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Cornell University Library 
 
 KFM4713.G79 
 
 Treatise on the practice of the Circuit 
 
 3 1924 024 688 669 
 
J A Cornell University 
 
 ^' J Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024688669 
 
A TKEATISE 
 
 PRACTICE OF THE CIRCUIT COURTS 
 
 STATE OF JtoCHIGAN; 
 
 ^ f 
 
 EMBRACING 
 
 PRACTICAL FORMS OF PROCEEDINGS THEREIN. 
 
 bt sanford m. green, 
 
 ONE OP THE CIRCOTT JUDGES. 
 
 DETROIT : 
 
 S. D. ELWOOD, LAW BOOKSELLER AND PTJBLISHBE. 
 
 1860. 
 
Ihm 
 
 Entered, according to Act of Congress, in the year eighteen hundred and sixty, 
 
 bt sanford m. green, 
 
 in the Clerk's office of the District Court of the District of Michigan. 
 
 Banks & Brothers, 
 Wew York, 
 
PREFACE. 
 
 In offering to tlae profession in tKis state a work on the practice 
 of the circuit courts, the compiler of this volume is conscious that 
 he has attempted to supply an existing necessity, -which is felt alike 
 by the bar, the judges, and other oflicers of the several circuit 
 courts. Hitherto, the changes of our judicial system have been so 
 frequent, that any attempt to treat of the practice in our courts, as 
 a system, would have been attended with no very -valuable result ; 
 and when the idea of undertaking to supply, to some extent, the 
 existing necessity occurred to the author, and, until he had con- 
 sulted many of the leading members of the bar upon the subject, 
 he thought of attempting nothing more than the preparation of a 
 manual of forms of proceedings, adapted to the statutes of this 
 state, treating of the practice no further than to indicate the chan- 
 ges from, and modifications of, the general rules and principles 
 recognized in the courts of common law, resulting from the pecu- 
 liar constitution of our courts, and the various statutory provisions 
 from time to time enacted for the purpose of simplifying the prac- 
 tice, and dispensing with all useless forms and technicalities. Sev- 
 eral considerations, however, concurred to induce a change of this 
 plan. It appeared, upon inquiry, that the works commonly used 
 and regarded as the best guides in matters of practice, were no 
 longer found in the hands of booksellers, and there was no proba- 
 bility of their republication. The excellent works of Payne & 
 Duer, Graham and Burrill, were superseded by the Code of Pro- 
 
IV PREFACE. 
 
 cedure in New York ; and ttose of Chitty, Tidd, Archbold and 
 Saunders, were available only as authoritative expositors of general 
 principles of common law practice, and none of them were adapted 
 to such a judicial organization and system of practice as now exists 
 in this state. 
 
 It seemed desirable, also, that uniformity in the practice in the 
 several co-ordinate courts of general original jurisdiction in the 
 state should be secured, as far as practicable ; and it was believed 
 that a work embracing, in a concise form, an exposition of those 
 general principles which are recognized as controlling in the ad- 
 ministration of justice, would contribute to the attainment of this 
 end. Prior to January, 1858, the same judges who held the cir- 
 cuit courts were also judges of the supreme court, and conse- 
 quently had frequent opportunities of conferring together upon 
 all questions of practice arising in their several circuits, and thus a 
 general uniformity of procedure prevailed, while very few questions 
 relating to the practice in those courts were formally adjudicated 
 and reported among the decisions of the appellate court. Since 
 that period, the judges of the supreme court have been excluded 
 from the performance of circuit court duties, and, consequently, 
 from all practical connection with the practice of the subordinate 
 courts ; while the circuit judges have no duties that call them into 
 association with each other. It is obvious, therefore, that no 
 questions of practice can be settled and reported under the present 
 organization of our courts, except such as can be reviewed in some 
 form of appeal by the supreme court, and that in the large class 
 of cases where the circuit courts must exercise a sound discretion, 
 a great diversity may exist in the practice of the different circuit 
 courts. This evil, which is inherent in every judicial system 
 under which the judges of that court, whose decisions alone are 
 authoritative and binding upon those in which actions originate 
 and are prosecuted to judgment, have no participation in directing 
 the progress, or in the trial of causes, except in a few special cases, 
 which are governed by principles peculiar to themselves, can only 
 be modified, to a limited extent, by a work of this kind, should it 
 meet the general approval of the judges and the bar. The judicial 
 system now existing under the new constitution, possesses a more 
 
PREFACE. V 
 
 fixed and permanent character tlian any former one, because tlie 
 jurisdiction of the several courts is therein prescribed, and the 
 power of the legislature over their organization is confined within 
 such narrow limits, that no material change can be made without 
 first amending the constitution, and consequently greater perma- 
 nency may be expected in their practice. 
 
 In order to furnish as much matter as practicable in one volume 
 of convenient size, the usual headings of the subdivisions of chap- 
 ters have, as far as practicable, been omitted, and their places sup- 
 plied by italicizing the significant words in the commencement of 
 each subdivision which indicate the subject treated of. By the 
 adoption of this course, and avoiding all needless repetition, the 
 author has been enabled to treat of every branch of the practice 
 usually treated of in works upon that subject, which is applicable 
 to our system, and to introduce a variety of other matters of equal 
 importance to the profession, not generally embraced in such a 
 work. 
 
 The forms of proceedings given in this volume constitute a very 
 important feature of the work. They have been prepared with 
 much care and labor, and in all cases where they relate to pro- 
 ceedings which are regulated by statute, the utmost exertion has 
 been used to make them conform to its requirements ; and although 
 some errors may be found in them, it is confidently believed that 
 they may be safely relied upon in the cases to which they are 
 applicable. As established precedents of proceedings at the com- 
 mon law constitute the most safe and reliable expositions of its 
 principles in the cases to which they apply, so a precedent framed 
 under a statute should be a most sure illustration of its spirit and 
 intent, and this can only be produced by a careful study and 
 adequate comprehension of the statute itself. 
 
 Another motive for giving this work a more comprehensive 
 character than was at first contemplated, has been to attain, as far 
 as was practicable, a full and harmonious development of the various 
 modifications which have been introduced by the legislature, and 
 by the supreme court in the exercise of the powers conferred upon 
 it for that purpose, to simplify and abbreviate the pleadings and 
 proceedings, expedite the decision of causes, remedy existing abuses 
 
VI PREFACE. 
 
 and imperfections, and abolish unnecessary forms and teclinicalities. 
 That much remains to be done for the complete and perfect accom- 
 plishment of these ends, will not be disputed ; but it may safely be 
 affirmed that if full effect were everywhere given to the rules and 
 statutory provisions directed to these objects, legal proceedings 
 under our system would be found as direct, simple, efB.cient, and 
 certain in the attainment of justice, and attended with as little 
 necessary expense to the parties and the public, as those of any 
 other state or country. But until new precedents are framed, and 
 established by the sanction of the courts, or the general approval 
 of the bar, many new, but wise provisions will continue to be dis- 
 regarded, and old forms, cumbrous with useless verbiage, contimie 
 to be used because they are familiar, and are therefore deemed the 
 most safe. As soon, however, as new precedents become established 
 and familiar to the practitioner, they are used with confidence, and 
 useless and inappropriate forms are discarded. How far this work 
 shall accomplish the aim of the author in these respects, it is not 
 for him to predict. The preparation of it has been attended with 
 many interruptions, and its publication with disadvantages, which, 
 it is hoped, may be regarded as some apology for whatever errors 
 it may be found to contain. 
 
 PONTIAC, September, 1860. 
 
CHAPTER I. 
 
 JUEISDICTION OF THE CIECQIT COUETS, OFFICEES 
 THEEEOF, TEEMS OF THE COUETS, AND GENEEAL 
 EOUTINE OF BUSINESS THEREIN. 
 
 JURISDICTION. 
 
 Sec. 1. The judicial power of the state is, by the constitution, 
 vested in one supreme court, and in circuit courts, in probate 
 courts, in justices of the peace, and such municipal courts of, 
 civil and criminal jurisdiction, as have been or may be established 
 by the legislature in cities. (1) 
 
 § 2. Section 8 of the same article declares that the circuit 
 courts shall have original jurisdiction in all matters, civil or crim- 
 inal, not therein excepted, and not prohibited by law ; and ap- 
 pellate jurisdiction from all inferior courts and tribunals, and a 
 supervisory control of the same ; and that they shall also have 
 power to issue writs of habeas corpus, mandamus, injunction, quo i 
 warranto, certiorari, and other writs necessary to carry into effect ' 
 their orders, judgments and decrees, and give them a general / 
 control over the inferior courts and tribunals within their respect- 
 ive jurisdictions. 
 
 § 3. The legislature have provided(2) that the said circuit 
 courts, within and for their respective counties, shall have and ex- 
 
 (1) Const, art. vL, sec. 1. (2) Comp. L. 994. 
 
2 CIRCUIT COURTS. 
 
 ercise original and exclusive jurisdiction of all civil actions and 
 remedies, of whatever name or description, and of all prosecu- 
 tions in the name of the people of this state, for crimes, misde- 
 meanors, offences and penalties, except in cases where exclusive 
 or concurrent jurisdiction shall be given to, or possessed by 
 some other court or tribunal, in virtue of some statutory provi- 
 sions, or of the principles and usages of law, and shall have such 
 appellate jurisdiction and powers as may be provided by law ; and 
 that the said courts shall also have and exercise, within and for 
 their respective counties, all the powers usually possessed and 
 exercised by courts of record at the common law and in equity ; 
 subject to such modifications as may be provided by the laws of 
 this state, for the full exercise of the jurisdiction so conferred. 
 The exceptions to these general powers consist of the exclusive 
 original jurisdiction conferred upon the several probate courts, 
 justices of the peace, and certain municipal courts. 
 
 § 4. The probate courts have original jurisdiction of all mat- 
 ters relating to the settlement of the estates of deceased persons, 
 who were, at the time of their decease, inhabitants of, or residents 
 in the same county, and of all who die without the state, leaving 
 any estate within such county to be administered. They also have 
 power to appoint guardians to minors and others in cases pre- 
 scribed by law, and a general control of their estates.(l) 
 
 § 5. Justices of the peace have exclusive jurisdiction of' all 
 civil actions wherein the debt or damages demanded do not ex- 
 ceed the sum of one hundred dollars, except real actions, actions 
 for a disturbance of a right of way or other easement, actions for 
 libel or slander, or for malicious prosecutions, and actions against 
 executors or administrators as such, or when the title to real estate 
 shall come in question. (2) 
 
 § 6. The several circuit courts of this state are also courts of 
 chancery in and for their respective counties, and, as such, they 
 possess powers and jurisdiction coextensive with the powers and 
 jurisdiction of the court of chancery in England, with the excep- 
 tions, additions and limitations created and imposed by the consti- 
 tution and laws of this state.(3) 
 
 § 7. The officers of the circuit courts consist of circuit judges, 
 
 (1) Oomp. L. 1034. (2) Comp. L. 1044; 3 Mich. R. 139. cijC ^ 
 
 (3) Comp. L. 1006, 1009. 
 
OFFICERS. 6 
 
 circuit court commissioners, notaries public in certain cases, clerks, 
 sheriffs, coroners and attorneys. 
 
 The state is divided into ten judicial circuits, exclusive of the 
 Upper Peninsula, in each of which the electors thereof elect one 
 circuit judge, who holds his office for the term of six years, and 
 until his successor is elected and qualified. They are required to 
 hold a circuit court, at least twice in each year, in every county 
 organized fur judicial purposes, and four times in each year in 
 counties containing ten thousand inhabitants. They are authorized 
 to hold courts for each other at pleasure, and may be required to 
 do so by law in specified cases. They are ineligible to any other 
 than a judicial office during the term for which they are elected, 
 and for one year thereafter.(l) The number of the circuits and of 
 the circuit j udges may be increased by the legislature. 
 
 § 8. The counties of Mackinac, Chippewa, Delta, Marquette, 
 Schoolcraft, Houghton and Ontonagon, and the islands and terri- 
 tory thereunto attached, and the islands of Lakes Superior, Huron 
 and Michigan, and in Green Bay, and the Straits of Mackinac, and 
 the Eiver Ste Marie, are constituted a separate judicial district, 
 and are entitled to a district judge, who is elected by the electors 
 of the district, and performs the same duties therein, and possesses 
 the same powers as a circuit judge in his circuit, and holds his 
 office for the same period. (2) This office, however, may now at any 
 time be abolished by the legislature.(3) 
 
 § 9. The legislature is authorized by the constitution to pro- 
 vide, by law, for the election of one or more persons in each 
 organized county, who may be vested with judicial powers not 
 exceeding those of a judge of the circuit court at chambers.(4) 
 Provision -has accordingly been made, by law, for the election, 
 in each of the organized counties of the state, of one circuit 
 court commissioner, who is, in general terms, vested with judi- 
 cial powers not exceeding those of a judge of the circuit court 
 at chambers. The circuit court commissioners are severally 
 authorized to perform all the duties and execute all the powers 
 which a circuit judge may perform and execute out of court, 
 in all civil cases, subject to certain limitations and restric- 
 tions. He is forbidden to grant any orders to stay proceedings 
 before judgment, in any case in which a verdict shall have been 
 rendered, or any order to stay proceedings on a capias ad respon- 
 dendum. 
 
 (1) Const., art. vl (2) Const, art. xix. 
 
 (3) Schedule, sec. 26. (4) Const., art. vi., sec. 15. 
 
4 CIRCUIT COURTS. 
 
 § 10. When an execution shall have been issued, an order to 
 stay proceedings thereon by a circuit court commissioner does not 
 prevent a levy on property by virtue of such execution, but only 
 suspends a sale thereon until the decision of the proper court upon 
 the matter. Nor can any such commissioner grant any order to 
 stay proceedings on any execution against the body of a defendant, 
 unless such defendant shall have executed to the plaintiff, and de- 
 livered to such commissioner a bond, for the use of such plaintiff, 
 in a penalty double the amount required to be collected by such 
 execution, with two sufficient sureties, who shall swear that they 
 are each worth the amount of such penalty, over and above all debts, 
 conditioned that such defendant shall be found within the county 
 to which such execution was directed, so as to be arrested upon 
 any execution that may be issued against his body upon the same 
 judgment within six months from the date of such bond. 
 
 § 11. Circuit court commissioners must be attorneys and 
 counsellors at law of the supreme court. No such commissioner, 
 having a law partner, in whose name the business of the copart- 
 nership is carried on, is competent to perform any act as such 
 commissioner, in any suit or proceeding in which such partner 
 shall be in any wise interested. Circuit court commissioners are 
 also authorized to discharge, within their respective counties, all 
 such duties as have heretofore been performed by masters in 
 chancery, according to the practice of the courts in chancery 
 proceedings, and may exercise all such other powers as shall be 
 conferred upon them by the several circuit courts within the juris- 
 diction, and under the orders of which, respectively, they may act.(l) 
 
 § 12. They are also empowered, when designated for that 
 purpose by judges of the proper circuit courts, to do and perform, 
 within their respective counties, all the duties heretofore per- 
 formed by injunction masters, under such restrictions and regula- 
 tions as are or may be prescribed by the supreme court; (2) and 
 they are also, by several statutes, authorized and empowered to 
 perform various duties in particular cases. 
 
 § 13. Notaries pvhlic, being attorneys of the supreme court, 
 are authorized by an act of the legislature to perform any duties 
 which are required to be performed by circuit court commis- 
 sioners, in case the circuit court commissioner be attorney, solic- 
 itor or counsel in the suit or matter, or be a party thereto or 
 
 (1) Comp. L. 1107 to 1111. (2) Comp. L. 111. 
 
OFFICEES. 5 
 
 otherwise interested, or unable to act, or incapable of acting 
 therein.(l) But, the constitution having vested the whole judi- 
 cial power of the state in certain specified courts and officers, 
 and provided for the election of all judicial officers by the people, 
 the legislature cannot confer any portion of such judicial power 
 upon any officer not elective, and not so specified ; and, there- 
 fore, the statute above referred to, in so far as it undertakes to 
 confer judicial power upon notaries public in certain cases, is un- 
 constitutional. (2) • 
 
 § 14. In the county of Wayne, two circuit court commis- 
 sioners are required to be elected ; and, by an act passed April 2d, 
 1849, the recorder of the city of Detroit was vested with the 
 powers then exercised by the circuit court commissioner of the 
 county of Wayne. (3) 
 
 § 15. The county clerk of each county is the clerk of the circuit 
 court for such county, and as such is required to attend every 
 term thereof, and. to keep a record of its proceedings under the 
 direction of the circuit judge presiding therein. He is required 
 to provide such books, for entering proceedings in the circuit 
 court of his county, as the judge thereof shall direct. These books 
 consist of a Journal, in which are entered the proceedings of the 
 court during its sittings ; a Common Rule Book, in which all orders 
 to which parties are entitled of course, without special application 
 to the court, and all rules by consent of parties, are entered either 
 in term or vacation ;(4) a Calendar, in which the title of every 
 cause brought into the court is entered, with the date, and a 
 brief note of the filing of every paper, and of the entry of every 
 order or other proceeding in the cause ; and a Special Motion Book, 
 in which all special motions, except motions for continuances, are 
 entered. (5) 
 
 § 16. He has the care and custody of all the records, seals, 
 books and papers pertaining to the office of clerk of such court, 
 and filed or deposited therein. And he is not to suffer or permit 
 any paper whatever, on file in his office, to be taken therefrom 
 without the order of the court, or a judge thereof(6) Each 
 county clerk is required to appoint a . deputy, to be approved by 
 the circuit court, and he may revoke such appointment at his 
 pleasure. The appointment and revocation must be in writing 
 
 (1) Comp. L. 1112. (2) 5 Mich. R. 409. (3) Comp. L. 1111, 1114. 
 
 (4) RiJe 14. (5) Rule 29. (6) Rule 15. 
 
CIECUIT COURTS. 
 
 under his hand, and filed in his office ; and such deputy, when 
 approved and duly qualified, is empowered to perform all the 
 duties of the office of clerk.(l) The particular duties of clerks, in 
 reference to the different proceedings in a cause, will appear in the 
 course of the work. 
 
 '']ss. 
 
 § 1 7. Appointment of deputy cleric. 
 
 State of Michigan, 
 County. 
 
 By virtue of the power in me vested by the statute in such 
 
 case made and provided, I, ■ ', clerk of the said county of 
 
 , do hereby constitute 'and appoint deputy clerk 
 
 of the said county of , to hold the said office during my 
 
 pleasure. 
 
 Given under my hand at , in said county, this — day 
 
 of , A. D. . , county clerk. 
 
 § 18. Approval of appointment of deputy clerk. 
 
 It appearing to the court now here, that ■ — , clerk 
 
 of the county of ,*hath, by writing, under his hand, ■ and 
 
 filed in his office, appointed deputy clerk of said county ; 
 
 and it further appearing, to the satisfaction of this court, that said 
 
 is a suitable and competent person to hold the said 
 
 office, thereupon the appointment aforesaid is hereby approved by 
 the said court. 
 
 § 19. The 'sheriff of each county is elected at the general elec- 
 tion for the term of two years. As soon as may be after entering 
 upon the execution of his office, he must appoint an under sheriff, 
 who shall also be a general deputy, to hold during his pleasure ; 
 and as often as a vacancy shall occur, or such under sheriff become 
 incapable of executing his office, he must appoint another ; and he 
 may appoint as many general deputies as he may think proper. 
 These appointments, and every revocation thereof, must be in 
 writing, under the hand of the sheriff, and filed and recorded in 
 the office of the county clerk. Persons may also be appointed by 
 any sheriff, by an instrument in writing, to do particular acts.(2) 
 
 § 20. The sheriff can hold no other office, and is incapable of 
 holding the office of sheriff longer than four, in any period of six 
 years.(3) No sheriff, deputy sheriff or coroner, can appear in any 
 court as attorney or counsel for any party in a suit ; nor is he 
 allowed to draw, make, or fill up any writ, declaration, plea, or pro- 
 
 (1) Comp. L. 204, 205, and 1115. (2) Comp. L. 205, 206. 
 
 (3) Const., art. x. 
 
OFFICEES. 7 
 
 cess for any such party. (1) It is the duty of the sheriff, as a ministe- 
 rial officer of the court, in person, or by his under sheriifor deputies, 
 to serve or execute, according to law, all its process, writs, precepts 
 and orders, issued or made by lawful authority, and to him di- 
 rected ; to attend the several terms of the circuit court for his 
 county, with 'so many deputies or constables as the court shall 
 have determined to be necessary, to preserve order in court, and 
 to perform the duties of crier of the court, and generally to act 
 therein under the direction of the court. 
 
 § 21. Appointment of under sheriff. 
 State op Michigajst, ) 
 ■ County. \ '^■ 
 
 By virtueof the power and authority in me vested by the 
 
 statute in such case made and provided, I, , sheriff of the 
 
 said county of , do hereby constitute and appoint , 
 
 of said county, my under sheriff, with the power and authority of 
 a general deputy, to hold the said office during my pleasure. 
 
 Given under my hand at , in said countj^, this — day 
 
 of , A. D. . , sheriff. 
 
 § 22. In cases where the sheriff is a party, or interested in the 
 case, the process must be directed to the coroner, who, in such 
 case, is required to execute process of every kind, and perform all 
 the duties of the sheriff. The coroner is elected at the same time 
 and in the same manner as the sheriff, and holds his office for the 
 same time.(2) 
 
 § 23. Attorneys are admitted and licensed by the courts. The 
 several circuit courts have power to grant to any citizen of this 
 state, of good moral character, and of the age of twenty-one years, a 
 license to practice as an attorney and counsellor at law, and solici- 
 tor and counsellor in chancery, upon an examination at any regu- 
 lar term of such court. The examination must be made in open 
 court, and in the presence of the circuit judge ; and tlie applicant 
 can only be admitted when the court is satisiied that he possesses 
 sufficient legal learning and ability to discharge the duties of such 
 office.(3) No particular time is required to be devoted to the study 
 of law under our statutes ; but any citizen of good moral character, 
 and possessing sufficient legal learning and abilitj^, is entitled to a 
 license, upon application therefor in the manner prescribed by the 
 rules and practice of the court. 
 
 § 24. The first of the standing rules of the circuit court re- 
 (1) Comp. L. 207. (2) Comp. L. 210, 211. (3) Comp.L. 1119. 
 
8 CIRCUIT COURTS. 
 
 quires tliat the applicant shall be examined upon the principles of 
 common law, and practice generally, as well at law as in equity. 
 The application must be by petition, addressed to the court, and 
 verified by the oath of the applicant, in which he must state that 
 he is a citizen of the United States, twenty-one years of age, and a 
 resident of the judicial circuit in which he so applies. To such 
 petition there must be annexed a certificate, signed by at least one 
 reputable member of the bar, or some other reputable person, of 
 the good moral character of the applicaut.(l) 
 
 § 25. Petition for license to practice as an attorney, &c. 
 
 To THE Circuit Court for the county of : 
 
 Your petitioner, , respectfully represents that he 
 
 is a citizen of the United States, of the age of twenty -one years and 
 
 upwards, and a resident of the judicial circuit of the state 
 
 of Michigan ; that he has pursued the study of the law during the 
 period of years last past, and believes that he possesses suffi- 
 cient legal learning and ability to discharge the duties of the office of 
 attorney and counsellor at law, and solicitor and counsellor in chan- 
 cery in the several courts of this state. He therefore prays that he 
 may be examined in this honorable court, and, if found duly quali- 
 fied, to the satisfaction of said court, that he may be admitted and 
 licensed to practice as such. . 
 
 § 26. The necessary oath may be taken before any officer 
 authorized by law to administer oaths, and the verification should 
 be attested by a jurat substantially in the following form: 
 State of Michigan, 
 
 County, 
 
 } 
 
 On this — day of , A. D. , before me, a notary 
 
 public [or, as the case may be,] in and for said county of , 
 
 personally came , and made oath that he has read the 
 
 foregoing petition by him subscribed, and knows the contents 
 thereof, and that the same is true in substance and in fact. 
 
 , notary public. 
 
 § 27. Certificate of moral character. 
 
 I do hereby certify that I am well acquainted with 
 
 the applicant named in the annexed petition, and that he is a per- 
 son of good moral character. Dated this — day of , A. D. . 
 
 § 28. On the presentation of such petition, it is the practice of 
 the court to appoint a committee, consisting of three or more of the 
 older and more experienced attorneys of the court then present, to 
 examine the applicant ; and it is the evident intent of the statute 
 
 (1) Rule 2. 
 
OFFICEES. 9 
 
 that this examiuation should be thorough, and sufficiently extended 
 fully to test the applicant's qualifications to enter upon the perform- 
 ance of the important and responsible duties of the office. The 
 license of the court, when granted, is a certificate to the public that 
 the person licensed has furnished reasonable and satisfactory evi- 
 dence of his legal learning and ability, as well as of his good moral 
 character, and the court would fail in its duty to the public, in a 
 matter of great importance to the interests of the community, if it 
 hesitated to refuse a license to any applicant whose qualifications 
 in those respects were doubtful or evidently wanting. 
 
 § 29. If the applicant furnish satisfactory evidence of good 
 moral character, and appears to possess sufficient natural ability, 
 but is deficient in legal learning, the court does not ordinarily re- 
 ject the application, but allows it to stand over to a subsequent 
 term, when a further examination may be had. 
 
 § 30. Entry on admission of applicant. 
 
 In the matter of the petition of , for ) 
 
 a license to practice as an attorney, &c. j 
 
 On reading and filing the petition of , duly veri- 
 fied, with a certificate of his good moral character annexed thereto, 
 after due examination of the said petitioner in open court, and in 
 the presence of the judge thereof, touching his legal learning and 
 ability to discharge the duties of the office of attorney and coun- 
 sellor at law, and solicitor and counsellor in chancery, pursuant to 
 the rules and practice of this court, and the laws of this state ; and 
 the court being satisfied thereof, and that the said petitioner is of 
 good moral character ; therefore it is ordered by the said court 
 
 now here, that the said be, and he is hereby admitted 
 
 and licensed to practice as an attorney and counsellor at law, and 
 solicitor and counsellor in chancery, in the several courts of this 
 state. 
 
 § 81. Every person so admitted must take and subscribe the 
 oath of office prescribed by the constitution, sign the roll of attor- 
 neys, and pay to the clerk a fee of two dollars ; and thereupon he 
 is entitled to a certificate from the clerk, under the seal of the court, 
 of his examination and admission.(l) 
 
 § 32. ChrKs certificate of admission, dec. 
 State of Michigan, [ 
 
 County, j '' " 
 
 I, ; clerk of the circuit court for the said county 
 
 of , do hereby certify, that I have inspected the records of said 
 
 (1) Rule 3. 
 
10 CIECUIT COURTS. 
 
 court remaining in my office, and find there the record of an order 
 of said court, in the words and figures following, to wit : [here 
 copy the order of admission with the proper caption, and then add 
 as follows :] and I do farther certify, that upon the entry of the 
 
 said order, the said took and subscribed the oath of 
 
 of&ce prescribed by the constitution of this state, and subscribed 
 the roll of attorneys, pursuant to the rules and practice of the said 
 court. 
 
 In testimony whereof, I have hereunto set my hand, and 
 [- 1 affixed the seal of the said court, on this — day 
 
 L -I of , in the year of our Lord one thousand eight 
 
 hundred and . , clerk. 
 
 § 83. Attorneys, &c., are privileged from arrest in certain cases. — 
 All officers of the several courts of record are liable to arrest, and 
 may be held to bail in the same manner as other persons, except 
 during the actual sitting of any court of which they are officers ; 
 and when sued with any other person, such officers are liable to 
 arrest, and may be held to bail as any other persons during the 
 sitting of the court of which they are officers ; but no attorney, 
 solicitor or counsellor is exempt from arrest during the sitting of 
 the court of which he is an officer, unless he shall be employed in 
 some cause pending, and then to be heard in such court.(l) If an 
 attorney, while privileged, be arrested, the court will immediately, 
 upon motion, order him to be discharged on filing common bail. (2) 
 
 § 34. Attorneys, solicitors and counsellors may be removed or 
 suspended, by the several courts in which they are authorized to 
 practice, when guilty of any deceit, malpractice, crime or misde- 
 meanor; but no attorney can be removed or suspended until a 
 copy of the charges against him shall have been delivered to him 
 by the clerk or register of the court, and opportunity given him 
 to be heard in his defence. A removal or suspension by the su- 
 preme court, operates as a removal or suspension in every court in 
 the state, but in every other case the removal or suspension is 
 confined to the court in which it is declared.(3) 
 
 § 35. No person is allowed to practice as an attorney- and 
 counsellor at law, or solicitor and counsellor in chancery, unless 
 he shall be approved by the court for his good character and Icarn- 
 ing.(4) Under this provision of the statute, it was held, in the 
 
 (1) Comp. L. 112'! ; Graham's Practice (2d ed.) 37, 38. 
 
 (2) Gr. Pr. (2d ed.) 126. (3) Comp. L. 1116, 1117. 
 (4) Comp. L. 1116. 
 
OFFICEES. 11 
 
 case of Mills, an attorney, &c.,{V) that when the reputation of an 
 attorney for truth and veracity, after his admission, became so 
 notoriously bad that he was not to be believed under oath, he was 
 liable to be removed ; and that the court may remove an attorney 
 for other causes than those mentioned in the statute, which is not 
 to be construed as restrictive of the general powers of the court 
 over its officers. Ch. J. Whipple, in delivering the opinion of 
 the court in that case, justly remarks : " That no person can faith- 
 fully and honorably discharge the delicate and responsible duties 
 of an attorney, unless fortified by strong moral principles, is too 
 clear for argument. The nature of those duties necessarily implies 
 the possession of high moral character, in order to their conscien- 
 tious performance. This our statute contemplates, for it is only 
 those who are approved of by the court for their good character, 
 who are permitted to wear the honors and bear the responsibilities 
 of an attorney." 
 
 § 36. The mode of procedure, to effect the removal or suspen- 
 sion of an attorney, is by charges to be presented to, and filed in 
 the court. Specific acts should be charged with reasonable par- 
 ticularity, so that the person charged may have an opportunity of 
 answering them ; and they ought to be made by the prosecuting 
 attorney, or some other attorney of the court, or reputable citizen, 
 and verified by oath. The practice in such cases in this state has 
 ordinarily been — upon the presentation of charges, if they appear 
 to the court to be in due form, and to be such as to call for its 
 action thereon — for the court to allow them to be filed, and there- 
 upon to enter an order that the clerk serve a copy thereof upon 
 the attorney, and that he answer the same within such time after 
 service of such copy, and of a copy of such order, as may seem 
 reasonable, and be specified therein. 
 
 § 37. If the respondent deny the truth of the charges, or fail 
 to answer them within the time limited therefor, or within such 
 further time as may be allowed for that purpose, an order is then 
 made referring it to the circuit court commissioners of the county, 
 to_take proofs and report the same to the court. After the proofs 
 are taken and reported to the court, the matter may be argued and 
 decided in the same manner as a motion or petition. If the re- 
 spondent appear and admit the truth of the charges, and they seem 
 to the court to be sufficient to require a removal or suspension, an 
 order is thereupon made accordingly ; but if, in any case, the court 
 
 (1) 1 Mich. E. 392. 
 
12 CIRCUIT COURTS. 
 
 shall be of tlie opinion that the charges do not substantially present 
 a case requiring its action in the premises, or that they are not 
 established by the proofs, it will dismiss the proceeding. 
 
 § 38. Charges against an attorney, and petition for his removal. 
 
 To THE Circuit Court for the county of — ^ : 
 
 , prosecuting attorney of the said county [or, an 
 
 attorney and counsellor of said court, or, a citizen of the state of Michi- 
 gan, residing in ], respectfully represents and charges, that 
 
 Y. Z., an attorney and counsellor at law, duly licensed to practice 
 as such in this honorable court, hath been, and is, guilty of the 
 following misconduct in his said ofiBce of attorney and counsellor 
 at law, to wit : 
 
 1. That the said Y. Z., having been employed by A. B., of 
 
 , as his attorney to prosecute a certain suit in this court in 
 
 his behalf, against one C. D., to recover from the said C. D. the 
 value of a certain horse of him, the said A. B., which had there- 
 tofore been unlawfully taken from him by the said C. D., and con- 
 verted to his own use, commenced the said suit and prosecuted the 
 
 same as such attorney until on or about the day of , 
 
 when an issue of fact was joined therein ; and that afterwards, to 
 
 wit : on or about the — day of , A. D. , the said Y. Z., so 
 
 being the attorney of the said A. B. in said suit, fraudulently and 
 deceitfully, and with the intent to injure and defraud the said A. B., 
 did secretly enter into a corrupt agreement with the said C. D., 
 defendant in such suit, that he would so manage and conduct the 
 said suit that on the trial thereof the said A. B. should fail to 
 recover against the said C. D. therein, notwithstanding the said 
 A. B. had a good and lawful right to recover therein against the 
 said C. D., and that on the trial of the said issue in this court, to 
 
 wit : on the — day of , the said Y. Z., in pursuance of the 
 
 aforesaid corrupt agreement, willfully and corruptly omitted and 
 neglected to show and prove by the witnesses of the said plaintiff 
 then present, and who had knowledge thereof, the facts and cir- 
 cumstances necessary to entitle him, the said A. B., to recover 
 against the said C. D. in the said action, according to his legal 
 rights in the premises, whereby the said A. B. was unjustly sub- 
 jected to great loss, damage, costs and charges. 
 
 2. [Set forth any other act known to the person making the 
 charges, with the same particularity as above, or the commission 
 of any crime or misdemeanor of which the party accused has been 
 
 convicted, and then conclude as follows] : And the said , 
 
 prosecuting attorney, as aforesaid, [or as the case may be,J respecl;- 
 fuUy prays this honorable court, that the said Y. Z. may be required 
 to answer the several charges herein contained, within such time as 
 the said court may deem reasonable for that purpose, and if the 
 truth of the said charges shall, upon investigation thereof, be 
 established to the satisfaction of the said court, that the said Y. Z. 
 may be removed from the said office of attorney and counsellor at 
 law. . 
 
OFFICERS. 13 
 
 § 39. Jurat to petition. 
 
 State of Michigan, ) 
 
 > ss 
 County, f ' 
 
 On this — day of , A. D. , before me, county 
 
 clerk of said county, personally came — '■ , and made oath 
 
 that he has read the foregoing petition by him subscribed, and 
 knows the contents thereof, and that he has been informed and 
 does verily believe that the several charges and specifications 
 therein contained are true in substance and in fact. 
 
 , notary public. 
 
 § 40. Order of the court on presentation of charges. 
 In the matter of Y. Z., ) 
 
 AN attorney, &C. i 
 
 On reading and fiUng charges of official misconduct, this 
 
 day presented by , prosecuting attorney of the county 
 
 of [or as the case may be,] against Y. Z., an attorney and 
 
 counsellor at law, duly licensed to practice as such in this court, 
 and praying that the said Y. Z. may be removed from his said 
 office of attorney and counsellor at law. It is therefore ordered 
 by the court, now here, that the said Y. Z. do put in his answer 
 
 to the said charges within days after service of a copy thereof 
 
 personally upon him, together with a copy of this order, duly cer- 
 tified ; and it is further ordered that the clerk of this court do, 
 without unnecessary delay, serve a copy of the said charges, 
 together with a copy of this order, duly certified by him, person- 
 ally upon the said Y. Z. 
 
 § 41. Order for taJcing proofs. 
 In the matter of Y. Z., ) 
 
 AN ATTORNEY, &C. j 
 
 Certain charges of official misconduct having been hereto- 
 fore presented and filed in this court against Y. Z., an attorney and 
 counsellor at law, duly licensed to practice therein as such, and 
 the said Y. Z. having put in his answer thereto denying the truth 
 of the same [or, " having failed to answer the said charges as 
 required by the order of this court heretofore made ;"] thereupon 
 it is ordered by the court, now here, that it be referred to E. H., 
 
 Esq., circuit court commissioner for the county of , to 
 
 take proofs of all the material facts set forth in the specifications 
 therein contained, and re])ort the same to this court without un- 
 necessary delay. 
 
 §42. Order for removal of an attorney. 
 
 In the matter of Y. Z., 
 AN attorney, &c. 
 
 On reading and filing the proofs taken before E. H., Esq., 
 
 circuit court commissioner for the county of , touching 
 
 the charges of official misconduct heretofore presented and filed in 
 
14 CIECUIT COURTS. 
 
 this court against Y. Z., an attorney and counsellor at law, duly 
 licensed to practice therein, and sufficient opportunity haying beeij 
 given the said Y. Z. to be heard in his defence, after hearing argu- 
 ments on both sides, and due deliberation being thereupon had, 
 and it appearing to the said court, no^ here, that the said Y. Z. 
 hath been and is guilty of the several acts of misconduct with 
 which he is so charged ; it is thereupon ordered that the said 
 Y. Z. be and he is hereby removed from his said office of attorney 
 and counsellor at law. 
 
 § 43. The constitution (1) provides that " any suitor in any 
 court of this state, shall have the power to prosecute or defend his 
 suit, either in his own proper person, or by an ailorney or agent of 
 his choice." How the agent to prosecute or defend a suit is to be 
 chosen, and whether he is entitled to any or all the privileges of 
 an attorney, and subject to the same liabilities, has not been de- 
 termined by any legislation, or made a question in the court of 
 last resort Inasmuch, however, as such agent is not an officer of 
 the court, it may, perhaps, be assumed that his appointment ought 
 to be in writing, signed by the party appointing him, and filed 
 with the clerk of the court ; or that an affidavit of his appointment 
 should be made and filed, before his authority to appear and 
 prosecute, or defend, can be recognized by the court ; and unless 
 the fact of his appointment is so made to appear upon the record 
 in the suit, the opposite party would not be bound to notice his 
 acts. When duly appointed, such agent would have the same 
 rights and powers in conducting the prosecution or defence of the 
 suit for his principal, that an attorney has in behalf of his client. 
 
 § 44. The statute in force when the constitution took effect, 
 and which is not supposed to conflict with the provision above 
 recited, is as follows : " Every person of full age and sound mind 
 may appear by attorney or solicitor, as the case may require, in 
 every action or plea, by or against him in any court ; or may, at 
 his election, prosecute or defend such action or plea in person ; but 
 this provision shall not extend to criminal cases, nor shall any 
 person be admitted to appear on the record in any civil cause in 
 person, whilst he has an attorney or solicitor in such cause. "(2) 
 
 § 45. No written authority is necessary to authorize an attor- 
 ney to apppear ; and in practice no other than a verbal authority 
 is given, unless the attorney, for his own protection, requires, in 
 particular cases, a written authority to appear from his client ; and 
 it is only in actions of ejectment that an'attorney, appearing in a 
 
 (1) Art. Ti., eec. ii. (2) Comp. L. 1127. 
 
OEDEB OF BUSINESS. 15 
 
 court of record, can be required to produce evidence of his au- 
 thority. The manner of appearing and prosecuting or defending 
 by infants, and persons of unsound mind, will be noticed under the 
 proper heads, as also the punishment of attorneys and other officers 
 of the court for misbehavior in their offices. 
 
 § 46. The constitution(l) requires that a circuit court shall he 
 held at least twice in each year, in every county organized for judi- 
 cial purposes, and four times in each year in counties containing 
 ten thousand inhabitants. The evidence that a county contains ten 
 thousand inhabitants, it is supposed, can only be derived from a 
 census taken pursuant to law. On or before the first day of No- 
 vember in every second year, each of the circuit judges is required 
 to fix and appoint the times of holding the several terms within his 
 circuit, for the period of two years ; which appointments remain 
 unalterable for two years.(2) Each of the circuit judges is author- 
 ized to order a special term of the circuit court, to be held in any 
 county within his circuit, whenever he may deem it necessary.(3) 
 The terms, for all purposes, continue until the final adjournment, 
 and no longer. 
 
 § 47. In order to insure the proper dispatch of the business of 
 the circuit courts, during the time which can be devoted to its dis- 
 posal, it often happens that energy and promptness are necessary 
 on the part of the officers of the court, and of all who participate 
 in its proceedings ; and it is necessary that its business should be 
 conducted, ss far as practicable, in an orderly, regular, and sys- 
 tematic manner. The rules of practice in the circuit courts, estab- 
 lished by the supreme court, do not, except to a limited extent, 
 prescribe the order of business in those courts during their actual 
 sittings, but each of the circuit judges is at liberty to adopt such a 
 system in that respect as he may think proper. That which is here 
 indicated, is the one most usually practiced, and is familiar to the 
 bar generally throughout the state. 
 
 § 48. The requisite preparation having been previously made, 
 the court is opened for business on the day appointed for holding 
 its terms, at ten o'clock in the forenoon. No unnecessary formality 
 is observed, but all the proceedings are conducted with directness 
 and simplicity. The judge being present, and in his seat, in order 
 to secure silence on the part of those in attendance, and attention 
 to the business before it, directs the sheriff or other officer in at- 
 
 (1) Art. vi., sec. 11. (2) Comp. L. 993. (3) Comp. 1. 994 
 
16 CIRCUIT COURTS. 
 
 tendance, to open the court ; whereupon he makes the following 
 proclamation : " Hear ye, hear ye, hear ye ; the circuit court for 
 
 the county of is now in session : all persons having business 
 
 therein, draw near, give your attention, and you shall be heard." 
 
 § 49. Motions for the continuance of causes noticed and placed 
 on the calendar for trial, being required by Eule 55 to be made on 
 the first day of the term, unless a sufficient excuse is shown for 
 the delay, are treated as the first business in order, and hence, upon 
 the opening of the court, on the first day of the term, inquiry is 
 made if there are any motions for continuances. Such motions 
 being heard and disposed of, motions entered in the special motion 
 book, and ready for hearing, are next in the order of business, and 
 these are to be heard in the order in which they are entered, unless 
 otherwise ordered.(l) 
 
 § 50. Motions to correct the calendar of causes for trial at the 
 term, when necessary — to enter thereon any cases improperly 
 omitted by the clerk, or strike therefrom any which have been 
 improperly placed thereon — ought to be made at the earliest period 
 practicable, and if not so made, unless a sufficient excuse be shown 
 for delay, they will not be allowed. 
 
 § 51. Motions and other preliminary business being disposed 
 of, the court proceeds to a call of the cases entered upon the cal- 
 endar prepared by the clerk, pursuant to Eule 58, which requires 
 the clerk, previous to each term, to prepare two calendars of causes 
 for said term, one for the court and the other for the bar, upon 
 which all causes in which issues of fact have been joined and notes 
 of issue filed are separately arranged under the head of "Issues of 
 fact," in the order of the dates of issue ; all cases for assessment 
 under the head of "Imparlances;" and causes in which issues of 
 aw have been joined, under the head of " Issues of law." Appeal 
 cases are entered under the first head, in the order of filing the 
 appeals, and cases brought into the court by certiorari under the 
 last head ; and as issues of fact, which are to be tried by a jury, 
 ought to have preference over those which are to be tried by the 
 court, they should be placed first upon the list of civil cases for 
 trial, and designated " Issues of fact to be tried by jury," while 
 those triable without a jury" are designated " Issues of fact to be 
 tried by the court." 
 
 § 52. For convenience of reference to the files, and in order to 
 
 (1) Rule 29. 
 
EOUTINE OF BUSINESS. 
 
 17 
 
 exhibit the condition of the causes set down for trial, as far as 
 necessary, the calendar of issues should be divided into several 
 columns, with proper headings, as in the following form : 
 
 
 
 Issues of fact to he tried 
 
 hyjury. 
 
 
 4 
 
 
 Parties. 
 
 Attorneys. 
 
 
 
 Remarks. 
 
 93 
 
 1 
 
 John Doe 
 
 vs. 
 
 Richard Eoe. 
 
 John Stiles. 
 Jas. Jackson. 
 
 8 g 
 
 boio 
 rs oo 
 
 <^ 
 
 O 00 
 
 
 65 
 
 2 
 
 James Denn 
 
 vs. 
 WilliamFenn. 
 
 Hall & Gilbert. 
 William Hill. 
 
 
 
 § 53. The first call of the calendar, if it be made during the 
 forenoon of the first day of the term, is generally an informal one, 
 upon which the court ascertains the character of the several causes 
 in which a jury has not been demanded, and orders all such actions 
 as it deems most proper to be tried by a jury, such as actions for 
 slander, trespass to the person, malicious prosecution, &c., to be so 
 tried.(l) And if the parties are ready in any case, trial may then 
 be had, without prejudice to the preference of other causes. 
 
 § 54:. Before proceeding in any cause, the court announces 
 that the formal call of the calendar will commence on the coming 
 in of the court in the afternoon of the same day, or on the follow- 
 ing morning, or at such other time as it may deem proper, at 
 which time the parties are expected to be ready with their wit- 
 nesses in court, and ready for trial. In some of the courts, when 
 the number of causes for trial is large, a certain number of cases 
 are assigned for each successive day, in order to save parties and 
 witnesses from unnecessary attendance. 
 
 § 55. Before proceeding to the trial of issues of fact, the court 
 also causes the list of jurors drawn and summoned to be called 
 over, hears and disposes of any applications that may be made to 
 excuse any of the persons returned summoned, from attendance, 
 
 (1) Laws of 1859, p. 150.£ 
 
 2 
 
18 CIRCUIT COURTS. 
 
 and causes the absence of such as do not attend, or furnish any 
 legal excuse for their non-attendance, to be noted, in order that 
 suitable iines may be imposed upon the delinquents before the 
 final adjournment of the court, if necessary. 
 
 § 56. After the first day, the order of business is as follows : 
 Eeading, correcting and signing the journal of the preceding day ; 
 hearing special motions, and trial or hearing of causes in the order 
 of their arrangement upon the calendar, giving preference to crimi- 
 nal cases, and civil cases triable by jury, until the jurors are dis- 
 charged ; and then to the issues of fact and other cases in which 
 witnesses are required to attend, according to the date of the issues. 
 Proclamation is distinctly made of the recesses and adjournments 
 of the court, and no trifling excuse ought to be received from those 
 whose duty it is to be present, for neglecting to attend promptly at 
 the time designated for the resumption of its business. 
 
 § 57. The clerk, or his deputy, attends the court constantly 
 during its sittings, administers oaths to witnesses, jurors and 
 others, and keeps, in a book specially devoted to that purpose, 
 brief minutes of every proceeding, in the order in which it occurs. 
 From these minutes the journal should be carefully made up, and 
 prepared for the signature of the judge from day to day, avoiding, 
 as far as possible, any interlineations, erasures, or blank spaces in the 
 continuous record of each. day's proceedings, and 'commencing the 
 journal of each day with a proper caption, upon a -new page. If 
 any entry is to be made about the proper form of which the cleric 
 has doubts, he should request the attorney of the party for whose 
 benefit it is to T»e made, to furnish a proper draft, and when fur- 
 nished, he should submit it to the judge for his correction or appro- 
 val, before entering it upon the journal. 
 
 § 5?. Caption of Journal, first day of term. 
 
 At a general term [or, at a special term, as the case may be,J of 
 
 the Circuit Court for the county of , commenced. and held at 
 
 the court house in , in said county, on the — day of , 
 
 in the year of our Lord one thousand eight hundred and . 
 
 Present the Hon. • , 
 
 Circuit judge of the circuit. 
 
 The court was opened for business in due form. ♦• 
 
 § 59, The caption of the journal, on each day after th^ first, is in 
 
DIVISIONS OF ACTIONS. 19 
 
 the same form, only substituting the -word '' continued " in the place 
 of " commenced." 
 
 § 60. Entry of adjournment. 
 
 The court thereupon adjourned until to-morro\7, at — o'clock, 
 A. M. [or, P. IQ ■ 
 
 CHAPTER II. 
 
 OF THE DIVISIONS, FORUS, AND USES OP ACTIONS. 
 
 § 61. The most general division of actions is into civil and 
 criminal; the former having for their object the enforcement of 
 private rights, or the redress of private injuries ; the latter, the 
 punishment of public offences. Civil actions are again divided 
 into legal actions, or such as are cognizable by courts of law, and 
 equitable actions, or such as are peculiar to the jurisdiction of courts 
 of equity.(l) 
 
 Legal actions (which only are treated of in the present work), as 
 they now exist under our statutes, are divided into such as relate 
 to real estate, and such as are brought for the recovery of any debt 
 or demand, or of damages only ; the former being commonly de- 
 nominated real actions, and the latter personal actions. 
 
 § 62. The actions relating to real estate are ejectment, actions on 
 the case for luasie, actions for trespass on lands, and actions on the 
 case for private nuisances. {2) All writs of right, writs of dower, 
 writs of entry, and writs of assize, all fines and common recoveries, 
 and all other real actions known to the common law, except those 
 above enumerated, are abolished. The practice in this class of 
 actions has been very nearly assimilated to that in personal actions, 
 and is required to be the same in all respects, except when other- 
 wise specially provided by law. (3) 
 
 § 63. The most general division of personal actions is into such 
 as lie for the recovery of a debt, or damages ; for tlie breach of a 
 contract, termed actions ex contractu, from their always originating 
 in some contract, express or implied ; or such as lie to recover a 
 specifie personal chattel, or satisfaction in damages for some injury 
 to the person or property, denominated actions ex delicto, being 
 
 (1) 1 Burr. Pr. 3. (2) Comp. L. 1229. (3) Comp. L. 1267. 
 
20 USES OF ACTIOS'S. 
 
 founded on some tort or vjrong to the person or property, inde- 
 pendent of any contract. (1) Under the denomination of actions ex 
 contractu are classed the actions of assumpsit, debt, and covenant. 
 Actions ex delicto comprise replevin, trespass, and trespass on the case. 
 
 § 64. The object of the action of ejectment is to recover real 
 estate, and to establish the title of the plaintiff thereto, and also to 
 recover damages for rents and profits of the premises recovered. 
 It must be brought by some person having a valid subsisting inter- 
 est in the premises claimed at the time of commencing the action, 
 and a right to recover the possession thereof, or of some share, 
 interest or portion thereof, to be proved and established at the trial. 
 If the premises demanded are actually occupied by any person, 
 such actual occupant must be named a party defendant in the dec- 
 laration ; if not so occupied, the action must be brought against 
 some person exercising acts of ownership on the premises claimed, 
 or claiming title thereto, or some interest therein at the commence- 
 ment of the suit ; and all persons claiming any title to the premises, 
 adverse to that claimed by the plaintiff, may in all cases be made 
 defendants in such action.(2) 
 
 § 65. Actions on the case for waste are brought to recover 
 damages for the commission or suffering of waste, by any guardian, 
 tenant by the curtesy, tenant in dower, or for term of life or years, 
 or the assignees of any such tenant, during their several terms or 
 sstates, of the houses, gardens, orchards, lands, or woods, or of any 
 other thing belonging to the tenements so held, without having a 
 lawful license, in writing, so to do ; and if the plaintiff in such 
 action prevail therein, he is entitled to have judgment for double 
 the amount of damages found by the jury. (3) 
 
 § 66. In the action of trespass quare clausum /regit, the party 
 injured is entitled to recover against every person who shall cut 
 down, or carry away any wood, underwood, trees, or timber, or 
 who shall girdle or otherwise despoil or injure any trees on the 
 land of any other, without the leave of the owner, three times the 
 amount of damages assessed on the trial ; unless such trespass was 
 casual or involuntary, or the defendant had probable cause to be- 
 believe he was the owner of the lan^, or unless such wood, trees, 
 or timber were taken for the purpose of making or repairing a 
 public road or bridge, in which cases single damages only are 
 recoverable. The same remedy is given to the party injured, by a 
 
 (!) 1 Burr. Pr. 21. (2) Comp. L. 1^30. 
 
 (3) Comp. L. 1258, 1259. 
 
USES OF ACTIONS. 21 
 
 forcible entry or detainer, with treble damages.(l) This action 
 also lies, in general, for any unlawful ent?y upon, and injury done 
 to real estate. 
 
 § 67. When the possession of real estate is rendered danger- 
 ous, unhealthy or uncomfortable by the creation or supporting of 
 a nuisance, an action on the case may be brought by the injured 
 party to recover damages; and if he prevail therein, he is also 
 entitled to a judgment that the nuisance be abated and removed, 
 unless the judge holding the court, at which the issue of fact joined 
 therein shall be tried, shall certify, in his minutes of the trial, that 
 the abatement thereof is unnecessary.(2) 
 
 § 68. The action of assumpsit lies for the recovery of damages for 
 the breach of a contract not under seal, whether verbal or written, 
 express or implied, founded on sufficient consideration, for the pay- 
 ment of money, or for the performance or omission of any other 
 act.(3) Assumpsit may also be brought in all cases arising upon 
 contracts under seal, or upon judgments, when an action of debt or 
 covenant may be brought and maintained, in the same manner in 
 all respects as upon contracts without seal.{4:) This action also 
 lies in certain cases to recover pecuniary penalties and forfeitures 
 incurred by the violation of statutes.(5) Assumpsit is in Jform 
 either general or special ; general in those cases where the special 
 circumstances of the plaintiff's cause of action are not required to 
 be set forth, and special when the agreement on which the action 
 is founded contains special circumstances which it is necessary to 
 set forth. (6) 
 
 § 69. The action of debt lies for the recovery of a specific sum of 
 money, due either by virtue of some record, or statute, or writing 
 under seal ; as on judgments and recognizances of courts of record, on 
 statutes for the recovery of penalties or forfeitures, or bonds for the 
 payment of money, or tlie performance of any other act, and on other 
 specialties. It also lies on simple contracts and legal liabilities, as 
 a concurrent remedy with assumpsit, when the demand is for a sum 
 certain, or is capable of being readily reduced to a certainty. (7) 
 The action of assumpsit, however, being more simple in form, and 
 affording as perfect a remedy as debt, the latter is only used in the 
 very small class of cases in which the former does not lie. 
 
 (1) Comp. L. 1261, 1262. (2) Comp. L. 126P 3 
 
 (3) 1 Ttdd's Pr. 2, 3; 1 Burr. Pr. 23. (4) Comp. L. 1228. 
 
 (5) Comp. L. 1351. (6) 1 Burr. Pr. 23. (7) 1 Burr. Pr. 24. 
 
22 USES OF ACTIONS. 
 
 § 70. Coveiiant lies for tlie recoTery of damages for the breach of 
 sorae covenant or promise under seal, and beingj under our statute, 
 concurrent with assumpsit, is but little used. 
 
 § 71. The action of replevin lies to recover goods or chattels 
 unlawfully taken, or unlawfully detained, and to recover the dam- 
 ages sustained by reason of such unlawful taking or detention, and 
 may be brought by executors or other persons suing in the right 
 of another, when authorized by statute to maintain actions of tres- 
 pass or trover, for any personal property unlawfully taken or 
 unlawfully detained. But this action cannot be brought to recover 
 property taken by virtue of a warrant for the collection of any 
 tax, assesspaent, or fine, pursuant to any statute of this state ; nor, at 
 the suit of the defendant in any execution or attachment, to recover 
 goods or chattels seized by virtue thereof, unless such goods or 
 chattels are exempted by law from such execution or attachment ; 
 nor does it lie at the suit of any other person, unless he has, at the 
 time of commencing the suit, a right to reduce into his possession 
 the property taken or detained.(l) 
 
 § 72. Trespass is of three kinds : 1. Trespass for injuries to the 
 person, whicb lies to recover damages for some personal injury 
 accompanied with force, either actual or implied, such as assault, 
 battery, or false imprisonment. This form is generally termed 
 trespass wi ei armw. 2. Trespass for injuries to personal ^?'qper^?/, 
 Avhich lies to recover damages for any forcible injury to a chattel, 
 either by carrying it away, injuring or destroying it, or excluding 
 the owner from the possession of it, being in the former case 
 known as trespass de bonis asportaiis. In order to support this 
 action, the plaintiff must, at the time when the injury was com- 
 mitted, have had actual or constructive possession of the chattel, 
 and also a general or qualified property in it. 3. Trespass for in- 
 juries to real property, which is classed with suits relating to real 
 estate, and has already been noticed.(2) 
 
 § 73. Trespass on the case, at the common law, lies to recover 
 damages for any injury done to the person, the personal rights, or 
 the property of an individual, when the act done is not accom- 
 panied with force, or immediately injurious, but only by conse- 
 quence and collaterally.(3) By statute,(4) it also lies in cases for 
 forcible injuries, being thus made a concurrent remedy with tres- 
 -^^ — 
 
 (1) Comp. L. 1330, 1331. (2) 1 Burr. Pr. 25, 26. 
 
 (3) 1 Burr. Pr. 26. (4) Comp. L. 1225. 
 
USES OF ACTIOXS. 23 
 
 pass. This action may be considered as a universal remedy, given 
 for all personal wrongs or injuries committed witb. or without 
 force ; whether occasioned by malfeasance, or doing what the de- 
 fendant ought not to do ; nonfeasance, or not doing what he ought 
 to do ; or misfeasance, or doing what he ought to do improperly ; 
 and it embraces trover, slander and malicious prosecution, which are 
 in the nature of distinct actions. 
 
 § 74. Trover lies for the recovery of the value of goods or per- 
 sonal chattels -s^TongfuUy converted by another to his own use, 
 and is, in general, a concurrent remedy with trespass de bonis 
 asportatis for the wrongful taking and carrying away of personal 
 property. It is also a concurrent remedy with replevin in cases 
 where, though the original taking was lawful, there has been a 
 refusal to deliver up the property to the lawful owner on demand, 
 and it lies by one tenant in common against another when the 
 latter sells the whole property held in common, or destroys it. 
 To support this action, the plaintiff must, at the time of the con- 
 version, have had a complete property, either general or special, 
 in the chattel, and the actual possession, or the right to the immedi- 
 ate possession of it.(l) 
 
 § 75. The action of trespass on the case for slander lies for 
 falsely and maliciously speaking of another, words charging the 
 commission of any indictable offence, involving moral turpitude, 
 such words being actionable in themselves ; or words by which, 
 though not actionable ^er se, some special pecuniary damage is 
 . sustained ; or words which tend to deprive another of his estate by 
 slandering his title, or words which slander him in his of6.ce, trade 
 or profession. 
 
 § 76. The action on the case for libel lies for publishing a libel 
 of another, either by printing, writing, signs, or pictures ; and to 
 constitute a libel, it is not necessary that the words published 
 should be actionable in themselves. It is sufficient if they tend to 
 place the party in an odious or ridiculous light, and thereby 
 diminish his reputation. (2) 
 
 § 77. Case for malicious prosecution lies to recover damages 
 where one has been subjected to a prosecution maliciously, and 
 without probable cause, whereby he has sustained an injury, either 
 in person, property, or reputation.(3) 
 
 (1) 1 Burr. Pr. 21. (2) 1 Burr. Pr. 28. (3) 1 Burr. Pr. 38. 
 
24 PRELBIINAET CONSIDERATIONS. 
 
 § 78. The action of detinue has been abolished in this state by 
 statute, (1) and actions of account and annuity are not used ; the 
 latter being superseded by debt or covenant,(2) and also by assump- 
 sit ; and the proceedings in the former being difficult and dilatory, 
 tke party having, in general, a more beneficial remedy by action 
 of assumpsit for money had and received, and if the matter be of 
 an intricate nature, by resorting to a court of equity. (3) 
 
 The writ of scire facias partakes of the character of an action, 
 and is sometimes classed among the forms of actions ex contractu,{4:) 
 but it is not now generally treated as such. 
 
 § 79. The foregoing brief summary of the different forms of 
 actions and their uses, is sufficient to indicate the proper remedy for 
 the redress of every wrong, and the enforcement of every right, of 
 which a court of law can take cognizance by action ; and it may 
 be remarked generally, in regard to all actions and remedies which 
 may be prosecuted in any of the courts of the state, that while 
 every kind of fiction, and matter of mere form injudicial proceed- 
 ings may safely be discarded under our system of practice, yet the 
 security of every party litigant requires that care should be taken 
 not to sacrifice substance at the same time. 
 
 CHAPTER IW. 
 
 CONSIDERATIONS PRELIMINARY TO THE COMMENCEMENT OF ACTIONS. 
 
 § 80. Before any action is commenced, there are several im- 
 portant preliminary considerations which require attention. There 
 must be a right of action at law subsisting at the time of com- 
 mencing the suit, and sustainable by adequate evidence. The action 
 must be brought by a proper ^^ainfojf against the proper defendant, 
 in an appropriate form and before the proper court. Unless all 
 these circumstances concur, no action can be prosecuted with 
 success. 
 
 § 81. If, upon the original facts presented by the case, it ap- 
 pears that a right of action has accrued, the next inquiry is, whether 
 
 (1) Comp. L. 1225. (2) 1 Tidd's Pr. 4. 
 
 (3) 1 Tidd'a Pr. 2 ; 1 Burr. Pr. 24. (4) 1 Tidd's Pr. 1, 4. 
 
PRELIMINARY CONSIDERATIONS. 25 
 
 the claim to redress be of an equiiahh character merely, or whether 
 the appropriate remedy is by an action at law. If, upon examin- 
 ing the case, a remedy should appear to have been given ly laiu, 
 it should next be ascertained whether the validity of such remedy 
 remains unimpaired, and whether the remedy itself is immediately 
 available to the party seeking it. 
 
 § 82. For this purpose the following inquiries should be made : 
 
 1. AVhether the remedy has been relinquished or forfeited by any 
 act or omission of the party entitled to it, as by laches, lapse of 
 time, release, or the like. 
 
 2. Whether any act yet remains to be done by the complaining 
 party, in order to render his right of action complete, such as mak- 
 ing a demand or request of the opposite party, giving notice, 
 offering to perform a condition precedent, or the like. 
 
 3. Whether anything has been done by the party complained of, 
 since the cause of action arose, to discharge the remedy : as whe- 
 ther the agreement has been performed, the debt paid, a tender 
 made, &c. 
 
 4. Whether anything has been done by the concurrence of loth 
 parties to suspend or discharge the remedy : as whether the terms of 
 the contract have been altered, time given for performance or pay- 
 ment, an account stated and negotiable security given, or whether 
 there has been a settlement, arbitrament, or the like. 
 
 5. Whether anything has occurred to discharge or affect the 
 remedy, independently of any act of either party : as whether the 
 contract has become illegal or impossible to perform, or the party 
 who committed the tort has died, &c. 
 
 6. Whether, and how far, the remedy is suspended or otherwise 
 affected by the existence of some legal disability in either of the 
 parties ; such as infancy, lunacy, or coverture. 
 
 7. When the cause of action arose upon a contract, whether, and 
 how far, it has been affected by a discharge under some ban/erupt 
 or insolvent law, and, 
 
 8. Whether the remedy is barred by the operation of any stat- 
 ute of limitations. 
 
 § 83. If, upon these several inquiries, it be found that the right 
 of action, though originally perfect, has been discharged by some 
 matter of subsequent occurrence, there will, of course, be no neces- 
 sity for farther consideration of the case. If the right of action 
 be only suspended by some temporary cause, no step can be taken 
 until the impediment is removed. If, however, it be found to be 
 in full and subsisting force, the next inquiry will be, What evidence 
 
26 PEELIirilSrAIlY consideeatioxs. 
 
 is required by law to sustain the action, or overtlirow any defence 
 that may be anticipated, and whether the party is ^jossessec? of such 
 evidence, or can procure it to be used on the trial ? 
 
 § 84. These are among the most important preliminary consid- 
 erations, and are indeed of the very essence of the remedy ; for if 
 not in possession of adequate evidence, the party should consider 
 himself in the same situation as if the essential facts had no exist- 
 ence. If the evidence be in the possession or control of the party, 
 it should be carefully examined in order to ascertain its sufficiency 
 and prevent any surprise upon the trial, growing out of defects 
 which have escaped the previous notice of the party's counsel. If 
 not within his control, or there is danger of his losing the benefit 
 of it, measures should be taken to secure it, as by obtaining access 
 to written documents, taking the testimony of witnesses condition- 
 ally, &c. 
 
 The preliminary inquiries as to the right of action, and the evi- 
 dence necessary to sustain it, being satisfactorily answered, the 
 next inquiry will be, in whose name the action shall be brought. 
 
 § 85. In general, the action on a contract must be brought in 
 the name of the party in whom the legal right is vested ;(1) even 
 although the contract were made with an agent, and although the 
 defendant, were ignorant of his acting as such ;(2) unless the agent 
 have a beneficial interest in the contract, in which case either he 
 or his principal may sue.(3) When the contract has been assigned, 
 the legal 'interest remains in the assignor, as trustee, in whose 
 name, or in the name of his legal representative, the action must 
 be brought, (4) except when the assignee is authorized to sue in his 
 own name by the custom of merchants, as on bills of exchange 
 and promissory notes, or by statute, as in the case of assignees of 
 insolvent debtors ;(5) and receivers appointed upon the dissolution 
 of a corporation, (6) or in the case .of a covenant running with the 
 land, for a breach after the assignment ;(7) or when the debtor has 
 expressly assented to the assignment, and promised to pay the 
 assignee -,(8) an implied promise not being sufiicient.(9) 
 
 § 86. On the death of the party with whom the contract was 
 made, if the covenant or promise were to the deceased and another 
 
 (1) 1 J. B. 9, 15, 215. (2) 11 J. E. 23 ; 12 J. R. 1 ; l"4 J. E. 466. 
 
 (3) 16J.R.1; 18 J. E. 24, 155 ; 2 Caines' Casea, 341 ; 2 "Wend. E. 158; lOB.&C.en. 
 
 (4) 2 Cranch. 342. (5) Comp. L. 1434. (6) Comp. L. 1302. 
 (1) 14 J. E. 89. (8) 1 Johns. Cas. 215. (9) 9 Wend. R. 317. 
 
■PARTIES TO ACTIONS. 27 
 
 jointly, the action must be brought by the survivor or his repre- 
 sentatives, without joining the representatives of the deceased ;(1) 
 but when the contract was with one only, or is several, his execu- 
 tors or administrators may bring the action. If the injury consists 
 in the breach of a covenant running with the land, the heir or de- 
 visee is the proper person to bring the action for a breach subse- 
 quent to the death of the testator or intestate ;(2) and for a pre- 
 vious one, the executor or administrator.(3) 
 
 § 87. "When there are several jointly interested in a contract, 
 they must all join as plaintiffs, whether suing in their own right, 
 or in the right of another, as assignees, trustees, or the like ;(4) 
 but a dormant partner, although interested, need not be joined.(5) 
 
 § 88. IsTo action can, by the common law, be supported by a 
 married woman without joining her husband. In some cases they 
 may sue jointly, or he may sue alone, as on a covenant or obliga- 
 tion, -or promissory note to the wife alone, or the husband and 
 wife jointly ; but on a debt to the wife when sole, they must both 
 join ; the rule being that if the cause of action would survive to 
 the wife, she must join, otherwise the Ijusband may sue alone.(G) 
 
 § 89. By statute, however, actions may now be brought by a 
 married woman in relation to her sole property, in the same man- 
 ner as if she were unmarried ; and she may also sue in her own 
 name in relation to the property of her husband which cannot be 
 sold or incumbered without her consent, or which is exempted by 
 law from execution against him. (7) 
 
 § 90. In regard to actions for tort, if the injury were to the 
 absolute or relative rights of persons, the action must be brought in 
 the name of the party injured. A right of action for a tort is not 
 assignable, nor does it in general follow the property into the 
 hands of those entitled to it on the death of the party ; but if there 
 be no other person jointly interested, to whom the cause of action 
 will survive, the right is, in general, extinguished. But in addi- 
 tion to the actions which survive at the common law, it is pro- 
 vided by statute that actions of replevin and trover, actions for 
 assault and battery, or false imprisonment, or for goods taken and 
 carried away, and actions for damage done to real or personal 
 estate, shall also survive. (8) 
 
 (1) 2 Johns. Cas. 374 ; IJ. E. 34. (2) 2 Lev. 192. 
 
 (3) 2 Johns. Cas. 17 ; 4 J. R. 42. (4) 1 Wend. R. 470. (5) 4 Wend. 62S. 
 
 (6) 13 Wend. R. 271 ; 4 Mich. R. 322. 
 
 (7) Laws 1S55, p. 420 ; Laws 1857, p. 359 ; Comp. L. 966, 967. (8) Comp. L. 1157. 
 
28 PEELIIIIXART CONSIDEKATIONS. 
 
 § 91. WKeu two or more persons are jointly entitled, or have 
 a joint legal interest in the property affected, they must, in general, 
 join in the action. If their interest be several, yet if the injury 
 complained of were a joint damage to hoth, they may join or 
 sever ; but when the cause of action as well as the interest is sev- 
 eral, each party must sue separately. (1) Therefore, for injuries to 
 the person, as slander, battery, or false imprisonment, several par- 
 ties cannot, in general, sue jointly, but each must bring a separate 
 action, except in cases of slander of title, and of words spoken of 
 parties in the way of their trade.(2) In actions for injuries to per- 
 sonal property, joint tenants and tenants in common must join, 
 but parties having several interests cannot, in general, join.(3) 
 
 § 92. If persons who ought to be made co-plaintiffs in actions 
 ex contractu are not joined as such, the defendant may take advan- 
 tage of the omission by plea in abatement, or at the trial ; or, if 
 the defect appear on the face of the pleadings, by demurrer, motion 
 in arrest of judgment, or writ of error. In actions ex delicto, 
 advantage may be taken of the non-joinder by plea in abatement, 
 or by way of apportionment of the damages upon the trial. la 
 actions of either class by executors or administrators, only by plea 
 in abatement ; and in actions for penalties given by statute, either 
 by plea in abatement, or at the trial.(4) 
 
 § 93. If, on the other hand, too many parties are made co- 
 plaintiffs, the defendant may take advantage of such misjoinder, in 
 actions ex contractu, by plea in abatement, or at the trial ; or, if the 
 defect appear on the face of the declaration, by demurrer, motion 
 in arrest of judgment, or by writ of error, and in actions ex delicto, 
 by taking advantage of it on the trial, or, if the defect appear on 
 the record, by motion in arrest of judgment, or writ of error.(5) 
 
 § 94. The general rule in actions ex contractu is, that the action 
 must be brought against the contracting party, if living, or against 
 his personal representatives, if he be dead ; or if some only are 
 dead, against the survivors, and the personal representatives of the 
 survivors ;(6) and whether the contract were made personally or by 
 an agent, unless the agent transcended his powers, or have otherwise 
 made himself personally liable ; or even if the contract have been 
 assigned, unless in case of covenants running with land.(7) 
 
 (1) 2 Saund. 116, a, n. 2. 
 
 (2) 2 Saund. 117 a, note; 17 Mass. R. 182. 
 
 (3) 1 Burr. Pr. 62; Brown on Actions, 120, 123. (4) 1 Burr. Pr. 64. 
 
 (5) 1 Burr. Pr. 64. (6) 11 J. R. 18. (7) 17 J. R. 243 ; 1 Burr. Pr. 68. 
 
PARTIES TO ACTIONS. 29 
 
 § 95. When several persons are jointly liable, they must all be 
 joined as defendants, whether in their own right or in the right of 
 another. For debts contracted by the wife when sole, at common 
 law the husband and wife must be sued jointly ;(1) and if not recov- 
 ered against them jointly, during the life of the wife, they cannot 
 be recovered against the husband after her death, except as execu- 
 tor, &c.(2) By the statute of 1855, as amended in 1857,(3) the hus- 
 band of any married woman is not liable to be sued upon any 
 contract made by her in relation to her sole property ; but whether 
 this was intended to include contracts made by her lefore marriage 
 as well as after, has not been determined. 
 
 § 96. At common law, also, none but those who were jointly 
 liable could be sued in the same action, and if they were, provided 
 it appeared on the record, it was good ground for demurrer or mo- 
 tion in arrest of judgment, or if not, then it was available on mo- 
 tion for a non-suit at the trial. (4) An exception to this rule now 
 exists by statute,{5) which allows the holder of any bill of exchange 
 or promissory note to include, in one action, the drawers, makers, 
 indorsers and acceptors thereof, or any of the said parties, and to 
 proceed to judgment and execution in the same manner as though 
 all the defendants were joint contractors. 
 
 § 97. In actions ex delicto the general rule is, that the person 
 who committed the injury, either by himself or his agent, is to be 
 made defendant, the principal being in all cases liable for the tor- 
 tious acts of his agent or servant, if committed while in the course 
 of his employ; but not for acts wilfully committed, nor for acts 
 wholly beyond the agent's authority. And an agent or servant is 
 also personally liable to third persons for any trespass or other tort 
 he may commit by order of his principal.(6) 
 
 § 98. All natural persons are liable for their tortious acts, 
 including infants, lunatics, and married women. Corporations are 
 also liable for damages resulting from acts committed in their cor- 
 porate character, and actions of trover, case, trespass and eject- 
 ment may be maintained against them. An action lies against any 
 person who assisted in a trespass, or conversion, or directed it to 
 be done, or subsequently assented to it ; and where several are con- 
 cerned, they may be jointly sued, whether they assented to the act 
 before or after it was committed, unless the party be an infant, or 
 
 (1) 8 J. E. 149 ; 15 J. R 403. (2) Gra. Pr. 91. (3) Comp. L. 967. 
 
 (4) Gra. Pr. 91, 92. (6) Camp. L. 1148. 
 
 (6) 1 Burr. Pr. 61, and cases there cited. 
 
80 PRELIMINARY COXSIDERATIONS. 
 
 married woman, wlio cannot be sued in respect of subsequent 
 assent. (1) 
 
 § 99. "When a tort is the joint act of several persons, such, as 
 an assault and battery, or malicious prosecution, tlie plaintiff, in 
 general, has his election to sue all jointly, or eacb separately ; but 
 when the act could not, in legal contemplation, be committed by 
 several, separate actions must be brought. Thus, for verbal slan- 
 der by two or more, separate actions must be brought against each. 
 For injuries committed by a feme covert before or during marriage, 
 the husband and wife must be sued jointly ; but for slander by 
 both, a joint action will not lie. (2) 
 
 §> 100. Misjoinder of defendants in these actions cannot, in gen- 
 eral,' be taken advantage of in any way, except when the action is 
 substantially founded on contract, in which case the misjoinder of 
 a defendant may be pleaded in abatement, or taken advantage of 
 at the trial. Neither can a misjoinder, in general, be objected to ; 
 but the effect of including too many parties as co-defendants will 
 be, that the parties who should not have been included in the 
 action will be entitled to a verdict at the trial. But when the tort 
 could not, in point of law, be joint, the misjoinder is ground for 
 demurrer, motion in arrest of judgment, or writ of error. But the 
 objection may be aided by the plaintiffs taking a verdict against 
 one only, or, if several, damages be assessed against each, by enter- 
 ing a nolle prosequi 2L^ to one after verdict and before judgment.(3) 
 
 § 101. In all cases when, at the common law, advantage could 
 be taken of a misjoinder or non-joinder of parties at the trial, the 
 mode of doing so was by motion for a non-suit ; but the circuit 
 courts cannot compel a plaintiff to become non-suit at the trial, 
 and. if he chooses to go to the jury with his case, he has a right to 
 do so. (4) If the plaintiff fails to maintain his case by evidence, or 
 a misjoinder or non-joinder of parties, which, according to the 
 common law practice would have been the ground of a motion for 
 non-suit, appear from the proofs on the trial, the defendant may 
 insist upon it upon the argument of the case to defeat a recovery, 
 and ask the court to charge the jury, if the issue in the case be 
 tried by jury, according to the law of the case. 
 
 § 102. The statute(6) requires the supreme court to establish 
 
 (1) 1 Burr. Pr. 68. (2) 1 Burr. Pr. 68. (3) 1 Burr. Pr. 68, ^ 
 
 (4) 2 Doug. Mich. K. 124. (5) Qomp. L. 988. 
 
ELECTION OF ACTIOXS. 81 
 
 rules to effectually prevent the defeat or abatement of any civil 
 suit ex contractu, for either any non-joinder or misjoinder of par- 
 ties, when the same cau be done consistently with justice, and to 
 provide for all necessary amendments of process, pleadings, or 
 other proceedings in such case ; and also to provide the manner 
 by which a discontinuance may be entered against parties improp- 
 erly joined in any suit, and by which parties improperly omitted 
 may be joined in the suit, and brought in to answer thereto, if 
 within the jurisdiction of the court. 
 
 § 103. Accordingly it has been provided by rule that when 
 the defendant, in any action founded on contract, shall plead in 
 abatement the non-joinder of any other person as defendant, the 
 court in term time, or the judge in vacation, may, at any time be- 
 fore issue joined on such plea, allow the plaintiff, on such terms as 
 the court or judge shall prescribe, to amend his declaration by insert- 
 ing therein the name of any other person as defendant, and declar- 
 ing against him jointly with the original defendant.(l) The plain- 
 tiff may then take out a writ, in such form as the court or judge 
 shall prescribe, in the nature of a summons, requiring the new 
 defendant to appear and answer as a defendant in the action. The 
 service of the writ, and subsequent proceedings to judgment and 
 execution, are substantially the same as if such new party had been 
 named as a defendant in the original process or declaration. (2) 
 
 § 104:. "When an action founded on contract is brought against 
 several persons, the plaintiff may, at any time before the final sub- 
 mission of the cause, be allowed to discontinue as against any of 
 the defendants upon payment of costs to them, as in case of non- 
 suit, and on such other terms as the court may direct ; and the 
 plaintiff may thereupon amend his declaration, and proceed against 
 the other defendants in like manner as if the action had been origi- 
 nally brought against them alone.(3) 
 
 § 105. The form of the action is an important consideration, for 
 if the form of the action be mistaken, and the objection appear on 
 the face of the declaration, it will be fatal on demurrer, motion in 
 arrest of judgment, or writ of error;- and if it does not appear on 
 the face of the pleadings, it may be taken advantage of on the trial. (4) 
 
 The plaintiff frequently has an election between different forms 
 of action, as concurrent remedies for the same injury ; as, upon a 
 
 (1) Eule 66. (2) Rules 6'7, 68, 69, 70. 
 
 (3) Bule 71. (4) 1 Burr. Pr. 70. 
 
32 PEELI3IINAEY CONSIDEEATIONS. 
 
 simple contract for the payment of money lie may bring assumpsit 
 or debt, and, as we have seen, assumpsit may be brought upon 
 contracts under seal and upon judgments, instead of covenant or 
 debt. 
 
 § 108. In case of the breach of a contract to do a certain act 
 for a consideration which has been received, he may bring either 
 covenant or assumpsit for the breach, or disaffirm the contract and 
 bring assumpsit for the consideration. Upon a covenant to do a, 
 thing under a penalty, or to pay rent or other money, he may 
 bring debt, assumpsit, or covenant. So a party may have an action 
 upon a statute, or by common law, when a remedy previously 
 existed at common law. In case of the wrongful taking of per- 
 sonal chattels, he may bring replevin, trespass, or trover ; and for 
 the wrongful conversion, replevin or trover ; or, if they are con- 
 verted into money, he may waive the tort, and bring assumpsit for 
 money had and received. If the breach of a simple contract con- 
 sists in misfeasance, as for deceit on the sale of goods, he may bring 
 assumpsit or case. But when the substantial ground of action is 
 contract, the plaintiff cannot, by declaring in case, render a person 
 liable who would not have been liable in assumpsit.(l) 
 
 § 107. "When a party has a choice between two classes of action, 
 the form ex delicto may give the benefit of bail, which is not gen- 
 erally allowed in actions ex contractu. There are several other 
 considerations which have more or less weight in determining the 
 form of the action, such as the nature and extent of the plaintiff's 
 interest in the subject of the suit; the number of demands which 
 may be joined in the same action ; the defence, place of trial in 
 local or transitory actions, the evidence required, &c.(2) 
 
 § 108. If, after having elected one of several forms of actions, 
 the plaintiff should find it insufficient for his purpose, he may dis- 
 continue it on payment of costs, and make a new election ; but he 
 cannot commence a new action while the first is pending, nor after 
 it has been determined upon its merits. 
 
 § 109. As to the joinder of different causes of action in the 
 same suit, the general rule is, that, when the causes of action are 
 all of the same nature, and the actions themselves in the same form, 
 they may be joined in the same suit, each separate cause of action 
 being embraced in a separate count in the declaration. If the plain- 
 
 (1) 1 Burr. Pr. 11 ; 1 Tidd's Pr. 9, 10. (2) 1 Burr.Pr. 12. 
 
WHEN ACTION TO BE BROUGHT. 83 
 
 tiff have two or more causes of action wliiclL may be joined in one 
 suit, he ought to join them, and if in such case he brings separate 
 actions, the court, on the defendant's motion, will order him to 
 consolidate them, and pay the costs of the application. (1) 
 
 § 110. It is a further rule on this subject, that when a party 
 has several demands or existing causes of action, growing out of 
 the same contract, or resting in matter of account, which may be 
 joined and sued for in the same action, they must be joined ; and 
 if the demands or causes of action be split up, and suit brought for 
 part only, and subsequently a second suit for the residue, the first 
 action, if pending and undetermined, may be pleaded in abatement, 
 and if determined upon its merits, may be pleaded in bar of the 
 second action ;(2) and the same principle is applicable to claims for 
 damage in actions ex delicto. But two distinct forms of action of 
 either class cannot be joined, as assumpsit with debt or covenant ; 
 or trespass with case. It is also necessary that the several causes 
 of action should exist in the same right, otherwise they cannot be 
 joined.(3) 
 
 § 111. As to the court in which the action should he commenced, it 
 is to be observed, that if the amount of the debt or damages, 
 ■which will probably be recovered by the plaintiff, does not exceed 
 one hundred dollars, and the case be within the jurisdiction of a 
 justice of the peace, the plaintiff may be compellable to pay costs 
 to the defendant, though he succeed in the action in the circuit 
 court, unless he recover more than that amount.(4) Local actions, 
 which are actions for the recovery of real estate, or the possession 
 thereof, actions for trespass on land, and actions of trespass on the 
 case for injuries to real estate, must be brought in the county where 
 the subject of the action is situated; and all other actions must be 
 brought in the county in which one of the parties resides.(5) 
 
 § 112. Suits against public ofScers for acts done by them by 
 virtue of their oflSces, or against others in their aid or assistance, 
 should be brought in the county where the fact happened.(6) 
 
 (1) 9 J. R. 262. (2) 19 TVend. E. 207 ; 8 id. 492. 
 
 (3) 1 Burr. Pr. 1i. (4) Comp. L. 1461, 1462. 
 
 (5) Comp. L. 1187. (6) Comp. L. 1188. 
 
34 COMMENCEMENT OF ACTIONS. 
 
 CHAPTER IV. 
 
 COMMENCEMENT OF ACTIONS ; AND PROCEEDINGS ON BOTH SIDES TO 
 THE DEFENDANT'S APPEARANCE, INCLUSIVE. 
 
 § lis. The merits of the case, the form of the action, and the 
 proper parties having been determined upon, the next step is to 
 bring the defendant into court, in order to contest the suit and 
 abide the determination of the law. 
 
 There are five modes of commencing actions in the circuit 
 court, viz : by capias ad respondendum ; by summons ; by declara- 
 tion ; by writ of attachment, and by writ of replevin ; the two first 
 named of which are original wriis.{l) Actions brought for the 
 recovery of any debt, or for damages only, may be commenced 
 either by original writ, or by declaration. {2) 
 
 § 114. Personal actions arising upon contract can be com- 
 menced by capias ad respondendum only, to recover damages for a 
 breach of promise to marry, or for moneys collected by a pubhc 
 of&cer, or for misconduct or neglect in office, or in some profes- 
 sional employment, when the plaintiff, or some one in his behalf, 
 shall make and attach to such writ an affidavit, stating therein 
 that the plaintiff has a claim for damages against the defendant 
 for the cause of action stated in the writ, and upon which he 
 believes the plaintiff is entitled to recover a certain sum, being 
 more than one hundred dollars.(3) 
 
 § 115. Personal actions, in cases of claims for damages arising 
 from torts, may be commenced by capias, when an order for bail shall 
 be indorsed upon the writ by the judge or a circuit court com- 
 missioner, directing the amount in which bail is to be taken. This 
 order can be obtained only upon the affidavit of the plaintiff, or 
 some person in his behalf, showing the nature of the plaintiff's 
 claim ; which affidavit must be annexed to and returned and filed 
 with the writ.(4) Non-bailable actions cannot, therefore, be com- 
 menced by capias, and in bailable actions, the plaintiff may waive 
 his right to this form of process, if he thinks proper to dp so, and 
 commence his suit by summons or declaration. 
 
 § 116. The capias ad respondendum is a- judicial writ, and 
 
 (1) Comp. L. 1137. (2) Comp. L. 1135. 
 
 (3) Comp. L. 1138; Const., art. vi., sec. 33. (4) Comp. L. 1138. 
 
BAILABLE ACTIONS. 35 
 
 must run " In the name of the People of the State of Michigan, "(1) 
 be tested in the name of the circuit judge, and may be dated on the 
 day it issues, be sealed with the seal of the court from which it issues, 
 and made returnable on the first day of the next succeeding 
 term.(2) It must be directed to the sheriff of the same county, (3) 
 or, if the sheriff be a party to the suit, then to the coroner or coro- 
 ners of such county ; and if the coroner be also a party, then to 
 one or more persons to be named by the court, and termed elizors ; 
 and should be subscribed with the name of the clerk, and indorsed 
 by the attorney issuing it ; and if the plaintiff is not an inhabitant 
 of the state, it must also, before service, be indorsed by some 
 suiEcient person who is such inhabitant, as surety to the defend- 
 ant for his costs. 
 
 § 117. The writ is prepared by the plaintiff's attorney, who ■ 
 usually keeps blanks for that purpose, with the seal of the court 
 impressed thereon, and signed by the clerk. In drafting or filling 
 up the writ, particular attention should be paid to the names of the 
 parties, the return, and the insertion of the cause of action. The 
 christian and surnames of all the parties should be inserted at 
 length, if known, and neither abbreviations nor initials used. But 
 if the name of a defendant is not known to the plaintiff, the writ 
 may be issued against him by a fictitious name. (4) 
 
 § 118. Form of capias ad respondendum. 
 In the name of the People of the State of Michigan. To 
 
 THE sheriff of THE COUNTY OF ■ : 
 
 [seal] We command you to take C. D., if he may be found in 
 
 your county, and him safely keep, so that you may have 
 
 his body before our circuit court for the said county of — ^-, at the 
 
 court house in the of , in said county, on the — day of 
 
 next, [or " instant,"] to answer to a bill of A. B., plaintiff, against 
 the said C. D., defendant, in a plea of trespass on the case upon 
 promises, for one thousand dollars, upon a promise of marriage 
 made by the said defendant to the said plaintiff, [or, " to a hill of the 
 said A. B., plaintiff, against the said CD., defendant, for five hundred 
 dollars on promises, being moneys collected by the said defendant as a 
 public officer, to wit: as an attorney at law, for the said plaintiff," or 
 as the case may be,] according to the custom of our said court, 
 then and there to be exhibited, and have you then there this writ. 
 
 Witness the Hon. , circuit judge of the judicial 
 
 circuit, at , in said county of , this — day of ,. 
 
 one thousand eight hundred and : , Clerk. 
 
 . . , Attorney. 
 
 (1) Const., art. vi., sec. 35. (2) Comp. L. 1136. 
 
 (3) 4 Mich. R. 111. (4) Comp. L. 1139. 
 
36 COMMENCEMENT OF ACTIONS. 
 
 § 119. The form of the mandate, "we command you," &c., 
 seems to be appropriate, and is sanctioned by legislative prece- 
 dent.(l) The old form of -writ, for reasons which are inapplicable 
 to our courts, in all eases required the defendant to answer the 
 plaintiff in a plea of trespass ; and also [ac etiam] to a bill, &c.(2) 
 It is sufficient, and therefore most proper, to state in the writ only 
 the true cause of the action. The amount expressed should be 
 large enough to cover all probable damages, and is usually, in 
 actions of assumpsit, a sum equal to twice the plaintiff's demand. 
 If the action is founded upon contract, the affidavit required by the 
 statute(3) must be made and annexed to the writ, and if the plain- 
 tiff be a non-resident of the state, it must be indorsed by some 
 responsible person, as surety for the defendant's costs, when it is 
 readv to be delivered to the officer to be served. If the action is 
 ' ■ " for a tort, the plaintiff must obtain an order to hold the defendant 
 to bail, by having the proper affidavit made and presented to the 
 judge or commissioner for that purpose. 
 
 § 120. Affidavit to hold to bail in assumpsit. 
 [No title.] 
 State of Michigan, ) 
 
 County. \ * ' 
 
 A. B., of , being duly sworn, deposes and says, that 
 
 he, the said A. B., has a claim for damages against C. D., an attor- 
 ney at law residing in , and practicing as such attorney in 
 
 the several courts of record of this State, for the cause of action 
 stated in the writ hereto annexed, upon which he believes he is 
 
 entitled to recover the sum of hundred dollars. A. B. 
 
 Subscribed and sworn to, this — day ) 
 
 of , A. D. , before me, j 
 
 , Notary Public. 
 
 § 121. Affi,davit to hold to bail in trespass. 
 [No title.] 
 State of Michigan, ) 
 
 County. ( **• 
 
 A. B., of , being duly sworn, deposes and says, that 
 
 on or about the — day of , at , in th^' county of , 
 
 in said state of Michigan, C. D., late of '—, came into the 
 
 dwelling house of this deponent, where he, this deponent, then 
 was, and, without any provocation whatever, laid hold of this de- 
 ponent, and with great force and violence knocked him down, 
 and with his fists struck this deponent several violent blows upon 
 
 (1) Comp. L. 1J36, § 33 J 1331, § 6; 1314, § 13; 13T6, § 14. 
 
 (I) 1 Burr. Pr. 94. (3) Comp. L. 1138. 
 
BAILABLE ACTIONS. 37 
 
 his head, face, arms, and neck, and thereby inflicted upon this de- 
 ponent several severe wounds and bruises, by reason whereof this 
 deponent became sick, and was disabled from attending to his 
 affairs and business for a long space of time, to wit : for about the 
 space of five weeks then next ensuing, and suffered great pain, and 
 incurred a large amount of expense for nursing and medical aid 
 and assistance. A. B. 
 
 Subscribed, &c. 
 
 § 122. It must appear ly the jurat that the affidavit was sworn 
 to before the officer taking it, unless it be sworn before a judge of 
 the supreme court or circuit judge, otherwise it will be treated as 
 no affidavit, and the proceedings based upon it will be erroneous.(l) 
 
 Before the writ is delivered to the sheriff, the attorney indorses 
 upon it the style of the court, the names of the parties, and of the 
 writ, the name and residence of the attorney ; and, if necessary, 
 procures the indorsement of a surety for costs. 
 
 § 123. The writ may be delivered to the sheriff in person, or 
 it may be left at his office during the usual hours of business; and 
 if there be any person in the office belonging to it, the writ should 
 be delivered to such person ; and such service is equivalent to 
 personal service on the sheriff. If the sheriff has not filed with 
 the clerk a notice of the establishment of an office at the place 
 where the courts are held, the writ may be left at the clerk's office, 
 with the clerk or his deputy, with the like effect.(2) It may be 
 issued on any day between the first day of one term and the first 
 day of the next succeeding term, and may be issued on the same 
 day it is made returnable ;(3) but if issued or delivered to the 
 sheriff on Sunday, it is void.(4) 
 
 § 124. By an act approved February 7, 1859, it is provided 
 that the 1st of January, the 4th of July, the 25th of December, and 
 any day appointed or recommended as a day of fasting and prayer, 
 or thanksgiving, shall, for the purposes of holding courts, &c., be 
 treated and considered as is the first day of the week, commonly 
 called Sunday.(5) In general, the issuing of the writ, and the 
 delivery or transmission of it to the officer, with the absolute in- 
 tention of having it served, is the commencement of the suit.(6) 
 
 § 125. If the writ be made returnable out of term,(7) or on 
 
 (1) 3 Mich. B. 590. (2) Comp. L. 208. (3) Salk. 422, n. a; i T. R. 610. 
 
 (4) 1 Cowen, 210 ; 8 id. 27 ; 12 J. R. ITS. (5) Laws of 1859, p. 149. 
 
 (6) 4 Cow. E. 161 1 18 J. R. 496. (7) 4 Cow. E. 604. 
 
38 COMMENCEMENT OF ACTIONS. 
 
 Sunday,(l) or if a term intervene between the teste and return ;(2) 
 or if the teste or return has been altered after its delivery to the 
 sheriff,(3) it is void, and cannot be amended ; but for other irregu- 
 larities or defects in form, it is not void, but only voidable, and 
 may be amended on application to the court, and upon payment 
 of costs. So, where it was directed to the sheriff instead of the 
 coroner, (4) or made returnable at a wrong place ;(5) or the acetiam 
 clause was in covenant instead of assumpsit ;{Q) and where there 
 was a mistake in the name of the chief justice,(7) it was allowed 
 to be amended. So, also, the want of a seal,(8) or the signature 
 of the clerk,(9) has been held to be amendable. 
 
 § 126. If the defendant appear to the writ, though it be abso- 
 lutely void, and he be ignorant of the fact at the time of appear- 
 ance, he will be regarded as regularly in court, and the writ will 
 not be set aside ;(10) and any irregularity in the service of the writ 
 may be waived.(ll) By statute,(12) the court in which any action 
 is pending is empowered to amend any process, pleading or pro- 
 ceeding in such action, either in form or substance, for the further- 
 ance of justice, on such terms as shall be just, at any time before 
 judgment rendered therein; and after verdict, or judgment by 
 confession or default, any default or defect in process, or the mis- 
 conceiving of any process, or awarding it to a wrong officer, will 
 not impair the judgment.(13) 
 
 § 127. Privilege from arrest is allowed to persons under certain 
 circumstances, from motives of general policy. Ambassadors, public 
 ministers, and their domestic servajits, are privileged from arrest ; 
 and by act of congress of 30th April, 1790, all writs or process 
 whereby any ambassador, or other public minister of any foreign 
 prince or state, authorized and received as such by the President 
 of the United States, or any domestic or domestic servant of any 
 such ambassador or other public minister may be arrested or im- 
 prisoned, or his or their goods or chattels may be seized, are void ; 
 and any person suing out such process, or prosecuting or execut- 
 ing it, is liable to a fine in the discretion of the court, and impris- 
 onment not exceeding three years. 
 
 (1) 5 Cow. E. 15. (2) 4 J. E. 309 ; 18 Wend. 6T7. (3) 1 Cow. E. 41. 
 
 (4) I'r J. E. 63. (5) 1 Cow. E. 141 ; 4 Hill E. 34. (6) 3 Cow. E. 354. 
 
 p) 1 Cow. E. 203. (8) 1 Wend. E. 16. (9) Coleman, 56. 
 
 (10) 5 Cow. E. 15 ; 1 id. 356. (11) 1 Blng. 132. 
 
 (12) Comp. L. 1200. (13) Comp. L. 1201. 
 
** PHIVILEGE FEOM AEBEST. St 
 
 § 128., No person can, however, be proceeded against for hav- 
 ing arrested the servant of an ambassador, unless the name of such 
 servant has been first registered according to the act of congress. 
 
 Females, whether married or unmarried, cannot be imprisoned 
 on any process in any civil action. (1) 
 
 § 129. Defendants once held to bail, cannot, in general, be held 
 to bail a second time for the same cause of action ;(2) but an excep- 
 tion has always been recognized when the second arrest did not 
 appear to be vexatious, as when the judgment in the first action 
 was reversed for error ;(3) or when the defendant has been dis- 
 charged from custody for some act for which the plaintiff is not 
 answerable, as for an alteration in the sheriff's warrant. But if in 
 the first action the defendant be discharged, or the baU exonerated, 
 or the proceedings rendered unavailable, from the default or laches 
 of tlie plaintiff, as if the defendant be superseded in the first action 
 by reason of the plaintiff not proceeding against him in due time, 
 he will not be allowed to hold the defendant to bail a second 
 time. (4) 
 
 § 130. After a non pros, in the first action, if the plaintiff again 
 cause the defendant to be arrested for the same cause of action, he 
 will be discharged, unless the plaintiff show that the nonpros, arose 
 from some Baistake, or the like, and that the second arrest was not 
 for the purpose of vexing or harassing the defendant.(5) But if 
 the plaintiff discontinue the first action for any cause which would 
 render the proceedings in it nugatory, as when he had adopted a 
 wrong form of action ; (6) or brought it in a wrong court ;(7) he 
 may again hold the defendant to bail for the same cause after the 
 discontinuance of the first action is perfected by the costs being 
 taxed and paid. But in those cases it must clearly appear that the 
 second action is not vexatious, and the court will always intend it 
 to be vexatious until the contrary is shown.(8) 
 
 § 131. If the defendant has been wrongfully arrested without 
 process, or after it is no longer in force, or while he was privileged 
 from arrest, he cannot be lawfully detained in custody on other 
 process at the suit of the same plaintiff, though regularly issued.(9) 
 And when, by the contrivance of the plaintiff, the defendant is 
 
 (1) Comp. L. 1214. (2) 2 Stra. 1209 ; 6 T. E. 218. (3) 1 Taunt. 192. 
 
 (4) 3 East. 309 ; 1 Cowp. 72. (5) 1 Brod. i Bing. 289, 514. 
 
 (6) 2 was. 381. (7) 3 D. & R. 33. 
 
 (8) 3 Moore, 60V ; 4 id. 294. (9) 11 Price, 156 ; 2 H. Bl. 29 ; 9 Bing. 506. 
 
40 COMMENCEMENT OF ACTIONS. 
 
 brought into the state on criminal process as a mere pretext, he 
 will be discharged. (1) The rule is otherwise, however, in cases of 
 detainers or arrests by third persons, when there is no collusion 
 between them and the plaintiff. (2) 
 
 § 132. In the cases above treated of, the privilege from arrest 
 is of a permanent character. Others,'from motives of public policy 
 also, are temporarily privileged from arrest. Such are senators 
 and representatives in congress, during their attendance at the sess- 
 ions of their respective houses, and in going to and returning from 
 the same, except in cases of treason, felony, and breach of the 
 peace. (8) 
 
 § 133. Members of the state legislature are privileged from arrest 
 in all cases, except treason, felony, and breach of the peace, and 
 are not subject to any civil process during the session of the legis- 
 lature, and for fifteen days next before the commencement and after 
 the termination of each session ;(4) and no officer of either house, 
 while in actual attendance upon the duties of his ofi&ce, is liable to 
 be arrested on civil process.(5) 
 
 § 134. Attorneys, solicitors and counsellors are privileged during 
 their actual and necessary attendance on their respective courts, 
 except when sued with others, (6) and when attending upon a refer- 
 ence, and for a reasonable time after the hearing. (7) But the 
 attorney, solicitor or counsellor, must be employed in some cause 
 pending, and then to be heard in court, or he is not privileged.(8) 
 
 § 135. Other officers of courts of record are privileged during 
 the actual sittings of the courts of which they are ofl&cers, except 
 when sued with others, as we have already noticed.(9) 
 
 § 136. Parties to a suit are privileged from arrest on civil pro- 
 cess while going to, attending, and returning from court.(lO) Nor 
 is a party bound to go the nearest way home, if he do not abuse 
 his privilege for the purpose of going about other business of his 
 own.(ll) This privilege also extends to an attendance for the pur- 
 pose of justifying bail;(12) or opposing an insolvent discharge ;(13) 
 
 (I) 10 Wendell, 636. (2) 2 B. & Aid. 143. (3) Const. U. S., art. i, § 6. 
 (4) Const, art. iv., § 1. (6) Comp. L. 93. (5) Comp. L. 1127. 
 
