CHAPTER 98. TITLE XXII. dition that if C. D., the defendant, shall be condemned in this action, at the suit of A. B., the plaintiff, he the said C. D. shall pay the costs and condemnation of the court, or render himself into the custody of the sheriff of the county of (the county in which the defendant was arrested,) for the same, or if he fail so to do, that the said E. F. and G. H. will pay the costs and condemnation for him. Taken and acknowledged the day Bail piece to be and year above written, before me, J. K., Clerk, &c. E. F. G. H. SEC. 3. Upon entering into any such recognizance, the persons bedelivered to per- coming special bail shall be entitled to a bail piece from the officer taking the recognizance, in substance, as follows, to wit: sons becoming special buil. When plaintiff may take assignment on a cessi (cepi) corpus, unto E. F. and G. H., of the county of SEC. 5. Special bail may justify by affidavit, before any officer authorized to take a recognizance of special bail; and such affidavit shall set forth the township, or city, and county, in this state, in which the bail reside, and that they are severally worth the sum in which the defendant is held to bail, after all their debts are paid. Proceedings on Bail Bond. SEC. 6. If special be not put in and perfected within the time limited by law, according to the rules and practice of the court, and the of bail bond and plaintiff be satisfied with the bail taken by the officer serving the sue thereon. Setting aside or writ, he may take an assignment of the bail bond from the officer to whom the bond was given, and may sue thereon in his own name. SEC. 7. The proceedings in the suit on the bail bond may be set staying proceed aside if irregular, or stayed on terms, in order that a trial may be had in the original action. ings on bail bond. Terms on which proceedings on bail bond. SEC. 8. Where the plaintiff has not lost a trial in the original action court may stay by reason of default in not filing and perfecting special bail, the court may stay the proceedings on the bail bond, upon the putting in and perfecting special bail, paying the costs of assigning the bail bond, and of the proceedings thereon, receiving a declaration in the action and pleading issuably to the merits, so that the original cause may be tried at the same time if the plaintiff shall so elect, and if the plaintiff has lost a trial by reason of such default, judgment shall be entered on the bail bond as security. Proceedings against the Sheriff or other Officer. SEC. 9. If special bail shall not be put in and perfected within the time limited therefor, upon filing an affidavit that such bail is not put in and perfected, and that the writ has been returned served, a rule CHAPTER 98. may be entered with the clerk of the court, in vacation or in term, TITLE XXII. requiring the sheriff or other officer making the arrest, to put in and perfect special bail within twenty days after service of notice of such rule. SEC. 10. If such bail be not put in and perfected within the time on filing affidavit specified in such rule, upon filing an affidavit of the service of notice of failure to com ply with rule, atthereof, a rule may be entered with such clerk, in vacation or in term, tachment may isthat an attachment issue against the sheriff, or other officer who may have made the arrest, and such attachment may be issued accordingly. may, sue. officer being brought in on at SEC. 11. Upon the sheriff or other officer being brought into court Proceedings on on such attachment, for not putting bail to the action, the court by summary proceedings, ascertain the amount due to the plaintiff in tachment. the action, in the same manner as if interlocutory judgment had been entered against the defendant, and may render a judgment against such sheriff or other officer for the amount so ascertained to be due, with the costs of the suit and proceedings. SEC. 12. If the court shall determine that the amount so ascertain- Ib. ed ought to be paid by such sheriff or other officer, and such sheriff or other officer shall confess a judgment to the plaintiff, for the amount so ascertained, with the costs of suit and the proceedings, the court shall thereupon stay all other proceedings against him, until he shall have had a reasonnble time to obtain judgment on the bond taken on the arrest of the defendant, and to collect the amount so ascertained to be due to the plaintiff. SEC. 13. If, in any such action, after a reasonable time, the sheriff Ib. or other officer shall not satisfy the plaintiff in the action the amount due him, with costs and interest, the court shall award execution on the judgment against such sheriff or other officer; and if such execution be returned unsatisfied, in part or in whole, the same proceedings shall be had on the official bond of such sheriff or other officer to collect such deficiency, as in other cases of delinquency. put in special SEC. 14. The sheriff or other officer who shall have made an arrest, Officer who may, for his own indemnity, put in and perfect special bail to the ac- made arrest may tion when such bail shall have been required as herein directed, at bail, &c. any time before judgment rendered against him, on payment of the costs of the proceedings against him; and the putting in of such bail by such officer shall not be deemed a performance of the condition of the bond taken on the arrest; but such officer may, notwithstanding, prosecute such bond, and recover the amount of all damages he may have sustained by the neglect of the defendant to put in such bail. Actions against Special Bail. No suit to be SEC. 15. No suit shall be commenced upon any recognizance of special bail, until an execution against the body of the defendant, hav- commenced ing at least fifteen days between the teste and return thereof, shall against special bail, until execu have