tiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served.

By sections 275 and 276, the measure of relief to be granted to the plaintiff is prescribed in the following terms:

275. The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but, in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue.

§ 276. Whenever damages are recoverable, the plaintiff may claim and recover, if he show himself entitled thereto, any rate of damages which he might have heretofore recovered for the same cause of action.

In a previous section, No. 263, under the head of trial by jury, the following clause appears, in relation to the entry of judgment for a defendant: "If a set-off, established at the trial, exceed the plaintiff's demand as established, judgment for the defendant must be given for the excess; or, if it appears that the defendant is entitled to any other affirmative relief, judgment must be given accordingly."

In section 267, provision is made for the entry of judgment on a trial by the court. Sec. 269 has reference to that on the trial of an issue of law, as commented on in the last chapter, and section 272 prescribes the course on the decision of referees of the whole issue.

By sec. 278, it is provided that judgments in general, except where entered by the clerk alone, as mentioned in the last chapter, and also judgments on issues of law tried by the general term, by special direction of the court if given, shall, in the first instance, be entered upon the direction of a single judge, or report of referees, subject to review at the general term, on the demand of either party, as therein provided.

The above are the provisions of the Code of general application, in relation to the nature of the judgment to be entered on contested issues. A few, in relation to the entry in particular cases, will be noticed hereafter in the course of the present chapter.

In cases which, before the fusion of the two jurisdictions,. would have been of decided common law cognizance, the entry of judgment is, in general, simple in its form, and presents few, if any complications. In those more strictly of

equitable cognizance, the proper form of decree to be entered is ordinarily of a more involved nature, and frequently embraces different degrees of relief for the benefit of different parties, whether plaintiffs or defendants. Although therefore, the prevailing party, and more usually the plaintiff, has, in these cases, the carriage of the decree, still it is frequently a matter of necessity that the other parties should have a share in its original preparation. The course under the old practice was, for minutes of the proposed decree to be prepared in the first instance, and to be then settled by the counsel for the different parties, and eventually by the judge if necessary, and such form will of necessity be most convenient, and is that most usually adopted under the new system, in similar circumstances. Neither the Code nor the recent rules effect any change in this respect, and the whole proceedings in relation to a decree of this nature, are governed entirely and exclusively by the rules of the old practice. To enter, therefore, into details of that practice, or to give any precedents, would be entirely out of the scope of the present work, as laid down at the outset.

Referring then to the works in question, for the general provisions of those descriptions of judgments which amount to a decree in equity under the old system, and for the forms to be adopted in their preparation and settlement, (after which such judgment, when finally settled, is placed on record, and a judgment roll filed, precisely as in other cases ;) we proceed to the formal entry of judgment in the more ordinary description of causes, or those for which special provision is made by the Code, and to cite the recent decisions in relation thereto, some few of which are also applicable to cases of an equitable nature as above.

In causes where the relief granted is represented by a money payment, either by way of specific recovery, or as damages, the entry of judgment, whatever its nature, is, of course, a simple proceeding; and that of judgment against the plaintiff on behalf of a defendant, on the latter's obtaining a dismissal of the complaint, or prevailing on a set-off, to an amount exceeding the former's demand, is, of course, equally devoid of complication. In cases of this description, plain, straightforward forms analogous to those on a judgment at common law under the old practice, are in all cases applicable. A judgment involving "the determination of the ultimate rights of the parties on each side, as between

themselves," is, of course, a matter of greater difficulty, and the more so, as the powers of the court, under the Code, embrace not merely those of the court of chancery under the old system, but extend to the granting of relief as regards co-defendants, on equities as between themselves, and separate and apart from the case made out by the plaintiff, without the necessity of any independent proceeding for that purpose; an amplification of the powers of the court, which, although beneficial in its general scope, seems, if looked into more in detail, to be open to many and serious objections; particularly when stretched to the extent to which, in some few cases, and particularly in that of Frazer v. Greenhill, subsequently cited under the head of attachment, those powers have been carried.

In general, however, the courts have been disposed to impose greater restrictions on cases of relief of that nature.

Thus, it has been held, that relief cannot be so administered between co-defendants who have not answered, or, as between one defendant who has answered, and others who have not.Norbury v. Seeley, 4 How. 73; 2 C. R. 47; Woodworth v. Bellows, 4 How. 24; 1 C. R. 129.

