individual property of the remaining partner, and the $900 in notes and accounts, the individual property of the retiring partner, and no partnership property remained. Each of the agreements of transfer substituted for the partner's equity the personal contract of the other to pay, and had left only the right to enforce that contract against the individual contracting. The property of O. M. Westover thus lost its character of partnership property, and became the separate property of the individual. This result is claimed to have been changed by the doctrine of this court in Menagh v. Whitwell, 52 N. Y. 146; S. C., 11 Am. Rep. 683. We do not so understand it. It was there distinctly said that "there is another class of cases in which the partnership effects have been held to be liberated from liability to be applied to partnership debts in preference to the separate debts of one partner; that is where a bona fide sale has been made by a retiring partner in a solvent firm of two members to his copartner, the latter assuming the debts. In such a case it is settled that the property formerly of the partnership becomes the separate property of the purchasing partner, and that the partnership creditors are not entitled to any preference as against his individual creditors in case of his subsequent insolvency. But in those cases the joint property was converted into separate property by the joint act of all the members of the firm. They had power to dispose of the corpus of the joint property, and the exercise of that power, when free from fraud, divested the title of the firm as effectually as if they had united in a sale to a stranger." The question in the case from which we have made the foregoing citation was further said to be the effect upon the title of the firm, as between it and its creditors, of several transfers by the partners to third persons. Two circumstances only mark a difference in the case before us from those supposed in the doctrine thus established. Here the debts were not all assumed by the purchasing partner, and the latter was in fact insolvent as an individual at the date of the transfer. But, as we have already seen, each assumed one-half of the debts in severalty as between themselves, and in reliance upon the individual responsibility of each other; neither retaining any partnership equity since no partnership property remained. The insolvency of the purchasing partner, if known to him and to the seller, might very well be strong evidence of an intent to defraud the partnership creditors, and become conclusive upon that question if there was no explanation. But here the purchasing partner supposed himself to be solvent, and was so believed to be by the seller. The former continued in business for five months before his failure, during which period he stood open to a levy by the firm creditors, and the offer of the retiring partner to pay the half he had assumed tended to rebut any fraudulent intent.

On this state of facts it is found that there was no fraud, and we think correctly. The contrary could not be held as matter of law. The judgment should be affirmed, with costs.

All concur, except MILLER, J., absent.

Judgment affirmed.

HAMMOND, Resp't, v. MORGAN, Appl't.

January 19, 1886.

REPLEVIN JUDGMENT - NOTICE - MOTION.

A judgment entered in an action ex parte, and without notice, is irregular, and may be set aside on motion.

Appeal from an order of the general term of the superior court of the city of New York, entered May 15, 1885, dismissing an appeal from an order of the special term entered December 2, 1884, and affirming an order of the special term entered December 23, 1884, each of which special term orders denied a motion to vacate or correct a judgment entered November 14, 1884.

The facts are stated in the opinion. A. J. Vanderpoel, for appellant. spondent.

Marshall P. Stafford, for re

EARL, J. The plaintiff in his complaint alleges that on the 13th day of May, 1882, he delivered to the defendant a certain written assignment dated in the month of April of that year, and executed by the defendant and Jane Matthews as executors of Mason J. Matthews, deceased, whereby they conveyed to him all the interest of the deceased in certain letters-patent and licenses under an assignment of letterspatent, and also all the interest in any claim which the defendant and Jane Matthews, either by themselves or as executors, or jointly with the defendant and John Nichol, had or might have against the Mechan ical Orguenette Company of New York, or against any other parties relating to or growing out of the manufacture and sale of mechanical musical instruments; that the assignment was delivered to the defendant in trust to be returned to the plaintiff, but that the defendant failed and refused to return the same, although due demand therefor was made; and further, that in or about the month of March, 1882, a paper in the nature of a release was executed by the firm of Needham & Son to the plaintiff, whereby the plaintiff was wholly released from certain obligations, dues and contracts to and with the firm, of which release the defendant obtained possession, and still retained possession without right thereto, and in violation of plaintiff's right to the pos session thereof, although demand for delivery to the plaintiff had been made of defendant, and refused; that the assignment and release were of great value to the plaintiff, and that the retention thereof by defendant had greatly damaged him. And judgment was prayed that the defendant be ordered to return the assignment and release and deliver them to the plaintiff, and that the plaintiff have such damage for the detention thereof as a reference for that purpose might show that the plaintiff had suffered, besides costs of the action. The answer denied all the allegations of the complaint, except that the papers mentioned therein had been demanded by the plaintiff.

