1851.

regularly brought and prosecuted, and the confession shall operate as a release of errors.

errors, and may be enforced.

formity
dict.

Il verdict is special, court to order wbat judge

May be given for dereudant in

in actions for personal proper.

ARTICLE IV. Manner of giving and entering judgment. § 422. When a trial by jury has been had, judgment Judgment to bo must be entered by the clerk in conformity to the verdict, entered in con: unless it is special, or the court orders the case to be reserved for future argument or consideration.

§ 423. Where the verdict is special, or where there has been a special finding on particular questions of fact, or where the court has ordered the case to be reserved, it shall meut to be given order what judgment shall be entered.

§ 424. Where, upon the statements in the pleadings, one If the pleadings party is entitled by law to judgment in his favor, judgment ment it shall be shall be so rendered by the court though a verdict has been given. found against such party:

§ 425. If a set-off established at the trial, exceeds the plaintiff's claim so established, judgment for the defendant cases of set-off, must be given for the excess; or, if it appears that the de- &c. fendant is entitled to any other affirmative relief, judgment shall be given therefor.

§ 426. In an action to recover the possession or personal property, judgment for the plaintiff may be for the delivery is to be rendered of the property, or for the value thereof, in case a delivery cannot be had, and damages for the detention. Where the ty. property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for the return of the property, or its value in case a return cannot be had, and damages for the taking and withholding of the property.

§ 427. Where special damages are given by statute, and Where special it appears, by the verdict of the jury or other decision of coverable judg. the action, that such special damages are due and recoverable by one of the parties against the other, the court shall render judgment for them; and if, in ascertaining the amount thereof, it is necessary to assess the value of any property, or amount of any debt or claiın, the court may hear the proof and assess such value or amount, or have the same made by a jury.

$ 428. The judgment must be entered on the order book, to be entered on and specify clearly the relief granted, or other determina- order

specifying the retion of the action.

lief grauted. 9 429. It shall not be necessary to reserve, in a judgment or order, the right of an infant to show cause against it af- fant to appear & ter his attaining full age; but in any case in which, but gainst judgment for this section, such a reservation would have been proper, bered." the infant, within twelve months after arriving at the age of twenty-one years, may show cause against such order or judgment.

§ 430. The clerk must keep, among the records of the

ment may be giv en therefor.

book,

Time for in

show

cause a

a

need not be en

1

book, in which

tion.

1851. court, a book to be called the "judgment book," in which

Clerk must shall be alphabetically cross-indexed all the judgments of keep a judgment the court, according to the surnames of the plaintiff and to enter satisfac. defendant; and if there is more than one plaintiff or de

fendant, then, of the plaintiff and defendant first named in
the petition. It shall be so arranged that all the judgments
in cases of plaintiffs whose surnames commence with the
same letter, shall be together, and all of each term shall
immediately succeed each other. The entry in the judg-
ment book, must show the names of the plaintiff and de-
fendant, and if more than one, then of the first named of
each in the pleadings, with the words "and others,” the
term at which the judgment was entered, and a reference
to the order book and page at which the judgment is to be
found, with a space left for the entry of the satisfaction of
the judgment.

§ 431. Whenever the whole judgment shall appear to be Entry or sat satisfied by the return of an execution, it shall be the duty of sfaction, must the clerk to enter in the judgment book, in the space left for by clerk or plain that purpose, “satisfied by execution.” Whenever a judg.

ment is satisfied otherwise than upon execution, it shall be
the duty of the party or his attorney to enter satisfaction
in the judgment book, which shall be sufficiently done, by
writing the words “satisfied in full,” with the date of the
entry, and the signature of the party making it; and the
court may, on motion and notice, compel an entry of satis-
faction to be made.

be entered either

real property by commissioner.

ARTICLE V.

Conveyance by commissioners. § 432. Real property may be conveyed by a commissioner Conveyancë dr appointed by the court

1. Where, by the judgment in an action, a party is ordered to convey such property to another.

2. Where such property has been sold, under a judgment or order of the court, and the purchase money

paid.

