Chapter 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALES.

§1. When Writing Required.—No action shall be brought in any of the following cases:

(a) To charge any person upon or by reason of a representation or assurance concerning the character, conduct, credit, ability, trade, or dealings of another, to the intent or purpose that such other may obtain thereby credit, money, or goods; or

(b) To charge any person upon a promise made, after full age, to pay a debt contracted during infancy; or upon a ratification after full age, of a promise or simple contract made during infancy; or

(e) To charge a personal representative upon a promise to answer any debt or damages out of his own estate; or

(d) To charge any person upon a promise to answer for the debt, default, or misdoings of another; or

(e) Upon any agreement made upon consideration of marriage; or

(f) Upon any agreement that is not to be performed within a year;

Unless the promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, be in writing and signed by the party to be charged thereby or his agent. But the consideration need not be set forth or expressed in the writing; and it may be proved (where a consideration is necessary) by other evidence.(Code 1849, c. 143, §1; Code 1860, c. 143, §1; Code 1868, c. 98, §1; Code 1923, c. 98, §1.)

§1. Entry Upon or Recovery of Lands.—No person shall make an entry on, or bring an action to recover, any land, but within ten years next after the time at which the right to make such entry or to bring such action shall have first accrued to himself or to some person through whom he claims.(Code 1849, c. 149, §1; Code 1860, c. 149, §1; 1861, c. 19, §1; Code 1868, c. 104, §1; 1882, c. 102, §1; Code 1923, c. 104, §1.)

§2. Claim Not to Preserve Right as to Lands.—No continual or other claim upon or near any land shall preserve any right of making an entry or bringing an action.(Code 1849, c. 149, §2; Code 1860, c. 149, §2; Code 1868, c. 104, §2; 1882, c. 102, §2; Code 1923, c. 104, §2.)

§3. Entry Upon or Recovery of Lands by Persons Under Disability.—If at the time at which the right of any person to make an entry on, or bring an action to recover, any land shall have first accrued, such person was an infant or insane, then such person, or the person claiming through him, may, notwithstanding such period of ten years shall have expired, make an entry on, or bring an action to recover, such land within five years next after the time at which the person to whom such right shall have first accrued as aforesaid shall have ceased to be under such disability as existed when same so accrued, or shall have died, whichever shall first have happened.(Code 1849, c. 149, §3; Code 1860, c. 149, §3; Code 1868, c. 104, §3; 1882, c. 102, §3; Code 1923, c. 104, §3.)

§4. Limitations Upon Preceding Section.—The preceding section is subject to these provisos: That no such entry or action shall be made or brought by any person who, at the time at which his right to make or bring the same shall have first accrued, shall be under any such disability, or by any person claiming through him, but within twenty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under the same during the whole of such twenty years, or although the term of five years from the period at which he shall have ceased to be under any such disability, or have died, shall not have expired. And when any person shall be under any such disability at the time at which his right to make an entry or bring an action shall have first accrued, and shall depart this life without having ceased to be under any such disability, no time to make an entry or to bring an action, beyond the ten years next after the right of such person shall have first accrued, or the five years next after the period of his death, shall be allowed by reason of any disability of any other person.(Code 1849, c. 149, §4; Code 1860, c. 149, §4; Code 1868, c. 104, §4; 1882, c. 102, §4; Code 1923, c. 104, §4.)

§5. Enforcement of Liens.—No lien reserved on the face of any conveyance of real estate, or lien created by any trust deed or mortgage on real estate, shall be valid or binding as a lien on such real estate, after the expiration of twenty years from the date on which the original debt or obligation secured thereby becomes due, unless suit to enforce the same shall have been instituted prior to the expiration of such period; and no extension of the original time of payment of such debt or obligation, or renewal of any note or other evidence of indebtedness secured by such lien, or provision for such extension or renewal in such conveyance, trust deed or mortgage, shall operate to extend the limitation of twenty years hereinbefore provided. The provisions of this section shall apply, with like effect, to every such lien now existing, as well as to every such lien hereinafter reserved or created: Provided, however, That such limitation of twenty years prescribed by this section shall not be so construed as to apply to any suit or proceeding, now pending and undetermined, commenced prior to the twenty-sixth day of July, nineteen hundred and twenty-three, for the enforcement of any such lien, otherwise legally enforceable but for said limitation.(1921, c. 65, §1; Code 1923, c. 104, §5a.)

§6. Limitation of Personal Actions Generally.—Every action to recover money, which is founded upon an award, or on any contract other than a judgment or recognizance, shall be brought within the following number of years next after the right to bring the same shall have accrued, that is to say: If the case be upon an indemnifying bond taken under any statute, or upon a bond of an executor, administrator or guardian, curator, committee, sheriff or deputy sheriff, clerk or deputy clerk, or any other fiduciary or public officer, within ten years; if it be upon any other contract in writing under seal, within ten years; if it be upon an award, or upon a contract in writing, signed by the party to be charged thereby, or by his agent, but not under seal, within ten years; and if it be upon any other contract, express or implied, within five years, unless it be an action by one party against his copartner for a settlement of the partnership accounts, or upon accounts concerning the trade or merchandise between merchant and merchant, their factors or servants, where the action of account would lie, in either of which cases the action may be brought until the expiration of five years from a cessation of the dealings in which they are interested together, but not after.(Code 1849, c. 149, §5; Code 1860, c. 149, §5; 1868, c. 184, §5; Code 1868, c. 104, §6; 1882, c. 102, §6; 1895, c. 2, §6; Code 1923, c. 104, §6.)

§7. Actions on Bonds of Personal Representatives and Fiduciaries Generally.—The right of action upon the bond of an executor, administrator, guardian, curator, or committee, or of a sheriff acting as such, shall be deemed to have first accrued as follows: Upon a bond of a guardian or curator of a ward, from the time of the ward’s attaining the age of twenty-one years, or from the termination of the guardian’s or curator’s office, whichever shall happen first; and upon the bond of any personal representative of a decedent or committee of an insane person, the right of action of a person obtaining execution against such representative or committee, or to whom payment or delivery of estate in the hands of such representative or committee shall be ordered by a court acting upon his account, shall be deemed to have first accrued from the return day of such execution, or from the time of the right to require payment or delivery upon such order, whichever shall happen first. And as to any suit against such fiduciary himself, or his representative, which could have been maintained if he had given no bond, there shall be no other limitation than would exist if the preceding section were not passed. Where any such fiduciary, or any other fiduciary, has settled an account under the provisions of article four, chapter forty-four of this Code, a suit to hold such fiduciary or his sureties liable for any balance stated in such account to be in his hands shall be brought within ten years after the account has been confirmed. The right to recover money paid under fraud or mistake shall be deemed to accrue, both at law and in equity, at the time such fraud or mistake is discovered, or by the exercise of due diligence ought to have been discovered.(Code 1849, c. 149, §6; Code 1860, c. 149, §6; Code 1868, c. 104, §7; 1882, c. 102, §7; Code 1923, c. 104, §7.)

§8. Acknowledgment by New Promise.—If any person against whom the right shall have so accrued on an award, or on any such contract, shall by writing signed by him or his agent promise payment of money on such award or contract, the person to whom the right shall have so accrued may maintain an action or suit for the moneys so promised within such number of years after such promise as it might originally have been maintained within upon the award or contract, and the plaintiff may either sue on such a promise, or on the original cause of action, and in the latter case, in answer to a plea under the sixth section, may, by way of replication, state such promise, and that such action was brought within such number of years thereafter; but no promise, except by writing as aforesaid, shall take any case out of the operation of the said sixth section, or deprive any party of the benefit thereof. An acknowledgment in writing as aforesaid, from which a promise of payment may be implied, shall be deemed to be such promise within the meaning of this section.(Code 1849, c. 149, §7; Code 1860, c. 149, §7; Code 1868, c. 104, §8; 1882, c. 102, §8; Code 1923, c. 104, §8.)

§9. Effect of Acknowledgment by Personal Representative or Joint Contractor.—No acknowledgment or promise by any personal representative of a decedent, or by one of two or more joint contractors, shall charge the estate of such decedent, or charge any other of such contractors, in any case in which, but for such acknowledgment or promise, the decedent’s estate or another contractor could have been protected under the sixth section of this article.(Code 1849, c. 149, §8; Code 1860, c. 149, §8; Code 1868, c. 104, §9; 1882, c. 102, §9; Code 1923, c. 104, §9.)

§10. Devise Subject to Payment of Debts.—No provision in the will of any testator devising his real estate, or any part thereof, subject to the payment of his debts, or charging the same therewith, shall prevent this article from operating against such debts, unless it plainly appear to be the testator’s intent that it shall not so operate.(Code 1849, c. 149, §9; Code 1860, c. 149, §9; Code 1868, c. 104, §10; 1882, c. 102, §10; Code 1923, c. 104, §10.)

§11. Action or Scire Facias on Recognizance.—Every action or scire facias upon a recognizance shall, if it be not a recognizance of bail, be commenced within ten years next after the right to bring the same shall have first accrued; and, if it be a recognizance of bail, within three years after the right to bring the same shall have first accrued.(Code 1849, c. 149, §10; Code 1860, c. 149, §10; Code 1868, c. 104, §11; 1882, c. 102, §11; Code 1923, c. 104, §11.)