 (7) 2 Wendell, 25t. (8) 4 Wendell, 209 ; 5 id. 90; 4 Hill, 59. 
 
 (9) Comp. L. 1127. (10) 1 H. Bl. 636; 3 Mass. 288; 1 Burr. Pr. 92. 
 
 (II) 4 Dallas, 329. (12) 1 M. i S. 638. (13) 6 Taunt 356. 
 
41 
 
 or before inferior courts, arbitrators or referees, or a sheriff on the 
 execution of a writ of inquiry.(l) 
 
 § 137. Witnesses, duly and in good faith subpoenaed to attend 
 any court, officer, commissioner, auditors or referees, or summoned 
 to attend any judge, officer, or commissioner, in any case when 
 their attendance may, by law, be enforced by attachment or war- 
 rant, are exonerated from arrest in any civil suit, while going to 
 the place where they are required to attend, while remaining in 
 attendance as such witnesses, and while returning therefrom. (2) 
 
 § 138. Every arrest of a witness made contrary to the statute is 
 void, and deemed a contempt of the court issuing the subpoena, 
 and the person making or procuring the arrest is made responsible 
 to the witness in three times the amount of damages found by the 
 jury, and is also liable to an action at the suit of the party who 
 subpoenaed the witness, for the loss, hindrance, and damage sus- 
 tained by him in consequence of the arrest. But no officer or per- 
 son is so liable, unless the person claiming an exemption from 
 arrest, shall, if required, make an affidavit, stating, 1. That he has 
 been legally subpoenaed as a witness to attend before some court, 
 officer, auditors, referees or commissioner, specifying the same, the 
 place of attendance, and the cause in which he was subpoenaed ; and 
 2. That he has not been subpoenaed by his own procurement, with 
 intent to avoid the service of any process. Such affidavit will ex- 
 onerate the officer from all liability for not making such arrest.(3) 
 
 § 139. Electors, in all cases except treason, felony, and breach of 
 the peace, are privileged from arrest during their attendance at 
 elections, and while going to and returning from the same.(-i) 
 
 § 140. On receiving the writ the sheriff proceeds to execute it, 
 either in person, or by his under sheriff, or a general deputy ; or 
 he may specially deputize any person selected by the plaintiff or 
 his attorney to execute it.(5) But the sheriff is not responsible for 
 the acts of such special deputies, and cannot be compelled to return 
 a writ executed by them. (6) The writ is executed by arresting 
 the body of the defendant and keeping him in custody until he is 
 discharged according to law.(7) 
 
 (1) 3 Cowen, 381; 4 Moore, 3i. (2) Comp. L. 117t. 
 
 (3) Comp. L. 117Y, 1178. (4) Const, art. viii, § 3. 
 
 (5) 5 J. E. 137. (S) 4 T. R. 119 ; 8 id. 505. (7) Comp. L. 1138. 
 
42 COMMEXCEMENT OF ACTIONS. 
 
 § lil. The arrest is most generally made by an actual touching 
 of the person, accompanied by a declaration of the officer to the 
 effect that he makes the defendant his prisoner ; but if the defend- 
 ant be within the power of the officer, and submits to the arrest, 
 it is sufficient.(l) It may be made on any day after the issuing, 
 and before or on the return day of the writ, Sundays excepted ;(2) 
 but not after the return day;(3) and it may be made at any place 
 within the sheriff's county. 
 
 § 142. But the arrest cannot be made in the defendant's own 
 house, if the outer door be shut,(4) unless for the purpose of retak- 
 ing him after an escape.(5) If, however, the sheriff obtain peace- 
 able admission at the outer door, or enter through a back door while 
 open, he may break an inner door for the purpose of making the 
 arrest.(6) 
 
 g 143. A special deputy must show his warrant at the time of 
 making the arrest.(7) And although a sheriff or other regular offi- 
 cer making an arrest within his proper county has been held not 
 to be bound to show his process, even when demanded,(8) yet he 
 ought to inform the defendant that he has a warrant, or otherwise 
 raai^e known that he comes in his official character to execute legal 
 process.(9) 
 
 § 144. On being arrested, the defendant is entitled to be dis- 
 charged, upon executing to the officer making the arrest, with the 
 addition of his name of office, a bond, in a penalty equal to the 
 amount specified in the order for bail, or in double the amount 
 specified in the affidavit attached to the writ, as the case may be, 
 with two sufficient sureties, conditioned that the defendant will 
 appear in the action by putting in special bail within twenty days 
 after the return day specified in the writ, and by perfecting such 
 bail if required.(10) 
 
 § 145. Form of bail bond to the sheriff. 
 
 Know all men by these presents : That we, C. D. of 
 [or, if the defendant be arrested by a wrong name, say, 
 
 "C. I), arrested by the name of E. D. of ,] E. F. of , 
 
 and G. H. of , are held and firmly bound unto J. K., Esq., 
 
 (1) 1 Wendell, 215. (2) Comp. L. 500. (3) 2 Esp. 685. 
 
 (4) Cowp. R. 1. (5) 10 "Wendell, 300. (6) 17 J. R. 126, 12. 
 
 (7) 24 Wendell, 418. (8) 10 Wendell, 514. (9) 2 Hill, 86. 
 (10) Comp. L. 1138, 1139. 
 
43 
 
 sheriff of the county of — ^ , in the sum of dollars, lawful 
 
 money, to be paid to the said sheriff, or his certain attorney, execu- 
 tors, administrators, or assigns ; for which payments, well and truly 
 to be made, we bind ourselves, our heirs, executors and admin- 
 istrators, jointly and severally, firmly by these presents. Sealed 
 with our seals. Dated tlie — day of — ■ — , A. D. — ■ — ■. 
 
 Whereas, A.B. has sued and prosecuted out of the circuit court 
 for the county of—— — , a certain writ of capias ad respondendura, 
 against the above bounden C. D., in a plea of trespass, [or, as the 
 
 plea is in the writ,] returnable on the — day of next, before 
 
 the same court, at , in the said county of , by virtue 
 
 of which said writ the above bounden C. D. has been arrested by 
 the above named sheriff. Now, therefore, the condition of this 
 obligation is such that if the above bounden C. D. shall appear in 
 the action commenced by the said writ, by putting in special bail 
 within twenty days after the return day specified in the said writ, 
 and by perfecting such bail if required, according to the rules and 
 practice of the said court, the above obligation to be void ; other- 
 wise to remain in full force and virtue. C. D. [l. s.] 
 
 E. F. [L. s.] 
 G. H. [L. s.] 
 
 [ I § 146. Assignment of the above bond by the sheriff. 
 
 Know all men by these presents : That I, J. K., sheriff 
 
 of the county of , do hereby assign the within bail bond to 
 
 the within named A. B., at his request, to be sued for by him 
 according to the form, force and effect of the statute in such cases 
 made and provided. 
 
 In testimony whereof I have hereunto set my hand and seal, 
 this — day of , A. D. ■ . J. K, Sheriff, [l. s.] 
 
 § 147. Bond to the coroner, where sheriff is plaintiff. 
 
 Know all men bt these presents : That we, C. D. of 
 E. F. of , and G. H. of , are held, and firmly 
 
 bound unto L. M., Esquire, coroner of the county of - 
 
 the sum of , &;c. 
 
 Whereas J. K., Esquire, sheriff of the county of , has 
 
 sued, &c., [as in the bond to the sheriff to the end, -substituting 
 coroner for sheriff^ 
 
 § 148. The officer taking a bail bond on the arrest of a defend- 
 ant, is required to give to the sureties a bail piece, signed by him, 
 in substance as follows : 
 
 State of Michigan, \ 
 
 ■ County, j ' 
 
 On this — day of , one thousand eight hundred and 
 
 , C. D. is bailed by E. F. and G. H. of the county of , 
 
44: COMMKNCEMENT OF ACTIONS. 
 
 ■upon a capias ad respondendum, returnable in the circuit court for 
 
 the county of , on the — day of , at the suit of A. B., in 
 
 a plea of trespass for as the case may be.] 
 
 J. K, Sheriff. 
 
 § 149. It will be observed that the statute prescribes the form 
 in which the bail bond shall be executed, and this form must be 
 substantially followed, or the bond will be void. It is suSicieut, 
 however, if it conform substantially to the form prescribed, and 
 do not vary in any matter to the prejudice of the rights of the 
 party to whom, or for whose benefit, it is given. (1) Upon the 
 execution and delivery of the bond, the officer will discharge the 
 defendant ; and he may, if he pleases, discharge him without re- 
 quiring a bond ; but if he do so, it is at his own peril, and he will 
 be liable in an action for an escape in such case, unless he have 
 the defendant in actual custody at the return of the writ, or put 
 in and perfect special bail for him. 
 
 § 150. But if the defendant refuse or be unable to give the 
 bail required on the arrest, the sheriff will detain him in custody, 
 and commit him to the jail of the county. In such case, however, 
 the defendant is entitled to the liberties of the jail, which are co- 
 extensive with the limits of the county, upon his executing a 
 bond to the sheriff, with one or more sufficient sureties, being 
 inhabitants and householders of the county, in a penalty not less 
 than double the amount in which the sheriff was required to hold 
 him to bail, conditioned that he shall not, at any time or in any 
 manner, escape or go without the jail limits of the county until 
 legally discharged.(2) 
 
 § 151. Bond for the limits. 
 
 Know all men by these presents : That we, C. D. of 
 B. F. of , and G. H. of , are held, and firmly 
 
 bound unto J. K., Esquire, sheriff of the county of , in the 
 
 sum of dollars, lawful money, to be paid to the said J. K., 
 
 Esquire, or to his certain attorney, executors, administrators or 
 assigns : for which payment well and truly tb be made, we bind 
 ourselves, our heirs, executors and administrators, jointly and 
 severally, firmly by these presents. Sealed with our seals. Dated 
 
 this — day of , A. D. . 
 
 Whereas, the above bounded C. D. is now in custody of the 
 above named sheriff, by virtue of a writ of capias ad respondendum 
 
 issued out of the circuit court for the county of , at the 
 
 Buit of A. B. against the said C. D., in a plea of trespass [or as the 
 
 (1) Comp. L. 1226, 1227. (2) Comp. L. 1450. 
 
ESCAPE, EESCUE. 45 
 
 form of the action may be,] for the sum of dollars, tested on the 
 
 — day of , and returnable on the — day of next. Now, 
 
 therefore, the condition of this obligation is such, that if the above 
 boundea C. D., so in custody of the above named sheriff, shall 
 remain a true and faithful prisoner, and shall not, at any time, or 
 in any manner, escape or go without the jail limits of the said 
 
 county of until legally discharged, then this obligation to 
 
 be void ; otherwise to remain in full force and virtue. 
 
 C. D. [L- s.] 
 B. F. [L. s.] 
 G. H. [L. s.] 
 
 § 152. Such bond is held for the indemnity of the sheriff, and 
 of the party at whose suit the prisoner is confined. If the sheriff 
 discover that any surety to the bond is insufficient, he is author- 
 ized to commit the prisoner to close confinement in jail, until other 
 good and sufficient sureties are offered.(l) 
 
 § 153. If the defendant escape, or he be suffered to go at large 
 out of the sheriff's custody, he may be retaken at any time before 
 the return of the capias,{2) but not after it;(3) and after a negligent 
 escape the sheriff may in all cases retake the party,(4) even on a Sun- 
 day.(5) If any person obstruct or prevent the sheriff or his officer 
 from retaking the defendant after his escape, the court, upon appli- 
 cation, supported by an affidavit of the facts, will issue an attach- 
 ment against him. (6) If the sheriff fail to retake the defendant after 
 an escape, he is liable to an action therefor.(7) 
 
 § 154. An escape is negligent when the party escapes without 
 the consent of the sheriff or his officer, and voluntary when the 
 sheriff or his officer permits him to go at large.(8) If, after the de- 
 fendant has been arrested, and before he is committed to prison, he 
 be rescued from the custody of the sheriff^ such rescue will excuse 
 the officer from having his body in custody at the return of the 
 writ; (9) but if rescued after committal, the sheriff will be answer- 
 able as for an escape.(lO) 
 
 § 155. Eescuing a defendant from the custody of the sheriff is 
 considered as a contempt of the process of the court, and may be 
 punished as sach by fine and imprisonment, or either ;(11) and also 
 by indictment.(12) 
 
 (1) Comp. L. 1450. (2) 2 T. K. 172, 176, 177. (3) 4 M. & S. 397. 
 
 (4) 1 Saund. 35. (5) 1 Tidd's Pr. (ed. 1840,) 218 ; 1 Arch. Pr. 85. , 
 
 (6) 1 Arch. Pr. 86. (7) 5 J. E. 182. (8) 1 Arch. Pr. 85. 
 
 (9) Cro. Jac. 419. (10) 5 Burrows' S. 2812. (11) Comp. L. 1128. 
 
 (12) Comp. L. 1133, 1533. 
 
46 COMMENCEMENT OF ACTIONS. 
 
 § 156. The sheriff is commanded, by the terms of the capias, to 
 have the writ in court on the return day, at which time he must 
 report his doings thereupon, which is called the sheriff's return. If 
 the capias has been fully executed, the sheriff to whom it was di- 
 rected returns it in his own name, notwithstanding the election of a 
 new sheriff.(l) But if the defendant be imprisoned at the time of 
 delivering the jail and its appurtenances to the new sheriff, and the 
 capias be not then returnable, it must be delivered to the new 
 sheriff, whose duty it will then be to return it, with the proceedings 
 of the former and of the new sheriff thereon. (2) 
 
 § 157. The return is made by an indorsement of the sheriff 
 thereon, signed by him, expressing the manner in which the writ 
 was executed, and filing it in the office of the clerk of the court out 
 of which it issued. The following forms indicate the return pro- 
 per to be indorsed upon the writ, according as the circumstances 
 may be : 
 
 § 158. Return when defendant has been arrested, and is out on hail. 
 
 I have taken the within named defendant, whose body I. 
 have ready, as within I am commanded. 
 
 The answer of J. K., Sheriff. 
 
 § 159. When defendant is imprisoned for want of hail. 
 
 I have taken the within named C. D., who remains im- 
 prisoned in the common jail of the county of , in my cus- 
 tody, for want of bail. The answer of J. K,, Sheriff. 
 
 § 160. Defendant not found. 
 
 The within named defendant is not found in my county. 
 
 The answer of J. K., Sheriff. 
 
 § 161. One defendant taken, and one not found. 
 
 I have taken the within named G. D., whose body I have 
 ready, as within I am commanded ; but the within named E. F. 
 is not found in my county. The answer of J. K., Sheriff. 
 
 § 162. Rescue, when the arrest was made hy the sheriff in person. 
 
 By virtue of this writ to me directed, I took and arrested 
 the within named C. D. according to the exigency of the said writ, 
 
 and safely kept him in my custody until Gr. S. of , and divers 
 
 other persons to me unknown, on the — ■ day of , at , 
 
 with force and arms assaulted and ill treated me, and the said C. D. 
 
 (1) Comp. L. 210. (2) Comp.L. 209. 
 
KETUEX OF CAPIAS. 47 
 
 out of my custody then and there rescued ; and the said C. D. then 
 and there, with force and arms, rescued himself and escaped out of 
 my custody, against the peace of the people of the state of Michi- 
 gan ; and afterwards the said C. D. is not found in my bailiwick. 
 
 The answer of J. K., Sheriff. 
 
 § 163. Discharge on supersedeas. 
 
 By virtue of the within writ, to me directed, I took the 
 "Within named defendant and safely kept him in my custody in the 
 
 common jail of the county of , until afterwards, to wit : on 
 
 the — day of , by virtue of a certain other writ to me 
 
 directed and delivered, and to this writ annexed, I caused the said 
 defendant to be delivered out of the said jail ; wherefore I cannot 
 have the body of the said defendant before the said circuit court 
 
 for the county of , at the day and place within contained, 
 
 as within I am commanded. The answer, &c. 
 
 § 164. Delivery over on lorit of habeas corpus. 
 
 By virtue of the within writ to me directed, I took tbe 
 within named defendant and safely kept him in the common jail 
 
 of the county of , until afterwards, to wit : on the ■ — day 
 
 of , I received the writ oi habeas corpus cum causa, command- 
 ing me to have the body of the said defendant before the justices 
 of the supreme court of the state of Michigan, [or, as tbe case 
 may be,] at , on the — ■ day of then next, [or " imme- 
 diately after the receipt of that writ."] By virtue of which said writ, 
 and in obedience thereto, I had the body of the said defendant with 
 the said last mentioned writ, and the return ef the within cause in 
 a certain schedule thereunto annexed, before the said justices of 
 the supreme court of the state of Michigan, [or, as the case may 
 be,] at the day and place in the said writ contained, who then 
 received of me the body of the said defendant, and discharged 
 him out of my custody, [or " committed him to the common jail of the 
 
 county of ,"] and altogether discharged and exonerated me 
 
 from further keeping the said defendant ; wherefore I cannot have 
 the body of the said defendant before the said circuit court for the 
 
 county of , at the day and place within contained, as within 
 
 I am commanded. The answer, &c. 
 
 § 165. Stay of proceedings. 
 
 After the receipt of the within writ, and before I was able 
 to arrest the defendant, as I am within commanded, an order, a 
 copy of which is hereto annexed, was served upon me, and there- 
 upon all further proceedings by me under the within writ Avere 
 stayed. The answer, kc. 
 
 § 166. If the sheriff return to the capias that the defendant is 
 not found, a second writ may be issued, called an alias capias, 
 
43 COMMENCEMENT OF ACTIONS. 
 
 which is in all respects like the first, except the mandate, which 
 is as follows : " We command you, as we have before command- 
 ed you, that," &c. If to the alias capias the sheriff return not found, 
 a third writ may be issued, called a pluries capias, in which the 
 mandate is, " We command you, as we have often times before 
 commanded you," &c. In all other respects it is like the original 
 capias ; and it is issued in the same manner, and may be repeated 
 in the same form, from time to time, until the defendant is arrested. 
 
 § 167. If the defendant should have left the county in which 
 the writ originally issued, no testatum capias can be issued into 
 another county ; but if the action be transitory, the plaintiff may 
 cause a new writ to be issued out of the circuit court for the county 
 in which he then resides. When there are several defendants, 
 and the capias be returned, as to one or more, of them, not found, 
 the plaintiff may have a writ of capias simul cum against such de- 
 fendants, the form of which is the same as that of the ordinary 
 capias, inserting, after the words " to answer," the following words, 
 " together with C. D.," (the defendant already taken.) 
 
 § 168. If the writ be returned that the defendant is imprisoned 
 for want of bail, the defendant is considered as having duly 
 appeared, and the plaintiff may proceed in the action. But if the 
 sheriff returns the writ that he has taken the defendant and has 
 his body ready (which is the return when the defendant has been 
 discharged on bail), the defendant's appearance, according to the 
 exigency of the writ, can be effected in no other way than by his 
 putting in special bail, agreeably to the condition of the bail 
 bond.(l) The plaintiff may, therefore, at his option, either wait 
 until the expiration of the time for putting in special bail, or at 
 once may, if the bail to the sheriff be satisfactory, file a declaration, 
 and proceed to judgment in the action ; and this proceeding will 
 not release the appearance bail. (2) 
 
 § 169. If the sheriff make a false return to the writ, as if he re. 
 turn not found, where he might have arrested the defendant, he is 
 liable to an action for a false return ;(3) and if he return that he 
 has taken the defendant and has his body ready, and no bail bond 
 has been given, or if the bond given be void, the plaintiff may pro- 
 ceed against the sheriff by action as for an escape.(4) 
 
 (1) 1 Arch. Pr. 102. , (2) Rules 16, 20. 
 
 (3) 2 Esp. R. 416. (4) 5 J. R. 182. 
 
defendant's proceedings. 49 
 
 § 170. On the return of cepi corpus (defendant taken), if special 
 bail be not put in by the defendant within twenty days after the 
 return day of the writ, or be put in, but not perfected according to 
 the rules and practice of the court, the plaintiff may either take 
 compulsory measures to obtain the bail, or he may waive his right' 
 to it. K he chooses to take compulsory proceedings to obtain bail, 
 he may pursue either of the two following courses: 
 
 § 171. 1. If he be satisfied with the bail taken by the officer 
 serving the writ, he may take an assignment of the bail bond, and 
 proceed to sue thereon in his own name.(l) This is the usual 
 course when the plaintiff is satisfied that the bail are sufficient ; 
 but it caniwt be pursued after ruling the sheriff to put in and per- 
 fect special bail, unless the sheriff chooses to assign it.(2) On the 
 other hand, by taking the assignment, if the bond be valid, the 
 plaintiff thereby discharges the sheriff, and cannot afterwards pro- 
 ceed against him. (3) 2. If the bail to the sheriff are not satisfac- 
 tor\', the plaintiff may proceed against the sheriff by ruling him to 
 put in special bail, and proceeding in the manner indicated in a 
 subsequent chapter.(4) \ 
 
 § 172. On being arrested by virtue of the capias, if such arrest 
 be regularly made, and for a sufficient cause of action, the defend- 
 ant will either obtain his discharge by paying the demand and 
 costs, or by giving bail to the sheriff, or remain in custody. If, 
 however, the arrest has been improperly made, or without sufficient 
 cause, he may, after giving bail, or while detained in custody, take 
 measures to obtain his discharge, either absolutely, or upon terms ; 
 or, if the proceedings have been irregular, he may, without refer- 
 ence to the merits of the arrest, have them set aside on application 
 
 to the court. 
 
 • 
 
 § 173. If the defendant be a privileged person at the time of the 
 arrest, he may apply to the judge at chambers, or to the court in 
 terra, for an order discharging him absolutely, or upon indorsing 
 his appearance on the writ, or filing common bail, as the case may 
 require. 
 
 § 174. If the defendant be liable to the arrest, he must, as we 
 have seen, execute the bond to the sheriff required by the statute, 
 in order to procure his release from the immediate custody of the 
 
 (1) Comp. L. 1142. (2) 15 East. 215 ; 1 Ardb. Pr. 94. 
 
 (3) 2 Sannd. 60, i. (4 Comp. L, 1142, 1143. 
 
50 COMMENCEMENT OF ACTIONS. 
 
 officer. The object of this kind of bail is to insure the appearance 
 of the defendant in the action, by putting in special hail, or bail to 
 the action, -which is the plaintiff's principal security, and which it 
 was the original object of the capias to obtain, while it subserves 
 the immediate convenience of the defendant by procuring his 
 release. ■ 
 
 § 175. These two species of bail are called indifferently bail to 
 the sheriff and special bail ; appearance bail and bail to the action ; 
 and bail heloiu and bail above. 
 
 The sheriff is bound to take the bail bond and discharge the 
 defendant, if the sureties are sufficient, and the bond offered con- 
 forms to the requirements of the statute, and if he refuse to do so 
 he is liable to an action on the case.(l) 
 
 § 176. If the defendant require the assistance of an attorney, he 
 should employ one before taking any step which may be preju- 
 dicial to his rights in the cause ; and on being retained, his attorney 
 should proceed to give notice thereof to the plaintiff's attorney, 
 otherwise the plaintiff may proceed as if no attorney had been em- 
 ployed.(2) 
 
 § 177. Notice of retainer. 
 
 The Circuit Couet for the County op . 
 
 C. D. 
 
 ads. 
 
 A. B. 
 
 Sir : — Please to take notice that I am retained as attorney for 
 the defendant in this cause. Dated Detroit, August 10, 1859. 
 
 Yours, &c., 
 
 G. H., Defendant's Attorney. 
 To E. F., Esq., Plaintiff's Attorney. 
 
 § 178. If it happen that the plaintiff has not even a prima facie 
 cause of action, or that the arrest was made before the cause of 
 action accrued, or that the action is in itself not bailable, or that 
 bail is required for an exaggerated amount, the defendant, before 
 putting in special bail, may apply to the court, or to the judge at 
 chambers, or circuit court commissioner, for an order requiring 
 the plaintiff to show cause why the defendant should not be dis- 
 charged on indorsing an appearance, or on filing common bail, or 
 why the sum in which he is held to bail should not be mitigated 
 or reduced according to the circumstances of the case. 
 
 (1) T J. R. 138, 315. (2) Rule 8. 
 
PUTTING IN BAIL. 51 
 
 § 179. And if there be any irregularity in the proceeding^ 
 •ft'Lich cannot be cured by amendment, or if the defendant has been 
 arrested contrary to the provisions of the statute abolishing im- 
 prisonment for debt, the defendant, before appearing in the action, 
 may move the court to set aside the proceedings, and if in custody, 
 for his discharge on indorsing an appearance or filing common bail 
 and if he has given a bail bond to the officer, that it may be set 
 aside or delivered up to be cancelled.(l) 
 
 § 180. But the application must be made at as early a stage of 
 the proceedings as practicable after the return of the writ, (2) and 
 before the defendant has appeared to it ; for if he appear to it, as 
 we hav-e already seen, even though it be absolutely void, and he 
 be ignorant of the fact at the time of appearance, he will be re- 
 garded as regularly in court, and the proceedings will not be set 
 aside. (3) The details of these several proceedings will be treated 
 of more at large in a subsequent part of this work. 
 
 § 181. If there be no occasion for any of these preliminary pro- 
 ceedings on the part of the defendant, and he have given bail for 
 his appearance, his next step will be to put in special bail, and per- 
 fect the same if required. This must be done, and notice thereof 
 given to the plaintiff's attorney, in accordance with the condition 
 of the bond ; that is to say, within twenty days after the return day 
 of the capias. The recognizance of the specia,l bail may be taken 
 before any justice of the supreme court, or any circuit judge, cir. 
 cuit court commissioner, or clerk of any court of record, and must, 
 be filed in the office, of the clerk of the court in which the action is 
 pending.(4) 
 
 § 182. The form of the recognizance prescribed by the statute (5) 
 is as follows : 
 The Ciecuit Court for the County of , 
 
 A. B. I 
 vs. \ In trespass [or as the action may be,] 
 
 CD.) 
 
 County, ss : Be it remembered that on this — daj' 
 
 of , in the year eighteen hundred and , E. F. and G. H.', of 
 
 the county of , personally appeared before J. K. [describing 
 
 the officer], and severally acknowledged themselves to owe A. B., 
 
 the above named plaintiff, the sum of [the sum for which the 
 
 bail is required] each, to be levied upon their several goods and 
 
 (1) 10 "Wendell, 602 ; id. 301. (2) 1 Cowen, 43; l^Wendell, 292. 
 
 (3) 5 Cowen, 15 ; 7 id. 366. (4) Laws of 1858, p. 8 ; Comp. 1. 111. 
 
 (5) Comp. L. 1141. 
 
52 COMMENCEMENT OF ACTIONS. 
 
 chattels, lands and tenements; upon condition that if 0. D., the 
 defendant, shall be condemned in this action at the suit of A. B., the 
 plaintiff, he, the said C. D., shall pay the costs and condemnation of 
 the court, or render himself into the custody of the sheriff of the 
 county of , [the county in which the defendant was arrest- 
 ed,] for the same, or, if he fail to do so, that the said E. F. and G. 
 H. will pay the costs and condemnation for him. E. F. 
 
 Taken and acknowledged, the day and ) G-. H. 
 
 year above written, before me, j 
 
 J. K., Clerk, &c. 
 
 § 183. Upon entering into the recognizance, the persons be- 
 coming bail are entitled to a bail piece from the officer taking the 
 recognizance, in substance as follows : 
 
 The Circuit Court for the County of . 
 
 County, ss : On this — day of , eighteen hundred 
 
 and , 0. D. is delivered to bail on a cepi corpus, unto E. F. 
 
 and Gr. H., of the county of , at the suit of A. B., of a plea of 
 
 trespass, [or as the action may be]. 
 
 J. K., Clerk, [or judge, &c]. 
 
 Persons becoming special bail ought to be residents of this state, 
 and severally worth the sum in which the defendant is held to bail 
 after all their debts are paid.(l) 
 
 § 184. Attorneys, and other officers of the different courts, 
 attorneys' partners and clerks, turnkeys and jailors, and persons 
 who have been once rejected as bail, have been held disqualified 
 from becoming special bail. (2) When the action is upon contract, 
 the bail are liable to the extent of the sum mentioned in the writ ;(3) 
 but in case of torts, they are liable only to the extent of the sum 
 mentioned in the order to hold to bail, or any less sum that may 
 be recovered. 
 
 § 185. The bail may relieve themselves from liability by a sur- 
 render of their principal ; and they are also discharged if an exe- 
 cution be not issued against the defendant and returned, as required 
 by the statute ; or if directions are given by the plaintiff or his 
 attorney to prevent the service of such execution, or if any other 
 fraudulent or collusive measure were used to prevent such service. 
 And if the defendant die after the return of the execution against 
 his bodv, and before the expiration of eight days from the retur':^ 
 of the process served on his bail, the court will relieve such bail 
 iipon the same terms as if they had surrendered their principal at 
 the time of his death.(4) 
 
 (1) Comp. L. 1142. (2) 1 Burr. Pr. 107, 108. 
 
 (3) 1 Co-wen, 601. (4) Comp. L. 1144. 
 
PUTTING IN BAIL. 53 
 
 § 186. "When the defendant is in custody, bail may be put in at 
 any time, even after verdict or final judgment ;(1) but not after the 
 issuing of a ca. sa.{2) If the defendant was sued by a wrong name, 
 the bail piece should state his right name, and that he was sued by 
 the name in the capias. Thus : " C. D., sued by the name of E. 
 F., is delivered," &c.(3) 
 
 § 187. After the recognizance of bail has been filed, notice 
 thereof in writing mtist be given to the plaintiff's attorney without 
 delay, and within the time allowed for putting in bail, and if such 
 notice is not given, the plaintiff may proceed as if none had been 
 put in.(4) The notice should be entitled in the cause, and set 
 forth the names of the bail and their places of business, so as to 
 afford the plaintifi' an opportunity to inquire into their sufiiciency. 
 
 § 188. Notice of special hail. 
 [Title of court and caxise.] 
 
 Sir: — Please to take notice that E. F., of the village of , in 
 
 the county of , grocer, and G. H., of the ward, of the 
 
 city of — — , carriage maker, have become special bail for the de- 
 fendant in this cause, and that their recognizance as such bail has 
 been duly filed in the ofiice of the clerk of this court. 
 
 Dated, [Detroit, August 10, 1859.] 
 
 Yours, &c., 
 
 J. N., Attorney for Defendant. 
 To J. K., Esq., Plaintiff's Attorney. 
 
 § 189. If, on receiving such notice, the plaintiff be dissatisfied 
 with the bail, he is entitled to except to them within twenty days, 
 which is done by an indorsement to that effect upon the recogni- 
 zance on file, and giving notice thereof, in which case bail must be 
 perfected within ten days after notice of such exception.(5) 
 
 § 190. The bail may justify by afiidavit, before any officer 
 authorized to take, recognizance of bail ; which afi&davit must set 
 forth the township or city, and county in this state, in which the 
 bail reside, and that they are severally worth the sum in which the 
 defendant is held to bail, after all their debts are paid.(6) 
 
 It does not appear to be expressly required, under our rules, that 
 the justification of bail should be preceded by any notice thereof 
 But notice of justification ought to be given, in order that the 
 plaintiff maj' have an opportunity to object to the competency of the 
 
 (1) 2 Chitt. R. 11, 73. (2) 1 B. & Aid. 212 ; 2 Marsh, 374. 
 
 (3) 1 Arch. Pr. 104. (4) 6 Cowen, 608 ; 4 id. 51. 
 
 (5) Oomp. L. 1142. (6) Comp. L. 1142. 
 
54 COMMENCEMENT OF ACTIONS 
 
 persons who are offered as bail. If tlie bail already put in are 
 unable, or do not intend to justify, others must be added or sub- 
 stituted in their places, who must justify in the manner, and within 
 the time, before mentioned.(l) 
 
 § 191. If bail is not perfected within the time limited therefor, the ' 
 plaintiff may proceed either on the bail bond or against the sheriff, 
 in the same manner as if none had been put in. But if he does 
 not except to the bail in season, and give due notice of his excep- 
 tion, he is deemed to have waived any insufficiency of the bail, 
 or irregularity in the proceedingSf and cannot, therefore, proceed 
 on the bail bond, even though the bail put in were persons dis- 
 qualified from being bail, or were otherwise insufficient.(2) In 
 such case the bail becomes absolute, and the defendant is con- 
 sidered as having duly appeared in the action. 
 
 § 192. In case of the discharge of .a defendant upon filing com- 
 mon bail, or indorsing his appearance upon Jihe writ, the defendant 
 will be regarded as duly in court, and may be proceeded against 
 in the same manner as if the suit had been commenced by sum- 
 mons, and the process returned personally served. 
 
 § 193. The summons is an original writ, and may be issued in 
 vacation or term time, be tested on the day it issues, and be made 
 returnable on the first Tuesday of any month,, or on any day in 
 term ; but it cannot be made returnable more than three months 
 from its date, unless more than that time intervenes before the 
 next term, in which case it must be returnable on or before the 
 first day of the next term. (3) All actions for the recovery of any 
 debt, or for damages only, may be commenced by this writ. It 
 must be styled "In the name of the People of the State of Michi- 
 gan," and be tested, signed, sealed and indorsed in the same man- 
 ner as a capias ad respondendum. 
 
 % 194. Form of summons. 
 
 In the name of the People of the State op Michigan. To 
 
 the sheeiff of the county of : 
 
 [seal] We command you to summon C. D., if he may be 
 
 found in your county, to be and appear before our circuit 
 
 court for the said county of , at the court house in 
 
 in said county, on the — day of next [or, " instant"], then 
 
 and there to answer unto A. B., plaintiff in a plea of trespass [or 
 as the action may be], to his damage dollars, which shall 
 
 (1) 1 Arch. Pr. 107. (2) 2 East. 179 ; 8 J. R. 358. (3) Rule 13. 
 
BY SUMMONS. 55 
 
 then and there be made to appear, and have you then there this 
 writ. 
 
 Witness the Hon. , circuit judge of the judicial 
 
 circuit, at , this — day of , in the year of our Lord one 
 
 thousand eight hundred and . 
 
 , Clerk. 
 
 E. F., Plaintiff's Attorney. 
 
 § 195. If the plaintiff is not an inhabitant of this state, the 
 writ must be indorsed, before serving, by some sufficient person 
 who is an inhabitant of the state. Such indorser becomes liable to 
 pay all such costs as may be awarded against the plaintiff in the 
 suit, if an action be brought therefor within one year after the final 
 judgment in the original suit.(l) 
 
 § 196. Writs of summons must be served by showing the orig- 
 inal to the defendant, and delivering to him a copy thereof; and 
 on the return of the writ personally served, or with an acceptance 
 of service indorsed thereon by the defendant, he is considered in 
 court, and his appearance may be entered and he be proceeded 
 against accordingly.(2) This writ, like the capias, must be directed 
 to the sheriff of the county in which the action is cornmenced, and 
 can be served only within such county, or on waters or territory 
 within the jurisdiction of the circuit court for the county. 
 
 § 197. Sheriff's return to summons personally served. 
 
 I have summoned the within named defendant, as within I 
 am commanded, by showing to him the within original writ, and 
 delivering to him a true copy thereof. 
 
 The answer of J. K., Sheriff. 
 
 § 198. Return of summons, defendant not found. 
 
 The within named defendant is not found in my county. 
 
 The answer, &c. 
 
 ') 
 
 § 199. Return of one defendanl served, and one not found. 
 
 I have summoned the within named C. D., as within I am 
 commanded, by showidg to him the within original writ, and de- 
 livering to him a true copy thereof; but the within named L. M. 
 is not found in my county. The answer, &c. 
 
 § 200. Alias and pluries writs of summons may be issued in 
 
 (1) Comp. Is. 1137. (2) Comp. L. IIST ; Rule 20. 
 
56 COMMENCEMENT OF ACTIONS 
 
 succession, or a summons simul cum, if necessary, varying the 
 mandate, as in tlie capias, according as the circumstances require. 
 
 The defendant is deemed to have appeared in the action, when 
 he pleads, demurs, or gives the plaintiff written notice of his ap- 
 pearance, or when his attorney gives the plaintiff notice of appear- 
 ance or retainer generally ; and on filing such notice of appearance 
 or retainer, the plaintiff may have the appearance of the defendant 
 entered as of the time when such notice was served. (1) 
 
 § 201. If it should be necessary to have the appearance entered 
 as of a time prior to the filing of such notice, an affidavit should 
 be made of the time when it was served, and filed with the notice, 
 and thereupon the appearance may be entered in the common rule 
 book. Such a necessity, however, will seldom occur in practice. 
 The filing of the notice of appearance or retaiuer would, of itself, 
 be evidence of an appearance at the time of such filing. 
 
 It is not necessary that the writ should be served, or placed in 
 the hands of the ofiicer for that purpose, if the defendant will 
 indorse his acceptance of service upon it without formal service. 
 
 § 202. Acceptance of service oj writ. 
 
 I, C. D., the defendant in the within writ named, do hereby 
 
 accept due service thereof upon me, this — day of — — , A. D. , 
 
 and pray the court that my appearance may be entered accordingly. 
 Dated, &c. C. D. 
 
 § 203. All actions which may be commenced by capias or sum- 
 mons, may, at the option of the plaintiff, be commenced by filing 
 in the office of the 'clerk of the court a declaration, entering a rule 
 in the common rule book kept by the clerk, requiring the defend- 
 ant to plead thereto within twenty days after the service of a copy 
 thereof and notice of such rule, and serving a copy of such declaration 
 and notice of such rule personally on the defendant ; and this mode 
 of commencing an action may be adopted against any person, 
 whether privileged from arrest or not ;(2) and against infants as 
 well as adult persons.(3) 
 
 § 204. The general form of the declaration is the same as in a 
 siiit commenced by writ, omitting any statement that the defend- 
 ant is in custody, or has been summoned, &c. It is usual and 
 proper, however, so to frame the commencement of the declara- 
 tion, as to indicate that it is filed in pursuance of the statute, and 
 the following form, in substance, is generally used : 
 
 (1) Eule 11. (2) Comp. 1136. (3) Comp. L. 1288. 
 
by declaration. 57 
 
 § 205. The Circuit Court for the County of . 
 
 . — County, ss : A. B., plaintiff in this suit, by E. F., 
 
 his attorney [or, " in his own proper person"] comes into this 
 court according to the form of the statute authorizing the com- 
 mencement of suits by declaration, and complains of C. I)-, defend- 
 ant in this suit, of a plea of trespass on the case upon promises [or 
 as the action may be], &c. 
 
 It is not necessary to entitle the declaration of any term of the 
 court, or of any day in term or vacation, nor to mention the name 
 of the state in the statement of the venue.(l) The indorsement of 
 the time of filing by the clerk, and his entry of the date in the 
 "calendar," show when it was exhibited. 
 
 § 206. The rule to plead is entered by the plaintiff's attorney, 
 or by the clerk, immediately on filing the declaration, and the 
 date of the entry is noted therein. 
 
 Bule to plead. 
 A. B. ) 
 
 vs. } 1859, August 10. M. L., Attorney. 
 C. D. ) 
 
 On filing declaration in this cause, pursuant to the statute 
 authorizing the commencement of suits by declaration, and on 
 motion of M. L., Esq., attorney for the plaintiff, it is ordered, that 
 the defendant in said cause plead to the said declaration within 
 twenty days after service of a copy thereof, and notice of this rule, 
 or judgment, &c. 
 
 § 207. As many copies of the declaration are prepared as there 
 are defendants to be served, besides the office copy which the 
 attorney retains, and a copy to return ; and upon each of these a 
 notice of the rule to plead is indorsed, one of which is to be served 
 on each of the defendants by delivering it to him personally. 
 
 § 208. Notice of rule to plead. 
 
 To THE WITHIN NAMED DEFENDANT : Please to take notice 
 that on filing a declaration; of which the within is a true copy, in 
 the office of the clerk of this court, a rule was duly entered requir- 
 ing you to plead to the said declaration within twenty days after 
 service of a copy thereof, and notice of said rule, or judgment, &c. 
 
 Yours, &c., 
 
 E. F., Plaintiff's Attorney. 
 
 § 209. The service may be made on the defendant by the 
 plaintiff, or any other person, or by the sheriff; and when a copy 
 
 (1) Comp. L. 1228. 
 
58 COMMENCEMENT OF ACTIONS 
 
 of the declaration and notice to plead are delivered to the sheriff 
 for that purpose, it is his duty to serve the same with all conve- 
 nient speed, and return them, with his certificate indorsed thereon 
 of the time and manner of the service ; either to the clerk of the 
 court, or to the plaintiff's attorney. If served by the sheriff, his 
 certificate is sufficient evidence of service ; but if served by a pri- 
 vate person, an affidavit of the service is required. Such certifi- 
 cate or affidavit of service are indorsed upon a copy of the declara- 
 tion and notice, or annexed thereto ; and upon filing the same with 
 the clerk, the appearance of the defendant may be entered in the 
 same manner as if process had been duly served and returned.(l) 
 
 § 210. Sheriff'' s certificate of service of copy of declaration, and 
 n otice of rule to plead. 
 
 On this — day of , A. D. , I served a copy of declara- 
 tion with a notice of rule to plead, of which the within and in- 
 dorsed are also true copies, on C. D., the defendant therein named, 
 by delivering the same to him personally. 
 
 J. E., Sheriff. 
 
 § 211. The service of the copy of declaration and notice of 
 the rule to plead, renders the commencement of the suit complete ; 
 but whether the filing of the declaration and entry of the rule in 
 good faith, like the delivery of a writ to the sheriff absolutely and 
 unconditionally to be served, would be such a commencement as 
 to save the effect of the statute of limitations, may be a question 
 admitting of some doubt. (2) The defendant may appear in the ac- 
 tion by pleading, demurring, or causing notice of appearance or of 
 retainer to be given as in other actions ; and after appearance, the 
 subsequent proceedings are the same as if the suit had been com- 
 menced by summons. 
 
 § 212. The action of ejectment is also commenced by the filing 
 of a declaration, entering a rule to plead, and serving a copy of the 
 declaration with notice of such rule, in the same manner as in 
 personal actions, with the following exceptions, to wit: 1. If 
 the premises are actually occupied, the declaration may be 
 served by delivering a copy thereof, .with the notice of rule to 
 plead, to the defendant named therein who shall be in the occupa- 
 tion thereof, personally, or by leaving the same with some person 
 of proper age at the dwelling house of such defendant, if he be 
 absent. 2. If any defendant named in such declaration shall not 
 
 (1) Comp. L. 1136, list. (2) See Graham's Pr. (2d. ed.) 460. 
 
BY DECLARATION. 59 
 
 )ccupy the premises claimed, the declaration and notice must be 
 erved on such defendant personally, if he can be found ; but if he 
 ;annot be found within the county, service may be made by leaving 
 he same with some person of proper age, at the residence of such 
 lefendant. 
 
 § 213. But when the declaration shall' have been served in any 
 ither manner than upon the defendant personally, no default can 
 )e entered for not pleading, without the special order of the court.(l) 
 
 Upon filing the certificate of the sheriff, or an afSdavit showing 
 )ersonal service on the defendant, his appearance may be entered, 
 md if he neglect to plead within the time prescribed by the rule, 
 lis default in not pleading may be entered as in personal actions. 
 
 § 214. If the defendant has any doubt about the authority of 
 he attorney for the plaintiff to commence the action in the name 
 if any plaintiff therein, he may, before pleading, apply to the 
 ;ourt, or to the judge or commissioner in vacation, to compel the 
 .ttorney to produce such authority. . For this purpose the defend- 
 ,nt must make and present to the court or officer an affidavit, set- 
 ing forth that he has not been served with proof in any way, of 
 he authority of the attorney to use the names of the plaintiffs stated 
 n the declaration. Upon such application an order is made, re- 
 [uiring the attorney to produce such authority, and staying all 
 iroceedings in the action until the same be produced. 
 
 § 215. Any written request of such plaintiff or Lis agent, to 
 ommence the action, or any written recognition of the authority 
 f the attorney to do so, or any verbal authority, duly proved by 
 he affidavit of the attorney or other competent witness, will be 
 ufficient presumptive evidence of such authority. If it appear that, 
 irevious to such application by any defendant, he was served with 
 be affidavit of the plaintiff's attorney, showing his authority to 
 ommence such action, the application will be dismissed, and such 
 efendant will be liable for the costs of resisting the application, the 
 ayment of which may be enforced by attachment as in other 
 ases.(2) 
 
 The object of these provisions appears to be to prevent the com- 
 lencement of suits without authority, and upon mere speculation. 
 
 § 216. The defendant may demur to the declaration as in psr- 
 mal actions, or he may plead the general issue, which is in the 
 
 (1) Comp. L. 1230, 1231, 1232. (2) Comp.L. 1232, 1233. 
 
60 COEMMNCEMENT OF ACTIONS 
 
 same form as in personal actions ; and the filing and service of such, 
 plea or demurrer is deemed an appearance in the cause.(l) The 
 defendant may also appear, as in personal actions, by causing notice 
 of appearance or retainer to be given. 
 
 If the action be commenced against any tenant to recover the 
 land held by him, or the possession of such land, the landlord of 
 such tenant, and any person having any privity of estate with such 
 tenant, or with such landlord, in the premises in question, or any 
 part thereof, may be made defendant with such tenant, in case he 
 shall appear for that purpose. (2) 
 
 § 217. And if any tenant for life, in dower, or by the curtesy, 
 or any tenant for years, be impleaded, and the person to whom the 
 reversion or remainder appertains shall come into court before any 
 trial is had in the action, or before judgment by default therein, 
 and pray to be received to defend his right, he will be received 
 for that purpose, and permitted to plead to the action, upon such 
 terms as the court may deem just.(3) Parties so admitted by 
 special order of the court appear by pleading to the declaration, or 
 in such other manner as the court may direct. 
 
 § 218. Any creditor may proceed by attachment against the 
 property of his debtor, in the cases, upon the conditions, and in 
 the manner provided by statute. The plaintiff, or some one in his 
 behalf, must make and annex to the writ an affidavit, stating that ■ 
 the defendant therein is indebted to the plaintiff, and specifying 
 the amount of such indebtedness as near as may be, over and 
 above all legal set-offs (which amount must exceed one hundred 
 dollars), and that the same is due upon contract, express or implied, 
 or upon judgment; and containing a further statement that depo- 
 nent knows, or has good reason to believe, either, 
 
 1. That the defendant has absconded, or is about to abscond 
 from this state, or that he is concealed therein to the injury of his 
 creditors; or, 
 
 2. That th,e defendant has assigned, disposed of or concealed, or 
 is about to assign, dispose of or conceal any of his property, with 
 ntent to defraud his creditors ; or, 
 
 3. That the defendant has removed, or is about to remove any 
 )f his property out of this state, with intent to defraud his credit- 
 
 (1) Comp. L. 1233. (2) Comp. L. 1266: (3) Comp. L. 1264. 
 
BY ATTACHMENT. 61 
 
 4. That lie fraudulently contracted the debt or incurred t';e 
 ibligation, respecting which the suit is brought ; or, 
 
 5. That the defendant is not a resident of this state, and has not 
 esided therein for three months immediately preceding the time 
 >f making such affidavit ; or, 
 
 6. That the defendant is a foreign corporation. 
 
 § 219. The remedy by attachment being given by the statute, 
 md not by the common law, great strictness is required ; and any 
 lubstantial variation from the statute is fetal to the proceeding. 
 
 The affidavit must show, not only that the indebtedness exists, 
 )ut that it is then due ; otherwise it would not appear that a cause 
 )f action has accrued.(l) The affidavit ought to be made on the 
 ;ame day the writ issues,(2) and must be presented to the clerk be- 
 bre he issues the writ, in order that he may see that he has 
 luthority to issue it ;(3) and it must be attached to the writ before 
 t is executed. 
 
 § 220. The affidavit must state positively, and not on information 
 md belief, that the defendant is indebted to the plaintiff, and the 
 imount thereof, over all legal set-offs, as near as may be. It ought 
 ilso to show whether the indebtedness is on an express contract, 
 )r an implied one, or on judgment, or on any two, or all of them.(4) 
 But it is not necessary to state the nature of the express or im- 
 )lied contract, or the particulars of the judgment in the affi- 
 iavit.(5) 
 
 § 221. This writ, as we have seen, must be issued by the clerk, 
 md not by the attorney, as is the practice in regard to original 
 vrits ;(6) and it must be indorsed in the same cases' and in the same 
 nanner as original writs, by some person as security for costs, and 
 vith like effect.(7) 
 
 The writ must command the sheriff, or other officer to whom it 
 nay be directed, to attach so much of the lands, tenements, goods, 
 ihattels, moneys and effects of the defendant,, not exempt from 
 ixecution, wheresoever the same may be found within the county, 
 is will be sufficient to satisfy the plaintiff's demands, and safely 
 :eep the same to satisfy any judgment that may be recovered by 
 he plaintiff in such attachment ; and also to summon the defend- 
 mt, if he be found within this state, to appear before the circuit 
 
 (1) 1 Doug. Mich. B. 350. (2) 2 Doug. Mich. E. 93 ; 5 Mich. 98. 
 
 (3) 2 Mich. R. 418. (4) 5 Mich. R. 104 (5) 2 Doug. Mich, B. 95. 
 
 (6> 2 Mich. R. 418. (7) Ck)mp. L. 1210. 
 
62 COMMENCEMENT OF ACTIONS 
 
 court at' the time and place to be specified in sucli writ, to answer 
 the plaintiff. The writ is tested and made returnable in the same 
 manner as other writs issuing out of the circuit court.(l) 
 
 § 222. Writ of attachment. 
 
 In the name of the People of the State of Michigan. To 
 
 the sheriff of the county of : 
 
 [seal] We command you to attach so much of the lands, ten- 
 
 ements, goods, chattels, moneys and effects of C. D., 
 the defendant herein, not exempt from execution, wheresoever the 
 same may be found within your count}', as will be sufficient to sat- 
 isfy the demand of A. B., plaintiff herein, amounting to the sum 
 
 of dollars over and above all legal set-offs, as is alleged, and 
 
 safely keep the same to satisfy any judgment that may be recov- 
 ered "by the said plaintiff herein against the said C. D. ; and also 
 that you summon the said 0. D., if be be found within this state, 
 
 to be and appear before our circuit court for the county of , 
 
 at the court house in • in said county, on the — day of 
 
 ■ nest, for " instant"] to answer the said plaintiff in a plea of 
 
 trespass on the case upon promises, [or, " in a plea of debt"} to his 
 
 damage dollars, which shall then and there be made to appear, 
 
 and have you then there this writ. 
 Witness, &c. 
 
 ^j ' 
 
 § 223. When two or more persons are jointly indebted as joint 
 obligors, partners, or otherwise, the attachment may be issued 
 against the separate or joint property of such joint debtors, or any 
 of them. (2) 
 
 The officer is required to execute the writ on or before the return 
 day thereof, by seizing so -much of the lands, tenements, goods and 
 chattels, moneys and effects of the defendant, in his county, as will 
 be sufficient to satisfy the demand of the plaintiff, and the costs of 
 the proceedings, and by making an inventory thereof, and serving 
 a copy of such attachment and inventory, certified by him, upon 
 the defendant, if he can be found within the counii/.{S) 
 
 § 224. As soon as practicable after the seizure of the property, 
 the sheriff prepares an inventory describing it in detail, and makes 
 a true copy of it and annexes the same to a copy of the attachment, 
 and attaches thereto a certificate substantially as follows : 
 
 County, ss : I do hereby certify that the annexed is 
 
 a true copy of a writ of attachment to me directed and delivered, 
 and remaining in my hands ; and that the foregoing is a true copy 
 
 (1) Comp. L. 12:0. (2) Comp. L. 1214 (3) Comp. L. 1270. 
 
BY ATTACHMENT. 63 
 
 of the inventory made by me of the property and effects which- I 
 have seized and taken by virtue of the said writ of attachment. 
 Dated this — day of , A. D. . J. K., Sheriff. 
 
 § 225. The inventory may he headed thus : 
 
 By virtue of the within [or, "annexed"] writ of attachment, 
 I have this day seized and taken the property and effects of which 
 the following is an inventory, to wit : one parcel of land situated 
 
 in the township of , in the county of , described as 
 
 follows : &c.. [particularly describing each parcel of real or per- 
 sonal property attached.] 
 
 If the defendant can be found within the county, such copy 
 must be delivered to him personally. All the property attached 
 must be appraised by two disinterested freeholders of the county, 
 who are first sworn by the officer to make a true appraisement 
 thereof; which appraisement must be signed by such freeholders and 
 returned with the WMt.(l) Freeholders are such as have an estate 
 of inheritance, or for life, in lands.(2) 
 
 § 226. The statute contains a provision that in case the prop- 
 erty attached shall be situated in two or more counties, that portion 
 thereof in each of such counties may be separately appraised by 
 two disinterested freeholders thereof, &c. ; but this provision, it is 
 apprehended, can be of no force, inasmuch as the officer cannot 
 attach any property out of his own county. 
 
 Oath to he taken hy appraisers. 
 You do solemnly swear that you will, according to your best 
 j udgment, make a true appraisement of all the property seized by 
 me, by virtue of an attachment now in my hands, issued out of 
 
 the circuit court for the county of , at the suit of A. B., 
 
 plaintiff, against the lands, tenements, goods, chattels, moneys and 
 effects of 0. D., defendant, So help you God. 
 
 § 227. Appraisement of property attached. 
 
 We, the undersigned freeholders residing in the county of 
 ■, having been first duly sworn by the sheriff of the county 
 
 of , to make a true appraisement of all the property seized 
 
 by him by virtue of the annexed writ of attachment, do appraise 
 the several articles and parcels of property so attached as follows, 
 to wit : 
 
 One horse at the sum of - - $100 00 
 
 One voke of oxen at the sum of - - 90 00 
 
 The "S. E. i of the N. E. \ of sec. 36, in township 
 No, 50, North of Eange 30, East - - 150 00 
 
 O P ) 
 
 -■ -■' j- Appraisers. 
 
 E. S., 
 
 (1) Comp. L. 1210. (2) Comp. L. 818. 
 
64 COMMENCEMENT OF ACTIONS 
 
 § 228. In seizing personal property, the officer reduces it into 
 Lis possession, or subjects it to his control, but it is not necessary 
 that he should enter upon, or be within view of lands ^taken by 
 him on the attachment. It is sufficient that he embrace a description 
 in the inventory, and cause the lands to be appraised, and deposit 
 a certified copy of the attachment, with a description of such 
 real estate, in the office of the register of deeds of the county, within 
 three days after it was attached. Upon doing tbis, tbe attachment 
 takes effect as a lien upon the land from the time of the seizure, 
 otherwise the attachment binds the land only from tbe time when 
 such certified copy is so deposited. Goods and chattels are bound 
 by the attachment from the time of their seizure.(l) 
 
 § 229. Certificate upon copy of attachment to he deposited mth 
 register. 
 
 I do hereby certify that the within is a true copy of a writ 
 of attachment to me directed and delivared, and by virtue of which 
 I did on the — day of , A. D. , attach and seize the fol- 
 lowing described real estate, situated in the county of — , 
 
 to wit: [describe the lands as in the inventory.] 
 
 Dated this — day of , A. D. . 
 
 J. K., Sheriff. 
 
 § 230. Upon the return of the writ, if it appear that a copy 
 thereof has been personally served upon the defendants, or either 
 of them, or if either of the defendants shall appear in the suit, the 
 same proceeding may be thereupon had in such suit, in all respects, 
 as upon the return of an original writ of summons personally 
 served, in a suit commenced by summons. But if it appear by 
 the return that any property has beeri attached, and that neither 
 of the defendants could be found, the plaintiff must, within thirty 
 days after such return, unless the defendants, or some of them, 
 sooner appear, cause a notice to be published in the same county, 
 if a newspaper be printed therein, and if not, in some other county 
 in the same judicial circuit, stating the names of the parties, the 
 time when, from what court, and for what sum the writ was issued, 
 and when the writ was returnable, whicb notice must be published 
 for six successive weeks; and if the plaintiff neglect to cause such 
 notice to be published as required, the attachment will be dis- 
 missed with costs.(2) If the writ be not personally served upon 
 any of the defendants, and none of them appear, and no property 
 is attached, the proceeding fails for want of a service of the process. 
 
 (1) Comp. L. 12'71. (2) Comp. L. 12T2, 12T3. 
 
BY ATTACHMENT. 65 
 
 § 231. Notice of attachment. 
 
 The Circuit Court for the County of . 
 
 A. B. I 
 
 vs. V In attachment. 
 C. D.) 
 
 Notice is hereby given that on the — day of , A. 
 
 D. , a writ of attachment was duly issued out of the circuit 
 
 court for the county of , at the suit of A. B., the above named 
 
 plaintiff, against the lands, tenements, goods and chattels, moneys 
 and effects of C. D., the defendant above named, for the sum of 
 
 dollars, which said writ was returnable on the — day of , 
 
 A. D. . 
 
 Dated this — day of , A. D. 
 
 E. F., Attorney for Plaintiff. 
 
 g 232. The property attached remains in the hands of the offi- 
 cer, unless the defendant, or some other person in whose possession 
 the same was found, before judgment in the suit, deliver to such 
 officer a bond executed to him by two or more sufficient sureties, 
 being freeholders within the state, either with or without such 
 defendant or other person, to the satisfaction of such officer, in a 
 penalty double the amount specified in the affi.davit annexed to the 
 writ as due to the plaintiff, and conditioned for the payment of any 
 judgment which may be recovered by the plaintiff in the suit, 
 within sixty days after such judgment shall be rendered ; or in a 
 penalty double the appraised value of the property, and conditioned 
 that such property shall be produced to satisfy any execution that 
 may be issued on any judgment to be recovered by the plaintiff 
 upon such attachmeut.(l) If such bond be given before the return 
 ©f the attachment, the officer must state the fact in his return to the 
 writ, and file the bond therewith: and if such bond be given after 
 the return of the writ, and before judgment, the officer is required 
 to cause it to be immediately filed in the clerk's office, and give 
 notice thereof to the plaintiff or his attorney .- 
 
 § 233. Bond for payment of judgment. 
 
 Know all men by these presents : That we, C. D., G. 
 H., and J. K., are held and firmly bound unto L. M., Esquire, 
 
 sheriff of the county of , in the sum of dollars lawful 
 
 money, to be paid to the said sheriff or his certain attorney, execu- 
 tors, administrators, or assigns : for which payment well and truly 
 to be made we bind ourselves, our heirs, executors and administra- 
 tors, jointly and severally, firmly by these presents. Sealed with 
 our seals. Dated the — day of A. D. . 
 
 Whereas, A. B. has sued and prosecuted out of the circuit court 
 
 (1) Comp. L. 12tl, 1212. 
 
 5 
 
66 COMMENCEMENT OF ACTIONS. 
 
 for the county of a certain writ of attachment against the 
 
 lands, tenenaents, goods and chattels, moneys and effects of the 
 above bound en C. D., directed to the said sheriff, dated on the — day 
 
 of , A. D. , and returnable on the — day of , A. D. 
 
 ' , before the said court at in the said county of , by 
 
 virtue of which said writ he, the said sheriff, hath seized and taken 
 certain lands, tenements, goods and chattels, moneys and effects 
 particularly described in the inventory thereof annexed to the said 
 writ, and which were found in the possession of the said C D. by 
 the said sheriff at the time of such seizure, and whereas the said C. 
 D. is desirous of obtaining the delivery thereof to him by the said 
 sheriff, in pursuance of the statute in such case made and provided ; 
 Now, therefore, the condition of this obligation is such, that if the 
 above bounden C. D., B. F., and J. K., shall well and truly pay 
 any judgment which may be recovered by the said A. B. in the 
 suit commenced by the said writ of attachment, within six^y days 
 after such judgment shall be rendered, then the above obligation 
 to be void, otherwise to remain in full force and virtue. 
 
 C. D. [L. s.j 
 E. F. [L. s.] 
 J. K. [L. s.] 
 
 § 234. The condition of the bond can be readily varied so as 
 to be for the production of the property to satisfy the execution, 
 instead of paying the judgment. 
 
 If a copy of the attachment is not served upon any of the de- 
 fendants, and none of them appear in the suit, the plaintiff, on 
 filing an affidavit of the publication of notice of the attachment for 
 six successive weeks, may file his declaration in the suit, and pro- 
 ceed therein as if a copy of the attachment had been served upon 
 the defend ants. (1) On filing such affidavit, and before filing the 
 declaration, the appearance of the defendants may be entered in 
 the common rule book, as in the case of a summons returned 
 served, the practice being the same as in actions commenced by 
 summons, except as otherwise provided by statute.(2) 
 
 § 235. Entry of defendant s appearance ly plaintiff, after the pub- 
 lication of notice of attachment. 
 A B i 
 "^' • / In attachment. August 10, 1859. 
 
 Q -Q I E. F., Attorney for Plaintiff. 
 
 On filing affidavit of due publication of notice of the attach- 
 ment in this cause, and on motion of E. F., attorney for the plain- 
 tiff, it is ordered that the appearance of C. D., the defendant therein, 
 be and the same is hereby entered. 
 
 If any defendant not served with a copy of the attachment, shall 
 appear at any time before judgment, he may be admitted to defend 
 
 (1) Comp. L. 1?73. (2) Comp. L. 12U. 
 
SALE OF PEEISHABLE PROPERTY. 67 
 
 tHe suit, upon such terms as the court may deem reasonable.(l) 
 The application to be admitted to defend should be by petition to 
 the court, duly verified ; which should set forth distinctly the facts 
 and circumstanoea upon which it is based, and that the defendant, 
 so applying, has a good and substantial defence upon the merits to 
 the plaintiff's action, as he is advised by his counsel, to whom he 
 has fally and fairly stated the case, and as he verily believes. 
 
 § 236. When any of the property taken in attachment consists 
 of animals or perishable property, the court, or the judge, may 
 make an order directing such property to be sold, and the money 
 arising from such sale to be brought into court to abide the order 
 of such court.(2) 
 
 The application for such an order is based upon an affidavit of 
 the plaintiff or his attorney, stating the issuing of the attachment 
 and the seizure of the property thereon, and the circumstances 
 which render a sale of the same necessary, describing the articles 
 claimed to be perishable, as they appear in the inventory made by 
 the officer, and accompanied by the draft of an order for the sale, 
 describing the articles to be sold in like manner. 
 
 § 237. Judge's order for sale of property attached. 
 [Title of the court and cause.] 
 
 On reading the affidavit of E. F., attorney for the plaintiff 
 in this cause, and it appearing therefrom that the following prop- 
 erty taken in attachment in said cause, and remaining in the hands 
 
 of the sheriff of the county of , consists of animals, or is 
 
 perishable and ought to be sold, to wit : [describe the animals, if 
 any, and other perishable articles as in the inventory,] therefore, 
 upon motion of E. P., attorney for plaintiff, it is ordered that all 
 of the said property herein described be advertised and sold by 
 
 the said sheriff of the county of , in the same manner that 
 
 personal property is required by law to be advertised and sold on 
 execution, and that he deposit the money arising from such sale 
 
 with the clerk of the said circuit court for the county of , 
 
 to abide the order of such court. 
 
 Dated, &c. B. W., Circuit Judge. 
 
 § 238. On obtaining the order of sale, it should be delivered 
 to the officer having the property, who will proceed to execute it 
 according to its terms, and make a return of the same, with his 
 doings thereupon, to the court, in the same manner as if it were an 
 execution. 
 
 (1) Oomp. L. 1273. (2) Comp. L. 12T4. 
 
68 COMMENCEMENT OF ACTIONS. 
 
 § 239. If no legal cause existed for suing out tlie -writ of attacb- 
 ment, any defendant whose property may have been taken by vir- 
 tue thereof, may apply to the circuit judge, or a circuit court com- 
 missioner of the county where such writ issued, for a dissolution 
 thereof. The application must be in writing, but is not required 
 to be verified by oath ; and it must set forth the reasous for the 
 application. Upon presentation of the application, the judge or 
 commissioner is required to issue a citation to the plaintiff, requir- 
 ing him to show cause, at a time and place to be specified therein, 
 why the attachment should not be dissolved, and the property re- 
 stored to the defendant. 
 
 § 240. Citation to plaintiff in atlacliment to show cause. 
 
 [Title of court and cause.'] In attachment. 
 
 On reading the petition of 0. D., the defendant, duly veri- 
 fied, praying that the attachment in this cause may be dissolved, 
 and the property seized by virtue thereof restored to the said de- 
 fendant for reasons in said petition set forth : Ordered, that the 
 said plaintiff be and is hereby cited and required to show cause on 
 the — day of next, [or " instant"] at one o'clock in the after- 
 noon, before me, at my office in in said county, why the 
 
 said attachment should not be dissolved, and the property afore- 
 said restored to the said defendant. 
 
 E. M., Circuit Court Commissioner for County. 
 
 § 241. This citation must be served upon the plaintiff, or one 
 of the plaintiffs, if there be more than one, if found within the 
 county, by reading it to him, at least three days before the time 
 specified therein for showing cause ; and if no plaintiff can be found, 
 then it may be served upon the agent or attorney of the plaintiff; 
 and such, service may be made by the sheriff or any of his depu- 
 ties, or a constable of the county, or any other person who may be 
 authorized by the judge or commissioner to serve the same. 
 
 On the return" day of the citation, or at such other day thereafter 
 as the judge or commissioner may appoint for that purpose, the 
 proofs and allegations of the parties are heard ; and if the judge 
 or commissioner shall be satisfied that the plaintiff has not a good 
 and legal cause for suing out the writ, the attachment may be dis: 
 solved, and the property restored to the defendant.(l) 
 
 § 242. The language of the statute would seem to import that 
 the affirmative of the issue to be decided upon the hearing is with 
 the defendant, and that the affidavit annexed to the writ is to be 
 
 (1) Laws of 1851, p. 161; Comp. L. 12T5. 
 
DISSOLUTION OF ATTACHMENT. 69 
 
 regarded as establishing, prima facie, a cause for issuing the writ, 
 which must be disproved by the defendant in order to entitle him 
 to a dissolution of the attachment. The judge or commissioner 
 may issue subpoenas, and compel the attendance of witnesses to 
 testify in behalf of either of the parties, and they may be exam- 
 ined on oath as in other cases. 
 
 § 2i3. If the judge or commissioner shall determine that the 
 defendant is entitled to have the attachment dissolved, he may, at 
 his discretion, require him to enter his appearance to the action of 
 the plaintiff before making any order for the dissolution of the 
 attachment. The effect of an appearance in the suit by the defend- 
 ant, whether in pursuance of such a requirement or otherwise, is 
 to allow the plaintiff, notwithstanding the release of the property, 
 to prosecute his action to judgment in the same manner, and with 
 like effect as if it had been commenced by summons. But if the 
 attachment is dissolved, and no appearance entered by the defend- 
 ant, the suit is put an end to by such dissolution as effectually as 
 if the writ were quashed for want of jurisdiction to issue it. 
 
 § 244. If the entry of an appearance to the action is made a 
 pre-requisite to the dissolution of the attachment, the defendant or 
 his attorney should cause the entry thereof to be made in the book 
 of common rules, and procure and present to the judge or com- 
 missioner a copy thereof, certified by the clerk of the court in 
 which the action is pending. 
 
 The ofEcer before whom the proceedings are had, may order the 
 costs thereof to be paid by the party against whom the matter is 
 decided, and he may issue an execution therefor returnable in sixty 
 days. 
 
 § 245. Order dissolving ailachmeni. 
 [Title of court and cause.~\ 
 
 Application in writing having been made to me by C. D., 
 
 the above named defendant, on the — day of , A. D. , for 
 
 a dissolution of the attachment issued in this cause at the suit of A. 
 B., the above named plaintiff, and a citatii n having been issued by 
 me on the same day, requiring the said plaintiff to show cause be- 
 fore me at my of&ce in , in the said county of • — — , on the — day 
 
 of A, D. , at one o'clock in the afternoon, why the said 
 
 writ of attachment should not be dissolved and the property seized 
 by virtue thereof be restored to the defendant in said attachment, 
 and the said citation having been returned to me with due proof of 
 the service thereof upon the said plaintiff more than three days 
 before the return day thereof, and the said parties having appeared 
 before me on the day and year and at the place aforesaid ; after 
 
70 COMMENCKMENT OF ACTIONS. 
 
 hearing the proofs and allegations of the parties, and being satisfied 
 that the said plaintiff has not a good and legal cause for suing out 
 such writ ; it is therefore ordered that the said attachment be and 
 is hereby dissolved, and that the property seized by virtue thereof 
 be restored to the said C. D., the defendant therein ; and itis further 
 ordered that the said plaintiff pay to the said defendant his costs of 
 the proceedings so had before me, to be taxed, and that the said 
 defendant have execution therefor. 
 
 F. J. L., Circuit Judge [or. Circuit Court Commissioner 
 for the county of ■ .] 
 
 § 246. In order to obtain a restoration of the property, the ori- 
 ginal order should be shown to the of&cer having the same in his 
 hands, and a copy thereof delivered to such officer ; and the origi- 
 nal application, citation, and order of dissolution should eventually 
 be placed on file with the other papers in the cause, though perhaps 
 not until the return of the execution, if one is issued for the collec- 
 tion of the costs of the proceedings. 
 
 § 247. Actions of replevin must be commenced by writ sub- 
 stantially in the following form : 
 
 Writ of replevin. 
 In the name of the People of the State of Michigan. To 
 
 THE sheriff of THE COUNTY OF : 
 
 r 1 We command you that you do forthwith take into your 
 
 ^ ■-' custody the following goods and chattels, to wit : [de- 
 scribing the goods and chattels to be replevied], and 
 deliver the same to A. B., plaintiff herein, if he shall give you good 
 security, as required by law, to prosecute to effect this writ against 
 C. D., defendant herein, and to return the aforesaid goods and chat- 
 tels, if return thereof shall be adjudged, and to pay all such sums of 
 money as may be recovered against him hereupon ; and also that 
 you summon the said C. D. to appear before the circuit court for the 
 
 county of , at the court house in in said county, on the 
 
 — day of , [some day on which writs in personal actions may 
 
 be made returnable,] to answer the said A. B., concerning the un- 
 lawful detention of the said goods and chattels. 
 Witness, &c. 
 
 § 248. The form of the writ is the same in all cases, whether 
 the taking, or only the detention were unlawful, every unlawful 
 taking embracing also an unlawful detention, from which the injury 
 arises. It is tested and made returnable in the same manner as a 
 summons, and cannot be served out of the county in which it is 
 issued, nor can it be executed in any case unless the plaintiff in the 
 action, or some other person having a knowledge of the facte, shall 
 make and annex to the writ an affidavit, stating that the plaintiff 
 in such action is then lawfully entitled to the possession of the prop- 
 
BEPLEVIN. 71 
 
 ertj described in the ■writ ; that the same has not beea taken for 
 any tax, assessment, or fine levied by virtue of any law of this state, 
 nor seized under any execution or attachment against the goods 
 and chattels of such plaintiff, liable to execution ; and that 
 such goods and chattels are unlawfully detained by the defendant 
 in such writ.(l) 
 
 § 249. Affidavit to he annexed to writ of replevin. 
 [JVo title.] 
 State of Michigan, ) 
 
 County, j *^' 
 
 A. B., being duly sworn, deposes and says that he is now 
 lawfully entitled to the possession of the property described in the 
 annexed writ of replevin ; that the same has not been taken for any 
 tax, assessment or fine levied by virtue of any law of this state ; 
 nor seized under any execution or attachment against the goods 
 and chattels of this deponent, liable to execution ; and that such 
 goods and chattels are unlawfully detained by C. D., the defendant 
 in this suit named. A. B. 
 
 Subscribed, &c. 
 
 § 250. Upon the receipt of the writ with such affidavit annexed, 
 the sheriff, or coroner, if it be directed to a coroner, is required to 
 seize and take into his custody the property described therein ; and 
 for that purpose he is authorized to break open any house, stable, 
 out-house or other building, in which such property may be con- 
 cealed, having first demanded deliverance thereof at the building 
 or place where the same is concealed. The of&cer executing the 
 writ must cause the property so seized to be appraised by one or 
 more disinterested persons, on oath to be administered by him, as 
 soon as practicable after the taking of the same. The oath to be 
 administered, and the appraisement, may be substantially the same 
 as in the case of an attachment. 
 
 § 251. If, within twenty-four hours after the appraisal of the 
 property, the plaintiff, or some one in his behalf, shall execute a 
 bond to such officer and his assigns, with the addition of his name 
 of office, with sufficient sureties, to be approved by the officer, in a 
 penalty not less than one hundred dollars, and at least double the 
 appraised value of the property ; conditioned that the plaintiff will 
 prosecute the suit to effect, and that if the defendant recover judg- 
 ment against him in the action, he will return the same property, if 
 return thereof be adjudged, and will pay the defendant all such 
 sums of money as may be recovered by such defendant against him 
 in the said action ; such officer is thereupon required to deliver the 
 
 (1) Comp. L. 1331, 1332 ; 2 Mich. E. Sil. 
 
72 COMMENCEMENT OF ACTIONS. 
 
 property to the plaintiff; but if the plaintiff fail to cause such bond 
 to be executed and delivered to the ofSicer within that time, the 
 officer must return the property to the person from whom he took 
 it.(l) 
 
 § 262. Replevin bond. 
 
 Know all men by these tresents, that we, A. B. of - 
 
 E. P. of , and G. H. of , are held and firmly bound unto 
 
 J. K., Esquire, sheriff of the county of , in the sum of 
 
 dollars, lawful money, to be paid to the said sheriff, or to his assigns ; 
 for which payment, well and truly to be made, we bind ourselves, 
 our and each of our heirs, executors and administrators, jointly and 
 severally firmly by these presents. Sealed with our seals. Dated 
 
 the — day of , A. D, . 
 
 The condition of this obligation is such, that if the above bounden 
 
 A. B. shall prosecute to effect a certain suit in replevin which he 
 
 has commenced in the circuit court for the county of against 
 
 C. D., the defendant, for taking and unjustly detaining [here de- 
 scribe the property as in the writ], and if the said defendant shall 
 recover j udgment against him in the said action, then if the said A. 
 
 B. shall return the same property, if return thereof be adjudged, 
 and shall pay to the defendant all such sums of money as may be 
 recovered by the said defendant against him in the said action, then 
 the above obligation to be void, otherwise to remain in full force 
 and virtue. A. B. [l. s.] 
 
 E. F. [L. s.] 
 G. H. [L. s.] 
 
 § 253. The olficer is further required to summon the defend- 
 ant, if he can be found within his county, by delivering to him 
 personally a certified copy of the writ ; and if he cannot be found? 
 then by leaving such certified copy at his usual place of abode, 
 with some person of proper age. If the property specified in the 
 writ cannot be found, or is not delivered to the plaintiff, he may 
 proceed in the action for the recovery of the same, or the value 
 thereof. 
 
 The officer is required to return the writ at or before the return 
 day thereof, with the affidavit annexed thereto, and the names of 
 the persons who executed the bond taken by him from the plain- 
 tiff, and their places of residence, and must state in his return in 
 what manner he executed the writ, and, if the property was not 
 replevied, the cause thereof.(2) 
 
 § 254. If the defendant is not satisfied with the sufiiciency of 
 the sureties, he may, within twenty days after the return of the 
 
 (1) Comp. L. 1332. (2) Comp. L. 1132, 1133. 
 
REPLEVIN. 73 
 
 writ, serve upon tlie officer a notice that lie excepts to such sure- 
 ties, and such officer shall give notice thereof to the plaintiff's 
 attorney. Within twenty days after service of such notice, the 
 sureties must justify by making an affidavit that each of them is 
 worth double the amount of the penalty of the bond, over and 
 above all demands ; or within the same time a new bond, similar 
 to the one first given, must be executed with new sureties, who 
 must justify in like manner. Such affidavits and such bond, when 
 executed, are to be filed in the office of the clerk of the court to 
 which the writ shall have been returned, and notice thereof is to 
 be served on the defendant or his attorney within the twenty days. 
 
 § 255. If the sureties do not justify, or if such new bond be 
 not executed and filed, and notice thereof given as required by the 
 statute, the court is required, at the next term after such default, 
 to render judgment of discontinuance against tlie plaintiff, and 
 such other judgment as the state and nature of the case may 
 require, in order to restore to the defendant the property replev- 
 ied, and to compensate him for his damages. But the court may 
 allow the plaintiff to file such new bond, with sureties, who shall 
 justify in the manner before mentioned, at the term at which 
 application for such judgment is made, on such reasonable terms as 
 may be imposed ; and on such bond being filed, the cause may 
 proceed. (1) 
 
 i § 256. If no exception is taken to the sureties, the officer is dis- 
 charged from all liability for the sufficiency of the sureties ; and the 
 bond may be assigned to the defendantorhis'personal representatives, 
 if judgment be rendered for him in the action. But, if such excep- 
 tion is made, and judgment of discontinuance rendered for the sure- 
 ties not justifying, the officer is liable for the sufficiency of the 
 sureties, and is entitled to the same remedy on the bond, as incases 
 of bonds given on the arrest of a defendant in a personal action. 
 
 If the officer return to the writ that the defendant has been duly 
 summoned in either of the modes prescribed by the statute, the 
 clerk of the court thereupon enters his appearance, and the same 
 proceedings are had against the defendant as if be had actually 
 appeared. (2) The defendant may cause notice of his appearance, 
 or of retainer to be given as in other actions.(3) 
 
 § 257. If a part of the property claimed be taken upon ■ 
 ^rit, the plaintiff may either proceed in the suit upon the reti 
 
 (1) Comp. L. 1333, 1334. (2) Comp. L. 1334. (3) Eule 11. 
 
74 PLEADINGS. 
 
 that the residue is not found, or he may issue an alias, and after that 
 a pluries writ, to obtain possession of the whole of the property 
 claimed, if practicable.(l) And if no part of the property be taken, 
 the plaintifip may have an alias and pluries writs, as in personal 
 actions. 
 
 CHAPTER V. 
 
 PLEADINGS TO THE JOINING OP ISSUE. 
 
 § 258. In the last chapter, in which were described the various 
 modes of commencing actions at law, and the ordinary proceed- 
 ings on both sides to an appearance, several incidental proceedings 
 which may grow out of particular circumstances, were omitted, 
 but will be hereafter explained and illustrated. 
 
 The appearance of the defendant having been perfected, the 
 next subject for consideration relates to the proper mode of plac- 
 ing the allegations of the respective parties upon the record, so 
 that the issue or matter in controversy between them may be clearly 
 understood and properly determined. This is a consideration of 
 the utmost importance, because without such a record there can be 
 no certainty that the rights of the respective parties involved in 
 the litigation can be satisfactorily ascertained and determined in 
 the suit ; nor would the record itself afford a safe and reliable pro- 
 tection against future litigation of the same matter. 
 
 § 259. Pleading has been defined to be the statement, in a log- 
 ical and legal form, of the facts which constitute the plaintiff's 
 cause of action, or the defendant's ground of defence, or the for- 
 mal mode of alleging that on the record which would be the sup- 
 port of the action or the defence of the party in evidence.(2) 
 
 The several statements or allegations of the respective parties in 
 pleading, are termed the pleadings, and may consist of: 1. The de- 
 claration; 2. The plea; 8. The replidation ; 4. The rejoinder ; 5. 
 The surrejoinder ; 6. The rebutter ; and 7. The surrebutter. These all 
 consist of allegations of fact, either by way of affirmance or denial, 
 and are pleaded by the parties alternately in the order in which 
 they are here named : the declaration, replication, surrejoinder, and 
 
 (1) 22 WendeU, 602. (2) 1 Chitt. PI. 244. 
 
"WHEN TO DECLARE. 75 
 
 surrebutter being the pleadings of the plaintiff; and the plea, rejoin- 
 der, and rebutter, those of the defendant. None of these several 
 pleadings, subsequent to the plea of the defendant, can, however, 
 be used in our courts, where the plea is to the merits of the action, 
 as will be seen hereafter. 
 
 Demurrers are pleadings in the nature of objections to other 
 pleadings upon matter of law, and may be pleaded by either party 
 at any stage of the pleadings. 
 
 § 260. The general course of the pleadings to the forming of 
 issue will be developed in the present chapter, omitting in this 
 place the notice of several incidental proceedings which are liable 
 to occur, by which the course of the pleadings may be interrupted. 
 
 It will not comport with the object of this work, however, to do 
 more in discussing the requisites of pleading, than to present an 
 outline of their structure, and a brief view of their essential requi- 
 sites, referring, to the various works on pleading, in which the rules 
 of the science are arranged and illustrated. 
 
 § 261. When the action is commenced by writ, the plaintiff 
 cannot declare until the actual return of such writ into the office 
 of the clerk of the court out of which it issued,(l) unless the de- 
 fendant shall have appeared in the suit in some one of the modes 
 authorized by law, or the rules of the court. (2) 
 
 If, to a capias, the sheriff specially return that the defendant is 
 imprisoned for want of bail, the plaintiff must declare against the 
 defendant before the end of the term next after such process was 
 returnable, and deliver a copy of his declaration to the prisoner, 
 or to the sheriff or keeper of the jail ; and if the declaration be not 
 so served, the defendant will be discharged from his imprisonment, 
 and be entitled to a judgment of discontinuance against the plaintiff. 
 
 § 262. And when a defendant shall have appeared in any cause 
 by causing his appearance to be entered, or by putting in and per- 
 fecting special bail, where such bail is required, the plaintiff must 
 also declare against such defendant by the end of the next term 
 after the return of the writ, or judgment of discontinuance may be 
 entered against him, according to the course and practice of the 
 court.(3) Notice of the entry of such appearance must be served 
 on the plaintiff or his attorney.(4) But until the defendant has 
 appeared and perfected special bail, he is not entitled to a copy of 
 
 (1) 3 Gaines' R. 96. (2) 2 Hffl's R. 352. 
 
 (3) Comp. L. 1139, 1140. (4) Rule 11. 
 
76 PLEADINGS. 
 
 tlie declaration, nor can he plead thereto, nor take any default 
 against the plainti£f.(l) 
 
 The 16th of the standing rules provides that in all suits com- 
 menced by original writ, the plaintiff shall file his declaration 
 within twenty days after the return day of the writ, and that in all 
 cases copies of pleadings shall be served within the time limited 
 for filing the same, whether the suit is commenced by original writ 
 or otherwise. This rule, of course, contemplates that the defend- 
 ant shall have duly appeared before he can take advantage of its 
 requirements. 
 
 § 263. Formerly'-, in actions against several defendants, the 
 plaintiflf could not declare until all the defendants had appeared, or 
 were all in court. By statute, however, it is provided that in ac- 
 tions against two or more persons jointly indebted upon any joint 
 obligation, contract, or liability, if the process issued against all the 
 defendants shall have been duly served upon either of them, the 
 defendant so served shall answer to the plaintiff, and the plaintiff 
 in such case may declare as if all had been served ; and if the suit 
 was commenced by declaration against such joint debtors, and ser- 
 vice had upon either, the plaintiff may proceed in the action as if 
 all had appeared.(2) 
 
 § 264. The general requisites of the declaration in personal 
 actions are, 1st. That it correspond with the process, and in bailable 
 actions with the cause of action as therein contained, and with the 
 affidavit to hold to bail ; 2d. That it contain a statement of all the 
 facts necessary in point of law to sustain the action, and no more ; 
 and 3d. That these be set forth with certainty and truth.(3) 
 
 The formal parts of a declaration consist of the iitk, the venue, 
 the commencement, the statement of Oie cause of action, including the 
 several counts, and the conclusion ; and these will be considered in 
 the order in which theyare here stated. 
 
 The title of the declaration under our practice, comprises only 
 the title of the court, it having been, as before stated, expressly 
 provided by statute that it shall not be necessary to entitle any 
 declaration or other pleading of any term of the court, or of any 
 day of the term or vacation. (4) It is as follows: " The Circuit 
 Court for the County of ." 
 
 § 265. The venue is a statement in the margin of the declara- 
 tion, immediately following the title, of the county in which the 
 
 (1) Rule 20. (2) Comp. L. 1219, 1220. 
 
 (3 1 Chitt. PI. 278. (4) Comp. L. 1228. 
 
HOW TO DECLARE. 77 
 
 suit is pending, or is to be commenced, thus : " Oakland county, ss." 
 It is not necessary in any case to name the state, as is sometimes 
 done, in the statement of the venue.(l) We have already seen in 
 what counties issues of fact must be tried in the several classes of 
 actions, which determines the place where the action must be 
 brought, and the venue laid. (2) 
 
 § 266. The commencement of the declaration follows the venue, 
 and comprises the names of the parties, the mode in which the de- 
 fendant has been brought into court, and the form of the action 
 adopted, and in an action commenced by capias is in the following 
 form: "A. B., plaintiff in this suit, by E. F., his attorney, com- 
 plains of C. D., defendant in this suit, being in custody, &c., of a 
 plea of trespass," or as the case may be. If the action be brought 
 upon a joint indebtedness, and one or more of the joint debtors is 
 not found, the form of the commencement should be varied accord- 
 ingly, and may be as follows : " A. B., plaintiff in this suit, by Gr. 
 II., his attorney, complains of C. D. and E. F., defendants in this 
 suit, the said C. D. being in custody, &c., and the sheriff of the 
 
 county of , to whom the capias ad respondendum in this suit 
 
 was directed and delivered, having returned the same as to the said 
 defendant, E. F., not found," &c. If the suit was commenced by 
 summons, instead of saying, "being in custody," &c., say "having 
 been duly summoned to answer the said A. B.," &c., or "the said 
 C. D. having been duly summoned to answer the said A. B., and 
 
 the sheriff of the county of , to whom the writ of summons 
 
 issued in this suit was directed and delivered, having returned the 
 same as to the said defendant, E. F., not found, of a plea," &c. 
 
 § 267. Care must be taken to state the names of the parties 
 correctly, as a misnomer of the christian or surname of either 
 party is ground for a plea in abatement. The name of the plain- 
 tiff must be stated as it is in the writ, and if a mistake occur in 
 stating it there, it should be amended, so that the writ ^nd decla- 
 ration may correspond in this regard.(3) If the defendant appear, 
 or put in special bail by the name by which he is designated in 
 the writ, the plaintiff may declare against him by such name 
 though it be not his right one, and he will be estopped from 
 pleading the misnomer in abatement.(4) If the defendant has 
 appeared or put in special bail by a name different from that in the 
 writ, he may be declared against by such name, stating that he 
 
 (1) Comp. L. 1228. (2) See Comp. L. IIST. 
 
 (3) 1 Oowen, 37 ; 10 "WendeU, 213. (4) Willes' K. 461. 
 
78 PLEADINGS. 
 
 was arrested or served with process by the name in the writ, and 
 in such case he cannot afterwards plead the misnomer in abate- 
 ment.(l) In such case the commencement would be in this form : 
 " A. B., plaintiff in this suit, by B. F., his attorney, complains of 
 0. D., defendant in this suit, who was arrested [or served with 
 process] by the name of J. D.," &c. 
 
 § 268. "When a capias is issued against a defendant by a ficti- 
 tious name, and the plaintiff afterwards ascertain, from the bail 
 bond or otherwise, the real name of the defendant, he may declare 
 against him by the right name, but in that case the declaration 
 must contain a statement showing the ground of the departure 
 from the process, which may be as follows : " A. B., plaintiff, &c., 
 complains of C. D., whose name, not being known to the said 
 plaintiff when the process by which this suit was commenced was 
 issued, was sued by the name of J. D.," &c.(2) But when the 
 plaintiff is unable to ascertain the real name, and the capias is 
 returned personally served, and the defendant's appearance is 
 entered, it seems that the plaintiff may declare against the defend- 
 ant by the name in the writ.(3) 
 
 When the names of the parties have once been distinctly stated 
 in the declaration, it is not necessary to repeat them, but it is 
 sufiicient to designate them as the " said plaintiff" and the " said 
 defendant;" or the " said plaintiffs " and " defendants." {^ 
 
 § 269. When parties sue or are sued in a representative char- 
 acter, as executors, &c., such character ought to be stated in the 
 writ ;(5) and in bailable actions ex contractu, the declaration ought 
 also to correspond with the writ in the number of the parties, or it 
 may be set aside as irregular.(6) But on non-bailable process, or 
 when the cause of action is not set forth in the writ, the plaintiff 
 may declare against one defendant only, although several were 
 named in the writ.(7) So, under the statute authorizing the join 
 ing of makers, indorsers, &c., of a bill or note in the same action, 
 the plaintiff may declare against such of the parties as are brought 
 into court, omitting the others, and the action will thereby be 
 severed. (8) And in all actions for torts, the plaintiff may declare 
 against one defendant only, though several were embraced in the 
 writ, even though the others have been taken and held to bail.(9) 
 
 (1) 1 Cowen, 3T ; 3 T. R. 611 ; 1 B. & P. 645. (2) 19 "Wendell, 148. 
 
 (3) Id. ibid. (4) 6 Taunt. 121, 406. (5) Arch. PL 81. 
 
 (6) 16 J. R. 44. (1) 1 Arch. Pr. 124; 3 J. R. 638 ; 8 Oowen, 111. 
 
 (8) 19 ■Wendell, 642. (9) 2 J. R. 365; 18 Wendell, 62T. ^ 
 
HOW TO DECLAES. 79 
 
 § 270. It is the office of the declaration to show a good title in 
 the plaintiff to that which he seeks to recover by the action. For 
 this purpose, in the framing of this part of the declaration, the 
 principal points to be considered are the matter which is necessary 
 to be stated, and the manner of stating, it. 
 
 In actions upon contracts, the declaration should state the con- 
 tract itself, and the time and place of making it ; the breach of the 
 contract on the part of the defendant, and the damages which the 
 plaintiff has sustained in consequence of such breach. So, also, in 
 actions for torts, the declaration should state the injury done by the 
 defendant, and the damages resulting therefrom to the plaintiff. 
 
 § 271. It sometimes becomes necessary also to state the matter 
 from which the title or cause of action has originated, in order to 
 render the subsequent statement of the cause of action clear and 
 intelligible, as in assumpsit for not performing an award, in which 
 the declaration usually states that there were differences existing 
 between the parlies, and what such differences related to, before 
 stating the plaintiff's title to damages, namely, the submission, 
 promise to perform the award, and the breach. So, in debt on a 
 bail bond, the declaration states the delivery of the writ to the 
 sheriff, and the arrest, before stating the bond, breach, and assign- 
 ment to the plaintiff. And in debt on a deed, and in covenant, the 
 declaration states the substance of the deed generally before it 
 states the covenant and breach. 
 
 § 272. So also in case for an escape on mesne process, it states 
 the original debt, the process sued out and delivered to the sheriff, 
 and the arrest thereon, before it states the escape. So, in case for 
 an injury caused by the negligence of the defendant's servant in 
 driving his wagon against the plaintiff's chaise, the declaration first 
 states the plaintiff's possession of the chaise, and the defendant's 
 possession of the wagon and horses. In these, and the like cases, 
 this inducement, or conveyance to the action, as it is termed, is ne- 
 cessary to render the statement of the plaintiff's cause of action, 
 which immediately follows it, intelligible, as before observed: or 
 rather, it is a statement of facts necessary to be shown in order to 
 establish a title in the plaintiff to the thing sought to be recovered. 
 
 § 273. There is another class of cases, however, in which the 
 necessity of the inducement does not exist, namelj', in actions for 
 libel, verbal slander, and malicious prosecutions, in which the state, 
 ment of the libel, &c., is usually prefaced by a statement of the good 
 character of the plaintiff, and the good opinion his neighbors enter. 
 
80 PLEADINGS. 
 
 tained of him on that account, &c. This is not necessary in these 
 cases to elucidate any other part of the declaration, but is inserted 
 ' merely in conformity with ancient precedents,(l) and might better 
 be omitted. 
 
 § 274. In setting forth the plaintiff's cause of action, the follow- 
 ing general rules require attention : 
 
 In assumpsit, (except on bills of exchange and promissory notes, 
 and instruments under seal, which on their face import a considera- 
 tion,) the declaration must state, not only the promise, but the con- 
 sideration for it ;(2) and the whole of the consideration must be 
 stated, otherwise the plaintiff will fail at the trial.(3) But it is not 
 necessary to state the whole of the promise ; if those parts, the 
 breach of which is complained of, and such parts as qualify or vary 
 them, be stated, it is sufficient ;(4) it being a general rule that more 
 of a contract than is sufficient to show the cause of action need not 
 be stated.(5) In debt on bond, the 'consideration is never stated, 
 but the contract and breach merely ; and the same in debt and 
 covenant on all common law conveyances, such as leases, &c.(6) 
 
 § 27.5. In debt upon a specialty (which is a contract in writing 
 under seal), the plaintiff should make p-ofert of the specialty.(7) 
 In covenant, the declaration should allege that the writing or con- 
 tract on which the suit is brought, was sealed by the defendant. (8) 
 If the contract be conditional, it must appear upon the face of the 
 declaration that the condition has been complied with;(9) or if the 
 thing demanded be granted for such a cause or consideration, this 
 ought to be averred to have been performed, for it is in the natura 
 of a condition precedent.(10) 
 
 § 276. And in all other cases, where two acts are to be done ai 
 the same time, as when A. covenants to convey an estate on such 
 a day, and in consideration thereof B. covenants to pay A. a sum 
 of money on the same day, neither can maintain an action without 
 performance of, or an offer to perform his part, though it be not 
 certain which of them is obliged to do the first act ; and this parti- 
 cularly applies to all cases of sale.(ll) And although a day be ap- 
 pointed for the performance of a promise, as for the payment of 
 
 (1) Gra. Pr. (2d. ed.) 203. 
 
 (2) 1 Arch. PI. 84; 1 Chitty's PI. (ed. of 1844) 293 ; 2 Ctlines' R. 120; 6Cowen,346. 
 
 (3) 1 T. R. 447. (4) 8 East, 1 ; 2 Caines' R. IIV ; 9 Cowen, 255. 
 
 (5) 8 Cowen, 36. (6) 2 H. BJ. 261 ; Arch. PI. 84 (1) 1 Chitt. PI. 365. 
 
 (8) 12 J. R. 197. (9) 6 T. R. 571 ; 4 Cowen, 39. 
 
 (10) 3 J. R. 146; 10 id. 303, 266; 1 Caines', 45. 
 
 (11) 1 Saund. 320c; 2 J. R. 207 ; 16 J. R. 267. 
 
THE BECLAKATION. ■ 81- 
 
 money, yet if the day is to happen after the thing which is the con-.- 
 sideration is to he performed, no action can be maintained for the^. 
 money, without alleging performance of that which was the con-.- ' 
 sideration of it.(l) In these cases the plaintiff must allege perform- 
 ance of his part of the contract^ or that which is in law deemed . 
 equivalent to a performance, to entitle him to his action. (2) 
 
 § 277. In the case of concwrrent conditions, as the sale of goods.., 
 &c., in an action by the vendee, it is sufScient to aver that he was... 
 ready and willing to pay for and receive them ; but in all other 
 cases, when the condition on the part of the plaintiff is to do some, 
 specific act, not being the payment of money, he must show not. 
 only that he was ready to do it, but that he has either actually 
 done it, or at least that he has done everything in his power to wards . • 
 the performance of it.(3) 
 
 § 278. There are cases, however, where a performance on the 
 part of the plaintiff need not be averred ; as, if a day be appointed i 
 for the payment of money, or for doing any other act, and the day 
 must or may happen before the thing which constitutes the con-, 
 sideration is to be performed, an action may be brought for the 
 money, or for not doing such other act before performance of the 
 consideration, for the party relied upon his remedy, and did no^'^ 
 intend to make the performance a condition precedent •,(4) or when..- 
 there are mutual promises ; that is, when a mere promise on on&' -■ 
 part is the consideration of the promise on the other part, gener-v- 
 ally, performance need not be averred. (5) 
 
 § 279. And it is to be observed that in all cases, covenants arev 
 to be construed to be either dependent or independent of each 
 other, according to the meaning and intention of the parties, and 
 the good sense of the case, without regard to technical words (6) 
 So, when a covenant goes only to a part of the consideration on 
 both sides, and a breach of such covenant may be compensated for - 
 in damages, it is an independent covenant, and a performance of it 
 need not be averred in a declaration against the other party for. 
 breach of a covenant upon his part.(7) And when any estate or- 
 interest passes or vests immediately, and is to be defeated by a con- 
 dition subsequent, or matter ex post /ado, be it in the affirmative or 
 
 (1) 6 Cowen, 624. (2) 4 Day, 313 ; 6 Binney, 24. 
 
 (3) 2 H. BL 123; 5 East, 107; 5 T. R, 409. (4) 10 J. R. 203. 
 
 (5) 5 Cowen, 509. (6) 19 J. R. 337 ; 1 WendeU, 388. 
 (7) 1 Sauud. 320, 6. 
 
