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CHAPTER 107.

PROVISIONS CONCERNING ACTIONS AND PROCEEDINES IN CERTAIN CASES.

TITLE XXII. CHAPTER 107.

ment against

6 Wend., 550.

SECTION 1. In actions against two or more persons jointly indebted Form of judg upon any joint obligation, contract or liability, if the process issued joint debtors. against all the defendants shall have been duly served upon either of 1839, p. 22, § 1. them, the defendant so served shall answer to the plaintiff; and in 10 do. 630. such case, the judgment, if rendered in favor of the plaintiff, shall be 11 do. 612. against all the defendants in the same manner, as if all had been served

with process.

ment as evidence.

SEC. 2. Such judgment shall be conclusive evidence of the liability Effect of judg of the defendant who was personally served with process in the suit, 1839, p. 22, § 1. or who appeared therein; but against every other defendant, it shall 6 Wend., 206. be evidence only of the extent of the plaintiff's demand, after the lialiability of such defendant shall have been established by other evidence.

SEC. 3. Execution upon every such judgment shall be issued in Form of execu form against all the defendants, [but] the attorney, clerk or court issu- tion, &c. ing the same shall endorse thereon the names of such of the defendants as were not served with the process by which the action was commenced, and shall direct such execution to be served as provided in the next section.

SEC. 4. Such execution shall not be served upon the person of any Proceedings on defendant whose name is so endorsed thereon; nor shall it be levied execution. 1839, p. 22, § 2. upon the sole propriety of any such defendant; but it may be collected of the personal property of any such defendant, and owned by him as a partner with the other defendants served, or with either or any of them.

ed on joint

SEC. 5. Where an action against two or more persons upon any Declaration serv joint obligation, contract or liability, shall be commenced by the filing debtor, &c. same and service of a declaration, and it shall appear by the certificate of proceedings. a sheriff, or by due proof, that the same has been served upon either of such persons, the defendant so served shall answer to the plaintiff, and the judgment in such action, if rendered in favor of the plain

tiff, shall be against all of the defendants, in the same manner as 1839, p. 22-3, § 3. if all had been served with such declaration; which judgment shall have the like effect, and execution thereon shall be issued as if process had been served on one of them.

facias.

SEC. 6. In either of the cases mentioned in the preceding sections, when plaintiff the plaintiff in the judgment may sue out a writ of scire facias against may have scire the defendants therein who were not served with the process or declaration by which the suit was commenced, by which the sheriff shall be commanded to summon the parties against whom it is issued, to appear before the court in which such judgment shall have been rendered, to show, if they have any thing to say, why the plaintiff 1839, p. 23, § 4. ought not to have execution against them upon such judgment, in the same manner, and with the like effect, as if they had been served with the process or declaration by which the suit was commenced. SEC. 7. If any such defendant, after being duly summoned, shall Proceedings on fail to appear within twenty days after the return day of the writ of scire facias, or if he shall appear and show no sufficient cause to the contrary, the court shall make an order that execution issue against such defendant in the same manner, and with the like effect, as if he

scire facias.

CHAPTER 107.

TITLE XXII. had been served with the process or declaration by which the suit was commenced, and thereupon execution may be issued and served accordingly.

When breaches to be assigned.

Damages in case

sessed.

SEC. 8. When an action shall be prosecuted in any court of law, upon any bond for the breach of any condition other than for the payment of money, or shall be prosecuted for any penal sum for the non-performance of any covenant or written agreement, the plaintiff, in his declaration, shall assign the specific breaches for which the action is brought.

SEC. 9. Upon the trial of such action, if the jury find that any asof trial to be assignment of such breaches is true, and that the plaintiff should recover damages therefor, they shall assess such damages, and shall specify the amount thereof in their verdict, in addition to their finding upon any other question of fact submitted to them.

Judgment on

ages.

SEC. 10. In every such action, if the plaintiff recover, the verdict of verdict for dam the jury, assessing the plaintiff's damages, shall be entered on the record, and judgment shall be rendered for the penalty of the bond, or for the penal sum forfeited, as in other actions of debt, together with the costs of suit, and with a further judgment that the plaintiff have execution to collect the amount of the damages so assessed by the jury; which damages shall be specified in such judgment.

Execution on

tions.

SEC. 11. The execution upon such judgment shall be in the usual judgment; direc- form in actions of debt, but shall have endorsed thereon by the attorney, clerk or court issuing the same, a direction to the sheriff to collect the amount of the damages so assessed, which amount shall be stated, with interest thereon from the time of such assessment, and the costs of such suit.

Judgment how affected by col

ges.

SEC. 12. If the amount so authorized to be levied, shall be collectlection of dama- ed, or the plaintiff shall be fully paid and satisfied for the same, the real and personal estate of the defendant shall be discharged from any further liability for the damages so assessed; but the judgment rendered in such action shall remain as a security for any damages that may thereafter be sustained by the further breach of any condition of such bond, or by the non-performance of any other covenant or written agreement, by the defendant, the performance of which was secured by such penal sum.

Scire facias in case of further breaches.

