tached. company, turnpike company, or other corporation, to- how to be atgether with the interests, rents and profits, due, and growing due thereon, shall be liable to be attached, in any action at law, and levied upon and sold to satisfy any judgment and execution. And the attachment of any such rights or shares shall be, by leaving a true and attested copy of the writ, by the officer serving the same, with his proper endorsement thereon, as in other cases, with the defendant, or at his usual place of abode, if within this state, and with the cashier of such bank, or with the secretary or clerk of such company or corporation; and such rights or shares, together with the interests, rents and profits, shall be holden to respond the judgment, which may be recovered in such action, for the term of sixty days after the rendering thereof, and no longer.* levied on, by SECT. 7. No estate attached as aforesaid, shall be When estate atheld to respond the judgment obtained by the plaintiff tached must be at whose suit the same is attached, either against the execution. debtor, or any other creditor, unless such judgmentcreditor take out execution on such judgment, and have the same levied on goods or personal estate, within sixty days after final judgment, or on real estate, and have the same appraised and recorded, within four months after such judgment shall have been obtained: or if said goods or estate are encumbered, by any prior attachment, the execution to be levied as aforesaid, within the respective times aforesaid, after such incumbrance is removed.† dents. SECT. 8. When the defendant is not a resident or in- Service of writs habitant of this state, and has estate within the same on non-resiwhich is attached, a copy of the writ, describing the estate, shall be left, by the officer, with the agent or attorney of the defendant, within this state; and when land is attached, a like copy shall be left in the office of the town-clerk where the land lies, as in cases where the defendant belongs to this state: but if the defendant has not any agent or attorney within this state, then a like copy shall be left with him, who has the charge or possession of the estate attached. SECT. 9. On writs of scire facias, in which execution Attachment on may be issued against the person and property of the scire facias. defendant, on the judgment that may be rendered thereon, the process may be by attachment of the person or property of the defendant, to be proceeded with as to bail, and in all respects, as in ordinary cases.‡ * 6 C. R. 434. 4 C. R. 343. Act of 1824. +9 C. R. 533. 7 C. R. 123. 3 C. R. 55. 4 C. R. 237. 9 C. R. 392. 5 C. R. 129. Time of return. Appearance of defendant. default. SECT. 10. Officers serving writs shall return them, or cause them to be returned, to the clerks of the courts to which they are made returnable, at least forty-eight hours prior to the day of the session of the court: and writs returnable to justices of the peace shall be returned at least twenty-four hours before the day of trial. SECT. 11. When any process is duly served on any defendant or defendants, and returned to the court to which it is made returnable, if he or they do not appear, Judgment by his or their default shall be recorded, and judgment be rendered against them, unless he or they shall come into court, on or before the second day of its session, and move for a trial; in which case he or they shall be admitted thereto, upon paying to the plaintiff his cost to that time; and the action shall be entered anew for trial. Continuance is out of the state. SECT. 12. When the defendant, being an inhabitant when defendant of this state, is absent out of the same, at the time of the commencement of the suit, and does not return before the first day of the sitting of the court, such suit shall be continued to the next term; and if the defendant does not return, or appear by attorney, and be so remote that notice of the suit could not have been conveyed to him, such suit may be continued to the next term, and no longer: and if he does not then appear, judgment may be rendered against him on default of appearance. But if the defendant is not an inhabitant, or resident of this state, at the commencement of the suit, and does not appear and answer to the suit, by himself or attorney, then the court shall continue the same to the next term, and may direct notice to be given to the defendant of the pendency of the suit, by publication in some newspaper, or otherwise, as they may judge expedient: and if the defendant should not then appear, by himself or attorney, and be so remote that it is not probable that notice has been received by him of the pendency of the suit, the court shall continue the suit to the next term, and no longer; and if he does not then appear, may render judgment against him, on default. And in such cases, where judgment shall be entered up against him on default, after such continuances, execution shall not issue thereon, until the plaintiff shall have lodged with the clerk of the court, a bond, with one or more sufficient sureties, to the adverse party, in double the sum of such judgment, to refund the whole, or such part of it, as the court, upon a writ of error, or petition for a new trial, to be brought within one year after such judgment, shall adjudge and Bond. determine that the plaintiff had no right to recover: SECT. 13. And in every case, where it appears that New trial when the defendant had not actual notice of the suit, or a rea- defendant has sonable opportunity to appear and make his defence, no notice of the court may, on petition, grant him a new trial, if they find he had just ground of defence.