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CHAPTER 99.

with a copy of the declaration when the suit is commenced by decla- TITLE XXII. ration, and such judgment shall have the same effect against the joint contractors, as if the action had been brought in the form heretofore

used.

be severed.

SEC. 16. It shall not be necessary for the plaintiff to include in the How action may same record, a judgment against all the parties to such bill or note, but judgment may be entered against any of the parties thereto, whenever the plaintiff would be entitled to the same if the suit had been commenced against such parties only; and if the trial or hearing of such cause be put off by any of the parties to such bill or note, or if a default shall have been obtained against part of the defendants, the plaintiff may proceed to the hearing or trial against the other parties, in the same manner as if the suit had been commenced against the other parties only, and the action shall thereby be severed. SEC. 17. In every suit brought upon a bill or note pursuant to the pro- In what cases visions of this chapter, the plaintiff shall be entitled to the testimony plaintiff entitled of any defendant as a witness, in cases where the plaintiff would have to testimony of a been entitled to his testimony against the other parties to such bill or note, had the suit been brought in the form heretofore used.

defendant.

move for judg

ment, &c.

SEC. 18. One or more of the defendants in any suit brought upon a one or more of bill or note pursuant to this chapter, may move for judgment as in defendants may case of non-suit, although the other defendants shall not unite in the motion; but one of several joint makers, drawers, endorsers or acceptors, shall not make such motion, unless the other joint contractors with him shall unite in the motion.

demurrer.

SEC. 19. When any demurrer shall be entered in any action, and Judgment upon issue be joined thereon, the court shall proceed and give judgment according as the very right of the case and matter in law shall appear, without regarding any defect or other imperfection in any process or pleading, so as sufficient matter appear in the pleadings, to enable the court to give judgment according to the very right of the case, unless such defect or other imperfection be specially expressed in the demurrer.

SEC. 20. After issue shall be joined on any demurrer, the court What defects to shall amend every such defect or other imperfection in any process be amended by or pleading, in the last section mentioned, other than those which the court after issue party demurring shall specially express in his demurrer.

on demurrer.

received without

SEC. 21. No plea in abatement, or other dilatory plea, which does plea in abatenot involve the merits of the action, shall be received by any court, un- ment not to be less the party offering such plea shall prove the truth thereof by affi- proof of its truth. davit or by some other evidence.

SEC. 22. No special plea in bar shall be pleaded in any civil action No special plea hereafter to be commenced; but all matters of defence to any such in bar to be action, may be given in evidence under the general issue.

pleaded.

sue to consist of.

SEC. 23. In all civil actions hereafter to be commenced, the general What general isissue shall consist of a demand by the defendant, of a trial of the matters set forth in the plaintiff's declaration.

fence.

SEC. 24. To entitle a defendant to avail himself of any matter of Notice of special defence, which, according to the practice as it has heretofore existed, matter of dewas required to be pleaded specially, or of which a special notice was required to be given under the general issue or other general plea, such defendant shall annex to his plea of the general issue, a notice to the plaintiff, briefly stating the precise nature of such matter of de

fence.

TITLE XXII.

CHAPTER 99.

SEC. 25. The supreme court may make such rules in relation to notice of matters intended to be given in evidence by either party, as Rules in regard shall be necessary to prevent surprise, and to afford opportunity for preparation for trial.

to notice may be made by su

preme court.

SEC. 26. In the following cases, and under the following circumIn what cases and stances, a defendant may set off demands which he has against the plaintiff :

under what cir

cumstances de

mands may be set off.

Notice of set-off.

1. It must be a demand arising upon judgment, or upon contract express or implied, whether such contract be written or unwritten, sealed or without seal; and if it be founded upon a bond, or other contract having a penalty, the sum equitably due, by virtue of its condition, only, shall be set off:

2. It must be a demand for real estate sold, or for personal property sold, or for money paid, or money had and received, or services done; or if it be not such a demand, the amount must be liquidated, or be capable of being ascertained by calculation:

3. It must be due to him in his own right, either as being the original creditor or payee, or as being the assignee or owner of the demand:

4. It must have existed at the time of the commencement of the suit, and must then have belonged to the defendant:

5. It can be allowed only in actions founded upon demands which could themselves be [the] subject of set-off according to law:

6. If there be several defendants, the demand set off must be due to all of them jointly, except where other provision is expressly made by law:

7. It must be a demand existing against the plaintiff in the action, unless the suit be brought in the name of a plaintiff having no real interest in the contract upon which the suit is founded; in which case no set-off of a demand against the plaintiff shall be allowed, unless as hereinafter specified:

8. If the action be founded upon a contract, other than a negotiable prommissory note, or bill of exchange, which has been assigned by the plaintiff, a demand existing against such plaintiff, or any assignee of such contract, at the time of the assignment thereof, and belonging to the defendant in good faith before notice of such assignment, may be set off to the amount of the plaintiff's debt, if the demand be such as might have been set off against such plaintiff or such assignee, while the contract belonged to him:

