Act of February 25, 1819-January 1, 1820. R. C. ch. 174. tor and if the same be not allowed, to proceed according to the sixth section of the "act to reduce into one the several acts concerning the auditor and treasurer ;" and upon the filing of any petition as therein is allowed, it shall be the duty of the auditor forthwith to file an answer, stating his reasons for not allowing the claim, and all objections which in his opinion the commonwealth ought to make thereto; and thereupon the court shall proceed without delay to consider and decide the cause upon such legal evidence as may be offered on either side, and shall make such order or decree as may be legal or equitable in the case, and if it be proper, may require a jury to be impannelled to ascertain disputed facts, or the amount of any unliquidated claim. If either party shall require it, the court shall certify every material fact which shall be proved, and such certificate shall be a part of the record. If the court disapprove the verdict in any case, the same may be set aside, and a new jury be impannelled, and appeals may be allowed as in other cases. And if any appeal shall be so taken and allowed, it shall be the duty of the court of appeals to try and decide the same as soon as may be after the allowance thereof. § 2. That when any such case shall be finally decided, it shall be the duty of the auditor to issue a warrant on the treasury for the amount thereof, unless there be, in his opinion, such reasons or circumstances affecting the claim, coming to his knowledge after the said decision, and not before the court at the time of rendering the same, as that it will be proper to submit the matter to the general assembly; and in that event, the same power and control over every claim so allowed, shall be reserved to the legislature as if this act had never passed, and no proceeding under it had taken place. Act of February 25, 1819-January 1, 1820. R. C. ch. 128. 6789 1. 32. The parol shall not demur, in any suit now depending, or hereafter to be brought in any court of law or equity, by reason of the infancy of the plaintiffs or defendants, or of any or either of them, but the court may nevertheless proceed to judgment or final decree, in the same. Jan. 25, 1798, c. 240, R. C. 2. § 33. No plea in abatement(1) shall be admitted or received, unless the party(a) offering the same, shall prove the truth thereof, by oath or affirmation,(m) as the case may require; and no plea of non est factum, offered by (1) See Gilbert's C. P. 187, 3 ed. (a) This provision is similar to that of 4 and 5 Ann. c. 16, § 11, which has been construed to require that merely probable cause should be shewn, and that therefore, the affidavit may be made by a third person, as well as by the party himself. Lumley v. .Foster, Barnes's Notes, 344. (m) Pleas in abatement offered in trials for misdemeanours, ought not to be received by the court unless they be verified by oath or affirmation. There is no ground for Act of February 25, 1819-January 1, 1820. R. C. ch. 128. any person charged as obligor, covenantor, or grantor of a deed, shall be admitted or received, unless the truth thereof shall in like manner be proved, by oath or affirmation; (b) and where any person, other than the obligor, covenantor or grantor, shall be the defendant, such defendant shall prove, by oath or affirmation, that he or she verily believes that the deed, on which the action is founded, is not the deed of the person charged as obligor, covenantor or grantor. Dec. 1788, c. 67, § 39, 12 Stat. Larg. 745; 1792, c. 66, R. C. [By act of Feb. 5, 1828, c. 31, the following is provided: "In all actions which may hereafter be brought upon any promissory note, bill of exchange, draft or other writing, or on any endorsement, assignment or acceptance thereof, and confining the provisions of this section to civil cases. Com. v. Sam'l Sayers, Gen. Ct. June T. 1837, 8 Leigh, 722. (b) The requisitions of this provision may be satisfied, by an affidavit stating and verifying the facts which are relied on, as to which the affidavit must be positive. The legal inference, to be deduced from those facts, that it is not the affiant's deed, need not be positively sworn to, if sworn to at all. Therefore, an affidavit sufficiently verifying the facts on which the plea was grounded, was held not to be vitiated by the insertion of the words "to the best of the affiant's knowledge and belief," which were possibly inserted with reference to the legal inference, and if so, were not improperly inserted. Jackson v. Webster, 6 Munf. 462. The plea of non est factum, whether general or special, must conclude to the country; and in such case, the plaintiff cannot reply any new matter. He must either accept it by a similiter, or demur. Cleaton v. Chambliss, 6 Rand. 86. Consent by an obligor to the alteration of a bond given after the alteration is made, will not repel the plea of non est factum; but a consent given before, or at the time of, the alteration, will be considered as a re-execution. Ibid. On the trial of the issue on plea of non est factum whether the party's signature