Imágenes de páginas

as shall seem advisable; but until an alteration by them made therein, the forms shall be as nearly alike to Those now used in the general court as the nature of district courts will admit. If any writ or process shall be executed so lale, that the sheriff or other officer hath not reasonable time to return the same before the day of appearance thereto, and an alias, pluries, attachment or other paress be awarded thereupon, the sheriff shall noi execute such subsequent process, but shall return the first process by him executed, on which there shall be the same proceedings as if it had been returned in due time.

VIII. In all actions or suits which may be commenced against the governor of this commonwealth, any member of the privy council, any of the judges of the superior courts, or the sheriff of any county, during his continuance in office, instead of the ordinary process a summons shall issue to the sheriff or other proper officer, reciting the cause of action, and summoning such defendant to appear and answer the same on the proper return-day in the next district court; and if such defendant, being summoned, or after a copy shall have been left at his house ten days before the return day, shall not appear to answer the same, an attachment shall be awarded against his estate, and thereafter the proceedings in the suit shall be in like manner as is direrted in case of an aitachment awarded upon ihe sherif's returning non est inventus on ordinary process. Provided always, That aster judgment and the return of a fieri facias by the sheriff of that county in which the defendant in any such case resides, that no effects, or not sufficient are to be found in his bailiwick to satisfy the said judgment, a capias ad satisfaciendum may issue as in other cases. Provided also, That no writ of capias ad respondendum shall be issued against any person in any other district than that in which be resides, until a non est intentus has been returned in such district, upon a capias issued against such defendant in the same suit; and every writ issued contrary thereto, shall be ipso facto void, and dismissed on the first calling thereof. Provided nevertheless, That where two or more persons are or shall be jointly and not severally bound for the performance of any contract, or for the payment of any money or tobacco, by bond covenant, or otherwise, that it shall and may be

lawful to prosecute such persons jointly or severally, in whatever district they or either of them inay reside: And provided also, that any person not a resident within this state, nor paying county or parish levies within the same, may be prosecuted in like manner as if this act had never been made.

IX. In all actions to recover the penalıy for breach of any penal law, not particularly directing special bail to be given in actions of slander, tresspass, assault and battery, actions on the case for irover or oiker wrongs, and all other personal actions, except such as shall be herein afier particularly mentioned, the plaintifi or his attorney shall, ou pain of having his suil disinissed, with costs, endorse on the original writ or subsequent process, the true species of action, that the sherifi to whom the same is directed may be thereby informed whether bail is to be demanded on the execution thereof; and in the cases before mentioned, the sherifi may take the engagement of an attorney practising in the district court, endorsed upon the writ, that lie will appear for the defendant or defendants, and such appearance shall be entered with the clerk in the ofices on the first day after the end of the court, to wlach sucho process is returnable, which is hereby deriared to be the appearance-day in all process returnable to ay day of the court next preceding. Every attorney Reiling to enter an appearance according to such engagement, shall forfeit, to the plaintifi fitiy shuddings, for which judgment shall be immediately entere, and execution may issue thereupon. Provided olive, Tirat any judge of the said court, in actions of'tresspass, it's sault and battery, trover and conversion, and in actions on the case, where, upon proper atidavit or affirmation, as the case may be, it shall appear to him proper that the defendant or defendants should give appearance-bail, may, and he is hereby authorised to direct such bail to be taken by endorsement on the original writ or subsequent process; and every sherifi' shall govern himself accordingly.

X. In all actions of debt, founded on any writing obligatory, bill or note in writing, for the payment of money or tobacco, all actions of covenant or detinue; in which cases the true species of action shall be endorsed on the writ as before directed, and that appearance-bail is to be required, the sherifi shall return on

the writ the name of the bail by him taken, and a copy of the bail-bond to the clerk's office before the day of appearance; and if the delendant shall fail to appear accordingly, or shall not give special bail, being ruled thereto by the court, ille bail for appearance may defend the suit, and shall be subject to the same judgment and recovery as the defendant might or would be subjectiv, if he had appeared and given special bail; and in actions of detinue the bail-piece shall be so changed as to subject the bail to the restitution of the thing, whether animate or inanimate, sued for, or the alternative value, as the court may adjudge. And if the sheriff shall not return bail, and the copy of the bail-bond, or the bail returned shall be judged insufficient by the couri, and the defendant shall fail to appear and give special bail, if ruled thereto, in such case the sheriff may have like liberty of defence, and shall be subject to the same recovery as is provided in the case of appearance-bail. And if the sheriff depart this life before judgment be confirmed against bim, in such case the judgment may be confirmed against his executors or administrators; or if there shall not be a certificate of probate or administration granted, then it may be confirmed against his estate, and a writ of fieri facias may in either case be issued; but the plaintiff shall object to the sufficiency of the bail during the sitting of the court nexi succeeding that to which the writ is returnable, or in the office on the first or second rule-day, and at no time thereafier. And all questions concerning the sufficiency of bail so objected to in the office, shall be determined by the court on the first day of the next succeeding court; and in all cases where the bail shall be judged insufficient, and judgment entered against the sheriff, he shall have the same remedy against the estate of the bail as against the estate of the defendant: Also, that every judgment entered in the office against a defendant and bail, or against a defend. ant and sheriff, shall be set aside, if the defendant, upon the third day of the succeeding court, shall be allowed to appear without bail, put in good bail, being ruled so to do, or surrender himself, in custody, and shall plead to issue immediately; on which third day the court shall regulate all other proceedings in the office during the preceding vacation, and rectify any mistakes or errors which may have happened therein. In every