§12. Personal Actions Not Otherwise Provided For.—Every personal action for which no limitation is otherwise prescribed shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that, in case a party die, it can be brought by or against his representative; and if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued, and not after.(Code 1849, c. 149, §11; Code 1860, c. 149, §11; Code 1868, c. 104, §12; 1882, c. 102, §12; Code 1923, c. 104, §12.)

§13. Foreign Judgments and Decrees.—Every action or suit upon a judgment or decree rendered in any other state or country shall be barred, if by the laws of such state or country such action or suit would there be barred, and the judgment or decree be incapable of being otherwise enforced there. And whether so barred or not, no action against a person who shall have resided in this State during the ten years next preceding such action shall be brought upon any such judgment or decree rendered more than ten years before the commencement of such action.(Code 1849, c. 149, §12; Code 1860, c. 149, §12; Code 1868, c. 104, §13; 1882, c. 102, §13; Code 1923, c. 104, §13.)

§14. Suit to Repeal Land Grant.—A bill in equity to repeal, in whole or in part, any grant of land by this State or of the State of Virginia, shall be brought within ten years next after the date of such grant, and not after.(Code 1849, c. 149, §14; Code 1860, c. 149, §14; Code 1868, c. 104, §15; 1882, c. 102, §15; Code 1923, c. 104, §15.)

§15. General Saving as to Persons Under Disability.—If any person to whom the right accrues to bring any such personal action, suit or scire facias, or any such bill to repeal a grant, shall be, at the time the same accrues, an infant or insane, the same may be brought within the like number of years after his becoming of full age or sane that is allowed to a person having no such impediment to bring the same after the right accrues, or after such acknowledgment as is mentioned in section eight of this article, except that it shall in no case be brought after twenty years from the time when the right accrues.(Code 1849, c. 149, §15; Code 1860, c. 149, §15; Code 1868, c. 104, §16; 1882. c. 102, §16; Code 1923, c. 104, §16.)

§16. Death Before Right to Sue.—If a person die before the time at which any right mentioned in this article would have accrued to him if he had continued alive, and there be an interval of more than five years between the death of such person and the qualification of his personal representative, such personal representative shall, for the purposes of this article, be deemed to have qualified on the last day of such five years.(Code 1849, c. 149, §16; Code 1860, c. 149, §16; Code 1868, c. 104, §17; 1882, c. 102, §17; Code 1923, c. 104, §17.)

§17. When Suit Prevented by Defendant; Actions on Foreign Contracts.—Where any such right as is mentioned in this article shall accrue against a person who had before resided in this State, if such person shall, by departing without the same, or by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right, or if such right has been or shall be hereafter obstructed by war, insurrection or rebellion, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted. But if another person be jointly or severally liable with the person so obstructing the prosecution of such right, and no such obstruction exist as to him, the exception contained in this section as to the person so absconding shall not apply to him in any action or suit brought against him to enforce such liability. And upon a contract which was made and was to be performed in another state or country, by a person who then resided therein, no action shall be maintained after the right of action thereon is barred either by the laws of such state or country or by the laws of this State.(Code 1849, c. 149, §17; Code 1860, c. 149, §17; Code 1868, c. 104, §18; 1872-3, c. 112, §18; 1882, c. 102, §18; Code 1923, c. 104, §18.)

§18. Extension of Period After Abatement, Dismissal or Other Interfering Cause When Action Brought Within Limitation.—If any action or suit commenced within due time, in the name of or against one or more plaintiffs or defendants, abate as to one of them by the return of no inhabitant, or by his or her death or marriage, or if, in an action or suit commenced within due time, judgment or decree (or other and further proceedings) for the plaintiffs should be arrested or reversed on a ground which does not preclude a new action or suit for the same cause, or if there be occasion to bring a new action or suit by reason of such cause having been dismissed for want of security for costs, or by reason of any other cause which could not be plead in bar of an action or suit, or of the loss or destruction of any of the papers or records in a former action or suit which was in due time; in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year after such abatement, dismissal or other cause, or after such arrest or reversal of judgment or decree, or such loss or destruction, but not after.(Code 1849, c. 149, §18; Code 1860, c. 149, §18; Code 1868, c. 104, §19; 1872-3, c. 112, §19; 1882, c. 102, §19; Code 1923, c. 104, §19.)

§19. Application of Statute of Limitation to State.—Every statute of limitation, unless otherwise expressly provided, shall apply to the State.(Code 1849, c. 42, §23; Code 1860, c. 42, §23; Code 1868, c. 35, §20; 1882, c. 18, §20; Code 1923, c. 35, §20.)

§20. What Limitations Shall Apply to Rights and Remedies Existing When This Code Takes Effect.—No action, suit, scire facias, or other proceeding, which may be pending on the day before this Code takes effect, or the right to prosecute which, under the laws in force on that day, shall have accrued before that day, shall be barred by this article, any further or otherwise than as follows: The same, if pending on that day, shall be subject to such limitation as it would have been subject to if this Code had not been enacted, and where not so pending, if the right to prosecute the same shall exist on that day, for a certain number of years prescribed by any statute, the same, or such other action as may be substituted therefor by this Code, may be prosecuted within such time as the same might have been prosecuted if this article had not been enacted, and not after; and where not so pending, if the right to prosecute the same shall exist on that day, in a case in which no certain number of years shall have been prescribed therefor by statute, the same, or such other action as may be substituted therefor by this Code, may be prosecuted within such time as the same would have to be prosecuted if the right to bring it had accrued on the next day after this Code takes effect.

§1. Summons.—If any forcible or unlawful entry be made upon any land, building, structure, or any part thereof, or if, when the entry is lawful or peaceable, the tenant shall detain the possession of any land, building, structure, or any part thereof after his right has expired, without the consent of him who is entitled to the possession, the party so turned out of possession, no matter what right or title he had thereto, or the party against whom such possession is unlawfully detained, may, within three years after such forcible or unlawful entry, or such unlawful detainer, sue out of the clerk’s office of the circuit court, or of any court of record empowered to try common law actions, of the county in which the land, building, structure, or some part thereof may be, a summons against the defendant to answer the complaint of the plaintiff that the defendant is in the possession of, and unlawfully withholds from the plaintiff, the premises in question (describing the same with convenient certainty), to the damage of the plaintiff in such sum as the plaintiff shall state; and no other declaration shall be required.(Code 1849, c. 134, §1; 1857-8, c. 66, §1; Code 1860, c. 134, §1; Code 1868, c. 89, §1; 1872-3, c. 36, §1; 1882, c. 8, §1; Code 1923, c. 89, §1.)

§2. Assessment of Damages.—If the plaintiff file with the summons a statement of the profits and other damages which he means to demand, and the jury find in his favor, they shall at the same time assess the damages for mesne profits of the premises in suit for any period not exceeding three years previous to the commencement of the action until verdict, including any special damages properly chargeable to the defendant that the plaintiff shall have suffered from detention of the premises, and also the damages for any destruction or waste of the buildings or other property during the same time for which the defendant is chargeable.

§3. Return Day and Service of Summons ; Plea; Issue and Trial.—The summons may be returnable to, and the case heard and determined at, any term of such court. Such summons shall be made returnable not more than ninety days after its date and shall be served at least ten days before the return day thereof. If the defendant appear, he shall plead to the summons, and his plea shall be “not guilty.” Upon this issue, or upon the return of the first or any subsequent summons “executed,” if the defendant fail to plead, a jury shall be impaneled to try whether he unlawfully withholds the premises in controversy and to assess the damages, if any, which the plaintiff is entitled to recover for the detention thereof. Such cause shall have precedence for trial over all other civil causes on the docket.(Code 1849, c. 134, §2; 1857-8, c. 66, §2; Code 1860, c. 134, §2; Code 1868, c. 89, §2; 1872-3, c. 36, §2; 1882, c. 8, §2; Code 1923, c. 89, §2.)

§4. Period of Limitation; Verdict and Judgment.—If it appear that the plaintiff was forcibly or unlawfully turned out of the possession, or that it was unlawfully detained from him, unless it also appear that the defendant has wrongfully held or detained the possession for three years before the date of the summons, the verdict shall be for the plaintiff for such premises, or such part thereof as may be found to have been so held or detained, and for such damages as the plaintiff shall be entitled to recover for the detention of such premises or such part thereof. When part only of the premises is found for the plaintiff, the verdict shall describe the part so found. In such cases, judgment shall be for the plaintiff. If the verdict be for the defendant as to the whole, judgment shall be for him.(Code 1849, c. 134, §3; Code 1860, c. 134, §3; Code 1868, c. 89, §3; 1882, c. 8, §3; Code 1923, c. 89, §3.)

§5. Judgment Not a Bar to Action of Ejectment; Verdict Not Conclusive of Facts in Future Action.—No such judgment shall bar any action of ejectment between the same parties nor shall any such verdict be conclusive, in any such future action, of the facts therein found; nor shall anything herein prevent a defendant from claiming and having allowed, in a proper case, allowance for improvements as provided in article five of this chapter.(Code 1849, c. 134, §4; Code 1860, c. 134, §4; Code 1868, c. 89, §4; 1882, c. 8, §4; Code 1923, c. 89, §4.)