 6 
 
82 PLEADINGS. 
 
 -.negative, to be performed by the plaintiff or defendant, or by 
 : another, performance of such conditi&n subsequent need not be 
 ;averred.(l) 
 
 § 280. So, the declaration must contain an averment of notice 
 ^having been given to the defendant of some fact or facts, in all 
 ■cases where the action does not lie before such notice has been 
 ;given.(2) And whenever it is essential to the cause of action that 
 the plaintiff should have requested the defendant to perform his 
 
 ■ contract, such request must be stated in the declaration. (3) In 
 ■point of form there are, in pleading, two descriptions of requests ; 
 ■one termed a special request, alleging by whom and the time when 
 it was made ; the other, the general request, which constitutes one 
 'Of the usual formal parts of a declaration. When an actual re- 
 
 ■ quest is essential to the support of the action, the special form must 
 ibe used, and the other is not sufficient.(4) 
 
 § 281. In actions ex delicto, the declaration must frequently 
 :Btate the matter or thing affected, and the plaintiff's right thereto, 
 ■before stating the injury sustained and the consequent damages. 
 'This is most usual in actions of trespass, and case for injuries to 
 jxeal and personal property.(5) In trover the declaration states 
 ■that the plaintiff was possessed of the goods, &c., in question, that 
 }lie casually lost them, and that the defendant found them and con- 
 verted them to his own use. (6) In replevin it is also sufficient, 
 whether the original taking was lawful or otherwise, for the plain- 
 tiff to allege in his declaration, with requisite certainty of time, 
 place and value, that the defendant received the property to be de- 
 livered to the plaintiff when thereunto afterwards requested so to 
 do, and that the defendant, although requested so to do, has not 
 'deilivered the same to the plaintiff, but hath unlawfully detained 
 &.e same, to the damage of the plaintiff such sum as he may 
 speeify..(7) 
 
 § 282. In ejectment, also, the declaration briefly states that on 
 some day, after the plaintiff's title or right accrued, he was pos- 
 sessed of the premises in question, describing them with such con- 
 venient certainty that from such description possession of the prem- 
 ises claimed may be delivered, and stating M'hether he claims the 
 
 (1) Arch. PI. 10'2. (2) Arch. PI. 91, 92. 
 
 (3) 1 Chitt. PI. 329. (4) 24WendeU, 266. 
 
 (5) 1 Chitt. PI. 316, 386. (6) Arch. PL 94. 
 (7) Comp. L. 1334. 
 
THE DECLAEATIOK. 83 
 
 same in fee, or for his own life, or for the life of another, or for a 
 term of years, or otherwise ; and that, being so possessed thereof, 
 the defendant afterwards, on some day to be stated, entered into 
 such premises, and that he unlawfully withholds from the plaintiff 
 the possession thereof, to his damage, &c. If the action be brought 
 for the recovery of dower, the declaration must state that the plain- 
 tiff was possessed of one undivided third part of the premises as 
 her reasonable dower as widow of her husband, naming him.(l) 
 There are several other cases in which the form of the acticfti or of 
 the declaration is prescribed by the statute, and in regard to all 
 such cases it is sufficient here to observe, that the statute must be 
 in all respects substantially followed. 
 
 § 283. The manner of stating the cause of action necessarily 
 varies, according to the nature and circumstances of the case ; and 
 in framing this part of the declaration, care and skill are required 
 on the part of the pleader. A clear, simple and consistent state- 
 ment of the material facts upon which the plaintiff's title to a recov- 
 ery rests, is, as we have seen, all that is req[uired, and duplicify and 
 surplusage should always be avoided. For full and explicit direc- 
 tions as to the facts and particulars necessary to be stated in the 
 declaration, in each of the different forms of action, and the proper 
 manner of stating them, reference must be had to the various trea- 
 tises on pleading, and to the books of precedents which should be 
 attentively consulted, as they afford the best means of acquiring 
 an understanding of the' practical application of the general rules 
 relating to the construction of pleadings. 
 
 § 284. Several counts may be embraced in the declaration,'; but 
 each count must contain but one title to whatever is sought to be 
 recovered, otherwise it will be bad for dupUctty.{2) If the plaintiff 
 have several causes of action of the same nature, they may all be 
 joined in the same action, in which case they are all embraced in 
 the declaration by being separately set forth in different sections 
 or paragraphs, technically called counts. And sometimes, when 
 two or more actions ai€ brought by the same plaintiff, against the 
 same defendant, at the same time, for causes of action which might 
 have been thus joined in one, the court will, on application of the 
 defendant, compel the plaintiff thus to consolidate his causes of 
 
 action.(3) 
 
 « 
 
 § 285. "When there is but a single cause of action, it is usual, 
 except in actions of debt on specialties, and in covenant, for the 
 
 (1) Comp. L. 1231. (2) 2 J. R. 433,437; 23 "Wendell, 35. (3) Comp. L. 1153 
 
84 PLEADINGS. 
 
 pleader to set it forth in different forms by emplojing several 
 counts, so that if the plaintiff fail on one count, he may succeed on 
 another.(l) This, however, should not be done unnecessarily, for 
 if unnecessary counts be employed, the court, on application of the 
 defendant, may order them to be stricken out, and in some cases 
 make the plaintiff pay the costs of the application.(2) The counts 
 thus joined are considered to be as distinct as if they had been in 
 so many several actions, and it is therefore usual to express in the 
 second and subsequent counts, that the cause of action therein set 
 fbrth, is different from that stated in the preceding count. Thus, 
 in assumpsit, the second or subsequent count commences in the fol 
 lowing form : " And whereas also the said C. D., on, &c., at, &c. 
 made a certain oilier note in writing," &c. By this form of expres- 
 sion, a direct violation of the rule against duplicity is avoided.(3) 
 
 § 286. Common counts are generally employed in assumpsit and 
 other actions for any money demand, in addition to those which 
 are termed special counts. Common counts are general forms of 
 pecuniary demand founded on promises, express] or implied, to 
 pay money in consideration of a precedent or existing debt, and 
 their principal use is to sustain the plaintiff on the trial, if he fail 
 to prove his case as stated in the special counts.(4) They are also 
 frequently used without special counts, and as a substitute for them, 
 when a general form of declaring is advisable.(5) And in some 
 cases they are the only mode of declaring. There are four kinds 
 or descriptions of common counts, namely : the indebitatus assump- 
 sit, the quantum, meruit, the quantum valebant, and the insimul com- 
 putassent, or account stated. 
 
 § 287. The indebitatus assumpsit is of the most general use and 
 application, and is constantly used in actions for goods sold, work 
 done, or services performed, use and occupation of premises, money 
 lent, money paid, money had and received, and for interest. In 
 substance it sets forth that the defendant, at a certain time and 
 place, was indebted to the plaintiff in a certain sum of money, for 
 whatever the subject matter of the claim i^ay be; and that being 
 so indebted {indebitatus), the defendant, in consideration thereof, 
 undertook (assumpsit), and promised the plaintiff to pay him the 
 said sum of money when he should be thereto afterwards requested. 
 
 § 288. The quantum meruit count is but another form of stat- 
 ing the subject matter of the indebitatus count for the same cause. 
 
 (1) 3 Bl. Com. 295. (2) 2 Arch. Pr. 191. (3) Steph. PI. 251 ; 23 -Wendell, 35. 
 (4) Arch. PI. 151, 162a. (5) 24 WeiKjell, 60 ; 5 HiU, 613, 616. 
 
THE DECLARATION. 85 
 
 It alleges, in substance, that at a certain time and place, in consid- 
 eration that the plaintiff, at the request' of the defendant, had done 
 work, &e., the defendant undertook and promised the plaintiff to 
 pay him so much money as he reasonably deserved {quantum meruit) 
 to have therefor ; and that the plaintiff deserved to have therefor 
 a certain sum, of which the defendant had notice.(l) 
 
 § 289. The quantum valebant count is employed only in cases of 
 goods sold, and, like the quantum, meruit, is but a different form of 
 stating the subject matter of the indebitatus count for the same 
 cause. After setting forth the consideration, to wit, the selling of 
 the goods, this count states that the defendant promised to pay the 
 plaintiff so much as the goods loere reasonably worthy {quantum 
 valebant,) and then avers that they were reasonably worth a cer- 
 tain sum, of which the defendant had notice. These two counts 
 are used in connection with the indebitatus couat for the same 
 cause, but they seem to be entirely unnecessary.(2) 
 
 § 290. The insimul computassent count states, in substance, that 
 at a certain time and place the parties accounted together concerning 
 divers sums of money previously due to the plaintiff, and in arrear 
 and unpaid ; and that upon such accounting, the defendant was 
 found in arrear and indebted to the plaintiff in a certain sum ; and 
 that being so indebted, the defendant, in consideration thereof, 
 promised the plaintiff to pay the same on request, &c. 
 
 § 291. These counts are framed in strict accordance with estab- 
 lished rules of pleading, and embody in the most succinct manner 
 all the requisites to a complete and perfect statement of the several 
 causes of actions to which they are appropriate ; and their safety and 
 convenience, as established forms of statement applicable to almost 
 every variety of pecuniary demand, has brought them into con- 
 stant use.(3) 
 
 The indebitatus assumpsit counts for money lent and advanced, 
 for money paid and expended, and for money had and received, 
 are generally condensed into one count. (4) These, and the insimul 
 computassent counts, are commonly termed^mowey counts. 
 
 § 292. The use of the common money counts has been ex- 
 tended by the statute authorizing holders of bills of exchange and 
 promissory notes to include the drawers, makers, indorsers and 
 acceptors in one action ; which provides that the plaintiff in such 
 action, and in all other actions on bills of exchange and promissory 
 
 (1) 1 Chitt. PI. 3li. (2) 1 Chitt. H. 316. 
 
 (3) 6 WeadeU, 290. (4) 4 J. R. 283 ; 13 id. 483. 
 
86 PLEADINGS. 
 
 notes, may declare upon the money counts alone, and that any 
 such bill or note may be giren in evidence under such counts in 
 all cases when a copy of the bill or note shall have been served 
 with the declaration.(l) The plaintiff is not, in such cases, re- 
 stricted to the money counts, but may include other appropriate 
 counts in his declaration.(2) The bill or note is not regarded as 
 part of the declaration.(3) 
 
 § 293. In actions upon contracts, an essential part of the decla- 
 ration is the statement of the breach of the contract on the part of 
 the defendant ; and this follows immediately after the statement of 
 the contract itself. In the common form of assumpsit, this state- 
 ment usually runs as follows : " Yet the said defendant (although 
 often afterwards requested so to do) hath not as yet paid the said 
 several sums of money above mentioned, or any or either of them, 
 or any part thereof, to the said plaintiff; but hath hitherto neglected 
 and refused, and still neglects and refuses so to do." In special 
 assumpsit the breach must be stated with more particularity .(4) 
 When, however, the special count in assumpsit is merely a money 
 demand, and common counts are subjoined, the usual breach in the 
 conclusion will in general be sufficient ; and in declarations on bills 
 of exchange and promissory notes, it is not usual to allege any other 
 breach than that at the end of the common counts. But when the 
 breach is special, and not merely the non-payment of money, it is 
 generally stated in each special count.(5) 
 
 § 294. The form of the breach varies also in actions by husband 
 and wife, executors, assignees, &c. In debt on bond conditioned 
 for the performance of covenants, and in the action of covenant, 
 this part of the declaration requires particular attention. The alle- 
 gation or assignment of the breach must be governed by the nature 
 of the stipulation or covenant to which it refers. It should be 
 assigned in the words of the contract or covenant, either negatively 
 or affirmatively, or in words which are co-extensive with the im- 
 port and effect of it, and in many oases this will be su/ficient.(6) 
 But this general mode of assignment will not be sufficient unless it 
 necessarily amounts to a breach ; but if it be assigned in words con- 
 taining the sense and substance of the covenant, though not in the 
 precise words, it will be sufficient. 
 
 § 295. In actions on bonds for the breach of any condition other 
 than the payment of money, or for the recovery of any j^enal sum 
 
 (1) Oorap. L. 1148 ; 13 Wend. 541. (2) 23 "Wendell, 38. (3) 23 Wendell, 408 
 
 (4) 1 Chitt. PI. 365. (5) 1 Chitt. PI. 365. (6) 4 Hill, 154. 
 
THE DECLAEATION. 87 
 
 for the non-performance of any covenant or written agreement, the 
 plaintiff must assign, in his declaration, the specific breaches for 
 which the action is brought.(l) But this is not necessary in 
 actions on bonds for the payment of an annuity.(2) 
 
 The omission to assign a breach is a fatal defect, even after ver- 
 dict -,(3) but the insufficiency of the assignment will, in general, be 
 aided by the verdict ; and the omission to assign a breach to one 
 of several counts in assumpsit, will be aided by the verdict, and 
 may be amended.(4) 
 
 § 296. The conclusion of the declaration generally is : " To the 
 
 damage of said plaintiff of dollars, and therefore he brings 
 
 suit," &c. This is technically called the ad damnum clause. In 
 trespass, however, it concludes thus: "and other wrongs to the 
 said plaintiff then and there did, against the peace of the people of 
 
 the state of Michigan, and to the damage of the said plaintifl' of 
 
 dollars, and therefore he brings suit," &c. 
 
 § 297. Damages are general, being such as grow out of the pre- 
 sumption of law from the cause of action stated in the declaration ; 
 or special, being such as do not necessarily result from the injury 
 complained of, but from such actual loss as the plaintiff has sustained, 
 either in consequence of the act of the defendant, which of itself 
 would found an action, or in addition to the general damages im- 
 plied by law. In the former case, the conclusion as given above 
 is all that is set forth, and follows immediately after the statement 
 of the cause of action. In the latter, this general conclusion must 
 be preceded by an explicit statement of the particular injury which 
 the plaintiff has sustained, without which he will not, if it be in 
 addition to the general implied damages, be allowed to give it in 
 evidence on the trial.(5) If in such a case, however, he fail in prov- 
 ing the special damage, he is still entitled to the general damages 
 laid in the ad damnum, or to such part of them as the jury may think 
 a proper compensation for the injury complained of and proved. 
 
 § 298. But there are other cases in which the tort complained 
 of is not the subject of an action, unless the plaintiff have thereby 
 sustained a specific injury; and in such cases the special damage 
 must not only be laid in the declaration, but must also be proved 
 on the trial. (6) In both cases the special damage must be stated 
 with as much certainty as any other facts in the declaration. (7) 
 
 (1) Comp. L. 1221; 1 "Wend. 345. (2) 5 HUl, 37. (3) 5 HUl, 37. 
 
 (4) 9 Cowen, 204 (5) 1 Saund. 2435, n. 5. (6) 13 J. E. 403. 
 
 (7) Bui. N. P. 7. 
 
88 PLEADINGS. 
 
 In assnmpsit, covenant, case, trespass, trover, and replevin, the 
 damages stated in the conclusion of tbe declaration should at least 
 be equal to what the plaintiff may think the jury will give him for 
 the breach of contract or tort complained of, for the plaintiff cannot 
 recover more than is stated in the ad damnum. 
 
 § 299. In debt the damages laid are usually merely nominal, 
 because the debt itself is the principal object of the action ; with 
 these exceptions, however, that in debt on bond conditioned for the 
 performance of some specific act, the damages are usually laid in 
 the amount of the penalty or upwards ; and that in debt on judg- 
 ment they are generally laid at a sum sufificiently large to cover the 
 interest due upon the judgment.(l) 
 
 § SOO. The declaration is indorsed with the style of the court,'^ 
 the names of the parties, and of the attorney or agent of the plain- 
 tiff, who must also subscribe the same ; but if the writ issued in the 
 name of two attorneys, it is sufificient if the name of one of them be 
 subscribed to the declaration and other pleadings in the C3use.(2) 
 It is usual, however, to employ both names. If the suit is com- 
 menced by declaration, it must also be indorsed by some sufficient 
 person as security for costs, in the same cases in which writs are 
 so required to be indorsed.(8) After preparing the requisite num- 
 ber of copies, it is filed in the ofBce of the clerk of the court ; and 
 if, within ten days after the time limited for the filing of the decla- 
 ration, the defendant cause notice of his appearance, or of retainer 
 to be served on the plaintiff, the plaintiff must, within ten days 
 after receiving such notice, serve a copy of his declaration upon the 
 party giving such notice.(4) 
 
 § 801. It is not necessary, on filing the declaration, when the 
 suit is commenced by writ, to enter any rule to plead, or to serve 
 any notice to plead upon the defendant or his attorney, but each 
 party must take notice of the rule which fixes the time for filing 
 and serving pleadings, at the peril of being defaulted. If the de- 
 fendant appear by an attorney or agent, the declaration must be 
 served on such attorney or agent, and not on the defendant. "When 
 the attorneys for the adverse parties do not reside in the same 
 county, service of papers may be made on the agent of the attor- 
 ney, if he have one ; but if not, such service may be made by mail, 
 post paid.(5) Service may be made on an attorney or his agent, by 
 leaving the same with him or his agent, or with his clerk in his 
 
 (1) 1 T. R. 446. (2) 2 Cai. 109. (3) Gomp. L. 113T. (4) Rule 16. (5) Rule 6. 
 
THE DECLARATION'. 89 
 
 office, or with a person having charge thereof; or when no person 
 is to be found in the office, by leaving the same between the hours 
 of six in the morning and nine in the evening, in some suitable and 
 conspicuous place in his office ; or, if the office be not open so as to 
 admit of service therein, then by leaving the same at the attorney's 
 residence, with some person of suitable age and discretion.(l) 
 
 § 302. "When a party, other than an attorney, prosecutes or de- 
 famds in person, service may be made on him personally or by 
 mail. (2) In case of service by mail, such service may be made by 
 putting the papers into the post office, with postage prepaid, directed 
 to the attorney or party, at his place of residence, to be ascertained 
 according to the best information and belief of the person making 
 the same, and in such case the time of service must be increased 
 one day for evftry twenty miles distance between the place of de- 
 posit and the place of address.(3) 
 
 § 803. No service is necessary to be made on a defendant who 
 has not appeared in the suit, and given notice to the plaintiff's at- 
 torney of his intention to defend the suit, except when the defend- 
 ant is returned imprisoned for want of bail, in which case a copy of 
 the declaration must be delivered to him, or to the sheriff or jailer 
 in whose custody he may be.(4) 
 
 § 304. If, after the declaration has been filed and served, a mis- 
 take or omission be discovered in it, it may be amended as of 
 course (that is, without applying to the court for leave), and with- 
 out costs, at any time before the default for not replying to any 
 plea shall be entered, or within ten days after service of a copy of 
 the plea; if it be the general issue, or if there be a demurrer to the 
 declaration, at any time before the default for not joining in demur- 
 rer is entered.(5) The plaintiff can amend, of course, and without 
 costs, but once; and under this rule he may add new counts to his 
 declaration, if necessary. No rule to amend is required to be 
 entered, but a copy of the amended declaration, indorsed " Amend- 
 ed Narr." must be filed and served with a notice that the same is a 
 copy of the declaration as amended ; and the time to plead, if no- 
 tice thereof has been given, is computed from the day of service of 
 such copy of the amended narr.(6) 
 
 § 305. After the declaration has been once amended, if it ap- 
 
 (1) Rule 1. (2) Rule 8. (3) Rule 9. 
 
 (4) Rule 9 ; Comp. L. 1139. (5) Rule 35. (6) Rule 36. 
 
90 PLEADINGS. 
 
 pear that further amendment is necessary, application must be made 
 by special motion to the court for an order granting leave so to 
 amend. 
 
 If the defendant do not answer the declaration, by pleading or 
 demurring, within twenty days after service of a copy of the decla- 
 ration, the plaintiff may have his default entered in the common 
 rule book ; after which the plaintiff is not bound to accept a plea 
 unless the defendant, as soon as he shall know that the default has 
 been entered, shall serve an affidavit of merits, plead issuably, and 
 pay or tender the costs of the default.(l) 
 
 § 806. The rules of practice authorize the forms of declarations 
 adopted under the new English rules prior to 1840, to be used, so 
 far as they are not inconsistent with the statutes, or the peculiar 
 organization of the circuit courts.' These forms are so framed as 
 to exclude everything which is not absolutely essential to a clear 
 and succinct statement of the plaintiff's case, and the remedy which 
 he seeks. Under the English rules referred to, the following forms 
 and directions were adopted in the year 1831 : 
 
 § 307. Count on a promissory note hy payee or indorsee. 
 
 For that whereas the defendant, on the — day of , in the 
 
 year , at in the county of , made his promis- 
 sory note in writing, and delivered the same to the plaintiff, and 
 
 thereby promised to pay to the plaintiff dollars, after the 
 
 date thereof [or as the fact may be], which period has now elapsed 
 [or, if the note be payable to A. B.j : and then and there delivered 
 the same to A. B., and thereby promised to pay the said A. B., or 
 
 order, dollars, after the date thereof [or as the fact may 
 
 be], which period has now elapsed ; and the said A. B. then and 
 there indorsed the same to the plaintiff, whereof the defendant then 
 and there had notice, and then and there, in consideration of the 
 premises, promised to pay the amount of the said note to the plain- 
 tiff, according to the tenor and effect thereof. 
 
 § 308. Count on a promissory note hy indorsee against payee. 
 
 Whereas one 0. D., on the — day of , in the year 
 
 ' , made his promissory note in writing, and thereby promised 
 
 to pay the defendant, or order, dollars, — days after the 
 
 date thereof [or as the fact may be], which period has now elapsed ; 
 and the defendant then and there indorsed the same to the plain- 
 tiff, [or, " and the defendant then and there indorsed the same to H. Y., 
 and the said H. Y. then and there indorsed the same to the plaintiff "] 
 and the said C. D. did not pay the amount thereof, although the 
 
 (1) Rules 21, 22. 
 
THE DECLAEATION. 91 
 
 same was there presented to him on the day when it became due ; 
 of all which the defendant then and there had notice. 
 
 § 309. Count on a promissory note hy indorsee against indorser. 
 Whereas one C. D., on , at , made his promis- 
 sory note in writing, and thereby promised to pay to H. Y., or 
 
 order, , after the date thereof [or as the fact may be], 
 
 which period has now elapsed ; and then and there delivered the 
 said note to the said H. Y., and the said H. Y. then and there in- 
 dorsed the same to the defendant, and the defendant then and there 
 indorsed the same to the plaintiff, [or, " and the defendant then and 
 there indorsed the same to Q. R., and the said Q. li. then and there in- 
 dorsed the same to the plaintiff"] and the said C. D. did not pay the 
 amount thereof, although the same was there presented to him on 
 the day when it became due ; of all which the defendant then and 
 there had due notice. 
 
 § 310. Count on an inland hill of exchange against the acceptor, 
 by the drawer, being also payee. 
 
 Whereas the plaintiff, on , at , made his bill of 
 
 exchange in writing, and directed the same to the defendant, and 
 
 thereby required the defendant to pay to the plaintiff dollars, 
 
 — days after the date [or, " sight,"] thereof, which period has now 
 elapsed ; and the defendant then and there accepted the said bill, 
 and promised the plaintiff to pay the same according to the tenor 
 and effect thereof, and of his said acceptance thereof but did not 
 pay the same when due. 
 
 § 311. Count on an inland hill of exchange against the acceptor, 
 hy the drawer, not being the payee. 
 
 Whereas the plaintiff, on , at , made his bill of 
 
 exchange in writing, and directed the same to the defendant, and 
 thereby required the defendant to pay to 0. P., or order, dol- 
 lars, — days after the date [or, ^^ sight," \ thereof, which period has 
 now elapsed ; and then and there delivered the same to the said 0. 
 P., and the said defendant then and there accepted the same, and 
 promised the plaintiff to pay the same according to the tenor and 
 effect thereof, and of his acceptance thereof; yet he did not pay 
 the amount thereof, although the said bill was there presented to 
 him on the day when it became due, and thereupon the same was 
 then and there returned to the plaintiff; of all which the defendant 
 then and there had notice. 
 
 § 312. Count on an inland bill of exchange against the acceptor , 
 hy indorsee. 
 
 Whereas one E. F., on , at , made his bill of 
 
 exchange in writing, and directed the same to the defendant, and 
 thereby required the defendant to pay the said E. F., [or, " to G. 
 H.,] or order, — days after date [or "sight,"] thereof, which period 
 
92 PLEADINGS. 
 
 has now elapsed ; and the defendant then and there accepted the 
 said bill, and the said E. F. [or, " the said G. E"], then and there 
 indorsed the same to the plaintiff, [or, " and the said E. F.," or, 
 " aiid the said G. H. then and there indorsed the same to K. J"., and 
 the saidK. J. then and there indorsed the same to the plaintiff;"] of all 
 which the defendant then and there had due notice, and then and 
 there promised the plaintiff to pay the amount thereof, according 
 to the tenor and effect thereof, and of his acceptance thereof. 
 
 § 313. Count on an inland bill of exchange against the acceptor, 
 by the payee. 
 
 "Whereas one E. F., on ; at , made his bill of 
 
 exchange in writing, and directed the same to the defendant, and 
 
 thereby required the defendant to pay to the plaintiff dollars, 
 
 — days after the sight [or, " date"] thereof, which period has now 
 elapsed ; and the defendant then and there accepted the same, and 
 promised the plaintiff to pay the same according to the tenor and 
 effect thereof, and of his acceptance thereof. 
 
 § 314. Count on an inland bill of exchange against the draiuer, by 
 payee, on non-acceptance. 
 
 Whereas the defendant, on , at , made his bill 
 
 of exchange in writing, and directed the same to J. K., and thereby 
 
 required the said J. K. to pay to the plaintiff dollars, — days 
 
 after the date [or, " sight"] thereof, and then and there delivered 
 the same to the said plaintiff, and the same was then and there pre- 
 sented to the said J. K. for acceptance, and the said J. K. then and 
 there refused to accept the same ; of all which the defendant then 
 and there had due notice. 
 
 § 315. Count on an inland bill of exchange against drawer, by 
 indorsee, on non-acceptance. 
 
 Whereas the defendant, on , at , made his bill 
 
 of exchange in writing, and directed the same to J. K., and there- 
 by required the said J. K. to pay to the order of the said defendant 
 
 dollars, — days after the sight [or, " date,"] thereof, and the 
 
 said defendant then and there indorsed the same to the plaintiff, 
 [or, " and the said defendant then and there indorsed the same to L. M., 
 and the said L. M. then and there indorsed the same to the plaintiff ;"] 
 and the same was then and there presented to the said J. K. for 
 acceptance, and the said J. K. then and there refused to accept the 
 same ; of all which the defendant then and there had due notice. 
 
 § 316. Count on an inland hill of exchange against indorser, by 
 indorsee. 
 
 Whereas one N. 0., on , at , made his bill of ex- 
 change in writing, and directed the same to P. Q., and thereby 
 required the said P. Q. to pay to his order dollars, — days 
 
THE DECLAEATION. 93 
 
 « 
 
 after the date [or " sight"] thereof, and the said N. 0. then and 
 there indorsed the said bill to the defendant, [or, " to li. S., and the 
 said B. S. then and there indorsed the same to the defendant,''''] and 
 the said defendant then and there indorsed the same to the plain- 
 tiff; and the same was then and there presented to the said P. Q. 
 for acceptance, and the said P. Q. then and there refused to accept 
 the same; of all which the defendant then and there had due 
 notice. 
 
 § 317. Count on an inland hill of exchange against payee, hy in- 
 dorsee, on non acceptance. 
 
 Whereas, one N. 0., on , at , made his bill of ex- 
 change in writing, and directed the same to P. Q., and thereby 
 required the said P. Q. to pay to the defendant or order dol- 
 lars, — days after the date [or "sight"] thereof, and then and there 
 delivered the same to the defendant, and the said defendant then 
 and there indorsed the said bill to the plaintiff, [or, " to R. S., and 
 the said R. S. then and there indorsed the same to the plaintiff-"] and 
 the same was then and there presented to the said P. Q. for accept- 
 ance, and the said P. Q. then and there refused to accept the same; 
 of all which the defendant then and there had due notice. 
 
 § 318. Directions. — " If the declaration be against any party to 
 the bill, except the drawer or acceptor, and the bill be payable at any 
 time after date, and the action not brought till the time is expired, 
 it will be necessary to insert, as in declarations on promissory notes, 
 immediately after the words denoting the time appointed for pay- 
 ment, the following words, viz., which period has now elapsed ; and, 
 instead of averring that the bill was presented to the drawer for 
 acceptance, and that he refused to accep)t the same, to allege that the 
 drawee (naming him) did not pay the said hill, although the same luas 
 there presented to him on the day when it hecame due." 
 
 " And if the declaration be against any party except the drawer 
 or acceptor, and the bill be payable at any time after sight, it will 
 be necessary to insert, after the words denoting the time for pay- 
 ment, the following words, viz., and the said drawee (naming him) 
 then and there saw and accepted the same, and the said period has noio 
 elapsed; and, instead of alleging that the bill was presented for ac- 
 ceptance and refused, to allege that the drawee (naming him) did 
 not pay ilie said hill, although the same was presented to him on the 
 day when it hecame due." 
 
 " If a note or hill be payable at sight, the form of the declaration 
 must be varied so as to suit the case, which may be easily done." 
 
 " Declarations on foreign bills may be drawn according to the 
 principle of these forms, with the necessary variations." 
 
94 PLEAtilNGS. 
 
 « 
 
 § 319. Common counts. 
 
 Whereas, the defendant, at , on , was indebted to 
 
 the plaintiff in dollars, for the price and value of goods then 
 
 and there bargained and sold [or, " sold and delivered "J by the 
 plaintiff to the defendant, at his request : 
 
 And in dollars, for the price and value of work then and 
 
 there done, and materials for the same provided by th? plaintiff 
 for the defendant, at his request : 
 
 And in dollars, for money then and there lent by the plain- 
 tiff to the defendant, at his request : 
 
 And in dollars, for money then and there paid by the 
 
 plaintiff for the use of the defendant, at his request : 
 
 And in dollars for money then and there received by the 
 
 defendant for the use of the plaintiff : 
 
 And in dollars for money found to be due from the defend- 
 ant to the plaintiff, on an account then and there stated between 
 them : 
 
 And whereas the defendant afterwards, on, &c., in consideration 
 of the premises respectively, then and there promised to pay the 
 said several. moneys respectively to the plaintiff, on request: Yet 
 he hath disregarded his promises, and hath not paid any of the 
 
 said moneys, or any part thereof, to the plaintiff's damage of 
 
 dollars, and therefore he brings suit, &c. 
 
 If the declaration contains one or more counts against the maker 
 of a note, or the acceptor of a bill of exchange, it will be proper to 
 place them first in the decoration, and then in the general conclu- 
 sion to say, promised to pay the said last mentioned several moneys 
 respectively. 
 
 § 820. On being served with a copy of the plaintiff's declara- 
 tion, the defendant either admits the cause of action stated therein, 
 in whole or in part, or prepares to defend it. If he have no avail- 
 able defence to the action, he may either voluntarily confess the 
 action by giving a cognovit, or written confession ; or he may suffer 
 judgment to pass against him by default, by neglecting to plead 
 within the time therefor limited by the rules of the court, which is 
 considered an implied admission of the cause of action.(l) 
 
 If the defendant be satisfied that he is indebted to the plaintiff, 
 but not to the amount claimed in the declaration, he may, when 
 the sum demanded is a sum certain, or capable of being ascertained 
 by mere computation, without leaving any other sort of discretion 
 to be exercised by the jury, pay into court the sum he conceives 
 to be due, and leave the plaintiff to proceed in the action at his 
 peril.(2) 
 
 (1) 2 Arch. Pr. 16, 27. (2) 2 Burr. E. 1120 j 1 Tidd'a Pr. (ed. 1801) 561. 
 
PLEAS IN ABATEMENT. 95 
 
 § 321. So, also, if the action be for a sum certain, or which may 
 be reduced to a certainty by calculation, or for a casual or involun- 
 tary trespass or injury, the defendant, in any stage of the proceed- 
 ings before trial in such cause, 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 was commenced, or sufficient to pay the plain- 
 tiff's demand, together with costs of the action to the time of making 
 the tender.(l) But if the defendant dispute neither the cause of 
 action, nor the amount claimed, he may move the court to stay the 
 proceedings, on payment of the debt and costs, in UU cases when, at 
 the common law, the defendant may pay money into court.(2) 
 
 § 322. But if the defendant should appear to have a good de- 
 fence to the action, he will then consider in what manner such de- 
 fence can be most effectually made, and proceed to make such pre- 
 paration therefor as the circumstances may seem to require. If two 
 or more actions have been brought by the same plaintiff against 
 him at the same time, for causes of action which ought to have 
 been joined in one action, he may move to consolidate them into 
 one ; or, if the action be upon a bond or other sealed instrument, 
 of which profert is made in the declaration, he may, before pleading, 
 demand oyer of such deed, that is, require a copy of it.(3) 
 
 § 823. If it be necessary in order to enable him to answer the 
 declaration, the defendant may apply by petition for an order to 
 compel the plaintiff to produce books, papers or documents for that 
 purpose ;(4) and if the plaintiff has declared generally, without 
 specifying the particulars of the cause of action, he may, before 
 pleading, call for such particulars. {5) 
 
 The defence must be made before the expiration of the time 
 limited by the standing rules of the court for pleading. The time 
 is computed by excluding the day on which the declaration was 
 served, and including the last day on which the defendant is re- 
 quired to plead, except when the last day falls on a Sunday, in 
 which case he has the whole of the next day to plead in.(6) 
 
 § 324. Pleas in abatement, or to the jurisdiction, must be filed 
 and served within ten days after the filing and service of the decla- 
 
 (1) Comp. 1. 1226, 1226. (2) 1 Tidd'a Pr. 481. (3) 2 Arch. Pr. 216. 
 (4) Rule 40. (6) Rule 37. (6) Rule 15. 
 
96 PLEADINGS. 
 
 ration.{l) If the service of the declaration was made by mail, one 
 day is to be added for every twenty miles, as we have seen ; and 
 if oyer or particulars have been demanded, the defendant has the 
 same time to plead after receiving such oyer or particulars, as he 
 had when he demanded them.(2) So, in case of an order to 
 produce books, papers, or documents, the defendant has the same 
 time to plead after compliance with the order, to which he was 
 entitled at the time of making the order.(3) And when the plain- 
 tiff has amended his declaration, the defendant has the full time to 
 plead from the time of serving the amended copy.(4) If farther 
 time be necessary to enable the defendant to make his defence, he 
 should apply to tHe judge at chambers, or to the commissioner, for 
 an order to that effect. 
 
 § 325. The defence must be made either hjplea or by demurrer. 
 Pleas are in abatement, or in bar of the action. Pkas in abatement 
 may be interposed when certain matters of fact exist, connected 
 with the bringing of the suit, not affecting the merits of the action, 
 but which constitute a good defence to it as at present prosecuted 
 Thus, it may have been brought in a court not having jurisdiction, 
 or by or against a party not competent in law to sue or be sued, or 
 during the pendency of another action for the same cause, or a mis- 
 take may have been made in the name or number of either party. 
 These and like facts the defendant may take advantage of by plead- 
 ing them ; and such a plea is called a plea in abatement, because it 
 abates, suspends, or puts off the plaintiff's action for the present. 
 The order of pleading dilatory pleas is as follows : 
 
 1. 
 
 To 
 
 the jurisdiction. 
 
 2. 
 
 In 
 
 abatement. 
 
 1. To the person. 
 
 1. Of the plaintiff. 
 
 2. Of the defendant. 
 
 2. To the court. 
 
 3. To the writ. 
 
 1. To the form of the writ. 
 
 2. To the action of the writ, 
 
 § 326. These will all be treated as pleas in abatement, any tech- 
 nical distinction between those which are strictly so, and pleas to 
 the jurisdiction, being of no practical importaace. The order of 
 pleading here stated must be invariably pursued, as a plea in any 
 
 (1) Rule 24. (2) 3 Hill, 444; EvUe 37. (3) Rule 45. (4) Rule 36. 
 
PLEAS IN ABATEMENT. 97. 
 
 one of tlaese classes is deemed an acknowledgment that you have 
 no ground for pleading a plea in any of the preceding classes, and. 
 a waiver of your right to do so. Therefore, after a plea pleaded by 
 the defendant has been determined against him, and judgment given,, 
 he cannot plead a plea in the same, or in any preceding class with 
 that which he has already pleaded, but he may plead one in any of 
 the subsequent classes. Thus, after pleading to the person, he may 
 plead to the writ, but not vice versa. Of these classes of pleas, those ■ 
 to the count, and those to the writ for matter appearing on the /ace 
 of it, are inapplicable to our practice.(l) 
 
 § 327. The several ^acte of a plea in abatement are, the title ;: 
 the commencement; the body, or subject matter ; and the conclusion; . 
 
 The tiik of the plea is simply the title of the court, and of the 
 cause, with the parties' names reversed. " The Circuit Court for the 
 
 county of : C. D. ads. A. B." If the defendant plead by a 
 
 different name from that contained in the declaration, this should! 
 be indicated in the title, thus : " C. D., sued by the name of J. D., , 
 ads. A. B." 
 
 The commencement of the plea is as follows : " And the said C. D.y . 
 by G. li. his attorney, (or, 'm his own proper person,^ if he appear." 
 in person,) comes and defends ike wrong (or, in trespass, ' the force ') . 
 and injury, when," &c. When, however, the defendant pleads in his ■ 
 true name, being sued by a wrong one, the commencement should . 
 be thus : " and C. B., (the real name) against whom the said A. B, 
 hath exhibited his said hill (or, 'filed his said declaration,^ or ' issued 
 his said writ'), by the name of J. D., by G. H. his attorney, comes 
 and defends the wrong," &c. 
 
 § 328. " Exhibited his said bill " is the proper expression when 
 the suit is commenced by capias, which grew out of the proceedings 
 by original bill. " Issued his said writ " is the appropriate phrase 
 when the suit was commenced by summons; and '■'■ filed his said dec- 
 laration " when the suit was commenced by declaration. All these 
 phrases refer to the commencement of the plaintiff's proceedings; 
 the exhibition of the bill, the issuing of the writ, and the filing of 
 the declaration, being respectively tantamount to the commence- 
 ment of the suit ;(2) each phrase respectively being expressive of 
 the particular mode of its commencement. Tliere would seem to 
 be no objection, therefore, to the substitution, in the place of each 
 of these several phrases, of the more general and comprehensive 
 one " commenced his said suit."{3) 
 
 (1) 1 Burr. Pr. 153; 1 Tidd's Pr. 581; Gra. Pr. 228. 
 
 (2) 15 J. E. 323. (3) 6 HUl, 448. 
 
 7 
 
.98 PLEADINGS. 
 
 If the plea be to a part only of the cause of action, the com- 
 imencement should specify such part, and the form of the com- 
 ■.mencement will sometimes require to be varied in other particulars; 
 laccording to the class to which the plea belongs.(l) 
 
 § 829. The body of the plea contains a statement of the matter 
 ^pleaded in abatement, and of course varies according to the subject 
 •of it. 
 
 The plea concludes with a verification and prayer of judgment, 
 ^which are usually in the following words : '■^ And this he, the said 
 • defendant, is ready to verify. Wherefore he prays judgment of the 
 ■said hill, (or '■writ^ or '■declaration,^) and that the same may be 
 ■guashed," &c. The form of the prayer of judgment will, however, 
 be varied, according to the class to which the plea belongs. (2) If 
 :the plea be to the jurisdiction of the court, it should conclude by 
 ipraying judgment, if the court will take further cognizance of the 
 ;suit.(3) 
 
 § 330. The essential qualities of a plea in abatement are, that 
 lit must be triable, it must not be double, it must be certain to the 
 ■■utmost degree ;(4:) it must not be repugnant, and it must give the 
 ^plaintiff a better writ or bill, that is to ,say, it must afford him the 
 imeans of correcting the mistake of form to which the plea refers. 
 'This last quality constitutes the principal distinction between a plea 
 jn abatement, and a plea in bar.(5) 
 
 The defendant cannot plead several pleas in abatement, either of 
 
 which goes to the whole declaration, and if he do so, it is ground 
 'for special demurrer for duplicity. But he may plead one plea in 
 
 abatement to part, and another plea in abatement, or a plea in bar, 
 to another part ;(6) or, he may plead a second plea in abatement, 
 
 subject to the rule before stated, after a former plea has been 
 
 determined.(7) 
 
 § 331. When there are several defendants, one may plead one 
 plea in abatement, and another may plead another ; and one may 
 plead in abatement and another in bar, or may demur, or they 
 may join in the same plea.(8) But a plea in abatement by two 
 defendants, of a matter personal to one of them, is bad.(9) 
 
 (1) 1 Chitt. PI. 494, 496. 
 
 (2) fiee 1 Chitt. PI. 494, 49G ; Arch. PI. 336 ; and see also the forms of pleas in 
 abatement in Burrill's appendix, sections 696 to 610, inclusive. 
 
 (3) 1 Tidd's Pr. 583. (4) 2 Johns. Cas. 312 ; 8 Bing. 416. 
 (b) 1 Chitt. PI. 481. (6) Arch. PI. 301. 
 
 (1) Arch. PI. 305a. (8) Arch. PI. 305o. (9) 21 "Wendell, 45T, 
 
PLEAS IN ABATEMENT. 99 
 
 Tliese pleas are viewed with disfavor by the courts, as they 
 tend to delay the trial of the merits of the action, and the greatest 
 possible accuracy and precision are therefore required in framing 
 them.(l) This is the more necessary because, if defective, they 
 are not in general allowed to be amended. (2) It, not enough that 
 matter in abatement is contained in the plea, unless it be pleaded 
 in precise iecJinkal form.(3) Particular attention must be paid to 
 the form of the commencement and conclusion, which it is said 
 make the plea, (4) 
 
 § 332. The plea should be signed by the defendant, if he 
 defend in person, or by his attorney, if he have one ; and the 
 statute provides that no plea in abatement, or other dilatory plea 
 which does not involve the merits of the action, shall be received 
 by any court, unless the party offering such plea shall prove the 
 truth thereof by affidavit, or by some other evidenca(5) In gen- 
 eral the plea is proven by an affidavit annexed to the plea or 
 added at the foot of it. But if the matter of the plea appear upon 
 the face of the record, an affidavit is not neGessary.(6) 
 
 § 333. The affidavit may be made either by the defendant, or 
 a third person who has knowledge of the facts stated in the plea,(7) 
 It must be positive as to the truth of every part stated in the plea 
 and should state the plea to be true in substance and in fact ;(8) 
 and it must strictly agree with the plea, (9) and be co-extensive 
 with it(lO) If there be no affidavit or other proof, or the affidavit 
 be defective, the plaintiff may treat the plea as a nullity, and pro- 
 ceed to judgment as if no plea had been filed ;(11) or he may move 
 to set it aside.(12) The affidavit should not be sworn to before de- 
 livery of the declaration, otherwise the plea may be treated as a 
 nullity.(13) Nor should it be sworn to before the defendant's attor- 
 ney, though it has been held that the plea could not, on that 
 account, be treated as a nullity. (14) 
 
 § 334. The plea and affidavit being drafted, copies of both are 
 prepared to file and to serve. The affidavit being sworn to, the 
 original is filed with the plea, and a copy of both served on the 
 plaintiff. 
 
 (1) 1 Chitt. PI. 491 ; 2 Saund. 2096, note. 
 
 (2) 5 Wendell, 12 ; 2 Chit. Rep. 5. (3) 13 'WendeU, 495. 
 (4) 10 J. R 49. (5) Comp. L. 1150. (6) 3 B. & P. 391. 
 
 (7) 2 Arch. Pr. 2. (8) 5 HiU, 608. (9) 1 Dowl. P. C. 639. 
 
 (10) 3 Nev. & Man. 260. (11) 1 Str. 225, 639; 1 T. R. HI. 
 
 (12) 3 Burr. B. 161'?. (13) 1 Cromp. & J. 287 ; 1 Tyrw. 260. 
 (14) 3 M. & S. 154. 
 
100 PLEADnsrog. 
 
 No rule or notice to reply is necessary, but the plaintiff must 
 answer the plea within ten days after service thereof, or his default 
 may be entered, and the defendant proceed to judgment of discon- 
 tinuance against him, in the same manner as for not declaring. 
 
 § 335. The plaintiff, on being served with a copy of the plea 
 in abatement, either amends his declaration, discontinues his suit, 
 treats the plea as a nullity, moves to strike it out, demurs to it, or 
 replies, as the circumstances may require. 
 
 If the plea relate merely to some defect in the declaration, which 
 may be cured by amendment, such as a misnomer of a party, and 
 it be good in form and true in fact, the plaintiff may amend as of 
 course, at any time before his default for not replying is entered ; 
 and if a non-joinder of a defendant be pleaded, he may amend his 
 declaration, and take out a summons for the new defendant.(l) 
 
 § 336. If the plea be to the jurisdiction, and the plaintiff find 
 that he has commenced his action in the wrong court ; or if the 
 defect in the declaration be such as cannot be remedied by amend- 
 ment, he may discontinue his action and commence a new one if 
 he think proper. But if the plea be not verified by affidavit, or 
 other proof, or be put in after ten days from the time of serving the 
 declaration, it may be treated as a nullity, and the plaintiff may, 
 at the proper time, enter the default of the defendant as for not 
 pleading, and proceed to judgment. 
 
 If, on examining the plea, it appear that the matter pleaded is 
 true in fact, but not a good defence in law ; or if the plea be defec- 
 tive in form, the plaintiff may demur to it ; and if the defendant 
 join in demurrer in due time, an issue of law will thus be produced, 
 to be tried by the court. If the defendant neglect to join in de- 
 murrer, his default may be entered, and the plaintiff proceed to 
 judgment. 
 
 § 337. If, however, the matter pleaded in abatement be untrue 
 in fact, the plaintiff may traverse or deny it. If the plea be true, 
 but its legal effect may be avoided by new affirmative matter on 
 the part of the plaintiff, he should plead such new matter. In both 
 these cases, the plaintiff's pleading or answer to the defendant's 
 plea is termed a replication. In the former case it is said to be a 
 replication by way of traverse ; in the latter, by way of confession 
 and avoidance. {2) But instead of pleading in either of these ways. 
 
 (1) Eules 66, ST. (2) steph. PI. 58. 
 
DEMURRERS. 101 
 
 the plaintiff may allege any matter of estoppel by which the defend- 
 ant is precluded from availing himself of the defence set up by his 
 plea.(l) 
 
 § 338. If the mode of replication by Avay of traverse or denial 
 is adopted, the conclusion should be to the country ; but if the 
 plaintiff reply by way of confession and avoidance, he should con- 
 clude with a verification and prayer of judgment, so as to give the 
 defendant an opportunity to answer it, and the conclusion should 
 vary in form according to the prayer of judgment in the conclusion 
 of the plea.(2) 
 
 § 339. When the plaintiff has demurred to the defendant's plea 
 in abatement, an issue of law is thus tendered as to the sufficiency 
 of the plea, which must be accepted on the part of the defendant 
 by joining in demurrer. This he must do within ten days after 
 service of the demurrer. 
 
 If the plaintiff has replied to the plea by way of denial, a com- 
 plete issue is thus formed, and no further pleading is necessary un- 
 less the replication appear defective in form, in which case it may 
 be demurred to.(3) So, if the replication be by way of confession 
 and avoidance, and the matter therein alleged appears insufficient 
 in law as an answer to the plea, it maybe demurred to in the same 
 manner as a declaration. But if it does not afford ground for de- 
 murrer, it should be answered, within the time limited therefor, by 
 a rejoinder. This pleading must either traverse the matter of the 
 replication, or confess and avoid it, concluding with a verification. 
 The mode of disposing of these various issues will appear hereafter. 
 
 § 3i0. If, on being served with the declaration, it appear on 
 the face of it that the plaintiff is not entitled, in point of latv, to the 
 redress which he seeks, and in the form of action which he has 
 chosen, supposing the facts to be true as stated, the defendant may 
 interpose an objection upon that ground, and refer the sufficiency of 
 it to the judgment of the court. In so doing he Ls said to demur^ 
 and this kind of objection is called a demurrer.{4:) It lies for in- 
 sufficiency, either in substance oiform ; that is, it may be either on 
 the ground that the case shown by the plaintiff is essentially insuf- 
 ficient, or that it is stated in an inartificial manner, or in violation 
 of any of the rules of pleading. 
 
 (1) Arch. PI. 252. (2) Arch. PI. 254, SOY. 
 
 (3) 14 J. R. 345 ; 18 id. 13T. (4) Steph. P). 44. 
 
102 PLEADINGS. 
 
 § 341. Demurrers are therefore either p-eweraZ or spfci'aL A gen- 
 eral demurrer excepts to the sufficiency of the pleading demurred 
 to, in general terms, without showing, specifically, the nature of 
 the objection ; a special demurrer adds to this a specification of the 
 particular ground of objection ; the former applying to matters of 
 substance, the latter to matters of form. 
 
 The 34th of the circuit court rules, which requires a party de- 
 murring to any pleading briefly but plainly to specify the objec- 
 tions in matters of substance, as well as those of form, upon which 
 he intends to rely on the argument, has virtually abolished this 
 distinction, by making all demurrers special. A general demurrer 
 may, however, be put in as before, without specifying the matters of 
 substance demurred to, and cannot be treated by the opposite party 
 as a nullity ;(1) but if the pleading should be adjudged bad for any 
 cause net particularly specified, the party pleading, when allowed 
 to amend on terms, will be permitted to do so without costs.(2) 
 
 § 342. It is also provided by statute, that where any demurrer 
 shall be entered in any action, and issue be joined thereon, the fcourt 
 shall proceed and give judgment according as the very right of the 
 case and matter in law shall appear, without regarding any defect 
 or other imperfection in any process or pleading, so as sufficient 
 matter appear in the pleadings to enable the court to give judgment 
 according to the very right of the case, unless such defect or other 
 imperfection be specially expressed in the demurrer : and the court 
 is required to amend every such defect or imperfection not; specially 
 expressed in the demiirrer.(3) 
 
 § 343. The form of the demurrer, as authorized by the rules of 
 practice, is exceedingly brief and simple, and may be as follows : 
 
 [Title of the court^ 
 
 C. D. \ 
 
 ads. y 
 A. B.) 
 
 And the said C. D., by E. F. his attorney, [t5r, " in his own 
 proper person,"] comes and says that the said declaration for, " the 
 
 said count of the said declaration"'], is not sufficient in law. 
 
 And the said defendant states, and shows to the court here, the 
 following causes of demurrer to the said declaration, [or, " to the 
 
 said count of the said declaration"], that is to say : [here state 
 
 the particular causes of demurrer, and then add as follows :] And 
 
 (3) 19 "Went!. 91. (2) Eule 34 ; 19 "Wead. 9T. (3) Comp. L. 1150. 
 
DEMUBKEES. 103 
 
 also for tliat tlie said declaration is in other respects uncertain, in- 
 formal, and insufficient.(l) 
 
 E. F., Attorney for Defendant. 
 
 § 344. If the demurrer is intended to apply to the whole decla- 
 ration, it must cover the whole. But, when a part only of the de- 
 claration appears objectionable, the demurrer should be confined 
 expressly to such part ; for it is a well established rule of pleading 
 that a demurrer to the whole of a declaration containing several 
 counts, will not be sustained if any one of the counts is good.(2) 
 And when several breaches are assigned in the declaration, some 
 of which are good and others bad, and the whole declaration is de- 
 murred to, the plaintiff will have judgment.(3) And where the 
 defendant demurs to part only of the declaration, he must plead to 
 the remaining parts, or the plaintiff will be entitled to judgment for 
 that part which is unanswered. (4) A misjoinder of counts should 
 be taken advantage of by demurrer to the whole declaration. (5) 
 
 § 345. The demurrer being prepared, signed and filed, with the 
 proper indorsements upon it, and the requisite number of copies 
 made, it is served in the same manner as other pleadings. 
 
 The demurrer cannot be amended without the consent of the 
 plaintiff.(6) Nor can the defendant, after interposing a demurrer, 
 withdraw it and serve another pleading, without leave of the court 
 obtained on special motion ;(7) nor can he demur and plead to the 
 same part of the declaration ;(8) but he may demur to one count 
 and plead to another ; and in some cases he may plead to one part 
 of a count and demur to another part ;(9) and if there be several 
 defendants, one may demur and another may plead.(lO) 
 
 If the plaintiff should neglect to join in demurrer or amend his 
 declaration within the ten days allowed for that purpose, his de- 
 fault may be entered, and the defendant have judgment for his 
 costs. 
 
 § 346. The plaintiff, on being served with a demurrer to his 
 declaration, must either amend his declaration, discontinue his ac- 
 tion, join in demurrer, or suffer judgment to be taken against him 
 by default. 
 
 (1) Rule 17. (2) 3 "Wend. 229 ; 6 Cowen, 295. 
 
 (3) 13 J. R. 264; 24 Wend. 153 ; 4 HiD, 154. (4) Arch. PI. 309. 
 
 (5) 15 Wend. 184; 1 Hill, Tl. (e) 2 Arch. Pr. 272. 
 
 (7) 11 Wend. 179. (8) 5 Wend. 104. 
 
 (9) 6 HiD, 258, 418. , (10) Arch. PI. 310. 
 
104: PLEADIITGS. 
 
 If the demurrer appear to be well taken, and tte defect be such 
 as can be remedied by amendment, the plaintiff will proceed to 
 amend it as of course, and without costs, at any time before his de- 
 fault for not joining in demurrer is entered.(l) 
 
 If, however, the action appear to have been misconceived, or the 
 defect in the declaration be such that it cannot be remedied by 
 amendment, the action should be discontinued by the entry of a 
 rule for that purpose, and serving notice thereof upon the defend- 
 ant's attorney ;(2) and in that case, after payment of the defendant's 
 costs, he may commence a new action. (3) 
 
 § 347. If the demurrer is to one of several counts, the plaintiff 
 may either amend by omitting that count, or he may enter a nolh 
 prosequi as to such count and proceed to trial upon the others.(4) 
 But when the demurrer is to the whole declaration, the plaintiff 
 will not be allowed to rectify the error by entering a nolh prosequi 
 as to some of the counts.(5) Neither can he do so when the de- 
 murrer is for a misjoinder of counts.(6) 
 
 § 348. If the plaintiff deem the objection to his declaration not 
 well taken, he accepts the issue tendered him by the demurrer, by 
 joining in demurrer. The joinder must be filed and served within 
 ten days after service of the demurrer, and may be in the following 
 brief form(7) : 
 
 {Title of the court i\ 
 
 vs. \ 
 C. D.) 
 
 And the said A. B., by G. H. his attorney, says that the 
 said declaration is sufficient in law. 
 
 G. H., Plaintiffs Attorney. 
 
 The more extended formula, concluding with a verification, and 
 a reference of the question to the judgment of the court in a 
 demurrer ; and in a rejoinder, praying judgment, and debt and 
 damages as claimed in the declaration, may still be used, but is 
 rendered unnecessary by the rule above referred to. An issue in 
 law being thus formed, the. law refers it to the judgment of the 
 court for decision, and the next step in the progress of the action 
 
 (1) 1 Doug. Mich. R. 434; Rule 35. (2) Rule 26. 
 
 (3) 2 Arch. Pr. 234, 250. (4) 2 Arch. Pr. 248. 
 
 (5) 4 T. R. 360; 1 Saund. 2Q1b. (6) 1 H. Bl. 108 ; 2 Arcli. Pr. 248. 
 
 (1) See Rule l-r. 
 
PLEAS IN BAB. 10"o 
 
 ■will be to prepare and bring on the issue for argument before tbe 
 court. 
 
 § 349. Separate demurrers may have been put in to several 
 counts or parts of the declaration, and thus several issues in law 
 produced, all of which must be brought on together ; or the de- 
 fendant may have demurred to part of the declaration and plead 
 to a part ; or one of several defendants may have demurred, and 
 another pleaded, and thus several issues of different kinds will be 
 formed ; the issue on the plea being termed an issue of fact^ which 
 may be tried either by the court or by a jury. These issues must 
 be brought on separately and successively for decision, in the 
 order which may appear most advisable. 
 
 § 350. Having treated of pleas in abatement, and demurrers 
 to the declaration, and their most ordinary incidents, we proceed 
 to the consideration of pleas in bar. 
 
 If there appear to be no matters of fact which can operate to 
 defeat the action as prosecuted, by being pleaded in abatement, and 
 the declaration appear upon the face of it to be unobjectionable in 
 form, and to show a substantial cause of action in favor of the 
 plaintiff, and against the defendant, the only mode of defence 
 which the defendant can adopt, is to answer to the merits of the 
 plaintiff's action, by showing some ground in fact for barring or 
 defeating it, not only in its present form, but in whatever form it 
 may at any time be prosecuted. A plea of this nature, supported 
 by the evidence, is a substantial and conclusive answer to the 
 action, and is technically called a plea in bar.{l) 
 
 § 351. According to the common law practice, pleas in bar 
 were divided into two classes — general a,nd special — and were calcu- 
 lated to show either that the plaintiff never had any cause of 
 action, or that it had been discharged by some subsequent matter. 
 
 In actions upon contracts, the grounds of defence are, that there 
 was no contract between the parties in point of fact ; or, if there 
 was, that it was void or voidable in point of law ; or, if there was 
 a good or valid contract, that it has been performed ; or, if not, 
 there is some legal excuse for the non-performance of it. Upon 
 these grounds it will appear that the plaintiff never had any cause 
 of action ; or, admitting that he had, it may be discharged by 
 
 (1) Steph. PI. 51 ; 3 Bl. Com. 303 
 
106 PLEADINGS. 
 
 some subsequent matter, as by accord and satisfaction, arbitrament, 
 release, &c. 
 
 § 352. In actions for wrongs^ tbe defendant may show tbat the 
 plaintiff never had any cause of action, by denying the charge, or 
 justifying or excusing it ; or he may discharge the action by means 
 similar to those which are available in actions upon contracts. 
 Considered with reference to the declaration, pleas were in denial, 
 or confession and avoidance, of the cause of action ; or they con' 
 eluded the plaintiff by matter of estoppel. Pleas in denial were of 
 the whole or a part of the declaration, and pleas in avoidance were 
 by raattev precedent, showing, that the plaintiff never had a cause 
 of action, and called an avoidance in law ; or by matter subsequent, 
 showing a discharge of the cause of action, and called an avoidance 
 in fad. 
 
 When the defendant intended to deny the whole charge con- 
 tained in the declaration, or that which forms the foundation of the 
 action, he pleaded the general issue ; as, in assumpsit, non-assump- 
 sit; in debt on simple contract, nil debit ; in debt on specialty, non 
 est factum ; in debt on record, nul tiel record; and in trespass and 
 trespass on the case, not guilty. 
 
 § 353. In assumpsit, the general issue is proper when there was 
 either no contract between the parties, or not such a contract as 
 the plaintiff has declared on ; and the defendant may give in evi- 
 dence under it that the contract was void in law by reason of cov- 
 erture, gaming, &c., or voidable by reason of infancy, duress, &c. ; 
 or, if good in point of law, that it was performed hy payment or 
 otherwise, or if unperformed, that there was some legal excuse for 
 the non-performance of it, as a release or discharge before breach ; 
 or non-performance by the plaintiff of a condition precedent, &c. 
 This sort of evidence goes to show that the plaintiff had no cause 
 of action ; but if he had, the defendant may give in evidence, under 
 the general issue, that it was discharged by an accord and satisfac- 
 tion, arbitrament, release, foreign attachment, or former recovery 
 for the same cause of action, the question upon the general issue in 
 assumpsit being whether there was a subsisting debt, or cause of 
 action, at the time of commencing the suit. But matters of law in 
 avoidance of the contract, or in discharge of the action, were pleaded 
 specially, and it was necessary to plead a tender, or the statute of 
 limitations, &c., and to plead or give notice of a set-off. 
 
 § 354. In covenant, there is strictly no general issue ; for though 
 the defendant may plead non est factum, as in debt on specialty, 
 
PLEAS IN BAR. 107 
 
 yet that only puts the deed in issue, and not the breach of covenant. 
 In this action, therefore, the defendant must specially controvert 
 the breach, or show that he has performed the covenant, or is 
 legally excused from the performance of it; or, admitting the 
 breach, show that he is discharged by matter ex post facto, as by a 
 release, &c. 
 
 § 355. In debt on simple contract, nil (hhit is a sufiBicient plea in 
 all cases when nothing was due at the time of commencing the ac- 
 tion, and under this plea the defendant may not only require the 
 plaintiff to show the existence of a legal contract, but he may give 
 in evidence \}sie performance of it. He may also give in evidence, 
 under this plea, a release or other matter in discharge of it.(l) 
 
 In debt on bond or other specialty, the general issue of non est 
 factum is a good plea in all cases when the deed was not executed, 
 or varies from the declaration. And the defendant may give in 
 evidence under it that the deed was void at common law ab initio, 
 being obtained by fraud, or made by a married woman, lunatic, 
 &c., or that it became void after it was made by erasure, alteration, 
 cancelling, &c., or that it was delivered as an escrow to a third 
 person. 
 
 § 856. But he cannot give in evidence, under this issue, that 
 the deed was voidable by reason of infancy, duress, &c., or that it 
 was void by the statute of gaming, &c. In these cases, therefore, 
 the defendant must plead specially. So he must ^iQ&di payment at 
 or after the day, performance, or any other matter in excuse of per- 
 formance ; non damnificatus to a bond of indemnity ; no award to an 
 arbitration bond ; or, to a bail bond, no process to arrest, &c. lie 
 must also plead specially, in discharge of the action, a tender, set- 
 off, satisfaction, former recovery, or release, &c. In debt on record, 
 the general issue of nul tiel record is sufficient when there is no 
 record, or one different from that declared on. But this plea only 
 goes to the existence of the record, and payment, or any matter in 
 discharge of the action, must be specially pleaded. (2) 
 
 § 357. In trespass to persons, the general issue of not guilty is 
 the proper plea, if the defendant committed no assault, batter^', or 
 imprisonment, &c. In trespass to personal property, if the plaintiff 
 had no property in the goods, and in trespass to real property, if he 
 was not in the actual or constructive possession of the land, &c., 
 
 (I) 1 Tidd's Pr. 590, 593, title Fleas in Bar. (2) 1 Tidd's Pr. 595, 59S. 
 
108 PLEADINGS. 
 
 and liherum tenemenium, or other evidence of title, maybe given in 
 evidence under the general issue. But regularly, by the common 
 law, matter of excuse or justification must be specially pleaded ; as 
 ia trespass to persons, son assault demesne, or in trespass to real prop. 
 erty, a license, or that the beasts came through the plaintiff's hedge, 
 which he ought to have repaired, or the like. And the defendant 
 must also plead a release or other matter in discharge of the action. (1) 
 
 § 358. In actions upon the case, at common law, the general 
 issue of not guilty, not only puts the plaintiff upon proof of the 
 whole charge contained in the declaration, but upon that plea the 
 defendant may offer any matter of excuse or justification, or may 
 set up a former recovery, release or satisfaction ; for an action on 
 the case is said to be founded upon the mere justice and conscience 
 of the plaintiff's case, and is in the nature of a bill in equity, and 
 therefore such former recovery, release or satisfaction, need not be 
 pleaded, but may be given in evidence : since whatever will, in 
 equity and conscience, bar the plaintiff's recovery, may, in this 
 action, be given in evidence, because the plaintiff can recover only 
 upon the justice and conscience of his case.(2) 
 
 § 359. But by statute(3) no special plea in bar is allowed to be 
 pleaded in any civil action ; but all matters of defence to any such 
 action may be given in evidence under the general issue; and, in- 
 stead of the former mode of positive denial, varying according to 
 the kind of action brought, we have now one general form of issue 
 which is employed in all civil actions, and which consists merely 
 of a demand, by the defendant, of a trial of the matters set forth in 
 the plaintiff's declaration. But to entitle a defendant to avail him- 
 self of any matter of defence which, according to the former prac- 
 tice, was required to be pleaded specially, he must annex to his 
 plea of the general issue, a notice to the plaintiff, briefly stating 
 the precise nature of such matter of defence.(4) 
 
 § S'O. The effect of this general plea, in each of the several 
 different kinds of actions, is the same as a plea of the general issue 
 in the form heretofore used in the particular action, according to 
 the common law, except when the statute has prescribed a differ- 
 ent effect ; and hence it became necessary to consider briefly the 
 rules which determine what matters of defence might be given in 
 evidence under the plea of the general issue, and what matters 
 
 (1) 1 Tidd's Pr. 59T. (2) 1 Tidd's Pr. 598. 
 
 (3) Oomp. L. 1150. (4) Comp. L. 1150, 1151. 
 
NOTICES OF SPECIAL DEFENCE. 
 
 ^vere required to be specially pleaded in each form of action, in 
 order to determine when it is necessary to give notice of any 
 special matter of defence. 
 
 § 361. The object contemplated by the sta u^P fi'as to give 
 defendants the advantages of a special plea, without subjecting 
 them to all the niceties of special pleading. It is highly remedial, 
 and ought to be liberally construed. (1) In order to prevent sur- 
 prise, and to enable the parties to make the necessary preparation 
 for the trial, each party ought to be advised of any special matter 
 intended to be given in evidence ; and for this purpose the supreme 
 court is authorized to make rules in relation to notice of such 
 matters. And it was formerly provided by rule, that to any notice 
 of special matter of defence, the plaintiff should be at liberty to 
 reply by notice of special matter ; and that every notice of special 
 matter should contain all the requisites, in matter of substance, of a 
 special plea ; and that it should be competent to demur to any such 
 notice, as to any other pleading.(2) 
 
 § 362. But as this rule tended practically to defeat, in some 
 degree, the leading purpose of the statute — that of relieving the 
 parties from the intricacies of special pleading — it was entirely 
 omitted in the revision of the rules in 1858, and there is no stand- 
 ing rule prescribing the practice in regard to such nptices now in 
 force. Hence, if the defendant have any matter of defence wliich 
 he cannot give in evidence under the general issue, he must give 
 notice thereof to the plaintiff, and on the trial of the issue the 
 plaintiff will be at liberty to object to the sufficiency of the notice ; 
 or, if it be sufficient on the face of it, and it be proven upon the 
 trial, he may give any special matter in evidence, which might 
 have been replied in avoidance of a plea setting up the same mat- 
 ter in defence of the action. And so each party may have the 
 benefit of any special matter of which he might have availed him- 
 self at common law by plea, replication, rejoinder, surrejoinder, 
 rebutter, or surrebutter, without specially pleading it. 
 
 § 363. Although, in theory, this practice seems to be in pal- 
 pable violation of long established rules of pleading, based upon 
 sound and strictly logical principles, yet in practice very little in- 
 convenience is found to result from the change ; and any occasional 
 inconvenience that may happen to arise out of particular circum- 
 
 (1) See 3 HiU, 258 ; 6 Mich. K. 508. (2) See Rule 16, as reyiaed in 1853 
 
110 PLEADINGS. 
 
 Stances, is more than compensated by the relief which it affords 
 from the nice subtleties of special pleading. A replication of 
 special matter would rarely be necessary, and still more rarely is a 
 defendant surprised on the trial by the introduction of special 
 matter in avoidance of the matter of defence contained in his 
 notice. 
 
 § 364. A notice of special matter will not, in general, be 
 allowed to prejudice a defendant ; and accordingly, when he has 
 the right to give evidence of his defence upon the general issue 
 without notice, though he gives notice of such matter which varies 
 from the evidence, this will not be excluded by reason of the 
 variance. He may still take the general ground allowed by the 
 issue, and the notice may be entirely disregarded.(l) 
 
 § 365. Notice of special matter, when necessary, should be 
 annexed to the plea. Such notice, like a special plea, must con- 
 tain a statement of all the material facts which are necessary to 
 constitute a complete defence to the action, or to the count,(2) and 
 it must state them truly.(3) It is sufficient, however, if it fairly 
 apprise the plaintiff of the material facts upon which the defendant 
 means to insist,(4) or fairly puts him in possession of the means of 
 ascertaining the details of the defence, though they be not stated. (5) 
 
 § 366. As to when notice of special matter must be given, the 
 general rule is that any matter of defence which denies what the 
 plaintiff, on the general issue, would be bound to prove in the first 
 instance, may be given in evidence under the general issue, and 
 does not require notice to be given of it ;(6) but notice should, in 
 general, be given of any ground of defence which admits the facts 
 alleged in the declaration, but avoids the action by matter which 
 the plaintiff would not be bound to prove or dispute, in the first 
 instance, on the general issue.(7) For illustration of the rules on 
 this subject, reference may be had to what has already been men- 
 tioned, in noticing the defences which may be made under the 
 general issue in the various kinds of actions, and those which are 
 required to be pleaded. It is advisable, as it is always perfectly 
 safe, if there be any doubt whether the defence proposed to be 
 
 (1) 8 Cowen, 114; 2 "WendeU, 446. (2) 13 J. E. 475 ; 8 Wendell, 670. 
 
 (3) 10 J. R. 140 ; 14 id. 89. (4) 24 -Wendell, 480 ; 6 Mich. R. 508. 
 
 (5) 3 Hill, 258. (6) See 19 J. E. 300; 1 Hill, 266. 
 (7) See 11 Wendell, 654. 
 
NOTICES OF SPECIAL DEFENCE, 111 
 
 made can be introduced under the general issue, to give notice of 
 it with the general plea. 
 
 § 367. It is an essential quality of a notice, that it state the 
 facts which constitute the defence directly and positively, and not 
 by way of recital or argument. It must also be true : for if there 
 be a material variance between the notice and the proofs, it will be 
 as fatal as a variance from a special plea. 
 
 If there be any doubt as to the precise character of the evidence 
 to sustain the defence, the notice may be varied so as to meet any 
 probable state of the proofs, and notice may at the same time be 
 given of several defences. Although the notice is not, in any 
 technical sense, a pleading, it is within the statute of amendments, 
 being a proceeding in the action. It is also evident, from the lan- 
 guage of the 36th rule, that it is intended to be embraced in the 
 85th, authorizing the amendment of pleadings as of course, and 
 without costs. 
 
 § 368. In actions of ejectmerd, no notice of any special matter 
 of defence is required to be given ; but under the general issue, 
 which is in the same form as in personal actions, the defendant 
 may give in evidence any facts which may constitute a defence.(l) 
 
 In replevin, also, the general issue is in the same form as in per- 
 sonal actions, and puts in issue not only the detention of the prop- 
 erty, but also the property of the plaintiff therein, and his right to 
 the possession thereof at the time of the commencement of the suit ; 
 and the defendant may give notice, with such plea, of any special 
 matter of defence.(2) 
 
 § 369. If the action be brought by persons claiming as part- 
 ners, or by a foreign corporation, and the plaintiffs, at the time of 
 filing their declaration, shall have caused an affidavit to be filed with 
 the clerk, stating that the plaintiffs were the persons composing 
 such partnership, or existed as such corporation under the laws of 
 some other state, territory or country specified therein, at the time 
 the contract in question was made, or the cause of action accrued ; 
 and shall have served a copy thereof on the defendant or his attor- 
 ney, with the declaration, such affidavit is prima facie evidence of 
 the existence of such partnership or corporation ; and if the defend- 
 ant has reason to believe, and does believe, that such partnership 
 or corporation did not exist as set forth in the plaintiffs' affidavit, 
 
 (1) Comp. L. 1233. (2) Comp. L. 1335. 
 
112 PLEADINGS. 
 
 he must, in order to put the plaintiffs upon proof of suok partner- 
 ship or corporation, make and file with his plea, a counter affidavit 
 to that effect.(l) , 
 
 § 370. And if the action be brought upon any -written instru- 
 ment, whether under seal or without seal, the plaintiff will not, 
 upon the general issue, be required to prove the execution of the 
 instrument on the trial, or the handwriting of the defendant, unless 
 the defendant, or some one in his behalf, shall file and serve with 
 his plea, an affidavit denying the same. The court may, however, 
 upon proper showing, enlarge the time for filing such affidavit.(2) 
 
 When the plaintiff declares on the money counts under the stat- 
 ute, and serves a copy of the note with the declaration, the note is 
 no part of the declaration, (3) and it has been accordingly held that 
 the plea must be to the counts, and not to the note.(4) 
 
 § 371. When the plaintiff has done some act, or executed some 
 deed which estops or precludes him from averring anything to the 
 contrary, the defendant must give notice of such matter, with the 
 plea of the general issue, and that he will insist upon it in his de- 
 fence by way oi esioppel.ip) 
 
 If the defendant has claims against the plaintiff which may be 
 set off against the plaintiff's demand, in order to avail himself of 
 such set-off he must annex a notice thereof to his plea of the gene- 
 ral issue. (6) 
 
 § 372. Form ofpha of general issue, and notice of special matter 
 of defence. 
 
 The Ciecuit Couet for the county of : 
 
 C. D. ) 
 
 vs. )■ 
 
 A. B. J 
 
 And the said C. D., by G. H. his attorney, comes and de- 
 mands a trial of the matters set forth in the plaintiff's declaration. 
 
 Gr. H., Attorney for Defendant, 
 
 Sir: — Please to take notice that on the trial of this cause the 
 above named defendant will give in evidence under the general 
 
 (1) Rule 78. (2) Kule 79. ;•' 
 
 (3) See 19 Wendell, 226 ; 1 Hill, 601 ; 2 Hill, 121 ; -h Hill, 393. 
 
 (4) See the cases last cited. (5) 3 Bl. Com. 308 ; 1 Chitt. PI. 548. 
 (6) As to what claims may be set off, see Comp. L. 1151, 1152. 
 
NOTICE OF SET-OFF, &C. 113 
 
 ssue above pleaded, and insist in his defence, that [here state the/' 
 special matter of defence.] 
 
 Dated the — day of , A. D. . 
 
 Yours, &c., 
 
 Gr. H., Attorney for Defendant. 
 To B. F., Esq., Attorney for Plaintiff. 
 
 § 373. Notice of set-off under generalissue. 
 
 Sir : — Please to take notice that on the trial of this cause 
 ;he sai d defendant will give in evidence and insist, under the gen- 
 jral issue above pleaded, that the plaintiff, at the time of the com- 
 iTiencement of this suit, was and still is indebted to him in the sum 
 Df dollars, for the price and value of goods before then bar- 
 gained and sold [or, " sold and delivered" ] by the defendant to the 
 
 plaintiff at his request. And in • dollars, for the price and 
 
 value of work before then done, and materials for the same pro- 
 vided by the defendant for the plaintiff, at his request : 
 
 And in dollars, for money before then lent by the defend- 
 
 mt to the plaintiff, at his request. 
 
 And in dollars, for money before then paid by the defendant 
 
 For the use of the plaintiff, at his request. 
 
 And in dollars, for money before then received by the plain- 
 tiff for the use of the defendant. 
 
 And in dollars, for money found to be due from the plaintiff' 
 
 ;o the defendant on an account before then stated between them. 
 
 Which said several sums of money, or so much thereof as wilL 
 be sufficient for that purpose, the said defendant will set off against. 
 ;he demand of the said plaintiff, to be proved at the trial, and have; 
 ;he balance certified in his favor. 
 
 Dated, &c. Yours, &c., 
 
 Gr. H., Attorney for Defendanl;! 
 To E. F., Esq., Attorney for Plaintiff. 
 
 § 374. In an action upon contract, if the defendant have a claim 
 igainst the plaintiff, springing oiTt of , the same contract or transac- 
 iion upon which the plaintiff's action is founded, he has his elec- 
 ;ion whether to set up the same by way of recoupment, in abatement, 
 )r reduction of the plaintiff's damages, or to seek his remedy by a 
 jross action. If the defendant in such case, in order to avoid the 
 necessity of another suit, deem it best to recoup for his damages, he 
 nust annex a notice thereof to his plea, and this he is entitled to 
 io whether the amount claimed by him be liquidated or not.(l) 
 
 § 375. It may, however, freqaentl}'' happen that the defendant's 
 lamages are much larger than those of the plaintiff, growing out of 
 he same subject matter ; as when valuable goods are injured, lost. 
 
 (1) 3 Hill, in. 
 8 
 
114 PLEADINGS. 
 
 or destroyed by a common carrier in their transit, and the action 
 is brought for the freight. In such case the defendant's claim may 
 ■exceed by many times the amount of the plaintiff's, and if set up 
 by way of recoiipment, no judgment can be rendered for the de- 
 fendant for the excess.(l) By recouping, the defendant in such 
 ■case defeats the action of the plaintiff, and entitles himself to a judg- 
 ment for his costs, but it seems to be at least doubtful whether he 
 can afterwards sustain an action for any excess.(2) Indeed, the 
 .difficulties in the way of a recovery, in such an action, would seem 
 ito be insurmountable, especially in cases of unliquidated damages ; 
 ifor unless the jury in the former case Should find specially the 
 Jimount of damages to which each party was entitled, it would be 
 iimpracticable to determine what amount of the defendant's claim 
 ihad been adjusted by way of abatement or reduction of the plain- 
 tiff's damages in such former suit, and the jury may always bring 
 lin a general verdict. 
 
 § 376. It will have been observed that a plea to the merits of 
 the action, in all cases presents an issue of fact for trial, without 
 .any formal tender of issue by the defe^ndant, and acceptance of such 
 issue by the plaintiff; and that an issue of law is formed upon a 
 • demurrer to the declaration or other pleading, by a rejoinder 
 : alleging that the pleading demurred to is sufficient. 
 
 § 877. When an issue has been produced upon the record in 
 .any of the modes mentioned, the cause is ready to be examined and 
 idecided by the proper tribunal, and the next step in the progress 
 lof the cause will be to prepare the issue for decision : the mode of 
 •doing which varies according to the nature of the issue. If the 
 issue be one of law, it must be brought on for argument before the 
 court, and if there are several issues of this kind, they should all be 
 brought to argument together. 
 
 If the issue be one of fact, or if there be several such issues, the 
 proper steps should be taken to bring them on for trial before the 
 court or a jury, according as the parties may elect. 
 
 If there be an issue of law and an issue of fact, or several of each, 
 they must be brought on separately and successively for decision ; 
 it being optional with the parties which of the two to have decided 
 first.(3) 
 
 It is advisable, however, in general, that the issue of law should 
 
 (1) 3 Hill, 112; 3 Mich. R. 281. (2) See 3 Mich. R. 281, and cases there cited. 
 (3) 2 Cowen, 512; 15 J. R. 398. 
 
PEEPARATION FOR ARGUMENT. 115 
 
 be first disposed of, especially when it goes to the whole cause of 
 action. (1) 
 
 § 378. It sometimes occurs that when there is but a single issue, 
 it is connected with some collateral matter which must be disposed 
 of at the same time ; as when one of several defendants pleads, and 
 another suffers a default, the damages to which the plaintiff may be 
 entitled in consequence of such default must be ascertained or as- 
 sessed at the same time the issue is tried.(2) 
 
 CHAPTER VI. 
 
 PEEPABING FOB, AND CONDUCTING THE ARGUMENT, OR TRIAL OF 
 
 THE ISSUd. 
 
 § 379. Where the pleadings have resulted in an issue of law, 
 it is the duty of the party demurring to bring on such issue for 
 argument, at as early a period as practicable. And when there is 
 also an issue of fact in the cause, it is in general advisable, as 
 already remarked, to haVe the demurrer argued first ; for if the 
 plaintiff goes to trial before the determination of the issue of law, 
 he does so at the peril of losing his verdict, and of having judg- 
 ment against him on the whole record, if the demurrer be decided 
 against him. (3) 
 
 § 380. Before the argument of a demurrer, the party demurring 
 is required to furnish the court with a copy of the causes of de- 
 murrer, and also of the whole, or so much as may be necessary, of 
 the pleading demurred to, and if he fails to do so, the demurrer 
 must be overriiled.(4) This is all the preparation required by our 
 rules of practice. At the next term after an issue of law is formed, 
 the cause is placed upon the calendar by the clerk, under the head 
 of " Issues of Law," to be taken up for argument in its proper 
 order ; and this is done without any notice.from the party or his 
 attorney. When called in its order on the calendar for argument, 
 the requisite copies of the pleadings are to be delivered to the court, 
 and the argument is had without any previous notice of the hearing. 
 
 (1) 2 "Wendell, 632 ; 5 id. 107. (2) 1 Burr. Pr. 200. 
 
 (3) 5 "Wendell, 107 ; 21 id. 255. (4) Rule 53. 
 
116 HOW JSSTJE DISPOSED OF. 
 
 § 881. If the opposite party do not appear to argue tlie de- 
 murrer, argument may be heard on the part of the party demurring, 
 but the court will examine the case, and will not render judgment 
 in favor of such party by reason of the default of the other party. 
 If the necessary papers are not furnished to the court at or before 
 the calling of the cause in its order on the calendar, the court, on 
 motion of the opposite party, overrules the demurrer without any 
 reference to the merits of the issue ;(1) and if, after furnishing such 
 papers, the party omit to bring on the argument, the other party 
 ■will be heard, and judgment rendered, as if it had been argued by 
 counsel on both sides. 
 
 But if both parties appear prepared to argue, the argument is 
 then opened by the counsel for the party demurring — the oppos- 
 ing counsel follows, and the opening counsel are entitled to reply. 
 
 § 882. The demurrer being argued and submitted for decision, 
 if the case appear to require deliberation, the court proceeds with 
 the other business before it, and the decision of the demurrer is 
 deferred until a subsequent day, and the clerk makes an entry upon 
 the journal, stating that the demurrer was argued by counsel on 
 both sides, or as the fact may be, and submitted. But if further 
 deliberation is not required, the court pronounces its decision at 
 once upon the closing of the argument, generally stating briefly 
 the grounds of the decision, and the order or judgment of the court 
 is thereupon drawn up by the attorney of the party in whose favor 
 the decision is, or by the clerk, and, being approved by the court, 
 is entered of record upon the journal. 
 
 § 883. It is a well established rule, that on demurrer the court 
 will consider the whole record, and give judgment against the 
 party who committed the first error in substance in pleading.(2) 
 Thus, on demurrer to the replication, if the court think it bad, but 
 at the same time perceive a substantial fault in the plea, judgment 
 will be given for the plaintifiP, and not for the defendant, provided 
 the declaration be good ; but if they find the declaration also bad 
 in substance, then, upon the same principle, judgment will be given 
 for the defendant. But this rule is inapplicable under our system 
 of pleading, inasmuch as there can be no replication or demurrer 
 to a notice of special matter, and it can scarcely occur that a plea 
 of the general issue can be so badly framed as to be demurrable. 
 And the rule has never been held applicable to the case of a de- 
 
 (1) Rule 53. 
 
 (2) 11 J. R. 482 ; 1 Cowen, 316 ; 3 id. 96; 8 id. 109; 2 Mich. R. 2'?6. 
 
PREPARATION FOR TRIAL. 117 
 
 murrer to a plea in abalementiX) ISTor does it apply when tlie first 
 error ia pleading is merely in form.(2) 
 
 § 384. If the demurrer be sustained, the court frequently, in 
 giving judgment, allows the opposite party to amend the plead- 
 ing demurred to, on payment of costs. So, if the demurrer be 
 overruled, they will generally allow the party demurring to with- 
 draw it, and plead, &c., on payment of costs.(3) The form of 
 judgment to be rendered upon the decision of the demurrer, will 
 be considered in a subsequent chapter. 
 
 § 385. The cause having been brought to an issue in fact, may 
 be noticed for trial by either party.(4) ' 
 
 Where there are several causes at issue, in favor of the same 
 plaintiff against different defendants, in which the question is the 
 same, and which depend upon the same evidence, it is proper for 
 the plaintiff, in order to avoid the necessity of trying each of the 
 causes, to apply to the court by special motion, founded on an 
 affidavit of the facts, for an order that one of the causes be tried, 
 and that the others abide the event ;(5) for the parties may agree 
 to the entry of such an order, and it will be entered accordingly. 
 
 § 386. Before giving notice of the trial of the issue, the cir- 
 cumstances connected with the ease may require that some previ- 
 ous steps be taken to place it in a proper position to be fairly tried ; 
 or it may appear that the convenience of the parties or their wit- 
 nesses may be best consulted by having the cause submitted to 
 referees or auditors, or by a change of the venue. 
 
 § 387. When a cause is at issue, and it appear that the trial of 
 the same will involve the examination of a long account on either 
 side, the court may, upon the consent of both parties in writing, 
 signed by them or their attorneys, and filed with the clerk, order 
 such cause to be referred to three impartial and competent per- 
 sons.(6) The report of such referees, when confirmed by the court, 
 has the same effect as the verdict of a jury, and judgment may be 
 entered thereon in the same manner.(7) 
 
 § 388. If the cause require the investigation of accounts, or the 
 examination of vouchers, and the parties do not consent to the 
 
 (1) 1 Chitt. PI. 500 ; Stepk PL 14i ; 19 "WendeU, 216. 
 
 (2) 8 'Wendell, 129 ; 21 Wendell, 28. (3) 11 J. R. 22 ; 1 Oowen, 101 . 
 
 (4) Rule, 54. . (5) 2 WendeU, 284 ; 4 Cowen, 18, 85. 
 
 (6) Comp. L. 1153. C?) Comp. L. 1154, 1155. 
 
118 HOW ISSUE DISPOSED OF. 
 
 appointment of referees, the court, upon the application of either 
 party, may appoint one or more auditors to hear the parties, and 
 examine their vouchers and evidence, and state the account, and 
 make report thereof to the court ; which report, if there be no 
 legal objections to it, may be used by either party as evidence on 
 the trial of the cause, subject, however, to be impeached and dis- 
 proved by other evidence.(l) 
 
 § 389. Whenever it appears to the court that a fair and im- 
 partial trial -will be more likely to be obtained by having a struck 
 jury, the court will order a special jury to be struck for the trial of 
 the cause.(2) In such case, a demand that the cause be tried by a 
 jury ought to be first made and filed with the clerk. 
 
 § 390. The court, upon good cause shown, may change the 
 venue in any cause pending therein, and direct the issue to be tried 
 in the circuit court of another county, and make all necessary 
 rules and orders for the certifying and removing thereof, and all 
 matters relating thereto, to the court in which the issue is ordered 
 to be tried. The court to which the cause is so removed, is re- 
 quired to hear, try and determine the same ; and execution may be 
 had in the same manner as if the suit had been originally prose- 
 cuted in such court.(3) 
 
 § 391. A commission to take testimony of witnesses may he issued 
 when necessary. It there be any witness whose testimony is deemed 
 material, residing out of the state, either party may apply to the court, 
 or to the judge or circuit court commissioner, for a commission to be 
 awarded to one or more competent persons, authorizing them or any 
 of them, to examine such witness on oath, upon interrogatories to be 
 annexed to such commission, and to return the same according to 
 the directions given with such commission ; or such commission 
 may be issued by the clerk upon the written consent of the par- 
 ties or their attorneys, being filed in his of&ce, without any order 
 therefor. But such application can only be made after issue joined, 
 and ten days previous notice thereof must be given.(4) 
 
 § 892. Testimony may be required to be taken conditionally. At 
 any time after the cause is commenced by the service of process or 
 otherwise, either party may have the testimony of any witness taken 
 
 (1) Comp. L. 1155. (2) Comp. L. 1194. 
 
 (3) Laws of 1851, p. 245 ; Comp. L. 995. (4) Comp. L. 1165, 1166. 
 
PREPARATION FOR TRIAL. 119 
 
 who resides more than thirty miles from the place of trial, or who 
 shall be about to go out of the state and not return in time for the 
 trial, or is so sick, infirm or aged as to render it probable that he 
 will not be able to attend the trial.(l) If the cause for taking the 
 deposition shall have ceased to exist, it cannot be used on the trial i 
 unless there be some other sufficient cause then existing for using 
 it.(2) ^ 
 
 The ordinary preparation for the trial of an issue of fact consists 
 of noticing the cause for trial, and filing a note of issue with the clerk ; 
 collecting and arranging the evidence ; preparing a brief ; and, if 
 the party prefer a trial by jury, filing with the clerk a demand in 
 writing that it be so tried. 
 
 § 893. Notice of trial may be given by either party at any time 
 after issue joined, and must be served at least fourteen days before 
 the first day of the court at which the trial is to be had. (3) In 
 computing the time, both the day of the service, and the day named 
 therein for the trial are excluded, the former being excluded by the 
 rule, (4) and the latter by the statute. If served by mail, one day 
 must be added for every twenty miles between the place of deposit- 
 ing it in a post office, and the residence of the party or attorney to 
 whom it is addressed.(5) 
 
 § 394. The notice of trial, like all other notices, must be in 
 writing, and signed by the attorney of record, if there be one, and 
 must be served in the same manner as other notices or papers in 
 the cause. If there are two actions depending between the same 
 parties, one only of which is noticed for trial, the notice must spe- 
 cify with sufficient certainty the one intended to be tried.(6) 
 
 If, besides the issue to be tried in the cause, there are also dam- 
 ages to be assessed on a default entered in the same cause, the no- 
 tice of trial should also express the plaintiff's intention to have such 
 damages assessed at the same time. (7) And when there are several 
 defendants who appear by separate attorneys, a separate notice 
 should be served on each attorney. (8) 
 
 § 395. In actions of replevin, if any damages are to be assessed 
 upon a non-suit, discontinuance or default, the same notice must be 
 given thereof as of a trial. (9) Hence, if the plaintiff submit to a 
 
 (1) Comp. L. 1162; Laws of 1848, p. 180; Comp. L. ini, 1172. 
 
 (2) Comp. L. 1173. (3) Comp. L. 1188. 
 (4) Rule 15. (5) Rule 9. 
 
 (6) 1 Wend. 22. (7) 6 Cow. 599. 
 
 (8) 3 Pries, 72. (9) Comp. L. 1336. 
 
120 HOW ISSUE DISPOSED OF. 
 
 non-suit, or discontinue, or have judgment of non-suit or discon. 
 tinuance against him by default, after the cause is noticed for trial 
 and placed on the calendar, the defendant must give fourteen days 
 notice before he can have his damages for the taking and detention 
 of the property assessed. In order to avoid delay, therefore, it is 
 advisable for the defendant to include, in his notice of trial, a further 
 notice, that in case of a judgment of non-suit or discontinuance, the 
 defendant's damages will be assessed afthe same time. 
 
 A note of isisue must be delivered to the clerk at least four days 
 before the opening of the court, in order to afford him sufficient 
 time to arrange the cases, according to the nature and date of the 
 issue upon the calendar.(l) 
 
 § 896. Notice of trial. 
 The Circuit Court for the countt of : 
 
 A. B. 
 
 vs. 
 CD. 
 
 Sir.: — Please to take notice that the above entitled cause will 
 be brought to trial at the next circuit court appointed to be held in 
 
 and for the county of , at the court house in the city [or " lawn- 
 
 ship" or " village,"'] of , in said county, on the ■ ■ Tuesday 
 
 of next, [or "instant,"'] at ten o'clock in the forenoon. Dated 
 
 this — day of , A. D. . 
 
 Yours, &c., 
 
 E. F., Attorney for Plaintiff. 
 To G-. H., Esq., Defendant's Attorney. 
 
 § 397. Notice of trial and assessment of damages. 
 The Circuit Court for the county of ■ 
 
 A. B. 
 
 vs. 
 C. D. and X. Y. 
 
 Sir : — Please to take notice, that the issue joined in this 
 cause between the above named plaintiff, and the above named de- 
 fendant C. D., will be brought to' trial at the next circurt court 
 appointed to be held, &c. [as in the preceding form], on the — day 
 
 of next, and that upon such trial the damages will be assessed 
 
 against the defendant X. Y., in this cause, upon the judgment against 
 him by default. 
 Dated, &c. Yours, &c. 
 
 ■i 
 
 (1) Comp. L. 1188. 
 
PEEPARATION- FOE TEIAL. 121 
 
 § 398. Note of issue for chrh. 
 [Title of the court and cause.] 
 
 N(xr7-\ in assumpsit [or debt, or as the action maybe]. 
 Plea, general issue. Issue joined on the — day 
 
 of , A. D. [the day on which the plea 
 
 was served]. 
 
 E. F., Attorney for Plaintiff. 
 G. H., Attorney for Defendant. 
 
 Sir : — The above is the note of issue in the above entitled 
 cause, which is noticed for trial at the next term of the circuit 
 
 court for the county of , and you will please to place the same 
 
 on the calendar for trial. Dated, &c. 
 
 To , Esq., Clerk. E. F., Attorney for Plaintiff. 
 
 § 399. If no notice of trial is given, and the plaintiff proceeds 
 to trial and obtains a verdict, the court, on application of the de- 
 fendant, will set the verdict aside, unless the irregularity has been 
 waived. (1) But in determining the sufficiency of the notice, the 
 court will inquire whether the party or attorney was misled by the 
 defect :(2) and for this purpose they will not only look to the face 
 of the notice, but to other circumstances, in order to determine 
 whether the opposite party was, in fact, misled. (3) Thus, where 
 the name of one of the parties was written Jeunis, instead of Teunis, 
 it was held sufficient.(4) So, a notice of trial for Tuesday ^e 18th, 
 instead of Monday the 18th, (5) or for the third Monday, instead of 
 the third Tuesday, the party not being misled,(6) was held sufficient. 
 
 § 400. Any party having given notice of trial, may, if he 
 should deem it necessary, countermand such notice at any time be- 
 fore the first day of the term : in which case he is liable for all 
 costs to which the opposite party has been put in preparing for 
 trial after receiving such notice, unl^s the cause has been noticed by 
 loth parties. If such costs are taxed, and payment thereof demanded 
 within six days after such countermand, payment may be com- 
 pelled at once by attachment, or, in default of payment, the cause 
 may be placed on the calendar for trial ; and any party, having 
 noticed a cause for trial, and not countermanded such notice, may 
 be compelled to proceed to trial at the term for which it is noticed, 
 unless it is continued on cause shown, and a compliance with such 
 terms as the court may impose.(7) 
 
 (1) 15 J. E. 399 ; 1 Caiues' E. 154. 
 
 (2) 3 Gaines' R. 86, 133; 4 Cowen, 60; H "ffendeU, 178. 
 
 (3) 4 Cowen, 60. (4) 3 Caines' E. 133. (5) 3 Caines* E. 87. 
 (6J 4 Cowen, 60. (7) Rule 54 « 
 
122 HOW ISSUE DISPOSED OK. 
 
 § 401. If both parties have noticed the cause for trial, nothing 
 is gained by a countermand of notice of trial by one party, unless 
 it be accompanied or followed by notice of a motion for a continu- 
 ance of the cause, together with a copy of the affidavits upon which 
 he intends to found the motion ; in which case he will not be liable 
 for costs of preparing for trial accruing thereafter, if a continuance 
 be granted on the papers so served, excepting such as are un- 
 avoidable.(l) 
 
 Countermand of notice cf trial, 
 {Title of court and cause.] 
 
 Sir : — I hereby countermand the notice of trial heretofore 
 served on you in the above entitled cause. 
 
 Dated, &c. Yours, &c. 
 
 If the cause is not tried at the term for which it is noticed, a new 
 notice will be necessary, in order to entitle a party to bring the 
 cause to trial at a subsequent term. V 
 
 § 402. The procuring of the necessary evidence to establish the 
 matters of fact alleged in the pleadings, or otherwise legally 
 admissible upon the trial, is one of the principal and most impor- 
 tant preparations required to be made for the trial. The rules of 
 evidence, like those of pleading, constitute an elaborate system of 
 law and practice, some of the most general of which only can be 
 referred to here. One of the most prominent of these is, that the 
 best evidence of which the nature of the case is susceptible, must 
 be produced. 
 
 Evidence is either written or parol. Written evidence is either of 
 Si public or private character, and public writings are either of record 
 or quasi of record. 
 
 Records are proven in various modes, according to their pecuhar 
 character. 
 
 § 403. All statutes, acts, and resolves of the legislature of this 
 state, whether of a public or private nature, may be read in evi- 
 dence from the copies thereof printed by authority of the govern- 
 ment.(2) And a copy of any original act or resolve deposited in 
 the office of the secretary of state — duly certified by him to be a 
 true transcript, compared by him with the original in his office, 
 and of the whole of such original, attested by the great seal of the 
 state — is also competent evidence.(3) 
 
 (1) Rule 57. (2) Comp. L. 1180. 
 
 (3) Comp. L. 133, 1180, 1179; 3 Mich. R. 144. 
 
PEEPAEATION FOB TEIAL. 123 
 
 § 4:04. Records of courts of this state may be proven by tran- 
 scripts, duly certified by the clerk or officer having the custody 
 thereof, under the seal of the court. The statute provides, gene- 
 rally, that copies of all papers, records, entries, and documents — re- 
 quired by law to be filed in his office, or to be entered or recorded 
 therein, and duly filed, entered, or recorded according to law, cer- 
 tified by such officer to be a true transcript, compared by him with 
 the original in his office — shall be evidence in all courts and pro- 
 ceedings, in like manner as the original would be, if produced. (1) 
 
 § 405. The manner of certifying is provided in § 4308, which 
 declares that whenever a certified copy of any affidavit, document, 
 or paper is declared by law to be evidence, such copy shall be cer- 
 tified, by the clerk or officer in whose custody the same is by law 
 required to be, to have been compared by him with the original, 
 and to be a correct transcript therefrom, and of the whole of such 
 original ; and if such officer have any official seal by law, such cer- 
 tificate shall be attested by such seal ; and if such certificate be given 
 by any clerk of any county, in his official character as such clerk, 
 it shall be attested by the seal of the court of which he is clerk.(2) 
 The last mentioned section is not to be so construed as to require 
 the affixing of the seal of any court to any certified copy of any 
 rule or order made by such court, or of any paper filed therein, 
 when such paper is used in the same court or before any officer 
 thereof; nor to require the seal of the supreme court to be affixed 
 to a certified copy of any rule or order of that court, when used in 
 any circuit court.(3) The original entries, files, and records of the 
 court may always be used in the same co.urt, without further au- 
 thentication. (4) 
 
 § 406. Printed copies of the statute laws and resolves of other 
 states of the United States, or of any territory thereof, if purporting 
 to be published under the authority of the respective governments, 
 or if commonly admitted and used in their courts, are admitted in 
 all courts, and in all proceedings within this state, as prima facie 
 evidence of such laws and resolves. (5) Acts of the legislatures of 
 other states or territories may also be authenticated under the act 
 of congress of May 26, 1790, by having the seal of the state affixed 
 thereto.(6) 
 
 (1) Comp. L. 11T9, 1180. (2) Comp. L. 1179. 
 
 (3) Id. § 4309. (4) 1 Mich. E. 56, 227. 
 
 (5) Comp. L. 1180. (6) Comp. L. 1660. 
 
