however, take his judgment in the alternative, either for the recovery of the possession of the property, or of its value. He must elect one or other of these two remedies, and enter up his judgment accordingly.-V. Commercial Bank v. White, and Aldrich v. Thiel, above cited.

In several other cases, relief in respect of an injury, and damages for its past continuance, may both form part of the judgment to be entered, and, in these, a similar form of entry may be followed "mutatis mutandis."

In cases of an equitable nature, a perpetual injunction may often be granted, and the appointment of a receiver may frequently form part of the relief obtained. The form of judgment on these occasions is, with the necessary changes, substantially the same as that of an order under similar circumstances. See these subjects hereafter considered.

Where special relief of any other nature is extended, the form of judgment must, of course, be adapted to the nature of the circumstances and of the decision. It would be idle to attempt to give precedents for every peculiar state of circumstances which may arise, and no properly-instructed practitioner can have any serious difficulty in adapting the judgment in each case to the peculiar circumstances.

The form of a judgment in ejectment is given in the Appendix. In this case also, the form of recovery ordinarily embraces both the granting of relief, and the assessment of damages.

The form of judgment on a foreclosure is specially prescribed by Rule 50 of the Supreme Court, the directions of which are implicitly followed in practice. The usual form in these cases, as founded on the rule in question, is also given in the Appendix.

The form of the usual judgment in partition is likewise given in the same portion of the work; the different contingencies under which such partition may be made, being embraced as far as possible.

In Vanorman v. Phelps, 9 Barb. S. C. R. 500, the nature and effect of a judgment in partition will be found fully considered, it being held that, as regards the rights of the parties to possession, &c., the judgment is binding from the date of the confirmation of the commissioners' report, without regard to that of the subsequent completion of the record.

In two other special cases, the nature and effect of the judg

ment to be entered, is made the subject of express provision in the Code. In sec. 436 and 437, the nature of the judgment which may be given on an action by the Attorney-General for the usurpation of an office, is specially prescribed; and, in section 452, the following special restrictions are imposed, in relation to judgment in cases of forfeiture and eviction:

§ 452. Judgment of forfeiture and eviction shall only be given, in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in reversion shall be adjudged in the action to be equal to the value of the tenant's estate, or unexpired term, or to have been done in malice.

In Linden v. Hepburn, 3 Sandf. S. C. R. 668, (reported 3. C. R. 165, as Linden v. Fritz,) it was held that relief of an equitable nature, could not be obtained in the same proceeding in which judgment for forfeiture and eviction was sought. A recovery for damages is, however, clearly not inconsistent with judgment. of this description.

The above directions have reference to the entry of judgment, on the direction of a single judge, or the report of referees. That on the decision of the general term, on an appeal, or issue of law, differs in no essential particular: the component parts of the roll are the same, to which, where the judgment is on appeal, must be added the case on such appeal, with the costs and postea thereon, which papers must be annexed to the original judgment roll, so as to form one complete record, where practicable; or, if such be not the case, they may be filed separately. The form of the postea will be found in the Appendix. The judgment so entered may, of course, be docketed and enforced, in precisely the same way as in other cases.

Where the prevailing party delays entering up his judgment, his opponent, by means of a motion, may compel him to take the necessary proceedings for that purpose.-Bank of Geneva v. Hotchkiss, 5 How. 478; 1 C. R. (N. S.) 153. See, however, this subject more fully considered in a subsequent chapter, under the head of Appeal.

Where a judgment has been entered up in consequence of a verbal stipulation between the attorneys on both sides, the court will compel both parties to perform its terms. The rule requiring such agreement to be in writing, does not apply in a case of this description, where an advantage has been obtained

by the one party, in consequence of the other's reliance on the arrangement, and where, in fact, the verbal agreement has been executed, by passing into a judgment.-Montgomery v. Ellis, 6 How. 326.

CHAPTER IV.

OF PROCEEDINGS CONSEQUENT UPON THE JUDGMENT IN CERTAIN CASES.

THE proceedings here referred to, are those which become necessary, where the right of the prevailing party to recover has been adjudged upon, but the exact nature and amount of that recovery requires to be made the subject of further inquiry or assessment, before final action can be taken upon such adjudication.

The course to be pursued under these circumstances, is either the granting of a reference, or assessment by a sheriff's jury, as the case may require. These proceedings are, as before shown, equally applicable to judgment taken by default, as to that on contested cases.

