien on the real property of the judgment debtor as against purchasers and mortgagees in good faith.

Supreme Court Rule, 4.

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