The cases which establish the doctrine, that a judgment entered under the provision now in question is, to all intents and purposes, and particularly for the purposes of the appeal therefrom, a judgment and not an order, have been before cited at the commencement of the last chapter.

In the recent case of Aymar v. Chase, 1 C. R. (N. S.) 141, a motion to vacate a judgment, entered upon a defendant's answer being stricken out as sham and irrelevant, was denied with costs, though the usual time to amend had not expired; on the ground that the answer, having been stricken out, was to be treated as no answer at all, and as therefore unamendable, and that the only course open to the defendant, under such circumstances, was to have applied for leave to put in a new answer, which might have been granted upon terms.

The judgment roll, on the entry of judgment of this description on the part of the plaintiff, will consist of the summons and complaint, the decision or order of the court upon the motion, and an affidavit that no answer has been received, except the one which has been drawn in question, to which, the costs and postea must be subjoined in the usual manner. For forms, see Appendix.

Where, on the contrary, the reply is stricken out, the answer must, of course, form part of the judgment roll, and an affidavit must be made in like manner as above, that no reply has been received, except the one decided to be invalid. Under these circumstances, a motion under sec. 154, appears indispensable before judgment can be properly perfected, but the necessity of a second proceeding may be obviated by a judicious framing of the original motion in the first instance. Of course the formal entry will be the same, " mutatis mutandis."

On the entry of judgment by the defendant, on motion under sec. 154, on the plaintiff's failing to reply to new matter constituting a defence, the pleadings and the order or decision of the court on the motion, with the usual adjuncts, will form the judgment roll. The application for this purpose must be made to the court, a judge at chambers having no jurisdiction in the matter.-Aymar v. Chase, 1 C. R. (N. S.) 330. On the success of a motion to dismiss for want of prosecution, under rule 23, the pleadings and decision or order of the court, will, in like manner, form the principal component parts of that document. In short, in all these cases, it may be laid down as a general

rule, that all the proceedings in the cause, down to the period when a default has been committed by either party, and all that is necessary fully to demonstrate the existence of that default, whether by means of the decision of the court to that effect, or otherwise, are necessary component parts of the judgment roll. That document, to be completed, must contain a full and exact statement of every particular on which judg ment has been given, or which is necessary to explain or sustain that judgment.

The above observations dispose of the different questions in relation to the entry of judgment, by default, whether actual or imputed, for want of a defence, or in the event of a motion for dismissal being granted. It remains to notice the course of proceeding on the entry of judgment of a similar nature, on default of either party to appear and sustain his cause, when called on. But few observations are necessary on this branch of the subject, inasmuch as the entry of judgment under these circumstances, differs in no essential respect from that on an ordinary trial, in cases where trial by jury is waived, by the non-appearance of the adverse party. The judgment roll differs in no respect, and consists of the same papers, viz., the summons, pleadings, the clerk's minute of the decision of the court, the costs, and postea. The form of the latter will be found in the Appendix.

The last point to be noticed under this particular head, is the entry of judgment on an inquest, a proceeding in strict analogy with the last. The judgment roll and postea are precisely the same as those on a default of the last-mentioned nature; or, perhaps, it might be more correct to designate them as precisely the same, with formal variations only, as those on an ordinary trial by the court; inquest being, to all intents and purposes, an actual trial of the case, though ex parte, and out of its regular order. The form of postea, on a judgment of this nature, is also given in the Appendix.

The last subject to be noticed in the present chapter, is the entry of judgment by confession, under chapter III. title XII. of part II. of the Code, ss. 382 to 384, inclusive.

Judgment of this nature may, under the powers in sec. 382, be entered, either for money due, or to become due, or to secure any person against contingent liability on behalf of the defendant, or both.

In an earlier portion of the work, in which the proceedings by which a controversy may be settled without going through the forms of an action between the parties were considered, the preparation and form of the statement to be made, in order to the entry of a judgment of this description, have been already noticed, and the cases upon the subject cited, particularly Park v. Church, 5 How. 381, 1 C. R. (N. S.) 47, which holds, that a statement that "judgment is confessed," for a certain sum, is sufficient to authorize the entry of such judgment, without any further direct authority for that purpose, the provision to that effect, in sec. 383, being held to be merely directory, and also those decisions which maintain, in accordance with the English doctrine on the same subject, that, under these provisions, a judgment confessed by a party whilst in custody, and without the presence of an attorney to advise him on that behalf, is void.-V. Wilder v. Baumstauck, 3 How. 81; Boutel v. Owen, 2 C. R. 40; 2 Sandf. Sup. C. R. 655.

