CHAPTER 204. OF REFEREES, AUDITORS, AND MASTERS IN CHANCERY. SECTION 1. Of rule for reference of suit, in supreme court and court of common pleas. 2. Of rule, where no suit. 3. Agreement of parties as to, conclusive. 4. Power to discharge or recommit rule. 5 and 6. Of petition for rule in vacation, and proceedings on, and report. 7. Of referring case before a justice court. 8. Of referee's oath. 9. Power of referees and arbitrators to administer oaths and summon witnesses. SECTION 10. Auditors, when may be appointed. 12. Of proceedings ex parte, when. and compensation of, auditors. 17. Masters in chancery, how many 18. Power of masters in chancery, SECTION 1. The supreme court and court of common pleas may permit the parties in any suit pending in said courts respectively, to enter into a rule of such court to refer such suit to the decision of one or more referees, to be agreed upon by the parties; and also to refer in the same rule any other actions or causes of action that may subsist between them, either jointly or severally, generally or specially. Of rule for reference of suit, in su preme court and court of common pleas. SEC. 2. Though no suit be brought, said courts shall have power of rules where to permit any persons who may have causes of action subsisting be- no suit. tween them, to enter a rule of said court, to refer the same to a decision of a referee or referees as aforesaid, generally or specially. conclusive. SEC. 3. The parties to any rule may agree upon the time and Agreement of manner of making report and of issuing execution on the judgment parties as to, that may be rendered thereon, conforming to law; and every such agreement, made in manner aforesaid, shall be conclusive upon the parties; and the court shall render judgment upon the report of the referees conformable thereto, and issue execution accordingly. SEC. 4. The court may at any time, in their discretion, or on motion of either party, discharge a rule or recommit a rule and report to the same referees; but a rule shall remain in full force until so discharged, and shall be so continued from term to term until report shall be made thereon. SEC. 5. Any persons having any action or cause of action subsisting between them may file with the clerk of the supreme court or court of common pleas in the county where either or all of them reside, in the vacation of the said courts, a petition setting forth said facts, and that they have mutually agreed to refer the same to the decision of certain persons named therein as referees; whereupon the clerk shall enter such petition on the docket of the business of said court for the next term, make out a writ to such referees, and annex thereto or embody therein such petition, which shall authorize them to hear and determine such dispute, with the same powers, and Power to discharge or re commit rule. Of petition for rule in vacation, and pro ceedings on. Of report upon. Of referring case before a justice court. Of referee's oath. Power of ref trators to ad minister oaths and summon witnesses. in the same manner and with the same effect, as though such petition had been filed in open court. SEC. 6. The report of referees made under a petition and rule entered in vacation shall be made to the next or some other term of the court in which the same are entered; and the court shall have the same power over a petition and rule so entered as if entered in open court. SEC. 7. The parties to any suit that may be pending before any justice court shall have a right to enter into a rule to refer the same, and to include therein any other demands between them, not exceeding in the whole on either side the amount of one hundred dollars, and in which the title to real estate shall not be concerned; and every justice court shall have like power, and similar proceedings shall be had thereon, as are given and prescribed in this chapter respecting rules that may be entered in the supreme court and court of common pleas. SEC. 8. Every referee, before he proceeds to the business of the reference, shall take an oath faithfully and impartially to hear and examine the cause, and make a true and just report, according to the best of his skill and understanding; which oath may be taken before any judge of any court of record, or any justice of the peace or notary public. SEC. 9. Referees and arbitrators shall have power to administer erees and arbi- oaths to all witnesses in any matter tried before them, and shall also have power to compel the attendance of witnesses before them, in the same manner and by a similar process as courts of record are authorized to compel the attendance of witnesses; and any summons for witnesses may be issued and signed by any one referee or arbitrator, or by the clerk of the court from which the rule is issued. Auditors, when may be appointed. Duties of auditors. Of proceedings ex parte, when. Of filing exceptions to report of. Of costs, and of compensation of auditors. Court may dis and recommit SEC. 10. Whenever a cause is at issue in the supreme court or court of common pleas in any way involving accounts, the court may appoint one or more auditors, to hear the parties, examine their vouchers and evidence, state accounts, and report upon such matters therein as may be ordered by the court. SEC. 11. The auditor or auditors, after being sworn to a faithful and impartial discharge of his or their duties, shall notify the parties of the time and place of