When debtor is surrendered by SECT. 19. If the surrender is made after a writ of scire facias is taken out against the bail, he shall within fourteen days after the surrender pay the costs of suit on the scire facias to the creditor or his attorney, or to the jailer for his use: provided, that if the writ of scire facias has not been served on the bail, he shall not be required to pay the costs thereof until twenty-four hours after he has notice of the issuing of the writ, and after a demand of the costs made on him by the creditor. SECT. 20. Every person surrendered and committed shall be received by the jailer, and held in custody. He may be forthwith bailed, whether notice of the surrender has or has not been given to the plaintiff, and shall in all respects have the same rights and privileges as if committed upon the original arrest. SECT. 21. Nothing contained in the preceding sections shall impair the right of bail, in all cases, to surrender their principal in the court in which the original suit is pending, at any time before final judgment; or, after judgment, to surrender him to the officer holding the execu tion, at any time before the return thereof. BAIL IN ACTIONS BEFORE JUSTICES OF THE PEACE, &C. SECT. 22. When bail is taken in an action before a justice of the peace or police court, the justice or court may issue a scire facias against the bail, although the amount of the debt and costs on the original judgment exceeds the amount to which his jurisdiction is otherwise limited; and the rights and obligations of the bail, and all proceedings as to the surrender of the principal and the action against the bail, shall be substantially the same as are provided with regard to bail when taken in suits in other courts. SECT. 23. When the bail in a suit before a justice of the peace or police court proposes to surrender his principal in court, either during the pendency of the original suit or the scire facias, he shall procure the attendance of some officer qualified to serve legal process in the case, to whom the principal may be committed. SECT. 24. Every such officer who is seasonably notified and requested to attend for the purpose aforesaid, shall attend, and receive and take charge of the principal if committed to his custody by the justice. SECT. 25. When the principal is surrendered in such suit, an entry thereof shall be made on the record, and he shall be forthwith committed to the officer in attendance, to be conveyed to jail or otherwise disposed of according to law. SECT. 26. If the principal is surrendered before final judgment in the original suit, the bail shall deliver to the officer a copy of the origi nal writ, with the return indorsed thereon, attested by the justice. If the surrender is after final judgment in the original suit, the bail shall deliver to the officer a copy of the entry of the surrender, attested in like manner. The officer shall deliver the copy to the jailer, on committing the prisoner to his custody; and such copy shall be a sufficient warrant to the officer and the jailer, for receiving, committing, and holding the prisoner according to law. SECT. 27. The officer shall be allowed the same fees, to be paid by the bail, as are provided for arresting and committing a defendant on mesne process. SUPPORT OF PRINCIPAL. SECT. 28. When a principal, surrendered by his bail and committed bail and claims to jail, claims support as a pauper, the jailer may require the plaintiff, support as pau- or his attorney in the suit, to give security or advance the money for the support of the defendant in like manner as if the commitment had per, &c. been made by an officer. If the plaintiff neglects so to do for twentyfour hours after being so required, the jailer may discharge the defendant. surrendered by per, &c. SECT. 29. The jailer in such case may at the time of the surrender When debtor is demand of the bail the advance of money for the support of the prin- bail and claims cipal or security therefor, instead of demanding the same of the plain- support as pautiff; and if the bail neglects, for twenty-four hours after such demand, R. s. 97, § 55. to give such security or advance the money for the support of the principal, the jailer may discharge him; and the bail and the principal shall thereupon continue liable to the plaintiff in all respects as if the surrender had not been made. SECT. 30. The bail, if such demand is made of him, shall be liable When bail liafor the support of the principal until the expiration of seven days after ble for support of prisoner. he has given notice of the surrender to the plaintiff or his attorney in R. S. 97, § 56. the suit. of creditor commences. SECT. 31. The plaintiff shall be liable for the support of the defend- When liability ant after the expiration of said seven days; and if he neglects to advance the money or give security therefor as before provided at or R. S. 97, § 57. before the expiration of said time, the jailer may discharge the defendant. CHAPTER 126. OF PROCEEDINGS AGAINST ABSENT DEFENDANTS AND UPON INSUFFI SECTION CIENT SERVICE. 1. Actions against persons out of the state. 3. Each of several defendants may have cross- 4. Writ, how served in such case. 5. Proceedings in such actions. Following provisions not to apply. 6. Notice to be given to defendant out of state, 7. If defendant does not appear, &c., after persons out of 3 Mass. 420. 10 Cush. 183. SECTION 1. No personal action shall be maintained against a per- Actions against son who is out of the state at the time of the service of the summons, the state. unless he had before that time been an inhabitant of the state, or unless R. S. 90, § 44. an effectual attachment of his goods, estate, or effects, is made on the 5 Met. 400. original writ, except in cases in which it is otherwise specially provided. 