§6. Equitable Defenses; Adverse Possession.—All the provisions of sections eleven, twelve, thirteen and sixteen of article four of this chapter shall prevail, and control the respective rights of the parties, in any action brought under this article.

§1. When a Proper Remedy.—The action of ejectment is retained and may be brought as heretofore, subject to the provisions hereinafter contained. It may also be brought in the same cases in which a writ of right might have been brought prior to the first day of July, in the year eighteen hundred and fifty, in the State of Virginia, and by any person claiming real estate in fee or for life, or for years, either as heir, devisee, purchaser, or otherwise.(Code 1849, c. 135, §§1, 2; Code 1860, c. 135, §§1, 2; Code 1868, c. 90, §§1, 2; Code 1923, c. 90, §§1, 2.)

§2. Venue.—Every such action shall be brought in the circuit court, or any other court given by any statute concurrent jurisdiction to try actions of ejectment, of the county in which the real estate, or some part thereof, is.(Code 1849, c. 135, §3; Code 1860, c. 135, §3; Code 1868, c. 90, §3; 1872-3, c. 37, §3; 1883, c. 7, §3; Code 1923, c. 90, §3.)

§3. Interest of Plaintiff.—No person shall bring such action unless he has, at the time of commencing it, a subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or some share, interest, or portion thereof.(Code 1849, c. 135, §4; Code 1860, c. 135, §4; Code 1868, c. 90, §4; Code 1923, c. 90, §4.)

§4. Parties Defendant.—If the premises be occupied, the occupant shall be named defendant in the declaration; and whether they be occupied or not, any person exercising acts of ownership thereon, or claiming title thereto, or any interest therein, at the commencement of the action, may also be named as defendant in the declaration. If a lessee be made defendant without joining his landlord, such landlord may appear and be made defendant with, or in place of his lessee.(Code 1849, c. 135, §5; Code 1860, C. 135, §5; Code 1868, c. 90, §5; 1877, c. 110, §5; Code 1923, c. 90, §5.)

§5. How Action Commenced.—The action shall be commenced by the service of a declaration in which the name of the real claimant shall be inserted as plaintiff; and all the provisions of law concerning a lessor of a plaintiff shall apply to such plaintiff.(Code 1849, c. 135, §6; Code 1860, c. 135, §6; Code 1868, c. 90, §6; Code 1923, c. 90, §6.)

§6. Declaration.—It shall be sufficient for the plaintiff to aver in his declaration that, on some day specified therein (which shall be after his title accrued), he was possessed of the premises claimed, and that, being so possessed thereof, the defendant afterwards, on some day to be stated, entered into such premises, and that he unlawfully withholds from the plaintiff the possession thereof, or exercises acts of ownership thereon or claims title thereto or some interest therein, to his damage, such sum as the plaintiff shall state. The plaintiff shall also state whether he claims in fee or for his life, or for the life of another, or for years, specifying such lives, or the duration of such terms; and when he claims an undivided share or interest, he shall state the same. The premises shall be described in the declaration with convenient certainty, so that from such description possession thereof may be delivered.(Code 1849, c. 135, §§7, 8, 9; Code 1860, c. 135, §§7, 8, 9; Code 1868, c. 90, §§7, 8, 9; Code 1923, c. 90, §§7, 8, 9.)

§7. Joinder of Parties Plaintiff.—The declaration may contain several counts, and several parties may be named as plaintiffs jointly in one count and separately in others.(Code 1849, c. 135, §10; Code 1860, c. 135, §10; Code 1868, c. 90, §10; Code 1923, c. 90, §10.)

§8. Service of Declaration and Notice; Order of Publication.—To such declaration there shall be subjoined a written or printed notice by the plaintiff, or his attorney, addressed to the defendant and notifying him that such declaration will be filed on some specified rule day, in the clerk’s office of the court in which the action is to be prosecuted, or in such court on some day named at the next term thereof, and that if he fails to appear and plead thereto, within the time required by law, judgment will be given against him. Such declaration and notice may be served in the same manner as other notices may by law be served. But if the defendant do not reside in the county where the action is brought, or cannot be found therein, such service may be made in any part of the State where he may reside or be found; and if he do not reside in the State, or cannot be found therein, so that such service can not be made, an order of publication, as provided by law in other cases, may be awarded against him, and all the laws in force in relation to judgments and decrees obtained on publication and proceedings in such cases shall be applicable to the proceedings and judgment had and rendered in such action on such publication.(Code 1849, c. 135, §11; Code 1860, c. 135, §11; Code 1868, c. 90, §11; 1877, c. 110, §11; Code 1923, c. 90, §11.)

§9. Rule to Plead; Default Judgment.—Upon filing the declaration and notice, with proof of the service thereof as aforesaid, the plaintiff shall be entitled to a rule upon the defendant to appear and plead at the next rule day, if the same be filed at rules, or if filed in court, to appear and plead within such time as shall be prescribed by the court; and if the defendant fail so to appear and plead, his default shall be entered and judgment given against him.(Code 1849, c. 135, §12; Code 1860, c. 135, §12; Code 1868, c. 90, §12; Code 1923, c. 90, §12.)

§10. Plea or Demurrer; Issue on Plea, and Evidence Admissible.—The defendant may demur to the declaration, as in personal actions, or plead thereto, or do both. But he shall plead the general issue only, which shall be that the defendant is not guilty of unlawfully withholding the premises claimed by the plaintiff in the declaration. Upon such plea, the defendant may give in evidence any matter which, if pleaded in the former writ of right, would have barred the action of the plaintiff.(Code 1849, c. 135, §13; Code 1860, c. 135, §13; Code 1868, c. 90, §13; Code 1923, c. 90, §13.)

§11. Equitable Title of Vendee a Defense.—A vendor, or any person claiming under him, shall not at law recover against a vendee, or those claiming under him, lands sold by such vendor to such vendee, when there is a writing stating the purchase, and the terms thereof, signed by the vendor or his agent.(Code 1849, c. 135, §20; Code 1860, c. 135, §20; Code 1868, c. 90, §20; Code 1923, c. 90, §20.)

§12. Title to Equity of Redemption a Defense.—The payment of the whole sum, or the performance of the whole duty, or the accomplishment of the whole purpose, which any mortgage or trust deed may have been made to secure or effect, shall prevent the grantee or his heirs from recovering at law, by virtue of such mortgage or trust deed, property thereby conveyed, whenever the defendant would in equity be entitled to a decree revesting the legal title in him without condition.(Code 1849, c. 135, §21; Code 1860, c. 135, §21; Code 1868, c. 90, §21; Code 1923, c. 90, §21.)

§13. Notice of Equitable Defense; Not a Bar to Relief in Equity.—A defendant shall not be allowed to avail himself of either of the two preceding sections, unless notice in writing of such defense shall be filed with his plea. Whether he shall or shall not make or attempt such defense, he shall not be precluded from resorting to equity for any relief to which he would have been entitled, if the said sections had not been enacted.(Code 1849, c. 135, §22; Code 1860, c. 135, §22; Code 1868, c. 90, §22; Code 1923, c. 90, §22.)

§14. Fictions Abolished; Proof.—The consent rules shall not be used. The plaintiff need not prove an actual entry on or possession of the premises demanded, or receipt of any profits thereof, nor any lease, entry or ouster, except as hereinafter provided. But it shall be sufficient for him to show a right to the possession of the premises at the time of the commencement of the suit.(Code 1849, c. 135, §14; Code 1860, c. 135, §14; Code 1868, c. 90, §14; Code 1923, c. 90, §14.)

§15. What Plaintiff Must Prove Against Cotenant.—If the action be by one or more tenants in common, or joint tenants, or coparceners, against their cotenants, the plaintiff shall be bound to prove actual ouster or some other act amounting to a total denial of the plaintiff’s right as cotenant.(Code 1849, c. 135, §15; Code 1860, c. 135, §15; Code 1868, c. 90, §15; Code 1923, c. 90, §15.)

§16. Adverse Possession Under Patent, Deed or Other Writing.—In a controversy affecting land, when a person claiming under a patent, deed or other writing shall enter upon and take possession of any part of the land in controversy under such patent, deed or other writing, for which some other person has the better title, such adversary possession under such patent, deed or other writing shall be taken and held to extend to the boundaries embraced or included by such patent, deed or other writing, unless the person having the better title shall have actual adverse possession of some part of the land embraced by such patent, deed or other writing.(Code 1849, c. 135, §19; Code 1860, c. 135, §19; Code 1868, c. 90, §19; 1879, c. 61, §19; Code 1923, c. 90, §19.)

§17. Verdict With Reference to Parties.—If the jury be of opinion for the plaintiffs, or any of them, the verdict shall be for the plaintiff’s or such of them as appear to have right to the possession of the premises, or any part thereof, and against such of the defendants as were in possession thereof, or exercised acts of ownership thereon, or claimed title thereto or any interest therein, at the commencement of the action. Where any plaintiff appears to have no such right, the verdict as to such plaintiff shall be for the defendants. If the action be against several defendants, and a joint possession of all be proved, and the plaintiff be entitled to a verdict, it shall be against all, whether they plead separately or jointly.(Code 1849, c. 135, §§16, 23, 24; Code 1860, c. 135, §§16, 23, 24; Code 1868, c. 90, §§16, 23, 24; Code 1923, c. 90, §§16, 23, 24.)

