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Sec. 2. Joint tenants, tenants in common, and co-parceners in any estate real or personal, may maintain actions of account against their co-tenants, who receive as bailiffs more than their due proportion of the profits and benefits of such estate.
Sec. 3. Any executor, being a residuary legatee, may bring and maintain an action of account against his co-executor; and any other residuary legatee shall have the same remedy against executors and administrators.
Sec. 4. Actions of account may be maintained by and against executors and administrators in all cases in which the same might have been maintained by and against their testator or intestate.
Sec. 5. The original process in actions of account, shall be the same as is provided by law for other personal actions, and shall be served and returned in the
Sec. 6. When any person is or shall be liable to account, as guardian, bailiff or receiver, or otherwise, to another, and will not give an account willingly, the party to whom such an account ought to be made, may bring his action of account, and if the person, against whom such action may be brought, being summoned, does not appear at the return of the writ, then the defendant shall be attached by his body to appear and render his account.
Sec. 7. Whenever a judgment shall be rendered against any defendant, that he account, the court shall appoint not more than five, nor less than three able, disinterested and judicious men as auditors, to take the account, who shall, before they enter on their duties, be sworn faithfully and impartially to take and state the account between the parties, and make report to the court.
Sec. 8. Such auditors, or a majority of them, shall have power to appoint the time and place for the hearing, and shall give reasonable notice to the parties; and if the defendant shall neglect or refuse to attend at the time and place appointed and render his account, or appearing shall not render an account, the auditors shall receive a statement of the account from the plaintiff, and award to him the whole sum he claims to be due.
Sec. 9. If the parties appear, and produce their books and accounts before the said auditors, such auditors, or a majority of them, shall proceed to take and state the accounts, and may take the testimony of witnesses, and examine either or both of the parties on oath, respecting their accounts; and may administer all necessary oaths to witnesses and parties. If either party shall refuse to be sworn, or answer proper questions respecting his account, the auditors, or a majority of them, may commit him to jail, there to remain until he consent to be sworn, or answer the interrogatories.
Sec. 10. The auditors, or a majority of them, shall liquidate and adjust the accounts, and state the balance, and to whom due. They, or a majority of those present, shall report to the court by whom they were appointed, at the next term thereof; and if such report shall be approved by the court, the court shall render judgment for the amount ascertained to be due, with costs; and the party in whose favor the report is made, shall pay the auditors their fees, which shall be taxed as costs.
Sec. 11. Either party may appeal or prosecute a writ of error, from the final judgment upon
the report of the auditors, in the same manner, and upon the same conditions, as provided by law in other cases.
Sec. 12. Nothing in this chapter contained, shall be so construed as to deprive courts of chancery of their jurisdiction in matters of account.
APPROVED: March 3, 1845.
1. Publication of, how proved.
tions are not specified.
Section 1. When any notice or advertisement shall be required by law, or the order of any court, to be published in any newspaper, the certificate of the printer or publisher, with a written or printed copy of such notice or advertisement annexed, stating the number of times which the same shall have been published, and the dates of the first and last papers containing the same, shall be sufficient evidence of the publication therein set forth.
Sec. 2. When any notice or advertisement relating to any cause, matter or thing depending in any court of record, shall have been duly published, the same may be paid for by the party at whose instance the same was published, who may present his account therefor to the proper court, which account, or so much thereof as shall be deemed reasonable, may be taxed as costs, or otherwise allowed in the course of the proceedings to which such notice or advertisement shall relate.
Sec. 3. When any notice or advertisement shall be published by a public officer, in pursuance of law, the reasonable expense thereof shall be allowed and paid out of the State or county treasury, as the case may require.
Sec. 4. In all cases, in which by law, or order of court, any advertisement shall be directed to be published, and the number of publications shall not be specified, it shall be taken and intended, that such advertisement shall be published three times for three successive weeks.
APPROVED: March 3, 1845.
