Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

which de

193. Notice of justification. New undertaking, if other bail,
194. Qualifications of bail.
195.
196.

{Justification and allowance of bail.
197. Deposit of money with sheriff.
198. Payment of money into court by sheriff.
199. Substituting bail for deposit.
200. Money deposited how applied, or disposed of.
201. Sheriff, when liable as bail ; and his discharge from liability.
202. Proceedings on judgment against sheriff.
203. Bail liable to sheriff.
204. Motion to vacate, order of arrest, or reduce bail.

205. Affidavits on motion. No person to $ 178. No person shall be arrested in a civil action except as be arrested, prescribed by this act ; but this provision shall not affect the act to except as prescribed by abolish imprisonment for debt, and to punish fraudulent debtors, this act.

passed April 26, one thousand eight hundred and thirty-one, or

any act amending the same, nor shall it apply to proceedings for Cases in contempts. which de- $ 179. The defendant may be arrested, as hereinafter prescribfendant may be arrested.' ed, in the following cases :

1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of the state, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining, or converting property :

2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled or fraudulently misapplied, by a public officer or by an attorney, solicitor, or counsellor, or by an officer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment;

3. In an action to recover the possession of personal property unjustly detained, where the property or any part thereof has been concealed, removed or disposed of, so that it cannot be found or taken by the sheriff :

4. When the defendant has been guilty of a fraud, in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought:

5. When the defendant has removed, or disposed of his property, or is about to do so, with intent to defraud his creditors.

But no female shall be arrested, in any action except for a wilOrder for ar- ful injury to person, character or property. rest by made $ 180. An order for the arrest of the defendant, must be ob

tained from a judge of the court in whch the action is brought, Affidavit to or from a county judge. obtain order. $ 181. The order may be made, where it shall appear to the

judge by the affidavit of the plaintiff, or of any other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section one hundred and seventy-nine.

tions this chapter ap

made, and

order to be

sheriff, and

The provisions of this chapter shall apply to all actions includ- To what aced within the provisions of section one hundred and seventy-nine, which shall have been commenced since the thirtieth day of June, plicable. one thousand eight hundred and forty-eight, and in which judgment shall not have been obtained.

§ 182. Before making the order, the judge shall require a writ- Security by ten undertaking on the part of the plaintiff, with or without sure- plaintiff be

fore order of ties, to the effect, that if the defendant recover judgment, the plain- arrest. tiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least one hundred dollars. If the undertaking be executed by the plaintiff, without sureties, he shall annex thereto an affidavit that he is a resident and householder or freeholder within the state, and worth double the sum specified in the undertaking, over all his debts and liabilities.

§ 183. The order may be made, to accompany the summons, or Order when at any time afterwards, before judgment. It shall require the firs

its form, sheriff of the county, where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time and place therein mentioned, to the

Affidavit and plaintiff or attorney by whom it shall be subscribed or endorsed. od

§ 184. The affidavit and order of arrest shall be delivered to delivered to the sheriff, who, upon arresting the defendant, shall deliver to him copy to dea copy thereof.

fendant. 185. The sheriff shall execute the order, by arresting the de- Arrest, how fendant and keeping him in custody, until discharged by law; and made. may call the power of the country to his aid, in the execution of the arrest as in case of process.

& 186. The defendant at any time before execution, shall be Defendant to discharged from the arrest, either upon giving bail, or upon de- be discharge

ed on bail or positing the amount mentioned in the order of arrest, as provided deposit. in this chapter. $ 187. The defendant may give bail, by causing a written un- Bail, how

ince given. dertaking to be executed by two or more sufficient bail, stating av their places of residence and occupations, to the effect that the defendant shall at all times render himself amendable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, or if he be arrested for the cause mentioned in the third subdivision of section one hundred and seventy-nine, and undertaking to the same effect as that provided by section two hundred and eleven.

