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shall be suggested, then the action shall be struck off the docket
and discontinued.
By November, 1787, ch. 9. the courts may continue actions, where, by
the death of plaintiff or defendant, new parties are made or to be made, as
long as they shall think necessary, not exceeding the end of the third court
after the appearance court of such new party, unless evidence or plots are
wanting as ia other cases.
By 1801, ch. 74, sec. 38, no action of ejectment, waste, partition, dower,
trespass, quare clausum freget, trover or replevin, to abate by the death of
either of the parties.
By 1806, ch. 98, sec. 1 1, on the death of a party to a cause in the court of
appeals, set down under a rule argument, and having an attorney in court.,
the cause shall not abate, nor shall the death be suggested.
By 1812, ch. 145, sec. 4, directions are given for issuing process on the
death of defendants where his representative resides in another county.
By 1815, ch. 149, sec. 3, directions are given, where the representative
resides out of the state.
By 1815, ch. 149, sec. 3, where a declaration is filed before the death of
the plaintiff, the representative may have liberty to amend.
By 1815, ch. 149, sec. 5, on an appeal or writ of error, the heir or other
proper party may appear, and prosecute.
By 1820, ch. 161, sec. 4, on the death of a party to a suit in chancery,
his representatives may be admitted a party, without filing a bill of revivor.
By 1828, ch. 199, no writ to abate because of the misnomer of any of the
defendants,
By 1831, ch. 311, no suit in equity to abate by the marriage of any of the
parties.
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Proviso.
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SEC. 2. Provided always, and be it enacted, That in case any
action be brought to recover any lands, tenements or heredita-
ments, or involve the title thereof, and upon the death of either
plaintiff or defendant as aforesaid the heir or devisee of the
deceased, or other person interested in such lands, tenements or
hereditaments, be an infant under the age of twenty-one years,
and it shall so appear to the court, such action shall not be tried
during such minority, unless the guardian, or next friend of
such infant, satisfy the court that it will be for the benefit of
the infant to have such action tried during such minority, but
such action may be continued at the instance and request of the
surviving party until such infant arrives to the age of twenty-
one years, and than such proceedings may be had to bring such
action to trial and judgment, according to the nature of the case,
as are herein before mentioned, or such surviving party may
order the said action to be entered abated, if the court are not
satisfied as aforesaid that it ought to be tried during the mino-
rity aforesaid.
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Plea of non
est factum
shall not be
allowed,
&c.
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SEC. 3. And be it enacted, That the plea of non est factum
shall not be received in any action brought, or hereafter to be
brought, unless the party for whom such plea shall be tendered
verify the same by affidavit, or affirmation, as the case may be,
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