their meeting, and may adjourn from time to time as may be necessary; and if there be more than one auditor, all shall meet and hear the cause, but the report of a majority shall be valid. SEC. 12. If the plaintiff or defendant shall unreasonably refuse or neglect to appear at the time and place appointed for the hearing, the auditors may proceed with the cause, and report ex parte. SEC. 13. The parties to such action shall be allowed two days after the coming in of the report, and such further time as the court may allow for cause shown, to examine the same and file their exceptions thereto. SEC. 14. The auditors shall file with their report a statement both of the plaintiff's and defendant's costs, and the party prevailing in the cause shall recover his costs; and the court shall award such reasonable compensation to the auditors as shall seem just, to be paid by the parties as the court shall direct. SEC. 15. The court may, for cause, discharge the auditors and apcharge auditors point others, or fill vacancies; and may recommit the report for revision or further examination to the same or to other auditors. SEC. 16. The court upon the reception of the report, if no legal report. cause be shown against the allowance of the same, shall render such judgment thereon as to right and justice shall appertain; such judgment shall be final, unless within two days thereafter the plaintiff or defendant shall, in writing, file with the clerk of the court in which said cause is pending a demand for a jury trial thereof; in which trial the report shall be prima facie evidence upon such matters only as are embraced in the order: Provided, that neither party shall have a second jury trial of such action without cause. Proceedings upon reception report; jury trial, when may be demanded; effect of report in, &c. Masters in chancery, how many, and by whom appointed." SEC. 17. The supreme court shall appoint in each county one or more standing masters in chancery, to hold office during the pleasure of the court; and may make all such rules and orders with regard to proceedings by and before such masters, their reports, and exceptions to, and hearings on the same, as to them shall seem expedient. SEC. 18. Masters in chancery, auditors, and referees, duly ap- Power of maspointed, shall have the same power to issue writs of protection to ters, auditors, parties and witnesses in matters pending before them, as is possessed issue writs of by the courts from which they derive their appointment; and the protection. signing of such writs by any one master, auditor, or referee, who has been duly sworn, shall be sufficient. and referees to CHAPTER 205. OF JUDGMENTS, AND OF INTEREST ON JUDGMENTS, VERDICTS, SECTION 1. Judgment of court, when to be entered, and time of, how noted. 2. In actions for breach of bond or for penalty of agreement, judg ment how to be entered. 3, 4, and 5. Execution in such case, for how much, and how to issue. SECTION 6. Action for covenant broken in such 7. Judgment in ejectment on mort- 8. Of set-off of judgments. 9. Of interest on judgments. 10. Of interest on verdicts, awards, and reports of masters in chan- when to be entered; time of, how noted. SECTION 1. Every judgment shall be entered as of the last day of Judgment, the term in which it is rendered, unless there be an express order of the court for the entry thereof on some other day; in which case the day shall be noted by the clerk on his docket. SEC. 2. In all actions brought for the breach of the condition of a bond, or to recover a penalty for the non-performance of any covenant, contract, or agreement, when it shall appear by verdict, default, submission, or otherwise, that the condition is broken or the penalty forfeited, judgment shall be entered in the common form for the penal sum, but no execution shall issue thereon, except as is provided in the two following sections. Judgment, how to be entered in action on bond, &c. SEC. 3. The court shall award an execution in such case for so Execution in such case, for much of the penal sum as shall then be due and payable in equity and good conscience, for the breach of the condition, or other nonperformance of the contract, which sum shall be ascertained and determined by the court, unless either party shall move to have it assessed by a jury, or unless the court shall think it proper to have how much, and how to issue. Same subject. Same subject. Action for cov- Judgment in ejectment on mortgage, what. Of set-off of judgments. Of interest on judgments. Of interest on verdicts, awards, and reports of masters in chan cery and au ditors. the question so decided; in which case the sum so due shall be assessed by a jury. SEC. 4. If any further sum shall afterwards become due on such bond or other contract, the plaintiff, or his executor or administrator, may have a scire facias on the judgment from the court in which it was rendered against the original defendant, or his executors, administrators, heirs, devisees, or assigns, as the case may be, suggesting such further breaches of the contract as shall have occurred, and summoning the adverse party to show cause why execution should not be awarded upon the judgment, for the damages caused by such fur ther breaches. SEC. 5. The sum due in such suit shall be assessed and determined in the same manner as in the original suit, and execution shall be awarded accordingly, and the like proceedings may be repeated upon occasion