124 HO\y ISSUE DISPOSED OF. 
 
 § 407. The records and judicial proceedings of the courts of 
 other states or territories must be authenticated by exempliiied copies, 
 attested by the clerk of the court, with the seal of the court an- 
 nexed, if there be a seal ; together with a certificate of the judge, 
 chief justice, or presiding magistrate, as the case may be, that ihe 
 said attestation is in due form.(l) 
 
 Letters patent may be proved by exemplifications under the seal 
 of the proper department or ofiiGe.(2) 
 
 § 408. Matters quasi of record, such as proceedings in courts of 
 law, not being courts of record, and papers, &c., required by law to 
 be filed or entered by any public ofiicer of the state, are embraced 
 within the provisions of the statutes above recited. A transcript, 
 from the docket of any justice of the peace, of any judgment had 
 before him ; of the proceedings in the cause previous to such judg- 
 ment ; of the execution issued thereon, if any, and of the return of 
 such execution, if any, when certified by the justice having control 
 of the docket, is evidence to prove the facts stated in such tran- 
 script. The proceedings in any cause or matter had before a justice 
 of the peace, may be proved by the oath of the justice ; or, in case 
 of the death or absence of the justice, they may be proved by pro- 
 ducing the original minutes of such proceedings, entered in a book 
 kept by such justice, accompanied by proof of his handwriting, or 
 they may be proved by producing copies of such minutes, sworn 
 to by a competent witness as having been compared by him with 
 the original entries, wiih proof that such entries were in the hand- 
 writing of the justice.(3) 
 
 A special case, signed by the counsel on both sides, is deemed 
 an admission by the respective parties of the facts therein stated, 
 and may be given in evidence as sach.(4) 
 
 § 409. The ofiicial certificate of any justice of the peace, within 
 any other of the United States, of the proceedings and judgment 
 in any case before him as such justice, with the certificate of the 
 clerk of any court of record in the county or district in which such 
 justice has executed his oifice, attested by his of6.cial seal, setting 
 forth that the signature to the certificate of the justice is genuine, 
 and that he was such justice at the date of such proceedings and 
 judgment, is sufficient evidence of such proceedings and judg- 
 ment.(5) 
 
 (1) Act of Congress of May 26, lt90 ; Oomp. L. 1660. 
 
 (2) 9 Wendell, 44; 4 Mich. R. 150. (3) Comp. L. 1090. 
 (4) 1 Ey. & M. 4 ; Arch. PI. 400. (6) Comp. L. 1180. 
 
PEEPAKATION FOR TRIAL. 125 
 
 § 410. The records and judicial proceedings of courts of a for- 
 eign country, are admissible in evidence upon being authenticated 
 as follows : 1. By the attestation of the clerk of the court, with 
 the seal of such court annexed, or of the officer in whose custody 
 such records are legally kept, with the seal of his office annexed • 
 2. By a certificate of the chief justice or presiding magistrate of 
 such court, that the person attesting such record is tlie clerk of the 
 court, or that he is the officer in whose custody such record is re- 
 quired by law to be kept ; and in either case that the signature of 
 such person is genuine ; and, 3. By the certificate of the officer of 
 the government under wl:iose authority such court is held, having 
 the custody of the great or principal seal of such government, pur- 
 porting that such court is duly constituted, specifying generally the 
 nature of its jurisdiction, verifying the seal of the court, or of the 
 officer having the custody of such record, and the signature of the 
 chief justice or presiding magistrate.(l) 
 
 § 4.11. Copies of such records and proceedings in the courts of 
 a foreign country, may also be admitted in evidence upon due 
 proof : 1. That the copy offered has been compared by the witness 
 with the original, and is an exact copy of the whole of such orig- 
 inal ; 2. That such original was in the custody of the clerk of the 
 court, or other officer legally having charge of the same ; and, 3. 
 That such copy is duly attested by a seal, which shall be proved to 
 be the seal of the court in which such record or proceeding shall 
 be ; and such records and proceedings may also be proved accord- 
 ing to the rules of the common law.(2) 
 
 § 412. The existence of the written law of a foreign country 
 must be proved by the production of an authenticated copy. (3) 
 
 The unwritten or common laio of any other state or territory, or 
 of any foreign country, may be proved as facts by parol evidence.(4) 
 This proof must be made by witnesses of competent skill. (5) In 
 the absence of proof to the contrary, it will be presumed that the 
 common law, as in force in this state, prevails in a foreign coun- 
 try.(6) 
 
 § 413. The official acts of a notary public may be proved by his 
 certificate, signed by him, under the seal of his office ; but such 
 certificate is not evidence of notice of non-acceptance or non-pay- 
 
 (1) Comp. L. 169. (2) Comp. L. 1169, 1170. 
 
 (3) 3 Camp. 166; 4 Camp. 155; 1 East, 621 ; 1 Camp. 63; 5 Mich. E. 349. 
 
 (4) Comp. L. 1180. 
 
 (5) 4 Camp. 155 ; 3 Esp. E. 58 ; 6 Mich. E. 349. (6) 2 Doug. Mich. K. 515. 
 
126 HOW ISSUE DISPOSED OF. 
 
 ment in any case in which a defendant shall annex to his plea an 
 affidavit, denying the fact of having received such notice.(l) 
 
 The certificate of a county surveyor, or his deputy, of any survey 
 made by him of any lands situated in his county, is presumptive 
 evidence of the facts therein contained, unless he is interested in 
 the lands.(2) 
 
 Sheriff's sales of real estate on execution may be proved by the 
 original certificates of sale, or by copies thereof duly certified by 
 the register of deeds in whose office they are filed. (3) 
 
 § 414. notices or advertisements which are required by law to 
 be published in any public newspaper, may be proved by the affi- 
 davit of the printer, his foreman, or principal clerk, or by a certi- 
 fied copy thereof (4) 
 
 Marriages may be proved by the original certificates and records 
 made by the minister or justice ; or by the record thereof made by 
 the county clerk, or by a duly certified copy of such record. (5) 
 
 § 415. Affidavits made in other states or territories, or m foreign 
 countries, must be authenticated as follows : 1. They must be cer- 
 tified by some judge of a court having a seal, to have been taken 
 and subscribed before him, specifying the time and place where 
 taken. 2. The genuineness of the signature of such judge, the 
 existence of the court, and the fact that such judge is a member 
 thereof, must be certified by the clerk of the court, under the seal 
 thereof; or, 3. If such affidavit be taken in any other of the United 
 States, or any territory thereof, it may be taken before a commis- 
 sioner appointed by the governor of this state to take affidavits to 
 be used therein.(6) 
 
 Certificates of purchase of public lands issued by a receiver, are 
 evidence of a right of possession in the hold8r.(7) 
 
 § 416. Written instruments of a private nature are also proven 
 or admitted in evidence, according to the character of the instru- 
 ment. Deeds of conveyance and other instruments, acknowledged 
 or proven, and authorized by law to be recorded in the office of a 
 register of deeds, and the record thereof, or a certified transcript of 
 such record, may be read in evidence without further proof.(8) 
 When the deed has not been acknowledged, or proved and certified, 
 
 (1) Comp. L. 215 (2) Comp. L. 212. 
 
 (3) Comp. L. 932. (4) OomprL. 1178, 1119. 
 
 (5) Comp. L. 952. (6) Comp. L. 1169. 
 
 ("I) Comp. L. 1183. (8) Comp. L. 843. 
 
PREPARATION FOE TEIAL. 127 
 
 SO as to authorize its being recorded, its execution must be proved 
 by the subscribing witness, if there be one, and his attendance can 
 be procured ; and if not, by proof of handwriting as in ordinary 
 cases of sealed instruments.(l) 
 
 § 417. Wills which have been proven and recorded in the 
 probate court, and duly certifieS, and the ^record thereof, or a cer- 
 tified transcript of the record, may be read in evidence without 
 further proof. (2) The whole record, including the proofs, ought 
 to be certified.(3) 
 
 § 418. JEvery written instrument, whether under seal or not, ex- 
 cept promissory notes and bills of exchange, and except the last 
 wills of deceased persons, may be proved or acknowledged in the 
 manner prescribed by law for taking the proof or acknowledg- 
 ment of conveyances of real estate, and the certificate of the proper 
 officer thereon entitles such instrument to be received in evidence 
 on the trial of any action, with the same effect, and in the same 
 manner as if such instruments were a conveyance of real estate.(4) 
 But if it is not so acknowledged or proved and certified, the in- 
 strument must be proved on the trial in the usual mode, namely, 
 by the subscribing witness, if there be one, or if not, by proof of 
 the handwriting of the party executing the instrument.(5) 
 
 § 419. If there be a subscribing witness to the execution of the 
 instrument, the order of proof will be : 1. The witness must be 
 produced, if practicable ;(6) 2. If he cannot be found, or his testi- 
 mony cannot be used, his handwriting must be proved ; or, 3. If 
 his handwriting cannot be proven after diligent exertions for that 
 purpose, proof of the handwriting of the party executing the instru- 
 ment is admissible.(7) 
 
 If a deed be executed under a power of attorney, such power 
 must be proved. (8) 
 
 § 420. Promissory notes and hills of exchange should be proved 
 by producing the originals, and proving the handwriting of the 
 party. If the note or bill be lost, such loss may be proved by the 
 oath of the partj^, and he will then be allowed to give parol or 
 other secondary proof of its contents. But if the lost note or bill 
 
 (1) Saund. PI. & Ev. 425. (2) Comp. L. 8^0. 
 
 (3) 1 Hill, 540. (4) Comp. L. 1179. 
 
 (5) 1 Arch. Pr. 161. (6) 6 HUl, 303. 
 
 (7) 13 Wendell, 178 ; 11 id. 96, 110. (8) 1 Esp. 89 ; 19 Wendell, 484. 
 
128 HOW ISSUE DISPOSED OF. 
 
 be negotiable, before the party can recover thereon, he must exe- 
 cute to the adverse party a bond, in a penalty at least double the 
 amount thereof, with two sureties to be approved by the court, 
 conditioned to indemnify the adverse party, his heirs and personal 
 representatives, against all claims by any other person on account 
 of such note or bill, and against all costs and expenses by reason 
 of such claims.(I) ( 
 
 § 421. Notice to produce papers is sometimes necessary to be 
 given. If one party be in possession of any written instrument 
 which would be evidence for the other party if produced, he may 
 serve either him or his attorney, as the case may be, with a notice 
 to produce it at the trial, or that in default thereof, parol evidence 
 will be given of its contents. But a mere notice is an exception 
 to this rule ; for the copy of a notice is itself deemed an original, 
 and may be given in evidence, with proof of service, without 
 notice to produce the counterpart.(2) Without notice to produce 
 an instruWnt, the opposite party is not bound to produce it ;(3) 
 nor can parol evidence be given of its contents.(4) But when the 
 form of the action or pleadings gives the opposite party notice to 
 be prepared to produce the instrument, if necessary to falsify his 
 adversary's evidence, notice to produce it is not necessary.(5) 
 
 § 422. Discovery of hooks and papers, when necessary to enable 
 the party to prepare for trial, may be compelled.(6) Application 
 may be made to the court or to the judge in vacation, and, when 
 necessary, ought to be made without delay.(7) 
 
 Either party may exhibit to the other or to his attorney, at any 
 time before the trial, any paper material to the action, and request 
 an admission, in writing, of its genuineness. If the adverse party 
 or his attorney fail to give the admission within four days after the 
 request, and the delivery to him of a copy thereof, if a copy be re- 
 quired, and if the party exhibiting the paper be afterwards put to 
 expense in order to prove its genuineness, and the same be finally 
 proved or admitted on the trial, such expense, to be ascertained at 
 the trial, shall be paid by the party refusing the admission, unless 
 it shall appear to the satisfaction of the court that there were good 
 reasons for the refusal .(8) 
 
 § 423. Parol evidence consists, as the term implies, of the oral 
 
 (1) Comp. L. 1182 ; 1 Mich. E. 428. (2) 1 Aroh. Pr. 168; 13 J. B. 470. 
 
 (3) 1 J. E. 340. (4) 12 J. R. 221. 
 
 (5) n J. B. 293 ; 13 Wendell; 505 ; 1 Burr. Pr. 221. 
 
 (6) Rule 40. (7) 6 Hill, 235, note. (8) Rule 60. 
 
IiBEPAEATION FOR TRIAL. 129 
 
 statement oi witnesses, either delivered openly in court, or before a 
 commissioner or officer out of court, to be used on the trial. 
 
 The mode of procuring the personal attendance of witnesses at 
 the trial, for the purpose of oral examination, is by subpoena. This 
 is a judicial writ, requiring the persons named therein to appear be- 
 fore the court on a certain day specified, to give evidence in the 
 cause under a certain penalty in case of disobedience. It is tested, 
 signed, and sealed like other process, and any number of names 
 may be included in the same writ. It is usually made returnable 
 on the first day of the term, at ten o'clock in the forenoon. 
 
 § 424. A copy of the subpoena, or a ticket containing its sub- 
 stance, should be prepared for each witness. The service may be ■ 
 made by the party himself, or by a sheriflE" or constable, or by any 
 other person of sufficient discretion, and must be made as follows : 
 1. The original writ, under the seal of the court, must be exhibited 
 to the witness ; 2. A copy of such writ, or a ticket containing 
 its substance, must be delivered to the witness ; and, 3. The fees 
 allowed by law to such witness for traveling to and returning from 
 the place where he is required to attend, and the fees allowed for 
 one day's attendance, must be paid or tendered to him.(l) And it 
 may be served in any part of the state.(2) If the sum tendered be 
 not sufficient, the witness will not be bound to attend. (3) It has ■ 
 been held, however, that he must object to it at the time, otherwise 
 it will be considered sufficient.(4) 
 
 The service ought to be made a reasonable time before the 
 trial.(5) The witness must be allowed reasonable time to travel by 
 the ordinary modes of conveyance, and cannot be required to travel 
 on Sunday. (6) 
 
 § 425. As soon as a cause is noticed for trial, or in a condition ; 
 to be noticed for the next succeeding term, if the party intend to ■ 
 bring it to trial, he should not fail to cause all his witnesses who • 
 can be reached with process, to be served with the subpoena. Dili- 
 gence in this respect is necessary', in order to insure a proper pre- - 
 paration for the trial ; and, in case of failure to obtain materiarievii • 
 dence, it is indispensable in order to obtain a continuance of the : 
 cause. If a party rely upon the mere promise of a witness that he : 
 will attend, he does so at his peril ; for he can neither have an at- 
 
 (1) Comp. L. 1115. (3) Comp. L, 1123. 
 
 (3) 2 Stra. IISO. (4) 2 Johns. Gas. 110. 
 
 (5) 1 Stra. 610. (6) 13 Wend. 49. 
 
130 HOW ISSUE DISPOSED OF. 
 
 1 
 
 tachment to compel Ms attendance, nor can lie have a continuance 
 on account of his non-attendance. 
 
 § 426. A suhpmna duces tecum must be issued and served upon 
 a witness having in his possession deeds or writings which are ma- 
 terial to be used on the trial, in order to oblige him to produce them 
 in evidence. This writ is like the ordinary subpoena in form, ex- 
 cept that it requires the witness to bring with him the papers de- 
 sired, and produce them at the trial, and it is issued, made return- 
 able, and served in the same manner. Upon being served with 
 such subpoena, the witness must attend at the trial with the instru- 
 ment called for, and produce it in evidence, unless there be some 
 lawful or reasonable excuse for not doing so ; the validity of which 
 will be determined by the court, and not by the witness.(l) It is 
 no excuse that the legal custody of the instrument belongs to another, 
 if it be in the actual possession of the witness ;(2) but if it tend to 
 
 •criminate himself,(3) or his client, if he be an attorney,(4) the court 
 will not compel him to produce it. And the clerk or cashier of a 
 
 "hank is not bound to produce its books on a subpcena duces tecum.{5) 
 "Hot can an attorney or counsel be compelled by subpcena to produce 
 papers which have been intrusted to him by his client, although 
 they belong to, and he received them from a third person : provi- 
 ded they were received for the use of his client. (6) A witness be- 
 ing called and sworn, and then having in court a document, is 
 bound to produce it, if required, though he have received no notice 
 
 "to produce it, nor been served wjth a subpoena duces iecum.{7) 
 
 § 427. If there are any material facts within the knowledge of 
 the adverse party, or of any other person interested in the suit, and 
 not within the knowledge of any competent witness whose testi- 
 mony can be procured, an affidavit may be filed, setting forth such 
 •circumstances, and stating such facts. Upon filing such affidavit, 
 such party or person interested may be compelled to appear and 
 testify in relation to the facts set forth in such affidavit, in the same 
 manner that other persons may be compelled to appear and testify 
 .as witnesses. (8) 
 
 § 428. Persons in jail, and not under sentence, are brought into 
 •court by the sheriff, under the direction of the court, to be used 
 
 (1) 9 East, 473 ; 5 Bsp. R. 90. (2) 1 Camp. 14, 180, n ; 6 Esp. R. 116. 
 
 (3) 1 Esp. R. 105. (4) 4 Burr. 1637. 
 
 (6) 5 CoTC. 153, 419. (e) 14 J. R. 397 ; 7 Wend. 216. 
 
 t'(7) 1 Car. & M. 508. (8) Comp. L. 1185. 
 
PREPARATION FOR TRIAL. 131 
 
 as witnesses, without any formal application or order made for that 
 purpose ; but if under sentence, except for a felony, their attend, 
 auce can only be procured by a writ of habeas corpus ad testifican- 
 dum. Special application, verified by affidavit, must be made for 
 such writ.(l) 
 
 If, after being regularly subpoenaed, the witness neglect or refuse 
 to attend, the party may have an attachment against him as for a 
 contempt ;(2) or may have his action under the statute ; (3) or an 
 action on the case at common law against the witness.(4) 
 
 § 429. The preparation of a brief hj or for the counsel, is too 
 generally omitted. The want of a proper brief at the trial often 
 involves the case and counsel in awkward difficulties, and not un- 
 frequently places the rights of a litigating party in great jeopardy, 
 and sometimes results in their utter loss. An attorney can hardly 
 be said to have prepared his case for trial until he has made an 
 abstract of the pleadings, a statement of the case, and a state- 
 ment of the proofs. To these should be added, if need be, obser- 
 vations and suggestions, and a reference to authorities upon all 
 questions of any doubt or difficulty which are likely to arise upon 
 the trial. • 
 
 § 430. This presupposes, what is always of the utmost impor- 
 tance, and never should be neglected, that the attorney has ascer- 
 tained exactly what each of the witnesses will prove, and taken a 
 memorandum of their evidence ; and also, that he has ascertained, 
 as far as practicable, what evidence will or can be adduced on the 
 other side, so that he will not be liable to be taken by suipriae at 
 the trial by the facts proven. When counsel on both sides are thus 
 prepared, facts which, aside from the issue made by the record,, the 
 parties do not dispute, are readily and safely admitted, and only 
 those about which the parties cannot agree are litigated, and thus 
 both time and expense are greatly economized, and justice more 
 certainly and satisfactorily administered. 
 
 § 431. Jurors for the trial of issues of fact are drawn,., from the 
 lists returned by the assessors of the several townships in the 
 county, at least fourteen days before the term, and a list of those 
 drawn, properly certified, is delivered to the sheriff, which is hia 
 warrant for summoning them to attend. This must be done by 
 giving personal notice to each person, or by leaving a written no- 
 
 (1) Comp. L. 1371. (2) Comp. L. 1129. 
 
 (3) Comp. L. 1116. (4) 2 Doug. 666. 
 
132 HOW ISSUE DISPOSED 0F„ 
 
 tice at his place of residence, with some person of proper age, at 
 least six days before the silting of the court.(l) 
 
 § 432. Issues and questions oi fact, as well as of law, are to be 
 tried hy the court, unless a jury be demanded by one of the parties, 
 in writing, on or before the first day of the term for which the 
 cause is noticed for trial, and at or before the first call of the cal- 
 endar, or within such time before the term as may be limited there- 
 for by rule of court ; subject, however, to the power of the court to 
 order actions of tort, and such other actions as it may deem pecu- 
 liarly proper for the consideration of a jury, to be so tried. (2) 
 
 § 433. The cause being entered upon the calendar for trial in 
 its proper order, and every other necessary preparation having 
 been made, on the first day of the term for which it is noticed, the 
 parties, with their attorneys and witnesses, are expected to be in 
 court, and attentive to Ihe progress of the business, so that no delay 
 may be required in order to send for counsel, parties, witnesses, or 
 papers, when an opportunity for trial occurs. 
 
 § 434. The general routine of the business of the court has 
 been already noticed, and we are now to consider the particular 
 incidents connected with the progress and trial of a cause in which 
 an issue of fact has been joined. Circumstances may, however, 
 occur, requiring a postponement of the trial, or disposing of the 
 case without trial. If, from some merely temporary cause, as the 
 absence or illness of a witness, whose attendance may probably be 
 procured in time to try the cause before the close of the term, either 
 party is unable to go at once to trial, he may, on the cause being 
 called, apply to the court, on afSdavit, to postpone the trial to a 
 subsequent day in the circuit,(3) or from day to day. If a wit- 
 ness who has been duly subpoenaed neglects to attend, it is in the 
 discretion of the court to suspend the trial until the witness can he 
 brought in on an attachment. (4) 
 
 § 435. If it appear improbable that the testimony can be pro- 
 cured in time for a trial during the term, and the party has used 
 due diligence to obtain it, and cannot safely proceed to trial with- 
 out it, he must move, on the first day of the term, for the continu- 
 ance of the cause until a subsequent term. If the motion be made 
 
 (1) Comp. L. 1190, 1191. (2) Laws of 1859, p. 150 j Rule 61. 
 
 (3) 2 Arch. Pr. 231. (4) 4 Hill, 119. 
 
♦PREPARATION FOR TRIAL. 133 
 
 on a day subsequent to the first, a sufficient excuse for the delay 
 must be shown.(l) 
 
 The motion must be supported by affidavit, the usual requisites 
 of which are that it show satisfactorily to the court : 1. That the 
 witness or testimony is really material ; 2. That the party applying 
 has used reasonable diligence ; and, 3. That the witness or testi- 
 mony can be had at the time to which the trial is to be post- 
 poned. (2) If the application be made on account of the absence of 
 a witness, the affidavit must state the absence of the witness ; that 
 the party cannot safely proceed to the trial without the testi- 
 mony of such witness, as he is advised by his counsel (naming 
 him), to whom he has first fally and fairly stated the case, and 
 what he expects to prove by the witness, and as he verily believes ; 
 the endeavors which have been made to find him, and the time at 
 which he is expected to return ; and concludes by stating that the 
 application is not made for delay, but that justice may be done. 
 But if, from the nature and circumstances of the application, it may 
 be suspected that there is no real necessity for the continuance, or 
 that the object is delay, the general form will not be regarded as 
 sufficient, but the court will require that the affidavit shall state the 
 cause of action or ground of defence, and the evidence expected 
 from the witness, in order that it may judge whether it be ma- 
 terial ; and that it also state circumstances from which the prob- 
 ability of the witness' return within a reasonable time may be 
 inferred.(8) 
 
 § 436. On a second application by a ^Ja^rty lui tho continuance 
 of a cause, he must state, in addition to the usual requisites, the 
 facts which he expects to prove by the absent witness, and with 
 particularity the diligence he has used to procure his attendance ; 
 and in such case, if it be admitted by the opposite party that the 
 witness named would, if placed on the stand, testify as stated in 
 such affidavit, the motion for a continuance must be denied, unless 
 the court shall notwithstanding deem a continuance necessary for 
 the furtherance of justice.(4) 
 
 There are also other grounds upon which the court will put off 
 the trial ; as when the attorney was top ill to attend ;(5) or when 
 a libel was published immediately before the term, with an intent 
 to influence the jury.(6) 
 
 (1) Rule 55. (2) 1 "W. Bl. 510; 3 Burr. 1513. 
 
 (3) Sees Burr. 1313; Gra. Pr. 287. (4) Rule 55. 
 
 (5) Tounga & Jerv. 381. 
 
 (6) 1 Burr. 499, 510 ; 1 Moore, 87. See Graham's Pr. 286, 287. 
 
134 HOW ISSUE DISPOSED OF. 
 
 § 437. When an order for continuance is granted on payment 
 of costs (which are the usual terms), such costs, on being taxed, 
 must be paid on demand of the party, his agent or attorney ; and 
 if not so paid, on affidavit of the fact, such order may be vacated, 
 or the court may grant an attachment therefor, with the accruing 
 costs.(l) A small attorney's fee is usually allowed, on granting a 
 continuance, for preparing and attending for trial. 
 
 If a party has given notice of trial, and has not countermanded 
 such notice before the first day of the term, he cannot then with- 
 draw it, but may be compelled to proceed to trial, unless the cause 
 is continued, and the terms imposed by the court are complied 
 with.(2) 
 
 § 488. If the plaintiff cannot proceed to trial with a prospect 
 of success, he may voluntarily submit to a non-«uit, or he may omit 
 to answer when the cause is called for trial, whereupon a non-suit 
 will be entered against him by default. And if, in the progress of 
 the trial, the plaintiff be surprised by some unexpected occurrence 
 which he could not with ordinary care have foreseen and provided 
 against, so that it appear that he cannot maintain his case, the court 
 will allow him to submit to a non-suit, with leave to move after- 
 wards to set it aside. 
 
 If the defendant fail to appear at the trial, the plaintiff may 
 proceed ex parte, upon showing due service of the notice of trial. 
 
 § 439. A severance of the action by the plaintiff may take place, 
 when brought against the several parties to a bill or note jointly 
 under the statute, if the trial be put off by any of such parties, or 
 if a default has been obtained against part of the defendants, and 
 the plaintiff may proceed to trial against the others, in the same 
 manner as if the suit had been brought against such other parties 
 only.(3) But the action cannot be severed as to the joint makers of 
 a bill or note, and judgment taken against one of them without 
 the other, whether they be sued jointly with indorsers or not.(4) 
 The plaintiff may also sever the action after verdict or finding of 
 the facts by the court, and enter judgment against any of the par- 
 ties, whenever he would be entitled to such judgment if the suit 
 had been commenced against such parties only.(5) 
 
 § 440. If nothing occur to interrupt the regular course of pro- 
 
 (1) Eule 56. (2) Eule 54. (3) Comp. L. 1149. 
 
 (4) 4 Hai, 35. (5) Comp. L. 1149. 
 
TRIAL OP THE ISSUE. 135 
 
 ceedings, and the issue is to be tried by a jury, the next step, after 
 the cause is called and answered to, is the drawing of a jury. This 
 is done by the clerk, who draws out from a box containing twenty- 
 four folded ballots, having thereon the names of the jurors sum- 
 moned to attend for the term, in regular succession, a sufBcient 
 number to constitute a jury. The first twelve persons who appear 
 as their names are drawn and called, are sworn by the clerk to 
 try the issue between the parties, unless excepted to or challenged 
 by one of the parties. 
 
 § 441. If, for any cause, jurors shall not have been drawn and 
 sammoned to attend the court, or a sufiicient number of qualified 
 jurors fail to appear, the court may, in its discretion, order a suf- 
 ficient number to be forthwith (fraii^n and summoned, or may make 
 an order directing the sheriff forthwith to summon so many as may 
 be required.(l) And if, upon the drawing of a jury, there shall 
 not be a sufficient number present to form a panel in the cause, the 
 court may direct the of&cer in attendance to summon a sufficient 
 number of persons from among the bystanders or neighboring cit- 
 izens to complete the panel. (2) The persons so summoned are 
 called talesmen, and the officer selecting them ought to exercise 
 great care and prudence in the performance of that duty, and not 
 allow any person voluntarily to suggest to him the names of per- 
 sons proper to be summoned, while he seeks only such as he has 
 reason to believe will be unbiassed and impartial between the 
 parties. 
 
 § 442. After the oath is administered in the usual form, the 
 clerk makes the following inquiry : " Gentlemen of the jury, are 
 you all sworn ?" The reason of this inquiry is, that some persons, 
 having conscientious scruples about taking an oath, do not join 
 with the others in taking it, but either sit or stand up, without 
 raising the right hand, until the other jurors are sworn, when, upon 
 the inquiry being made, such jurors say they are not sworn, and 
 thereupon an af&rmation is administered to them. 
 
 § 443. The jury being sworn and ready to hear the merits of the 
 case, it is the duty of the plaintiff's counsel, before offering any 
 evidence to support the issue on his part, to make a full and fair 
 statement of his case, and of the facts which he expects to prove. 
 After the evidence is closed on the part of the plaintiff, a like state- 
 
 (1) Comp. L. 1193, 1194. (2) Comp. L. 1194. 
 
136 HOW ISSUE DISPOSED OF. ^ 
 
 ment is required to be made by the counsel for the defendant.(l) 
 In the opening of the case to the jury, the plaintiff's counsel states 
 briefly the nature of the action, the substance of the pleadings, the 
 points on which issue has been joined, the facts and circumstances 
 of the case, and the substance of the evidence to be adduced, and 
 its effect in proving the case stated. He may also state the matter 
 of the defence, if it appear on the record, or by a notice thereof, 
 and the evidence by which he can disprove it.(2) On the part of 
 the defendant, a brief statement is made of the matter of the defence, 
 the evidence which he will adduce in support of it, with remarks 
 on the case and evidence of the plaintiff only so far as to exhibit 
 the points which are to be made on the argument. In this open- 
 ing, points and facts only are stated on either side ; and no argu- 
 ment upon them is had until after the closing of the testimony on 
 both sides. 
 
 § 444. The plaintiff, in all cases, except when otherwise ordered 
 by the court, commences the evidence. When a witness is called 
 on the part of the plaintiff, the defendant's counsel may object to 
 his admission on the ground of incompetency, and the court must 
 decide on the validity of the objection.(3) 
 
 On such objection being made, the defendant may have the per- 
 son offered as a witness sworn, and examine him touching his com- 
 petency, or he may introduce other testimony to sustain his objec- 
 tion. If no objection is made, or it be overruled, the witness is 
 sworn in chief by the clerk, and the plaintiff's counsel examines 
 him, after which he may be cross-examined on the part of the de- 
 fendant; the right to examine and cross-examine being limited to 
 one counsel on each side.(4) If any new fact arise out of the cross- 
 examination, the witness may be re-examined as to such fact by 
 the plaintiff's counsel, and in the same manner he may be re- 
 examined, when necessary, in order to explain any portion of his 
 cross-examination.(5) 
 
 § 445. The extent to which the examination of witnesses may 
 proceed under certain circumstances, is regulated by the discretion 
 of the court. Evidence pertinent to the issue cannot, however, be 
 rejected, merely because it is not embraced in the case stated upon 
 the opening.(6) Leading questions, which are such as indicate to 
 the witness the answer desired, cannot, in general, be asked upon 
 the direct examination.(7) But in cross-examining a witness, lead- 
 
 (1) Eule 62. (2) 1 Arch. Pr. 191. (3) 1 Arch. 192; 1 Bnrr. 234. 
 
 (4) Rule 63. (5) 1 Arch. Pr. 194 ; 15 "Wend. 193. (6) 5 Hill, 291. 
 (7) 1 Arch. Pr. 192 ; 4 VTend. 231. 
 
TRIAL OF THE ISSUE. 137 
 
 ing questions may be asked, or any questions growino; out of the 
 direct examination, and at all relevant to the issue. And if a wit- 
 ness appear evidently hostile to the party calling him, the court 
 may permit the counsel to put leading questions to him, in the same 
 manner as on a cross-examination.(l) 
 
 § 446. If the plaintiff have any documentary evidence which is 
 deemed material, his counsel also produces it ; and if objection is 
 made to its admissibility, the court must decide as to its validity. 
 If any testimony has been taken upon a commission or otherwise 
 out of court, the depositions are also read. 
 
 The plaintiff, or party entitled to commence the evidence, must 
 exhaust all his testimony in support of his side of the issue before 
 the opposite party has been heard, and he cannot, as a matter of 
 right, introduce any evidence afterwards, except in reply .(2) The 
 court may, however, in its discretion, allow a departure from this 
 rule, and will do so when the ends of justice seem clearly to require 
 it.(3) \ 
 
 § 447. The plaintiff having gone through with his testimony and 
 rested his case, the defendant's counsel, after opening the case on 
 his part, produces his witnesses and other testimony in the same 
 manner, to the admissibility of which the plaintiff may also object, 
 and the witnesses for the defendant may, after their direct examina- 
 tion, be cross-examined by the plaintiff's counsel. When the de- 
 fendant has rested the case on his part, the plaintiff has a right to 
 reply by evidence to contradict, CLit down, modify, explain, or in 
 any way vary the evidence of the defendant ; but he can go no fur- 
 ther without the permission of the court, even to supply a defect in 
 his own evidence.(4) 
 
 § 448. The summing up, or argument of the case to the jury, 
 follows the closing of the testimony on both sides, and is usually 
 commenced by the counsel of the plaintiff, who also closes. No 
 more than two hours is allowed to either side for the summing up 
 of a cause, unless the court otherwise order.(5) If the counsel deem 
 more time necessary, application ought to be made to the court., be- 
 fore the commencement of the argument, for an order allowing such 
 further time as may seem to be required. 
 
 § 449. In arguing the case to the jury, counsel have the right 
 
 (1) Peake'sEr. 198; 1 Arch.Pr.l92. (2) 1 Hill, 300; 5 id. 286. (3) 4 Hill, 202. 
 (4) 5 Carr. & P. 299; 2 Mood. & Eob. 168, 169 ; 5 Hill, 288. (5) Rule 63. 
 
138 HOW ISSUE DISPOSED OF. 
 
 to comment upon the evidence, and give it sucli construction as 
 fhey may think it susceptible of, without misrepresenting the evi- 
 dence itself. They have also the right to comment upon every cir- 
 cumstance which may affect the credibility of the witnesses, and 
 which has appeared before the court and jury upon the trial ; but 
 they are not at liberty to go beyond this, and state facts and cir- 
 cumstances which have not been introduced in evidence, in order 
 to discredit a witness, or create a prejudice for or against a party. 
 Any attempt to do so, it is the duty of the court to restrain ; and 
 if allowed to pass without objection, the result in most cases would 
 be to injure, rather than benefit the client's cause. Fairness, sin- 
 cerity, and a strict adherence to the rule which confines an attorney 
 to the case as made hy the pleadings and the evidence, afford the surest 
 means of success. 
 
 § 450. After the cause has been argued on both sides, the judge 
 charges the jury, explaining to them the nature of the action and 
 of the defence, and the points in issue between the parties ; recapitu- 
 lating the evidence on both sides, and remarking upon it, when ne- 
 cessary ; and directing the jury upon all points of law arising upon 
 the evidence.(l) 
 
 § 451. The jury, after hearing the charge of the judge, either 
 render their verdict at once without leaving their seats, or, if they 
 are not agreed, they retire from the bar, in charge of an oiiicer, for 
 deliberation ; in which case they are kept together without meat 
 or drink, except such as the court may order to be furnished to 
 them, until they are unanimously agreed upon their verdict. In 
 the meantime they are not allowed to speak to any person except 
 the officer in charge of them, nor can he communicate with them 
 except to ask them if they have agreed upon their verdict, unless 
 by order of the court. But the jury may return into court to hear 
 evidence as to any matter of which they are in doubt, (2) or to ask 
 any question of the court. (3) But fresh evidence is seldom, if 
 ever, allowed to be introduced after the jury have retired to delib- 
 erate, unless both parties consent to its introduction. 
 
 § 452. The jury are allowed to take with them, on withdraw- 
 ing from the bar, letters patent and other instruments under seal ; 
 and with the assent of the parties they may take with them books, 
 
 (1) See 2 Cow. 479 ; 5 id. 243 ; 2 "Wend. 424, 491; 5 Mioh. R. 501, 123, 368. 
 
 (2) 1 Arch. Pr. 197; 7 J. R. 32; 9 Oowen, 67. 
 
 (3) 2 Hale P. C. 296 ; 2 Wendell, 497. 
 
TRIAL OF THE ISSUE. 139 
 
 or writings not under seaL(l) But they cannot take with them 
 evidence which has not been shown to the court ;(2) and if the 
 party for whom the verdict is afterwards given deliver such evi- 
 dence to the jury after they have left the bar, it will avoid the 
 verdict ;(3) but if delivered by the opposite party, or produced by 
 one of the jurors without having received it from a party, it will 
 not.(4) If the jury take an unsealed paper without reading it, the 
 verdict will not thereby be avoided.(5) 
 
 § ^153. If it seem probable that the court may adjourn to an- 
 other day before the jury are prepared to render the verdict, the 
 court may, with the consent of both parties, instruct the jury that 
 when they have agreed upon a verdict they may write it on paper, 
 and all of them sign it, and that they may then seal it up and put 
 it in the hands of their foreman ; that upon doing so they may 
 separate, and all of them return into court when it again convenes, 
 so that the verdict may be given by all. While the jury are out 
 (unless permitted to separate upon sealing up their verdict), it is 
 their duty to continue together until their return into court ; (6) and 
 if the jury separate after agreeing upon a verdict, the slightest sus- 
 picion of abuse will be sufiicient to set aside their verdict.(7) If 
 the jurors eat or drink at the expense of the party in whose favor 
 they find, it avoids the verdict.(8) But the mere drinking of spir- 
 ituous liquor at the juror's own expense, during the progress of the 
 canse, if he do not drink to excess, does not vitiate the verdict.(9) 
 
 During the progress of the trial, and before the cause is com- 
 mitted to the jury, they are allowed to separate and return to their 
 homes or boarding houses when the court adjourns from day to 
 day, and during its recesses for refreshments, &c. 
 
 § 454. The verdict must be the result of deliberation and the 
 exercise of the individual judgment of the jurors, and it is there- 
 fore irregular to determine their verdict by lot, (10) or for each to 
 put down a sum which he finds for the plaintiff, add the sums to- 
 gether, divide by the number of jurors, and adopt the quotient as 
 their verdict.(ll) But if this course be adopted merely as a mode 
 of arriving at a reasonable measure of damages, and the jurors do 
 
 (I) 2 Salk. 645 ; 24 ■VTendeli, 185. (2) 2 Bol. Abr. 686. 
 (3) Co. Litt. 227J. (4) Cro. Eliz. 616. 
 (5) 3 J. R. 252. (6) 1 Cowen, 221. 
 
 (T) 2 Cowen, 589 ; 6 id. 283 ; 4 id. 26. (8) Co. Litt. 227 ; 1 Hill, 201. 
 
 (9) 1 HUI, 207. (10) 1 Arch. Pr. 197 ; 1 Stra. 642. 
 
 (II) 1 Cowen, 238 ; 10 "Wendell, 595. 
 
140 HOW ISSUE DISPOSED OF. 
 
 not bind tbemselves to abide by the contingent result at all events, 
 the verdict will not be set aside for this cause.(l) But in no case 
 will the affidavits of jurors be received to impeach their verdict, 
 and any irregularity or misconduct must be substantiated by other 
 evidence.(2) In all cases, however, their affidavits are received in 
 support of their verdict.(3) 
 
 "When the j ury have had sufficient time for deliberation, and the 
 court becomes satisfied that there is no prospect of their agreeing 
 upon a verdict by further discussion, it becomes the duty of the 
 court to discharge them ; and the cause will then stand for a re- 
 trial.(4) 
 
 § 455. When the jury have agreed, and returned to the bar, 
 they are asked by the clerk if they have agreed upon their verdict, 
 whereupon the foreman answers, "We have." The clerk then 
 asks for whom they find. The foreman then, in the presence of 
 the other jurors, pronounces the verdict, which is either general or 
 special. A general verdict is delivered viva voce by the jury, thus: 
 " We find, for- the plaintiff, dollars damages ;" or, if for the de- 
 fendant, then merely, " We find for the defendant." The clerk 
 then repeats the verdict, in which he corrects the form of it if ne- 
 cessary, and says, " So say you all ?" when the jurors severally sig- 
 nify their assent by an inclination of the head. Either party has 
 a right, after the verdict is pronounced, to demand that the jury 
 be polled.(5) If any of the jury dissent, they are sent out again 
 for further de]iberation.(6) 
 
 § 456. In case there are several counts in the declaration, the 
 jury may find in favor of the plaintiff on some, and for the defend- 
 ant on the others, in the following form : " ^VeJ^ndfor the plaintiff, 
 
 on the first, second and fourth issues, dollars damages ; and for 
 
 the defendant on the third and fifth counts." (J) And, in an action of 
 tort against several defendants, the jury may find some guilty and 
 others not guilty.(8) v 
 
 When the jury find for the plaintiff, they assess such damages 
 as he appears to be entitled to recover; and in most personal 
 actions, including assumpsit, covenant, case, trover and trespass, 
 the sole object of the action is damages. In debt, however, the 
 
 (1) 4 J. R. 481 
 
 (2) 6 Cowen, 54; 1 Wondell, 29^ ; 3 Gaines, 51 ; 4 J. R. 487 ; 15 J. R. 309 ; 5 Hill, 560. 
 
 (3) 4 J. R. 487. (4) See 13 Wendell, 55. 
 (5) 3 J. R. 255 ; 2 Wendell, 619. (6) 2 Wendell, 352. 
 
 (T) 1 Burr. Pr. 236. (8) 1 Cowen, 322. 
 
TRIAL OF THE ISSUE. 141 
 
 damages are, in general, merely nominal, the recovery of the debt 
 being the principal object of the action. (1) The jury, in this case, 
 first find the matter of the issue, and that the defendant owes the 
 plaintiff the amount of the debt proved, and then they assess nom- 
 inal damages (six cents) for the detention of the debt. 
 
 § 457. But in debt, to recover any penal sum for the non per- 
 formance of a written agreement, and on bonds conditioned for the 
 performance of covenants, or any specific acts other than the pay- 
 ment of money, and when breaches are required to be assigned 
 in the declaration, the jury, if they find any assignment of such 
 breaches true, and that the plaintiff should recover therefor, assess 
 the actual damages, and specify the amount thereof in their ver- 
 dict.(2) 
 
 In actions of replevin, if the property has been taken and deliv- 
 ered to tlie plaintiff, and the defendant recover on the trial, or have 
 judgment of non suit or discontinuance against the plaintiff, lie may 
 waive his right to a return, and have its value assessed by the jury 
 or the court, together with his damages for the taking and deten- 
 tion by the plaintiff.fS) 
 
 § 458. When the amount appearing to be due upon a bond, 
 for principal and interest, exceeds the amount of the penalty, the 
 court should give tlie excess by way of damages.(4) Bat interest 
 is not recoverable beyond the amount of the penalty, when the 
 judgment has not been delayed on the part of the defendant.(o) 
 
 § 459. If no jury has been demanded by either party, and the 
 court soes no special reason for ordering the issue to be tried by a 
 jury, the issue is tried hy the court, and the general course of the 
 trial is the same as by a j ury . The opening of the cause, the intro- 
 duction of the testimony, and the summing up, are governed by 
 the same rubs. And exceptions may be taken to the ruling of the 
 court in admitting or rejecting testimony as upon a trial by jury. 
 In giving its decision of a cause, the court, upon the request of 
 eithiT p^irty, must specify the facts found, and the conclusions of 
 law thereon, (6) If the cause be submitted for decision in term time, 
 and not then decided, the judge may transmit his decision to the 
 clerk in vacation, who enters judgment, and gives notice of such 
 
 (1) 1 Arch. Pr. 2lT. (2) Comp. L. 1221. 
 
 (3) Comp. L. 1336. (4) 3 WendeU, 444. 
 
 (5) 1 J. E. 343 ; 3 Cainea' E. 48. (6) Comp. L. 999; Rule St. 
 
142 HOW ISSUE DISPOSED OF. 
 
 entry to the parties.(l) In sucli cases, the judge must specify the 
 facts found, and the conclusion of law thereon, without request 
 from either party.(2) 
 
 § 460. In regard to the measure of damages, it is an established 
 rule, that when there is a penalty or forfeiture expressed for the 
 non-performance of an agreement, and it appears evident that such 
 penalty is the precise amount fixed and agreed upon between the 
 parties as liquidated damages for such non-performance, the court 
 or jury, in assessing the damages, are confined to that sum.(3) But 
 when it does not appear that the parties intended the sum stated 
 as the stipulated amount of damages, it must be deemed a mere 
 penalty, in which case no greater, but a less sum may be given as 
 the damages sustained by the plaintiff.(4) 
 
 In trespass for injuries wilfully and maliciously committed, 
 exemplary^damages may be given by way of punishment to the 
 defendant, which are damages beyond those actually sustained by 
 the plaintiff. (5) 
 
 § 461. It is also a general rule that the jury can in no case 
 exceed the amount of damages laid in the declaration ; and it is the 
 duty of the clerk, if the jury, by mistake, find a verdict for a 
 greater amount, to enter it for the amount laid in the declaration 
 only.(6) But if entered for more, the mistake may be rectified by 
 application to the court, who will allow the plaintiff to enter 
 a remittitur for the excess ;(7) and they have allowed the judgment 
 to be amended in this respect even in a subsequent term.(8) It is 
 also a rule in actions upon contract, that such damages only can 
 be recovered, as are shown to be the natural and proximate conse- 
 quence of the breach complained of, and not such as arise from 
 circumstances so out of the ordinary course of events that they 
 cannot fairly be presumed to have been anticipated by the parties 
 at the time of making the contract. (9) 
 
 § 462. Interest is usually calculated in actions of assumpsit, and 
 assessed as part of the plaintiff's damages. It is always allowed 
 on bills of exchange and promissory notes, and on goods sold at a 
 specified credit ; and it is generally allowable in assessing damages 
 
 (1) Comp. L. 999. (2) Id. 1000. 
 
 (3) 4 Burr. 2225 ; 1 Hath. 43. (4) 1 Arch. Pr. 220 ; 5 Mich. E. 123' 
 
 (5) 3 Hill, 180; 24 Wend. 429; Gra.Pr.323. (6) 1 Wendell, 330. 
 
 {D 1 H. Bl. 643. (8) 5 Halst. 222. 
 
 (9) 3 Mich. E. 55. 
 
MEASURE OP DAMAGES. 
 
 for the breach of a contract.(l) On contracts for the payment of 
 money, it is recoverable from the time when the principal ought to 
 have been paid, and it is always recoverable where there is either 
 an express or implied promise to pay it.(2) It is not recoverable, 
 however, on uncertain and unliquidated demands,(3) as upon an 
 unliquidated account for work and labor,(4) or goods sold and 
 delivered when no time is fixed for payment, unless there be an 
 express agreement to allow interest, or circumstances from which 
 such an agreement may be inferred. (5) AVhen credit is given for 
 a specified, or an indefinite time, without an express agreement to 
 pay interest, none is allowable in the first case until the term of 
 credit has expired, and in the last case until a demand of pay- 
 ment.(6) 
 
 § 463. Interest at the rate of seven per centum per annum is 
 recoverable upon judgments and decrees for the payment of money, 
 whatever may have been the cause or form of the action or suit in 
 which the judgment or decree was rendered or made ; but if the 
 judgment be rendered upon a contract specifying a different rate, 
 the interest must be computed at the rate so specified, not exceed- 
 ing ten per centum. (7) And in all actions founded on contracts 
 express or implied, whenever any amount in money is liquidated 
 or ascertained in favor of either party, by verdict, report of referees 
 award of arbitrators, or by any other mode of assessment, interest 
 is allowable upon such amount until paid, or judgment rendered, 
 and such interest may be computed and included in the judg- 
 ment.(8) 
 
 § 464. In trespass for taking goods,(9) and in trover,(10) in- 
 terest has been held to be recoverable on the value of the chattels 
 from the time of the trespass or conversion, by way of damages. 
 If interest be allowed in a case where it is not legally recoverable 
 the verdict will not, for that cause, be set aside, but the plaintiff 
 will be allowed to remit.(ll) 
 
 § 465. When a party is entitled to recover double or treble 
 damages under the statute, the proper course is for the jury to find 
 
 (I) 3 'Wendfill, 356; 15 J. E. 24, 38. (2) '7 'Wendell, 109, 318. 
 
 (3) IJ. E. 315 ; 6 id. 4£. (4) 1 "Wend. 118 ; 3 Cow. 393 ; 4 id. 496. 
 
 (5) 6 J. R. 45. (6) 3 Mich. R. 560. 
 
 (7) Comp. L. 425. (8) Id. 426. 
 
 (9) 8 J. R. 446. (10) 4 Cow. 53; 1 "Wend. 354; 8 id. 605. 
 
 (II) 23 "WendeU, 626. 
 
144 HOW ISSUE DISPOSED OP. 
 
 single damages only, and the court, on motion, will double or treble 
 them, as the case may require ; and if the court, refuse to grant the 
 motion, the plaintiff may bring error.(l) But to entitle a plaintiff 
 to double or treble damages, he must, in his declaration, distinctly 
 refer to the statute.(2) When the declaration is for a trespass 
 Committed by an unlawful entry upon premises, and ejecting the 
 plaintiff therefrom, &c., and taking and convei-ting to his own use 
 of personal , property at the same time, and entire damages are 
 assessed by the jury, such damages cannot be trebled under the 
 statute,(3) the taking and converting of the personal property 
 being a substantive cause of action, and not mere matter of aggra. 
 vation.(4) 
 
 § 466. Damages cannot be severed by the jury, in trespass, when 
 the defendants join in pleading, and are found jointly guilty ;(5) 
 nor though they sever in pleading, or one suffer judgment by 
 default, if there be but one trespass, and both are found guilty of 
 the whole trespass.(6) But the jury may find one of the defend- 
 ants guilty of the trespass at one time, and another at another 
 time ;(7) or one of them guilty of part of the trespass, and another 
 of another part;(8) or some guilty of the whole, and others guilty 
 of part ouly of the trespass ;(9) in all which cases the jury may 
 assess several damages.(lO) When the jury sever the damages by 
 mistake, the plaintiff may cure the defect by taking judgment for 
 the greater damages against one, and entering a nolle prosequi as to 
 the other, or, by entering a remittitur as to the lesser damages, he 
 may have judgment for the greater against both. (11) 
 
 § 467. If there are several defendants, and interlocutory judg- 
 ment be taken against some by default, and the issue be found for 
 the plaintiff, damages must be assessed against all the defendants.(12) 
 B ut if some of several defendants suffer a default, and those who 
 plead are acquitted at the trial, it must depend upon the nature of 
 the plea whether damages can be assessed against those who let 
 judgment go by default. The rule in such cases is that when the 
 plea of one of the defendants shows that the plaintiff had no cause 
 of action against any of them, such as payment and the like, the 
 
 (1) 1 Galison, 26, 419 ; 25 "Wendell, 420. 
 
 (2) 1 Cowen, 175. (3) Comp. L, 1262. 
 
 (4) 4 Mich. R. 173. (5) 5 Burr. 2790; 6 T. R. 199. 
 
 (6) 6 CoweD, 313. (7) 11 Co. 56. 
 
 (8) Cro. Car. 54. (9) Cro. Ellz. 860. 
 
 (10) Gra. Pr. 320. (11) 1 Wils. 30, 306. 
 ^±2) 6 Oowen, 599 ; 2 Bos. & Pul. 163. 
 
FORM OF VERDICT, &C. 
 
 plea -will enure to tlie benefit of all the defendants ; but -wben tbe 
 plea merely operates in discbarge of the party pleading it, it is 
 otherwise.(l) 
 
 § 468. "When the suit is brought against the several parties to 
 a bill or note, and demands are proven as a set-off by any of the 
 defendants, and there still remains a balance due to the plaintiff, 
 the jury must state in their verdict, or the referees certify in their 
 report, the amount which they allow to each defendant as a set-off 
 against the plaintiff's demand. (2) 
 
 The receiving and entering of the verdict, and the correction 
 thereof, if necessary ; or the finding and decision of the court, de- 
 termines the result of the trial. 
 
 § 469. The jury are not, however, compelled in any case to 
 give a general verdict, but they may find a special verdict show- 
 ing the facts respecting which the issue is joined, and therein require 
 the judgment of the court upon such facts.(3) A minute of the 
 facts specially found by the jury being made at the time by the 
 court or counsel, the verdict is afterwards drawn up in form by the 
 plaintiff's counsel ; and, having been properly settled, is entered 
 at length upon the journal, and brought on for argument before 
 the court. (4) 
 
 If, on the trial, one of the parties should be of opinion that the 
 facts proved by the opposite party are insufficient to maintain the- 
 issue on his part, a demurrer to the evidence might be interposed, 
 referring to the court the law arising upon the facts. But this pro- 
 ceeding, if allowable at all under our system of jurisprudence, will 
 seldom, if ever, be resorted to, as the effect of it may be obtained 
 either by a special verdict, case made after judgment, or motion 
 for a new trial. (5) 
 
 The verdict may be amended, if a mistake occur in entering it, at 
 any time, even after error brought, by the judge's notes, or his cer- 
 tificate, but it will never be amended in point of substance.(6) 
 
 § 470. The form of the verdict, or the finding of the court, 
 must correspond with the issue which is found upon the record ; and 
 no othei;^^ja in bar being allowed than the general issue, that is 
 
 (1) 10 Pick. 291; 2 Stra. 1108 ; 19 'Wendell, 25. (2) Comp. L. 1148. 
 
 (3) Oomp. L. 1198. (4) 1 Arch. Pr. 214. 
 
 (5) See, in regard to demurrer to evidence generally, 1 Arch. Pr. 209 ; 1 Burr Pr. 
 240; Gra. Pr. 308, 309. 
 
 (6) 1 Burr. Pr. 243. 
 
 in 
 
146 HOW ISSUE DISPOSED OP. 
 
 the only issue of fact involving tlie merits of the controversy to be 
 determined. Under this plea, any proper mat'ter of defence may 
 be introduced, notice being given thereof, when necessary ; but the 
 notice not being a part of the record, no issue is made upon it ; and 
 whatever may be the subject of the defence embraced in such no- 
 tice, as infancy, duress, or the statute of limitations, it is regarded 
 as matter in support of the plea of the general issue, which may be 
 contested by the evidence, but not as presenting any distinct issue 
 to be determined hy the record. Hence, what was often the princi- 
 pal or only issue made between the parties, under the former sys- 
 tem of special pleadings, is now only a collateral or subordinate one, 
 .and not noticed in the finding of the court or jury. 
 
 § 471. "When a cause is regularly called for trial in its order 
 upon the calendar, and the plaintiff does not answer, or will not 
 proceed to trial, the sheriff, at the request of the defendant, calls 
 the name of the plaintiff distinctly three times, and then says : 
 " Come into court and prosecute your suit against C. D. (the de- 
 fendant), or your default will be entered, and you will be non- 
 suited ;" and thereupon the defendant may have the default of the 
 plaintiff entered upon the journal, with an order that he be non- 
 suited. 
 
 § 472. Having thus pointed out the mode of preparing the 
 issue for argument or trial, and the mode of conducting such argu- 
 ment or trial to its determination in the opinion or verdict pro- 
 nounced in favor of one or the other of the parties, we proceed to 
 introduce several forms or precedents, which may serve as guides 
 and illustrations to the practitioner, and which may be consulted 
 with profit by the student, in connection with the several subjects 
 to which they relate. Others will be more appropriately given 
 hereafter, when the proceedings to which they refer are considered 
 imore in detail. 
 
 § 473. Non-suit upon plaintiff^ default in not proceeding to trial. 
 
 A. B.) 
 
 vs. y 
 C. D.) 
 
 This cause having been duly noticed and placed upon the 
 •calendar for trial at the present term of this court, now comes the 
 said defendant, by G. H. his attorney, and the said plaintiff, being 
 solemnly demanded, comes not, nor does he further prosecute his 
 •said suit, but therein makes default ; therefore, on motion of G. 
 H., attorney for the said defendant, it is ordered by the court now 
 ihere that the said plaintiff be, and he is hereby non-suited. 
 
FORMS OF OATHS, &C. 147 
 
 § 474. Order for summoning petit jurors, when none have been 
 drawn and summoned. 
 
 In the matter of summoning ) 
 
 PETIT JURORS. j 
 
 No petit jurors taving been drawn and summoned to attend 
 this court at the present term thereof, and it appearing to the court 
 now here that the attendance of such jurors is necessary, the sher- 
 iff of this county of is therefore ordered and directed forth- 
 with to summon twenty-four good and lawful men of his county^ 
 
 to be and appear in said court at the court house in in said 
 
 county without delay [or, on the — day of , at — o'clock in 
 
 the noon] to serve as such petit jurors. 
 
 [If petit jurors have been drawn and summoned, but there are 
 not a sufiicient number in attendance, the recital will be varied 
 accordingly, and the number to be summoned will be fixed ac- 
 cording to the exigency of the case. If the court direct jurors to 
 be drawn from the lists returned by the supervisors, the order will 
 also be varied accordingly.] 
 
 § 475. Order for a continuance. 
 [Title ofcause.l 
 
 On reading and filing affidavit, and on motion of G. H., 
 attorney for the defendant, and after hearing E. F., attornej'^ for the 
 plaintiff, it is ordered by the court now here that this cause be con- 
 tinued for trial until the next term of this court, upon condition 
 that the said defendant pay to the said plaintiff his costs of pre- 
 paring for the trial thereof at the present term of this court, on 
 taxation thereof [including an attorney's fee of dollars]. 
 
 § 476. Oath to he administered to a jury.. 
 
 You do solemnly swear that you will well and truly try the 
 issue joined in the cause now here pending between A. B., plaintiff, 
 and 0. D., defendant, and, unless discharged by the court, a true 
 verdict give therein, according to law and the evidence given you 
 in open court, So help you Gr.od. 
 
 § 477. Affirmation to he administered to a juror. 
 
 You do solemnly, sincerely, and truly declare and affirm 
 that you will well and truly try the issue joined in the cause now 
 here pending between A. B., plaintiff, and 0. D., defendant, and, 
 unless discharged by the court, a true verdict give therein, accord- 
 ing to law and the evidence given you in open court. 
 
 § 478. Witnesses' oath. 
 
 You do solemnly swear that the evidence you shall give 
 relating to this issue joined between A. B., plaintiff, and C. D., de- 
 
148 FORMS OF OATHS, 
 
 fendant, shall be the truth, the whole truth, and nothing but the 
 truth, So help you God. 
 
 § 479. Witnesses^ affirmation. 
 
 You do solemnly and sincerely affirm that the evidence 
 you shall give relating to this issue joined between A. B., plaintiff, 
 and C. D., defendant, shall be the truth, the whole truth, -and no- 
 thing but the truth. This you do under the pains and penalties of 
 perjury.(l) 
 
 § 480. Voire dire. 
 
 You do solemnly swear that you will true answers make to 
 such questions as shall be put to you, touching your interest in the 
 event of this suit, So help you God. 
 
 § 481. Interpreter'' s oath. 
 
 You do solemnly swear that you will well and truly in- 
 terpret and translate the English language into [German], and the 
 [German] into English, between the counsel, the witness, the court 
 and the jury, relating to this issue joined between A. B., plaintiff, 
 and 0. D., defendant, to the best of your ability, So help you God. 
 
 § 482. Oath on application of juror to he excused. 
 
 You do solemnly swear that you will true answers make to 
 such questions as shall be put to you touching your application to 
 be excused from serving as a petit juror at this court. So help you 
 God. 
 
 § 483. Oath of a party, of the loss or destruction of a paper. 
 
 You do solemnly swear that you will true answers make to 
 .such questions as shall be put to you, touching the loss or destruc- 
 tion of any paper which would be proper evidence in this cause, 
 So help you God. 
 
 § 484. Oath of triers upon a challenge for favor. 
 
 You do solemnly swear that you will well and truly try, and 
 truly find, whether A. B., the juror challenged, stands indifferent 
 between E. P., plaintiff, and 0. D., defendant, in the issue now about 
 to be tried, So help you God. 
 
 § 485. Oath of witness on a challenge. 
 
 You do solemnly swear that you will true answers make to 
 inch questions as shall be put to you touching the challenge of A. 
 B., a juror. 
 
 (1) Oomp. L. 1148. 
 
FORMS OF VEEDICTS. 149 
 
 § 486. Oath of officer attending jury. 
 
 You do solemnly swear that you will, to the utmost of your 
 ability, keep the persons sworn as jurors on this trial in some pri- 
 vate and convenient place, without meat or drink, except water, 
 unless ordered by the court ; that you will not suffer any commu- 
 nication, orally or otherwise, to be made to them ; that you will not 
 communicate with them yourself, orally or otherwise, unless by or- 
 der of the court, or to ask them if they have agreed upon their ver- 
 dict, until they shall be discharged ; and that you will not, before 
 they render their verdict, communicate to any one the state of their 
 deliberations, or the verdict they have agreed upon. So help you 
 God. 
 
 § 487. Oaih of party touching his ability to procure the attendance 
 of a subscribing witness. 
 
 You do solemnly swear that you will true answers make to 
 such questions as shall be put to you touching your ability to pro- 
 cure the attendance of L. M., a subscribing witness to the paper 
 writing now here in question. So help you God. 
 
 § 488. Entry on commencement of trial by jury, when Twt con- 
 cluded on same day. 
 
 [Title of cause.] 
 
 The parties in this cause being in court by their respective 
 attorneys, ready for trial, thereupon, came a jury, to wit : [insert 
 the names of the jurors in full,] good and lawful men, who, being 
 duly impanneled, tried and sworn well and truly to try the issue 
 between the parties, sat together and heard the evidence in part. 
 
 I 489. ■ Entry on subsequent day, trial not concluded. 
 
 [Title.] 
 
 The jury heretofore impanneled and sworn in this cause, sat 
 together and heard further evidence therein, [or, " and heard the 
 conclusion of the evidence therein," or " and heard the conclusion 
 of the evidence therein and the arguments of counsel," or as the case 
 may be.] 
 
 § 490. Trialhy jury, and verdict for plaintiff in assumpsit. 
 [Title.] 
 
 The parties in this cause being in court by their respective 
 attorneys, ready for trial, thereupon came a jury, to wit : [insert 
 the names of the jurors in full,] good and lawfufmen, who, being 
 duly impanneled, tried and sworn well and truly to try the issue 
 between the parties, sat together, and after hearing the proofs and 
 allegations of the parties, the arguments of counsel, and the charge 
 of the court, retired from the bar thereof in charge of 0. P., an of- 
 ficer of court duly sworn for that purpose, to consider of their ver- 
 dict to be given, and after being absent for a time return into court 
 
150 FOEMS OF VERDICTS. 
 
 and say upon their oath, that the said defendant did undertake and 
 promise in manner and form as the said plaintiff hath in his decla- 
 ration in this cause complained against him, and they assess the 
 damages of the said plaintiff on occasion of the premises, over and 
 above his costs and charges by him about his suit in this behalf 
 expended, at the sum of dollars. 
 
 § 491. Trialof issue as against one defendant, and verdict for plain- 
 tiff, and assessment of damages against another iy default. 
 [Title.] 
 
 [As in § 490, to and including the words " say upon timr 
 oath," and then as follows:] that the said defendant C. D. did 
 undertake and promise in manner and form as the said plaintiff 
 hath in his declaration in this cause complained against him, and 
 they assess the damagesof the said plaintiff, on occasion of the pre- 
 mises, as well against the said defendant 0. D. as against the said 
 defendant E. F., over and above his costs and charges by him about 
 his suit in this behalf expended, at the sum of dollars. 
 
 § 492. Verdict for plaintiff on one count, and for defendant on 
 another. 
 [Title.] 
 
 [As in § 490, to and including the words "say upon their 
 oath," and then as follows :] that the said defendant did undertake 
 and promise in manner and. form as the said plaintiff hath in the 
 first count of his declaration in this cause complained against him, 
 and they assess the damages of the said plaintiff, by reason of the 
 not performing of the promises and undertakings in that count 
 mentioned, over and above his costs and charges, at the sum of 
 
 dollars. And the jurors aforesaid, upon their oath aforesaid, 
 
 further say, that the said defendant did not undertake or promise 
 in manner and form as the said plaintiff hath in the second count 
 of his said declaration complained against him. 
 
 § 493. Verdict for plaintiff against executor or administrator, in 
 assumpsit. 
 [Title.] 
 
 [As in § 490, to and including the words " say upon their 
 oath," and then as follows :] that the said C. D. in his lifetime did 
 undertake and promise, in manner and form as the said plaintiff 
 hath in his declaration in this cause alleged, and they assess the 
 damages of the said plaintiff, on occasion of the premises, over and 
 above his costs and charges by him about his suit in this behalf 
 expended, at the sum of dollars. 
 
 § 494. Verdict for plaintiff in debt. 
 
 imie.] 
 
 [As in § 490, to and including the words " say upon their 
 oath," and then as follows :] that the said defendant doth owe to 
 
FORMS OF VERDICTS. 151 
 
 the said plaintiff the sum of dollars, in manner and form as the 
 
 said plaintiff hath in his declaration in this cause alleged ; and they 
 assess the damages of the said plaintiff, on occasion of the detaining 
 of the said debt, over and above his costs and charges by him about ' 
 his suit in this behalf expended, at the sum of six cents. 
 
 § 495. Verdict for plaintiff in debt, when breaches are assigned. 
 {Title.] 
 
 [As in the last form to the end, and then as follows :] And 
 as to the breaches by the said plaintiff in his declaration assigned, 
 the jurors aforesaid, upon their oath aforesaid, say, that the said 
 defendant did not, nor would [following the language of the 
 breaches which they find for the plaintiff], and that the said plain- 
 tiff ought to recover his damages therefor; and they assess the 
 
 damages of the said plaintiff, by reason thereof, at the sum of 
 
 dollars. 
 
 § 496. Verdict for plaintiff in covenant. 
 [Title.] 
 
 [As in § 490, to and including the words " say upon their 
 oaiA.," and then as follows :] that the said indenture, [or "articles 
 of agreement" or as the instrument declared on may be,] in the said 
 plaintiff's declaration mentioned, is the deed of the said defendant, 
 in manner and form as the said plaintiff hath in his said declara- 
 tion alleged. [When breaches have been assigned, continue thus :] 
 And as to the breaches by the said plaintiff in his said declaration 
 assigned, the jurors aforesaid, upon their oath aforesaid, say, that 
 the said defendant did not, nor would [following the language of 
 the breaches which they find for the plaintiff], and that the said 
 plaintiff ought to recover his damages therefor; and they assess the 
 damages of the said plaintiff, by reason of the premises, [or, " of the 
 breaches of covenant so assigned,"] over and above his costs and 
 charges by him about his suit in this behalf expended, at the sum 
 of dollars. 
 
 § 497. Verdict for plaintiff in replevin, when the property has been 
 replevied. 
 
 [Title.] 
 
 [As in § 490, to and including the words " say upon their 
 oath" and then as follows :] that the said defendant did unlawfully 
 detain the goods and chattels in the said plaintiff's declaration men- 
 tioned, in manner and form as the said plaintiff hath in his said 
 declaration alleged ; and they assess the damages which the said 
 plaintiff hath sustained by reason of the said unlawful detention, 
 over and above his costs and charges by him about his suit in this 
 behalf expended, at the sum of ■ dollars. 
 
152 Foiars of, verdicts. 
 
 § 498. Verdict for plaintiff in replevin, when property has not been 
 replevied. 
 
 ITitle.] 
 
 [As in § 490, to and including the words, " say upon their 
 oa/A," and then as follows :] that the said defendant doth unlaw- 
 fully detain the goods and chattels in the said plaintiff's declaration 
 in this cause mentioned, in manner and form as the said plaintiff 
 hath in his said declaration alleged ; and they assess the damages 
 ■which the said plaintiff hath sustained by reason of the said unlaw- 
 ful detention, over and above his costs and charges by him about 
 
 his suit in this behalf expended, at the sum of dollars ; and 
 
 they assess the value of the said goods and chattels at the sum of 
 "dollars. 
 
 § 499. Verdict for plaintiff in trespass. 
 [Title.'] 
 
 [As in § 490, to and including the words " say upon their 
 oath," and then as follows :] that the said defendant is guilty of the 
 several trespasses in the said plaintiff's declaration mentioned, in 
 manner and form as the said plaintiff hath in his said declaration 
 complained against him, and they assess the damages of the said 
 plaintiff by reason thereof, over and above his costs and charges 
 
 by him about his suit in this behalf expended, at the sum of 
 
 dollars. . 
 
 § 500. Verdict in trespass, when one defendant is found guilty and 
 another acquitted. 
 
 [Title.] 
 
 [As in § 490, to and including the words " say upon their 
 oath," and then as follows :] that the said defendant C. D. is guilty 
 of the several trespasses in the said plaintiff's declaration laid to 
 his charge, in manner and form as the said plaintiff hath in his 
 said declaration complained against him ; and they assess the dam- 
 ages of the said plaintiff, by reason thereof, over and above his 
 costs and charges by him about his suit in this behalf expended, 
 
 at the sum of dollars. And the jurors aforesaid, upon their 
 
 oath aforesaid, do further say, that the said defendant E. F. is not 
 guilty of the said several trespasses in the said declaration laid to 
 his charge, in manner and form as the said plaintiff hath in his said 
 declaration complained against him. 
 
 § 501. Verdict for plaintiff in trespass, when several damages are 
 assessed. 
 
 [Title.]- 
 
 [As in § 490, to and including the words "say upon their 
 oath," and then as follows :] that the said defendant C. D. is guilty 
 of talcing and converting to his own use, [state what part of the 
 property,] in manner and form as the said plaintiff hath in his de- 
 
FOxtMS OF VEEDICTS. 153 
 
 claration in this cause complained against him. And the jurors 
 aforesaid, upon their oath aforesaid, do further say that the said 
 defendant L. M. is guilty of taking and converting to his own use, 
 [state what part,] in manner and form as the said plaintiff hath in 
 his said declaration complaiaed against him ; and they assess the 
 damages of the said plaintiff, by reason of the premises, over "and 
 above his costs and charges by him about his suit in this behalf 
 expended, against the said defendant C. D., at — — dollars, and 
 against the said defendant L. M., at dollars. 
 
 § 502. Verdict for plaintiff in case or trover. 
 [Title.] 
 
 [As in § 490, to and including the words "say upon their 
 oath" and then as follows :] that the said defendant is guilty of 
 the premises in the said plaintiff's declaration in this cause laid to 
 his charge, in manner and form as the said plaintiff hath in his 
 said declaration, complained against him ; and they assess the dam- 
 ages of the said plaintiff, by reason thereof, over and above his 
 costs and charges by him about his suit in this behalf expended, at 
 the sum of dollars. 
 
 § 503. Verdict for plaintiff in ejectment. 
 Title.] 
 
 [As in § 490, to and including the words '■^ say upon their 
 oath," and then as follows :] that the said defendant is guilty of 
 unlawfully withholding from the said plaintiff the premises de- 
 scribed in his declaration in this cause as [describe the premises as 
 in the declaration], and that the said plaintiff is well entitled to 
 hold the same in fee [or, "for his own life," or, "for the life of 
 B. S.," or as his estate may appear], as the said plaintiff hath in his 
 said declaration complained against him, the said defendant ; and 
 they assess the damages of the said plaintiff, oyer and above his 
 costs and charges by him about his suit in this behalf expended, 
 at six cents. 
 
 § 504. Verdict for plaintiff in ejectment for an undivided share, 
 [Title.] 
 
 [As in the last form, to and including the words " withhold- 
 ing from the said plaintiff," and then as follows :] one equal undi- 
 vided half part [or other equal undivided part, according to the 
 share or interest found to belong to the plaintiff], of the premises 
 
 described in his declaration in this cause as being , and that the 
 
 said plaintiff is well entitled to hold the said equal undivided half 
 part, &c., [as in the last form.] 
 
 § 505. Verdict in ejectment for one plaintiff, and for defendant 
 against other plaintiffs. 
 [Title.] 
 
 [As in § 490, to and including the words. " say upon their 
 oath," and then as follows:] that as to the said A. B., the said 
 
154 FORMS OF VERDICTS. 
 
 defendant is guilty, &c. [as in tbe preceding forms], and as to the 
 said W. X. and Y. Z., the jurors aforesaid, upon their oath aforesaid, 
 say, that the said defendant is not guilty of the matters in the said 
 declaration laid to his charge, in manner and form as the said 
 W. X. and Y. Z. have in the said declaration complained against 
 him. 
 
 § 506. Verdict in ejectment of part for plaintiff, and part for 
 defendant. 
 
 [Title.] 
 
 [As in § 490, to and including the words " say upon their 
 oath," and then as follows :] as to [describe the part- accurately], 
 parcel of the premises in the said plaintiff's declaration mentioned, 
 that the said defendant is guilty of unlawfully withholding the 
 same, &c. [as in the preceding forms], and as to the residue of the 
 premises in the' said declaration mentioned, the jurors aforesaid, 
 upon their oath aforesaid, say, that the said defendant is not guilty 
 of the matters therein laid to his charge, in manner and form as 
 the said plaintiff hath in his said declaration complained against 
 him. 
 
 § 507. Verdict for plaintiff in ejectment, his title having expired 
 before trial. 
 
 [Title.] \., 
 
 [As in § 490, to and including the words " say upon their 
 oath," and then as follows :] that the said defendant, at the time of 
 the commencement of this suit, was guilty of unlawfully withholding 
 from the said plaintiff the premises described in the declaration in 
 
 this cause as , and that the said plaintiff was well entitled to 
 
 hold the same, &c. [as in the preceding forms], and they assess the 
 damages of the said plaintiff, by reason of the premises, over and 
 above his costs and charges, by him about his suit in this behalf 
 
 expended, at . And the jurors aforesaid, upon their oath 
 
 aforesaid, further say that the aforesaid title of the said plaintiff to 
 the premises aforesaid, expired after the commencement of this 
 suit, and before the trial of the issue joined therein, to wit : on the 
 — day of . 
 
 § 508. Verdict for defendant in assumpsit. 
 
 [Title.] 
 
 [As in § 490, to and including the words "say upon their 
 oath," and then as follows :] that the said defendant did not under- 
 take or promise in manner and form as the said plaintiff hath in his 
 declaration in this cause complained against him. 
 
rORMS OF VEBDICT3. 155 
 
 § 509. Yerdictfor defendant in assumpsit, when another defendant 
 let judgment go hy default. 
 
 {Title.'] 
 
 [As in § 490, to and including the words " say upon their 
 oath" and then as follows :] that the said defendant C. D. did not 
 undertake or promise in manner and form as the said plaintiff hath 
 in his declaration in this cause complained against ; and hereupon 
 the said jurors are discharged from inquiring against the said E. F. 
 what damages the said ])laintiff hath sustained by reason of the 
 premises. 
 
 § 510. Verdict for defendant in debt. 
 [Title.] 
 
 [As in § 490, to and including the words " say upon their 
 oath," and then as follows :] that the said defendant doth not owe 
 to the said plaintiff the said sum of money in the said plaintiff's 
 declaration in this cause mentioned, or any part thereof, in manner 
 and form as the said plaintiff hath in his said declaration com- 
 plained against him. 
 
 § 511. Verdict for defendant for balance due on set-off. 
 [Title.] 
 
 [As in § 490, to and including the words " say upon their 
 oath," and then as follows :] that there is due from the said plain- 
 tiff to the said defendant, over and above the amount proven on 
 the trial to be due from the said defendant to the said plaintiff, and 
 over and above his costs and charges by him about his defence in 
 this behalf expended, the sum of dollars. 
 
 § 512. Verdict for defendant as executor or administrator in as- 
 sumpsit. 
 
 [Title.] 
 
 [j4 s in § 490, to and including the words " say upon their 
 oath," and then as follows :] that the said E. F., in his lifetime, did 
 not undertake or promise in manner and form as the said plaintiff 
 hath in his declaration in this cause alleged. 
 
 § 513. Verdict for defendant in covenant. 
 [Title.] 
 
 [As in § 49,0, to and including the words " say upon their 
 oath," and then as follows :] that the said indenture [or " articles of 
 agreement "] in the said plaintiff's declaration in this cause men- 
 tioned and set forth, is not the deed of the said defendant [or, " that 
 the said defendant hath not committed or suffered the several breaches 
 of covenant in the said plaintiff's declaration in this cause assigned, or 
 any or either of them "] in manner and form as the said plaintiff hath 
 in his said declaration in that behalf alleged. 
 
156 FORMS OF VERDICTS. 
 
 § 514. Verdicts for defendant in replevin, and assessment of his 
 damages. 
 
 [Title.] 
 
 [As in § 490, to and including the words " say upon their 
 oath," and then as follows :] that the said defendant did not unlaw- 
 fully detain the goods and chattels in the plaintiff's declaration in 
 this cause mentioned, in manner and form as the said plaintiff hath 
 in his said declaration complained against him. And the jurors 
 aforesaid, upon their oath aforesaid, do further say, that the value 
 of the said goods and chattels is dollars, and that the said de- 
 fendant hath sustained damages by reason of the detention thereof 
 by the said plaintiff, over and above his costs and charges by him 
 
 about his defence in this behalf expended, to the sum of 
 
 dollars. 
 
 § 515. Verdict for defendant in replevin, he having a special prop- 
 erty in' the goods. 
 
 \Title.] 
 
 [As in the last form to the end, and then as follows :] And 
 the jurors aforesaid, upon their oath aforesaid, do further say, that 
 the said plaintiff is the general owner of the said goods and chattels, 
 and that the said defendant C. D. has a special property in the same 
 to the amount of dollars. 
 
 § 516. Verdict for defendant in trespass. 
 [Title.] 
 
 [As in § 490, to and including the words " say upon their 
 oath," and then as follows :] that the said defendant is not guilty 
 of the several trespasses in the said plaintiff's declaration in this 
 cause laid to his charge, in manner and form as the said plaintiff 
 hath in his said declaration complained against him. 
 
 § 517. Verdict for defendant in case. 
 [Title.] 
 
 [As in § 490, to and including the words '■^say upon their 
 oath," and then as follows :] that the said defendant is not guilty 
 of the premises in the plaintiff's declaration in this cause laid to his 
 charge, in manner and form as the said plaintiff hath in his said de- 
 claration complained against him. 
 
 § 518. Verdict for defendant in ejectment. 
 [Title.] 
 
 [As in § 490, to and including the words " say upon- their 
 oath," and then aS follows :] that the said defendant is not guilty 
 of unlawfully withholding from the said plaintiff the premises in 
 the said plaintiff's declaration in this cause mentioned and de- 
 scribed, in manner and form as the said plaintiff hath in his said 
 declaration complained against him. 
 
JMDGMENT AND ITS INCIDENTS. 157 
 
 § 519. Finding of the court upon a trial without jury. 
 [Titk.'] 
 
 The parties in tMs cause being in court by their respective 
 attorneys, ready for' trial, and the issue joined therein having been 
 brought on for trial before the court without a jury, and the said 
 court having heard the proofs and allegations of the parties, and 
 the arguments of counsel, after mature deliberation thereon, finds, 
 &c., [substantially as in the case of a verdict.] 
 
 CHAPTER VII. 
 
 DP THE JUDGMENT AND ITS INCIDENTS. 
 
 § 520. The result of the argument of the issue in law, or the 
 trial of the issue in fact, having been determined by the opinion or 
 verdict, the next proceeding in the action is the judgment which is 
 rendered by the court in favor of the prevailing party. The nature 
 and form of the -judgment will necessarily vary according to the 
 nature of the action and of the issue, the mode and result of its de- 
 cision, and the circumstances of the case in general. 
 
 § 521. The judgment is the sentence of the law, pronounced by 
 the court, upon the matters contained in the record. . It is the con- 
 clusion which naturally and regularly follows from the premises of 
 law and fact presented by the issue and decided on the argument or 
 trial ; and, when rendered for the plaintiff, is in fact the remedy, pre- 
 scribed by law for the redress of the injury complained of; the suit 
 or action being the means of obtaining and administering it. Al- 
 though awarded by the court, the judgment is not, however, con- 
 sidered as i1s determination or sentence, but the act of the law pro- 
 nounced and declared by it after due deliberation and inquiry ; and 
 hence the style of the judgment in a common law record always is, 
 not that it is decreed or resolved by the court, but that " it is con- 
 sidered that the plaintiff (or defendant) do recover," &c.(l) 
 
 § 522. Judgments are either interlocutory ot Jinal. Interlocu- 
 tory judgments are either such as are given in an intermediate stage 
 of the cause, upon some plea or proceeding which does not finally 
 
 (1) See 3 Black. Com. 395, 396. 
 
158 JUDGMENT AND ITS INCIDENTS. 
 
 determine the suit, or they are such as merely determine the right 
 of the plaintiff to recover, without ascertaining the amount to which 
 he is- entitled, and will require further proceedings to render them 
 oomplete.(l) Of the former description are some judgments for 
 the plaintiff upon pleas in abatement, and of the latter description 
 are judgments on default, and, in some cases, on demurrer. Hence 
 the style of the judgment is that the party " ought to recover," &c. 
 
 § 523. Final judgments are such as at once put an end to the lit- 
 igation, by declaring that the plaintiff either has, or has not, entitled 
 himself to recover the debt or damages he sues for ;(2) and they are 
 either rendered in the first instance, or as consequent to the entry 
 of interlocutory judgment. Judgments for the defendant (except 
 in the action of replevin) are always final. 
 
 § 524. When the issue has been decided in favor of the ^Zam- 
 iiff, the judgment (except on demurrer to a plea in abatement) is, 
 that the plaintiff do recover his damages, or his debt and damages, 
 to the amount assessed by the jury, ascertained by the court, or 
 acknowledged by the party, together with his costs and charges by 
 him about his suit expended. No nominal costs being assessed by 
 the jury, as under the common law practice, the costs of the party 
 embraced in his judgment are not "of increase," but are simply 
 the taxable costs of the suit ; and the judgment usually concludes 
 with an award of execution, omitting the formal clause of miseri- 
 cordia and capiatur, as they are technically called.(3) And if the 
 issue arose on a demurrer to a plea in abatement, the judgment is 
 merely that the defendant answer over, {respondeat ouster^) that is, 
 put in a more substantial plea.(4) 
 
 § 525. If, however, the issue have been decided in favor of the 
 defendant, when the issue has arisen on a pleading in bar, the judg- 
 ment is that the plaintiff take nothing by his writ, or declaration, 
 (or " hy his suit") and that the defendant do go thereof without 
 day ; and also that the defendant recover against the plaintiff the 
 costs and charges he has been put to in his defence.(5) 
 
 § 526. "So judgment record is made up, but upon the judgment 
 being entered in the journal of the proceedings of the court, and 
 read, and signed by the judge, the original papers filed in the cause 
 and kept by the clerk, together with the journal and other entries 
 
 (1) 3 Bl. Com. 396, 39T. (2) 3 Bl. Com. 398. 
 
 (3) See 3 Bl. Com. 398; Steph. PI. 110. (4) 3 Bl. Com. 303, 397. 
 
 (5) 3 Bl. Com. 399. 
 
ISSUES. 159 
 
 made in the books of the court, constitute the record in the case.(l) 
 Great care should, therefore, be taken that all the necessary and 
 proper entries are made in the progress of the cause, and in proper 
 form; and especially that the entry of the judgment be such as to 
 give the party in whose favor it is rendered precisely what the 
 determination of the issue entitles him to, and no more. 
 
 § 527. If issue has been joined on demurrer to a plea in abate- 
 ment, or on demurrer to a replication to such a plea, and the judg- 
 ment be for the plaintiff, it generally is that the defendant answer 
 over ; but when the defendant pleads in bar, and afterwards inter- 
 poses a plea in abatement puis darrien continuance, which is ad- 
 judged bad on demurrer, the plaintiff is entitled to judgment quod 
 recuperet.{2) Upon the rendition of a judgment that the defendant 
 answer over, unless it be entered in vacation, the defendant must 
 plead anew within ten days, or such further time as may be allowed 
 him for that purpose, and without notice ; but if rendered in vaca- 
 tion, notice must be given by the clerk in such manner as the 
 court shall direct.(3) 
 
 § 528. On all other issues in law arising upon the pleadings, 
 the judgment, if for the plaintiff , is that he do recover; and it is 
 either final or interlocutory, according to the form of the action. 
 In debt for a sum certain the judgment is always final, that the 
 plaintiff do recover his debt, damages and costs, and the plaintiff 
 may proceed at once to perfect it.(4) But in debt on bond for the 
 performance of covenants, and in assumpsit, covenant, case and 
 trespass, which are brought for the recovery of damages only, the 
 judgment is interlocutory — that the plaintiff ought to recover his 
 damages, without specifying the amount. In order to ascertain 
 the amount of the damages in such cases, further proceedings must 
 be had ; and these resemble in all respects the proceedings upon 
 an ordinary default. When the damages have been assessed, final 
 judgment may be entered for the amount. 
 
 § 529. If the issue was joined upon a demurrer to a plea in 
 abatement, or to the plaintiff's replication to such a plea, and the 
 judgment be for the defendant, such judgment is that the plaintifl's 
 writ, &c., he quashed. The effect of this judgment is to defeat the 
 present action, with costs to the defendant, leaving the plaintiff's 
 
 (1) 1 Mich. E. 56, 221 (2) 5 HiU, 213. 
 
 (3) Comp. L. 1000. (4) 2 Arch. Pr. 10. 
 
160 JUDGMENT AND ITS INCIDENTS. 
 
 right of action unimpaired. (1) In all other issues in law arising 
 upon the pleadings, the judgment for the defendant is that the 
 plaintiff take nothing .{nil capiat) by his writ (or declaration)^ and 
 that the defendant do go thereof without day ; and also that the 
 defendant recover his costs.(2) By this judgment, not only the 
 plaintiff's present suit, but his right of action, is entirely defeated. 
 The judgment for the defendant, being for costs only (except in 
 actions of replevin), is a final judgment.(3) 
 
 As we have already observed, the court, on overruling a de- 
 murrer, will give the party leave to wilhdraiu it, and plead over on 
 payment of costs ; and also, on deciding a demurrer to be well 
 taken, the court usually allows the opposite party to amend the 
 pleading demurred to upon the same terms. But these amend- 
 ments rest in the discretion of the court. 
 
 § 530. If there is an issue of fact and an issue of law, and the 
 issue of fact be first tried, and a verdict for the plaintiff, and judg- 
 ment is afterwards given against the plaintiff on the demurrer, leave 
 to amend will be given on his relinquishing the verdict and pay- 
 ing all costs subsequent to the joining of the issue; but when, in 
 such a case, judgment on demurrer is against the defendant, after 
 verdict for the plaintiff, leave to amend will not be granted.(4) 
 And when there are issues of law and issues of fact, and the plain- 
 tiff proceeds to the trial of the issues of fact before disposing of the 
 issues of law, and the issues of fact are found against him, and the 
 issues of law are afterwards decided against him, leave to amend 
 will not be granted' to him.(5) 
 
 § 531. If the demurrer be decided in favor of the plaintiff, and 
 there is still an issue of fact to be tried, the plaintiff should suspend 
 proceedings on the demurrer after the determination of it in his 
 favor, and bring on the issue for trial. On such trial, if the former 
 judgment was interlocutory, the court or jury, besides determining 
 the issues of fact, must also assess the plaintiff's damages on the 
 demurrer.(6) But if the issue of law which has been determined 
 go to the whole cause of action, the plaintiff may enter a nolle 
 prosequi as to the issue of fact,(7) and proceed to have his damages 
 ascertained upon the judgment on the demurrer; or, if the judg- 
 ment were final, he may proceed to perfect it immediately.(8) And 
 
 (1) 1 Burr. Pr. 250. (3) l AJoh. Pr. 225 ; 2 id. 11. 
 
 (3) 2 Arch. Pr. 11. (4) 19 "WendeU, 285. 
 
 (5) 1 Wendell, 126; 18 J. E. 28; 21 "WendeU, 255. (6) 19 J. E. 311. 
 
 (7) 9 'Wendell, 500. (8) 2 Arch. Pr. 11. 
 
JUDGMENT. 161 
 
 if the issue of law be determined in favor of the defendant, and it 
 goes to bar the whole cause of action, if there be issues of fact 
 remaining untried, they need not be tried.(l) 
 
 § 532. Judgment upon a verdict for the plaintiff on an issue of 
 fact, whether the issue has been joined upon a pleading in abate- 
 ment or in bar, is that he recover, according to the nature of the 
 action ; if it be in debt for a specific sum, the precise amount sued 
 for, with nominal damages and costs of suit ; if in assumpsit, cove- 
 nant, trespass, or other action sounding in damages, the amount of 
 damages assessed by the jury, with costs.(2) In debt on bond for 
 the performance of covenants, or the breach of any condition other 
 than the payment of money, the judgment is that the plaintiff re- 
 cover the penalty or penal sum forfeited, with costs ; and a fur- 
 ther judgment that he have execution to collect the amount of the 
 damages found by the court or jury. (3) If a set-off has been 
 established by the defendant, to an amount less than the plaintiff's 
 debt or demand, the plaintiff is entitled to a judgment for the resi- 
 due only.(4) 
 
 § 533. In ejectment, the judgment for the plaintiff is that he 
 recover the possession of the premises, &c., with costs.(5) 
 
 In replevin, if the court or jury find that either of the parties has 
 only a lien upon, or special property in the goods, and is not the 
 general owner, the court will render such judgment as shall seem 
 j ast between the parties. And if the property was not replevied 
 and delivered to the plaintiff, he is entitled, in addition to his dam- 
 ages and costs, to a further judgment that such goods and chattels' 
 be replevied and delivered to him without delay ; or, in default 
 thereof, that he recover from the defendant the value,, as the same 
 shall have been assessed. (6) 
 
 § 534. If issue of fact has been joined on a plea in abatement 
 and the plea is found to be true in fact, the judgment in any form 
 of action is that the plaintiff's- writ, &c., be quashed, and that the 
 defendant recover costs.(7) Bnt if issue has been taken on a plead- 
 ing in bar, and a verdict pass for the defendant, the judgment is 
 that the plaintiff take ' nothing by his writ, (or, declaration,) and 
 
 (1) 1 Saund. 80, note 1 ; 14 Wendell, 607. 
 
 (2) 1 Arch. Pr. 225; 2 id. 4; 3 "Wendell, 258; 6 id. 649; 19 id. 627. 
 
 (3) Comp. L. 1221. (4) Comp. L. 1152. 
 (5) Oomp. L. 1236. (6) Comp. L. 1336. 
 (7) 1 Burr. Pr. 269. 
 
162 JUDGMENT AND ITS INCIDENTS. 
 
 that the defendant do go thereof without day ; and also that he 
 recover his costs against the plaintifF.(l) 
 
 If notice of set-off has been given by the defendant, and an 
 amount equal to the plaintiff's demand proved at the trial, the 
 judgment is that the plaintiff take nothing by his action ; and if a 
 balance be found due the defendant, from the plaintiff, he is enti- 
 tled to judgment for the amount of such balance.(2) But no such 
 judgment can be rendered against the plaintiff, when the contract 
 which was the subject of the suit shall have been assigned before 
 the commencement of the suit, nor for any balance due from any 
 other person than the plaintiff. (3) 
 
 § 535. After the giving of the verdict or the finding of the 
 court, the parties have two days in term time to move for a new 
 trial, or in arrest of judgment; (4) and if a motion for a new trial 
 be made and overruled, two days are allowed for moving in arrest 
 of judgment after the motion is overruled.(5) A practice, how- 
 ever, very generally prevails of entering the final judgment at once 
 upon the verdict of the jury or finding of the court, subject, how- 
 ever, to be set aside if a motion for a new trial, or in arrest, be made 
 and granted. In this case, no proceeding is had upon the judgment 
 until the time for moving has expired ; and if a motion is made, 
 until it is disposed of 
 
 § 536. Taxation of the costs follows the entry of judgment there- 
 for. When costs are given to the prevailing party, the judgment 
 is that he recover his costs to le taxed, and such costs, being after- 
 wards taxed by the proper officer, and the taxed bill placed on file, 
 are included in the execution. 
 
 Costs may be taxed by any justice or clerk of the supreme court, 
 circuit court commissioners, and clerks of the circuit courts respect- 
 ively, and upon the like notice as is required in the supreme 
 court. (6) The usual practice is to have them taxed by the clerk of 
 the circuit court. 
 
 In order to have the costs properly taxed, the following direc- 
 tions should be observed : Draft a bill of the costs according to 
 approved precedents, and the rate of fees allowed by law. Upon 
 a copy of this bill indorse a notice directed to the opposite attorney, 
 or party, specifying the time and place, when and where, and the 
 officer before whom the bill will be taxed. This must be a notice of 
 
 (1) 1 Arch. Pr. 225. (2) Comp. L. 1152. 
 
 (3) Comp. L. 1162. (4) Sules 31, 32. 
 
 (6) Bulo 32. (6) Comp. I.. 1461. 
 
COSTS. 163 
 
 at least two days, and one day in addition for every twenty miles 
 between the residence of the attorney or party served, and the 
 place of taxation ; but it must not in any case exceed ten days ; 
 and it must be accompanied by a copy of the affidavit to be read 
 in support of the bil].(l) 
 
 § 537. The bill should specify the fees for each particular ser- 
 vice rendered by any officer ; and when there are charges in the 
 bill for the attendance of any witness, or for copies or exemplifica- 
 tions of documents or papers ; or for any other disbursements ex- 
 cept to officers for services rendered, such charges for witnesses 
 cannot be taxed without an affidavit] stating the distance they 
 respectively travelled, and the days they actually attended ; and 
 such charges for copies cannot be taxed without an affidavit that 
 such copies were actually and necessarily used, or necessarily ob- 
 tained for use ; nor can such disbursements be allowed without an 
 affidavit specifying the items thereof particularly, nor unless ttey 
 appear to have been necessary, and reasonable in amount.(2) 
 
 § 538. At .the time specified in the notice, the bill of costs, 
 with the affidavit, when necessary, should be presented to the taxing 
 officer, who is required to examine the bill, whether the taxation 
 be opposed or not, and be satisfied that the items charged in the 
 bill are correct and legal, and to strike out all charges for services 
 which, in his judgment, were not necessary to be performed ; (3) 
 after which he affixes his signature to the certificate at the bottom, 
 filling it up with the amount as allowed, and the date of taxa- 
 tion. If the costs are not taxed on the day specified in the notice^, 
 and no one appear in behalf of the opposite party, they may be 
 taxed on a subsequent day without further notice ;(4) but the tax- 
 ation must be by the officer named in the notice.(5) 
 
 § 539. If either party is dissatisfied with the taxation, he may 
 appeal to the court on a motion for reiaxation.{Q) But this motion' 
 must be made without delay.(7) After the lapse of two terms the- 
 court will not interfere, though there be objectionable items, nor- 
 will the court review it upon a point not made before the taxing 
 officer ;(8) nor will it, in any case, pass upon disputed items in a bill 
 of costs, before taxation. (9) 
 
 (1) Supreme Court Eule 51. i 
 
 (2) Comp. L. 1468 ; 4 Hill, 595 ; 3 Hill, 45V ; il9 Wendell, 82; 6 Hill, S1G. 
 
 (3) Comp. L. 1467, 1468. (4) 1 Johns. Gas. 32. 
 (5) 2 "Wendell, 252. (6) 15 J. E. 238. 
 (1) I Cow. 49. (8) 1 Cow. 591. (9) 2 Wend. 263. 
 
164 JUDGMENT AND ITS INCIDENTS. 
 
 Costs are made up of items embracing the services performed by 
 tie clerks, sheriffs and witnesses, and other necessary disbursements 
 in the cause, with the costs in addition thereto given by rule of 
 court ; and they are regulated in part by statute, and in part by the 
 rules prescribed by the supreme court in pursuance of the power 
 conferred upon it by statute.(l) 
 
 § 540. The general rules prescribed by the statute are, that if 
 the plaintiff recover judgment by default, upon confession, verdict, 
 demurrer or otherwise, he shall recover his costs : 1. In all actions 
 of ejectment, or for waste, or private nuisance ; and in all proceed- 
 ings to recover the possession of land forcibly entered, or forcibly 
 or otherwise unlawfully detained ; 2. In all actions to which the 
 title to lands or tenements, or of right of way, or a right by prescrip- 
 tion or otherwise, to any easement in any land, or to overflow the 
 same, or to do any other injury thereto, shall have been put in 
 issue by the pleadings, or shall have come in question on the trial 
 of the cause; 3. In suits and proceedings upon writs of .scire yam«, 
 audita querela, prohibition, or information in the nature of a jmo 
 warranto ; 4. In all actions for the recovery of any debt or dama- 
 ges, or for the recovery of penalties or forfeitures, in cases where 
 such actions are not cognizable before a justice of the peace, and in 
 aU actions of replevin ; 5. In all actions where the plaintiff shall 
 
 .recover any sum, if it appear that his claim, as established at the 
 trial, exceed two hundred dollars, and the same was reduced by 
 
 -set-off; 6. In actions for trespass upon land, or for taking personal 
 
 (property, where the court before whom the same is tried shall cer- 
 tify in ifts minutes, or the jury by whom the damages shall be as- 
 
 , sessed, &nd and return in their inquisition that such trespass was 
 willful and malicious ; and, 7. In actions for a false return, or for 
 
 : any other malfeasance or misfeasance by any ministerial or judicial 
 officer in sflich capacity or of&ce ; except such actions against con- 
 
 . stables or ostiier ministerial officers, touching their duties upon process 
 in civil actioms issued by a justice of the peace.(2) But if the plain- 
 
 ;tiff, in any action for assault and battery, or false imprisonment, or for 
 
 . slanderous words, or for libel, or for damages occasioned by the erec- 
 tion of any dam upon the lands of the defendant for manufacturing 
 or milling purposes, and flowing the plaintiff's land, recover less than 
 fifty dollars, he can recover no more costs than damages.(3) 
 
 § 541. When there are apveral issues in any case, and a verdict 
 is rendered for the plaintiff on one or more, and for the defendant 
 
 ,(1) Comp. L..988. (2) Comp. L. 1461, 1462. (3) Comp. L. 1464. 
 
COSTS. 165 
 
 on another, if tlie plaintiff recover judgment upon the whole record, 
 costs are awarded as follows : 1. "When the substantial cause of 
 action was the same in each issue, the plaintiff recovers costs on 
 those issues which are found for him, and is not liable to the de- 
 fendant for the costs of the issue found for the defendant ; 2. When 
 there are two or more distinct causes of action in separate counts, 
 the plaintiff is entitled to costs on those issues which are found for 
 him, and the defendant on those which are found in his favor.(l) 
 
 In cases brought into a circuit court by appeal from a justice's 
 court, costs are awarded as to the court may seem just in view of 
 the particular circumstances of the case.(2) 
 
 § 542. When a suit or proceeding is instituted in the name of 
 the people on the relation of a citizen, such relator is entitled to and 
 liable for costs in the same cases, and to the same extent, as if such 
 suit or proceeding had been instituted in his own name.(3) 
 
 In general, a payment and acceptance of the principal sum and 
 interest, at any time pending the suit, extinguishes all claim to 
 costs, which are but an incident of the debt. To prevent such a 
 result, the practice of receiving payment specially, or in deposit, to 
 apply when the costs are afterwards paid, is generally adopted. So 
 when a partial payment is made, which, if not qualified, would re- 
 duce the recovery to a sum that would not entitle the plaintiff to 
 costs.(4) If a suit be compromised between the parties, and nothing 
 be said about costs, each party pays his own. (5) 
 
 § 543. In all actions and proceedings in which the plaintiff 
 would be entitled to costs upon a judgment rendered in his favor, 
 if, after the appearance of the defendant, such plaintiff be non- 
 suited, discontinue his suit, be non-prossed, or judgment pass 
 against him on verdict, demurrer, or otherwise ; or in case the 
 plaintiff recover judgment, but not enough to entitle him to costs; 
 the defendant is entitled to judgment for costs.(6) 
 
 § 544. When several persons are made defendants in any suit 
 or proceeding, or in any action in which the plaintiff, upon a re- 
 covery, would be entitled to costs, and one or more of them is 
 acquitted by verdict on the trial, or by judgment upon plea in 
 abatement, or on demurrer, or by the plaintiff's discontinuing as to 
 
 (1) Oomp. L. 1464. (2) Comp. L. 1085. 
 
