« ΠροηγούμενηΣυνέχεια »
SEC. 4. Any person aggrieved may have an action against such boat, vessel, or water craft by name, or the owners thereof, to enforce any such lien; and if the complaint in such action shows the particulars of the demand, the amount due, and a demand made upon the owner, master, clerk, or consignee thereof, and refusal of payment, and verified by the affidavit of the plaintiff, or other person in his behalf, a writ of attachment shall be issued by the clerk of the circuit court against the boat, vessel, or other water craft, and the tackle and furniture thereof, which shall be directed, executed, and returned as a writ of attachment in other cases.
SEC. 5. In all actions contemplated in the section next preceding, all or any of the persons having demands of the description therein mentioned may join in a complaint against such boat, vessel, or water craft, either at the commencement of the action or at any time afterwards before judgment, upon filing the requisite complaint and affidavit.
SEC. 6. In such actions proceedings shall be had, judgment rendered and enforced by execution or other proper means, as in other cases.
SEC. 7. If the master, owner, or consignee shall, before final judgment in any action commenced in pursuance of the provisions of this chapter, enter into a written undertaking in favor of the plaintiff, with sufficient security to be approved by the marshal, conditioned for the performance of the judgment of the court, the attachment shall be discharged, and restitution made of the boat, vessel, or water craft.
SEC. 8. In cases arising under the first section of this chapter the summons may be served upon the officer or consignee making the contract; if such cannot be found, then upon the clerk, or if he cannot be found, upon any other officer of the boat, vessel, or water craft, or any person having charge thereof; if that cannot be done, by affixing a copy of the summons in some conspicuous place in the boat, vessel, or water craft.
SEC. 9. The action may be brought before any justice of the peace, when the amount claimed is within his jurisdiction; and in such actions justices of the peace shall have the powers and perform the duties prescribed for the clerk and court, and constables shall have the powers and perform the duties of marshal.
OF PROCEEDINGS TO ENFORCE JUDGMENTS AGAINST JOINT DEBTORS, AND THE REAL ESTATE OF DECEASED JUDGMENT DEFENDANTS.
1. Proceedings against parties jointly indebted.
2. Heirs, devisees, &c., may be summoned. 3. An affidavit to be filed.
4. What the summons shall contain.
SECTION 1. When a judgment shall be recovered against one or more persons jointly indebted upon contract as provided in section fourteen of chapter eighty-one, those who were not originally summoned to answer the complaint may be summoned to show cause why they should not be bound by the judgment in the same manner as if they had been originally summoned.
SEC. 2. In case of the death of any judgment debtor, the heirs, devisees, or legatees of such debtor, or the tenant of real property owned by him and affected by the judgment, and the personal representatives of the decedent, may, after the expiration of one year from the time of granting letters testamentary, or of administration upon the estate of the decedent, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands, respectively.
SEC. 3. The judgment creditor, his representatives or attorney, shall file an affidavit that the judgment has not been satisfied to his knowledge or information and belief, and shall specify the amount due thereon; and in the cases arising under the second section of this chapter, shall also specify the property sought to be charged.
SEC. 4. The summons shall describe the judgment, and require the person summoned to show cause, and shall be issued, served, and returned as a summons in an original action.
SEC. 5. The party summoned may answer, denying the judgment, or setting up any defence which may have arisen subsequently, or suffer a default; and, in addition thereto, if he be proceeded against according to the first section of this chapter, he may make the same defence which he might have originally made to the action, and no other.
SEC. 6. The party issuing the summons may demur or reply to the
answer, and the party summoned may demur to the reply; and the pleadings shall be verified in like cases and manner as in an action, and issues may be tried and judgment rendered and enforced by
OF REMEDIES OF SURETIES AGAINST THEIR PRINCIPALS.
1. Sureties, &c., may give notice.
2. When surety may be discharged.
3. Trial of suretyship.
4. Execution first to be levied upon the property of principal.
5. In what cases judgment may remain open for the benefit of sureties, &c.
6. Remedy against co-sureties.
7. Surety not to confess judgment where he is notified of defence.
8. The provisions of the chapter to extend to heirs, executors, &c.
SECTION 1. Any person bound as surety, guarantor, or endorser, upon any contract in writing for the payment of money, or the performance of any act, when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to institute an action upon the contract.
