LAWS OF IOWA TERRITORY.

ABATEMENT.

AN ACT relative to pleas in abatement, and the abatement of suits by the death of parties.

the party file an

SEC. 1. Be it enacted by the Council and House of Pleas in abateRepresentatives of the Territory of Iowa, That no ment not to be plea in abatement, other than a plea to the jurisdic- received unless tion of the court, or where the truth of such plea affidavit. appears of record, shall be admitted or received, unless the party offering the same file an affidavit of the truth thereof. And where a plea in abatement If plea be inshall upon argument be determined insufficient, the sufficient, plaintiff shall receive full costs to the time of over- plaintiff to ruling such plea.

have costs.

SEC. 2. When one or more of the parties of a com- Companies or pany or association of individuals shall be sued, and associations. the person or persons so sued shall plead in abatement that all the parties were not joined in the suit,

such suit for that cause shall not abate, if the plaintiff Case in which or plaintiffs sue out a summons against the other suit shall not partners named in the plea of abatement, and on the abate. return of the summons may insert in the declaration the names of the other partners named in such plea, and proceed in all respects thereafter as though such Plaintiff how other partners named in said plea had been included to proceed. in the original suit. And if such partners named in said plea cannot be found, the plaintiff or plaintiffs, ceedings by upon the return of the said summons, may suggest plaintiff, if parin his declaration the names of those not found, and the plea cannot proceed as in other cases where service is only made be found. on part of the defendants. And no other plea in abatement for non-joinder shall be allowed in the

case.

Further pro

ties named in

No other plea for non-joinder allowed.

count of mar

SEC. 3. No action commenced by a single woman, Suit by a single who intermarries during the pendency thereof, shall woman not to abate on account of such marriage: Provided, the abate on achusband shall appear in court, and cause such marriage. riage to be suggested on the record, and the suit may Proviso. then proceed in the same manner as if it had been commenced after such marriage.

SEC. 4. When any action shall be pending in any of Suit not to the courts of this Territory, and the plaintiff, before abate by death final judgment, shall die, the same shall not abate, if of plaintiff.

how to proceed.

Suit not to

Defendant's

ed.

Executor, &c. it might originally have been prosecuted by his executor or administrator; and in such cases the executor or administrator may suggest such death on the record, and enter his, her, or their names on the suit, abate by death and prosecute the same. And if the defendant, while of defendant. the action shall be pending in court, and before final judgment, shall die, the same shall not abate if it might originally have been prosecuted against the executor or administrator. And his executor or executor, &c. administrator may suggest such death on the record, to be summon- and have a summons against the executor or administrator of such deceased defendant requiring them Whether such to appear and defend the action. If the said executor or administrator of such deceased defendant shall appear and make him, her, or themselves defendants, or if they shall not appear and make themselves defendants (such summons being served on either the executor or administrator ten days before the sitting of the court) the action shall in either case In a suit against proceed to final judgment according to law. an administra- when a suit shall be commenced against an admintor, if his let-istrator, and before final judgment his letters of administration shall be revoked, and letters of adminvoked, plaintiff istration be granted to another person, the suit shall how to proceed. not abate, but the plaintiff shall suggest such fact upon record, and after summons shall be served upon the last administrator, the suit shall proceed to final judgment as in other cases under this act.

executor &c. appear or not, action to proceed to final judgment.

ters of adminis

tration be re

If one or more

or defendants

die, and the cause of action survive,

SEC. 5. In any action pending before any court, if of the plaintiffs there be two or more plaintiffs or defendants, and one or more of them die before final judgment, if the cause of action survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or remaining par- defendants, the writ or action shall not abate, but ties may prose- such death being suggested on the record, the action cute or defend. shall proceed.

3d, 4th, & 5th

SEC. 6. The third, fourth, and fifth sections of this. sections appli- act shall be applicable to all appeals and writs of

cable to appeals &c.

Abbreviations not to preju

dice or abate any writ or process.

Repealing clause.

error.

SEC. 7. No writ or process whatsoever shall abate or be in anywise prejudiced by the use of abbreviations commonly used in the English language, or by the use of figures for numbers as they have been heretofore and are now used.

SEC. 8. The act entitled "An act to prevent the abatement of actions in certain cases,' approved October 12, 1829, is hereby repealed.

APPROVED December 5, 1838.

AMENDMENTS AND JEOFAILS.

AN ACT Concerning Amendments and Jeofails.

SEC. 1. Be it enacted by the Council and House of Representatives of the Territory of Iowa, That by the misprision of a clerk or other officer of the court in Misprision of any place wheresoever it be, no record or process clerk &c. not shall be annulled or discontinued by mistaking in to annul prowriting one syllable or one letter too much or too cess or record. little, but as soon as the thing is perceived by challenge of the party, or in other manner, it shall be immediately amended in due form, without giving advantage to the party that challenges the same because of such misprision; and the court, before whom Record and such plea or record is made, or shall be depending, process may be as well by way of adjournment as by appeal or other- amended bewise, shall have power and authority to amend such record and process as aforesaid, as well after judgment in any suit, plea, record, or process given, as before judgment, as long as the same record and process is before them.

fore or after judgment.

