PART III. Discharge of attachment and return of property or its proceeds ant on his to defend appearance in action. and moneys collected by him, and all the property attached remaining in his hands, shall be delivered by him to the defendant or his agent on request and the warrant shall be discharged, and the property released therefrom. 8 Ab., 70. S240. Whenever the defendant shall have appeared in such action, he may apply to the officer who issued the attachment, or to the court, for an order to discharge the same, and if the same be granted, all the proceeds of sales and moneys collected by him, and all the property attached remaining in his hands, shall be delivered or paid by him to the defendant or When relief his agent and released from the attachment. And where there is more than one defendant, and several property of either of the defendants has been seized by virtue of the order. of attachment, the defendant whose several property has been seized, may apply to the officer who issued the attachment for relief under this section. may be applied for. Undertak ant. Amended by Laws of 1862, ch. 460. 29 B., 109; 7 B., 658; 13 Ab., 97, 181, 432, 470; 12 Ab., 63; 7 Ab., 26; 22 How. P. R., 106, 278; 11 How. P. R., 227. $241. Upon such application the defendant shall deliver of defend to the court or officer an undertaking, executed by at least two sureties, who are residents and freeholders, or householders, in this state, approved by such court or officer, to the effect that the sureties will, on demand, pay to the plaintiff the amount of judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount claimed by the plaintiff in his complaint. If it shall appear by affidavit that the property attached be less than the amount claimed by the plaintiff, the court or officer issuing the attachment may order the same to be appraised, and the amount of the undertaking shall then be double the amount so appraised. And in all cases the defendant may move to discharge the attachment as in case of other provisional remedies. And where there is more than one defendant, and several property of either of the defendants, has been seized by virtue of the order of attachment, the defendant whose several property has been seized, may deliver to the court or officer, an undertaking in accordance with the provisions of this section, to the effect, that he will on demand pay to the plaintiff the amount of judgment that may be recovered against such defendant. And all the provisions of this section applicable to such undertaking shall be applied thereto. Amended by Laws of 1857, ch. 723; 1862, ch. 460. When sheriff to 29 B., 109; 7 B., 658; 22 How. P. R., 106; 19 How. P. R., 411; 16 How. P. R., 78; 4 How. P. R., 227; 13 Ab., 78, 432; 12 Ab., 159; 10 Ab., 391; 7 Ab., 26. S242. When the warrant shall be fully executed or disreturn war charged, the sheriff shall return the same, with his proceedings thereon, to the court in which the action was brought. rant and proceedings there on. 4 Ab., 72. CHAP. XL Sheriff's § 243. The sheriff shall be entitled to the same fees and 31 B., 89; 21 How. P. R., 457; 20 How. P. R., 405; 11 How. P. R., 207; CHAPTER V. OTHER PROVISIONAL REMEDIES. SBC. 244. Powers of courts as to receivers, deposit of money, &c., in court, and other provisional remedies. $244. A receiver may be appointed: Powers of courts as to receivers, money, and deposit of other provisional 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 remedies. in danger of being lost or materially injured or impaired, except in cases where judgment upon failure to answer may be had without application to the court. 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: and in like cases of the property within this state of foreign corporations. Receivers of the property within this state, of foreign corporations, shall be allowed the same commissions as are allowed by law to the trustees of the estates of absconding, concealed and non-resident debtors. 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, 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 PART III. Judgment, what. Judgment on failure deposit, deliver, or convey it, in conformity with the direction of the court. When the answer of the defendant, expressly or by not denying, 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 judgment or provisional remedy. Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1857, ch. 723; 1858, ch. 306; 1862, ch. 460. 