The following rule prohibits the staying of sales of the above nature, unless on motion upon sufficient notice:

Rule 80 (first introduced in 1858). No order to stay a sale under a judgment in partition or for the foreclosure of a mortgage, shall be granted or made by a judge out of court, except upon a notice of at least two days to the plaintiff's attorney.

The next three rules relate to the payment of moneys into court, and their investment and disposition. A lengthened citation of them will not be necessary. The county treasurer of the county of venue is the proper depositary, unless the court shall otherwise direct. Securities on real estate, directed to be taken, are to be taken in his name, and all moneys are to be deposited by him, in his name of office, in the New York Life Insurance and Trust Company, the United States Trust Company, or in such bank or trust company as the court may direct, unless the order or judgment under which the moneys are brought into court shall prescribe a different disposition of them.

Rule 84 directs thus, as to the provision to be made for parties holding a life interest:

Whenever a party, as a tenant for life, or by the courtesy, or in dower, s entitled to the annual interest or income of any sum paid into court and nvested in permanent securities, such party shall be charged with the expense of investing such surn, and of receiving and paying over the interest or income thereof; but, if such party is willing, and consents to accept a gross sum, in lieu of such annual interest or income for life, the same shall be estimated according to the then value of an annuity of six per cent. on the principal sum, during the probable life of such person, according to the Portsmouth or Northampton tables.

The following are the rules for computing such value, and the table here referred to:

APPENDIX TO RULE 84.

RULES FOR COMPUTING THE VALUE OF THE LIFE ESTATE OR ANNUITY.

Calculate the interest at six per cent. for one year, upon the sum to the income of which the person is entitled. Multiply this interest by the number of years' purchase set opposite the person's age in the table given below, and the product is the gross value of the life estate of such person in said sum. EXAMPLES. Suppose a widow's age is 37, and she is entitled to dower in real estate worth $350.75. One-third of this is $116.913. Interest on $116.91, one year at six per cent. (as fixed by 75th rule), is $7.01. The number of years' purchase which an annuity of one dollar is worth, at the age of 37, as appears by the table, is 11 years, and parts of a year, which, multiplied by $7.01, the income for one year, gives $77.35, and a fraction, as the gross value of her right of dower.

Suppose a man, whose age is 50, is tenant by the courtesy in the whole of an estate worth $9,000. The annual interest on the sum, at six per cent., is $540.00. The number of years' purchase which an annuity of one dollar is worth, at the age of 50, as per table, is 94 parts of a year, which, multiplied by $540, the value of one year, gives $5,085.18 as the gross value of his life estate in the premises, or the proceeds thereof.

NOTE.-The values in the table are calculated on the supposition that the annuities are payable yearly; if payable half-yearly, one-fifth of a year's purchase should be added to those values.

ANNUITY TABLE.

A table corresponding with the Northampton tables referred to in the 75th rule, showing the value of an annuity of one dollar, at six per cent., on a single life, at any age from one year to ninety-four, inclusive.

Rules 86 to 91, inclusive, refer to proceedings in divorce.

Rule 86 provides thus, as to a reference to take proof on the application for judgment, where no defence is interposed :

Rule 86. (64.) When an action is brought to obtain a divorce or separation, or to declare a marriage contract void, if the defendant fail to answer the complaint, or if the facts charged in the complaint are not denied in

the answer, the court to which application is made for judgment, shall order a reference, to take proof of all the material facts charged in the complaint.

The court shall in no case order the reference to a referee nominated by

either party.

And, when the action is for a divorce on the ground of adultery, unless it be averred in the complaint that the adultery charged was committed without the consent, connivance, privity, or procurement of the plaintiff'; that five years have not elapsed since the discovery of the fact that such adultery had been committed; and that the plaintiff has not voluntarily cohabited with the defendant since such discovery; and also where, at the time of the offence charged, the defendant was living in adulterous intercourse with the person with whom the offence is alleged to have been com mitted, that five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff; and the complaint containing such averments be verified by the oath of the plaintiff, in the manner prescribed by the 157th section of the Code, judgment shall not be rendered for the relief demanded, until the plaintiff's affidavit be produced, stating the above facts.

Rule 87. (65.) To obtain an order of reference, if the complaint seeks to annul a marriage, on the ground that the party was under the age of legal consent, an affidavit must be produced, showing that the parties thereto have not freely cohabited for any time, as husband and wife, after the plaintiff had attained the age of consent. If the complaint seeks to annul the marriage, on the ground that the plaintiff's consent was obtained by force or fraud, the plaintiff must show, by affidavit, that there has been no voluntary cohabitation between the parties as man and wife; and, if it seeks to annul a marriage, on the ground that the plaintiff was a lunatic, an affi davit must be produced, showing that the lunacy still continues; or the plaintiff must show, by his affidavit, that the parties have not cohabited as husband and wife, after the plaintiff was restored to his reason.

Rule 88. (66.) On a reference to take proof of the facts charged in a complaint for separation, or limited divorce, the examination of the plaintiff on oath may be taken, as to any cruel or inhuman treatment, alleged in the complaint, which took place, when no witnesses were present, who are competent to testify to the facts on such reference.

Rule 89 provides as to the defences available to the defendant, and the trial of the issues joined thereon.