5 Cush. 52. SECT. 2. When an action is brought by a person who is not an in- 3 Gray, 508. habitant of this state or who cannot be found therein to be served with Plaintiff out of process, he shall be held to answer to any action brought against him cross-action, here by the defendant in the first action, if the demands in the two Rs. 90, § 49. cases are of such a nature that the judgment or execution in the one case can be set off against the judgment or execution in the other. state liable to &c. SECT. 3. If there are several defendants in the original action, each Each of several of them may bring such cross-action against the original plaintiff, and defendants may may be allowed to set off his judgment against that which may be re- action. covered against himself and his co-defendants in like manner as if the 4 T. R. 123. latter judgment had been against himself alone. R. S. 90, § 50. 16 Mass. 478. 1 Met. 80. 7 Mass. 140. SECT. 4. The writ in such cross-action may be served on the person Writ, how . case. served in such who appears as the attorney of the plaintiff in the original suit, and such service shall be as valid and effectual as if made on the party himself within this state. R. S. 90, § 51. Proceedings in such actions. visions not to SECT. 5. The court in which the actions or either of them are pendFollowing pro- ing may order continuances as they think necessary or proper to enable the absent party to defend the action brought against him, and also to enable either party to set off his judgment or execution against that which is recovered against him, but the actions shall not be unreasonably delayed by the neglect or default of either party. None of the following rules concerning actions brought against persons out of the state shall apply to a cross-action brought under the three preceding sections. Notice given to defendant out of state, or whose residence is unknown, &c. R. S. 90, § 53. R. S. 92, § 3. SECT. 6. If a defendant is absent from the state or his place of res idence is not known to the officer serving a writ, and no personal ser vice is made on him, or if the service of a writ is defective or insufficient by reason of mistake on the part of the plaintiff or officer as to the place where or the person with whom the summons or copy ought 2 Met. 135, 490. to have been left, the court upon suggestion thereof by the plaintiff shall order the action to be continued from term to term until notice of the suit is given in such manner as the court may direct. In any case in which the defendant does not appear, the court may in their discretion order the action to be continued and further notice given to him in such manner as the court may direct. 5 Met. 403. 11 Met. 372. 2 Cush. 32. 5 Cush. 52. 6 Cush. 354. 3 Gray, 509. See Ch. 123, §§ 25-28. If defendant does not appear, &c., after no SECT. 7. If, after such notice in either case, the defendant does not appear at the term to which the action is continued, and within the tice, judgment first ten days of the term file such affidavit as he would have been required to file if sufficient legal service had been made upon him before the entry of the action, judgment may be rendered against him upon default. to be rendered, &c. R. S. 90, § 53. R. S. 92, § 3. Bond, when to R. S. 92, § 6. 19 Pick. Gł. 13 Gray, 1. how taken R. S. 92, § 7. SECT. 8. When judgment in a personal action is rendered as provided in the preceding section upon the default of a defendant who is out of the state or whose residence is unknown, the plaintiff shall not take out execution thereon within one year thereafter, unless he first gives bond to the defendant with one or more sufficient sureties in a sum equal to double the amount recovered, with condition to repay the amount so recovered if the judgment is reversed, or so much of the amount as shall be recovered back upon a review to be brought by the original defendant at any time within one year after the original judg ment. SECT. 9. The bond shall be deposited with the clerk of the court for and disposed of the use of the defendant, and the clerk shall decide on the sufficiency of the sureties, saving a right of appeal from his decision to any justice of the court in which the judgment is rendered. Execution levied on real defendant. SECT. 10. If the execution in such action is levied on real estate, no estate of absent alienation thereof by the original plaintiff shall prevent the defendant from retaking the same, or as much thereof as may be necessary to satisfy the judgment he recovers on such review: provided, that the writ of review be sued out within one year after the original judgment R. S. 92, § 8. Judgment in a real action against him. K. S. 92, § 9. Absence of one of several defendants in actions on tort. R. S. 92, § 10. SECT. 11. If the original judgment be for seisin of the premises demanded in a real action, the demandant may take out his writ of seisin without giving bond; and if the judgment be reversed in whole or in part upon a review, whether sued out within the year or afterwards, the original tenant may have restitution of the premises in like manner as upon a reversal on a writ of error. SECT. 12. In personal actions founded on tort against several defendants, if any one of them is out of the state at the time of the service of the writ, the suit shall be conducted with regard to him, in every thing relating to the service of the writ, judgment, review thereof, and execution, in like manner as if he had been the only defendant in the case. one of several tract. SECT. 13. If an action founded on contract is brought against several Absence of defendants, of whom any one is within the state and any other is absent, defendants in and the plaintiff recovers judgment, he shall take it without any of the actions on conconditions and regulations above provided as to review, giving bond, R. S. 92, § 11. and alienating real estate; but he shall not take judgment against any such absent defendant, unless under such circumstances as would have entitled him to judgment against the absent party if he had been the only defendant in the case. Action may those served with process. Mass. 423. Mass. 193. proceed against R. S. 92, § 12. 