§ 243. Sheriffs' fees.--The sheriff shall be entitled to the same fees and compensation for services, and the same disbursements under this title, as are allowed by law for like services and disbursements under the provisions of chapter five, title one, and part two of the Revised Statutes.

The provision of the revised statutes here referred to, treats "Of title to property, real and personal, transmitted or acquired by special provisions of law." 2 R. S., 3d ed., 62 The fees allowed to sheriffs are prescribed by 2 R. S., 3d ed., 735, and Laws of 1850, p. 404; for which, see note to section 215 of this code, on page 223, ante.

CHAPTER V.

Provisional remedies.

SECTION 244. Powers of court as to receivers, deposit of money, &c., in court, and other provisional remedies.

§ 244. [200.] (Amended, 1851-1852.)-Powers of court as to receivers, deposit of money, &c. in court, and other provisional remedies.--A receiver may be appointed:

1. Before judgment, on the application of either party, when he establishes an apparent right to property, which is the subject of the action, and which is in the possession of an adverse party, and the property, or its rents and profits, are in danger of being lost, or materially injured or impaired.

2. After judgment, to carry the judgment into effect.

3. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply his property in satisfaction of the judgment.

4. In the cases provided in this code, and by special statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights.

5 In such other cases as are now provided by law, or may be in accordance with the existing practice, except as otherwise provided in this act.

When it is admitted by the pleading or examination of a party, that he has in his possession, or under his control, any

money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the court.

Whenever, in the exercise of its authority, a court shall have ordered the deposit or delivery or conveyance of money or other property, and the order is disobeyed, the court besides punishing the disobedience, as for contempt, may make an order, requiring the sheriff to take the money or property, and deposit, deliver, or convey it in conformity with the direction of the court.

When the answer of the defendant admits part of the plaintiff's claim to be just, the court on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a provisional remedy.

This section, before the amendment of 1851, was as follows: Until the legislature shall otherwise provide, the court may appoint receivers, and direct the deposit of money or other thing in court, and grant the other provisional remedies now existing, according to the present practice, except as otherwise provided in this act.

The amendment of 1852 cousisted in striking out from subdivision 1 the word "provisionally," after the words, "before judgment," and the word "such" after the words "right to." Striking out from subdivision 5, the words "the court may grant the other provisional remedies now existing according to the present practice, except as otherwise provided in this act." Substituting in subdivision 1, the words "an apparent" for "a prima facie," and in subdivision 2 the word " property" for "thing," and inserting in subdivision 5 the words " or conveyance" "or convey."

As to this section, before amendment of 1851, it was observed: "The code has not, in terms, and I think not in spirit, altered the practice in the appointment of receivers, so far as notice to the party to be affected is concerned." By section 244, the court is authorized to appoint receivers " according to the present practice," that is, the practice of the supreme court in equity in force at the time of the adoption of the code, which was the same as that of the late court of chancery. By that practice, a receiver could not be appointed without notice to the party interested, except under peculiar circumstances, demanding immediate action, to be made to appear upon the papers upon which the application was made. 1 Paige, 17. 2 ib., 438-450. 8 ib., 373-48!. And in such cases, the receiver was appointed for the protection of property, pendente lite; and the order did not assume to make a final disposition of the property, without a hearing of the parties." Per Allen, J., in Kemp v. Harding, 4 Pr. R., 178. Dorr v. Noxon, 5 Pr. R., 29. And see note to section 298-178.

The writ of supplicavit has not ceased to exist, as a provisional remedy. Per Edmonds, J., in Forrest v. Forrest, 5 Pr R., 121.

A receiver is an officer of the court. He cannot be appointed until a suit is commenced. Anou. 1 Atk., 489-except in cases of idiots and lunatics. Ex parte Whitefield. 2 Atk., 315.

Formerly, a master in chancery could not be a receiver, (6 Ves., 427), nor a solicitor in the cause, or under a commission of lunacy (2 Mer., 452), nor the next friend of an infant plaintiff (2 Mad, 64), nor a trustee (8 Ves, 72; 11 ib., 363; 15 ib., 584), but on the voluntary dissolution of a corporation, one of its officers might be appointed receiver. 8 Paige, 35. 3 Edw. Ch. R., 385). But upon proceedings against an insolvent bank, one of its officers could not be receiver. (1 Paige, 511; 8 ib., 388).

A receiver had to be prayed for, in the bill, under the former practice. 3 Atk., 689. 1 Molloy, 29.

Upon a motion for a receiver, the merits are not inquired into. Such motion relates only to the preservation of the property in controversy. 4 Wend., 173.

Where there are no persons authorized to take charge of and conduct the affairs of a corporation, a receiver will be appointed to take charge of the effects of the company and preserve them for the benefit of the creditors and stockholders generally. Lawrence v. Greenwich Fire Ins. Co., 1 Paige, 587.

