Death of coplaintiff or codefendant shall not abate the ac tion. 1836. 1848. tort survive. turnable, and returned, the action shall proceed to final issue according to law.* SECT. 96. In any action pending before a court, if 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 defendants, the action shall not abate, but such death being suggested on the record, the action shall proceed. SECT. 97. No action to recover damages for injury to the person, What actions in reputation or property of the plaintiff, or to the person of his wife, child or servant, shall abate by reason of his death, but his executor or administrator may enter and prosecute the same in the same manner as is provided by law in other actions; and if there be two or more plaintiffs, and one or more of them shall die before final judgment, such action shall not abate, but such death being suggested on the record, the action shall proceed. 1848. What rights of action in tort survive. Actions of disseisin not to abate by reason of death of plaintiff. Limitation of death of defendant. SECT. 98. Actions for injury to the person, whether the same do or do not result in death, actions for injury to the reputation, actions for injury to the property, real or personal, and actions to recover damages for injury to the person of the wife, child or servant of any deceased person, shall survive to his executor or administrator; provided the cause of action shall not have arisen more than one year before the death of the deceased.† SECT. 99. No action of disseisin shall abate by reason of the death of the plaintiff, but the executor or administrator may enter and prosecute the action in the same manner as is by law provided in regard to other actions, and recover judgment, if the action be sustained, for the benefit of those entitled to the estate. SECT. 100. When the defendant in any action of disseisin pendnew action after ing in any court, shall die, and such action shall be thereby abated, and the plaintiff shall bring a new action for the recovery of the same matter, to which new action the statute of limitations shall be pleaded or offered in evidence, the time which may have elapsed from the commencement of the first action to the abatement of the same, as aforesaid, shall be excluded in the computation of the time limited by law for the commencement of such new action. Successor of public officer may enter. Process not to. SECT. 101. The successor of any public officer, or of the trustee of any estate in settlement, in whose name as such officer or trustee a suit may be pending, may enter and prosecute the same in his own name in the same manner as his predecessor might have done had he continued in office. 1854. SECT. 102. No process in any civil action or in any proceeding abate on account in equity shall be abated, by any court, on account of any amendof amendment ment or alteration thereof between the signing of such process and ing and service. the service of the same. between sign 1865. Process shall SECT. 103. Any process in any civil action, or in any proceeding in equity which shall be served by any officer authorized to serve served by an of the same, before he shall have given the bond required by law, shall abate when ficer who has not given bond. abate. *When administrator of plaintiff may enter. Russell v. Hosmer, 8 C. R. 229. Booth v. Northrop, 27 C. R. 325. Scire facias may be waived. Smith v. Allen, 5 Day, 337. +An action may be brought by an administrator for injury to his intestate. Soule v. N.Y. & N. H. R. R. Co., 24 C. R. 575. Damages for pain suffered may be assessed where death is not instantaneous. Murphy v. N. Y. & N. H. R. R. Co., 29 C. R. 496. Various points decided. Murphy v. N. Y. & N. H. R. R. Co., 30 C. R. 184; Conn. Mutual Life Ins. Co. v. N. Y. & N. H. R. R. Co., 25 C. R. 265. When judge of adjoining probate district may enter. Smith v. Russell, 17 C. R. 105. CHAPTER VII. OF PLEADINGS. pleading. SECT. 104. The parties shall make their pleas and join issue ac- Courts may es cording to the rules and orders established by the court, and in case tablish rules of the plaintiff shall refuse to obey the order of the court in pleading, he shall be nonsuited; and in case the defendant will not make his plea or join issue, judgment may be rendered against him upon nihil dicit.