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Clerks' Fees.

as well as issues of fact ($ 252). The clerk is therefore entitled to this fee for every cause actually tried at the circuit, including demurrers; and we think, though this is perhaps a matter of some doubt, that it extends to inquests and judgments by default under sec. 258, where due notice of trial has been given of issues joined in the cause; but it does not extend to causes on the calendar which are not tried, nor to trials before referees. The meaning of the statute evidently is that the fee is only to be paid to the clerk, when he attends and acts as clerk on the trial.

Under this provision, the clerk is entitled to one dollar for attending every argument at general term, on appeal from a judgment of an inferior court. The Code regards such argument as a trial on appeal ($9255, 318). This fee is therefore chargeable, whether it be on an appeal from a judgment rendered in the circuit court, or on a report of referees, or under the provisions of section 318, or from the judgment of a county judge. We think it is also chargeable where such judgment on appeal is taken at general term by default. But this allowance does not extend to a cause put on the calendar, and not argued; nor does it extend to an appeal from an order. There is no fee allowed the clerk for any services on special motions, or on an appeal from the decision of a special motion. These services are paid by the liberal compensation allowed the clerk for other services. The allowance for a trial on appeal is only applicable to suits commenced under the Code. No such fee is chargeable by the clerk for attending on motions for new trials, or on motions to set aside reports of referees, or on other arguments at general term, in old causes. These are mere motions, and not trials.

Fifty cents is allowed to the clerk for entering a judgment. Sec. 280 shows that this means entering the judgment in the judgment book (Bentley vs. Jones, 4 Howard, Pr. Rep. 355; 3 Code R. 37). The sum of charges for costs is to be ascertained and included in this entry, which immediately precedes, or is simultaneous with the filing of the judgment roll. The fee of fifty cents is not therefore chargeable till the perfecting of the judgment.

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McMurray and Thomas agt. Gifford.

SUPREME COURT.

MCMURRAY & THOMAS agt. GIFFORD.

An answer is bad, wnere it controverts no allegation of the complaint, and sets

up no new matter in bar, but merely denies a conclusion of law. An answer is bad, which merely alleges that the note sought to be recovered

was obtained by fraud, and omits to set out any facts showing the existence

of such fraud. An affidavit of " a defence in the action," without swearing to merits, or advice

of counsel, is insufficient under Rule 39, The principles of pleading under the Code, as stated by HARRIS J. in Russell

vs. Clapp (4 How. Pr. R. 347), and by Sill J. in id, 98, approved.

At ChambersJuly 31, 1850.

WILLARD, Justice.—The complaint is upon a promissory note, alleged to have been made by the defendant, and payable to the plaintiffs, and contains all necessary allegations to establish a cause of action.

The answer is double. The first merely denies being indebted to the plaintiffs as alleged in the complaint. The second states that if the plaintiffs are the owners or holders of a promissory note named in the plaintiffs' complaint, the said note was obtained from the said defendant by fraud, and is without consideration and void.

The plaintiffs, on a notice of five days, now move for judgment, under $ 247 of the Code, on the ground that the answers are frivolous.

The first answer is bad. It controverts no allegation of the complaint, and sets up no new matter in bar. The complaint states facts from which the legal conclusion is, that the defendant is indebted to the plaintiffs in the amount due on the note. The answer virtually admits all these facts, but denies the conclusion of law. It thus presents no issue of fact that can be tried. This form of answer has been repeatedly held to be bad (Pierson vs. Cooley, 1 Code Rep. 91; Burr vs. Squier, id. 84; Monell's Pr. 148).

McMurray and Thomas agt. Gifford.

The second answer is also bad. An answer seeking to avoid the complaint by new matter, should confess, directly or by implication, that but for the matter of avoidance contained in it, the action could be maintained (Conger vs. Johnston, 2 Wend. 96). The Code gives no countenance to a hypothetical answer. It requires a general or specific denial, or a denial according to information and belief, or of any knowledge sufficient to form it belief, of the allegation of the complaint attempted to be controverted ($ 149); or, 2d, a statement of new matter, constituting a defence; and by the 168th section, every material allegation in the complaint, not so controverted, shall, for the purpose of the action, be taken as true. It is thus treated as an implied admission of the material allegations of the complaint which it does not controvert. The defendant attempts to evade this principle of the Code.

