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defeazance, yet it shall and may nevertheless be pleaded in bar of such action, and shall be as effectual a bar thereof as if the money had been paid at the day and place, according to the condition or defeazance, and had been so pleaded.

Sec. 8. And be it further enacted, That when an action plaintiff to shall be brought to recover a debt due on any book ac- annex his count, the plaintiff shall annex to his declaration, on fil- account ing the same, an account of particulars; and the defend- ation. ant in such case, and also in all actions on an account stated by the parties, a quantum meruit, quantum valebat, or for goods sold, or services done at an agreed price, may plead the general issue, and may file any account he and de. hath in the clerk's office, at the time of filing his said fendant to

his plea. plea ; and the court or jury who shall assess the damages in such case, shall determine the balance due to either party, and the party in whose favor the balance shall be found, shall recover judgment therefor, together with his costs, and shall have execution accordingly.

Sec. 9. And be it further enacted, That whenever the Courts supreme judicial court or courts of common pleas shall shall offset

judgment. at the same term render final judgment in two or more " causes in which the parties shall be reversed, and shall sue and be sued in the same right and capacity, such court shall offset the same judgments, and issue execution for the balance in favor of the party to whom it shall be due.

Sec. 10. And be it further enacted, That if any officer Sheriff shall at the same time have two or more executions in shall offset personal actions directed to him to serve, in which the tions. parties shall be reversed, and shall sue and be sued in the same right and capacity, he shall offset the same, and levy and collect the balance only, from the party from whom it shall be due.

Sec. 1]. And be it further enacted, That in all actions In action brought to recover the forfeiture annexed to any articles on bond, of agreement, covenant, contract, or charter-party, bond, ges to be obligation or other specialty, when the forfeiture, breach assessed or non-performance shall be found by jury, by the default to equity. or the confession of the defendant, or upon demurrer, the court before whom the action shall be pending, shall render judgment therein for so much as shall be due according to equity and good conscience, to be ascertained by the court, with or without the intervention of a jury.


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In actions Sec. 12. And be it further enacted, That in all actions upon bond, on any bond, or for any penal sum for non-performance &c. plaintiff may of covenants or agreements in any indenture, deed or assign sev- writing, the plaintiff or plaintiffs may assign as many breaches. breaches as he or they shall think fit; and the jury upon

the trial of such action or actions, shall and may assess damages for such of the breaches as the plaintiff shall

prove to have been made, and on such verdict the court Also

shall render judgment accordingly; and where judgment where judgment on a demurrer, or by default, shall be given for the plainshall be ti bom

tiff, he may assign as many breaches of the covenants or given on demurrer, agreements as he shall think fit, and the court may, by

themselves, or through the intervention of a jury, assess the damages the plaintiff hath sustained, and execution

shall issue for so much; and such judgment shall remain Scire faci

i as a security for the plaintiff, his executors and adminissue on the trators, for any other breaches which may afterwards

happen; and he or they may have a writ of scire facias against the defendant, and assign any other breach or breaches, and damages shall be assessed and execution

issued as aforesaid. Court may Sec. 13. And be it further enacted, That in all cases in the assesses supreme judicial court and courts of common pleas, when

judgment shall be rendered on default, discontinuance, submission or demurrer, damages shall be assessed by the court with or without the intervention of a jury, at the

discretion of such court. View may Sec. 14. And be it further enacted, That in all cases rebe had.

lating to the realty, either party may have a jury to view

the place in question, if the court shall be of opinion that Proviso. such view is necessary to the justice of the trial; provid

ed the party moving therefor shall advance such reasonable sum of money to the jury as the court shall order, which shall be taxed against the adverse party, if he who

advances the same shall prevail in the suit. Parties in Sec. 15. And be it further enacted, That the supreme jucourt may dicial court and courts of common pleas shall have pow

er to permit the parties in any suit pending in said courts respectively, to enter into a rule of such court to refer such suit to the decision of one or more referees, to be agreed upon by the said parties, and also to refer, in the same rule, any other demands that may subsist between

them, either jointly or severally, generally or specially. Also other And the said courts shall also have power to permit any persons. persons, who may have any dispute subsisting between


enter a role.

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them, respecting any real or personal estate, including all debts, dues, demands and causes of action of every kind, to enter into a rule of such court, to refer the same to the decision of referees as aforesaid, generally or specially. And the parties to any rule shall have power to agree upon the time and manner of making report, and of issuing Terms of execution on the judgment that may be rendered thereon, the rule. consistently with law; and every such agreement made.

Judgment in manner aforesaid, shall be conclusive upon the parties, on the reand the court shall render judgment upon the report of port. referees conformably thereto, and issue execution accordingly: Provided nevertheless, That the court may at any Proviso. time, in their discretion, on motion of either party, discharge the rule, or recommit the said rule and report to the same referees; but such rule shall remain in full force, until so discharged, and shall be continued from term to term until the report shall be made thereon: And Referees each referee before he proceeds to the business of the to be reference, shall take an oath or affirmation faithfully and impartially to hear and examine the cause, and make a true and just report, according to the best of his skill topis and understanding; which oath may be taken before any To admin,

ister oaths. judge of any court of record, or any justice of the peace; 1s and the referees aforesaid shall have power to administer oaths or affirmations to all witnesses, in any matter tried before them; and shall also have power to compel the at- And com. tendance of witnesses before them, in the same manner pel the at

tendance and by a similar process as courts of record are author- of witnessa ized to compel the attendance of witnesses. & Jaclises.