$ 188. At any time before a failure to comply with their un- Surrender of dertaking, the bail may surrender the defendant in their exonera- defendant. tion, or he may surrender himself to the sheriff of the county where he was arrested, in the following manner:

1. A certified copy of the undertaking of the bail shall be delivered to the sheriff, who shall detain the defendant in his custody thereon, as upon an order of arrest, and shall by a certificate in writing, acknowledge the surrender.

The same.

proceeded

Ball how

2. Upon the production of a copy of the undertaking and sheriff's certificate, a judge of the court or county judge, may, upon a notice to the plaintiff, of eight days, with a copy of the certificate, order that the bail be exonerated; and on filing the order and papers used on such application, they shall be exonerated accordingly.

But this section shall not apply to an arrest for the cause mentioned in the third subdivision of section one hundred and seventynine.

$ 189. For the purpose of surrendering the defendant, the bail, at any time or place, before they are finally charged, may themselves arrest him, or by a written authority, endorsed on a certified copy of the undertaking, may empower any person of suitable

age and discretion to do so. Bail, how $ 190. In case of failure to comply with the undertaking, the

bail may be proceeded against by action only. against.

$ 191. The bail may be exonerated, either by the death of the exonerated. defendant or his imprisonment in a state prison, or by his legal

discharge from the obligation to render himself amenable to the process, or by his surrender to the sheriff of the county where he was arrested, in execution thereof, within twenty days after the commencement of the action against the bail, or within such fur

ther time as may be granted by the court.

of $ 192. Within the time limited for that purpose the sheriff shall Delivery of undertaking deliver the order of arrest to the plaintiff or attorney by whom it to plaintiff,

is subscribed, with his return endorsed, and a certified copy of the ceptance or undertaking of the bail. The plaintiff, within ten days thereafter, rejection by

may serve upon the sheriff, a notice that he does not accept the bail, or he shall be deemed to have accepted it, and the sheriff

shall be exonerated from liability e of $ 193. On the receipt of such copy of the undertaking and nojustification. tice, the sheriff or defendant may, within ten days thereafter, give

to the plaintiff or attorney by whom the order of arrest is subscribed, notice of the justification of the same or other bail, (specifying the places of residence and occupations of the latter,) before a judge of the court, or county judge, or justice of the peace, at a

specified time and place; the time to be not less than five, nor New under- more than ten days thereafter. In case other bail be given, there taking if oth- shall be a new undertaking, in the form prescribed in section one er bail

hundred and eighty-seven. Qualifica-. $ 194. The qualifications of bail must be as follows:

i. Each of them must be a resident, and householder or freeholder, within the state;

2. They must each be worth the amount specified in the order of arrest, exclusive of property exempt from execution, but the judge, or a justice of the peace on justification, may allow more than two bail to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.

and its ac

him.

Notice of

tions of bail.

of bail

sit.

$ 195. For the purpose of justification, each of the bail shall at- Justification tend before the judge, or a justice of the peace, at the time and of bail. place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or justice of the peace, in his discretion, may think proper. The examination shall be reduced to writing and subscribed by the bail, if required by the plaintiff.

$ 196. If the judge or justice of the peace find the bail sufficient, Allowance he shall annex the examination to the undertaking, endorse his allowance thereon, and cause them to befiled with the clerk; and the sheriff shall thereupon be exonerated from liability.

$197. The defendant may, at the time of his arrest, instead of Deposit of giving bail, deposit with the sheriff the amount mentioned in the money with

the sheriff. order. The sheriff shall thereupon give the defendant a certificate of the deposit, and the defendant shall be discharged out of custody.

§ 198. The sheriff shall, within four days after the deposit, pay Payment of the same into court; and shall take from the officer receiving the money into same, two certificates of such payment, the one of which he shall sheriff. deliver to the plaintiff, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the sheriff to collect the sum deposited, as in other cases of delinquency.

$ 199. If money be deposited, as provided in the last two sec- Substituting tions, bail may be given and justified upon notice, as prescribed in bail for deposection one hundred and ninety-three, any time before judgment; and thereupon the judge before whom the justification is had, shall direct, in the order of allowance, that the money deposited be refund. ed by the sheriff to the defendant, and it shall be refunded accordingly.

