process, whether on one or more writs, and the debtor and the attaching creditors shall consent in writing to the sale thereof, the attaching officer shall sell the same, in the manner prescribed by law for selling the like property on execution, and the proceeds of the sale, after deducting the necessary charges thereof, shall be held by the officer, subject to the attachment or attachments, and shall be disposed of in like manner as the said property would have been held and disposed of, if it had remained unsold. (Sec. 46 of R. S.) SECT. 28. No creditor, by attachment, after such property is advertised for sale, shall have a right to prevent the sale thereof, but the property may be charged, by attachment or execution, put into the hands of the officer, holding such property, in like manner as if the same was not advertised for sale, and the proceeds of the sale shall be held by the officer subject to all the attachments and executious in his hands, at the time of the sale, against the owner of such property. (Sec. 47 of R. S.)

SECT. 29. When an attachment is made of any live animals, or of any goods or chattels which are liable to perish or waste, or to be greatly reduced in value by keeping, or which cannot be kept without great or disproportionate expense, and the parties shall not consent to the sale thereof, as before provided, the property so attached shall, upon the request of either of the parties interested therein, be examined and appraised, and shall be afterwards sold or otherwise disposed of in the manner following: (Sec. 48 of R. S.)

SECT. 30. Upon such application, made by either party to the officer attaching, he shall give notice thereof to all the other parties or their attorneys, and shall prepare a schedule of the goods, and appoint three disinterested persons, acquainted with the nature and value of such goods, to be sworn, by such officer, to the faithful discharge of their duty, as appraisers in the case. (Sec. 49 of R. S.)

SECT. 31. The appraisers shall examine the attached property, and if they shall be of the opinion, that the same, or any part thereof, is liable to perish or waste, or to be greatly reduced in value by keeping, or that it cannot be kept without great and disproportionate expense, they shall proceed to appraise the same, according to their best skill and judgment, at the value thereof in money, and the goods shall thereupon be sold by the officer, and the proceeds thereof shall be held and disposed of in the manner before provided in case of a sale by consent of the parties, unless the goods shall be taken by the defendant, as provided in the following section. (Sec. 50 of R. S.)

SECT. 32. When any attaching officer shall sell any property in pursuance of sections forty-six, forty-seven, forty-eight, forty-nine, and fifty of chapter twenty-eight of the Revised Statutes, (§ 27 to 31 of this chap.) he shall, within thirty days thereafter, make a return of his sale and doings on the writ upon which the attachment was made, and return the writ with his doings, to the justice who signed such writ, or to the clerk of the court to which such writ is made returnable: provided, in case the defendant in such writ should confess a judgment to the plaintiff, before he makes such return, then such officer shall make his return to the magistrate before whom such judgment is confessed. (No. 7 of 1843.)

SECT. 33. The goods so appraised shall be delivered to the defendant if he require it, upon his depositing with the attaching officer the appraised value thereof in money, or giving to such officer satisfactory security for the payment of such appraised value of the goods, or to satisfy all such judgments as shall be recovered in the suits in which the goods were attached, if demanded within the time during which the goods would have been held by the respective attachments, and to indemnify such officer from all costs and damages that he may sustain, if such payment is not made within the time aforesaid. (Sec. 51 of R. S.)

SECT. 34. The attaching officer, in such case, shall be accountable to the attaching creditor, for the appraised value only, of the goods so delivered to the debtor. (Sec. 52 of R. S.)

ABSENT DEFENDANT AND WRIT OF REVIEW.

SECT. 35. If the party, against whom any suit shall be brought before the supreme or county court, shall be absent from the state, at the time of the service of the writ, and shall not return within the same before the time of trial, such court shall (unless such party had notice of the service of the writ twelve days before the sitting of the court) continue the cause and order notice to be given to the absent defendant, by publication in some public newspaper, to be designated by such court. (Sec. 53 of R. S.)

SECT. 36. In all cases against such absent defendant, when judgment shall be rendered upon default, without proof of personal notice, execution or writ of possession shall not issue until the plaintiff, his agent or attorney, shall have given bond by way of recognizance, with sufficient surety, to be taken by the clerk of the court in which such judgment shall have been rendered, in double the value of the estate, or sum of money recovered by such judgment, to pay such sum as shall be recovered by such absent defendant by writ of review, and the surety aforesaid shall be no further answerable than for the recovery, which shall be had upon such writ. (Sec. 54 of R. S.)

