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[S 20. Same as enacted.] Original note. "§ 1, 1 R. L. 515, requires the note to be given with the general issue. Doubts have arisen whether non est factum in covenant, and nil debit in debt or judgment, were pleas of the general issue. Vide 1 Starkie's Reports, 311; 8 J. R. 82."

[$ 22, enacted with some alteration § 22 R. S.]

[S 23. Same as enacted, except that the words "and belonging to the defendant," were inserted by the legislature after "intestates."] Original note. "20 J. R., 137."

[$ 24.] Original note. "By the construction given to the present law, 10 J. R. 366, judgment and execution for a balance due on a set-off, are against the executors, &c., personally. This is calculated to deter the bringing of suits that the executors may be bound to institute. The inconveniences anticipated from the existing law, are, in effect, removed by the provisions of Chapter 6 of the 2d Part R. S., in which ample remedies are given for the collection of debts from administrators, &c. The Revisers have therefore proposed the above change in the present law."

[$ 25, 26, 27. Same as enacted.]

Original note to § 27. "The statute of 4 Anne, ch. 16, § 4, which allowed a defendant to plead several matters, was a great innovation on the common law, but has been found highly promotive of justice. But the rule is still rigidly enforced with respect to replications, (3 C. R. 160, &c.), although the cases are frequent in which a plaintiff may have several substantial answers to one plea of a defendant; as the plea of infancy, where the fact may be that the action is brought for necessaries furnished, and also that the defendant ratified the contract when of age. There is doubtless convenience in the rule, which tends to abridge the pleadings and bring them to a point; but mere convenience should not be allowed to produce positive injustice. It is supposed that the evils of protracted pleading on the one hand, and of debarring a party from a just defence or claim on the other hand, will be both avoided by leaving it to the court, on special application, to extend and enlarge the right of pleading, as each case may require.” [$ 28. Same as enacted. Original note. “1 R. L. 118, § 5.”

Original note to Title. "There are varions provisions respecting pleadings in suits brought by the state, as in 1 R. L. 155, most of which are unnecessary, as they are included in some of the preceding sections. Those not thus included, propose to give the state peculiar advantages, for which no reason is perceived. They have therefore been omitted."

"TITLE III.—Of the assessment of damages upon default."

[S1. Same as enacted, except that the words "court of record," were substituted by the legislature for "court of law," in the report.] Original note. "§ 15, 1 R. L. 522, varied so as to require that the cause of action shall have been stated."

[$ 2. Same as enacted.] Original note. "Ib. slightly varied, so as to include the provisions of § 16, and conform to the received construction."

[S 3. Same as enacted.].

Original note. "New. By the present practice, the same notice is required in case of assessments as for trial, 10 J. R. 128. But when the defendant has not appeared, the notice is invariably served by posting it in the clerk's office, where it is never seen. It produces a useless expense, when the service is rendered; and when it is omitted, exposes the plaintiff to the hazard of having his proceedings set aside." [S 4. Same as enacted.]

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Original note. "§ 17, 1 R. L. 523. The latter part new. A question has recently arisen whether a judgment is not erroneous, rendered upon an assessment, when the declaration contained the money counts, unless a nolle prosequi shall have been entered on those counts. But the court, in 6 Cowen, 40, decided that they would allow an amendment, on payment of costs; thus deciding it to be a mere question of form. There seems no necessity for interposing such difficulties in this mode of ascertaining damages, which is so simple, and so much less expensive than writs of inquiry."

[S 5. Same as enacted.] Original note. “Ib. § 18; varied to allow proof of lost instruments, according to 14 J. Rep. 347, and guarding it, by requiring such proof to be reported."

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[S 6. Same as enacted, except that the following words after plaintiff," in the reported section, were stricken out by the legislature: "and shall annex to and file with his report, a copy of the note, bill or contract upon which such assessment was made, with all the endorsements thereon."]

Original note. "Part of § 17. New, as to filing a copy of the note, &c., which is deemed a useful check, and calculated to protect defendants. Varied, in omitting the directions to certify that judgment has been rendered, as from the subsequent provisions, judgment may not be rendered at all, or not for the sum assessed."

[S 7, 8, 9, 10, 11, 12, 13.] Same as enacted. Original note to § 13. "New. Conformable to the practice of some attorneys, and deemed useful, so that the demand of the plaintiff may appear by the files of the court."

[S 14. Same as enacted.] Original note. "The last five sections will be unnecessary, if the sections from § 18 to 33 of this chapter, ante, p. 18, &c., are adapted, as they, in effect, abolish actions on bail bonds, for the bail on the arrest will either become special bail, or be liable only to the sheriff."