$ 200. Where money shall have been so deposited, if it remain Money depoon deposit at the time of an order or judgment for the payment of site money to the plaintiff, the clerk shall, under the direction of the disposed of. court, apply the same in satisfaction thereof, and after satisfying the judgment, shall refund the surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk shall refund to him the whole sum deposited and remaining unapplied.

$ 201. If, after being arrested, the defendant escape or be res- Sheriff, when cued, or bail be not given or justified, or a deposit be not made in-lin

not made in. liable as bail; stead thereof, the sheriff shall himself be liable as bail. But he charge from may discharge himself from such liability, by the giving and justi- "a fication of bail as provided in sections one hundred and ninetythree, one hundred and ninety-four, one hundred and ninety-five, and one hundred and ninety-six, at any time before process against the person of the defendant, to enforce an order or judgment in the action.

$ 202. If a judgment be recovered against the sheriff, upon his Proceedings liability as bail, and an execution thereon be returned unsatisfied, ag

against shein whole or in part, the same proceedings may be had on the riff. oflicial bond of the sheriff, to collect the deficiency, as in other cases of delinquency.

sited, how applied or

and his dis

on judgment sheriff.

Bail liable to $ 303. The bail taken upon the arrest, shall, urless they justify,

or other bail be given or justified, be liable to the sheriff, by ac

tion, for damages which he may sustain by reason of such omission. Motion to va $ 204. A defendant arrested, may, at any time before the juscate order of arrest or re- tification of bail, apply, on motion, to vacate the order of arrest, or duce bail. to reduce the amount of bail. Affidavits on § 205. If the motion be made upon affidavits on the part of the motion.

defendant, but not otherwise, the plaintiff may oppose the same by
affidavits or other proofs, in addition to those on which the order of
arrest was made.

CHAPTER II.
Claim and delivery of Personal Property.
SECTION 206. Delivery of personal property, when it may be claimed.

207. Affidavit and its requisites.
208. Requisition to sheriff, to take and deliver the property.
209. Security on the part of the plaintiff, and justification.
210. Exception to sureties and proceedings thereon or on failure to

except.
211. Defendant when entitled to re-delivery.
212. Justification of defendant's sureties.
213. Qualification and justification of sureties.
214. Property, how taken when concealed in builing or enclosure.
215. Property, how kept.
216. Claim of property by third person.

217. Notice and affidavit, when and where to be filed. Delivery of $206. The plaintiff, in an action to recover the possession of perty when personal property, may, at the time of issuing the summons, or at it may be any time before answer, claim the immediate delivery of such proclaimed.

4. perty as provided in this chapter. Affidavit,and § 207. Where a delivery is claimed, an affidavit must be made uisites by the plaintiff, or by some one in his behalf, showing,

1. That the plaintiff is the owner of the property claimed, (particularly describing it,) or is lawfully entitled to the possession thereof, by virtue of a special property therein, the facts in respect to which shall be set forth;

2. That the property is wrongfully detained by the defendant ;

3. The alleged cause of the detention thereof, according to his best knowledge, information, and belief;

4. That the same has not been taken for a tax, assessment or fine, pursuant to a statute; or seized under an execution or attachment against the property of the plaintiff'; or if so seized, that it is, by statute, exempt from such seizure; and,

5. The actual value of the property. Requisition $ 208. The plaintiff may, thereupon, by an endorsement in to sheriff, t take and de

to writing upon the affidavit, require the sheriff of the county where liver the pro. the property claimed may be, to take the same from the defendant, perty.

and deliver it to the plaintiff. Security on $ 209. Upon the recept of the affidavit and notice, with a writthe plaintifi

Ho ten undertaking, executed by one or more sufficient sureties, and justifica- approved by the sheriff, to the effect that they are bouud, in double tion.

the value of the property as stated in the affidavit, for the prose

the part o

« ΠροηγούμενηΣυνέχεια »