§18. Verdict With Reference to the Premises.—When the right of the plaintiff is proved to all the premises claimed, the verdict shall be for the premises generally, as specified in the declaration; but if it be proved to only a part or share of the premises, the verdict shall specify such part particularly as the same is proved, and with the same certainty of description as is required in the declaration. If the verdict be for an undivided share or interest in the premises claimed, it shall specify the same; and if for an undivided share or interest of a part of the premises, it shall specify such share or interest, and describe such part as before required. The verdict shall also specify the estate found in the plaintiff, whether it be in fee or for life, stating for whose life, or whether it be a term of years, and specifying the duration of such term.(Code 1849, c. 135, §§25, 26, 27; Code 1860, c. 135, §§25, 26, 27; Code 1868, c. 90, §§25, 26, 27; Code 1923, c. 90, §§25, 26, 27.)

§19. Judgment; Assignment of Dower.—The judgment for the plaintiff shall be that he recover the possession of the premises, according to the verdict of the jury, if there be a verdict; or if the judgment be by default, or on demurrer, according to the description thereof in the declaration. If the action be brought to recover dower which has not been assigned before the commencement of such action, the court in which the judgment is rendered may have dower assigned by commissioners appointed for that purpose. If the action be against several defendants, and it appear on the trial that any of them occupy distinct parcels, in severalty or jointly, the plaintiff may recover several judgments against them for the parcels so held by one or more of the defendants separately from others. The plaintiff may recover any specific or any undivided part or share of the premises, though it be less than he claimed in the declaration.(Code 1849, c. 135, §§17, 18, 29; Code 1860, c. 135, §§17, 18, 29; Code 1868, c. 90, §§17, 18, 29; Code 1923, c. 90, §§17, 18, 29.)

§20. Change in Plaintiff’s Right Pending Action; Additional Parties.—If the right or title of the plaintiff in ejectment be that of a tenant for life or for a term of years, and such right or title shall expire after the commencement of the action, but before trial, the verdict shall be according to the fact, and judgment shall be entered for his damages sustained by the withholding of the premises by the defendant; and as to the premises claimed, the judgment shall be that the defendant go thereof without day. But the right of the plaintiff to recover in the action shall not be affected or impaired by reason of any conveyance or transfer of the legal title to the premises in controversy, by or from the plaintiff to another, pending the action. And where any such conveyance or transfer is made, the person in whom the legal title to such premises is thereby vested may, at any time before trial, on motion of either party, be made a party plaintiff in the action, either with or without an amendment of the declaration, as the court may deem proper; and in such case, if the plaintiff recover, the verdict and judgment may be for all the plaintiffs, or for such of them as may be entitled to the possession of the premises at the time of the trial.(Code 1849, c. 135, §28; Code 1860, c. 135, §28; Code 1868, c. 90, §28; 1877, c. 110, §28; Code 1923, c. 90, §28.)

§21. Mesne Profits and Damages.—If the plaintiff file with his declaration a statement of the profits and other damages which he means to demand, and the jury find in his favor, they shall at the same time, unless the court otherwise order, assess the damages for mesne profits of the land for any period not exceeding five years previously to the commencement of the suit until the verdict, and also the damages for any destruction or waste of the buildings or other property during the same time for which the defendant is chargeable.(Code 1849, c. 135, §30; Code 1860, c. 135, §30; Code 1868, c. 90, §30; Code 1923, c. 90, §30.)

§22. How Damages Assessed.—If there be no issue of fact tried in the cause, and judgment is to be rendered for the plaintiff on demurrer, default, or otherwise, such damages shall be assessed by the court, unless either party shall move to have them assessed by a jury, or the court shall think proper to have them so assessed, in which case a jury shall be impaneled to assess them.(Code 1849, c. 135, §31; Code 1860, c. 135, §31; Code 1868, c. 90, §31; Code 1923, c. 90, §31.)

§23. Claim for Improvements.—If the defendant intends to claim allowance for improvements made upon the premises by himself or those under whom he claims, he shall file with his plea, or at a subsequent time before the trial (if for good cause allowed by the court), a statement of his claim therefor, in case judgment be rendered for the plaintiff.(Code 1849, c. 135, §32; Code 1860, c. 135, §32; Code 1868, c. 90, §32; Code 1923, c. 90, §32.)

§24. Balance as Between Damages and Improvements.—In such case, the damages of the plaintiff and the allowance to the defendant for improvements shall be estimated and the balance ascertained, and judgment therefor rendered, as prescribed in article five of this chapter.(Code 1849, c. 135, §33; Code 1860, c. 135, §33; Code 1868, c. 90, §33; Code 1923, c. 90, §33.)

§25. Assessment of Damages and Allowance for Improvements Postponed.—On motion of either party, the court may order the assessment of such damages and allowance to be postponed until after the verdict on the title is recorded.(Code 1849, c. 135, §34; Code 1860, c. 135, §34; Code 1868, c. 90, §34; Code 1923, c. 90, §34.)

§26. Effect of Judgment.—Any such judgment in an action of ejectment shall be conclusive as to the right of the possession established in such action upon the party against whom it is rendered, and, subject to the provisions of section two, article eleven of this chapter, against all persons claiming from, through, or under such party, by title accruing after the commencement of such action, except as hereinafter mentioned.(Code 1849, c. 135, §35; Code 1860, c. 135, §35; Code 1868, c. 90, §35; Code 1923, c. 90, §35.)

§27. Effect of Judgment as to Persons Under Disability.—If any person against whom such judgment is rendered shall be at the time of the judgment an infant, or insane, the judgment shall be no bar to an action commenced within three years after the removal of such disability.(Code 1849, c. 135, §36; Code 1860, c. 135, §36; Code 1868, c. 90, §36; 1919, c. 107, §36; Code 1923, c. 90, §36.)

§28. Right to Recover Mesne Profits and Damages Against Those Not Parties.—Nothing in this article shall prevent the plaintiff from recovering mesne profits, or damages done to the premises, from any person other than the d fendants, who may be liable to such action.(Code 1849, c. 135, §37; Code 1860, c. 135, §37; Code 1868, c. 90, §37; Code 1923, c. 90, §37.)

§29. Default or Surrender by Tenant for Life.—If any tenant for life of land make default or surrender, the heirs, or those entitled to the remainder, may, before judgment, be admitted to defend their right, or after judgment may assert their right, without prejudice from such default or surrender.(Code 1849, c. 133, §3; Code 1860, c. 133, §3; Code 1868, c. 88, §3; Code 1923, c. 88, §3.)

§30. Descent Cast.—The right of entry on, or action for, land shall not be tolled or defeated by descent cast.(Code 1849, c. 133, §4; Code 1860, c. 133, §4; Code 1868, c. 88, §4; Code 1923, c. 88, §4.)

§1. Method of Asserting Claim.—Any defendant against whom a decree or judgment shall be rendered for land, where no assessment of damages has been made under the preceding article, may, at any time before the execution of the decree or judgment, present a petition to the court rendering such decree or judgment, stating that he or those under whom he claims, while holding the premises under a title believed by him or them to be good, have made permanent improvements thereon, and praying that he may be allowed for the same the fair and reasonable value thereof; and thereupon the court, if satisfied of the probable truth of the allegation, shall suspend the execution of the judgment or decree, and impanel a jury to fix and assess the damages of the plaintiff (if any) and the value of the improvements (if any) so made by the defendant.(Code 1849, c. 136, §1; Code. 1860, c. 136, §1; Code 1868, c. 91, §1; 1882, c. 70, §1; Code 1923, c. 91, §1.)

§2. Improvements Made Before Notice of Title.—If the jury be satisfied that the defend ant, or those under whom he claims, made on the premises, at a time when there was reason to believe the title good under which he or they were holding such premises, permanent and valuable improvements, they shall estimate in his favor the value of such improvements as were so made before notice in writing of the title under which the plaintiff claims, as they are at the time such valuation is made.(Code 1849, c. 136, §4; Code 1860, c. 136, §4; Code 1868, c. 91, §4; 1882, c. 70, §4; Code 1923, c. 91, §4.)

§3. Fixing Value of Improvements and Assessing Damages.—The jury, in fixing and assessing such value and damages, shall estimate against the defendant the annual value of such part of the premises (if any) as was improved and in a state fit and prepared for cultivation at the time he took possession thereof, and also the damages for waste or other injury to the premises committed by the defendant, and shall credit him with the value of all the improvements made thereon, but no charge shall be made against the tenant for the use of any improvements made upon the land by him, or for the use of any part of the land cleared by him.(Code 1849, c. 136, §2; Code 1860, c. 136, §2; Code 1868, c. 91, §2; 1882, c. 70, §2; Code 1923, c. 91, §2.)