† suit. SECT. 14. In actions on joint securities, where all the Service in acdefendants are not inhabitants of this state, the service tions on joint of the process upon such of the defendants as are in- contracts. habitants of this state, shall be sufficient notice to maintain the suit against all the defendants. And if any of the defendants, on whom the process was not served, shall be aggrieved by the judgment, he may be relieved by a new trial, which the court is impowered to grant, upon a petition for the same, if they shall find, that the defendant has just cause of defence. SECT. 15. When a suit is brought before a justice of Continuances the peace, against a defendant who is an inhabitant of by justices of the peace. the state, but is absent at the commencement of the suit, and does not return before the trial, such action shall be adjourned a reasonable time, not less than one month, nor more than nine months, to give an opportunity for the defendant to return, or to send notice to him. SECT. 16. When a suit is brought before a justice of the peace, against a defendant who is not an inhabitant or resident of this state, and actual notice is not given to him, the action shall be adjourned for a term not less than three, nor more than nine months. grant new trial. SECT. 17. In all cases where a judgment shall be When defendrendered, by a justice of the peace, against a defend- ant has no notice, in suits beant, who is absent from the state till after the time of fore justices of the trial, and has no notice of the suit, he may apply to the peace, counthe county court, in the county where the judgment is ty court may rendered, for a new trial; which court is empowered to grant the same, and to proceed to final judgment therein, if the defendant shall make it appear, that the judgment was wrongfully obtained against him, and that he has a good ground of defence; which application shall be made within six months after his return into * 8 C. R. 115. 3 C. R. 352. +1 Day 141. 2 Day 552. #3 C. R. 474. Appearance of plaintiff. Withdraw or nonsuit. Name of attor is not inhabit. ant of the state. this state, and within three years from the rendition of the judgment. SECT. 18. If the plaintiff, in an action returned to any court, and entered in the docket, on being called three times after twelve o'clock on the first day of the sitting of the court, shall not appear, either by himself or attorney, to prosecute the action, he shall be nonsuited, and pay cost to the defendant, and for entering the action, as if it had been prosecuted in said court. And the plaintiff, in all actions brought to any court, shall have liberty to withdraw the same, or become nonsuit, before the jury have given in their verdict; in which case he shall pay cost to the defendant, and may bring a new suit; such withdraw or nonsuit having been first recorded. SECT. 19. In all actions, brought by any person, who ney to be enter- is not an inhabitant of this state, to any court in this ed, if plaintiff state, the clerk of such court shall enter in the record of the cause, the name of the attorney, by whom such stranger appeared; which record shall be good evidence, that such attorney was the lawful attorney of such stranger. New bond of prosecution, when to be given. Venue. SECT. 20. In any action, where bond for prosecution is not given at the time of praying out the writ, or where the bond taken is insufficient, the court, or justice of the peace, before whom the same is brought, on motion of the defendant, and on satisfactory proof that the plaintiff, or his surety, is not able to pay the bill of cost that may be recovered in the suit, shall order the plaintiff to give a bond, with sufficient surety, to prosecute his action to effect, and pay all damages in case he make not his plea good, before proceeding to trial of the same; and if the plaintiff shall neglect or refuse to give such bond, he shall be nonsuited. SECT. 21. All suits wherein the title to land is to be tried and determined, and all actions of trespass quare clausum fregit, shall be brought and tried in the county where the land lies: and all other actions, which may be brought before the superior or county courts, shall be brought and tried in that county, where the plaintiff or defendant dwells, if they, or either of them, are inhabitants of this state: but if neither of them are inhabitants of this state, then the action shall be brought and tried in the county where the defendant is, when the suit is commenced, or where the estate is, which is attached, if the defendant is not within this state.* SECT. 22. All actions cognizable by a justice of the *6 C. R. 198. 4 C. R. 343. 5 C. R. 104. 1 Day 263. peace, shall be brought and tried in those towns where the plaintiff or defendant dwells: but if there be no justice of the peace in either of said towns, who can lawfully try the cause, then the plaintiff may bring his suit before a justice of the peace in one of the towns next adjoining to the place of his abode.* peace. SECT. 23. All causes wherein the title to land is not Jurisdiction of concerned, and wherein the debt, trespass, damage or justices of the other matter in demand, does not exceed thirty-five dollars, shall be heard and determined by a justice of the peace provided that in all cases where the sum demanded shall exceed seven dollars, except in actions on notes or bonds, vouched by two witnesses, and given for money only, an appeal shall be allowed to the next Appeal. county court: and when an appeal shall be allowed by a justice of the peace, to the county court, the party so appealing, shall give sufficient bond, with surety, to the adverse party, to prosecute such appeal to effect, and to answer all damages in case he make not his plea good.† SECT. 24. When any plea shall be made in abate- Abatement. ment of any writ or process, before the superior or county court, or before a justice of the peace, if it be ruled in favour of the defendant, the plaintiff shall have liberty to amend the defect, on paying to the defendant Amendment. his cost to that time; and then to proceed in the same manner as he might have done, had there been no de fect in the writ: and in case the defendant appeal from Appeal on plea a judgment rendered on a plea in abatement, and shall of abatement. not make good his plea, by the judgment of the court to which he appeals, he shall be liable to pay cost, and execution shall issue against him for the same, though the cause shall finally be decided in his favour.‡ marries, writ SECT. 25. No action commenced by a single woman, If single wowho intermarries during the pendency thereof, shall man plaintiff abate on account of such intermarriage, provided the not to abate. husband shall appear in court, and cause such marriage to be suggested on the record; and he may then proceed in the same manner, as if the suit was commenced after such intermarriage. SECT. 26. No writ, pleading, judgment, or any kind Not to abate of proceeding in court, or course of justice, shall be for circumstantial defects, abated, suspended, set aside or reversed, for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court. *8 C. R. 137. † 10 C. R. 60. 7 C. R. 498. 6 C. R. 413. 420. .4 C. R. 538. 3 C. R. 108. Act of 1826. Act of 1828. |