74 proceedings will be set aside fot irregularity. In an action against several, if one neglects to plead, his default and the rule for interlocutory judgment must be regularly entered, before the plaintiff can carry the cause down to trial.75 If the default is regular, it will be suffered to stand, though the subsequent proceedings are set aside for irregularity.76 in debt In debt, the judgment, quoad the debt is generally final; Judgment and this, formerly when the old rule prevailed, that the plaintiff could only recover the precise sum laid in the declaration, seems to have been universally true;101 the defendant, by suffering judgment to pass by default, being considered as acknowledging that the whole sum was due. But this rule has since been departed from ;77 and in debt on simple contract, (as for goods sold, money lent, and the like,) it seems now requisite that the sum really due should be ascertained before entering up judgment, either by reference to the clerk, or on a writ of inquiry.78 The latter mode seems conformable to the later English cases. Our own statutes and rules relate to the assessment of damages merely, and afford no direction as to the mode of ascertaining the debt, where uncertain.79 In debt for the value of foreign money, a writ of inquiry should be issued.80 The damages in debt are, in general, nominal; but where they are of sufficient consequence, the plaintiff may issue a writ of inquiry, or they may be assertained and taxed with the 74 1 Caines' Rep. 6. 78 14 East. Rep. 442. 5 Barn. & 756 Cowen. Rep. 599. 17 Johns. Ald. 885. 1 Bing. 182. 1 Chit. Rep. 270. Ante, p. 564. 76 1 Caines' Rep. 6. 120. 101 See 14 East. Rep. 442. 5 Barn. & Ald. 885. 77 2 W. Black. Rep. 1221. 1 H. Black. Rep. 249. 2 Chitty's Plead. 141. n. e. Rep. 619. Bonds for performance of cove nants. costs; but this must be done on notice; otherwise it is irregular.81 In debt on bond, conditioned for the payment of money, where the judgment is for the penalty, it seems that it is unnecessary for the plaintiff to have his damages taxed; but that he may calculate the interest due, and endorse on his execution the sum which the sheriff is to levy for principal and in In actions on bonds, for the breach of any condition other than the payment of money, or for any penal sum for the nonperformance of any covenant or written agreement, the plaintiff must assign the specific breaches for which the action is brought:83 and, after default, he may either issue a writ of inquiry to assess the damages,84 or may make up a circuit roll, and have them assessed at the circuit. The proceedings in cases of this kind are somewhat peculiar, and will be treated of more particularly hereafter.86 85 Proceedings against corporation, in certain cases.] In suits against corporations, commenced by summons, in the manner before mentioned,87 if the action be founded upon a note or other evidence of debt, for the absolute payment of money on demand, or at any particular time, if it shall appear that the first process, together with a copy of the declaration, was served at least twenty days before the return of such process, the plaintiff may file a declaration on the return day, or on any subsequent day in the same term, and may apply for 31 6 Johns. Rep. 287. 1 H. Black. 441. 2 Saund. 106. 107. n. 2. 82 1 Dunlap. Pract. 382. 83 R. St. P. 3. Ch. 6. T. 6. s. 5. Vol. 2. p. 378. 34 Ib. s. 7. 85 Ib. 36 See post, Vol. 2. $7 Ante, p. 355. 88 judgment. "On such application," the statute provides, "the court shall render judgment for the plaintiff as by default, either interlocutory or final, or both, as the case may require; unless it shall satisfactorily appear to such court, that such corporation has a good and substantial defence on the merits, which shall be disclosed by affidavit."101 SECTION II. OF THE ASSESSMENT OF DAMAGES BY THE CLERK. cases. It is provided by statute, that "in every suit brought in a In what court of record, wherein any written obligation or contract specified in the 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.' 9789 The next section defines the "obligations or contracts" upon which such assessment may be made: these must be in writing, and must 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, 83 R. St. P. 3. ch. 8. T. 4. s. 8. Vol. 2. p. 458. 101 Ib. s. 19. 89 R. St. P. 3. Ch. 6. T. 3. s. 1. Vol. 2. p. 356. Notice. Evidence. Duty and power of clerk. 4. "Some contract for the delivery of specific articles, at a value or price stipulated in the same contract."90 No notice of assessment is necessary, but it is the duty of the clerk to proceed therein on the entry of the rule requiring such assessment, unless the defendant has appeared in the cause by attorney, or has given notice of his intention to appear and defend the action: in this case, the same notice must be given as of the trial of a cause.91 Notice of assessment may be countermanded by giving six days notice of countermand.92 The fourth section of the same title provides, that "in assessing such damages, the production to the clerk of the bill of exchange, promissory note, or contract, specially set forth in 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."93 But although the instrument set forth in the declaration need not be proved, yet it must, if in existence, be produced to the clerk.94 The clerk may administer oaths to witnesses, and take their testimony, whenever it may be necesssary: if the instrument declared on be lost, he may take proof thereof, and of the contents of the instrument. He must report to the court the sum ascertained by him to be due to the plaintiff, and certify, under his hand, upon the original bill, note or contract, the amount of damages assessed thereon. It is likewise his duty to report 90 Ib. s. 2. 91 Ib. 92 Rule 22. p. 357. 93 Ib. s. 4. See Reports of Revisers, Chap. 6. Part 3. p. 22. 3 Cowen. Rep. 335. 2 Cowen. Rep. 31.36. n. f. 6 Cowen. Rep. 40. 94 See R. St. ib. s. 6. Str. 1149. Barnes. 233. 234. Doug. 316. n. 2. 3 Term. Rep. 301. 7 Cranch. 208. 1 H. Black. Rep. 543. n. a. W. Black. Rep. 748. the proof taken, where the instrument is lost: and, whenever required by either party, he must reduce to writing the testimony taken by him, and include the same in his report.95 report. In the two next sections of the same title it is provided, that Exception to "either party may except to such report, and on such exception being made, 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 exception, if any, shall have ascertained to be due to the plaintiff:" and that "the judgment shall be entered on the record, without stating any reference to the Judgment. clerk, or any proceedings in consequence thereof, and the damages shall be stated as having been assessed by the court."'96 ty clerk may If the cause is pending in the supreme court, the clerk of the When councounty in which the venue is laid has the same authority to act. assess the damages, as any clerk of the supreme court; and it is made his duty to proceed, in all respects, in the same manner.97 calculation. The plaintiff may, forthwith, after the clerk has made his Mistake in report, file the same, and enter a rule for judgment. But if there is a mistake in the calculation, the court will, on motion, vacate the assessment, and order the clerk to assess the damages anew.101 And where the clerk made a mistake in the assessment of damages, by calculating the interest for one year less than the actual time, which was not discovered by the attorney of the plaintiffs until after final judgment had been entered, and the amount paid, and satisfaction acknowledged and entered of record; the court, on motion for that purpose, ordered the entry of satisfaction of judgment, and all proceed 95 Ib. s. 5. 6. 96 Ib. s. 7.8. 97 Ib. s. 9. |