SECTION

SECTION

5. Power of courts to amend.

6 and 7. Proceedings in case a defendant partner not served.

8. Judgment, in case person summoned be not partner.

9. Effect of death of one of two or more plaintiffs or defendants, when suggested.

SECTION 1. All actions and appeals shall be entered in the supreme court and court of common pleas, on the first or second days of the term, and not afterwards, without special leave of the court. SEC. 2. Such leave may be granted in case the party whose duty it was to enter the action or appeal, was prevented from so doing by accident, mistake or misfortune.

SEC. 3. No action or appeal shall be deemed to be entered until the necessary papers are filed with, and the legal entry paid to the clerk.

SEC. 4. No summons, writ, declaration, return, process, judgment or other proceeding in civil causes, in any of the courts, shall be abated, arrested, quashed or reversed for any defect or want of form; but the courts respectively shall proceed and give judgment according as the right of 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, process, judgment or proceeding whatsoever.

SEC. 5. The courts, respectively, shall and may, from time to time, amend all and every such imperfections, defects and want of form, and may, at any time, permit either of the parties to amend any defect in the process or pleadings, upon such conditions as said courts, respectively, shall, in their discretion, or by general rule, prescribe.

SEC. 6. If any writ or process shall be brought against any trading or manufacturing company, not incorporated, which shall not be served on all the partners, or in which the name of any partner shall be omitted, the court on motion of any person, party thereto, may, and in case the same be pleaded shall, issue a summons to the partner omitted or not served, if within this state; said motion or plea being accompanied with an affidavit of the person making the same.

SEC. 7. Such omitted partner, being served with such summons twenty days at least before trial, shall be deemed to be a party to the suit, to all intents and purposes, and the writ and declaration shall be amended accordingly; and such partner may file his plea in said action at any time within said twenty days, or after that time, by leave of court, upon cause shown.

SEC. 8. If it shall be found that the party summoned was not a partner with the original defendants, the court shall render judgment against the party summoning him, in favor of such party for his costs, and in favor of the plaintiff against the original defendants for the damages or debts proved, with costs, unless such party summoned was made party on motion of the plaintiff; in which case judgment shall be rendered in favor of all the defendants for their costs against the plaintiff.

SEC. 9. If there shall in any case be two or more plaintiffs, or defendants, and one or more of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall 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.

SECTION 1. In all civil causes or suits at law originally brought in the supreme court or court of common pleas, except in a special court of common pleas, the plaintiff shall declare therein and file his declaration in the clerk's office of the court, twelve days before the sitting of the court, to which the writ in such cause or suit is returnable.

SEC. 2. The defendant shall file his plea or answer with the clerk, six days before the sitting of the court, or judgment shall pass against him as for a default.

SEC. 3. The court may, for cause shown, permit the defendant, on the first or second day of the term, to file his plea or answer in court, upon such terms and conditions as the court may prescribe.

SEC. 4. In case any action commenced by attachment of real estate or by foreign attachment shall not be answered, and the defendant shall not return into this state before the return day of the writ, the court shall continue the action one term, and the defendant shall have a right to answer the same six days previous to the term to which such action shall be continued, or may be permitted to answer the same on the first or second day of said term, in like manner as is provided in the next preceding section.

SEC. 5. It shall and may be lawful for any defendant in any action or suit, and for any plaintiff in replevin, in any court or before

any justice of the peace, with leave of such court or justice, to plead as many several matters thereto as he shall think necessary to his defence; and, with like leave, any plaintiff may reply as many several matters to the defendant's plea or pleas as he shall think necessary.

SEC. 6. When any action of debt shall be brought upon any bond without condition, or when an action of debt or writ of scire facias shall be brought on any judgment, if the defendant hath paid the money due upon such bond or judgment, such payment shall and may be pleaded in bar of such action or suit.

SEC. 7. When any action of debt shall be brought upon any bond which has a condition or defeasance to make void the same upon the payment of a less sum at a day or place certain, if the obligor, his heirs, executors or administrators, have, before the action brought, paid to the obligee, his executors or administrators, the principal and interest due by the defeasance or condition of such bond, though such payment was not made strictly according to the condition or defeasance, 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 defeasance, and had been so pleaded.

