only the rights of the plaintiff, so far as they shall be determined by the judgment.

entitled to testi

fendant.

(4166.) SEC. 12. In every suit brought in pursuance of this When defendant chapter, any one or more of the defendants shall be entitled timony of co-deto the testimony of any co-defendant as a witness, in all cases where the defendant or defendants calling the witness would have been entitled to his testimony, had the suit been brought in the form heretofore used, and in no other case.

may be brought

ized.

(4167.) SEC. 13. Nothing in this chapter shall be construed Separate actions to prevent the holder of any bill or note from bringing separate as now authoractions against the parties to any such bill or note, in the manner now authorized by law.

ment by joint

(4168.) SEC. 14. Any action brought upon a bill of exchange Pleas in abateor promissory note pursuant to the provisions of this chapter, drawer, etc. any joint drawer, maker, endorser, or acceptor, may plead in abatement the non-joinder of any other joint drawer, maker, endorser, or acceptor, in the same manner as if such action had been brought in the form heretofore used.

be rendered

makers, etc., not

process, etc.

(4169.) SEc. 15. No judgment shall be rendered, or record No judgment to made up against any several drawer, maker, endorser, or against several acceptor, not served with process, or with a copy of the served with declaration, when the suit is commenced by declaration; but judgment may be obtained against joint contractors, some of whom only have been served with process, or with a copy of the declaration when the suit is commenced by declaration, and such judgment shall have the same effect against the joint contractors, as if the action had been brought in the form heretofore used.

be severed.

(4170.) SEC. 16. It shall not be necessary for the plaintiff How action may to include in the same record a judgment against all the parties to such bill or note, but judgment may be entered against any of the parties thereto, whenever the plaintiff would be entitled to the same if the suit had been commenced against such parties only; and if the trial or hearing of such cause be put off by any of the parties to such bill or note, or if a default shall have been obtained against part of the defendants, the plaintiff may proceed to the hearing or trial against the other parties, in the same manner as if the suit had been commenced against the other parties only, and the action shall thereby be severed.

plaintiff entitled

(4171.) SEC. 17. In every suit brought upon a bill or note in what cases pursuant to the provisions of this chapter, the plaintiff shall to testimony of a be entitled to the testimony of any defendant as a witness, in

defendant.

One or more of

defendants may

move

ment, etc.

cases where the plaintiff would have been entitled to his testimony against the other parties to such bill or note, had the suit been brought in the form heretofore used.

(4172.) SEC. 18. One or more of the defendants in any suit for judg brought upon a bill or note pursuant to this chapter, may move for judgment as in case of non-suit, although the other defendants shall not unite in the motion; but one of several joint makers, drawers, endorsers or acceptors, shall not make such motion, unless the other joint contractors with him shall unite in the motion.

Judgment upon demurrer.

What defects to

be amended by

on demurrer.

(4173.) SEC. 19. When any demurrer shall be entered in any action, and issue be joined thereon, the Court shall proceed and give judgment according to the very right of the case and matter in law shall appear, without regarding any defect or other imperfection in any process or pleading, so as sufficient matter appear in the pleadings to enable the Court to give judgment according to the very right of the case, unless such defect or other imperfection be specially expressed in the demurrer.

(4174.) SEC. 20. After issue shall be joined on any demurrer, Court after issue the Court shall amend every such defect or other imperfection in any process or pleading, in the last section mentioned, other than those which the party demurring shall specially express in his demurrer.

Plea in abatement not to be

proof of its truth.

(4175.) SEC. 21. No plea in abatement, or other dilatory received without plea, which does not involve the merits of the action, shall be received by any Court, unless the party offering such plea shall prove the truth thereof by affidavit, or by some other evidence.

No special plea in

bar to be pleaded.

What general issue to consist of.

Notice of special matter of defence.

(4176.) SEC. 22. No special plea in bar shall be pleaded in any civil action hereinafter to be commenced; but all matters of defence to any such action, may be given in evidence under the general issue.

(4177.) SEC. 23. In all civil actions hereafter to be commenced, the general issue shall consist of a demand by the defendant, of a trial of the matters set forth in the plaintiff's declaration.

(4178.) SEC. 24. To entitle a defendant to avail himself of any matter of defence, which, according to the practice as it has heretofore existed, was required to be pleaded specially, or of which a special notice was required to be given under the general issue or other general plea, such defendant shall

to notice may be

preme Court.

annex to his plea of the general issue a notice to the plaintiff, Briefly stating the precise nature of such matter of defence. (4179.) SEC. 25. The Supreme Court may make such rules Rules in regard in relation to notice of matters intended to be given in made by Suevidence by either party, as shall be necessary to prevent surprise, and to afford opportunity for preparation for trial. (4180.) SEC. 26. In the following cases, and under the In what cases, following circumstances, a defendant may set-off demands circumstances which he has against the plaintiff:

and under what

demands may be

set-off.

