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 breaches.

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 courts 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.

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