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,
Part 3.

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 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

swer

pleading.

(4416.) SEC. 2. If such amendment be made to any pleading 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 procceding.

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

before enumera

plied and amend ed 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. missions, etc., (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.

of

(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 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.

damages

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 upen 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.

When copy, note, etc., is filed and served.

Notice of assessment.

10 Wend., 560,

Evidence to be produced.

Authority of
Clerk, etc.

Report and certificate of Clerk.

Exceptions to Report; judgment.

Entry of judg

meut.

(4425.) SEC. 3. In all actions on promissory notes or bills of exchange, where the plaintiff shall file and serve with his declaration, a copy of such promissory note or bill of exchange, the damages may be assessed as though such note or bill had been set out specially in said declaration.

(4426.) SEC. 4. If the defendant shall have appeared in the cause by attorney, or shall have given notice of his intention to appear and defend the action, the like notice of assessment of damages by the Clerk shall be given, as is required of the trial of a cause; but in all other cases, no notice shall be necessary, and the Clerk shall proceed therein on the entry of the rule requiring such assessment.

(4427.) SEC. 5. In assessing such damages, the production to the Clerk of the bill of exchange, promissory note or contract, specially set forth in the declaration, or a copy of which bill of exchange or promissory note has been filed and served with 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.

(4428.) SEC. 6. Any Clerk authorized by the provisions of this chapter to assess damages, may administer oaths to witnesses, and take their testimony, whenever it may be necessary; and if the instrument declared on be lost, the Clerk may take proof thereof, and of the contents of such instrument, which proof shall be stated in his report; and whenever required by either party, he shall reduce to writing the testimony taken by him, and include the same in his report.

(4429.) SEC. 7. The Clerk shall report to the Court the sum ascertained by him to be due to the plaintiff, and shall certify under his hand, upon such original bill, note or contract, the amount of damages assessed thereon, or shall annex a certificate thereof to such bill, note or contract.

(4430.) SEC. 8. Either party may except to such report, and on such exceptions being made and filed, 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 exceptions, if any, shall have ascertained to be due to the plaintiff.

(4431.) SEC. 9. The judgment so rendered shall be entered on the record without stating any reference to the Clerk, or