Sec. 1. All aliens, residing in this State, may take, by deed, will or otherwise, lands and tenements and any interest therein, and alienate, sell, assign and transmit the same, to their heirs, or any other persons, whether such heirs or
other persons be citizens of the United States or not, in the same manner as natural born citizens of the United States or of this State might do; and upon the decease of any alien having title to, or interest in, any lands or tenements, such lands and tenements shall pass and descend in the same maner as if such alien were a citizen of the United States, and it shall be no objection to any persons having an interest in such estate that they are not citizens of the United States; but all such persons shall have the same rights and remedies, and in all things be placed on the same footing as natural born citizens and actual residents of the United States.
Sec. 2. The personal estate of an alien dying intestate, who at the time of his death shall reside in this State, shall be distributed in the same manner as the estates of natural born citizens, and all persons interested in such estate, shall be entitled to their proper distributive shares thereof, under the laws of this state, whether they are aliens or not.
APPROVED : March 3, 1845.
AMENDMENTS AND JEOFAILS.
cord; amendment after judgment.
others. 4, Judgments not to be reversed for erasures and
interlineations. 6. New entries, &c. 6. Effect of errors after judgment. 7. Judgment not to be reversed for want of form. 8. Judgment not to be reversed for variance or lack
of certain averments. 9. Judgment not to be reversed for want of certain
defects not cause of demurrer, except when
specially set forth. 11. Extent of provisions of this chapter; in cases
when defect is cured by verdict. 12. Shall extend to debts due the State ; to cases for
recovery of revenue; to writs of mandamus,
informations in nature of quo warranto. 13. To writs of error in which there is variance,
may be amended. 14. This chapter not to extend to indictments, in
formations, nor to proceedings upon penal statutes.
Section 1. By the misprison of any clerk in any place wheresoever it be, no record or process shall be annulled or discontinued, by mistaking in writing, one syllable or one letter too much or too little ; but as soon as the thing is perceived, by challenge of the party, or in other manner, it shall be immediately amended in due form, without giving advantage to the party that challenges the same, because of such misprison ; and the court before whom such plea or record is made, or shall be depending, as well by adjournment, as by way of appeal, or error, or otherwise, shall have power and authority, to amend such record and process as aforesaid, as well after judgment, in any suit, plea, record or process given, as before judgment, as long as the same record and process is before them.
Sec. 2. The court in which any record, process, declaration, count, plea, warrant of attorney, writ, pannel or return is or may be, while the same remains before them, shall have power to examine such records, processes, declarations, counts, pleas, warrants of attorney, writs, pannels and returns, by them and their clerks,
and amend (in affirmance of judgments of such records and processes) all that which, to them in their discretion, seemeth to be misprison of the clerks, therein; so that by such misprison of the clerks, no judgment shall be reversed or annulled. And if any record, process, declaration, count, plea, warrant of attorney, writ, pannel or return be certified defective, otherwise than according to the writing which thereof remaineth in the offices, courts or places from whence they are certified, the parties, in affirmance of the judgments of such records and processes, shall have advantage to allege that the same writing is variant from the said certificates : and that being found and certified, the same variance shall be, by the said court, reformed and amended acccording to the first writing.
Sec. 3. The courts before whom any misprison or default is, or shall be found, in ny record or process, which is, or hereafter shall be depending before them, as well by way of appeal or error, as otherwise, or in the returns, (the same made or to be made by sheriffs, coroners, or any other,) by misprison of the clerk of any of the said courts, or by misprison of the sheriffs, under-sheriffs or deputies, coroners or their clerks, or other officers, clerks, or other ministers whatsoever, shall have power to amend such defaults or misprisons according to their discretion, and, by examination thereof by the said courts, to be taken when they shall think needful; and all such amendments may be made as well after a judgment given upon verdict, confession, nihil dicit, or non sum informatus, as upon matter of law pleaded.
Sec. 4. For errors assigned, or to be assigned, in any record, process, warrant of attorney, writ, original or judicial, pannel or return, or that in any places of the same there be erasures or interlineations, or that there be
any addition, subtraction or diminution of words, letters or titles, or parcels of letters, found in any such record, process, warrant of attorney, writ, pannel or return, no judgment, or record, or decree, shall be reversed or annulled.
Sec. 5. Record and process, real, or personal, or mixed, whereof judgment or decree shall be given and enrolled, or things touching such pleas, shall in nowise be amended or impaired by new entering of the clerks, either by the record of things certified, in no term subsequent to that in which such judgment or decree is or shall be given and enrolled.
