same day of the return of the first summons, and if so issued, the suit ART. 2. shall be deemed to have been continued thereby.19 cessary for $ 19. In all cases, on application for a warrant, except where the Affidavit ne suit shall have been commenced by summons, the person applying warrant. shall, by affidavit, state the facts and circumstances within his knowledge, showing the grounds of his application, whereby the justice may the better judge of the necessity and propriety of issuing such warrant.19 warrant. § 20. A warrant shall be directed to any constable of the county Contents of where the justice issuing the same resides, and shall command such constable to take the defendant, and bring him forthwith before such justice, to answer the plaintiff in a plea, in the same warrant to be mentioned; and shall further require the constable, after he shall have arrested the defendant, to notify the plaintiff of such arrest. 19 proceed, &c. § 21. A warrant shall be served, by arresting the defendant and How served. taking him forthwith before the justice issuing the same. If such jus- When anothtice be, on the return thereof, absent, or unable to hear or try the er justice to cause, or it shall be made to appear to such justice, by the affidavit of such defendant, that such justice is a material witness in the cause, the constable shall take the defendant before the next justice of the city or town, who shall take cognizance of the cause, and proceed thereon, as if the warrant had been issued by him. warrant. $22. Every constable serving a warrant, shall return thereupon Return of in writing, the manner in which he executed the same, and the fact whether he has or has not notified the plaintiff. thorise deten. boats. $23. Whenever an action shall be brought to recover any penalty Bond to auimposed by law for taking any rails, boards, planks or staves, from the tion of canal banks or vicinity of a canal, in which a justice is authorised to direct the detention of any canal boat, he shall not endorse such direction on 1st part, vol. any warrant, unless a bond, as prescribed in the next section, shall 1, p. 247.] be executed and delivered to such justice.20 [See § 172, Title 9, Ch 9, condition. $24. Such bond shall be in the penalty of at least one hundred Its penalty & dollars, with one or more sureties, to be approved by such justice, conditioned that such action shall be prosecuted to judgment with all convenient speed, and that if judgment be rendered in favor of the defendant, the obligors will pay the costs and charges which shall be adjudged against the plaintiff, and all damages which may ensue from the detention of such boat and the cargo thereof, and the crew navigating the same.20 defendant jus warrant. $ 25. When a defendant shall be brought before a justice on a war- Custody of rant, he shall be detained in the custody of the constable, until the justice shall direct his release. But in no case shall the defendant be detained longer than twelve hours from the time he shall be brought (19) Laws of 1824, p. 280, § 3, 4 & 5. (20) Ib. 1827, p. S73, § 2. TITLE 4. before the justice, unless within that time, the trial of the cause shall be commenced; or unless it shall be delayed at the instance of the defendant. Attachments when to be issued. For what debts. Proofs ne cessary. $26. An attachment against the property of any debtor, may be issued on the application of a creditor, in the manner herein after prescribed, whenever it shall satisfactorily appear to the justice, that such debtor has departed, or is about to depart from the county where he last resided, with intent to defraud his creditors, or to avoid the service of any civil process; or that such debtor keeps himself concealed with the like intent.21 $27. Such application may be made by any creditor, or by his personal representatives, having a demand against such debtor personally, whether liquidated or not, arising upon contract, or upon a judg ment rendered within this state, amounting to one hundred dollars, or any less sum.21 $28. Such application shall be in writing, and shall be accompa nied by the affidavit of the creditor, or of his agent, in which shall be specified, as near as may be, the sum in which the debtor is indebted over and above all discounts to the person in whose behalf application is made, and the grounds upon which the application is founded; and the facts and circumstances to establish such grounds, shall also be veSubpoenas for rified by the affidavits of two disinterested witnesses: and it shall be the duty of the justice, on being requested so to do, to issue his subpœna, to compel the attendance of any witness forthwith, to make such affidavit. witnesses. Bond to be given. Its penalty & condition. Contents of attachment. S29. The applicant shall execute to the defendant, and deliver to the justice, a bond with sufficient surety, to