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II. In what cases this writ must be brought at the supreme court.
The same statute has further enacted, that if the plaintiff stands committed for any crime not before in the act mentioned, or for any other offence, whereof if he is convicted, he may not have sentence of death or banishment thereof passed upon him, he shall have his writ from the clerk of the supreme judicial court, to be there holden.
% Mass. Rep. 207.
III. In what cases this writ must be brought at the common pleas.
If the plaintiff is held by any person without due order of law, he shall have his writ from the clerk of the court of common pleas of the county wherein he is held returnable, fourteen days at the least from the day of the date.
In the case of Williams v. Blunt, it appeared that the plaintiff was committed to the county prison by a warrant from a justice of the peace. The action was originally brought at the court of common pleas, and afterwards carried by appeal to the supreme judicial court, but this last court dismissed the action on the ground that they had no appellate jurisdiction. In this case, the defendant having been committed by order of law, the action ought to have been brought immediately to the supreme court.
IV. Of the recognizance or bond required of the plaintiff.
Where the plaintiff is delivered by a writ, returnable into the supreme judicial court, having been committed for any offence, and from which commitment he is replevisable, he shall, before he is delivered, recognize before the sheriff of the county, in person, with sufficient surety or sureties, in a reasonable sum, for his appearance at the same court, to answer, abide, and perform the order and sentence of the same; which recognizance
WRIT DE HOMINE REPLEGIANDO. shall be returned into court by the sheriff; and when the plaintiff shall be delivered by a writ returnable into the court of common pleas, he shall, before his deliverance, give bond to the use of the defendant, with sufficient surety or sureties, at the discretion of the sheriff, to appear at the court to which the writ is returnable, and there to prosecute his replevin against the defendant, to have his body there ready to be re-delivered, as the court shall order, and to pay all damages and costs that may be awarded against him; and the sheriff shall be answerable, if the sureties shall prove insufficient, unless they are such as the defendant agrees to.
V. Of the return of elongation by the sheriff; and herein of the writ of withernam.
If the sheriff shall return upon the writ de homine re. plegiando, issuing from the court of common pleas, that the defendant hath eloined the plaintiff's body, so that he cannot deliver him, then the plaintiff shall, on motion to the court, have a capias in withernam to take the defendant's body, and to keep the same until he shall produce the plaintiff, to be delivered according to the commandment of the original writ.
Provided nevertheless, that if the defendant shall give , full and sufficient bail for his appearance at the court whereunto the writ is returnable, then and there to traverse the return of the sheriff, upon the writ de homine replegiando, that the sheriff shall take such bail ; or if the defendant cannot procure such bail, and is thereupon committed by the sheriff, he may nevertheless at the next term, (and not afterwards,) be allowed to traverse the sheriff's return of elongation, or to plead any matter of justification, in the same manner, as he might have done to the original replevin. And if the jury shall not find that he is guilty of eloin
Ibit. ing the plaintiff as set forth in the return, or if they find that the justification is supported, the defendant shall be
allowed his costs against the plaintiff; but if the defendant will not traverse the return, and put himself upon the country; or if, upon traversing the same, he shall be found guilty of the elongation of the plaintiff; or if, upon pleading a justification, he shall not support the same, then the court shall order him into the custody of the sheriff, and shall issue an alias writ of withernam to liold him, until he shall produce the body of the plaintiff, or until he can prove that the plaintiff is dead; which fact may be tried at any term of the same court, and in the same county; by a jury, upon the information, and at the expense of the defendant.
VI. Under what conditions any person may appear for the plaintiff without special power.
In any stage of the proceedings upon process pursuant to the act, any person shall be permitted to appear for the plaintiff, who will stipulate as the court shall direct for the payment of all costs and damages that may be awarded against the plaintiff, although he can produce no special power for that purpose.
VII. Of the judgment, damages, and costs.
If the plantiff shall not prosecute, or in prosecuting, shall be unable to support his replevin, then the defendant shall recover his reasonable costs.
