TITLE 4. Pleadings, how made. When suit by warrant $ 48. The pleadings may be either verbal or written, at the discretion of the party making the same, except in the case of a plea of title to land. When written, they shall be filed and remain with the justice; when verbal, the justice shall enter in his docket the substance thereof. $ 49. The pendency of a suit commenced by summons, shall not not barred. be a bar to a subsequent suit commenced by warrant, between the same parties, if it appear on the trial of such subsequent suit, that the defendant therein was about to abscond from the county, when such warrant issued.24 When set offs may be made. Nature of the. demand set off. To whom to bo due. When to be liquidated, &c When defendant must $ 50. In the following cases, and under the following circumstances, a defendant may set off demands which he has against the plaintiff: 1. It must be a demand arising upon judgment or upon contract, express or implied, whether such contract be written or unwritten, sealed or without seal; and if it be founded upon a bond, or other contract having a penalty, the sum equitably due, by virtue of its condition, only, shall be set off: 2. It must be due to him in his own right, either as being the original creditor or payee, or as being the assignee or owner of the demand: 3. It must be a demand for real estate sold, or for personal property sold, or for money paid, or services done; or if it be not such a demand, the amount must be liquidated, or be capable of being ascertained by calculation: 4. It must have existed at the time of the commencement of the have hold it. suit, and must then have belonged to the defendant: In what ac tions to be allowed. When it must be a joint demand. Must bo tiff; or, 5. It can be allowed only in actions founded upon demands which could themselves be the subject of set-off, according to law: 6. If there be several defendants, the demand set off must be due to all of them jointly: 7. It must be a demand existing against the plaintiff in the action, against plain- unless the suit be brought in the name of a plaintiff who has no real interest in the contract upon which the suit is founded; in which case, no set-off of a demand against the plaintiff shall be allowed, unless as herein after specified : against as signees of contract; or 8. If the action be founded upon a contract (other than a negotiable promissory note, or bill of exchange,) which has been assigned by the plaintiff, a demand existing against such plaintiff or any assignee of such contract, at the time of the assignment thereof, and belonging to the defendant, in good faith, before notice of such assignment, may set off to the amount of the plaintiff's debt, if the demand be such as might have been set off against such plaintiff or such assignee, the contract belonged to him: while (24) Laws of 1824, p. 291, § 7. 9. If the action be upon a negotiable promissory note, or bill of exchange, which has been assigned to the plaintiff, after it became due, a set-off to the amount of the plaintiff's debt, may be made of a demand existing against any person or persons, who shall have assigned or transferred such note or bill after it became due, if the demand be such as might have been set off against the assignor, while the note or bill belonged to him: ART. 4. against holders of notes, &c.; or, ficial plain 10. If the plaintiff be a trustee for any other, or if the suit be in the against benename of a plaintiff who has no real interest in the contract upon which tiff the suit is founded, so much of a demand existing against those whom the plaintiff represents, or for whose benefit the action is brought, may be set off, as will satisfy the plaintiff's debt, if the same might have been set off in an action brought by those beneficially interested: 11. But if such action be brought by the assignee of an insolvent, Exception. imprisoned, absent, concealed, or absconding debtor, no set-off shall be allowed of any debt, unless in the cases provided in the fifth Chapter of the Second Part of the Revised Statutes.25 pleaded, &c. $51. To entitle a defendant to a set-off, he must plead or give no- When to be tice of the same, specifying the nature of his claim, with reasonable certainty, at the time of joining issue on a question of fact upon the merits of the cause. set-offs. claim. If less. If more than $52. If the amount of the set-off duly established, be equal to the Judgment on plaintiff's debt, judgment shall be entered for the defendant, with if equal to costs; if it be less than the plaintiff's debt, the plaintiff shall have judgment for the residue only, with costs. If it be more than the plaintiff's debt, and the balance found due to the defendant from the plaintiff's plaintiff in the action, be fifty dollars or under, judgment shall be rendered for the defendant, for the amount thereof, with costs; and execution shall be awarded as upon a