SEC. 2. If the creditor or obligee shall not proceed within a reasonable time to bring his action upon such contract, and prosecute the same to judgment and execution, the surety shall be discharged from all liability thereon.
SEC. 3. When any action is brought against two or more defendants on a contract, any one or more of the defendants being surety for the others, the surety may, upon a written complaint to the court, cause the question of suretyship to be tried and determined, upon the issue made by the parties, at the trial of the cause, or at any time before or after the trial, or at a subsequent term; but such proceedings shall not affect the proceedings of the plaintiff.
SEC. 4. If the finding upon such issue be in favor of the surety, the court shall make an order directing the marshal to levy the execution first upon and exhaust the property of the principal, before a levy shall be made upon the property of the surety; and the clerk shall endorse a memorandum of the order on the execution.
SEC. 5. When any person, being surety in any undertaking, has
been or shall be compelled to pay any judgment, or any part thereof, or shall make any payment which is applied upon such judgment by reason of such suretyship, the judgment against the principal shall not be discharged by such payment, but shall remain in force for the use of such surety making such payment; and after the plaintiff is paid, so much of the judgment as remains unsatisfied, may be prosecuted to execution for such surety's use.
SEC. 6. Any surety, being one of several judgment defendants, against whom a judgment has been obtained on the contract for which he was surety, having paid and satisfied the plaintiff, shall have the remedy provided in the last preceding section against the co-sureties, to collect of them the ratable proportion which each is bound to pay.
SEC. 7. No surety, or his representatives, shall confess judgment, or suffer judgment by default, in any case where he is notified that there is a valid defence, if the principal will enter himself defendant to the action, and tender to the surety, or his representatives, good security to indemnify him, to be approved by the court.
SEC. 8. The foregoing provisions of this chapter shall extend to heirs, executors, and administrators of deceased person; but the provisions of the first section of this chapter shall not operate against persons under legal disabilities.
OF ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS.
7. Executor may prosecute appeal.
12. By whom an executor may be sued on his bond.
13. The effect of a judgment against an
1. When an action may be brought by or
2. When executor may maintain an action.
5. Profert only necessary; when.
6. Actions by or against executors not to abate.
Powers of non-resident executors, and jurisdiction of court over the same.
SECTION 1. An action may be brought by or against the representatives of a deceased person, where the cause of action survives.
SEC. 2. Every executor or administrator shall have full power to maintain an action, where the cause of action survives, in any court of competent jurisdiction, in his name, as such executor or administrator, for any debt or personal demand, which the testator or intestate himself might have maintained, for the recovery of any property properly belonging to such executor or administrator, and for trespass or waste committed on the estate of the decedent in his lifetime.
SEC. 3. Any person or his personal representatives may maintain an action against the executor or administrator of any decedent for any debt or personal demand which might have been maintained against such decedent, and against the executor or administrator of any testator or intestate who in his lifetime shall have wasted, destroyed, taken, or carried away, or converted to his own use the goods and chattels of any such person, or committed any trespass or waste upon the real estate of such person.
SEC. 4. In actions brought by or against executors, it shall not be nccessary to join those as parties to whom letters shall have been issued, and who have not qualified.
SEC. 5. In any action by an executor or administrator, it shall not be necessary to make profert of his letters, nor shall his right to sue as such executor or administrator be questioned, unless the opposite party shall by affidavit deny such right; in which case a copy of such letters, duly authenticated, shall be evidence to establish such right.
SEC. 6. If at any time any executor or administrator shall die, or resign, or be removed, and an action or proceeding be pending in any court, in which his name, in his fiduciary capacity, is used, such action or proceeding shall not abate or be discontinued, but the same shall be prosecuted or defended by the remaining executor or administrator, if there be one, or by his successor; the name of such survivor or successor being substituted in such action or proceeding instead of that of the executor or administrator whose authority has ceased; nor shall such action or proceeding be continued to another term, unless at the option of such survivor or successor.
SEC. 7. Any executor or administrator shall have power to prosecute any writ of error or appeal taken by the testator or intestate, or by his predecessor, and may have execution and other legal process issued on a judgment obtained by the testator or intestate, without further proceedings against, or notice to the judgment defendant.