SECT. 37. The defendant, against whom judgment shall have been rendered by default, without notice as aforesaid, may, at any time within three years from the time of rendering such judgment, bring his writ of review before the same court that rendered such judgment, and, upon such writ being entered in court, the original judgment shall be vacated, if it is in no part satisfied, or if it was for the recovery of real estate. (Sec. 55 of R. S.)

SECT. 38. If the original judgment has been fully satisfied, the same shall be affirmed. (Sec. 56 of R. S.)

SECT. 39. If such judgment has been in part satisfied, the same shall be affirmed for so much as is satisfied, and reversed for the balance. (Sec. 57 of R. S.)

SECT. 40. The court shall then proceed to try and determine the original action, in the same manner as if there had been no judgment rendered, and if the original plaintiff has recovered and collected on the judgment more than was his due, judgment shall be rendered for the original defendant to recover such sum, with inter

est and his reasonable damages with costs, otherwise such judgment shall be rendered as the nature of the case shall require. (Sec. 58 of R. S.) SECT. 41. The writ of review shall be sued out and served in the same manner as original writs. (Sec. 59 of R. S.)

SECT. 42. Upon every judgment, rendered upon a writ of review, the court shall have power to allow or deduct costs, between the parties, as the equity of the case shall demand, and either party shall be entitled to a review, the same as if no previous judgment had been rendered. (Sec. 60 of R. S.)

SECT. 43. In all cases, when an action shall be brought on any judgment, rendered by default against such absent defendant, without proof of personal notice, it shall be lawful for the defendant to plead, or give in evidence, any matter or thing, which he might have done in the original action. (Sec. 61 of R. S.)

ARREST OF THE BODY AND REMEDY AGAINST BAIL.

SECT. 44. When the body of any defendant shall be taken on mesne process in any civil action, it shall be the duty of the officer, serving such process, to deliver him an attested copy thereof, if required. (Sec. 22 of R. S.)

SECT. 45. When the body of any person shall be arrested on mesne process, it shall be the duty of the officer, serving such process, to commit such person to jail, unless the person, so arrested, shall expose personal property sufficient to secure such officer, or procure some person to become surety to the satisfaction of such officer, by such surety endorsing his name or signature, on the back of such writ, as bail thereon. (Sec. 23 of R. S.)

SECT. 46. Whenever any officer, or other person, authorized by law to serve any writ, warrant, execution or process, is required by law to commit any person to jail, such commitment shall be made in the county in which the arrest shall be made, unless otherwise directed by law. (Sec. 24 of R. S.)

SECT. 47. If there shall not be a legal jail in the county where such arrest shall be made, such commitment shall be made in an adjoining county, where there is a legal jail. (Sec. 25 of R. S.)

SECT. 48. When any officer, or other person, shall commit any prisoner to jail, it shall be the duty of such officer, or other person, to deliver such prisoner to the keeper of the jail within the same, and also to deliver to such keeper a true and attested copy of the writ, warrant, execution or other process, by virtue of which such commitment is made, with his return thereon. (Sec. 26 of R. S.)

SECT. 49. When any person shall endorse his name or signature as bail on mesne process, such person shall be holden to satisfy the judgment, which shall be finally rendered thereon, in case the plaintiff shall,

First, cause the execution to be put into the hands of an officer, authorized by law to levy and serve the same, within thirty days from the time final judgment shall be rendered on such process,

Secondly, cause a legal return of non est inventus to be made on such execution, within sixty days, or within one hundred and twenty

days (if the execution is made so returnable,) from the time of rendering such final judgment. (Sec. 27 of R. S.)

SECT. 50. If the execution is put into the hands of such officer, and the return of non est inventus be legally made thereon as aforesaid, the plaintiff may, within one year, and not after, from the time of rendering the judgment, bring his writ of scire facias against such surety, and unless the surety shall surrender the body of the principal into court, or show his death, before judgment on the scire facias, and pay the costs upon the scire facias, the court shall (unless just cause be shown to the contrary,) render judgment against such surety for the amount of the damages and costs in the original action, with the costs on the scire facias. If, in such case, the judgment shall have been rendered by a justice, and such justice shall have died or be out of office, the scire facias may be commenced and tried before some other justice. (Sec. 28 of R. S.)