"TITLE IV. Of judgments."

"ARTICLE I-General provisions concerning judgments."

[S 1. Same as enacted.] Original note. "§ 35, 1 R. L. p. 89, varied in language to express the supposed intent."

[S 2, 3. Same as enacted.] Original note. "Chattels real,' new; conformable to ch. 1 of this part."

$5 as reported; enacted with material variations § 5 R. S.

Original note. "Ib. and part of § 1 of act of 1821, p. 246, extended to delays produced by writs of error, as being equally within the mischief intended to be guarded against."

[S 6 as reported substantially same as § 7 R. S., to the end of the first clause. The last clause commencing "Such judgment," &c.,

inserted by the legislature instead of the following: "And every such judgment shall bind the real estate which such party shall have had at the time of his death. If there be several records of judgment so filed and docketed against the same party, they shall take effect and bind the real estate of such party, equally, and as of the same time."] Original note. "It often happens that a defendant dies after a judgment rendered, and by § 5, 1 R. L. 144, a judgment may be rendered against a party who dies after verdict, but before the record is docketed. In such cases, the act giving a lien from the time of the docketing of the judgment, is inoperative; and as the common law gives no effect whatever to judgments upon real estate, the plaintiff would be remediless."

“ARTICLE II.—Of judgments by confession." [This subdivision was omitted by the legislature.] [S 8. Same as § 10 R. S., except that the legislature substituted sub. 2 in lieu of subs. 2, 3, as reported.]

Original note. "§ 3, 1 R. L. 416, extended to require proof of the authority of an attorney. In 6 J. R. 296, the supreme court held that a judgment confessed by an attorney, without authority, was regular, and could not be set aside. While this rule may be necessary for the court, it is conceived that some guard should be interposed for the protection of citizens, who are as much exposed to an unauthorized judgment, as to a forged deed. Proof of the execution of a warrant of attorney, and of the identity of the party, seems as requisite in the one case as in the other. (1) Laws of 1814, p. 255, § 37. (2) Same act, and 1 C. R. 498."

"ARTICLE III.

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

[Enacted as Article Second R. S.]

[S 11. Same as enacted.] Original note. "§ 2, 1 R. L. 501, varied by making the latter part of the provision general, pursuant to the decision of the supreme court in 20 J. R. 307–9.”

[S 12. Same as enacted.] Original note. "Ib. § 3 slightly varied so as to declare the preference between different judgments."

[S 15. Same as enacted.] Original note. "§7, 1 R. L. 320, varied in requiring the returns to be more frequent."

[S 16, 17. Same as enacted.] Original note. "Both new."

18. Same as enacted.] Original note. "1 R. L. 320, varied." IS 20 slightly varied § 20 R. S.] Original note. "§ 3, extended to a neglect to send transcripts, for which no penalty is now imposed." [S 21. Same as enacted.]

Original note. "§ 4 says that recognizances shall not bind lands, &c., in the hands of purchasers; implying that they are bound in the hands of the cognizors. This was taken from § 18 of 29 Car. II. which required recognizances to be enrolled, and provided that until so enrolled, they should not affect purchasers, &c. But the English act was intended for recognizances of statute merchant and statute staple, which never existed in this state. The utility of the 4th section in 1 R. L. 501, is not perceived. It is therefore proposed to enlarge it, so as to remove a doubt which has sometimes been expressed, as to the effect of recognizances."

[S 22, 23. Same as enacted, except that the words “commissioner of deeds," were added by the legislature.] Original note to § 23. “Varied by requiring proof of identity."

[S 24. Same as first clause of § 24 R. S. to the word "himself;" except that the § as reported, confined the time to within "one year,” &c.]

Original note. "A general impression prevails, that an attorney has authority to discharge a judgment within a year, (2 Dunlap's Practice, 868,) although the cases in 6 J. R. 51, and 10 J. R. 220, throw great doubt upon the point. It is conceived highly necessary to declare the law, either affirmatively or negatively.

[S 25. Same as § 26 R. S.]

Original note. "New. It is often a source of great difficulty, in tracing title to real property, to obtain the evidence of its being exonerated from judgments. Frequently executions have been returned satisfied, when it was impossible to procure a satisfaction by the party. It is well settled, that even a seizure by the sheriff of sufficient property to satisfy an execution, discharges the judgment, 4 Cowen, 418; 7 J. R. 429; 12 do. 207; 4 J. Ch. R. 228. The reason is still stronger where that property has been sold, the amount due collected, and the fact returned by the officer."