Sec. 6. If any issue hath been, or shall be tried by any court or jury, and be found for either party, in any court of record, then the court by whom judgment ought to be given, shall proceed and give judgment in the same, any mispleading, lack of color, insufficient pleading, or jeofail, or any miscontinuance, discontinuance, misconceiving of process, misjoining of the issue, lack of warrant of attorney, or any other default or negligence of any of the parties, their counsellors or attorneys to the contrary notwithstanding; and the said judgments thereof, so to be had and given, shall stand in full strength and force, to all intents and purposes, according to the said verdict or finding, without any undoing the same by appeal, writ of error or false judgment, in like form as though no such default or negligence had ever been had or committed.
Sec. 7. If a verdict of a court or jury shall hereafter be given, for either party in any court of record, the judgment thereupon shall not be stayed or reversed by any default of form, or lack of form in any writ, original or judicial, count, declaration, plaint, bill, suit or demand, for want of any writ, or by reason of any imperfect or insufficient return of any sheriff or other officer, or for want of any warrant of attorney, or by reason of any manner of default in process, upon, or after any aid
prayer or voucher; nor shall any such record or judgment after verdict, to be given hereafter, be reversed for any of the defects or causes aforesaid.
Sec. 8. If any verdict be rendered by the court or jury, for either party, in any court of record, the judgment thereupon shall not be stayed or reversed by reason of any variance in form only, between the original writ or process, and the declaration, petition, plaint or demand, or for lack of an averment of any life or lives of any person or persons, so as upon examination, the said person be found to be in life, or by
of the persons in whose favor the verdict is rendered is an infant and appeared by attorney.
Sec. 9. If any verdict shall hereafter be given by a court or jury for either party, in any court of record, judgment thereon shall not be stayed or reversed for any default in form, or lack of form, or by reason that there are not pledges or but one pledge to prosecute, returned upon the original writ, or because the name of the sheriff is not returned upon the original writ or process, or for default of entering pledges upon any petition, or declaration, or for default of alleging the bringing into court, any bond, bill, indenture, or other deed or writing mentioned in the declaration or other pleading, for default of allegation of bringing into court letters testamentary or of adıninistration, or by reason of the omission of the words "with force and arms," or "against the peace," or for, or by reason of mistaking the christian or surname of the plaintiff or defendant, demandant or tenant, sum or sums of money, day, month, or year, by the clerk, in any bill, petition, declaration or pleading, where the right name, surname, sum, day, month or year, in any writ, record or proceeding, or on the same record where the mistake is committed, is, or are once truly and rightly alleged, whereunto the party might have demurred and shown the same for cause, nor for want of the averment or words "and this he is ready to verify," or and this he is ready to verify by the record," or for not alleging, "as appears by the record,” or that there was no right venue, so as the cause was tried by a jury of the proper county, or place where the action is laid, nor shall any judgment after verdict be reversed, for want of entering that the person against whom such judgment is given, “be in mercy," or "be taken," or by reason that the words “be taken," are entered for "be in mercy,” or that the words “be in mercy,” for “be taken," nor for that in the judgment “it is granted” are entered for “it is considered," nor for that the increase of costs, after the verdict in any action, are not entered at the request of the party for whom judgment is given, nor by reason that the costs on any judgment are not entered to be by consent of the plaintiff'; but all such omissions, variance, defects and all other matters of the like nature, not being against the right of the matters of the suit, nor whereby the issue or trial is altered, shall be amended by the courts, where such judgments are or shall be given, or whereunto the record is or shall be removed by appeal or writ of error.
Sec. 10. When any demurrer shall be joined, and entered in any action or suit, in any court of record, the judges shall proceed and give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omission or defect for want of form in any writ, return, plaint, declaration or other pleading, process or course of proceeding whatsoever, except those only which the party demurring shali specially and particularly set down and express, together with his demurrer, as cause of the same, notwithstanding that such imperfection, omission or defect might heretofore have been taken to be matter of substance, so as sufficient matter appear on the said pleadings upon which the court may give judgment according to the very right of the cause; and therefore no advantage or exception shall be taken of or for an immaterial traverse, of or for default