TITLE 3 arrest or imprisonment, obtained by virtue of any statute of this state, the plaintiff may reply generally, that such discharge or exemption was obtained by fraud, and pray that the same may be inquired of by the country; and may annex thereto a notice, specifying the several acts of fraud of which evidence will be given on the trial, to invalidate such discharge or exemption; which shall entitle such plaintiff to give evidence of the matters so specified, on the trial, in the same manner as if they had been specially replied.20

several mat-
ters.

12145250

Replying,&c. S 27. Whenever it shall become necessary for the attainment of justice, to allow a plaintiff to reply several matters to the plea of a defendant, or to allow a defendant to rejoin several matters to the replication of a plaintiff, the court in which the action shall be pending, on the special application of the party desiring so to reply or rejoin, may allow the same to be done.

$ 28. No person shall be prejudiced by the ancient terms and forms of pleading, so that the matter fully appear in the process or declaration or other pleading.21

Assessing

damages by
clerk.

Contracts
enumerated.

TITLE III.

OF THE ASSESSMENT OF DAMAGES UPON DEFAULT.

SEC. 1 & 2. Upon interlocutory judgment on certain contracts, damages to be assessed by clerk.

3. When notice of assessing necessary.

4. Evidences of execution of contract; general counts.

5. Clerk to administer oaths; lost contracts; report.

6. Sum assessed to be reported and stated on contract.

7. Exception to report; judgment thereon.

8. Judgment how to be entered on record.

9. Clerks of counties may assess in certain cases.

10. Assessing damages after judgment on bail bond.

11. Proceedings for that purpose.

12. Writs of inquiry in other actions on bail bonds.

13. Declaration in original action to be filed.

14. Amount to be collected by execution on bail bond suits.

S 1. In every suit brought in a court of record, wherein any 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. 22

$2. The obligations or contracts upon which such assessment may 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,

(20) 1 R. L. p. 471, § 29. (21) Ib. p. 118, § 5. (22) Ib. p. 522, § 15.

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.23

TITLE 3.

sessing.

$ 3. If the defendant shall have appeared in the cause by attorney, Notice of asor shall have given notice of his intention to appear and defend the action, the like notice of assessment of damages by the clerk, shall be given as herein required of the trial of a cause; but in all other cases, no notice shall be necessary, and the clerk shall proceed therein, on the entry of the rule requiring such assessment.

be produced.

§ 4. In assessing such damages, the production to the clerk of the Evidence to bill of exchange, promissory note or contract, specially set forth in 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.24

clerk, &c.

$5. Any clerk authorised to assess damages by the provisions of Authority of this Title, may administer oaths to witnesses, and take their testimony, whenever it may be necessary: 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.25

$6. The clerk shall report to the court the sum ascertained by Report, &c. him to be due to the plaintiff, and shall certify, under his hand, upon such original bill, note or contract, the amount of damages assessed thereon.26

judgment.

$7. Either party may except to such report, and on such excep- Exceptions; tion being made, the court shall hear and examine the 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 exception, if any, shall have ascertained to be due to the plain

tiff.27

judgment.

$8. The judgment so rendered shall be entered on the record, Entry of 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.27

by clerks of

$9. If the cause be pending in the supreme court, the clerk of Assesment the county in which the venue in such cause shall be laid, shall have counties. the same authority to assess the damages, as any clerk of the supreme court, and shall in all respects proceed therein in the like manner.27

(23) 1R. L. p. 522, § 15. (24) Ib. p. 523, § 17. (25) Ib. § 18. (26) Ib. § 17. (27) Ib. § 15.

TITLE 4.

Damage in

bonds.

$10. If a bond taken on the arrest of a defendant, in those actions

in which an assessment of damages might be made by the clerk, shall suits on bail have been prosecuted by the plaintiff in such action, and judgment rendered thereon, the court shall in like manner direct the clerk to examine, ascertain and report, what sum the plaintiff ought to recover for the damages upon his original cause of action.28

Proceedings to assess.

Writs of inquiry.

Declaration to be filed.

Amount to

be collected.

$ 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.28

S 12. When a bond taken on the arrest of a defendant, in other 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, a writ of inquiry of damages shall issue in the original action, in the same manner as if the defendant had appeared therein, and interlocutory judgment had been obtained against him.28

$ 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.

$ 14. The damages so assessed, either by the clerk, or upon a writ of inquiry, 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.28

After verdict,

plaintiff not

suited.

TITLE IV.

OF JUDGMENTS.

ART. 1.-General provisions concerning judgments.

ART. 2. Of docketing judgments, their priority, and the mode of cancelling and discharging them.

ARTICLE FIRST.

General Provisions concerning Judgments.

SEC. 1. Plaintiff not to be non-suited after verdict.