Proceedings on scire facias.

Judgment on

affected by payment of dama

SEC. 13. Whenever such further breaches shall occur, the plaintiff, or his personal representatives, may have a scire facias upon such judgment, suggesting such breaches, against the defendant and all parties bound thereby, and commanding that they be summoned to show cause why execution should not be had upon such judgment, for the amount of the damages sustained by such further breaches.

SEC. 14. The like proceedings to ascertain such damages, shall be had upon such writ, as are herein provided in the first instance, and if the plaintiff recover, judgment shall be rendered that the plaintiff have execution to collect the amount of the damages that may have been assessed by the jury.

SEC. 15. Upon payment or satisfaction of the amount of damages so scire facias, how found, with interest, and the costs and charges of the proceedings, the defendant and his real and personal estate shall in like manner be discharged from any liability for the damages so assessed, but such judgment shall remain as security for further breaches as herein before provided.

ges.

SEC. 16. Whenever, in any action brought according to the fore

CHAPTER 107.

for defendant.

going provisions, the jury shall find that any assignment of breaches TITLE XXII.
is not true, the same shall be a bar to any other or further suit, by
scire facias or otherwise, for the recovery of any damages alleged Effect of verdict
to have been sustained by occasion of the same breaches so assigned.
SEC. 17. Nothing herein contained shall prevent any person from Suit for damages
bringing an action for the breach of any covenant or other contract, instead of penal-
instead of suing for the penalty by which the performance of the cov-
enant or contract may have been secured.

ty.

LIBRARY

SEC. 18. Every person who shall, for vexation and trouble, or ma- Suing, &c., in liciously, cause or procure any other to be arrested, attached, or in name of another. any way proceeded against, by any process or proceeding at law, or in equity, or in any other manner prescribed by law, to answer to the suit or prosecution of any person, without the consent of such person, or where there is no such person known, shall be liable to the person so arrested, attached or proceeded against, in treble the amount of the damages and expenses which, by any verdict, shall be found to have been sustained and incurred by him; and shall be liable to the person in whose name such arrest or proceeding was had in the sum of two hundred dollars damages, and shall be deemed guilty of a misdemeanor, punishable, on conviction, by imprisonment in the county jail for a term not exceeding six months.

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SEC. 19. Every sheriff, constable, or other officer, to whom shall be Liability of sherdirected and delivered any attachment, summons, precept to summon iffs, &c., in special cases. a jury, warrant to apprehend a witness or any other person, or any other process authorized to be issued by any judge, circuit court commissioner or justice of the peace in any special proceeding or matter before such judge, commissioner or justice, except civil suits before justices of the peace, shall execute such process as therein commanded, and for any wilful neglect so to do, may be fined by the officer issuing the same, in a sum not exceeding twenty-five dol

lars.

special cases.

SEC. 20. When any person shall have been personally summoned Penalty on jurors to attend as a juror, to inquire into any matter or thing, or to hear for default in and try any controversy, in any special proceeding or matter specified in the last section, and shall wilfully neglect to attend in pursuance of such summons, he may be fined by the officer issuing the same, in a sum not exceeding twenty-five dollars; but this section shall not extend to any case where other special provision is made by law, for punishing the default of any juror.

SEC. 21. When any sheriff, constable or other officer, who shall have summoned any jury, in the cases mentioned in the two last sections, shall be required by the officer issuing such summons, to attend such jury and take charge of them, he shall be bound to do so; and for any wilful neglect to obey such order, or for any misconduct while attending such jury, by which the rights or remedies of any party to such proceeding may be impaired or prejudiced, such sheriff, constable or other officer, shall be liable to be fined by the officer before whom such jury shall have appeared, in a sum not exceeding twentyfive dollars.

Sheriffs, &c. to

attend juries in

certain cases.

SEC. 22. Upon any fine being imposed in any of the cases herein Notice of fine. before specified, notice thereof shall be given to the person fined, to the end that he may render any excuse to the officer imposing such fine, or show cause why such fine should be remitted.

SEC. 23. If no such excuse be rendered, or cause shown, within

CHAPTER 107.

TITLE XXII. thirty days after service of such notice, and such fine shall not have been remitted by the officer imposing the same, such officer shall Fines to be certi- make a special return of the delinquency or misconduct for which such fine was imposed, with the amount thereof, to the next circuit court for the county in which said delinquent shall reside.

fied to circuit

court.

How such fines collected.

Oaths in certain cases.

Certain oaths by public officers,

&c.

Suits by the peo. ple.

Costs therein how paid.

Detinue and out.

SEC. 24. The clerk of the court to which such return shall be made, shall deliver a copy thereof to the prosecuting attorney of the county, with copies of the minutes of fines imposed by such court, and in the same manner; which shall be collected, and may be remitted or mitigated, in the same manner as fines imposed by courts of record, upon defaulting jurors.

SEC. 25. Whenever any officer is authorized to take any sureties or bail, he shall be authorized to administer an oath to every person who shall be offered as such bail or surety, to ascertain his sufficiency.