 (3) Oomp. L. 1465. (4) 2 HUl, 121 ; 5 ■Wend. 133 ; 18 id. 560. 
 
 (6) 1 Gaines' B. 66 ; 4 J. E. 268. (6) Comp. L. 1462. 
 
166 JUDGMENT AND ITS INCIDENTS. 
 
 such defendant, every person so acquitted is entitled to his costs of 
 suit, in like manner as if judgment had been rendered in favor of 
 all the defendants.(l) But if such person be so acquitted in any 
 action brought for the recovery of land, or the possession thereof, 
 or for nuisance, waste, trespass, or trespass on the case for any non- 
 feasance or misfeasance, and if the judge or court before whom the 
 trial is had or such judgment given, shall certify in the minutes of 
 the court that there was reasonable cause for making the person 
 so acquitted a defendant in such action, such person is not entitled 
 to recover costs, and none can be recovered against him.(2) 
 
 § 545. If, in any action founded upon contract, the plaintiff fail 
 to recover judgment against one of several defendants upon the 
 trial, or if judgment on a pl^a in abatement, or on demurrer, be 
 rendered in favor of one of several defendants ; or if, by the plain- 
 tiff's discontinuing as to such defendant, he be acquitted, such de- 
 fendant is not entitled to recover costs, unless a certificate be given 
 by the judge or court before whom the trial was had or judgment 
 given, and entered in its minutes, that such defendant was un- 
 reasonably and unnecessarily made a party to the action.(3) 
 
 § 546. Single costs, and one half thereof in addition, are given 
 to the defendant in whose favor judgment is rendered, in the fol- 
 lowing cases : 1. In actions against public officers appointed under 
 the authority of this state, or elected by the people ; or against any 
 person specially appointed, according to law, to execute the duties 
 of such public of&cer, for or concerning any act done by such offi- 
 cer or person by virtue of his office, or for or concerning the 
 omission by such officer or person to do any act which it was his 
 official duty to perform ; 2. In actions against any other person for 
 doing any act by the commandment of such officers or persons, or in 
 their aid or assistance, touching the duties of such office or appoint- 
 ment ; 3. In actions against any person for making any sale, or 
 doing any other act by authority of any statute of this state.(4) 
 
 § 547. If judgment be rendered for the defendant on the whole 
 record, the costs of the issues which are found for the plaintiff are 
 not allowed to either party. "When judgment is rendered in favor of 
 a defendant upon general demurrer to one or more counts in a de- 
 claration, and the plaintiff has judgment on other counts, on de- 
 
 (1) 12 WendeU, 236; 6 HiU, 265; 3 Wendell, 326. 
 
 V - L. 1462, 1463. (3) Id. 1463. 
 
 (4) Id. 1463, 12 Wendell, 228 ; 4 id. 201 ; 1 id. 236 ; 9 id. 466. 
 
COSTS. 167 
 
 murrer, on verdict, or by default, the defendant is allowed his costs 
 on the judgment in his favor.(l) When judgment is rendered in 
 favor of a defendant on a plea of misnomer in abatement, no costs 
 are allowed to either party.(2) 
 
 In all civil suits and proceedings by or in the name of the peo- 
 ple of this state, instituted by any officer duly authorized for that 
 purpose, and not brought on the relation, or for the use of any 
 citizen, or upon any penal statute, the people are liable for costs in 
 the same cases, and to the same extent as if such suit or proceeding 
 was instituted by an individual.(3) 
 
 * 
 
 § 548. When an action is brought in the name of another by 
 an assignee of any right of action, or by any person beneficially 
 interested in the recovery in such action, such assignee or person 
 is liable for costs in the same cases and to the same extent in which 
 a plaintiff would be liable ; and the payment of such costs may be 
 eiiforced by attachment in all cases when judgment is not required 
 to be rendered for them against such assignee or person inter- 
 ested.(4) And such assignee or person is bound to indemnify the 
 plaintiff on the record, and will be directed to pay the costs upon 
 his application.(5) And so, also, an assignee is liable to the de- 
 fendant for costs, though the assignment be made pending the suit, 
 if he afterwards proceed thereia;(6) and it has been held that he 
 was liable for those which had accrued before, as well as those , 
 which may arise after the assignment. (7) 
 
 If a suit be commenced by attachment against a foreign corpo 
 ration, vexatiously and without just cause, the court will award 
 double costs against the plaintiff. (8) When a party is entitled to 
 double or treble costs, they can be obtained only by motion to the 
 court.(9) 
 
 § 549. There are several other incidents connected with the judg- 
 ment which may properly be considered here. In actions against 
 two or more persons jointly indebted upon any joint obligation, 
 contract, or liability, if the process issued against all the defend- 
 ants was served upon either of them, the judgment, if rendered in 
 favor of the plaintiff, must be against all the defendants, in the 
 
 (1) Comp. L. 1464; 9 Wend. 445. (2) Comp. L. 1464. 
 
 (3) Comp. L. 1465. (4) Comp. L. 1466; 19 "Wend. 151; 20 id. 630. 
 
 (5) 1 Wendell, 497. (6) 5 Cowen, IT. 
 
 (t) 10 Wendell, 622 ; 20 id. 630. (8) Comp. L. 1291. 
 
 (9) 4 Wendell, 216. 
 
163 JUDGMENT AND ITS INCIDENTS. 
 
 same manner as if all had been served with process, (1) even if the 
 defendant not served be an infant.(2) But the execution cannot be 
 served upon the person, nor levied upon the sole property of any 
 defendant not served with the writ or declaration by which the 
 suit was commenced, and who did not appear therein ; and against 
 such defendant, the judgment is evidence only of the extent of the 
 plaintiff's demand, after his liability has been established by other 
 evidence. (3) 
 
 § 550. In actions against the several parties to a hiU of exchange 
 or promissory note, judgment may be rendered fgr the plaintiff 
 against one or more of the defendants, and in favor of one or more, 
 of the defendants against the plaintiff, according as the rights and 
 liabilities of the respective parties shall appear, either upon confes- 
 sion, default, or on trial.(4) 
 
 Judgments against executors and administrators, instead of con- 
 taining an award of execution, are certified to the probate court to 
 be paid in the course of administration, in "the same manner as 
 other claims allowed agqinst the estate ;(5) except in those cases 
 where costs are recovered against an executor or administrator, in 
 which case execution is awarded against him • therefor as for his 
 own debt; (6) and no execution can in any case be issued against 
 the estate of a deceased person, when commissioners have been 
 appointed to examine and allow claims against such estate, until 
 the expiration of the time limited by the probate court for the pay- 
 ment of debts. (7) 
 
 § 551. Amendments of the judgment were allowed at common 
 law to be made, either in form or substance, at any time during 
 the term of which it was signed. (8) But it was formerly held not 
 to be amendable after that term, except as allowed by statute.(9) 
 The courts now exercise a liberal discretion in allowing amend- 
 ments at any stage of the proceedings, when required by substan- 
 tial justice ; and the judgment has been allowed to be amended in 
 favor of an executor when a wrong judgment was entered against 
 him, even after error brought ;(10) when judgment was entered in 
 debt on bond for the penalty as damages ;(11) and when the defend- 
 
 (1) Comp. L. 1219 ; 6 Wendell, 500 ; 10 id. 630 ; 5 HiU, 3t. 
 
 (2) 15 Wendell, 64; 11 id. 612. (3) Comp. L. 1220. 
 
 (4) Comp. L. 1148. (5) Comp. L. 889, 891, 1162. 
 
 (6) Comp. L. 901. (T) Comp. L. 889. 
 
 (8) 3 Bl. Com. 407. (9) 1 Wils. 61 ; 4 Burr. E. 1988. 
 
 (10) 1 T. R. 783; 1 Cowen, 189; 18 J. E. 502. (11) 2 Arch. Pr. 276. 
 
COSTS. 
 
 169 
 
 ant was found not guilty as to part, and no judgment was entered 
 for him as to that part.(l) 
 
 § 552. So, when a verdict was given for more damages than 
 were laid in the declaration, and judgment entered accordingly, 
 the court allowed the judgment to be amended, and a remittitur 
 entered for the excess, even after error brought.(2) An amend- 
 ment of the judgment has also been allowed by adding the name 
 of a defendant,(3) and by striking out the entry of verdict and 
 judgment, and entering in their stead a judgment of non-suit.(4) 
 So, when the clerk made a mistake in his assessment of damages, 
 an amendment was allowed even after the judgment had been 
 paid and satisfaction entered. (5) But when an imperfect entry 
 was made, not containing the substantial requisites of a judgment 
 between the parties, it was held that after ten years had elapsed 
 the court had no power to make it a judgment by amendment.(6) 
 
 § 553. In the allowance of these amendments, courts are gov- 
 .erned by the general principle of promoting substantial justice be- 
 tween the parties, and payment of the coats incident to the amend- 
 ment is always annexed as a condition to granting it.(7) No 
 record is allowed to be amended or impaired by the clerk or other 
 officer of any court, or by any other person Avithont the order of 
 the court. (8) 
 
 When a verdict has been rendered, the plaintiff cannot thereaf- 
 ter be non-suited, but judgment is required to be rendered upon the 
 matter found by the verdict ; and no judgment can be set aside for 
 irregularity, on motion, unless such motion be made within one 
 year after the time when it was rendered.(9) 
 
 § 554. In cases brought into the circuit court from the judg- 
 ment of a justice of the peace, if one party recover any debt or 
 damages, and costs be awarded to the other party, the court is 
 required to set off such costs against the debt or damages so recov- 
 ered, and render judgment for the balance.(lO) In such cases, after 
 the verdict of the j ury or the finding of the court has been entered, 
 and befor ' the entry of the judgment, the costs should be ascer- 
 tained, ana the taxed bill filed with the clerk, unless the court, at 
 the time of awarding costs, determines the amount so awarded. 
 
 (1) 2 Stra. 786. (2) 4 M. & S. 94 ; 1 H. BL 643. 
 
 (3) 14 J. R. 219. (4) \1 J. E. 85. 
 
 (5) 19 J. R. 244. (6) 3 Mich. R. 84 ; 3 McLean, 486. 
 
 (7) 1 Burr. Pr. 279. (8) Comp. L. 1202. 
 
 (9) Id. 1207. (10) Id. 1085. 
 
170 JUDGMENT AND ITS INCIDENTS. 
 
 § 555. In treating of judgments, we have thus far supposed 
 them to be rendered only upon the decision of an issue, either in 
 fact or in law. There are many cases, however, where judgment 
 may be given on the default of one or the other of the parties, as 
 well before as after an issue joined. Thus, if the plaintiff, after 
 commencing his action, neglect to declare in due time, or to reply 
 to the defendant's pleading when necessary, or to join in demurrer 
 when required, judgment of non pros, will be given against him. 
 So, if the plaintiff discontinue his suit or enter a nolle prosequi or 
 cassitur billa, judgment is at once given for the defendant, accord- 
 ing to the nature of the case. These are all final judgments, and 
 for costs only, except in certain actions of replevin. 
 
 § 556. On the other hand, if the defendant, before the plaintiff 
 declares, choose to confess the action by warrant of attorney, or, 
 after appearing, neglect to plead, or to rejoin when necessary, or to 
 plead anew after judgment of respondeat ouster, within the time 
 limited for that purpose ; or if, after the plaintiff has declared, he 
 choose to confess the action by cognovit, or, after pleading, relin- 
 quishing his defence by relicta, in each of these cases the plaintiff is 
 entitled to judgment, which is final, except on default for not plead- 
 ing, rejoining, &c. 
 
 § 557. There are also cases in which judgment will be given 
 in consequence of the default of the plaintiff in not bringing the 
 issue to trial, or not prosecuting the trial to effect according to the 
 course and practice of the court. Thus, after an issue of fact has 
 been joined, and regularly noticed and placed upon the calendar 
 for trial, if the plaintiff make default in not proceeding to trial, or 
 f on the trial the plaintiff appear in person and voluntarily with- 
 draw his suit, {retraxit,) judgment will pass for the defendant ; or 
 f, during the trial, the plaintiff voluntarily submits to a non suit, 
 the progress of the trial being in such case effectually suspended, 
 he defendant is entitled to a judgment of non-suit. 
 
 § 558. The details of the practice in cases of judgments by 
 default, will be more appropriately treated of in another portion 
 of this work. They are referred to here for the purpose of pre- 
 senting a general and connected view of the different judgments to 
 which the parties respectively may become entitled under the 
 various circumstances that may occur in the progress, or upon the 
 -ujerminatio, ofn a an .z 't The following precedents includes 
 most of the forms of journal entries of judgments which will 1)3 
 
FOEMS OF JUDGMENTS. 171 
 
 required in practice ; and, witli snch variations as will readily sug- 
 gest themselves to the practitioner, may be easily adapted to every 
 case that may arise. 
 
 § 559. Judgment of respondeat ouster on demurrer to a plea in 
 abatement. 
 
 [Titk^ 
 
 This cause having been duly brought to argument upon 
 the demurrer of the said plaintiff to the defendant's plea, and all 
 and singular the premises being seen by the court now here and 
 fully understood, and due deliberation being thereupon had, and 
 it appearing to the said court that the plea of the said defendant, 
 and the matters therein contained, are not sufficient in law to 
 quash the said writ [or " declaration "J of the said plaintiff ; 
 therefore, it is considered that the said defendant do further an- 
 swer [or " answer over "J the said plaintiff to his writ and declara- 
 tion [or " to his declaration "] aforesaid. 
 
 § 560. Judgment for plaintiff in debt, on demurrer to declaration. 
 \Title.] 
 
 This cause having been duly brought to argument upon the 
 demurrer of the said defendant to the plaintiff's declaration, and 
 all and singular the premises being seen and by the court now 
 here fully understood, and due deliberation being thereupon had, 
 and it appearing to the said court that the declaration of the said 
 plaintiff, and the matters therein contained, are sufficient in law 
 for the said plaintiOf to have and maintain his aforesaid action 
 thereof against the said defendant ; therefore, it is considered 
 that the said plaintiff do recover against the said defendant his 
 
 debt to the sum of dollars, together with his costs and charges 
 
 by him about his suit in this behalf expended to be taxed ; and 
 that the said plaintiff have execution thereof. 
 
 § 561. Judgment for plaintiff in assumpsit, on demurrer to decla- 
 ration. 
 
 [Title.] 
 
 [As in last form to entry of judgment, and then as follows :] 
 "Wherefore, the said plaintiff ought to recover, against the said 
 defendant, his damages on occasion of the premises. And the 
 said damages having been duly assessed at the sum of dol- 
 lars, over and above his costs and charges by him about his suit in 
 this behalf expended ; therefore, it is considered that the said 
 plaintiff do recover against the said defendant his damages afore- 
 said, together with his costs and charges aforesaid to be taxed ; 
 and that the said plaintiff have execution thereof. 
 
172 JUDGMENT AND ITS INCIDENTS. 
 
 § 562. Order on overruling demurrer to declaration, allowing de- 
 fendanl to withdraw demurrer and plead over. 
 
 [Title.] 
 
 [As in § 560 to entry of judgment, and then as follows :] 
 and thereupon, on motion of G. H., attorney for the said defend- 
 ant, it is ordered that the said defendant have leave to withdraw 
 his said demurrer, and to plead to the said plaintiff's declaration 
 within ten days, upon paying to the said plaintiff his costs occa- 
 sioned by the said demurrer, including an attorney's fee of [ten] 
 dollars. 
 
 § 563. Order allowing amendment of declaration on sustaining 
 demurrer thereto. 
 
 [Title.] 
 
 This cause having been duly brought to argument upon the 
 demurrer of the defendant to the said plaintiff's declaration, and 
 all and singular the premises being seen and by the court now here 
 fully understood, and due deliberation being thereupon had, and 
 it appearing to the said court that the declaration of the said 
 plaintiff, and the matters therein contained, are not sufficient in 
 law for the said plaintiff to have or maintain his aforesaid action 
 thereof against the said defendant ; thereupon, on motion of E. F., 
 attorney for the said plaintiff, it is ordered by the court now here 
 that the said plaintiff have leave to amend his said declaration 
 within ■ — ' days, upon paying to the said defendant his costs of the 
 said demurrer, including an attorney's fee of [ten] dollars. 
 
 § -564. Judgment for plaintiff on demurrer to declaration in re- 
 plevin, when the goods have been replevied. 
 
 [Title.] 
 
 [As in § 560 to the entry of judgment, and then as follows c] 
 "Wherefore, the said plaintiff ought to recover against the said 
 defendant his damages on occasion of the unlawful detention of 
 the goods and chattels in the said plaintiff's declaration specified; 
 and the said damages having been duly assessed at the sum of 
 
 ' dollars over and above his costs and charges by him about 
 
 his suit in this behalf expended ; therefore, it is considered that 
 the said plaintiff do recover against the said defendant his damages 
 aforesaid, together with his costs and charges aforesaid to be taxed ; 
 and that the said plaintiff have execution thereof. 
 
 § 565. The like when goods were not replevied. 
 [Title.] 
 
 [As in § 560 to the entry of judgment, and then as follows :] 
 Wherefore, the said plaintiff ought to recover against the said 
 defendant as well the goods and chattels in his declaration speci- 
 fied, as his damages on occasion of the unlawful detention thereof; 
 and the value of the said goods and chattels having been assessed 
 
FORMS OF JUDGMENTS. 173 
 
 at the sum of dollars, and the said damages at the sum of - 
 
 dollars, over and above his costs and charges by him about his suit 
 in this behalf expended; therefore, it is considered that the said 
 plaintiff do recover against the said defendant his damages afore- 
 said, together with his costs and charges aforesaid to be taxed ; and 
 that the said plaintiff have execution thereof And it is further 
 considered that the goods and chattels aforesaid be replevied and 
 delivered to the said plaintiff without delay, or, in default thereof, 
 
 that the said plaintiff do recover against the said defendant 
 
 dollars, being the value of the said goods and chattels so assessed, 
 according to the form of the statute in such case made and pro- 
 vided. 
 
 § 566. Judgment for plaintiff on demurrer, after an issue of fact 
 tried. 
 
 {Title.^ 
 
 This cause having been duly brought to argument upon the 
 demurrer of the said defendant to the first count of the said plain- 
 tiff's declaration, the issue of fact joined between the parties hav- 
 ing been heretofore tried, and the jury who tried the same [or 
 " the court "J having found that the said defendant did undertake and 
 promise in manner and form as the said plaintiff hath in his second 
 [and subsequent] counts of his said declaration complained against 
 him, and assessed the damages of the said plaintiff on occasion 
 
 thereof at dollars, over and above his costs and charges by 
 
 him about his suit in that behalf expended ; and as to the issue 
 so joined between the parties, whereon they have put themselves 
 upon the judgment of the court, the said jurors [or " court"] having 
 assessed the damages of the said plaintiff upon condition that it 
 should happen that judgment be thereupon given for the said plain- 
 tiff, by reason of the not performing the promises and undertakings 
 in the first count of the said plaintiff's declaration mentioned, at 
 
 the sum of dollars. And hereupon all and singular the 
 
 premises aforesaid, whereon the parties aforesaid have put them- 
 selves upon the judgment of the court, being seen and by the court 
 now here fully understood, and due deliberation being thereupon 
 had, and it appearing to the court now here that the said first count 
 of the said declaration, and the matters therein contained, are suf- 
 ficient in law for the said plaintiff to have and maintain his afore- 
 said action thereof against the said defendant ; therefore, it is con- 
 sidered that the said plaintiff do recover against the said defendant 
 
 his damages aforesaid in form aforesaid assessed, to the sum of' 
 
 dollars, together with his costs and charges aforesaid to be taxed ; 
 and that the said plaintiff have execution thereof. 
 
 § 567. Judgment for defendant on demurrer to declaration. 
 [Title.] 
 
 [As in § 560 to and including the words " thereupon had,' 
 and then as follows :] and it appearing to the said court that the 
 declaration of the said plaintiff, and the matters therein contained, 
 
174 JUDGMENT AND ITS INCIDENTS. 
 
 are not sufficient in law for the said plaintiff to have or maintain 
 his aforesaid action thereof against the said defendant ; therefore 
 it is considered that the said plaintiff take nothing by his suit, and 
 that the said defendant do go thereof without day. And it is fur- 
 ther considered that the said defendant do recover against the said 
 plaintiff his costs and charges by him about his defence in this be- 
 half expended to be taxed ; and that the said defendant have ex- 
 cution thereof. 
 
 §568. Judgment for defendant on demurrer to plea in abatement. 
 [Title.] 
 
 [As in § 560 to and including the words " thereupon had," 
 and then as follows :] and it appearing to the said court now here 
 that the plea of the said defendant by him pleaded in abatement, 
 and the matters therein contained, in manner and form as the same 
 are by him pleaded, are sufficient in law to quash the said plain- 
 tiff's writ [or " declaration "] ; therefore, it is considered that the 
 said writ (or ^^declaration"] of the said plaintiff be quashed, and 
 that the said defendant do go thereof without day. An(J it is fur- 
 ther considered, &c., [as in the last preceding form.] 
 
 JUDGMENTS ON VERDICT. 
 
 § 569. Judgment on verdict for plaintiff in assumpsit, case, cove- 
 nant and trespass. 
 
 [Title.] 
 
 The jury by whom the issue joined in this cause was tried, 
 having rendered a verdict therein in favor of the plaintiff and against 
 the defendant, and having assessed the damages of the said plaintiff 
 
 on occasion of the premises at the sum of dollars, over and 
 
 above his costs and charges by him about his suit in that behalf 
 expended ; therefore, it is considered that the said plaintiff do 
 recover against the said defendant his damages by the jurors afore- 
 said in form aforesaid assessed [and the interest thereon from the 
 
 rendition of the said verdict, amounting to the sum of dollars], 
 
 together with his costs and charges aforesaid to be taxed [or, if the 
 
 costs have been taxed before judgment, "and also dollars for 
 
 his costs and charges aforesaid, which said damages (interest), costs and 
 charges in the whole amount to the sum of dollars."] 
 
 § 570. Judgment on verdict for plaintiff in dd)t. 
 [Title.] 
 
 The jury by whom the issue joined in this cause was tried, 
 having rendered a verdict therein, in favor of the plaintiff and 
 against the defendant, for the sum of dollars of debt, and hav- 
 ing assessed the damages of the said plaintiff on occasion of the 
 detention thereof at six cents over and above his costs and charges 
 
FORMS OF JUDGMENTS. 175 
 
 by him about bis suit in this behalf expended ; therefore, it is 
 considered that the said plaintiff do recover against the said de- 
 fendant his debt aforesaid, and also his damages by the jurors 
 aforesaid, in form aforesaid assessed, together with his costs and 
 charges aforesaid to be taxed; and that the said plaintiff have exe- 
 cution thereof. 
 
 § 571. The Wee ivhen breaches have been assigned, and damages 
 assessed thereon. 
 
 [Title.] 
 
 [As in the last form to the entry of judgment, and then as 
 follows:] and the said jurors having also assessed the damages of 
 the said plaintiff, by reason of the several breaches by him in his 
 
 declaration assigned, at the sum of dollars ; therefore, it 
 
 is considered that the said plaintiff do recover against the said de- 
 fendant his said debt, and also his damages on occasion of the de- 
 tention thereof, together with his costs and charges aforesaid to be 
 taxed. And it is further considered that the said plaintiff have 
 execution against the said defendant of his damages to the sum of 
 
 dollars, by the jurors aforesaid in form aforesaid assessed 
 
 on occasion of the aforesaid breaches of the writing obligatory set 
 forth in the said plaintiff's declaration, according to the form of the 
 statute in such case made and provided. 
 
 § 572. Judgment for plaintiff when an issue has heen tried against 
 one defendant, and damages assessed against another by default. 
 
 [Title.] 
 
 The jury by whom the issue joined in this cause between 
 the said plaintiff and the said defendant C. D. was tried, having 
 rendered a verdict therein in favor of the said plaintiff and against 
 the said C. D. ; and having assessed the damages of the said plain- 
 tiff on occasion of the premises, as well against the said C. D. as 
 against the said defendant E. F., by reason of his default in not 
 pleading, over and above his costs and charges by him about his 
 suit in this behalf expended, at the sum of — dollars ; there- 
 fore, it is considered, &c., [as in § 569.] 
 
 § 573. Judgment for plaintiff on one count, and for defendant on 
 another. 
 
 [Title.] 
 
 The jury by whom the issue joined in this cause was tried, 
 having heretolbre rendered a verdict in favor of the plaintiff and 
 against the defendant, upon the first count of his declaration, and 
 having assessed the damages of the said plaintiff on occasion of the 
 premises, over and above his costs and charges by him about his 
 
 suit in this behalf expended, at the sum of ■ ■ dollars ; and the 
 
 jurors aforesaid having also rendered a verdict in favOp of the said 
 defendant upon the second count of the said declar lion ; there 
 fore, it is considered that the said plaintiff do recover against th 
 
176 
 
 JUDGMENT AND ITS INCIDENTS. 
 
 said defendant his said damages by tbe jurors aforesaid in form 
 aforesaid assessed, together with his costs and charges aforesaid to 
 be taxed ; and that the said plaintiff have execution thereof. And 
 it is further considered, as to the premises whereof the said defend- 
 ant, by the jurors aforesaid in form aforesaid hath been acquitted, 
 that the said defendant do go thereof without day. [If the defend- 
 ant is entitled to costs upon the issue found in his favor, add a judg- 
 ment therefor.] (1) 
 
 § 574. Judgment when one defendant is convicted and another ac- 
 quitted. 
 
 [Title.] 
 
 The jury by whom the issue joined in this cause was tried, 
 having rendered a verdict in favor of the plaintiff and against the 
 defendant C. D., and having assessed the damages of the said plain- 
 tiff by reason of the premises, over and above his costs and charges 
 
 by him about his suit in this b^alf expended, at the sum of 
 
 dollars ; and the said jurors h^^^ also rendered a verdict in favor 
 of the said defendant E. F., afflTagainst the said plaintiff; there- 
 fore, it is considered that the said plaintiff do recover against the 
 said defendant 0. D., his damages by the jurors in form aforesaid 
 assessed, together with his costs and charges aforesaid to be taxed, 
 and that the said plaintiff have execution thereof And it is further 
 considered, as to the said defendant E. F. that the said plaintiff take 
 nothing by his said suit, and that the said E. F. do go thereof with- 
 out day ; and also that the said E. P. do recover against the said 
 plaintiff his costs and charges by him about his defence in this be- 
 half expended to be taxed, and that the said E. F. have execution 
 thereof. 
 
 [If the defendant, who is acquitted, is not entitled to costs, omit 
 all after the words ^^ without day," and insert in the place thereof 
 the following:] But because it appears manifest to the court now 
 here that there was reasonable cause for making the said E. F. a 
 defendant in the plea aforesaid ; therefore, as to the costs which 
 the said E. F. may have laid out about his defence therein, let the 
 said plaintiff go quit thereof. (2) 
 
 § 575. Judgment on verdict for plaintiff in replevin, when the 
 property was replevied. 
 
 [Title.] 
 
 The jury by whom the issue joined in this cause was tried, 
 having rendered a verdict in favor of the plaintiff and against the 
 defendant, and having assessed the damages of the said plaintiff, 
 by reason of the unlawful detention of the goods and chattels in 
 the said plaintiff's declaration mentioned, at the sum of dol- 
 lars, over and above his costs and charges by him about his suit in 
 this behalf expended ; therefore, it is considered, &c., [as in § 564.] 
 
 (1) See Comp. L. 1464. (2) See Comp. L. 1462, § 7. 
 
FORMS OF JUDGMENTS. 177 
 
 § 576. The like whare property was not replevied. 
 [Title.] 
 
 [As in the last form to the entry of judgment, and then as 
 follows :] and the said jurors having also assessed the value of the 
 
 said goods and chattels at the sum of dollars ; therefore, it 
 
 is considered, &c., [as in § 565.] 
 
 § 577. Judgment on verdict for defendant on a plea of misnomer 
 in abatement. 
 
 [Title.] 
 
 The jury by whom the issue joined in this cause was tried, 
 having found by their verdict that the said C. D. was not, at the 
 time of filing the declaration in this cause by the said plaintiff [or 
 " at the commencement of this suit "], nor hath he at any time 
 hitherto been called or known by the name of B. D., in manner 
 and form as the plaintiff hath in that behalf alleged ; therefore, it 
 is considered that the said writ [or " declaration "] of the said 
 plaintiff be quashed, and that the said defendant do go thereof 
 without day. [No judgment is rendered for costs.](l) 
 
 § 578. Judgment on verdict for defendant, in all actions except 
 replevin. 
 
 [Title.] 
 
 The jury by whom the issue joined in this cause was tried, 
 having rendered a verdict in favor of the said defendant and against 
 the said plaintiff; therefore, it is considered that the said plain- 
 tiff take nothing by his suit, and that the said defendant do go 
 thereof without day. And it is further considered that the said 
 defendant do recover against the said plaintiff his costs and charges 
 by him about his defence in this behalf expended to be taxed ; 
 and that the said defendant have execution thereof. 
 
 § 579. Judgment on verd ictfor defendant in replevin, where goods 
 have been replevied. 
 
 [Title.] 
 
 [After reciting the finding of the jury, enter judgment as 
 follows :] Therefore, it is considered that the said plaintiff take 
 nothing by his suit, and that the said defendant do go thereof 
 without day, and that he have a return of the goods and chattels 
 in the said plaintiff's declaration specified. And it is further con- 
 sidered that the said defendant do recover against the said plain- 
 tiff his damages aforesaid by the jurors in form aforesaid assessed, 
 together with his costs and charges by him about his defence in 
 this behalf expended to be taxed ; and that the said defendant have 
 execution thereof. 
 
 (1) See Comp. L. 1464, § 16. 
 12 
 
178 JUDGMENT AND ITS INCIDENTS. 
 
 [When the defendant waives a judgment for the return of the 
 goods, the judgment may be in the following form :] Therefore, 
 it is considered that the said plaintiff take nothing by his suit, and 
 that the said defendant do go thereof without day. And the said 
 defendant now here waiving any judgment for a return of the said 
 goods and chattels, and praying judgment for the value thereof, it 
 is further considered that the said defendant do recover against the 
 
 said plaintiff the sum' of dollars, being the value of the said 
 
 goods and chattels by the jurors in form aforesaid assessed, and 
 
 also dollars for his damages aforesaid by the same jurors in 
 
 form aforesaid assessed, together with his costs and charges by him 
 about his defence in this behalf expended to be taxed ; and that the 
 said defendant have execution thereof. 
 
 § 580. Jvdgment on verdict for defendant, when the goods were not 
 replevied. 
 
 [Title.-] 
 
 [After reciting the finding of the jury, enter judgment as 
 in § 578. J 
 
 § 581. Jvdgment on verdict for plaintiff in replevin, when he has 
 only a special property in the goods, and they have not been replevied. 
 
 [Title.] 
 
 The jury by whom the issue joined in this cause was tried, 
 having found by their verdict that the said defendant doth unlaw- 
 fully detain the goods and chattels in the said plaintiff's declaration 
 specified, as is therein alleged ; and having further found that the 
 said piain-tiff hath a lien upon, and a special property in the said 
 
 goods and chattels, to the amount of dollars, and is not the 
 
 general owner thereof, but that the said defendant is the general 
 owner of the said goods and chattels, subject to the lien of the said 
 plaintiff as aforesaid ; therefore, it is considered that the said goods 
 and chattels be replevied and delivered to the said plaintiff without 
 delay, or in default thereof that he recover against the said defend- 
 ant dollars, being the amount of his said special property 
 
 therein, together with his costs and charges by him about his suit 
 in this behalf expended to be taxed ; and that the said plaintiff 
 have execution thereof (1) 
 
 § 582. Jvdgment on verdict for defendard in replevin, when he has 
 only a special property in the goods, and they have been replevied. 
 
 [TiOe,] 
 
 The jury by whom the issue joined in this cause was tried, 
 having found by their verdict that the said defendant did not un- 
 lawfully detain the goods and chattels in the said plaintiff's declar- 
 ation specified as is therein alleged, and the said jurors having fur- 
 
 (1) See Comp. L. 1335, § 29. 
 
FORMS OF JUDGMENTS. 179 
 
 ther found that the said defendant hath a lien upon or special prop- - 
 
 erty in the said goods and chattels to the amount of dollars, , 
 
 and is not the general owner thereof, but that the said plaintiff is- 
 the general owner of the said goods and chattels, subject to the lien- 
 aforesaid of the said defendant ; therefore, it is considered that 
 the said plaintiff take nothing by his suit, and that the sdd defend- 
 ant do go thereof without day. And it is fi^rther considered that 
 the said defendant do recover against the said plaintiff the said 
 
 sum of dollars, being the amount of his special property in 
 
 the said goods and chattels, so by the jurors in form aforesaid found,_, 
 together with his costs and charges by him about his defence in 
 this behalf expended to be taxed ; and that the said defendant hava- 
 execution thereof. 
 
 § 583, Judgment on verdict for plaintiff in ejectment. 
 \Title.] 
 
 The jury by whom the issue joined in this cause was tried^, 
 having found by their verdict that the said defendant is guilty of 
 unlawfully withholding from the said plaintiff the premises de-- 
 
 scribed in his declaration in this cause as , and that the said 
 
 plaintiff is well entitled to hold the same in fee, [or as his estate - 
 may be,] and having assessed the damages of the said plaintiff by 
 reason thereof, over and above his costs and charges by him about 
 his suit in this behalf expended, at the sum of six cents ; there- 
 fore it is considered that the said plaintiff' do recover against the 
 said defendant the possession of the said premises, according to ■ 
 the verdict of the jury aforesaid, and that he have a writ of posses- 
 sion therefor according to the force, form and effect of his said recov- • 
 ery. And it is further considered that the said plaintiff do recover 
 against the said defendant his damages by the jurors in form afore^ 
 said assessed, together with his costs and charges aforesaid to be 
 taxed ; and that the said plaintiff have execution thereof. 
 
 § 584. Judgment on verdict in ejectment, when plaiiitijf$, title, ex-i- 
 pires before trial. 
 
 \Title.] 
 
 The jury by whom the issue joined in this cause was tried, 
 having found by their verdict -that the said defendant,, at the timt' 
 of the commencement of this suit, was guilty of unlawfully with* 
 holding from the said plaintiff the premises described in his de- 
 claration, and that the said plaintiff was well entitled to hold the 
 same during the life of one J. S. [or as his estate may have been], 
 and having assessed the damages of the said plaintiff' by reason of 
 the premises, over and above his costs and charges by him about 
 
 his suit in that behalf expended, at the sum of dollars ; and 
 
 the jurors aforesaid having by their said verdict further found that 
 the aforesaid title of the said plaintiff to the said premises expired 
 after the commencement of this suit, and before the trial of the 
 issue therein joined, to Avit., on the — day of , in the year one 
 
180 JUDGMENT AND ITS INCIDENTS. 
 
 thousand eigtt hundred and ; therefore, it is considered that 
 
 the said plaintiff do recover against the said defendant his damages 
 by the jurors aforesaid in form aforesaid assessed, together with his 
 costs and charges aforesaid to be taxed, and that the said plaintiff 
 have execution thereof; and as to the premises described in the 
 said plaintiff's declaration, it is further considered that the said de- 
 fendant do go thereof, without day.(l) 
 
 § 585. Judgment on verdict for plaintiff, against executor or ad- 
 ministrator. 
 
 ITiile.] 
 
 The jury by whom the issue joined in this cause was tried, 
 having rendered a verdict therein in favor of the plaintiff and 
 
 against the defendant, for the sum of dollars damages, over 
 
 and above his costs and charges by him about his suit in this be- 
 half expended ; therefore, it is considered that the said plaintiff 
 do recover against the said defendant as executor [or '^adminis- 
 trator "J as aforesaid, his damages so by the jurors in form aforesaid 
 assessed, together with his costs and charges aforesaid to be taxed, 
 and to be collected of the goods and chattels which were of the said 
 L. M., the testator [or " intestate "J aforesaid, in the hands of the 
 said defendant to be administered [or, if the judgment be for assets 
 quando, &c., instead of saying " in the hands," &c., say " and which 
 shall hereafter come into the hands of the said defendant to he ad- 
 ministered."] 
 
 ^ 586. Judgment on verdict for plaintiff in trespass, when several 
 damages are assessed. 
 
 [Title.] 
 
 The jury by whom the issue joined in this cause was tried, 
 having by their verdict found the defendant C. D. guilty of taking 
 and converting to his own use a part of the goods and chattels in 
 the said plaintiff's declaration mentioned, and the said defendant 
 L. M. guilty of taking and converting to his own use another part 
 of the said goods and chattels therein mentioned, and having 
 assessed the said plaintiff's damages by reason of the premises, over 
 and above his costs and charges by him about his suit in this be- 
 half expended, against the said defendant C. D. at the sum of 
 
 dollars, and against the said defendant L. M. at the sum of 
 
 dollars ; therefore, it is considered that the said plaintiff do 
 
 recover against the said defendant C. D. bis damages by the jurors 
 
 aforesaid so assessed against him the said C. D., to the sum of 
 
 dollars ; and also that he recover against the said defendant L. M. 
 Ms damages by the said jurors so assessed against him the said 
 
 L. M., to the sum of dollars ; and also that he recover against 
 
 the said C. D. and L. M. his costs and charges aforesaid to be 
 taxed ; and that the said plaintiff have execution thereof. 
 
 (1) Comp. L. 1234, § 30. 
 
FORMS OF JUDGMENTS. 181 
 
 § 587. Judgment on verdict, where phxintiff elects meliora damna. 
 [Titk.] 
 
 The jury by -wlioin tTie issue joined in this cause was tried, 
 having found by their verdict that the said several defendants are 
 guilty of the several trespasses in the said plaintiffs declaration laid 
 to their charge, and having assessed the damages of the said plain- 
 tiff by reason of the premises, over and above his costs and charges 
 by him about his suit in that behalf expended, against the said 
 defendant C. D. at twenty dollars, against the said defendant I. J. 
 at thirty dollars, and against the said defendant M. N. at one 
 hundred dollars; thereupon the said plaintiff now here elects to 
 recover against the said defendants one hundred dollars, the dam- 
 ages aforesaid by the jurors aforesaid found against the said M. ZST. 
 as his better damages, besides his costs. And the said plaintiff 
 here freely remits to the said defendants the said sums of twenty 
 dollars and thirty dollars by the jurors aforesaid found against the 
 said defendants, C. D. and I. J., respectively ; therefore, it is con- 
 sidered that the said plaintiff do recover against the said C. D., I. J. 
 and M. N., his better damages aforesaid so found, and now here 
 elected by the said plaintiff, together with his costs and charges 
 aforesaid to be taxed ; and that the said plaintiff have execution 
 thereof. 
 
 § 588. Judgment for plaintiff in slander, assault and battery, &c., 
 when he recovers less than fifty dollars. 
 [Title.] 
 
 [As in § 569 to the end of the award of costs, and then 
 add, " not exceeding the amount of the damages aforesaid ; and thai 
 the said plaintiff have execution thereof."]{l) 
 
 § 589. Judgment for plaintiff in cause appealed from a justice's 
 court, and costs awarded to the defendant. 
 [Title.] 
 
 This cause having been brought into this court by appeal 
 from the judgment of a justice of the peace, and the jury by whom 
 the issue joined therein was tried, having rendered a verdict therein 
 in favor of the plaintiff and against the defendant, and having 
 assessed the damages of the said plaintiff on occasion of the prem- 
 ises at the sum of [fifty] dollars ; and it appearing to the court 
 now here that the said defendant ought to recover against the said 
 plaintiff his costs and qharges by him about his defence in this 
 behalf expended to be taxed, and the same having been duly 
 taxed at the sum of [fifteen] dollars, are, by the court now here, 
 allowed to him ; whereupon, in pursuance of the statute in such 
 case made and provided, the said last mentioned sum is by the 
 said court now here set-off against, and deducted from the damages 
 aforesaid; therefore, it is considered that the said plaintiff do 
 recover against the said defendant the residue of his said damages 
 
 (1) See Comp. L. 1462, §§ 4, 5. 
 
182 JUDGMENT AND ITS INCIDENTS. 
 
 being the sum of [thirty-five] dollars ; and that the said plaintiff 
 have execution thereof.(i) 
 
 § 590. Judgment uihen plaintiff does not recover sufficient to entitle 
 him to costs. 
 
 [Title.] 
 
 [As in § 569 to the entry of judgment, and then as follows :] 
 Therefore, it is considered that the said plaintiff do recover against 
 the said defendant his damages aforesaid by the jurors in form 
 aforesaid assessed, to the sum of [ninety] dollars, and that the said 
 plaintiff have execution thereof; and hereupon the said defend- 
 ant suggests to the court now here that the said plaintiff, not hav- 
 ing recovered against him, the said defendant, a sufficient sum to 
 entitle him to recover costs against him the said defendant, he, the 
 said plaintiff, is liable, according to the statute in such case made and 
 provided, to pay costs to him, the said defendant, and that he, the 
 said defendant, is entitled to have judgment and execution therefor ; 
 therefore it is further considered that the said defendant do re- 
 cover against the said plaintiff his costs and charges by him about 
 his defence in this behalf expended to be taxed ; and that the said 
 defendant have execution thereof (2) 
 
 § 591. Judgment on verdict /or defendant, for balance of set off. 
 
 ITiile.] 
 
 The jury by whom the issuejoined in this cause was tried, hav- 
 ing found by their verdict that the said plaintiff was and is indebted 
 
 to the said defendant in the sum of dollars, after setting off 
 
 against the demand of the said plaintiff, proven on said trial, suf- 
 ficient to satisfy and discharge the same ; therefore, it is consid- 
 ered that the said plaintiff take nothing by his suit, and that the 
 said defendant do go thereof without day. And it is further con- 
 sidered that the said defendant do recover against the said plaintiff 
 
 the said sum of dpllars, so by the jurors in form aforesaid found 
 
 to be due to him from the said plaintiff, together with his costs and 
 charges by him about his defence in this behalf expended to be 
 taxed ; and that the said defendant have execution thereof. 
 
 § 592. Judgment for plaintiff in action for waste. 
 
 {Title.] 
 
 [As in § 569 to the entry of judgment, and then as follows :] 
 Therefore, it is considered that the said plaintiff do recover against 
 the said defendant double the amount of the damages aforesaid by 
 the jurors in form aforesaid found, such double damages being 
 
 dollars, together with his costs and charges aforesaid to be 
 
 taxed ; and that the said plaintiff have execution thereof (3) 
 
 (1) See Comp. L. 1085 ; orate, § 554. (2) Oomp. L. 1462, § 5. 
 
 (3) Comp. L. 1259, § 6. 
 
FORMS OP JUDGMENTS. 183 
 
 § 593. Judgment for plaintiff in action for nuisance. 
 [Title.] 
 
 [As in § 569 to the entry of judgment, and then as follows :] 
 Therefore, it is considered that the said plaintiff do recover against 
 the said defendant his damages aforesaid by the jurors in form 
 aforesaid assessed, together with his costs and charges aforesaid to 
 be taxed. And it is further considered that the said nuisance in 
 the said plaintiff's declaration described and set forth, be removed 
 
 by the sheriff of the county of , and that the said plaintiff have 
 
 execution thereof. [If a removal of the nuisance appears to be 
 unnecessary, the entry of judgment should be preceded by the fol- 
 lowing words : ^^ And it satisfactorily appearing to the court now here 
 that an abatement of the nuisance described and set forth in the plain- 
 tiff^s declaration is not necessary," and the judgment of removal 
 omitted.J(l) 
 
 § 594. Judgment for plaintiffs on conviction for violating liquor 
 law. 
 
 [Title.] 
 
 The jury by whom the issue joined in this cause was tried, 
 having by their verdict found that the said defendant doth owe 
 to the people of the state of Michigan the sum of [ten] dollars of 
 debt, in manner and form as they have in their declaration in this 
 cause alleged ; therefore, it is considered that the said plaintiffs do 
 recover against the said defendant their debt aforesaid, together 
 with their costs and charges by them about their suit in this behalf 
 expended to be taxed, and that the said plaintiffs have execution 
 thereof. And hereupon it is ordered and adjudged by the court 
 now here, in pursuance of the statute in such case made and pro- 
 vided, that the said defendant be committed to the common jail of 
 he county of until the said debt and costs be paid, not ex- 
 ceeding two months from the date of his said conviction. 
 
 [If the recovery be for a third offence of selling, or for being a 
 common seller, &c., the last clause of the judgment must be varied 
 accordingly.] (2) 
 
 §595. Judgment on finding of the court. 
 ITiile.] 
 
 This cause having been brought to trial before the court 
 without a jury, and the said court, after hearing the proofe and 
 allegations of the parties and the arguments of counsel, having 
 found that the said defendant did undertake and promise in man- 
 ner and form as the said plaintiff hath in his declaration complained 
 against him, and having assessed the damages of the said plaintiff 
 on occasion of the premises at the sum of dollars, over and 
 
 (1) Comp. L. 1262, 1263. (2) Comp. L. 525, 626. 
 
184 JUDGMENT AND ITS INCIDENTS. 
 
 above his costs and charges by him about his suit in this behalf 
 expended ; therefore, it is considered, &c., [as in the case of a 
 verdict.] 
 
 JUDGMENTS ON DEFAULT. 
 
 § 596. Judgment of non pros, for not declaring. 
 [Title.] 
 
 C. D., the defendant in this suit, having appeared therein by 
 G-. H., his attorney, and put in special bail, [or, " hy canning his 
 appearance to be duly entered, and notice thereof to be served on the 
 plaintiff's attorney,"] at the suit of the said A. B. ; and the said 
 plaintiff not having declared against him, the said defendant, as he 
 ought to have done, according to the rules and practice of this 
 court, but having therein wholly made default ; therefore, it is 
 considered that the said plaintiff take nothing by his suit, and'that 
 the said defendant do go thereof without day. And it is further 
 considered that the said defendant do recover against the said plain- 
 tiff his costs and charges by him about his defence in this behalf 
 expended to be taxed ; and that the said defendant have execution 
 thereof. 
 
 § 597. The like judgment in replevin. 
 [Tiile.] 
 
 C. D., the defendant in this cause, having appeared therein 
 by G. H., his attorney, by causing his appearance to be duly en- 
 tered in said cause at the suit of the said A. B., and notice thereof 
 to be served on the plaintiff's attorney, and the said plaintiff not 
 having declared against the said defendant as he ought to have 
 done, according to the rules and practice of this court, nor doth 
 the said plaint® further prosecute his writ against the said C. D., 
 but therein wholly makes default ; therefore, it is considered that 
 the said plaintiff take nothing by his writ, and that the defendant 
 do go thereof without day, and that he have a return of the goods 
 and chattels specified in the said writ. And it is further consid- 
 ered that the said defendant do recover against the said plaintiff, 
 his costs and charges by him about his defence in this behalf ex- 
 pended to be taxed ; and that the said defendant have execution 
 thereof. 
 
 [If the defendant claims damages for the detention of the goods 
 by the plaintiff, and elect to waive a return thereof, and take judg- 
 ment for their value, instead of taking judgment in the above forrp, 
 interlocutory judgment should be entered as follows :] There- 
 fore, it is considered that the said plaintiff take nothing by his 
 said writ, and that the defendant do go thereof without day. 
 And hereupon the said defendant, waiving any judgment for a 
 return of the said goods and chattels in the said writ mentioned 
 
FOEMS OF JUDGMENTS. 185 
 
 and described, prays judgment for tlie value thereof, together with 
 his damages on occasion of the detention thereof. And, because it 
 is unknown to the court now here what is the value of the said 
 goods and chattels, or what damages the said defendant hath sus- 
 tained by reason of the said detention, it is now here ordered that 
 the same be inquired of and assessed by a jury of the country, 
 [or, "Jy the court."] 
 
 § 598. Judgment for plaintiff in assumpsit, case or trespass, on 
 default in not pleading. 
 [Title.] 
 
 The appearance of the said defendant, and his default in 
 not pleading having been duly entered in this cause, according to 
 the rules and practice of this court, and the said default having be- 
 come absolute, and the damages of the said plaintiff on occasion of 
 
 the premises having been duly assessed at the sum of dollars, 
 
 over and above his costs and charges by him about his suit in this 
 beh^f expended ; therefore, it is considered that the said plaintiff 
 do recover against the said defendant his damages aforesaid, 
 together with his costs and charges aforesaid to be taxed ; and 
 that the said plaintiff have execution thereof. 
 
 § 599. Judgment for plaintiff in debt, on default in not pleading. 
 \TitU.'] 
 
 The appearance of the said defendant and his default in not 
 pleading having been duly entered according to the rules and prac- 
 tice of this court, and the said default having become absolute ; 
 therefore, it is considered that the said plaintiff do recover against 
 
 the said defendant his debt aforesaid to the sum of dollars, 
 
 together with his costs and charges by him about his suit in this 
 behalf expended to be taxed ; and that the said plaintiff have exe- 
 cution thereof. 
 
 § 600. Judgment for plaintiff on default of one of several parties 
 to a hill or note, sued jointly under the statute. 
 
 [Title.] 
 
 The defendants, J. E. and O. S., having appeared and 
 pleaded to the plaintiff's declaration in this cause, and the appear- 
 ance of the defendant C D. and his default in not pleading having 
 been duly entered, and the said default having become absolute, 
 whereby, and by force of the statute in such case made and pro- 
 vided, the said action of the said plaintiff is severed, wherefore the 
 said plaintiff ought to recover against the said C. D. his damages 
 on occasion of the premises, and the said damages having been 
 
 assessed at the sum of dollars, over and above his costs and 
 
 charges by him about his suit in this behalf expended ; therefore, 
 it is considered that the said plaintiff do recover against the said 
 C. D. his damages aforesaid, together with his costs and charges 
 aforesaid to be taxed ; and that the said plaintiff have execution 
 thereof. 
 
186 JUDGMENT AND ITS INCIDENTS. 
 
 § 601. Judgment for plaintiff on default in replevin. 
 
 {Title.} 
 
 The appearance of the defendant, and his default in not 
 pleading having been duly entered, according to the rules and 
 practice of this court, and the said default having become absolute, 
 ■wherefore the said plaintiff ought to recover against the said de- 
 fendant his damages on occasion of the unlawful detention of the 
 goods and chattels in the said plaintiff's declaration specified, [or, 
 if the goods have not been replevied, then as follows : " wher^ore 
 the said plaintiff ought to recover against the said defendant the goods 
 and chattels in his declaration specified, and also his damages on occa- 
 sion of the unlawful detention thereof"] ; and the value of the said 
 
 goods and chattels having been assessed at the sum of dollars, 
 
 and the damages aforesaid at the sum of • dollars over and 
 
 above his costs and charges by him about his suit in this behalf 
 expended ; therefore it is considered that the said plaintiff do 
 recover against the said defendant his damages aforesaid, together 
 with his costs and charges aforesaid to be taxed ; and that the said 
 plaintiff have execution thereof. 
 
 [If the goods have not been replevied, add a further judgment 
 as follows :] And it is further considered that the goods and chat- 
 tels aforesaid be replevied and delivered to the said plaintiff with- 
 out delay, or in default thereof that the said plaintiff do recover 
 
 against the said defendant the further sum of dollars, being 
 
 the value of the said goods and chattels so assessed as aforesaid. 
 
 § 602. Judgment for defendant on default in not joining in de- 
 murrer to declaration. 
 
 [Title.] 
 
 The default of the plaintiff in not joining in demurrer to 
 the declaration filed in this cause, having been duly entered therein 
 according to the rules and practice of this court, and the same hav- 
 ing become absolute ; therefore, it is considered that the said plaintiff 
 take nothing by his suit, and that the said defendant do go thereof 
 without day. And it is further considered that the said defendant 
 do recover against the said plaintiff his costs and charge's by Mm 
 about his defence in this behalf expended to be taxed ; and that the 
 said defendant have execution thereof. 
 
 § 603. Judgment for defendant on discontinuance. 
 
 [mie.] 
 
 The plaintiff in this cause having neglected to prosecute his 
 suit against the said defendant, and voluntarily permitted the same 
 to be discontinued ; therefore, it is considered, &c., [judgment as 
 in last form.] 
 
 § 604. Judgment on non-suit in replevin. 
 [Title.] 
 
 The plaintiff in this cause having voluntarily submitted to 
 a non-suit, [or, if on default in not bringing cause to trial, say :] 
 
FOBMS OF JUDGMENTS. 187 
 
 This cause having teen duly noticed and placed upon the calendar 
 
 for trial at the term of this court, the said defendant being in 
 
 court by G. H., his attorney, and the said plaintiff being solemnly 
 demanded came not, but therein made default, whereupon he be- 
 came non-suited ; therefore, it is considered that the said plaintiff 
 take nothing by his suit, and that the defendant do go thereof 
 without day ; and that the said defendant have a return of the 
 goods and chattels in the writ of replevin in this cause specified, 
 and his damages on occasion of the taking and detention thereof, 
 
 now here assessed at the sum of dollars, together with his 
 
 costs and charges by him about his defence in this behalf expended 
 to be taxed, &c., [or, if the defendant elect to take judgment for 
 the value of the property, instead of a judgment for return, insert 
 the following :] and hereupon the said defendant, electing to waive 
 any judgment for a return of the said goods and chattels which 
 were replevied and delivered to the said plaintiff, prays judgment 
 for the value thereof, together with his damages on occasion of the 
 detention thereof. And the value of the said goods and chattels 
 
 having been assessed at the sum of dollars, and the damages 
 
 of the said defendant, by reason of the detention thereof, having also 
 
 been assessed at the sum of dollars, it is farther considered 
 
 that the said defendant do recover against the said plaintiff 
 
 dollars, being the value of the said goods and chattels so assessed, 
 
 and also his damages to the said sum of dollars, together with his 
 
 costs and charges by him about his defence in this behalf expended 
 to be taxed ; and that the said defendant have execution thereof.(l) 
 
 § 605. Judgment on discontinuance in replevin, when the plain- 
 tiffs sureties have neglected to justify after exception. 
 [Title.] 
 
 The defendant having excepted to the sufficiency of the 
 sureties of the said plaintiff, taken by the sheriff on the delivery 
 of the goods and chattels specified in the writ of replevin in this 
 cause, according to the statute in such case made and provided ; 
 and the said plaintiff having failed to justify and perfect his sure- 
 ties aforesaid, or to put in new or other sureties in their stead, but 
 therein having wholly made default, and voluntarily permitted his 
 suit to be discontinued ; therefore, it is considered, &o., [as in last 
 form.] 
 
 § 606. Judgment on nolle prosequi to action. 
 [Title.] 
 
 The said plaintiff now here comes into court and freely con- 
 fesses that he will not further prosecute his suit against the said 
 defendant ; therefore, it is considered, &c., [as in § 596.] 
 
 (1) Comp. L. 1336. 
 
188 JUDGMENT AND ITS INCIDENTS. 
 
 § 607. Judgment for plaintiff on nol. pros, to an issue in fact, 
 after decision of an issue in law. 
 
 [Title:] 
 
 The demurrer of the said defendant to the first count of the 
 said plaintiff's declaration having been duly brought to argument, 
 and all and singular the premises aforesaid being seen and by the 
 court fully understood, and it appearing to the said court that the 
 said first count of the said declaration is sufficient in law for the 
 said plaintiff to have and maintain his action thereof against the 
 said defendant, wherefore the said plaintiff ought to recover against 
 the said defendant his damages by reason of the premises in the 
 said first count of the said declaration mentioned. And hereupon 
 the said plaintiff freely here in court, confesses that he will not 
 further prosecute his suit against the said defendant in respect of 
 the said issue joined between the said parties, whereon the said 
 parties have put themselves upon the country ; therefore as to 
 the said issue, and as to the premises in the said second count of 
 the said declaration mentioned [the count or counts on which the 
 issue of fact was taken], whereon the said parties have put them- 
 selves upon the country, let the said defendant be acquitted, and 
 go thereof without day. And the damages of the said plaintiff by 
 him sustained by reason of the premises in the said first count of 
 the said declaration mentioned, having been assessed at the sum of 
 
 dollars, over and above his costs and charges by him about 
 
 his suit in this behalf expended ; therefore, it is further considered 
 that the said plaintiff do recover against the said defendant his 
 damages aforesaid in forrri aforesaid assessed, together with his 
 costs and charges aforesaid to be taxed ; and that the said plaintiff 
 have execution thereof. 
 
 § 608. Judgment of non-suit on plaintiff's default in not bringing 
 cause to trial. 
 
 [Title.] 
 
 This cause having been duly noticed and placed upon the 
 calendar for trial at the present term of this court, now here comes 
 the said defendant by Gr. H., his attorney ; and the said plaintiff 
 being solemnly demanded comes not, nor doth he further prose- 
 cute his suit against the said defendant, but therein wholly makes 
 default ; therefore, it is considered, &c., [as in § 596.] 
 
 § 609. Judgment on voluntary non-suit during the trial. 
 
 [Title.] 
 
 The parties in this cause being in court ready for trial, 
 thereupon came a jury, to wit., [names of jurors,] good and lawful 
 men, who, being duly elected, tried and sworn, well and truly to 
 try the issue between the parties, sat together and heard the proofe 
 and allegations of the parties [in part], whereupon the said plain- 
 tiff, now here, voluntarily submits to become nonsuited, nor does 
 
FOEMS OP JUDGMENTS. 189 
 
 he further prosecute his said suit against the said defendant ; there- 
 fore, it is considered, &c., [as in § 596.] 
 
 § 610. Judgment as in case of non-suit when cause has been 
 referred. 
 
 [Title.] 
 
 This cause having been heretofore referred, in pursuance of 
 the statute in such case made and provided, to 0. R., N. L. and 
 M. S., referees, nominated by this court to finally hear and deter- 
 mine the matters in controversy therein, and report thereon to 
 
 this court on the first day of the term of said court, and it 
 
 manifestly appearing to the said court now here that the said plain- 
 tiff hath wholly neglected to bring the said cause to a hearing 
 before the said referees, according to the course and practice of this 
 court ; therefore, it is considered, &c., [as in § 596.] 
 
 § 611. Judgment for plaintiff on default in not pleading over 
 after judgment on demurrer to plea in abatement. 
 
 [Title.] 
 
 The default of the defendant in not pleading over to the 
 plaintiff's declaration in this cause, pursuant to the judgment in 
 that behalf heretofore rendered therein, having been duly entered, 
 and the same having become absolute, and the damages of the said 
 plaintiff by reason of the premises having been duly assessed at 
 
 the sum of • dollars, over and above his costs and charges by 
 
 him about his suit in this behalf expended ; therefore, it is consid- 
 ered, &c., [as in § 598.] 
 
 § 612. Judgmentfor plaintiff on default in not pleading in ejectment. 
 [Title.] 
 
 The appearance of the defendant in this cause, and his de- 
 fault in not pleading having been duly entered, and the said de- 
 fault having become absolute, whereby the said plaintiff remains 
 therein undefended against the said defendant ; wherefore the said 
 plaintiff ought to recover against the said defendant the possession 
 of the premises described in the plaintiff's declaration in this cause 
 as [describe the premises], and to hold the same in fee [or, accord- 
 ing to the estate claimed in the declaration] ; therefore, it is consid- 
 ered that the said plaintiff do recover against the said defendant the 
 possession of the premises aforesaid, and that he have a writ of pos- 
 session therefor, according to the force, form, and effect of his said 
 recovery. And it is further considered that the said plaintiff do 
 recover against the said defendant his costs and charges by him 
 about his suit in this behalf expended to be taxed ; and that the 
 said plaintiff have execution thereof. 
 
190 JUDGMENT AND ITS INCIDENTS. 
 
 JUDGMENTS ON CONFESSION. 
 
 § 613. Judgment in debt on hond and warrant of attorney. 
 [Title.'] 
 
 On reading and filing bond, warrant of attorney, and decla- 
 ration in this cause, together with the answer of the said defendant 
 
 confessing the action of the said plaintiff to the sum of dolla'^s 
 
 of debt ; therefore, it is considered that the said plaintiff do recover 
 against the said defendant his debt aforesaid, together with his costs 
 and charges by him about his suit in this behalf expended to be 
 taxed ; and that the said plaintiff have execution thereof. 
 
 § 614. Judgment in assumpsit on note and warrant of attorney. 
 [Title.'] 
 
 On reading and filing note, warrant of attorney, and decla- 
 ration in this cause, together with the answer of the said defendant 
 
 confessing the action of the said plaintiff to the sum of dollars 
 
 damages ; therefore, it is considered that the said plaintiff do re- 
 cover against the said defendant his damages so confessed as afore- 
 said, together with his costs and charges by him about Ins suit in 
 this behalf expended to be taxed ; and that the said plaintiff have 
 execution thereof. 
 
 § 615. Judgment on cognovit in assumpsit 
 [Tilh.] 
 
 The defendant in this cause having appeared therein by G. H., 
 his attorney, and confessed the action of the said plaintiff, and his 
 damages by him sustained on occasion of the not performing the 
 several promises and undertakings in the said plaintiff's declara- 
 tion mentioned, to the sum of dollars ; hereupon the said 
 
 plaintiff prays judgment and his damages so acknowledged, to- 
 gether with his costs and charges by him about his suit in this 
 behalf expended ; therefore, it is considered that the said plaintiff 
 do recover against the said defendant his damages aforesaid, in 
 form aforesaid' acknowledged, together with his costs and charges 
 aforesaid to be taxed ; and that the said plaintiff have execution 
 thereof. 
 
 § 616. Judgment on withdrawal of plea. 
 [Title?^ 
 
 The defendant in this cause having, after, notice of trial given, 
 and within fourteen days next before the present terra of this court, 
 [or ^'' during the present term of this 'Court, \ withdrawn his plea by 
 him heretofore pleaded, and the damages of the said plaintiff on 
 occasion of the premises having been duly assessed at the sum of 
 
 dollars, over and above his costs and charges by him about 
 
 his suit in this behalf expended ; therefore, it is considered that 
 the said plaintiff do recover against the said defendant his damages 
 
rOBMS OF JUDGMENTS. 191 
 
 aforesaid, together with his costs and charges aforesaid to be taxed, 
 and that the said plaintiff have execution thereof. 
 
 JUDGMENTS ON OERTIOIIAEI TO A JUSTICE'S COURT. 
 
 § 617. Judgment on affirmance of judgment below. 
 
 [Title.] 
 
 This cause having been duly brought to argument in this 
 court, and the record and proceedings, as well as the judgment 
 given in the court below, being seen and by the court now here 
 fully understood, and mature deliberation being thereupon had, and 
 it appearing to the said court that there is no error affecting the 
 merits of the controversy between the parties, either in the record 
 and proceedings, or in giving the judgment aforesaid; therefore 
 it is considered that the judgment aforesaid in form aforesaid given 
 be in all things af&rmed, and .stand in full force and effect. And 
 it is further considered that the said C. D., defendant in error, do 
 
 recover against the said A. B., plaintiff in error, dollars, being 
 
 the amount of his damages [or " debt "] and costs recovered by 
 him in the court below, and also the interest thereon from the date 
 
 of the said recovery, amounting to dollars, together with his 
 
 costs and charges by him in this behalf expended to be taxed ; and 
 that the said C. D. have execution thereof. 
 
 § 618. Judgment on reversal of judgment beloic. 
 [Title.] 
 
 [As in § 617 to and including the words " thereupon had" 
 and then as follows :] and it appearing to the court that there is 
 manifest error in the record and proceedings, and in the giving of the 
 judgment aforesaid ; therefore, it is considered that the judgment 
 aforesaid, for the errors aforesaid, be reversed, annulled, and al- 
 together held for nothing. And it is further considered that the 
 said A. B. do recover against the said C. D., his costs and charges 
 by him in this behalf expended, as well in this court as in the 
 court below, to be.taxed^ and that the said A. B. have ■execution 
 thereof. 
 
192 OF THE EXECUTION. 
 
 CHAPTER VIII. 
 
 OF THE EXECUTION. 
 
 § 619. The judgment rendered in tlie cause having been duly 
 entered, and the time for moving for a new trial, or in arrest of the 
 judgment, having elapsed, unless the execution be stayed by some 
 proceeding in the nature of an appeal from the judgment of the cir- , 
 cuit court to the supreme court, the successful party is entitled to 
 have execution according to the nature and form of his recovery. 
 
 § 620. Executions are judicial writs issuing out of the court in 
 which the judgment was rendered, and directed to the sheriff of the 
 county into which they are issued, (unless such sheriff be a party,) 
 commanding him, according to the nature of the action, either to 
 enforce the delivery of the chattel which was the subject of the ac- 
 tion, or to levy the debt or damages and costs recovered ; or to com-' 
 pel satisfaction of the judgment by taking the body of the party 
 therein named, or as the case may require ; and to make due return 
 of his proceedings thereon to the court on a day specified. They 
 are tested on the day they are issued, and maybe made returnable 
 on the first Tuesday of any month, or any day in term ; but sixty 
 days at least must intervene between the issuing and return of the 
 writ.(l) 
 
 § 621. Executions, in general, m_a^%e. either against the goods 
 and chattel.*, lands and tenements of the party against whom the 
 judgment was rendered, or against the- b^idy of such party in the 
 cases authorized by law.(2) In the former case the execution is 
 termed, from its emphatic words, & fieri facias ; in the latter, acapias 
 ad satisfaciendum. But no such execution can issue against the body, 
 nor against the goods and chattels, lands and tenements of any exe- 
 cutor, administrator, heir, devisee or legatee, except in those cases 
 specially provided by law. (3) 
 
 § 622. The execution may be made out by the clerk, or pre- 
 pared by the attorney and signed and sealed by the clerk, like other 
 writs ; and successive or alias executions may be-issued, one after 
 another, upon the return of any execution unsatisfied in whole or in 
 
 (1) Rule 13. (J) Comp. L. 1208. (3) Id. 1208. 
 
EXKCUTION". 193 
 
 part, for the amount remaining unpaid upon the judgment. But 
 no such execution can be issued, unless within two years from the 
 rendition of the judgment, or from the return day of the last pre- 
 ceding execution, or from the time when the party was entitled to 
 sue out the same, unless the court in term time, or the judge thereof, 
 or a circuit court commissioner in vacation, upon special application, 
 and due notice to the opposite party, shall make an order granting 
 leave to issue the same.(l) Notice of such application must be 
 personally served, if the party can be found in the county ; if not, 
 or he be a non-resident, it must be served in such manner as the 
 court or of&cer shall direct. (2) This proceeding has beeu substi- 
 tuted, by the statute, in the place of the common law proceeding by 
 scire facias. 
 
 § 623. The execution is not stayed or superseded by a writ of 
 error brought to obtain a reversal of the judgment in the supreme 
 court, unless the plaintiff in error shall give bond to the defend- 
 ant in error, with two sufficient sureties, or three sufficient sureties 
 without the plaintiff in error, conditioned to prosecute the writ to ■ 
 effect, and to satisfy such judgment as may be rendered against him 
 th^eon ; the sufficiency of the sureties, and the amount for which 
 the bond is to be given, to be determined by a justice of the supreme 
 court, or circuit court commissioner.(3) 
 
 On filing such bond, and serving the writ of error upon the 
 clerk, notice thereof must be given to the defendant in error or- 
 his attorney, and no execution can thereafter be issued upon the 
 judgment during the pendency of the writ of error ; and if execu- 
 tion has been issued, upon the officer holding it being served with- 
 a certificate of the service of such writ, and' the filing of such bond,, 
 signed by the clerk, all further proceedings thereon are stayed.(4) 
 
 § 624. In cases where bail was taken on the arrest of the de-- 
 fendant, and the bail bond has been assigned to the plaintiff; and' 
 in those cases where special bail was put in ; no execution can issue 
 against the body of the defendant in such action, until an execu-- 
 tion against the goods and chattels, lands and tenements of such 
 defendant shall have issued to the sheriff or other proper officer of" 
 the county in which he was arrested, and been returned unsatisfied, 
 in whole or in part. But if the defendant be imprisoned on exe- 
 cution in another cause, or upon process in the same action, or 
 
 (I) Comp. L. 120T. (2) Id. X208. 
 
 (S) Comp. L. 1399. (4) Comp. L. 1400. 
 
 18 
 
194 OF THE EXECUTION. 
 
 upon Ms surrender in exoneration of his bail in the action, or if 
 an execution shall have been so returned unsatisfied, an execu- 
 tion may, in either case, issue against the body of such defend- 
 ant.(l) 
 
 § 625. Executions, whether against the body or the property 
 of a party, may issue to the sheriffs of different counties ; but such 
 executions can only be issued successively, and not to different 
 sheriffs at the same time.(2) 
 
 When the body of a party has been taken on an execution, no 
 'Other execution can be issued against him or his property, except 
 in the cases specially provided for by law ; but if any person so 
 -^taken in execution escape, he may be retaken by a new execution 
 :against his body, or an execution against his property may be 
 lissued in the same manner as if no execution had been previously 
 issued against his body or his property. On receiving an execu- 
 ition, the sheriff is required to indorse upon it the year, month, day 
 .and hour of its reception ; (3) and interest on the judgment from 
 -the time of its entry, is to be collected by virtue of the execu- 
 tion. (4 
 
 § 626. In case of a judgment against the sheriff, either alone 
 •or with others, instead of directing the execution to the coro- 
 ner, it may be directed and delivered to any person not a 
 party in interest in the suit, who shall be designated by the 
 court in term time, by an order to be entered in the minutes ; or, 
 by the judge or circuit court commissioner in vacation, by an or- 
 der to be indorsed on th^ execution ; and the person so designated, 
 and receiving such execution, is deemed a coroner of the county 
 in respect to such execution, and is liable in all respects to all the 
 provisions of law respecting sheriffs, so far as they are appli- 
 ■cable.(5) 
 
 § 627. When an execution is issued against the property of 
 ;any person, his goods and chattels, lands and tenements levied upon 
 iby virtue thereof, are bound from the time of such levy ; and if 
 I several executions are issued out of a court of record against the 
 same defendant, that which is first delivered to the officer to be 
 ■executed has preference, notwithstanding a levy may be first made 
 under another execution ; but if a levy and sale of any goods or 
 
 (1) Comp. L. H08. (2) Id. laot, 1208 ; Laws of 1851, p. 14J. 
 
 (3) Comp, L 1209. (4) H. 1209. (6) Id. 1209. 
 
EXECUTION. 195 
 
 chattels are made under such other execution, before an actual 
 levy under the execution first delivered, such goods or chattels 
 cannot be levied upon or sold by virtue of such first execution. (1) 
 So, if there be one or more executions, and one or more attach- 
 ments against the property of the same person, the same rule pre- 
 vails in determining the preference of such execution or attach- 
 ment ; but any execution or attachment issued out of a court not 
 of record, if actually levied, has preference over any other execu- 
 tion or attachment issued out of any court, whether of record or 
 not, which has not been previously levied. (2) 
 
 § 628. If an of&cer die after he has begun the service of an 
 execution, or be incapable of completing the service and return 
 for any cause, such service may be completed by any other officer 
 who might by law have executed it, if originally delivered to him ; 
 and if the first officer has not certified his doings, the second offi- 
 cer must certify whatever he finds to have been done by the first, 
 adding thereto a certificate of his own doings in completing the 
 service. If the service of an execution is begun before the return 
 day, it may be completed afterwards.(3) Executions in the hands 
 of a sheriff or any of his deputies at the expiration of his term of 
 office, or at the time of his removal from office, may be executed 
 by him or them ; and in case of a vacancy in the office of sheriff, 
 every deputy in office under him having in his hands any execu- 
 tion at the time when such vacancy occurs, is obliged to execute 
 and return the same as if the sheriff had continued in office. (4) 
 
 § 629. If the judgment or execution be irregular, it will be set 
 aside on motion ;(5) but the irregularity can only be taken advan- 
 tage of by the party himself ;(6) and if the party suffer a sale to 
 take place under a voidable execution, and the sale be to a bona fide 
 purchaser without notice, it has been held to be valid, though the 
 execution was afterwards set aside.(7) But an execution issued 
 upon a judgment which has been paid and satisfied, being abso- 
 lutely void, a purchaser under it acquires no title.(8) 
 
 § 630. Amendments of the execution have been allowed when 
 it was wrongly tested ;(9) or made returnable out of term ;(10) or 
 
 (1) Comp. L. 1209, 1210. (2) Id. 1210. 
 
 (3) Id. 1213. (4) Id. 20Y. 
 
 (5) 3 J. R. 257. (6) 1 Cowen, 309; 2 id. 464; IJ 'WendeU, 98. 
 
 (7) 1 Cowen, 711. (8) 8 "WendeU, 681. 
 
 (8) 1 Cowen, 309 ; 22 ■Wendell, «48, (10) 9 J. B. 386. 
 
196 OF THE EXECUTION. 
 
 at a wrong place ;(1) or the return was inaccurately stated or omit- 
 ted ;(2) or the writ not sealed ;(3) or more than a term intervened 
 between the teste and return ; (4) or it was wrongly directed ;(5) 
 or a second yj. /a. omit to recite the first, when necessary; (6) or 
 the sum specified in it varied from the amount of the judgment, 
 and the like cases.(7) 
 
 § 631. Contribution may be enforced when, in actions ex con- 
 tractu, the execution is sued out against two or more, and the whole 
 amount is levied upon the property of one ; but if the action were 
 ex delicto, the party upon whom the whole is levied has no rem- 
 edy.(8) 
 
 Restitution will be awarded when money has been levied by vir- 
 tue of an execution, and the judgment be afterwards reversed or set 
 a8ide.(9) If property besold, the money only, and not the property, 
 will be restored ; but if the judgment be reversed before a sale, the 
 property must be delivered back to the party ; and when the judg- 
 ment is set aside for irregularity, restitution, when necessary, forms 
 part of the order, and if the money or goods be not restored, the 
 court wiU grant an attachment of course.(lO) 
 
 § 632. Aperj)etual stay of execution will be granted, when neces- 
 sary, to prevent fraud or great injustice, provided the facts are 
 clearly made to appear, so that complete justice can be done to 
 the parties concerned ; otherwise the execution may be stayed for 
 a definite time, so as to give the party aggrieved an opportunity of 
 applying to the court of chancery for Telief.(ll) So, where a de- 
 fendant obtained his discharge under a bankrupt law, but not in 
 time to plead it before judgment, and execution is issued, the court 
 will grant a perpetual stay of the execution.(12) 
 
 A new execution has been allowed to be made out and delivered 
 to the sheriff, when an execution was lost or destroyed after being 
 issued ;(13) but after a levy and sale, notice of the motion must be 
 given to the defendant.(14) 
 
 When one of two joint judgment debtors dies, execution maybe 
 issued against oinha^i Ae ;vbut it must issue against both the de- 
 
 (1) 1 Cowen, 199. (2) 6 Cowen, §0. 
 
 (3) 4 Oowen, 550. (4) 3 "Wendell, 303. 
 
 (6) 17 J. B. 63 ; 15 "WendeU, STS. (6) 1 Cowen, 413. 
 
 (I) 12 Wendell, 96. 
 
 (8) 1 Arch. Pr. 219, 291; 8 T. E. 186; but Bee i Carr. & P. 417; 3 id. 467. 
 
 (9) Comp. L. 1088. (10) 1 Arch. Pr. 291. 
 
 (II) 16 J. R. 4. (12) 19 -Wendell, 150 ; 6 HUl, 247. 
 (13) 3 J. R. 448 ; 17 id. 346 ; 3 Cowen, 39. (14) Id. ibid. 
 
EXECUTioisr. 197 
 
 fendanls by name, so as to correspond with the judgment, although 
 it can be enforced against the survivor alone.(l) 
 
 § 683. In its form, the writ of fieri facias, like all other execu- 
 tions, must strictly pursue the judgment, and be warranted by it. 
 It commands the officer to whom it is directed, that, of the goods 
 and chattels of the person against whom it issues, in the county of 
 such officer, he cause to be made the debt, damages, or other sum 
 of money, and costs for which the judgment was rendered, and if 
 sufficient goods and chattels cannot be found, that then he cause 
 the amount to be made of the real estate of such person within his 
 county ;(2) and that he have that money before the court out of 
 which the writ issued, on the return day therein specified. 
 
 § 634. Indorsements must be made upon the writ before the de- 
 livery thereof to be executed, in all oases when the execution of it 
 is qualified or restricted by law to a particular sum or person. 
 Thus, in actions upon bonds for the breach of any condition other 
 than for the payment of money, or for any penal sum for the non- 
 performance of any contract or written agreement, although the 
 execution must be for the sum recovered as in other actions of 
 debt, it must be indorsed with a direction to the sheriff to levy the 
 amount of the damagfes assessed, together with interest thereon 
 from the time of such assessment, and the costs of 3uit.(3) 
 
 § 6S5. So, also, in an action against joint debtors, where all the 
 defendants have not been served with process, or appeared therein, 
 the execution must be in form against all the defendants ; but the 
 attorney or clerk issuing the writ, must indorse thereon the names 
 of such as were not served with process, and did not appear, and 
 direct that it shall not be levied upon the sole property of any de- 
 fendant whose name is so indorsed, but that 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 any or either 
 of them. (4) And when the suit is commenced by attachment, a 
 copy of which is not served on the defendant, and he has not ap- 
 peared in the suit, judgment is rendered and execution issued in 
 the same form as if such copy had been personally served, but the 
 execution in such case must have indorsed thereon, or annexed 
 thereto, a description of the property attached, with a direction to 
 
 (1) 1 Cowen, 111 ; 19 ■Wendell, 644. (2) Comp. L. 1212, 121S 
 
 (3) Comp. L. 1221. (i) Id. 1120. 
 
198 OF THE EXECUTION. 
 
 the officer to sell the same, or so much thereof as may be sufficient 
 to satisfy the execution, but not to levy the same or any part 
 thereof upon any other property. (1) 
 
 § 636. Likewise, in the case of a judgment obtained against a 
 sheriff and his sureties, a direction must be indorsed on the execu- 
 tion, by the attorney issuing the same, to levy the amount thereof, 
 in the first place, of the property of such sheriff, and if sufficient 
 property of such sheriff cannot be found to satisfy such execution, 
 then to levy the deficiency of the property of the sureties ;(2) and 
 the same rule applies to the executions upon judgments in suits 
 upon the official bonds of clerks, registers, notaries public, and all 
 other officers required to give bond to the people of this state.(3) 
 
 § 637. In an action of debt on bond, conditioned for the pay- 
 ment of money, where judgment is rendered for the penalty, the 
 execution must be for the whole sum recovered, but must be in- 
 dorsed with a direction to levy the amount of the condition only, 
 with interest and costs. (4) If the judgment be rendered for a debt 
 Bccured by mortgage upon real estate, a direction to the sheriff 
 must be indorsed upon the execution, not to levy the same or any 
 part thereof upon the mortgaged property, describing it.(5) 
 
 § 638. The priority oi a, fieri facias may be lost, or the writ be- 
 come dorrnani in the hands of the officer ; as when it is delivered 
 to the sheriff with directions to levy merely, and not to sell until a 
 junior execution is received.(6) But the mere indulgence or negli- 
 gence of the sheriff to proceed to a sale, without any act of the 
 plaintiff, will not render the prior execution fraudulent; (7) and the 
 leaving of the property levied upon in the possession of the de- 
 fendant, with the consent of the plaintiff, is not in ttee?/' fraudulent, 
 either as against subsequent purchasers or creditors ;(8) but it is 
 otherwise if the sheriff be directed to delay the sale.(9) In the 
 case of bona fide executions, however, if the sheriff sell the property 
 on the execution last delivered, he is liable to the plaintiff in the 
 first,(10) although the sale will be valid.(ll) 
 
 (1) Comp. L. 1273, 12U. (2) Id. 1311, 1312. (3) Id. 1312. 
 
 (4) 2 Gaines' E. 256 ; 12 J. B. 350. (5) Comp. L. 938 ; 6 Hill, 14. 
 (6) 2 HQl, 362 ; 5 id. 377. (7) 6 Cowon, 390. 
 
 (8) 3 Cowen, J72 ; 6 Hill, 232. 
 
 (9) See 12 Wendell, 404 j 6 Hill, 377 ; 4 Wendell, 332. 
 
 (10) 1 Cowen, 592. (11) 4 Cowen, 461 ; 12 J. E. 162. 
 
SERVICE OF EXECUTION. 199 
 
 § 639. As to the manner of executing the writ, it is to be ob- 
 served, that the rule which protects a man in his own house, from 
 the service of other process, extends also to executions ; and the 
 officer cannot therefore break open the outer door of the party's 
 dwelling house, in order to execute the writ;(l) nor can he enter 
 for the purpose of making a levy without permission, if the outer 
 door be closed merely by being latched ;(2) and if the outer door 
 be shut, the officer has no right to enter, though the occupant be 
 ab3ent.(3) But after he has lawfully obtained entrance at the 
 outer door, he may break open inner doors, cupboards, trunks 
 &c., when necessary; (4) and when the officer has properly com- 
 menced the execution of the process, he may afterwards break the 
 outer door, if necessary for the purpose of continuing and com- 
 pleting it. (5) 
 
 § 640. The outer door of a store, barn, or outhouse, not con- 
 nected with the dwelling house, may, however, be broken open 
 in order to seize the property therein ;(6) and if the defendant's 
 goods be in the house of a third person, the officer, after demand 
 and refusal of admission, may break open the outer door.(7) If 
 the sheriff break open the outer door of the defendant's dwelling 
 house for the purpose of making a levy, it has been held that he may 
 be lawfully resisted in carrying away the property levied on.(8) 
 
 § 641. In executing' the fieri facias, the officer must first seek 
 for personal property belonging to the party against whom it is 
 issued, liable to seizure, and if any be found, he must levy upon 
 it, and expose it for sale, if necessary. He may seize and sell any 
 chattels, real or personal, and all other goods liable to execution 
 by the common law, except as otherwise provided by statute. 
 Current gold and silver coin may be taken in execution, and paid 
 over to the creditor as money collected, without exposing it td 
 sale ; and any bills or other evidences of debt issued by any mo- 
 neyed corporation, and circulating as money, may be taken and 
 paid to the creditor at their par value as money collected, if he will 
 accept them ; otherwise they must be sold as other chattels. The 
 interest of the party in any goods pledged by way of mortgage or 
 otherwise, may also be levied upon and sold. (9) But things fixed 
 
 (1) Cro. Bliz. 908 ; 1 Arch. Pr. 28T ; 6 Hill, 597. 
 
 (2) 1 Hill, 336; 4 id. 437. (3) 1 HiU 336. 
 (4) Cowp. 1; 1 Burr. Pr. 296 ; Gra. Pr. 386. (5) 6 Hill, 597. 
 
 (6) 16 J. E. 289. 
 
 (7) 1 Sid. 186 ; 1 Aroh. Pr. 287 j Cro. Eliz. 908. 
 
 (8) 34 Wendell, 369. (9) Comp. L. 1210. 
 
200 OF THE EXECUTION. 
 
 to the freehold, cannot be severed from it and sold, except fixtures 
 for the purposes of trade ;(1) nor can property demised or let to 
 a party for a term of years be sold ;(2) and the wife's property, 
 whether real or peilBonal, and whether acquired by her before or 
 after marriage, cannot be seized or sold on any execution against 
 the property of the husband.(3) 
 
 § 642. All transfers or assignments of goods or chattels, made 
 in trust for the use of the person making the same, are void as 
 against the creditors, existing or subsequent, of such person; (4) 
 and all assignments of goods or chattels, made with intent to hinder, 
 delay or defraud creditors, are void as against the persons so hin- 
 dered, delayed or defrauded ;(5) and in case of any such assign- 
 ment, the ofiicer may seize and sell the property so assigned, as if 
 no such assignment had been made ; but whenever there is any 
 reasonable doubt as to the ownership, by a judgment debtor, of any 
 goods or chattels, or as to their liability to be taken upon an exe- 
 cution, such officer may require of the judgment creditor sufficient 
 security to indemnify him for taking them thereon ; and if such 
 security be refused, he is not liable for omitting to take them.(6) 
 
 § 643. The levy must be made before or on the return day of the 
 writ; (7) and the sheriff has no authority to levy after that day; (8) 
 and, in order to make the levy under the execution, the officer 
 should enter upon the premises where the goods of the party are, 
 and take actual possession of them, if they are such as possession ' 
 can be taken of. The property should be brought within his view, 
 and subjected to his control, (9) and an inventory taken of it ; and 
 his acts should be such as would subject him to an action of tres- 
 pass, but for the protection of the writ.(lO) But it is not necessary 
 that an assistant of the sheriff should be left in possession of the 
 goods, or that they should be removed ; but the officer may leave 
 them in the possession of the defendant at his own risk, or take 
 security for their delivery at a future day.(ll) 
 
 § 644, After a levy has been made, if a second execution come 
 
 ■(1) 1 Salk. 368. See 2 Smith's Leading Cases, (Am.ed.,) 99, 122. 
 
 (2) 1 Arth. Pr. 294. (3) Oomp. L. 966. 
 
 (4) Oomp. L. 944. (5) Id. 94T, 948. 
 
 (6) Comp. L. 1215, 1216. (7) 13 J. R. 255. 
 
 (8) 4 J. B. 450. (9) 2 HiU, 666. 
 
 (10) 3 WendeU, 446; 14 id. 123 ; 16 J. R. 286. 
 
 (11) 12 "WendeU, 495 ; and see 23 id. 490 ; 2 Hill, 666. 
 
SERVICE OF EXECUTION. 201 
 
 into the hands of the same officer, the levy is sufficient for both, 
 and he may sell the goods on the second execution as -well as on 
 the first.(l) The mere receiving of the latter execution operates as 
 a constructive levy under it, on the property seized by virtue of 
 the first.(2) But if the property levied upon be replevied out of 
 the hands of the officer, it cannot subsequently be levied upon by 
 virtue of another execution, until the claim under the first is deter- 
 mined. (3) 
 
 § 645. Any share or interest of a stockholder in any bank, in- 
 surance, or other joint stock company incorporated under any law 
 of this state, may be taken in execution by leaving a copy thereof, 
 certified by the officer holding it, with the clerk, treasurer, or 
 cashier of the company, if there be any such officer ; and if not, 
 then with any officer or person who has, at the time, the custody 
 of the books and papers of the corporation ; and thereupon the 
 officer of the company appointed to keep a record or account of the 
 shares or interest of the stockholders, upon exhibiting to him the 
 execution, is required to give a certificate of the number of shares, 
 or amount of interest, held by such judgment debtor.(4) 
 
 § 646. Executions against corporations, when levied upon any 
 corporate property, are levied in the same manner as other execu- 
 tions, except in the cases otherwise specially provided by law ;(5) 
 and when any judgment is recovered against a turnpike or other 
 corporation authorized to receive toll, the franchise of such corpo- 
 ration, with all the rights and privileges thereof, together with all 
 their corporate property, may be taken on execution, and sold at 
 public auction. (6) 
 
 § 647. The disposition of the goods after a levy, and before a sale, 
 is a matter very much in the discretion of the officer making the levy. 
 If he deem it safe, and is willing to incur the risk, he may leave 
 them with the defendant ; but the course most generally adopted 
 by sheriffs, is to take from some responsible person, who is willing 
 thus to befriend the party, a receipt for the property levied on, 
 with an agreement to deliver it on demand, or on a particular day, 
 and at a particular place, or to pay the amount of the execution. 
 
 (1) IT X R. 115. (2) 1 Hill, 559 ; 5 Cowen, 390 ; 4 Hill, 158. 
 
 (3) 25 WendeU, 614. (4) Comp. L, 1213, 1214. 
 
 (5) 14 1214. (6) li 101. 
 
202 OF THE EXECUTION, 
 
 and thereupon to leave the property in the hands of the defendant, 
 until it becomes necessary to proceed to a sale.(l) Such receiptor is 
 liable to the officer for the property, and if he fail to comply with 
 his undertaking, the officer may bring replevin or trover for the 
 goods, or assumpsit on the receipt, at his election.(2) li growing 
 grain or other wnharvested crops be levied upon, no sale can be 
 made of such crops until they are ripe, or fit to be harvested.(3) 
 
 § 648. It is the duty ofj^the officer to keep the goods safely to 
 satisfy the execution ; but he is not an insurer of them, although 
 he is answerable if they are lost through his own neglect, or that of 
 others intrusted by him with the custody of them. (4) The sheriff 
 is liable to the plaintiff for the amount of the levy, and it may be 
 recovered from him either by application to the court after the 
 execution has been returned,(5) or by action.(6) If he retain 
 money collected by him, after the return day of the execution, he 
 is liable to be charged with interest upon it.(7) 
 
 § 649. The effect of a levy upon sufficient personal property to 
 satisfy the execution is, prima facie, to extinguish or satisfy the 
 judgment upon which it issues ; but if, after the levy, the defend- 
 ant become bankrupt, or if the property be destroyed by inevita- 
 ble accident before sale, or be restored to the defendant with his 
 consent, or eloigned by him, in none of these or the like cases does 
 the levy operate as a satisfaction of the judgment. (8) 
 
 A levy on personal property, which is valid in law as against 
 the defendant in the execution, and will justify a sale under it, will 
 operate to defeat a subsequent purchase, though made in good faith 
 and for a valuable consideration.(9) 
 
 § 650. If the amount required to be collected by the execution 
 be not paid, the officer must proceed to sell the property at public 
 auction, and he cannot keep the goods himself, and pay the plain- 
 tiff with his own money, and retain the execution for his own ben- 
 efit, even with the consent of the defendant ;(10) nor can he take a 
 bond or other security from the defendant, and retain the execu- 
 tion in his hands, and use it afterwards to enforce payment of the 
 money advanced by him.(ll) The plaintiff may become the pur- 
 
 (I) 5 HUl, 588. (2) 3 Hill, 215. 
 (3) Oomp. L. 1210, 1211. (4) 5 Hill, 588. 
 
 (5) 2 Tidd's Pr. 1019, (G) 6 Oowen, 465; 8 Jor. 20. 
 
 (7) 4 Wend. 675. (8) 3 Doug. Mich. E 379, 408; 1 Burr. Pr. 299. 
 
 (9) 11 MTeudell, 648. (10) T J. B. 426; 4 Wendell, 474. 
 
 (II) 7 J. E. 426. 
 
SERVICE OF EXECUTION. 203 
 
 cliaser of the goods at the sale, in which case the officer may deliver 
 them to him without payment, crediting the amount to the defend- 
 ant, unless there be a surplus, in which case the surplus must be 
 paid.(l) 
 
 Although the sale ought to be made within a reasonable time, so 
 as to avoid any danger of the execution becoming dormant, yet 
 the officer always has a discretion in delaying or postponing a sale, 
 in order to avoid an unnecessary sacrifice of the property. (2) 
 
 § 651. Notice of the sale must be given at least ten days previous 
 thereto, by fastening up written or printed notices thereof in three 
 public places in the township where such sale is to be made, spe- 
 cifying the time and place of the sale ;(8) and in case of the sale 
 of the franchise of a corporation, the officer having the execution 
 must, thirty days at least before the day of sale of the franchise or 
 other corporate personal property, give notice of the time and place 
 of such sale, by posting up a notice thereof in any township in 
 which the clerk, treasurer, or any one of the directors of the cor- 
 poration may dwell ; and also by causing an advertisement of the 
 sale, expressing the name of the creditor, the amount of the execu- 
 tion, and the time and place of sale, to be inserted three weeks 
 successively in some newspaper published in any county in which 
 either of the aforesaid officers dwells, if any such there be.(4) 
 
 § 652. No personal property can be exposed for sale on execu- 
 tion, unless the same be present, and within the view of those 
 attending the sale ; and it must be offered for sale in such lots and 
 parcels as are calculated to bring the highest price.(5) 
 
 After the return of an execution satisfied in whole or in part, a 
 new execution may be ordered by the court, when any property 
 sold thereon afterwards appears not to have belonged to the judg- 
 ment debtor, or not to have been liable to execution, and if any 
 damages shall be recovered against the judgment creditor, or the 
 officer who served the execution, on account of the seizure and sale 
 of the property, to collect the amount then remaining justly and 
 equitably due. (6) 
 
 A sale was set aside, and a resale ordered on the application of 
 a judgment creditor, when property worth $1000 was sold for a 
 trifling sum, the plaintiff in the execution having been disappointed 
 in the attendance of an agent at the sale, and the defendant being 
 
 (1) 19 J. E. 84. (2) 2 Cowen, 139; Comp. L. 1213, 102. 
 
 (3) Comp. L. 1210. (4) Comp. L. 701, 702. 
 
 (5) Comp. L. 1212 ; 2 Mich. B. 157, (6) Comp. L. 1214. 
 
204 OF THE EXECUTION. 
 
 insolveiit.(l) And when a defendant witli whom property was 
 left after a levy, removed it from the county, and the sheriff was 
 made liable for the amount, the court, on notice to the defendant, 
 permitted a new execution to be issued for the benefit of the 
 sheriff.(2) 
 
 § 653. A set-off of executions, one against another, may be 
 made between the same parties, if required by either party, in the 
 following manner : When one of the executions is delivered to an 
 officer to be served, the person who is the debtor therein may de- 
 liver his execution to the same officer, whether the second execu- 
 tion is directed to the same or any other officer ; and the officer 
 must apply it, as far as it will extend, to the satisfaction of the iirst 
 execution, and make an indorsement of such application on each 
 of the executions ; and the balance of the larger execution only 
 may then be collected.(3) 
 
 But such set-off is not allowed : 1. "When the creditor in one of 
 the executions is not the debtor in the other, in the same capacity 
 and trust ; 2. When the sum due on the first execution shall have 
 been lawfully, and in good faith, assigned to another person, before 
 the creditor in the second execution became entitled to the sum 
 due thereon ; 3. Where there are several creditors in one execu- 
 tion, and the sum due on the other is due from a part of them only ; 
 4. Where there are several debtors in one execution, and the sum 
 due on the other, is due to a part of them only ; nor, 5. Can it be 
 allowed as to so much of the first execution as may be due to the 
 attorney in that suit for his taxable fees and disbursements.(4) 
 
 § 654. The following personal property is exempted by statute 
 from levy and sale under any execution or final process of a courti 
 to wit : 1. All spinning wheels, weaving looms with the apparatus, 
 and stoves put up or kept for use in any dwelling house ; 2. A seat, 
 pew or slip, occupied by the person or his family, in any house or. 
 place of public worship; all cemeteries, tombs and rights of burial, 
 while in use as repositories of the dead ; 4. All arms and accoutre- 
 ments required by law to be kept by any person, and all wearing 
 apparel of every person or family ; 5. The library and school books 
 of every individual and family, not exceeding one hundred and 
 fifty dollars in value, and all family pictures ; 6. To each house- 
 holder, ten sheep with their fleeces, and the yarn or cloth manufac- 
 
 (1) 18 Wendell, 611. (2) 19 WendeU, 19 
 
 (3) Comp. h. 1215. (4) Id. 1216. 
 
EXEMPTIOK. 205 
 
 tured from the same ; two cows, five swine, and provisions and 
 fuel for the comfortable subsistence of such householder and family 
 for six months ; 7. To each householder, all household goods, fur- 
 niture and utensils, not exceeding in value two hundred and fifty- 
 dollars ; 8. The tools, implements, materials, stock, apparatus, 
 team, vehicle, horses, harness, or other things to enable any person 
 to carry on the profession, trade, occupation or business in which 
 he is wholly or principally engaged, not exceeding in value tw-o 
 hundred and fifty dollars ;(1) and, 9. A sufficient quantity of hay, 
 grain, feed and roots for properly keeping for six months the ani- 
 mals so exempted from execution.(2) 
 
 § 655. But the property mentioned in the above eighth subdivis- 
 ion, excepting mechanical tools and implements of husbandry, is 
 not exempt from an execution issued upon a judgment for the pur- 
 chase money of the same property. (3) And the word team, in the 
 same subdivision, is construed to mean either one yoke of oxen, a 
 horse, or a pair of horses, as the case may be.(4) All fire engines 
 and apparatus requisite for, and ordinarily used by fire companies 
 in the extinguishment of fires, owned by any city or village, and 
 kept for the use of any fire companies therein ; and all water works, 
 with the buildings, machinery and fixtures, and the ground occu- 
 pied thereby, owned by any such city or village, or intended to be 
 used for the supplying of water for the extinguishment of fires, 
 and the use of the inhabitants, are also exempted from levy or sale 
 on execution. (5) , 
 
 § 656. When a levy is made upon any class or species of prop- 
 erty exempted from execution to a specified amount or value, the 
 officer levying the execution may make an inventory of the whole 
 of such property belonging to the execution debtor, and cause it 
 to be appraised at its cash value by two disinterested freeholders of 
 the township where the property is, on oath to be administered by 
 him. Upon the completion of such inventory and appraisal, the 
 defendant in the execution, or his authorized agent, may select 
 therefr»m an amount of such property', not exceeding, according 
 to such appraisal, the amount exempted from execution ; but if 
 neither such defendant nor his agent appear and make such selec- 
 tion, the officer must make it for him.(6) 
 
 And whenever the defendant in an execution has cows, sheep, 
 swine or other animals or articles, some of which are exempt, and 
 
 (1) 3 Mich. R. 67. (2) Comp. L. 1211. (3) Id. 1216. 
 (4) Id. 1216. (6) Id. 516. (6) Id. 1212. 
 
