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When defendant has no notice, in suits before justices of the peace, county court may grant new trial.

Appearance of plaintiff. e

Withdraw or nonsuit.

Name of attor-
ney to be en-
tered, if plain-
tiff is not in-
habitant of
the state.

New bond of prosecution, when to be given.

the state, but is absent at the commencement of the suit,
and does not return before the trial, such action shall
be adjourned a reasonable time, not less than one month,
nor more than nine months, to give an opportunity for
the defendant to return, or to send notice to him.
sect. 16. When a suit is brought before a justice of
the peace, against a defendant who is not an inhabitant
or resident of this state, and actual notice is not given to
him, the action shall be adjourned for a term not less
than three, nor more than nine months. -
sect. 17. In all cases where a judgment shall be ren-
dered, by a justice of the peace, against a defendant,
who is absent from the state till after the time of the tri-
al, and has no notice of the suit, he may apply to the
county court, in the county where the judgment is ren-
dered, for a new trial; which court is empowered to
grant the same, and to proceed to final judgment there-
in, if the defendant shall make it appear, that the judg-
ment was wrongfully obtained against him, and that he
has a good ground of defence; which application shall
be made within six months after his return into this state.
and within three years from the rendition of the judgment.
Sect. 18. If the plaintiff, in an action returned to any
court, and entered in the docket, on being called three
times after twelve o'clock on the first day of the sitting
of the court, shall not appear, either by himself or attor-
ney, to prosecute the action, he shall be nonsuited, and
pay cost to the defendant, and for entering the action,
as if it had been prosecuted in said court. And the
plaintiff, in all actions brought to any court, shall have
liberty to withdraw the same, or become nonsuit, before
the jury have given in their verdict; in which case he
shall pay cost to the defendant, and may bring a new
new suit; such withdraw or nonsuit having been first re-
sect. 19. In all actions, brought by any person, who
is not an inhabitant of this state, to any court in this state,
the clerk of such court shall enter in the record of the
cause, the name of the attorney, by whom such stranger
appeared; which record shall be good evidence, that
such attorney was the lawful attorney of such stranger.
SECT. 20. In any action, where bond for prosecution
is not given at the time of praying out the writ, or where
the bond taken is insufficient, the court, or justice of
the peace, before whom the same is brought, on motion
of the defendant, and on satisfactory proof that the plain-
tiff, or his surety, is not able to pay the bill of cost that
may be recovered in the suit, shall order the plaintiff to
give a bond, with sufficient surety, to prosecute his ac-

tion to effect, and pay all damages in case he make not his plea good, before proceeding to trial of the same ; and if the plaintiff shall neglect or refuse to give such bond, he shall be nonsuited. sect. 21. All suits wherein the title to land is to be tried and determined, and all actions of trespass quare clausum fregit, shall be brought and tried in the county where the land lies: and all other actions, which may be brought before the superior or county courts, shall be brought and tried in that county, where the plaintiff or defendant dwells, if they, or either of them, are inhabitants of this state : but if neither of them are inhabitants of this state, then the action shall be brought and tried in the county where the defendant is, when the suit is commenced, or where the estate is, which is attached, if the defendant is not within this state. sect. 22. All actions cognizable by a justice of the peace, shall be brought and tried in those towns where the plaintiff or defendant dwells : but if there be no justice of the peace in either of said towns, who can lawfully try the cause, then the plaintiff may bring his suit before a justice of the peace in one of the towns next adjoining to the place of his abode. sect. 23. All causes wherein the title to land is not concerned, and wherein the debt, trespass, damage or other matter in demand, does not exceed thirty-five dollars, shall be heard and determined by a justice of the peace: provided that in all cases where the sum demanded shall exceed seven dollars, except in actions on notes or bonds, vouched by two witnesses, and given for money only, an appeal shall be allowed to the next county court: and when an appeal shall be allowed by a justice of the peace. to the county court, the party so appealing, shall give sufficient bond, with surety; to the adverse party, to


Jurisdiction of justices of the peace.



prosecute such appeal to effect, and to answer all dama

ges in case he make not his plea good.

sect. 24. When any plea shall be made in abatement of any writ or process, before the superior or county court, or besore a justice of the peace, if it be ruled in favour of the defendant, the plaintiff shall have liberty to amend the defect, on paying to the defendant his cost to that time; and then to proceed in the same manner as he might have done, had there been no defect in the writ: and in case the defendant appeal from a judgment rendered on a piea in abatement, and shall not make good his plea, by the judgment of the court to which he appeals, he shall be liable to pay cost, and execution shall issue against him for the same, though the cause shall finally be decided in his favour.



Appeal on plea of abatement.

If single woman plaintiff marries, writ not to abate.

Not to abate for circumstantial desects.

Executors and aduinistrators may enter for plaintiff, or be made defendants.


Survivor of actions.


General issue.

