Squire v. Elsworth ( 1849 )

Edmonds, Justice.

By section 246th of the amended code, the action not being on an instrument for the payment of money, but being on account for goods sold, the clerk is to ascertain the amount which the plaintiff is entitled to recover.

This, however, is to be done by the clerk in due form. It will not do for him merely to take the oral examination of the party or his witness, and then insert the amount in the judgment roll. He must make .and file with the record a report of his finding, like the report on assessment under the former practice, so that the defendant may have some means of ascertaining what is the decision of the clerk in the premises, some means of correcting any errors into which he may fall. That report will be annexed to, and form a part of the record.

Any other practice than this will necessarily leave matters very much at loose ends, and may deprive parties of the power of correcting errors in the assessment.

The clerk is substituted for the former sheriff’s jury of inquiry; and there is no reason why he should not, as was formerly the practice, make a report of his decision between the parties.