be approved by such justice, in writing upon such bond, in the penalty of two hundred dollars, conditioned to pay such defendant all damages and costs which he may sustain, by reason of the issuing such attachment, if such plaintiff fail to recover judgment thereon; and if such judgment be recovered, that such plaintiff will pay the defendant all monies which shall be received by him from any property levied upon by such attachment, over and above the amount of such judgment, and interest and costs thereon.21 $30. Every such attachment shall state the amount of the debt sworn to by the applicant, and shall command any constable of the county in which the justice resides, to attach so much of the goods and chattels of the debtor, as will be sufficient to satisfy such debt; and safely to keep the same, in order to satisfy any judgment that may be recovered on such attachment; and to make return of his proceedings thereon, to the justice who issued the same, at a time therein to be specified, not less than six, nor more than twelve days, from the date thereof.21 (21) Laws of 1824, p. 281, § 5 & 23. ART. 2 How execut ed. $31. The constable to whom such attachment shall be directed and delivered, shall execute the same at least six days before the return day; and shall attach, take into his custody, and safely keep, such part of the goods and chattels of the defendant, as shall not be exempt from execution, and as shall be sufficient to satisfy the demand of the plaintiff. He shall immediately make an inventory of the Inventory toe. property seized, and shall leave a copy of the attachment, and of the inventory, certified by him, at the last place of residence of the defendant; but if the defendant have no place of residence in the county where the goods and chattels are attached, such copy and inventory shall be left with the person in whose possession the said goods and chattels shall be found.22 be made, &c. vent removal $32. No goods attached by a constable, shall be removed by him, Bond to preif a bond be given and delivered to such constable by any person, with of goods. sufficient surety, to be approved by the constable, in a penalty double the sum stated in the attachment to have been sworn to by the plaintiff, conditioned, that such goods and chattels shall be produced, to satisfy any execution that may be issued upon any judgment which shall be obtained by the plaintiff upon such attachment, within six months after the date of such bond.22 claimant of ed. $33. If any person shall claim any goods or chattels attached by a Bond by constable, he may, after such seizure, and at any time before execu- goods attachtion shall have been issued upon the judgment obtained on such attachment, execute a bond to the plaintiff, with sureties to be approved by the constable, or by the justice who issued the attachment, in a penalty double the value of the property attached, conditioned that in a suit to be brought on such bond, within three months from the date, such claimant will establish that he was the owner of the goods seized, at the time of such seizure; and in case of his failure to do so, that he will pay the value of the goods so claimed, with interest. when to bo $34. Upon either of the bonds aforesaid being executed and deli- Property vered to the constable, he shall deliver up the property seized by him, delivered up: to the obligor in such bond. tachment. $35. The constable serving the attachment, shall make a return Return of at thereof, at the day therein named for that purpose, with all his proceedings thereon, in writing, subscribed by him, with a copy of the inventory of the goods attached, certified by him, and with any bond which may have been executed and delivered to him, pursuant to the foregoing provisions. of claimant. $36. In every suit which shall be brought upon a bond, given by Suit on bond the claimant of property, pursuant to the preceding thirty-third section, the claimant may give in evidence, in bar of a recovery, that he was the owner of the property seized, at the time of such seizure. If he (22) Laws of 1824, p. 291, § 24. TITLE 4. fail to establish such ownership, or if judgment pass against him by default or on demurrer, the plaintiff shall recover the value of the property so seized and delivered to such claimant, with interest from the date of the bond, to be assessed as damages. Excess recovered, how applied. When defendant may prosecute bond. How plaintiffs may appear. Next friend for infant plaintiffs. Appearance of defendants Guardians for infant defendants. S37. If the amount so recovered exceed the amount of the plaintiff's judgment rendered on the attachment, he shall be liable to refund such excess to the defendant in such attachment. $ 38. If the defendant shall, before judgment, satisfy the claim on which such attachment issued, and all costs thereon, or after judgment shall pay the same, he shall be entitled to maintain an action on the bond executed by such claimant, in his own name, in the same manner and with the like effect, as if such action had been brought by the obligee in such bond, as herein provided. ARTICLE THIRD. Of the Appearance of Parties. SEC. 39. Plaintiffs not being infants, may appear in person or by attorney. 