Referees, how se-
lected, etc.
7 Wend., 483.

Referees to proceed with dili

gence,

hearing; ad

journments.

1 Wend., 4.

6

do. 552.

7 do. 534.

(4189.) SEC. 4. If the parties agree on three persons as referees, such persons shall be appointed by the Court; if they disagree, each party shall be entitled to name one, and the Court shall appoint the persons so nominated, if they are free from all exceptions, and such other person as the Court shall designate.

(4190.) SEC. 5. The referees appointed pursuant to the foregoing provisions, shall proceed with diligence to hear and determine the matters in controversy.

Time, etc., of (4191.) SEC. 6. They shall appoint a time and place for the hearing, and shall adjourn the same from time to time as may be necessary; and on the application of either party, and for good cause, they may postpone such hearing to a time not extending beyond the next term of the Court in which the suit is pending.

12

do. 199.

Referees to be first sworn.

Witnesses may be compelled to attend.

Oath to Witnesses; All the Re

and hear proofs,

(4192.) SEC. 7. Before proceeding to hear any testimony in the cause, the referees shall be severally sworn, faithfully and fairly to hear and examine the cause, and to make a just and true report according to the best of their understanding, which oath may be administered by any Judge, Clerk of a Court of Record, Justice of the Peace, or Notary Public.

(4193.) SEC. 8. Witnessess may be compelled to appear before such referees, by subpoenas issuing out of the Court in which the cause is pending, in the same manner, and with the like effect, as in cases of trials in such Court.

(4194.) SEC. 9. Any one of the referees may administer the ferees must meet necessary oath to the witnesses produced before them for but majority examination. All the referees must meet together and hear all the proofs and allegations of the parties, but a report by any two of them shall be valid.

may report.

compelled to re

required to re

etc.

Referees may be (4195.) SEc. 10. The referees may be compelled, by the port, and may be order of the Court in which the cause is pending, to proceed port proceedings, to the hearing thereof, and to make report of the amount they 12 Wend., 291. find due to either party; and the Court may require them to report their decision in admitting or rejecting any witness, in allowing or overruling any question to a witness, or the answer thereto, and all other proceedings by them, together with the testimony before them, and their reasons for allowing or disallowing any claim of either party.

Entry upon the record, and judg

7 Wend., 178.

(4196.) SEC. 11. An entry of such reference shall be made ment on report. upon the record, and day shall be given to the parties from time to time, until the referees report, or they be thereof discharged. If the report of the referees be confirmed by the

appoint Auditors. 6 Pick., 193.

do. 359.

Court, judgment shall be entered thereon, in the same manner, and with the like effect, as upon the verdict of a jury. (4197.) SEC. 12. Whenever a cause is at issue, and it shall When Court may appear that the trial will require the investigation of accounts, or the examination of vouchers, the Court in which such issue is to be tried, may appoint one or more Auditors to hear the parties, and examine their vouchers and evidence, and to state the account and make report thereof to such Court.

sworn, and to

meeting, etc.

(4198.) SEC. 13. Before procceding to hear any evidence in Auditors to be the cause, the Auditors shall be severally sworn, in the same give notice of manner as referees are herein required to be sworn, and they shall in like manner give notice to the parties of the time and place appointed for their meeting, and they may adjourn from time to time, as may be necessary.

must meet, but

(4199.) SEC. 14. All the Auditors must meet and hear the All the Auditors cause, but a report of a majority of them shall be valid, and report of majorsuch report may be compelled by the Court in like manner as in the case of referees.

ity valid, etc.

be compelled to

(4200.) SEC. 15. Witnesses may be summoned and compelled Witnesses may to attend and testify before the Auditors, in the same manner attend, ete. as before referees; and either of the Auditors may administer the necessary oath to such witnesses.

charge Auditors,

(4201.) SEC. 16. The Court may, for any sufficient reason, Court may disdischarge the Auditors and appoint others, and they may also and recommit re recommit the report for revision or further examination to the 4 Pick., 283. same, or to other Auditors.

port.

used as evidence

(4202.) SEC. 17. The report of the Auditors, if there be no Report may be legal objection to it, may be used by either party as evidence on trial. on the trial before the jury, but it may be impeached and disproved by other evidence produced on the trial by either party.

Auditors and Re

(4203.) SEC. 18. The Court shall award a reasonable com- compensation of pensation to the Auditors or referees, as the case may be, ferees. which shall be paid by the plaintiff, and shall be taxed in his bill of costs, if he shall be entitled to costs in the suit.

CHAPTER CXXVI.

OF DEATH, MARRIAGE, OR OTHER
AFTER THE COMMENCEMENT OF THE SUIT.

Chapter One Hundred and One of Revised Statutes of 1846.

(4204.) SECTION 1. In all personal actions, the cause of which sonal action die, does by law survive, if there is only one plaintiff, or one de

ecuted by or fendant, and the sole plaintiff or defendant shall die after the tor, etc. commencement of the action, and before the final judgment, the action may proceed and be prosecuted by or against the surviving party, and by or against the executor or Administrator of the deceased party, in the manner provided in this chapter.

on

record, and con

etc.

