186

PLEADING, PRACTICE AND PROCESS. [ART. 76.

sub-rejoinder, or other plea of any description of the
opposite party, and the said demurrer shall be over-
ruled, the party demurring shall have the right to
plead over to the facts of the case by way of traverse
or otherwise, without withdrawing his demurrer, and

Questions of
law on demur-
rer to be
decided on
appeal.

upon appeal or writ of error, shall have the questions
of law arising upon the demurrer decided and deter-
mined, as fully to every intent as if the party demur-
ring, had not pleaded over.

In force from March 12, 1867.

PRACTICE.

1864, c. 175 amends and re-enacts section 62 as follows :

1804, c. 175.
How damages
assessed and
judgment ex-
tended on
judgments in-
terlocutory or
by default.

62. In all cases in any action on any promissory
note, bill, bond or open account in which an inter-
locutory judgment or judgment by default has been
or shall hereafter be entered in any of the courts of
this state, whereby the right of the plaintiff is estab-
lished, but the damages sustained by him are not
ascertained, the judge of the court where such judg-
ment is, shall, on motion of the plaintiff, or of his
attorney, and the production to him of the promis-
sory note, bill of exchange, bond, or writing obliga-
tory upon which the suit was brought; or upon legal
and satisfactory proof of the correctness and amount
of the claim where the suit was brought, to recover
a debt due upon open account, assess the damages
and order the judgment to be extended for the
amount so found to be due, and interest on the
same till paid, and costs of suit. In all other cases
in which an interlocutory judgment, or judgment by
default has been, or shall hereafter be entered, the
judge of the court where such judgment is, shall on
motion of the plaintiff, or his attorney, make an
order in the nature of a writ of inquiry, to charge
the jury in attendance in such court, to inquire of
the damages and costs sustained by the plaintiff in
such action, which said inquiry shall be made and