Rule 90 provides that if an issue of the legitimacy of the children of the marriage be joined, and if thereon a reference is ordered, proofs, shall be taken upon that question also.

Rule 91 provides thus:

No sentence or decree of nullity, declaring void a marriage contract, or decree for a divorce, or for a separation or limited divorce, shall be made,

of course, by the default of the defendant, or in consequence of any neglect to appear at the hearing of the cause, or by consent.

And, after sundry directions as to the trial when had, it concludes as follows:

No judgment, in an action for divorce, shall be entered, except upon the special direction of the court.

§ 251. General Observations.--Distinction between Judg ment and Order.

A judgment is, as defined by section 245, "the final determination of the rights of the parties in the action."

The term decree, as applicable to the final determination of a suit in equity, though in strictness obsolete, as not employed in the Code, may be looked upon as practically synonymous.

As to the extent to which the entry of judgment is technically a termination of the suit, see Adams vs. Fort Plain Bank, 23 How., 45.

A judgment once entered is, though irregular, valid, until it is reversed or vacated. Gallarati vs. Orser, 4 Bosw., 94.

Its finality constitutes the broad distinction between it and an order, which, as defined by section 400, is "every direction of a court or judge, made or entered in writing, and not included in a judgment."

This distinction is, as a general rule, so clear, that there is little or no risk of confusion. In two classes of cases there has, however, been some difficulty in drawing the exact line, the one being as to the deci sion on a motion for judgment on a frivolous pleading, the other that on the argument of a demurrer.

The great test as to either seems to be, as to whether leave to amend or to plead over is or is not granted, to which, in the case of demurrer, may be added that as to whether the demurrer is or is not to the whole pleading. If the unsuccessful party is permitted or still retains the right to go to trial upon issues of fact, either upon the residue of the pleading, not impeached by the demurrer, or upon another pleading, substituted in its place, by way of amendment, then, it is self-evident that the decision, whatever its nature, is not a final determination, within either the terins or the spirit of section 245, and, being so, is not a judgment.

But, if the decision goes the whole length of declaring the pleading impeached to be frivolous, or allows a demurrer to the whole of it, without granting leave to amend or to plead over, so that the adjudication finally determines the rights of the unsuccessful party, leaving him no ulterior remedy except by way of appeal, then it is clearly a judgment. The same observation may be made, as to the decision of a motion

under section 152, striking out a whole answer as sham or irrelevant without terms, or leave to amend, whenever such a decision is made.

(a.) MOTION ON FRIVOLOUS PLEADING.

A motion under section 247 is expressly for a judgment, as is clear from the terms of the section itself. The following cases hold the decision upon it to be a judgment, carrying costs, and appealable from as such, and not as an order. Harris vs. Hammond, 18 How., 123; Witherhead vs. Allen, 28 Barb., 661; King vs. Stafford, 5 How., 30. See also same case, 6 How., 127; Lawrence vs. Davis, 7 How., 354; Roberts vs. Morrison, 7 How., 396; 11 L. O., 60; Bruce vs. Pinckney, 8 How., 397; Raynor vs. Clark, 7 Barb., 581; 3 C. R., 230; Phipps vs. Van Cott, 4 Abb., 90 (92). See also Martin vs. Kanouse, 2 Abb., 390. And such decision must be applied for as a judgment, and not as an order. Darrow vs. Miller, 5 How., 247; 3 C. R., 241; Rae vs. Washington Mutual Insurance Company, 6 How., 21; 1 C. R. (N. S.), 185.

The contrary, viz. that the order under these circumstances may be appealed from as an order, and is analogous to an application for judg ment under the second subdivision of section 246, and also that the successful party is only entitled upon it to the costs of a motion, and cannot charge a trial fee, is maintained in the following series of cases: Gould vs. Carpenter, 7 How., 97; Roberts vs. Clark, 10 How., 451; Western Railroad Corporation vs. Kortright, 10 How., 457; Rochester City Bank vs. Rapelje, 12 How., 26; Marquise vs. Brigham, 12 How., 399; Witherspoon vs. Van Dolar, 15 How., 266.

In Witherhead vs. Allen, 28 Barb., 661, the former conclusion, i. e., that the decision is a judgment upon an issue of law, and not an order only, is thought to be the better opinion. It is held, however, that the decision on a frivolous demurrer may, under the terms of section 349, as amended in 1852, be appealed from as an order, if such appeal be taken before the entry of judgment, but not afterwards. See also Lee vs. Ainslee, 1 Hilt., 277; 4 Abb., 463; Same case, 4 Abb., 90, note. But, if so appealed from, it will not bring up the case finally before the Court of Appeals, but a second appeal from the judgment, when entered, will be necessary. See Hollister Bank of Buffalo vs. Vail, 15 N. Y., 593; Ford vs. David, 5 Duer, 684; 13 How., 193; 3 Abb., 385.

As regards a frivolous answer or reply, if leave to amend be granted, the decision is clearly not final, and an appeal may lie from it; but, in taking such an appeal, the unsuccessful party may put his ulterior rights in peril, as, unless he succeed in obtaining a stay, his adversary will, at the expiration of the time prescribed, be regular in entering his judg ment. See King vs. Stafford, supra.