In those where the taking of a long account is involved, a reference is the proper course, as it would have been had such account come in question at the actual trial. The proceedings on a reference of this description, are precisely analogous to those on reference in general, as before detailed in the chapter devoted to the consideration of that subject. When the referee's report is obtained, it should be confirmed in the usual manner, as in all cases of interlocutory or consequential examinations of this nature; after which, if such report be confirmed without opposition, judgment may be entered without further application to the court, the referee's report being filed with and forming part of the judgment roll. The usual notices of taxation, &c., must, of course, be given as in other cases.

The proceedings, on a reference of this description, in cases of foreclosure, are prescribed in detail by Rule 49 of the supreme court. If the parties are "sui juris," the referee, in such case,

is "to compute the amount due to the plaintiff, and to such of the defendants (if any) as are prior incumbrancers of the mortgaged premises." This is all that is required, where the whole amount secured on the mortgage has become due. If such be not the case, the further duty is imposed on the referee, of examining and reporting whether the mortgaged premises can be sold in parcels. Where, however, the defendants, or any of them, are infants, or absentees, the order of reference must also direct the referee, " to take proof of the facts and circumstances stated in the complaint, and to examine the plaintiffs, on oath, as to any payments which have been made, and to compute the amount due on the mortgage, preparatory to the application for the judgment of foreclosure and sale." See form of order in Appendix.

On a reference of this latter description, the plaintiff's case must be proved in the usual manner, as on a hearing by the court, or before a referee of the whole issue. In those of the former nature, evidence of the amount due, and also, where the mortgage is only partially payable, of the nature and situation of the property, is all that will be required.

On the report being made, the plaintiff must move for judgment thereon, on the usual notice to any defendants that may have appeared; or, if none have done so, then ex parte, and without notice.

In the latter case, or unless all the defendants appear, he must be prepared with an affidavit that none of them are absentees, or with the report of the referee, as above, if such be the case. He must also be ready to furnish proof of the filing of the usual notice of lis pendens at least twenty days before such application, on which papers he may then move for final judgment, and, if granted, may perfect that judgment, in the manner alluded to in the last chapter. The practitioner will remember that foreclosure is one of those cases in which, under sec. 308, an additional allowance may be applied for, and will almost, as of course, be granted; and that such application must be made prior to the entry of final judgment, and may be simultaneous with the motion for that purpose.

A reference of a somewhat similar nature, viz.: "to take proof of all the material facts alleged in the complaint," is prescribed by rule 68, as a necessary proceeding in all divorce cases whatsoever, where judgment is taken by default, or for

want of a sufficient denial in the answer. The course of proceeding, under these circumstances, is substantially the same as that on a reference of the whole issue, except as regards the consequent entry of judgment thereon. The plaintiff's case must be regularly proved, and, on the referee's report being obtained, it should be confirmed, and an application be made to the court for final judgment thereon in accordance with the finding, on due notice to any party or parties who may have appeared.

In partition, a reference of a similar nature is necessary in all cases, where any of the defendants are infants, absentees or unknown, even though the case, as stated in the complaint, be not controverted. A reference of this description may be obtained by the plaintiff, on application to the special term, on an affidavit of the facts and notice to all parties who have appeared.

The duties of a referee, in this respect, are prescribed by rules 78 and 79 of the supreme court. The form of an order of reference of this description, grounded on the rules in question, will be found in the appendix. "The plaintiff's title and interest in the premises," and "the several matters set forth in the bill or petition, must, in all cases, be proved, and the referee must likewise ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances by which the same are held. With reference to the date at which the partition will be held to have been made, as regards the consequent rights of the parties, see Van Orman v. Phelps, 9 Barb. 3 C. R. 500, cited in the last chapter.

In cases where the property is so circumstanced, that partition cannot be made without prejudice to the owners, (due regard being had to the powers of the court, and to the ability of the parties, in respect to the adjudication and payment of amounts for owelty of partition,) or in those where, under similar circumstances, any separate lot exceeds in value the share to which either of the tenants in common may be entitled, the plaintiff, on stating the fact in the affidavit on which the order of reference is to be obtained as above provided, may have a direction inserted to the referee to enquire and report whether the premises, or any part thereof, are so situated, that an actual partition cannot be made, and that a sale ought to be had, stating the reasons for such conclusion, and, in such case, to state further the nature and extent of the liens and incumbrances on the property, and the amounts due thereon respectively, to the