281.

1. It must be a demand arising upon judgment, or upon 3 Mich. Rep, contract express or implied, whether such contract be written or unwritten, sealed or without seal; and if it be founded upon a bond, or other contract having a penalty, the sum equitably due, by virtue of its condition, only, shall be set-off;

2. It must be a demand for real estate sold, or for personal 3 Gilman, 227. property sold, or for money paid, or money had and received, or services done; or if it be not such a demand, the amount must be liquidated, or be capable of being ascertained by calculation;

3. It must be due to him in his own right, either as being the original creditor or payee, or as being the assignee or owner of the demand;

4. It must have existed at the time of the commencement of the suit, and must then have belonged to the defendant;

5. It can be allowed only in actions founded upon demands which could themselves be [the] subject of set-off according to law;

6. If there be several defendants, the demand set-off must be due to all of them jointly, except where other provision is expressly made by law;

7. It must be a demand existing against the plaintiff in the action, unless the suit be brought in the name of a plaintiff having no real interest in the contract upon which the suit is founded; in which case no set-off of a demand against the plaintiff shall be allowed, unless as hereinafter specified;

8. If the action be founded upon a contract, other than a negotiable promissory note, or bill of exchange, which has been assigned by the plaintiff, a demand existing against such plaintiff, or any assignee of such contract, at the time of the assignment thereof, and belonging to the defendant in good faith before notice of such assignment, may be set-off to the amount of the plaintiff's debt, if the demand be such as might

Notice of set-off.

When plaintiff to take nothing by

when to have

have been set-off against such plaintiff or such assignee, while
the contract belonged to him;

9. If the action be upon a negotiable promissory note, or bill
of exchange, which has been assigned to the plaintiff after it
became due, a set-off to the amount of the plaintiff's debt may
be made of a demand existing against any person or persons
who shall have assigned or transferred such note or bill, after
it became due, if the demand be such as might have been set-
off against the assignor, while the note or bill belonged to
him;

10. If the plaintiff be a trustee for another, or if the suit be in the name of a plaintiff who has no real interest in the contract upon which the suit is founded, so much of a demand existing against those whom the plaintiff represents, or for whose benefit the action is brought, may be set-off, as will satisfy the plaintiff's debt, if the same might have been set-off in an action brought by those beneficially interested.

(4181.) SEC. 27. To entitle a defendant to a set-off, he must annex a notice thereof to his plea of the general issue.

(4182.) SEC. 28. If the amount of the set-off duly established, his action, and be equal to the plaintiff's debt or demand, judgment shall be Judgment for re-entered that the plaintiff take nothing by his action; if it be less than the plaintiff's debt or demand, the plaintiff shall have judgment for the residue only.

sidue.

When judgment for defendant, etc.

Set-offs in suits by
Executors, etc.

(4183.) SEC. 29. If there be found a balance due from the plaintiff in the action to the defendant, judgment shall be rendered for the defendant for the amount thereof; but no such judgment shall be rendered against the plaintiff, when the contract, which was the subject of the suit, shall have been assigned before the commencement of such suit, nor for any balance due from any other person than the plaintiff in the

action.

the

(4181.) SEC. 30. In suits brought by executors and Administrators, demands existing against their testators or intestates, and belonging to the defendant at the time of their death, may be set-off by the defendant in the same manner as if action had been brought by and in the name of the deceased. (4185.) SEC. 31. When a set-off is established in a evidence of debt brought by executors or Administrators, and a balance found due the defendant, the judgment shall be against them in their representative character, and shall be evidence of a debt established, to be paid in the course of administration.

Judgment against
Executors, etc.,

established.

suit

order se veral

solidated into

(4186.) SECTION 1. Whenever several suits shall be pending When Court may in the same Court, by the same plaintiff against the same suits to be condefendant, for causes of action which may be joined, the Court one. in which the same shall be prosecuted may, in its discretion, if 9 Wend., it shall appear expedient, order the several suits to be consolidated into one action.

451.

consolidate sev

(4187.) SEC. 2. When several suits shall be commenced Plaintiff may against joint and several debtors, in the same Court, the plain- cral suits against tiff may, in any stage of the proceedings, consolidate them into debtors. one action.

joint and several

order cause to be

(4188.) SEC. 3. When a cause shall be at issue in any Court when Court may of Record, and it shall appear that the trial of the same will referred. require the examination of a long account, on either side, the Court may, upon the consent of both parties in writing, signed by them or their attorneys, and filed with the clerk, order such cause to be referred to three impartial and competent persons.