Chap. 121.—An ACT to amend and re-enact section 6046 of the Code of Virginia,
as amended by chapter 439 of the acts of the general assembly of 1922, page
763, relating to notice and motion for judgment. [H B 85]

Approved March 10, 1928

1. Be it enacted by the general assembly of Virginia, That section
six thousand and forty-six of the Code of Virginia, as amended by
chapter four hundred and thirty-nine of the acts of the general assembly
of nineteen hundred and twenty-two, page seven hundred and sixty-
three, be amended and re-enacted so as to read as follows:

Section 6046. Any person entitled to maintain an action at law may,
in lieu of such action at law, proceed by motion, before any court which
would have jurisdiction of such action, after not less than fifteen days’
notice, which notice shall be in writing, signed by the plaintiff or his
attorney, and shall be returned to the clerk’s office of such court,
within five days after service of same, and when so returned shall be
forthwith filed and the date noted thereon, and shall be docketed on the
return day thereof. But the notice shall not be sent out of the county
or city in which the judgment is to be asked, except in those cases in
which process can be so sent out under the provisions of section six
thousand and fifty-five and six thousand and fifty-six. The return day
of a notice under this section shall not be more than ninety days from
its date, unless the commencement of the next succeeding term of
court be more than ninety days from such date, in which case the return
day may be some day of such term.

The defendant may make the same defenses to the notices as to a
declaration in any action at law, and in the same manner, or he may
state his grounds of defense informally in writing, and in the latter
event the parties shall be deemed to be at issue on the grounds stated
without replication or other pleading on the part of the plaintiff. No
plea in abatement under this section shall be received after the de-
fendant has demurred, pleaded in bar or filed such statement of his
grounds of defense. An action shall be deemed brought on the day
on which such notice is executed, if such notice be subsequently re-
turned to the clerk’s office to which same is returnable, within the
time herein prescribed, and the execution thereof shall stop the running
of the statute of limitations on the claim mentioned therein.

If the motion be upon an account, the plaintiff shall file with the
notice an account, stating distinctly the several items of his claim,
unless they be plainly described in the notice, and if the plaintiff file
with such account an affidavit, such as is prescribed by section sixty-
one hundred and thirty-three, on the part of the plaintiff in an action
of assumpsit, no plea in bar or defense to the merits shall be received
on the part of the defendant, unless accompanied by such affidavit as is
prescribed by the last-mentioned section on the part of the defendant
in an action of assumpsit. If such plea and affidavit be not filed by the
defendant, the plaintiff shall, upon motion made in open court, be
entitled to a judgment for the amount claimed in the affidavit filed with
his notice, and no further proof of the plaintiff’s claim shall be neces-
sary. If such plea of defense and affidavit be filed and the affidavit
admits that the plaintiff is-entitled to recover from the defendant a sum
certain less than that stated in the affidavit by the plaintiff, judgment
may be taken by the plaintiff for the sum so admitted to be due, and
the case be tried as to the residue.

Upon any motion under this section the same rules shall apply, with
reference to bills of particulars and grounds of defense, as are now
provided by law in other actions or motions.

In the event the return day of any notice given under the provisions
of this section, should happen to be a day of the term on which the
court did not sit, or a day after the final adjournment of a term, such
notice shall not be lost, but shall be deemed matured for hearing on
the first day thereafter of the same term on which the court sits or the
first day of the next regular term of said court, as the case may be,
and shall be docketed on that day by the clerk.