take such account; and shall take, audit, and settle such account, and report thereon to the court."66

against party

account.

"If any party shall neglect or refuse to account according Proceedings to the judgment of the court, pursuant to such notification, refusing to or to produce any books, papers, or documents, required by the referees; the referees shall report the same to the court, who shall proceed thereon against such party, for his disobedience, in the manner prescribed in the thirteenth title of the eighth chapter of this act; and shall imprison such party until he submit to account, or produce such books, papers, and documents; or until he satisfy the plaintiff his demand with costs."67

report.

"If the referees report a balance in favour of either party, Judgment on and such report be confirmed, judgment shall be rendered thereon as in other cases of reference; and if they report that no balance is due either party, judgment shall be rendered against the plaintiff with the like effect as upon a verdict."'68

References in cases of demands against executors and administrators.] When any When any claim is presented against the estate of any deceased person, if the executor or administrator doubt the justice of such claim, it is provided by statute, that "he may enter into an agreement, in writing, with the claimant, to refer the matter in controversy to three disinterested persons, to be approved by the surrogate; and upon filing such agreement and approval of the surrogate, in the office of a clerk of the supreme court, or of the clerk of the court of common pleas of the county in which the parties or either of them reside, a rule shall be entered by such clerk, either in vacation or in term, referring the matter in controversy to the persons so selected."69

66 Ib. s. 51.

67 Ib. s. 52.

58 Ib. s. 53.

69 R. St. P. 2. Ch. 6. T. 3. s..

36. Vol. 2. p. 88.

Proceedings It is further provided, that "the referees shall thereupon

thereon.

Suits by legatees to be referred.

Proceedings, &c., of referees.

Costs of suit.

proceed to hear and determine the matter, and make their report thereon to the court in which the rule for their appointment shall have been entered. The same proceedings shall be had in all respects, the referees shall have the same powers, be entitled to the same compensation, and subject to the same control, as if the reference had been made in an action in which such court might by law direct a reference; and the court may set aside the report of the referees, or appoint others in their places, and may confirm such report, and adjudge costs, as in actions against executors; and the judgment of the court thereupon shall be valid and effectual in all respects, as if the same had been rendered in a suit commenced by ordinary process."

9970

The following provisions from a subsequent part of the revised statutes, relate to references in actions brought by legatees against executors or administrators:

"Whenever an action shall be brought by any legatee against an executor or administrator, and the want of assets to pay all the debts of the deceased, and all the legacies bequeathed by him or any of them, shall be pleaded, the cause shall be referred to referees, to examine the accounts of the defendants, and to hear and report upon the allegations and proofs of the parties in respect to such plea.””1

"Such referees shall proceed in the same manner provided by law, in respect to references of actions in which there is a long account; and all the provisions of law, in relation to such references, shall apply to referees appointed pursuant to the last section, and to their proceedings, and the judgment thereon."72

"In such cases the costs of the action, or of either party, shall be paid as the court may direct, out of the estate of the deceased, or by the defendants personally, if their refusal to pay

70 Ib. s. 37. p. 89.

R. St. P. 3. Ch. 8. T. 3. s. 19.

Vol. 2.

p. 450.

72 Ib. s. 20. p. 451.

such legacy, or their defence of the action, shall appear to have been unreasonable." 9973

sets.

"If the plaintiff in such suit shall recover only part of his Further asdemand, for the want of assets in the hands of the defendants, and assets shall afterwards come to their hands, he shall have a new action for the recovery thereof, or of the proportionate share thereof, to which he may be entitled; and the same proccedings, in all respects, shall be had in such action."74

CHAPTER XI.

OF PROCEEDINGS ON DEMURRER.

Making up demurrer books and argument.] A demurrer and joinder constitute an issue in law, which must be referred Either party to the decision of the court. Either party may notice the demurrer. demurrer for argument,' and set down the cause upon the calendar; and demurrer books must be made up and delivered to each of the judges.

may notice

Party demur

up books.

The demurrer book is a transcript of the record, which is supposed to have been filed, and on which the judgment of the court is afterwards to be entered: it commences with the placita and memorandum, and contains the pleadings of the respective parties, the demurrer, and joinder in demurrer, with proper continuances.2

The party demurring is entitled to make up the demurrer ring makes books, and open the argument; though it has once been decided otherwise. Where each party demurs to some pleading of his adversary, the one first demurring ought to make up the demurrer books. If the party whose duty it is do not deliver the demurrer books, and move to bring on the cause, the opposite party, if he has noticed the demurrer for argument, may have judgment by default, in the same manner as

1 Rules 47, 48. 15 Johns. Rep.

398.

* 1 Dunlap. Pract. 519.

33 Johns. Rep. 425.

4 Coleman. 106.

8 Cowen. Rep. 113.

it it were a case after verdict, upon proof of due service of the notice and papers required to be served by him.

It was not formerly necessary that any copy of the demur. rer book should be served upon the opposite party, on giving notice of the argument; but it is now required by a general rule, applicable to all enumerated motions, that when the notice is given by the party whose duty it is to furnish the demurrer books, that the notice must be accompanied with copies thereof. And as the argument of a demurrer must be brought on as an enumerated motion, the general rules in relation to motions of that description apply to it in every respect.9

A cause cannot be noticed for argument upon demurrer, until the parties have come to an issue upon all the pleadings.10

Assessment of damages where there are issues in law and in fact.] Where there are issues both in law and in fact, the plaintiff has his election, either to try the issue in fact, in the first instance, in which case contingent damages must be assessed by the same jury, on the counts in his declaration to which the demurrer applies, or to argue the demurrer first, and have his damages assessed afterwards on a writ of inquiry." And if there are several counts in the declaration, when plain. and the plaintiff has judgment on the issue of law, he may enter nolle waive the issues of fact, by entering a nolle prosequi, and take out a writ of inquiry upon the demurrer.12 If the issue in fact be first tried, and the plaintiff be nonsuited on the trial, or if before the trial he enter a nolle prosequi, the judge at nisi prius has no power to assess contingent damages; but the plaintiff is not out of court on the counts to which the demur

tiff may

prosequi.