$.433. The deed of the commissioner shall so refer to the Desd must re judgment, orders, and proceedings authorizing the convey

ance, as that the same may be readily found.

$ 434. A conveyance made in pursuance of a judgment, Conveyance

shall pass to the grantee the title of the parties ordered to by commission

convey

the land.

$ 435. A conveyance made in pursuance of a sale orderConveyance ed by the court, shall pass to the grantee the title of all the anco to budale parties to the action or proceeding.

§ 436. A conveyance by a commissioner shall not pass Conveyance any right, until it has been examined and approved by the must be approv. court, which approval shall be indorsed on the conveyance, ed by the court, and indorsed on and recorded with it.

ter to judgment.

er passes title.

made

pursu

a passes title.

It.

Conveyance to

§ 437. It shall be necessary for the conveyance to be sign- 1851. ed by the commissioner only: without affixing the names of the parties whose title is conveyed; but the names of such be signed by the parties shall be recited in the body of the conveyance.

§ 438. The conveyance shall be recorded in the office in which, by law, it should have been recorded, had it been recorded. made by the parties whose title is conveyed by it.

only.

Where to be

The effect of

TITLE X.
PROCEEDINGS IN CERTAIN ACTIONS.
Chap. 1. In actions against absent and non-resiilent defendants, unknown

heirs, and unknown owners of property.
2. In actions against steamboats.

CHAPTER 1.
In actions against absent and non-resident defendants, unknown

heirs, and unknown owners of property.
$ 439. A defendant constructively summoned. shall be al-

Defendant con. lowed, at any time before judgment, to appear and defend Structively sum.

mone may ap. the action; and, upon a substantial defense being disclosed, pear and defend. time may be given on reasunable terms to prepare for trial.

$ 440. The statements of the petition as against a defendant constructively summoned, and who has not ap- petition against peared, except such as are for his benefit, shall not be taken defendant con

structively sum. as true, but are to be established by proof. But where the moned. plaintiff files with the petition his own affidavit, stating that any of the allegations thereof recited in the affidavit are true, and known to be so by the defendant, and that they cannot be proved or shown otherwise than by his answer, so far as affiant knows or believes, such allegations, unless denied by the answer, shall be taken as true.

$ 441. Before judgment is rendered against a defendant constructively summoned, and who has not appeareil, it magainst a de shall be necessary

structively sum. 1. That an attorney be appointed, at least sixty days entering judg. before the judgment is rendered, to defend for the de. ment. fendant, and inform himn of the action and of such other matters as may be useful to him in preparing for his defense. The attorney may be appointed by the clerk when the warning order is made, or by the court, and shall receive a reasonable compensation for his services, to be paid by the plaintiff, and taxed in the costs.

2. That a bond be executed to such defendant, by one or more sufficient sureties of the plaintiff, to the effect that, if the defendant within the period prescribed by law, shall appear, make defense, and set aside the judgment, the plaintiff shall restore to bim the property taken under any attachment in the action, or under the judgment therein, the restoration of which may be adjudged, and pay to the defendant such sums of money as the court may award to him.

Steps to be ta.

sendant

moned,

before

.

delendant.

Ir bond is not

to retain control

cases.

If any fact is

defend

1851. $ 442. The attorney appointed pursuant to the last sec

tion, shall be a regular practicing attorney of the court; Qualifications of attorney ap: and, before an order for his compensation is made, he must pointed to de lend for absent make a written statement of all that he has done in the

case, which shall be signed by him, and filed with the papers

of the action. § 443. If the bond mentioned in section four hundred and

forty-one is not given, the court may enter a judgment asgiven as requir: certaining the rights of the parties, but shall retain control ed in $441, court

over and preserve any money, or property or the proceeds over property. thereof, which may have been attached in the action, until

the expiration of the period allowed to the defendant to appear and make defense; when, if no defense is made, such money, or property or its proceeds, shall be delivered according to the judgment.

§ 444. Before rendering judgment against a defendant Plaintif may constructively summoned, and who has not appeared, the

to make oath to his court may cause the plaintiff to appear personally in court, claim in certain or before a commissioner, and answer under oath interrog

atories concerning the matters in the petition, or any matters of defense thereto, including matters of set-off or counter-claim, and may order the examination to be reduced to writing and filed with the papers of the action.

