When copy, note, etc., is filed and served.

Notice of assessment.

10 Wend., 560.

Evidence to be produced.

Authority of
Clerk, etc.

Report and certificate of Clerk.

Exceptions to Report; judgment.

Entry of judg meut.

(4425.) SEC. 3. In all actions on promissory notes or bills of exchange, where the plaintiff shall file and serve with his declaration, a copy of 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.

(4426.) SEC. 4. If the defendant shall have appeared in the cause by attorney, or 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 is 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.

(4427.) SEC. 5. In assessing such damages, the production to the Clerk of 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.

(4428.) SEC. 6. Any Clerk authorized by the provisions of this chapter to assess damages, may administer oaths to witnesses, and take their 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.

(4429.) SEC. 7. The Clerk shall report to the Court the sum ascertained by 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, or shall annex a certificate thereof to such bill, note or contract.

(4430.) SEC. 8. Either party may except to such report, and on such exceptions being made and filed, 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 exceptions, if any, shall have ascertained to be due to the plaintiff.

(4431.) SEC. 9. The judgment so rendered shall be entered on the record without stating any reference to the Clerk, or

on Bail Bonds.

any proceedings in consequence thereof, and the damages shall be stated as having been assessed by the Court. (4432.) SEC. 10. If a bond taken on the arrest of a defendant, Damages in suits in any action in which an assessment might be made by the Clerk, shall 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.

assess.

(4433.) SEC. 11. The same proceedings in all respects shall Proceedings to be had in ascertaining such damages, as are herein provided, in case interlocutory judgment had been rendered in such original action.

to be assessed in

(4434.) SEC. 12. When a bond taken on the arrest of a when damages defendant, in other causes than those provided for in the two original action. 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.

original suit to

(4435.) SEC. 13. In all cases in which a judgment shall be Declaration in rendered for the plaintiff, on a bond taken upon the arrest of be filed before a defendant, no damages shall be assessed until a declaration' in the original action shall have been filed.

assessment.

endorsed and

cution.

(4436.) Sec. 14. The damages so assessed, either by the Amount to be Clerk, or by a jury, with the interest, the costs in the original collected on exesuit, 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.

may be assessed

(4437.) SEC. 15. In all other suits wherein by the preceding when damages provisions the Clerk is not authorized to assess the damages, by a Jury. if interlocutory judgment be rendered for the plaintiff by default, or upon demurrer, or upon confession, damages may be assessed by a jury.

assessment.

(4438.) SEC. 16. Upon damages being assessed by a jury, Judgment upon judgment shall be entered for the plaintiff for the damages which shall be so ascertained, as in case of verdicts upon trial bad.

CHAPTER CXXXI.

OF JUDGMENTS AND EXECUTIONS.

Chapter One Hundred and Six of Revised Statutes of 1846.

OF JUDGMENTS.

plaintiff not to

(4439.) SECTION 1. When a verdict shall have been rendered After verdict, in any action, the plaintiff shall not thereafter be non-suited, be non-suited. but judgment shall be rendered upon the matter found by such

verdict.

judgments on

fession.

(4440.) SEC. 2. No judgment in any Court of Record shall be setting a rido set aside for irregularity on motion, unless such motion be made motion. within one year after the time such judgment was rendered. (4441.) SEC. 3. Judgments may be entered in any Circuit Judgment by conCourt in vacation as well as in term, upon a plea of confession, 9 Wend., 452. 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 was confessed;

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

OF EXECUTIONS.

may issue.

(4442.) SEC. 4. Whenever judgment shall have been or may When Executions hereafter be rendered in any Court of Record, execution to collect the same may be issued to the Sheriff, or other proper officer of any county of this State; and successive or alias executions may be issued one after another, upon the return 4 McLean, 133. of any execution unsatisfied in whole or in part, for the amount remaining unpaid upon any such judgment. (a)

out order of

(4443.) SEC. 5. But no such execution or alias execution When not withshall be issued, unless within two years from the time of the Court. rendition of such judgment, or from the return day of the last preceding execution, or two years from the time when the party was entitled to sue out the same, unless the Court, in term time, or some Judge or Justice thereof, or Circuit Court

(a) As Amended by Act 95 of 1849. Laws of 1849, p. 96.

cation for.

Commissioner, in vacation, upon special application for that purpose, and due notice to the opposite party, shall make an Notice of appli- order granting leave to issue the same. Said notice shall be given by personal service upon the said party, if to be found in the county; or if he be absent from the county, or if he be a non-resident of the county, the officer authorized to grant the order applied for, shall also direct the manner in which the notice of such application shall be given. (b)

Kinds of Execu tions.

Exception of Executors, etc.

Executions where bail has

(4444.) SEC. 6. Such execution may be either:

1. Against the goods and chattels, lands and tenements of the party against whom such judgment was recovered; or: 2. Against the body of such party, in the cases authorized by law.

(4445.) SEC. 7. But such execution shall not issue against the body, nor against the goods and chattels, lands and tenements of any executor, Administrator, heir, devisee or legatee, unless in those cases specially provided by law.

(4446.) SEC. 8. In those cases in which bail shall have been been given, etc. taken on the arrest of a defendant, and the bail bond shall have been assigned to the plaintiff; and in those cases in which special bail shall have been 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 arrested, and shall have been returned unsatisfied, in whole or in part.

Executions where defendant is imprisoned, etc.

Like Executions

to Sheriffs of

ties.

tions.

(4417.) SEC. 9. But if the defendant be imprisoned on execution in another cause, or upon process in the same action, or upon the surrender 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.

(4448.) SEC. 10. Executions, whether against the body, or different Coun- against the property of any party, may be issued at the same Different Execu- time, to Sheriffs of different 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

9 Wend., 435.

(b) As Amended by Act 95 of 1849, p. 96, and Act 323 of 1850, p. 404.