It is bad, also, for another reason. It does not set out the facts which show that the note was obtained by fraud, or that it was without consideration or void. It disregards the requirement of the 2d subdivision of section 149. It alleges a conclusion of law, without averring the existence of the facts by which it is supported. It presents no fact upon which an issue could be taken, and gives the plaintiffs no intimation of the facts which he intended to prove, to establish the conclusion of law on which the defence rests. The principles of pleading under the Code are correctly stated by Harris J. in Russell vs. Clapp (4 Howard, Pr. Rep. 347), and by Sill J. in Gleny vs. Hitchins (id. 98). In both these cases the question arose on a demurrer. But Pierson vs. Cooley (1 Code Rep. 91) was a motion for judgment notwithstanding an answer, and which answer was like the first one in this case.

The 247th section of the Code authorises a motion for judgment when the answer is frivolous. The 152d section allows sham answers and defences to be stricken out on motion. The above provisions were the same under the former practice (See Rule of Sup. Court, 86; Gr. Pr. 249, 250, and cases cited, 2 ed.). If the questions presented by the answer raise a reasonable

Corning and others agt. Tooker and Ladue.

doubt, perhaps the answer should not be struck out on motion, but the plaintiff should be put to his demurrer. But where the answer is clearly bad, as in this case; and especially where it is drawn up in violation of the rules of the Code, and the well settled practice of the court, the plaintiffs should not be put to the expense and delay of a demurrer.

The defendant has presented an affidavit of “a defence in the action," asserting that the answers were put in in good faith, and not for delay. The affidavit is not in conformity to Rule 39, nor to the existing practice. He does not swear by advice of counsel, nor to a defence on the merits. Perhaps he may mean by defence, his inability to pay. No facts are stated; and as no facts are stated in the answers, an affidavit in general terms, that they are true, amounts to nothing. The affidavit to prevent striking out the answers, and for judgment, should be as full as that required by our former 91st Rule, made in pursuance of the law of 1840, p. 333, § 17. The affidavit in this case falls far short of that, and was probably intended to be evasive.

I shall therefore direct judgment for the plaintiffs, for the sum claimed in the complaint $ 109.75, and interest from the fourth July last.

SUPREME COURT.

CORNING and others agt. TOOKER & LADUE.

In proceedings supplementary to execution, where a referee has certified his

examination of the judgment debtor, and others who are alleged to owe him, under $294 of the Code, to the Judge; it is in the discretion of the Judge, where a proper case is presented, either to make an order under the 297th section, directing the property of the judgment debtor, whether in his own or another's hands, and also any debt due to him, to be applied towards the satisfaction of the judgment; or under the next section (298), to appoint a receiver of the property of the debtor; or, if the case require it, to do both. The only restriction upon the exercise of this discretion, is found in g 299, as applicable to certain specified cases.

Corning and others agt. Tooker and Ladue.

Where it appears from the examination that it is doubtful whether the person

who is alleged to owe the judgment debtor, or another individual not under examination, is really indebted to him, and as a conclusion of law upon the facts uncertain; a receiver should be appointed, to enable the creditor, or the

party entitled to the right, to pursue the claim by action. The referee may, in his discretion, allow corrections or explanations to be made

by any party to such examination, after it has been concluded and signed

by him. The examination is, in its nature and effect, an answer to the complaint; and,

as it is taken orally, great liberality should be allowed in correcting errors and mistakes; which should be done by a supplemental statement, leaving

the original unaltered. A person examined under $ 294, is, in effect, a party to the proceeding, and

his examination should be conducted in the same manner as that of the judge

ment debtor. The party examined is not entitled to a cross examination, but he may have

the advice and instruction of counsel in framing his answers. A person not a party to the proceedings upon examination, should not be al

lowed to appear by counsel.

At Chambers-August, 1850.

PROCEEDINGS SUPPLEMENTARY TO EXECUTION.

The plaintiffs having recovered a judgment against the defendants, upon which an execution had been issued and returned unsatisfied, an order was made, requiring the defendants to appear and answer before John Newland, Esquire, a referee, pursuant to the 292d section of the Code. Another order was made, under the 294th section, requiring Francis S. Low, who was alleged to be indebted to the defendants or one of them, to appear and an swer before the same referee. It appears from the examination, certified by the referee, that Low had agreed with one Van Keuren to construct for him a boat and engine, all complete, for a stipulated price. Low then made a contract with Tooker, one of the defendants, to build for him the hull of the boat, and to do the joiner work and the painting, for which he was to receive $800. Tooker then agreed with Van Keuren himself, for whom the boat was to be built, to do the joiner work and painting, for which he was to be allowed $100. Low testifies that the boat has been built according to contract, and delivered. He admits, that including the $100 to be allowed to Van Keuren for the

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