CHAPTER 618

An Act to amend and reenact § 8-848 of the Code of Virginia, relating
to the correction of errors by courts.
[fH 855]

Approved April 6, 1954
Be it enacted by the General Assembly of Virginia:

1. That § 8-348 of the Code of Virginia be amended and reenacted as
follows:

§ 8-348. The court in which there is a judgment by default, or a
decree on a bill taken for confessed, or the judge of such court in vacation
thereof, may on motion reverse such judgment or decree for any error
for which an appellate court might reverse it if the following section
were not enacted, and give such judgment or decree as ought to be given.
And any court, or judge thereof in vacation, in which is rendered a judg-
ment or decree in a cause (1) Wherein there is in a * pleading or in
the record of the judgment or decree any mistake, miscalculation, or mis-
recital of any name, sum, quantity, or time when the same is right in
any part of the record or proceedings, or when there is any verdict,
report of a commissioner, bond, or other writing whereby such judgment
or decree may be safely amended, or (2) in which a judgment is ren-
dered on a forthcoming bond for a sum larger than by the execution or
warrant of distress appears to be proper, or on a verdict in an action
for more damages than are mentioned in the * pleading, may, on the
motion of any party, amend such judgment or decree according to the
truth and justice of the case, or in any such case the party obtaining
such judgment or decree, may, in the same court, at any future term, by
an entry of record, or in the vacation by a writing signed by him, attested
by the clerk and filed among the papers of the cause, release a part of
the amount of his judgment or decree, and such release shall have the
effect of an amendment and make the judgment or decree operate only
for what is not released. Every motion under this * section shall be after
reasonable written notice to the opposite party, his agent or attorney
in fact or at law, and shall be within three years from the date of the
judgment or decree.
An Act to amend and reenact §§ 8-245 and 8-246 of the Code of Virginia,
relating to procedure in setoff when the defendant's claim exceeds
the plaintiff’s demand.

[H 856]

Approved April 6, 1954

Be it enacted by the General Assembly of Virginia:

1. That §§ 8-245 and 8-246 of the Code of Virginia be amended and
reenacted, as follows:

§ 8-245. * On the trial of the case, if the defendant has filed a
counterclaim, the court or jury shall ascertain the amount to which the
defendant is entitled, and apply it as a setoff against the plaintiff’s
demand, and, if such amount be more than the plaintiff is entitled to,
shall ascertain the excess, and fix the time from which interest is to be
computed on the same, or any part thereof. Judgment, in such case, shall
be for the defendant against the plaintiff for such excess, with such interest
from such time so fixed till payment.

§ 8-246. If the plaintiff claims as assignee or transferee under a
person with whom the contract sued on was originally made, and the
defendant’s claim exceeds the plaintiff’s demand, the defendant:

(1) In * his * counterclaim, may waive the benefit of his claim as to
any excess beyond the plaintiff’s claim, whereupon, the further proceedings
shall be upon the plaintiff’s claim and the defendant’s counterclaim as a
defense thereto; or —

(2) Instead of such waiver such defendant may, by rule issued by the
court, or, on his application, issued by the clerk of the court in vacation *
to which rule * shall be attached a copy of the counterclaim and served on
the person, under whom plaintiff claims as aforesaid, make such person
a party to the * action; and, on the trial of the case, the jury shall ascertain
and apply, as provided in the preceding section, the amount and interest
to which the defendant is entitled ; and, for any excess beyond the plaintiff’s
demand for which such person under whom the plaintiff claims as afore-
said is liable, with such interest as the court or jury allows, judgment shall
be rendered for the defendant against such person.