been prevented from taking or entering an appeal by fraud, accident or mistake; and, on granting the same, shall order such petitioner to give sufficient security to prosecute such appeal to effect, and pay such costs as shall be awarded against him. (Sec. 6 of R. S.)

SECT. 7. No such petition shall be sustained, unless served on the adverse party twelve days before the sitting of the court to which it is to be preferred, nor unless it be preferred at the first or second stated term of the supreme court, in the county in which such probate court was held, after the alleged fraud, accident or mistake shall have happened. (Sec. 7 of R. S.)

SECT. 8. When a judgment shall be rendered by a justice upon default, and the defendant was unjustly deprived of his day in court, by fraud, accident or mistake, or was unjustly deprived of a hearing in the assessment of damages in such action, or when a party shall have been prevented from entering an appeal from the judgment of a justice by fraud, accident or mistake, the county court, in the county in which such judgment shall have been rendered, may, on the petition of the party aggrieved, in its discretion, and on such terms and conditions as such court shall judge reasonable, reverse and set aside the judgment of such justice, and proceed to hear, try and determine such action, and make all necessary orders therein, in the same manner as if the same had been brought to such court by appeal. (Sec. 8 of R. S.)

SECT. 9. [No such petition shall be sustained, unless preferred at the first or second stated term of such county court, after the rendition of such justice's judgment,] (see § 10); and the same, with a citation annexed thereto, signed by one of the judges of such county court, shall be served on the adverse party at least twelve days before the term of the court, to which such petition is preferred, nor unless the facts set forth in such petition, shall have been verified by oath, before the issuing of such citation. (Sec. 9 of R. S.)

SECT. 10. No petition shall be sustained under the provisions of chapter thirty-three, entitled "Of New Trials," section eighth and ninth, (§ 8 and 9 of this chap.) unless brought within two years next after the justice's judgment.

So much of section nine of said chapter, (§ 9 of this chap.) as requires such petition to be preferred at the first or second stated term of the county court, after the rendition of the justice's judgment, is hereby repealed. (No. 5 of 1843.)

SECT. 11. The judge, signing such citation, shall take sufficient security, by way of recognizance to the adverse party, conditioned that, if the petitioner shall fail to prosecute his application to effect, or finally to recover in such action, he shall pay to the adverse party all intervening damages and costs, that shall accrue to him in any way, by reason of such petition being preferred. (Sec. 10 of R. S.) SECT. 12. If execution shall have been sued out on such justice's judgment, the judge, from a consideration of the facts set forth in such petition, and verified as aforesaid, may, in his discretion, order a supersedeas thereof, and in any case may order a stay of all proceedings on the judgment, whether execution shall have issued or not, until a final decision shall be made on such petition. (Sec. 11 of R. S.)

SECT. 13. Whenever a judge shall order a supersedeas, agreeably to section eleven of chapter thirty-three of the Revised Statutes, (§ 12 of this chap.) he shall take a copy of the whole process and recognizance, and file the same in the office of the county clerk, in the county to which the petition, in such case, is made returnable. (Sec. 3 of No. 38 of 1847, as amended by No. 27 of 1848.)

SECT. 14. In case the original petition and citation shall not be entered in court, by the petitioner on the first day of the term, to which the same is made returnable, the petitionee may thereafter, at said term, enter such copy; and the court shall thereupon render judgment for the petitionee, to recover his costs; and if the court shall be of opinion that said petition was brought for the purpose of delaying the collection of an execution, they shall award to the original creditor twelve per cent. interest on the original debt, with double costs. (Sec. 4 of No. 38 of 1847.)

SECT. 15. No proceedings shall be had in the county court in the original action, until a certified copy of the record of the justice's judgment shall have been filed in such county court. (Sec. 12 of R. S.)

SECTION

CHAPTER 37.

OFFSETS.

BEING IDENTICAL WITH

Chap. 34 of the Revised Statutes, pp. 212-214.

SECTION

8. Defendant, having book account against the plaintiff, may file declaration.

9. Such declaration to be first tried. 10. If defendant fails to recover on such declaration, plaintiff to recover damages, &c. 11. Defendant to give security on filing declaration.

12. Mutual judgments in same court may be
offset.

13. Formal plea not required before justices.
14. No demand allowed in offset, before justices,
if it exceeds a justice's jurisdiction.

SECTION 1. If the plaintiff, in any action founded on contract, express or implied, pending before any court, shall be indebted to the defendant in such action, on contract express or implied, the defendant, after pleading the general issue, or confessing the plaintiff's cause of action, may plead the same in offset.

SECT. 2. Such plea shall be in the nature of a declaration, and may contain as many counts as the nature of the case may require.

SECT. 3. The plaintiff may plead the general issue to, or confess the cause of action in, any or all the counts in the defendant's

plea, and plead an offset of any sum of money due to him from the defendant on contract as aforesaid, and the pleadings being closed, and issue joined, the jury shall find, generally, such sum as shall be in arrear from either party.

SECT. 4. The following demands shall not be allowed in any plea in offset:

First. Any sum due on account, the balance whereof shall not be ascertained under the hand of the party, except in actions brought and tried before a justice.

Second. Any sum not due and payable before the service of the original writ in the action.

Third. Any contract assigned or endorsed to the party, unless notice of such assignment or endorsement was given by the party, holding the same, to the adverse party, before the service of the original writ in the action.

SECT. 5. If the defendant in any action on book account, pending in the county court, shall plead an offset, no trial shall be had on such plea, until the sum due on account shall have been ascertained according to law.

SECT. 6. If an action is entered in the county court, by appeal from a justice, the parties shall have the same right to plead an offset, and in the same manner as if the action had been originally commenced in the county court, and had been within the jurisdiction of the same.

