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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 the 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.

A. D. 1870.

When Sheriff to return

SEC. 266 When the warrant shall be fully executed or discharged, the Sheriff or Constable shall return the same, with his proceedings thereon, warrant with to the Court in which the action was brought.

proceedings.

CHAPTER V.

PROVISIONAL REMEDIES.

SEC. 267. 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; except in cases where judgment upon failure to answer may be had without application to the Court.

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for sum ad

2. After judgment, to carry the judgment into effect. 3. After judgment, to dispose of the property according to the judg- Judgment ment, or to preserve it during the pendency of an appeal, or when an mitted due. 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 statute, 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 or other corporations shall be allowed such commissions as may be fixed by the Court appointing them, not exceeding five per cent. on the amount received and disbursed by them.

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 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 withont security, subject to the further direction of the Court.

A. D. 1870.

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 or Constable 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 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.

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Judgment

defined.

Judgment

CHAPTER I.

JUDGMENT UPON FAILURE TO ANSWER, &C.

SEC. 268. Judgment defined.

269. Judgment on failure of defendant to answer, or for excess over counter claim.

270. Judgment on frivolous demurrer, answer or reply.

SEC. 268. A judgment is the final determination of the rights of the parties in the action.

SEC. 269. Judgment may be had, if the defendant fail to answer the on failure of complaint, as follows:

defendant to answer, or for excess

counter claim

1. In any action arising on contract for the recovery of money only, claim 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 one hundred and fifty-three, and that no answer has been received. The Clerk shall thereupon enter judg ment 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 one hundred and fifty-nine 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 counter claim, 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 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. In actions where the service of the summons was by application, 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.

A. D. 1870.

on frivolous

SEC. 270. If a demurrer, answer or reply be frivolous, the party preju- Judgment diced thereby, upon a previous notice of five days, may apply to a Judge demurrer, anof the Court, either in or out of the Court, for judgment thereon, and swer or reply. judgment may be given accordingly.

CHAPTER II.

ISSUES AND THE MODE OF TRIAL.

SEC. 271. The different kinds of issues.

272. Issue of law.

273. Issue of fact.

'A. D. 1870.

The differ

ent kinds of

issues.

Issue of law.

Issue of fact.

On issues of

both law and

SEC. 274. On issues of both law and fact. The issue of law to be first

tried.

275. Trial defined.

276. Issues. How tried.

277. Issues triable by the Court.

278. Either party may give notice of trial. Note of issue.

279. Stenographer to be appointed by the several Circuits. To take stenographic notes.

280. Duty of stenographer.

281. Order of disposing of issues on the calendar.

SEC. 271. Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds:

1. Of law; and,

2. Of fact.

SEC. 272. An issue of law arises:

1. Upon a demurrer to the complaint, answer or reply, or to some part thereof.

SEC. 273. An issue of fact arises:

1. Upon a material allegation in the complaint controverted by the an

swer; 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.

SEC. 274. Issues, both of law and of fact, may arise upon different fact, the issue parts of the pleadings in the same action. In such cases, the issues of of law to be law must be first tried, unless the Court otherwise direct.

first tried.

Trial defined.

tried.

SEC. 275. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.

SEC. 276. An issue of law must be tried by the Court, unless it be reIssues, how ferred as provided in Sections two hundred and ninety-four and two hundred and ninety-five. An issue of fact, in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived, as provided in Section two hundred and ninety, or a reference be ordered, as provided in Sections two hundred and ninety-four and two hundred and ninety-five.

SEC. 277. Every other issue is triable by the Court, which, however, Other issues may order the whole issue, or any specific question of fact involved to be tried by therein, to be tried by a jury, or may refer it, as provided in Sections two hundred and ninety-four and two hundred and ninety-five.

the

Either party

may give notice of trial.

sue.

SEC. 278. At any time after issue, and at least fourteen days before the Court, either party may give notice of trial. The party giving the notive shall furnish the Clerk, at least eight days before the Court, with a Note of is- note of the issue containing the title of the action, the names of the attor neys, and the time when the last pleading was served, and the Clerk shall thereupon enter the cause upon the calendar, according to the date of the issue. There need be but one notice of trial, and one note of issue from either party, and the action shall then remain on the calendar until disposed of, and when called may be brought to trial by the party giving the notice. In every action in which issue of fact is now joined, and the ac

tion is now placed upon the calendar of the Court of Common Pleas, in the First, Second and Fifth Circuits, the party who shall have filed such note of issue, shall, as a condition precedent to such action being brought to trial, pay to the Clerk of the Court the sum of three dollars; and in every action in either of the said Courts, commenced after the passage of this Act, the party who shall file therein a first note of issue of fact, shall, as a condition precedent to such filing, pay to the Clerk of the Court the sum of three dollars; and the amounts so received shall be accounted for under oath, and paid over monthly, by the Clerk of each of said Courts, to the County Treasurer, to be used as a fund for the payment of the salaries of stenographers employed in Courts. If the fund thus created be inadequate to pay such salaries, the additional amount necessary for such payment shall be paid by the County Treasurers of the several Counties in the Circuit out of any moneys raised for County purposes, and in proportion to the valuation for taxation of their respective Counties. The several County Auditors in a Circuit shall furnish the Circuit Solicitor, on demand, a certificate of the amount of taxable property in their respective Counties, upon which he shall apportion to said Counties the several sums to be paid by them to the stenographer, which sums shall be paid upon the order of the Solicitor, approved by the Judge of the Circuit. Any surplus in the fund received by County Treasurers to pay the salary of stenographers shall be appropriated to County purposes.

A. D. 1870.

A stenogra

appointed for

to take full

SEC. 279. The Judges of the First, Second and Fifth Circuit Courts shall each appoint a stenographer for their several Circuits, who shall be pher, to be a sworn officer of the Court, and who shall hold office during the pleasure three circuits, of the Court, and shall be paid a salary of twenty-five hundred dollars stenographic per annum, payable quarterly, upon the order of the presiding Judge. It notes of trial. shall be the duty of every stenographer so appointed for any Circuit, under the direction of the presiding Judge thereof, to take full stenographic notes of all proceedings, including the rulings and charge of the Court in every trial thereat, and in case the presiding Judge shall require a transcript of said stenographic notes, he may order the same to be furnished by the stenographer.

ographer.

SEC. 280. It shall be the duty of such stenographer to furnish to any Duty of stenparty to such trials, upon request, a copy of the evidence and proceedings taken by him on such trials, or of such part thereof as may be required, on payment, on behalf of such party, of ten cents for every one hundred words of the copy so furnished. The sum paid as a condition precedent to the cause being brought on trial, or to the first note of issue being filed as herein before provided, shall be deemed a necessary disbursement within the meaning of Section three hundred and thirty-seven of the Code of Procedure, and shall be allowed as such to the prevailing party in the action.

Order of disposing of is

SEC. 281. The issues on the calendar shall be disposed of in the following order, unless, for the convenience of parties or the dispatch of business, sues on the the Court shall otherwise direct:

1. Issues of fact to be tried by a jury;
2. Issues of fact to be tried by the Court;

3. Issues of law.

calendar.

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