Chapter 56. PLEADING AND PRACTICE.

§1. Venue in General.—Any action or other proceeding at law or suit in equity, except where it is otherwise specially provided, may hereafter be brought in the circuit court of any county:

(a) Wherein any of the defendants may reside, except that an action of ejectment or unlawful detainer must be brought in the county wherein the land sought to be recovered, or some part thereof, is; or

(b) If a corporation be a defendant, wherein its principal office is, or wherein its mayor, president or other chief officer resides; or if its principal office be not in this State, and its mayor, president or other chief officer do not reside therein, wherein it does business; or if it be a corporation organized under the laws of this State, which has its principal office located outside of this State, and which has no office or place of business within the State, the circuit court of the county in which the plaintiff resides or the circuit court of the county in which the seat of state government is located shall have jurisdiction of all actions at law or suits in equity against such corporation, where the cause of action arose in this State or grew out of the rights of stockholders with respect to corporate management; or

(c) If it be to recover land or subject it to a debt, wherein such land or any part thereof may be; or

(d) If it be against one or more nonresidents of the State, wherein any one of them may be found and served with process, or may have estate or debts due him or them; or

(e) If it be to recover a loss under any policy of insurance, upon either property, life or health or against injury to a person, wherein the property insured was situated either at the date of the policy or at the time when the right of action accrued, or the person insured had a legal residence at the date of his death or at the time when the right of action accrued; or (f) If it be on behalf of the State in the name of the attorney general or otherwise wherein the seat of government is; or

(g) If a judge of a circuit be interested in a case which, but for such interest, would be proper for the jurisdiction of his court, the action or suit may be brought in any county in an adjoining circuit.(Code 1849, c. 169, §1; Code 1860, c. 169, §1; Code 1868, c. 123, §1; 1872-3, c. 109, §1; c. 197, §1; 1882, c. 73, §1; 1891, c. 54, §1; 1897, c. 46, §1; Code 1923, c. 123, §1; 1927, c. 65.)

§2. In the County Where Cause of Action Arose.—An action, suit or proceeding may be brought in any county wherein the cause of action, or any part thereof, arose, although none of the defendants reside therein, in the following instances:

(a) When the defendant, or if more than one defendant, one or more of the defendants, is a corporation;

(b) When the defendant, or if more than one defendant, one or more of the defendants, are served in such county with process or notice commencing such action, suit or proceeding.(Code 1849, c. 169, §2; Code 1860, c. 169, §2; Code 1868, c. 123, §2; 1872-3, c. 197, §2; 1882, c. 73, §2; Code 1923, c. 123, §2.)

§1. Service of Notices; Personal Service; Substituted Service; Return.—A notice, no particular mode of serving which is prescribed, may be served by delivering a copy thereof in writing to the party in person; or if he (or she) be not found, by delivering such copy at his (or her) usual place of abode, and giving information of its purport, to his wife (or her husband), or to any other person found there who is a member of his (or her) family and above the age of sixteen years; or if neither his wife (or her husband) nor any such other person be found there, and he (or she) be not found, by leaving such copy posted at the front door of such place of abode. Any sheriff or constable, thereto required, shall serve a notice within his county and make return of the manner and time of service; for a failure so to do he shall forfeit twenty dollars. Such return, or a similar return by any other person who verified if by affidavit, shall be evidence of the manner and time of service.(Code 1849, c. 167, §1; Code 1860, c. 167, §1; Code 1868, c. 121, §1; 1882, c. 74, §1; Code 1923, c. 121, §1.)

§2. Service by Publication.—Any such notice to a person not residing in this State may be served by the publication thereof once a week for three successive weeks in a newspaper published in this State.(Code 1849, c. 167, §2; Code 1860, c. 167, §2; Code 1868, c. 121, §2; 1882, c. 74, §2; Code 1923, c. 121, §2.)

§3. Notice to Take Depositions.—Notice to any party to take a deposition may be served on the counsel of such party, or on any one of such counsel, if there be more than one, and such service shall have like effect as if the notice were served on the party, provided the time between the service of notice and taking the deposition be sufficient for conveying, by ordinary course of mail, a letter from the place of service to the place of residence of the party, and a reply from that place back to the place of service, and then for the counsel to attend at the place of taking the deposition. In all cases when notice is served on counsel as aforesaid, the court, upon exception being taken, may determine whether, under all the circumstances, the notice has been served in reasonable time, and admit or reject the deposition accordingly.(1852, c. 88, §1; Code 1860, c. 167, §3; Code 1868, c. 121, §3; 1882, c. 74, §3; Code 1923, c. 121, §3.)

§4. Motion on Certain Bonds.—In the case of any bond taken by an officer, or given by a sheriff or constable, and returned to or filed in the office of the clerk of the county court of the county, or any bond or recognizance taken in a criminal case or proceeding, the circuit court of the county, or the court in which any such bond or recognizance is given, may, on motion of any person, or the State, as the case may be, give judgment for so much money as he, or the State, is entitled, by virtue of such bond, to recover by action.(Code 1849, c. 167, §4; Code 1860, c. 167, §5; Code 1868, c. 121, §5; 1872-3, c. 104, §5; 1882, c. 74, §5; Code 1923, c. 121, §5.)

§5. Notice of Motion for Judgment.—In any case wherein there may be judgment or decree for money on motion, such motion shall be after ten days’ notice, unless some other time be specified in the section or statute authorizing such motion.(Code 1849, c. 167, §3; Code 1860, c. 167, §4; Code 1868, c. 121, §4; 1882, c. 74, §4; Code 1923, c. 121, §4.)

§6. Motion for Judgment on Contracts; Affidavit of Claim; Plea and Counter Affidavit; Judgment; Discontinuance; Defense.—Any person entitled to recover money by action on any contract may, on motion before any court which would have jurisdiction in an action, obtain judgment for such money after not less than twenty days’ notice, which notice shall be in writing, signed by the plaintiff or his attorney, and shall be returned to the clerk’s office of such court on or before the return day of such notice, and when so returned shall be forthwith filed and the date of filing noted thereon, and shall be placed upon the docket for hearing. Such notice may be served, returned as aforesaid, filed and docketed at any time before or during the term of court at which the motion for judgment is to be made, and shall be heard at such term if the term continues for a period of twenty days after the service of such notice, unless good cause for a continuance thereof be shown. If the court be not in session on the return day as set out in the notice, and the term of court be not ended, the motion shall be considered continued until the next court day of the term, and if the term be ended, then the motion shall stand continued. The return day of a notice under this section shall not be more than ninety days from its date, unless the commencement of the next succeeding term of court be more than ninety days from such date, in which case the return day may be the first day of such term.

In any such motion, if the plaintiff shall file with his notice, and shall serve upon the defend ant at the same time and in the same manner as the notice is served, an affidavit of himself, or some other credible person, stating distinctly the several items of the plaintiff’s claim, and that there is, as the affiant verily believes, due and unpaid from the defendant to the plaintiff upon the demand or demands stated in the notice, including principal and interest, after deducting all payments, credits and sets-off made by the defendant, or to which he is entitled, a sum certain to be named in the affidavit, no plea shall be filed in the case unless the defendant shall file with his plea the affidavit of himself, or some other credible person, that there is not, as the affiant verily believes, any sum due by the defendant to the plaintiff upon the demand or demands stated in the plaintiff’s notice, or stating a sum certain less than that stated in the affidavit filed by the plaintiff, which the affiant verily believes is all that is due from the defendant to the plaintiff upon the demand or demands stated in the plaintiff’s notice. If such plea and affidavit be not filed, on motion of the plaintiff judgment shall, without further proof, be entered for the plaintiff by the court for the sum stated in his affidavit, with interest thereon from the date of the affidavit until paid: Provided, That before entering judgment on any negotiable instrument, the court shall require the plaintiff to file the same in such proceeding. If such plea and affidavit be filed by the defendant and it be admitted in such affidavit that any sum is due from the defendant to the plaintiff, judgment may be taken by the plaintiff for the sum so admitted to be due, with interest thereon from the date of the affidavit filed by the plaintiff until paid, and the case tried as to the residue.

A proceeding under this section shall not be discontinued by reason of the failure of the clerk to docket the same, or by reason of no order of continuance being entered in it from one day to another, or from term to term. Defense to any such motion may be made in the same manner and to the same extent as to an action at law.(Code 1849, c. 167, §5; Code 1860, c. 167, §6; Code 1868, c. 121, §6; 1882, c. 74, §6; 1915, c. 78, §6; Code 1923, c. 121, §6; 1925, c. 81, §6; 1929, c. 39.)

§7. Trial by Jury.—On a motion, when an issue of fact is joined, and either party desires it, or when in the opinion of the court it is proper, a jury shall be impaneled for the trial of the issue.(Code 1849, c. 167, §7: Code 1860, c. 167, §8; Code 1868, c. 121, §8; 1882, c. 74, §8; Code 1923, c. 121, §8.)

§1. Ancient Writs.—The right and benefit of all writs, remedial and judicial, given by any statute or act of parliament made in aid of the common law prior to the fourth year of the reign of James the First, of a general nature, not local to England, shall still be saved, so far as the same may be consistent with the Constitution of this State, the acts of the general assembly of Virginia passed before the twentieth day of June, eighteen hundred and sixty-three, and the acts of the legislature of this State.(Code 1849, c. 16, §2; Code 1860, c. 16, §2; Code 1868, c. 13, §6; 1882, c. 143, §6; Code 1923, c. 13, §6.)

§2. Writs Abolished.—The writ of right, writ of entry, writ of formedon, writ de homine replegiando, writ of levari facias, writ of elegit, writ of distringas and writ of capias ad satis faciendum are abolished and shall not hereafter be issued.(Code 1849, c. 135, §38, c. 156, §13, c. 187, §2, c. 188, §2; Code 1860, c. 135, §38, c. 156, §13, c. 187, §2, c. 188, §2; Code 1868, c. 90; §38, c. 111, §13, c. 140, §2, c. 141, §1; 1872-3, c. 60, §13, c. 218, §1; 1882, c. 127, §1; Code 1923, c. 90, §38, c. 111, §13, c. 140, §2, c. 141, §1.)

§3. Forms of Writs.—The supreme court of appeals may, from time to time, prescribe the forms of writs and other process, and until the court shall alter the forms, the same may be as heretofore used, except so far as is otherwise provided.(Code 1849, c. 161, §4, c. 170, §1; Code 1860, c. 161, §4, c. 170, §1; Code 1868, c. 114, §3, c. 124, §1; 1872-3, c. 9, §3; 1882, c. 117, §1; Code 1923, c. 114, §3, c. 124, §1.)

§4. Issuance of Process; Alteration.—The process to commence a suit shall be a writ commanding the officer to whom it is directed to summon the defendant to answer the bill or action. It shall be issued on the order of the plaintiff, his attorney or agent, and shall not, after it is issued, be altered, nor any blank there in filled up, except by the clerk.(Code 1849, c. 170 §5; Code 1860, c. 170, §5; Code 1868, c. 124, §5; 1882, c. 117, §5; Code 1923, c. 124, §5.)

§5. Process; Direction; When Returnable; Attachment; Summons for Witness.—Process from any court, whether original, mesne or final, may be directed to the sheriff of any county. Any process shall be returnable, within ninety days after its date, except as provided in section six, article two of this chapter, to the court on any day of a term, or in the clerk’s office to the first day of any rules, designated as the first or last Monday, as the case may be, in any month and year, except that a summons for a witness shall be returnable on whatever day his attendance is desired, and an order of attachment may be returnable to the next term of the court, although more than ninety days from the date of the order, and process awarded in court may be returnable as the court shall direct.(Code 1849, c. 170, §2; 1852, c. 89, §1; Code 1860, c. 170, §2; Code 1868, c. 124, §2 ; 1871, c. 43, §2; 1882, c. 117, §2; 1903, c. 11, §2; Code 1923, c. 124, §2.)

§6. Delivery of Process; Process Book.—The clerk of every court from whose office may be issued any process, original, mesne or final, or any order or decree to be served on any person, shall, unless the party interested, or his attorney, direct otherwise, deliver the same to the sheriff or other proper officer of the county for which the court is held, if it is to be executed therein, and if it is to be executed in any other county, shall inclose the same in an envelope properly addressed to the sheriff or other proper officer thereof, pay the postage thereon and mail it in the post office. The clerk shall keep a process book, wherein there shall be an entry of every such process, order or decree, showing its nature, date and return day, the person to whom, and the time when it was delivered, or if it was mailed, the time thereof, and the person to whom it was inclosed. From any officer to whom there is such delivery, the clerk shall take a receipt in his process book.(Code 1849, c. 163, §21; 1850-51, c. 41, §11; Code 1860, c. 163, §18; Code 1868, c. 117, §11; 1875, c. 73, §11; Code 1923, c. 117, §11.)

§7. Officer’s Receipt of Process.—Every officer who attends a court shall, within five days after the end of any rules, go to the clerk’s office and receive all process, orders and decrees to be executed by him and give receipts therefor. For any failure so to do he shall forfeit fifty dollars.(Code 1849, c. 170, §4; Code 1860, c. 170, §4; Code 1868, c. 124, §4; 1882, c. 117, §4; Code 1923, c. 124, §4.)

§8. Proof of Mailing Process to Officer.—Proof that any process or order was put into the post office in an envelope or cover properly addressed to any officer, and that the postage thereon was paid, shall be prima facie evidence of the receipt thereof in due course of mail by the officer to whom it was so addressed; and this evidence may be furnished by the receipt taken at the time the process or order was put into the post office, from the postmaster, his deputy or clerk, and the certificate of a justice of the acknowledgment of the receipt before him. But such evidence may be rebutted by the oath of the officer to whom such process or order was so addressed, that he did not himself receive the same, and believes that it was not received by any of his deputies.(Code 1849, c. 49, §30; Code 1860, c. 49. §29; Code 1868, c. 41, §10; 1881, c. 19, §10; Code 1923, c. 41, §10.)

§9. Service in Other County; Return.—A sheriff or other officer may transmit by mail (the postage thereon being prepaid) any process or order which came to his hands from beyond his county, with his return thereon, in an envelope or cover properly addressed to the officer to whom or whose office such return ought to be made; and the receipt taken at the time from the postmaster, his deputy or clerk, certified as aforesaid, shall be evidence that the process or order, and return, were transmitted as aforesaid.(Code 1849, c. 49, §30; Code 1860, c. 49, §29; Code 1868, c. 41, §11; 1881, c. 19, §11; Code 1923, c. 41, §11.)

§10. Mailing of Process.—If there come directed to a clerk, by mail, a letter with an indorsement on the envelope of the parties’ names, and the nature of the process enclosed, he shall take the same out of the post office, and pay such postage as may be due thereon.(Code 1849, c.163, §22; Code 1860, c. 163, §19; Code 1868, c.117, §12; 1875, c. 73, §12; Code 1923, c. 117, §12.)

§11. Service of Process in General; Execution of Process, Writ or Order When Sheriff is Disqualified.—Any process or notice may be executed on or before the return day thereof. If it appear to be duly served and good in other respects, it shall be deemed valid, although not directed to any officer, or although directed to an officer who is not qualified to execute it, provided it be executed by any other to whom it might lawfully have been directed. In any case in which it would be improper for the sheriff to execute any process, notice, writ or order, or summon a jury, because of interest or other disability, it shall be lawful for any deputy sheriff of such county not similarly disqualified to execute such process, notice, writ or order, or summon such jury, and make return thereof in his own name as deputy sheriff, and the execution and return thereof, if in other respects duly made, shall be valid, though it be directed to the sheriff. Process or notice to commence actions or suits, including writs of scire facias, mandamus, quo warranto, certiorari, prohibition, and alias or other process where the original is returned not executed, may also be served by any credible person; and the return of such person, verified by his affidavit, shall be evidence of the manner and time of service.(Code 1849, c. 49, §§21-24, c. 170, §2; 1852, c. 89, §1; Code 1860, c. 49, §§20-23, c. 170, §2; Code 1868, c. 41, §§1-3, c. 124, §2; 1871, c. 43, §2; 1872-3, c. 30, §1; 1881, c. 19, §§1-3; 1882, c. 117, §2; 1903, c. 11, §2; Code 1923, c. 41, §§1-3, c. 124, §2.)

§12. Service of Summons or Scire Facias; Judgment by Default.—Any summons or scire facias against any person, including a summons for a witness, may be served as a notice is served under section one, article two of this chapter, except that when such process is against a corporation the mode of service shall be as prescribed by the two following sections. To this end the clerk issuing such process, unless otherwise directed, shall deliver or transmit therewith as many copies thereof as there are persons named therein on whom it is to be served. No judgment by default on a scire facias or summons shall become final within twenty days after the service of such process.(Code 1849, c. 170, §6; Code 1860, c. 170, §6; Code 1868, c. 124, §6; 1882, c. 117, §6; Code 1923, c. 124, §6.)