be genuine or not; held, inadmissible to lay other proved specimens of the party's handwriting before the jury, that it may judge by comparison thereof with the writing in question, whether this be genuine. Such comparison of handwriting is not proper evidence. Rowt's adm'x v. Kile's adm'r, 1 Leigh, 216. Where the subscribing witness to an instrument is dead, and it is shewn to be impracticable to prove his handwriting, evidence of the handwriting of the party is admissible. Gilliam's adm'r v. Perkinson's adm'r, 4 Rand. 325; Raines v. Philips's ex'r, 1 Leigh, 483. The subscribing witness to a bond being dead, proof of the handwriting of the attesting witness, if unaided and unopposed by other evidence, is sufficient to establish the execution of the bond. Murdock & Co. v. Hunter's representatives, 1 Brock. Reps. 135, 143. Profert, excuse for, how tried? See Coleman v. Wolcott, 4 Day, 388; Riggs v. Tayloe, 9 Wheat. 485; Chamberlain v. Gorham, 20 Johns. R. 144, and Carr, J. in Ben et al. v. Peate, 2 Rand. 541-2. It frequently seems in transactions between parties remotely situated, that bonds are signed by sureties before their names are inserted in the body of the bond. It was decided in Smith v. Crooker et al. 5 Mass. R. 538, Op. of Ct. by C. J. Parsons, that a bond executed by a surety before his name was inserted in the body of the bond, his name being afterwards inserted when he was not present, bound him on the ground that having executed the bond with the blank, he must have agreed that his name should be inserted-and that if his name had never been inserted in the bond, he nevertheless, would have been holden as an obligor-and therefore, the insertion was wholly immaterial. See Zouch v. Claye, 2 Lev. 35; Markham v. Goneston, Cro. Eliz. 626; Pigott's case, 11 Co. 27; Perk. § 118; Powell v. Duff, 3 Campb. N. P. R. If a party execute a bail bond, before the condition is filled up, it is void and a bail bond which specifies no sum to be paid by the obligor to the obligee, is a mere nullity. Harrison v. Tiernan, 4 Rand. 177. See the difference between deeds and bills of exchange, &c. as to their execution noted. And as to the insertion of the name of the obligee, see Stahl v. Berger et al. 10 Serg. & Raw. 170. See Franklin v. Cor, 4 Rand. 448. A. executed a deed, conveying his property to trustees, to sell for the benefit of his creditors, the particulars of whose demand were stated in the deed; a blank was left for one of the principal debts, the exact amount of which, being subsequently ascertained, was inserted in the blank the next day, in A.'s presence, and with his assent. A. afterwards recognized the deed as valid, in various ways, particularly by being present when it was executed by his wife, and by joining her in a fine to enure to the uses of the deed. Held, that the deed was valid, notwithstanding the filling up the blank after execution. Hudson v. Revett, 5 Bing. 368. See U. S. v. Nelson & Myers, 2 Brock. Cir. Ct. R. 64. Act of February 25, 1819-January 1, 1820. R. C. ch. 128. in which the declaration shall allege or charge that the defendant or any other person made, assigned, endorsed, or accepted the same, and subscribed his or her name thereto, every such note, bill, draft, assignment, endorsement, acceptance or other writing, with the name or signature thereto subscribed, upon being offered in evidence, shall be deemed and taken to be genuine, and the name or signature to have been subscribed or made by the person charged therewith, without any proof of the handwriting; unless the defendant or some other person shall make affidavit, to be filed with the plea, that the said note, bill, endorsement, assignment, acceptance or other writing, was not made by the person charged therewith; or in case it be the name or signature of any person other than the affiant, then that he had good cause to believe and does believe, that the same was not so made or signed." Act Feb. 5, 1828, c. 31, Ses. Acts 1827-8, p. 24.] 3. 34. Process in all real actions, other than writs of right, shall be according to the course of the common law, except that the returns shall be according to the laws of this commonwealth; but all essoins, views and vouchers shall be and they are hereby taken away; and, after one imparlance, unless the tenant shall plead non-tenure, joint tenancy or several tenancy, in abatement,(n) and then, after such plea shall be overruled, he shall put himself on the grand assize, and the mise shall be joined upon the mere right, or the general issue be joined, as the case may require,' and be tried at the next court, by twelve jurors, to be summoned, tried and sworn, as in all other actions: And, to remove all delays and groundless pretences, in saving the default of the tenant, no excuse shall be admitted but non-summons; and, such excuse being allowed, he may imparle, and, at the next court, shall either plead in abatement, or put himself upon the grand assize, or upon the country, as aforesaid. Oct. 1748, c. 1, 5 Stat. Larg. 416; c. 76, R. C. 4. § 35. In all actions, real or mixed, which shall hereafter be brought, for the recovery of any