CHAPTER 104. premises in question, or any property or thing relating to the issue TITLE XXII. between the parties, such court may, on the application of either party, and the advancement of a sufficient sum to pay the expenses of the jury and officers attending them, in taking such view, order such view to be had, and direct the manner of effecting the same. when to be taxed as costs. SEC. 72. The expenses advanced by any party pursuant to the pro- Expenses of view visions of the preceding section, shall be taxed like other disbursements in the suit, if the party advancing (them shall prevail therein, and be entitled to costs. CHAPTER 104. OF AMENDING PLEADINGS AND PROCEEDINGS. Court may before judgment. SECTION 1. The court in which any action shall be pending, shall have power to amend any process, pleading or proceeding in such ac- amend pleadings, tion, either in form or substance, for the furtherance of justice, on such &c., at any time terms as shall be just, at any time before judgment rendered therein. 5 Wend., 2. SEC. 2. If such amendment be made to any pleading in matter of When opposite substance, the adverse party shall be allowed an opportunity, accord- party may aning to the course and practice of the court, to answer the pleading so pleading. amended. 9 do. 310. swer amended judgment, &c. SEC. 3. After judgment rendered in any cause, any defects or im- Defects in matter perfections, in matter of form, contained in the record, pleadings, of form may be process, entries, returns, or other proceedings, may be rectified and amended after amended by the court, in affirmance of the judgment, so that such judgment shall not be reversed or annulled; and any variation in the record, from any process, pleading or proceeding had in such cause, shall be reformed and amended according to such original process, pleading or proceeding. Amendment of SEC. 4. All returns made by any sheriff or other officer, or by any court or subordinate tribunal, to any court, may be amended, in mat- returns made by ter of form by the court to which such returns shall be made, in their sheriffs, &c. discretion, as well before as after judgment. When judgment or affected by reason of certain SEC. 5. When a verdict shall have been rendered in any cause, the judgment thereon shall not be stayed, nor shall any judgment upon con- not to be stayed fession, default, nihil dicit, or non sum informatus, be reversed, impaired or in any way affected, by reason of the following imperfections, defects, &c. omissions, defects, matters or things, or auy of them, in the pleadings, process, record, or proceedings, namely: 1. For any default or defect in process; or for misconceiving any process, or awarding the same to a wrong officer; or for the want of any suggestion for awarding process, or for any insufficient sugges tion: 2. For any imperfect or insufficient return of any sheriff or other officer, or that the name of such officer is not set to any return actually made by him: 3. For any variance between the original writ, bill, plaint and declaration, or between either of them: 4. For any mispleading, miscontinuance, or discontinuance, insufficient pleading, or misjoining of issue: TITLE XXII. CHAPTER 105. Omissions, &c., ted, to be sup plied and amendded by court. 5. For the want of any warrant of attorney by either party, except in cases of judgment by confession, where such warrant is expressly required by law: 6. For any party under twenty-one years of age, having appeared by attorney, if the verdict or judgment be for him: 7. For the want of any allegation or averment, on account of which omission a special demurrer could have been maintained: 8. For omitting any allegation or averment of any matter, without proving which the jury ought not to have given such verdict: 9. For any mistake in the name of any party or person, or in any sum of money; or in the description of any property; or in reciting or stating any day, month or year, when the correct name, time, sum or description shall have been once rightly alleged, in any of the pleadings or proceedings: 10. For a mistake in the name of any juror or officer: 11. For the want of a right venue, if the cause was tried by a jury of the proper county: 12. For any informality in entering a judgment, or making up the record thereof; or in any continuance or other entry upon such record: 13. For any other default or negligence of any clerk or officer of the court, or of the parties, or their counsellors or attorneys, by which neither party shall have been prejudiced. SEC. 6. The omissions, imperfections, variances and defects in the before enumera preceding sections of this chapter enumerated, and all others of the like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties, or the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by writ of error. Process, &c., not SEC. 7. No process, pleading or record, shall be amended or imto be amended paired by the clerk or other officer of any court, or by any other person, without the order of such court, or of some other court of competent jurisdiction. without order of court. Provisions of this actions and writs SEC. 8. The provisions of this chapter shall extend to all actions chapter, to what in courts of law, and to all suits for the recovery of any debt due to the people of this state, or for any debt, duty or revenue belonging to them; and to all actions for penalties and