§13. Service of Process or Notice on Domestic Corporations.—Unless otherwise specially provided, process against, or notice to, a corporation created by virtue of the laws of this State may be served as follows:

(a) If a city, town or village, on its mayor, city manager, recorder, clerk, treasurer, or any member of its council or board of commissioners;

(b) If a county court of any county, on any commissioner or the clerk thereof, or if they be absent, on the prosecuting attorney of the county;

(c) If a board of education of any district or independent school district, on the president or any commissioner thereof, or if they be absent, on the prosecuting attorney of the county;

(d) If any other corporation, on the auditor as statutory attorney in fact of such corporation, as provided in section seventy-one, article one, chapter thirty-one of this Code, or on any person appointed by it to accept service of process in its behalf, or on its president or other chief officer, or its vice president, cashier, assistant cashier, treasurer, assistant treasurer, secretary, or any member of its board of directors, or, if no such officer or director be found, on any agent of such corporation, including in the case of a railroad company a depot or station agent in the actual employment of the company.(Code 1849, c. 170, §7; Code 1860, c. 170, §7; 1863, c. 78, §6; Code 1868, c. 39, §62, c. 124, §7; 1872-3, c. 114, §2; 1881, c. 5, §5; 1882, c. 117, §7; Code 1923, c. 39, §5, c. 124, §7.)

§14. Service of Process or Notice on Foreign Corporations.—Process against, or notice to, a foreign corporation which has a usual place of business in this State, or, with or without such usual place of business, is doing business in this State, permanently or temporarily, and which has qualified to do such business under the laws of this State, may be served in accordance with the provisions of subdivision (d) of the next preceding section.

If such corporation has not qualified to do such business under the laws of this State, service may be made by delivering, within the State, a copy of the process or notice to any officer, director or agent of such corporation acting or transacting business for it in this State.

If there be no statutory attorney in fact, officer, director or agent found in this State upon whom service may be had as aforesaid, then on affidavit of that fact an order of publication may be awarded as provided by sections twenty-three and twenty-four of this article.

§15. Service of Process or Notice on Common Carriers Other Than Corporations.—In a case against any common carrier, other than a corporation, for any liability as such, it shall be sufficient to serve any process against or notice to the carrier on any agent, or the driver, operator, captain or conductor of any vehicle of such carrier.(Code 1849, c. 170, §8; Code 1860, c. 170, §8; Code 1868, c. 124, §9; 1882, c. 117, §9; Code 1923, c. 124, §9.)

§16. Execution of Process on Sunday.—No civil process or order shall be executed on Sunday, except in cases of persons escaping from custody, or where it may be specially provided by law.(Code 1849, c. 49, §26; Code 1860, c. 49, §25; Code 1868, c. 41, §15; 1881, c. 19, §15; Code 1923, c. 41, §15.)

§17. Where Process May be Executed.—Every officer by whom any process or order may be lawfully executed shall execute the same with in his bailiwick, or upon any river or creek ad joining thereto.(Code 1849, c. 49, §25; Code 1860, c. 49, §24; Code 1868, c. 41, §4; 1881, c. 19, §4; Code 1923, c. 41, §4.)

§18. Summoning Assistance.—Such officer may, in case resistance be made or apprehended to the execution of such process or order, summon to his assistance, either orally or by writing, so many of the male inhabitants of his county of the age of eighteen years or more, or require the commandant of any company, regiment or separate battalion of militia or volunteers to call out such portion, or the whole thereof, to assist him, as shall be deemed sufficient for the occasion; and he and those assisting him may use such force as shall be necessary or proper to overcome any resistance made to the execution of such process or order, and to seize, arrest and confine the resisters, their aiders and abettors, to be dealt with according to law. If any male inhabitant of the county of the age of eighteen years or more fail to obey such summons, or if any commandant fail to comply with such requisition, the officer shall report the fact to the court from which such process or order issued, which court may, in a summary way, after notice to the person so reported, adjudge him to be fined or imprisoned, or both, as for contempt. Or if the process or order was not issued by a court, the person so failing to obey such sum mons or requisition shall be punished as for a misdemeanor, and to that end the officer shall report him to the prosecuting attorney for the county.(Code 1849, c. 49, §25; Code 1860, c. 49, §24; Code 1868, c. 41, §5; 1881, c. 19, §5; Code 1923, c. 41, §5.)

§19. Service and Return of Process; Failure to Make Proper Return; False Return; Penalty.—Every officer to whom any process or order is lawfully delivered for execution shall, without avoidable delay, execute the same according to the command thereof and the provisions of law, and make true return thereon at the proper time and place, stating in such return the time and manner of executing the same, or why the same was not executed, and shall subscribe his name to such return. When the service is by deputy, such deputy shall subscribe to the return his own name as well as that of his principal. With the order or process there shall be returned any bond taken, and an account of any sale made under the same, specifying therein the several articles sold, the persons to whom sold, and the prices thereof. Such return shall be made to the court, justice, person or office from which such process or order issued, unless in such process or order it is directed to be otherwise returned, in which case return thereof shall be made according to such direction. Where a sale is made under any process or order, and no particular time for the return thereof is prescribed therein, or by law, the return shall be made within thirty days after the sale. But if no particular time be prescribed in the process or order, or by law, for the return thereof, and no sale is made under the same, the return shall be made immediately after such process or order is executed; or, if it be not executed, within two months after its date. Except when the process or order is issued by a justice, any officer failing to comply with the provisions of this section shall forfeit twenty dollars; and, if he make a false return, shall forfeit therefor one hundred dollars.(Code 1849, c. 49, §28; Code 1860, c. 49, §27; Code 1868, c. 41, §§6, 7, 8; 1881, c. 19, §§6, 7, 8; Code 1923, c. 41, §§6, 7, 8.)

§20. Further Liability for Failure to Make Proper Return.—A judgment in a prosecution under the preceding section for failure to make proper return of any process or order, or to subscribe the return as aforesaid, shall be no bar to further proceedings if the failure be continued; but there shall be a further forfeiture by the officer, who ought to have made such return, of twenty dollars for every month subsequent to the judgment that the failure shall continue, until it appear that the return cannot be made; or if it be the case of an execution or warrant of distress, until it appear that the amount thereof has been paid to the party entitled. Moreover, the court to which, or to the clerk’s office of which, such return ought to be made, may, upon the motion of any party injured, and for his use, fine such officer and his sureties, or any one or more of them, or any deputy in default, a reasonable sum, and from time to time impose on him or them other reasonable fines, not exceeding altogether, in the case of an execution or warrant of distress, the rate of five dollars for every hundred dollars therein mentioned for each month that the failure to make such return shall have continued.(Code 1849, c. 49, §29; Code 1860, c. 49, §28; Code 1868, c. 41, §9; 1881, c. 19, §9; Code 1923, c. 41, §9.)

§21. Alias Process.—If, at the return day of any process, it be not returned executed, an alias or other proper process may be issued without waiting (where the first process is returnable to a term) for the subsequent process to be awarded at rules. And where, for want of a return of the first process against a defendant, any subsequent process is issued, if the former was executed, the officer shall not execute the latter, but shall return the former if it be in his possession, and if he has it not, shall return the latter with an indorsement of the execution of the former, and the proceedings thereupon shall be as if the first had been duly returned.(Code 1849, c. 170, §3; Code 1860, c. 170, §3; Code 1868, c. 124, §3; 1882, c. 117, §3; Code 1923, c. 124, §3.)

§22. Judgment on Return Nihil.—No judgment shall be rendered on a scire facias, or in any other case, on returns of nihil.(Code 1849, c. 170, §9; Code 1860, c. 170, §9; Code 1868, c. 124, §10; 1882, c. 117, §10; Code 1923, c. 124, §10.)

§23. Service by Publication.—On affidavit that a defendant is a foreign corporation for which no statutory attorney in fact, officer, director or agent is found in this State upon whom service may be had, or is not a resident of this State, or that diligence has been used by or on behalf of the plaintiff to ascertain in what county he is, without effect, or that process, directed to the officer of the county in which he resides or is, has twice been delivered to such officer more than ten days before the return day, and been returned without being executed, an order of publication may be entered against such defendant. And in any suit in equity, where the bill states that there are or may be persons interested in the subject to be divided or disposed of, whose names are unknown, and makes such persons defendants by the general description of parties unknown, on affidavit of the fact that such parties are unknown, an order of publication may be entered against such unknown parties. Any order of publication under this section may be entered either in court or by the clerk at any time. In a proceeding by petition, there may be an order of publication in like manner as in a suit in equity.(Code 1849, c. 170, §10; Code 1860, c. 170, §10; 1862-3, c. 27, §10; Code 1868, c. 124, §11; 1882, c. 117, §11; Code 1923, c. 124, §11.)

§24. Contents of Order of Publication; Publishing.—Every order of publication shall give the style of the suit, state briefly its object, and require the defendants against whom it is entered, or the unknown parties, to appear with in one month after the date of the first publication thereof and do what is necessary to protect their interests. It shall be published once a week for three successive weeks in some newspaper published in the county in which the order is made or directed, if one is so published, to be designated by the party directing such order or his attorney, but if no paper be so designated, then in such paper as the court may direct, or if the court make no direction, then as the clerk of the court may prescribe; and if no newspaper be published in the county, or if none therein will publish the order at the legal rate or for the time required, then in such newspaper of general circulation in the county as the court may prescribe, or, if none be so prescribed, as the clerk may direct. It shall be deemed to have been published on the day of the third publication thereof.(Code 1849, c. 170, §11; Code 1860, c. 170, §11; 1863, c. 29, §11; Code 1868, c. 124, §12; 1872-3, c. 153, §12; 1882, c. 117, §12; 1911, c. 49, §12; Code 1923, c. 124, §12.)

§25. Failure to Appear in Response to Publication; Trial or Hearing; Personal Service Outside State.—When such order shall have been so published, if the defendants against whom it is entered, or the unknown parties, shall not appear within the time specified in such order, the case may be tried or heard as to them at the next term of the court commencing not less than one month after the date of the first publication. Personal service of a summons, scire facias or notice may be made on a nonresident defendant out of this State, which service shall have the same effect, and no other, as an order of publication, duly published against him. In such case the return shall be made under oath and shall show the time and place of such service, and that the defendant so served is a nonresident of this State. Upon any trial or hearing under this section, such judgment, decree or order shall be entered as may appear just.(Code 1849, c. 170, §12; Code 1860, c. 170, §12; Code 1868, c. 124, §13; 1869, c. 133; 1882, c, 117, §13; Code 1923, c. 124, §13.)

§26. Rehearing in Case of Non-Person Service.—Any unknown party or other defendant who was not served with process in this State, and did not appear in the case before the date of such judgment, decree or order, or the representative of such, may, within two years from that date, if he be not served with a copy of such judgment, decree or order more than eight months before the end of such two years, and if he was so served, then within eight months from the time of such service, file his petition to have the proceedings reheard in the manner and form provided by section forty-three, article seven, chapter thirty-eight of this Code, and not otherwise; and all the provisions of that section are hereby made applicable to proceedings under this section.(Code 1849, c. 170, §13; Code 1860, c. 170, §13; 1865, c. 92, §13; Code 1868, c. 124, §14; 1870, c. 109, §14; 1871, c. 167, §14; 1882, c. 117, §14; 1909, c. 42, §14; Code 1923, c. 124, §14.)

§27. Order of Publication in Supreme Court of Appeals.—When, by the return of any officer of process issued to answer any appeal, writ of error or supersedeas pending in the supreme court of appeals of this State, or when, from affidavit filed with the clerk of said court, it shall appear that any appellee or defendant in error therein is a foreign corporation for which no statutory attorney in fact, officer, director or agent is found in this State upon whom service may be had, or is not a resident of this State, or that the name or place of residence of such party is unknown, so that process can not be served upon him, it shall be the duty of such clerk, upon application, to take and issue, on the first Monday in any month, an order of publication against such absent or unknown party or foreign corporation, requiring him or it to appear on a day to be designated in such order, to answer such appeal, writ of error or supersedeas and to have a rehearing of the whole matter therein contained.(1863, c. 84, §1; Code 1868, c. 124, §15; 1882, c. 117, §15; 1883, c. 49, §15; Code 1923, c. 124, §15.)

§28. Requisites of Publication in Such Court.—Such order of publication shall be entered by the clerk in a suitable book kept by him for the purpose and signed by him, and a certified copy of such order shall be inserted once a week for three successive weeks in some newspaper to be named therein; and when it shall appear that such order of publication has been duly published as aforesaid, the court may proceed to hear and decide such cause in the same, manner as if such parties had been personally, served with process: Provided, however, That the order of publication shall have been executed, as aforesaid, at least ten days before the day on which any such cause may be called for hearing.(1863, c. 84, §2; Code 1868, c. 124, §16; 1882, 4, c. 117, §16; 1883, c. 49, §16; Code 1923, c. 124, §16.)

§29. Rehearing in Supreme Court.—Any unknown party or other defendant who was not served with process in this State, and did not appear in the cause, may have the same reheard and any injustice in the proceedings corrected within the time prescribed by section twenty-six of this article.(1863, c. 84, §3; Code 1868, c. 124, §17; 1882, c. 117, §17; Code 1923, c. 124, §17.)

§30. Day of Publication.—Any publication authorized or required by any law of this State, or by the provisions of any deed of trust, to be made not more than once a week in any newspaper, may be published in a newspaper issued on any day of the week.(1881, c. 64, §1; Code 1923, c. 124A, §1.)

§1. Rule Days.—In the clerk’s office of every circuit court, rules shall be held on the first Monday of every month, whether the court be in session or not, except that when a term of the circuit court commences on the first Monday in a month, or on either of the two following days, or on the preceding Tuesday, Wednesday, Thursday, Friday or Saturday, the rules which otherwise would have been held for such month on the first Monday shall be held on the last Monday in the next preceding month. The rules shall continue for three days, unless such continuance will interfere with the term of the court for which the rules are held, in which case they shall not continue beyond the day preceding the commencement of the term of such court. But if any Monday which is a rule day shall also be a holiday, then rules shall be held on the following Tuesday regardless of the fact that the latter day may be the first day of a term of court.(Code 1849, c. 171, §1; 1857-58, c. 65, §1; 1859-60, c. 80, §1; Code 1860, c. 171, §1; Code 1868, c. 125, §1; 1871, c. 33, §1; 1882, c. 71, §1; Code 1923, c. 125, §1.)

§2. Rule Docket.—There shall be a docket of the cases at rules wherein the rules shall be entered; and the books in which rules and orders are entered in chancery cases shall be separate from those in which rules and orders are entered in other cases.(Code 1849, c. 171, §2; Code 1860, c. 171, §2; Code 1868, c. 125, §3; 1882, c. 71, §3; Code 1923, c. 125, §3.)

§3. Rule Entries.—Where rules are held on the last Monday in a month, as provided in section one of this article, they shall be entered in the rule docket and indorsed on the declaration or bill as if taken on the first Monday in the month to which they relate.(1882, c. 71, §2; Code 1923, c. 125, §2.)

§4. Continuance at Rules in Absence of Clerk.—When there is no clerk to take a rule in a case, it shall stand continued until the next rule day after there is a clerk.(Code 1849, c. 171, §3; Code 1860, c. 171, §3; Code 1868, c. 125, §4; 1882, c. 71, §4; Code 1923, c. 125, §4.)

§5. What Rules May Require.—The rules may be to declare, plead, reply, rejoin, or for other proceedings; they shall be given from month to month.(Code 1849, c. 171, §4; Code 1860, c. 171, §4; Code 1868, c. 125, §5; 1882, c. 71, §5; Code 1923, c. 125, §5.)

§6. Time for Appearance; Rule to File Declaration; Nonsuit for Non-Prosecution; Damages.—A defendant may appear at the rule day at which the process against him is returnable, or, if it be returnable in term, at the first rule day after the return day, and, if the declaration or bill be not then filed, may give a rule for the plaintiff to file the same. If the plaintiff fail to do this at the succeeding rule day, or shall, at any time after the defendant’s appearance, fail to prosecute his suit, he shall be nonsuited and pay to the defendant, besides his costs, five dollars.(Code 1849, c. 171, §5; Code 1860, c. 171, §5; Code 1868, c. 125, §6; 1882, c. 71, §6; Code 1923, c. 125, §6.)

§7. Dismissal for Failure to File Declaration , or Bill.—If three rules elapse after the rules at which the process is returned executed as to any one or more of the defendants, without the declaration or bill being filed, the clerk shall enter the suit dismissed, although none of the defendants have appeared.(Code 1849, c. 171, §6; Code 1860, c. 171, §6; Code 1868, c. 125, §7; 1882, c. 71, §7; Code 1923, c. 125, §7.)