sect. 25. No action commenced by a single woman, who intermarries during the pendency thereof, shall abate on account of such intermarriage, provided the husband shall appear in court, and cause such marriage to be suggested on the record; and he may then proceed in the same manner, as if the suit was commenced after such intermarriage. sect. 26. No writ, pleading, judgment, or any kind of proceeding in court, or course of justice, shall be abated, suspended, set aside or reversed, for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court. sect. 27. When any action shall be pending in any superior or county court, and the plaintiff, before final judgment, shall die, the same shall not abate, if it might originally have been prosecuted by his executor or administrator; and in such case, the executor or administrator may enter their names in the suit, if they see cause, and prosecute the same. And if the defendant, while the action is pending in court, and before final judgment, shall die, the same shall not abate, if it might originally have been prosecuted against his executor or administrator: and the plaintiff, or his executor or administrator, may have a writ of scire-facias against the executor or administrator of such deceased defendant, to shew cause why judgment should not be rendered against them ; which being served at least twelve days before the sitting of the court, to which the same is returnable, and returned, the action shall proceed to final issue, according to law. sect. 28. In any action pending before a court, if there be two or more plaintiffs or defendants, and one or more of them die, before final judgment, if the cause of action survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not abate: but such death being suggested on the record, the action shall proceed. sect. 29. The parties shall make their pleas, and join issue, according to the rules and orders established by the court; and in case the plaintiff shall refuse to obey the order of the court in pleading, he may be nonsuited; and in case the defendant will not make his plea or join issue, judgment may be rendered against him upon nihil dicit. sect. 30. The general issue of not guilty, owe nothing, did not assume and promise, no wrong or disseisin, or any other general plea proper to the action, whereby the whole declaration is put in proof, according to the nature of the action, may be made by the defendant : under which general plea, the defendant shall have liberty, on the trial of the cause, to give his title in evidence, or any special matter in his defence and justification, according to the nature of the action; excepting only a discharge from the plaintiff, or his accord, or some special matter, whereby the defendant, by the act of the plaintiff is saved or acquitted from the plaintiff's demand in the declaration ; provided, that the defendant shall not give in evidence, under the general issue, any special matter, which, by the rules of the common law, ought to be pleaded specially, unless at the time of making his plea, he gives notice thereof in writing, stating such special matter. (3) sect. 31. It shall be lawful for the defendant, in any suit, to plead, by special leave of the court, as many several matters, by distinct pleas, as he shall think necessary for his defence. If any such matter or plea shall, upon demurrer joined, be judged insufficient, cost may be given to the plaintiff, at the discretion of the court, though the other issue or issues may be decided in favor of the defendant. If a verdict shall be found, on any issue joined in the cause, in favor of the plaintiff, costs shall be allowed to him, though on some other issue, the defendant should be entitled to judgment ; unless the court that tried such issue, shall be of opinion, that the defendant had probable cause to be plead such matter, which, upon the issue, has been so found against him. And in actions of replevin, where the defendant makes avowry, the plaintiff shall have right to plead double, in the same manner as the defendant in other cases, and shall be governed by the same principles. sect. 32. In all actions, brought for the recovery of a debt, before any court in this state, wherein the plaintiff lives or resides out of this state, or is a bankrupt, or insolvent, and where there shall be mutual debts between the plaintiff and defendant in such action, one debt may be set off against the other, and such matter may be given in evidence, under the general issue, or pleaded in bar : but such matter shall not be given in evidence as aforesaid, unless notice be given, at the time of pleading, to such action, of the debt intended to be set off, and on what account it has become due: and no debt, claimed by assignment, shall be set off, unless the plaintiff had notice, at the time of the commencement of the action, that such debt was due to the defendant. And in every action, wherein the defendant shall claim a set-off as aforesaid, and it shall appear upon the trial, that the plaintiff in such action is indebted to the defendant, the court, before whom the trial shall be, shall give judgment for the defendant, to recover the same of the plaintiff, with his cost: provided, that no justice of the peace shall give judgment for the recovery of such balance, where the same shall exceed the sum of thirty-five dollars. sect. 33. The plaintiff may amend any defect, mistake or informality in the writ or declaration, without cost, within the three first days of the term of the court to which it is returnable; and at any time afterwards, on the payment of cost, at the discretion of the court; provided such amendment shall not change the form or ground of the action: and the defendant shall have reasonable time to answer the same. (4) sect. 34. The parties respectively, shall have liberty to amend any defect, mistake, or informality in the pleadings, or other parts of the records or proceedings. When either party shall suppose, that in any part of the pleadings, he has missed the ground of his plea, and that he can plead a different plea, that will save him in his cause, he shall have liberty to change such plea, replication or rejoinder, as the case may be, and plead anew : and the other party shall have reasonable time to answer the same. And in all cases when a party amends or alters any part of the pleadings, or pleads anew, if it shall occasion any delay in the trial, or inconvenience to the other party, he shall be liable to pay cost, at the discretion of of the court. And all courts shall have power to restrain the amendment and alteration of pleas, so far as may be




(3) In 1720, an act was passed, giving the defendant liberty, under the general issue, to give any special matter in evideuce, except what could fairly be pleaded as a justification. This was nearly according to the common law, and introduced no alteration ; but many disputes having arisen, the legislature, to prevent them. passed an act in 1731, declaring, that the defendant, under the general issue, should be allowed to give his title in evidence, or any other matter in his justification, excepting only a discharge,

or an accord, or some special matter, whereby the defendant, by the act of the laintiff, was acquitted from his demand. n this accidental manner, a valuable improvement was introduced. As the plain: tiff may be surprised, by the defence of the defendant, a rule was established by the supreme court of errors, requiring notice to be given in the superior court of the special matter intended to be given in evidence, if required, by the common law, to be pleaded specially. This rule is now extended to all courts.


(4) In 1724, a statute was passed,

ment. As the declaration accompanied

authorising the plaintiff to amend his writ, upon the payment of cost, when it bad been abated. But in practice, the law was confined to the ainendment of such defects only as were taken advantage of by abateinent: and whenever there was a defect, which could be taken advantage of, in any other stage of the cause, as on demurrer, or as a ground of variance, the courts would never permit any amend

the writ, the plaintiff was often subjected to great inconvenience, and lost the benefit of his action, by mistakes that occurred in the burry of drawing writs; and which were susceptible of amendment. A practice so manifestly wrong. required to be corrected; and in 1794, an act was passed, authorising amendments, which has since been moulded into the present shape. See 1 Day, 206. 3 Day, 315. 4 Day, 37. *

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