SEC. 26. Whenever any application shall be made to the commissioner of the land office, the acting commissioner of internal improvement, or to any other public officer, or board of officers, to do any act in an official capacity, and such officer or board shall require information or proof, to enable him or them to decide on the propriety of doing such act, such information or proof may be required to be given by affidavit, and such officer, or any member of such board, may administer all necessary oaths for that purpose.

SEC. 27. Every suit or proceeding in a civil cause instituted in the name of the people of this state, by any public officer duly authorized for that purpose, shall be subject to all the provisions of law respecting similar suits or proceedings, when instituted by or in the name of any citizen, except where provision is or shall be otherwise expressly made by statute; and in such suits and proceedings, the people of this state shall be liable to be non-suited, and to have judgment of non-pros or of discontinuance entered against them, in the same cases, in like manner and with the same effect, as in suits brought by citizens, except that no execution shall issue thereon.

SEC. 28. Whenever costs shall be adjudged against the people of this state, in any civil suit or proceeding instituted by any officer duly authorized for that purpose, it shall be the duty of the auditor general to draw on the treasurer for the amount thereof, upon the production of an authenticated copy of the record of judgment, or of the order adjudging such costs, with a taxed bill thereof, and upon the certificate of the attorney general that such suit or proceeding was duly instituted, as by law required.

SEC. 29. The action of detinue is hereby abolished, and all process lawry abolished. and proceedings to outlaw any defendant in a civil action, are also hereby abolished.

Trespass on the case in cases where trespass

SEC. 30. Where by the wrongful act of any person, an injury is produced, either to the person, personal property, or rights of another, may be brought. or to his servant, child or wife, for which an action of tresspass may by law be brought, an action of trespass on the case may be brought to recover damages for such injury, whether it was wilful, or accompanied by force or not; and whether such injury was a direct and immediate consequence from such wrongful act, or whether it was consequential and indirect.

Certain words actionable.

SEC. 31. Words imputing to any female a want of chastity, shall be deemed to be actionable in themselves, and shall subject the person who shall utter and publish such words, to an action on the case

CHAPTER 107

for slander, in the same manner as the uttering and publishing of TITLE XXII words imputing the commission of a criminal offence.

SEC. 32. Whenever a suggestion shall be made upon the record, or in any stage of the proceedings in any cause, which the adverse party shall have a right to controvert, a copy of such suggestion shall be served upon the adverse party or his attorney, in the same manner as other pleadings, and such party may plead thereto, according to the practice of the court, in the same manner, and within the same time, as to a declaration.

Certain sugges

tions to be served.

thereon, &c.

SEC. 33. If an issue of fact be joined upon any such suggestion, the Trial of issues same shall be tried, and judgment rendered thereon, as in (on) other issues.

SEC. 34. The party making such suggestion may be non-suited, other proceedand may have judgment of non-pros, or discontinuance entered ings on suggesagainst him, for the same causes, and in the same cases as in suits at law.

tion.

Cases for tender

SEC. 35. When any action at law shall be commenced, for the recovery of a sum certain, or which may be reduced to a certainty by of debt or damacalculation, or for a casual or involuntary trespass or injury, the de- ges. fendant, in any stage of the proceedings before trial in such causes, or before such damages shall have been assessed, or before judgment rendered in an action of debt, may tender to the plaintiff or his attorney, any sum of money which such defendant shall conceive sufficient amends for the injury done, for which such action or proceeding was instituted, or sufficient to pay the plaintiff's demand, together with the costs of such action or proceeding, to the time of making such tender. SEC. 36. If it shall appear upon the trial of the cause, or upon the Effect if tender assessment of damages, that the amount so tendered was sufficient to pay the plaintiff's demand, or was a sufficient amends for the injury done, and the costs of the suit or proceeding up to the time of such tender, the plaintiff shall not be entitled to recover or collect any interest on such demand from the time of such tender, or any costs incurred subsequent to that time, but shall be liable to the defendent for the costs incurred by him subsequent to such time.

be sufficient.

courts of record.

SEC. 37. When there shall be a motion or other proceeding in any Testimony on court of record in which it shall be necessary for either party to have motion, &c., in the deposition of any witness who shall have refused voluntarily to make his deposition, the court may direct a commission to be issued to one or more persons, inhabitants of the county in which such witness resides, to take his testimony.

witness how

SEC. 38. Such witness may be subpoenaed to attend and testify be- Testimony of fore such commissioners, in the same manner as before referees, and procured. with the like effect; and obedience to such subpoena shall be enforced in the same manner.

greement.

SEC. 39. When any jury shall be impannelled to try any issue, to Discharging ju make any inquiry, or to assess any damages, if they cannot agree after ries upon disabeing kept together for such time as shall be deemed reasonable by the court or officer before whom they shall have appeared and been impanneled, such court or officer may discharge them, and issue a precept for a new jury, or order another jury to be drawn, as the case may require; and the same proceedings shall be had before such new jury as might have been had before the jury so discharged.

between teste and

SEC. 40. It shall not be necessary to have any particular number Process; time of days intervene between the teste and return day of any process, return. except in cases otherwise expressly provided by law.

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