9 N. Y., 147; 26 B., 199; 10 B., 48; 22 How. P. R., 158; 18 How. P. R., 41; 16 How. P. R., 193; 13 How. P. R., 514; 12 How. P. R., 112; 11 How. P. R., 204, 360; 10 How. P. R., 57, 428; 9 How. P. R., 101; 5 How. P. R., 126; 12 Ab., 63; 7 Ab., 94; 4 Ab., 142, 252; 3 Ab., 255; 2 Ab., 235; 1 Ab., 225, 229, 393, 399, 477. TITLE VIII. OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. II. Issues and the mode of trial. III. Trial by jury. IV. Trial by the court. V. Trial by referees. VI. The manner of entering judgment. CHAPTER I. JUDGMENT UPON FAILURE TO ANSWER. SEC. 245. Judgment, what. 246. Judgment on failure of defendant to answer. 247. Judgment on frivolous demurrer, answer or reply. $245. A judgment is the final determination of the rights of the parties in the action. Amended by Laws of 1852, ch. 392. 6 N. Y., 465; 4 N. Y., 417; 22 B., 600; 9 Ab., 194; 8 Ab., 295; 4 Ab., 92; 3 Ab., 387; 18 How. P. R., 83; 11 How. P. R., 200; 8 How. P. R., 276, 328; 6 How. P. R., 127; 5 How. P. R., 199; 3 Bos., 644. $246. Judgment may be had, if the defendant fail to anof defend swer the complaint, as follows: ant to answer. 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. Where the defendant, by his answer in any such action, shall not deny the plaintiff's claim, but shall set up a counterclaim amounting to less than the plaintiff's claim, judgment may be had by the plaintiff for the excess of said claim, over the said counter-claim, in like manner in any such action, upon the plaintiff's filing with the clerk of the court a statement admitting such counter-claim, which statement shall be annexed to and be a part of the judgment roll. 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 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 gave 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. 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 render 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. Amended by Laws of 1851, ch. 479; 1858, ch. 306. 16 N. Y., 309; 28 B., 664; 23 B., 405; 9 B., 378; 8 B., 78; 19 How. P. CHAP. XI on frivo $247. If a demurrer, answer, or reply be frivolous, the Judgment party prejudiced thereby, upon a previous notice of five lous de PART III. murrer answer or reply. The differ issues. days, may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accordingly. 23 N. Y., 163; 18 N. Y., 320; 28 B., 652; 27 B., 633; 19 B., 198; 16 B., 298; 15 B., 16; 12 B., 302; 7 B., 582; 22 How. P. R., 470; 21 How. P. R., 450; 19 How. P. R., 450; 18 How. P. R., 240; 16 How. P. R., 34; 15 How. P. R., 186, 267; 12 How. P. R., 26, 153, 400; 11 How. P. R., 398; 10 How. P. R., 19, 451, 457; 9 How. P. R., 150; 8 How. P. R., 34, 149, 163, 274, 397, 414; 7 How. P. R., 396; 6 How. P. R., 21, 312, 329, 475; 5 How. P. R., 14, 31, 247; 13 Ab., 312; 12 Ab., 63; 11 Ab., 439; 9 Ab., 27; 8 Ab., 436; 6 Ab., 13; 4 Ab., 95; 3 Ab., 1; 1 Ab., 190; 2 Hilt., 475. CHAPTER II. ISSUES AND THE MODE OF TRIAL. SEC. 248. The different kinds of issues. 249. Issue of law. 250. Issue of fact. 251. On issues of both law and fact, the issue of law to be first tried. 252. Trial, what. 253. Issues how to be tried. 254. The same. 255. All issues to be tried before a single judge, &c. 256. Either party may give notice of trial. Note of issue. 257. Order of disposing of issues on the calendar. $248. Issues arise upon the pleadings, when a fact or ent kinds of conclusion of law is maintained by the one party and controverted by the other. They are of two kinds: Issue of law. Issue of fact, On issues of both law and fact, 1. Of law; and 2. Of fact. $249. An issue of law arises, 1. Upon a demurrer to the complaint, answer or reply, or to some part thereof. 1 E. D. S., 386. $250. An issue of fact arises, 1. Upon a material allegation in the complaint controverted by the answer; or 2. Upon new matter in the answer controverted by the reply; or 3. Upon new matter in the reply, except an issue of law is joined thereon. 3 Ab., 156. $251. Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases, the issues of law must be first tried unless the court first tried. otherwise direct. the issue of law to be Trial, defined. Issues how tried. 8 How. P. R., 286; 9 Ab., 50. S252. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact. Amended by Laws of 1851, ch. 479; 1852, ch. 393. 11 B., 341; 19 How. P. R., 119; 10 How. P. R., 400; 8 How. P. R., 34; 7 How. P. R., 354; 6 How. P. R., 274, 419; 5 How. P. R., 155; 13 Ab., 308; 10 Ab., 314; 8 Ab., 295. $253. An issue of law must be tried by the court, unless it be referred, as provided in sections two hundred seventy, |