The action was subsequently by the plaintiff put upon the special term calendar for trial and was stricken therefrom on motion of defendant's attorney, on the ground that it was at law and not triable there. The plaintiff then noticed the action for trial at a jury term of

the court and it was brought to trial and appears to have been tried as an action of replevin. The jury rendered" a verdict for the plaintiff and found the title of the property in the plaintiff, and that he should have the return thereof." Four days after the rendition of the verdict the plaintiff applied to the judge who presided at the trial, ex parte, without any notice whatever to the defendant, and obtained from him an order which directed that the plaintiff have judgment against the defendant, ordering him to deliver forthwith to the plaintiff the two instruments mentioned in the complaint, and particularly described in the order, and that plaintiff have judgment against the defendant for costs to be taxed and that he have execution therefor. Thereupon, on the same day, without any notice to the defendant, the plaintiff entered judgment in pursuance of that order, wherein it was adjudged and decreed that the defendant delivered forthwith to the plaintiff the two instruments mentioned in the complaint, and that the plaintiff have judgment against the defendant for costs of the action, which had been adjusted at $210.92, and that he have execution therefor. A motion was subsequently made by the defendant, among other things, to strike the costs from the judgment, before the same judge who tried the action, and he, seeming yet to treat the action as one in replevin, struck the costs from the judgment on the ground that the jury had not found any value to the property nor any damages for the detention thereof, and that, therefore, there was no basis for allowance of costs under subdivision 2 of section 3228 of the Code of Procedure. The defendant subsequently, by permission of the court, made a motion to set aside the order and judgment as irregular and unauthorized, which motion was denied at the special term. He then appealed to the general term, and from affirmance there to this court.

From the form of the complaint it is not certain whether the action is at law to recover the possession of the written instruments mentioned in the complaint, or in equity, to compel the defendant to specifically perform by delivering the instruments to the plaintiff. It does not seem to be disputed that if the action was one in replevin, the judg ment is irregular, because it is not such as is prescribed in the Code. A judgment in replevin should award the property to the plaintiff, together with damages for its detention, and in case delivery of the property cannot be made, its value as determined by the jury in lieu thereof; and the judgment must be enforced by execution and not by punishment for contempt. Code, §§ 1730, 1731. A judgment in replevin may undoubtedly be entered, although the jury has not assessed any damages or found the value of the property. In that case the judgment would simply award the property to the plaintiff, to be enforced by execution, and if the return of the property could not be thus obtained the judgment would be unavailing. But here the property was not replevied, and it is not now claimed by the counsel for the respondent that the action is to be treated as one at law for the recovery of chattels,

If on the other hand this is to be treated as an action in equity to compel specific performance on the part of the defendant, as now claimed on behalf of the plaintiff, then the judgment was wholly

unauthorized and the practice quite irregular. In that event the case was properly noticed at the special term and should there have been tried before the judge without a jury, unless at his instance or upon the motion of one of the parties some or all the issues were ordered to be tried before a jury; and for that purpose the questions to be answered by them should have been distinctly framed. In such case the issues are sent to a jury for the aid and information of the court. If the facts thus submitted to and answered by the jury, together with facts admitted by the pleadings, cover the whole so that no further facts need be proved for the information of the court, motion may at once be made for judgment. Upon such motion both parties have a right to be heard, and the court may order judgment upon the case as then made, or it may set aside the findings of the jury, or use some of them, and it may allow either party to give further evidence. So, if the motion for judgment be not at once made, it must be brought on upon motion, so that both parties may be heard. But if the findings of the jury, together with the facts admitted in the pleadings, do not cover the whole case, and other issues remain to be tried or other facts requisite for equitable relief remain to be proved, then the case must be regularly brought to a hearing before the court when the court may or may not adopt the findings of the jury, and, other facts may be proved, and in such case the court must make findings of fact and law to which exceptions may be taken by either party desiring to appeal. Such is the general scheme of practice prescribed by the Code, and in this case there was no semblance of compliance with it. Code, $$ 968, 969, 971, 972, 1225.