And if it shall be found upon the trial, that the plaintiff is the ward or infant of the defendant, or that he the said defendant is entitled to the service of the plaintiff, or that the defendant is bail for the plaintiff, then the defendant shall have judgment against the plaintiff for a re-delivery of his body, and for such damages as the jury shall assess against the plaintiff, with reasonable costs.
Surveyor's Complaint to a Justice of the Peace. TO A. B. one of the justices of the peace for the county of S. complains C. D. of R. in the same county (addition) and one of the form of the survey. surveyors of highways in the said town of R. for the year duly ors complaint to a appointed and sworn, that P. D. of R. aforesaid (addition] a person by law liable to work on the highways (or S. D. a son or servant, or ward, as the case may be) within the limits assigned the complainant, in the same town, was assessed days (or with his cart, team, &c. as the case may be) and was duly notified to attend, and work out the same on the day or days of yet the said P. D. did not appear and work in person, nor did he send a sufficient substitute in his stead, but made default therein, whereby he hath forfeited, and ought to pay to the complainant the sum
one moiety to the use of the said town of R. to be expend. ed on the high-ways and town-ways therein, as the selectmen thereof shall direct, and the other moiety to the use of the complainant: wherefore he prays that the said P. D. may be cited to appear, at a short day, to shew cause (if any he has) wherefore a warrant of distress ought not to issue, to levy the said forfeitures, upon the goods and estate of the said P. D. and in want thereof on his body, with reasonable costs, &c.
Warrant of Distress by the Justice against the Respondent in the aforca
38. • To the sheriff of the county of S. or his deputy, or constable of 'the town of R. in said county,
GREETING. Form of the warrant. WHEREAS P. Ď. of R. aforesaid [addition] on the day of did not appear before me, A. B. Esq. one of the Justices of the Peace for the county of S. to answer the complaint of C. D. of said R. (addition) and one of the surveyors of high-ways for said town, for the year for not working on the high-ways and townways, in said town, as he was assigned by the said C. D. who requested a warrant of distress to issue, for the sum of Shillings, incurred by his neglect in that behalf, and for his costs, agreeably to the statute in that case made and provided, although duly summoned for that purpose (or appearing before me, A. B. Esq, one of the justices of the peace for the county of s. to answer to the complaint of C. D. of said R. [addition] and one of the sur. veyors of high-ways in said town for the year for not working, in person, or with his team and cart, &c. on the high-ways and
town-ways in said town, as he was assigned by the said C. D. did not shew sufficient cause, wherefore a warrant of distress should not issue for the sum of shillings, incurred by his neglect in that behalf, and for costs, agreeably to the statute in that case made and provided) and judgment was thereupon rendered, that a warrant of distress should issue, for shillings, being the forfeiture thus incurred, one moiety thereof to the use of the town of R. to be expended on the high-ways and town-ways therein, as the selectmen thereof shall order, and the other moiety for the use of the said C. D. and cost taxed at which judgment is now in full force. You are therefore, in the name of the commonwealth of Massachusetts, hereby commanded, that you cause to be paid and satisfied in money, to the said C. D. by distress and sale of the goods and chattels of the said P. D. the aforesaid sums, amounting in the whole to and one shilling and six pence more for this precept, together with your own legal fees (returning the overplus to the said P. D. if any there be) and for want of goods and chattels of the said P. D. to be by him shewn unto you, or found in your precinct, sufficient to levy the sums aforesaid, you are to take the body of the said P. D. and him commit to the common gaol of the said county of S. and the keeper thereof is directed to detain him there until he pay the sums aforesaid, with your legal fees, or he be therefrom discharged by order of law: Hereof fail not, and make due return of this precept, with your doings thereon, unto myself, within forty days next coming. Given under my hand and seal at R. aforesaid, this day of Anno Domini, 17
A. B. Justice of the Peace.