The powers of the supreme court, and also of the superior court, in relation to the entry of judgments of this description, are unlimited in regard to amount; but jurisdiction in this respect, does not appear to have been conferred upon the court of common pleas, that court not being included in sec. 384, the provision which confers jurisdiction on the other tribunals. Justices courts have also, under subdivision 8 of sec. 53, a limited jurisdiction in this respect, where the amount confessed does not exceed $250. Under the Code of 1848, this special jurisdiction was still more restricted, and was limited to the amount of $100; and the amendment of 1849 was held to have no retro-active effect, in Daniels v. Hinkston, 5 How. 322. Of course, the jurisdiction in question, whether under the original or amended Codes, being of a special and limited nature, no presumption can be made in its favor.

The entry of a judgment by confession is a proceeding of the most simple nature. No judgment roll need be prepared, nor is the preparation of a bill of costs necessary, beyond a mere statement of the actual disbursements, if any, and of the amount actually due for principal and interest, if any payable. The course is distinctly prescribed by sec. 284, and all that is necessary is to file the statement "with a county clerk, or with the clerk of the Superior Court of the city of New York, who shall endorse upon it, and enter in the Judgment Book, a judgment

of the Supreme or said Superior Court, for the amount confessed, with five dollars costs, together with disbursements. The statement and affidavit, with judgment endorsed, shall thenceforth become the judgment roll." When entered, such judgment may be docketed, and enforced by execution, precisely, in all respects, as one obtained in the ordinary manner; special provisions being, however, inserted in sec. 384, in relation to the latter proceeding, in those cases where the whole. amount has not yet become due, and which will hereafter be considered under the head of execution.

It has been held to be positively essential that the judgment to be so entered should be endorsed by the clerk upon the statement, as well as entered in the Judgment Book, as is, in fact, prescribed by the provision above cited. Where, however, the clerk had, by inadvertence, omitted to do so, in consequence of which, subsequently entered judgments had obtained an actual legal priority on that ground, all requisitions having, in those cases, been complied with; the error was allowed to, be corrected, and the first judgment amended, so as to obtain its proper legal priority, on the ground that the court will not allow a party to suffer by the omissions or mistakes of one of its own officers, where a substantial right is involved.-Neele and others v. Berryhill, 4 How. 16.

In Park v. Church, 5 How. 381, 1 C. R. (N. S.) 47, before cited, it was held that the provisions of the Revised Statutes, under which an acquiescence of one year is a bar to all relief for formal irregularity in the entry of a judgment of this description, are still in full force. It would seem, however, that this provision would not constitute a sufficient bar to an application for the purpose of setting aside the judgment so entered, on the ground of any serious and bona fide defect in the statement itself, or of fraud or evil practice in the obtaining of that statement.

Before passing on to the entry of judgment in contested cases, another species of entry of judgment in the nature of a quasi confession, still requires observation, i. e., the judgment which the plaintiff is authorized to enter by section 385, in the event of an offer to allow the same, being served by the defendant under the provisions of that section, and of such offer being accepted. Notice of such acceptance may, as provided by that section, be given within ten days from the date of the

offer in question, and, if such notice be given, the plaintiff may then file the summons, complaint, and offer, with an affidavit of the giving of such notice of acceptance, and the clerk must thereupon enter judgment accordingly for the same, or to the effect mentioned in such notice, which judgment, when so entered, may be docketed and enforced as in other cases. Of course, if the offer be not accepted within the time limited by the section in question, that offer becomes a nullity, and no action can afterwards be taken thereupon; and, equally of course, in entering such judgment, the terms of the offer cannot in any manner, or to any extent, be departed from, as any such departure would vitiate the whole proceeding. As the judgment is to be entered with costs, those costs must be prepared and taxed in the usual manner, where no fixed sum is specified to that effect in the notice; and, as the very fact of the offer implies an appearance in the action, even if none have been given, it would seem to be necessary to give the usual notice of such taxation, though there is no direct decision or provision on the subject.

CHAPTER III.

OF THE ENTRY OF JUDGMENT IN CONTESTED CASES

THE entry of judgment, in cases which have been made the subject of a regular trial, is thus provided for by sec. 274 of the Code:

§ 274. 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 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 plain