Here there was no order sending issues for trial to the jury, and no questions or issues were framed; no proof was subsequently taken before the court, and no notice was given to defendant's attorney of the application for the order and judgment.

But if we assume that the verdict of the jury may stand, as no objection was made to the mode of trial or to the verdict, then what did it determine? Simply that the plaintiff owned the instruments and that the defendants wrongfully detained them. These findings so far as they went were ample for an action of replevin, but were they, without more, sufficient for the equitable relief awarded? The ordinary remedies of a party against one who has wrongfully converted and wrongfully detains his chattels or choses in action is by an action of trover or replevin. But in peculiar cases, where from the nature of the case or of the property detained, neither of such actions will give proper or sufficient relief, an equitable action may be instituted for the specific delivery of the property, and judgment in such an action may be enforced by punishment for contempt. But before the equitable relief can be granted, the facts conferring equity jurisdiction should be alleged and must be proved. Pomeroy Eq. Jur., §§ 177, 1402.

Here, after the rendition of the verdict, the court could have taken further proof, if necessary, and could thus after hearing the parties have given judgment based upon its findings of fact and law including the findings of the jury.

We think, therefore, that the order for judgment, and the judgment

should be set aside and that the case will stand where it stood after the verdict, and if the court shall then treat this as an equitable action, it may hear the parties, and if further proof be offered or needed, can take it, and then render the proper judgment.

We do not determine whether this should be treated as an action at law or in equity. We leave such determination to the court below. All we now determine is that the order and judgment should not have been made without notice to and hearing of the defendant and probably without further proof and findings of fact and law by the judge. The defendant did not have a remedy for the error or irregularity he complains of by an appeal from the order or judgment. His only remedy was by motion.

The orders of the general and special term should be reversed and the order and judgment should be vacated, and the case remitted to the special term of the court below for further action therein; and the defendant should have costs of the appeal to the general term and to this court and $10 costs of motion.

All concur, except MILLER, J., absent.
Judgment reversed.

SUPREME COURT OF VERMONT.

JOHNSON v. ROBERTS.

January 21, 1886.

Audita querela will not lie to set aside the judgment of a justice of the peace in which more than legal costs were inadvertently allowed to the plaintiff, when the defendant was present and had an opportunity to have the error corrected, but neglected to avail himself of it and never offered to pay what was legally due. Weed v. Nutting, Brayt. 28, distinguished.

Audita querela. Plea, the general issue. Trial by court, April term, 1885, Chittenden county, TAFT, J., presiding. Judgment for the defendant. This action was brought to set aside the judgment of a justice of the peace. That judgment was made up as follows: Damages, $7; costs, $10.85. The plaintiff in the justice action claimed that the defendant had injured his carriage by driving against it.

A. G. Safford, for plaintiff. The judgment attacked by this proceeding was within the prohibition of the Revised Laws, section 1444. Audita will lie. Statutes which give costs are not to be extended beyond the letter. Salk. 206; 2 Str. 1006; 3 Burr. 1287; 3 Bl. Com. 399; Brainerd v. Lewis, 53 Vt. 510; 2 id. 407; 23 id. 573; 27 id. 533.

J. J. Enright and Henry Ballard, for defendant.

ROWELL, J. The remedy by audita is denied when the complainant has had opportunity to have the error complained of corrected but has neglected to avail himself of it. Staniford v. Barry, 1 Aik. 321; Griswold v. Rutland, 23 Vt. 324; Goodrich v. Willard, 11 Gray, 380. In this case the justice allowed the plaintiff more costs than the statute