draw the attention of the student, at this juncture, to the necessity of being fully prepared on the former head, and of making the application for the latter purpose in due time, where such application is admissible.

In cases of foreclosure and partition, and others of an analogous nature, such as equitable proceedings for the purpose of enforcing an account, &c., a reference will probably be directed at the original hearing, to report the facts of the case, for the information of the court, before the final entry of the judgment pronounced. In strictness, these proceedings might be held to belong to this period of the cause, but it may be more convenient to notice them under the head of judgment, to which title accordingly their consideration is deferred. They are, in fact, rather of a consequential than of a preliminary nature, and answer to the reference to a master under a decree in chancery under the former practice, and to the subsequent winding up of the proceedings under his report when made, by means of a final decree, or order on further directions.

BOOK IX.

OF JUDGMENT.

CHAPTER I.

OF JUDGMENT, GENERALLY CONSIDERED.

By the entry of judgment, in proper form, the final decision of any issue, whether of law or of fact, is duly placed on record, and made available for the purposes of enforcement. By sec. 245 of the Code, judgment is defined as "the final determination of the rights of the parties in the action."

In ordinary cases, the distinction between a judgment and an order, according to the definition of the latter in sec. 400, is so broad, that little or no risk of confusion arises. The touchstone of that distinction is, the finality of the one, and the interlocutory or consequential nature of the other. On two points, however, discussions have arisen ;-one as to the nature of the decision of the court upon a demurrer, whilst issues of fact remain undecided in the same cause; the other as to that on an application for judgment under sec. 247;-the view attempted to be sustained in each case being, that decisions of such a nature are orders, and appeal

able from as such.

That the decision on an application, under sec. 247, is a judgment, and not an order, is settled by King v. Stafford, 5 How. 30; same case (decision of general term), 6 How. 127, and Darrow v. Miller, 5 How. 247; 3 C. R. 241; and, in the last case, and also in Rae v. The Washington Mutual Insurance Company, 6 How. 21, it is further laid down, that a judgment of this description, on the ground of the frivolousness of the adversary's pleading, must be applied for, in terms, as such, and cannot be obtained on a notice that an order will be asked for. In Raynor v. Clark, 7 Barb. S. C. R. 581, the same doctrine is maintained; and it is

held, that an appeal from such judgment lies to the general term, as in other cases.

In Bentley v. Jones, 4 How. 335, 3 C. R. 37, it was held, on the other hand, that the decision of the court on an issue of law, even when issues of fact remain undisposed of in the same case, and leave has been given to amend, is a judgment, and not an order, and cannot be appealed from, as the latter. The same case is, however, equally conclusive, that such judgment cannot be perfected, so as to become appealable, till after the final determination of all the issues in the case: and this view is fully confirmed by Masters v. Barnard, 6 How. 113; 1 C. R. (N. S.) 407; and Wood v. Lambert, 3 Sandf. S. C. R. 724; 1 C. R. (N. S.) 214. The decision of the court on the issue of law appears, therefore, to stand, in the interim and until the disposal of the issues of fact, in the anomalous condition of a judgment in posse, but of contingent and suspended effect. It seems clear, on the one hand, that the costs cannot be taxed, and a judgment roll filed under it in usual course, pending the other issues; and equally so, on the other, that some entry must be made on the records of the court, in order to show its action in the matter; and, where leave has been given to amend, to bind the opposite party by the terms imposed as the condition of that leave being given; and the form of that entry will accordingly be hereafter considered. If leave to amend be refused, or if the opposite party fail to do so within the time allowed, the judgment then becomes a final determination, to all intents and purposes, and may thereupon be entered, and acted upon as such. In the meantime, it remains in abeyance for all practical purposes.

Though partaking, in all cases, of the same general characteristics, the circumstances attendant upon the entry of judgment in different cases, are of various natures, and admit of many distinctions. The following has been selected as the arrangement presenting the least complication, viz., to consider

1. The general characteristics of the entry of judgment, applicable to such entry in all cases, and the preliminary and formal proceedings for that purpose.

2. The entry of judgment on confession, or default, actual or imputed.

3. The entry of judgment on contested issues.

4. The proceedings preliminary to the entry of judgment, or consequent thereon, before execution, in cases where further action

or inquiry is necessary, before the direction given by the court can be fully carried into effect.