9. If the action be upon a negotiable prommissory note, or bill of exchange, which has been assigned to the plaintiff after it became due, a set-off to the amount of the plaintiff's debt, may be made of a demand existing against any person or persons who shall have assigned or transferred such note or bill, after it became due, if the demand be such as might have been set off against the assignor, while the note or bill belonged to him:

10. If the plaintiff be a trustee for another, or if the suit be in the name of a plaintiff who has no real interest in the contract upon which the suit is founded, so much of a demand existing against those whom the plaintiff represents, or for whose benefit the action is brought, may be set off, as will satisfy the plaintiff's debt, if the same might have been set off in an action brought by those beneficially interested, SEC. 27. To entitle a defendant to a set-off, he must annex a notice thereof to his plea of the general issue.

TITLE XXII. CHAPTER 100.

SEC. 28. If the amount of the set-off duly established, be equal to the plaintiff's debt or demand, judgment shall be entered that the plaintiff take nothing by his action; if it be less than the plaintiff's When plaintiff to debt or demand, the plaintiff shall have judgment for the residue only. his action, and take nothing by SEC. 29. If there be found a balance due from the plaintiff in the when to have action to the defendant, judgment shall be rendered for the defendant sidue. for the amount thereof; but no such judgment shall be rendered When judgment against the plaintiff, when the contract, which was the subject of the for defendant, suit, shall have been assigned before the commencement of such suit,

nor for any balance due from any other person than the plaintiff in

the action.

judgment for re

&c.

SEC. 30. In suits brought by executors and administrators, demands set-offs in suits existing against their testators or intestates, and belonging to the de- by executors, &c fendant at the time of their death, may be set off by the defendant in the same manner as if the action had been brought by and in the

name of the deceased.

&c., evidence of

SEC. 31. When a set-off is established in a suit brought by execu- Judgment tors or administrators, and a balance found due the defendant, the against executors judgment shall be against them in their representative character, and debt established. shall be evidence of a debt established, to be paid in the course of administration.

CHAPTER 100.

OF CONSOLIDATING AND REFERRING CAUSES.

suits to be con

SECTION 1. Whenever several suits shall be pending in the same when court may court, by the same plaintiff against the same defendant, for causes of order several action which may be joined, the court in which the same shall be pro- solidated into secuted may, in its discretion, if it shall appear expedient, order the ge several suits to be consolidated into one action.

of

SEC. 2. When several suits shall be commenced against joint and several debtors, in the same court, the plaintiff may, in any stage the proceedings, consolidate them into one action.

9 Wend., 451.

Plaintiff may

consolidate sev eral suits against joint and several debtors.

When court may

SEC. 3. When a cause shall be at issue in any court of record, and it shall appear that the trial of the same will require the examination order cause to be of a long account, on either side, the court may, upon the consent of referred. both parties in writing, signed by them or their attorneys, and filed with the clerk, order such cause to be referred to three impartial and competent persons.

7 Wend., 483.

SEC. 4. If the parties agree on three persons as referees, such per- Referees, how se sons shall be appointed by the court; if they disagree, each party lected, &c. shall be entitled to name one, and the court shall appoint the persons so nominated, if they are free from all exceptions, and such other person as the court shall designate.

SEC. 5. The referees appointed pursuant to the foregoing provi- Referees to prosions, shall proceed with diligence to hear and determine the matters ceed with dillin controversy.

gence.

SEC. 6. They shall appoint a time and place for the hearing, and Time, &c., of shall adjourn the same from time to time as may be necessary; and hearing; adjourn on the application of either party, and for good cause they may post- 1 Wend., 04.

ments.

6 do. 552.

TITLE XXII.

CHAPTER 100. Pone such hearing to a time not extending beyond the next term of the court in which the suit is pending.

7 do. 534.

12 do. 199.

Referees to be first sworn.

Witnesses may

SEC. 7. Before proceeding to hear any testimony in the cause, the referees shall be severally sworn, faithfully and fairly to hear and examine the cause, and to make a just and true report according to the best of their understanding, which oath may be administered by any judge, clerk of a court of record, justice of the peace, or notary public.

SEC. 8. Witnesses may be compelled to appear before such referbe compelled to ees, by subpoenas issuing out of the court in which the cause is pending, in the same manner, and with the like effect, as in cases of trials in such court.

attend.

Oath to witness

es. All the referees must meet

but majority may report.

SEC. 9. Any one of the referees may administer the necessary oath to the witnesses produced before them for examination. All the reand hear proofs, ferees must meet together and hear all the proofs and allegations of the parties, but a report by any two of them shall be valid. Referees may be SEC. 10. The referees may be compelled, by the order of the court compelled to report, and may be in which the cause is pending, to proceed to the hearing thereof, and required to reto make report of the amount they find due to either party; and the port proceedings, court may require them to report their decision in admitting or rejecting any witness, in allowing or overruling any question to a witness, or the answer thereto, and all other proceedings by them, together with the testimony before them, and their reasons for allowing or disallowing any claim of either party.