and amend

SEC. 2. The court in which any record, plea, pro- Power of court cess, declaration, count, warrant of attorney, writ, or to examine repannel, is or may be, while the same remains before cord, plea, &c. them, shall have power to examine such records, misprision of processes, counts, pleas, warrants of attorney, decla- clerks. rations, writs, pannels, and returns, by them and their clerks, and amend (in affirmance of judgments of such records and processes) all that which, to them in their discretion, seemeth to be misprision of the clerks therein, so that by such misprision of the clerks

tive.

no judgment shall be reversed or annulled. And if Declaration, any declaration, process, record, count, plea, warrant process &c. of attorney, writ, pannel, or return, be certified defect- certified defecive, otherwise than according to the writing which thereof remaineth in the offices, courts, or places, from whence they are certified, the parties, in affirmance of the judgments of such records and processes, shall have advantage to allege that the same writing is variant from the said certificates; and that being found and certified, the same variance shall be, by the Variance to be said court, reformed and amended according to the reformed by the first writing.

court.

SEC. 3. The courts before whom any misprision or Court may cordefault is or shall be found in any record or process rect misprision

others,

of sheriff and which, or hereafter, shall be depending before them, as well by way of appeal or error, as otherwise, or in the returns (the same made by sheriffs, coroners, or any other) by misprision of the clerk of any of the said courts, or by misprision of the sheriffs, deputy sheriffs, or coroners, or their clerks or other officers, clerks or other ministers. whatsoever, shall have power to amend such defaults or misprisions according to their discretion, and by examination thereof by the said courts to be taken where they shall think needful; and all such amendments may be made as well after a judgment given upon verdict, confession, nihil dicit, or non sum informatus, as upon matter of law pleaded.

As well after judgment, as on matter of law pleaded.

Decree, record, or judgment not to be re

versed for era

SEC. 4. For errors assigned, or to be assigned, in any record, process, warrant of attorney, writ, original or judicial, pannel, or return, for that in any sures or inter- places of the same there be erasures or interlineations, or that there be any addition, subtraction, or diminution of words, letters, or titles, or parts of letters, found in any such record, process, warrant of attorney, writ, pannel, or return, no judgment, record, or decree, shall be reversed or annulled.

lineations.

New entries by clerks in no

pleas, &c.

SEC. 5. Record or process real, personal, or mixed, whereof judgment or decree shall be given and enwise to impair rolled, or things touching such pleas, shall in nowise be impaired or amended by new entering of the clerks, either by record of things certified in no term subsequent to that in which such judgment or decree is or shall be given and enrolled.

After verdict,

jeofail or other

ligence.

SEC. 6. If any issue hath been or shall be tried by judgment not any court or jury, and be found for either party, in to be stayed by any court of record, then the court, by whom judgdefault or negment ought to be given, shall proceed and give judgment in the same, any mispleading, lack of color, insufficient pleading, or jeofail, or any miscontinuance or discontinuance, misconceiving of process, misjoining of the issue, lack of warrant of attorney, or any other default or negligence of any of the parties, counsellors, or attorneys to the contrary notSuch judgment withstanding; and the said judgments thereof, so to be had and given, shall stand in full strength and force to all intents and purposes according to the said verdict or finding, without any undoing the same by appeal, writ of error, or false judgment, in like form as though no such default or negligence had ever been had or committed.

to be valid.

for lack of form

SEC. 7. If a verdict of a court or jury shall hereafter After verdict, be given for either party in any court of record, the judgment not judgment thereupon shall not be stayed or reversed to be reversed by any default of form, or lack of form in any writ, &c. original or judicial, count, declaration, plaint, bill, suit, or demand, for want of any writ, or by reason of any imperfect or insufficient return of any sheriff or other officer, or for want of warrant of attorney, or by reason of any manner of default in process, upon or after any aid-prayer, or voucher; nor shall any such record or judgment after verdict, to be given hereafter, be reversed for any of the defects or causes aforesaid.

in form, or lack

of averment,

SEC. 8. If any verdict be rendered by the court or or by reason jury for either party in any court of record, the judg- of any variance ment thereupon shall not be stayed or reversed by reason of variance, in form only, between the original writ or process and the declaration, petition, or demand, or for lack of any averment of any life or lives of any person, so as upon examination the said person be found to be in life, or by reason that any of the persons in whose favor the verdict is rendered, is an infant and appeared by attorney.

for misnomer, error in the

tions, aver

SEC. 9. If any judgment shall hereafter be given Or for default by a court or jury for either party in a court of rec- in form or enord, judgment thereon shall not be stayed or reversed tering pledges, for any default in form, or lack of form, as because the name of the sheriff is not returned upon the original sum or time, writ or process, or for default of entering pledges or for want of upon any petition or declaration, or for default of certain allegaalleging the bringing into court any bond, bill, in- ments, and endenture, or other deed or writing, mentioned in the tries. declaration or other pleading, for default of allegation of bringing into court letters testamentary or of administration, or by reason of the omission of the words "with force and arms," or "against the peace," or for or by reason of mistaking the christian or surname of the plaintiff or defendant, demandant or tenant, sum or sums of money, day, month, or year, by the clerk, in any bill, petition, declaration, or pleading, when the right name, sum, day, month, or year, in any writ, record, or proceeding, or on the same record where the mistake is committed, is or are once correctly alleged, whereunto the party might have demurred and shown the same for cause, nor for the want of the averment or words, "and this he is ready to verify," or "and this he is ready to verify by the record," or for not alleging "as appears by the