§8. Return to Show Defendant’s Nonresidence; Abatement as to Nonresident Not on Served.—When a summons to a party to answer an action or bill is received by an officer who knows that such party is not a resident of his county, or not a resident of the State, he shall, unless he find him in his county on or before the return day, make a return that he is a nonresident of the county and/or State, as the case may be; whereupon, if the court from which such process issued have jurisdiction of the case only on the ground of such defendant’s residence in such county, the action or suit shall abate as to him; and if he be returned a nonresident of the State, and the court have jurisdiction of the case only on the ground that the cause of action arose in the county, the action or suit shall abate as to him.(Code 1849, c. 171, §7; Code 1860, c. 171, §7; Code 1868, c. 125, §8; 1882, c. 71, §8; Code 1923, c. 125, §8.)

§9. Minors May Sue by Next Friend or Guardian; Substitution of Plaintiffs.—Any minor entitled to sue may do so by his next friend or guardian. When the action or suit is brought by his next friend, the court may, for good cause, substitute the guardian in lieu of the next friend, or any other person as the next friend.(Code 1849, c. 127, §12; Code 1860, c. 127, §14; Code 1868, c. 82, §14; 1872-3, c. 149, §14; Code 1923, c. 82, §14.)

§10. Guardian Ad Litem.—The proceedings in a suit wherein an infant or insane person is a party shall not be stayed because of such infancy or insanity, but the court in which the suit is pending, or the judge thereof in vacation, or the clerk thereof at rules, shall appoint some discreet and competent attorney at law as guardian ad litem to such infant or insane defendant, whether such defendant shall have been served with process or not, and after such appointment no process need be served on such infant or insane person. If no such attorney be found willing to act, the court, or the judge thereof in vacation, may compel him to act, or appoint some other discreet and proper person in his stead; but the attorney or other person so appointed shall not be liable for costs. Every guardian ad litem shall faithfully represent the interest or estate of the infant or insane person for whom he is appointed, and it shall be the duty of the court to see that the estate of such defendant is so represented and protected. And the court, or the judge thereof in vacation, whenever of opinion that the interest of an infant or insane person requires it, shall remove any guardian ad litem and appoint another in his stead. When, in any case, the court or judge is satisfied that the guardian ad litem has rendered substantial service to the estate of an infant or insane defendant, it may allow him reasonable compensation therefor, and his actual expenses, if any, to be paid out of the estate of such defendant.(Code 1849, c. 171, §16; Code 1860, c. 171, §16; Code 1868, c. 125, §13; 1882, c. 71, §13; Code 1923, c. 125, §13.)

§11. Transfer of Cases From Law to Equity and Vice Versa.—No case shall be dismissed simply because it was brought on the wrong side of the court, but whenever it shall appear that a plaintiff has proceeded at law when he should have proceeded in equity, or in equity when he should have proceeded at law, the court shall direct a transfer to the proper forum, and shall order such change in, or amendment of, the pleadings as may be necessary to conform them to the proper practice; and, without such direction, any party to the suit shall have the right, at any stage of the cause, to amend his pleadings so as to obviate the objection that his suit or action was not brought on the right side of the court. After such amendment has been made, the case shall be placed by the clerk on the proper docket of the court and proceed and be determined upon such amended pleadings. The defendant shall be allowed a reasonable time after such transfer in which to prepare the case for trial.

§12. Abatement for Want of Form in Declaration.—No action shall abate for want of form, where the declaration sets forth sufficient matter of substance for the court to proceed upon the merits of the case.(Code 1849, c. 171, §11; Code 1860, c. 171, §11; Code 1868, c. 125, §9; 1882, c. 71, §9; Code 1923, c. 125, §9.)

§13. Unnecessary Averments in Trespass on the Case.—In actions of trespass on the case, where the action of trespass would formerly have been proper, general averments that the defendant committed other wrongs, and that the acts charged were done with force and arms against the peace, may be omitted; and the plaintiff may prove all that he could have proved if such averments had been inserted in the declaration.(Code 1849, c. 171, §12; Code 1860, c. 171, §12; Code 1868, c. 125, §10; 1882, c. 71, §10; Code 1923, c. 125, §10.)

§14. Allegations of Place Where Contract Was Made or Act Done.—It shall not be necessary in any declaration or other pleading to set forth the place in which any contract was made, or act done, unless when, from the nature of the case, the place is material or traversable, and then the allegation may be, as to a deed, note or other writing bearing date at any place, that it was made at such place, or as to any other act, according to the fact, without averring or suggesting that it was at or in the county in which the action is brought, unless it was in fact therein.(Code 1849, c. 171, §8; Code 1860, c. 171, §8; Code 1868, c. 125, §32; 1882, c. 71, §32; Code 1923, c. 125, §32.)

§15. Averments as to Jurisdiction; Profert; Oyer.—It shall not be necessary in any action to aver that the cause of action arose, or that the matter is, within the jurisdiction of the court, or to make profert of any deed, letters testamentary, or commission of administration; but any party may have oyer in like manner as if profert were made.(Code 1849, c. 171, §9; Code 1860, c. 171, §9; Code 1868, c. 125, §33; 1882, c. 71, §33; Code 1923, c. 125, §33.)

§16. Allegations Not Traversable Nor Requiring Proof.—All allegations which are not traversable, and which the party could not be required to prove, may be omitted, unless they are required for the right understanding of allegations that are material.(Code 1849, c. 171, §10; Code 1860, c. 171, §10; Code 1868, c. 125, §34; 1882, c. 71, §34; Code 1923, c. 125, §34.)

§17. Actions on Insurance Policies; Declaration.—A declaration or count on a policy of insurance, whether the policy be under seal or not, may be in effect as follows:

If the declaration or count be on a life policy, then it shall be sufficient to follow the above form in effect down to and including the word, “plaintiff,” and add thereto in effect as follows:

Because of the death of E. F., whose life was insured by said policy, and who died on or about the.........day of..........., in the year........., at (or near to, stating the place where his death occurred) .............; or, if the fact be so, the plaintiff may state in the declaration or count that the time or place where the loss or death occurred is unknown to him, giving in general terms such information as may be in his power in respect thereto. Nothing contained in this section shall render insufficient in law any declaration or count which would be sufficient if this section had not been passed.(1877, c. 66, §1; 1882, c. 71, §61; Code 1923, c. 125, §61.)

§18. Filing Account in Assumpsit.—In every action of assumpsit the plaintiff shall file with his declaration an account stating distinctly the several items of his claim, unless it be plainly described in the declaration, and if he fail to do so, he shall not be permitted on the trial of the case to prove any item not stated in such account.(Code 1849, c. 171, §13; Code 1860, c. 171, §13; Code 1868, c. 125, §11; 1882, c. 71, §11; Code 1923, c. 125, §11.)

§19. Statement of Particulars of Claim.—In any action or motion, if good cause therefor be shown or appear, the court or judge in vacation may order the plaintiff to file a more particular statement, in any respect, of the nature of his claim, or the facts expected to be proved at the trial, and may stay the action until a reasonable time after such order is complied with; and such statement must be made under the oath of the plaintiff, or some other credible person, to the effect that the affiant believes the same will be supported by evidence at the trial. But no such order shall be made if it appear that there has been unreasonable delay on the part of the defendant in applying therefor.(1877, c. 66, §2; 1882, c. 71, §62; Code 1923, c. 125, §62.)

§20. Statement of Particulars of Defense.—In like manner, if good cause therefor appear, and there be no unreasonable delay on the part of the plaintiff in applying for such order, the court or judge in vacation may order the defendant to file a more particular statement, in any respect, of the nature of his defense, or the facts expected to be proved at the trial, which statement shall be made under the oath of the defendant, or some other credible person, to the effect that the affiant believes the same will be supported by evidence at the trial.(1877, c. 66, §3; 1882, c. 71, §63; Code 1923, c. 125, §63.)

§21. Plea in Action on Insurance Policy; Statement Specifying Particular Defense.—To any declaration or count on a policy of insurance, whether the same be in the form prescribed by section seventeen of this article or not, and whether the action be covenant, debt or assumpsit, the defendant may plead that he is not liable to the plaintiff as in said declaration is alleged. But if in any action on a policy of insurance, the defense be that the action cannot be maintained because of the failure to perform or comply with, or violation of, any clause, condition or warranty in, upon or annexed to the policy or contained in or upon any paper which is made by reference a part of the policy, the defendant must file a statement in writing specifying by reference thereto, or otherwise, the particular clause, condition or warranty in respect to which such failure or violation is claimed to have occurred, and such statement must be verified by the oath of the defendant, or some other credible person, to the effect that the affiant believes the matter of defense therein stated will be supported by evidence at the trial.(1877, c. 66, §4; 1882, c. 71, §64; Code 1923, c. 125, §64.)

§22. Same; Joinder in Issue; Statement Specifying Matter in Waiver, Estoppel, or Confession and Avoidance.—Upon the plea mentioned in the next preceding section, the plaintiff may join issue without other pleading. But if the plaintiff intends to rely upon any matter in waiver, estoppel, or in confession and avoidance of any matter which may have been stated by the defendant as aforesaid, the plaintiff must file a statement in writing, specifying in general terms the matter on which he intends so to rely; and such statement must be verified by the oath of the plaintiff, or some other credible person, to the effect that the affiant believes the matter of reply therein stated will be supported by evidence at the trial.(1877, c. 66, §5; 1882, c. 71, §65; Code 1923, c. 125, §65.)

§23. Failure to File Statement; Insufficient Statement; Amendment; Exclusion of Evidence of Party in Default; Sufficiency of Statement.—If either party to such action or motion fail to file any statement required of him by the four preceding sections of this article, or by the other party pursuant to any of the provisions of the said sections, or if the statement be adjudged insufficient in whole or in part, the court, as justice may require, may grant further time for filing the same, or permit the statement filed to be amended, or may, at the trial, exclude the evidence offered by the party in default as to any matter which he has so failed to state or has insufficiently stated, and which is not described in the notice, declaration or other pleading of such party so plainly as to give the adverse party notice of its character. But no statement which, in the particulars required by or under the said sections to be stated or referred to therein, is sufficient to notify the adverse party, in effect, of the nature of the claim or defense intended to be set up against him, shall be adjudged insufficient.(1877, c. 66, §6; 1882, c. 71, §66; Code 1923, c. 125, §66.)

§24. Right to Amend in General.—The plaintiff may of right amend his declaration or bill at any time before the appearance of the defendant; and, notwithstanding such appearance, in any action, suit, motion or other proceeding, the court, if in its opinion substantial justice will be promoted thereby, may, at any time before final judgment or decree, and upon such terms as it may deem just, permit any pleading to be amended, or material supplemental matter to be set forth in amended or supplemental pleadings, introducing a necessary party, discontinuing as to a party, eliminating from a multifarious bill all but one of the equitable causes of action alleged, or changing the form but not the cause of action, except that no proceeding by motion shall be converted by amendment into a formal action at law, or vice versa, and the court may allow any other amendment in matter of form or substance in any process which is not void, pleading or proceeding, which may enable the plaintiff to sustain the action, suit, motion or proceeding for the cause for which it was intended to be brought, or enable the defendant to make full and complete defense.(Code 1849, c. 171, §14; Code 1860, c. 171, §14; Code 1868, c. 125, §12; 1882, c. 71, §12; 1911, c. 41, §12; Code 1923, c. 125, §12.)

§25. Amended Declaration or Bill, Supplemental Bill, or Bill of Revivor, in Vacation.—The plaintiff may also, at any time before or after the appearance of the defendant, in vacation of the court wherein the action or suit is pending, file in the clerk’s office an amended declaration or bill, supplemental bill or bill of revivor in such suit; whereupon the clerk shall issue a summons against the defendant, requiring him to plead to or answer such amended declaration or bill. But if the court shall be of the opinion that the same was improperly filed, it shall dismiss such declaration or bill at the cost of the plaintiff.(Code 1849, c. 171, §14; Code 1860, c. 171, §14; Code 1868, c. 125, §12; 1882, c. 71, §12; 1911, c. 41, §12; Code 1923, c. 125, §12.)

§26. Amendment After Demurrer Sustained.—If a demurrer be sustained to a declaration or bill, the plaintiff, upon giving notice to the defendant or defendants who have appeared or to their counsel, may file an amended declaration or bill at any time within the term at which the demurrer was sustained; and thereupon the cause shall proceed as if such amended pleading had been filed at the time when the original declaration or bill was filed; but the court shall allow the defendant a reasonable time to plead to or answer such amended declaration or bill. The plaintiff may, if he so elect, have the cause remanded to rules for amendment.(1911, c. 41, §12; Code 1923, c. 125, §12.)

§27. Amendment to Cure Variance Between Pleading and Proof.—If at the trial of any action or motion, there appears to be a variance between the evidence and allegations or recitals, the court, if in its opinion substantial justice will be promoted thereby, may allow the pleadings to be amended to conform to the proof.(Code 1849, c. 177, §7; Code 1860, c. 177, §7; Code 1868, c. 131, §8; 1882, c. 120, §8; Code 1923, c. 131, §8.)

§28. Continuance and Costs After Amendment.—If substantial amendment of any pleading is made, the court shall enter such order as to continuance as shall seem fair and just. But the trial of an action at law shall not be continued to another term because of the filing of an amended declaration, or because of an amendment made for the purpose of curing a variance between pleading and proof, unless the defendant shall satisfy the court by affidavit or otherwise that because of such amendment he cannot safely proceed with the trial without such continuance. Every continuance to a subsequent term granted because of an amendment of a pleading shall be at the costs of the party making the amendment.(Code 1849, c. 171, §14, c. 177, §7; Code 1860, c. 171, §14, c. 177, §7: Code 1868, c. 125. §12, c. 131. §8: 1882. c. 71. §12, c. 120, §8; 1911, c. 41, §12; Code 1923, c. 125, §12, c. 131, §8.)

§29. Misnomer; Amendment.—No plea in abatement for a misnomer shall be allowed in any action; but in a case wherein, but for this section, a misnomer would have been pleadable in abatement, the declaration and summons may, on the motion of either party, and on affidavit of the correct name, be amended by inserting the correct name.(Code 1849, c. 171, §17; Code 1860, c. 171, §17; Code 1868, c. 125, §14; 1882, c. 71, §14; Code 1923, c. 125, §14.)

§30. Plea in Abatement for Defects in Writ or Return; Variance from Declaration; Void Process.—In other cases, a defendant on whom process summoning him to answer in any suit or action appears to have been served shall not take advantage of any defect in the writ or return, or any variance in the writ from the declaration, unless such defect or such variance be pleaded in abatement. And in the case of every such defect or such variance, whether the same shall be pleaded in abatement or not, the court may at any time permit the plaintiff to amend the writ or the declaration so as to perfect the writ or correct the variance, and may permit the return to be amended, upon such terms as to it shall seem just. But nothing herein shall deprive a defendant of any right which he has by the common law to make a motion to quash process which is void; and if the process be a void process, the suit or action shall be dismissed upon motion of the defendant.(Code 1849, c. 171, §18; Code 1860, c. 171, §18; Code 1868, c. 125, §15; 1882, c. 71, §15; Code 1923, c. 125, §15.)

§31. Plea in Abatement for Want of Jurisdiction.—Where the declaration or bill shows on its face proper matter for the jurisdiction of the court, no exception for want of such jurisdiction shall be allowed unless it be taken by plea in abatement.(Code 1849, c. 171, §19; Code 1860, c. 171, §19; Code 1868, c. 125, §16; 1882, c. 71, §16; 1903, c. 10, §16; Code 1923, c. 125, §16.)

§32. Verification of Plea in Abatement and of Non Est Factum; Plea in Abatement May be Pleaded and Verified by Attorney or Agent of Defendant.—No plea in abatement or plea of non est factum shall be received unless it be verified by affidavit. And in all cases, including those wherein the defendant is a corporation, the plea in abatement may be pleaded and verified by the attorney or agent of the defendant.(Code 1849, c. 171, §37; Code 1860, c. 171, §37; Code 1868, c. 125, §39; 1882, c. 71, §39; 1903, c. 10, §16; Code 1923, c. 125, §§16, 39.)

§33. Time for Filing Plea in Abatement.—No plea in abatement shall be received after the defendant has demurred, pleaded in bar, or answered to the declaration or bill, or later than the next succeeding rules after the rules at which a rule to plead or a conditional judgment or decree nisi is entered.(Code 1849, c. 171, §19; Code 1860, c. 171, §19; Code 1868, c. 125, §16; 1882, c. 71, §16; 1903, c. 10, §16; Code 1923, c. 125, §16.)