SECT. 7. If any demand, so pleaded in offset, shall be such as is within the original jurisdiction of the county court, either party shall be entitled to a review as in original actions.

SECT. 8. If the defendant, in any action pending in the county court, shall have a demand on book against the plaintiff, which cannot be pleaded as an offset, such defendant, on or before the third day of the first term of the court in which he is required to appear, may file a declaration in such court, setting forth the nature of such demand in due form of law, which shall be sufficient notice to the adverse party to appear and answer thereto, and the same proceedings shall be had thereon, as if the action on book had been commenced in the usual form.

SECT. 9. When a declaration on book is so filed, the court shall proceed to trial on such declaration, previous to the trial of the original action, and if the defendant in the original action shall recover on such declaration, the sum so recovered shall be pleaded as an offset to the demand of the original plaintiff.

SECT. 10. If the defendant, filing such declaration, shall fail to recover thereon, the plaintiff in the original action shall be entitled. to recover interest on his demand, at the rate of twelve per cent. per annum, as damages occasioned by such delay, and single or double costs in the discretion of the court.

SECT. 11. At the time of filing such declaration, the defendant, filing the same, shall give sufficient security to the adverse party, by way of recognizance for the prosecution thereof, in such sum as the court shall direct.

SECT. 12. When there are mutual judgments recovered between the same parties in the same court, such court may, on motion of

either party, offset such judgments against each other, and execution shall issue for the balance only.

SECT. 13. No formal plea in offset shall be required before a justice, but the party making the same shall be required to set down in writing a specification of the demand or demands, so pleaded in offset, and the justice shall render judgment for such sum as shall be found in arrear from either party.

SECT. 14. In actions, tried before a justice, no demand shall be allowed in offset, unless the same would have been within the jurisdiction of a justice, if an action had been commenced thereon.

CHAPTER 38.

EJECTMENT.

COMPILED FROM

Chap. 35 of the Revised Statutes, pp. 214-218.

Laws of 1848,

SECTION

SECTION

1. Who may bring the action, and against 18. Court to stay proceedings in ejectment whom to be brought.

2. Judgment conclusive against all parties.

3. Landlord not prejudiced, unless party to the suit.

4. Plaintiff to recover damages as well as pos session.

5. Writ not to abate because all the tenants are
not sued; if defendant disclaims, to re-
cover his cost, unless.

6. Plaintiff to recover according to his right.
7. Plaintiff claiming title by mortgage, defen-
dant may redeem.

19. Execution for betterments to issue against

8. Court to ascertain the sum due on mortgage, 25. Voucher's liability not affected by better

and limit time of redemption.

9. If the sum is payable by instalments, court may order payments at different times.

10. If defendant pays according to order, &c. mortgage discharged.

11. If defendant does not pay, plaintiff may have writ of possession, &c.

12. Mortgagor entitled to possession until con-
dition broken.

13. Tenants in common may join in action.
14. If brought for non-payment of rent, not re-
quired to prove demand, but if defendant
pays money into court, suit discontinued.

15. After final judgment, defendant may recover
for betterments.

16. Value of betterments, what shall be deemed. 17. Defendant to file a declaration for betterments.

SECTION 1. Any person, having claim to the seisin or possession of lands, tenements or hereditaments, shall have an action by writ

of ejectment, according to the nature of the case, as nearly as may be, according to the form prescribed by law, which action shall, in all cases, be brought as well against the landlord, if any there be, as against the tenant in possession of the premises, and, if otherwise brought, the same shall, on motion, be abated.*

SECT. 2. The judgment, recovered in an action of ejectment, shall, while remaining in force, be conclusive against all the parties to such action, their heirs and assigns.

SECT. 3. If the plaintiff shall neglect to join the landlord, if any there be, with the tenant in such action, or shall, by collusion with the tenant, recover judgment against him for the seisin of any lands, such landlord shall not be prejudiced thereby, but shall, in any trial thereafter to be had of his right to such lands against the person so recovering as aforesaid, or any person deriving claim from him, be taken and holden to have the prior possession.

SECT. 4. In every action of ejectment, if judgment be rendered for the plaintiff, he shall recover as well his damages as the seisin and possession of the premises.

SECT. 5. The writ, in the action of ejectment, shall not abate because all the tenants are not sued, but those, on whom service is made, shall answer for such part of the premises only, as they shall distinguish and set forth in their plea, and disclaim the remainder, and if any defendant shall disclaim the whole, he shall recover his costs, unless the plaintiff shall prove such defendant in possession of all or part of the premises demanded at the commencement of the action.

SECT. 6. On the trial in the action of ejectment the plaintiff shall recover on the merits, according to his right.

SECT. 7. If, after judgment in an action of ejectment in favor of the plaintiff, it shall appear to the court that the plaintiff claims title to the premises by virtue of any deed of mortgage, or bargain and sale with defeasance, the condition of which has not been performed, such court shall, on application of the defendant in such action, order stay of execution thereon.

SECT. 8. The court shall then ascertain the sum equitably due to the plaintiff, on such mortgage or deed with defeasance, at the time such judgment is rendered, including the costs of suit, and shall further order, that if the defendant or his representative shall pay or cause to be paid the amount then due the plaintiff, with the legal interest thereon, together with the clerk's fees, to the clerk of such court, by a time to be limited by the court, not exceeding one year from the rendition of the judgment, then such judgment to be vacated.

SECT. 9. If the amount, secured by such mortgage or deed with defeasance, was made payable by instalments, a part of which shall not be due at the time the judgment is rendered, such court may order and decree a redemption, at any future period or periods, by instalments or otherwise, as to the court shall appear just and equitable, not more than one year after the last instalment shall become due.

*Sections 1 to 31 being identical with the corresponding sections of chap. 35 of the Revised Statutes, the designation at the end of each is omitted.