SECT. 51. When judgment shall have been rendered by a justice in a civil action, where bail shall have been taken on the original process, and where such bail shall be related to the said justice within the fourth degree of affinity or consanguinity, the creditor in said judgment may bring his action of scire facias against such bail before another justice having jurisdiction between such creditor and surety. (No. 6 of 1841.)

SECT. 52. The writ of scire facias, mentioned in section twentyeight, of chapter twenty-eight of the Revised Statutes, (§ 50 of this chap.) in cases where the original judgment shall have been rendered by a justice of the peace, may be made returnable before any other justice, proper to try the same, when the justice rendering the original judgment shall be in any manner disqualified to try the same. (No. 3 of 1849.)

SECT. 53. In all actions of scire facias which may hereafter be commenced against any person as surety or bail on mesne process, before any court in this state, such court shall (unless just cause be shown to the contrary,) render judgment against such surety or bail for the amount of the judgment in the original action, against the principal, and all charges thereon, with legal interest and costs. (No. 30 of 1842.)

SECT. 54. If the principal is surrendered into court, as provided in the preceding section, the court shall direct an officer to receive the principal into custody and detain him for such time as the court shall direct, not exceeding twenty days, that his body may be taken in execution. (Sec. 29 of R. S.)

SECT. 55. The surety on mesne process may deliver the principal into court, before or during the term, at which final judgment shall be rendered on such process, in discharge of himself. (Sec. 30 of R. S.)

SECT. 56. When any principal shall be so delivered into court by the surety, the court shall, unless such principal procure sufficient surety for his appearance, order him to be committed to jail, and such commitment shall be deemed a commitment on the original writ. (Sec. 31 of R. S.)

SECT. 57. The officer, serving a writ of attachment and taking surety as is herein before provided, shall be answerable to the plain

tiff for all damages, occasioned by the insufficiency of such surety, unless he shall on trial make it appear that, at the time of taking such surety, the same was amply sufficient; and no suit shall be prosecuted against any officer or other person taking bail, as aforesaid, when the bail shall be sufficient. (Sec. 32 of R. S.)

SECT. 58. When any surety shall have endorsed a writ of attachment as bail, the officer serving such writ shall deliver to such surety a bail piece, in the form prescribed by law, and when the surety shall have occasion to take the body of the principal, to surrender him in court in discharge of his bail, either on the original process or upon scire facias, or to secure him until the session of the court in which he may be surrendered as aforesaid, such bail piece shall be sufficient evidence to entitle such surety to a warrant from any justice to take the body of the principal (Sec. 33 of R. S.)

SECT. 59. Any such justice, on application for that purpose, shall issue a warrant in due form of law, directed to any sheriff or constable in this state, commanding him to assist such surety in apprehending the body of such principal, and it shall be the duty of the officer, apprehending such principal, to commit him to jail either in the county in which he was arrested on the original process, or in which such process is pending, agreeably to the direction in the warrant. (Sec. 34 of R. S.)

SECT. 60. It shall be lawful, at all times, for such surety to commit the principal to jail, so that he may be delivered in court in discharge of his bail. (Sec. 35 of R. S.)

SECT. 61. When such principal shall be committed to jail on any warrant issued as aforesaid, he shall be considered as committed on the original writ of attachment, if the same shall be then pending. (Sec. 36 of R. S.)

SECT. 62. If, on return of the scire facias issued against any surety as aforesaid, the surety shall show to the court, that, at the time of making the return of non est inventus on the execution, the principal had become insane, or was actually confined in any state prison for a criminal offence, it shall be sufficient cause why judgment should not be rendered against such surety. (Sec. 37 of R. S.) SECT. 63. If any writ of scire facias, issued as aforesaid, shall be abated, or judgment shall be rendered thereon in favor of the defendent on demurrer, the plaintiff may sue out another scire facias at any time within six months from the rendering of such judgment, and not after. (Sec. 38 of R. S.)

SECT. 64.* When judgment shall have been rendered by a justice of the peace in a civil action, and such justice shall have died or shall be out of office, the plaintiff or creditor in such judgment may bring his action of scire facias, to revive or enforce the execution of such judgment, before any other justice who can legally try a cause between the parties. (No. 7 of 1850.)

SECT. 65. In all actions of scire facias which may be hereafter commenced, to revive or enforce the execution of any judgment

* This section is appropriately arranged as sec. 83 of chap. 29. Its insertion here as well as that of sec. 65, without any proper connection with the preceding sections, was overlooked until too late to be altered without too much of an interference with the arrangement of other parts of the compilation which were already completed.