42. Guardians for infant defendants; when and how appointed. 43. Consent to be filed; liability of guardian for costs. 44. Appearing by attorney; when constable not to act as such. 45. Authority of attorney to be proved; mode by proof. 46. Justice to wait one hour after return of summons or attachment. $39. Any plaintiff in a suit before a justice, except persons under twenty-one years of age, may appear and conduct his suit, either in person, or by attorney. $40. No process shall be issued for an infant plaintiff, nor shall any issue, joined by such plaintiff, without process, be heard, until a next friend for such plaintiff shall have been appointed. Whenever requested, the justice shall appoint some suitable person who will consent thereto in writing, to be named by such plaintiff, to act as his next friend in such suit; who shall be responsible for the costs therein. $ 41. Every defendant in a suit, except persons under twenty-one years of age, may appear and defend the same in person, or by attor ney; but where a warrant shall have been served, on a defendant and returned, no further proceedings shall be had against him, until he shall have personally appeared in court. $42. After the service and return of process against an infant defendant, the suit shall not be any further prosecuted, until a guardian for such defendant be appointed. Upon the request of such defendant, the justice shall appoint some person who will consent thereto in writing, to be the guardian of the defendant in the defence of the suit. And if the defendant shall not appear on the return day of such process; or if he neglect or refuse to nominate such guardian; the jus tice may, on the motion of the plaintiff, appoint any discreet person as such guardian. ART. 4. Consent to be § 43. The consent of such next friend or guardian, shall be filed filed, &o with the justice. The guardian for the defendant shall not be liable for any costs in the suit. stable not to $44. A party authorised to appear by attorney, may appoint any When conperson to act as such attorney; but the constable who served either be attorney. the original or jury process in the cause, shall not appear and advocate for either party at the trial, but may act as attorney in any other stage or proceeding in the cause.23 attorney, how $45. The authority to appear by attorney, may be either written Authority of or verbal, and shall in all cases be proved, either by the attorney him- proved." self, or other competent testimony, unless admitted by the opposite party; and the justice shall not permit any person to appear for another, without such proof or admission. wait in cer in cases. $46. Upon the return of a summons personally served, or on the Justice to return of an attachment duly served, the justice shall wait one hour after the time specified for the return of such process; unless the parties shall sooner appear. ARTICLE FOURTH. Of Pleadings and of Set-offs. SEC. 47. At what time pleadings to be had and issue to be joined. 48. Pleadings how to be made; when to be filed; when to be entered. 49. When suit by warrant not to bar suit by summons. 50. Cases in which certain demands may be set off. 51. When set-off must be pleaded or notice be given. 52. How judgment to be rendered in different cases of set-offs. 53. Proceedings when balance due defendant exceeds 50 dollars. 54. When claim and set-off exceed 400 dollars, plaintiff to be non-suited. 55. Set-offs allowed in actions by executors, &c. 56. Judgment thereon; its effect; execution when to issue. 57. Demands which might be set off, not to be afterwards recovered. 58. Cases excepted from operation of last section. 59. Plea or notice of title to land, when and how to be given. 60. Bond to be given by defendant; its penalty and condition. 61. Suit to be discontinued; costs how paid and collected. 62. If bond not given, cause to proceed, &c. 53. Proceedings if plaintiff draw title to land in question, &e. 64. New action in common pleas, how to declare; what to be plea, &o. when to be had and issue to be joined, $47. At the time of the first appearance of the parties before the Pleadings justice, either upon the return of process, or their voluntary appearance to join issue, the pleadings of the parties shall be made, and the & issue joined; and where both parties have appeared, an issue shall be joined, before any adjournment shall be had; except where the defendant shall have appeared upon a warrant, as herein after provided. (23) Laws of 1824, p. 291, § 26. 30 VOL. II. |