§34. Misjoinder and Nonjoinder of Parties.—No action or suit shall abate or be defeated by the misjoinder or nonjoinder of parties, plaintiff or defendant. Whenever such misjoinder shall be made to appear by affidavit or otherwise, the parties misjoined shall be dropped by order of the court, entered of its own accord or upon motion, at any stage of the cause. Whenever in any case full justice can not be done and a complete and final determination of the controversy can not be had without the presence of other parties, and such nonjoinder shall be made to appear by affidavit or otherwise at any time before final judgment or decree, the court of its own accord, or upon motion, may cause such omitted persons to be made parties to the action or suit, as plaintiffs or defendants, by proper amendment and process, at any stage of the cause, as the ends of justice may require, and upon such terms as may appear to the court to be just; but no new party shall be added upon motion unless the place of his residence, if known, be stated with convenient certainty in the affidavit of the party questioning his nonjoinder, and, if his place of residence be not known, unless such fact be stated.(Code 1849, c. 171, §§20, 22; Code 1860, c. 171, §§20, 22; Code 1868, c. 125, §§17, 19, 58; 1882, c. 71, §§17, 19, 58; Code 1923, c. 125, §§17, 19, 58.)

§35. Verdict and Judgment as to Particular Defendants; Costs.—If, in an action at law, to which one or more parties defendant have been added under the provisions of the preceding section, it shall appear by the subsequent pleadings, or at the trial thereof, that any of the defendants are liable, but that one or more of the persons so added are not liable, the plaintiff shall be entitled to judgment, or to verdict and judgment, as the case may be, against the defendants who are liable, and such as are not liable shall have judgment and recover costs as against the plaintiff, who shall be allowed that part of the costs pertaining to added defendants not liable, as costs against the defendants who caused them to be made parties.(Code 1849, c. 171, §22; Code 1860, c. 171, §22; Code 1868, c. 125, §19; 1882, c. 71, §19; Code 1923, c. 125, §19.)

§36. Scope of Demurrer; Objections to Filing of Pleadings for Insufficiency Abolished; Form of Demurrer; Grounds; Argument.—The sufficiency of any pleading, in law or equity, may be tested by a demurrer. Objections to the filing of any pleading, because of insufficiency, are abolished. The form of a demurrer shall be: The defendant (or plaintiff) says that the declaration (or other pleading) is not sufficient in law, for the following reason (or reasons): All demurrers in civil cases shall be in writing and shall state specifically the grounds of demurrer relied on, and no grounds shall be considered other than those so stated, except by the court of its own accord, but the demurrant may, by leave of the court, amend his demurrer by stating additional grounds, or otherwise, at any time before the trial at law or final hearing in equity. When a party demurs to any pleading, the demurrer shall at once be set for argument.(Code 1849, c. 171, §§30, 35; Code 1860, c. 171, §§30, 35; Code 1868, c. 125, §§28, 54; 1882, c. 71, §§28, 54; Code 1923, c. 125, §§28, 54.)

§37. Defects Disregarded on Demurrer.—On a demurrer (unless it be to a plea in abatement), the court shall not regard any defect or imperfection in the declaration or other pleading, whether it has heretofore been deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defense that judgment, according to law and the very right of the cause, cannot be given. No demurrer shall be sustained because of the omission in any pleading of the words, “this he is ready to verify,” or “this he is ready to verify by the record,” or “as appears by the record”; but the opposite party may be excused from replying, demurring or otherwise answering to any pleading, which ought to have, but has not, such words therein, until they be inserted.(Code 1849, c. 171, §31; Code 1860, c. 171, §31; Code 1868, c. 125, §29; 1882, c. 71, §29; Code 1923, c. 125, §29.)

§38. Pleading in Abatement and in Bar at Same Time; Trial of Issues.—The defendant may plead in abatement and in bar at the same time, but the issue on the plea in abatement shall be first tried, and if such issue be found against the defendant, he may, nevertheless, make any other defense he may have to the action.(Code 1868, c. 125, §21; 1882, c. 71, §21; Code 1923, c. 125, §21.)

§39. Pleading Several Defenses; Demurrer and Special Replications to Special Plea.—The defendant in any action or suit may plead as many several matters, whether of law or fact, as he shall think necessary, except that if he plead the plea of non est factum he shall not, without leave of the court, be permitted to plead any other plea inconsistent therewith. To any special plea pleaded by a defendant, the plaintiff may demur and in addition plead as many special replications as he may deem necessary.(Code 1849, c. 171, §23; Code 1863, c. 171, §23; Code 1868, c. 125, §20; 1882, c. 71, §20; Code 1923, c. 125, §20.)

§40. Commencement of Plea.—No formal defense shall be required in a plea. It may commence as follows: “The defendant says that.”(Code 1849, c. 171, §28; Code 1860, c. 171, §28; Code 1868, c. 125, §26; 1882, c. 71, §26; Code 1923, c. 125, §26.)

§41. Unnecessary Allegations in Pleas, Etc.—In a plea, replication or subsequent pleading, intended to be pleaded in bar or in maintenance of the action, it shall not be necessary to use any allegation of “actionem non” or “precludi non,” or to the like effect, or any prayer of judgment.(Code 1849, c. 171, §24; Code 1860, c. 171, §24; Code 1868, c. 125, §22; 1882, c. 71, §22; Code 1923, c. 125, §22.)

§42. Omission of Protestation.—No party shall be prejudiced by omitting a protestation in any pleading.(Code 1849, c. 171, §25; Code 1860, c. 171, §25; Code 1868, c. 125, §23; 1882, c. 71, §23; Code 1923, c. 125, §23.)

§43. Conclusion of Traverse.—All special traverses or traverses with an inducement of affirmative matter shall conclude to the country. But this regulation shall not preclude the opposite party from pleading over to the inducement when the traverse is immaterial.(Code 1849, c. 171, §26; Code 1860, c. 171, §26; Code 1868, c. 125, §24; 1882, c. 71, §24; Code 1923, c. 125, §24.)

§44. When Parties May Proceed Without Similiter or Joinder in Demurrer.—When any party takes issue on another party’s pleading, or traverses the same, or demurs, so that such other party is not let in to allege any new matter, no similiter or joinder in demurrer shall be necessary, but either party may proceed as if there were a similiter or joinder in demurrer.(Code 1849, c. 171, §27; Code 1860, c. 171, §27; Code 1868, c. 125, §25; 1882, c. 71, §25; Code 1923, c. 125, §25.)

§45. Unnecessary Allegations in Second or Other Plea.—It shall not be necessary to state in a second or other plea that it is pleaded by leave of the court, or according to the form of the statute, or to that effect.(Code 1849, c. 171, §29; Code 1860, c. 171, §29; Code 1868, c. 125, §27; 1882, c. 71, §27; Code 1923, c. 125, §27.)

§46. Pleading Denying Execution of Writing, or Entry or Genuineness of Judgment or Decree.—Where a declaration or other pleading alleges that any person made, indorsed, assigned or accepted any writing, it shall not be necessary to prove such fact unless the pleading which puts the matter in issue be verified, or there be an affidavit filed therewith denying such fact.

In any action, suit or proceeding upon, or to enforce, or in which is set off, a judgment or decree, foreign or domestic, wherein the recovery of such judgment or decree is alleged in any pleading, it shall not be necessary to prove the entry or genuineness of such judgment or decree, unless the pleading which puts the matter in issue be verified, or there be an affidavit filed therewith denying such entry or genuineness.(Code 1849, c. 171, §38; Code 1860, c. 171, §38; Code 1868, c. 125, §40; 1882, c. 71, §40; Code 1923, c. 125, §40.)

§47. Plea Denying Partnership; Form of Denial of Corporate Existence.—Where plaintiffs or defendants sue or are sued as partners, and their names are set forth in the declaration or bill, or where a plaintiff or defendant sues or is sued as a corporation, it shall not be necessary to prove the fact of such partnership or the existence of such corporation, unless the pleading which puts the matter in issue be verified, or there be an affidavit filed therewith denying such partnership or the existence of such corporation. A plea putting in issue the existence of a corporation shall be sufficient if it be in form or effect as follows:

“And the said defendant for plea says that the plaintiff (or defendant, as the case may be) is not a corporation, as in the plaintiff’s declaration is alleged.”(Code 1849, c. 171, §39; Code 1860, c. 171, §39; Code 1868, c. 125, §41; 1882, c. 71, §41; Code 1923, c. 125, §41.)

§48. Judgment or Decree by Confession.—In any action or suit instituted by process a defendant may, in the vacation of the court, and whether the action or suit be on the court docket or not, confess a judgment or decree in the clerk’s office for so much principal and interest as the plaintiff may be willing to accept a judgment or decree for. The same shall be entered of record by the clerk in the order book, and be as final and as valid as if entered in court on the day of such confession, except merely that the court shall have such control over it as is given by section seventy of this article.(Code 1849, c. 171, §41; Code 1860, c. 171, §41; Code 1868, c. 125, §43; 1882, c. 71, §43; Code 1923, c. 125, §43.)

§49. Failure to Plead, Answer or Demur; Rule to Plead; Conditional Judgment or Decree Nisi; Judgment or Decree by Default; Order for Inquiry of Damages.—If a defendant, who appears, fail to plead, answer or demur to the declaration or bill, a rule may be given him to plead. If he fail to appear at the rule day at which the process against him is returned executed, or when it is returnable to a term, at the first rule day after it is so returned, the plaintiff, if he has filed his declaration or bill, may have a conditional judgment or decree nisi as to such defendant. No service of such decree nisi or conditional judgment shall be necessary. But at the next rule day after the same is entered, if the defendant continue in default, or at the expiration of any rule upon him with which he fails to comply, if the case be in equity, the bill shall be entered as taken for confessed as to him, and if it be at law, judgment shall be entered against him, with an order for the damages to be inquired into, when such inquiry is proper.(Code 1849, c. 171, §42; Code 1860, c. 171, §42; Code 1868, c. 125, §44; 1882, c. 71, §44; Code 1923, c. 125, §44.)

§50. When Inquiry of Damages Unnecessary.—There need be no such inquiry in any action upon a bond or other writing for the payment of money, which by its terms ascertains the amount to be paid thereunder, or against the drawer or indorsers of a bill of exchange or negotiable note, or in an action or scire facias upon a judgment or recognizance.(Code 1849, c. 171, §43; Code 1860, c. 171, §43; Code 1868, c. 125, §45; 1882, c. 71, §45; Code 1923, c. 125, §45.)

§51. Office Judgment; Affidavits by Plaintiff and Defendant; Judgment.—Every judgment entered in the clerk’s office in a case wherein there is no order for an inquiry of damages, and every nonsuit or dismission entered therein, shall, if not previously set aside, become a final judgment on the last day of the next succeeding term of the court wherein the action is pending. If the action in which such judgment is entered be one for the recovery of money arising out of contract, and the plaintiff has filed with his declaration (which in all such cases he may do) an affidavit of himself or some other credible person stating that there is, as affiant verily believes, due and unpaid from the defendant to the plaintiff upon the demand or demands stated in the declaration, including principal and interest, after deducting all payments, credits and sets-off made by the defendant, or to which he is entitled, a sum certain to be named in the affidavit, no plea shall be filed in the case either at rules or in court, unless the defendant shall file with the plea an affidavit of himself or some other credible person that there is not, as affiant verily believes, any sum due from the defendant to the plaintiff upon the demand or demands stated in the plaintiff’s declaration; or stating a sum certain, less than that stated in the affidavit filed by the plaintiff, which affiant verily believes is all that is due from the defendant to the plaintiff upon the demand or demands stated in the plaintiff’s declaration. If such plea and affidavit be not filed, judgment shall be entered for the plaintiff by the court for the sum stated in his affidavit, with interest thereon from the date of the affidavit until paid. If such plea and affidavit be filed by the defendant and it be admitted in such affidavit that any such sum is due from the defendant to the plaintiff, judgment may be taken by the plaintiff for the sum so admitted to be due, with interest thereon from the date of the affidavit filed by the plaintiff until paid, and the case tried as to the residue. If the plaintiff has not filed such affidavit with his declaration, and the office judgment in the case be not set aside, the judgment shall not be entered by the court until the plaintiff files such affidavit or proves his case in open court, and the judgment in either case shall be entered as heretofore provided for. If the case be one arising out of contract in which there is an order for an inquiry of damages, and the plaintiff has filed with his declaration the affidavit hereinbefore mentioned, no plea shall be filed in the case, either at rules or in court, unless the defendant shall file therewith the affidavit hereinbefore required to set aside an office judgment in which no order for an inquiry of damages had been made. When a jury is impaneled to execute an order for an inquiry of damages, their oath shall be that they will well and truly find the amount, if any, which the plaintiff is entitled to recover in the action, and a true verdict render according to the evidence. And the affidavit of the plaintiff hereinbefore mentioned shall be legal evidence on such inquiry.(Code 1849, c. 171, §44; Code 1860, c. 171, §44; Code 1868, c. 125, §46; 1882, c. 71, §46; Code 1923, c. 125, §46.)

§52. Setting Aside Such Judgment; Trial.—If a defendant against whom a judgment is entered in the office, whether an order for an inquiry of damages has been made therein or not, shall, before the end of the term at which it becomes final, appear and plead to issue, and shall, in the cases mentioned in the next preceding section in which an affidavit is required, file such affidavit with his plea, the judgment shall be set aside; but if the judgment has been entered up in court or the order for an inquiry of damages has been executed, it shall not be set aside without good cause be shown therefor. Any such issue may be tried at the same term, unless the defendant show by affidavit, filed with the papers, good cause for a continuance. But the plaintiff shall have the right to cross-examine the defendant upon the matters contained in such affidavit.(Code 1849, c. 171, §45; Code 1860, c. 171, §45; Code 1868, c. 125, §47; 1882, c. 71, §47; Code 1923, c. 125, §47.)

§53. Hearing as to Defendants Served; Discontinuance.—Where, in any action against two or more defendants, the process is served on part of them, the plaintiff may proceed to judgment as to any so served, and either discontinue it as to the others or from time to time, as the process is served as to such others, proceed to judgment as to them until judgment be obtained against all. Such discontinuance of the action as to any defendant not served with process shall not operate as a bar of any subsequent action which may be brought against him for the same cause.(Code 1849, c. 171, §49; Code 1860, c. 171, §49; Code 1868, c. 125, §52; 1882, c. 71, §52; 1919, c. 84, §52; Code 1923, c. 125, §52.)

§54. Form of Bill of Complaint.—The plaintiff’s bill may be in form or in substance as follows:

Every person designated in the caption of such bill as a defendant shall be a defendant therein, without a prayer that he be made such, and shall be required to answer the bill in the same manner and to the same extent as if he were therein called upon to do so.(Code 1868, c. 125, §37; 1882, c. 71, §37; Code 1923, c. 125, §37.)

§55. Jury Trial of Issue Upon Plea in Equity.—A plaintiff in equity may take issue upon a plea, and either party may have such issue tried by a jury.(Code 1849, c. 171, §33; Code 1860, c. 171, §33; Code 1868, c. 125, §31; 1882, c. 71, §31; Code 1923, c. 125, §31.)

§56. Argument of Plea or Demurrer in Equity; Time to Answer After Demurrer Overruled; Proceeding on Default; Status of Answer Filed in Vacation.—A plaintiff in equity may have any plea or demurrer set down to be argued. If the same be overruled, no other plea or demurrer shall afterwards be received, but the defendant shall file his answer, in court, if in session, or, if not in session, in the clerk’s office of the court in which the suit is pending, within fifteen days after the overruling of his plea or demurrer, unless, for good cause shown, the time is enlarged by the court, or the judge thereof in vacation; and if he fail to appear and answer the bill within such fifteen days, or additional time, if any such be granted, the plaintiff shall be entitled to a decree against him for the relief prayed for therein, or the plaintiff may proceed against such defendant in the manner prescribed by section sixty-six of this article. Any answer filed in the clerk’s office in vacation pursuant to the provisions of this section shall have the same status and effect as if filed in term.(Code 1849, c. 171, §32; Code 1860, c. 171, §32; Code 1868, c. 125, §30; 1882, c. 71, §30; Code 1923, c. 125, §30.)

§57. Time to Answer, in General.—A defendant may file his answer at any time before final decree, unless required to file it sooner under section fifty-six of this article, or by a proper rule of court under section four, article one, chapter fifty-one of this Code; but a cause shall not be sent to rules or continued, because an answer is filed in it, unless good cause therefor be shown by affidavit filed with the papers.(Code 1849, c. 171, §34; Code 1860, c. 171, §34; Code 1868, c. 125, §53; 1882, c. 71, §53; Code 1923, c. 125, §53.)

§58. Claim in Answer for Affirmative Relie Special Reply.—A defendant in a suit in equity may, in his answer, allege any new matter constituting a claim for affirmative relief in such suit against the plaintiff or any defendant therein, in the same manner and with like effect as if the same had been alleged in a cross-bill filed by him therein; and in such case, if the plaintiff or defendant against whom such relief is claimed desire to controvert the relief prayed for in the answer, he shall file a special reply in writing, denying such allegations of such answer as he does not admit to be true, and stating any facts constituting a defense thereto. But in case a defendant allege new matter in his answer upon which he relies for and prays affirmative relief, such defendant shall not file a cross-bill in the same cause except upon condition of striking from his answer all such matter and prayer for affirmative relief as are contained in such cross-bill.(Code 1868, c. 125, §35; 1882, c. 71, §35; Code 1923, c. 125, §35.)