§4. For What Period Annual Value and Damages to be Estimated.—The defendant shall not be liable for such annual value or damages for any period longer than five years before the action or suit was brought, except that, if the sum allowed by the jury for the improvements exceed that allowed to the plaintiff for the annual value and damages of the premises under section three of this article, the jury may then estimate against the defendant such annual value and damages for the time he has used and occupied the same before the said five years.(Code 1849, c. 136, §§3, 5; Code 1860, c. 136, §§3, 5; Code 1868, c. 91, §§3, 5; 1882, c. 70, §§3, 5; Code 1923, c. 91, §§3, 5.)

§5. Verdict; Judgment or Decree.—After setting off the amount allowed the plaintiff (if any) against the amount allowed to the defendant for improvements (if any), the jury shall find a verdict for the plaintiff or defendant, as the case may be, and judgment or decree shall be entered therefor according to the verdict.(Code 1849, c. 136, §6; Code 1860, c. 136, §6; Code 1868, c. 91, §6; 1882, c. 70, §6; Code 1923, c. 91, §6.)

§6. Lien of Judgment.—Any such balance due to the defendant shall constitute a lien upon the land recovered by the plaintiff until the same shall be paid.(Code 1849, c. 136, §7; Code 1860, c. 136, §7; Code 1868, c. 91, §7; Code 1923, c. 91, §7.)

§7. Reimbursement of Life Tenant by Remainderman or Reversioner.—If the plaintiff claim only an estate for life in the land recovered, and pay any sum allowed to the defendant for improvements, he or his personal representative may recover, at the determination of his estate, from the remainderman or reversioner, the value of such improvements, as they then exist, not exceeding the amount so paid by him, and shall have a lien therefor on the premises, in like manner as if they had been mortgaged for the payment thereof, and may keep possession of such premises until it be paid.(Code 1849, c. 136, §8; Code 1860, c. 136, §8; Code 1868, c. 91, §8; Code 1923, c. 91, §8.)

§8. Mortgages and Trust Deeds Excepted.—Nothing in this article, nor anything in article four of this chapter, concerning rents, profits and improvements, shall extend or apply to any suit brought by a mortgagee, or a trustee in a trust deed to secure creditors, his heirs or assigns, against a mortgagor, or grantor in such trust deed, his heirs or assigns, for the recovery of the mortgaged premises or of the land conveyed by such trust deed.(Code 1849, c. 136, §9; Code 1860, c. 136, §9; Code 1868, c. 91, §9; Code 1923, c. 91, §9.)

§9. Plaintiff May Have Value of Estate Ascertained for Relinquishment.—When the defendant shall claim allowance for improvements, as before provided, the plaintiff may, by an entry on the record, require that the value of his estate in the premises, without the improvements, shall also be ascertained.(Code 1849, c. 136, §10; Code 1860, c. 136, §10; Code 1868, c. 91, §10; Code 1923, c. 91, §10.)

§10. Estimation of Value of Premises.—The value of the premises, in such case, shall be estimated as it would have been at the time of the inquiry, if no such improvements had been made on the premises by the tenant or any person under whom he claims, and shall be ascertained in the manner hereinbefore provided for estimating the value of improvements.(Code 1849, c. 136, §11; Code 1860, c. 136, §11; Code 1868, c. 91, §11; Code 1923, c. 91, §11.)

§11. Method of Election to Relinquish Estate; Title of Defendant.—The plaintiff in such ease, if judgment is rendered for him, may, at any time during the same term, or before judgment or decree is rendered on the assessment of the value of the improvements, in person or by his attorney in the cause, enter on the record his election to relinquish his estate in the premises to the defendant at the value so ascertained, and the defendant shall thenceforth hold all the estate that the plaintiff had therein at the commencement of the suit, provided he pay therefor such value, with interest, in the manner in which the court may order it to be paid.(Code 1849, c. 136, §12; Code 1860, c. 136. §12; Code 1868, c. 91, §12; Code 1923, c. 91, §12.)

§12. How Payment to be Made or Enforced.—The payments shall be made to the plaintiff, or into court for his use, and the land shall be bound therefor, and if the defendant fail to make such payments within or at the time limited therefor, respectively, the court may order the land to be sold, and the proceeds applied to the payment of such value and interest, and the surplus, if any, to be paid to the defendant; but if the proceeds be insufficient to satisfy such value and interest, the defendant shall not be bound for the deficiency.(Code 1849, c. 136, §13; Code 1860, c. 136, §13; Code 1868, c. 91, §13; Code 1923, c. 91, §13.)

§13. Disposition of Value When Party Under Disability.—If the party by or for whom the land is claimed in the suit be a minor or insane, such value shall be deemed to be real estate, and be disposed of as the court may consider proper for the benefit of the persons interested therein.(Code 1849, c. 136, §14; Code 1860, c. 136, §14; Code 1868, c. 91, §14; Code 1923, c. 91, §14.)

§14. Eviction of Defendant; Recovery of Amount Paid.—If the defendant, or his heirs or assigns, shall, after the premises are so relinquished to him, be evicted thereof by force of any better title than that of the original plaintiff, the person so evicted may recover from such plaintiff, or his representatives, the amount so paid for the premises, as so much money had and received by such plaintiff, in his lifetime, for the use of such person, with lawful interest thereon from the time of such payment.(Code 1849, c. 136, §15; Code 1860, c. 136, §15; Code 1868, c. 91, §15; Code 1923, c. 91, §15.)

§1. Affidavit and Bond Filed by Plaintiff to Obtain Possession of Property.—If the plaintiff in an action of detinue shall desire to have immediate possession of the property for the recovery of which such action is brought, he may, at the commencement of the action, or at any time thereafter and before judgment, file with the clerk of the court in which the action is brought, or, if the action is brought before a justice, with the justice before whom the same is brought or is pending, an affidavit stating the kind, quality, and value of the property claimed by the plaintiff in such action, and that the affiant verily believes the plaintiff is entitled to recover the same therein. He shall also, in such case, execute a bond, with good security, to be approved by the clerk or justice, in a penalty at least double the value of the property claimed, payable to the defendant, with condition to pay all costs and damages which may be awarded against him, or sustained by any person by reason of such suit, and to have the property so claimed forthcoming to answer any judgment or order of the court or justice respecting the same made at any time during the pendency of the action, and shall file such bond with the clerk or justice.(1866, c. 55, §1; Code 1868, c. 102, §1; Code 1923, c. 102, §1.)

§2. Order for Seizure of Property.—If such affidavit and bond be filed at the commencement of the action, the clerk or justice shall indorse on the summons an order to the officer to whom the same is directed to seize and take into his possession the property mentioned in such summons. But if the same be filed after the commencement of the action, the clerk or justice shall issue an order reciting the pendency of the action, and stating the kind, quantity, and value of the property for which the action is brought, and requiring the officer to whom the same is directed to seize and take into his possession the property mentioned in such order.(1866, c. 55, §2; Code 1868, c. 102, §2; Code 1923, c. 102, §2.)

§3. Seizure of Property by Officer.—It shall be the duty of the officer to whom any such summons or order is delivered to proceed forthwith to execute the same; and he may, if necessary, break open and enter any house or other inclosure in which such property may be, in order to seize the same.(1866, c. 55, §3; Code 1868, c. 102, §3; Code 1923, c. 102, §3.)

§4. Bond Given by Defendant to Regain Possession of Property; Delivery of Property to Plaintiff.—The defendant in any such action may have the property taken possession of by such officer, by virtue of such summons or order, returned to him at any time within three days after such taking, upon executing a bond with good security, to be approved by such officer, payable to the plaintiff, in a penalty at least double the value of such property, with condition to pay all costs and damages which may be awarded against him in such action, and all damages which may be sustained by any person by reason of the return of such property to him, and to have the property forthcoming to answer any judgment or order of the court or justice respecting the same made at any time during the pendency of the action; which bond shall be delivered to such officer, and by him returned to the office of the clerk or justice who issued such summons or order. Upon the reception of such bond by the officer aforesaid, he shall forthwith return the property taken by him to the defendant; but in case no such bond be delivered to such officer within such three days, the property shall be delivered by an officer to the plaintiff.(1866, c. 55, §4; Code 1868, c. 102, §4; Code 1923, c. 102, §4.)

§5. Exceptions to Sufficiency of Sureties.—Either party may, upon reasonable notice to the other, except to the sufficiency of the sureties in the bond of such other party and the court, or the judge thereof in vacation, or the justice before whom such action is pending, may, upon the hearing of such exceptions, make such order in the premises as may seem just and equitable.(1866, c. 55, §5; Code 1868, c. 102, §5; Code 1923, c. 102, §5.)

§6. Verdict and Judgment.—Upon the final trial of any such action, if the verdict be for the plaintiff, and he be not already in the possession of the property claimed, the judgment shall be that he recover the possession of such property, if a recovery thereof can be had; and if not, that he recover the value thereof as found by such verdict; and, in either event, that he recover the damages assessed by the jury for the detention of such property, and his costs in such action. And it shall be the duty of the jury in such cases to ascertain and assess such damages as the plaintiff has sustained by reason of the detention of such property by the defendant. If the plaintiff be already in possession of such property, the judgment shall be that he retain the possession there of, and for damages and costs, as aforesaid. In case the verdict at such trial be for the defendant, if the plaintiff be in possession of the property claimed, the jury shall, in like manner, ascertain and assess the damages sustained by the defendant by reason of the detention of such property by the plaintiff, and also the value of such property, and judgment shall be entered upon such verdict in all respects as is provided in case the verdict be for the plaintiff. If, on an issue concerning several things in one count, no verdict be found for part of them, it shall not be error, but the plaintiff shall be barred of his title to the things omitted; and if the verdict omit price or value, the court may at any time have a jury impaneled to ascertain the same.(Code 1849, c. 177, §13; Code 1860, c. 177, §13; 1866, c. 55, §6; Code 1868, c. 102, §6; 1891, c. 52, §6; Code 1923, c. 102, §6.)

