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case made by the complaint, and embraced within the issue.

It will be recollected that the plaintiff is required to state, in his complaint, the relief to which he supposes himself entitled. It will sometimes happen, that he mistakes that relief; if he do so, and the defendant do not appear, judgment ought to be given for that only, which the plaintiff has demanded. If both parties appear, and the whole controversy be gone into, there seems to be no reason, why the plaintiff should not have the relief to which he is entitled, though he may have mistaken it in his complaint.

$ 232. Whenever damages are recoverable, the plaintiff may claim and recover, if he shew himself entitled thereto, any rate of damages, which he might have heretofore recovered for the same cause of action.

It now happens, that the rate of damages recoverable in an action, depends in part upon the form of the action. The form being abolished, it should seem to follow, that the plaintiff ought to be enabled to recover any amount which he might have heretofore recovered, in any form of action that he could have selected. To prevent uncertainty on this head, we have thought it best to declare the rule explicitly.

§ 233. Judgment upon an issue of law or of fact, or upon confession or upon failure to answer (except where the clerk is authorized to enter the same by the first subdivision of section 202,) shall in all cases be given and entered before a single judge.

We have already given our reasons, in note to section 210, for the trial of all the issues before a single judge. The same reason applies to the judgment.

§ 234. The clerk shall keep among the records of the

court a book for the entry of judgments, to be called the * judgment book.”

§ 235. The judgment shall be entered in the judgment book, and shall specify clearly the relief granted, or other determination of the action.

236. The clerk, immediately after entering the judgment, shall attach together and file the following papers, which shall constitute the judgment roll.

1. In case the complaint be not answered, the summons and complaint, proof of service thereof, and that no answer has been received, the report, if any, and a copy of the judgment.

2. In all other cases, the summons, pleadings, and a copy of the judgment, with any verdict or report, the offer of the defendant, case, exceptions, and all orders relating to a change of parties or in any way involving the merits, and necessarily affecting the judgment.

§ 237. On filing a judgment roll, directing in whole or in part the payment of money, it may be docketted with the clerk of the county, where it was rendered, and in any other county upon filing with the clerk thereof, a transcript of the original docket; and shall be a lien on real property in the county from the time of docketting the judgment therein.


Of the execution of the judgment in Civil Actions.





SECTION 238. Certain judgments may be enforced by execution.

239. After five years to be issued only by leave of court.
240. Other judgments how enforced.
241. Three kinds of execution; need not be sealed.
242. To what counties may be issued.
243. Against the person, in what cases, and when.
244. Contents of execution.
245. To be returned in sixty days.
246. Existing laws relating to executions, continued until otherwise


A revision of the forms of execution now in use, under the various forms of action and modes of procedure, is the necessary result of the abrogation of those forms, and the union of law and equity practice in a common system.

In accomplishing this, we have aimed at retaining every necessary and useful feature of final process, and nothing more. The execution is a direction to the sheriff, to execute the judgment of the court, and should inform him what that judgment is, the place where it is to be found, the time from which it is a lien, the names of the parties, and whether it is to be executed on the property or the person of the debtor.

In accordance, as we believe, with the opinion and wishes of those best informed on the subject, we dispense with the delay of thirty days after judgment, and allow the execution to be issued immediately. By the existing law, if an execution have been issued within two years, another may be issued after any lapse of time within twenty years; but if that formality have been omitted, and two years suffered to elapse, the dilatory and expensive proceeding by scire facias, must be resorted to in order to obtain execution. We propose to extend the time to five years, without regard to an execution issued within that period, and after that to substitute for the scire facias, the more simple and

summary proceedings of a motion. § 238. Writs of execution for the enforcement of judgments as now used, are modified in conformity to this title, and the party in whose favor judgment is given, may at any time within five years after the entry of judgment, proceed to enforce the same as prescribed by this title.

$ 239. After the lapse of five years from the entry of judgrnent, an execution may be issued only by leave of the court on motion, with notice to the adverse party. Such leave shall not be given unless it be established by the oath of the party or other proof that the judgment or some part thereof remains unsatisfied and due.

§ 240. Where a judgment requires the payment of money or the delivery of real or personal property, the same may be enforced in those respects by execution, as provided in this title. Where it requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom it is given, and his obedience thereto required. If he refuse, he may be punished by the court as for a contempt.

§ 241. There shall be three kinds of execution; one against the property of the judgment debtor; another against his person ; and the third for the delivery of the possession of real or personal property. They shall be deemed the process of the court, but they need not be sealed nor subscribed, except as prescribed in section 244.

$ 212. Where the execution is against the property of the judgment debtor, it may be issued to the sheriff of any county where the judgment is docketted. Where it requires the delivery of real or personal property, it must be issued to the sheriff of the county where the property, or some part thereof is situated. Executions may be issued, at the same time, to different counties.

§ 213. If the action be one in which the defendant might have been arrested, as provided in section 154, an execution against the person of the judgment debtor may only be issued after the return of an execution against his property, unsatisfied in whole or in part.

§ 244. The execution must be directed to the sheriff, subscribed by the party issuing it or his attorney, and must inte'ligibly refer to the judgment; stating the court, the county where the judgment roll is filed, the names of the parties, the amount of the judgment if it be for money, and the amount actually due thereon, and the time of docketing in the county to which the execution is issued, and shall require the sheriff substantially as follows:

1. If it be against the property of the judgment debtor, it shall require the sheriff to satisfy the judgment out of the personal property of such debtor, or if suffi

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