§59. Answer Asking Affirmative Relief Equivalent to Cross-Bill.—When a defendant in equity in his answer alleges new matter constituting a claim to affirmative relief, the case shall be decided upon the same principles, and the same relief shall be decreed in the case, as if a cross-bill had been filed to obtain such relief.(Code 1868, c. 125, §57; 1882, c. 71, §57; Code 1923, c. 125, §57.)

§60. Admissions in Equity by Failure to Deny.—Every material allegation of the bill not controverted by an answer, and every material allegation of new matter in the answer constituting a claim for affirmative relief not controverted by a special reply in writing, shall, for the purposes of the suit, be taken as true, and no proof thereof shall be required.(Code 1868, c. 125, §36; 1882, c. 71, §36; Code 1923, c. 125, §36.)

§61. Proof of Allegations Denied by Answer.—When a defendant in equity shall, in his answer, deny any material allegation of the bill, the effect of such denial shall only be to put the plaintiff on satisfactory proof of the truth of such allegation, and any evidence which satisfies the court or jury of the truth thereof shall be sufficient to establish the same.(Code 1868, c. 125, §59; 1882, c. 71, §59; Code 1923, c. 125, §59.)

§62. Verification of Pleadings in Equity.—If the plaintiff desire the defendant to answer the bill on oath, he must verify his bill by affidavit, and if the bill be so verified, the defendant must in like manner verify his answer. But if the bill be not verified, the defendant need not verify his answer, and if he does so it shall not be entitled to any more weight in the cause than if it had not been verified. In case the defendant verify his answer, alleging new matter constituting a claim for affirmative relief, the plaintiff must verify his special reply thereto. A general replication to an answer claiming affirmative relief shall not apply to so much of such answer as states facts constituting a claim to such relief.(Code 1868, c. 125, §38; 1882, c. 71, §38; Code 1923, c. 125, §38.)

§63. Appearance of Corporation by Attorney; Verification of Pleading.—Any corporation may appear, plead or answer by attorney in any action, suit or proceeding for the same purposes, in the same manner and form and to the same extent and effect as if it were a natural person. Any answer or pleading of a corporation shall be verified in any case in which it would be required to be verified if it were the answer or pleading of a natural person.

§64. Form of Verification of Pleading.—The verification of any pleading may be by the pleader or some other credible person. The verification, when by the plaintiff or defendant, may be in form or effect as follows:

If the party required to verify a pleading be an administrator or other fiduciary, it shall be sufficient if he swear that he believes the plea or other pleading to be true. A bill of injunction to be sworn to by any person other than the plaintiff, or answer to a bill of injunction to be sworn to by a person other than the defendant making the answer, must be so drawn as to show which of the allegations therein contained are made on information and belief.

The verification, when by a person other than the plaintiff or defendant, shall be in form or effect as follows:

(Code 1849, c. 171, §40; Code 1860, c. 171, §40; Code 1868, c. 125, §42; 1882, c. 71, 42; Code 1923, c. 125, §42.)

§65. Exceptions to Answers for Insufficiency Abolished; Demurrer; Amended Answer; Procedure if Insufficient.—Exceptions to answers for insufficiency are abolished. The test of sufficiency shall be made by a demurrer; if found insufficient, but amendable, the court may allow amendment on terms. If the amended or second answer is adjudged insufficient, the defendant may be examined upon interrogatories and committed until he answers them, or on motion of the plaintiff the court may strike out the answer and enter a decree for the plaintiff.(Code 1849, c. 171, §36; Code 1860, c. 171, §36; Code 1868, c. 125, §55; 1882, c. 71, §55; Code 1923, c. 125, §55.)

§66. Attachment or Order to Answer Interrogatories.—Although a bill be taken for confessed as to any defendant, the plaintiff may have an attachment against him, or an order for him to be brought in to answer interrogatories. No plea or demurrer shall be received after such attachment, unless by order of court, upon motion.(Code 1849, c. 171, §46; Code 1860, c. 171, §46; Code 1868, c. 125, §48; 1882, c. 71, §48; Code 1923, c. 125, §48.)

§67. Insufficient Answer After Rule.—If a defendant, after process of contempt, put in an answer which is adjudged insufficient, the plaintiff may proceed with the process of contempt, as if no answer had been filed, or, at the option of the plaintiff, if the bill be verified, the court may thereupon render such decree in the case as may be just.(Code 1849, c. 171, §47; Code 1860, c. 171, §47; Code 1868, c. 125, §49; 1882, c. 71, §49; Code 1923, c. 125, §49.)

§68. Setting Cause in Equity for Hearing.—Whenever a suit in equity is matured at rules as to all of the defendants, it shall be the ex officio duty of the clerk, as soon as the same is matured, to set the case for hearing as to them. If the suit be matured as to only a part of the defendants, the plaintiff may appear at rules and have it set for hearing as to such part. If one month elapse after the answer of a defendant is filed, without the case being so set and without a demurrer being filed to his answer, such defendant may appear at rules and have the case set for hearing as to himself.(Code 1849, c. 171, §48; Code 1860, c. 171, §48; Code 1868, c. 125, §50; 1882, c. 71, §50; Code 1923, c. 125, §50.)

§69. Hearing as to One Defendant; Rule Mature Cause.—If a suit in equity be set for hearing as to any defendant, it shall be heard as to him, unless his interests be so connected with those of other defendants in the suit that it would be improper to decide upon their interests separately. And though there be such connection, a defendant as to whom the case has been set for hearing may have an order upon the plaintiff to use due diligence to mature the cause for hearing as to the other defendants, and, unless it be so matured within such time as the court may deem reasonable, shall be entitled to a hearing or dismission of it as to him.(Code 1849, c. 171, §50; Code 1860, c. 171, §50; Code 1868, c. 125, §51; 1882, c. 71, §51; Code 1923, c. 125, §51.)

§70. Control by Court Over Proceedings in Office During Vacation.—The court shall have control over all proceedings in the office during any preceding vacation. It may reinstate any cause discontinued during such vacation, set aside any of the proceedings or correct any mistake therein, and make such order concerning the same as may be just.(Code 1849, c. 171, §51; Code 1860, c. 171, §51; Code 1868, c. 125, §60; 1882, c. 71, §60; Code 1923, c. 125, §60.)

§1. Payment Before Action Brought May be Pleaded.—In any action for the recovery of a debt, the defendant may plead payment of the debt (or of so much as is due by the condition) before action brought.(Code 1849, c. 172, §1; Code 1860, c. 172, §1; Code 1868, c. 126, §1; Code 1923, c. 126, §1.)

§2. Payment Into Court After Action as Brought.—In any personal action, the defendant may pay into court, to the clerk, a sum of money on account of what is claimed, or by way of compensation or amends, and plead that he is not indebted to the plaintiff (or that the plaintiff has not sustained damages) to a greater amount than such sum.(Code 1849, c. 172, §2; Code 1860, c. 172, §2; Code 1868, c. 126, §2; Code 1923, c. 126, §2.)

§3. Acceptance of Such Payment; Trial of Issue as to Residue.—The plaintiff may accept such sum, either in full satisfaction and then have judgment for his costs, or in part satisfaction and reply to the plea generally and if issue thereon be found for the defendant judgment shall be given for the defendant and he shall recover his costs.(Code 1849, c. 172, §3; Code 1860, c. 172, §3; Code 1868, c. 126, §3; Code 1923, c. 126, §3.)

§4. Set-off; Plea or Account Thereof; Counter Set-off; Trial.—In a suit for any debt, the defendant may at the trial prove and have allowed against such debt any payment or set-off which is so described in his plea, or in an account filed therewith, 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 that the person entitled to the set-off is the principal. And 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, in the issue, the jury or judge shall ascertain the true state of indebtedness between the parties, and judgment shall be rendered accordingly.(Code 1849, c. 172, §4; Code 1860, c. 172, §4; 1868, c. 96, §4; Code 1868, c. 126, §4; Code 1923, c. 126, §4.)

§5. Special Pleas in the Nature of Pleas of Set-off; Verification.—In any action on a contract, the defendant may file a plea alleging any such failure in the consideration of the contract, or fraud in its procurement, or any such breach of any warranty to him of the title to real property or of the title or the soundness of personal property, for the price or value whereof he entered into the contract, or any other matter, as would entitle him either to recover damages at law from the plaintiff, or the person under whom the plaintiff claims, or to relief in equity, in whole or in part, against the obligation of the contract; or, if the contract be by deed, alleging any such matter existing before its execution, or any such mistake therein, or in the execution thereof, or any such other matter, as would entitle him to such relief in equity; and in either case alleging the amount to which he is entitled by reason of the matters contained in the plea. Every such plea shall be verified by affidavit.(Code 1849, c. 172, §5; Code 1860, c. 172, §5; Code 1868, c. 126, §5; Code 1923, c. 126, §5.)

§6. When Such Plea Bar to Relief in Equity; Nature of Replication.—If a defendant entitled to such plea as is mentioned in the preceding section shall not tender it, or though he tender it, if it be rejected for not being offered in due time, he shall not be precluded from such relief in equity as he would have been entitled to if the preceding section had not been enacted. If an issue in fact is joined on such plea and the same be found against the defendant, he shall be barred of relief in equity upon the matters alleged in the plea, unless upon such ground as would entitle a party to relief against a judgment in other cases. Every such issue in fact shall be upon a general replication that the plea is not true; and the plaintiff may give in evidence, on such issue, any matter which could be given in evidence under a special replication, if such replication were allowed.(Code 1849, c. 172, §6; Code 1860, c. 172, §6; Code 1868, c. 126, §6; Code 1923, c. 126, §6.)

§7. Application of Article to Voluntary Bonds or Deeds.—Nothing in this article shall impair or affect the obligation of any bond or other deed deemed voluntary in law, upon any party thereto, or his representatives.(Code 1849, c. 172, §7; Code 1860, c. 172, §7; Code 1868, c. 126, §7; Code 1923, c. 126, §7.)

§8. Set-off As to Part of Demand; Continuance.—If the defendant file a plea or account of set-off which covers or applies to part of the plaintiff’s demand, judgment may forthwith be rendered for the part not controverted and the costs accrued until the filing of the plea or ac count, and the case shall be proceeded with for the residue as if the part for which judgment was rendered had not been included therein. And if, in addition to such plea or account, the defendant plead some other plea, going to the whole or residue of the demand, the case shall not be continued as to the part not controverted by plea or account of set-off, unless good cause be shown for such continuance. A failure to take such judgment, however, at the term the plea or account is filed, shall not effect a discontinuance of the cause.(Code 1849, c. 172, §8; Code 1860, c. 172, §8; Code 1868, c. 126, §8; Code 1923, c. 126, §8.)

§9. Status of Defendant With Reference to Set-off; Verdict and Judgment.—A defendant who files a plea or account under this article shall be deemed to have brought an action against the plaintiff (at the time of filing the same) for the matters mentioned in such plea or account, and the plaintiff shall not, after the plea or account is filed, dismiss his case without the defendant’s consent, but shall be entitled to every ground, of defense against the defendant’s demand of which he might have availed himself by special plea or otherwise in any action brought against him upon the same demand. On the trial of the issue in such case, the jury shall ascertain the amount to which the defendant is entitled and apply it as a set-off against the plaintiff’s demand, and, if such amount be more than the plaintiff is entitled to, shall ascertain the amount of the excess, including principal and interest. Judgment in such case shall be for the defendant against the plaintiff for such excess, with interest from the date of the judgment till payment.(Code 1849 c. 172, §9; Code 1860, c. 172, §9; Code 1868, c 126, §9; Code 1923, c. 126, §9.)

§1. Law Docket.—Before every term of a circuit court, or any other court of record exercising jurisdiction in the trial or hearing of actions at law, the clerk shall make out a docket of the following cases pending, to wit: First, cases of the State; secondly, motions and actions, in the order in which the notices of the motions were filed, or in which the proceedings at rules in the actions were terminated, docketing together as new cases those not on the docket at the previous term. He shall, under control of the court, set the cases to certain days; and the docket shall be called and the cases on it tried or disposed of for the term in that order, except that the court may for good cause take up any case out of turn.(Code 1849, c. 177, §1; Code 1860, c. 177, §1; Code 1868, c. 131, §1; 1872-3, c. 93, §1; 1882, c. 120, §1; Code 1923, c. 131, §1.)

§2. Chancery Docket.—Before every term of a circuit court, or any other court exercising jurisdiction in the hearing of suits in chancery, the clerk shall make out a separate docket of chancery cases in which there are motions, and of other chancery cases which have been set for hearing as to any party, or which the court is to hear upon a plea or demurrer; and during such term every cause on such docket shall be called and disposed of.(Code 1849, c. 177, §2; Code 1860, c. 177, §2; Code 1868, c. 131, §2; 1872-3, c. 93, §2; 1882, c. 120, §2; Code 1923, c. 131, §2.)

§3. Application for Hearing.—Any party asking the court to hear a case may, if the court refuses to hear it, have his application spread upon the record, with a statement of the facts in relation thereto.(Code 1849, c. 177, §3; Code 1860, c. 177, §3; Code 1868, c. 131, §3; 1882, c. 120, §3; Code 1923, c. 131, §3.)

§4. Direction and Trial of Issues Out of Chancery.—Any court, wherein is pending a chancery case in which there is such a conflict in the evidence as, in the opinion of such court, to render it proper, may direct an issue thereon to be tried in such court. And the court shall have the discretion to direct such an issue to be tried before any proof has been taken by either the plaintiff or the defendant, if it shall be shown by affidavit or affidavits, after reasonable notice, that the case will be rendered doubtful by the conflicting evidence of the respective parties. Although the verdict on such issue may be set aside, there shall be no new trial thereof, but the court may proceed to decree as if no issue had been directed. No issue out of chancery shall be directed in any other case unless specially authorized by statute. Nothing in this section shall be construed to conflict with any of the provisions of chapter forty-one of this Code.(Code 1849, c. 177, §4; Code 1860, c. 177, §4; Code 1868, c. 131, §4; 1872-3, c. 93, §4; 1875, c. 79, §4; 1882, c. 120, §4; Code 1923, c. 131, §4.)

§5. Trial of Action at Law; Separate Verdicts on Different Issues; Interrogatories to the Jury.—Any court of record having jurisdiction of the trial of common law actions may, in any case before it other than a chancery case, have an issue tried, or an inquiry of damages made, by a jury, and determine all questions concerning the legality of evidence and other matters of law which may arise. Upon the trial of any issue or issues by a jury, whether under this section or not, the court may, on motion of any party, direct the jury, in addition to rendering a general verdict, to render separate verdicts upon any one or more of the issues, or to find in writing upon particular questions of fact to be stated in writing. The action of the court upon such motions shall be subject to review as in other cases. Where any such separate verdict or special findings shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.(Code 1849, c. 177, §5; Code 1860, c. 177, §5; Code 1868, c. 131, §5; 1872-3, c. 93, §5; 1875, c. 79, §5; 1882, c. 120, §5; Code 1923, c. 131, §5.)

§6. Time for Trial.—At the next term after an order at the rules for an inquiry of damages, such order may be executed and a final judgment rendered thereupon, unless good cause be shown for a continuance.(Code 1849, c. 177, §6; Code 1860, c. 177, §6; Code 1868, c. 131, §6; 1882, c. 120, §6; Code 1923, c. 131, §6.)

§7. Continuance on Account of Absence of Witness.—If in any case a continuance be asked because of the absence of a witness, an affidavit must be filed, if required by any party opposing, setting forth, in addition to other matters required in order to obtain a continuance, the name of the witness and the testimony he is expected to give, and the affiant must, if required by any opposing party, submit to cross-examination in open court upon the matters set forth in such affidavit.(1882, c. 120, §6; Code 1923, c. 131, §6.)

§8. Continuance of Causes at End of Term.—All causes on the docket of any court, and all other matters ready for its decision which shall not have been determined before the end of a term, whether regular, adjourned or special, shall, without any order of continuance, stand continued until the next term.(Code 1849, c. 161, §16; Code 1860, c. 161, §16; Code 1868, c. 114, §12; 1872-3, c. 9, §12; Code 1923, c. 114, §12.)

§9. Case Not to be Discontinued by Failure to Sign Judgment.—When a defendant has demurred to, filed a plea to, or otherwise put in issue, a part of the plaintiff’s claim and has left the residue of such claim unanswered, the case shall in no event be discontinued merely because the plaintiff has failed to sign judgment as to the unanswered residue; but the plaintiff may, at any term of court at or after which such demurrer or plea is filed or such part of the plaintiff’s claim is otherwise put in issue, before or after trial of the issue as to the part answered, provided the case shall not have been discontinued under some other provision of law, take judgment by nil dicit as to such unanswered residue.