SEC. 8. The defendant in every action of debt, action of covenant, and in every action on the case grounded on an express or implied contract, in every action of trespass for breaking and entering the plaintiff's close, wherein the defendant shall, in his plea, disclaim all right, title and interest in and to the said close, and in every action of trespass or trespass on the case for any injury done to personal property, or of trover, that may be pending before any court or before any justice of the peace, shall have right to make and plead a tender; or may have leave to bring into court the money which he shall acknowledge to be due on such contract or sufficient amends for such trespass or injury, together with the plaintiff's lawful costs expended up to the time of the tender made or pleaded, or the bringing of the money into court; and the plaintiff shall have a right to take the same in full or in part satisfaction of the demand made in such suit.

SEC. 9. If the plaintiff, in either of the above cases, shall receive the same in part satisfaction only, and shall proceed further in the same suit, and the court or jury or justice of the peace, who shall finally assess the damages in such case, shall determine that no more was due on the demand made in such suit than was tendered or brought into court as aforesaid, at the time the same was tendered or brought in, the plaintiff shall not recover costs, but shall be obliged to pay the defendant his costs, after said tender or after the money was brought into court as aforesaid, as the case may be. SEC. 10. When an action shall be brought to recover a debt due on any book account, the plaintiff shall annex to his declaration on filing the same, an account of particulars.

SEC. 11. The defendant 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 for services done at an agreed price,

may plead the general issue and may file any account he hath with his said 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. 12. If any defendant shall have a demand on the plaintiff for any sum liquidated, or for one which may be ascertained by calculation, and which is founded on a judgment, or upon an account or upon any contract, whether express or implied, and whether with or without a seal, and which existed at the time of the commencement of the action and then belonged to the defendant in his own right, and for which he might maintain a suit in his own name, he may set off the same in any action founded upon any demand which could itself be set off.

SEC. 13. To entitle the defendant to a set-off, he shall file a statement of his demands in court, or in the clerk's office, at the term in which the action is entered, on or before the second day of said term, or within such further time as the court shall allow, and shall set forth his demands with as much certainty as would be required in a declaration; and the court in which the action may be pending may render judgment for the defendant for the balance due to him with costs.

SECTION 1. No judge of any court, or justice of the peace, shall sit in judgment in any cause in the event of which he is interested: Provided, that residence and payment of taxes in any town, or an interest in common with all the inhabitants of such town shall not exclude a judge or justice from sitting in any cause to which such town is a party, or in which the same or the inhabitants of the same are interested.

SEC. 2. Bills and petitions in equity commenced in one county, may be heard and decided in any other county, at the discretion of

the supreme court, if in session, and in case of motions, at the discretion of a single justice in vacation; and said court shall have power to make all such rules and orders as may, in their opinion, be necessary or expedient to carry this provision into full effect.

SEC. 3. By consent of all parties, or their counsel, indorsed on the papers, in any matter in equity pending before said court, the same may be transferred to, and heard and determined in any other county, at the discretion of the court; and after such transfer, such matter may, in all respects, be proceeded with as if originally commenced in the county to which the same shall have been transferred, or by like consent, sent back in any stage, to the county in which such matter originated.

SEC. 4. In all cases in which power is conferred on a single justice of the supreme court to hear and determine on any matter, such hearing shall be, unless otherwise ordered by the justice, in the office of the clerk of the court in the county in which the same shall be heard.

SEC. 5. Said justice shall certify his proceedings to the clerk of the court in the county in which the matter or cause shall be pending, and return to him the original papers in such matter or cause, to be by him kept on file in his office.

SEC. 6. The plaintiff or appellant in any cause shall not have a right to become nonsuit or to discontinue the same, in the supreme court, after the same shall be submitted to the decision of the jury; but the cause shall, in the discretion of the court, proceed, and the verdict of the jury be taken therein, whether the plaintiff or appellant shall appear or not.

SEC. 7. In all cases, in the supreme court and court of common pleas, except when otherwise provided, if judgment 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 the court.

SEC. 8. In all actions or suits, which shall be pending before any court in this state, the parties therein may waive the right of trial by jury; and in such case the court shall hear, try and determine the said case, both as to the law and as to the facts, and render judgment therein; any law, rule or usage to the contrary notwithstanding.