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SECTION defendant, costs he may recover of 54. Clerks to note on margin of executions plaintiff.
when judgments were rendered, and 50. Actions in what county to be com- kind of action. menced.
55. Officers bound to collect and pay over 51. Same subject.
interest on executions. 52. Plaintiff and appellant to pay jury fee 56. Judgments when to be entered up.
of $5 before verdict shall be recorded, 57. Executions may be issued at any time and half jury fee if case be opened within six years after judgment.
and disposed of without a verdict. 58. Fees of surveyors and other officers 53. Judgments over $20 to draw interest appointed by a court, may be apporon the debt till paid.
tioned between parties to a suit.
It is enacted by the General Assembly, as follows:
Section 1. All actions and appeals in the supreme court and in the several courts of common pleas, shall be entered on the first or second days of the term, and not afterwards, without special leave of the court; which they are hereby empowered to grant, in their discretion, in case the party who brought the action to the same court, and whose duty it was to enter it, was prevented from so doing by mistake, inevitable accident or misfortune. But no action shall be considered as entered until the necessary papers are filed with the clerk, and the legal entry paid.
Sec. 2. In every indictment, and in every warrant or other process to arrest the body of any person in a criminal suit, and in every writ of arrest or original summons in a civil action, there shall be added to the name of the person against whom the same shall be issued, the place to which he shall, at the time of finding such indictment or issuing such writ, summons, warrant or other process, belong, or the place in which he is, or of late was, commorant, and also his degree or mystery; and in case such additions shall be omitted in any such indictment, writ, summons, warrant or other process, the same, upon exception being taken thereto, by the person with respect to whom such omission shall be made, shall be quashed or abated : provided, that nothing herein contained shall prevent the amendment of any process in the manner by law prescribed.
Sec. 3. 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. 4. 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 for trover, that may be pending before any court or before any justice of the peace, shall have a 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; but if he 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. 5. 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; and when an action of debt is brought upon any bond which hath 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. 6. 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; and 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 acordingly; and whenever any defendant shall have any demand on the plaintiff for any sum liquidated, or for one which may be ascertained by calcu. lation, and which is founded on a judgment, or upon a 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: 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 : in such statement the defendant 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.
Sec. 7. Whenever any court shall, at the same term, render final judgment for debts or damages, in two or more personal actions, in which the parties shall be reversed, and shall sue and be sued in the same right and capacity, such court shall set off the debts or damages recovered in the said judgment, and issue execution for the balance only, in favor of the party to whom it shall be due, with costs if costs were recovered, and a separate execution in favor of the other party for costs if costs were recovered by him. Sec. 8. If any officer shall
, at the same time, have two or more executions delivered to him to serve, in which the parties shall be reversed, and shall sue and be sued in the same right and capacity, he shall set off the debts or damages in the same, and levy and collect the balance only that will remain due thereon, with the costs on all said executions.
Sec. 9. In all actions brought for the breach of the condition of a bond, or to recover a penalty for the non-performance of any covenant, contract or agreement, when it shall appear by verdict, default, submission or otherwise, that the condition is broken or the penalty forfeited, judgment shall be entered in the common form for the penal sum, but no
execution shall issue thereon, except as is provided in the two following sections.
Sec. 10. The court shall award an execution in such case for so much of the penal sum as shall then be due and payable in equity and good conscience, for the breach of the condition, or other non-performance of the contract; which sum shall be ascertained and determined by the court, unless either party shall move to have it assessed by a jury, or unless the court shall think it proper to have the question so decided; in which case the sum so due shall be assessed by a jury.
Sec. 11. If any further sum shall afterwards become due on such bond or other contract, the plaintiff, or his executor or administrator, may have a scire facias on the judgment from the court in which it was rendered, against the original defendant or his executors, administrators, heirs, devisees or assigns, as the case may be, suggesting such further breaches of the contract as shall have occurred, and summoning the adverse party to shew cause why execution should not be awarded upon the judgment for the damages caused by such further broaches.
Sec. 12. The sum due in such suit shall be assessed and determined in the same manner as in the original suit, and execution shall be awarded accordingly; and the like proceedings may be repeated upon occasion of any further breaches of the same contract, as often as they shall occur, until the whole of the penalty is exhausted.
Sec. 13. Nothing herein contained shall prevent any person from bringing an action for the breach of any covenant or other contract, instead of suing for the penalty by which the performance of the covenant or contract may have been secured.
Sec. 14. In all cases in the supreme court and courts of common pleas, except when otherwise provided 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.
Sec. 15. In all cases relating to the realty, either party may have a jury to view the place in question, if the court shall be of opinion that such view is necessary; provided the party moving therefor shall advance such reasonable sum of money to the sheriff to defray the expenses of the jury on such view as the court shall order; and the amount of those expenses shall be taxed against the adverse party if he who advanced the same shall recover costs in the suit.
Sec. 16. The supreme court and courts of common pleas may 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 actions or causes of action that may subsist between them, either jointly or severally, generally or specially; and the said court shall also have power to permit any persons who may have causes of action subsisting between them, to enter a rule of said court, to refer the same to a decision of a referee or referees as aforesaid, generally or specially: and the parties to any rule may agree upon the time and manner of making report and of issuing execution on the judgment that may be rendered thereon, consistently with law; and every such agreement, made in manner aforesaid, shall be conclusive upon the parties : and the court shall render judgment upon the report of referees conformable thereto, and issue execution accordingly : provided nevertheless, that the court may, at any time, in their discretion, or 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 each referee, before he proceeds to the business of the reference, shall take an oath faithfully and impartially to hear and examine the cause, and make a true and just report, according to the best of his skill and understanding ; which oath may be taken before any judge of any court of record, or any justice of the peace or public notary; and the referees aforesaid shall have power to administer oaths to all witnesses in any matter tried before them, and shall also have power to compel the attendance of witnesses before them, in the same manner and by a similar process as courts of record are authorized to compel the attendance of witnesses but any summons for witnesses may be issued and signed by any one referee, or, by the clerk of the court from which the rule is issued.
Sec. 17. The parties to any suit that may be pending before any justice of the peace shall have a right to enter into a rule to refer the same, 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 justice shall have like power, and similar proceedings shall be had thereon, as are given and prescribed in this act respecting rules that may be entered in the supreme court and courts of common pleas.