“ "TITLE V.-Of executions, and the duties of officers thereon."

"ARTICLE I.—General provisions."

[S 2. Same as enacted.] Original note. Ҥ 7, 1 R. L. 502. Italics 'chattels real' new, and conformable to the principle adopted by the legislature, in ch. 1, of this part."

IS 3. Same as enacted.] Original note. "Ib. varied according to ch. 5, part 1 R. S.

[S 4, 5. Same as enacted.] Original note to § 5. "Ib. varied and enlarged so as to allow a plaintiff to charge a defendant in exoneration, who was committed on the capias, or who has been surrendered by his bail, as he is required to do by § 12, 1 R. L. 353."

$6. Original note. "Declaratory of existing law, Tidd, 929.”

[S 7. Same as enacted. Original note. "Declaratory of the law, and inserted as the general rule to which the next section is an exception."

[S8, 9. Same as enacted.] Original note to § 9. "§ 50 R. S. 506 extended to judgments."

"ARTICLE II.—Of executions against property." [S 11. Same as enacted § 13 R. S.] slightly varied."

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Original note. "§ 6, 1 R. L. 501,

[S 12. Same as enacted § 14 R. S., except that the words "issued out of a court of record," were added by the legislature after “several executions."] Original note. "Declaratory of a principle that has been much contested, and which now seems settled by the cases in 4 Cowen, 411 and 469, and which it is desirable to fix by legislative authority." [S 13. Same as enacted § 15 R. S.] Original note. "4 Cowen, 411." [S 14. Same as § 17 R. S., except that the words "and at a fair price," after "faith," were stricken out by the legislature.]

Original note. "By the common law, goods were bound from the teste of an execution, so that the title of a fair purchaser was often defeated by this fiction. The statute of 29 Charles II, chapter 3, § 16, interposed against this palpable injustice, and restricted such an effect to sales made after the delivery of the writ to the sheriff. See 12 J. R. 406; 18 do. 311. The fiction, however, still remains between the time of the delivery to the sheriff, and the time of an actual levy, so that a fact of which an innocent purchaser would not be apprised, operates to strip him of his property. The above section is proposed to remedy this evil and to carry out the principle of the statute of Charles II. It is so guarded that a plaintiff cannot be injured, while the officer is incited to vigilance, and trade and commerce protected; and no one can suffer from the negligence or fraud of an officer holding an execution."

[S 15, 16. Same as § 18, 19 R. S.] Original note. "Conformable to 12 J. R. 220. Ib. 395."

[S 17. Same as § 20 R. S.]

Original note. "It seems to be conceded (5 J. R. 345, 4 Cowen, 469), that goods bailed or assigned, cannot be sold, although the authorities leave the point open to much inquiry. It is submitted, that the opportunity thus given to fraud, and to the injury of creditors should be avoided. No possible evil is apprehended from extending the same principle which prevails here in relation to real estate, to personal property."

[S 20. Same as § 23 R. S.] Original note. "New; the first part conformable to 17 J. R. 116; 14 do. 222. The latter part is declaratory of what is supposed to be the law."

[S 26, 27. Same as § 28, 29 R. S.] Original note to § 27. "§ 12, 1 R. L. 504, varied, by omitting the clause which requires that the money arising from the sale should have been applied to debts."

[S 28, 29. Same as § 30, 31 R. S.] Original note. "Conformable to, and to carry out, the provisions of Article 6, of Title 2, of Chapter 1, of this part. Vide notes to § 125–26.”

[S 30, 31, 32. Same as § 32, 33, 34 R. S.] Original note to § 32, sub. 1. " 13, varied by requiring notice in the town where the lands are situated. It often happens that lands are sold in distant towns of the same county." To sub. 3. "Omitting the reference to particular districts.

[$ 33, 34, 35. Same as § 35, 36, 37, except that in the reported $35, the penalty was one thousand two hundred and fifty dollars.] Original note to § 35. "Slightly varied."

[S 36. Same as § 38 R. S.] Original note. "New; partly conformable to 18 J. R. 355; 1 J. Ch. R. 502; 6 do. 411. The part allowing a grantee, &c., to require a severance, is proposed in order to facilitate a redemption by him."

[S 37. Same as § 39 R. S.] Original note to § 13 and 14. "The words and of the defendant therein,' new; penalty increased."

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[S 38. Same as $40 R. S.] Original note to same §. "Ib. slightly varied."

[S 39. Same as § 41.] Original note. "Ib. § 16, as expounded by supreme court, in 3 Cowen, 89."

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