Sec. 16. And be it further enacted, That the parties to any Rule in suit that may be pending before any justice of the peace, justice's shall have a right to enter into a rule to refer the same, co and to include therein any other demands between them, not exceeding in the whole, on either side, the amount of twenty dollars, and in which the title to real estate shall not be concerned; and the justices shall have like power, and similar proceedings shall be had thereon, mutatis mutandis, as are given and prescribed in this act respecting rules that may be entered in the courts of common pleas. Sec. 17. And be it further enacted, That no summons, writ, n,

No procese declaration, return, process, judgment, or other proceed to be ing in civil causes, in any of the courts within this State, quashed


9 for want shall be abated, arrested, quashed or reversed, for any de- of forme. fect or want of form; but the said courts respectively shall proceed and give judgment according as the right of


what terms.


the cause and matter in law shall appear unto them, without regarding any imperfections, defects or want of form, in such writ, declaration, or other pleadings, return, pro

cess, judgment, or cause of proceeding whatsoever ; and May be the said courts respectively shall and may, by virtue of this amended.

act, from time to time, amend all and every such imperfections, defects and want of form, and may at any time,

except on a review, permit either of the parties to amend Upon

any defect in the process or pleadings, upon such condi. tions as the said courts respectively shall, in their discre

tion, and by their rules, prescribe. Partner Sec. 18. And be it further enacted, That if any writ or proomitted

cess shall be hereafter brought against any trading or man. may be made de- ufacturing company (not incorporated) and the name or

names of either of the parties shall be omitted therein, the said writ or process shall not be thereby abated; but in case the same is pleaded, a summons shall issue to the partner or partners thus omitted, which shall be served at least twenty days before trial, who may come in and de

fend in the same manner as though he, she or they had Judgment been originally made parties to the suit; and if the person against

or persons thus summoned, refuse or neglect to appear, his, him in

her or their names shall be inserted in the process by the court, and judgment (if the plaintiff recovers) shall be entered up against him, her or them, jointly with the other

partners. Several Sec. 19. And be it further enacted, That when several per

nts sons shall be made defendants in an action of trespass or in tres. pass, &c. ejectment, and the same shall be discontinued as to any those ac

one or more of said defendants, or if upon the trial thererecover of any one or more of them shall be acquitted by verdict,

or upon a demurrer, every defendant so acquitted shall have and recover his costs.

Sec. 20. And be it further enacted, That the plaintiff in any Plaintiff not to dis- cause shall not have a right to be nonsuit, or to discon

tinue the same in the supreme judicial court, after the after, &c. in the su- cause shall be submitted to the decision of the jury; but preme ju- the cause shall proceed, and the verdict of the jury shall court. be taken therein, whether the plaintiff shall appear or

not. Surviving Sec. 21. And be it further enacted, That if there shall in plaintiff any case be two or more plaintiffs or defendants, and one may pro.

de or more of them shall die, if the cause of action shall suragainst vive to the surviving plaintiff or plaintiffs, or against the surviving defendant, surviving defendant or defendants, the writ or action shall




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when to be

not be thereby abated, but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

Sec. 22. And be it further enacted, That the appellant Reasons of shall in all cases file his reasons of appeal in the clerk's appeal, office of the court appealed to, at least ten days before filed. the sitting of such court, and shall, at the time of entering his appeal, file in the clerk's office of the court appealed to, a certified copy of the whole case : Provided however, Provisó. That whenever any party who shall appeal to the court of common pleas, court of general sessions of the peace, or supreme judicial court, shall through mistake, accident or misfortune, omit to file his reasons of appeal, at the time prescribed as aforesaid, the said courts respectively, in their discretion, on sufficient cause being shewn therefor, may, on the first or second day of the term of the court appealed to, permit such party to file his reasons of appeal in court, on such terms as they shall prescribe.

Sec. 23. And be it further enacted, That if the appellant in On appeal, any case shall enter his appeal at the court appealed to,

W, to be tried. the cause shall be tried and decided in the same manner as if both parties had appealed; and if the appellant shall Appellee neglect to enter his appeal, as by law required, the ad- may file

complaint. verse party, in case he did not also appeal, may, at any time during the term, enter his complaint to the court appealed to, and obtain a confirmation of the former judgment, with interest, if damages were therein given, and additional costs.

Sec. 24. And be it further enacted, That if any party shall New trial obtain a new trial in any cause, by act or order of the general assembly, and shall neglect to enter such action when ac

stion shall for trial on the first or second day of the court at which such trial is to be had by such act or order, the adverse ed, &c. party may enter his complaint, and the said court shall thereupon affirm the last judgment rendered in said cause, with interest, if damages or debt were therein recovered, and additional costs.

Sec. 25. And be it further enacted, That if the plaintiff in Costs by any case shall file his or her declaration in the clerk's of me

be paid. fice of the court of common pleas, as by law provided, and shall afterwards withdraw or discontinue his or her suit, before the sitting of the court and after answer filed, the defendant in such case shall recover his cost; and in all other civil causes the party prevailing shall recover cost,


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