206 OF THE EXECUTION. 
 
 some not, the officer may take them all into his possession, and 
 such defendant or his authorized agent, on being notified of the 
 levy, may immediately select so many thereof as are exempt from 
 execution ; but if the defendant be absent, or neglect to make such 
 selection, on being notified, the oQicer must make it for him.(l) 
 
 § 657. The real estate of a debtor, whether in possession, rever- 
 sion or remainder, including lands fraudulently conveyed with in- 
 tent to defeat, delay or defraud his creditors, and all rights of 
 redeeming mortgaged real estate, and real estate sold on execution, 
 is subject to the payment of his debts, and may be sold on execu- 
 tion, excepting " the homestead " of such debtor, and excepting 
 also that when a judgment is recovered for a debt secured by mort- 
 gage, the equity of redemption of the mortgage property cannot be 
 sold on execution upon such judgment.(2) But _it is only when 
 sufficient goods and chattels whereof to satisfy the execution can- 
 not be found, that the officer is required to cause the amount which 
 may be deficient to be made of the lands and tenements of the 
 debtor.(3) 
 
 § 658. The judgment not constituting a lien upon lands and 
 tenements, and the officer not being authorized to take possession 
 of it under the execution, must make his levy by indorsing a cer- 
 tificate or memorandum thereof upon the execution, and he should 
 do this in order to bind the real estate as soon as he ascertains 
 that there may be a deficiency of personal property to satisfy the 
 execution. 
 
 § 659. Notice of the time and place of the sale of real estate must 
 be given in the following manner : 1. A written or printed notice 
 thereof must be fastened up in three public places in the township 
 where such real estate is to be sold, six weeks previous to the sale ; 
 and if such sale be in a township different from that in which the 
 premises to be sold are situated, then such notice must also be 
 fastened up in three public places in the township in which the 
 premises are situated ; 2. A copy of such notice must be published 
 once in each week for six successive weeks in a newspaper printed 
 in the county in which such estate is to be sold, if there be one ; 
 and, 3. If there be no newspaper printed in such county, then such 
 notice must be published once in each week for six successive 
 weeks in some newspaper printed in an adjoining county. In 
 
 (1) Comp. L. 1212. (2) Id. 830, 938, 121'r. (3) Id. 1212. 
 
SALE OF REAL ESTATE. 207 
 
 such notice, the real estate to be sold must be described with rea- 
 sonable certainty, by setting forth the name or number of the 
 township in which it is situated, and the number of the lot, or by 
 some other appropriate description.(l) 
 
 '§ 660. The sale must be made at public vendue, between the 
 hour of nine o'clock in the morning and the setting of the sun, at 
 the court house, or place of holding the circuit court in the county 
 in which the property is situated.(2) 
 
 The of&cer is liable to the party injured in five hundred dollars 
 damages, besides the actual damages proven on the trial, if he sell 
 without the previous notice required by law, or otherwise than in 
 the manner prescribed by the statute ; and any person taking 
 down or defacing any such notice of sale, unless upon satisfaction 
 of the execution, or consent of the parties, is liable in fifty dollars 
 damages. But the want of notice, or the taking down or defacing 
 the same, does not affect the validity of a sale to a purchaser in 
 good faith, and without notice of the omission, taking down, or 
 defacing.(3) 
 
 § 661. Neither the sheriff nor any of his deputies, nor any other 
 officer to whom the writ is directed, ia allowed to be directly or 
 indirectly interested in the purchase of any real estate so sold. (4) 
 
 If the real estate to be sold consist of several known lots, tracts 
 or parcels, such lots, tracts or parcels must be separately exposed 
 for sale, and the defendant may direct which piece or parcel shall 
 be first exposed for sale ; and no more of such tracts or parcels can 
 be exposed for sale than are necessary to satisfy the execution, 
 with the costs and expenses of the sale. (5) 
 
 Under a similar provision of law, a sale was set aside as fraudu. 
 lent when real estate worth $10,000 was sold for $100, the prem- 
 ises being so situated that a portion, which would probably have 
 brought more than sufficient to satisfy the execution, could conve- 
 niently have been sold separately.(6) 
 
 If the property was advertised to be sold upon one execution 
 only, and another execution subsequently come into the hands of 
 the officer, he cannot sell oa both, without also advertising the sale 
 on the last execution; (7) nor can real and personal property be 
 sold together without discrimination.(8) 
 
 (1) Comp. L. 930. (2) Id. 931. (3) Id. 931. 
 
 (4) Id. 931. (5) Id. ibid. (6) 6 "WendeU, 522. 
 
 (1) 3 Oowen, 334. (8) 17 J. B. 116. 
 
208 or THE EXECUTION. 
 
 § 662. The purchaser does not at once acquire a complete title 
 to the property, nor "to the possession of it ; but upon making the 
 sale, the officer prepares and executes as many certificates of the 
 sale as may be necessary, containing a particular description of the 
 premises sold, the price bid for each distinct tract or parcel sold, 
 the consideration money paid for each lot or parcel, and the time 
 when such sale will become absolute, and the purchaser or pur- 
 chasers will be entitled to a deed of the property. One of such 
 certificates must, within ten days after the sale, be filed by the offi- 
 cer in the office of the register of deeds of the county in which the 
 sale was made, and one delivered to each purchaser at the sale. 
 The original certificate, or a copy thereof duly certified by the 
 register of deeds in whose office it is filed, will be received as pre- 
 sumptive evidence of the facts therein set forth. (1) 
 
 § 663. JlistaJces and omissions in the certificate may be corrected 
 or supplied by amendment, on motion to the court. Thus, where 
 a sheriff sold three parcels on an execution, but in the certificate 
 of sale omitted to mention one of the parcels by mistake, the court 
 allowed him to amend the certificate according to the fact. (2) 
 
 § 664. Whenever the execution upon its face authorizes the 
 officer to sell, and is based upon a subsisting judgment, the title of 
 a bona fide purchaser will not be affected by any irregularities in 
 the execution.(3) Thus, the neglect of the officer to levy until 
 after the return day of the writ,(4) or his omission to give due 
 notice of sale, or to file the certificate of sale,(o) will not prejudice 
 the title of a purchaser in good faith, without notice. And when 
 the sheriff sold a term under afi./a. which was afterwards set aside 
 for irregularity, and the proceeds directed to be returned to the 
 termor, it was held that the termor could not maintain ejectment 
 to recover his term against the vendee of the sheriff.(6) But if a 
 judgment be satisfied, the power to sell under it ceases, and no title 
 can be conferred by a sale, even to a bona fide purchaser.(7) 
 
 § 665. A resale will in some cases be ordered on application of 
 the plaintiff; as when, in consequence of being deceived by the 
 representations of the defendant as to the locality of the property, 
 the plaintiff bid more for it at the sale than it was worth ; and it 
 
 (1) Comp. L. S3J. (2) 1 Cowen, 430 ; and iee 13 Wond. 29. 
 
 (3) 1 Cowen, 622, 640. (4) 13 J. E. 97. (6) 6 Cowen, 269. 
 
 (6) 1 M. & S. 425. (7) 16 J. E. 443 1 1 Cowen, 622 ; 2 Hill, 566. 
 
BEDEMPTION, 209 
 
 was struck off to him, tlie sale was set aside and a resale ordered. (1) 
 And so, when the plaintiff inadvertently bid -a sum less than the 
 amount of the execution ;(2) and where the plaintiff's agent was 
 incorrectly informed by the sheriff as to prior incumbrances ;(3) 
 the court ordered a resale. 
 
 § 666. Redemption may be made of the real estate sold, or any 
 distinct lot, tract or portion that may have been separately sold, 
 within one year after the sale was made, by payment to the pur- 
 chaser, his personal representatives or assigns, or to the officer who 
 made the sale, or to the register in whose office the certificate is 
 filed, for the use of the purchaser, of the sum of money which was 
 bid on the sale of such lot or tract, together with the interest on 
 that sum Irom the time of the sale ; and upon such payment, the 
 sale and certificate thereof, to the extent of the premises redeemed, 
 becomes void.(4) 
 
 Such redemption may be made, 1. By the person against whom 
 the execution was issued, and whose right and title were sold in 
 pursuance thereof; or, 2. If such person be dead, by his devisee of 
 the premises sold, if the same shall have been devised ; and if not, 
 then by the executor or administrator, with the approbation of the 
 judge of probate, or by the heirs of such person ; or, 3. By any 
 grantee of such person who shall have acquired an absolute title by 
 deed, sale under mortgage, or under an execution, or by any other 
 means, to the premises sold, or to any lot, tract, parcel or portion 
 which shall have been separately sold ; or, 4. By the purchase of 
 the title and right of redemption of the person against whom the 
 execution issued. (5) 
 
 § 667. Any heir or devisee of such person, or grantee who has 
 acquired an absolute title to a portion of the estate sold, or to a por- 
 tion of any lot or tract separately sold, or the executor or adminis- 
 trator of such person, with the approbation of the judge of probate, 
 may redeem the whole lot, tract or parcel so sold, on the same terms 
 and in the same manner as if he were grantee of the whole lot, tract 
 or parcel ; and may have the same remedy to enforce contribution 
 from the owners of the residue, as if the sum required to be paid 
 by him, to effect such redemption, had been collected by a sale of 
 the portion belonging to such grantee. 
 
 Joint tenants, and tenants in common may redeem by paying a 
 
 (1) 12 "Wend. 2B3. (2) 2 Wend. 260. (3) 1 Howard S. T. B. 113. 
 
 (4) Comp. L. 932, 933. (6) Id. 932, 933. 
 
 14 
 
210 OF THE KXECUTION. 
 
 proportion of the purchase money and interest, corresponding with 
 their interest in the premises. (1) 
 
 § 668. If the persons so entitled, do not redeem within the 
 year, then any creditor of the person against whom the execution 
 issued, having in his own name, or as assignee, representative, trus- 
 tee or otherwise, a decree in chancery or a judgment at law ren- 
 dered at any time before the expiration of fifteen months from the 
 time of such sale, by paying the sum of money which was paid on 
 the sale of such premises, together with seven per cent, interest, 
 may thereby acquire all the rights of the original purchaser to the 
 same, or to such portion or interest therein as the decree or judg- 
 ment may extend to, subject to be defeated as hereinafter men- 
 tioned.(2) 
 
 § 669. When any such creditor shall have acquired the title of 
 the original purchaser, any other creditor who might have acquired 
 such title, may become a purchaser thereof from the first creditor 
 who acquired the same, by reimbursing such first creditor, his per- 
 sonal representatives or assigns, the sum paid by him to acquire the 
 title, with seven per cent, interest ; and if the judgment or decree, 
 by virtue of which the first creditor acquired the title, be prior to 
 the judgment or decree of such second creditor, then such second 
 creditor must also pay the amount due thereon.(3) 
 
 § 670. In the same manner any third or other creditor who 
 might acquire the title of the original purchaser, may become a pur- 
 chaser thereof from the second, third, or any creditor who may 
 have become such purchaser from any other creditor, upon the 
 same terms and conditions. (4) And if the original purchaser be 
 also a creditor of the defendant in the execution, and as such might 
 acquire the title of any purchaser, he may avail himself of his de- 
 cree or judgment to acquire the title which any other creditor may 
 have obtained.(5) 
 
 The plaintiff under whose execution the property was sold, can- 
 not acquire the title of the original purchaser, or of any creditor, 
 by virtue of the decree or judgment on which the execution 
 issued ;(6) nor can he seU the same lands for the balance remaining 
 due on his judgment; (7) but if he have any other decree or judg- 
 
 (1) Comp. L. 933. 
 (4) Id. 935. 
 (1) 8 J. K. 333. 
 
 (2) Id. 934. 
 (5) Id. 935. 
 
 (3) Id. 934. 
 
 (6) Id. 935 ; 4 Cow. 133. 
 
REDEMPTION. 211 
 
 ment wliicli would entitle him to acquire the title, he may avail 
 himself of it for that purpose, in the same manner and on the same 
 terms as any other creditor. (1) 
 
 § 671. The sums required to be paid to acquire the title of the 
 original purchaser, or to become a purchaser from any creditor, 
 may be paid to such purchaser or creditor, his representatives or- 
 assigns, or to the oflacer who made the sale, or to the register in 
 whose office the certificate of sale was filed, for the use of the pur- 
 chaser or creditor entitled to the same ; and upon such payment 
 being made, the title of the original purchaser is thereby transferred . 
 to the creditor acquiring the same, and from such creditor to any 
 other creditor becoming a purchaser thereof.(2) 
 
 To entitle any creditor to acquire the title of the original pur-- 
 chaser, or to become a purchaser from any other creditor, he must 
 present to and leave with such purchaser or creditor, or the officer 
 who made the sale, or with the register, the following evidence of" 
 his right : 1. A certified copy of the judgment or decree under 
 which he claims the right to purchase ; 2. A true copy of all the 
 assignments of such judgment or decree, which are necessary to ■ 
 establish his claim, verified by his affidavit, or the affidavit of some 
 witness thereto ; and, 3. An affidavit of such creditor, his agent or ■ 
 attorney, of the true sum due on such judgment or decree at the 
 time of claiming such right to purchase.(3) 
 
 § 672. When an equity of redemption from under a mortgage, , 
 or sale on execution,- has been sold, and the purchaser pays the • 
 amount of the mortgage, or of the sale on execution, or any part . 
 thereof, the amount so paid on the mortgage, or execution sale, . 
 must be paid, with interest, to such purchaser or creditor, in re- ■ 
 deeming the premises.(4) 
 
 The right and title of the person whose property is sold on exe-- 
 cution is not divested by the sale until the expiration of fifteen 
 months ; but he and others are liable to the purchaser, or creditor 
 having acquired the rights of the purchaser, for any waste commit- 
 ted upon the premises, or the removal of any fences, buildings, or 
 other fixtures therefrom; (5) and in case of any attempt to commit 
 such waste, the commission thereof may be restrained by an order 
 fca: that purpose.(6) 
 
 (1) Comp. L. 935. (2) Id. 935. 
 
 (3) Id. 935, 936. (4) Id. 938. 
 
 (5) Id. 936. (6) Id. 1269. 
 
212 ' OF THE EXECUTION. 
 
 § 673. As to the effect of the redemption, it has been held that 
 when lands of a debtor are sold under execution, and ayMWibr judg- 
 ment creditor redeems them from the purchaser, such redemption 
 is no bar to an action at law to enforce payment of the judgment, 
 although the value of the lands redeemed exceeds the amount of 
 the judgment, and that the redemption does not operate as an ex- 
 tinguishment of the judgment.(l) And when lands sold on an 
 execution were bid in by a third person for less than the amount 
 ■of the judgment, and were redeemed by the debtor, it was held 
 .that they might be resold on the same execution for the balance 
 jemaining due.(2) 
 
 § 674. A deed of the premises is necessary to complete the sale ; 
 .•and after the expiration of fifteen months from the time of the 
 iSale, if any portion of the lands sold were not redeemed by some 
 jperson entitled to redeem them within the year, the officer who 
 made the sale, or his successor in ofi&ce, must execute a deed of 
 • conveyance thereof to the person entitled thereto ; which convey- 
 ;ance will be valid and effectual to convey all the right, title and 
 interest which was sold on the execution.(3) If the person who 
 would have been entitled to a deed be dead, the deed must be 
 made to his personal representatives ; or if any other party is equi- 
 -,tably entitled thereto, the circuit court, on a hearing upon, bill or 
 petition, may order the conveyance to be made to such person ;(4) 
 and if an assignee or his representatives claim to be entitled to 
 such conveyance, it must appear that all the assignments were duly 
 ^executed, acknowledged or proven, and recorded.(o) 
 
 § 675. If any surplus moneys remain in the hands of the of&cer 
 lupon the sale of any 'real estate on the execution, after satisfying 
 the writ or writs on which it was sold, and interest thereon, such 
 ofl&cer is required to pay over such surplus to the judgment debtor, 
 
 ■ or his legal representatives, on demand ;(6) and if any ofBicer unrea- 
 .sonably neglect to pay money collected by him on execution, when 
 
 ■ demanded by the creditor therein, he is liable to such creditor in 
 .five times the lawful interest thereon from the time of the demand 
 -until paid.(7) 
 
 In case of the eviction of the purchaser or his representatives, or 
 judgment against him or them for the recovery of the premises, in 
 
 (1) 20 'WendeU, 50 ; 1 Cowen, 540. (2) 5 HUl, 228. 
 
 (3) Comp. L. 93T. (4) Id. 931 ; 3 Mich. E. 436. 
 
 (5) Comp. L. 939. (6) Id. dSl, 938. 
 
 (1) Id. 1214. 
 
CONTEIBUTION-. 213 
 
 consequence of any irregularity in the proceedings concerning such 
 sale ; or, if the judgment upon which such execution issued be 
 vacated or reversed, such purchaser, his heirs or assigns, may re- 
 cover of the party for whose benefit such real estate was sold, the 
 amount paid on the purchase thereof, with 'interest ; and in such 
 case the party for whose benefit the sale was made, if such recovery 
 be had in consequence of any irregularity concerning the sale, may 
 have further execution upon the judgment, to levy the amount paid 
 on such sale, with interest.(l) 
 
 § 676. If the officer refuse to execute a deed to the party claiming 
 to be entitled to it, the remedy is, in general, properly sought by 
 application to the court for a mandamus to compel him, and this is 
 the proper mode of bringing up the question as to the right of 
 redemption where it is in dispute ; and the court will, if necessary, 
 direct the officer as to the form of the deed.(2) 
 
 The deed tahes effect, by relation, from the expiration of the time 
 limited for redemption; (3) and is per se evidence of title in the 
 grantee ; and parol evidence is not admissible to show that the land 
 was sold under a different judgment and execution from those 
 recited in the deed.(4) But the sale and deed may be set aside on 
 motion of the debtor, or a judgment creditor, on the ground of 
 fraud. (5) 
 
 § 677. Contribution may be enforced when lands and tenements 
 in the hands of several persons are liable to satisfy any judgment, 
 and the whole, or more than a due proportion of the judgment is 
 levied upon the lands of one or more of such persons. In such 
 case the party so aggrieved, or his personal representatives, may 
 compel a just and equal contribution by all the persons whose lands 
 and tenements ought to contribute to the satisfaction of such judg- 
 ment ; and such lands and tenements are liable to contribution in 
 the following order : 1. If they were conveyed by the defendant 
 in the execution, they are liable in succession, commencing with, 
 the lands last conveyed ; 2. If they were sold under execution 
 against the defendant, they are also liable in succession, commencing 
 with the lands sold under the last and youngest judgment ; 3. If 
 there be lands so liable which were conveyed by the defendant in 
 the execution, and also lands which have been sold under execv.- 
 
 (1) Comp. L. 939. (2) 1 Burr. Pr. 302. 
 
 (3) 1 HiU, 108 ; 2 Wendell, 501 ; 22 id. 116. 
 
 (4) 20 J. E. 4:9 ; 11 "Wendell, 422. (5) 20 J. B. 51. 
 
214 OF THE EXECUTION. 
 
 tion against sucli defendant, they are respectively liable in succes- 
 sion, in the same order.(l) 
 
 The provisions of the statute in regard to contributions above 
 referred to, were framed in reference to a proposed provision, making 
 judgments a lien upon the real estate of the debtor, which was 
 rejected by the legislature ; and bence some apparent incongruities 
 on the face of the statute, and doubt as to its practical application.(2) 
 
 § 678. In actions of replevin, when the property was not deliv- 
 ered to the plaintiff, and he have judgment that the property 
 claimed be replevied and delivered to him, the execution corres- 
 ponds with the judgment, and upon sucb execution the officer 
 possesses the same powers in respect to the replevying of the prop- 
 erty, as upon a writ of replevin.(3) 
 
 § 679. In ejectmeni, if the plaintiff recover j udgment for the pos- 
 session of the land and costs, the execution not only commands the 
 ofl&cer to collect such costs, but also to deliver to the plaintiff the 
 possession of the premises so recovered, and which are described in 
 the writ. In such case the sheriff must deliver possession accord- 
 ing to the description contained in the writ, and he is armed with 
 all the power necessary for that purpose. Thus, if the recovery be 
 of a house, and he be denied entrance, he may justify breaking open 
 the outer door, for the writ cannot otherwise be executed.(4) If 
 the recovery be of several messuages in the possession of different 
 persons, the sheriff must go to each of the several houses, and sev- 
 erally deliver possession thereof by turning out the tenants, for the 
 delivery of one messuage in the name of all, is not. a good execu- 
 tion of the writ, since the possession of one tenant is not the posses- 
 sion of another. But where the several messuages are in the pos- 
 session of one tenant only, it is sufficient if he give possession of 
 one in tbe name of all.(5) 
 
 § 680. If the officer be disturbed in the execution of the writ, 
 the court will, on a proper showing, grant an attachment against 
 the party interfering, whether he be the defendant or a stranger ;(6) 
 and the writ will not be considered as completely executed until 
 the sheriff and his officers are gone, and the plaintiff is left in quiet 
 possession.(7) 
 
 (1) Comp. L. 939, 940. (2) See introductory note to B. S. of 1856, p. yi. 
 
 (3) Comp. L. 1336. (4) 5 Co. 91 ; TiU. Ad. on Ejeo. 342. 
 
 <5) Id. ; ibid. (6J Comp. 1. 1128. 
 (t) TiU. Ad. on Ejeo. 343. 
 
RETURN OF EIECUTIOlir. 215 
 
 § 681. The return of the officer to a writ of execution, is made 
 by indorsing thereon, or annexing thereto, a certificate of his doings 
 under the same, and filing the writ, with such certificate, in the office 
 of the clerk of the court from which it issued ; and if a sale of prop- 
 erty was made under it, he must, in his return, specify the articles 
 sold, and the sum for which each article or parcel was sold ; and if 
 he be guilty of any fraud in the sale, or in the return, he is liable 
 to the party injured in five times the actual damage sustained by 
 reason thereof.(l) 
 
 § 682. There are three species of returns which the officer may 
 make to ih.Q fieri facias, according as the facts maybe: 1. Fieri 
 feci, or that he has caused to be made of the defendant's goods, &c., 
 the whole or a part of the sum directed to be leyied, which he has 
 ready to be paid to the plaintiff ; or, when the money is actually 
 paid to the plaintiff, he returns the writ "satisfied;" 2. That he 
 has levied upon goods or real estate of the defendant, which remain 
 unsold for want of buyers ; 3. Nulla bona, or, in the language usu- 
 ally adopted, no goods, chattels, lands or tenements, which applies to 
 all cases where no property of the defendant can be found to satisfy 
 the execution, in whole or in part. But if the officer has been pre- 
 vented from taking property of the defendant by a writ of error, 
 which operated as a supersedeas, he should not return nulla bona, 
 but the special fact of a writ of error served ;(2) other special returns 
 are sometimes required, according to the nature of the writ, and the 
 manner of its execution. If the return made by the officer be un- 
 true, the plaintiff may have his action against him for a false re- 
 turn.(3) 
 
 § 683. If the officer return that he has taken property, but that 
 it remains on hand for want of buyers, the plaintiff may sue out a 
 writ of venditioni exponas ;(4) reciting thejierifacias, and the return 
 thereto, and commanding the sheriff to expose the goods to sale, and 
 to have the moneys arising therefrom in court to render to the plain- 
 tiff on the return day therein specified. If goods to the amount of 
 part only of the debt were seized under the fieri facias, and the 
 above return be made, the plaintiff may have a venditioni exponas 
 for that part, and a, fi^i facias for the residue, iu one writ.(5) Upon 
 this writ the sheriff is bound to proceed and sell, and make return, 
 
 (1) Comp. L. 1216. (2) 3 Moore, 83. 
 
 (3) 1 Oaiaes' R. 51. (4) Cowp. 406; 5 Hill, 571. 
 
 (5) 1 Howard S. T. E. 153. 
 
216 OF THE EXECUTION. 
 
 and lie cannot a second time return that the goods remain on hand 
 for want of buyers.(l) 
 
 If the sheriff retilrn_/ien'j^a to the writ, but refuses to pay over 
 the money collected, he may be proceeded against by attachment 
 or by action.(2) 
 
 § 684. If the whple amount directed to be levied on the fieri 
 facias be not collected, and the writ be returned unsatisfied as to 
 part, the plaintiff may have another fi. fa. for the residue, to the 
 sheriff of the same county, reciting the first writ, and the sheriff's 
 return to it; (3) or a testatum fi. fa. may be sued out and directed to 
 the sheriff of another county ; or he may have a ca. sa. when that 
 writ lies for the residue.(4) 
 
 If the writ be returned nulla hona, an alias fi. fa. may be sued 
 out to the sheriff of the same county, which is like the first in all 
 respects, with the addition of the aZtas clause in the mandate of the 
 writ, " as you have before been commanded." If the alias fi. fa. be re- 
 turned nulla bona, & pluries fi. fa. may be sued out to the sheriff of 
 the same county, which resembles the alias in all respects except in 
 the mandate ; or a testatum fi. fa. may be issued to the sheriff of 
 another county ; but the writ will be good if the testatum clause be 
 omitted. (5) 
 
 § 685. If the execution against the property prove ineffectual, 
 then the creditor may, in the cases allowed by law, have an execu- 
 tion against the person of the debtor. 
 
 The capias ad satisfaciendum is issued and directed in the same 
 manner as &fi.fa., and commands the officer to whom it is directed 
 to take the party named in it, if he may be found in his county, so 
 that h6 may have his body before the court at the return day, to 
 satisfy the party in whose behalf the writ is issued, the amount of 
 the judgment, &c. It may be issued in those cases only when the 
 suit may be commenced by a capias ad respondendum, and in which 
 the defendant may be held to bail. 
 
 No suit can be commenced against special bail upon their recog- 
 nizance, until after the return of &fi.fa. unsatisfied in whole or in 
 part ; nor until a ca. sa., having at least fifteen days between the 
 teste and return thereof, shall have been issued to the sheriff of the 
 same county, and by him returned, that the defendant could not be 
 found thereiD.(6) 
 
 (1) Cowp. 406 ; 1 Arch. Pr. 201. (2) See 1 Burr. Pr. 305. 
 
 (3) 1 Salk. 318; 5 Hill, 51\. (4) Comp. L. 1308. 
 
 (5) 19 ■Wendell, 86. (6) Comp. L. 1144. 
 
SEEVICE OF CA. SA. 217 
 
 § 686. If tlie defendant be in custody at the time the judgment 
 is rendered, either upon the original process in the suit, or upon a 
 surrender by his bail, the plaintiff must charge him in execution 
 within three months after the last day of the term next following 
 that at which judgment shall have been obtained. And if the 
 defendant be in custody upon a surrender in discharge of his bail 
 made after judgment, and the bail be thereupen exonerated, the 
 plaintiff must charge the defendant in execution within three 
 months after such surrender ; or, if a. Ji./a. has been issued, within 
 three months after the return day thereof ;(1) and if the plaintiff in 
 either case neglect to so charge the defendant in execution, he may 
 be discharged from custody by a supersedeas to be allowed by the 
 judge of the court in which the judgment was obtained, unless 
 good cause to the contrary be shown ; and after being so discharged, 
 such defendant wUl not be liable to be again arrested upon any, 
 execution issued upon such judgment.(2) The ca. sa. is amendable 
 like other writs.(3) 
 
 § 687. If the defendant be taken in execution upon a ca. sa., it 
 is so far considered a satisfaction that the plaintiff can have no 
 further process upon the judgment, unless such defendant escape. (4) 
 K the defendant die in execution, however, the judgment is not 
 extinguished, but may be certified to the probate court, to be paid 
 in the course of administration. (5) 
 
 The ca. sa. is to be eaxcuted by arresting the defendant, and de- 
 taining him in custody until discharged by due course of law. 
 The of&cer is bound to use all reasonable endeavors to execute the 
 writ, and if he relies upon vague information of the absence of the 
 party, derived from casual inquiries, and omits to go to his resi- 
 dence, he does so at the peril of being answerable for a false 
 return. (6) Upon being arrested, the defendant must either pay the 
 amount of the execution, or give bail for the jail liberties, or, in 
 default of so doing, he is committed to prison. A payment to the 
 officer, or to the plaintiff's attorney, will discharge the defendant, 
 but the attorney has no power to discharge hua. without actual 
 payment.(7) 
 
 (1) Comp. L. 122Y. 
 
 (2) Id. 1227 ; and see 1 Cainea' R. 516; 2 Arch. Pr. 133; 3 Wils. 455. 
 
 (3) 1 Cowen, 199 ; 1 Chitt. E. 349 ; 3 J. B. 144. 
 
 (4) Comp. L. 1209. (5) Id. 121S. (6) 10 Wendell, 367. 
 (7) 8 J. R. 361 ; 6 id. 51 ; 21 "WendeU, 362. 
 
218 OP THE EXECUTION. 
 
 § 688. The defendafit is entitled to the liberty of the jail limits, 
 (which are co-extensive with the limits of the county), upon exe- 
 cuting to the sheriff and his assigns a bond, with one or more 
 ■ sufficient sureties, being inhabitants and householders of the county, 
 in a penalty not less than double the amount of the execution, and 
 conditioned that he shall not at any time, or in any manner, es- 
 cape or go without the jail limits of the county, until legally dis- 
 charged.(l) 
 
 If the defendant escape through the negligence, and without the 
 consent of the officer, he may be retaken ; but if the escape, be 
 voluntary, the sheriff cannot ■ retake the defendant unless on a 
 new execution issued by the plaintiff; and if he were to do so, he 
 would be liable for false imprisonment.(2) 
 
 § 689. If the defendant escape out of custody on the ca. sa., 
 the plaintiff has the choice of several remedies. He may either 
 take an assignment of the bond for the jail limits,(3) or sue the 
 sheriff for the escape, or issue a new fi. fa. or ca. sa., or he may 
 bring assumpsit or debt on the judgment ; and he may proceed 
 against the sheriff and take out a,Ji.fa. at the same time.(4) 
 
 If, instead of taking an assignment of the bond executed for 
 the jail liberties, the plaintiff prosecute the sheriff for the escape) 
 the court will stay all proceedings on the judgment recovered 
 therein against the sheriff, until he shall have had a reasonable 
 time to prosecute a suit upon the bond, and collect the amount of 
 any judgment he may recover therein, unless sucli escape was 
 committed with the assent, aid or assistance of such sheriff.(5) 
 
 § 690. The effect of a voluntary discharge of the defendant 
 from custody by the plaintiff, whether conditional or otherwise, is 
 to discharge the debt ; and the defendant can never be taken after- 
 wards upon the same judgment.(6) And a bond for the jail 
 liberties subsequently given, does not revive the judgment so that 
 an action can be maintained against the sheriff for an es"cape.(7) 
 So, if one of several defendants be taken on a joint ca. sa., and he 
 be discharged by the plaintiff, he can neither retake him, nor 
 afterwards arrest the others. (8) 
 
 (1) Comp. L. 1450. (2) 1 Burr. Pr. 312. 
 
 (3) Comp. L. 1452. (4) 1 Burr. Pr. 312. 
 
 (5) Comp. L. 1453. 
 
 (6) 4 Burr. R. 2482; 6 J. R. 364; 8 Cowen, ITl ; 3 Wendell, 184. 
 
 (1) 3 Wendell, 184. (8) 6 T. R. 625 ; 1 Burr. Pr. 318. 
 
EETUEK TO CA. SA. 219 
 
 If the plaintiff direct the sheriff to discharge the defendant, -he is 
 bound to do so ; and if he afterwards detain the defendant on the 
 writ, he is liable in trespass.(l) 
 
 If the defendant has been arrested on a ca. sa., and discharged 
 on the ground of privilege, he may be arrested again after the priv- 
 ilege ceases, either upon the same writ, or a new one.(2) And so, 
 when the defendant was discharged by reason of irregularity in 
 the ca. sa., it has been held that he may be taken on a new writ 
 upon the same judgment.(3) 
 
 § 691. The return to a ca. sa. is made in the same manner as to 
 s.fi.fa. If the defendant has been taken, and has not satisfied the 
 execution by paying it, but remains either in close custody or on 
 the limits, the sheriff returns cepi corpus in custodia, or " defendant 
 taken." Kthe execution has been paid, it may be returned "satis- 
 fied /" and if the of&cer has been unable to find the defendant in 
 his county, he returns non est inventus, or "not found.". If the de- 
 fendant be privileged, the ofiicer may return the fact specially. (4) 
 Rescue is not a good return to a ca. sa.{5) 
 
 If the sheriff return to the ca. sa. not found, the plaintiff may 
 have an alias, or a testatum ca. sa., upon the return of which non 
 est, a pluries, &c., may issue.(6) Or, instead of issuing these sub- 
 sequent writs, the plaintiff, on the return of non est inventus to the 
 first writ, may proceed at once against the special bail, who are 
 now liable upon their recognizance, the defendant neither having 
 paid the costs and condemnation of the court, nor rendered himself 
 into the custody of the sheriff. 
 
 § 692. If the judgment be in favor of the defendant, he may have 
 execution against the property or person of the plaintiff for the costs 
 awarded to him, in the same manner as the plaintiff might have 
 had against him for his damages and costs, if he had recovered 
 judgment against the defendant. 
 
 Hafi.fa. be irregularly issued, and set aside for that reason on 
 motion, the defendant may bring an action for taking property 
 under it, and such action will lie as well against the party in whose 
 favor the writ issued, as against his attorney ;(7) but on setting 
 aside an execution for irregularity, courts have usually restrained 
 the defendant from bringing an action, unless a strong case of dam- 
 
 (1) 12 Mees. & W. 441. (2) 5 WendeU, 90. 
 
 (3) 3 Aid. & El. (N. S.) 1. (4) 1 Arch. Pr. 307. 
 
 (5) Id. 308; 1 Burr. Pr. 313, 315. (6) Id. 315. 
 (1) 3 Hill, 623. 
 
220 OF THE EXECUTION. 
 
 ages'be showii.(l) And -when a defendant is arrested on a ca. sa. 
 irregularly issued, and the writ is set aside and the defendant dis- 
 charged on motion, he may bring an action for false imprison- 
 ment ;(2) but when the proceeding has been had in good faith, and 
 the damages sustained appear to be only nominal, the court will 
 require the party moving to stipulate not to bring the action.(3) 
 
 § 693. If, however, circumstances appear, calling for greater 
 damages, as where an irregular ca. sa. is oppressively executed, 
 the party will not be required to stipulate.(4) And if a party has 
 been arrested under a ca. sa. upon a judgment which has been 
 paid or otherwise discharged, the defendant need not obtain an 
 order setting aside the process, in order to maintain an action for 
 false imprisonment ; and the court, on relieving the party from 
 arrest, in such a case, will not require him to stipulate not to bring 
 an action.(5) 
 
 If a counsellor be arrested on a ca. sa. while attending court in 
 order to make a special motion, being privileged from arrest during 
 his attendance, he will be discharged on an ex parte application to 
 the court ; but after his privilege has ceased, he may be arrested on 
 the same writ, or a new one may issue.(6) 
 
 §'694. A bankrupt discharge will be allowed to be pleaded in a 
 proper case, after judgment entered and execution issued, when it 
 appears that the defendant did not receive it in time to plead it be- 
 fore judgment; provided he makes his motion for that purpose at 
 the earliest opportunity.(7) 
 
 The motion may be to open the judgment and set aside the ex- 
 ecution, and for leave to plead the discharge ;(8) or it may be for a 
 perpetual stay of execution upon the judgment ;(9) and it will be 
 granted on payment of costs, and the plaintiff will, at the same 
 time, have leave to discontinue without costs.(lO) But if strong 
 evidence be shown, upon the motion, that the defendant was guilty 
 of fraud and willful concealment of his property, &c., in his pro- 
 ceedings to obtain his discharge, the court will afford the plaintiff 
 an opportunity to contest the validity of the discharge by bringing 
 an action on the judgment, and will permit the execution and levy 
 to stand as security until the determination of such trial. 
 
 (1) 1 Chitt. R. 134, and note ; 1 Burr. Pr. 316. 
 
 (2) 5 HiU, 242 ; 6 Cowen, 456. (3) 1 Cowen, 475 ; 5 HiU, 2i1, note. 
 (4) 1 Cowen, 475. (5) 5 HUl, 242. 
 
 (6) 5 -Wendell, 90. (7) 1 Howard S. T. R. 210. 
 
 (8) Id. 66. (9) Id. 10, 99 ; 6 HiU, 246. 
 
 (10) Id. 10, 99 ; 6 HiU, 246. 
 
rOEMS OF EXECUTIONS. 221 
 
 § 695. The judgment not being, under our statutes, a liei^ or 
 incumbrance upon the property of the debtor, no provision has 
 been made for entering satisfaction upon the record. A return of 
 the execution satisfied, or the receipt of the creditor or his attorney, 
 filed with the other papers in tjie cause, is sufficient evidence of 
 satisfaction of the judgment. If, however, the judgment debtor 
 desire to have the evidence of satisfaction entered upon the jour- 
 nal, he may move the court, upon due notice to the opposite party, 
 for an order that it be so entered. 
 
 FOEMS OF EXECUTIONS. 
 
 § 696. Fieri facias for plaintiff in assumpsit. 
 In the name of the People of the State of Michigan. To 
 
 THE SHEEIFF of THE COUNTY OF : 
 
 [seal.] "We command you that of the goods and chattels of 
 0. D., defendant, in your county, you cause to be made 
 
 dollars, * which A. B., plaintiff, lately in our circuit court for 
 
 the county of , recovered against the said defendant for his 
 
 damages which he had sustained, * as well by reason of the not 
 performing certain promises and undertakings then lately made by 
 the said defendant to the said plaintifif, as for the costs and charges 
 by the said plaintiff about his suit in that behalf expended, whereof 
 the said defendant is convicted as appears to us of record ; .and if 
 sufficient goods and chattels of the said defendant cannot be found 
 within your county, that then you cause the damages and costs 
 aforesaid to be made of the real estate of the said defendant within 
 your county, and have you that money before our said circuit court 
 
 at , on the — day of , to render unto the said plaintiff 
 
 for his damages, costs and charges aforesaid ; and have you then 
 there this writ. 
 
 Witness the Honorable L. S.:L., Circuit Judge of the — judicial cir- 
 cuit, at in the said county of , this — day of .(1) 
 
 E. F., Attorney. C. V. B., Clerk. 
 
 Indorsement on execution. 
 The Cieouit Couet foe the county of : 
 
 A. B. ; 
 
 A. B.) 
 
 vs. \ 
 
 0. d;) 
 
 E. F., plaintiff's attorney. Levy $ , with interest from 
 
 , besides your fees. 
 
 [In cases where several suits have been brought, and judgments 
 and executions had upon the same instrument, add to the usual 
 
 (1) Comp. L. 1212, § 33; Rule 13. 
 
222 FORMS OF EXECUTIONS. 
 
 indorsement as follows :] unless you shall collect tlie amount of 
 the execution herewith [or ^^ heretofore"] delivered to you in the 
 case of the same plaintiff against L. M., in which case you will 
 only levy under this execution $ , being the costs of the plain- 
 tiff in this suit, besides your fees. 
 
 \ 
 § 697. Fieri facias for plaintiff in debt. 
 
 [As in the last form to the first *, and then as follows :] of 
 debt which A. B., plaintiff, lately in our circuit court for the county 
 
 of , recovered against the said defendant, and dollars 
 
 which in our said circuit court were adjudged to the said plaintiff 
 for the damages which he had sustained, as well on occasion of the 
 detention of that debt as for the costs and charges by the said 
 plaintiff about his suit in that behalf expended, whereof the said 
 defendant is convicted, as appears to us of record ; and if sufficient 
 goods and chattels of the said defendant cannot be found within 
 your county, that then you cause the same to be made of the real 
 estate of the said defendant within your county ; and have you 
 
 that money before our said circuit court at , on the — day 
 
 of , to render unto the said plaintiff for his debt, damages, 
 
 costs and charges aforesaid ; and have you then there this writ. 
 Witness, &c., [as in last form.] 
 
 § 698. Fieri facias for plaintiff in covenant. 
 
 [As in § 696 to the second *, and then as follows:] as well 
 on occasion of the breach of a certain covenant made between the 
 said plaintiff and the said defendant, as for the costs and charges of 
 the said plaintiff about his suit in that behalf expended, whereof 
 the said defendant is convicted as appears to us of record ; and if 
 sufficient goods, &c., [as in § 696 to the end.] 
 
 § 699. Fieri facias for plaintiff in trespass, assault, case, slander 
 and trover. 
 
 [As in § 696 to the second *, and then as follows : In tres- 
 pass, " as well by reason of a certain trespass then lately committed by 
 the said defendant against the said plaintiff f or, in trespass for an as- 
 sault and battery, " as well on occasion of a certain trespass and as- 
 sault and battery then lately committed by the said defendant upon the 
 said plaintiff ;" or, in case, ^''as well by reason of a certain grievance 
 then lately committed by the said defendant against the said plaintiff f 
 or, in slander, " as well on occasion of the speaking and publishing of 
 certain false, scandalous, malicious and defamatory words, then lately 
 spoken and published by the said defendant, of and concerning the said 
 plaintiff ;" or, in trover, " as well on occasion of the converting and 
 disposing of certain goods and chattels of the said plaintiff by the said 
 defendant,"] as for the costs and charges by the said plaintiff about 
 his suit in that behalf expended, whereof the said defendant is con- 
 victed as appears to us of record ; and if sufficient goods, &c., [as 
 in § 696 to the end.] 
 
FORMS OF EXECUTIONS. 223 
 
 § 700. Fierifacias for plaintiff in replevin. 
 
 [As in § 696 to the second *, and then as follows :] as well 
 on occasion of the unlawful detention of certain goods and chattels 
 of the said plaintiff by the said defendant, as for the costs and 
 charges by the said plaintiff about his suit in that behalf expended, 
 &c., [as in § 696 to the end.] 
 
 § 701. The like where the goods were not replevied. 
 
 [As in § 696 to the second *, and then as follows :] as well 
 on occasion of the unlawful detention of certain goods and chattels 
 of the said plaintiff by the said defendant, as for the costs and 
 charges by the said plaintiff about his suit in that behalf expended, 
 whereof the said defendant is convicted as appears to us of record ; 
 and if sufficient goods and chattels of the said defendant cannot be 
 found within your county, that then you cause the damages, costs 
 and charges aforesaid, to be made of the real estate of the said de- 
 fendant within your county. And we further command you, that 
 you replevy and deliver to the said plaintiff the aforesaid goods and 
 chattels, to wit., [specify the articles with particularity,] which the 
 said defendant still unlawfully detains from the said plaintiff; and 
 if such goods and chattels cannot be found in your county, then we 
 further command you, that of the goods and chattels of the said 
 
 defendant in your county, you cause to be made dollars, being 
 
 the value of the goods and chattels herein specified, together with 
 the aforesaid damages, costs and charges. And if sufficient goods, 
 &c., [as in § 696 to the end.] 
 
 § 702. Fieri facias on jvdgment for defendant for costs. 
 In the name of the People of the State op Michigan. To 
 
 the sheriff of the county of : 
 
 [seal.] We command you that of the goods and chattels of 
 A. B., plaintiff, in your county, you cause to be made 
 
 dollars, which lately in our circuit court for the county of 
 
 ■ were adjudged to C. D., defendant, according to the form 
 
 of the statute in such case made and provided, * for his costs and 
 charges by him laid out and expended in and about his defence in 
 a certain action of trespass [or as the action is] lately prosecuted 
 by the said plaintiff against the said defendant in our said circuit 
 court, whereof the said plaintiff is convicted, as appears to us of 
 record ; and if sufficient goods and chattels of the said plaintiff can- 
 not be found within your county, that then you cause the costs and 
 charges aforesaid to be made of the real estate of the said plaintiff 
 within your county ; and have 'you that money before our said cir- 
 cuit court, at , on the — day of , to render to the said de- 
 fendant for his costs and charges aforesaid ; and have you then 
 there this writ. 
 Witness, &c., [teste as in § 696.] 
 
 § 703. The like in replevin for damages and costs. 
 
 [As in the last form to the * and then as follows :] as well 
 for his damages which he had sustained by reason of the taking 
 
224 FORMS OF EXECUTIONS. 
 
 and unjust detention of certain goods 'and chattels of the said de- 
 fendant by the said plaintiff, as for the costs and charges by the 
 said defendant laid out and expended in and about his defence in 
 a certain action of replevin lately commenced and depending in 
 the same court at the suif of the said plaintiff against the said de- 
 fendant, whereof the said plaintiff is convicted, as appears to us of 
 record ; and if sufficient goods and chattels of the said plaintiff 
 cannot be found in your county, that then you cause the damages, 
 costs and charges aforesaid, &c., [as in the last form to the end, 
 inserting "damages" before "costs and charges."] 
 
 § 704. Fieri facias on judgment of non pros, for not declaring. 
 
 [As in § 702 to the *, and then as follows :] for his costs 
 and charges by him laid out and expended in and about his de- 
 fence, of and upon a certain writ of capias ad respondendum [or 
 "summons," or "attachment,"] issued out of our said court at the 
 suit of the said plaintiff against the said defendant, for that the 
 said plaintiff had not declared thereupon in the said court against 
 the said defendant, according to the course and practice of the said 
 court, but therein made default ; whereof the said plaintiff is con- 
 victed, as appears to us of record ; and if sufficient goods, &c., [as 
 in § 702 to the end.] 
 
 § 705. Fieri facias on a non pros, for not replying or surrejoining. 
 [As in § 702 to the *, and then as follows :] for his costs 
 and charges by him laid out and expended in and about his defence 
 in a certain action of trespass on the case upon proncuses, [or as the 
 action is,] then lately commenced and depending in the said court 
 at the suit of the said plaintiff against the said defendant ; for that 
 the said plaintiff had not replied to a certain plea then lately plead- 
 ed by the said defendant in the said action, [or, "for that tlie said 
 plaintiff had not surrejoined to a certain rejoinder by the said defendant 
 then lately pleaded in the said action"'^ or further prosecuted the 
 same, whereof the said plaintiff is convicted, as appears to us of 
 record; and if sufficient goods, &c., [as in § 702 to the end.] 
 
 § 706. Fieri facias on jtidgment by default for not joining in de- 
 murrer. 
 
 [As in § 702 to the *, and then as follows :] for his costs 
 and charges by him laid out and expended in and about his defence 
 in a certain action of trespass on the case upon promises [or as the 
 action is,] then lately commenced and depending in the said court 
 at the suit of the said plaintiff, agaijist the said defendant ; for that 
 the said plaintiff had not joined in a certain demurrer on the part 
 of the said defendant, to the declaration of the said plaintiff, in the 
 said action, whereof the said plaintiff is convicted, &c., [as in § 702 
 to the end.] 
 
 § 707. Fieri facias on a judgment of non-suit. 
 
 [As in § 702 to the *, and then as follows :] for his costs 
 and charges by him laid out and expended in and about his defence 
 
FORMS OF EXECUTIONS. 225 
 
 in a certain action of trespass, [or as the action is,] then lately 
 brought in our said court by the said plaintiff against the said de- 
 fendant, for that the said plaintiff did not prosecute the said action, 
 but therein made default, whereof the said plaintiff is convicted, &c., 
 [as in § 702 to the end.] 
 
 [The form is the same on s, judgment of discontinuance, only sub- 
 stituting for the words " but therein made default" the words " hut 
 voluntarily suffered the same to he discontinued ;" and, on a, judgment of ' 
 nolle prosequi, substituting the words, " but freely confessed that he 
 would not further prosecute the sa7?2e."] 
 
 § 708. Fieri facias for balance of set-off found due defendant. 
 
 [As in § 702, to the *, and then as follows :] as well for the ■ 
 balance found to be due to the said defendant over and above the 
 demand of the said plaintiff, in a certain action of trespass on the 
 case upon promises, then lately prosecuted by the said plaintiff " 
 against the said defendant, in our said circuit court, as for his 
 costs and charges by him about his defence in that behalf laid out 
 and expended, whereof the said plaintiff is convicted, as appears to 
 us of record ; and if sufficient goods and chattels of the said plain- 
 tiff cannot be found in your county, that then you cause the money 
 aforesaid to be made of the real estate of the said plaintiff within . 
 your county ; and have you that money before our said circuit 
 court, at, &c., on, &c., to render unto the said defendant for the 
 said balance so found and adjudged to be due him as aforesaid, , 
 and his costs and charges aforesaid ; and have you then there this . 
 writ. 
 
 Witness, &c., [as in § 696.] 
 
 § 709. Fieri facias for an executor or administrator on a judg- - 
 ment recovered by the testator or intestate. 
 In the name of the People of the State of Michigan. To ■ 
 
 THE sheriff of THE COUNTY OF : 
 
 [seal.] We command you that of the goods and chattels of" 
 
 C. D., defendant, you cause to be made • dollars, * 
 
 which A. B., plaintiff, in his lifetime lately in our circuit court for • 
 
 the county of , recovered against him for his damages [state 
 
 the recovery according to the form of the action], whereof the said . 
 defendant is convicted as appears to us of record ; and if sufficient , 
 goods and chattels of the said defendant cannot be found in your ■ 
 county, that then you cause the damages, &c., aforesaid to be made 
 of the real estate of the said defendant within your county ; and _ 
 whereupon it is considered in our said circuit court, that M. L., . 
 executor of the last will and testament of the said A. B., deceased, , 
 [or, " administrator of all and singular the goods, chattels, rights and .' 
 credits which were of the said A. B., deceased, at the time of his death, . 
 who died intestate,"^ have execution against the said defendant, as . 
 also appears to us of record ; and have you that money before our 
 said circuit court, at, &c., on, &o., to render unto the said M. L., 
 executor [or "administrator"'] as aforesaid; and have you then 
 there this writ. 
 
 Witness, &c., [as in § 696.] 
 
226 FOEitS OF EXECUTIONS. 
 
 § 710. Fieri facias on a judgment in favor of an executor or ad- 
 ministrator. 
 
 [As in the last form to tlie *, and then as follows :] which 
 A. B., executor of the last will and testament of 0. C, deceased, [or 
 " administrator of all and singular the goods and chaiiels, rights and 
 credits which were of 0. C, deceased, at the time of his death, who died 
 intestate,"} lately in our circuit court for the county of — ■ , recov- 
 ered against him [state the recovery according to the form of the 
 action], whereof the said defendant is convicted, as appears to us 
 'Of record; and if sufScient goods, &c., [as in § 696 to the end.] 
 
 § 711. Fieri facias against an executor or administrator, for costs 
 ■de bonis propriis. 
 
 Is THE NAME OF THE pEOPLE OF THE StATE OF MICHIGAN, To 
 THE SHERIFF OF THE COUNTY OF : 
 
 J]SEAL.] We command you that of the proper goods and 
 
 chattels of A. B., executor, [or " administrator, "'\ &c., 
 
 |ras in the last form,] you cause to be made dollars, which 
 
 lately in our circuit court for the county of were adjudged 
 
 to C. D., defendant, according to the form of the statute in such 
 •case made and provided, for his costs and charges by him laid out 
 .and expended in and about his defence in a certain action of tres- 
 pass [or as the action is] lately prosecuted in our said circuit court 
 Tby the said plaintiff as such executor [or " administrator "] as afore- 
 :said, against the said defendant, whereof the said plaintiff is con- 
 victed, as appears to us of record ; and if sufficient goods and 
 chattels of the said A. B. cannot be found in your county, that 
 •then you cause the costs and charges aforesaid to be made of the 
 proper real estate of the said A. B. within your county, &c., [as in 
 ,§ 702 to the end.] 
 
 § 712. Fieri facias against joint debtors, when all have not been 
 •■served with process, nor appeared. 
 
 [The /./a. is against all the defendants in the same form as 
 if all had been served and appeared, but, in addition to the usual 
 ■directions to the sheriff the statute requires a special indorsement, 
 in substance as follows :] The sheriff will not levy the within on 
 .the sole property of R. S., [the defendant not served,] but may levy 
 the same on his personal property, and owned by him as a partner 
 with 0. D., I. L^ and H. P., [the defendants served with process,] 
 .©r with either or any of them.(l) 
 
 § 713. Fieri facias for the residue in assumpsit. 
 In THE NAME OF THE PEOPLE OF THE StATE OF MICHIGAN. To 
 THE SHERIFF OF THE COUNTY OF : 
 
 [sEAL.j Whereas, by our writ we lately commanded you that 
 
 of the goods and chattels of C, D., in your county, you 
 
 should cause to be made dollars, which A. B., plaintiff, then 
 
 (1) Comp. L. 1220, §§ 3, 4. 
 
FOEMS OF EXECUTIONS. 227 
 
 lately in the circuit court for the county of , had recovered 
 
 against the said defendant, for his damages which he had sustained, 
 as well on occasion of the not performing certain promises and un- 
 dertakings then lately made by the said defendant to the said plain- 
 tiff, as for the costs and charges by the said plaintiff about his suit 
 in that behalf expended, whereof the said defendant was convicted, 
 as appeared to us of record ; and if sufficient goods and chattels of 
 the said defendant could not be found in your county, that then you 
 should cause the damages and costs aforesaid to be made of the real 
 estate of the said defendant within your county, and that you should 
 
 have that money in our said circuit court at , on the — day 
 
 of ■ ■, to render unto the said plaintiff for his damages, costs and 
 
 charges aforesaid. And you, at the day last aforesaid, returned to 
 oar said court, that by virtue of the said writ to you directed, you 
 had caused to be made of the goods and chattels, and real estate of 
 
 the said defendant dollars, parcel of the damages, costs and 
 
 charges aforesaid, which money j'ou had at the day in the said writ 
 contained, as by the said writ you were commanded ; and that the 
 said defendant had not any other or more goods, chattels or real 
 estate in your county, whereof you could cause to be made the resi- 
 due of the damages, costs and charges aforesaid, or any part there- 
 of Therefore, Ave command you, that of the goods and chattels of 
 the said defendant in your county, you cause to be made dol- 
 lars, residue of the damages, costs and charges aforesaid ; and if 
 sufficient goods and chattels of the said defendant cannot be found 
 within your county, that then you cause the said dollars, resi- 
 due as aforesaid, to be made of the real estate of the said defendant 
 within your county ; and have you those moneys before our said cir- 
 cuit court at , on the — day of •, to render unto the said 
 
 plaintiff for the residue of his said damages, costs and charges ; and 
 have you then there this writ. 
 Witness, &c., [as in § 696.] 
 
 [The alias Jl. fa. is formed by adding to the mandate the words 
 " as before we have commanded you;" and the pluries fi. fa. by add- 
 ing the words " as oftentimes before we have commanded you ;" and 
 the alias and pluries writs of capias ad satisfaciendum are formed in 
 the same manner.] 
 
 § 714. Testatum feri facias. 
 
 In the name op the People of the State op Michigan. To 
 
 the shekifp of the county of : 
 
 [seal.] Whereas, by our writ of fieri facias, we lately com- 
 manded our sheriff of the county of , that of the 
 
 goods and chattels of C. D., defendant, in his county, he should 
 cause to be made — — dollars, which A. B., plaintiff, lately in our 
 
 circuit court for the county of , recovered against him, as well 
 
 on occasion of, [reciting the^./a.,] as for the costs and charges by 
 him about his suit in that behalf expended, whereof the said de- 
 fendant was convicted, as appeared to us of record ; and if sufficient 
 goods and chattels of the said defendant could not be found in his 
 
228 FORMS OF EXECUTIONS. 
 
 county, that then he should cause the damages, costs and charges 
 aforesaid, to be made of the real estate of the said defendant within 
 his county, and that he should have those moneys before the said 
 circuit court for the county of , at, &c., [as in the Ji. fa.,'] to ren- 
 der unto the said plaintiff for the damages, costs and charges afore- 
 said. And the sheriff of the said county of , on the day last 
 
 aforesaid, returned to the said circuit court, that the said defendant 
 had no goods, chattels or real estate within his county, whereof he 
 could cause to be levied the damages, costs and charges aforesaid, or 
 any part thereof; whereupon, on behalf of said plaintiff, it is suffi- 
 ciently te<y?ed to the said circuit court for the county of , that 
 
 the said defendant has sufficient goods, chattels and real estate in 
 your county, whereof you may cause to be levied the damages, 
 costs and charges aforesaid. Therefore, we command you, that of 
 the goods and chattels of the said defendant in your county, you 
 cause to be made the said damages, costs and charges ; and if sufl- 
 cient goods and chattels of the said defendant cannot be found within 
 your county, that then, &c., [as in § 696 to the end.] 
 
 § 715. Testatum Ji. fa. for residue.] 
 
 In the name of the People of the State of Michigan. To 
 
 the sheriff of the county of : 
 
 [seal.] Whereas, lately, by our writ of fieri facias, we com- 
 manded our sheriff of the county of , that of the 
 
 goods and chattels, &c., [reciting the fieri facias, and then as fol- 
 lows :] and our said sheriff of the county of , on the return 
 
 day mentioned in the said writ, returned to our said circuit court for 
 the county of , that, by virtue of the said writ to him di- 
 rected he had caused to be made, of the goods and chattels and 
 real estate of the said defendant, dollars, parcel of the dama- 
 ges [or "debt and damages"], costs and charges aforesaid, Avhich 
 money he had ready before the said court at the day in said writ 
 contained, as by the said writ he was commanded, and that the 
 said defendant had not any other or more goods, chattels, or real 
 estate within his county, whereof he could cause to be made the 
 residue of the damages, [or "debt and damages,"] costs and charges 
 aforesaid, or any part thereof; whereupon, on behalf of the said 
 plaintiff, it is sufficiently testified to our said circuit court, that the 
 said defendant has sufficient goods, chattels, and real estate in your 
 county, whereof you may cause to be made the residue of the dam- 
 ages [or " debt and damages"], costs and charges aforesaid ; Therefore, 
 ■we command you that of the goods and chattels of the said defend- 
 ant in your county, you cause to be made dollars, residue 
 
 of the damages [or " debt and damages "], costs and charges afore- 
 said ; and if sufficient goods, &c., [as in § 696 to the end.] 
 
 § 716. Fieri facias on judgment in suit commenced by attachment, 
 and no service or appearance by defendant. 
 
 [The fi.fa. is in the same form as if there had been a per- 
 sonal service or appearance, but must have an indorsement thereon, 
 
FORMS OF EXECUTIONS. 22& 
 
 or annexed thereto, in substance as follows :] The sheriff will sell 
 the following described property, which was taken upon the attach- 
 ment in this cause, that is to say, [describe the property, whether 
 real or personal, as in the officer's return to the attachment,] or so 
 much thereof as may be sufS.cient to satisfy the within [or " annexed"^ 
 execution; but will not levy the same or any part thereof, upon 
 any other property.(l) 
 
 § 717. Fieri facias on judgment upon an official bond, against 
 principal and sureties. 
 
 [The Ji.fa. is In the ordinary form, but must have a direc- 
 tion indorsed thereon, in addition to the usual indorsement, as 
 follows :] The sheriff [or " coroner "] will levy the amount of the 
 within execution, in tlie first place, of the property of C. D., the 
 principal in the official bond upon which this suit was brought ; 
 and if sufficient property of the said C. D. cannot be found to sat- 
 isfy the same, then levy the deficiency of the property of L. K. 
 and E. S., the sureties in said bond. (2) 
 
 § 718. Fieri facias on a judgment for moneys secured ly mortgage 
 on real estate. 
 
 [The fi. fa. is in the ordinary form, with a direction, in addi- 
 tion to the usual indorsement thereon, in substance as foUowjs :] 
 the demand for which the judgment within mentioned was recov- 
 ered, being secured by a mortgage upon the following described 
 real estate, to wit., [describe it as in the mortgage,] the sheriff will 
 not levy the amount of this execution, or any part thereof, upon 
 the said mortgaged property.(3) 
 
 § 719. Execution on a judgment in case for nuisance. 
 In the name of the People of the State of Michigan. To 
 
 THE SHERIFF OF THE COUNTY OF : 
 
 [SEAL.] Whereas A. B., lately in our circuit court for the 
 
 county of , recovered a judgment against C. D., 
 
 in an action on the case for nuisance, that he should recover of the 
 said C. D. dollars, as well for his damages which he had sus- 
 tained on occasion of the said nuisance, as for the costs and charges 
 by him about his suit in that behalf expended ; and it was further 
 considered by the said court, that the said nuisance should be re- 
 moved by [state how, according to the judgment, and describe the 
 nuisance to be removed with convenient certainty], whereof the 
 said defendant is convicted, as appears to ns of record ; now, there- 
 fore, we command you, that of the goods and chattels of the said 
 defendant, &c., [as in an ordinary j'l. /a.;] and we further com- 
 mand you, that you do forthwith remove the said nuisance bv [here 
 state the manner of the removal, according to the judgment] ; and 
 
 (1) Comp. L. 1273 § 24. (2) Comp. L. 1311, 1312. 
 
 (3) Comp. L. 936. 
 
230 FORMS OF EXECUTION'S. 
 
 ho^' you shall have executed this writ make appear before our 
 said circuit court, at, &c., on, &c., and have you then there this 
 writ. 
 
 Witness, &c. 
 
 § 720. Writ of possession in ejectment, with a fi. fa. for costs. 
 In the name of the People of the State of Michigan. To 
 
 THE sheriff of THE COUNTY OF : 
 
 [seal.] Whereas, A. B. has lately in our circuit court for the 
 county of , by the judgment of said court, recov- 
 ered against C. D. the following described premises, to wit., [de- 
 scribe the premises according to the recovery,] which said prem- 
 ises have been and are still unjustly withheld from the said A. B. 
 by the said C. D., whereof he is convicted, as appears to us of 
 record ; and forasmuch as it is adjudged in the said court that the 
 said A. B. have execution upon said judgment, according to the 
 force, form and effect of his said recovery ; therefore, we command 
 you, that without delay you deliver to the said A. B. possession of 
 the said premises so recovered, with the appurtenances, and that 
 
 you certify to our said court at , on the — day of , in 
 
 what manner you shall have executed this writ ; and we further 
 command you, that of the goods and chattels of the said C. D. in 
 
 your county, you cause to be made dollars, which in our 
 
 same court were adjudged to the said A. B. for the damages which 
 he had sustained, as well on occasion of the matters aforesaid, as 
 for his costs and charges by him about his suit in that behalf ex- 
 pended, whereof the said G. D. is also convicted, as appears to us of 
 record ; and if sufficient goods, &c., [as in § 696 to the end.](l) 
 
 § 721. Writ of restitution in ejectment. 
 
 In the name of the People of the State of Michigan. To 
 the sheriff of the county of : 
 
 [seal.] Whereas, by our writ to you heretofore directed, we 
 commanded you that [here recite the writ of possesssion] 
 and by virtue of which said writ you caused the said A. B. to be 
 put in possession of the said described premises, as we have been 
 informed ; and because that writ did wrongfully, unadvisedly and 
 erroneously issue out of our said court, [or, if the fact be so, " and 
 because the judgment upon which that writ did issue hath since that 
 time been ruholly reversed, annulled and held for naught in our said 
 court," or, "in our supreme court ;'] therefore, we command you that 
 you forthwith restore the said C. D. to his possession of the prem- 
 ises aforesaid ; and how you shall have executed this writ make 
 
 appear before our said circuit court at , on ■ , and have 
 
 you then there this writ. 
 
 Witness, &c. 
 
 (1) Comp. L. 1235. 
 
FORMS OF EXECUTIONS. 231 
 
 § 722. Retomo hahendo in replevin, with fi. fa, for damages, on 
 non pros, for want of a declaration. 
 
 In the name of the People of the State of Michigan. To 
 
 THE SHEEIFF of THE COUNTY OF : 
 
 [seal.] AVhereas, 0. D. was summoned to be in our circuit 
 
 court for the county of to answer A. B. of a 
 
 plea wherefore he unlawfully detained from the said A. B. certain 
 goods and chattels, as it was said, to wit., [specify the articles as 
 described in the writ of replevin,] which said goods and chattels 
 were replevied from the said C. D., and delivered to the said A. B., 
 and the said A. B. afterwards in our same court made default in 
 not declaring against the said C. D., according to the course and 
 practice of our said court, wherefore it was considered in our said 
 court that the said plaintiff should take nothing by his said writ, 
 and that the said defendant should go thereof without day, and 
 that he should have a return of the said goods and chattels ; and 
 
 also that he should recover against the said A. B. dollars for 
 
 his damages which he had sustained, as well by reason of the taking 
 and unjust detention of the said goods and chattels by the said 
 plaintiff, as for his costs and charges by him about his defence in 
 that behalf expended, whereof the said A. B. is convicted, as ap- 
 pears to us of record. Therefore, we command you, that without 
 delay you cause the goods and chattels aforesaid to be returned to 
 the said defendant ; and in what manner you shall have executed 
 
 this writ make appear to our said circuit court at on . 
 
 And we further command you, that of the,goods and chattels of the 
 said plaintiff in your county, you cause to be made the damages, 
 costs and charges aforesaid ; and if sufficient goods and chattels of 
 the said plaintiff cannot be found in your county, that then you 
 cause the damages, costs and charges aforesaid to be made of the 
 real estate of the said plaintiff within your county ; and have you 
 
 that money before our said circuit court at aforesaid, on the 
 
 day and year aforesaid, to render unto the said defendant for his 
 damages, costs and charges aforesaid ; and have you then there this 
 writ. 
 
 Witness, &c., [teste as in § 696.] 
 
 § 723. Execution in replevin for value of property, &c., when de- 
 fendant has waived a return. 
 
 In THE NAME OF THE PEOPLE OF THE StATE OP MICHIGAN. To 
 THE SHEEIFF OF THE COUNTY OF : 
 
 [seal.] We command you, that of the goods and chattels of 
 A. B., plaintiff, in your county, you cause to be made 
 
 dollars, which lately in our circuit "court for the county of 
 
 ■ were adjudged to the said defendant, as well for the value 
 
 of certain goods and chattels before then replevied and unjustly 
 detained from him by the said plaintiff, as for his damages on 
 occasion of the premises, and his costs and charges by him about 
 his defence in that behalf laid out and expended, whereof the said 
 plaintiff is convicted, as appears to us of record ; and if sufficient 
 
232 FORMS OF EXECUTIOXa. 
 
 goods and chattels of the said plaintiff cannot be found in your 
 county, that then you cause the moneys aforesaid to be made of 
 the real estate of the said plaintiff within your county ; and have 
 
 you that money before our said circuit court at on , to 
 
 render unto the said defendant for the value of the aforesaid goods 
 and chattels, and his damages, costs and charges aforesaid; and have 
 you then there this writ. 
 Witness, &c., [teste as in § 696.] 
 
 § 724. Venditioni exponas. 
 
 In the name of the People of the State of Michigan. To 
 the sheriff of the county of : 
 
 [seal.] "Whereas, by our writ of fieri facias, we lately com- 
 
 manded you, that of the goods and chattels of C. D., 
 defendant, in your county, &c., [reciting \hQfi.fa.^ and you at that 
 day returned to our said circuit court, that by virtue of the said writ 
 to you directed, you had taken goods and chattels of the said de- 
 fendant to the value of the damages [or " debt and damages "j, costs 
 and charges aforesaid, which said goods and chattels remained on 
 hand for want of buyers ; therefore, we, being desirous that the said 
 plaintiff should be satisfied his damages [or " debt and damages "], 
 costs and charges aforesaid, command you, that you cause to be 
 sold the goods and chattels of the said defendant by you in form 
 aforesaid taken, and every part thereof, for the best price that can 
 be got for the same, to the amount of the damages [or ^^deht and 
 damages "], costs and charges aforesaid, and have you the money 
 
 arising from such sale before our said circuit court at , on 
 
 , to render unto the said plaintiff for his damages [or " dAt 
 
 and damages "], costs and charges aforesaid ; and have you then there 
 this writ. 
 
 Witness, &c. 
 
 § 725. Capias ad satisfaciendum in assumpsit. 
 
 In THE NAME OF THE PEOPLE OF THE StATE OF MICHIGAN. TO 
 THE SHERIFF OF THE COUNTY OF : 
 
 [seal.] We command you that you take C. D., defend- 
 ant, if he may be found in your county, and him 
 safely keep, so that you may have his body before our cir- 
 cuit court for the county of , at , on , to 
 
 satisfy A. B., plaintiff, dollars, which the said plaintiff 
 
 lately in our said circuit court recovered against the said de- 
 fendant, for his damages which he had sustained, as well on occa- 
 sion of the not performing certain promises and undertakings 
 then lately made by the said defendant to the said plaintiff, as for 
 the costs and charges by the said plaintiff about his suit in that 
 behalf expended, whereof the said defendant is convicted, as ap- 
 pears to us of record ; and have you then there this writ. 
 
 Witness, &c. 
 
FORMS OF EXECUTIONS. 233 
 
 § 726. Ca. sa. for plaintiff in replevin, trespass, case, &c. 
 
 [As in the last form, to and including the words " had sus- 
 tained,^'' and then as follows : In replevin, " as well on occasion of 
 the unlawful detention of certain goods and chattels of the said plain- 
 tiff f or, in trespass, '■^ as well on occasion of a certain trespass then 
 lately committed by the said defendant against the said plaintiff;" or, in 
 trover, " as well on occasion of the converting and disposing o) certain 
 goods and chattels of the said plaintiff hy the said defendant f or, in 
 case, " as well on occasion of a certain grievance then lately committed 
 hy the said defendant against the said plaintiff;" or, in slander, "as 
 well on occasion of the speaJcing and publishing of certain false, scan- 
 dalous, malicious and defamatory words, then lately spoken and pub- 
 lished by the said defendant, of and concerning the said plaintiff;'" or, 
 in trespass and assault, " as well on occasion of a certain trespass and 
 assault then lately committed hy the said defendant on the said pilain- 
 tiff,"] as for the costs and charges by the said plaintiff about his 
 suit in that behalf expended, whereof the said defendant is con- 
 victed, &c., [as in the last form to the end.] 
 
 [The alias, pluries, or testatum ca. sa. is formed in the same man- 
 ner as the alias, pluries, or testatum fi. fa.] 
 
 § 727. Ca. sa. for defendant in replevin. 
 In the name of the People of the State of Michigan. To 
 the sheriff of the county of : 
 
 [seal.] We command you, that you take A. B., plain- 
 tiff, if he may be found in your county, and him 
 safely keep, so that you may have his body before our cir- 
 cuit court for the county of , at , on , to 
 
 satisfy C. D., defendant, dollars, which lately in our 
 
 said court were adjudged to the said defendant, according to 
 the form of the statute in such case made and provided, as 
 well for his damages which he had sustained by reason of- the 
 taking and unjust detention of certain goods and chattels of the 
 said defendant, as for the value thereof, and his costs and charges 
 by him about his defence in a certain action of replevin, then lately 
 prosecuted in our said court by the said plaintiff against the said 
 defendant, whereof the said plaintiff is convicted, as appears to us 
 of record ; and have you then there this writ. 
 
 "Witness, &c. 
 
 [The recitals in a ca. sa. for costs, on a discontinuance, nonpros., 
 non-suit, &c., correspond with those in afi.fa. upon a similar judg- 
 ment.] 
 
 § 728. Bond of indemnity to sheriff for levying on goods. 
 
 Know all men by these presents, that we, &c., [the 
 penal part of the bond is in the usual form, and the amount and 
 sureties are matters for arrangement between the creditor and the 
 officer.] 
 
 Whereas the above named obligee, as sheriff of the county of 
 
234 EETUEisrs to executions. 
 
 -, hath received for service a certain writ of fieri facias [or 
 
 ^^ alias" or " pluries," or " testatum fisri fixcias," or "execution"]^, 
 in favor of A. B., against C. D., whereby the said obligee, as such 
 
 sheriff, is directed to levy and collect the sum of dollars ; and 
 
 whereas, the said obligee, as such sheriff, hath been requested, on 
 behalf of the plaintiff named in said execution, to levy, by virtue 
 thereof, on [state the property particularly], but because the said 
 obligee has some reasonable doubt as to the ownership of the said 
 goods and chattels by the said defendant, and as to their liability 
 to be taken upon the said execution : 
 
 Now, therefore, the condition of this obligation is such, that if 
 the above named obligors shall well and truly save and keep the 
 said obligee, his under sheriff and deputies, and every of them, 
 harmless and indemnified, of, from, and against all damages, costs 
 and charges which they, or either of them, may sustain or be put 
 to, for, or by reason of levying on, taking away, removing or sell- 
 ing the above described property, or any part thereof, upon and 
 by virtue of the said execution, then this obligation to be void, 
 otherwise to be and remain in full force and effeo,t. 
 
 [Signatures and seal3.](l) 
 
 sheriff's EETURIT TO FIERI FACIAS. 
 
 § 729. Nulla bona. 
 
 The within named defendant has no goods or chattels, lands 
 or tenements in my county, whereof I can cause to be made the 
 damages [or " debt and damages "] within mentioned, or any part 
 thereof, according to the exigency of this writ. 
 
 The answer of S. T., Sheriff. 
 
 § 730. Fieri feci 
 
 By virtue of the within [or "annexed"] writ to me directed, 
 / have caused to be made of the goods and chattels, lands and tene- 
 ments of the within named defendant, the damages [or " debt and 
 damages "] therein mentioned, which I have ready before the cir- 
 cuit court for the county of , at the day in the said writ 
 
 contained, to render to the said plaintiff for his damages [or " debt 
 and damages"] aforesaid, as I am therein commanded. 
 
 And I do further certify, and return to the said court, that the 
 following is a true specification of each and every article or parcel 
 of property sold by me on the said writ, after giving due notice of 
 such sale according to law, and of the sum for which each article 
 or parcel thereof was sold, respectively, that is to say : 
 
 One span of black gelding horses, sold for - $225 00 
 
 One yearling mare colt, ..... 32 00 
 
 One fat ox, 75 00 
 
 One red milch cow, 20 00 
 
 The answer of S. T., Sheriff.(2) 
 
 (1) Oomp. L. 1215, § 52. (2) Comp. L. 1216, § 64. 
 
EETUBNS TO EXECUTIONS. 235 
 
 ' [If the money was paid without a sale, the return may be as 
 follows :] 
 
 " Satisfied. ' S. T., Sheriff." 
 
 § 731. Fieri feci as (o part, and nulla bona as to the residue. 
 
 By virtue of the within [or " annexed"] writ to me directed, 
 I have caused to be made of the goods and chattels, lands and 
 
 tenements of the defendant therein named, the sum of dollars, 
 
 which money I have ready before the said circuit court for the 
 
 county of , at the day therein contained, to render to the 
 
 said plaintiff in part for his damages [or "debt and damages "J therein 
 mentioned. And I further certify to the said court, that the said 
 defendant has not any other or more goods, chattels, lands or tene- 
 ments whereof I can cause to be made the residue of the damages 
 [or " debt and damages "] aforesaid, according to the exigency of the 
 said writ ; and I do further certify and return to the said court, 
 that the following is a true specification, &c., [as in the preceding 
 form.] The answer of S. T., Sheriff, 
 
 By U. E., Under Sheriff. 
 
 § 732. Property unsold for want of buyers. 
 
 By virtue of the within [or " annexed"] writ, to me directed, 
 I have taken goods and chattels of the defendant therein named, 
 to the value of the damages [or " debt and damages"] in the said 
 writ mentioned, which goods and chattels remain in my hands for 
 want of buyers ; therefore I cannot have that money before the 
 
 said circuit court for the county of , at the day in said writ 
 
 contained, as therein I am commanded. 
 
 The answer of C. B., Sheriff, 
 By W. A., Deputy Sheriff. 
 
 § 733. Special return to fi. fa. 
 
 By virtue of the within [or "annexed"] writ, I did, on the 
 
 — day of , levy upon divers dry goods, groceries, &c., of 
 
 the defendant therein named, and sufficient in value to satisfy the 
 said writ, and did thereupon take a receipt for the said goods and 
 chattels, of which the annexed is a copy, and left the same goods 
 and chattels in the possession of the defendant. I do further cer- 
 tify and return, that after the said levy was made, to wit., on the 
 day of , I was served with an order made by S. G., cir- 
 cuit judge of the judicial circuit, staying the proceedings 
 
 upon said writ until the — Tuesday of then next, and until 
 
 the further order of the circuit court for the county of , and 
 
 that before the expiration of the time mentioned in said order, to 
 
 wit., on the — day of , the said goods and chattels were 
 
 casually consumed by fire, in the building in which I found and 
 left them, excepting a small portion thereof, which I have adver- 
 tised and sold according to law ; and upon which sale I have made 
 
236 EETURNS TO EXECUTIONS, 
 
 dollars, parcel of the damages [or "debt and damages"] in 
 
 the said writ mentioned, besides my costs upon the same. I farther 
 certify, that E. S., the person who gave the said receipt, is of suf- 
 ficient responsibility for the same. 
 
 And I do further certify and return that the following is a true 
 specification, &c., [as in § 730 to the end.] Dated, &c. 
 
 The answer, &c. 
 
 Copy of receipt referred to in the foregoing return. 
 
 Received of S. T., Esquire, sheriff of the county of , the 
 
 following goods and chattels, to wit., [description of the property,] 
 which said goods and chattels have been levied upon and taken by 
 the said S. T., sheriff, as aforesaid, by virtue of a writ ol fieri facias 
 
 issued out of the circuit court for the county of , in favor of 
 
 A. B., plaintiff, against C. D., defendant, to him directed, dated 
 
 the — day of • , and returnable on the — day of . And I 
 
 do hereby agree to have the said goods and chattels ready, and 
 deliver the same to the said S. T., sheriff as aforesaid, at the store 
 of the said C. D., where the same were taken, on the — day of 
 
 , or, in default thereof, to pay to the said S. T. the value of 
 
 said goods and chattels. Dated, &c. 
 
 E.S. 
 
 llETUBKS TO CAPIAS AD SATISFACIENDUM. 
 
 § 734. Cepi corpus in custodia. 
 
 I have taken the within named G. D., defendant, whose body 
 I have ready at the day and place within contained, as within I 
 am commanded. ■ The answer of S. T., Sheriff. 
 
 Common form. 
 " Defendant taken. S. T., Sheriff." 
 
 § 735. Non est inventus. 
 
 The within named defendant cannot be found in my county. 
 
 The answer, &c. 
 
 Commonform. 
 " Defendant not found. S. T., Sheriff." 
 
 [If the writ is satisfied by payment, the return is :] 
 
 "Satisfied. S. T., Sheriff." 
 
 § 736. Sheriff^s certificate of sale of real estate. 
 
 I, C. B., sheriff of the county of , do hereby certify, 
 
 that by virtue of a certain writ of fieri facias issued out of and un- 
 
sheriff's deed. 237 
 
 der the seal of the circuit court for the county of , in favor 
 
 of A. B., plaintiff, and against C. D., defendant, to me directed and 
 delivered, I did. this day, in the manner provided by statute, and, 
 after having advertised the same for sale according to law, sell at 
 
 public vendue, un*o D. L., of , for the sum of dollars, he 
 
 tjeing the highest bidder, and that being the highest sum bid for 
 the same, all the right, title and interest of the said defendant C. D., 
 
 of which he was seized or possessed on the — day of , [the day 
 
 when the levy was made,] or at any time afterwards, of, in, and to 
 all that certain lot, tract or parcel of land situate, &c., [desciibing 
 the property particularly,] together with all and singular the here- 
 ditaments and appurtenances thereunto belonging, or in anywise 
 appertaining. And I do further certify, that the purchase money 
 so bidden as aforesaid has been paid to me, and that the said pur- 
 chaser or his assigns will be entitled to a deed of conveyance of the 
 
 said premises on the — day of ■ , one thousand eight hundred 
 
 and , unless the same shall be sooner redeemed, according to the 
 
 statute in such case made and provided. Given under my hand 
 
 this — day of , one thousand eight hundred and . 
 
 S. T., Sberiff.(l) 
 
 § 737. Sheriff's deed of real estate sold on execution, ' ;1 
 
 This indenture, made the — day of , one thousand 
 
 eight hundred and , between 0. B.,sheritf of the county of , 
 
 of the first part, and , of the second part. "Whereas, by virtue 
 
 of a certain writ [or, " of iivo certain writs,'''''] of fieri facias, issued 
 
 out of and under the seal of the circuit court for the county of , 
 
 in favor of A. B., plaintiff, against C. D., defendant, to the said sheriff 
 [or " to the late sheriff"] directed and delivered, commanding him, 
 that of the goods and chattels of the said C. D. in his county, he 
 should cause to be made certain moneys in the said writ [or 
 " writs "] speciiied ; and if sufiicient goods and chattels of the said 
 C. D. could not be found, that then he should cause such moneys 
 to be made of the real estate of the said C. D., within his county, as 
 on reference to the said writ [or " writs "] now of record in the said 
 
 circuit court for the county of , will more fully appear : And 
 
 whereas, because sufficient goods and chattels of the said C. D. could 
 not be found, whereof he, the said sheriff, [or " late sheriff,"] could 
 cause to be made the moneys specified in the said writ [or " wr'ds"] 
 he, the said sheriff, [or " late sheriff,"] did, in obedience to the said 
 command, levy on, take, and seize all the estate, right, title and in- 
 terest of the said C. D., of, in and to the lands, tenements, real estate 
 and premises hereinafter particularly set forth and described, with 
 the appurtenances ; and did, on the — • day of , sell the said 
 
 E remises at public vendue, at [name the place] in the said county, 
 e having first given notice of the time and place of such sale, by 
 advertising the same according to law ; at which sale the said prem- 
 ises were struck off and sold to D. L. for the sum of dollars, 
 
 (1) Comp. L..982. 
 
238 sheriff's deed. 
 
 he, the said D. L., being the highest bidder, and that being the high- 
 est sum bidden for the same. Whereupon the said sheriff [or " late 
 sheriff^'], after receiving from the said purchaser the said sum of 
 money so bidden as aforesaid, gave to him such certificate as is by 
 law required to be given, and a certificate of such sale was duly filed 
 
 in the office of the register of deeds of the said county of : And 
 
 whereas, the fifteen months after such sale, and the giving and filing 
 of such certificate thereof, have expired, without any redemption of 
 the said premises having been made, and [here, if the case require 
 it, insert the transfer of the sheriff's certificate to any subsequent 
 purchaser, and by him to some other, and from him to the present 
 owner :] Now, This Indenture Witnesseth, that the said party of 
 the first part, as sheriff as aforesaid, by virtue of the said writ, [or 
 " tvrits,"] and in pursuance of the statute in such case made and 
 provided, for and in consideration of the sum of money above men- 
 tioned, and so paid as aforesaid, hath granted, bargained, sold,. re- 
 leased, assigned, conveyed and confirmed, and by these presents 
 doth grant, bargain, sell, release, assign, convey and confirm unto 
 the said party of the second part, his heirs and assigns, all the es- 
 tate, right, title and interest of the said C. D., against whom the 
 said writ [or "writs"] of execution were so issued as aforesaid, 
 
 whereof he was seized or possessed on the — day of , [the day 
 
 of the levy,] or at anytime afterwards, of, in, and to all that certain 
 tract, piece or parcel of land, [describe the lands,] together with all 
 and singular the hereditaments and appurtenances thereunto be- 
 • longing, or in anywise appertaining : To have and to hold the said 
 above mentioned and described premises, with the appurtenances, 
 unto the said party of the second part, his heirs and assigns forever, 
 as fully and absolutely as the said party of the first part, as sheriff 
 as aforesaid, can, may or ought to, by virtue of the said writ, [or 
 " writs,"] and of the statute in such case made and provided, grant, 
 bargain, sell, release, assign, convey and confirm the same. 
 
 In witness whereof, the said sheriff hath hereunto set his hand 
 and seal, the day and year first above written. 
 
 C. B., Sheriff, [seal.] 
 Signed, sealed and delivered ) 
 
 in the presence of ) 
 
 J. M. 
 K.L.(1) 
 
 (1) Comp. L. 937, § 33. 
 
MOTIONS AND EULES. 239 
 
 CHAPTER IX. 
 
 PROCEEDINGS INCIDENT TO ACTIONS IN GENERAL. 
 
 § 738. From the view which has been presented of the general 
 course of proceedings in real or mixed, as well as in personal 
 actions, it is apparent- that they are the same in all of them, ex- 
 cepting only in so far as the remedy sought in each particular class 
 of actions, renders a different form of proceeding necessary to its 
 attainment ; and in treating of them, frequent reference has been 
 made to various incidental proceedings, embracing motions, rules, 
 orders, affidavits, notices, and the preparation and service of papers. 
 Before entering upon the details of these proceedings, their gene- 
 ral nature, objects, and uses as a class of proceedings, will be 
 briefly considered ; and these are the same, in general, in all the 
 classes of actions above referred to. 
 
 § 739. Motions and rules or orders, in reference to the mode 
 of making or obtaining them, and their general objects and uses, 
 are divided into two classes, common and special: Every rule to 
 which a party would, according to the practice of the court, be 
 entitled of course, without showing special cause, is denominated 
 a common rule ; and these, together with all rules by consent of 
 parties, are to be entered in the " common rule book " kept by the 
 clerk, and may be entered at any time, as well in vacation as in 
 term ; and the party may enter such rule as he may conceive him- 
 self entitled to of course, but at his peril. (1) These common rules, 
 though purporting to be granted (like special rules) by the court 
 upon motion, are, in fact, always entered by the attorney, as mat- 
 ters of course, and without any motion. They are mere formal 
 entries, prescribed and regulated by settled general rules of prac- 
 tice, but having the same effect, when regularly and properly en- 
 tered, as if actually ordered by the court in each particular case, 
 and being equally indispensable to the regularity of the proceed- 
 ings. 
 
 § 740. The day when the rule is entered must in all cases be 
 noted in the entry thereof, with the title of the cause, and the 
 name of the attorney. The rule usually begins with a brief reci- 
 tal of the previous proceeding which constitutes the immediate 
 
 (1) Rule 14. - 
 
240 INCIDENTAL PEOCEEDINGS. 
 
 foundation of it, such as the return of a writ, or the filing of an 
 affidavit or other paper, and purports to be on motion of the attor- 
 ney who enters it ; and the entry is generally accompanied by the 
 filing of some affidavit, record or other paper referred to therein, 
 from which the party's right to enter the rule appears. Eules 
 requiring some act to be done in a specified time after service of a 
 copy, or notice thereof, such as a rule requiring the defendant to 
 appear and plead to a declaration in twenty days after service of a 
 copy thereof, and notice of the rule, when the suit is commenced 
 by declaration, are inoperative until such notice is given. Enles 
 for defaults, and for making defaults absolute, and for a reference to 
 assess damages, &c., do not require any notice. 
 
 § 741. In computing the time for complying with the exigency 
 of a rule, the day on which it is entered is excluded, and the day 
 on which a compliance therewith is required, is included, except 
 when it falls' on a Sunday, in which case the party has the next 
 day to comply therewith.(l) Intermediate Sundays are included 
 in the computation.(2) The principal common rules which may 
 be entered in the course of proceedings in a personal action, are 
 rules for the defendant's appearance ; to discontinue ; for de 
 fault in not declaring, pleading, replying, rejoining, surrejoining, 
 or joining in demurrer ; and rules for wer-fciag defaults absolute, 
 for interlocutory judgment, and assessment of damages'; all of 
 which will be more particularly considered hereafter. 
 
 § 742. Special rules embrace all others, not included under the 
 denomination of common rules ;(3) and are obtained only on actual 
 application to the court, and on cause shown. They relate, in 
 general, to incidental points of practice not involving the merits 
 of the action, and are employed as auxiliary to the general course 
 of the proceedings, although they frequently put an end to the 
 action in which they are made. Motions for judgments upon de- 
 murrer, verdict, case agreed between the parties, clerk's report of 
 assessment of damages, or on default in debt, and others of like 
 character, when the judgment of the court is the result of a pre- 
 vious agreement or decision, involving the merits of the contro- 
 versy, are not, therefore, considered as special motions, 
 
 § 742. Every special motion, except a motion for the continu- 
 ance of a cause, must be entered in the " special motion book " 
 
 (1) Rule 15. (2) 3 J. E. 261. (3) Eule»14. 
 
MOTIONS AND RULES. 241 
 
 kept by the clerk for tliat purpose, and in entering it, all the 
 grounds upon whicli it is founded must be briefly but distinctly set 
 out; and it must be entitled, dated, and signed by the attorney or 
 counsel of the party in whose behalf it is entered ;(1) and all mo- 
 tions must be in writing, and have indorsed thereon the names of 
 the parties and their respective attorueys.(2) The affidavits and 
 other papers on which the motion is founded, must be filed at the 
 time of entering the motion, and copies thereof must be served on 
 the attorney of the opposite party, on or before the day of entering; 
 he motion, unless further time is granted. (3) 
 
 § 744. Motions for new trials must be made and entered, with: 
 the reasons on which they are founded, within two days in term 
 after the rendition of the verdict, or decision of the court; and if 
 two days in the same term do not intervene after such verdict or 
 decision, such motion must be entered on or before the first day of," 
 the next succeeding term.(4) Motions in arrest of judgment must, 
 be made within the same time, except when a motion for a new 
 . trial has been interposed and overruled, and then within two days; 
 after the motion is overruled ; (5) and all motions to set aside a. 
 default must be made within the first four days of term next after- 
 the default was entered. (6) But the court has power to shorten or- 
 extend the time for making such motions, in its discretion ;(7) and. 
 the time to move for a new trial is frequently extended, in order- 
 to afford opportunity to procure affidavits, where substantial jus- 
 tice seems to require it. 
 
 § 745. In cases where the time for making a motion is not; 
 expressly limited, the general rule is, that it must be made at the- 
 next term after the matter on which it is founded arose ; and if not-, 
 made at as early a day as, with ordinary diligence, it can be pre- 
 sented, an excuse must be shown for the laches ; and auch excuge- 
 must be shown by affidavit, and served on the opposite party.(8).i 
 This rule, however, does not apply to motions for relief aflfecting: 
 the substantial rights of the parties, but only to questions of irregu- 
 larity, and other questions appertaining to the orderly conduct ofT 
 a suit.(9) If the party has not had an opportunity to make hia; 
 motion, and the other party is proceeding to judgment or execu- 
 
 (1) Eule 29. (2) Rule 33. (3) Eule 28. 
 
 (4) Rule 31. (5) Rule 32. (6) Rule 27. 
 
 (1) Eule 12. (.8) 5 ■Wendell, 82. 
 
 (9) Id. -129 J and see 5 Hill, 234, note. 
 
 1R 
 
242 INCIDENTAL PROCEEDINGS. 
 
 tion, or taking other steps in the cause which may prejudice his 
 rights, it will be necessary to procure a stay of the proceedings 
 until the motion can be made. 
 
 § 746. In order to obtain the necessary stay of proceedings, an 
 affidavit or affidavits must be made upon which to found the mo- 
 tion, and showing the necessity for further time. The draft of a 
 proper order should also be made, and these should be presented 
 to the circuit judge or circuit court commissioner, who will sign 
 the order ; and the service of such order, with copies of the affida- 
 vits on which it is granted, together with a notice of the motion to 
 Ibe made thereupon, will operate as a stay of proceedings until the 
 lOrder of the court is had in the premises, unless such order should, 
 nn the meantime, be superseded or set aside. But the proceedings 
 will not be stayed for a longer time than to enable the party to 
 laake his motion according to the practice of the court ; and if 
 :made, until the decision of the court thereon.(l) Until the orderi 
 copies of affidavits, and notice of motion are served, the order is of 
 no effect to stay the proceedings.(2) 
 
 § 747, An order to stay proceedings for the purpose of making 
 a motion, does not operate to enlarge the time to plead or an- 
 swer ;(8) nor will it give a defendant the same time to plead after 
 ihe motion is decided, that he had when the order was served ; 
 and if the time to plead expires before the motion is made, the 
 plaintiff may enter the default as soon as the order staying pro- 
 ceedings ceases to operate.(4) If further time to plead or answer 
 is necessary, an order should therefore be obtained for that pur- 
 pose. 
 
 § 748. Special motions are brought on to be heard according to 
 ihe order in which they are entered, unless the court otherwise or- 
 ders ;(5) but no motion which is resisted can be heard on the day it 
 is entered, without the consent of parties, unless the court, on good 
 cause shown, otherwise direct.(6) On the argument of a motion 
 for a new trial, or in arrest of judgment, the party making the 
 motion must furnish the court with a copy of the reasons on which 
 it is founded, and also a brief.{7) Only one counsel on each side 
 
 (1) See Eule, U. (2) 5 Cowen, 438. (3) 1 Cowen, 519. 
 
 (4) 2J ■WendeU, 645. (5) Eule 29. (6) Eule 30. 
 
 (1) Eule 73. 
 
MOTIONS AND BULES. 243 
 
 can be heard on the argument of any motion, the mover being en- 
 titled to open the argument, and to reply to the argument of the 
 opposite attorney. (1) 
 
 § 749. Counter affidavits may, in most cases, be used in oppos- 
 ing a special motion or application to the court for a rule or order, 
 by the party against whom it is made. It is not necessary to serve 
 copies of such affidavits previous to the bringing on of the motion 
 for hearing ;(2) but when the motion is called on for argument, the 
 affidavits of the moving party being first read, any counter affida- 
 vits that are to be used in opposing the motion, must be read before 
 the argument is commenced, in order that the court, and the coun- 
 sel of the moving party, may be fully possessed of the facts involved 
 in the argument. Papers purporting to be signed by the attorney 
 of one party, and to have been served upon the other in the course 
 of the cause, may be used by the counsel for the latter as the foun- 
 dation of the motion, though their genuineness be not verified by 
 affidavit -,(3) and the rule of evidence which precludes a party from 
 using a copy of a written instrument, without accounting for the 
 absence of the original, does not apply to motions in the course of 
 practice. (4) 
 
 § 750. If the opposing party intend to raise any question of a 
 merely formal kind, the objection must be made before the merits 
 of the motion are gone into, otherwise it will be considered as 
 waived. (5) When a conclusive answer is given to a special motion, 
 it will be denied, and not continued over to a subsequent term, to 
 give the moving party an opportunity of replying. If the answer 
 be untrue, or can be satisfactorily explained, the proper course for 
 the party to pursue, is to ask leave to withdraw his motion, or that 
 it may be overruled without prejudice, so that he may meet the 
 matter of the answer upon a new motion ; and the same course 
 should be taken when it becomes apparent that the mover cannot 
 prevail, on account of some formal defect or insufficiency in his 
 papers. If the request be! granted, the fact should be stated in 
 the order, it being a rule that when a special motion has once been 
 denied, it cannot be renewed without leave of the court previously 
 obtained, either at the time of the denial or afterwards.(6) If, how- 
 ever, the motion be for a continuance, which is not required to be 
 
 (1) Eula 64. (2) 2 Johns. Cases, 105. (3) 2 Hill, 360. 
 
 (4) 6 Hill, 254. (6) 3 Caines' R. 105. 
 
 (6) See 12 Wendell, 290; 1 Howard S. T. B. 66, 108, 143 ; 6 HUl, 493. 
 
244 INCIDENTAL PEOCEEDINGS. 
 
 made in writing, or entered, the court will, in its discretion, allow 
 a supplementary affidavit to be introduced to supply a deficiency 
 in the original, when the application appears to be made in good 
 
 faith. 
 
 § 751. Notices of special motions are not, in general, required to 
 be given, and it is sufficient that they be made in writing, and en- 
 tered in conformity with the standing rules of practice ; but in 
 some cases notice is expressly required to be given, and in all cases 
 where the substantial rights of a party may be prejudiced, the 
 court will exercise a sound discretion, and, if necessary, see that 
 the party interested, or his attorney, have knowledge of the pend- 
 ing motion before deciding it ; or will make an order nisi, giving 
 the party against whom it is made an opportunity to show cause 
 against it within such' reasonable time after service of a copy there- 
 of as it may deem proper.(l) 
 
 § 752. Eules and orders obtained on special motion, are, as be- 
 fore observed, denominated special rules. The rule thus obtained 
 is the decision of the court upon the question presented by the mo- 
 tion, and is generally given upon the conclusion of the argument ; 
 but if questions of difficulty are involved, requiring more mature 
 deliberation, the decision is often deferred until a future day in the 
 same term, and sometimes, in important cases, until the next suc- 
 ceeding term. The papers used upon the argument, and not pre- 
 viously filed, must be filed with the clerk when the argument is 
 concluded.(2) The rule is either drawn up by the attorney ob- 
 taining it, or by the clerk, and entered upon the journal. If a 
 mistake occur in entering it, the court will order.it to be corrected, 
 or vacate it if unfairly entered.(3) In all cases of special motions, 
 the prevailing party will be allowed such sum for his costs as the 
 court, in view of the circumstances, may deem just ;(4) and such 
 sum must be specified in the order. 
 
 § 753. If the application, after opposition, be successful, the 
 form of the rule wiU be substantially as follows : 
 
 \Title:\ 
 
 On reading and filing affidavits in this cause, and after hear- 
 ing M. H., of counsel for the plaintiff, and M. M., of counsel for 
 defendant, it is ordered, &c., [stating the rule,] with dollars 
 
 (1) See 6 Mich. E. 242. (2) B Cowen, 13. 
 
 (3) 1 Cainea' R. 7. (4) Rule 91. 
 
MOTIONS AND RULES. 245 
 
 costs, [or " on payment of costs of opposing motion" or otherwise, 
 as the case may require.] 
 
 If terms are imposed, they are briefly stated at the end. If the 
 motion be not opposed, and notice was given to the opposite party, 
 the form may be varied thus : 
 
 [Title.] 
 
 On reading and filing an affidavit [or "admission"] of service 
 of notice of motion in this cause, and affidavits upon which the said 
 motion is founded, and after hearing M. H., of counsel for the plain- 
 tiff, [or " defendant"] no one appearing to oppose, it is ordered 
 that, &c. 
 
 If the motion be dismissed, the rule may be in the following 
 form: 
 
 [THIe.] 
 
 A motion having been heretofore made on the part of the 
 plaintiff [or "defendant"] in this cause, that, &c., [stating the object 
 of the motion,] after hearing counsel of the respective parties, [or 
 " after hearing M. H., of counsel for the plaintiff, no one appearing to 
 oppose"] it is ordered that the said motion be denied, &c. 
 
 § 754. If the rule is such as to require a service upon the oppo- 
 site party, or his attorney, a copy of it must be obtained from the 
 clerk, duly certified by him, and served in the manner specified in 
 the rule, if any mode of service is indicated therein; and if not, it 
 may be served in the same manner as other papers in a cause, or, 
 if the object be to bring the party into contempt for non-compli- 
 anee with its requirements, it must be served personally, as will 
 hereafter be more fully explained. A party obtaining a rule has 
 no right to wait for notice of it from the adverse party ;(1) and 
 when a favor is granted to a party, as leave to amend upon pay- 
 ment of costs, he must, at his peril, take notice of the order of the 
 court, and must comply with the terms of the rule within the 
 proper time, or he will lose the benefit of it.(2) 
 
 § 755. "When a rule has been taken against a party, and he has 
 failed to appear at the hearing, the court, on sufficient cause shown, 
 will open it, either at the same or a subsequent term.(3) And when 
 counsel are in attendance watching their motions, and by mistake 
 a default is taken against them, it is usual to open the rule at the 
 same term, if the counsel who took it be in attendance.(4) If there 
 
 (1) T Cowen, 419. (2) 22 ■Wendell, 608. 
 
