One or more of defendants may move ment, etc. cases where the plaintiff would have been entitled to his testimony against the other parties to such bill or note, had . the suit been brought in the form heretofore used. (4172.) SEC. 18. One or more of the defendants in any suit for judg- brought upon a bill or note pursuant to this chapter, may move for judgment as in 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. Judgment upon demurrer. What defects to be amended by on demurrer. (4173.) SEC. 19. When any demurrer shall be entered in any action, and issue be joined thereon, the Court shall proceed and give judgment according to 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. (4174.) SEC. 20. After issue shall be joined on any demurrer, Court after issue the Court shall amend every such defect or other imperfection in any process or pleading, in the last section mentioned, other than those which the party demurring shall specially express in his demurrer. Plea in abatement not to be proof of its truth. (4175.) SEC. 21. No plea in abatement, or other dilatory received without plea, which does not involve the merits of the action, shall be received by any Court, unless the party offering such plea shall prove the truth thereof by affidavit, or by some other evidence. No special plea in bar to be pleaded. What general is zue to consist of. matter fence. (4176.) SEC. 22. No special plea in bar shall be pleaded in any civil action hereinafter to be commenced; but all matters of defence to any such action, may be given in evidence under the general issue. (4177.) SEC. 23. In all civil actions hereafter to be commenced, the general issue shall consist of a demand by the defendant, of a trial of the matters set forth in the plaintiff's declaration. Notice of special (4178.) SEC. 24. To entitle a defendant to avail himself of any matter of defence, which, according to the practice as it has heretofore existed, was 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 defence. (4179.) SEC. 25. The Supreme Court may make such rules Rules in regard in relation to notice of matters intended to be given in made by Suevidence by either party, as shall be necessary to prevent surprise, and to afford opportunity for preparation for trial. to notice may be preme Court. and under what (4180.) SEC. 26. In the following cases, and under the In what cases, following circumstances, a defendant may set-off demands circumstances which he has against the plaintiff : demands may be set-off. 281. 1. It must be a demand arising upon judgment, or upon 3 Mich. Rep, 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 3 Gilman, 337. 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 promissory 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 Notice of set-off. When plaintiff to take nothing by when to have have been set-off against such plaintiff or such assignee, while the contract belonged to him; 9. If the action be upon a negotiable promissory 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 setoff 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. (4181.) SEC. 27. To entitle a defendant to a set-off, he must annex a notice thereof to his plea of the general issue. (4182.) SEC. 28. If the amount of the set-off duly established, his action, and be equal to the plaintiff's debt or demand, judgment shall be judgment for re-entered that the plaintiff take nothing by his action; if it be less than the plaintiff's debt or demand, the plaintiff shall have judgment for the residue only. sidue. When judgment for defendant, etc. Set-offs in suits by (4183.) SEC. 29. If there be found a balance due from the plaintiff in the action to the defendant, judgment shall be rendered for the defendant for the amount thereof; but no such judgment shall be rendered against the plaintiff, when the contract, which was the subject of the 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. (4184.) SEC. 30. In suits brought by executors and Adminis trators, demands existing against their testators or intestates, and belonging to the defendant 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. (4185.) SEC. 31. When a set-off is established in a suit evidence of debt brought by executors or Administrators, and a balance found due the defendant, the judgment shall be against them in their representative character, and shall be evidence of a debt established, to be paid in the course of administration. Judgment against established. order se veral solidated into (4186.) SECTION 1. Whenever several suits shall be pending When Court may in the same Court, by the same plaintiff against the same suits to be condefendant, for causes of action which may be joined, the Court one. in which the same shall be prosecuted may, in its discretion, if 9 Wend., 451. it shall appear expedient, order the several suits to be consolidated into one action. consolidate sev (4187.) SEC. 2. When several suits shall be commenced Plaintiff may against joint and several debtors, in the same Court, the plain-eral suits against tiff may, in any stage of the proceedings, consolidate them into debtors. one action. joint and several order cause to be (4188.) SEC. 3. When a cause shall be at issue in any Court when Court may of Record, and it shall appear that the trial of the same will referred. require the examination of a long account, on either side, the Court may, upon the consent of 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. Referees, how se- Referees to proceed with dili gence, hearing; a d journments. 1 Wend., 4. 6 do. 552. 7 do. 534. (4189.) SEC. 4. If the parties agree on three persons as referees, such persons shall be appointed by the Court; if they disagree, each party 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. (4190.) SEC. 5. The referees appointed pursuant to the foregoing provisions, shall proceed with diligence to hear and determine the matters in controversy. Time, etc., of (4191.) SEC. 6. They shall appoint a time and place for the hearing, and shall adjourn the same from time to time as may be necessary; and on the application of either party, and for good cause, they may postpone such hearing to a time not extending beyond the next term of the Court in which the suit is pending. 12 do. 199. Referees to be first sworn. Witnesses may be compelled to attend. Oath to Witnesses; All the Re and hear proofs, (4192.) 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. (4193.) SEC. 8. Witnessess may be compelled to appear before such referees, 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. (4194.) SEC. 9. Any one of the referees may administer the ferees must meet necessary oath to the witnesses produced before them for but majority examination. All the referees must meet together and hear all the proofs and allegations of the parties, but a report by any two of them shall be valid. may report. compelled to re Referees may be (4195.) SEC. 10. The referees may be compelled, by the port, and may be order of the Court in which the cause is pending, to proceed required to re etc. port proceedings, to the hearing thereof, and to make report of the amount they 12 Wend., 291. find due to either party; and the Court may require them to Entry upon the record, and judg 7 Wend., 178. 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. (4196.) SEC. 11. An entry of such reference shall be made ment on report. upon the record, 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 |