of any further breaches of the same contract, as often as they shall occur, until the whole of the penalty is exhausted. SEC. 6. Nothing herein contained shall prevent any person from bringing an action for the breach of any covenant or other contract, instead of suing for the penalty by which the performance of the covenant or contract may have been secured. SEC. 7. In every action of ejectment, or trespass and ejectment, for possession of any real estate mortgaged, in which the defendant by his plea shall aver a right of redemption in himself or in the person under whom he claims, which averment shall not be traversed by the plaintiff, or if traversed shall be found true, the court before which the same shall be pending shall, by themselves or by one or more judicious and disinterested men by them appointed, ascertain, according to the rules of equity, the just sum due on such mortgage; and shall thereupon render a conditional judgment, that if the mortgagor, his heirs, executors, administrators, or assigns shall pay unto the plaintiff in such action, or deposit in the clerk's office for him, the sum adjudged due as aforesaid, within two months from the time of entering up judgment, with interest, then the mortgage or deed operating as such shall be void and discharged, otherwise that the plaintiff shall have his writ of possession. SEC. 8. Whenever any court shall, at the same term, render final judgment for debts or damages in two or more personal actions, in which the parties shall be reversed, and shall sue and be sued in the same right and capacity, such court shall set off the debts or damages recovered in such judgments, and shall issue execution for the balance only, in favor of the party to whom it shall be due, with costs, if costs were recovered, and for costs only, if no balance upon such setoff be left; and a separate execution shall be issued in favor of the other party for costs, if costs were recovered by him. SEC. 9. Every judgment for debt or damages shall draw interest on such debt or damages, from the time of its rendition to the time of its discharge. SEC. 10. Verdicts, awards of referees, and reports of masters in chancery, or of auditors ascertaining amounts due from party to party by way of debt or damages, shall, if, and in so far as confirmed by judgment or decree, draw interest on such debt or damages; if a verdict, from the time the same is rendered, and if an award or report, from the time the same is dated or made up: Provided, there be nothing in the verdict, award, or report to the contrary thereof, or plainly inconsistent therewith. CHAPTER 206. OF COSTS, DOUBLE COSTS, AND DOUBLE INTEREST, AND OF SECTION 1. In general, prevailing party re covers. 2. Of costs in actions of partition. 3. Of surveyor's fees, &c. 4. Of costs, in actions for slander, malicious prosecution, and assault and battery. 5. In actions in which judgment is rendered on appeal. 6. On motions filed in pending proceedings. 7. In cases triable before single justice in vacation. 8. In case of discontinuance by plaintiff. 9. In actions of trespass or ejectment against two or more, and discontinuance as to, or judgment in favor of, one. 10. Travel and attendance, how taxed in case of partners. SECTION 11. In actions on promissory note as- 12. Witness' fees how taxed, if no 13. Double costs, when may be given 14. When, in case of new trial, of course. 15. Costs, by whom taxed. 16. Disallowance of items of, when made. 17. Revision of costs in court of com- court. 18. Award of, and apportionment of, SECTION 1. In civil causes at law, the party prevailing shall re- Costs, when recover costs, except where otherwise specially provided. SEC. 2. In all actions of partition, the court before which the same may be pending may adjudge and determine as to them shall appear equitable and just, relative to the apportionment of costs. among the parties, plaintiff and defendant, by dividing the same equally, or subjecting either party to the payment of the whole or any part thereof. coverable. of costs in actions of par tition. SEC. 3. The supreme court and court of common pleas may divide Of surveyor's or apportion between the parties in a suit pending, the fees of sur- fees, &c. veyors and other persons performing services therein by direction of the court. Of costs, in actions for slander, malicious and assault and battery. SEC. 4. In all actions of the case for slanderous words that shall be commenced in any court, in all actions of the case for malicious prosecution, and in all actions of trespass for assault and battery, or prosecution, imprisonment, that shall be commenced in the supreme court or court of common pleas, if the court or jury who shall assess the damages therein shall assess the same at a less sum than seven dollars, the plaintiff in such case, shall recover no more costs than damages. SEC. 5. In all actions in which judgment is rendered on appeal, the court rendering judgment may award costs for or against the plaintiff or defendant, or for neither, in their discretion, according to the circumstances of the case, and may upon motion and for cause shown disallow the amount of costs taxable in any case for travel, attendance, or attorney's fees. SEC. 6. Courts may award costs on motions filed in suits, actions, and other proceedings at law or in equity pending before them, for or In actions, in which judgdered on appeal. ment is ren On motions filed in pending proceedings. |