§7. Execution.—The execution issued in such cases shall conform in all things to the judgment entered therein.(1866, c. 55, §7; Code 1868, c. 102, §7; Code 1923, c. 102, §7.)

§1. Seduction.—An action for seduction may be maintained, without any allegation or proof of the loss of the service of the female by reason of the defendant’s wrongful act.(Code 1849, c. 148, §1; Code 1860, c. 148, §1; Code 1868, c. 103, §1; Code 1923, c. 103, §1.)

§2. Insulting Words.—All words which, from their usual construction and common acceptation, are construed as insults and tend to violence and breach of the peace, shall be actionable. No demurrer shall preclude a jury from passing thereon.(Code 1849, c. 148, §2; Code 1860, c. 148, §2; Code 1868, c. 103. §2; Code 1923, c. 103, §2.)

§3. Unlawful Seizure or Attachment.—If property be seized for any rent not due, or attached for any rent not accruing, or taken under any attachment sued out without good cause, the owner of such property may, in an action against the party causing the seizure or attachment, recover damages for the wrongful seizure, and also, if the property be sold, for the sale thereof.(Code 1849, c. 148, §3; Code 1860, c. 148, §3; Code 1868, c. 103, §3; Code 1923, c. 103, §3.)

§4. Action of Replevin Abolished.—No action of replevin shall be hereafter brought.(Code 1849, c. 148, §4; Code 1860, c. 148, §4; Code 1868, c. 103, §4; Code 1923, c. 103, §4.)

§5. Action for Wrongful Death.—Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter. No action, however, shall be maintained by the personal representative of one who, not an infant, after injury, has compromised for such injury and accepted satisfaction therefor previous to his death.(1863, c. 98, §1; Code 1868, c. 103, §5; Code 1923, c. 103, §5.)

§6. Party Plaintiff in Such Action; Damages; Distribution; Limitation.—Every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate. In every such action the jury may give such, damages as they shall deem fair and just, not exceeding ten thousand dollars, and the amount so recovered shall not be subject to any debts or liabilities of the deceased. Every such action shall be commenced within two years after the death of such deceased person.(1863, c. 98, §2; Code 1868, c. 103, §6; 1882, c. 105, §6; Code 1923, c. 103, §6.)

§7. How Claim to Damages Under Section Five May be Compromised.—The personal representative of the deceased may compromise any claim to damages arising under section five of this article before or after action brought, with the consent of the persons who would be entitled to the damages recovered in an action therefor brought by such representative under section six of this article; or if any such persons are incapable from any cause of giving consent, the personal representative may compromise with the approval of the judge of the court wherein any such action has been brought, or if none has been brought, with the consent of the judge of the court wherein such action may be brought. Such approval may be applied for by the personal representative, on petition to the judge, in term or vacation, stating the compromise, the terms thereof, and reasons therefor, and convening the parties in interest. What is received by the personal representative under the compromise shall be treated as if recovered by him in an action under the section last mentioned. When the judge acts in vacation, he shall return all the papers in the case, and orders made therein, to the clerk’s office of such court. The clerk shall file the papers in his office as soon as received, and forthwith enter the order in the order book on the law side of the court. Such orders, and all the proceedings in vacation, shall have the same force and effect as if made or had in term.

§8. When Action Not to Abate.—Where an action is brought by a person injured for damage caused by the wrongful act, neglect, or default of any person or corporation, and pending the action the person injured dies from the injury caused by such wrongful act, neglect, or default, the action shall not abate by reason of his death, but, his death being suggested, it may be revived in the name of his personal representative, and the declaration and other pleadings shall be amended so as to conform to an action under sections five and six of this article, and the case proceeded with as if the action had been brought under the said sections. But in such case there shall be but one recovery for the same injury. Nothing contained in this section shall be construed to extend the time within which an action for any other tort shall be brought, nor to give the right to assign a claim for a tort not otherwise assignable.

§9. Violations of Statutes.—Any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages.(Code 1849, c. 148, §6; Code 1860, c. 148, §6; Code 1868, c. 103, §7; Code 1923, c. 103, §7.)

§10. Trespass Abolished and Trespass on the Case Enlarged.—The action of trespass is abolished. In all cases in which an action of trespass could have been maintained an action of trespass on the case shall lie.(Code 1849, c. 148, §7; Code 1860, c. 148, §7; Code 1868, c. 103, §8; Code 1923, c. 103, §8.)

§11. Suits Against Unincorporated Carriers.—Where common carriers are not incorporated, any one or more of them may be sued by his or their name or names only, to recover damages for loss of, or injury to, any parcel, package, or person; and such suit shall not abate for the want of joining any of the coproprietors, or copartners.(Code 1849, c. 147, §1; Code 1860, c. 147, §1; Code 1868, c. 103, §9; Code 1923, c. 103, §9.)

§12. Liability of Joint Tort Feasors Not Affected by Release to or Accord and Satisfaction With Another.—A release to, or an accord and satisfaction with, one or more joint trespassers, or tort feasors, shall not inure to the benefit of another such trespasser, or tort feasor, and shall be no bar to an action or suit against such other joint trespasser, or tort feasor, for the same cause of action to which the release or accord and satisfaction relates.(Code 1868, c. 136, §7; 1882, c. 124, §7; Code 1923, c. 136, §7.)

§13. Contribution by Joint Tort Feasors.—Where a judgment is rendered in an action ex delicto against several persons jointly, and satisfaction of such judgment is made by any one or more of such persons, the others shall be liable to contribution to the same extent as if the judgment were upon an action ex contractu.(1872-3, c. 57, §1; 1882, c. 124, §8; Code 1923, c. 136, §8.)

§1. Jurisdiction in Proceedings on Penal Bonds.—Where the proceeding before a court is on a penal bond, with condition for the payment of money, or for the performance or for bearance of any other act or thing, the jurisdiction shall be determined as if the undertaking to pay such money, or to do or forbear the doing of such other act or thing, had been without a penalty.(Code 1849, c. 183, §2; Code 1860, c. 183, §2; Code 1868, c. 136, §1; 1882, c. 124, §1; Code 1923, c. 136, §1.)

§2. Debt or Assumpsit on Note or Writing; Debt for Any Installment.—An action of debt or assumpsit may be maintained on any note or writing, whether sealed or not, by which there is a promise, undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby, or his agent. And an action of debt may also be maintained on any such note or writing for any past due installment of a debt payable in installments, although other installments thereof be not due.(Code 1849, c. 144, §10; Code 1860, c. 144, §10; Code 1868, c. 99, §10; Code 1923, c. 99, §10.)

§3. Action of Assumpsit for Breach of Contract.—An action of assumpsit shall lie in all cases to recover damages for the breach of any contract, express or implied, and, if in writing, whether under seal or not.(1901, c. 17, §1; Code 1923, c. 99, §16a.)

§4. General Issue in Debt or Assumpsit on a Sealed Instrument.—The general issue in an action of debt on a sealed instrument shall be nil debit, and in an action of assumpsit on such instrument it shall be non assumpsit. It shall not be necessary in either case to plead non est factum, but any evidence admissible under a plea of non est factum may be given under the general issue, provided there be filed with such plea of the general issue the affidavit required by section forty-six, article four, chapter fifty–six of this Code.

§5. Writing Payable to Person Dead at Time of Execution Valid.—A bond, note or other writing to a person or persons who, or some of whom, are dead at the time of its execution, shall be as valid as if such person or persons were then alive, and may be proceeded on in the same manner as if it had been executed in the lifetime of such person or persons and such person or persons had died after its execution.(Code 1849, c. 144, §12; Code 1860, c. 144, §12; Code 1868, c. 99, §12; Code 1923, c. 99, §12.)

§6. Liability of Estate of Deceased Joint Obligor, Promisor, or Partner.—The representative of one bound with another, either jointly or as a partner, by judgment, bond, note or otherwise, for the payment of a debt, or the performance or forbearance of an act, or for any other thing, and dying in the lifetime of the latter, may be charged in the same manner as such representative might have been charged, if those bound jointly or as partners had been bound severally as well as jointly, otherwise than as partners.(Code 1849, c. 144, §13; Code 1860, c. 144, §13; Code 1868, c. 99, §13; Code 1923, c. 99, §13.)