forfeitures; to all writs of mandamus and prohibition; to all informations in the nature of a quo warranto; to writs of scire facias; and to the proceedings thereon. Assessment of CHAPTER 105. OF THE ASSESSMENT OF DAMAGES. SECTION 1. In every suit brought in a court of record, wherein any damages by clerk. written obligation or contract specified in the next section, shall be set forth in the declaration as the cause of action, if interlocutory judg ment be rendered for the plaintiff by default, or upon demurrer, or upon confession, the court shall direct the clerk thereof to examine, ascertain and report, what sum the plaintiff ought to recover for his damages. RY 02 may SEC. 2. The obligations or contracts upon which such assessment be made, must be in writing, and must be, either, 1. A bill of exchange, promissory note, order or draft for the payment of money: or, 2. Some contract for the absolute payment of money only: or, 3. Some contract for the payment of a sum certain, though payable in specific articles: or, 4. Some contract for the delivery of specific articles, at a value or price stipulated in the same contract. TITLE XXII. CHAPTER 105. Contracts upon which clerk may assess. served. SEC. 3. In all actions on promissory notes or bills of exchange, When copy, note where the plaintiff shall file and serve with his declaration, a copy of &c., is filed and such promissory note or bill of exchange, the damages may be assessed as though such note or bill had been set out specially in said declaration. 10 Wend., 560. produced. SEC. 4. If the defendant shall have appeared in the cause by attor- Notice of assessney, or shall have given notice of his intention to appear and defend ment the action, the like notice of assessment of damages by the clerk shall be given, as is required of the trial of a cause; but in all other cases, no notice shall be necessary, and the clerk shall proceed therein in (on) the entry of the rule requiring such assessment. SEC. 5. In assessing such damages, the production to the clerk of Evidence to be the bill of exchange, promissory note or contract, specially set forth in the declaration, or a copy of which bill of exchange or promissory note has been filed and served with the declaration, shall be sufficient evidence of the execution of the same, without any other proof; and such assessment shall be made notwithstanding there may be general or other counts in the declaration, besides those in which the note, bill or contract shall be specially set forth. SEC. 6. Any clerk authorized by the provisions of this chapter Authority of to assess damages, may administer oaths to witnesses, and take their clerk, &c. testimony, whenever it may be necessary; and if the instrument declared on be lost, the clerk may take proof thereof, and of the contents of such instrument, which proof shall be stated in his report; and whenever required by either party, he shall reduce to writing the testimony taken by him, and include the same in his report. SEC. 7. The clerk shall report to the court the sum ascertained by Report and cerhim to be due to the plaintiff, and shall certify under his hand, upon tificate of clerk. such original bill, note or contract, the amount of damages assessed thereon, or shall annex a certificate thereof to such bill, note or contract. SEC. 8. Either party may except to such report, and on such ex- Exceptions to re ceptions being made and filed, the court shall hear and examine the port; judgment. matter, and cause justice to be done between the parties; and shall give judgment for the sum reported, or for such sum as the court, upon hearing the exceptions, if any, shall have ascertained to be due to the plaintiff. ment. SEC. 9. The judgment so rendered shall be entered on the record Entry of judg without stating any reference to the clerk, or any proceedings in consequence thereof, and the damages shall be stated as having been assessed by the court. SEC. 10. If a bond taken on the arrest of a defendant, in any acDamages in suits tion in which an assessment might be made by the clerk, shall have on bail bonds. been prosecuted by the plaintiff in such action, and judgment rendered thereon, the court shall in like manner direct the clerk to examine, TITLE XXII, ascertain and report what sum the plaintiff ought to recover for the damages upon his original cause of action. CHAPTER 106.1 Proceedings to assess. When damages orignal action. SEC. 11. The same proceedings in all respects shall be had in ascertaining such damages, as are herein provided, in case interlocutory judgment had been rendered in such original action. SEC. 12. When a bond taken on the arrest of a defendant, in other to be assessed in causes than those provided for in the two last sections, shall have been assigned to the plaintiff, and judgment shall be rendered thereon in his favor, damages may be assessed by a jury in the original action, in the same manner as if the defendant had appeared therein, and interlocutory judgment had been obtained against him. Declaration in original suit to be filed before assessment. Amount to be en lected on execu SEC. 13. In all cases in which a judgment shall be rendered for the plaintiff, on a bond taken upon the arrest of a defendant, no damages shall be assessed until a declaration in the original action shall have been filed. SEC. 14. The damages so assessed, either by the clerk, or by a dorsed and col- jury, with