§10. Stay of Proceedings Until Other Action, Suit or Proceeding Decided.—Whenever it shall be made to appear to any court, or to the judge thereof in vacation, that a stay of proceedings in a case therein pending should be had until the decision of some other action, suit or proceeding in the same or another court, such court or judge shall make an order staying proceedings therein, upon such terms as may be prescribed in the order. But no application for such stay shall be entertained in vacation until reasonable notice thereof has been served upon the opposite party.(Code 1868, c. 136, §6; 1882, c. 124, §6; Code 1923, c. 136, §6.)

§11. Execution of Order of Inquiry and Trial of Case by Court; Reduction of Number of Jurors.—The court, in an action at law, if neither party require a jury, or if the defendant has failed to appear and the plaintiff do not require a jury, shall ascertain the amount the plaintiff is entitled to recover in the action, if any, and render judgment accordingly. In any case, except a case of felony, in which a trial by jury would be otherwise proper, the parties or their counsel, by consent entered of record, may waive the right to have a jury, and thereupon the whole matter of law and fact shall be heard and determined, and judgment given by the court; or by like consent, the jury may consist of a number less than twelve, and in that case a verdict shall be as valid, and have the same effect, as if it had been found by a jury of twelve.(Code 1849, c. 162, §9; Code 1860, c. 162, §38; Code 1868, c. 116, §29, c. 131, §7; 1872-3, c. 47, §35; 1882, c. 83, §29, c. 120, §7; Code 1923, c. 116, §29, c. 131, §7.)

§12. Qualifications of Jurors; Examination on Voir Dire; Challenges.—Either party in any action or suit may, and the court shall on motion of such party, examine on oath any person who is called as a juror therein, to know whether he is a qualified juror, or is related to either party, or has any interest in the cause, or is sensible of any bias or prejudice therein; and the party objecting to the juror may introduce any other competent evidence in support of the objection; and if it shall appear to the court that such person is not a qualified juror or does not stand indifferent in the cause, another shall be called and placed in his stead for the trial of that cause. And in every case, unless it be otherwise specially provided by law, the plaintiff and defendant may each challenge four jurors peremptorily.(1852-3, c. 27, §23; Code 1860, c. 162, §21; Code 1868, c. 116, §17; 1872-3, c. 47, §23; 1882, c. 83, §17; 1890, c. 11, §17; 1891, c. 42, §17; Code 1923, c. 116, §17.)

§13. Special Jury.—Any court may allow a special jury in any civil case, to be formed in the following manner: The court shall direct a panel of twenty jurors to be drawn by the clerk, in the presence of the court, from the box mentioned in section seven, article one, chapter fifty-two of this Code, who shall be summoned by the sheriff to attend on the day named in the order, from which number sixteen shall be chosen by lot; and the parties thereupon, the plaintiff's attorney beginning, shall alternately strike off one until the number be reduced to twelve, which number shall complete the jury for the trial of the case. The court may also allow a special jury in any civil case when the panel of drawn jurors is exhausted, upon the motion of either of the parties, to be summoned by the sheriff so far as may be required from the body of the county; but no such special jury shall be allowed in any case unless the court certifies of record that the interest of the parties so asking such jury will be promoted by the allowance of such special jury.(Code 1849, c. 162, §8; 1852-3, c. 27, §27; Code 1860, c. 162, §25; Code 1868, c. 116, §21; 1870, c. 20, §21; 1872-3, c. 47, §27; 1882, c. 83, §21; 1891, c. 42, §21; 1921, c. 69, §21; Code 1923, c. 116, §21.)

§14. Juror Having Matter of Fact to be Tried Disqualified.—No person shall serve as a juror at any term of a court during which he has any matter of fact to be tried by a jury, which shall have been, or is expected to be, tried during the same term.(Code 1849, c. 162, §3; Code 1860, c. 162, §36; Code 1868, c. 116, §28; 1872-3, c. 47, §34; 1882, c. 83, §28; Code 1923, c. 116, §28.)

§15. Exceptions to Jurors After Sworn.—No exception shall be allowed against a juror, after he is sworn upon the jury, on account of his age or other legal disability, unless by leave of court.(Code 1849, c. 162, §4; 1852-3, c. 27, §24; Code 1860, c. 162, §22; Code 1868, c. 116, §18; 1872-3, c. 47, §24; 1882, c. 83, §18; 1891, c. 42, §18; Code 1923, c. 116, §18.)

§16. Irregularities Affecting the Jury; Time for Objection.—No irregularity in any writ of venire facias, or in the drawing, summoning, or impaneling of jurors, shall be sufficient to set aside a verdict, unless objection specifically pointing out such irregularity was made before the swearing of the jury, or unless the party making the objection was injured by the irregularity(1852-3, c. 27, §25; Code 1860, c. 162, §23; Code 1868, c. 116, §19; 1872-3, c. 47, §25; 1882, c. 83, §19; 1891, c. 42, §19; Code 1923, c. 116, §19.)

§17. View by Jury.—The jury may, in any case, at the request of either party, be taken to view the premises or place in question, or any property, matter or thing relating to the controversy between the parties, when it shall appear to the court that such view is necessary to a just decision, and in such case the judge presiding at the trial may go with the jury and control the proceedings; and in a felony case the judge and the clerk shall go with the jury and the judge shall control the proceedings, and the accused shall likewise be taken with the jury or, if under recognizance, shall attend the view and his recognizance shall be construed to require such attendance. The party making the motion, in a civil case, shall advance a sum sufficient to defray the expenses of the jury and the officers who attend them in taking the view, which expenses shall be afterwards taxed like other legal costs.(Code 1849, c. 162, §10; Code 1860, c. 162, §39; Code 1868, c. 116, §30; 1872-3, c. 47, §36; 1882, c. 83, §30; Code 1923, c. 116, §30.)

§18. Disclosure by Juror of Knowledge of Facts in Issue.—A juror knowing anything relative to a fact in issue shall disclose the same in open court, but not to the jury out of court; and the court shall inform the jury of this provision.(Code 1849, c. 162, §11; Code 1860, c. 162, §40; Code 1868, c. 116, §31; 1872-3, c. 47, §37; 1882, c. 83, §31; Code 1923, c. 116, §31.)

§19. Instructions to Jury; Form and Manner of Giving.—Upon the trial of any case, civil or criminal, before a jury, either party may pray the court to give to the jury any instruction which has been reduced to writing and submitted to the other party. Such other party may object to the giving of such instruction. Every such instruction which shall propound correctly law applicable to the case not covered by other instructions shall be given by the court to the jury as a part of a written charge by the court to the jury, as hereinafter provided, in case such charge be given, and otherwise shall be given as an independent instruction. The court may, on its own motion, whether requested or not, in writing define to the jury the issues involved and instruct them on the law governing the case, but all such instructions shall first be submitted to counsel on each side with opportunity to object thereto. In lieu of the giving of separate instructions as herein provided, the court may in writing instruct upon the law governing the case, putting such instructions in the form of an orderly and connected charge, incorporating therein the substance and, as far as may be, the language of the instructions prayed upon either side or prepared by the court on its own motion, with correctly propounded law applicable to the case, which written charge shall first be submitted to counsel on each side with opportunity to specify and object to any part thereof. No objections shall lie to the action of the court upon any instruction if the law to which it relates shall have been correctly stated by the court in such charge. The action of the court upon every instruction prayed, whether such instruction be given as asked or as modified, independently or as part of the court’s charge, or be refused, shall be noted upon the margin thereof by the judge over his signature. Either party may except to any and every ruling by the court adverse to the prayer or objection by him with respect to any such instruction.(1915, c. 72, §22; Code 1923, c. 131, §22.)

§20. Reading Instructions to Jury; Instructions Part of the Record.—All instructions given shall be read by the court to the jury as the action and ruling of the court, without reference to or disclosing the party by whom they may have been prayed. Every instruction or charge in writing read to the jury and every instruction or charge in writing prayed by any party and refused by the court, provided, in either case, that such instruction or charge have a notation thereon showing the action of the court with reference thereto over the signature of the judge, as provided in the preceding section, shall, together with the objections and exceptions thereto, indorsed thereon, be a part of the record in the case and shall be included and copied in any transcript of the record without the formality of a bill of exceptions or any formal certification provided for in subsequent sections of this article.(1915, c. 72, §23; 1921, c. 68; Code 1923, c. 131, §23.)

§21. Time for Examining Instructions, Objecting Thereto, and Settlement Thereof.—The court shall, in the absence of any rule for such purpose prescribed by the supreme court of appeals, under the provisions of section four, article one, chapter fifty-one of this Code, by suitable general rules, prescribe the stages of the trial, at which instructions must be presented to the opposing counsel and to the court, at which objections may be made to charges and instructions prepared by the court, and at which the instructions and charge shall be settled by the court and read by it to the jury; all of which being subject to the power of the court in a particular case to make exceptions to such rules when good cause therefor shall appear and justice may so require.(1915, c. 72, §24; Code 1923, c. 131, §24.)

§22. Oral Instructions by Court; Written Instructions During Trial.—Nothing in the three next preceding sections contained shall affect the power of the court during the trial of the case to instruct the jury orally concerning matters not proper for their consideration or concerning the conduct of any person in connection with the trial; or, otherwise, on its own motion to instruct the jury in writing on the law of the case at any stage during the trial, subject to the right of exception by either party.(1915, c. 72, §25; Code 1923, c. 131, §25.)

§23. Papers Taken by Jury.—Depositions or other papers read in evidence may, by leave of the court, be carried from the bar by the jury.(Code 1849, c. 177, §11; Code 1860, c. 177, §11; Code 1868, c. 131, §12; 1882, c. 120, §12; Code 1923, c. 131, §12.)

§24. Argument of Counsel.—Not more than two counsel shall argue in a civil case on the same side, unless by leave of court, and the argument of each counsel shall not occupy more than two hours, unless by like leave. The court may, in its reasonable discretion, still further limit the time of argument on each side.(Code 1849, c. 177, §9; Code 1860, c. 177, §9; Code 1868, c. 131, §10; 1882, c. 120, §10; Code 1923, c. 131, §10.)

§25. Time Limitation as to Nonsuit.—A party shall not be allowed to suffer a nonsuit, unless he do so before the jury retire from the bar.(Code 1849, c. 177, §10; Code 1860, c. 177, §10; Code 1868, c. 131, §11; 1882, c. 120, §11; Code 1923, c. 131, §11.)

§26. How Verdict May be Affected by Faulty Count.—When there are several counts in a declaration, one or more of which are faulty, the defendant may demur to the faulty count or counts, or move the court to instruct the jury to disregard them. If he does neither, and entire damages be found, judgment shall be entered against the defendant for the damages found, if any count be good, although others be faulty, unless the court can plainly see that the verdict could not have been found on the good count. If he demurs to the faulty count, or moves the court to instruct the jury to disregard it, and his demurrer or motion is overruled, and entire damages be found, and it can not be seen on which count the verdict was founded, if the jury has been discharged the verdict shall be set aside, but if it is manifest that the verdict could not have been found on the bad count, the verdict shall be allowed to stand. If the jury has not been discharged, the court shall send it back with instructions to designate on which count of the declaration its verdict is found.(Code 1849, c. 177, §12; Code 1860, c. 177, §12; Code 1868, c. 131, §13; 1882, c. 120, §13; Code 1923, c. 131, §13.)

§27. Interest on Claim and Verdict.—The jury, in any action founded on contract, may allow interest on the principal due, or any part thereof, and in all cases they shall find the aggregate of principal and interest due at the time of the trial, after allowing all proper credits, payments and sets-off; and judgment shall be entered for such aggregate with interest from the date of the verdict.(Code 1849, c. 177, §14; Code 1860, c. 177, §14; Code 1868, c. 131, §14; 1882, c. 120, §14; Code 1923, c. 131, §14.)

§28. New Trial.—In any civil case or proceeding, the court before which a trial by jury is had may grant a new trial, unless it be otherwise specially provided. A new trial may be granted as well where the damages are too small as where they are excessive. Not more than two new trials shall be granted to the same party in the same cause on the ground that the verdict is contrary to the evidence, either by the trial court or the appellate court, or both.(Code 1849, c. 177, §15; Code 1860, c. 177, §15; Code 1868, c. 131, §15; 1882, c. 120, §15; Code 1923, c. 131, §15.)

§29. Judgment or Decree to be for Aggregate of Principal and Interest to Date of Recovery.—When there is a recovery on a bond conditioned for the payment of money, as well as in all cases where a judgment or decree is rendered or made for the payment of money, it shall be for the aggregate of principal and interest due at the date of the verdict, if there be one, otherwise at the date of the judgment or decree, with interest thereon from the date of such verdict, if there be one, otherwise from the date of such judgment or decree, except in cases where it is otherwise provided. In any action founded on a tort, if the verdict be for the plaintiff, the judgment shall be for the amount of the verdict with interest thereon from the date of the verdict.(Code 1849, c. 177, §16; Code 1860, c. 177, §16; Code 1868, c. 131, §16; 1882, c. 120, §16; Code 1923, c. 131, §16.)

§30. Action on Contract for Payments in Installments, or on Bond With a Collateral Condition.—In an action on an annuity bond, or a bond for money payable by installments, where there are further payments of the annuity, or further installments to become due after the commencement of the action, or in any other action for a penalty for the nonperformance of any condition, covenant or agreement, the plaintiff may assign as many breaches as he thinks fit. If there be judgment for the plaintiff on a demurrer, or by confession, or by default, or nil dicit, he may so assign after such judgment. The jury impaneled in any such action shall ascertain the damages sustained, or the sum due by reason of the breaches assigned, including interest thereon to the date of the verdict, and judgment shall be entered for what is so ascertained: Provided, That if the action be on such annuity bond, or a bond for money payable by installments, such judgment shall also be for such further sums as may afterward be assessed or be found due upon a scire facias assigning a further breach. Such scire facias may be sued out from time to time by any person injured, against the defendant or his personal representative, and, for what may be assessed or found due upon the new breach or breaches assigned, execution may be awarded.(Code 1849, c. 177, §17; Code 1860, c. 177, §17; Code 1868, c. 131, §17; 1882, c. 120, §17; Code 1923, c. 131, §17.)

§31. Interest on Judgment or Decree.—Every judgment or decree for the payment of money, except where it is otherwise provided by law, shall bear interest from the date thereof, whether it be so stated in the judgment or decree or not.(Code 1849, c. 177, §18; Code 1860, c. 177, §18; Code 1868, c. 131, §18; 1882, c. 120, §18; Code 1923, c. 131, §18.)

§32. Recovery Against One or More Contract Defendants.—In an action or motion, founded on contract, against two or more defendants, the fact that one or more of the defendants, at any stage of the cause or for any reason, is found not liable on the contract shall not prevent the plaintiff from having, as if the motion or action were an action founded on tort, verdict and judgment, or judgment alone, as the case may be, against any other defendant or defendants who are liable; nor shall the fact that a verdict is set aside as to one or more of the defendants in such action or motion as contrary to the evidence prevent the plaintiff from having judgment on such verdict as to any other defendant or defendants found liable thereby.(Code 1849, c. 177, §19; Code 1860, c. 177, §19; Code 1868, c. 131, §19; 1882, c. 120, §19; Code 1923, c. 131, §19.)

§33. Judgment or Decree Against Personal Representative or Committee; Costs.—A judgment or decree against any person as the personal representative of a decedent or committee of a convict or insane person, for a debt due from such decedent, convict or insane person, may, without taking an account of the transactions of such representative or committee, be ordered to be paid out of the personal estate of such decedent, convict or insane person, in, or which shall come to, the hands of the representative or committee to be administered. When the court enters of record that, if he had prudently discharged his duty, the suit or motion would not have been brought or made, the judgment or decree, so far as it is for costs, shall be ordered to be paid out of his own estate.(Code 1849, c. 177, §20; Code 1860, c. 177, §20; Code 1868, c. 131, §20; 1882, c. 120, §20; Code 1923, c. 131, §20.)

§34. Issuance of Executions During Term.—Any circuit court or other court of record, after the fifteenth day of its term, may make a general order allowing executions to issue on judgments or decrees after ten days from their date, although the term at which they are rendered be not ended. For special cause it may, in any particular case, except the same from such order, or allow an execution thereon at an earlier period.(Code 1849, c. 177, §21; Code 1860, c. 177, §21; Code 1868, c. 131, §21; 1882, c. 120, §21; Code 1923, c. 131, §21.)