And a receiver will be appointed, where a fraud is shown in the defendant, and the fund is in danger of being wasted or misapplied. Podmore v. Gunning, 5 Simons, 485; 1 Barb. Ch. R., 664; 1 Hopk., 429; 3 John. Ch., 48.

A receiver also will be appointed to prevent the removal of property beyond the jurisdiction of the court.

And a receiver will be appointed as against a defendant, who is out of the jurisdiction of the court. Gibbons v. Mainwaring, 9 Simons, 77; Tanfield v. Irvine, 2

A receiver could not bring ejectment, without leave of the court. 1 Ves. Jun., 165; 3 Bro. C. C., 88. 16 Wend., 410. Nor could such an action be brought against him, without leave of the court. 9 Ves. Jun., 335. Nor could he make any payment. 1 ib., 85.

A receiver should apply for an order, for leave to sue for a debt. Merritt v. Lyon, 16 Wend., 410. And if he does not obtain leave, and fail in the suit, he will be personally liable for costs. Thus, where a receiver had prosecuted an action as such receiver, without leave of the court, for that purpose first obtained, and had failed in the action, on motion for costs against him personally, the motion was granted. Phelps v. Cole, 3 Code Rep., 157.

A general creditor of insolvent general partners may, on complaint and answer, where the debt is not denied, have an injunction to protect the partnership, property and assets, 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 lim ted 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.

A partner, who by his answer, admits that he has in his hands partnership funds which appear to belong to the administrators of his deceased partner, will be ordered to pay over such funds to them, although there are outstanding contested claims against the firm, and it has claims to enforce which will require time and disburseinents. Roberts's Administrators v. Law, 4 Sand. S. C. R., 642.

The order for such payment will, however, require the administrators to give security to the surviving partner to contribute to the outstanding claims, if established, and to pay their share of the expenses that may be incurred in prosecuting the demands of the firm. Ib.

The surviving partner will also be permitted to retain sufficient to recover such claims against the deceased partner as are contested in the suit in which the order is made. Ib.

Where it appears by the pleadings that the plaintiff deposited money with the defendant, to pay for him to a third party (the defendant being surety for the pay ment thereof to such third party), which money is in the defendant's possession, the court will order it to be deposited in court or paid to such third party, under subdivision 5. Burhans v. Casey, 4 Saud. S. C. R., 706.

In a suit for winding up a partnership, by one claiming to be a partner, but whose right as partner is wholly denied by the defendant, and is not clearly established by the affidavits, the court will not grant a receiver or an injunction, there being no proof that the fund is in danger. Goulding v. Bain, 4 Sand. S. C. R., 716.

The court will not make an order for payment under the last clause of subdivision 5, unless the answer admits a specific sum to be due. Dolan v. Petty, 4 Sand. S. C. R., 673.

Where the answer traversed the plaintiff's claim as stated, and then stated that the work was not worth more than a certain sum, less than that claimed, the court denied a motion for payment of the amount admitted to be due, and said: We feel impelled to be strict and guarded in making orders under this stringent remedy. Ib.

Where it appeared that the defendant, before answering, had made an offer under section 385 of the code, which offer the plaintiff had declined. The court denied a motion for an order for the defendant to satisfy the amount admitted to be due by the answer, and said: The court does not feel called upon to grant such an order to the plaintiff under such circumstances, so long as it is not clearly settled to what extent the court may be compelled to go in enforcing the order," as it enforces a provisional remedy."

Before the amendment of 1851, it was held that where the answer admitted part of the plaintiff's claim to be due, the court might order judgment for the amount so admitted to be due. Tracy v. Humphrey, 3 Code Rep., 199.

By laws of 1845, cap 87, p. 73, “any purchaser from the receiver of a banking corporation, of any chose in action belonging to the assets of such corporation, may prosecute the same in his own name in all cases where by law the same could be prosecuted in the name of such receiver." And see now section 111 of this code. See rule 77 of supreme court rules.

As to receivers, in proceedings supplementary to the execution, see section 298 of this code.

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.

"In every just, legal sense, a judgment under the code is a declaration of the legal or equitable rights of the parties: it is the application of legal and equitable principles to facts already ascertained. The facts must be found before judgment can be pronounced. The judgment on the facts may be right or it may be wrong, but its correctness is to be tested by inquiring whether the court have erred in the principles assumed, or in the application of those principles to the facts.

"In the very words of the code, s. 245," A judgineut is the final determination of the rights of the parties in the action." It is a legal conclusion from facts ascertained by the proofs or admitted by the parties.

"Section 348, as it now reads, in connection with section 245, is of precisely the same import as section 11. read in the same connection, i. e., an appeal may be taken to the general term from (a judgment), the final determination of the rights of the parties, and we can discover no reason for giving to the word "deterinination" in s. 245, when considering the appeal givenby s. 348, a meaning different from that given to the same word in s. 11, by the court of appeals." Morgan v. Bruce, 1 Code Rep., N. S.. 366-367.

See note to section 400 of this code.

§ 246. [202.] (Amended 1849, 1851.)—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 provisions 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. 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