where the debt is not denied, have an injunction to protect the partnership, property and assests, and a receiver appointed. Dillon v. Horn, 5 Pr. R., 35. It seems that the principle asserted by the chancellor in the case of Innes v. Lansing, 7 Paige, 583, sustaining a bill and injunction, upon the application of a creditor, against insolvent limited partners, on the ground that the partnership effects were a trust fund for the benefit of all the creditors, should apply equally to an insolvent general partnership. Ib.

SECTION 245. Judgment, what.

246. Judgment on failure of defendant to answer.

247. Judgment on frivolous demurrer, answer or reply.

$ 245. [201.] Judgment, what.—A judgment is the final determination of the rights of the parties in the action.

The decision of the court on a demurrer, is a judgment. Bentley v. Jones, 3 Code Rep., 37. King v. Stafford, 5 Pr. R., 30. An order of the supreme court at general term, reversing a judgment obtained at the circuit, and ordering a new trial, is not a judgment. Duane v. Northern R. R. Co., 4 Pr. R., 364.

The distinction between an "order" and a "judgment," is this. An order is the decision of a motion. A judgment is the decision of a trial by the court. Parker, Watson and Wright, JJ., in Bentley v. Jones, 3 Code Rep, 37. King v. Stafford, 5 Pr. R., 30. The decision of a demurrer is not an order but a judgment. Ib. The words" rule and order" in no case mean a judgment. Darrow v. Miller, 3 Code Rep., 241. See, note to section 400 of this code.

§ 246. [202.] (Amended.)—Judgment on failure of defendant to answer.-Judgment may be had if the defendant fail to answer the complaint, as follows:

1. In any action arising on contract for the recovery of money only, the plaintiff may file with the clerk, proof of personal service of the summons and complaint, on one or more of the defendants, or of the summons according to the provi

sions of section 130, and that no answer has been received. The clerk shall thereupon enter judgment for the amount mentioned in the summons, against the defendant or defendants, or against one or more of several defendants, in the cases provided for in section 136. But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to him, shall assess the amount due to the plaintiff thereon; and in other cases shall ascertain the amount which the plaintiff is entitled to recover in such action, from his examination under oath, or other proof, and enter the judgment for the amount so assessed or ascertained. In case the defendant give notice of appearance in the action, he shall be entitled to five days' notice of the time and place of such assessment.

2. (Amended.)-In other actions the plaintiff may, upon the like proof, apply to the court after the expiration of the time for answering, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of money only, or of specific real or personal property, with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or if the examination of a long account be involved, by a reference as above provided. If the defendant give notice of appearance in the action before the expiration of the time for answering, he shall be entitled to eight days' notice of the time and place of application to the court for the relief demanded by the complaint.

3. (Amended.)-In actions where the service of the summons was by publication, the plaintiff may in like manner apply for judgment, and the court must thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the State, must require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may ren

der judgment for the amount which he is entitled to recover. Before rendering judgment the court may, in its discretion. require the plaintiff to cause to be filed satisfactory security, to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under, or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defence.

The amendments are in subdivisions 2 and 3. These, before amendment, were as follows:

2. In other actions, the plaintiff may, upon the like proof, apply to the court, after the expiration of the time for answering, for the relief demanded in the complaint. If the taking an account or the proof of any fact, be necessary, to enable the court to give judgment, or to carry the judgment into effect, the court, instead of taking the account or hearing the proof, may, in its discretion, order a reference for that purpose to any person, free from all exception, to be named by the party. And where the action is for the recovery of money, only, or of specific, real or personal property, with damages for the withholding thereof, the court may issue a writ of inquiry, or order the damages to be assessed by a jury, or if the examination of a long account be involved, by a reference as above provided. In case the defendant give notice of appearance in the action before the expiration of the time for answering, he shall be entitled to eight days' notice of the time and place of application to the court for the relief demanded by the complaint in such actions.

3. In actions where the service of the summons and complaint was not personal, the plaintiff may in like manner apply for judgment, and the court shall thereupon cause proof to be taken of the demand mentioned in the complaint, and in case the defendant is a non-resident, shall cause the plaintiff or his agent to be examined, on oath, as to any payments that have been made to such plaintiff, or to any one to his use on account of such demand, and may render judgment for the amount which he is entitled to recover, and may, in its discretion, require the plaintiff to cause to be filed satisfactory security to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant, or his representatives, shall apply and be admitted to defend the action, and shall succeed in such defence.

