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Sec. 18. Any persons having any action or cause of action subsisting between them, may file with the clerk of the supreme court or court of common pleas in the county where either or all of them reside, in the vacation of the said courts, a petition, setting forth said facts, and that they have mutually agreed to refer the same to the decision of certain persons named therein as referees; whereupon the clerk shall enter said petition on the docket of the business of said court for the next term; make out a writ to said referees, annex thereto or embody therein said petition, which shall authorize them to hear and determine said dispute, with the same powers, in the same manner and with the same effect as though said petition had been filed in open court : provided however, that the report of said referees shall be made to the next or some other term of said court: and said court shall have the same powers over a petition so filed, as over one filed in open court.
Sec. 19. 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 said 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; and the said courts respectively shall and may, by virtue of this act, 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 the said courts respectively shall
, in their discretion, or by general rule, prescribe.
Sec. 20. 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: such 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 on cause shown. But 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. 21. In all actions relative to partnerships and all other joint accounts, and in all actions involving matters of book account, the supreme court and any court of common pleas are authorized and empowered, upon motion of either party, to appoint an auditor or auditors, who shall have the same powers, and be sworn, and proceed in the same manner as auditors in a proper action of account: and the court upon the reception of the report of the auditor or auditors, shall render judgment in pursuance thereto.
Sec. 22. When several persons shall be made defendants in an action of trespass or ejectment, and the same shall be discontinued as to any one or more of said defendants; or if upon the trial thereof any one or more of them shall be acquitted by verdict, or upon a demurrer, every defendant so discharged or acquitted, shall have and recover his costs.
Sec. 23. The plaintiff in any cause shall not have a right to be non-suit 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 proceed and the verdict of the jury shall be taken therein, whether the plaintiff shall appear or not.
Sec. 24. 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.
Sec. 25. In addition to the actions which survive by the common law, the following shall also survive, viz: actions of replevin and trover; actions of waste ; actions of trespass for assault, battery, imprisonment, or for goods taken and carried away; and actions of trespass and trespass on the case for damages done to real or personal estate : all the actions herein before mentioned may be originally commenced and pros
ecuted by and against executors and administrators: and if commenced by or against the original party, in his life time, they may be prosecuted or defended by or against his executor or administrator: whenever any of said actions are commenced or prosecuted against the executor or administrator of the original party, the plaintiff shall be entitled to recover only the value of the goods taken, or the damage actually sustained, without any vindictive or exemplary damages, or damages for any alleged outrage to the feelings of the injured party ; but in no case, shall the title to real estate be settled or affected, except so far as relates to the case on trial, if the same shall be prosecuted or defended by an executor or administrator.
Sec. 26. In case of the death of any party, either the appellant or appellee, before the sitting of the court appealed to, or where any action or suit is commenced or shall be pending in any court of common pleas, or in the supreme court, and it shall so happen that either party shall die before final judgment, the executor or administrator of such deceased party, in case the cause of action doth survive, shall have full power to prosecute or defend any such action or suit from court to court until final judgment; and is hereby obliged to prosecute or defend the same accordingly; and if any executor or administrator shall neglect to appear and take upon himself the prosecution or defence of any action or suit as aforesaid, being duly notified thereof, by order of the court where the same shall be pending, or if having appeared and become a party thereto, judgment shall pass against such executor or administrator, the said courts are hereby respectively authorized and empowered, unless the estate shall have been represented insolvent, to enter up judgment against the estate of the deceased in the hands of such executor or administrator ; and the like process shall be had thereon as if the action had been originally commenced against them in their said capacity.
SEC. 27. Writs of attachment and execution, shall run against the goods, chattels, rights and credits of the person deceased only, in the hands of the executor or administrator; nor shall any executor or administrator be holden to bail upon mesne process, nor his own proper goods or estate be attached, nor his person be arrested or taken in execution for the debts or legacies of the testator or intestate, but upon suggestion of waste, founded on a return made by the officer on an execution issued against the estate of the testator or intestate as aforesaid, that he could not find any such estate whereon to levy such execution; in which case a writ of scire facias shall be issued out of the clerk's office of the same court against such executor or administrator; which writ being duly served by the officer to whom it shall be directed, and returned, if the executor or administrator make default of appearance, or coming in shall not show sufficient cause to the contrary, execution shall be awarded against him of his own proper estate for the sum recovered, with the interest due thereon, with costs; and for want of estate, against the body of such executor or administrator, as for his own proper debt.
Sec. 28. No action shall be brought against any executor or administrator in his said capacity, within one year after the will shall be proved or administration granted; except for medicines and attendance in the last sickness, and funeral charges of the deceased, and excepting also actions brought in pursuance of the fourth section of an act entitled “an act for the limitation of certain personal actions ;” nor shall any action be brought against any executor or administrator in his said capacity, unless the same shall be commenced within three years next after the will shall be proved or administration shall be granted : provided, such executor or administrator shall give notice of his appointment, by publishing the same in some public newspaper in the state, nearest to where the deceased person last dwelt ; and in such other manner as the court of probate shall direct.
Sec. 29. When any judgment shall be had by or in the name of any executor or administrator, in such case, an administrator de bonis non, may sue out a writ of scire facias and take execution upon such judgment.
Sec. 30. The appellant shall in all cases file his reasons of appeal in the clerk's office of the court appealed to at least ten days before the sitting of such court; and shall at the time of entering his appeal file in the same office a certified copy of the whole case : provided however, that whenever any party who shall appeal to the court of common pleas or supreme 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 shown 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. 31. If the appellant in any case shall enter his appeal at the court appealed to, the cause shall be tried and decided in the same manner as if both parties had appealed; and if the appellant shall neglect to enter his appeal as by law required, the adverse party, in case he did not also appeal, may at any time during the term appealed to, or at the next succeeding term, enter his complaint and obtain a confirmation of the former judgment, as of the third day of the said term ; with double interest from the time of the rendition of the judgment appealed from, to said third day, if damages were therein given, and double costs ; unless the court appealed to shall be satisfied that such appellant had reasonable ground to appeal, and that such appeal was not taken solely for delay; and in such case, with single interest on such damages and single costs only.
Sec. 32. If any party shall obtain a new trial in any cause by act or by order of the general assembly, supreme court or any court of common pleas, and shall neglect to enter such action for trial on the first or second day of the court at which such trial was to be had, by such act or order, the adverse 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. 33. If the plaintiff in any case shall file his declaration in the clerk's office of the court of common pleas, as is by law provided, and shall afterwards withdraw or discontinue his suit before the sitting of the court and after answer filed, the defendant in such case shall recover his costs; and in all other civil causes the party prevailing shall recover costs, except in cases where other provision is specially made by law; and all bills of costs shall be taxed by the clerks of the respective courts, and shall be examined and allowed by one of the justices thereof; except that in justices' courts they shall be taxed and allowed by the justice who signed the original writ; and the clerk's fees in the case shall be paid before the execution shall be issued ; and the justice of any court who shall examine and allow any bill of cost shall strike out and disallow any sum that may be taxed or demanded for the expense of any witness or any evidence whatsoever that shall appear to such justice frivolous, or not material to the issue of the cause; and no costs shall be allowed for any written evidence unless the fees be noted thereon or certified by the officer who issued or made out the same.
Costs taxed in any court of common pleas may be revised, in case of appeal to the supreme court, in the taxation of costs there.
Sec. 34. In all actions of assumpsit, trespass or trespass on the case, where judgment is rendered on appeal, the court