§7. Suits Against Makers, Drawers, Indorsers, Acceptors, Assignors or Absolute Guarantors.—The holder of any note, check, draft, bill of exchange, or other instrument of any character, whether negotiable or not, or any person entitled to judgment for money on contract, in any action at law or proceeding by notice for judgment on motion thereon, may join all or any intermediate number of the persons liable by virtue thereof, whether makers, drawers, indorsers, acceptors, assignors, or absolute guarantors, or may proceed against each separately, although the promise of the makers, or the obligations of the persons otherwise liable, may be joint or several, or joint and several. If notice or other process be not served upon all persons proceeded against, judgment may nevertheless be given against those liable who have been served as provided by law with such notice or other process. Such actions or proceedings by notice may be had from time to time in the same or any other court until judgment is obtained against every person liable or his personal representative. However, plaintiff shall have satisfaction of but one of two or more judgments rendered on the same demand.(Code 1849, c. 144, §§11, 15, c. 167, §6; Code 1860, c. 144, §§11, 15, c. 167, §7; Code 1868, c. 99, §§11, 15, c. 121, §7; 1882, c. 74, §7; Code 1923, c. 99, §§11, 15, c. 121, §7.)

§8. Joinder in Same Action of Survivors and Personal Representatives of Decedents.—In every action or motion in which a decedent, if living, could be joined as defendant with an other or others under section seven of this article, his personal representative may be joined with him or them, or with the personal representative of any one or more of them. In every such case in which a judgment is rendered against a personal representative, alone or jointly with another or others, such judgment, as to such representative, shall affect only the estate of his decedent, and shall, as to such estate, have the same force and effect as if rendered in an action in which such representative is sued alone. But nothing in this section shall prevent a plaintiff, at his election, from proceeding separately against the representative of any decedent.

§9. Action by Assignee in Own Name; Defenses and Sets-Off; Joinder of Claims.—The assignee of any bond, note, account, or writing, not negotiable, or other chose in action arising out of contract or injury to personal or real property, may maintain thereupon any action in his own name, without the addition of “assignee,” which the original obligee, promisee, payee, contracting party, or owner of such chose in action might have brought; but shall allow all just defenses and sets-off, not only against himself, but against the assignor, before the defendant had notice of the assignment. In every such action the plaintiff may unite claims payable to him individually with those payable to him as such assignee, provided it be otherwise proper to join them. But nothing in this section shall be construed to make assignable any right of action not otherwise assignable.(Code 1849, c. 144, §14; Code 1860, c. 144, §14; Code 1868, c. 99, §14; Code 1923, c. 99, §14.)

§10. Assignee Entitled to Recover From Assignor; Defenses Allowed.—Any assignee mentioned in section nine of this article may recover from any assignor of such writing, whether joined as defendants under section seven of this article, or proceeded against separately, but a remote assignor shall have the benefit of the same defenses as if the suit had been instituted by his immediate assignee.(Code 1849, c. 144, §15; Code 1860, c. 144, §15; Code 1868, c. 99, §15; Code 1923, c. 99, §15.)

§11. Limitation of Remedies in Equity.—A court of equity shall not have jurisdiction of a suit upon a bond, note, or writing, by an assignee or holder thereof, unless it appear that the plaintiff had not an adequate remedy thereon at law.(Code 1849, c. 144, §16; Code 1860, c. 144, §16; Code 1868, c. 99, §16; Code 1923, c. 99, §16.)

§12. Third Party May Sue on Covenant or Promise Made for His Sole Benefit.—If a covenant or promise be made for the sole benefit of a person with whom it is not made, or with whom it is made jointly with others, such person may maintain, in his own name, any action thereon which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise.(Code 1849, c. 116, §2; Code 1860, c. 116, §2; Code 1868, c. 71, §2; Code 1923, c. 71, §2.)

§13. Action of Account.—An action of account may be maintained against the personal representative of any guardian or receiver; and also by one joint tenant, tenant in common, or coparcener or his personal representative against the other, or against the personal representative of the other, for receiving more than his just share or proportion.(Code 1849, c. 145, §14; Code 1860, c. 145, §14; Code 1868, c. 100, §14; Code 1923, c. 100, §14.)

§1. What Are Gaming Contracts.—Every contract, conveyance, or assurance, of which the consideration, or any part thereof, is money, property, or other thing won or bet at any game, sport, pastime, or wager, or money lent or advanced at the time of any gaming, betting, or wagering, to be used in being so bet or wagered (when the person lending or advancing it knows that it is to be so used) shall be void as between the parties thereto, and as to all persons except such as hold or claim under them in good faith, for value, and without notice of the illegality of the consideration.(Code 1849, c. 142, §2; Code 1860, c, 142, §2; Code 1868, c. 97, §1; Code 1923, c. 97, §1.)

§2. Recovery of Money or Property Lost.—If any person shall lose to another within twenty-four hours ten dollars or more, or property of that value, and shall pay or deliver the same, or any part thereof, such loser may recover back from the winner the money or property, or in lieu of the property the value thereof, so lost, by suit in court, or before a justice, according to the amount or value, brought within three months after such payment or delivery. The loser may so recover from the winner, not withstanding the payment or delivery was to the winner’s indorsee, assignee, or transferee. But nothing in this section shall be so construed as to permit a recovery of such property, or its value, from any person (or those claiming under him) other than the winner, when such person has paid value for such property without notice of the illegal consideration under which the winner derived his claim of title.(Code 1849, c. 142, §3; Code 1860, c. 142, §3; Code 1868, c. 97, §2; Code 1923, c. 97, §2.)

§3. Recovery by Bill in Equity; Discharge of Winner From Forfeiture or Punishment.—Such loser may file a bill in equity against such winner, who shall answer the same, and y upon discovery and repayment or redelivery of the money or property so won, or its value, such winner shall be discharged from any forfeiture or punishment which he may have incurred for winning the same.(Code 1849, c. 142, §4; Code 1860, c. 142, §4; Code 1868, c. 97, §3; Code 1923, c. 97, §3.)

§1. Submission; Rule to Submit to Award; Defenses; Set-Off.—Persons desiring to end any controversy, whether there be a suit pending therefor or not, may submit the same to arbitration, and agree that such submission may be entered of record in any court. Upon proof of such agreement out of court, or by consent of the parties given in court, in person or by counsel, it shall be entered in the proceedings of such court; and thereupon a rule shall be made that the parties shall submit to the award which shall be made in pursuance of such agreement. When a pending cause is submitted to arbitration, the defendant may make any defense to the plaintiff’s claim or demand that he could make under any proper plea filed in court, whether such plea has been filed or not, by giving to the plaintiff reasonable notice in writing of the nature and character of his defense; and in a suit for any debt, he may at the trial before the arbitrators prove and have allowed against such debt any payment or set-off, whether before that time pleaded or not, or whether an account of set–off has before that time been filed or not, which he may plead or file before the arbirtators in such manner as to give the plaintiff notice of its nature, but not otherwise. Although the claim of the plaintiff be jointly against several persons and the set-off be of a debt, not to all, but only to a part of them, this section shall extend to such set-off, if it appear that the persons against whom such claim is stand in the relation of principal and surety, and the person entitled to the set-off be the principal. When the defendant is allowed to file and prove an account of set-off to the plaintiff’s demand, the plaintiff shall be allowed to file and prove an account of counter set-off, and make such other defense as he might have made had an original action been brought upon such set-off; and upon the trial the arbitrators shall ascertain the true state of indebtedness between the parties, and the award shall be rendered accordingly.(Code 1849, c. 153, §1; Code 1860, c. 153, §1; Code 1868, c. 108, §1; 1882, c. 63, §1; Code 1923, c. 108, §1.)

§2. Revocation of Submission; Extension of Time for Award.—No such submission, entered or agreed to be entered of record, in any court, shall be revocable by any party to such submission, without the leave of such court; and such court may, from time to time, enlarge the term within which an award is required to be made.(Code 1849, c. 153, §2; Code 1860, c. 153, §2; Code 1868, c. 108, §2; 1882, c, 63, §2; Code 1923, c. 108, §2.)

§3. Entry of Award as Judgment or Decree; Compensation of Arbitrators.—Upon the return of any such award, made under such an agreement (whether any previous record of the submission or rule thereupon has been made or not), it shall be entered up as the judgment or decree of the court, unless good cause be shown against it at the first term after the parties have been summoned to show cause against it. And the court shall make to such arbitrators such reasonable allowance for their services as it may deem proper, to be taxed in the costs of the suit or proceeding, when no provision is made for the pay of the arbitrators in the arbitration agreement, or to be otherwise paid as the court may direct.(Code 1849, c. 153, §3; Code 1860, c. 153, §3; Code 1868, c. 108, §3; 1882, c. 63, §3; Code 1923, c. 108, §3.)

§4. Setting Aside Award; Equity Jurisdiction Not Affected.—No such award shall be set aside, except for errors apparent on its face, unless it appears to have been procured by corruption or other undue means, or by mistake, or that there was partiality or misbehavior in the arbitrators, or any of them, or that the arbitrators so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made. But this section shall not be construed to take away the power of courts of equity oyer awards.(Code 1849, c. 153, §4; Code 1860. c. 153, §4; Code 1868, c. 108, §4; 1882, c. 63, §4; Code 1923, c. 108, §4.)

§5. Rehearing by Arbitrators.—Where an award is vacated, and the time within which the submission requires the award to be made has not expired, the court, in its discretion, may direct a rehearing by the arbitrators.

