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

ARTICLE IV.

Manner of giving and entering judgment.

§ 422. When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court orders the case to be reserved for future argument or consideration.

1851.

errors, and may be enforced.

Judgment to be entered in con

formity to ver dict.

If verdict is special, court to order what judg

§ 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 ment to be given order what judgment shall be entered.

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

If the pleadings authorize judg

ment it shall be

given.

May be given

for defendant in

&c.

§ 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 defendant is entitled to any other affirmative relief, judgment shall be given therefor.

§ 426. In an action to recover the possession of personal property, judgment for the plaintiff may be for the delivery of the property, or for the value thereof, in case a delivery cannot be had, and damages for the detention. Where the 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.

How judgment

is to be rendered in actions for

personal proper.

ty.

Where special damages are re

ment may be giv en therefor.

§ 427. Where special damages are given by statute, and 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 claim, 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, and specify clearly the relief granted, or other determination of the action.

§ 429. It shall not be necessary to reserve, in a judgment or order, the right of an infant to show cause against it after his attaining full age; but in any case in which, but for this section, such a reservation would have been proper, 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

The judgment

to be entered on order

book,

specifying the relief granted.

Time for in

fant to appear & gainst judgment

show cause a

need not be entered.

court, a book to be called the "judgment book," in which shall be alphabetically cross-indexed all the judgments of the court, according to the surnames of the plaintiff and defendant; and if there is more than one plaintiff or defendant, 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 judgment book, must show the names of the plaintiff and defendant, 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 satisfied by the return of an execution, it shall be the duty of the clerk to enter in the judgment book, in the space left for that purpose, "satisfied by execution." Whenever a judgment 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 satisfaction to be made.

ARTICLE V.

Conveyance by commissioners.

§ 432. Real property may be conveyed by a commissioner Conveyance of appointed by the court

real property by commissioner.

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 judgment, orders, and proceedings authorizing the conveyfer to judgment. ance, as that the same may be readily found.

Deed must re

§ 434. A conveyance made in pursuance of a judgment, shall pass to the grantee the title of the parties ordered to convey the land.

§ 435. A conveyance made in pursuance of a sale ordered by the court, shall pass to the grantee the title of all the parties to the action or proceeding.

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

1851.

Conveyance to

§ 437. It shall be necessary for the conveyance to be signed 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.

commissioner

only.

Where to be

§ 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.

TITLE X.

PROCEEDINGS IN CERTAIN ACTIONS.

CHAP. 1. In actions against absent and non-resident 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 allowed, at any time before judgment, to appear and defend the action; and, upon a substantial defense being disclosed, time may be given on reasonable terms to prepare for trial. § 440. The statements of the petition as against a defendant constructively summoned, and who has not appeared, except such as are for his benefit, shall not be taken as true, but are to be established by proof. But where the 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 appeared, it shall be necessary

1. That an attorney be appointed, at least sixty days before the judgment is rendered, to defend for the defendant, and inform him 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 prescrihed by law, shall appear, make defense, and set aside the judgment, the plaintiff shall restore to him 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.

1851.

Qualifications

of attorney ap

pointed to defend for absent

defendant.

If bond is not

ed in

441, court

to retain control over property.

§ 442. The attorney appointed pursuant to the last section, shall be a regular practicing attorney of the court; and, before an order for his compensation is made, he must 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 over and preserve any money, or property or the proceeds 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.

be required to make oath to his claim in certain cases.

§ 444. Before rendering judgment against a defendant Plaintiff may constructively summoned, and who has not appeared, the court may cause the plaintiff to appear personally in court, or before a commissioner, and answer under oath interrogatories 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.

1 If any fact is

disclosed favor. ant. court to al

able to defend

low it.

Absent defend.

within

five

ant may appear years and have

cause retried.

If copy of judg. ment is served time reduced to

on defendant

one year.

§ 445. If, upon the examination provided in the last section, any matters of set-off or counter-claim are disclosed, the same may be adjusted and allowed in the judgment.

§ 446. Where a judgment has been rendered against a defendant or defendants constructively summoned, and who did not appear, such defendants, or any one or more of them, may, at any time within five years after the rendition of the judgment, appear in court, and move 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 him 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, cause a certified copy thereof to be served on a defendant constructively summoned; whereupon, the period in which 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 service of a summons; and if out of this state, in the manjudgment

ner prescribed in section one hundred and thirteen as to 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 af fected by the new trial permitted by section four hundred and forty-six, except the title of property obtained by the plaintiff and not bought of him in good faith by others.

1851.

Purchasers of

property not to trial.

be affected by re

Liens on prop.

created by at

judgment.

or

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

ment.

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

CHAPTER 2.

In actions against steamboats.

§ 452. 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 person 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 hundred and fifty-two, no owner of the boat has been summoned or has appeared, the statements of the petition shall 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 by a jury upon such issue or issues as the court may prescribe; and, in every such case, the damages shall be assessed by a jury.

§ 456. Where any action mentioned in section four hundred and fifty-two, is upon contract, the court may determine the facts and assess the damages or amount of recovery, or, in its discretion, may direct a trial or assessment