The application for judgment, for default of an answer, in actions within the second subdivision of this section, must be made at the special term. Ryan v. McCannell, 1 Sand. S. C. R., 709. 1 Code Rep., 93.

The county named in the complaint, is the county of trial, whether there be an issue joined, or a judgment on failure of defendant to answer. And where there is

no answer, the application for judgment must be made in the county designated in the complaint as the county of trial. Warner v. Kenny, 3 Pr. R., 323. 1 Code Rep., 96. The defendant has a right to appear, on assessing the damages, to mitigate the amount, as he had formerly, on executing a writ of inquiry. Ib. But by the 91st of the supreme court rules of August, 1849, it is provided, that where the plaintiff is entitled to judgment by reason of the defendant failing to answer the complaint, and the relief demanded requires application to be made to the court, such application may be made at any special terin, in the district embracing the county in which the action is triable, or in an adjoining county; such application may also be made at a circuit court in the county in which the action is triable, but when a reference, or a writ of inquiry, shall be ordered, the same shall be executed in the county in which the action is triable. The mode of applying for judgment, on failure to answer, in actions to foreclose mortgages, and for divorces, is prescribed by rules of

court. See, as to mortgages, rule 49, and as to divorce, rule 68. See, rules of the supreme court, în appendix.

mins that the first subdivision of this section was intended to apply to actions mssory notes, money bonds, and other contracts for the payments of money apon their face, and not to that large class of actions for the recovery of damages, necesy on account of the non-performance of some stipulation or duty, other than the ayment of a sum of money due, although money only was sought to be recovered as damages," and does not include an action against a common carrier for loss of gos Per Johnson, J., in Clor v. Mallory, 1 Code Rep., 127.

The words " and that no answer has been received," in this section must be read“ and that no answer or demurrer has been received." Broadhead v. Broadhead, 4.0.368. 309. 3 Code Rep., 8. And it will not be contended that a plaintiff can lase udgment if a demurrer has been served. Ib. But if the defendant has dematred to the complaint and the demurrer has been overruled, or there is a direction fer fucgreat ander section 247, there is in that case a failure to answer within this seciva, and the like proceedings may be had as where neither answer nor demurrer asa ng v. Stafford, 5 Pr. R., 30, 34. According to the old practice, the

vec.gs a case of judgment for the plaintiff upon a demurrer were the same as a osse di Cosement by default. Ib. And where a defendant demurs to the combat, & is an appearance in the action, and although such demurrer may be set usse at best de de frivolous, the defendant is nevertheless entitled to notice of the asAxon & Jamages or of the amount due the plaintiff in like manner as if he had GAVA ANNO 20ce of appearance. Ib. And where in an action on a promissory Se couperat was not verified, the defendant demurred to the complaint, and Tared a direction for judgment under section 247, unless the defendant ja aa answer with ten days. The defendant did not answer within ten days, pou, the plaat gave the defendant's attorney notice of adjusting the costs, 256 a tà che clerk an affidavit, stating the direction made by the judge, that ten arx hau siapsed, and that no answer had been put in; had the amount due on the acce been assessed by the clerk, and entered a final judgment for the amount so asKCASECİ No notice of assessment of damages was given to the defendant's attorney. The court held the judgment irregular. That the provisions of the revised statutes R. S., 356, ss., 1, 3, 4, to the effect that if in an action on a promissory note, interlocutory judgment ber endered for the plaintiff upon demurrer, the court shall direct the deck to assess the damages, and if the defendant has appeared in the cause, notice of the assessment must be served on the attorney, are not necessarily inconsistent with the que, and are retained by section 468. That although it might seem an idle ceremony win the clerk proof of the personal service of the summons and complaint, in where a defendant has appeared and put in a demurrer, yet this seems to be rendlecessary by section 269, in all cases where a judgment is given for the plaintiff a. 16. And the omitting to file such proof will render the judgment 21, sowever, the complaint be not verified, and the defendant give noyed duce de & cuttled to notice of the application for judgment. Van Horn M. R. 238 And where in an action on a promissory note, the come se verified, but in fact was not verified, what purported to be a ky, ho defendant gave notice of appearance but did not put in the pood without any notice to the defendant entered up his judgao fudgment was irregular, and that notice should have been