8 5 13 Met. 256. SECT. 14. If an action founded on contract is brought against several defendants, and the writ is duly served on one or more of them, but no legal service is made on the others, either by attachment of property or otherwise, by reason of their absence from the state, or for other sufficient cause, the action may proceed against those who are duly served with process, without further proceedings against the others. SECT. 15. If judgment is rendered against one or more of several Other conjoint contractors in the manner provided in the preceding section, and to new action. remains unsatisfied, an action on the same contract may be afterwards R. S. 92, § 13. maintained against any of the other joint contractors, in like manner as if the contract had been joint and several. SECT. 16. In real actions against several tenants, if any one of them is out of the state the suit shall be conducted with regard to him in like manner as if he had been the only person sued. tractors liable 6 Cranch, 254. 13 Mass. 148. of Absence of one several tenR. S. 92, § 14. ants, &c. of one of several defendants SECT. 17. In mixed actions, if the defendant or any one of two or more joint defendants, is out of the state, the suit shall be conducted in mixed ac with regard to the absent defendant, in every thing relating to the tions. R. S. 92, § 15. judgment, review, and bond, in the manner before provided with respect to personal actions founded on tort; and in every thing relating to the service of the writ and the notice of the suit to be given to the defendant, it shall be considered and conducted as a real action. CHAPTER 127. OF ACTIONS WHICH SURVIVE, AND THE DEATH AND DISABILITIES OF 6. Executor or administrator may prosecute DEATH OF PARTIES ENTITLED TO APPLY TO or defend. COUNTY COMMISSIONERS. 21. If person having right to jury, &c., dies, MARRIAGE. 22. Marriage of a female party. INSANITY. 23. Insanity of a party. DEATH OR REMOVAL OF A PUBLIC OF- 24. Death or removal of a public officer, &c. Actions which survive. R. S. 14, § 66. R. S. 93, § 7. 1842, 89, §.1. 1852, 312. 6 Greenl. 427. 8 Greenl. 128. 3 Mass. 228. 4 Mass. 480. 7 Mass. 395. 5 Pick. 257. See Ch. 150, § 35. Death of officer R. S. 99, § 96. Judgment in against the executor, &c. R. S. 90, § 98. General provision as to actions which survive. R. S. 93, § 1. 4 N. H. 385. Executor or administrator or defend. R. S. 93, § 2. ACTIONS WHICH SURVIVE. SECTION 1. In addition to the actions which survive by the common law the following shall also survive actions of replevin; of tort for assault, battery, imprisonment, or other damage, to the person; for goods taken and carried away or converted by defendant to his own use; or for damage done to real or personal estate; and actions against sher iffs for malfeasance or nonfeasance of themselves or their deputies. 19 Pick. 47. 21 Pick. 250. 6 Met. 94. 4 Cush. 413. 5 Cush. 543. 9 Cush. 108, 478. 7 Gray, 544. DEATH OF PARTIES IN PERSONAL ACTIONS. SECT. 2. When goods or chattels attached by an officer are claimed or taken away by another person, and an action of replevin or tort therefor is brought by or against the officer, the action shall not be abated by the death of either party, but may be prosecuted by or against the executor or administrator of the deceased party. SECT. 3. If judgment in such case is recovered by the executor or administrator of the officer, the goods or money recovered shall be held, appropriated, and disposed of, in the same manner as they would and ought to have been by the officer if he had lived and recovered the same himself. SECT. 4. If judgment is rendered against the executor or administra tor of the officer, the goods and damages recovered shall be returned, delivered, and paid in full, by the executor or administrator, if he has sufficient therefor, although the estate of the deceased is insolvent. SECT. 5. In personal actions, the cause of which survives, if there is only one plaintiff or defendant, and the sole plaintiff or defendant dies after the commencement of the action at any time before final judgment, the action may proceed and be prosecuted by or against the surviving party, and the executor or administrator of the deceased party, in the manner provided in this chapter. SECT. 6. The action or an appeal therein may be entered in such may prosecute cases, if not already entered, and the death of the party suggested on the record; and his executor or administrator may, at the same term or within such further time as the court shall allow, appear and take upon himself the prosecution or defence of the suit; and it shall be thenceforth conducted in the same manner as if it had been originally com menced by or against the same executor or administrator. may be cited for that pur pose. R. S. 93, § 3. Citation, how served and returned. R. S. 93, § 4. Executor not SECT. 7. If the executor or administrator does not voluntarily ap pear, the surviving party may take out a citation from the court or justice of the peace before whom the cause is pending, requiring the executor or administrator to appear and take upon himself the prosecution or defence of the action. SECT. 8. The citation if taken in term time may be made returnable at the same or the next succeeding term, as the court shall order; if taken in vacation, it shall be returnable at the next term; and if issued by a justice of the peace, or police court, it shall be made returnable at such time as the justice or court shall direct. In all cases it shall be served fourteen days at least before the return day. SECT. 9. If the executor or administrator does not appear on the re appearing, &c., turn of the citation, or within such further time as the court or justice may allow, he shall be nonsuited or defaulted, and judgment shall be rendered against him in like manner as if the action had been originally commenced by or against him, in his said capacity, except as provided may be nonsuited or defaulted. R. S. 93, § 5. Provision as to costs in such case. R. S. 93, § 6. in the following section. SECT. 10. When an executor is nonsuited or defaulted without hav ing taken upon himself the prosecution or defence of the action, he shall not be personally liable for costs in the action; but the estate of the deceased in his hands shall be liable for the costs, as well as for the debt or damages if any are recovered. |