case where judgment shall be confirmed against any defendant or defendants and bail, or the sheriff, bis executors, administrators, or estate, as aloresaid, the court, upon motion of such bail, or of such sheriff, his executors or administrators, or any other persop on bebalf of his estate, may order an altachment against the estate of such defendant or detendants, returnable to the next succeeding couri; and upon the execution and return of such attachment, the court shall order the estale seized, or so much thereof as will be sufficient to zatisfy the judgment and costs, and all costs accruing under the attachment, to be sold as goods taken in execution upon a fieri facias; and out of the money such judgment and all costs shall be satisfied, and the serplus, if any, restored to the defendant or defendants when required.

XI. Any judge of the said court, when the court is not sitting, or any justice of the peace, may take recognizance of special bail in any action iherein depending, which shall be taken, and shall be transmitted by the person taking the same before the next succeeding court, to the clerk of the said court, to be filed with the papers in such action; and if the plaintiff or his attorney shall except to the sufficiency of bail so taken, notice of such exception shall be given to the defendant or his attorney, at least ten days previous to the day on which such exception shall be taken: And if such bail shall be judged insufficient by the court, the recognizance thereof shall be discharged, and such proceedings shall be had as if no such bail had been taken.

XII. Every special bail may surrender the princinal before the court where the suit bath been or shall be depending at any time either before or after judgment shall be given, and thereupon the bail shall be discharged, and the defendant or defendants shall be committed to the custody of the sheriff or jailor attending such court, if the plainiiff or his attorney shall desire the same; or such special bajl may discharge him. self or herself, by surrendering the principal or pri cipals to the sheriff of the county where the original writ was served, and such sheriff shall receive sich derendant or defendants, and conimit him, her, or them, to the jail of his county, and shall give a receipt for the body or bodies of such defendant or delendants, which shall be by the bail forthwiili transmitted to the clerk of the county where the suit is or was depending. When such render after judgment shall be io the sherifi, he shall keep such defendant or defendanes in his custody in the same manner, and subject to the like rules, as are provided for debtors committed in execution during the space of twenty days, unless the creditor, his attorney or agent, shall sooner consent to his, her, or their discharge. The bail shall give immediate notice of such render to the creditor, his attorney or agent; and is within the said twenty days such creditor, his attorney or agent, shall not in writiug charge the debtor or debtors in execution, he, she, or they shall be forti with Cischarged out of custody; but the plaintiff or plainiitis may nevertheless afterwards sue out any legal execution against such debtor or debtors.

XIII. When the sheriff or other proper officer shall return on any original or mesne process, that he hails taken the body of any defendant and committed him to prison for want of appearance bail, the plaintiff may proceed, and the defendant make his defence in like manner as if his appearance bail had been entered and accepted; but such defendant shall not be discharged out of custody until lie shall put in good bail, or the plaintiff shall be ruled by the court to accept an appearance without bail; and where any defendant, after appearance entered, shall be confined in prison, the plaintifi' may file his declaration, give a rule to plead, and deliver copies of such declaration and rule to the defendant, or his attorney; and if the defendant shall fail to enter his plea within two months after receiving such declaration and notice, the plaintiff may have bis judgment by defauli, as in other cases.

XIV, Rules shall be inonthly holden in the clerk's Oslice of each district, beginning the day after the rising of each court.

XV. Where the sherifi or other proper officer shall return on any writ of capias to answer in any civil action, that the defendant is not found within his baili. wick, the plaintiff may either sue out an alias or a plus ries capias, until the defendant shall be arrested, or a testatum capias, where he shall be removed into another county, or may, at his election, sue out an attachment against the estate of the defendant, to force an appearance; and if the sheriff or other officer shall return that

« AnteriorContinuar »