been issued to the sheriff of the county in which such defendant tion against defendant returned, was arrested, and by him returned that the defendant could not be &c. found within his county. vor to serve exe. cution, &c, SEC. 16. Upon any such execution being issued and delivered to Sheriff to endea the sheriff, it shall be his duty to use all reasonable endeavors to execute the same, notwithstanding any directions he may receive from the plaintiff, or his attorney. SEC. 17. If it appear on the trial of any such action against bail, TITLE XXII. CHAPTER 98. that an execution against the body of the defendant, was not issued as herein directed, or that it was not issued in sufficient time to enaWhen bail enti ble the sheriff to execute the same, or that directions were given by tled to verdict in the plaintiff or his attorney, to prevent the service of such execution, or that any other fraudulent or collusive means were used to prevent such serviee, the bail shall be entitled to a verdict in their favor. their favor. Court may relieve bail on death of principal. In case of scire facias against bail, no proceed ing to be had until writ returned personally serv. ed. Before whom de fendant may be exoneration of surrendered in special bail. Proceedings to SEC. 18. When the defendant in a suit shall die after the return of the execution against his body, and before the expiration of eight days from the return of the process served on his bail, the court shall relieve such bail on the same terms as if they had surrendered their principal at the time of his death. SEC. 19. In all cases in which proceedings shall be had against bail, by scire facias, it shall be necessary to serve such writ personally upon the defendant, and to have the same duly returned that it has been so served; and no further proceedings shall be had until such writ shall be so returned. Surrender of Defendant. SEC. 20. The special bail of any defendant may surrender him, or such defendant may surrender himself in exoneration of his bail, before any justice of the supreme court, circuit court commissioner, judge of a circuit court, or judge of the county court. SEC. 21. The proceedings to effect such surrender, shall be as fol effect surrender. lows: Surrender of defendant on bail bond. 1. There shall be produced to the officer authorized to accept the same, two copies of the bail piece, upon one of which such officer shall endorse an order that the defendant be committed to the custody of the sheriff, in exoneration of his bail, which shall be delivered to such sheriff, and shall authorize him to commit and detain such defendant, until he shall be duly discharged: 2. Upon producing to such officer the certificate of the sheriff, that the defendant has been committed to, and remains in, his custody, by virtue of such order of commitment, acknowledged before such officer by the sheriff, or proved by a subscribing witness thereto, an order shall be made by such officer, requiring the plaintiff to show cause before him, at such time and place as he shall appoint, why the bail of such defendant should not be exonerated from their liability: 3. Upon producing proof of the due service of such order on the plaintiff or his attorney, such officer shall proceed to hear the allegations and proofs of the parties; and if no good cause to the contrary appear, shall endorse an order on the second copy of the bail piece, briefly reciting the proceedings had before him, and thereby declaring that the bail of such defendant are discharged from all liability as such bail, in the suit in which such bail piece was taken : 4. To such copy of the bail piece shall be attached the certificate of the sheriff herein before required, with the acknowledgment or proof thereof, the order to show cause and the proof of the service thereof; which papers shall be immediately filed in the office of the clerk of the court; and until so filed, the liability of the bail shall continue. SEC. 22. When a bail bond shall have been taken on the arrest of a defendant, the hail therein may surrender their principal, or he may surrender himself in exoneration of his bail, in the same manner, before the same officers, and with the like effect as provided in the preceding section with respect to special bail. CHAPTER 99. OF PLEADINGS AND SET-OFFS. TITLE XXII. CHAPTER 99. executed by off ple. SECTION 1. When any officer or agent of this state, either by his When bond, &c., name, or the name of his office, is or shall be one of the parties to, or cer or agent of shall have executed, or shall hereafter execute any bond, covenant, the state, suit inay be brought contract, promise or agreement, in a matter concerning the people of thereon in the this state, and in which the said people and not such officer or agent, name of the peois or shall be the real party in interest, it shall be lawful to maintain an action against the other party to any such bond, covenant, contract, promise or agreement for the breach or non-performance of the same, in the name of the people of this state, in the same manner and with the like effect as if the said people, instead of such officer or agent, had been named as a party to, and had executed such bond, covenant, contract, promise or agreement, but no such action shall be brought, except by the attorney general, on behalf of the people. Statute how referred to in ac SEC. 2. In actions of debt, brought to recover any money, goods or other things received by any person contrary to the provisions of any tion of debt on statute, it shall be sufficient for the plaintiff, without setting forth the statute. special matter, to allege in his declaration that the defendant is indebted to the plaintiff in the sum so received, or in the value of the goods or other things so received, whereby an action hath accrued to the plaintiff, according to the provisions of