§35. Bills of Exceptions.—In the trial of a case at law in which a writ of error or supersedeas lies to the court of appeals, a party may except to any action or opinion of the court and tender a bill of exceptions; and if the action or opinion of the court be upon any question involving the evidence or any part thereof, either upon a motion for a new trial or otherwise, the court shall certify all the evidence touching such question, and the judge shall sign any such bill of exceptions (if the truth of the case be fairly stated therein), and it shall be made a part of the record in the case, and the whole of the evidence so certified shall be considered by the court of appeals, both upon application for and hearing of the writ of error or supersedeas. If any judge refuse to sign such bill of exceptions, he may be compelled to do so by the court of appeals by mandamus; in which case the bill of exceptions shall be a part of the record to the same extent as if it had been signed by the judge at the proper time. Any party may avail himself of any error appearing on the record, by which he is prejudiced, without obtaining a formal bill of exceptions, provided he objects or excepts on the record to the action of the court complained of, and provided it is such a matter as can be considered without a formal bill of exceptions. In all cases an objection noted on the record shall have the same effect as if followed by a formal exception to the ruling of the court thereon, and no exception shall be necessary in order to permit the party so objecting to avail himself thereof. Any bill of exceptions may be tendered to the judge and signed by him, in term or in vacation, at any time before final judgment is entered, or within sixty days after the adjournment of the term at which such judgment is entered; or if such judgment shall be entered in vacation, then within sixty days from the time when such judgment is entered; and the court or judge may, by order entered of record, extend the time within which such bill may be tendered, signed and certified beyond such period of sixty days. If such bill of exceptions be signed by the judge in vacation, he shall certify the same to the clerk of the court, who shall enter the certification upon the order book of such court, and any such bill of exceptions so made in vacation shall be a part of the record and have the same effect as if made in term.(Code 1849, c. 177, §8; Code 1860, c. 177, §8; Code 1868, c. 131, §9; 1882, c. 120, §9; 1891, c. 100, §9; Code 1923, c. 131, §9.)

§36. Certificate in Lieu of Bill of Exceptions.—In lieu of the bill of exceptions provided by the preceding section, it shall be sufficient that any matter intended to become a part of the record in any case shall be certified as provided in the following provisions of this section:

(a) Certificate of all the evidence and proceedings reported.—Whenever, for any purposes of a review by any appellate court of any action, ruling, order, judgment, or matter arising in the course of the trial or hearing of a cause, a consideration of the evidence or any part thereof, or of any other matter properly appearing in the transcript of the stenographic notes prepared by the stenographic reporter who took notes of the evidence and proceedings, may be necessary for a decision upon an appeal or writ of error of any question involved in such review, and any party seeking to bring matters into the record shall desire that all the evidence and proceedings so noted by such reporter shall become a part of the record, the trial judge shall, if in his opinion such transcript be a true report of the evidence and proceedings, certify, over his signature, such transcript or a copy thereof. Such certificate shall be inserted or appended at the end of such transcript and may be substantially as follows:

(b) Certificate of part of the evidence or proceedings reported.—If the party seeking to bring matters into the record shall desire, in lieu of making the entire transcript a part of the record as provided in the preceding subdivision, to make some specific part or parts of the evidence or proceedings properly recorded in the stenographic notes a part of the record, the reporter shall transcribe such part or parts, and the trial judge shall, if in his opinion such transcript state the truth, certify, over his signature, such transcript thereof. If the part or parts of the evidence or proceedings so transcribed shall not, as so detached from the residue of the evidence or proceedings, be alone sufficient and intelligible for the purpose of bringing to the attention of the appellate court the questions of error intended to be reviewed, then it shall be proper to supplement such partial transcript with any explanation which the trial judge shall deem proper. No particular form shall be required in such explanation, and it may either precede or follow, and may be appended to, such partial transcript. The certificate of the trial judge under this subdivision may be substantially as follows:

(c) Certificate of exceptions as to miscellaneous matters.—In the case of an exception by any party to any action, ruling, order or judgment of any trial court, or of any other matter arising in the course of the trial or hearing of a cause, and not reported in the official transcript of the evidence and proceedings, or otherwise made a part of the record, it shall be sufficient, instead of a bill of exceptions, that the trial judge shall certify that any party excepted to such action, ruling, order, judgment or matter. In any such case, the body of such certificate shall set out the subject matter of such action, ruling, order, judgment or matter, in such manner as to make intelligible any question of error arising upon such exception, and shall note the fact that the party excepted, but no particular formality in the statement thereof shall be necessary. Such certificate may conclude substantially as follows:

(d) Effect of certification in accordance with this section.—In all cases, in order to preserve of record to all intents and purposes any exception to any action, ruling, order or judgment of the trial court, or any matter arising in the course of the trial or hearing of a cause, it shall be sufficient that the trial judge, on the application of any party, shall certify the same simply and substantially in accordance with the provisions of this section;

(e) When certificate may be signed.—Any certificate to the intents and purposes of this section may be signed by the trial judge, in term or in vacation, at any time before final judgment is entered, or within sixty days after the adjournment of the term at which such judgment is entered; or if such judgment be entered in vacation, then within sixty days from the time when such judgment is entered; and the court or judge may, by order entered of record, extend the time within which such certificate may be signed beyond such period of sixty days.

§37. How Certificate of Trial Judge or Bills of Exceptions to be Considered; Instructions in Transcript Presumed to be all Given by the Court.—The appellate court in reviewing, upon a writ of error or supersedeas to a final judgment, or upon an appeal from a final decree, of an inferior court in a cause, any question arising upon the record in such cause, shall in every instance, wherever necessary to a decision of such question, consider any exception, the evidence or any part thereof introduced on the trial or hearing of the cause, or any other matter preserved of record in such cause by the certificate of the trial judge or by bill of exceptions as provided by the two preceding sections, or by the signature of the trial judge as provided by section twenty of this article; nor in the determination of any such question shall it be necessary to enable the appellate court to consider any other exception, or the evidence or any part thereof introduced at the trial or hearing of the cause, or any other matter preserved of record in the cause by the certificate of the trial judge or by bill of exceptions as provided by the two preceding sections or by the signature of the trial judge as provided in section twenty of this article, that there shall be any express reference in the certificate or bill of exceptions or noted on any instruction under which such question may arise to the certificate or bill of any other exception, or of the evidence or any part thereof introduced at the trial or hearing, or of any other matter preserved of record in the cause as provided in the two preceding sections of this article, or to any instruction or notation thereon made a part of the record pursuant to section twenty of this article; but all such separate matters, however made a part of the record, shall be read and considered together as component parts of one entire record. Any instruction or instructions appearing in the transcript of the record certified by the clerk of the trial court as given shall be presumed to be the only instruction or instructions given; or if it shall not appear from such transcript that any instruction was given, it shall be presumed that none was given, unless, in either case, it shall affirmatively appear otherwise from such transcript, or upon a suggestion by any party, either to the trial court or to the appellate court, that an instruction or instructions given have been omitted from such transcript. But nothing in this or the previous section shall be construed as compelling the appellate court to notice or review any matter arising upon a specific exception noted in the transcript of the evidence and proceedings reported unless such exception be specifically pointed out in assignments of error, brief of counsel, or otherwise specifically brought to the attention of the court.

§38. Hearing of Chancery Causes in Open Court; Oral Testimony; Bills of Exception; Transcript for Appeal.—Chancery causes may, by leave of the court, and by agreement of counsel for the parties, be heard and determined in open court; but in cases so heard the witnesses shall personally appear before the judge to testify orally, unless their depositions shall be taken out of court, under rules obtaining, by agreement of counsel, or by order of the judge made for good cause. And the rules of evidence, procedure and practice now in force, and as hereafter changed, shall apply in taking such evidence, except that bills of exception shall not be necessary in any cases wherein the same are not now required. The evidence so taken in such chancery causes shall be taken down in shorthand by the official reporter or other reporter agreed to by the parties in interest as part of his duties, and transcribed by him as provided for in respect to other matters; and like reporting charges for chancery causes and law causes shall be made, collected and accounted for. In case either party desire to appeal such chancery cause he shall, within ninety days after final or appealable decree, file the transcript of evidence which shall have the force and effect now accorded to depositions in chancery causes.(1917, c. 65, §1; Code 1923, c. 131, §26.)

§39. Hearing of Motion; Action or Chancery Cause in Vacation; Certification, Entry and Effect of Order or Decree.—Any motion, civil action at law, or chancery cause, pending in a circuit court, or any other court, or before the judge thereof, having jurisdiction of the subject matter, or any matter of law, or fact, arising in such motion, action at law, or chancery cause, may, by consent of parties, either in person or by counsel, next friend or guardian ad litem, in term time entered of record, or by like consent in vacation, be submitted to the judge of such court for such decision and decree, judgment, or order, therein in vacation as might be made in term; but such court may, either in term or vacation, without such consent, when it desires time to consider its judgment as to any motion, action at law, chancery cause, or matter of law, or fact arising therein, which has been fully argued and submitted, direct such motion, action at law, chancery cause, or matter of law or fact, to be submitted for decision, and decree, judgment or order in vacation: Provided, however, That no such consent shall be necessary as to any defendant against whom the cause, action or motion has been matured by order of publication, and who has not appeared by motion, demurrer, plea, or answer. When such consent is in vacation, the judge shall certify the fact to the clerk of the court in which the motion, action at law, or chancery cause is pending, to be entered in the law or chancery order book, as the case may be. The judge acting in vacation under this section, in addition to the other powers herein given to him, shall have authority to do any and all things, and to enter all judgments, decrees or orders in behalf of or at the request of a party desiring to take an appeal or to apply for a writ of error, that the court might do or enter in term time. The judge shall certify the judgments, orders and decrees made by him in vacation to the clerk aforesaid, to be entered in like manner as the vacation consent. All judgments, orders and decrees, so made and entered, shall have the same force and effect as if made and entered in term, except that in case of a judgment, order or decree for money the same shall be effective only from the time of day at which it is received in the clerk’s office to be entered of record.(1917, c. 65, §2; Code 1923, c. 131, §27.)

§40. Contempt Proceedings in Vacation.—The judge of every circuit court or other court of record having jurisdiction to try or hear actions at law or suits in equity shall have the same power in vacation that he has in term to punish disobedience of and enforce obedience to any decree or order made in his court and for such purpose may issue all necessary process. The orders and proceedings in such case shall be certified and entered of record as provided in the preceding section and shall be as valid as if made or had and entered in term.(1917, c. 65, §3; Code 1923, c. 131, §28.)

§41. Certification and Entry of Vacation Orders.—All orders and decrees made by a judge out of court in a cause pending in court shall be certified by him to the clerk of the court in which the same is pending, and be entered by such clerk in the proper order book.(Code 1868, c. 112, §11; 1872-3, c. 15, §13; 1881, c. 3, §10; Code 1923, c. 112, §10.)

§1. To What Commissioner or Person Accounts to be Referred; Territorial Jurisdiction; Recommittal.—Accounts to be taken in any case shall be referred to a commissioner appointed under the provisions of sections one and two, article five, chapter fifty-one of this Code, to be named in the decree or order unless the parties interested agree, or the court shall deem it proper, that they be referred to some other person especially appointed a commissioner. Every commissioner shall examine and report upon such accounts and matters as may be referred to him by the court and such report may be recommitted to such commissioner, or to some other commissioner, for other and final report.

The court in any decree or order of reference may authorize and empower the commissioner, to whom such cause or action is referred, to take proof and hear testimony touching the matters referred to him in any county within this State; and, for such purpose when so authorized, the jurisdiction and authority of such commissioner shall extend throughout the State.

Whenever the commissioner to whom any such cause or action was referred has made up and filed his report, and there appears therefrom or from the evidence filed therewith, or from the pleadings and evidence of the whole case, sufficient facts upon which the court can decree or enter judgment, the same shall not be recommitted for further report, but a decree or judgment shall be entered therein, according to the law and the very right of the case as disclosed from the whole record.(Code 1849, c. 175, §3; Code 1860, c. 175, §4; Code 1868, c. 129, §3; 1872-3, c. 138, §4; 1881, c. 34, §§4, 5; 1882, c. 57, §3; Code 1923, c. 129, §3.)

§2. Order of Reference Before Case on Docket.—The judge of any court having jurisdiction to try or hear chancery causes may, in vacation or in term time, though the cause be not upon the court docket, make an order in any cause pending in his court at any time after process has been duly served on the defendants or such of them as may appear to be interested in the subject matter upon which the commissioner is to report, or at any time after such defendants have entered their appearance in such cause, referring the same to a commissioner for the purpose of stating any proper account or reporting upon any matter as to which it is proper there should be a commissioner’s report in such cause. But no such order of reference shall be made in any cause until reasonable notice in writing has been served upon the opposite party, or his attorney, of the time and place of making application therefor.(Code 1849, c. 175, §5; Code 1860, c. 175, §6; Code 1868, c. 129, §5; 1877, c. 96, §5; 1881, c. 34, §7; 1882, c. 57, §5; Code 1923, c. 129, §5.)

§3. Notice by Commissioner.—The court ordering an account to be taken may direct that the time and place of taking the same be published once a week for three successive weeks in some newspaper published in the county, if one is so published, to be designated by the party at whose instance such publication is made or his attorney, but if no paper be so designated, then in such paper as the court may direct; or if no newspaper be published in the county, or if none therein will make the publication at the legal rate or for the time required, then in such newspaper as the court may prescribe; or the court may dispense with the publication, and require the notice to be posted at the front door of the courthouse of such county and at least four other public places in such county, twenty days before the time set forth for taking the account. Such publication or such posting shall be equivalent to personal service on the parties or any of them. In any case where all persons whose interests may be affected by the proceedings before a commissioner are known, it shall be sufficient that, in lieu of such publication or posting of the notice as aforesaid, such persons, or their counsel (or one of their counsel, if there be more than one), be served with such notice in the manner provided by section one, article two of this chapter.(Code 1849, c. 175, §4; Code 1860, c. 175, §5; Code 1868, c. 129, §4; 1881, c. 34, §6; 1882, c. 57, §4; Code 1923, c. 129, §4.)

§4. Instruction of Commissioner by Judge.—A commissioner who doubts as to any point which arises before him, in taking an account to be returned to any court, may, in writing, submit the point to such court, or the judge thereof in vacation, who may instruct him thereon.(Code 1849, c. 175, §6; Code 1860, c. 175, §7; Code 1868, c. 129, §6; 1881, c. 34, §8; 1882, c. 57, §6; Code 1923, c. 129, §6.)

§5. When Account to be Taken.—Ever commissioner to whom a cause is referred shall, immediately after the adjournment of each term of the court, proceed to take all accounts referred to him by any order or decree of the court, and all adjournments and postponements of the taking of any account shall be for good cause to be shown by the affidavit of the party making the application, which shall be filed with the papers in the cause; and if the commissioner unreasonably delays his report, he shall receive no compensation for the same.(1882, c. 57, §8; 1895, c. 8, §8; Code 1923, c. 129, §8.)

§6. Proof of Debt Before Commissioner by Affidavit; Counter Affidavit.—Every creditor in any chancery cause pending in any court before a commissioner in chancery under a decree of reference in such cause may establish his debt or demand against the debtor, if it be for the recovery of money due on contract, by filing before the commissioner with such debt or demand, completely itemized where it is upon an account, the affidavit or affidavits of any person or persons competent and not disqualified by law (which competency the affidavit or affidavits shall affirmatively show in every case where the creditor is seeking to prove a debt or demand against a deceased debtor or his estate) to testify as a witness or as witnesses before the commissioner about or concerning the debt or demand in question, such affidavit or affidavits stating every essential element necessary to constitute proof of such debt or demand, the same as though affiant or affiants had testified before the commissioner as a witness or as witnesses in person, unless the debtor, his personal representative, or any party, or creditor, or other person interested shall file before the commissioner a counter affidavit denying the correctness of the debt or demand, as a whole or in part, or the validity of any lien by which it is secured, in which case the creditor presenting such debt or demand shall be required to produce his witness or witnesses before the commissioner, reasonable notice of which shall be given in writing to the creditor or his attorney, and the taking of the testimony relative to such debt or demand, or the validity of such lien, as the case may be, shall be proceeded with before the commissioner in like manner as if no affidavit or affidavits had been filed. In every case, however, where such debt or demand is evidenced by a contract in writing, or by a judgment or decree, or is secured by a lien, such affidavit or affidavits alone shall not be sufficient to establish such debt or demand; but such creditor shall also produce before such commissioner as additional proof the written evidence of such debt and shall file the same or a copy thereof certified by the commissioner, or a certified copy of such judgment or decree, and, if such judgment or decree be recorded in the judgment lien docket, a certified transcript of such recordation; and, if the debt or demand be secured by any other lien than that of a judgment or decree, he shall file the original or a certified copy of the writing by which such lien is evidenced.

Any transcript of a judgment or decree of a court or justice of this State, introduced in evidence in any court or before such commissioner, shall prima facie be presumed unpaid unless such judgment or decree appear to have been rendered more than ten years prior to the time of such by proof.(1915, c. 74, §1; Code 1923, c. 129, §11; 1929, c. 40.)