* Form of general SECT. 105. In all actions at law the defendant may deny the 1848. truth of the plaintiff's declaration, in the following words, or in issue. words equivalent thereto, viz: "The defendant denies the truth of the matter contained in the plaintiff's declaration, and puts himself on the court (or jury, as the case may be) for trial;" under which general issue the plaintiff shall be bound to prove the material facts alleged in his declaration, except as limited in the next succeeding section.t not be proved SECT. 106. In all actions upon any written instrument or recog- Execution of nizance, claimed to have been executed or entered into by the de- contract need fendant, and which is described or recited in the declaration, the unless, &c. plaintiff shall not be required to prove the execution or delivery of such instrument or recognizance, unless the defendant at the time of pleading shall file notice in writing that he denies such execution or delivery. SECT. 107. Under such general issue the defendant may give What may be his title in evidence, or any special matter of defense and justifica- given in evidence tion, according to the nature of the action; but the defendant shall not so give in evidence any matter in avoidance, or any defense consistent with the truth of the material allegations in the declaration, unless at the time of pleading he shall file notice thereof in writing, stating in general terms, without unnecessary prolixity, and in a manner intelligible to a person of ordinary understanding, the true ground and substance of the defense relied upon.‡ Defendant may SECT. 108. The defendant in any suit may plead, by special leave of the court, as many several matters by distinct pleas as he shall plead double. think necessary for his defense. If any such matter or plea shall, upon demurrer joined, be deemed insufficient, costs may be given to the plaintiff at the discretion of the court, though the other issue or issues may be decided in favor of the defendant. If a verdict shall be found on any issue joined in the cause in favor of the plaintiff, When plaintiff costs shall be allowed to him, though on some other issue the de- entitled to cost. fendant should be entitled to judgment, unless the court that tried such issue shall be of opinion that the defendant had probable cause to plead such matter which has been so found against him; and in * General rules of pleading, 18 C. R. 561. + Plea of general issue is a waiver of all objection to the person of plaintiff. Brown e. Illius, 29 C. R. 84. Usury may be given in evidence under the general issue, with notice. Culver v.. Robinson, 3 Day, 68; Holton v. Button, 4 C. R. 487. Under general issue in slander, the truth cannot be given in evidence in mitigation of damages, without notice. What is denial, and what avoidance. Mahaiwe Bank v. Douglass, 31 C. R. 170. Effect of general issue and notice. Hawley v. Middlebrook, 28 C. R. 527; Bailey v. Hyde, 8 C. R. 463; Treat v. Browning, 4 C. R. 408; Bennett v. Hyde, 6 C. R. 24. Notice insufficient for generality, when. Holton v. Button, 4 C. R. 437. In replevin, plaintiff may plead double Set off. 1865. Justice of the entertain a plea peace shall not of defendant, claiming more than fifty dollars. 1852. 1853. case. actions of replevin, where the defendant makes avowry, the plaintiff may plead double, in the same manner as the defendant in other cases, and shall be governed by the same principles.* SECT. 109. In all actions brought for the recovery of a debt, if there shall be mutual debts between the plaintiff and the defendant, or a part of the defendants, if there be more than one, one debt may be set off against the other, and such matter may be given in evidence under the general issue, with notice in writing, given at the time of filing such plea, of the debt intended to be set off, and on what account it has become due, or it may be pleaded in bar, and the plaintiff may, with leave of the court, reply double to such plea of set off. No debt claimed by assignment shall be set off, unless the plaintiff had notice, at the commencement of the action, that such debt was due to the defendant. If it shall appear upon the trial that the plaintiff is indebted to the defendant, the court shall give judgment for the defendant to recover the balance of the plaintiff with his costs; but no judgment shall be given against the plaintiff to recover the balance of a debt due to only a part of the defendants, and no justice of the peace shall give judgment in favor of the defendant for any balance which shall exceed fifty dollars.t SECT. 110. No justice of the peace shall receive or entertain any plea or notice in which the defendant shall claim a balance for a sum over fifty dollars; but if the defendant in any action, pending before a justice of the peace, shall desire to file such plea or notice, he may appeal said action to the superior court, in which court he may file such plea and notice, and said court may render judgment for the defendant to recover of the plaintiff such balance as it shall find his due.t SECT. 111. In all actions of trespass other than actions of assault Set off in actions and battery, and other than such as are brought for damages for the of trespass and taking of property which is by law exempt from being taken on execution, and in all actions of trespass on the case, in which judgment shall be rendered in favor of the plaintiff, the defendant or defendants in such action, may set off against such judgment any debt or debts which he or they may hold either jointly or severally against the plaintiff; which said right of set off, shall not be defeated