time to settle ex (4405.) SEC. 63. The Court may allow such time as shall be Court may allow deemed reasonable to settle such exceptions, and reduce the ceptions, etc. same to form. to be signed, etc. 1. 273. (4406.) SEc. 64. If the truth of the case be fairly stated in Exceptions when such exceptions, it shall be the duty of the Judge holding 1844, p. 45, Sec. such Court to sign such statement, and he may be compelled i Doug. M. R., to do so by the Court to which any writ of error may by law be brought, upon the judgment rendered in such cause, or which shall have authority to decide on such exceptions when returned by him. prevent argu set aside verdict, (4407.) SEC. 65. If a bill of exceptions be signed in a cause, Exceptions not to it shall not prevent the argument of a motion to set aside the ment of motion to verdict in such cause, on the ground that such verdict was etc. against evidence; but such motion shall be argued, either before or after the decision of the Court on the bill of exceptions, as the Court shall direct. ceptions to be of Circuit Court. (4408.) SEC. 66. If such bill of exceptions be taken in any when bill of excase pending in any Circuit Court, it shall be filed with the filed with Clerk Clerk of such Court, who shall return the same, together with the record and other proceedings, in any cause which shall be removed by writ of error, or otherwise. as in case of non dered. (4409.) SEC. 67. When an issue of fact shall be joined in When judgment any cause, and the plaintiff shall neglect to bring such issue suit may be rento trial, according to the course and practice of the Court, 9 Wend., 461. such Court, on the application of the defendant, may give the like judgment for the defendant as in cases of non-suit, or may, upon just tems, allow a further time for the trial of such issue. (4410.) SEC. 68. If further time for the trial of such issue Ibid. be allowed by the Court, and the plaintiff shall neglect to try the same within the time so allowed, the Court shall give judgment for the defendant, as in cases of non-suit. ment for neglect trial, etc. (4411.) SEC. 69. All judgments given for a neglect to bring Effect of judg a cause to trial, shall have the like force and effect as judg- to bring cause to ments upon non-suits, and no other; and costs shall be awarded upon such judgments, in the same cases as on judg ments upon non-suits, and in no other case. tinuance on Re (4412.) SEC. 70. If a cause be not tried at any Circuit Court, Statement of conafter issue shall have been joined therein, it shall be a cord. sufficient coutinuance to state the fact upon the record that such cause was not tried. (4413.) SEC. 71. When any Court of Record in which an View of premises, issue of fact is tried by a jury, shall deem it necessary that the etc., by Jury. Expenses of view when to be taxed as costs. jury view the place or premises in question, or any property or thing relating to the issue between the parties, such Court may, on the application of either party, and the advancement of a sufficient sum to pay the expenses of the jury and officers attending them, in taking such view, order such view to be had, and direct the manner of effecting the same. (4414.) SEC. 72. The expenses advanced by any party pursuant to the provisions of the preceding section, shall be taxed like other disbursements in the suit, if the party advancing them shall prevail therein, and be entitled to costs. R. S. of N. Y., Title 5, Chap. 7, Court may amend pleading, etc., at judgment. 4 Denio, 263. Chapter One Hundred and Four of Revised Statutes of 1846. (4415.) SECTION 1. The Court in which any action shall be any time before pending, shall have power to amend any process, pleading or proceeding in such action, either in form or substance, for 5 McLean, 135. the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein. 1 Kernan, 237. 2 Cushing, 491. When opposite party may an pleading. (4416.) SEC. 2. If such amendment be made to any pleading swer amended in matter of substance, the adverse party shall be allowed an opportunity, according to the course and practice of the Court, to answer the pleading so amended. ter of form may judgment, etc. Defects in mat- (4417.) SEC. 3. After judgment rendered in any cause, be amended after any defects or imperfections, in matter of form, contained 3 Cowen, 39, and in the record, pleadings, process, entries, returns, or other 18 Wendell, 558. proceedings, may be rectified and amended by the Court, in Note. affirmance of the judgment, so that such judgment shall not be reversed or annulled; and any variation in the record, from any process, pleading or proceeding had in such cause, shall be reformed and amended according to such original process, pleading or proceeding. returns made by (4418.) SEc. 4. All returns made by any Sheriff or other Amendment of officer, or by any Court or subordinate tribunal, to any Court, Sheriffs, etc. may be amended in matter of form by the Court to which such returns shall be made, in their discretion, as well before as after judgment. not to be stayed reason of certain (4419.) SEC. 5. When a verdict shall have been rendered in When judgment any cause, the judgment thereon shall not be stayed, nor shall or affected by any judgment upon confession, default, nihil dicit, or non sum defects, etc. informatus, be reversed, impaired, or in any way affected, by reason of the following imperfections, omissions, defects, matters or things, or any of them, in the pleadings, process, record or proceedings, namely: 1. For any default or defect in process; or for misconceiving any process, or awarding the same to a wrong officer; or for the want of any suggestion for awarding process, or for any insufficient suggestion; 2. For any imperfect or insufficient return of any Sheriff or other officer, or that the name of such officer is not set to any return actually made by him; 3. For any variance between the original writ, bill, plain' and declaration, or between either of them; 4. For any mispleading, miscontinuance, or discontinuanc insufficient pleading, or misjoining of issue; 5. For the want of any warrant of attorney by either party, except in cases of judgment by confession, where such warrant is expressly required by law; 6. For any party under twenty-one years of age, having appeared by attorney, if the verdict or judgment be for him; 7. For the want of any allegation or averment, on account of which omission a special demurrer could have been maintained; 8. For omitting any allegation or averment of any matter, without proving which the jury ought not to have given such verdict; 9. For any mistake in the name of any party or person, or in any sum of money; or in the description of any property; or in reciting or stating any day, month or year, when the missions, etc., before enumeru plied and amended by Court. correct name, time, sum or description shall have been once rightly alleged, in any of the pleadings or proceedings; 10. For a mistake in the name of any juror or officer; 11. For the want of a right venue, if the cause was tried by a jury of the proper county; 12. For any informality in entering a judgment, or making up the record thereof; or in any continuance or other entry upon such record; 13. For any other default or negligence of any Clerk or officer of the Court, or of the parties, or their counsellors or attorneys, by which neither party shall have been prejudiced. (4420.) SEC. 6. The omissions, imperfections, variances and ted, to be sup: defects in the preceding sections of this chapter enumerated, and all others of the like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties, or the trial, shall be supplied and amended by the Court where the judgment shall be given, or by the Court into which such judgment shall be removed by writ of error. Process, etc., not to be amended Court. (4421.) SEC. 7. No process, pleading or record, shall be without order of amended or impaired by the Clerk or other officer of any Court, or by any other person, without the order of such Court, or of some other Court of competent jurisdiction. Provisions of this Chapter, to what to extend. 6 Wend., 516. (4422.) SEC. 8. The provisions of this chapter shall extend actions and writs to all actions in Courts of law, and to all suits for the recovery of any debt due to the People of this State, or for any debt, duty or revenue belonging to them; and to all actions for penalties and forfeitures; to all writs of mandamus and prohibition; to all informations in the nature of a quo warranto; to writs of scire facias; and to the proceedings thereon. by (4423.) SECTION 1. In every suit brought in a Court of Record, Assessment of wherein any written obligation or contract specified in the Clerk. next section, shall be set forth in the declaration as the cause of action, if interlocutory judgment 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. which Clerk may (4424.) SEC. 2. The obligations or contracts upon which contracts upea such assessment may be made, must be in writing, and must assess. 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: 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. |