§7. Adjournment of Hearing; Notice of Completion of Report; Exceptions.—A commissioner in chancery may adjourn his proceedings from time to time after the day to which notice was given, without any new notice, until his report is completed; and when it is completed, he shall give notice of the fact to all attorneys who appear of record in the cause; and there after, unless otherwise ordered by the court or agreed by the parties, he shall retain the report and the evidence ten days for the examination of parties interested. Such notice may be given either verbally or in writing, and may be given by depositing the same in due course of mail, properly addressed; and the commissioner shall certify in his report the time and manner of giving such notice. Any party may inspect the report and evidence and file exceptions thereto before such commissioner, or at the term of the court to which it is returned, or, by leave of the court, after such term. In an exception it shall be sufficient to state the item or part of the report to which objection is made, but the court may, if good cause therefor appear, require the exception to be made more specific, or the grounds therefor to be stated therein, and may overrule such exception if the requirement be not complied with.(Code 1849, c. 175, §7; Code 1860, c. 175, §8; Code 1868, c. 129, §7; 1881, c. 34, §9; 1882, c. 57, §7; 1895, c. 8, §7; 1897, c. 43, §7; Code 1923, c. 129, §7.)

§8. Contents of Commissioner’s Report.—The commissioner, or any other person executing an order of reference, in all cases, shall return with his report all the evidence taken upon the execution of the reference, and the exceptions, if any, taken to his report, and shall submit such remarks upon exceptions as he may deem pertinent; and he shall also return with his report the decrees, orders and notices under which he acted, He shall not copy in his account or report any papers; and, if there has been a previous account or report, he shall not copy it into his report except so far as may be necessary to make such report a complete account and report in accordance with the decree of reference entered in the cause. Everything improperly copied into a commissioner’s account shall be expunged at his cost on the application of either party; and if on account of his negligence or misconduct a report be recommitted, he shall bear the cost occasioned thereby.(Code 1849, c. 175, §8; Code 1860, c. 175, §9; Code 1868, c. 129, §8; 1881, c. 34, §10; 1882, c. 57, §8; 1895, c. 8, §8; Code 1923, c. 129, §8.)

§9. When Cause May be Heard on Report.—A cause may be heard upon a commissioner’s report at any time after it is returned, and the court may, for good cause shown by any party interested, hear a cause on a commissioner’s report returned after the commencement of the term of court at which such hearing is desired to be had, but the court in this latter case may require the party desiring the hearing to give reasonable notice to the opposite party or to his attorney.(Code 1849, c. 175, §9; Code 1860, c. 175, §10; Code 1868, c. 129, §9; 1872-3, c. 138, §6; 1881, c. 34, §11; 1882, c. 57, §9; Code 1923, c. 129, §9.)

§10. Taking Accounts in Actions at Law.—At law, in any case in which it may be deemed necessary, the court may direct any such commissioner or other competent person, either before or at the time of trial, to take and state an account between the parties, which account, when thus stated, shall be deemed prima facie correct, and may be given in evidence to the court or jury trying the case; and the commissioner or other person shall be allowed for such services the same fees that would be allowed a commissioner for similar services in the execution of an order of reference in chancery, to be taxed in the bill of costs.(1872-3, c. 138, §5; 1882, c. 57, §10; Code 1923, c. 129, §10.)

§1. Death; Conviction; Insanity; Termination of Powers of Personal Representative, Committee or Guardian.—Where a party dies, or becomes convict of felony, or insane, or the powers of a party who is a personal representative, committee or guardian cease, if such fact occur after verdict, judgment may be entered as if it had not occurred.(Code 1849, c. 173, §1; Code 1860, c. 173, §1; Code 1868, c. 127, §1; Code 1923, c. 127, §1.)

§2. Death of Joint Party; Revival of Pending Suit or Action.—Where such fact occurs in any stage of a cause, whether it be in a court of original or appellate jurisdiction, if it occur as to any of several plaintiffs or defendants, the suit or action may proceed for or against the others, if the cause of suit or action survive to or against them. If a plaintiff or defendant die pending any suit or action, whether the cause of action arising out of contract.(Code 1849, c. 173, §2; Code 1860, c. 173, §2; Code 1868, c. 127, §2; Code 1923, c. 127, §2.)

§3. Marriage of Female Party.—The marriage of a female plaintiff or defendant shall not cause a suit or action to abate, but, upon affidavit or other proof of the fact, the suit or action shall proceed in the new name, but if the marriage be not suggested before judgment, the judgment shall be as valid, and may be enforced in like manner, as if no such marriage had taken place.

§4. Cases on Review.—If, in any case of appeal, writ of error, or supersedeas, which is now or may hereafter be pending, there be at any time in an appellate court suggested, or relied on in abatement, the death of a party, or any other fact which, if it had occurred after verdict in an action, would not have prevented a judgment being entered, as if it had not occurred, the appellate court may, in its discretion, enter judgment or decree in such case as if such death or such fact had not occurred.(Code 1860, c. 173, §3; Code 1868, c. 127, §3; Code 1923, c. 127, §3.)

§5. Scire Facias or Motion for Revival; Continuance; Pleadings.—In any stage of any case, a scire facias may be sued out for or against the committee of any party who is insane or a convict; or for or against a party before insane, a convict or an infant, the powers of whose committee or guardian have ceased; or for or against the personal representative of the decedent who, or whose committee, guardian or personal representative, was a party; or for or against the succeeding or substituted committee or guardian of a convict, insane person or infant whose committee or guardian was a party and has died or been removed; or for or against the heirs or devisees of a decedent who was a party; or for the assignee or beneficiary party; to show cause why the suit or action should not proceed in the name of him or them. Or where the party dying, or whose powers cease, or such insane person or convict, is plaintiff or appellant, the person or persons for whom such scire facias might be sued out may, without notice or scire facias, move that the suit proceed in his or their name. Likewise, the person or persons against whom a scire facias might be sued out by the plaintiff may also, without notice or scire facias, move that the suit or action proceed in his or their name. If the proceeding be by scire facias, after service of the scire facias, or if the proceeding be by motion, then on such motion, if no sufficient cause be shown against it, an order shall be entered that the suit or action proceed according to such scire facias or motion. Any such new party, except in an appellate court, may have a continuance of the case at the term at which such order is entered; and the court may allow him to plead anew or amend the pleadings as far as it deems reasonable; but in other respects the case shall proceed to final judgment or decree for or against him, in like manner as if the case had been pending for or against him before such scire facias or motion.(Code 1849, c. 173, §3; Code 1860, c. 173, §4; Code 1868, c. 127, §4; Code 1923, c. 127, §4.)

§6. Time for Issuance of Scire Facias; Entering Order at Rules.—The clerk of the court in which the case is may issue such scire facias at any time, and an order may be entered at rules for the case to proceed in the name of the proper party, although the case be on the court docket.(Code 1849, c. 173, §4; Code 1860, c. 173, §5; Code 1868, c. 127, §5; Code 1923, c. 127, §5.)

§7. Proceedings After Revival Against Defendant Whose Powers Cease.—Where the party whose powers cease is defendant, the plaintiff may continue his suit against him to final judgment or decree; but he shall not at law proceed in the same action against such defendant and his successor, nor shall he in equity proceed against both upon his previous bill, unless an order that the suit proceed against the former party be entered at the first term after service of a scire facias for or against such successor, or at the same term at which a motion to revive is made under the provisions of section five of this article in lieu of a scire facias.(Code 1849, c. 173, §5; Code 1860, c. 173, §6; Code 1868, c. 127, §6; Code 1923, c. 127, §6.)

§8. When Suit Discontinued Unless Revived.—If the committee, personal representative, heirs, or devisees of the plaintiff or appellant who was a party, or of the decedent whose committee, guardian, or personal representative was plaintiff or appellant, or other person now or hereafter entitled to be substituted under the provisions of this article for a party plaintiff or appellant, shall not make such motion or apply for such scire facias at or before the second term of the court next after that at which there may have been a suggestion on the record of the fact making such scire facias or motion proper, the suit of such plaintiff or appellant shall be discontinued, unless good cause be shown to the contrary.(Code 1849, c. 173, §6; Code 1860, c. 173, §7; Code 1868, c. 127, §7; Code 1923, c. 127, §7.)

§9. Discontinuance for Failure to Prosecute.—Any court in which is pending any case wherein for more than two years there has been no order or proceeding but to continue it, or wherein the plaintiff is delinquent in the payment of accrued court costs, may, in its discretion, order such case to be struck from its docket; and it shall thereby be discontinued. A court making such order may direct it to be published in such newspaper as it may name.(Code 1849, c. 173, §7; Code 1860, c. 173, §8; Code 1868, c. 127, §8; 1921, c. 66, §8; Code 1923, c. 127, §8.)

§10. Death of One of Numerous Parties in Equity.—When in any suit in equity the number of parties exceeds thirty, and any one of such parties jointly interested with others in any question arising therein shall die, the court may nevertheless proceed, if in its opinion all classes of interest in the case are represented and the interest of no one will be prejudiced by the trial of the cause, to render a decree in such suit as if such person were alive, decreeing to the heirs at law, distributees, or representatives of such person, as the case may require, such interest as such person would have been entitled to had such person been alive at the date of the decree. The provisions of section twenty-six, article three of this chapter shall apply to decrees entered under this section.(Code 1860, c. 173, §§9, 10; Code 1868, c. 127, §§9, 10; Code 1923, c. 127, §§9, 10.)

§11. Death of Trustee and Appointment of Substitute in Pending Suit.—In a suit in equity in which it appears that a trustee has died, although the heirs of such trustee be not parties to the suit, yet if his personal representative and the other persons interested be parties, the court may appoint another trustee in the place of him who has died, to act either alone or in conjunction with any surviving trustee, as the case may require.(Code 1849, c. 178, §5; Code 1860, c. 178, §5; Code 1868, c. 132, §5; 1882, c. 142, §5; Code 1923, c. 132, §5.)

§12. Reinstatement of Case.—Any court may, on motion, reinstate on the trial docket of the court any case dismissed, and set aside any nonsuit that may be entered by reason of the nonappearance of the plaintiff, within three terms after the order of dismissal shall have been made, or order of nonsuit entered; but any such order of reinstatement shall not be entered until the accrued costs in such case shall have been paid.(1868, c. 132, §1; Code 1868, c. 127, §11; 1872-3, c. 137, §11; 1882, c. 51, §11; 1921, c. 66, §11; Code 1923, c. 127, §11.)

§13. Further Proceedings After Reinstatement of Case.—All causes in which orders of dismissal have been made, or orders of nonsuit entered, which orders have been set aside and causes reinstated, shall remain upon the docket and be proceeded with in the same manner as if the order had never been made. But no such cause shall be brought to trial, or proceeded in, until the defendant therein shall have had at least twenty days’ personal notice in writing, or, if he be a nonresident, by the publication of such notice once in each week for three successive weeks in some newspaper designated by the court, that such cause has been reinstated on the docket.(1868, c. 132, §2; Code 1868, c. 127, §12; 1882, c. 51, §12; Code 1923, c. 127, §12.)

§1. Removal of Causes in General; Notice; Motion.—A circuit court, or any court of limited jurisdiction established pursuant to the provisions of section nineteen, article eight of the Constitution of this State, wherein an action, suit, motion or other civil proceeding is pending, or the judge thereof in vacation, may, on the motion of any party, after ten days’ notice to the adverse party or his attorney, and for good cause shown, order such action, suit, motion or other civil proceeding to be removed, if pending in a circuit court, to any other circuit court, and if pending in any court of limited jurisdiction hereinbefore mentioned, to the circuit court of that county.(Code 1849, c. 174, §3; Code 1860, c. 174, §3; Code 1868, c. 128, §1; Code 1923, c. 128, §1.)

§2. Removal Where it is Improper for Judge to Hear Case.—If the judge of any circuit or other court mentioned in the next preceding section, wherein an action, suit, motion or other civil proceeding is pending, is so situated as to render it improper, in his opinion, for him to decide such case or preside at the trial thereof, such court or the judge thereof in vacation may, without motion or notice, order the case to be removed to any court to which it might be removed, on motion and notice, under the preceding section.(Code 1849, c. 174, §3; Code 1860, c. 174, §3; Code 1868, c. 128, §1; Code 1923, c. 128, §1.)

§3. Transfer of Papers; Proceedings After Removal; Costs.—When any case is ordered to be removed under this article, the clerk of the court, from which, shall transmit to the clerk of the court, to which, it is removed, the original papers therein, with copies of all rules and orders made, and a statement of the costs in curred by each party therein; whereupon, the case shall be proceeded in, heard and determined by the court to which it is removed, as if it had been brought, and the previous proceedings had, in such court. The costs attending such removal shall be charged as may be thought just by the court from which, or, if it make no order on the subject, by the court to which, the case is removed.(Code 1849, c. 174, §5; Code 1860, c. 174, §4; Code 1868, c. 128, §2; Code 1923, c. 128, §2.)

§1. Interpleader; Procedure Thereon.—A defendant in an action brought against him for the recovery of money which he does not wish to defend, but which money is claimed by some third person, or for the recovery of the possession of personal property to which he makes no Claim, but which is claimed by a third person, may file his affidavit stating the facts in relation thereto, and that he does not collude with such third person but is ready to pay the, money claimed, or deliver the property, to the owner thereof, as the court may direct, and the court may thereupon make an order requiring such third person to appear and state the nature of his claim, and maintain or relinquish the same, and may in the meantime stay the proceedings in such action. If such third person, on being served with a copy of such order, shall not appear, the court may, on proof of the plaintiff’s right, render judgment for him, and declare such third person to be forever barred of any claim in respect of the subject matter, either against the plaintiff or the original defendant, or his personal representative. If such third person, on being so served, shall appear, the court shall allow him to make himself defendant in the action and, either in such action or otherwise, cause such issue or issues to be tried as it may prescribe, and may direct which party shall be considered the plaintiff in the issues; and shall give judgment upon the verdict rendered or, if a jury be waived by the parties interested, shall determine their claims in a summary way. The court may also make such order for the disposition of the money or property which is the subject matter of the action, pending the same, as to it may seem proper.(Code 1849, c. 152, §1; Code 1860, c. 152, §1; Code 1868, c. 107, §1; 1882, c. 72, §1; Code 1923, c. 107, §1.)

§2. Who May Execute Bonds Required in Suits.—A bond for obtaining any writ or order, in term or vacation, may be executed by any person with sufficient surety, though neither of the obligors be a party to the ease.(Code 1849, c. 183, §3; Code 1860, c. 183, §3; Code 1868, c. 136, §2; 1882, c. 124, §2; Code 1923, c. 136, §2.)

§3. Recovery of Damages for Detention of Property After Verdict.—When a judgment for specific personal property is affirmed by an appellate court, or an injunction to such judgment is dissolved, the person who is entitled to execution of such judgment, or who would be entitled if execution had not been had, may, on motion to the court from which such execution has issued, or might issue, after twenty days’ notice to the defendant or his personal repre sentative, have a jury impaneled to ascertain the damages sustained by reason of the detention of such property subsequent to such judgment; or if it was on a verdict, subsequent to such verdict; and judgment shall be rendered for the damages so ascertained, if any.(Code 1860, c. 183, §6; Code 1868, c. 136, §3; 1882, c. 124, §3; Code 1923, c. 136, §3.)

§4. Compromise of Actions or Suits on Behalf of Infants or Insane Persons.—In any action or suit wherein an infant or insane person is a party, the court in which the same is pending, or the judge thereof in vacation, shall have the power to approve and confirm a compromise of the matters in controversy on behalf of such infant or insane person, if such compromise shall be deemed to be to the best interest of the infant or insane person. Such approval or confirmation shall never be granted except upon written application therefor by the guardian, committee, curator, or next friend of the infant or insane person, setting forth under oath all the facts of the case and the reasons why such compromise is deemed to be for the best interest of the infant or insane person. And the court or judge, before approving such compromise, shall, in order to determine whether to approve or disapprove the compromise, hear the testimony of witnesses relating to the subject matter of the compromise, and cause said testimony to be reduced to writing and filed with the papers in the case. The court or judge, upon approving and confirming such compromise, shall enter judgment or decree accordingly. Such judgment or decree shall bind the respective parties thereto, including such infant or insane person, with like force and effect, and shall be subject to review, modification or reversal to the same extent only, as if it were a consent judgment or decree, entered under similar circumstances, in a case in which all the parties were adults and sane.

§5. Partition of Chattels.—When an equal division of goods or chattels cannot be made in kind among those entitled, a court of equity may direct the sale of the same and the distribution of the proceeds according to the rights of the parties.(Code 1849, c. 124, §6; 1860, c. 124, §6; Code 1868, c. 79, §6; Code 1923, c. 79, §6.)

§6. Affidavits by Corporations and Agents.—An affidavit by or for a corporation may be made by its president, vice president, general manager, cashier, treasurer, or a director, with out any special authorization therefor, or by any person authorized by a majority of its stock holders or directors to make the same; and when an affidavit is made by any person other than the principal authorized by law to make it, such person shall be deemed to have been the agent of the person so authorized until the contrary is made to appear.