or in any way affected by any assignment of such *Double pleading, when not allowable. Lamb. Beebe, 10 C. R. 322. + What debts may be set off. Hosmer v. Merriam, 1 Root, 427; Palmer v. Green, 6 C. R. 14; Pitkin v. Pitkin, 8 C. R. 325; Starkey v. Peters, 18 C. R. 181. When set off may be allowed. Vermont Bank v. Porter, 5 Day, 316; Nichols v. Alsop, 6 C. R. 477; Robinson v. Lyman, 10 C. R. 30; Gould v. Stanton, 17 C. R. 377; Adams v. Leavens, 20 C. R. 73; Rowan v. Sharp's Rifle Manufacturing Co., 29 C. R. 1, 282. When not allowed. Cobb v. Haydock, 4 Day, 472; Gunn v. Scovil, 5 Day, 118; Rumrell v. Huntington, 5 Day, 163; Gaylord v. Couch, 5 Day, 223; Francis v. Rand, 7 C. R. 221; Savings Bank v. Bates, 8 C. R. 505; Philadelphia Loan Co. v. Towner, 18 C. R. 249; Benjamin e. Benjamin, 17 C. R. 110; Ripley v. Bull, 19 C. R. 53; Adams v. Leavens, 20 C. R. 73; Eastern Bank v. Capron, 22 C. R. 639; Bunnell v. Butler, 28 C. R. 65. What is a good replication to a plea of set off. Alsop v. Nichols, 9 C. R. 357. Defendant cannot set off debt jointly due from plaintiff and another person. Atkins v. Churchill, 19 C. R. 394. Nor against a debt due from him for services of plaintiffs' wife. Whiting v. Beckwith, 81 C. R. 596. Mutual accounts, how applied. Sanford v. Clark, 29 C. R. 457. Defendant should ask in his plea for judgment for balance. Finch v. Ives, 28 C. R. 115. Whether on appeal he could recover over fifty dollars, quere. Same. Damage may be set off against a debt pro tanto. Bulkley v. Welch, 31 C. R. 339. A stockholder and director in a corporation may set off his claim against such corporation. Pondville Co. v. Clark, 25 C. R. 97. Whether before this section superior court could render judgment for the defendant for more than the justice could have done, quere. Finch v. Ives, 28 C. R. 115. judgment by the plaintiff, but such assignment shall be taken subject to such right of set off; but no debt or debts which the defendant or defendants shall have acquired, by purchase or assignment after the accruing of the cause of action, upon which such judgment shall be rendered, shall be allowed as a set off under this act. plaintiff not to be has been institu SECT. 112. In all such cases, the defendant or defendants shall Defendant may file bill in equity have the right of filing a bill in equity, in the court where such for set off. judgment shall be rendered, within twenty-four hours after final judgment and before the rising of the court, praying for such set off; and if such debt or debts so held by the defendant or defendants, are admitted by the plaintiff, or are evidenced by judgment, said court shall thereupon proceed forthwith to make such set off; but if the debt or debts so held by the defendant or defendants, and Debts denied by claimed to be set off, are denied by the plaintiff, such set off shall set off unless suit not be allowed, unless the defendant or defendants shall have, pre- ted. vious to the rendition of the judgment in favor of the plaintiff, instituted either in law or equity, a suit or suits upon such debt or debts; and in case such suit or suits shall, at the time of the rendition of such judgment, be pending in any of the courts of this state, the court, rendering such judgment, shall order the stay of execution thereon, until the final termination of such suit or suits; and if upon such final termination thereof, the defendant or defendants shall recover judgment therein, such judgment or judgments shall be set off against the judgment so as aforesaid recovered by the plaintiff; but no right of set off shall be allowed in cases where the defendant has by law the right of set off, on the trial of the case. dant to allow SECT. 113. In all actions brought on any contract, or for the re- 1848. covery of damages merely, the defendant may file with the clerk of Offer by defenthe court to which the action is returnable, or if returnable to a plaintiff to take justice of the peace, with such justice of the peace, a written notice, judgment. signed by himself or by his attorney, directed to the plaintiff or his attorney, offering to allow the plaintiff to take judgment for a certain sum, to be named in said notice.* SECT. 114. In actions before the superior court, the plaintiff, upon Acceptance of notice given him by the defendant of the filing of such notice, such offer by may, plaintiff. within ten days thereafter, file with the clerk of the court, a written notice, signed by himself or his attorney, that he accepts said offer; and in actions before justices of the peace, the plaintiff may file such notice of acceptance within forty-eight hours after such notice of such offer; and such notice of acceptance being filed, the court before whom the action is pending, shall render judgment against Judgment to be the defendant, as upon default, for the sum so named as aforesaid, rendered as and for the cost which shall have accrued at the time of the defendant's giving the plaintiff notice of said offer, including the