(4205.) SEC. 2. The death of the party shall be suggested Suggestion on the record, and his exector or Administrator may there- ducting of suit, upon appear and take upon himself the prosecution or defence of the suit, as the case may be; and it shall be thenceforth conducted in the same manner as if it had been originally commenced by or against the same executor or Administrator. (4206.) SEc. 3. If the executor or Administrator does not Order for appearvoluntarily appear on or before the first day of the next term or Administrator. after the death of such party, the surviving party may have an order of course, that the executor or Administrator appear and take upon himself the prosecution or defence of the suit, within thirty days after service of notice of such order.

ance of Executor

does not appear,

(4207.) SEC. 4. If the executor or Administrator shall not If Executor, etc., appear within the time limited by such order, or within such judgment to be rendered against further time as the Court shall allow for that purpose, he shall him. be non-suited or defaulted, and judgment shall be rendered against him in his representative capacity, and shall be evidence of a debt established, to be paid in the course of administration.

survive.

3 Mass., 228.

entitled to re

(4208.) SEC. 5. In addition to the actions which survive by What actions the common law, the following shall also survive, that is to s Greenl., 128. say: actions of replevin and trover, actions for assault and do.' 480. battery, or false imprisonment, or for goods taken and carried away, and actions for damage done to real or personal estate. (4209.) SEC. 6. When any action mentioned in the prece- When plaintiff ding section, shall be prosecuted to judgment against the cover only the executor or Administrator, the plaintiff shall be entitled to sustained, etc. recover only for the value of the goods taken, or for the damage actually sustained, without any vindictive or exemplary damages, or damages for any alleged outrage to the feelings of the injured party.

actual damages

4 Pick., 218.

covered by, Exe

assets.

(4210.) SEC. 7. When the executor or Administrator of a when goods retrustee, carrier or other person who claimed only a special cutor, etc., not property in any goods, to hold them for the use and benefit of another, shall recover such goods, or the value thereof, or damages for the taking or detention thereof, or for any injury done to the same, the goods or money so recovered shall not be considered assets in his hands, but shall, after deducting the costs and expenses of the suit, be paid over and delivered. to the person for whose use or benefit they were so claimed. or held by the deceased person.

(4211.) SEC. 8. When judgment for a return, in an action Goods returned of replevin, shall be rendered against an executor or Admin- etc., pursuant to

by Executor,

to be considered assets.

a judgment, not istrator, the goods returned by him shall not be considered assets in his hands; and if they shall have been included in the inventory, it shall be a sufficient discharge for the executor or Administrator, to show that they have been returned in pursuance of such judgment.

When suit to pro

ceed in favor of

viving plaintiff or

defeat 421.

(4212.) SEC. 9. When there are several plaintiffs or defendor against sur- ants in any personal action, the cause of which survives, either by the common law, or by the provisions of this chapter, and any of them shall die before final judgment, the action shall proceed at the suit of the surviving plaintiff, or against the surviving defendant, as the case may be.

7 Pick., 62.

be prose cuted

When action to (4213.) SEC. 10. If, in such case, all the plaintiffs or all the by or against Ex defendants shall die before final judgment, the action may be

ecutor, etc., of

plaintiff or defendant.

9 Pick., 532

last surviving prosecuted or defended by or against the executor or Administrator of the last surviving plaintiff or defendant, respectively, in the same manner as if such last survivor had originally been the only plaintiff or defendant.

If demandant in

real or mixed ac

or Executor, etc.,

(4214.) SEC. 11. In all real and mixed actions, if the detion die, his heir mandant shall die before final judgment, his heir, within such may prosecute. time as the Court shall allow, may appear and prosecute the suit, in the same manner as if the action had been originally commenced by him, or the action may be prosecuted by the executor or Administrator for the benefit of the heir, or of the creditors of the deceased.

In case of the

death of one of

ants, his heir,

mitted.

(4215.) SEC. 12. If there are several demandants in such several demand action, and any of them shall die before final judgment, the etc., may be ad- heir, executor or Administrator of the deceased party may be admitted, on motion, to prosecute the suit, jointly with the survivors, in the same manner as if he had joined with them in commencing the suit.

10 Mass., 10.

11 do.

demandants may

When surviving (4216.) SEc. 13. If the interest of the deceased party passes prosecute suit. to the surviving demandants, or if there be no motion for the admission of another person as heir, executor or Administrator, within the time allowed by the Court for that purpose, the surviving demandants may prosecute the suit for so much of the premises in question as may be claimed by them. When suit may (4217.) SEC. 14. When there are several defendants in any against surviving real or mixed action, and any of them shall die before final real or mised judgment, the action may be prosecuted against the surviving 2 Pick., 23. defendants, for so much of the premises as they shall hold or

be prosecuted

defendants in

action.

2 Mass., 480.

Same procedings

claim.

(4218.) SEC. 15. The same proceedings as are prescribed in to be had in ac- the preceding sections, in relation to real and mixed actions,