$ 445. If, upon the examination provided in the last secdisclosed favor. tion, any matters of set-off or counter-claim are disclosed, ant.court to al. the same may be adjusted and allowed in the judgment.

446. Where a judgment has been rendered against a

delendant or defendants constructively summoned, and who aut inay appear did not appear, such defendants, or any one or more of years and have them, may, at any time within five years after the rendi

tion of the judgment, appear in court, and more to have the action retried; and security for the costs being given, they shall be admitted to make defense ; and, thereupon, the action shall be retried as to such defendants, as if there had been no judgment; and, upon the new trial, the court may confirm the former judgment, or may modify or set it aside, and may order the plaintiff to restore any money of such defendant paid to hiin under it, or any property of the defendant obtained by the plaintiff under it and yet remaining in his possession, and pay to the defendant the value of any property which may have been taken under an attachment in the action, or under the judgment, and not restored.

§ 447. The plaintiff may, at any time after the judgment, If copy of judg: cause a certified copy thereof to served on a defendant ment is served constructively summoned; whereupon, the period in which time reduced to such defendant is allowed to appear and have a new trial,

shall be reduced to one year after such service.

§ 448. The service of the copy of the judgment, if in this Manner of state, shall be made and proved in the same manner as the serving copy of judgment.

service of a summons; and if out of this state, in the man

low it.

Absent defend.

within

canse retried.

on

defendant

one year.

Purchasers of property not to be afected by re

Liens on prop

or

Personal judg. meut cannot be

moned.

ner prescribed in section one hundred and thirteen as to 1851. the service of a copy of the petition and summons, and proof thereof.

$ 449. The title of purchasers in good faith to any property sold under an attachment or judgment, shall not be affected by the new trial permitted by section four hundred trial. and forty-six, except the title of property obtained by the plaintiff and not bought of him in good faith by others.

$ 450. No lien on the property of a defendant constructively summoned, shall be created otherwise than by an at- erty can only bo tachment as provided in Chapter 3 of Title viii, or by judg- tachment

judgment. Nor shall any other defendant be restrained from paying or delivering any money or property in his hands belonging or due to such defendant, by notice indorsed on the summons, or otherwise than by attachment or judgment.

451. No personal judgment shall be rendered against a defendant constructively summoned, or summoned out of rendered against this state as provided in section one hundred and thirteen, structively sum. and who has not appeared in the action.

CHAPTER 2.

In actions against steamboals. 9452. An action to enforce the liability, by statute, of a steamboat or other vessel for the removal of a slave, or to enforce a lien upon a steamboat for the wages of its officers or crew, or for work done upon, or materials, supplies, stores, or provisions furnished to such boat, or the liability thereof for an injury to another boat or craft, or for a trespass of its officers or crew, shall stand for trial at the first term of the court commencing not less than ten days after the service of the summons. § 453. In any action mentioned in the last section, a per

Any person son made a party pursuant to the provisions of section seventy-five, may obtain an attachment in the same manner and upon the same conditions as are prescribed concerning the attachment of the plaintiff in the action. § 454. Where, in any action mentioned in section four

Statements in hundred and fifty-two, no owner of the boat has been sum- petition must be moned or has appeared, the statements of the petition shall proved. not be taken as true upon the trial, but are to be established by proof.

§ 455. Where any action mentioned in section four hundred and fifty-two, is for an injury, the facts shall be tried jury under $ 452, by a jury upon such issue or issues as the court may pre- by jury. scribe; and, in every such case, the damages shall be assessed by a jury.

Ø 456. Where any action mentioned in section four hun- in actions dred and fifty-two, is upon contract, the court may deter- ezainst Steam: mine the facts and assess the damages or amount of recovery, or, in its discretion, may direct a trial or assessment

Actions against steam boats, when to stand for trial.

made a party in such case may obtain an attach. ment.

Action for in

facts to be tried

on

con tracts court may assess damages.