lands or tenements, within this commonwealth, if the tenant shall plead, that he holdeth the tenements in demand, jointly with his wife, or any other person, not named in the writ, and shew forth a deed testifying the same, and demand judgment of the writ, and thereupon issue be joined, and it be found against the truth of the plea, by him in manner aforesaid pleaded, the plaintiff shall recover his seisin of the tenements in demand, and double damages, against the party by whom such plea shall have been pleaded; but, if it be found that the matter aforesaid was truly and lawfully alleged, by such defendant in his plea, the writ shall be abated: Provided always, That no such plea shall be admitted or received in any case, unless the party offering the same shall prove the truth thereof by oath or affirmation, as the case may require. 34 Ed. 1 st. 1; Dec. 19, 1792, c. 123, R. C. 5. 36. By the exception of non-tenure of parcel of any lands or tenements, for which any action or suit shall be brought, the writ shall not be abated, but for the quantity of the non-tenure which shall be alleged. 25 Ed. 3 st. 1; Dec. 19, 1792, c. 125, R. C. 6. 37. Where any action, real or mixed, is now or shall be depending, in any court of this commonwealth, for the recovery of any lands or tenements, and any party thereto shall die, before verdict rendered, (c) such action shall (n) Where a writ of right is brought by demandants who claim as heirs, and the mise is joined on the mere right, evidence at the trial that there is another heir besides those named in the writ and count, will not entitle the tenants to a verdict. The tenants to avail themselves of such matter, should plead it in abatement. Linton et al. v. Bartley et al. 9 Leigh, 444. (c) See Carter v. Carr, 1 Gil. 145, and Macker's heirs v. Thomas, 7 Wheat. 530; Drago v. Stead et al. 2 Rand. 454. Act of February 25, 1819-January 1, 1820. R. C. ch. 128. not abate, if the same be maintainable by or against the heir or devisee of the deceased party. But the plaintiff, or, if he be dead, his heir or devisee, may have a scire facias against the defendant, or, if he be dead, against his heir or devisee, to shew cause generally why such action shall not be proceeded in to a final judgment. Upon the return of such scire facias executed, if no good cause be shewn to the contrary, such heir or devisee shall be made a party to the action, and the cause shall proceed in the same manner as if such heir or devisee had been originally a party thereto : Provided, That such heir or devisee shall have liberty to plead de novo; or to amend the pleadings in such manner as the nature of the case may require; and that he shall be entitled to a continuance of the cause, for one term after such scire facias returned executed. Rev. 1819. 7. § 38. Where any personal' action or suit in equity, is now or shall be depending in any court of this commonwealth, and either of the parties shall die, before verdict rendered or final' decree be had, such action or suit shall not abate, if the same were originally maintainable by or against an executor or administrator, (4) but the plaintiff, or, if he be dead, his executor or administrator, or the sheriff, serjeant, or other curator of the decedent's estate,' shall and may have a scire facias against the defendant, or, if he be dead, against his executor or administrator, or against the sheriff, serjeant, or other curator of his estate,' to shew cause generally why such action or suit shall not be proceeded in to a final judgment or decree. And if such executor, administrator, sheriff, serjeant or curator,' upon the return of a scire facias executed, shall neglect or refuse to enter his or her appearance to the suit, the court may proceed to final judgment or decree therein, in the same manner as if such executor, administrator, sheriff, serjeant or curator,' had entered his or her appearance. And if such executor, administrator, sheriff, serjeant 'or curator,' shall appear to the suit upon the return of such scire facias executed, or if, without a scire facias, he or she shall, voluntarily, enter himself or herself, defendant to such suit, then, and in either case, such executor, administrator, sheriff, serjeant or curator,' shall have liberty to plead de novo to the plaintiff's action, every such plea or pleas, as an executor or administrator may lawfully plead, or as the deceased party might or could have pleaded, if he or she had lived; (d) and if such executor, administrator, sheriff, serjeant (4) Detinue lies against an executor as such, if the goods demanded have come to his possession; otherwise not. If in detinue, the defendant dies pending the action, it may be revived by scire facias against his executor, under this section, if the goods demanded, have come to the execu tor's possession; otherwise not. Therefore, it must be suggested in the sci. fa. or alleged in a declaration thereupon, that the goods came to the executor's possession; for if the executor's possession be nowise alleged, there can be no recovery against him. Allen's ex'r v. Harlan's adm'r, 6 Leigh, 42. To sustain this action