 (3) 1 Howard S. T. E. IT, 1T2. (4) Id. \12. 
 
246 INCIDENTAL PB0CEEDING3. 
 
 be a substantial ground for opening tbe rule, and tbere be no op- 
 portunity to move at the same term, an order should be obtained, 
 if necessary, staying proceedings, and served with notice of the 
 motion to open and vacate the rule, to be made on the first day of 
 the next succeeding term.(l) The motion must be heard, as to the 
 party moving, upon the same papers upon which it was originally 
 made. He cannot enlarge the grounds of his motion by way of 
 reply to his adversary.(2) If a special motion be entered, or notice 
 thereof given, it is the duty of the moving party to proceed with 
 diligence to bring his motion to a hearing, and if he fail to do so, 
 it will be overruled at the instance of the opposite party. 
 
 § 756. Costs upon motions, although resting in the discretion of 
 the court, will in general be allowed or withheld, according to the 
 following general rules. Where proceedings are set aside as irregu- 
 lar, the party who committed the irregularity must pay costs ; but 
 where regular proceedings are set aside, which is matter of favorj 
 or where a party is permitted to amend any j;)roceeding, the payment 
 of costs is annexed as a condition of granting the relief sought. 
 And if a motion be denied in consequence of a defect in the papers, 
 or of insufficient notice, the party failing will be required to pay 
 costs.(3) In other cases, when a motion is denied, costs, in general, 
 follow.(4) All costs to which a party is entitled on a motion, must 
 be asked for when the motion is made, and cannot be made the 
 ground of an application at a subsequent term.(5) A party on a 
 special motion is not entitled to costs, where the motion is granted 
 without opposition, and costs are not asked for in the notice.(6) 
 These general rules may be controlled by exceptional circumstances, 
 where an adherence to them would clearly result in injustice. When 
 the rule requires the payment of costs without any other specifica- 
 tion, it only embraces the actual disbursements ; and if more is given 
 as compensation to the attorney for preparing and arguing, or re- 
 sisting the motion, the amount must be specified. 
 
 § 757. Costs are payable in all cases, when a motion is granted 
 on payment of costs, or when the order requires such payment, 
 immediately upon taxation and demand thereof made by the party, 
 his agent or attorney, unless time is allowed for that purpose ; and 
 if not so paid, on affidavit of the fact, if the rule was granted upon 
 
 (1) Ante, § 746. (2) 8 Cowen, 135. (3) 9 "Wend. 450. 
 
 (4) 2 Cowen, 484. (5) 2 Cainea' E. 380. (6) 10 Wend. 603. 
 
AFFIDAVITS. 247 
 
 the payment of costs, it may be vacated, or the court may grant an 
 attachment therefor, with the accruing costs ;(1) and if the rule per- 
 emptorily require the payment of costs, payment may be enforced 
 by attachment.(2) If the amount of the costs to be paid is not fixed 
 by the rule, the party entitled thereto must make out a bill speci- 
 fying the particular items, and serve a copy thereof on the opposite 
 party or his attorney, and give two days' notice of the taxation 
 thereof; and on the costs being taxed, a demand of the amount must 
 be made of the party liable therefor personally, and upon proof by 
 affidavit of such demand, and a refusal to pay it, the court will 
 order a precept to issue to commit the person so disobeying to 
 prison untH such costs, and the costs and expenses of the proceed- 
 ing, shall be paid.(3) 
 
 § 758. The demand is made by serving a copy of the taxed 
 bill, and of the rule, showing at the same time a certified copy of 
 the rule, and the original taxed bill of costs, and demanding pay- 
 ment thereof (4) The demand may be made by the attorney in 
 person, or by any person specially empowered for that purpose ; 
 and in the latter case it is necessary to show the power at the time 
 of making the demand.(5)^ When costs are awarded against a 
 bank, it has been held that the process proper to be issued to en- 
 force payment is a distringas, for which it is necessary to apply to 
 the court; (6) and notice is not necessary to be given of the appli- 
 cation for such process. 
 
 § 759. Affidavits being, in general, the essential grounds of mo- 
 tions, they" constitute a very important part of the incidental pro- 
 ceedings in a cause ; and hence it is necessary to consider by whom 
 they should be made, their formal parts, before whom they may 
 be made, and when they are to be filed and served. 
 
 The affidavit may, in general, be made by the party or his at- 
 torney, or by a third person, according as the knowledge of the 
 facts rests with either of them; but when the affidavit relates to 
 the proceedings in a cause, it ought to be made by the attorney ; 
 and an affidavit made by a clerk in his office will not do, unless a 
 sufficient excuse is offered for the omission ;(7) but this does not 
 apply to affidavits of service of papers, or other acts usually done 
 by a clerk, and therefore peculiarly within his knowledge. 
 
 (1) Rule 66. (2) Comp. L. 1129. (3) Id. 
 
 (4) 1 "WendeU, 294. (5) 6 Cowen, 39. (6) 1 Burr. Pr. 339. 
 
 (7) 2 •Wendell, 283. 
 
248 INCIDENTAL PROCEEDINGS. 
 
 § 760. When there is a motion or other proceeding pending in 
 any court of record, in which it shall be necessary for either party 
 to have the deposition of any witness who shall have refused vol- 
 untarily 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 .(1) The witness 
 may be subpoenaed to attend and testify before such commissioners 
 in the same manner as before referees, and with the like effect, and 
 obedience to such sutpcena may be enforced in the same manner.(2) 
 
 § 761. All affidavits should regularly be entitled in the court in 
 which they are made or intended to be used ;(3) and if there be a 
 cause in court, all the affidavits made to be used in the progress of 
 it, must be entitled in the came, stating the christian and surnames 
 of the parties, and the character in which they sue or are sued, 
 otherwise they cannot be used.(4) But though the character in 
 which a party sues or is sued be not stated, yet, if the parties are 
 correctly named, and the body of the affidavit shows its applica- 
 bility and object, this would seem to be sufficient.(5) If, however, 
 the affidavit is entitled " C. D. ads. A. B.," instead of " A. B. vs. C. 
 D.," this has been holden to be a fatal defect,(6) unless some of the 
 accompanying papers are properly entitled, so that the mistake can 
 be rectified.(7) An affidavit of service, following or indorsed upon 
 papers which are entitled, need not itself be separately entitled .(8) 
 When there is no cause in court, as when the affidavit is made 
 before the commencement of the suit, it should not be entitled as 
 in a cause, and if so entitled it cannot be used.(9) Thus, an affidavit 
 to hold to bail ought not to be entitled in any cause, because it is 
 sworn to before the action is commenced, and is not itself considered 
 as the conimencement of the action, or of any proceeding in an 
 action.(lO) 
 
 § 762. All affidavits commence with a statement in the margin, 
 of the county or venue in which they are made, thus : " Oakland 
 county, ss." Where the affidavit is made by one person only, it 
 
 begins thus : "A. B. of , merchant [or other proper addition], 
 
 heing duly sworn, deposes and says that," &c., proceeding with the 
 substance of the affidavit. When made by more than one person, 
 
 (1) Comp. L. 1226. (2) Id. 1226. (3) 3 Ohitty's Gen. Pr. 531. 
 
 (4) 2 Arch. Pr. 318 ; 1 Cowen, 481 ; 2 id. 489. (5) 5 Cowen, 28T. 
 
 (6) 2 Dowl. P. C. 710. (1) 1 Games' E. 112. '(8) 4 Hill, 591. 
 
 (9) 2 Aroh. Pr. 319; 3 Chitt. Gen. Pr. 332; 2 Cowen, 509. 
 
 (10) 12 J. E. 460, note; 2 Arch. Pr. 319; 2 Cowen, 600, 509. 
 
AFFIDAVITS. 249 
 
 the form is thus: "A. B. of , and C. D. of , heing 
 
 duly sworn, severally depose and say ; and first this deponent, A. B., 
 for himself, says that," &c., and if there be any facts to which both 
 can swear, then say " and these several deponents, A. B. and C. D., 
 say that," &o. When the affidavit is made by one of the parties in 
 a cause, he is usually described in the commencement as " the above 
 named plaintiff" or " defendant." If made by a person having con- 
 scientiotis scruples against taking an oath, the word "affirmed" 
 should be substituted for " sworn," and such person is described as 
 " affirmant " instead of " deponent," and the paper as an " affirma- 
 <ion."(l) The place of residence of the person making the affidavit 
 ought also to be stated as a means of identification, unless such 
 person be otherwise described so as to distinguish him from any 
 other of the same name. 
 
 § 763. The body or substance of the affidavit, except in those 
 cases where the form is prescribed, must Becessarily vary accord- 
 ing to the circumstances of each case. It is a general rule that the 
 affidavit must set forth all the facts and circumstances necessary to 
 be stated in each particular case, explicitly, and with certainty and 
 fullness, and at the same time with all practicable conciseness.(2) 
 This is especially important in affidavits that are to be used as the 
 foundation of an application for a rule of court or judge's order. 
 "When a deponent swears to any fact as within his own knowledge, 
 he must swear directly and positively.(3) When anything is stated 
 upon information, there should always be added words expressive 
 of a belief of its truth, thus : " And this deponent is informed and 
 verily believes," or words to that effect. Mere clerical errors and 
 mistakes in spelling, are not sufficient ground for rejecting an affi- 
 davit, when the meaning is clear.(4) The omission of a word 
 may, however, render an affidavit uncertain, and therefore bad. 
 Thus, when an affidavit of service stated that deponent delivered 
 "a true [omitting the word 'copy'] of the declaration," it was held 
 bad.(5) 
 
 § 764. The affidavit ought regularly to be subscribed by the party 
 making it, either by signing his name, if he can write, or by mak- 
 ing his mark, if he cannot. But this has been held not to be 
 actually essential, it being deemed sufficient if it begin with the 
 deponent's name, and appear to have been sworn before a proper 
 
 (1) Sea Comp. L. 1184. (2) 2 Arch. Pr. 318. (3) Id. 318. 
 
 (4) 3 Caines' E. 133. (5) 1 Chitty's K. 562, note ; 1 Burr. Pr. 342. 
 
250 INCIDENTAL PEOCEEDINGS. 
 
 officer.(l) In signing the name, it is not a valid objection that the 
 initial or initials only of the christian name are used ;(2) nor that 
 the christian names are transposed ;(3) nor that it is signed in some 
 unknown character. (4) 
 
 § 765. The jurat is written at the foot of the af&davit, on the 
 left hand, and is generally in the following form: "Subscribed 
 
 and sworn to this — day of , A. D. 18 — , before me, U. P. H.y 
 
 circuit court commissioner" or " notary public," &c.(5) If made by 
 two or more persons, the form of the jurat, according to the 
 English practice, is as follows : " The above named deponents, A, 
 
 B. and G. D., were severally sworn at , this — day of , A. D. 
 
 18 — , before me ;"(6) but the form first above given is generally 
 used in this state. It must in all cases state the day on which it 
 was sworn. (7) "When the deponent is a foreigner, not sufficiently 
 acquainted with the English language, the affidavit must be inter- 
 preted to him by a competent sworn interpreter, and that fact must 
 be stated in the jurat.(8) 
 
 § 766. Affidavits taken in this state may be sworn to before 
 any judge or clerk of a court of record, circuit court commissioner, 
 justice of the peace, or notary public, or before any commissioner 
 specially appointed by the court for that purpose.(9) The jurat 
 must be signed by the officer before whom it is taken, and to the 
 signature should be added his official description ;(10) but Lf taken 
 before a judge of the court in which it is to be used, no such de- 
 scription is necessary.(ll) If taken out of this state, in order to 
 entitle it to be used in any judicial proceeding in this state, it must 
 be certified by some judge of a court having a seal, to have been 
 taken and subscribed before him, specifying the time and place 
 when and where taken ; and the genuineness of the signature of 
 such judge, the existence of the court, and the fact that such judge 
 is a member thereof, must be certified by the clerk of the court, 
 under the seal thereof; or, if it be taken in any other of the United 
 States, or any territory thereof, it may be taken before a commis' 
 sioner duly appointed and commissioned by the governor of this 
 state to take affidavits to be used therein. (12) 
 
 § 767. Notice of the proceedings of each party must, as a general 
 rule, be given to the other, and if such notice, when required, is 
 
 (1) 3 J. E. 640. (2) Arch. N. Pr. 13. (3) 11 Mees. & W. 816. 
 
 (4) 3 Dowl. P. C. 370. (5) See 3 Mich. R. 690. (6) 2 Arch. Pr. 320. 
 
 (7) 1 Chitt. R. 228. (8) Arch. N. Pr. 16 ; 4 B. & C. 358. 
 
 (9) Comp. L. 1184. (10) 3 Cainea' E. 128. (11) 1 Burr. Pr. 343. 
 
 (12) Comp. L. 1169; 12 'Wendell, 223. 
 
NOTICES. 251 
 
 omitted, the proceedings may be set aside as irregular. The case 
 of a defendant who has not appeared in the action (unless he be 
 imprisoned for want of hail) is an exception to this rule.(l) All 
 notices must be in writing,(2) and must be served in proper season 
 on the opposite party or his attorney, as the case may require. As 
 to the body or substance of the notice, it must vary according to 
 the circumstances of each case ; and the only general rule that can 
 be laid down respecting it, is, that in all cases it must give the 
 requisite information with sufficient perspicuity and precision to 
 preclude all probability of mistake in construing it. But if the 
 party served with a notice be not misled, or the papers be not such 
 as evidently may mislead, a mere clerical misprision will not vi- 
 tiate it.(3) 
 
 § 768. A notice of motion ought to specify the time when the 
 motion will be made, and it must specify one certain time only, and 
 cannot be in the alternative. Thus, a notice of motion to be made 
 "on the second Monday of the next May term, provided the courtwouM 
 entertain and hear the motion at said term, and if not, that then the 
 motion would be made on the first Tuesday of June next" &c., was 
 held bad. (4) But notice of a motion for " the next term," without 
 mentioning any particular day, has been held good.(5) And if 
 the notice add a particular day for the motion, which is several 
 terms forward, this has been rejected as surplusage.(6) It is usual 
 also to specify the place at which the court is to be held, but this 
 is not indispensable.(7) It is also usual to state that the motion 
 will be made at the opening of the court on the first day of the 
 term, " or as soon thereafter as counsel can be heard," but this is not 
 essential.(8) The notice ought to be correctly entitled in the cause, 
 dated, and signed by the attorney on the record, and directed to 
 the opposite party or his attorney, as the case may require.(9) 
 
 § 769. Where a notice relates to a proceeding which has already 
 taken place, it should be served immediately thereafter. When it 
 is prospective, certain fixed periods are, in most cases, prescribed by 
 statute or by rule, in accordance with which the service must be 
 made so many days previous to the time specified in the notice. 
 Thus, a notice of trial of an issue of fact is required to be served at 
 
 (1) Hule 8. (2) Rule 6. 
 
 (3) 3 Caines' R. 133; 4 Cowen, 60; 11 "WendeU, 178. 
 
 (4) 1 Howard 3. T. R. 191. ' (5) 1 Co-wen, 230. 
 (6) 4 Id. 61. (7) 2 Caines' R. 104. 
 (8) 1 J. R. 14». (9) 1 Burr. Pr. 346. 
 
252 
 
 INCIDENTAL PROCEEDINGS. 
 
 least fourteen days before the first day of the term at which the 
 trial is intended to be had ;(1) and the same notice is required of 
 assessment of damages ;(2) and in cases appealed from justices of 
 the peace, eight days' notice of trial is required.(3) When notice 
 IS served by putting in the post office, the time must be increased 
 one day for every twenty miles distance between the place of de- 
 posit and the place of address.(4) 
 
 § 770. After serving notice of an intended proceeding, if the 
 party giving the notice should find that he cannot proceed under it, 
 he should countermand it in due season, otherwise he may be sub- 
 jected to costs. The notice of countermand must be in writing, and 
 should be given as soon as the necessity of it becomes apparent. 
 
 When a notice of trial or motion has been given, it is incumbent 
 upon the opposite party to attend and be in readiness when the 
 cause is. called, or the motion made ; and if he fail to attend at that 
 time, the other party may proceed in his absence. But when notice 
 has been given to appear or attend before a judge out of court, less 
 strictness is generally required, and it is usual in practice to wait 
 for the opposite party sometimes an hour,(5) sometimes only half 
 ail hour.(6) Strictly, however, the judge is not required to wait 
 for him beyond the precise time appointed — all beyond is matter of 
 practice and discretion.(7) 
 
 § 771. In the progress of a cause it often occurs that, instead of 
 applying to the court for its interference by motion, it is more con- 
 venient and expeditious to obtain a judges order, which may be 
 done either in vacation or in term, by an application to the judge 
 at chambers, or to an officer authorized to perform his duties. The 
 cases, however, in which this mode of interference is allowed, re- 
 late exclusively to the practical course of the proceedings ; and 
 orders of this kind are never grantable when the relief sought 
 affects the merits of the action. In some cases, the parties have the 
 option of obtaining either a rule from the court on motion, or an 
 order from a judge at chambers, or commissioner ; the proceedings 
 by either mode being equally regular and effective. In other cases 
 the relief can only be obtained on motion to the court, while in 
 others the order is the established mode of procedure ; and in others 
 again, both are resorted to consecutively, the order being obtained 
 for the purpose of gaining time to make the motion. 
 
 (1) Comp. L. 1188. (2) Id. 1204, 1336. (3) Id. 1084. 
 
 (4) Rule 9. (6) 20 J. E. 309. (6) Bayley'a Cham. Pr. 22. 
 
 (V) 2 HUl, 415. 
 
judge's oedees. 253 
 
 § 772. 4 ccording to the English practice, judges' orders can, in 
 general, be obtained only on summons to the opposite party, which 
 is in the nature of a notice, and gives him a right to appear and op- 
 pose the granting of the order.(l) In our practice, orders (except 
 such as are panted on orders to show cause) are always obtained 
 ex parte, and without any previous notice. The party applying, 
 however, must always make out a proper case before he can enti- 
 tle himself to the benefit of the order. 
 
 This is done by affidavit, showing the existence of the necessary 
 facts. The order is usually drawn up by the attorney, in such form 
 as he conceives to be proper, and presented to the judge or other 
 officer, with the affidavit. If the affidavit be satisfactory, and the 
 order correct, he will sign the latter, or he will amend it as the case 
 may require. If the first order be to show cause, the party obtain- 
 ing it must serve a copy of it, and of the affidavits on which it was 
 granted, upon the opposite party, and appear at the time and place 
 designated in the order ; and on proof of the service, if no cause be 
 shown, or if the cause shown be insufficient, the judge will then 
 make such an order as the party may be entitled to under the cir- 
 cumstances.(2) 
 
 § 773. The order is of no effect until properly served on the 
 opposite party or his attorney. The usual and proper mode of 
 doing this, is to make a true copy of the order, and serve it on the 
 party or attorney, showing him the original order at the same time. 
 After the service, affidavit should be made of it as in other cases. 
 
 If the judge or commissioner refuse to grant the order applied 
 for, or grant it only in part, or on terms, or conditionally, the 
 proper course is to apply directly to the court; (3) and no subse- 
 quent application in reference to the same matter, and in the same 
 stage of the proceedings, can be made to any other circuit court 
 commissioner, under penalty of fine and imprisonment ;(4) and if, 
 upon a subsequent application, any order be made by a circuit 
 judge or commissioner, it will be revoked by such judge or com- 
 missioner, or by any justice of the supreme court, upon due proof 
 of the facts.(5) 
 
 § 774. An order is as binding as any act of the court, as 
 long as it remains unvacated ; and however erroneous or improv- 
 idently made, or even if fraudulently obtained, cannot for that rea- 
 son be treated as a nullity, provided it be granted by an officer 
 
 (1) 2 Arch. Pr. 314. (2) 1 Dunl. Pr. 30T. (3) 1 Johna. Cases, 246. 
 
 (4) Corop. L. 1108. (5) Id. ; Laws 1858, pp. 7, 8. 
 
254 INCIDENTAL PEOCEEDINGS, 
 
 having jurisdiction of the case ; but is effectual for the purpose for 
 which it was made, and must be so respected until revoked, altered, 
 or set aside.(l) In order to obtain a revocation of the order, the 
 party aggrieved by it may apply, on affidavit, to the same officer 
 who granted it, (which is the usual course,) or to the court. It is 
 irregular to apply to any other judge or commissioner.(2) 
 
 § 775. When the application is made to the officer who granted 
 the order, it is usually for an order to show cause why the former 
 order should not be revoked, and if sufficient cause is not shown 
 by affidavit, the order will be made absolute, revoking the former 
 order. In some cases, however, the order may be revoked without 
 previous notice, as an order extending the time to plead, it being 
 discretionary with the commissioner whether notice shall be given 
 or not.(3) In other cases, notice is required' to be given immedi- 
 ately after the order is obtained; (4) and sometimes the party is 
 allowed to proceed without giving any notice.(5) If the officer 
 refuse to revoke his order, application may be made to the court.(6) 
 If an order granted by a judge or commissioner be revoked by 
 him, a subsequent application to another commissioner, in reference 
 to the same matter, and in the same stage of the proceedings, is 
 irregular ; a revocation being, in effect, the same thing as an origi- 
 nal refusal.(7) But in such case the subsequent order cannot be 
 treated as a nullity, and the party must apply to the court by 
 motion to supersede or revoke it.(8) 
 
 § 776. The preparation of the papers in a cause requires careful 
 attention, for it is evident that the regularity and effect of the pro- 
 ceedings depend very materially upon the manner in which the 
 papers of each party are drawn and prepared for the court and the 
 adverse party. A few general observations, in addition to what 
 has already been said, may therefore be properly directed to this 
 important branch of the practice. 
 
 As a general rule, all papers drawn or used in a cause, should 
 be properly entitled in the court and cause. Some, however, are 
 entitled in the court only, as declarations ; and others not at all, as 
 writs, and affidavits made before the action is commenced, but pre- 
 
 (1) 22 "WendeU, 534; 2 Cowen, 463; 2 Wendell, 625 ; 4 Hill, 566. 
 
 (2) 3 Hill, 465. (3) 12 "Wendell, 240. 
 
 (4) 4 Hill, S64. (5) See 18 "WendeU, Ghl. 
 
 (6) 2 "Wendell, 627. (7) 4 HUl, 566. 
 
 (8) 4 Hill, 566 ; id. 668. 
 
PREPAKATION OF PAPEES. 255 
 
 liminary thereto. The plaintiff's papers, when required to be en- 
 titled in the cause, should always be entitled " A. B. [name of 
 plaintiff] vs. \yersus\ G. i*." [name of defendant], and the defend- 
 ant's papers with the names reversed, "(7. D. ads. [adsecturri] A. B." 
 Both the christian and surnames of the parties should be written 
 at length, and without abbreviation. When there are several chris- 
 tian names, the second and subsequent ones may be expressed by 
 initial letters in the usual way ; but as the law recognizes only one 
 christian name, the omission of such title will not vitiate.(l) 
 
 The character in which a party sues or is sued, as executor, admin- 
 istrator, assignee, &c., should also be stated, together with the name 
 of the person of whom he is the executor, &c. 
 
 § 777. When there are several plaintiffs or defendants, the 
 names of all of them should regularly be written in the title, but 
 it has been held allowable to give the names of one or two, and 
 then add "an(£ another" or "and others."{2) When several de- 
 fendants appear by different attorneys, it is usual for each attorney 
 to state, in the title of his papers, his client's name as " impleaded 
 with" the other defendants,|thus : '' C. D., impleaded with H. I., ads. 
 A. B"{S) When a motion is made in several causes, the papers 
 should be entitled in all of them. (4) In general, a mere clerical 
 error in the title of a paper, not calculated to mislead, will not 
 vitiate it; although, as we have seen, the rule is more strict in 
 regard to affidavits. When a motion is denied on the ground of 
 the papers being wrongly entitled, it will be without prejudice to 
 a new motion on proper papers.(5) 
 
 § 778. Wherever a, form is prescribed by statute or rule of court, 
 it should be strictly followed ; and, in general, the established pre- 
 cedents should be closely pursued. When it becomes necessary to 
 vary a form to suit a particular case, the part so varied should be 
 drawn as nearly as practicable in a uniform style of phraseology 
 with the rest, and in all cases with as much brevity as is consist- 
 ent with perspicuity and precision. The signature forms a neces- 
 sary part of almost every paper used in the progress of a cause. 
 The court, in general, takes judicial notice of the signatures of its 
 attorneys.(6) Papers intended for filing should always be plainly 
 indorsed with the title of the cause in full, with a designation of 
 
 (1) 2 Cowen, 463; 1 Hill, 310. (2) 1 HiU, 310. 
 
 (3) 20 "Wendell, 680. (4) 1 Howard S. T. E. lO. 
 
 (5) 1 Howard S. T. R. 56. (6) 2 Hill, 361. 
 
256 IKCIDENTAL PROCEEDINGS. 
 
 the paper, and the name of the attorney on record. Notices are also 
 indorsed with a direction to the opposite attorney or party. 
 
 § 779. In preparing the necessary copies of papers for filing, 
 service, &c., care should be taken to have them accurately corres- 
 pond with the draft, and with each other. All abbreviations, dates, 
 &c., should be written out at length, and the whole should be done 
 in a plain, legible hand, with as few erasures or interlineations as pos- 
 sible. Much less attention is generally paid to the mechanical ex- 
 ecution, or engrossment of law papers, than their importance de- 
 mands ; and it not unfrequently occurs that the several sheets on 
 which a pleading or other important paper is written, are so care- 
 lessly attached together as to be easily separated ; and that, instead 
 of &fair engrossed copy, the original draft, with numerous erasures, 
 interlineations, marginal corrections and additions, and with slips 
 or riders attached, is placed on file to constitute a part of the record 
 in the cause. Papers in such condition should never be allowed 
 to go on file. They are excluded by the statute,{V) and should be 
 eoccluded by the clerk when presented for filing. 
 
 § 780. The service of papers being one of the most common 
 and constantly recurring incidents of practice, the rules which reg- 
 ulate the time and manner of service should be carefully attended 
 to, in order to insure regularity in the proceedings. Service is 
 ordinarily made by delivering a copy of the original paper to the 
 person who is entitled or required to receive it ; the original, when 
 not on file, being retained for the purpose of proving the service. 
 The paper served ought always to be an exact copy of the original. 
 A variance from it, however, is not fatal, unless calculated to mis- 
 lead or prejudice the party served. (2) The service must be made 
 either on the attorney in the action, or, in cases where the party 
 prosecutes or defends in person, on the party himself When an 
 attorney has given notice of retainer, all papers in the course of 
 the action must be served upon him or his agent ;(3) and service 
 on the party himself in such case is bad, except when the object ig 
 to bring him into contempt.(4:) 
 
 § 781. Upon the attorney himself, service may be made at any 
 time (except on Sunday), and in any place.(5) And when two 
 
 (1) Comp. L. 1126. (2) 2 HiU, 413. 
 
 (3) Rule 6. (4) 2 Johns. Caa. 121. 
 
 (6) 1 DuDl. Fr. 320 ; 20 J. B. 140. 
 
SEEVICE OP PAPEES. 257 
 
 attorneys are in partnership, the business being don'e in the name 
 of one, service may be on either partner, whether he be in his 
 office, or abroad on bu8iness.(l) When the attorneys for adverse 
 parties do not reside in the same county, service of papers may be 
 made on the attorney's agent, if he have one at the place where the 
 opposite attorney resides, but if there be no such agent, service 
 may be made by mail, post paid. (2) Notices and papers may be 
 served on an attorney during his absence from his office, by lead- 
 ing the same with his clerk in his office, or with a person having 
 charge thereof; or, when no person is to be found in the office, by 
 leaving the same, between six o'clock in the morning and nine in 
 the evening, in some suitable and conspicuous place in such 
 office ;(3) or, if the office be not open so as to admit of service 
 therein, then by leaving the same at the attorney's residence, with 
 some person of suitable age and discretion. (4) Under a similar 
 rule it has been held that service on a clerk while in the office is 
 sufficient, whether the attorney be there or not; (5) and such ser- 
 vice, though made as late as eleven o'clock at night, has been 
 held good. (6) But putting a paper under the door of an office 
 when it is shut and locked, (7) or unlocking the door and leaving 
 the paper in the office, no person being in at the time,(8) is not 
 good service. The service, in such case, must be made at the 
 attorney's residence. (9) 
 
 § 782. Service by mail is required to be made by putting the 
 notice or papers into the post office, with postage pre-paid, directed 
 to the attorney or party at his place of residence, to be ascertained 
 according to the best information and belief of the person making 
 the service ; and in such case the time of service must be increased 
 one day for every twenty miles distance between the place of 
 deposit and the place of address.(lO) 
 
 Notices of trial may be served by mail in the same cases and in 
 like manner as other notices.(ll) In cases of appeal, when the 
 party upon whom notice is sought to be served, has not appeared 
 by attorney or agent, and his place of residence cannot be ascer- 
 tained, notice of trial may be served by posting it in some con- 
 
 (1) 1 Cowen, 4ie. (:) Rule 6. 
 
 (3) 18 Wendell, B78. (4) Rule 7. 
 
 (5) 1 Cowen, 216. (6) 8 J. B. 360; 2Z 'Weniell, 633. 
 
 (7) 18 WendeU 578 ; 2 id. 626. (8 1 Howard S. T. B. 199. 
 
 (9) 2 Wendell, 625 ; and see 2 id. 249 ; 6 Cowen, 63. 
 
 (10) Eule 9. (11) Rule 10. 
 
 17 
 
258 INCIDENTAL PBOCEEDINGS. 
 
 epicuoua place in the clerk's office, at least twenty days before the 
 first day of the term.(l) 
 
 § 783. When a party, other than an attorney, prosecutes or 
 defends in person, the service of papers may be on such party 
 personally, or by mail ;(2) and it has been held that, for every 
 purpose except a contempt, leaving them at his dwelling house 
 4S to be regarded as personal service.(3) But a defendant is not 
 entitled to such notice unless he has appeared and given notice to the 
 plaintiff's attorney of his intention to defend the suit, unless he is 
 returned imprisoned for want of bail.(4) "When a party, who is 
 also an attorney of the court, shall prosecute in person, or, if a 
 defendant, shall give notice that he is an attorney, and wiU defend 
 in person, all notices and papers must be served on him in like 
 manner as when he appears as attorney for another ;(5) but unless 
 such notice be given, he is not entitled to service of notices or • • 
 papers in the ordinary proceedings in the cause.(6) 
 
 When the object is to bring a party into contempt for disobe- 
 dience of any rule or order of the court, the service must be on 
 such party personally, unless otherwise specially ordered by the 
 court.(7) 
 
 § 784. Eegularly, no copy of any pleading should be served 
 until the original is filed in the clerk's office. But when the ser- 
 vice precedes the filing, it will be good if it be on the same day, as 
 the court does not inquire into the parts of a day in such cases.(8) 
 The time of service depends, of course, upon the length of time 
 allowed in different cases, by statute, or the rules of the court, for 
 complying with the exigency of the paper served. In computing 
 the time for this purpose, the day on which any order, notice, 
 pleading or other paper is served, must be excluded ; and the day 
 on which a compliance therewith is required, must be included, 
 except when it falls on a Sunday, in which case the party has the 
 whole of the next day to comply therewith.(9) When the service 
 of a paper was delayed until the day on which a default for the 
 ■want of it might regularly be taken, and the attorney, without 
 knowledge of any service, took the default on that day, it was held 
 to be regular, though in fact taken after the paper was served. (10) 
 
 (I) Rule, 10 ; Comp. L. X084. (2) Rule 8. 
 
 (3) 3 J. R. 439. (4) Rule 8. 
 
 (5) Rule 6. (6) Rule 8 ; 18 Wendell, 528. 
 
 (1) Rule 6. (8) 1 Howard S. T. R. 149. 
 
 (9) Rule 16. (10) 6 HUl, 368; and see 18 Wsnd. S33, 666. 
 
AGEEEMENTS AND STIPULATIONS. 259 
 
 § 785, Due proof of the service of papers is requisite, in order that 
 the party in whose behalf it is made may insure the full benefit of 
 it. This is done by an affidavit, sworn to by the person who made 
 the service, stating particularly when, and upon whom, and how it 
 was made. The paper served, or a copy of it (except it be a plead- 
 ing), ought regularly to be annexed to the affidavit.(l) When the 
 service has been made upon an attorney's clerk, or person belong- 
 ing to the ofiice, the affidavit should show the relation between the 
 person served and the attorney ;(2) and must also state that such 
 clerk or person was, at the time of service, iu the office ;(3) but it 
 need not state his name.(4) When the service was made by leav- 
 ing the paper in the office, the affidavit should show that there was 
 no person therein at the time ;(5) and when service is made by mail 
 the affidavit must show that all the requirements of the rule have 
 been complied with, and that the circumstances authorizing that 
 mode of service existed. To prevent accident, the affidavit of 
 service should be made immediately after the service has been 
 effected. 
 
 § 786. An,admission of service, signed by the attorney or party 
 on whom it is made, obviates the necessity of an affidavit, and is the 
 most common mode of securing evidence of the fact. This is done 
 by a memorandum indorsed on the paper served, thus : " / admit 
 due service of a copy of the within. E. F., Attorney, dec." The court 
 in this, as in some other instances, takes judicial notice of the sig- 
 nature of the attorney.(6) An admission in writing of due service 
 of notice of a motion, precludes the opposite party from objecting 
 the want of full notice ;(7) but a written admission of service of a 
 declaration, relates only to the mode of service, and does not, in 
 itself, amount to a waiver of irregularity as to the time of declar- 
 ing.(8) Service of a paper, or any formal requisite of service, may 
 be waived by the opposite attorney hy parol, and the court will hold 
 it binding, notwithstanding the rule requiring all agreements be- 
 tween the parties or their attorneys to be in writing, a distinction 
 being recognized under that rule between an agreement and a 
 waiver.(9) 
 
 § 787. Agreements and stipulations between the parties or their 
 attorneys must be in writing, it being provided by rule that " no 
 
 (1) 3 Cainea' R. 174 ; 9 J. H. 136. (2) 1 Johns. Cas. 244 ; 1 Cainea' R. 343. 
 
 (3) 2 Johns. Cas. 117 ; 3 Caines' E. 88. (4) 2 id. 101. 
 
 (5) 2 Caines' B. 96 ; 1 How. S. T. R. 97. (6) 2 Hill, 361. 
 
 (1) 12 "Wendell, 227. (8) 2 Hill, 362. 
 (9) 8 Cowen, 119 ; and see 1 Hill, 627. 
 
260 INCIDENTAL PEOCEEDINGS. 
 
 private agreement or consent between the parties or their attorneys 
 in respect to the proceedings in a cause, shall be binding, unless 
 the same shall have been reduced to the form of a rule by consent, 
 and entered, accordingly, in the book of common rules ; or unless 
 evidence thereof shall be in writing, subscribed by the party or his 
 attorney against whom the same shall be alleged."(l) Although a 
 rigid enforcement of this rule may in some cases operate unjustly, 
 yet that its general ejBfect is salutary is unquestionable. But it has 
 generally been so construed as to apply only to the usual and ordi- 
 nary proceedings in a cause, and not to embrace an agreement to 
 discontinue ;(2) nor an agreement to pay the costs of executing a 
 writ of inquiry, upon receiving a stipulation not to perfect judg- 
 ment until the expiration of a specified period, and giving a eogno- 
 vit.{8) And a parol settlement of a suit has been held good to 
 defeat a motion for judgment as in case of non-suit.(4) So, an agree- 
 ment in writing for a settlement, extended by parol, was held con- 
 clusive on a like motion.(5) 
 
 § 788. A change and substitution of attorneys in a cause fre- 
 quently becomes necessary; and after an attorney has appeared 
 for either of the parties, he cannot be changed during the progress 
 of the action, unless by consent, without a rule of court or judge's 
 order for that purpose; (6) and the acts of the second attorney, 
 unless a regular substitution is shown, will be disregarded by the 
 court ;(7) and a motion made by him will be denied with costs.(8) 
 According to the English practice, the application for a change of 
 attorneys may be made either to the court, or to a judge at cham- 
 bers; (9) and in either case it must be founded on an affidavit, set- 
 ting forth the reasons why the change should be made, and the 
 rule or order asked for usually is, that the attorney show cause 
 against it. If no sufficient cause be shown, an absolute order may 
 then be made, directing the change,(10) upon payment of the former 
 attorney's costs to be taxed, unless there be some reason why his 
 costs should not be allowed.(ll) After the order is obtained, it 
 should be served upon the attorney of the opposite party, before 
 the new attorney can safely take any step in the action ;(12} and an 
 entry of the change ought to be made upon the record. 
 
 (1) Rule 12. (2) 6 Cowen, 385. 
 
 (3) 1 Hill, 62T; (4) 1 Howwd, S. T. E. 25. 
 
 (6) Id. 103; and see id, 169, 184; 8 Oowen, 119. 
 
 (8) 1 Arob. Pr. 29 ; Arch. N. Pr. 139, 140. (1) 1 "Wendell, 293. 
 
 (8) 1 Howard S. T. B. 90. (9) 1 Aich. Pr. 29. 
 
 (10) 1 Dunl. Pr. 82. (11) Dougl. ill ; Areh. ». Pr. 140. 
 
 (IJ) 2 Dowl. P. 0. Ut. 
 
Change of attorneys, 261 
 
 § 789. Until an order for the change of attorneys is obtained, 
 le opposite party and his attorney are justified in considering the 
 irmer attorney as being still employed, and are not bound to take 
 Dtice of any proceeding in the name of another attorney.(l) Thus, 
 hen the plaintiff changed his attorney without leave of the court 
 lyment of the debt and costs to the former attorney was held to 
 3 payment to the plaintiff.(2) Or the opposite party may object 
 ) the proceeding; as, when the defendant gave notice of bail by 
 tie attorney, and then, without obtaining leave to change his attor. 
 ey, gave notice of justification by another, the court would not 
 How the bail to justify.(3) But when the defendant's attorney 
 jfused to proceed to the justification, the court allowed the bail to 
 ppear and justify by their own attorney.{4) If the opposite party 
 any act recognizing the new attorney, it will be a waiver of the 
 •regularity. (5) 
 
 § 790. An attorney may also be changed by his own consent, and 
 new attorney substituted in his place ; and in practice this is the 
 lost usual mode of changing attorneys. In order to make the 
 dbstitution, a written consent of the attorney should be obtained 
 ad filed by the new attorney, whereupon a common rule for sub- 
 iitution is entered, and a notice thereof served upon the opposite 
 ttorney ; but unless the rule be entered and notice given, the sub- 
 titution will not be regarded by the court. (6) 
 
 § 791. When an attorney dies, is removed, or suspended, or 
 eases to act as such, the person for whom he was acting must be 
 .otified to appoint another, at least thirty days before any proceed- 
 ag can be had against him in the matter wherein such attorney 
 ras acting for him.(7) This notice must be given, although the 
 leath of the attorney may be known to the client for whom he was 
 cting; nor is a constructive notice su£&cient.(8) If no new attor- 
 ey be appointed in thirty days after notice given, the opposite 
 larty may proceed in the action, of course. If a new attorney be 
 ppointed, notice of such appointment must be given before he can 
 a,ke any steps in the cause.(9) When the attorney of record leaves 
 he state, with the fixed determination to reside elsewhere, his name 
 
 (1) 1 Tidd'a Pr. 103. (2) 1 "VT. Bl. 8. 
 
 (3) 6 Taunt. 532. 
 
 (4) 7 Taunt. 4T ; see also 1 Chitt. R. 291 j 2 id. 93 ; 2 B. & A. 664; 2 D. i R. 259. 
 (6) 2 New. R. 509; 3 DowL P. C. 538. 
 
 (6) 1 Howard S. T. R. 90, 101. (1) Comp. L. HIT. 
 
 (8) 3 Johns. C»3. 300. (9) 1 Taunt. 342. 
 
262 INCIDENTAL PROCEEDINGS. 
 
 can no longer be used in conducting a suit, and in sucli case there 
 should be a substitution.(l) 
 
 § 792. Consent to substitution of attorney. 
 
 [Title of court and cause.] 
 
 I hereby consent that 0. P., Esquire, be substituted in my 
 place as attorney for the defendant in the above entitled cause. 
 Dated, &c. Gr. I., Attorney for Defendant. 
 
 § 793. Bute for substitution of attorney by consent. 
 [Title.] Q._ j_^ Attorney 
 
 On reading and filing a consent in writing, signed by G. I., 
 attorney for the above named defendant, and on motion of 0. P., 
 Ordered, that the said 0. P. be substituted in the place of G. I., as 
 attorney for the said defendant. 
 
 § 794. Notice of substitution oj attorney. 
 
 [Title.] 
 
 Sir: — Please to take notice, that on reading and filing a 
 consent in writing, signed by Gr. I., Esquire, a rule has this day been 
 entered in the book of common rules kept by the clerk of this court, 
 that 0. P. be substituted in the place and stead of the said G. I., 
 as attorney for the above named defendant. Dated, &c. 
 
 Yours, &c., 
 
 0. P., Attorney for Defendant. 
 To E. F., Esquire, Attorney for Plaintiff. 
 
 (1) 6 Hill, 316. 
 
DISCHARGE OF PBIVILEGED PEESON-. 263 
 
 CHAPTER X. 
 
 INCIDENTAL PROCEEDINGS CONSIDERED IN THEIR DETAILS. 
 
 § 795. In considering the details of proceedings incident to 
 actions, it will be most convenient to treat of such as occur on the 
 part of the plaintiff, and of such as occur on the part of the de- 
 fendant, in immediate connection, and then of such as are common 
 to both parties. This mode of arrangement will, in general, show 
 the order in which the proceedings most commonly and regularly 
 occur in practice, and is therefore calculated to guide the mind of 
 the student in the most natural and direct manner, in acquiring a 
 practical understanding of this important department of legal prac- 
 tice. 
 
 § 796. When & privileged person is arrested, he is entitled to be 
 discharged, either absolutely, or upon complying with certain con- 
 ditions ; and his course will be to apply to a judge at chambers, or 
 to move the court in term, for an order that he be discharged.(l) 
 If an attorney, or other oficer of a court, be arrested while so priv- 
 ileged from arrest, he will be at once discharged by the court on 
 affidavit, and on an ex parte motion, of which no notice is necessary 
 to be given.(2) If the motion is granted, the rule will be that the 
 defendant be discharged, either absolutely or on indorsing his ap- 
 pearance on the writ, or on filing common bail, as the court may 
 direct. In case of a privileged witness, the rule will be for a dis- 
 charge absolutely.(3) On delivering to the sheriff a certified copy 
 of the order, and a compliance with its terms, if any, he will dis- 
 charge the defendant. 
 
 § 797. When a witness is arrested while attending any court, 
 officer, commissioner, auditors, or referees, in obedience to a sub- 
 poena, or while attending any judge, officer, or commissioner in 
 obedience to a summons for that purpose, in any case where his 
 attendance may be enforced by attachment or warrant, or while 
 going to or returning from the place of such attendance, the pro- 
 ceedings are of a summary character, and upon its being made to 
 
 (1) 1 Burr. Pr. 105, 392. (2) 5 -Wendell, 90; 18 J. R. 62. 
 
 (3) 3 Cowen, 381 ; 1 -Wendell, 293. 
 
264r INCIDENTAL PB0CEEDING3. 
 
 appear that the person so arrested was subpoenaed in good faith to 
 attend as such witness, the court, or officer before whom he was so 
 subpoenaed or summoned to attend, will forthwith discharge him 
 &om the arrest absolutelj.(l) In case of the arrest of a privileged 
 witness, if the court before which he was subpoenaed or summoned 
 to attend, have adjourned before the arrest, or before application 
 for the discharge is made, any justice of the supreme court, circuit 
 judge, or circuit court commissioner, has the same power to dis- 
 charge such witness,(2) 
 
 § 798. Ordinarily, when the application to be discharged is 
 made to a judge or commissioner, on presenting to such officer an 
 affidavit setting forth the grounds of the application, an order is 
 granted to show cause why the defendant should not be discharged ; 
 but in the case of a privileged witness, the order will be absolute 
 in the first instance. The order to show cause should be served 
 on the plaintiff's attorney, by showing him the original, and de- 
 livering him a copy. At the time designated in such order, if no 
 sufficient cause be shown, an order will be made discharging the 
 defendant, either on the usual conditions or absolutely. 
 
 § 799. Order to show cause why the defendant should not he dis- 
 charged on the ground of privilege. 
 
 [Title.] 
 
 Let the plaintiff show cause before me at my chambers in 
 
 , on the — day of , at ten o'clock in the forenoon, why the 
 
 defendant should not be discharged from arrest on the capias ad 
 respondendum issued in this cause. Dated, &c. 
 
 J. T., Circuit Judge. 
 
 § 800. If the sheriff fail to return the writ by the return day, 
 in order to compel such return, a rule may be entered in the book 
 of common rules, requiring him to return the same within twenty 
 days after service of notice thereof; and if the writ be not returned 
 within the time specified in the notice, on filing an affidavit of ser- 
 vice of notice of such rule, and of the delivery of the writ to be served, 
 his default may be entered, and an attachment issued of course.(3) 
 All the proceedings prior to issuing the attachment must be en- 
 titled in the original suit,(4) and they must be strictly regular.(o) 
 Thus, if there be no affidavit of delivery of the writ, the attachment 
 
 (1) Comp. L. nil. (2) Comp. L. 1111 ; Laws of 1858, p. 8. 
 
 1.^) Rale 96; Comp. L. 1130. (4) 9 J. E. 160; 5 id. 235 ; 12 id. 460- 
 
 (6) 6 nil!, ne. 
 
COMPELLINa EETURN OP PROCESS. 265 
 
 will be set aside as irregular, and the court -will not allow such an 
 affidavit to be filed nunc pro tunc.{l) 
 
 § 801. The attachment is, in form, a criminal process ;(2) and if 
 issued against the present sheriff, should be directed to the coroner ! 
 if against the late sheriff, to the present sheri£f,(3) and should be 
 made returnable on the first day of the next term of the court. The 
 attachment should be indorsed, not with the title of the original suit, 
 but iu the name of the people, thus : "TAe People of the Slate o/IIich- 
 igan ex rel. A. B. [the plaintiff in the suit] vs. J. K., sheriff [or Hate 
 
 sheriff''] of the county of ;"(4:) and all the subsequent pro" 
 
 ceedings upon the attachment must be entitled in the same way. (5) 
 After the writ is made out and sealed, and before delivering it for 
 service, a judge's order may be obtained, upon a proper af&davit, 
 directing the amount in which the sheriff shall be held to bail for 
 his appearance.(6) Without such an order he will be discharged 
 from the arrest upon executing a bond in the penalty of one hun- 
 dred dollars, with sufficient sureties for his appearance. (7) Upon 
 the attachment being left with the coroner, he will thereupon arrest 
 the sheriff, and detain him in custody until the requisite bail be 
 given. 
 
 § 802. The sheriff, or other of&cer to whom the attachment is 
 delivered, is required to return the same by the return day speci* 
 fied therein, without any previous rule or order for that purpose ; 
 and in case of his default, an attachment may be issued against him 
 of course, upon being allowed by the judge or commissioner, upon 
 proof of such default ; and in such allowance the cause of issuing 
 the same must be stated, and that the defendant is not to be dis- 
 charged upon bail, or in any other manner but by order of the 
 court.(8) Such attachment, if against the coroner, must be directed 
 to one or more persons, termed eh'zors, who will be appointed by 
 the court exparte.{9) The most convenient course, in such case, is 
 to move the court, in term time, for the attachment, and also for 
 the appointment of an elizor to serve it.(lO) On this attachment, 
 the defendant must be arrested and detained in custody, and brought 
 personally into court. If a new sheriff has come into office, the 
 attachment will be directed to him. 
 
 (I) 6 Hill, 236. (2) 6 Cowen, 41. 
 
 (3) 1 SeUon's Pr. 200, 201. (4) 9 J. R. 160. 
 
 (5) Id. (6) Comp. L. 1130, § 11. 
 
 (7) Comp. L. 1131, § 15. (8) Comp. L. 1131, § 17. 
 
 (9) 1 Cowen, 32. (10) 22 "Wendell, 102. 
 
266 INCIDENTAL PEOCEEDINGS. 
 
 § 803. On the return day of the attachment against the sheriff, 
 if it be returned served, he is called in court, and if he fail to ap- 
 pear, his default may be entered ;(1) and the court will then, upon 
 the application of the relator, either award another attachment, or 
 order the bond taken on the arrest to be prosecuted, or both.(2) 
 Such order operates as an assignment of the bond, and authorizes 
 the aggrieved party to maintain an action thereon in his own name, 
 as the assignee of the officer to whom it was given, in the same 
 manner as in other actions on bonds with condition to perform cove- 
 nants other than the payment of money .(3) 
 
 § 804. When the defendant in the attachment has been arrest- 
 ed and brought into court, or has appeared therein, the court will 
 cause interrogatories to be filed, specifying the facts and circum. 
 stances alleged against the defendant, and requiring his answer 
 thereto ; to which he must make written answers, on oath, within 
 such reasonable time as the court may allow for that purpose. The 
 court may receive any affidavits or other proofs contradictory of 
 the answers of the defendant, or in confirmation thereof, and will 
 thereupon determine whether the defendant has been guilty of the 
 misconduct alleged, and if so, will proceed to fine or imprison himi 
 or both, as the case may require.(4) If an actual loss or injury is 
 produced to any party by the misconduct alleged, the court will 
 order a sufficient sum to be paid by the defendant to such party, to 
 indemnify him, and to satisfy his costs and expenses, instead of im- 
 posing a fine upon him, in which case the payment and acceptance 
 of such sum is an absolute bar to any action by the aggrieved party 
 to recover damages for such injury or loss.(5) The return of a de- 
 claration delivered to a sheriff to be served, may be enforced by 
 rule and attachment, in the same manner as the return of a ca- 
 
 23105.(6) 
 
 § 805. Rule that sheriff return process. 
 A. B. 
 
 D.I 
 
 (^'^p j E. F., Attorney. 
 
 The sheriff of the county of , having failed to return 
 
 the writ of capias ad respondendum [or ^^ summons" " writ of re- 
 plevin" ^^ fieri facias" or as the case may be], in this cause to him 
 directed and delivered, and the return day therein specified having 
 passed, on motion of E. P., attorney for the above named plaintiff) 
 
 (1) See 11 "WendeU, 446. (2) Comp. L. 1133, § 21. (S) Id. § 28. 
 
 (4) Comp. L. 1132. (6) Id. § 21. (6) Comp. L. 113T. 
 
COMPELLING EETUBN OF PEOCESS. 267 
 
 Ordered, that the said sheriff return the said writ within twenty 
 days after service of notice of this rule, or in default thereof, that 
 an attachment issue against him to compel such return.(l) 
 
 § 806. Notice of rule that sheriff return writ. 
 [Title of the court and cause.] 
 
 Sir : — Please to take notice, that a rule has this day been 
 entered in the book of common rules kept by the clerk of this 
 court, requiring you to return the writ of capias ad respondendum 
 [or, as the process may be,] in this cause to you directed and de- 
 livered, within twenty days after service of notice of such rule, or, 
 in default thereof, that an attachment issue against you to compel 
 such return. Dated, &c. Yours, &c., 
 
 E. F., Attorney for Plaintiff. 
 To J. K., Esquire, Sheriff of the county of . 
 
 § 807. Affidavit of delivery of writ, and notice of rule to return. 
 [Title of court and cause.] 
 
 County of , ss : B. F., attorney for the plaintiff in this 
 
 cause, [or " B. S., of , student at law,"] being duly sworn, 
 
 deposes and says, that on the — day of last [or "instant"], he 
 
 delivered to J. K., Esquire, sheriff of the county of , a writ 
 
 oi capias ad respondendum [or, " fieri facias," &c.,] issued in this 
 cause, directed to the said sheriff, and returnable on the — day of 
 
 , by leaving the same with A. L., an under sheriff of the said 
 
 county, in the oflce of said sheriff, during the usual business hours, 
 [or otherwise, according to the mode of service.] And this depo- 
 nent further says, that on the ■ — day of he served the said 
 
 sheriff with a notice of rule to return the said writ, of which the 
 within [or " annexed "] is a true copy, by delivering the same to the 
 said sheriff personally, [or " by delivering the same, during the usual 
 business hours, to IT. S., one of the deputies of the said sheriff, in the 
 office of the said sheriff," or otherwise, according to the modeof ser 
 vice.] And further saith not. B. F. 
 
 Sworn, &c. 
 
 § 808. Rule for sheriff's default in not returning writ. 
 
 ^- ^- 1 [Bate.] 
 ^^•■^ f E. F., Attorney. 
 
 On reading and filing an affidavit of the delivering of the 
 
 writ of , issued in this cause to J. K., Esquire, sheriff of the 
 
 county of and also of due service of notice of the rule 
 
 heretofore entered in this cause, requiring the said sheriff to return 
 said writ within twenty days after service of notice of such rule, 
 
 (1) Eule 96. 
 
268 INCIDENTAL PROCEEDINGS. 
 
 and more than twenty days having elapsed since the service of 
 such notice, and the said writ not having been returned, on mo- 
 tion of E. F., attorney for the said plaintiff, Ordered, that the de- 
 fault of the said sheriff in not returning said writ be, and it is 
 hereby entered. 
 
 § 809. Atlachment against sheriff for not returning writ. 
 In the name of the People of the State of Michigan. To the 
 
 COBONEE [or " coroners"] OF THE county of , 
 
 [seal.] Greeting : We command you that you attach J. K., 
 
 Esquire, sheriff of oar said county of , so that 
 
 you may have him before the circuit court for the county of , 
 
 at the court house in the village of , in said county, on the 
 
 — Tuesday of next, to answer to the said court for certain 
 
 trespasses and contempts done and committed by him in the said 
 court, as is alleged ; and have you then there this writ. 
 
 Witness, &c. 
 
 [^Tndorsed.'] 
 
 The Circuit Court for the county of . The People of the 
 
 State of Michigan ex rel. A. B. vs. J. K., sheriff of the county of 
 . Attachment returnable — Tuesday of . B. F., Attor- 
 ney. Issued for not returning a writ of between A. B., 
 
 plaintiff, and C. D., defendant. Let the defendant be held to bail 
 
 in the sum of dollars. Dated, &c. 
 
 B . "W., Circuit Judge. 
 
 § 810. Affidavit of coroner's default in not returning attachment 
 against sheriff. 
 
 The People of the State op Michigan, 
 
 ex rel. A. B., 
 
 vs. 
 
 J. K., Sheriff of the county of . 
 
 County of , ss : E. F., of , attorney at law, 
 
 being duly sworn, says, that on the — day of , he personally 
 
 delivered to M. R., coroner of the county of , a certain 
 
 attachment issued out of this court against J. K., Esquire, sheriff 
 
 of the county of , for an alleged contempt in not returning 
 
 a certain writ of issued out of the said court, and to him 
 
 directed and delivered, in favor of A. B. vs. C. D., [or, "innot re- 
 turning a certain declaration filed in the said court hy A. B. against 
 C. Z>., a copy whereof was to him delivered for service"] and which 
 
 attachment was made returnable on the — day of . And this 
 
 deponent further says, that the said coroner has not returned the 
 said attachment according to the exigency thereof, but therein has 
 made default. E. P. 
 
 Subscribed and sworn, &c. 
 
COMPELLESTG RETURN OF PROCESS. 269 
 
 § 811. Attachment against coroner fornot returning attachment. 
 
 In the name of the People of the State of AIichigan. To 
 J. N., appointed elizor by our circuit court for 
 
 [seal.] the county of , to execute this writ, 
 
 Greeting: We command you to attacli M. E., Es- 
 quire, coroner [or "one of the coro7iers"] of the county of , 
 
 so that you ma}' have him before the circuit court, &c., [as in § 809.] 
 
 [Indorsed.'] 
 
 The Circiiit Court for tlie county of . The People of the 
 
 State of Michigan ex rel. A. B. vs. M. E., coroner of the county of 
 
 . Attachment returnable . E. F., Attorney. Issued for 
 
 not returning an attachment against J. K., Esquire, sheriff of the 
 county of . 
 
 Allowance of the above attachment. 
 
 Due proof having been made before me, of the default of M. E., 
 Esquire, coroner of the county of , in not returning a cer- 
 tain attachment directed and delivered to him, commanding him 
 
 to attach J. K., Esquire, sheriff of the county of , for an 
 
 alleged contempt in not returning a certain writ of , hereto- 
 fore issued to the said sheriff, between A, B., plaintiff, and C. D., 
 defendant, [or whatever the cause of contempt is,] I do therefore 
 allow the within attachment to issue, and the cause of issuing the 
 same is the default of the said coroner in not making return to the 
 said attachment ; and the said M. E. is not to be dischai-ged on 
 bail, or in any other manner, but by order of the court. Dated, &c. 
 
 S. L., Circuit Judge. 
 
 § 812. Special rule for attachment against coroner for not returning 
 attachment against sheriff. 
 
 The People of the State of Michigan, 
 
 ex rel. A. B., 
 
 vs. 
 
 J. K., Sheriff of the county of . 
 
 On reading and filing an affidavit of E. F., attorney for the 
 
 relator in this cause, showing the delivery, on the — day of , 
 
 to M. E., coroner of the county of , of an attachment in the 
 
 above cause, returnable on the — day of , and also showing 
 
 that the said coroner has not returned the said attachment accord- 
 ing to the exigency thereof, on motion of I. J., of counsel for the 
 relator. Ordered, that the default of the said coroner as aforesaid 
 be and the same is hereby entered ; and on like motion it is further 
 ordered, that an attachment, not bailable, issue against, the said 
 
 coroner for said default, and that J. N., of , in said county, 
 
 be and he is hereby appointed an elizor to execute the same. 
 
270 INCIDENTAL PEOCEEDINGS, 
 
 § 813. Special rule on appearance of coroner on attachment. 
 The People of the State or Michigan, 
 ex rel. A. B., 
 vs. 
 
 M. R, COBONEE OF THE COUNTY OF . 
 
 J. W., an elizor appointed to execute the writ of attachment 
 in this cause, having returned the said writ to him issued, that he 
 has taken the said defendant by virtue thereof; and the said de- 
 fendant having been called upon said attachment, and answered 
 thereto, on motion of I. J., of counsel for the relator, Ordered, that 
 the appearance of the said defendant be, and the same is hereby 
 entered ; and on like motion it is further ordered that the relator 
 have leave to file interrogatories, and that the defendant personally 
 appear in open court before the judge thereof, at the court house 
 
 in , in the county of , on the — day of next, at 
 
 the opening of the said court, and answer the said interrogatories 
 on oath, and abide and perform the order and direction of the court 
 thereupon ; or that a writ of attachment, not bailable, as well for 
 the contempt alleged in the above cause, as for not appearing and 
 answering the said interrogatories, shall be issued against the said 
 defendant by virtue of this rule. 
 
 § 814. Special rule on default of the sheriff to appear on return of 
 attachment. 
 ITitle.] 
 
 The defendant in this cause having been duly called upon 
 the attachment therein issued against him, and having faUed to 
 appear and answer thereto, on motion of I. J., of counsel for the 
 relator. Ordered, that the default of the said defendant in not ap- 
 pearing be, and the same is hereby entered ; and that the bond 
 taken on the arrest of the said defendant, and returnable with the 
 said attachment, be prosecuted, and that it be delivered to the re- 
 lator, who is hereby authorized to prosecute the same, [or, " that 
 an alias attachment be issued against the said defendant."] 
 
 % 815. Special rule on appearance of sheriff on attachment. 
 ITitle.] 
 
 The sheriff of the county of having been this day 
 
 called upon the attachment heretofore issued against him in this 
 cause, and answered thereto, on motion of E. F., attorney for the 
 relator. Ordered, that the appearance of the said sheriff be and it 
 is hereby entered. And interrogatories having been duly filed by 
 the attorney for the relator in this cause, on like motion, ordered, 
 that the said sheriff answer the said interrogatories, on oath, within 
 days, pursuant to the rules and practice of this court. 
 
 § 816. Interrogatories on attachment against sheriff for not return- 
 ing capias. 
 
 The Circuit Court for the county of : 
 
 Interrogatories to be administered to J. K., Esquire, 
 
COMPELLING EETUEN OF PEOOESS. 271 
 
 slieriff of the county of , touching a contempt alleged 
 
 against him, in not returning a certain writ of capias ad responden- 
 dum issued out of this court in favor of A. B., plaintifi", against 
 C. D., defendant : 
 
 First interrogatory. Did you or not, at any and what time, re- 
 ceive for service, a certain writ of capias ad respondendum, to you 
 
 directed as sheriff of the county of , between A. B., plaintiff 
 
 and C. D., defendant, tested the — day of in the year , 
 
 and returnable at the court house in the village of , in the 
 
 county of , on the — day of then next ? Declare fully. 
 
 Second interrogatory. Did you or not serve the said writ of capias 
 ad respondendum ? If yea, in what manner, and at what time in 
 particular ? If not, why did you not serve the same ? Declare. 
 
 Third interrogatory. Did you or not receive from E. F., attorney 
 for the plaintiff in the suit of A. B. against C. D., a notice in writing, 
 that a rule had been duly entered in the book of common rules 
 kept by the clerk of this court, requiring you to return the said 
 writ within twenty days after service of notice of such rule ? If yea, 
 what was the purport of that notice, and when did you receive it ? 
 
 Fourth interrogatory. Have you returned the said writ of capias 
 ad respondendum ? If yea, when, where, and how, in particular ? 
 If nay, why have you not returned the same ? Declare fully and 
 particularly. Dated, &c. E. F., Attorney for Plaintiff, 
 
 § 817. Rule for discharging attachment against sheriff. 
 [Title.] 
 
 On reading and filing the answer of the respondent to the inter- 
 rogatories filed against him in this cause, and on motion of Mr. A. 
 C B., of counsel for the respondent. Ordered, that the attachment 
 in this matter be, and the same is hereby, discharged. 
 
 § 818. Rule imposing fine on sheriff. 
 [Title.] 
 
 The respondent not having answered the interrogatories filed 
 and served in this cause, on motion of I. T., of counsel for the 
 relator, the said J. K. is adjudged guilty of a contempt of this 
 court, and it is ordered that he be, and hereby is adjudged to pay 
 
 a fine of dollars, and dollars costs of this motion, and 
 
 that he stand committed to the custody of the coroner of until 
 
 the same be paid. 
 
 § 819. Rule by consent, imposing fine on sheriff. 
 [Title.] 
 
 On filing consent in this cause, signed by G. H., attorney for the 
 respondent, and on motioa of I. T., of counsel for the relator, 
 Ordered, that the respondent J. K. be fined the amount indorsed on 
 the execution set forth in the interrogatories filed in this cause, 
 
 with interest thereon, being dollars, with dollars costs, and 
 
 that he stand committed to the custody of the coroner of 
 
 until the same be paid. 
 
272 INCIDENTAL PHOCEEDINGS. 
 
 § 820. When the suit has been commenced by capias, and the 
 •writ duly returned, if a bond has been given by the defendant, and 
 he fail to appear in the action by putting in, and, if required, per- 
 fecting special bail according to the rules and practice of the court 
 the plaintiff may either take an assignment of the bail bond from 
 the officer to whom it was given, and prosecute a suit thei'con in 
 his own name, or he may, at his election, proceed against the 
 officer to compel an appearance.(l) If the bail to the sheriff be 
 sufficient, it is usual for the plaintiff to take an assignment of the 
 bond and proceed upon it, instead of proceeding against the sheriff. 
 After the bond has become forfeited, the assignment is made by 
 the officer as a matter of course, upon the application of the plain- 
 tiff; and if he refuse to assign it, he is liable to an action on the 
 case. (2) 
 
 § 821. The plaintiff cannot, however, take an assignment of the 
 bond after service of the order of allowance of bail ;(3) nor after 
 bail has been put in ; although the bail piece be not filed until after 
 the twenty days specified in the condition of the bond; (4) unless 
 the bail has been regularly excepted to, and the time for justifying 
 has elapsed ;(5) nor if the same bail who signed the bond have 
 become special bail, and have been excepted to ;(6) nor can he insist 
 on it after ruling the sheriff to put in special bail ;(7) or, at least, 
 after suing out an attachment against the sheriff for not complying 
 with the rule ;(8) yet in such a case the plaintiff may take an as- 
 signment of the bond, if the officer choose to assign it.(9) The 
 assignment is made by an indorsement on the bond, under seal, 
 executed by the sheriff, or under sheriff in the sheriff's name.(lO) 
 But the assignment will not be invalid for want of a seal.(ll) 
 
 § 822. The action on the bail bond may be commenced either 
 by summons or by declaration ; and the papers in such suit should 
 
 be entitled " A. B., assignee of J. K., sheriff of the county of ^ 
 
 vs. C. D., W. N. & E. S." The proceedings in the suit on the 
 bail bond may be set aside, if irregular, or stayed on terms, in 
 order that a trial may be had in the original action ; and when the 
 
 (1) Comp. L. 1142. (2) 7 T. R. 122; 1 Burr. Pr. 361. 
 
 (3) 1 Bsp. B. 81 ; 
 
 (4) 1 Howard S. T. E. 154 ; 1 Mees. t W. 61. 
 
 (5) 8 J. K. 358. (6) 5 Cowen, 28'7. 
 (7) a Saund. 606, note ; 8 Ohio R. 26. (8) 1 Tidd's Pr. 297. 
 
 (9) 15 Bast, 215; and aeo Sewell's Law of Slieriff, 178, 179. 
 
 (10) Stra. 60; t Campb. 36. (11) Comp. L. 1223. 
 
PROCEEDINGS ON BAIL BOND. 273 
 
 plaintiff has not lost a trial in the original action by reason of the 
 default in not filing and perfecting special bail, the court may stay 
 proceedings on the bail bond, upon the putting in and perfecting 
 special bail, paying the costs of assigning the bail bond, and of the 
 proceedings thereon, receiving a declaration in the action, and 
 pleading issuably to the merits, so that the original cause may be 
 tried at the same time, if the plaintiff shall so elect, and if the 
 plaintiff has lost a trial by such default, judgment will be entered 
 on the bail bond as security.(l) 
 
 § 823. All the parties who executed the bond should be sued 
 jointly, if they can be found. If, however, this cannot be done, the 
 actions should be brought against them severally.(2) If separate 
 actions be brought without sufficient reason, and the bail move to 
 stay the proceedings on the bail bond, on payment of the debt, the- 
 court will oblige them to pay only the costs of one action, (3) pro-- 
 vidcd the application be made in a reasonable time ;(4) at all events 
 before verdict.(5) Formerly it was held that while the proceed- 
 ings in the bail bond suit were pending, those in the original suit 
 were stayed, and that any proceeding in that suit was a waiver oi 
 the proceedings on the bail bond.(6) But it is now provided' by 
 rule, that when a defendant has been taken upon a capias, and has 
 given satisfactory appearance bail, the plaintiff may proceed to. 
 final judgment, which proceeding shall not release the appearajice 
 bail.(7) 
 
 § 824. If no defence be made to the action, the defendant's 
 default may be entered, and a rule for final judgment for the 
 penalty. After such judgment is entered, the defendant being now 
 regarded as in court, the plaintiff should suspend proceedings- in 
 the bail bond suit, and proceed to have his damages assessed in the 
 original action. For this purpose he should file a declaration in 
 the original action, and he may then have his damages assessed 
 therein by the clerk, by the court, or by a jury, as in other cases, 
 in the same manner as if interlocutory judgment had been entered 
 therein.(8) If, upon trial, the court or jury find in favor of the 
 plaintiff, the judgment thereon is for the amount of the penalty, 
 and in either case, the damages assessed in the original action, with 
 interest, the costs in the original suit, and in the suit on the bond, 
 
 (1) Comp. L. 1142. (2) 1 Arch. Pr. 95. 
 
 (3) 2 B. 4; A. 598. (4) 2 Dowl. P. C. 44. 
 
 (5) SeweU'sLaw of Sheriff, 180. (6) 1 Games' R. 65 ; 1 Arch. Pr. 94. 
 
 (7) Eule 20. (8) Comp. L. 1205. 
 
 18 
 
274 INCIDENTAL PKOCEEDINGS. 
 
 are to be indorsed on tlie execution issued upon the judgment, as 
 the amount to be collected, with sheriff's fees, and no more can be 
 collected on such execution.(l) 
 
 § 825. If proceedings are had against the sheriff to compel 
 an appearance, and he put in special bail for his own indem- 
 nity, the putting in of such bail is not deemed a performance 
 of the condition of the bond, but the sheriff may, notwith- 
 standing, prosecute such bond, and recover the amount of all 
 damages he may have sustained by the neglect of the defendant 
 to put in bail.(2) He cannot, however, prosecute the bond until 
 some proceedings have been taken against him by the plaintiff to 
 ■compel the putting in of special bail. And when such proceed- 
 ings were taken, and an attachment awarded against the sheriff for 
 not putting in bail, it was held that he might prosecute the bail bond, 
 even though special bail in the original action was put in before he 
 sued, (the defendant being in default for not appearing according 
 to the conditions of the bond,) and that, being liable for the costs 
 of the attachment, he was entitled to recover nominal damages at 
 least against the bail, although he had not actually paid the costs, 
 nor put in bail, nor been subjected to any farther liability.(3) The 
 proceedings in this action are substantially the same as where the 
 action is brought by the assignee of the sheriff. 
 
 § 826. If the plaintiff elect to proceed against the officer to 
 compel an appearance, upon filing an affidavit that special bail has 
 not been put in and perfected, and that the writ has been returned 
 served, a rule may be entered with the clerk of the court in vaca- 
 tion or in term requiring the sheriff, or other officer making the 
 arrest, to put in and perfect special bail within twenty days after 
 service of notice of such rule ; and if such bail be not put in and 
 perfected within the time specified in such rule, upon filing an 
 affidavit of the service of notice thereof, a rule may be entered with 
 such clerk, in vacation or in term, that an attachment issue against 
 such sheriff or other officer, and such attachment may be issued 
 accordingly. Upon the officer being brought into court on such 
 attachment, the court may, by summary proceedings, ascertain the 
 amount due the plaintiff in the action, in the same manner as if 
 interlocutory judgment had been rendered against the defendant, 
 and may render a judgment against such officer for the amount so 
 ascertained to be due, with the costs of the suit and proceedings.(4) 
 
 (1) Comp. L. 1205. (2) Comp. L. 1143. 
 
 (3) 1 Hill, 69. (4) Comp. L. 1142, 1143. 
 
PROCEEDINGS ON BAIL BOND. 275 
 
 § 827. The proceedings in suing out and serving the attach- 
 ment, &c., are similar to. those where an attachment issues for not 
 returning a capias. Care must be taken that the proceedings 
 against the sheriff are strictly regular, otherwise the court will set 
 them aside.(l) When the sheriff is brought into court, interroga- 
 tories may be filed against him, if necessary, and he must answer 
 them in the usual manner.(2) When it appeared that bail had 
 been put in in due season, but the bail piece was lost in its trans- 
 mission by mail to the clerk's of&ce, ,the court discharged the sheriff 
 on terms of putting in and perfecting good bail, and paying the 
 costs of the proceedings.(3) 
 
 § 828. If the court determine that the amount ascertained to 
 be due the plaintiff ought to be paid by the officer, and if such 
 officer shall confess a judgment to the plaintiff for such amount, 
 with costs of suit and the proceedings, the court will thereupon 
 stay all other proceedings against him, until he shall have had a 
 reasonable time to obtain judgment on the bond taken on the arrest 
 of the defendant, and to collect the amount so ascertained to be due 
 to the plaintiff.(4) If the officer do not, after a reasonable time, satisfy 
 the plaintiff in the action the amount due him, with costs and in- 
 terest, the court will award execution on the judgment against such 
 officer ; and if such execution be returned unsatisfied, in part or in 
 whole, the same proceedings may be had on the official bond of 
 such officer, to collect the deficiency, as in other cases of delin- 
 quency.(5) 
 
 § 829. If the plaintiff choose to proceed to judgement in the origi- 
 nal action, after satisfactory appearance bail has been given, he 
 causes a rule to be entered in the common rule book for the de- 
 fendant's appearance in the cause, and then proceeds as if special 
 bail had been put in. If the defendant was sued by a fictitious 
 name, the rule may be entered in such form as to show the real 
 name. When a plaintiff inadvertently proceeds to judgment by 
 default, without causing the appearance of the , defendant to be 
 entered, the court will allow it to be done on payment of costs, and 
 if the omission be occasioned by the defendant's default, then with- 
 out costs ;(6) and when the plaintiff's attorney, by mistake, entered 
 an appearance for the defendant by a wrong name, the court allowed 
 the appearance to be amended, he being correctly named in the writ.(7) 
 
 (1) 1 Arch. Pr. 96; 6 HUl, 636. (2) 2 'WendeU, 253. (3) Id. 
 
 (4) Oomp. L. 1143. , (6) Id. (6) 6 Cow, 699. 
 
 (7) 3 Wiia. 49. 
 
276 IKCIDENTAL PROCEEDINGS. 
 
 § 830. If the defendant apply for a discharge, after being taken on 
 a capias ad respondendum, or a mitigation of the bail, he must cause 
 an af&davit of the facts tending to show the existence of no cause 
 of action, or why the bail should be mitigated, to be prepared, and 
 should also have an order to show cause drawn up, and get the 
 order allowed by the judge or circuit court commissioner. If the 
 defendant has been held to bail without an order, he may apply 
 either to the judge or commissioner, but if he have been held to 
 bail pursuant to an order for that purpose, he must apply either to 
 the same officer who made the order, or to the court.(l) A copy 
 of the order, and of the affidavit on which it was based, must be 
 served on the plaintiff's attorney in the usual manner, and an affi- 
 davit of service should then be made. The order must be obtained 
 before the defendant has put in special bail.(2) 
 
 § 831. The plaintiff may show cause by producing an affidavit 
 of the necessary facts, which may be made by one of several plain- 
 tiffs, or by any other person who can swear positively to the cause 
 of action. It must be positive as to the cause of action, and not 
 state it argumentatively, or by way of reference, and must show a 
 sufficient cause of action for which the defendant can be held to 
 bail, and must state it explicitly and particularly. (3) If the cause 
 shown appear sufficient, the judge will make an order vacating the 
 former one, the effect of which is to leave the defendant liable to 
 put in special bail. It is in the discretion of the judge or com- 
 missioner to admit or refuse counter affidavits on the part of the 
 defendant, according to circumstances.(4) As a general rule they 
 are not allowed where the plaintiff swears positively to the cause 
 of action ;(5) but where the defendant's affidavit goes to show that 
 he should not have been arrested at all, or to confess and avoid the 
 cause of action, as when it shows a discharge under an insolvent 
 aot,(6) it will be received. 
 
 § 882. If the plaintiff fail to appear, or if he appear and fail to 
 diow cause of action pursuant to the order, and the application has 
 been made hefore a return of the writ, the judge or commissioner, 
 on proof of service of the first order, will grant an order that the 
 defendant be discharged from arrest on indorsing his appearance 
 on the writ. A copy of this order should be delivered to the plain- 
 
 (X) J HiU, 465. (2) 1 John. Caa. 393. 
 
 (3) See 6 Hill, 228. (4) 2 J. E. 100; 6 "Wendell, 624. 
 
 (6) M. (6) 6 "WendeU, 624. 
 
MITIGATING BAIL. 277 
 
 tiff's attorney, and the original delivered to the sheriff, who will 
 discharge the defendant on his indorsing his appearance on the 
 writ. If the application was not made until after the return of the 
 writ, the order granted on failure of the plaintiff to appear and 
 show cause, will be, that the defendant be discharged on filing 
 common bail. A copy of this order should be served on the plain- 
 tiff's attorney, and a common bail piece filed. If the defendant 
 be in custody, on obtaining a certificate from the clerk that com- 
 mon bail has been filed, and serving it on the sheriff, with the 
 original order, he will discharge the defendant from custody .(1) 
 
 § 833. If there be not ground for discharging the defendant 
 absolutely, the judge or commissioner may make an order for the 
 mitigation or reduction of the bail. This order must be served as 
 in the preceding cases. When the defendant is in custody, and 
 the bail is mitigated, they must justify, without waiting for an ex- 
 ception, before the defendant will be entitled to his discharge. If 
 the defendant prefer the mode of obtaining his discharge by super- 
 sedeas, the order must be framed so as to require the plaintiff to 
 show cause accordingly, and in such case, on failure of the plain- 
 tiff to appear or show cause, the judge, on proof of service of the 
 order, will grant his allowance of the supersedeas. Serve a copy of 
 this order on the plaintiff's attorney, and sue out the supersedeas 
 Serve the writ on the sheriff, who must comply with it immediately. 
 
 § 834. When bail is mitigated, it is generally deemed advisable 
 to proceed by supersedeas. After obtaining the order for mitigation, 
 a bail piece should be filed in the ordinary manner, and the order 
 may then be served on the plaintiff's attorney, together with a 
 notice of bail, of justification, and of application fora supersedeas^ 
 which may all be combined in one notice.(2) After justification 
 of the bail, and allowance of the writ, the defendant may proceed 
 to sue out his writ of supersedeas. 
 
 § 835. Order to show cause of action. 
 [Title.] 
 
 Let the plaintiff show cause of action in this cause before 
 
 me at my chambers in , on the — day of next, at ten 
 
 o'clock in the forenoon ; and why, if cause be shown, the sum for 
 which the defendant is required to be held to bail should not be 
 mitigated. Dated, &c. S. M. Gr., Circuit Judge. 
 
 (1) See 1 Burr. Pr. 398. (2) I DunL Pr. 167. 
 
278 INCIDENTAL PEOCEEDINGS. 
 
 § 836. Order to discharge a defendant on indorsing an appearance. 
 {Title.] 
 
 Let the defendant be discharged from arrest on the capias 
 ad respondendum in this cause, on indorsing his appearance thereon. 
 [Dated and signed as above.] 
 
 § 837. Order to discharge the defendant on common hail. 
 
 [Title.] 
 
 Let the defendant be discharged out of the custody of the 
 
 sheriff of , on the capias ad respondendum issued in this cause, 
 
 on filing common bail therein. Dated, &c., [as above.] 
 
 § 838. Order for mitigation of hail. 
 \Tiile.] 
 
 Let the bail taken [or " to he taken'^] in this cause by the 
 sheriff of the county of , on the writ of capias ad respon- 
 dendum issued therein, be mitigated and reduced to dollars. 
 
 Dated, &c., [as above.] 
 
 § 839. Order to show cause of action, and why a supersedeas 
 should not issue, &c. 
 
 [Title.] 
 
 Let the plaintiff show cause of action in this cause before me 
 
 at my chambers in , on the — day of — '—, at ten o'clock in 
 
 the forenoon ; and why, if none be shown, a supersedeas should not 
 issue to discharge the defendant out of custody ; and why, if any 
 be shown, the sum for which the defendant is held to bail should 
 not be mitigated. Dated, &c. 
 
 § 840. Order for supersedeas, 
 [mie.] 
 
 On the defendant's filing common bail, [or " indorsing his 
 appearance," as the case may be,] let a supersedeas issue in this cause. 
 
 § 841. Common hail piece. 
 
 The Cikcuit Court for the county of . 
 
 County of , ss : C. D. is delivered to bail, on the 
 
 taking of his body, to John Doe and Eichard Roe, of , mer- 
 chants, at the suit of A. B., in a plea of trespass on the case, [or, 
 as the action is.] Q. H., Attorney for Defendant. 
 
 § 842. Notice of comraon hail. 
 [Title.] 
 
 Sir : — Please to take notice that John Doe and Richard Roe, 
 of , merchants, have become common bail for the defendant 
 
EXCEPTION TO BAIL. 279 
 
 in this cause, and that the bail piece is filed in the office of the clerk 
 of this court. Dated, &c. G. H., Defendant's Attorney. 
 
 To E. P., Esquire, Plaintiff's Attorney. 
 
 § 843. Supersedeas to discharge defendant from custody on a capias 
 ad respondendum. 
 
 In the name of the People of the State of Michigan. To 
 
 the sheriff of the county of . 
 
 [l. S.] Whereas, by our writ we lately commanded you that 
 you should take C. D., if he might be found in your coun- 
 ty, and him safely keep, so that you might have his body before 
 
 our circuit court for the county of , on the — day of , 
 
 to answer unto A. B., plaintiff^ of a plea of trespass [or as the case 
 may be],* and because the said C. D. hath come into our said court 
 and put in common bail [or " entered his appearance"\ at the suit 
 of the said A. B., in the plea aforesaid ; therefore, we command 
 you, that from taking the said C. D., arresting, imprisoning, or in 
 anywise molesting him on that account, you entirely desist, and 
 supersede ; and if you have taken the said C. D., and do detain 
 him in prison on that account, and no other, that then you cause 
 him, the said C. D., to be delivered and discharged, without delay, 
 out of the prison in which he is so detained, at your peril. [Tested 
 in the same manner as other writs.] 
 
 § 844. Supersedeas on putting in hail. 
 
 [As in the last form to the *, and then thus :] and because the 
 said C. D. hath come into our said court, and found sufficient bail 
 to answer the said A. B., of the plea aforesaid ; therefore, we com- 
 mand you, that from further taking, &c., [as in the last form to the 
 end.] 
 
 § 845. Notice of hail, of justification, and of applicatian for su- 
 persedeas. 
 
 iTitle.] 
 
 Sir : — Please to take notice that I. N"., of , merchant, 
 
 and J. S., of , grocer, have become special bail for the defend- 
 ant in this cause ; and will, on the — day of , at ten o'clock 
 
 in the forenoon, justify themselves before his honor, "W. H. C. W., 
 circuit judge, at his chambers in , as good bail for the said de- 
 fendant, and that application will then and there be made for a 
 supersedeas. [Dated, signed and directed as other notices.] 
 
 § 846. Exception to hail is taken by an indorsement on the bail 
 piece filed in the clerk's office, and may be in the following words : 
 "/ hereby eoccept to the sufficiency of the within hail," adding the 
 date and name of the plaintiff's attorney.(l) A notice of this ex- 
 
 (I) See Comp. L. 1142. 
 
280 INCIDENTAL PROCEEDINGS. 
 
 ception must be drawn, and served upon the defendant's attorney ; 
 or, if no attorney has been employed, and the defendant is in cus- 
 tody, it must be served on the sheriff or one of his deputie3.(l) 
 The exception must be taken, and notice given, within twenty days 
 after notice of the putting in of such bail.(2) The exception must 
 in all cases be actually entered ;(3) and if once made, cannot after- 
 wards, at least not after the time for justification has expired, be 
 waived so as to hold the bail if they neglect to justify.(4) The 
 mere entry of the exception, without notice, or a notice of excep- 
 tion without an actual entry, will be of no avail, unless the defect 
 be waived.(5) If the plaintiff, after excepting, proceed in the 
 action without waiting for justification, or new bail, it will be con- 
 sidered a waiver of the bail.(6) 
 
 § 847. In some cases, the plaintiff, in consequence of his own 
 acts, is deemed to have waived his right of exception. Thus, if, 
 after the bail are put in, and before exception, he declares abso- 
 lutely, and not merely de bene esse ; or if, after declaring de bene esse, 
 he accept a plea ;(7) or if, after the plaintiff has taken an assign- 
 ment of the bail bond, the bail to the sheriff be put in as bail 
 above ;(8) any exception by the plaintiff may be treated by the de- 
 fendant as a nullity, and he cannot be compelled to justify.(9) 
 But it is otherwise when an assignment of the bail bond is taken 
 after exception, in which case the bail must justify.(lO) 
 
 § 848. If the bail do not justify within ten days after service of 
 notice of exception, and no further time be given, the plaintiff may 
 proceed as if no bail had been put in, either by taking an assign- 
 ment of the bail bond, or proceeding against the sheriff, or by en- 
 tering a common appearance for the defendant.(ll) But if the 
 plaintiff receive notice of justification, or of adding and justifying 
 bail, he may attend, at the time appointed, before the judge or other 
 officer, and, if necessary, examine the bailas to their qualifications ; 
 and, if there be sufficient grounds, oppose their justification. 
 
 § 849. Special bail may justify by affidavit before any officer 
 authorized to take recognizance of special bail, and such affidavit 
 
 (1) Rule 8. (2) Rule 8. (3) 5 B. & C. 389. 
 
 (4) 20 Wendell, 607 ; 1 Cowen, 54 ; 2 id. 514. 
 
 (6) 1 Tidd's Pr. 256; 4 D. & R. 365 ; 3 Dowl. P. 0. 425. 
 
 (6) 4 J. R. 185. (7) 1 Arch. Pr. 105. 
 
 (8) 5 Cowen, 28T. (9) 1 Arch. Pr. 106, 108. 
 
 (10) 11 East, 321. (11) 1 Burr. Pr. 366. 
 
JUSTIFYING BAIL. 281 
 
 must set forth, the township, or city, and county in this state in 
 which the bail reside, and that they are severally worth the sum in 
 which the defendant is held to bail, after all their debts are paid ;(1) 
 and if unopposed, they so justify as a matter of course. But if op- 
 posed, they may be sworn and examined as to any objection that 
 may exist against them ; and affidavits may be read in opposition ; 
 or any defect in the notice of bail or of justification may be shown, 
 or some irregularity in the service of it ;(2) but objections to the 
 notice will generally be overlooked or disregarded, if the plaintiff 
 has not been misled, and has found the bail, so as to be able to 
 make suitable inquiries as to their responsibility.(3) 
 
 § 850. Our statutes do not prescribe the qualifications of bail, 
 except as to their pecuniary responsibility. By the rules of the 
 common law, however, each of the bail must be a housekeeper or 
 freeholder at the time of justifying.(4) The term housekeeper has 
 been defined to be a person actually occupying part or the whole 
 of a house, being the party responsible to the landlord for the 
 entire rent, and assessed or liable for parochial rates and taxes.(5) 
 But it has been held that the amount of the rent paid is not 
 material ;(6) and in some cases the mere renting and occupation of a 
 house, without payment of taxes or poors rate, and in other cases 
 an actual occupancy of the house rented has been held not 
 material. (7) 
 
 § 851. The bail must be worth double the sum in which the 
 defendant is held to bail. The species of property in respect of 
 which they derive their qualifications is not material. (8) But it 
 must be in their own right, (9) and within the jurisdiction of the 
 court,(10) and liable to the ordinary process of law ;(11) although 
 this rule has not been invariably adhered to,(12) and, in general, 
 the rule is, that bail cannot justify with reference to property 
 abroad.(13) But when the property of the bail consisted partly in 
 cash, and partly in property abroad, he was allowed to justify. (14) 
 An insolvent debtor cannot be bail. (15) 
 
 (I) Comp. L. 1142. (2) 1 Arch. Pr. 110. 
 
 (3) Id. (4) 1 Chitt. Archt. 196 ; 1 Chitt. R. 6, 288. 
 
 (5) 3 Petersd. Abr. 103, note. (6) Lofift, 148. 
 
 (T) 1 Burr. Pr. S61. (8) 3 Petersd. Abr. 106. 
 
 (9) 2 Chitt. R. 91. (10) 1 Price, 158; Lofft, 34, 147. 
 
 (II) 4 Burr. R. 2526. (12) 1 Chitt. R. 286, 286, note. 
 
 (13) 4 M. & S. 371 ; 4 Burr. 2526 ; 1 Chitt. S. 285. 
 
 (14) 4 M. & S. IfS. (16) 1 Chirt. B. 116. 
 
282 INCIDENTAL PEOCEEDINGS. 
 
 The English courts have rejected bail for various other reasons^ 
 and it may perhaps be laid down as a general rule, that where cir- 
 cumstances exist which render it probable that the amount for -which 
 the bail becomes liable, could not be collected of them without 
 more than ordinary trouble or difficulty, they will not be deemed 
 competent. (1) 
 
 § 852. It has also been held to be a good objection that they 
 are not liable to the ordinary process of courts of justice by rea- 
 son of privilege from arrest, whether permanent or temporary ;(2) 
 that they are attorneys or officers of the court ; or that they have 
 before been rejected as bail ;(3) or have assumed names that are 
 fictitious, or belong to other persons.(4) If, on opposition and 
 examination, the bail are found to be deficient in the requisite 
 qualifications, they will be rejected, and the plaintiff may then 
 take an assignment of the bail bond, or proceed against the 
 sheriff, unless further time be given to put in and justify other 
 bail.(5) If they are allowed to justify notwithstanding the plain- 
 tiff's objections, he may appeal to the court, by motion, to set aside 
 or vacate the order of a].lowance.(6) 
 
 § 853. On receiving notice of exception to bail, if it has been 
 regularly taken, the defendant should at once have an affidavit 
 prepared for the bail to sign, and give notice of the time when, 
 and the officer before whom, the bail will justify. At the time 
 and place mentioned in his notice, he should attend with the bail 
 before the judge, commissioner, or clerk ;(7) and if no opposition be 
 made on the part of the plaintiff, it will be sufficient to have the 
 affidavit of the bail sworn to before the officer ; and thereupon, on 
 presenting him an affidavit, showing service of a reasonable notice 
 of justification, he will indorse his allowance of the bail upon the 
 affidavit made by them. This affidavit and order should then be 
 filed in the office of the clerk, and notice given to the plaintiff's 
 attorney that the bail have justified.(8) 
 
 § 854. If the plaintiff's attorney appear before the officer, he 
 may, before justification, examine the bail as to their qualifications, 
 and if he show any good objection, the bail will be rejected ; and a 
 
 (1) See 2 Chitt. E. 11, 78, 95, 79 ; 1 id. 309, 289 ; Lofft, 72 ; 3 Petersd. Abr. 112. 
 
 (2) 4 Taunt. 249. (3) 3 Petersd. Abr. 113. 
 (4) 1 Sell Pr. 171. (5) 1 Tidd'a Pr. 300. 
 (6) 1 Burr.Pr. 367. (7) Laws of 1858, p. 8. 
 (8) 1 Burr. Pr. 400. 
 
ADDING BAIL. 283 
 
 rejection of one of the bail, is a rejection of both,(l) unless further 
 time be given to justify another bail instead of the one rejected.(2) 
 The opposition must be before justification, and a mistake of coun- 
 sel, in not opposing in time, has been held not to be sufficient 
 ground for examining the bail afterwards.(3) But if they appear 
 sufficient, notwithstanding any objections made, they subscribe 
 and swear to the affidayit, and an order for allowance is made 
 and filed accordingly. 
 
 § 855. Further time is sometimes given, either to justify the same 
 hail, or to add and justify others.(4) Thus, if they are prevented 
 from justifying from circumstances happening after they were put 
 in, as by their subsequent bankruptcy,(5) or insolvency, (6) farther 
 time will, in general, be allowed, to add and justify other bail.(7) 
 But where bail are rejected on account of some personal insufficiency 
 existing at the time they were put in, as by their being then attor- 
 neys,(8) time will seldom be allowed to add and justify other bail.(9) 
 But if the bail, from any unforeseen accident, cannot attend ;(10) or 
 if, after notice of justification, they refuse to attend ; or if one or both 
 of them fail to justify, by reason of the decision of the officer upon 
 any doubtful point of law as to their right to justify,(ll) further 
 time will ordinarily be allowed, either to justify the same bail, or 
 to add and justify others, on a proper affidavit of the facts. When 
 the bail are excepted to, and fail to justify within the time limited, 
 and no further time is given, they cease to be bail, and are dis- 
 charged. (12) 
 
 § 856. Before the time for justifying has expired, if one or both 
 of the bail already put in do not intend to justify, others should be 
 added in their places, and the bail thus added must justify without 
 waiting to be excepted to. (13) Notice of justification must be given 
 to the plaintiff's attorney, as in case of original bail ; and the pro- 
 ceedings on adding bail are similar to those on putting in bail 
 originally, except that the acknowledgment and justification of the 
 added bail take place at the same time. The names of the bail 
 proposed to be added are inserted in the bail piece, which must also 
 
 (I) 5 B. & A. 104. (2) Arch. N. Pr. 195. 
 (3) 1 Chitt. R. 83. (4) 1 Tidd's Pr. 212. 
 (5) 1 Chitt. R. 11. (6) Id. 3, 4. 
 
 (7) 1 Tidd's Pr. 297. (8) 1 Chitt. R. 8. 
 
 (9) 1 Tidd's Pr. 273. (10) 2 Chitt. E. 107. 
 
 (II) 1 Chitt. E. 287 ; Arch. TS. Pr. 193, 194. 
 
 (12) 1 Cowen, 54, 60; 2 id. 314; SWendeU, 477. 
 
 (13) Barnes, 74; 1 Arch. Pr. 107. 
 
284 INCIDENTAL PROCEEDINGS. 
 
 be sigaed by fhem. After acknowledgment, if the bail are allowed , 
 the bail piece and other papers should be filed, and notice be given 
 that the bail have justified. If the bail has been rejected for the 
 insufficiency of one or both of them, the bail piece becomes a nul- 
 lity, and new bail cannot afterwards be added on it, instead of the 
 former, but they must be put in as fresh bail, and. a new notice be 
 given of putting in and justifying them, and a new bail piece must 
 be filed.(l) 
 
 § 857. Notice of justification of bail. 
 
 ITitle.] 
 
 Sir: — Please to take notice that I. N. and J. S., the bail put 
 in for the defendant in this cause, and of whom you have already 
 had notice, will, on the — day of , at ten o'clock in the fore- 
 noon, justify themselves before C. V. B., Esquire, the clerk of this 
 
 court, at his ofiice in , as good and sufiicient bail for the said 
 
 defendant. Dated, &c. Yours, &;c., 
 
 G. H., Defendant's Attorney. 
 To E. P., Esquire, Plaintiff's Attorney. 
 
 § 858. Notice of adding hail, and of justification. 
 {Title.'\ 
 
 Sir: — Please to take notice that 0. E., of , merchant, 
 
 will, on the — day of , at ten o'clock in the forenoon, be added 
 
 to the bail already put in for the defendant in this cause ; and that 
 he, together with J. S., one of the bail already put in for the said 
 defendant, and of whom you have before had notice, will, at the 
 same time justify themselves before his honor J. W. T., circuit 
 
 judge, at his chambers in , as good bail for the said defendant. 
 
 Dated, &c. Yours, &c., 
 
 G. H., Attorney for Defendant. 
 To E. F., Esquire, Plaintiff's Attorney. 
 
 § 859. Notice of adding and justifying different bail. 
 [Title.'] 
 
 Sir : — Please to take notice that 0. E., of , merchant, and 
 
 Q. P., of the same place, builder, will, on the — day of , at ten 
 
 o'clock in the forenoon, be added to the bail already put in for the 
 defendant in this cause, and at the same time will justify themselves 
 before his honor E. M., one of the justices of the supreme court, 
 at his chambers in , as good bail for the said defendant. Da- 
 ted, &c. Yours, &c., 
 
 G. H., Defendant's Attorney. 
 To B. P., Esq., Plaintiff's Attorney. 
 
 (1) 5 B. & Aid. '704; 1 D. 4 R. 350. 
 
NOTICE OF BAIL. 285 
 
 § 860. Notice that hail have justified. 
 [Tith:\ 
 
 Sir: — Please to take notice that the bail heretofore put in 
 for the defendant in this cause, have this day justified themselves 
 
 before , as good and sufficient bail for the said defendant, as 
 
 will appear by their affidavit now on file in the office of the clerk 
 of this court, a copy of which is hereto annexed. [Dated, signed 
 and directed as above.] 
 
 § 861. Affidavit on proceeding against sheriff to compel appearance. 
 \Title of court and cause.] 
 
 County of , ss : E. F., attorney for the plaintiff in 
 
 this cause, being duly sworn, says that the capias ad respondendum 
 
 in this cause was issued to the [late] sheriff of the county of , 
 
 returnable on the — day of last, on which day the said writ 
 
 was returned by the said sheriff, with an indorsement thereon that 
 the defendant had been taken ; and this deponent further says, that 
 more than twenty days have elapsed from the time of such return, 
 and that special bail has not been put in and perfected in this cause, 
 according to the rules and practice of this court. And farther this 
 deppnent saith not. E. P. 
 
 Sworn, &c.(l) 
 
 § 862. Hule thai the sheriff put in special bail. 
 
 ^- ^- } 1860, May 15. 
 J^--p ^ E. F., Attorney. 
 
 On reading and filing an affidavit showing that the writ of 
 capias ad respondendum issued in this cause, has been returned 
 
 served by the sheriff of the county of , and that special bail 
 
 has not been put in and perfected within twenty days after the 
 return day of the said writ, on motion of E. F., attorney for the 
 plaintiff, Ordered, that the said sheriff put in and perfect special 
 bail in this cause, within twenty days after service of a notice of 
 this rule.(2) 
 
 § 863. Notice of rule that sheriff put in special bail. 
 [Title.] 
 
 Sir .-—Please to take notice that a rule has this day been 
 entered in this cause, in the book of common rules kept in the office 
 of the clerk of this court, requiring the sheriff [or "late sheriff"] 
 
 of the county of , to put in special bail in said cause within 
 
 twenty days after service of notice of said rule. Dated, &c. 
 
 Yours, &c., 
 
 E. F., Plaintiff's Attorney. 
 To "W. J., Esq., Sheriff of the county of .(3) 
 
 (1) Comp. L. 1142. (i) Comp. L, 1142, 1143. (3) Comp. L. 1143. 
 
286 INCIDENTAL PROCEEDINGS. 
 
 § 864. Affidavit of service of notice of rule to put in hail. 
 [Title and venue.] 
 
 E. P., attorney for the plaintiff in this cause, being duly 
 
 sworn, says, that on the — day of , he personally served W. J., 
 
 Esq., sheriff of the county of , with a notice whereof the an- 
 nexed is a true copy, by delivering the same to the said sheriff per- 
 sonally, [or, as the case may be;] and this deponent further says, 
 that no notice of special bail having been put in in this cause has 
 been received from the said sheriff. E. F. 
 
 Sworn, &c.(l) 
 
 § 865. Rule for attachment for not putting in hail. 
 
 ^- ^- 1 May 15, 1860. 
 ^^:q f E. F., Attorney. 
 
 On reading and filing an affidavit of due service upon J. W., 
 Esq., sheriff of the county of , of a notice of a rule hereto- 
 fore entered in this cause, requiring the said sheriff to put in and 
 perfect special bail in said cause within twenty days after notice of 
 said rule, and that no such bail has been put in and perfected, on 
 motion of E. F., attorney for the plaintiff. Ordered, that an attach- 
 ment issue against the said sheriff. (2) 
 
 § 866. Rule for defendanis appearance. 
 