judgment in a suit brought by him; but no such judgment shall be rendered against the plaintiff when the Exception. contract, which is the subject of the suit, shall have been assigned before the commencement of such suit, nor for any balance due from any other person than the plaintiff in the action.25 ceeds $50. $ 53. If the balance found due to the defendant exceed fifty dollars, Ifbalanco exthe justice shall set off so much of the defendant's demand against the plaintiff's debt, as will be sufficient to satisfy it, if required to do so by the defendant, and shall render judgment for the defendant, for his costs; but if the defendant shall not require such set-off, the justice shall enter judgment of discontinuance for the defendant, with costs; and the defendant may thereafter sue for and recover his demand in any court having cognizance thereof.25 tiff to be non $ 54. If upon the trial of a cause, it shall appear that the amount When plainof the plaintiff's claim, together with the demands set off by the de- suited. (25) Laws of 1824, p. 291, § 8. TITLE 4 fendant, according to the preceding provisions, exceed four hundred dollars, judgment of discontinuance shall be rendered against the plaintiff, with costs.20 In suits by executors, &c Judgment & execution therein. of neglect to set off. $55. In suits brought by executors or administrators, the defendant may set off demands existing against their testators or intestates, and belonging to the defendant at the time of their death, in the same manner as if the action had been brought by and in the name of the deceased. $56. Whenever a set-off is established in a suit brought by executors or administrators, the judgment shall be against them in their representative character, and shall be evidence of a debt established, to be paid in the course of administration; but execution shall not issue thereon, until directed by the surrogate who granted letters testamentary or of administration. Consequence. $57. If a defendant neglect to plead or give notice of any set-off, which, according to the preceding provisions, might have been allowed to him, on the trial of the cause, he shall be forever thereafter precluded from maintaining any action to recover the same, or any part thereof. And if the demand which might have been set off consisted of a negotiable note, or bill of exchange, no action shall be maintained thereon, by any person who may derive title thereto, from or through the defendant.27 Excoptions. Bot off $50 more than Judgment Or was in Judgment before suit! brought. In certain case, when $58. But the last preceding section shall not extend to the following cases: 1. When the set-off shall be fifty dollars more than the judgment which the plaintiff shall have recovered : 2. Where the set-off consisted of a judgment in favor of the defendant, or belonging to him, rendered before the commencement of the suit in which the same might have been set off: 8. Where a set-off shall have been claimed by him, and a balance not before exceeding fifty dollars shall have been found in his favor, the defendant may maintain an action for such part of his demand as was not allowed to him as a set-off: allowed. When no 4. Where the suit was commenced against the defendant by atpersonal appearance in tachment, and he did not personally appear in such suit: certain suits, Claims for 5. Claims for unliquidated damages, which could not be set off on unliquidated the trial of the cause, according to the preceding provisions; damages. Claims in suit. Plea, &c. of title to land. 6. Claims in suit in any other court at the time of the commencement of the suit before the justice.27 $59. In every action where the title to lands shall in any wise come in question, the defendant, at the time when he is required to join issue, and not after, may plead specially any plea, shewing that the title of lands will come in question, or may, under the general is (26) Laws of 1824, p. 291, § 1. (27) Ib. § 8. sue, give a notice to that effect: such plea and notice may be joined with any other proper plea to the action. They shall be written, signed by the defendant or his attorney, and delivered to the justice, who shall then countersign the same, and deliver them to the plaintiff.28 ART. 4. naity and § 60. At the time of tendering such plea, or plea and notice, the Bond; its po defendant, with at least one sufficient surety, to be approved by the condition. justice, shall enter into a bond to the plaintiff, in the penalty of one hundred dollars, conditioned, if such plaintiff shall commence a suit in' the court of common pleas of the county, within thirty days thereafter, for the same cause of action whereon he relied before the justice, that such defendant shall appear and put in special bail, in such court, within twenty days after the return of process in such suit.28 $61. Such bond shall be delivered to the justice at the time of Suits to be