the interest, the costs in the original suit, and in the suit on such bond, shall be endorsed upon the execution issued upon such judgment, as the amount to be collected, with sheriff's fees, and no more shall be collected on such execution. tion When damages may be assessed by a jury. Judgment upon assessment. SEC. 15. In all other suits wherein by the preceding provisions, the clerk is not authorized to assess the damages, if interlocutory judgment be rendered for the plaintiff by default, or upon demurrer, or upon confession, damages may be assessed by a jury. SEC. 16. Upon damages being assessed by a jury, judgment shall be entered for the plaintiff for the damages which shall be so ascertained, as in case of verdicts upon trial had. After verdict, CHAPTER 106. OF JUDGMENTS AND EXECUTIONS. Of Judgments. SECTION 1. When a verdict shall have been rendered in any action, plaintiff not to be the plaintiff shall not thereafter be non-suited, but judgment shall be rendered upon the matter found by such verdict. non-suited. Setting aside judgments on motion. Judgment by confession. 9 Wend., 452. SEC. 2. No judgment in any court of record, shall be set aside for irregularity on motion, unless such motion be made within one year after the time such judgment was rendered. SEC. 3. Judgments may be entered in any circuit court in vacation as well as in term, upon a plea of confession, signed by an attorney of such court, although there be no suit then pending between the parties, if the following provisions be complied with, and not other wise: 1. The authority for confessing such judgment, shall be in some proper instrument, distinct from that containing the bond, contract or other evidence of the demand for which such judgment was con fessed: 2. Such authority shall be produced to the officer signing such judg ment, and shall be filed with the clerk of the court in which the judg CHAPTER 106. ment shall be entered, at the time of the filing and docketing of such TITLE XXII. judgment. Of Executions. tions may be is SEC. 4. Whenever judgment shall be rendered in any court of re- When execucord, for any debt, damages, sum of money or costs, the party in whose sued. favor judgment was rendered, and within two years thereafter, may have execution to the sheriff or other proper officer of any county in this state, to collect the amount of such judgment. cutions, when may be isued. SEC. 5. Successsive executions may be issued, one after the other, Successive exeupon the return of any former execution unsatisfied, in whole or in part, for the amount remaining unpaid upon any judgment, except as 1841, p. 134, § 2. herein otherwise provided; but no second or subsequent execution shall issue, except within two years after the return day of the prececeding execution, unless the court or some judge or justice thereof, or circuit court commissioner, in vacation, upon a special application for that purpose, and due notice to the opposite party, shall make an order granting leave to issue the same. SEC. 6. Such execution may be either, Kinds of execu 1. Against the goods and chattels, lands and tenements of the par- tions. ty against whom such judgment was recovered: or, 2. Against the body of such party, in the cases authorized by law. SEC. 7. But such execution shall not issue against the body, nor Exception of against the goods and chattels, lands and tenements of any executor, executors, &c. administrator, heir, devisee or legatee, unless in those cases specially provided by law. Executions SEC. 8. In those cases in which bail shall have been taken on the arrest of a defendant, and the bail bond shall have been assigned to where bail has the plaintiff; and in those cases in which special bail shall have been been given, &c. filed, no execution shall issue against the body of the defendant in such action, until an execution against the goods and chattels, lands and tenements of such defendant, shall have issued to the sheriff or other proper officer of the county in which such defendant was ararrested, and shall have been returned unsatisfied, in whole or in part. is imprisoned, &c. SEC. 9. But if the defendant be imprisoned on execution in anoth- Executions er cause, or upon process in the same action, or upon the surrender where defendant of such defendant in exoneration of his bail in such action, or if an execution shall have been returned unsatisfied in the cases mentioned in the last section, an execution may, in either case, issue against the body of such defendant. ferent counties. Different execu tions. SEC. 10. Executions, whether against the body, or against the pro- Like executions perty of any party, may be issued at the same time, to sheriffs of dif- to sherifts of dif ferent counties, but no execution against the body of any party shall issue, while there is an execution against his property not returned, nor shall an execution against the property of any party be issued, while there is an execution against his body unreturned, unless by order of the court. 9 Wend., 435. SEC. 11. When the body of a party shall have been taken on an When body ta execution issued for that purpose, no other execution can be issued ken in execution. against him or his property, except in cases specially provided for by law. SEC. 12. But if any person who shall have been taken on an exe- Execution after cution shall escape, he may be retaken by a new execution against escape. |