§6. When Award May be Modified and Corrected.—Any party to such submission may also move to modify or correct such award in the following cases: (a) Where there is an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property referred to in such award; (b) where the arbitrators shall have awarded upon some matter not submitted to them, nor affecting the merits of the decision of the matter submitted; (c) where the award shall be im perfect in some matter of form not affecting the merits of the controversy, and when, if it had been a verdict, such defect could have been amended or disregarded by the court.

§7. Arbitration by Fiduciaries.—Any personal representative of a decedent, guardian of an infant, committee of an insane person or a convict, or trustee, may file his petition in the circuit court of the county in which he qualified or was appointed, asking permission from such court to submit to arbitration any suit or matter of controversy touching the estate or property of such decedent, infant, insane person, or convict, or in respect to which he is trustee, in which petition shall be stated the facts upon which the petitioner seeks the permission of the court. The court may, in its discretion, grant or refuse the prayer of the petition. If the petition be filed in good faith, and the petition be granted by the court, an order showing that permission to arbitrate was granted shall be entered on the chancery order book of the court, and the award made in any such case shall be binding upon all the parties in interest, and shall be entered as the judgment or decree of the court in the same manner as other submissions and awards are entered, unless set aside by the court. If the petition be filed in good faith and there be no fault or neglect on the part of the fiduciary, he shall not be responsible for any loss sustained by an award adverse to the interests of his decedent, ward, insane person, convict or beneficiary under any such trust.(Code 1849, c. 153, §5; Code 1860, c. 153, §5; Code 1868, c. 108, §5; 1882, c. 63, §5; Code 1923, c. 108, §5.)

§8. Umpires.—Wherever the word “arbitrators” is used in this chapter, it shall be construed as applying to and including any “umpire” who has participated in the arbitration.

§1. Lis Pendens Record.—There shall be kept in the office of the clerk of the county court of each county of this State a book to be called the “lis pendens record,” which shall be a public record.(1921, c. 64, §13; Code 1923, c. 139, §13.)

§2. Lis Pendens Notice; Effect.—Whenever any person shall commence a suit, action, attachment, or other proceeding, whether at law or in equity, to enforce any lien upon, right to, or interest in designated real estate, the pendency of such suit, action, attachment or other proceeding shall not operate as constructive notice thereof to any pendente lite purchaser or encumbrancer of such real estate for a valuable consideration and without notice, until such person shall file for recordation with the clerk of the county court of each county where the real estate sought to be affected is situated, a memorandum or notice of the pendency of such suit, action, attachment or other proceeding, stating the title of the cause, the court in which it is pending, the names of all the parties to such proceeding, a description of the real estate to be affected, the nature of the lien, right or interest sought to be enforced against the same, and the name of the person whose estate therein is intended to be affected: Provided, however, That where the lien, right or interest asserted is based upon a judgment, decree, claim, contract or other instrument which has been docketed or recorded according to law in the office of the clerk of the county court of the county wherein the real estate is situated, and has thus become a matter of public record, the failure to file the notice herein mentioned shall not operate to defeat the enforcement of such lien, right or interest in the real estate as against such pendente lite purchaser or encumbrancer.

The clerk of every such county court shall, without delay, record such memorandum or notice in the “lis pendens record,” note upon the record the day and hour when such notice was filed for recordation, and index the same in the names of the parties.(Code 1849, c. 186, §5; 1850-51, c. 41, §19; Code 1860, c. 186, §5; Code 1868, c. 139, §14; 1877, c. 68, §14; 1882, c. 126, §13; 1921, c. 64, §§14, 15; Code 1923, c. 139, §§14, 15.)

§1. Order for Sale of Property; Terms; Sale by Special Commissioner or Receiver; Bond; Deposit of Proceeds; Penalties.—A court, in a suit properly pending therein, may make a decree or order for the sale of property in any part of the State, and may direct the sale to be for cash, or on such credit and terms as it may deem best; and it may appoint a special commissioner or special receiver to make such sale. Every special commissioner or special receiver appointed under this section shall be a resident of the State of West Virginia, and he shall make no sale and shall receive no money under a decree or order until he give a bond with approved security before the said court or its clerk, conditioned as the law requires for the faithful accounting therefor, and with the further condition that he will deposit in his name as such special commissioner or special receiver all moneys received by him as such special commissioner or special receiver in one or more banks in the county in which the suit or cause is properly instituted and will not remove the same therefrom without the order or decree of distribution of the presiding judge; and any special commissioner or special receiver violating the conditions of his bond or the provisions of this section by making a sale or receiving money before executing bond as aforesaid, or failing to deposit the money in one or more banks in the county in which the suit or cause is properly instituted as aforesaid, or failing to keep the same therein subject to a decree of distribution, shall be guilty of a misdemeanor and shall be punished by a fine of not less than twenty-five nor more than one hundred dollars and may be imprisoned in the county jail for a term not to exceed ten days.(Code 1849, c. 178, §1; Code 1860, c. 178, §1; Code 1868, c. 132, §1; 1882, c. 142, §1; 1899, c. 49, §1; 1903, c. 15, §1; 1915, c. 76, §1; Code 1923, c. 132, §1.)

§2. Notice of Sale; Contents; Publication.—Whenever a court shall decree the sale of real estate, if it appear to the court that such real estate is of the value of five hundred dollars or more, it shall prescribe in the decree that such sale shall be advertised in a newspaper by the commissioner or person appointed to make the sale. It shall always be advertised in a newspaper published in the county where the real estate to be sold is situated, if one be published therein which will make the publication at the legal rate; otherwise, in such newspaper as is prescribed in section thirty-four, article one, chapter fifty-nine of this Code. In the advertisement the commissioner shall state the time, terms and place of sale, together with a description of the property to be sold: Provided, however, That nothing herein shall be construed to limit the power of the court to direct sales of lands to be advertised in newspapers where the value may be less than five hundred dollars.(1872-3, c. 151, §1; Code 1923, c. 132, §1a.)

§3. Certificate as to Bond to be Appended to Notice of Sale; Effect.—Every notice of such sale shall have appended to it the certificate of such clerk that bond and security has been given by the commissioner or special receiver as required by law. When such certificate shall have been published (or posted, when the notice is posted in lieu of publication) with an advertisement of the sale of property, or when such bond shall have been given prior to a sale not publicly advertised, any person purchasing such property in pursuance of such advertisement, or in pursuance of the decree or order of sale, shall be relieved of all liability for the purchase money, or any part thereof, which he may pay to any commissioner or special receiver as to whom a proper certificate shall have been appended to such advertisement, or who shall have given the bond aforesaid.(1882, c. 142, §1; 1899, c. 49, §1; 1903, c. 15, §1.)

§4. Report of Sale; Penalty for Failure to Make.—The said special commissioner or special receiver shall, after the last payment required by said decree of sale or decree confirming said sale is made, make report to the court in writing, at the next term of the court thereafter, showing how the proceeds of said sale have been applied by him; which report shall be approved and entered of record in the chancery order book and filed with the papers in the cause. If from any cause said report showing a final settlement cannot be made within the time aforesaid, the court may enter an order extending the time for a final report to be made. If said commissioner or special receiver fail to make such report, as aforesaid, he shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty nor more than five hundred dollars.(1903, c. 15, §1; 1915, c. 76, §1; Code 1923, c. 132, §1.)

§5. Sale by Sheriff When no Special Commissioner or Special Receiver Appointed.—Where no special commissioner or special receiver is appointed for the purpose, a decree or order of court for the sale of property shall be executed by the sheriff who attends such court, unless the place of sale be out of his county, in which case the sale shall be by the sheriff of the county wherein the place of sale is. Any sheriff or other officer receiving money under any order or decree shall pay the same and account therefor as the court may order; and if he fail so to do, he and the sureties in his official bond shall be liable therefor.(Code 1849, c. 178, §2; Code 1860, c. 178, §2; Code 1868, c. 132, §2; Code 1923, c. 132, §2.)

§6. Compensation for Making Sale.—For the services of commissioners or officers under any decree or order for a sale, including the collection and paying over of the proceeds, there shall not be allowed any greater commission than five per cent of the amount received by them, unless the court otherwise order. And if a sale be made by one commissioner or officer and the proceeds be collected by another, the court under whose decree or order they acted shall apportion the commission between them as may be just.(Code 1849, c. 178, §3; Code 1860, c. 178, §3; Code 1868, c. 132, §3; 1919, c. 70, §3; Code 1923, c. 132, §3.)

§7. Execution of Deed by Commissioner.—A court of law or equity, in a suit in which it is proper to decree or order the execution of any deed or writing, may appoint a commissioner to execute the same; and the execution thereof shall be as valid to pass, release, or extinguish the right, title and interest of the party on whose behalf it is executed, as if such party had been at the time capable in law of executing the same and had executed it.(Code 1849, c. 178, §4; Code 1860, c. 178, §4; Code 1868, c. 132, §4; Code 1923, c. 132, §4.)

§8. Reversal of Decree of Sale; Effect on Title; Restitution of Proceeds.—If a sale of property be made under a decree or order of a court, and such sale be confirmed, though such decree or order be afterwards reversed or set aside, the title of the purchaser at such sale shall not be affected thereby; but there may be restitution of the proceeds of sale to those entitled.(Code 1849, c. 178, §8; Code 1860, c. 178, §8; Code 1868, c. 132, §8; Code 1923, c. 132, §8.)