tendering such plea, or plea and notice; and thereupon the action shall be discontinued, and each party shall pay his own costs. The costs so paid by either party shall be allowed to him, if he recover costs in the action brought in the common pleas, if any be brought: if no suit be brought for the same cause of action in the court of common pleas, within thirty days after the delivery of the bond, the costs and expenses of the defendant before the justice, may be recovered by him of the plaintiff.28 discontinued. Costs. if bond be not $62. If such bond be not delivered as herein directed, the justice Proceedings shall have jurisdiction of the cause, and shall proceed therein, and the given. defendant shall be precluded in his defence, from all evidence drawing in question the title to lands.28 bring title in $63. If it appear on the trial, from the plaintiff's own shewing, b. if plaintiff that the title to lands is in question, which title shall be disputed by question. the defendant, the justice shall dismiss the cause, and the plaintiff shall pay the costs. $64. When a suit is discontinued before a justice, by the delivery Now action of a plea, or a plea and notice, and a bond as above provided, the plaintiff may prosecute an action for the same cause, before the court of common pleas of the county where such cause of action accrued ; and the plaintiff in such suit, shall declare only for the same cause of action whereon he relied before the justice; and the plea, or plea and notice of the defendant, shall be the same which he tendered to the justice,28 in com. pleas $65. If the judgment in such suit in the common pleas, shall be costs of suit for the plaintiff, he shall recover costs; if it be for the defendant, (other than judgment of non-suit, or non pros.,) and the presiding judge shall not certify that the title to lands did come in question, the defendant shall not recover costs, but shall pay costs to the plaintiff. (28) Laws of 1824, p. 291, § 9. TITLE 4. Several title to same, pleaded. $66. If the plaintiff's declaration in a suit before a justice, shall contain several counts, or causes of action, to one or more of which, a decounts, and fence of title to lands be interposed by the defendant, and he shall tender a plea, or a plea and notice, to such count, or cause of action, and deliver a bond as above provided, the justice shall discontinue proceedings for such cause of action, and the plaintiff may commence a suit in the common pleas therefor; and for the other causes of action, the justice may continue his proceedings. Cases in which justice ARTICLE FIFTH. Of Adjournments. SEC. 67. When justice may adjourn certain suits. 68. Restrictions upon power of justice to adjourn. 69. When and how plaintiff may have adjournment in certain cases. 70. Cases in which to be allowed in certain suits upon warrants. 71. Defendant arrested on warrant, to continue in custody, &c. 72. In what cases to be discharged from custody. 73. Time of adjournment in suits upon warrant. 74. How and when defendant may have adjournment. 775. When further adjournment may be had by him. 76. Security to be a bond; its condition; when new bond not necessary. 77. Proof to be made, to entitle to recovery on bond. 78. No adjournment to be made beyond 90 days, without consent. 79. In certain case, party requiring to exhibit his account, &c. $67. At the time of the return of either a summons or attachment, may adjourn. or of joining issue without process, a justice may, in his discretion, and with or without the consent of parties, adjourn the cause not exceeding eight days.29 When he may not adjourn. Cases in which plain $68. A justice shall in no case adjourn a cause commenced by warrant, on his own motion; nor shall he exercise that right in a suit commenced by summons or attachment, at any other time than on the return of such summons or attachment. $ 69. At the time of the return of a summons or attachment, or the tiff may have joining of issue without process, the justice shall on the application of the plaintiff, adjourn the cause, to some time to be fixed by the justice, not exceeding eight days thereafter. But such adjournment shall not be granted, unless the plaintiff or his attorney shall, if required by the defendant, make oath that he cannot, for want of some material testimony or witness, safely proceed to trial.30 In certain suits upon warrants, when to be allowed. $70. No adjournment of a cause commenced by warrant, issued at the suit of a non-resident plaintiff, shall be allowed unless in the following cases: 1. On the consent of both parties: or, 2. On the application of the defendant, supported by his oath, that he has a good defence to the action, and that he is not ready to proceed to the trial thereof; and in such case, it shall not be granted, unless the defendant will consent that any witness on the part of the plain (29) Laws of 1824, p. 291, § 3 & 25. (30) Ib. § 5 & 6. |