&c.

12 Wend., 291.

Entry upon the record, and judg

7 Wend., 178.

SEC. 11. An entry of such reference shall be made upon the rement on report. cord, and day shall be given to the parties from time to time, until the referees report, or they be thereof discharged. If the report of the referees be confirmed by the court, judgment shall be entered thereon, in the same manner, and with the like effect, as upon the verdict of a jury.

When court may appoint auditors. 6 Pick., 193.

11 do. 359.

Auditors to be sworn, and to give notice of meeting, &c.

All the auditors must meet, but

ty valid, &c.

SEC. 12. Whenever a cause is at issue, and it shall appear that the trial will require the investigation of accounts, or the examination of vouchers, the court in which such issue is to be tried, may appoint one or more auditors to hear the parties, and examine their vouchers and evidence, and to state the account and make report thereof to such court.

SEC. 13. Before proceeding to hear any evidence in the cause, the auditors shall be severally sworn, in the same manner as referees are herein required to be sworn, and they shall in like manner give notice to the parties of the time and place appointed for their meeting, and they may adjourn from time to time, as may be necessary.

SEC. 14. All the auditors must meet and hear the cause, but a report of a majority of them shall be valid, and such report may be report of majori- compelled by the court in like manner as in the case of referees. SEC. 15. Witnesses may be summoned and compelled to attend be compelled to and testify before the auditors, in the same manner as before refeattend, &c. rees; and either of the auditors may administer the necessary oath to such witnesses.

Witnesses may

Court may dis

SEC. 16. The court may, for any sufficient reason, discharge the charge auditors auditors and appoint others, and they may also re-commit the report for revision or further examinations (examination) to the same, or to other auditors.

and recommit
report.
4 Pick., 283.

Report may be used as evidence on trial.

SEC. 17. The report of the auditors, if there be no legal objection to it, may be used by either party as evidence on the trial before the

TITLE XXII.

jury, but it may be impeached and disproved by other evidence pro- CHAPTER 101. duced on the trial by either party.

erees.

SEC. 18. The court shall award a reasonable compensation to the Compensation of auditors or referees, as the case may be, which shall be paid by the auditors and refplaintiff, and shall be taxed in his bill of costs, if he shall be entitled to costs in the suit.

CHAPTER 101.

OF DEATH, MARRIAGE, OR OTHER DISABILITY OCCURRING AFTER THE
COMMENCEMENT OF THE SUIT.

die, suit may be against execu.

SECTION 1. In all personal actions, the cause of which does by If sole plaintiff law survive, if there is only one plaintiff, or one defendant, and the or defendant in sole plaintiff or defendant shall die after the commencement of the personal action action, and before the final judgment, the action may proceed and be prosecuted by or against the surviving party, and by or against the executor or administrator of the deceased party, in the manner provided in this chapter.

prosecuted by or

tor, &c.
N

4 N. Hamp. R.,

ting of suit, &c.

SEC. 2. The death of the party shall be suggested on the record, Suggestion on reand his executor or administrator may thereupon appear and take cord, and condue. upon himself the prosecution or defence of the suit, as the case may be; and it shall be thenceforth conducted in the same manner as if it had been originally commenced by or against the same executor or administrator.

or administrator.

SEC. 3. If the executor or administrator does not voluntarily ap- Order for appearpear on or before the first day of the next term after the death of ance of executor such party, the surviving party may have an order of course, that the executor or administrator appear and take upon himself the prosecution or defence of the suit, within thirty days after service of notice of such order.

judgment to be

SEC. 4. If the executor or administrator shall not appear within If executor, &c., the time limited by such order, or within such further time as the do not appear, court shall allow for that purpose, he shall be non-suited or defaulted, rendered against and judgment shall be rendered against him in his representative ca- him. pacity, and shall be evidence of a debt established to be paid in the course of administration.

8 Greenl, 128.

SEC. 5. In addition to the actions which survive by the common What actions law, the following shall also survive, that is to say: actions of reple- survive. vin and trover, actions for assault and battery, or false imprisonment, 3 Mass., 228. or for goods taken and carried away, and actions for damage done to 4 do. 480. real or personal estate.

er only the actu

SEC. 6. When any action mentioned in the preceding section, shall When plaintiff be prosecuted to judgment against the executor or administrator, the entitled to recov plaintiff shall be entitled to recover only for the value of the goods al damages sustaken, or for the damage actually sustained, without any vindictive or exemplary damages, or damages for any alleged outrage to the feelings of the injured party.

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tained, &c.
4 Pick., 218.

SEC. 7. When the executor or administrator of a trustee, carrier or When goods, &c, other person who claimed only a special property in any goods, to recovered by ex hold them for the use and benefit of another, shall recover such

ecutor, &c., not assets.

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