5. The setting aside of judgment, by interlocutory proceeding, where practicable.

N. B. The consequential proceedings, in relation to judgment entered up against joint debtors not served with process, with a view to its subsequent enforcement against those parties, will likewise be considered in a supplementary chapter, at the close of this division of the work.

The first of the heads above proposed, will accordingly be entered upon in the remaining portion of the present chapter, the others forming the subject of those immediately succeeding.

Where the cause has been tried, and the original judgment roll filed in any particular county, the judgment on an appeal, must be perfected, and the roll filed in the same clerk's office. If entered elsewhere, although in the county where the appeal has been decided, it will be irregular.—Andrews v. Durant, 6 How. 191.

The first point to be considered, with reference to the entry of judgment in general, is the notice of taxation of the costs of the prevailing party; an essential preliminary, in all cases where a notice of appearance has been given, or proceedings have been taken in the suit, by the opposite party. The giving of this notice is made a matter of necessity by sec. 311; and the period of two days is there expressly prescribed for the purpose. In Whipple v. Williams, 4 How. 28, a notice, served on Saturday evening for Monday morning, was accordingly held to be bad; though, whether the principle there laid down, that, in all cases where the time fixed is less than a week, Sunday should be excluded from the calculation, seems somewhat questionable. It is clear that, in that case, the notice was wrong; because, under sec. 407, whether read alone, or in connection with Rule 63 of the late Rules of the supreme court, as saved by sec. 469, the day of service of such notice was to be excluded from the computation; and, therefore, the two days' notice, as always prescribed, had not been given. The proper course is, doubtless, to give such a notice, as that, in all cases, two clear days may intervene. A notice served on the Saturday should accordingly be for the Tuesday following; and inasmuch as, under the same section, Sunday, when it is the last day, must be excluded from the computation, a notice served on a Thursday, should be for the Monday then next.

In all cases where notice of appearance has been given by the

defendant, he is, under sec. 414, entitled to notice of taxation of his adversary's costs, whether he have or have not pleaded in the action. Under the Code of 1848, this appears to have been a matter of doubt; and accordingly, in Richards v. Swetzer, 3 How. 413, 1 C. R. 117, and Wilcox v. Curtis, 1 C. R. 127, the defendant, not having answered, was held not to be entitled to notice of taxation; although, in the latter case, notice of appearance had been given, and proceedings in the cause had been taken on his behalf. That such notice is necessary, in all cases where notice of appearance has been given, is now clearly established by the cases about to be cited, which all concur in holding that such notice is a matter of necessity, and that the omission to give it is a serious irregularity. The only difference has been as to the effect of such omission, and whether it is, or is not, an error capable of correction.

The stricter view is taken in the cases of Elson v. The New York Equitable Insurance Company, 2 Sandf. S. C. R. 654, 2 C. R. 30, and The Bank of Massillon v. Dwight, 2 C. R. 49; in both of which, such omission was held to be a fatal defect; and the judgments entered were set aside accordingly. Similar views were likewise entertained in Doke v. Peek, 1 C. R. 54, though the point was not there directly passed upon by the court.

The contrary proposition, i. e., that, though clearly an irregularity, such omission is, nevertheless, not a fatal defect, but that a re-taxation may be ordered, as under the old practice, is maintained in Richards v. Swetzer, 3 How. 413; 1 C. R. 117; Goldsmith v. Marpe, 2 C. R. 49; 7 L. O. 351; Dix v. Palmer, 5 How. 233; 3 C. R. 214; Hughes v. Mulvey, 1 Sandf. S. C. R. 92; and Tracy v. Humphrey, 1 C. R. (N. S.) 197. See, also, Ford v. Monroe, 6 How. 204; 10 L. O. 155. In all of the former cases, a readjustment of the costs was considered to be the proper course; and it was held, that, by means of such readjustment, the irregularity might be cured; the judgment remaining valid for all other purposes. The motion for that purpose must, however, be made forthwith, and, at all events, before payment of the amount taxed. Delay or payment of that amount has been held to be a waiver of the right to make such motion.-Collomb v. Caldwell, 5 How. 336; Schermerhorn v. Van Voast, 5 How. 458. See, likewise, Harris v. Scofield, MS., noticed at 6 How. 207, in the Report of Ford v. Monroe. Where, however, a bill of costs was paid to the clerk of the defendant's attorneys, the day before motion papers were served, for a retaxation on the ground that an