2. Setting aside judgments for irregularity.

3. Real estate bound by docket of judgments.

4. Lien to cease after ten years, as against purchasers, &c.

5. Certain time to be deducted, if notice be filed with clerk.

6. Duty of clerk with whom notice is filed.

7. Judgments docketed against a dead person; their effect.
8. Cases where court may allow them to be docketed.

9. Time of signing record, to be stated in its margin.

10. Judgments by confession, how entered.

$1. When a verdict shall have been rendered in any action, the

to be non- plaintiff shall not thereafter be non-suited, but judgment shall be rendered upon the matter found by such verdict.29

(28) 1 R. L. p. 523, § 16. (29) Ib. p. 89, § 35.

§ 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.30

ART. 1.

Setting aside judgments.

bound by

$3. All judgments hereafter rendered in any court of record, shall Real estate bind, and be a charge upon the lands, tenements, real estate and chat- judgments. tels real of every person against whom any such judgment shall be rendered, which such person may have at the time of docketing such judgment, or which such person shall acquire at any time thereafter: and such real estate and chattels real, shall be subject to be sold upon execution to be issued on such judgment.31

after ten

$4. From and after ten years from the time of docketing every Lien to cease such judgment, it shall cease to bind, or be a charge upon, any such years. property, as against purchasers in good faith, and as against incumbrances subsequent to such judgment, by mortgage, judgment, decree, or otherwise.31

when to be

$ 5. The time during which the party recovering such judgment, Certain time, shall be restrained from proceeding thereon, by any injunction of any deducted. court, or by the operation of any writ of error, shall not constitute any part of the ten years in the last section specified; but to entitle any party to such deduction, he shall, within ten years from the docketing of the judgment, file with a clerk of the court in which such judgment was obtained, a notice, specifying the injunction or writ of error by which proceedings on such judgment shall have been restrained, and the time of service thereof; and if such restraint shall have ceased, such party shall specify the duration thereof.31

node.

ments, &c.

$6. The clerk with whom such notice shall be filed, shall enter Entry in marin the margin of the docket of such judgment, a minute, stating that an injunction, or writ of error, as the case may be, has been issued, relating to such judgment; and if such notice be filed with the clerk of the supreme court, he shall transmit a copy of such notice, with his docket of judgments, to the other clerks of that court, at the same time and in the same manner.

judgments

persons.

$7. In all cases in which a record of judgment shall be filed and Docketing docketed, within one year after the death of the party against whom against dead such judgment was obtained, a suggestion of such death, if it happened before judgment rendered, shall be entered on the record, and if after judgment rendered, the fact shall be certified on the back of such record by the attorney filing the same. Such judgment shall not bind Not to bind the real estate which such party shall have had at the time of his death, but shall be considered as a debt to be paid in the usual course of administration.

real estate.

$8. If a verdict has been rendered before the death of such party, May be dockupon which proceedings shall be stayed by a bill of exceptions, or by tain cases.

(30) Laws of 1817, p. 178. (31) 1 R. L. p. 500, § 1.

oted in cer

TITLE 4. any order of the court, or any officer thereof, the court may authorise the filing and docketing a record of judgment within one year after the death of such party, subject to the power of the court to vacate the same.

Time of signing records.

confession.

Time of fil ng records.

Judgments not to be liens until docketed.

$ 9. The day and year of signing any record of judgment, shall be stated in the margin thereof, by the judge or other officer signing the same.32

$10. Judgments may be entered in the supreme court, or in any court of common pleas, in vacation or 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 otherwise :

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 is confessed:

2. Such authority shall be produced to the officer signing such judgment, and shall be filed with the clerk of the court in which the judgment shall be entered, at the time of the filing and docketing such judgment.33

ARTICLE SECOND.

Of docketing Judgments, their Priority, and the Mode of cancelling and discharging them.

SEC. 11. Time of filing record to be marked thereon, &c.

12. Judgments not to affect real estate, &c. until docketed.

13. Clerks to enter docket of judgments filed; form thereof.

14. Special entry to be made in docket of judgments for advance of certain taxes.

15. Clerks of supreme court to transmit dockets to each other.

16. Duplicate transcript when to be sent.

17. Postage of transcripts how paid.

18. Transcripts to be entered by clerks receiving them.

19. Books containing dockets, to be open to inspection.

20. Penalty on clerk neglecting to docket or send transcripts.

21. Recognizances not to bind real estate.

22. Dockets how cancelled on acknowledgment by party, &c.

23. Acknowledgments before whom to be made, and how certified.

24. Effect of acknowledgments by attorney on record.

25. To be made by party or attorney receiving satisfaction.

26. Return of execution satisfied, to discharge judgment, &c.

27. Discharge of judgments to be certified to each other by supreme court clerks.

$ 11. The clerk of every court of record, shall mark upon the back of every record of judgment filed in his office, the time of filing the same. No judgment shall be deemed valid so as to authorise any proceedings thereon, until the record thereof shall have been signed and filed.34

$ 12. No judgment shall affect any lands, tenements, real estate or chattels real, or have any preference, as against other judgment creditors, purchasers or mortgagees, until the record thereof be filed and docketed as herein directed.34

(32) 1 R. L. p. 501, § 2. (33) Ib. p. 416, § 3; Ib. 501, § 5. (34) Ib. § 2.