against an executor as such, the goods or chattels must have come to the executor's actual possession; otherwise not. It seems, that judgment in detinue against an executor such, should be for the goods, or the alternative value, against the executor de bonis propriis, and for the damages for detention, both in the testator's and executor's own as time, de bonis testatoris. Judges Brockenbrough and Cabell, held, that the judgment should be against the executor for the goods, if to be had, if not, for the alternative value, the damages for detention and costs, all to be levied de bonis testatoris. Catlett's ex'r v. Russell, 6 Leigh, 344. See Greenlee's adm'r v. Bailey, 9 Leigh, 526. (d) If the defendant die after interlocutory judgment and a writ of enquiry awarded, his administrator, &c. upon scire facias, can only plead what his intestate could have pleaded; on the authority of Smith v. Harmon, 6 Mod. 142, a decision on the stat. of 8 and 9 Will. 3, c. 11, from which the Virginia act, is almost literally copied. M'Knight v. Craig's adm'r. 6 Cranch, 183, 187. Although this case was pending and the writ of enquiry awarded Nov. 1807, about 10 months after the operation of the act of 13 Jan'y 1807, it seems that the attention of the court was only called to the act of 1792, which is much more limited, and is similar to 8 and 9 Wm. The act of 1807, authorizes Act of February 25, 1819-January 1, 1820. R. C. ch. 128. or curator,' should not desire to plead de novo, or, if no issue shall have been joined or pleadings entered, before the death of his or her testator or intestate, or if any interlocutory judgment or decree shall have been entered in the lifetime of the deceased party, and the executor, administrator, sheriff, serjeant or curator,' shall refuse to plead, or shall not desire to set aside the interlocutory judgment or decree, the court shall proceed to final judgment or decree, for or against the executor, administrator, sheriff, serjeant or curator,' in the same manner, as if the original writ had been issued against him or her, as executor, administrator, sheriff, serjeant or curator,' and the cause shall remain in its place on the issue or rule docket, as the case may be. But the defendant being an executor, administrator, sheriff, serjeant or curator,' shall be entitled to a continuance until the next term after that to which a scire facias shall have been returned executed, or at which he or she shall have voluntarily entered himself or herself a defendant. From acts of Jan. 7 and 13, 1807, c. 94, 101, ed. 1808. And, if there be two or more plaintiffs or defendants, and one or more of them should die, if the cause of action should survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall proceed at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants. (3) And in all actions, real, personal and mixed, if either party should die, between verdict and judgment, such death shall not be pleaded in abatement, but judgment shall be entered as if both parties were living. Oct. 1748, c. 8, 5 Stat. Larg. 510; 1792, c. 76, R. C. and 8 and 9 Will. 3, c. 11. In any such action, real, personal or mixed, and in any such suit in equity, where the demandant or plaintiff shall die before verdict rendered, or final decree as aforesaid, if the heir or devisee, executor, administrator, or other representative of the deceased party, shall not appear and pray for such scire facias, at or before the second term of the court, next after that at which the death of such party shall have been suggested on the record, such action or suit shall be discontinued, unless good cause be shewn to the contrary. Rev. 1819.(1) the ex'r or adm'r to plead de novo, every It seems, that on revival of a pending per- Upon the death of a defendant in detinue, if his administrator consent that the cause shall stand revived against him, such consent places the cause in the same situation that it would be in after the service of a scire }.. facias against the administrator, alleging that the property had come to his possession and was detained by him. Greenlee's adm'r v. Bailey, 9 Leigh, 526. In such case, if the administrator, instead of pleading de novo, go to trial upon the plea put in by his intestate, he cannot after verdict against him, arrest the judgment because of his own failure to plead anew. S. C. The judgment against the administrator, in such a case, is personal against him for the property or its alternative value; but it provides, as to the damages and costs, that the same are to be levied of the goods and chattels of the intestate, in the hands of the administrator. S. C. (3) And see Hamlin's adm'r v. Atkinson et al. 6 Rand. 574. Where there are two plaintiffs in a supersedeas, if one of them die, the cause will abate as to him, and proceed in the name of the surviving plaintiff. Hairston v. Woods, 9 Leigh, 308. (1) See act Mar. 7, 1826, c. 15, § 2, Ses. Acts 1825-6, p. 15. "No suit in equity shall abate, by the death or marriage of the plf. but it shall be lawful for the court, upon motion without notice, to order the same to be conducted in the name of the heir, de |