such statute, naming the subject matter thereof, in the following form: "according to the provisions of the statute regulating the rate of interest on money," or "according to the provisions of the statute against betting and gaming," as the case may require, or in some other general terms referring to such statute. in assumpsit on SEC. 3. If an action of assumpsit be brought for any money received How to declare contrary to the provisions of any statute, it shall be sufficient for the statute. plaintiff, without setting forth the special matter, to allege in his declaration that the same was received contrary to the provisions of such statute, referring to the same, as prescribed in the preceding section. in trover on stat tion may sue in SEC. 4. If an action of trover be brought for any goods or other How to declare things received contrary to the provisions of any statute, the plain- ute. tiff shall set forth in his declaration that such goods or other things were converted by the defendant, contrary to the provisions of such statute, referring to the same as prescribed in the preceding sections. SEC. 5. The assignee for a valuable consideration of any bond, When assignee note or other chose in action, which has been or hereafter may be of chose in acassigned, if the assignor be dead and there be no executor or admin- his own name, &c istrator appointed upon his estate, or if such executor or administrator have no interest in the thing so assigned, or shall refuse to prosecute for the same, may sue and recover in his own name upon such bond, note or other chose in action, and the defendant in all such suits, until due notice of such assignment shall have been given, may set up and avail himself of any defence he may have in such action, in the same manner, and with the like effect as if the assignor had been living, and the action had been prosecuted in his name. makers, indor SEC. 6. It shall be lawful for the holder of any bill of exchange or Action against promissory note hereafter to be made, instead of bringing separate eers and accep suits against the drawers, makers, endorsers and acceptors of such tors of bill of ex change, &c. CHAPTER 99. TITLE XXII. bill or note, to include all or any of the said parties to the bill or note in one action, and to proceed to judgment and execution in the same manner as though all the defendants were joint contractors. Plaintiff may declare on money counts, and give SEC. 7. The plaintiff in any such action, and in all other actions on bills of exchange or promissory notes, may declare upon the money note in evidence. counts alone; and any such bill or note may be given in evidence under the money counts in all cases where a copy of the bill or note shall have been served with the declaration. some of defend of others. Judgment may be SEC. 8. In any such action judgment may be rendered for the rendered against plaintiff against some one or more of the defendants, and also in ants, and in favor favor of some one or more of the defendants against the plaintiff, according as the rights and liabilities of the respective parties shall appear, either upon confession, default, by pleading or on trial; and when judgment shall be rendered in favor of any defendant, he shall recover costs against the plaintiff, in the same manner as though judgment had been rendered for all the defendants. Separate actions may be brought as now authorized. Pleas in abatement by joint drawer, &c. No judgment to be rendered against several SEC. 9. In any such action, any person or persons sued, shall be entitled to set off his or their demands against the plaintiff, in the same manner as though such defendant or defendants had been sued in the form heretofore used. SEC. 10. If upon the trial of any such action, the whole amount of the demands set off by any or all of the defendants, and allowed by the jury or referees, shall be equal to, or shall exceed the amount of the plaintiff's demand as proved on the trial, the jury or referees shall find a verdict or make a report in favor of the defendants generally; but if the jury or referees shall allow any demand as a set off, and shall still find or report a balance in favor of the plaintiff, they shall state in their verdict, or certify in their report, the amount which they allow to each defendant as a set-off against the plaintiff's demand. SEC. 11. The rights and responsibilities of the several parties to any such bill or note, as between each other, shall remain the same as they now are by law; saving only the rights of the plaintiff, so far as they shall be determined by the judgment. SEC. 12. In every suit brought in pursuance of this chapter, any one or more of the defendants shall be entitled to the testimony of any co-defendant as a witness, in all cases where the defendant or defendants calling the witness would have been entitled to his testimony, had the suit been brought in the form heretofore used, and in no oth er case. SEC. 13. Nothing in this chapter shall be construed to prevent the holder of any bill or note from bringing separate actions against the parties to any such bill or note, in the manner now authorized by law. SEC. 14. In any action brought upon a bill of exchange or promissory note pursuant to the provisions of this chapter, any joint drawer, maker, endorser, or acceptor, may plead in abatement the non-joinder of any other joint drawer, maker, endorser, or acceptor, in the same manner as if such action had been brought in the form heretofore used. SEC. 15. No judgment shall be rendered, or record made up against any several drawer, maker, endorser or acceptor, not served with makers, &c., not process, or with a copy of the declaration, when the suit is commenserved with pro- ced by declaration; but judgment may be obtained against joint contractors, some of whom only have been served with process, or cess, &c. |