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spedance is not given until after the application for judgment, vwve the plaintiff's attorney with notice of the assess

Có Thoại bị khôước là Wend, 235. See however Van Loan V.

ecover money only, and the complaint verified, the dao, but did not answer, and at the expiration of the ved udgment without any notice to the defendant. d that the defendant was not entitled to any Ca assessment. Dix v. Palmer, 3 Code Rep.,

An action for a breach of promise of marriage, is an action on contract, and within the first subdivision of this section, and “if the complaint be verified, the plaintiff, upon the defendant's failure to answer, becomes absolutely entitled to judgment for the amount of damages specified in the summons. If the complaint be not sworn to, it then becomes the duty of the clerk " to ascertain the amount which the plaintiff is entitled to recover, from her examination under oath, or other proof." Williams v. Miller, 4 Pr. R. 94.

Where the complaint set forth a fraudulent purchase, and the defendant having omitted to answer, the plaintiff moved for judgment, and that an award of execution against the person of the defendant might be inserted in the judgment roll, the court refused the inotion, holding, that under the code the judgment need not (at least, in such a case as that then before the court) specify the kind of execution to be issued; but how it would have been, had an answer been put in, denying the fraud, the court did not deem it necessary to decide. Cooney v. Van Rensselear, 1 Code Rep., 38. In Squire v. Elsworth, 4 Pr. R., 77, an action on contract for the recovery of money only, the complaint was not verified, and the question was raised as to the manner in which the plaintiff was to obtain his judgment; and it was held, that the action not being on an instrument for the payment of money, but being on an account for goods sold, the clerk was to ascertain the amount which the plaintiff was entitled to recover. This, however, is to be done by the clerk in due form. It will not do for him merely to take the oral examination of the party or his witnesses, and then insert the amount in the judgment roll; he must make and file with the record a report of his finding, like the report on assessment under the former practice, so that the defendant may have some means of ascertaining what is the decision of the clerk in the premises, some means of correcting any errors into which he may fall. That report should be annexed to, and made to form part of the record. The clerk is substituted for the former sheriff's jury of inquiry, and there is no reason why he should not—as was formerly the practice—make a report of his decision between the parties, per Edmonds, J., in Squire v. Elsworth, 4 Pr. R., 77.

In an action against a common carrier for loss of goods, where the defendant appeared, but did not answer in due time, and the plaintiff took judgment without any notice to the defendant, the court set aside such judgment as irregular. Clor v. Mallory, 1 Code Rep., 126; and per Johnson, J.: "It seems to me, however, that the plaintiff was wrong in entering up his judgment without notice to the defendant's attorney, as he might do, in a case under sub. 1, of section 246, of the code. Although this was an action arising upon contract, and the plaintiff sought to recover the damages he had sustained from the alleged breach of it in money only, I do not regard it as the case contemplated by sub. 1. It may satisfy the language, but not the spirit and intent of that subdivision.

"The latter class, in my judgment, falls more properly under the provisions of sub, 2 of the section, where the proof of the facts alleged is necessary to enable the court to give judgment. The contract upon which the action was brought was for the delivery of goods as bailee, and not for the payment of money, and the action is in substance for the value of the goods negligently lost. The contract in such a case furnishes no guide for the measure of the recovery; and proof is therefore necessary to inform the conscience of the court as to the value of the goods, and the damage sustained by their non-delivery. It cannot be that the legislature intended to compel the defendants to put in a defence in every case, and incur the trouble and increased expense of a trial, or submit to whatever the judgment or conscience of the other party might claim by way of damages, when the real damages in every such case might be ascertained by a simple appearance, and the production of proof as to that single question before the referees or jury. I am not aware that any construction has as yet been given to this section of the code, but I am satisfied the one I have now given it will be found by far the more safe and convenient in practice, and tend materially to lighten the expense and burden of litigation in a vast number of cases which must be constantly arising. If I am right in this, the plaintiff should have given the defendant's attorney eight days' notice, and had his damages assessed under the order of the court, before entering his judgment." Ib.

And it seems that although the summons may be in the form prescribed, by the first subdivision of section 129, and no objection is made thereto by the defendant before judgment, yet, if the answer be in fact within the second subdivision of sec