Nor is the existence of any claims for relief, as between such defendants under the circumstances last mentioned, any bar to the plaintiff's right to enter up judgment against them all; where his title to such relief has not been controverted by the answer put in.- Woodworth v. Bellows, last cited.

In cases, however, where defendants have answered, and the granting of relief between them does not prejudice the plaintiff's case, there seems no limit to the power of the court to adjudicate on their mutual rights or equities, as between themselves, and independent of such plaintiff. It will have been seen that the entry of a judgment against one or more of several defendants, is expressly allowed, where the same shall be proper. The test of this propriety would appear to be the joint or several nature of the interests of the parties so sued. It is obvious, that, where an action is against joint debtors, strictly so speaking, judgment can only be entered against all. The plaintiff in these cases, must recover against all or none-V. Merrifield v. Cooley, 4 How. 272; and, under the special provisions of the Code before alluded to, and hereafter cited in detail, the service upon one only of parties so interested, is sufficient to authorize the entry of judgment against all, though with restric

tions as to the enforcement of that judgment. And not only this, but the judgment, under these circumstances, must be entered against all parties, and not against any of them indivi dually.-Sterne v. Bentley, 1 C. R. 109.

The rule, as above stated, was strictly applied in the recent case of Fullerton v. Taylor, 6 How. 259, 1 C. R. (N. S.) 411, where, in an action against several defendants on a joint contract, a referee of the whole case had reported that the defendants were not indebted to the plaintiff, that no contract had been made with them, but that a contract had been with, and work done, for one of such defendants, who was indebted to the plaintiff, upon which report a several judgment was accordingly entered up against the latter. The court held that, under these circumstances, no issue as to the several liability of the defendant in question, was before the referree, and that the portion of his report upon which judgment was entered, was mere surplusage; and, the report being otherwise substantially for the defendants, the judgment so entered was vacated.

In cases, however, where the liability is either joint or several at the option of the plaintiff, as in the case of the different parties to a bill or promissory note; or in those where the interests of the defendants are severable, as in cases of a joint tort, where the case is proved against some of the defendants, but fails as to others-V. Dominick v. Eacker, 3 Barb. S. C. R. 17, the entry of a joint or several judgment lies at the option of the plaintiff, according to the result of the trial: whilst, in those where the defendants stand clearly in different' relations to the plaintiff, the power of the latter to take several judgments against them, is still more unquestionable. The provision on this subject is a necessary corollary to that in sec. 258, allowing a separate trial between a plaintiff and any of several defendants, whenever, in the opinion of the court, justice will be thereby promoted.

The relief obtainable by the plaintiff, as against all or any of the defendants, cannot, under sec. 275, be inconsistent with the case made out by the complaint; and, where two remedies are sought by the complaint, or are obtainable by the plaintiff, he must elect between them, and cannot enter judgment in the alternative.-Commercial Bank v. White, 3 How. 292; 1 C. R. 68; Aldrich v. Thiel, 3 C. R. 91.

The relief to be given to a defendant may be either, 1stly,

relief of an equitable nature, under any of the many phases which relief of that description may assume; 2ndly, judgment of set-off, exceeding the plaintiff's demand; or, 3rdly, judgment of dismissal. The considerations in respect of equitable relief, have been before alluded to, as belonging exclusively to the old practice, and judgment of set-off, as above, amounts to a mere simple money judgment in the usual form.

Judgment of dismissal may be either the result of an actual trial, or of a motion for that purpose. The considerations in relation to a motion of this description, have been entered upon at an earlier stage. The section, as above cited, seems to contemplate the possibility of a dismissal on an actual trial, as against one defendant, on the ground of want of due prosecution of the cause as against the others served; but no case appears upon the books in which power of this description has been exercised. Where judgment of dismissal takes place on the hearing, the usual judgment roll and postea are all that is necessary. Where, however, such judgment is the consequential result of a previous motion for that purpose, the order of the court on that motion will form a necessary component part of the roll, and the entry of judgment then follows as of course.

The preliminary proceedings to the entry of judgment, and the component parts of the judgment roll, have been already enlarged upon in the first chapter of this book, and are substantially the same in all cases.

The postea on a judgment for a money recovery, either specific, or by way of damages, on trial by jury, on trial by the court, and on trial by the referees, are respectively given in the Appendix.

The mode of entry of a judgment for the recovery of personal property, is specially prescribed, as follows, by sec. 277:

§ 277. In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof, 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 property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same.

A form is also given in the Appendix. The plaintiff cannot,