court, clerk, and attorney fee, as upon default, and the actual travel and attendance of the plaintiff at court. upon default. SECT. 115. The trial of an action shall in no case be postponed, Trial not to be because the period within which the plaintiff may accept such offer postponed. shall not have expired, except at the discretion of the court. the offer to be SECT. 116. If the plaintiff shall not, within said time and before If not accepted, the commencement of the trial, file his notice of acceptance, the deemed withoffer of the defendant shall be deemed to be withdrawn, and shall drawn. not be given in evidence on the trial; and the plaintiff, unless he *This section does not apply to suits for foreclosure. Savings Bank, &c. v. Collins, 27 C. R. 142. 1843. In suits on 1865. bonds, &c., when How private corporations may declare and plead. 1822. shall recover a greater sum than that named in the offer of the defendant, shall recover no cost accruing after notice of such offer being filed as aforesaid shall have been given him, but shall pay to the defendant his taxable costs accruing after notice of said offer. SECT. 117. Whenever in any action brought upon any administration bond, or other bond with conditions, or when in any action at law, by reason of a plea of set off, or other special plea therein, it shall become necessary to adjust and settle any matter of account proper to be heard and decided by auditors, the court before which such action shall be pending, except when the same shall be pending before a justice of the peace, may refer such matter of account to one or more auditors, appointed by said court, to be by such auditors heard and decided in such manner as said court shall order and direct; and in case any other issue shall be joined in such action, the same shall be heard and decided as in other cases. SECT. 118. All corporations created by private acts, in suits where their corporate acts are concerned, may declare and plead in the same manner as if created by public acts.* SECT. 119. Whenever the defendant in any suit on a bond, note, In suits on choses or other chose in action not negotiable, shall plead or give in eviin action assign dence the discharge, admission, or other act of the plaintiff, or any ed, plaintiff's discharge, &c., not payment made to him, or any transaction whatsoever between the available. 1822. tional contracts, defendant may plaintiff and defendant, the plaintiff may reply or prove, as the case may require, an assignment of such chose in action, and notice thereof given to the defendant; and on the same being made to appear, such discharge, admission, payment, or other transaction, shall be no otherwise available in such suit in favor of the defendant than the same would or ought to be in a court of equity.t SECT. 120. In any action on any note, bond, or other contract, to When, in condi- which there is a condition annexed, which condition and any breach or breaches thereof are not set out in the plaintiff's declaration, if rejoin double. the defendant, having prayed oyer of and set out such condition, pleads performance thereof, and the plaintiff replies thereto, setting forth any breach or breaches of such condition, the defendant may, with leave of the court, rejoin as many several matters by distinct rejoinders as he might have pleaded had such condition and breach or breaches thereof been set forth in the declaration.‡ How to declare. Central Manufacturing Co. v. Hartshorne, 3 C. R. 199; Goshen and Sharon Turnpike Co. v. Sears, 7 C. R. 86. + Object of this statute. Lyon v. Summers, 7 C. R. 399. Plaintiff on record a competent witness for defendant. Johnson v. Blackman, 11 C. R. 342. Maker a competent witness for payee, when. Fitch v. Boardman, 12 C. R. 345. Admissions of nominal plaintiff, how far admissible. Bulkley v. Landon, 8 C. R. 76; Plant v. McEwen, 4 C. R. 544; Scripture v. Newcomb, 16 C. R, 588.. Real plaintiff in ejectment is within equity of the statute, when. Porter v. Seeley, 13 C. R. 564. What assignment brings case within the statute. Replication to plea of discharge sufficient, when. Chestnut Hill Reservoir Co. v. Chestnut Hill Reservoir Co. v. Notice indispensable. Woodbridge v. Perkins, 3 Day, 364. Otherwise, when assignment of claim against a person in this state is made in another state, where notice is not by law required. Vanbuskirk v. Hartford Fire Insurance Co., 14 C. R. 583. Notice must be given within a reasonable time. Vanbuskirk v. Hartford Fire Insurance Co., 14 C. R. 141. Partner, without knowledge of his copartner, may assign debt due partnership. Mills v. Barber, 4 Day, 428. Husband's assignment of debt due wife will not be defeated by divorce, though debt not collected by assignee during the coverture. Tuttle v. Fowler, 22 C. R. 58. Assignee not protected by this section, when. Beecher v. Buckingham, 18 C. R. 110. Rejoinder a departure, when. Warren v. Powers, 5 C. R. 373. Authority of above case doubted. Edwards v. White, 12 C. R. 28. |