 ^- ^- \ May 15, 1860. 
 J'^p f E. F., Attorney. 
 
 The time allowed the defendant for putting in special bail 
 in this cause having elapsed, and no such bail having been put in, 
 on motion of B. F., attorney for the plaintiff. Ordered, that the de- 
 fendant's appearance in said cause be and the same is hereby en- 
 tered, pursuant to the rules and practice of this court.(3) 
 
 § 867. Notice of exception to hail. 
 [Title.] 
 
 Sir .• — Please to take notice that I have excepted to the suf- 
 ficiency of the bail put in for the defendant in this cause. Dated, 
 &c. Yours, &c., B. F., Plaintiff's Attorney. 
 
 To G. H., Esq., Defendant's Attorney. 
 
 § 868. Affidavit to oppose bail. 
 [Title.] 
 
 County of , ss : E. B. of , cler]^ of B. F., attor- 
 ney for the plaintiff in this cause, being duly sworn, deposes and 
 
 (1) Comp, L. 1143. (2) Comp. L. 1143. (3) See Rule 20. 
 
SUEEENDER BY BAIL. 287 
 
 says, that G. H., attorney for the defendant in this cause, having 
 served the said E. F. with notice of justifying bail therein, he, this 
 deponent, by the order and direction of the said E. F., inquired 
 into the sufficiency of the bail intended to be justified for the said 
 defendant; and that J. N., one of the said bail, has become insol- 
 vent, and has not yet obtained his discharge, [or -whatever the 
 matter of disqualification may be,] as this deponent has been in- 
 formed and verily believes. E. B. 
 Sworn, &c. 
 
 § 869. If there be any irregularity in the assignment of the 
 bail bond, or in the proceedings in the action upon it, as if the 
 action on the bond be commenced before forfeiture,(l) or pending 
 a rule to stay proceedings in the original action ;(2) or after bail 
 put in, and during the time allowed for justification, or after bail 
 has been put in and justified, or after tender and notice,(3) or where 
 bail to the sheriff have become bail above, and the plaintiff has ex- 
 cepted to them ;(4) such, or any like irregularity, may be taken 
 advantage of by motion to the court to set aside the proceedings. 
 All the papers on such motion should be entitled in the bail bond 
 suit. (5) 
 
 § 870. Another mode by which the bail to the sheriff may re- 
 lieve themselves, is by the surrender of their principal. The mode 
 of procedure for this purpose is the following : Two copies of the 
 bail bond are procured from the sheriff, and presented to a circuit 
 judge or circuit court commissioner,(6) upon one of which such 
 of&cer will indorse an order that the defendant be committed to the 
 custody of the sheriff in exoneration of his bail. This copy must 
 be delivered to the sheriff, and will authorize him to commit and 
 detain the defendant until he is duly discharged, and thereupon the 
 bail may go and surrender the defendant to the custody of the 
 sheriff. After the defendant has been so committed, let the sheriff 
 indorse on the other copy of the bail bond a certificate that the 
 defendant has been committed to, and remains in his custody by 
 virtue of such order of commitment, and acknowledge it before the 
 officer, or have it proved by a subscribing witness thereto ; where- 
 upon the ofiicer will make an order requiring the plaintiff to show 
 cause before him, at a certain time and place to be designated there- 
 in, why the bail of such defendant should not be exonerated from 
 their liability. 
 
 (1) 1 Tidd's Pr. 300. (2) 4 T. R. lYB. 
 
 (3) 1 Arch. Pr. 9T. (4) 5 Cowen, 28'7. 
 
 (5) 3 J. E. 448 ; 5 id. 36T j 2 Cott. 609. (6) Laws of 1858, p. 8. 
 
288 INCIDENTAL PROCEEDINGS. 
 
 § 871. Such order must be served on the plaintiff or his attor- 
 ney, in. the usual manner of serving notices, and an aflB.davit of the 
 service made, which must be produced to the of&cer at the time 
 specified in the order for showing cause ; and if no good cause to 
 the contrary appear, the officer will indorse an order on the second 
 copy of the bond, briefly reciting the proceedings had before him, 
 and thereby declaring that the bail of such defendant are discharged 
 from all liability, as such bail, in the suit in which such bail bond 
 was taken. All the papers must then be filed in the oflSce of the 
 clerk, that is to say, the second copy of the bond, with the certifi- 
 cate of the sheriff, and his acknowledgment or the proof thereof, 
 and the final order of the judge or commissioner indorsed on it, 
 the order to show cause, and the af&davit of service. Until the 
 papers are so filed, the bail continue liable.(l) But if there is no 
 defence to the action, and the proceedings on the bond are not 
 stayed or set aside, the defendants can discharge themselves only by 
 paying the debt and costs in the original action, to the extent of 
 the bail bond ;(2) and also the costs of the action on the bond.(3) 
 
 § 872. If the plaintiff proceed hy ruling the sheriff to put in spe- 
 cial hail, on being ruled to do so, he has the whole of the day on 
 which the rule expires in which to put in and perfect special bail.(4) 
 If the time limited by the rule have expired, and the rule not com- 
 plied with, yet, if bail be put in and perfected at any time before 
 the rule for attachment is entered, it is sufficient.(5) If the pro- 
 ceedings have all been regular, and there be no ground for resist- 
 ing them, it is however advisable that the sheriff comply with the 
 rule by putting in and perfecting bail without unnecessary delay. 
 
 § 873. But if any of the proceedings against the sheriff be 
 irregular, they, or any attachment founded on them, will be set 
 aside by the court on motion. (6) And so, if any of the proceed- 
 ings of the plaintiff relative to the bail be irregular, the sheriff is 
 not liable to an attachment for such bail not being afterwards per- 
 fected ;(7) as, if bail be put in in time, but no exception be en- 
 tered ;(8) or only a verbal, and not a written notice of exception 
 be given ;(9) the court, on motion, will set aside the attachment 
 for irregularity, even if such irregularity has been waived as re- 
 spects the defendant, by his subsequent act.(lO) And when the 
 
 (1) Comp. L. 1145. (J) Dougl.330 ; Cowp. 71. 
 
 (3) 1 Arch. Pr. 101. (4) 2 Cowen, 495 ; 4 T. E. 496. 
 
 (5) 2 M. & S. 562. (6) See 6 Hill, 236. 
 
 (7) 1 Aroh. Pr. 96. (8) 1 H. Bl. 106 ; 7 D. A R. 264. 
 
 (9) 1 H. Bl. 80. (10) 1 H. Bl. 106. 
 
SUREENDER BY BAIL. 2S9 
 
 attachment was obtained pending a summons to stay proceedings 
 in the original action, on payment of debt and costs, it was set 
 aside for irTegularity.(l) So, where the arrest was made by a 
 special bailiif, in which case the plaintiff cannot regularly rule the 
 sheriff to return the writ, the court will set the attachment aside as 
 irregular, with costs.(2) 
 
 § 874. The attachment may also be set aside for other causes, 
 as in case the plaintiff, without the knowledge of the sheriff, take 
 a cognovit from the defendant for the payment of the debt by in- 
 stalments.(3) And where there has been unnecessary delay in 
 obtaining the attachment, the court will, in genera], set it aside.(4) 
 But if either party dies after the return of the writ, the sheriff will 
 not be relieved if he was in contempt at the time of the death.(5) 
 
 § 875. Order for a covvnitlitur on a surrender hy hail, indorsed 
 on a copy of the bond, or bail piece. 
 
 Let the defendant in this cause be committed to the custody 
 
 of the sheriff of the county of ■ , in exoneration of his bail, 
 
 at the suit of the plaintiff in the plea within named. Dated, &c. 
 E. P. H., Circuit Court Commissioner for ) 
 the county of .[6) \ 
 
 § 876. Certificate of sheriff on commiitiiur of defendant. 
 
 I certify that C. D., the within named defendant, has been 
 committed to and remains in my custody, by virtue of a com- 
 miitiiur of him, in exoneration of his bail, at the suit of the plain- 
 tiff in the plea within mentioned. Dated, &c. 
 
 W. J., Sheriff of the county of .(7) 
 
 Witness, A. L. 
 
 § 877. Acknowledgment of foregoing certificate. 
 
 On this — day of , A. D. , before me personally 
 
 came W. J., Esq., sheriff of the county of ■, and acknowl- 
 edged the execution of the foregoing certificate by him subscribed 
 as his act. 
 
 E. P. H., Circuit Court Com'r for the county of . 
 
 § 878. Proof of eosecution of certificate by subscribing witness. 
 
 County of , ss : A. L., of the town of , in said 
 
 county, being duly sworn, deposes and says, that on the — day of 
 
 (1) 5 B. & A. 146. (2) 1 Arch. Pr. 96. 
 
 (3) 1 Arch. Pr. 97 ; 1 Taunt. 169. 
 
 (4) 3 B. & P. 151 ; 9 Bast, 461 ; 1 T. E. 452 ; 1 Aroh. Pr. 96, 98 11 J. B. 35. 
 ( 5) 3 T. E. nS; 1 Arch. Pr. 98. (6) Comp, L.1145. 
 
 (7) Comp. L. 1145. 
 
 • 19 
 
290 INCIDENTAL PROCEEDINGS. 
 
 he saw W. J., Esq., sheriff of the said county of , sub- 
 
 scribe his name to the foregoing certificate, and that at the same 
 time he, this deponent, subscribed his name as a witness thereto. 
 Sworn, &c. A. L. 
 
 § 879. Order to show cause why an exoneretur should not he entered, 
 [mie.] 
 
 Due proof having been made before me that the defendant 
 in this cause has been committed to the custody of the sheriff of 
 
 the county of . Let the plaintiff show cause before me at 
 
 my oifice in , on the — day of next, why the bail of 
 
 the said defendant should not be exonerated from their liability. 
 Dated, &c. E. P. H., Circuit Court Commissioner, &c.(l) 
 
 § 880. Order exonerating bail. 
 
 [Titk.] 
 
 The defendant having been, on the prayer, [or " on his own 
 prayer,"'] and in exoneration of his bail, committed to the custody 
 
 of the sheriff of the county of , at the suit of the plaintiff in 
 
 the plea within mentioned ; and the said sheriff having certified 
 that the said defendant remained in his custody by virtue of such 
 order of commitment, which certificate was duly acknowledged 
 before me by said sheriff, [or "proved by the subscribing witness 
 thereto,"} an order was thereupon granted, that the plaintiff show 
 
 cause before me, at my office in , why the bail of the said 
 
 defendant should not be exonerated from their liability ; and the 
 said plaintiff having appeared before me by virtue of such order, 
 and having shown no good cause to the contrary, [or " the plaintiff 
 not having appeared, and proof of the due service of such order on the 
 said plaintiff, or his attorney, being produced to me,"] I do hereby 
 declare, that the bail of the said defendant are discharged from all 
 liability as such bail, in the suit in which the within mentioned 
 bail bond [or " bail piece"] was taken. Dated, &c. 
 
 E. P. H., Circuit Court Commissioner, &c.(2) 
 
 881. The defendant may require the plaintiff to file security for 
 the payment of the costs that may be incurred by him in the suit, 
 where the suit has been commenced for or in the name of any 
 trustees of any debtor ; or for, or in the name of any person being 
 insolvent, who shall have been discharged from his debts pursuant 
 to law, for the collection of any debt contracted before the assign- 
 ment of his estate ; or for or in the name of any person, committed 
 in execution for a crime ; or in the name of any infant whose next 
 friend has not given security for costs ; and if, after the commence- 
 
 (1) Comp. L. Ills. (3) Comp. L 114&. 
 
SKOURITY FOR COSTS. 291 
 
 metit of a suit, all the plaintiffs become insolvent, and be discharged, 
 or be sentenced to imprisonment in the state prison for any term 
 less than for life, the defendant may also require such security to 
 be filed.(l) 
 
 § 882. The order to file such security, and that all proceedings 
 on the part of the plaintiff be stayed until such security be filed, 
 and the sureties justify, if excepted to, may be made by the court 
 in which the action is pending, or by the judge or circuit court 
 commissioner in vacation, upon due proof, by afSdavit, of the facts 
 entitling the defendant thereto. (2) If the application is made to 
 the court in term time, it will be by special motion in the usual 
 manner. K it is made to the judge or commissioner in vacation, 
 notice ought to be given of the application, and if it be not given^ 
 an order will be made to show cause, which will be required to be 
 served, in order that the plaintiff may have an opportunity to op- 
 pose the application before an absolute order is made. 
 
 § 883. The security must be given in the form of a bond, in a 
 penalty of at least one hundred dollars, with one or more sufficient 
 sureties, to the defendant, conditioned to pay, on demand, all costs 
 that may be awarded to the defendant in the suit; which bond 
 must be filed with the clerk of the court in which the action ia 
 pending, and notice thereof given to the defendant or his attorney.(3) 
 If it appear necessary and proper to do so, the amount of the pen, 
 alty will be increased to a greater sum than one hundred dollars. 
 The order, on being granted, should be served on the plaintiff's 
 attorney. 
 
 § 88i. Within twenty days after receiving notice of the filing 
 of the bond, (which should be accompanied by a copy thereof,) the 
 defendant may except to the sufficiency of the sureties,, by giving 
 notice of such exception to the plaintiff's attorney,, and,, withifl 
 twenty days after such notice of exception, the sureties must justify 
 their responsibility by an affidavit that they are worth double the 
 penalty of the bond, over and above all debts. This affidavit may 
 be sworn to before any officer authorized to administer oaths, and 
 must be filed, and a copy thereof served on the defendant or his 
 attorney. The justification in this case, it would seem, is ex parte, 
 and no notice of the time and place of justification is required to 
 be given ;(4:) but a notice ought properly to be indorsed upon, or 
 
 (1) Comp. L. 1466. (2) Id. 
 
 (3) Comp. L. 1466. (4) 10 Wendell, 616. 
 
292 INCIDENTAL PROCEEDINGS. 
 
 annexed to the copy of the affidavit served, that the original, of 
 ■which it is a copy, has been duly filed. When such justification 
 js completed, it operates to discharge the order staying proceed- 
 ings.(l) 
 
 § 885. If the plaintiff neglect to file security as required by the 
 order, his proceedings are stayed ; and the defendant may move 
 for judgement of nonpros.i^) It seems, however, that on receiving 
 notice of this motion, the plaintiff may still be allowed to comply, 
 on paying the costs of the motion ; or, if necessary, on showing 
 proper cause, he may obtain an extension of time for filing the 
 security.(3) 
 
 If the plaintiff fail in his suit, and costs are awarded to 
 the defendant, and such costs are not paid according to the condi- 
 tion of the bond, the defendant may institute a suit thereon without 
 obtaining leave for that purpose ; and to sustain his action, it is only 
 necessary for him to show that the bond has been forfeited.(4\ 
 Previous, however, to the commencement of the suit, it is necessary 
 that a demand of the costs should be made, either of the plaintiff 
 or of the sureties, according to the condition of the bond.(5) The 
 fact of the demand should be averred in the declaration, and proved 
 on the trial.(6) 
 
 § 887. Alternative order for security for costs. 
 [Title.] 
 
 Ordered, that tlie plaintiff in this cause file security for coats 
 within — days after service of a copy of this order, and of the affi- 
 davit on which it is founded, or show cause before me at my office 
 
 in , on the — day of next, why the same has not been 
 
 done, and that in the meantime all the proceedings on the part of 
 the plaintiff be stayed. Dated, &c. 
 
 E. P. M. Circuit Court Com'r for the county of .(7) 
 
 § 888. Peremptory order on the foregoing. 
 iTitle.] 
 
 It appearing by the affidavit of , that a copy of the 
 
 order to show cause this day before me, why the plaintiff in this 
 cause should not file security for costs, according to the statute in 
 such case made and provided, has been regularly served, and no 
 
 (1) Comp. L. list. (2) 12 Wendell, 295. 
 
 (3) \2 Wendell, 295 ; se« also 19 WsndeU, 10. 
 
 (4) 1 Wandell, 482. (5) 6 Hill, 31 ; 1 Howard 3. T. R. 100. 
 (6) S Hill, 37. (7; Comp. L. U66. 
 
SECUEITY FOR COSTS. 293 
 
 cause having been shown why the same should not be done, let 
 all proceedings on the part of the plaintiff in this cause be stayed 
 until such security be filed, and the sureties justify, if excepted to. 
 [Dated and signed as in last form.] 
 
 § 889. Peremptory order for security, on motion to the court. 
 
 rrp-fi 1 Gr. H., Attorney for Defendant. 
 iuti£.i g_ j,_^ Attorney for Plaintiff. 
 
 On reading the af&davit filed in this cause as the foundation 
 of motion, [and affidavit of plaintiff in opposition thereto,] and 
 after hearing arguments of counsel on both sides, on motion of G. 
 H., attorney for the defendant. Ordered, that all proceedings on the 
 part of the plaintiff in this cause be stayed until security for costs 
 be filed by said plaintiff, pursuant to the statute in such case made 
 and provided, and the sureties justify, if excepted to.(l) 
 
 § 890. Bond for defendants costs. 
 
 Know all men by these presents, that we, A. B. of 
 -, I. N. of , and J. S. of , are held and firmly bound 
 
 unto C. D. in the sum of one hundred dollars, lawful money, to be 
 paid to the said 0. D., his executors, administrators or assigns ; for 
 which payment, well and truly to be made, we bind ourselves, our 
 executors and administrators, firmly by these presents. Sealed 
 
 with our seals, and dated this — day of , A. D. . 
 
 Whereas the said A. B. has commenced a certain suit in the cir- 
 cuit court for the county of , against the said C. D. ; now, 
 
 the condition of this obligation is such that if the above bounden 
 A. B., I. ]Sr. and J. S. shall pay, on demand, all costs that may be 
 awarded to the defendant in the said suit, then the above obliga- 
 tion to be void ; otherwise to remain in fall force and virtue. 
 
 A. B. [L. s.] 
 I. N. [L. s.] 
 J. S. [L. s.](2) 
 
 § 891. Notice of filing security for costs, indorsed on copy of bond. 
 [Title.} 
 
 Sir: — Please to take notice that I. K. and J. S., of , 
 
 have become sureties for costs in this cause, and that the bond, of 
 which the within is a copy, has been filed in this cause in the 
 office of the clerk of this court. [Dated, signed and directed as 
 other notices.] (3) 
 
 (1) Comp. L. 1468. (2) Comp. L. 1466. (3) Comp. L. 14ST. 
 
294 INCIDENTAL PEOCEEDINGS, 
 
 § 892. Notice of exception to sureties. 
 [Title.] 
 
 Sir : — Please to take notice, that I have excepted, and do 
 hereby except, to the suiEciency of the security for costs filed in 
 this cause. [Dated, signed and directed.] 
 
 § 893. Notice of justification of sureties. 
 
 [Title.] 
 
 Sir: — Please to take notice that the sureties for costs in this 
 cause have duly justified, and that the affidavit of justification, 
 whereof a copy is hereto annexed, has been duly filed with the 
 clerk of this court. [Dated, signed and directed.] 
 
 § 894. It is further provided by statute, that the court may in 
 all cases, when it shall appear reasonable and proper, require the 
 plaintiff to give the defendant security for costs ; and that if any 
 indorser of a writ or declaration shall remove out of the state, or be 
 deemed by the court insufficient, such court may require the 
 plaintiff to give new security, and that every person becoming 
 such surety shall be liable for all costs from the commencement of 
 the suit, in like manner as if he had been the origiual indorser.(l) 
 The application Under this statute is made by special motion to 
 the court, founded upon an affidavit setting forth the facts upon 
 which the motion is based. 
 
 § 895. Neither the form of the security, nor the mode of deter- 
 mining the sufficiency of the sureties, is pointed out by the statute. 
 It may be required to be given by filing a bond subject to be 
 excepted to, and the sureties be required to justify, as in the cases 
 where security is demaridable by the defendant, or by a writing 
 without seal, entitled in the cause, and containing a promise to pay 
 to the defendant all such costs as may be awarded to him against 
 the plaintiff in the suit, and to be approved by the judge, or by 
 the clerk, or circuit court commissioner. In either case the order 
 will contain such directions as may seem necessary, and will pro- 
 vide for staying the plaintiff's proceedings, if justice seem to 
 require it. 
 
 § 896. Security for costs by simple agreement. 
 
 [Title.] 
 
 In pursuance of an order of this court heretofore made in this 
 cause, requiring the plaintiff therein to give security to the defendant 
 
 (1) Comp. L. 113T. 
 
AMENDING PLEADINGS. 295 
 
 for all such costs as may be awarded to him against the said plaintiff 
 
 in this suit, we 0. M. and Y. Z. of , do hereby undertake to 
 
 become security for said costs, and do promise and agree that we 
 will pay to the said defendant all such costs as may be awarded to 
 him in this suit against the said plaintiff, on demand thereof. Da- 
 ted, &c. 0. M. 
 
 Y. Z. 
 
 I approve the within [or ^^ foregoing "] security for costs in this 
 cause. T. C. O., Clerk.(l) 
 
 § 897. K the action be commenced by writ, and more than 
 twenty days be necessary for the plaintiff to declare, he should, 
 within that time, prepare an affidavit of the facts showing the 
 necessity for enlarging the time, and present the same, with tke 
 draft of an order for that purpose, to the judge or commissioner. 
 If the order is allowed, it should be served on the defendant's 
 attorney in the usual manner. 
 
 The order may be in the following form : 
 
 \Title.] 
 
 Ordered, that the time to declare in this cause be extended 
 
 to the — day of next. Dated, &c. 
 
 F. J. L., Circuit Judge. 
 
 If the defendant require further time to plead to the declaration, 
 or the plaintiff to reply, the proceeding to obtain the necessary 
 order is the same. 
 
 § 898. If the defendant plead in abatement, or demur to the 
 declaration, the plaintiff may amend his declaration at any time 
 before his default for not replying or joinipg in demurrer, as the 
 case may be, shall be entered ; and if the general issue be pleaded, 
 he may amend within ten days after service of a copy of such 
 plea.(2) The mode of amending the declaration is to draft it anew, 
 adding new counts, or varying those contained in the original, or 
 both, as may be necessary, indorsing it " amended narr." and 
 serving a copy so indorsed, with a notice that the same is a copy 
 of the declaration as amended ; and the time to plead thereto is 
 computed from the day of such service.(3) If one of two defend- 
 ants pleads the general issue, and the other demurs, and the decla- 
 ration is amended, both are bound to receive an amended declara- 
 tion.(4) If the defendant has pleaded before the amendment, he 
 must plead de novo to the amended declaration.(5) 
 
 (1) Comp. I,. 113T. (2) Rule 35. (3) Rule 38. 
 
 (4) 2 Wendell, 618. (5) 3 B. & All 13T ; 1 "Wendeli 16 ; 5 Hill, 566. 
 
296 INCIDENTAL PROCEEDINGS. 
 
 No costs are incurred on an amendment under these rules, 
 but tlie plaintiff can so amend but once. Any further amendment 
 which may be necessary, must be on special application to the court 
 by motion for that purpose. If the motion is granted, the plaintiff 
 must pay the costs of the motion, and the defendant, if he has 
 pleaded, may withdraw his plea and plead de novo.{V) But, in or- 
 der to do this, he should obtain leave of the court on>the motion. (2) 
 The plaintiff has been allowed to amend by adding new <50unts 
 upon the same cause of action, after issue joined, and after-the tak- 
 ing of testimony by commission ;(3) and a new cause of action has 
 been allowed to be added to the declaration, by way of aniendment, 
 when the suit was intended to embrace it, and it was omitted „in 
 declaring, through a mistake of the pleader.(4) 
 
 § 900. After plea, either party may, before default in not an- 
 swering shall be entered, amend the pleading to be answered ; but 
 if the pleading be such as does not require to be answered, it can 
 only be amended of course within ten days after filing the same ; 
 and in so amending on the part of the defendant, new pleas or no- 
 tices may be added. (5) A copy of the plea, or plea and notice, as 
 amended, indorsed " amended plea," or " amended plea and notice," 
 must be filed and served, with a notice that the same is a copy of 
 the plea, or plea and notice, as amended. The time to reply is 
 computed from the service of the amended plea, with the notice re- 
 quired to be given thereof.(6) 
 
 § 901. On the default of ike defendant in not pleading to the 
 plaintiff's declaration within the time allowed him for that purpose, 
 the plaintiff is entitled to have such default entered in the common 
 rule book.(7) By omitting to interpose a defence to the action, the 
 defendant is considered as impliedly admitting the validity of the 
 plaintiff's demand, and accordingly becomes liable to have judg- 
 ment pass against him by reason of such default. In order to en- 
 title the plaintiff to such judgment, it is necessary, however, that 
 the right to enter such default shall first be judicially established. 
 For this purpose a motion is supposed to be made to the court, on 
 the part of the plaintiff, founded on an affidavit of service of the 
 declaration, for a rule authorizing the entry of such default. No 
 such motion is in fact made ; but, on filing the affidavit showing 
 the default, a rule is entered therefor in the common rule book, as 
 a matter of course. 
 
 (1) 1 Hall, 165. (2) 5 Hill, 656. (3) 1 Howard S. T. E. 61. 
 
 (4) 1 Hill, 631. (5) Rule 36. (fl) Rule 36. 
 
 (1) Rule 21. 
 
PROCEEDINGS OBT DEFAULT. 297 
 
 § 902. If the plaintiff mean to insist upon the default, he should 
 .caua? it to be entered as soon as it becomes due, the defendant be- 
 ing entitled to plead at any time before the default is entered. (1) 
 But when a plea was served the day after the time to plead had 
 expired, 'and the default was entered the same day, though after 
 the plea was served, the plaintiff not having knowledge of the ser- 
 vice," it- was held to be regular.(2) When the time to plead was 
 enl3.rged by a commissioner, who, after the original twenty days 
 had' expired, revoked his order without quaUfication, and the de- 
 fendant's default was immediately entered, it was held, to be regu- 
 lar.(3) And when the defendant, before pleading, and before the 
 expiration of the time to plead, obtained an order to stay proceed- 
 ings to enable him to make a motion, and the motion was not made 
 until after the time for pleading had expired, it was held that the 
 plaintiff might enter his default as soon as the motion had been 
 made.(4) 
 
 § 903. If the suit was commenced by declaration, the usual re- 
 turn of the sheriff, or affidavit of service of a copy thereof, and of 
 the notice of rule to plead, is sufficient to authorize the entry of 
 the defendant's appearance, and his default, if he fail to appear or 
 plead ; and if the suit was commenced by writ, and the defendant 
 does not appear, (unless he is imprisoned for Avant of bail,) it is 
 not necessary to serve the declaration, and no affidavit is therefore 
 necessary in such case, to authorize the entry of a rule for de- 
 fault.(5) The rule for default may be entered as well in vacation 
 as in term time. 
 
 § 904. The default being thus entered, the plaintiff must wait 
 until four days in term, or such other time as may be limited 
 therefor by the court, has elapsed, when, if there has been no 
 waiver of the default, and no motion be made to set it aside, he 
 may have a rule entered in the common rule book to make such 
 default absolute, and for such judgment as he is entitled to by 
 reason thereof, and, if necessary, referring it to the clerk, the court, 
 or a jury, as the case may require, to assess the damages.(6) But 
 the plaintiff's attorney has a right to waive the default, if he 
 choose, even contrary to the orders of his client; (7) and he ought 
 to do so if the defendant, as soon as he shall know that the default 
 
 (1) 1 Johns. Gas. 413 ; 10 ■WondeU, 634. 
 
 (3) 18 Wendell, 533, 655 ; 6 HUl, S68. (3) 3 Hill, 448. 
 
 (4) 22 "Wendell, 645. (5) Rule 8. 
 
 (G) See Rules 23, 12. (1) 1 -Wendell, 108. 
 
298 INCIDENTAL PEOCEEDINGS. 
 
 has been entered, comply with the requirements of the 22d rule, 
 bj serving an affidavit of merits, pleading issuably, and paying or 
 tendering the costs of the default. And the acts of the plaintiff, 
 after entry of the default, will sometimes be construed to be a 
 waiver, as the acceptance of a plea with a mere parol reservation 
 or condition annexed to the receipt of it ;(1) or neglecting to op- 
 pose a motion to change the venue.(2) If the defendant, after 
 pleading, withdraw his plea, the case stands as on default absolute, 
 and damages may be assessed at any time thereafter.(3) 
 
 § 905. In actions of debt on bond for the payment of money, 
 the rule, on mailing the default absolute, is for final judgment for 
 the penalty, no proceedings being necessary to ascertain the amount 
 due to the plaintiff. In such case, as soon as the rule has been 
 thus entered in the common rule book, the plaintiff may proceed 
 to perfect his judgment by having the same, on his motion, entered 
 of record upon the journal of the court. The judgment thus en- 
 tered is for the penalty of the bond, together with the costs of suit 
 to be taxed. The execution thereon is, in form, for the same 
 amount ; but must be indorsed with a direction to the sheriff to 
 levy the amount actually due by the condition of the bond, with 
 interest and costs.(4) In debt on a judgment, the judgment on 
 default is also final, and the interest due may be ascertained by the 
 clerk, or other taxing ofB.cer, and taxed with the costs.(5) 
 
 § 906. In actions sounding in damages, as assumpsit, covenant, 
 trespass, case, and replevin, and, in some cases, in debt, as on a 
 bond for the performance of some condition other than the pay- 
 ment of money, the judgment on default is, in the first instance^ 
 only interlocutory, that is, intermediate and incomplete, establish- 
 ing the plaintiff's right to recover, but leaving the amount of the 
 damages to be judicially ascertained in one of the modes indicated 
 by the statute and rules of practice, according to the nature or sub- 
 ject of the action. And if it should be necessary to obtain the tes- 
 timony of witnesses residing out of the state, to be used upon the 
 assessment of damages, a commission may be awarded, on the ap- 
 plication of the plaintiff, in the like cases, and in the same manner, 
 as if an issue of fact had been joined. (6) 
 
 § 907. "When a default is suffered as to part of the declaration, 
 and issue joined as to the residue; and, generally, when some of 
 
 (1) 1 Oowen, 676. (2) 2 Gaines' R. 319. 
 
 (3) Rule 23. (4) 2 Cainea' K. 256 ; 12 J. R. 360. 
 
 (5} 6 J. R. 28T. (6) Comp. L. 1168. 
 
PROCEEDINGS ON DEFAULT. 299 
 
 several defendants suffer a default, and others plead to issue, the 
 damages on the default must be assessed by the court or jury upon 
 the trial of the issue, and the plaintiff cannot, therefore, proceed 
 upon the default beyond the rule for interlocutory judgment. But 
 when the several parties to a bill or a note are embraced in one 
 action under the statute,(l) if some of the defendants suffer a de- 
 fault, the plaintiff may proceed to trial or hearing against the 
 others, in the same manner as if the suit had been commenced 
 against the others only, and the action -will be thereby severed; and 
 the plaintiff may, on the other hand, proceed against the parties 
 who suffer a default as if they had been sued alone. But the action 
 cannot be thus severed as to joint contractors, and if there be several 
 joint makers, indorsers, &c., the plaintiff cannot take judgment 
 against.one until he is entitled to judgment against all.(2) 
 
 § 908. The several clerks are authorized to assess the plaintiff's 
 damages or default, demurrer or confession, upon bills of exchange, 
 promissory notes, and orders or drafts for the payment of money ; 
 on contracts for the absolute payment of money only ; on contracts 
 for the Dayment of a sum certain, though payable in specific arti- 
 cles ; and on contracts for the delivery of specific articles at a value 
 or price stipulated in the same contract. This assessment can only 
 be made upon some obligation or contract in writing, and, except 
 in the case of a bill of exchange or promissory note, it must also 
 be set forth in the declaration. But in all actions on promissory 
 notes or bills of exchange, when the plaintiff shall file and serve 
 with his declaration a copy of such promissory note or bill of ex- 
 change, the damages may be assessed as though such note or bill 
 had been specially set out in the declaration.(3) 
 
 § 909. If the defendant shall have appeared in the cause by 
 attorney, or shall have given notice of his intention to appear and 
 defend the action, the like notice of assessment of damages by the 
 clerk must be given, as is required of the trial of a cause ; but in 
 all other cases no notice is necessary, and the clerk will proceed on 
 the entry of the rule requiring such assessment. (4) But when 
 notice of appearance is not given until after entry of the default, 
 the plaintiff is not bound to serve the defendant's attorney with 
 notice of the assessment.(5) The plaintiff may countermand his 
 
 (1) Cpmp. L. 1149. (2) 19 WendeU, 643 ; 3 Hill, 416; 4 id. 35, 563. 
 
 (3) Comp. L. 1203, 1204. Laws of 1859, p. 260. 
 
 (4) Comp. L. 1204. (5) 12 WendeU, 235. 
 
SOO INCIDENTAL PROCEEDINGS. 
 
 notice of assessment, if he shall find that he cannot proceed at the 
 specified time. 
 
 § 910. As a preparation for the assessment, in order to insure 
 correctness in the proceeding, and accuracy in the computation, 
 after the entry of the default, and previous to the assessment, the 
 plaintiff's attorney should make out a brief, in the nature of in- . 
 structions to the clerk. It should contain the title of the cause, a 
 statement of the nature of the action, with a brief description of the 
 instrument on which the assessment is to be made, and a calcula- 
 tion of the principal and the interest due upon it. This may be in- 
 dorsed with the title of the suit, and the attorney's name, and the 
 time for which notice of assessment has been given, in case notice 
 ■was required, and the instrument, on which the assessment is to be 
 made, should be attached and left with the clerk. 
 
 § 911. No proof is required of the execution of any instrument 
 left with the clerk for assessment, and the assessment will be made, 
 notwithstanding there may be general or other counts in the de- 
 claration besides those in which the note, bill, or contract is spe- 
 cially set forth ; and it is not necessary to enter a nolle prosequi as 
 to such counts.(l) The clerk may administer oaths to witnesses, 
 and take their testimony whenever it may be necessary on the 
 assessment of damages ; and if the instrument declared on be lost, 
 the clerk may take proof thereof, and of the contents of such in- 
 strument, which proof must be stated in his report ; and whenever 
 required by either party, he must reduce to writing the proof taken 
 by him, and include the same in his report.(2) A party in interest 
 may be a witness to prove the loss of the instrument on which the 
 suit is brought, in order to lay the foundation for parol proof of its 
 contents.(3) In an action against the indorser of a promissory 
 note, the fees of protest have been held to be a proper item in the 
 assessment of damages.(4) 
 
 § 912. The clerk is required to report to the court the amount 
 ascertained by him to be due to the plaintiff, and to certify under 
 his hand upon the original bill, note or contract, the amount of 
 damages assessed thereon, and annex a certificate thereof to such 
 bill, note or contract. The report may be excepted to by either 
 party ; and on such exceptions being made and filed, the court will 
 hear and examine the matter, and cause justice to be done between 
 
 (1) Comp. 1. 1204. (2) Id. (3) 20 J. E. 144. (4) 10 "WendeU, 116. 
 
PE0CEEDING3 OK DEFAULT. 301 
 
 the parties ; and will give judgment for the sum reported, or for 
 such sum as the court, upon hearing the exceptions, if any, shall 
 have ascertained to be due to the plaintifi'.(l) All exceptions to 
 such report must be filed on the day succeeding that on which the 
 report is filed, unless the court otherwise direct.(2) 
 
 § 913. The judgment, upon an assessment of damages by the 
 clerk, is entered on the record, upon the plaintiff's motion, and 
 without stating any reference to the clerk, or any proceedings in 
 consequence thereof; and the damages are stated as having been 
 assessed by the court.{?,) If the clerk make a mistake in assessing 
 the damages, the court may be moved to vacate the assessment, and 
 that the damages be assessed anew ;(4) and the court has allowed 
 this to be done after judgment has been entered and satisfied, and 
 satisfaction acknbwledged.(5) 
 
 § 914. In all other suits except those before enumerated, 
 wherein the clerk is authorized to assess the damages, if interlocu- 
 tory judgment be rendered for the plaintiff by default, or upon 
 demurrer, or upon confession, damages may be assessed by a 
 jury,(6) or by the court.(7) And the rule for interlocutory judg- 
 ment in such cases directs that the assessment be made by one or 
 the other as the plaintiff may elect, unless the court shall direct its 
 reference to a jury.(8) Notice of the assessment should be given, 
 when necessary ; and at the time specified in such notice, or at any 
 time after interlocutory judgment, if no notice is necessary, and 
 without any other rule or order, the plaintiff may proceed before 
 the court, with or without a jury, as the case may be, to introduce 
 his proofs and have his damages assessed. 
 
 § 915. If the damages are assessed by the court without a 
 jury, the judgment is entered on the record in the same form as 
 when the damages are assessed by the clerk, and no other entry of 
 the assessment or proceedings thereupon, is required. If the dam- 
 ages are assessed by a jury, judgment is entered for the plaintiff 
 for the damages so assessed, as in case of a verdict upon a trial 
 had.(9) 
 
 (1) Comp. L. 1204. (2) Rule 19. 
 
 (3) Comp. L. 1204, 1205. (4) 1 J. R. 50J. 
 
 (5) See 19 J. R. 244. (6) Comp. L. 1205. 
 
 (7) Rule 23. (8) Id ; Laws of 1859, p. 150. 
 
 (9) Comp. L. 1205. 
 
302 INCIDENTAL PROCEEDINGS. 
 
 § 916. Witnesses may be subpoenaed by both parties, and 
 compelled to attend and testify upon the assessment, in the same 
 manner as if it were a trial of an issue of fact. The witnesses must 
 be competent, and regularly sworn. All that the plaintiff is called 
 upon to prove, or that the defendant is permitted to controvert, is 
 the amount of damages ;(1) the cause of action being impliedly 
 admitted by the default.(2) In an action on contract, the defend-, 
 ant will not be allowed to give evidence of fraud, (3) or of any 
 other matter which would render the contract void,(4) or contra- 
 dict it ;(5) for, by allowing judgment to go by default, he has ad- 
 mitted the validity of the contract. Nor will the defendant be 
 allowed to give in evidence, in mitigation of damages, any matter 
 which might have been made the subject of a set-off.(6) And in 
 an action for false imprisonment, evidence denying the cause of 
 action, or tending to show that no right of action exists, is inad- 
 missible in mitigation of damages.(7) 
 
 § 917. The plaintiff is entitled to nominal damages, at least, 
 whether he produces any evidence or not ;(8) and an inquest 
 which finds for the defendant, will be set aside for that cause 
 alone.(9) In an action for an assault and battery, a default ad- 
 mits an assault and battery, but not any circumstances laid in the 
 declaration, by way of aggravation, and the plaintiff- must prove 
 that the injury was committed by the defendant, and the circum- 
 stances tending to show the amount of damages sustained, other- 
 wise he will be entitled to nominal damages only.(lO) 
 
 § 918. A motion to set aside the assessment for irregularity, 
 or on the merits, ought to be made within the time limited for 
 moving for a new trial, and in the same manner ; and the grounds 
 on which such a motion may be made, are similar to those of a 
 motion to set aside a verdict or judgment, and for a new trial.(ll) 
 The motion may also be made by the plaintiff, and the court will 
 set aside the inquisition, on his motion, when improper evidence 
 was admitted on the part of the defendant, as if the defendant was 
 allowed to introdnce evidence in denial of the cause of action,(12) 
 
 (I) 1 B. & P. 368. (2) 1 Stra. 612 ; DougL 315. 
 
 (3) 1 Stra. 612. (4) 2 Hayw. 34 ; 2 Arch. Pr. 38. 
 
 (5) 2 Dowl. P. 0. 629. (6) 14 East, 578. 
 
 (7) 10 Wendell, 311. (8) 3 Cowen, 298. 
 
 (9) 2 Bag. 406. (10) 5 Wendell, 134. 
 
 (II) 1 Burr. Pr. 319. (12) 1 B. & P. 368. 
 
PKOCEEDINGS ON DEFAULT. 303 
 
 if it appear that injustice has been done, but not otherwise.{l) 
 But the court will not disturb the verdict of the jury on account 
 of the small ness of the damages alone, unless in the case of a clear 
 mistake ;(2) or when there has been contrivance on the part of the 
 defendant ;(3) or surprise on the plaintiff.(4) The defendant may 
 also move in arrest of judgment within the time limited by rule 82. 
 
 § 919. Rule for ap2oearance and* default in not pleading, when 
 suit is commenced by declaration. 
 
 ^■^■) [Date.-] 
 
 g^p I E. F., Attorney. 
 
 On reading and filing an affidavit of due personal service 
 upon the defendant of a copy of the declaration fi(ed pursuant to 
 statute, in this cause, and a notice of rule to plead indorsed thereon, 
 [or, " on reading and filing the certificate of L. W., Eiquire, sheriff of 
 
 the county of , showing due personal service of a copy" c&c.,] and 
 
 on motion of E. F., attorney for plaintiff, Ordered, that the defend- 
 ant's appearance, and his default in not pleading, be, and the same 
 is hereby, entered. 
 
 § 920. Rule for default for not pleading, when suit is commenced 
 hy writ, and defendant has appeared. 
 
 ^- ^- ) IDate.] 
 
 ^^^_ f E. F., Attorney. 
 
 On reading and filing an affidavit of due service of a copy 
 of the declaration filed in this cause, and on motion of E. F., attor- 
 ney' for plaintiff. Ordered, that the default of the defendant in not 
 pleading, be, and the same is hereby, entered. 
 
 § 921. Ruh making default absolute, and for final judgment in 
 debt on bond or judgment. 
 
 ^- ^- 1 [Date.] 
 
 ^^^^_ f E. F., Attorney. 
 
 The default of the said defendant in not pleading, [or, " the 
 appearance of Hie said defendant, and his default in not pleading,"] in 
 this cause having been duly entered, and — days in term having 
 elapsed since the entry thereof, on motion of E. F., attorney for 
 plaintiff, Ordered, that said default be, and the same is hereby, 
 made absolute, and that the said plaintiff have final judgment 
 thereon. 
 
 (1) 3 Johns. Cas. 80. (2) 19 J. R. 244; 3 B. & C. 633. 
 
 (3) 2 Salk. 647. (4) 1 Stra. 615. 
 
304 INCIDENTAL PROCEEDINGS. 
 
 § 922. Rule for interlocutory judgment on default in not plead- 
 ing, and for reference to assess damages. 
 
 \^^-l [Date.] 
 
 Q ^ \ B. F., Attorney. 
 
 The default of the said defendant in not pleading, [or, " the 
 appearance of the said defendant, and his default in not pleading ,"] in 
 this cause, having been duly entered, and — days in term having 
 elapsed since the entry thereof, on motion of B. ¥., attorney for 
 plaintiff. Ordered, that the said default be, and the same is hereby, 
 made absolute ; that interlocutory judgment be, and the same is 
 hereby, entered ; and that plaintiff's damages be assessed by the 
 clerk of this court, [or " by the court," or "by a jury."'] 
 
 % 923. Notice of assessment of damages by clerh. 
 \7iile of court and cause.] 
 
 Sir : — Please to take notice that the plaintiff's damages in 
 this cause will be assessed by C. V. B., Esquire, clerk of this court, 
 
 at his office in said county of , [or " at the courtroom in , 
 
 in saidcounty of ,"] on the — day of next, [or "instant,"] 
 
 at ten o'clock in the forenoon of that day. [Dated and signed, &c.] 
 
 § 924. Notice of assessment of damages in the circuit court. 
 
 [_Tiile of court and cause.] 
 
 Sir: — Please to take notice that the plaintiff's damages in 
 this cause will be assessed by this court, [or, "by a jury in this 
 
 court,"] at the court house in , in said county of , on, 
 
 &c., [as in last form.] 
 
 § 925. Brief for assessment of damages by clerk. 
 
 [ Title of court and cause.] 
 
 Brief for assessment. Note made by C. D., dated 
 May 1, 1850, payable one year from date, . . $500 00 
 Interest on same, three years and nine months, at 10 per 
 
 cent., 187 50 
 
 Fees of protest, 1 00 
 
 To C. V. B., Esquire, Clerk. 
 
 $688 50 
 B. F., Plaintiff's Attorney. 
 
 § 926. Report ofchrh on assessment of damages. 
 \Title?i 
 
 I, having examined and ascertained, do report that the 
 
 plaintiff in this cause ought to recover against the defendant 
 
 dollars and — cents damages, by me assessed, besides costs. I 
 further certify and report, that the original promissory note, de- 
 
PROCEEDINGS ON DEFAULT. 305 
 
 clared on in this cause, [or " a copy of which was filed and served 
 with the declaration in this cause,^''] being alleged to have been lost, 
 I thereupon, at the request of E. F., attorney for the plaintiff, ex- 
 amined the said plaintiff on oath touching the loss of the said instru- 
 ment, and that on being duly sworn by me and examined, he tes- 
 tified as follows, to wit : [Here set forth his testimony.] And I 
 further certify and report that 0. M. was then called as a witness 
 on behalf of the plaintiff, who, being by me duly sworn, testified 
 as follows : [State his testimony, and that of any other witnesses 
 sworn and examined to prove the contents of the lost instrument] 
 Dated, &c. 0. V. B., Clerk. 
 
 § 927. Verdict of a jury on assessment of damages. 
 
 A. B.| 
 
 vs. \ 
 CD.) 
 
 The default^ of the defendant in not pleading having been 
 duly entered in this cause, and the same having become absolute, 
 and interlocutory judgment having been thereupon entered, and it 
 having been referred to a jury to assess the plaintiff's damages, 
 
 thereupon come a jury, to wit, [ ,] 
 
 good an^ lawful men, who, being duly chosen, tried and sworn well 
 and truly to assess the damages which the said plaintiff hath sus- 
 tained on occasion of the matters in the said declaration mentioned 
 and set forth, after hearing the proofs and allegations of the parties, 
 and arguments of counsel, [or " after hearing the.proofs and allegations 
 on the part of the pkdntiff, {no one appearing on the part of the defend- 
 ant,y~\ and the charge of the court, retired from the bar under the 
 charge of 0. P., an oflicer of court duly sworn for that purpose, to 
 consider of their verdict to be given, and after being absent for a 
 time, return into court and say upon their oath, [or, ^^ without 
 leaving their seats, say upon their oath,"'] that the said plaintiff hath 
 
 sustained damages, on occasion of the premises, to the sum of 
 
 dollars and — cents, over and above his costs and charges by him 
 about his suit in this behalf expended. [In replevin, add as fol- 
 lows:] And the jurors aforesaid, upon their oath aforesaid, further 
 say that the goods and chattels in the said writ mentioned, were 
 worth, at the time of taking the same, according to their true 
 value, the sum of dollars. 
 
 § 928. Withdrawal of flea. 
 [Tith^i 
 
 The defendant, by G. H., his attorney, comes now here 
 freely into court, and withdraws his plea in this cause by him 
 heretofore pleaded. Dated, &c. 
 
 G. H., Defendant's Attorney.(l) 
 
 (1) See Rule 23. 
 
 20 
 
306 INCIDENTAL PROCEEDINGS. 
 
 § 929. Notice of withdrawal of plea. 
 
 [Title.] 
 
 Sir: — Please to take notice tliat tlie defendant has with- 
 drawn his plea in this cause by him heretofore pleaded. Dated, &c. 
 
 Yours, &c., 
 
 G. H., Defendant's Attorney. 
 To E. F., Esq., Plaintiff's Attorney. 
 
 § 930. Rule for interlocutory judgment on withdrawal of plea. 
 A. B. 
 
 vs. 
 
 [Date.] 
 
 ^"^'^ I E. P., Attorney. 
 
 The defendant having withdrawn his plea by him in this 
 cause heretofore pleaded, on motion of E. P., attorney for plaintiff, 
 Ordered, interlocutory judgment, and that the damages of the plain- 
 tiff be assessed by the clerk of this court, [or " by the court, or " by 
 ajury."] 
 
 § 931. Rule for judgment in debt on bond, or on judgment, upon 
 withdrawal ofpha. 
 
 ^- ^- ) [Date.] 
 
 ^^■jy 1 E. P., Attorney. 
 
 The defendant having withdrawn his plea by him in this 
 cause heretofore pleaded, on motion of E. P., attorney for plaintiff, 
 Ordered, judgment final in favor of plaintiff against defendant. 
 
 § 932. Assessment by cleric on withdrawal of plea. 
 [Title.] 
 
 The defendant in this cause having withdrawn his plea 
 therein, and I, having examined and ascertained, do report that 
 the plaintiff in this cause ought to recover against the d!efendant 
 
 dollars and cents, by me assessed, besides costs. [In 
 
 case proofs are taken by the clerk, they are to be embraced in the 
 report, as in other cases.] 
 
 § 933. Verdict of jury on assessment of damages, after withdrawal ■ 
 of plea. 
 
 [Title.] 
 
 The defendant having withdrawn his plea by him in this 
 cause heretofore pleaded, and interlocutory jud!gment having been 
 thereupon entered, and it having been referred to a jury, &c., [as 
 in § 927 to the end.] 
 
 § 934. If the defendant's default have been irregularly en- 
 tered, the court, on motion, will set it aside, as when it is entered 
 
SETTING ASIDE DEFAULT. 807 
 
 before tbe time allowed for pleading has expired, (1) or after a plea 
 has been served, or without service of a declaration, or without 
 filing an affidavit of service, when such proceedings are neces- 
 sary.(2) If the default itself be regular, but the subsequent pro- 
 ceedings irregular, as if no rule for interlocutory judgment has 
 been entered ; or no notice, or insufficient notice of assessment, 
 when necessary, has been given ; or if judgment be irregularly 
 entered, such irregular proceedings will be set aside, but the de- 
 fault allowed to stand.(3) But, as in other cases of irregularity, the 
 motion must be made at the earliest opportunity after the irregu- 
 larity has taken place, and it must appear that the defendant has 
 done no act amounting to a waiver of such irregularity, or he will 
 be too late.(4) On the motion to set aside proceedings on this ground, 
 no showing of merits is required.(6) 
 
 § 935. Tf the defendant's default has been regularly entered 
 through inadvertence on his part, and he have a good defence to 
 the action on ilie merits, as soon as the fact is discovered he should 
 make an affidavit of merits and serve it on the plaintiff's attorney, 
 pay or tender the costs of the default, and plead issuably to the 
 declaration.(6) If the plaintiffs attorney will thereupon waive the 
 default and accept a plea, no motion is necessary ; but, if he refuse 
 to do so, the defendant must then apply to the court by motion, 
 within the first four days of the term next after the default was 
 entered,{7) The motion ought to be "based upon an, affidavit of 
 mierits, and showing also an excuse for suffering the default; and 
 unless such excuse be shown, the court will not set it aside, even 
 on terms.(8) But a regular default has been opened, when it was 
 suffered by the neglect of the attorney, who was insolvent.(9) 
 
 § 936- The court will not set aside a judgment regularly taken 
 by default, in order to give the defendant the advantage of any 
 nicety of pl€ading,(10) or to plead a special plea of questionabje 
 matter, designed to draw the plaintiff to a demurrer.(ll) But a 
 condition, that the defendant should not plead the statute of limi- 
 tations, on setting aside a default, has been refused j(12) and a 
 motion to set aside a regular judgment has been refused, when it 
 appeared that the defendant refused to accede to equitable terms 
 
 (1) 3 Hill, 444. (2) 2 Arch. Pr, 29. (3) Id. ; 1 Gaines' R. 6, 120. 
 
 (4) 1 How, 63, 142. (5) 3 Cainea' E. 96. (6) Eule 22. 
 
 (7) Rule 27. (8) 6 "Wend. 517; 5 Hill, 508; 1 How. 145. 
 
 (9) 6 Wend. 514. (10) 2 Stra. 1242. (11) 2 Salk. 518. 
 
 (12) 10 Wend. 695. 
 
308 INCIDENTAL PROCEEDINGS. 
 
 of compromise.(l) When a regular default is set aside, it is gen- 
 erally on terms that the defendant pay the costs,(2) plead issuably 
 insianter,(^) and proceed to trial at the same term, at the option of 
 the plaintiff, unless good cause for a continuance be shown. If 
 the defendant wishes time to plead, he must see that time is given 
 him by the rule, otherwise he must plead insianter, or his default 
 may be again eutered.(4) 
 
 § 937. An inquest of damages has been set aside, though regu- 
 laiiy taken, on account of the sudden illness of the defendant's 
 attorney, which prevented him from attending the execution of 
 the writ of inquiry .(5) The motion to set aside an assessment of 
 damages, whether on the merits, or for irregularity, is made in the 
 same manner as other special motions, and, in general, will be 
 governed by the same rules which apply to motions for new 
 trials. 
 
 § 938. The default of the plaintiff in not declaring, joining in 
 demurrer, or replying, may be entered by the defendant, and upon 
 being made absolute he will be entitled to judgment against the 
 plaintiff for his costs. If the default be entered for not joining in 
 demurrer, or replying, an affidavit of service of the demurrer, or 
 pleading to be replied to, should first be filed. 
 
 § 939. ■ Affidavit to set aside regular default. 
 [Title.] 
 
 County of , ss : G-. H., attorney for tlie above 
 
 named defendant, being duly sworn, says, that a copy of the dec- 
 laration filed in this cause was served upon this deponent, by leav- 
 ing the same in his office during this deponent's absence therefrom ; 
 that the same was in some way mislaid, and did not come to the 
 notice of this deponent until the — day of ; that this depo- 
 nent immediately thereupon, and on the same day last mentioned, 
 filed the plea, a copy whereof is hereto annexed, in the office of 
 the clerk of this court, and delivered the annexed copy to E. F^ 
 Esquire, the attorney for the plaintiff; but that the said E. F. 
 refused to receive the said plea, and informed this deponent that 
 the said defendant's default for not pleading had been entered on 
 the preceding day, which was the first knowledge this deponent 
 had4hatsuch default had been entered. And this deponent fur- 
 ther says, that on the - — day of last mentioned, he again ten- 
 dered to the said E. F. the said plea, together with the annexed 
 
 (1) 4 Taunt. 885. (2) 1 S»lk. 402. (3) 1 Burr. 68. 
 
 (4) 4 Hill, 52. (5) 2 Gaines' E. 381. 
 
SETTING ASIDE DEFAULT. 809 
 
 affiiavit of merits, and at the same time offered to pay the said E. 
 F. the costs of the said default, [and also offered to accept short 
 notice of trial for the then next succeeding term of this court, or to 
 stipulate to waive notice of trial,] if the said E. F. would consent 
 to waive the said default; but the said E. F. wholly declined to 
 waive the b.ime, and refused to accept the said plea. G. H. 
 
 Sworn, &c. 
 
 § 940. Affidavit of merits. 
 
 iruie.1 
 
 County of ^ ss: C. D., the defendant in the above 
 
 entitled cause, being duly sworn, says, that he has fully and fairly 
 stated the case in this cause to 0. D. R., Esquire, his counsel in 
 said cause, and that he has a good and substantial defence to the 
 said action, upon the merits thereof, as he is advised by his said 
 counsel after such statement made as aforesaid, and verily believes 
 to be true. C. D. 
 
 Sworn, &C. 
 
 § 941. Buh to set aside default for irregularity. 
 
 rmyj -1 B. F., Attorney for Plaintiff 
 *- ■-' G, H., Attorney for Defendant 
 
 On reading and filing affidavits in this cause, and on motion 
 of G. H., of counsel for defendant, after hearing counsel in oppo- 
 sition thereto, Ordered, that the default entered in this cause, and 
 all subsequent proceedings therein be, and the same are hereby set 
 aside for irregularity, with • dollars costs, [and that the defend- 
 ant have days to plead.] 
 
 § 942. Sule to set aside a regular default 
 
 rrp-.j 1 E. F., Attorney for Plaintiff 
 
 *- ■■' G. H., Attorney for Defendant 
 
 On reading and filing affidavits in this cause, andon motion 
 of Mr. EL, of counsel for the defendant, and after hearing counsel 
 in opposition thereto, Ordered, that the default heretofore entered 
 in this cause be, and the same is hereby set aside, on payment ot 
 
 dollars costs, and that the said defendant have days to 
 
 plead to the declaration in said cause. 
 
 § 943. Rule for drfault in net joining in demurrer. 
 
 imie.] t^j^i, Attorney. 
 
 On reading and filing an afiidavit of due service of the de- 
 murrer filed in this cause, and on motion of Mr. T., attorney for 
 the plaintiff, [or " defendant"] Ordered, that the plaintiff's [or " de- 
 fendants"] default in not joining in demurrer be, and the same is 
 hereby entered. 
 
SIO I]SrCII>ENTAL PROCEEDINGS. 
 
 § 944. Rule making default absolute, and for interlocutor'!/ or 
 final judgment for not joining in demurrer. 
 
 [The rule for judgment for the plaintifi^ on making the de- 
 fault absolute in this case, is the same as on a defe,ult for not plead- 
 ing, except that, instead of the words "'in not pleading " the words 
 " in not joining in demurrer," are used. On making the default 
 against the plaintiff absolute, the defendant enters a rule for final 
 judgment for costs.] 
 
 § 945. A cognovit is frequently given by the defendant, in- 
 stead of suffering judgment by default, when the parties agree upon 
 the amount for wbieh judgment ought to be rendered. After de- 
 claration, if the defendant agree to confess the action, the plaintiff's 
 attorney draws up a cognovit^ and sends it to the defendant, or his 
 attorney, to be signed. This is a written confession of the action, 
 stating the amotmt of the debt or damages, and the terms, if any, 
 upon which it is given — which are usually a stay of execution for 
 a specified time. It is generally given for the whole cause of action, 
 but may be given for a part only.(l) In the case of a cognovit for 
 part only, the plaintiff can enter judgment only for the part con- 
 fessed, and must proceed in the action for the residue ^(2) and judg- 
 ment must always be entered according to the terms of the eognovit^ 
 otherwise the court will, on motion, set it aside.(3) 
 
 § 94G. The cognovit is usually signed by the attorney, if one has 
 been employed to appear for the defendant, and when an attorney 
 is employed by one defendant to appear for several, and is recog- 
 nized as attorney for all the defendants, a cognovit given by him as 
 attorney for all the defendants, will bind all of them.(4) And in 
 a suit by declaration against joint debtors, if the declaration is served 
 on one only of the defendants, he may give a cognovit in the name 
 of both, so as to bind their joint property .(5) When one of several 
 parties signs the cognovit after the others, it has been held to relate 
 back to the time when the others signed it.(6) If the cognovit is 
 for a certain sum, as it usually is, judgment may be entered on any 
 day in term after filing it, for the amount confessed, unless it con- 
 tain some condition to the contrary ; but if it only confess the action 
 without specifying the amount, the plaintiff m\ist proceed to have 
 his damages assessed as in case of a default. In the latter case, on 
 filing the cognovit, the plaintiff enters a rule for interlocutory judg- 
 
 (1) 1 Sellon's Pr. 373 ; I Tidd's Pr. 659, 560. ^2) Id. 
 
 (3) 2 W. Bl. 943 ; 2 Arch. Pr. 16. (4) 1 How. S. T. R. 128. 
 
 (&) 10 Wend. 630. (6) 1 DowL P. C. 300. 
 
COGNOVIT. 311 
 
 ment, and for assessment of damages, as on the withdrawal of a 
 plea. It has been held that if one of several plaintiffs die after 
 cognovit, but before judgment is entered thereon, judgment may 
 be entered in the name of the original parties, at any time within 
 two terms after giving the cognovit.{l) 
 
 § 947. K the cognovit has been given unconditionally, execu- 
 tion may be issued at once, on perfecting the judgment. But if it 
 contain a stipulation for a stay of execution, its terms must be 
 strictly complied with, or the execution will be set aside. (2) 
 
 § 948. Cognovit in assumpsit. 
 [Title.] 
 
 And the said C. D., the defendant in this suit, by Gr. H., his 
 attorney, comes and defends the wrong and injury, when, &c., and 
 says that he cannot deny the action of the said plaintiff; nor but 
 that he, the said defendant, did undertake and promise, in manner 
 and form as the said plaintiff hath * in his declaration in this cause 
 complained against him ; nor but that the said plaintiff hath sus- 
 tained damages, on occasion of the not performing the said several 
 promises and undertakings in the said declaration mentioned, over 
 and above his costs and charges by him about his suit in this be- 
 half expended, to dollars and cents. Dated, &c. 
 
 G. H., Defendant's Attorney. 
 
 § 949. The like as to part of the cause of action. 
 
 [As in last form to the *, and then as follows:] In tlie 
 second [or '^ first," or other count or counts] of his declaration in 
 this cause complained against him ; nor but that the said plaintiff 
 hath sustained damages on occasion of the not performing of the 
 
 said several promises and undertakings in the said count [or 
 
 " counts "] of the said declaration mentioned, over and above his 
 costs, &c., [as in the last form to the end; or add, at the end, after 
 
 the sum confessed, "parcel of the said sum of (the damages 
 
 claimed by the plaintiff) by the said declaration demanded."] 
 
 § 950. The like, with a condition. 
 
 [Add at the end of the ordinary form the following :] The 
 foregoing cognovit is given on condition that judgment shall not 
 be entered thereon [or, " that execution shall not be issued on the 
 
 judgment to he entered thereon,"] before the — day of next, [or 
 
 otherwise, as the terms may be.] 
 
 § 951. Cognovit in debt. 
 [Title.] 
 
 And the said 0. D., defendant, by Gr. H., his attorney, 
 comes and defends the wrong and injury, when, &c., and says that 
 
 (1) 18 WendeU, 600. (2) 2 W. Bl. 943. 
 
312 INCIDENTAL PROCEEDINGS. 
 
 he cannot deny the action of the said plaintiff; nor but the said 
 writing obligatory in the said plaintiff's declaration set forth, is the 
 deed of him the said defendant ; nor but that he owes to the said 
 
 plaintiff the sum of dollars in the said declaration demanded, 
 
 in manner and form as the said plaintiff hath therein complained 
 against him. [If it be for part of the cause of action, it may be 
 varied thus :] And says that he cannot deny the action of the 
 said plaintiff; nor but that he, the said defendant, does OAve to the 
 
 said plaintiff the sum of dollars, parcel of the said sum of 
 
 dollars in the said declaration demanded. 
 
 Gr. H., Defendant's Attorney; 
 
 § 952. The payment of money into court is a practice which is 
 said to have been introduced to avoid the hazard and difficulty of 
 pleading a tender.(l) It is not, however, one of very frequent 
 occurrence in our courts ; but cases may arise in which it will be 
 advisable for the defendant to resort to this means of avoiding un- 
 necessary costs. It is therefore proper briefly to consider the class 
 of cases in which it is allowable, and the mode of procedure proper 
 to be pursued. And it is the general rule that when the sum de- 
 manded is a sum certain, or capable of being ascertained by mere 
 computation, without leaving any other sort of discretion to be 
 exercised by the court or a jury, the defendant is at liberty to pay 
 money into court.(2) 
 
 § 958. Thus, it is allowed in assumpsit when the breach is the 
 non payment of money, (3) but not otherwise. (4) It is allowed in 
 debt on simple contract,(5) in debt for rent,(6) in debt on bond or 
 on a policy of insurance,(7) and in covenant when the breach as- 
 signed is the non-payment of money.(8) In trespass, case, trover, 
 and replevin, in general, the defendant cannot pay money into 
 court.(9) When one of the counts in the declaration is for a mere 
 money demand, the amount of which can be ascertained by mere 
 computation, the defendant may pay money into court upon that 
 count.(lO) So, in covenant, if several breaches be assigned,\ and one 
 of them be the non-payment of money, the defendant may pay 
 money into court upon that breach ;(11) and he may, in such case, 
 plead to the other counts or breaches, but it is said he cannot demur 
 to such other counts.(12) 
 
 (1) 1 Tidd's Pr. 669, and cases cited. (2) 1 Burr. E. 1120. (3) 2 Salk. 596. 
 
 (4) 3 B. & P. 15, (5) 1 H. Bl. 249. (6) 2 Salk. 596. 
 
 (I) 1 J. E. 192; 2 Arch. Pr. 199. (8) 2 Burr. R. 1120; Barnes, 284. 
 (9) 2 Arch. Pr. 200. (10) 2 Arch. Pr. 200; 4 T. R. 579. 
 
 (II) 2 W. Bl. 83T ; 2 Burr. R. 1120. (12) 2 Arch. Pr. 200. 
 
PAYING MONEY INTO COURT. 313 
 
 § 954. Money may be paid into court at any time before plea 
 pleaded, as a matter of course ; or after plea, on obtaining a judge^s 
 order for that purpose.(l) If before plea, a rule should be entered 
 for that purpose in the book of common rules.(2) The money 
 must then be paid to the clerk, who wUl give a receipt for it. The 
 defendant should be careful to pay in enough to satisfy the plaim 
 he admits, with interest, when recoverable, up to the time of the 
 payment.(3) If the money be paid in as to part only of the de- 
 claration, as is most usual, notice of the payment must be given to 
 the plaintiff's attorney, and a plea be filed and served in the usual 
 manner as to the residue. At the trial, the clerk's receipt, and a 
 certified copy of the rule must be produced. If the defendant 
 wish to pay money into court after pleading, he must get a judge's 
 order for that purpose and serve it on the plaintiff's attorney, and 
 pay the money as above indicated. If there has been no delay, 
 leave will be granted the defendant to withdraw the general issue, ' 
 in order to bring money into court, and replead it.(4) And he has 
 even been allowed to bring it in after the granting of a new 
 trial.(5) 
 
 § 955. Under the former mode of pleading, when a tender be- 
 fore suit brought was pleaded, the money must be paid into court, 
 and notice of the payment given with the plea ;(6) otherwise the 
 plaintiff might treat the plea as a nulhty and proceed to judg- 
 ment.(7) But if, without the money being paid into court, the 
 plaintiff accepted a plea of tender and replied to it, he was deemed 
 to have waived the irregularit3\(8) According to our present prac- 
 tice, the money tendered should be paid into court, and notice 
 thereof given under the plea of the general issue. 
 
 § 956. As to the effect of paying money into court, it has been 
 held that if it be paid in on the whole of a special declaration, or 
 on the special counts, the defendant impliedly acknowledges that 
 the contract, or other cause of action, is as described in the declar- 
 ation ;(9) and that the only remaining question to be determined 
 is the amount of damages. Therefore, if money be paid in in an 
 action of covenant, the execution of the deed is admitted ;(10) and 
 
 (1) 2 Arnh. Pr. 201 ; 1 J. R. 149. (2) 3 Cowen, 331 ; I "Wend. 103. 
 
 (3) 2 B. & Adol. V05. (4) 2 Stra. 12'!1. 
 
 (5) 1 Tidd's Pr. 622. (6) 2 Hill, 538. 
 
 (T) Id. ; 1 Stra. 638 ; 1 Arch. Pr. 13T. (8) 2 Hffl, 638. 
 
 (9) 2 Arch. Pr. 202 ; 7 J. R. 315. (10) 2 Oampb. 35Y. 
 
314 INCIDENTAL PEOCEEDINGS. 
 
 if paid in on a count upon a guarantee, it admits an agreement 
 signed according to the statute of frauds ;(1) and if paid in on an 
 entire contract, it admits the contract, though it would be other- 
 wise if the contract were not entire.(2) So, where two breaches are 
 assigned in one count, payment into court on one of the breaches is 
 an admission of the whole contract, so as to enable the plaintiff to 
 recover on the'second breach, without proof of the contract.(8) In 
 an action for goods sold by sample at a stipulated price, payment of 
 money into court precludes the defendant from insisting on the 
 inferiority of the goods ;(4) and in an action for goods sold and de- 
 livered, it admits a contract, though the goods were tortiously con- 
 verted by the defendant.(5) 
 
 § 957. But it is not such an admission of the contract as pre- 
 cludes the defendant from taking an objection to the legality of the 
 "contract, in order to prevent the plaintiff from recovering beyond 
 the sum paid in ;(6) and if the declaration contain a legal and an 
 illegal demand, the money paid in will be applied to the legal de- 
 mand only. (7) So, in an action on a policy of insurance, the court, 
 under particular circumstances, allowed the defendant to give evi- 
 dence of fraud, notwithstanding the payment of money into court 
 by him. (8) By paying money into court on a common indebitatus 
 count, the defendant, in ordinary cases, admits no more than that 
 the sum paid in is due to the plaintiff.(9) And paying money into 
 court on several common counts, one only of which is applicable 
 to the plaintiff's demand, admits a cause of action on that count 
 only.(lO) It is, however, a conclusive admission of the plaintiff's 
 right to sue,(ll) and of his right to the character in which he 
 sues.(12) It also precludes the objection that another should have 
 been joined as plaintiff.(13) But it is no admission of the plaintiff's 
 right of action beyond the sum paid into court;(14) and conse- 
 quently does not deprive the defendant of the benefit of the stat- 
 ute of limitations as to the residue.(15) 
 
 § 958. According to the terms of the rule authorizing the pay- 
 ment of money into court, the sum paid in must be considered as 
 
 (1) Peake, 15. (2) 4 B. & A. 673. 
 
 (3) 1 B. & 0. 3. (4) 2 Stark. E. 103. 
 
 (5) 2 B. & P. 550. (6) 1 T. R. 464. 
 
 (I) 1 B. & P. 264. (8) 3 B. & P. 556 ; t J. E. 315. 
 (9) 5 Bing. 28. (10) 9 Moore, 724; 2 Bing. 377. 
 
 (II) 9 Eap. E. 19. (12) 2 Campb. 441. 
 (13) 1 Moody & E. 250. (14) 2 WendeU, 431. 
 (15) 4 Dowl. & E. 632. 
 
PAYING MONET INTO COURT. 315 
 
 stricken out of the declaration. It is a defence 'pro tanto, and unless 
 the plaintiff prove a sum beyond that which is paid in, there will 
 be a verdict or finding for the defendant.(l) 
 
 § 959. After paying money into court, the defendant can never 
 take it out, even though paid in by mistake.(2) It belongs to the 
 plaintiff, though a verdict be found for the defendant.(3) Nor does 
 the subsequent death of the plaintiff, and the revival of the action 
 against his administrator, or the commencement of a new suit, 
 change the effect of the payment.(4) 
 
 § 960. When the defendant has paid money into court, the 
 plaintiff may, in all cases, take it out, and either accept it in satis- 
 faction of the debt, or may proceed in the action, at his option.(5) 
 If he accept the money paid in, in satisfaction of his debt, he is 
 entitled to costs up to the time of paying it in. But if the money 
 was paid in on one count only, he is entitled to the costs of that 
 count only. (6) If the defendant has paid money into court in a 
 case where he is not allowed to do so, the plaintiff, by taking it 
 out, waives the irregularity, and the effect of it is then the same as 
 if it had been paid in on a mere money demand.(7) On taking 
 the money out of court, if the plaintiff is willing to accept it in 
 satisfaction of his demand, he should at once make out his costs 
 and have them taxed on two days' notice ; and if the defendant dc* 
 not pay them, he may proceed immediately in the action ;(8) and 
 at the trial the plaintiff, on proof of the rule, will be entitled to 
 nominal damages, and to the costs of the action.(9) 
 
 § 961. If the plaintiff elect to proceed after money has been paid 
 in, he may still, at any time before trial, accept the sum so paid in, 
 in satisfaction of his debt ; and will be entitled to costs to the time 
 it was paid in, on allowing the defendant his subsequent costs.(lO) 
 In such case the plaintiff may move the court for a rule to show 
 cause why he should not have his costs up to the time of paying 
 the money in, and the defendant his costs from that time to the 
 time of the application, and why the defendant should not pay the 
 balance to the plaintiff.(ll) If the plaintiff proceed to trial, and 
 do not prove a debt or damages beyond the amount paid in, on 
 
 (I) 3 Cowen, 336 ; 1 'Wendell, 191. (2) 2 B. & P. 392 ; 2 T.' E. 645 ; Barnes, 279. 
 (3) 2 Stra. 1027. (4) 1 ■Wendell, 191; Barnes, 297. 
 
 (5) 1 Wendell, 191. (6) 4 T. E. 579; 2 Taunt. 266. 
 
 (7) 1 T. E. 710. (8) 2 Stra. 1220; 2 Arch. Pr. 204. 
 
 (9) 1 Oampb. 558, note. (10) 1 T. R. 629; -Willes, 191; 1 Tidd's Pr. 627 
 
 (II) 2 Arch. Pr. 203. See Aroh. N. Pr. 498, 707. 
 
316 
 
 INCIDENTAL PROCEEDINGS. 
 
 production of the rule, lie will have a verdict against him ;(1) and 
 be liable to costs as in other cases.(2) But if more appears to be 
 due him, he will have a verdict for the overplus, and recover his 
 costs.(3) If money be paid in on any one count which may be 
 applicable to the plaintiff's demand, and the plaintiff have no fur- 
 ther demand, he win proceed at his peril of costs on the other 
 counts, although they may also be applicable to his demand.(4) 
 
 Rule on 'paying money into court. 
 
 IBatR.] 
 G-. H., Attorney. 
 
 On motion of G. H. attorney for the defendant, it is ordered 
 
 that the defendant have leave to bring into court the sum of , 
 
 admitted by him to be due the plaintiff in this cause ; and that 
 thereupon (unless the said plaintiff shall accept thereof, with costs 
 to be taxed, in full discharge of this action,) the said sum shall be 
 struck out of the said plaintiff's declaration in this cause, and the 
 same shall be paid out of court to the said plaintiff or his attorney ; 
 and that, -on the trial of the issue [to be joined] in this cause, the 
 said plaintiff shall not be permitted to give evidence for the sum 
 so brought into court. 
 
 § 963. Notice of paying money into court. 
 
 [Tith.] 
 
 Sir: — Please to take notice that the sum of ■ has been 
 
 duly paid into court in this cause ; and that a rule was thereupon 
 entered, of which the annexed is a copy. [Annex copy of rule.] 
 [Dated, signed and directed, in the usual manner.] 
 
 § 964. The plaintiff may at any time discontinue his suit, by 
 entering a rule for that purpose in the common rule book, giving 
 notice thereof to the defendant or his attorney, and paying costs.(5) 
 If the costs are not paid, the rule to discontinue may be treated as 
 a nullity ;(6) and the defendant may proceed as if it had not been 
 entered.(7) On receiving notice of discontinuance, the defendant's 
 attorney should make up the costs and have them taxed, and there, 
 upon they must be paid without delay. If not paid, the defendant 
 , may, at his option, have judgment for his costs.(8) After thus 
 discontinuing his action, the plaintiff may commence a new action 
 for the same cause, and may again, when it is allowable, hold the 
 
 (1) 3 Cowen, 336. (2) 4 T. R. 10; 1 Tidd's Pr. 627. 
 
 (3) Arch. Pr. 203. (4) 1 B. & Aid. 889. (5) Rule 26. 
 
 (6) 10 J. R. 367. (7) 1 ■Wendell, 13 ; 7 id. 511. 
 
 (8) Comp. L. 1462. 
 
ENTERING NOLLE PROSEQUI. 317 
 
 defendant to bail,(l) provided the discoatinuance did not arise 
 from any gross laches on the part of the plaintiff, and the second 
 arrest do not appear to be vexatious.(2) 
 
 § 965. Rule to discontinue on payment of costs. 
 
 ^- ^- 1 [i?ate.l 
 
 ^■^■j^ f E. F., Attorney. 
 
 On motion of E. F., attorney for plaintiff, Ordered, that this 
 action be discontinued upon payment of defendant's costs to be 
 taxed, [or, if the costs have been paid, as follows :] The defend- 
 ant's costs in this suit having been fully paid, on motion of E. F., 
 attorney for plaintiff; Ordered, that this suit be, and the same hereby 
 is, discontinued. 
 
 § 966. Rule ly consent to discontinue luithout costs. 
 
 ^- ^- 1 [Date.] i ■ 
 
 Jfj^ j- E. F., Attorney. 
 
 On reading and filing consent in this cause, and on motion 
 of E. F., attorney for the plaintiff, Ordered, that this suit be, and 
 the same hereby is discontinued without costs. 
 
 § 967. If, in any action founded upon a contract, one of several 
 defendants be acquitted by reason of the plaintiff's discontinuing as 
 to him, such defendant will not be entitled to recover costs, unless 
 a certificate be given by the judge or court before whom the trial 
 is had, or the judgment rendered, and be entered in its minutes, 
 that such defendant was unreasonably and unnecessarily made a 
 party to such action. (3) A recital in the journal entryof the judg- 
 ment for costs in such case, that it appeared to the court that such 
 defendant was unreasonably and unnecessarily made a party to the 
 action, would probably be regarded as sufficient to entitle the de- 
 fendant to his costs, and would be the most simple and convenient 
 mode of certifying and entering the same in the minutes of the 
 court. 
 
 § 968. The cases in which a nolle prosequi may be properly 
 entered to particular counts or issues, have been noticed under the 
 head of " Pleadings." A nolle prosequi may be entered to the whole 
 declaration, but a discontinuance is the more usual proceeding, 
 when the plaintiff desires to put an end to the suit. In such cases 
 
 (1) 14 J. R. 347 ; 3 Wils. 821. (2) 5 M. & S. 93 ; 1 Arch. Pr. 53. 
 
 (3) Comp. L. 1463. 
 
318 INCIDENTAL PROCEEDINGS. 
 
 fke defendant is entitled to his judgment for costs, and the plaintiff 
 may commence a new action. The effect of a nolle prosequi to some 
 of several counts is, that the counts to which it is entered, are to 
 be considered as stricken out of the declaration, except so far as 
 they may be referred to in other counts for a particular date or 
 fact, and to that extent they are considered as incorporated in the 
 other counts.(l) And when special pleas were put in to a particu- 
 lar count, on which a nolle prosequi was afterwards entered, the 
 entry of such nolle prosequi was held to be no admission of the truth 
 of such pleas, but its effect was confined to striking that count, and 
 the pleadings applicable to it, from the record.(2) 
 
 § 969. In actions of tort, against several defendants, the plaintiff 
 may enter a nolle prosequi as to some, and proceed against the 
 others, at any time before final judgment, even though they all 
 join in the same plea, and be found jointly guilty. (3) And ,he 
 may do so when the defendants plead severally ;(4) or when they 
 plead jointly, and their plea is in its nature several.(5) But in 
 actions ex contractu against several defendants, where a joint con. 
 tract must be proved, if the defendants join in their pleas, the plain, 
 tiff cannot enter a nolle prosequi as to any one of them, without dis. 
 continuing the action as to all.(6) But if they sever in their pleas, 
 and one pleads some plea which goes to his personal discharge, and 
 not to the action of the writ, such as bankruptcy, infancy, or the 
 like,(7) the plaintiff may enter a nolle prosequi as to him,(8) and 
 proceed against the others.(9) 
 
 § 970. In an action under the statute, against the makers and 
 indorsers of a promissory note jointly, the plaintiff may enter a 
 nolle prosequi as to one class of defendants, and proceed against the 
 others ; but in such case he must pay costs to the former.(lO) But 
 when a suit against two defendants was intended to be commenced 
 by declaration, and a copy was served upon one of the defendants 
 only, it was held that the plaintiff could not enter a nolle prosequi 
 as to the other, and amend by converting his declaration into a 
 declaration against the defendant alone who had appeared, although 
 the suit was on a joint and several promissory note.(ll) In a joint 
 
 (I) 1 Wendell, 301. (2) 12 "Wendell, 110. 
 
 (3) 1 Ld. Raym. 597; 1 Wils. 306 ; Hob. f 0. 
 
 (4) Oro. Oar. 239, 243. (6) 1 Ld. Raym. 116 ; 2 Arch. Pr. 249. 
 
 (6) 1 Wils. 90 1 1 Saund. 201, note ; 2 Arch. Pr. 249 ; 20 J. R. 106 j 3 Cowen, 374. 
 
 (7) 20 J. E. 106 ; 5 id. 160 (8) 1 Saund. 2075. 
 (9) 5 Wend. 224, 228 ; 3 Cow. 374. (10) 18 Wendell, 547. 
 
 (II) 9 Wendell, 433. 
 
ENTERING NOLLE PEOSEQUI. 819 
 
 action against husband and wife, however, the plaintiff was; before 
 plea, allowed to enter a nolle prosequi as to the wife, and amend his 
 declaration on payment of costs. (1) 
 
 971. In some cases the plaintiff may enter a nolle prosequi as to 
 one or more defeodants on the trial, or after ^verdict. Thus, in a 
 suit against several on a joint contract, where one of them gives in 
 evidence on the trial a matter which is a bar as to him only, and 
 of which the others cannot take advantage, the plaintiff may enter 
 a nolle prosequi as to such defendant, and proceed against the 
 others.(2) So, if the jury, in an action of trespass against two, 
 sever the damages when they should not, the plaintiff may enter 
 & nolle prosequi as, to one of the defendants, and take judgment 
 against the other.(3) And where there were several counts in a 
 declaration, and, after interlocutory judgment, damages were sepa- 
 rately assessed upon each, and judgment was arrested upon the 
 first count, no objection being made to the others, the plaintiff was 
 allowed to enter a nolle prosequi on the first .count, and take judg- 
 ment on the others. (4) 
 
 § 972. When a nolle prosequi is entered as to the whole decla- 
 ration, the defendant is entitled to costs in the same manner as on 
 a discontinuance. (5) . If entered as to one of several defendants, 
 such defendant is entitled to costs, except in actions brought for 
 the recovery of land, or the possession thereof, or for nuisance, 
 ■waste, trespass, or trespass on the case for any non-feasance or mis. 
 feasance, when the judge shall certify that there was reasonable 
 cause for making such defendant a party.(6) And when it is en- 
 tered as to some of several counts, although the plaintiff have a 
 verdict on the others, he is not entitled to costs as to those 
 counts ;(7) and it seems he is not bound to pay costs to the defend- 
 ant as to such counts.(8) 
 
 § 973. Nolle prosequi to whole action. 
 [Title.] 
 
 And the said plaintiff, inasmuch as he canilot deny the 
 matters by the said defendant in this cause pleaded, by E. F., his 
 
 (1) 20 J. E. 126. (2) 6 J. E. 160. 
 
 (3) 3 VendeU, 350; 2 Arch. Pr. 249. (4) 3 J. E. 189. 
 
 (5) Comp. L. 1462, § 5. (6) Comp. L. 1462, 1463. 
 
 (1) 16 East, 129. (8) See 4 Hill, 538. 
 
320 INCIDENTAL PEOCEEDINGS. 
 
 attorney, now freely here in court confesses tliat he will not fur- 
 ther prosecute his suit against the said defendant. 
 
 E. F., Plaintiff's attorney. 
 
 § 974. Nolle prosequiio some of several counts. 
 
 [Title.] 
 
 And the said plaintiff, by E. F., his attorney, now here 
 freely confesses that he will not further pKOsecute his suit against 
 the said defendant, in respect of the promises and undertakings [or 
 premises"'] in the said [first and fourth] counts of the said declara- 
 tion mentioned. E. F., Plaintiff's attorney. 
 
 § 975. Nolle prosequi as to some of several defendants. 
 [Title.] 
 
 And the said plaintiff, by B. F., his attorney, freely here in 
 court confesses that he will not further prosecute his suit against 
 the said defendant E. M. E. F., Plaintiff's Attorney. 
 
 § 976. Nolle prosequi to an issue in fact, after decision of an issue 
 in law. 
 
 [Title.] 
 
 And hereupon the said plaintiff freely here in court con- 
 fesses that he will not further prosecute his suit against the said 
 defendant, in respect of the said issue therein joined between the 
 said parties, whereon the said parties have put themselves upon 
 the country. E. F., Plaintiff's attorney. 
 
 § 977. If the plaintiff enter a cassetur hilla, it is drawn up, 
 filed, and served on the defendant's attorney, who is thereupon 
 entitled to enter a judgment against the plaintiff for costs,(l) ex- 
 cept in a case of a plea of misnomer in abatement, in which no 
 costs are allowed to either party.(2) The plaintiff may thereupon 
 commence a new action. According to the English practice, the 
 plaintiff enters the judgment.(8) The form of a cassetur hilla may 
 be as follows : 
 
 [Title.] 
 
 And hereupon the said plaintiff, inasmuch as he cannot 
 deny the several matters by the said defendant in this cause 
 pleaded, prays judgment, and that the said bill, [or '^writ" or 
 " declaration,"] of him, the said plaintiff, may be quashed, to the 
 intent that he may exhibit a better bill [or " sue out a better writ," 
 or "file a better declaration,"] against the said defendant. 
 
 (1) 12 Wendell, 289. (2) Comp. L. 1464. (3) 1 Burr. Pr. 386. 
 
TENDER. 321 
 
 § 978. A tender may be made by the defendant, under the 
 statute, in any action for a sum certain, or which may be reduced 
 to a certainty by calculation, or for an involuntary trespass or 
 injury, in any state of the proceedings before trial in such causes^ 
 or assessment of damages, or before judgment rendered in an action 
 of debt. The defendant may tender to the plaintiff or his attor- 
 ney such sum as he conceives to be sufficient amends for the injury 
 done, or to pay the plaintiff's demand, together with the costs of 
 the action to the time of making the tender.(l) On the tender 
 being made, the plaintiff may accept or refuse it. If he is satisfied 
 with the amount tendered, he may receive it, and at once tender a 
 • stipulation for a discontinuance without costs, upon filing which , 
 the defendant will be entitled to have an order entered upon the 
 journal accordingly. 
 
 § 979. If the plaintiff is not satisfied with the amount tendered, 
 yet he may receive it ; and whether he receive or refuse it, he may 
 proceed in the action ; and if it appear on the trial of the cause, or 
 upon the assessment of the damages, that the amount tendered was 
 sufficient to pay the plaintiff's demand, or amends for the injury 
 done, and the costs to the time of the tender, the plaintiff will not 
 be entitled to any interest on his demand from the time of the ten. 
 der, or any costs incurred subsequent to that time, but will be lia- 
 ble to the defendant for the costs incurred by him subsequent to 
 the tender ; (2) but if the plaintiff recover six cents beyond the 
 amount tendered, he is entitled to his full costs.fS) And he is en- 
 titled to the sum tendered, as damages, though he may have refused 
 to accept it when tendered ; and he may, at the trial, elect to accept 
 the sum tendered, and if he do so, the defendant is bound to pay, 
 or a verdict must be rendered for the amount ; and in such case the 
 costs accrued after demand, and a reasonable time to pay, will be 
 deducted from the costs to which the defendant is entitled.(4) 
 
 § 980. If, on the other hand, the plaintiff accepts the tender, 
 and yet proceeds in the action, the sum so tendered and accepted 
 will be deducted from the whole amount of the recovery, and judg- 
 ment will be rendered only for the residue, and an entry of such 
 tender and acceptance must, in such case, be made on the record. 
 When a tender is made in an action for a trespass or other injury, 
 it will devolve upon the court to determine whether or not it is a 
 
 (1) Comp. L. 1225, 1226. See 19 WendeU, 304. 
 
 (2) Comp. L. 1226. (3) 13 "Wendell, 390. (4) Id. 
 
 21 
 
322 INCIDENTAL PROCEEDINGS. 
 
 case -within the statute, if the question arise, from the facts appear- 
 ing upon the trial.(l) 
 
 § 981. The defendant is allowed, in certain cases, to stay the 
 plaintiff's proceedings on payment of the debt and costs, and it is laid 
 down, as a general rule, that proceedings will be stayed on pay- 
 ment of the debt and costs, in all cases in which, at the common 
 law, the defendant may pay money into court.(2) Thus, in assump- 
 sit for a money demand, the defendant may have the proceedings 
 stayed on payment of the sum demanded, and costs.(3) So, it has 
 been held that if separate actions are brought against the acceptor, 
 drawer, and indorser of a bill of exchange, or the maker and 
 indorser of a promissory note, any of the parties, after judgment 
 obtained against him, may prevent execution being sued out there- 
 on, upon payment of the debt and costs ;(4) and that before judg- 
 ment, the drawer or indorser of a bill of exchange, or the indorser 
 of a promissory note, may stay proceedings in the action against 
 him, upon payment of the debt and costs in that action ; but that 
 the acceptor of a bill of exchange,- or the maker of a promissory 
 note, cannot obtain a stay of proceedings before judgment, except 
 upon payment, not only of the debt and costs in the action against 
 him, but also the costs in all the other actions against the indors- 
 ers, &c.(5) But now, J)y rule, the English practice has been 
 changed, and the acceptor of a bill of exchange, or maker of a 
 promissory note, may stay proceedings on payment of the debt and 
 (josts in the action against himself only.(6) 
 
 § 982. In debt on simple contract, and in debt for rent, the pro- 
 ceedings may be stayed on payment of the debt and costs.(7) Also, 
 in debt on bond, conditioned for the payment of a principal sum, 
 with interest, the court will stay the proceedings on payment of 
 the principal, interest and costs.(8) In such cases, according to the 
 English practice, a rule is obtained to show cause why it should 
 not be referred to the master (answering to o\ir clerk), to compute 
 the principal and interest due upon the bond, and why, upon pay- 
 ment thereof, with costs to be taxed, the proceedings in the action 
 should not be stayed.(9) So, in debt on bond conditioned for the 
 
 (1) See 13 "WendeU, 395. (2) 1 Burr. Pr. 409. 
 
 (3) See 5 Taunt. 840 ; 3 Chitt. E. 11. (4) See 1 Stra. 615. 
 
 (5) 4 T. E. 691 ; 2 Aroh. Pr. 206. (6) See Arch, N. Pr. Addenda, 106. 
 
 (1) 2 Arch. Ft. 206. 
 
 (8) Id.; 1 Tidd's Pr. 641, 542 ; 3 Burr. B. 1313 ; 7 T. K. 174. 
 
 (9) 2 Aroh. Pr. 206. 
 
STAYING PROCEEDINGS. 323 
 
 payment of an annuity, or of money by installments, the defendant 
 may obtain a stay of proceeding, upon payment of the arrears and 
 costs, provided he give the plaintiff judgment in the action as a 
 security for the future payments,(l) but not otherwise.(2) 
 
 § 983. But when the bond was conditioned for the payment of 
 a sum in gross, and, by a subsequent agreement, that sum was to be 
 paid by installments, the court would not stay proceedings on the 
 bond, on payment of the installment, but required the defendant to 
 pay in the whole sum mentioned in the condition of the bond, with 
 costs -(3) and also when it was expressly stated in the bond that the 
 whole sum should become due upon default made in the payment of 
 any one instalKient.(4) In debt on bond conditioned to perform 
 covenants, or for the performance of any specific act, or to indem- 
 nify,(5) the defendant may obtain a stay of the proceedings, on pay- 
 ment of the penalty of the bond and costs.(6) So, in debt on an 
 appeal bond from a justice^s court (7) In debt on judgment, proceed- 
 ings are stayed on payment of the judgment and costs, (8) In debt 
 on a statute for a penalty, the court will also stay proceedings on 
 payment of the penalty and costs.(9) And in an action for several 
 penalties, the defendant has been allowed to pay one penalty into 
 court, leaving the plaintiff at liberty to proceed for the rest, if he 
 choose to do so.(lO) And in covenant, when the breach assigned is 
 the non-pa5'ment of money, the proceedings may be stayed upon 
 payment of the amount claimed and costs.(ll) 
 
 § 984. In trespass and case, the court will not stay the proceedings 
 upon the payment of a sum of money and costs ; not even in tres- 
 pass for mesne profits, because the damages in these cases are un- 
 certain until acertained by a jury.(12) Yet in one case under 
 particular circumstances, the court ordered the proceedings to be 
 stayed in an action of trespass, upon the defendant's restoring the 
 goods seized, or paying the full value of them, with costs ;(13) but 
 this is a very rare instance, and not in accordance with the usual 
 practice of the eourt.(14) And now, if the injury be involuntary, 
 
 (1) 2 Stra. 957, SU; 3 Burr. E. 1370. , 
 
 (2) 1 B. & A. 214 ; 4. Taunt. 227 ; 2 B. & C. 82. 
 
 (3) 3 Burr. R. 1374. (4) 2 W. Bl. 9B8. See 1 M. <t S. 704. 
 (5) 6 T. R. 303. (6) 2 Arch. Pr. 206. 
 
 (7) 2 Cowen, 63. (8) 2 Anst. 568. 
 
 (9) 2 Stra. 1217 ; 2 W. Bl. 1052. (10) 1 Tidd'a Pr. 641. 
 
 (11) 2 Arch. Pr. 207. (12) 2 Stra. 906; 7 T. R. 336 ; 2 Wils. 115. 
 
 (13) 7 T. B. 53. (14) 1 Tidd'g Pr. 644; 3 Anst. 896. 
 
S24 INCIDENTAL PEOCEEDINGS. 
 
 the defendant may relieve himself from further costs by tendering 
 sufficient amends under the statute, as we have already noticed, or, 
 in other cases, if the defendant cannot deny the cause of action, he 
 may allow judgment to go by default, and the damages to be ascer- 
 tained by assessment, or he may defend for the purpose of mitigat- 
 ing damages on the trial. (1) In an action of slander the court 
 stayed proceedings after verdict, or on payment of the amount of 
 the verdict, and costs up to the time of application.(2) 
 
 § 985. In trover for money, the court will allow the defendant 
 to pay the money claimed by the declaration into court, and let 
 the plaintiff afterwards proceed in the action at his peril ;(3) or they 
 will, perhaps, stay the proceedings, if it be not claimed that there 
 are any circumstances in the case calculated to enhance the dam- 
 ages beyond the mere interest.(i) So, in trover for a specific chat- 
 tel, when the chattel is of an ascertained quantity and quality, 
 but not otherwise.(5) If the case is unattended with any circum- 
 stances that can enhance the damages above the real value, the 
 court has allowed the chattel to be brought into court, or delivered 
 to the plaintiff, and let him afterwards proceed in the action at his 
 peril as to costs, in the same manner as upon the payment of money 
 into court.(6) 
 
 In replevin of a distress for rent, the plaintiff may have 
 leave to pay the rent claimed into court ;(7) or, upon application 
 of the defendant, the court will stay the -proceedings in the action, 
 upon payment of the costs of the action, and the costs of replevying, 
 and upon giving up the replevin bond, if no special damage be 
 stated in the declaration.(8) When there are two or more counts 
 in a declaration, and any one of them be for a sum certain, the 
 defendant, according to the English practice, may obtain a stay of 
 proceedings as to that count, upon the payment of the sum of money 
 therein demanded, and the plaintiff may proceed on the other 
 counts if he choose to do so.(9) If the motion is allowed, a certi" 
 fied copy of the rule should be served on the plaintiff's attorney, 
 and, on taxation of the costs, they must be paid, together with the 
 
 (1) 2 Arch. Pr. 207. (2) 1 J. R. 506. (3) 1 Stra. 142. 
 
 (4) 2 Arch. Pr. 20'7. (5) 3 Bing. 601 ; Barnes, 284. 
 
 (6) 3 Burr. R. 1364; 2 Stra. 822, 1191; 1 Wila. 23; Barnes, 281; 4 Bing, 462. 
 
 (7) 2 Salk. 591 ; 1 H. Bl. 24 ; 1 B. A P. 382. 
 
 (8) 3 M. & S. 525. (9) 2 Arch. Pr. 208. 
 
STATING PROCEEDINGS. 825 
 
 amount as ordered. Until sucii amount is paid, the rule is of no 
 effect, and the plaintiff may proceed without regarding it.(l) 
 
 § 987. There are several other cases in which the proceedings in 
 an action will be stayed. Thus, the courts have sometimes stayed 
 proceedings, under peculiar circumstances, in a second action, after 
 a recovery for the same cause in a former one ; and proceedings in 
 an action of trespass have been stayed, the plaintiff having already 
 recovered in replevin for the same cause of action. (2) So, the pro- 
 ceedings have been stayed, although the plaintiff, in the former 
 action, recovered only nominal damages.(8) But this is very rarely 
 done, the courts usually refusing to interfere in this summary man- 
 ner, but leaving the defendant to set up the former recovery in his 
 defence.(4) When, however, a person who has a right of action 
 against several for one specific damage, recovers, and receives a 
 satisfaction from any one of them, the court will stay proceedings 
 in any action he may bring against the others for the same eause.(5) 
 And when separate actions were brought against several persons 
 for the same debt, who, if liable at all, were liable jointly, the 
 defendant in one action having paid the debt and costs in that 
 action, the court stayed the proceedings in the others without 
 costs. (6) 
 
 § 988. When the plaintiff in the former action /ai'M to recover, 
 the defendant, instead of moving to stay the proceedings in the 
 second action, should, it seems, set up the former judgment in his 
 defence, as a bar to the second action, the rule being that when a 
 claim is submitted to a jury, and disallowed by them, a verdict 
 and judgment thereon are a conclusive bar to a second action for 
 the same caufie.(7) So, when the jury allow the plaintiff only a 
 part of his demand, and less than he was entitled to recover,(8) 
 So, also, if a plaintiff bring an action for a part only of an entire 
 and indivisible demand, the verdict and judgment in such action 
 are a conclusive bar to a subsequent suit for another part of the 
 same demand. (9) On the other hand, matter which was properly 
 offered as a defence in a former action, such as a set-off, and rejected 
 by the jury, cannot be made the subject of a new suit- and if it be 
 the former suit and trial may be pleaded in bar of a recovery.(lO) 
 
 (1) See 8 Moore, 102. (2) 1 Tidd's Pr. 528. (3) 1 Bing. 307. 
 
 (4) Cowp. 7i4; 2 T. E. 512. (5) 3 Burr. E. 1354 ; 1 W. BL 389. 
 
 (6) 2 B. & 0. 124. (7) 16 J. E. 136. See 5 W«ndell, 244. 
 
 (8) 16 J. E. 136 ; 2 id. 210. (9) 16 J. E. 136. 
 
 (10) 14 J. K. 377 ; 16 "Wendell, 583 ; 2 Hill, 487 ; and see 5 J. R. 129 ; 9 id. 352. 
 
326 INCIDENTAL PROCEEDINGS. 
 
 "When tlie action is commenced for a matter which has been set-off 
 and allowed in a former action, between the same parties^ it seems 
 the court would stay the proceedings. 
 
 § 989. When several actions in favor of the same plaintiff, 
 though against different defendants, concerning the title to property, 
 depend on the same questions and the same evidence, either party 
 may move the court for an order that only one of the causes be 
 tried, and that the others abide the result.(l) This course is fre- 
 quently taken in actions of ejectment, when several causes depend 
 on the same title.(2) But it will not be allowed in actions where 
 the question is one of unliquidated damages, as in slander.(3) 
 When six actions of trover were brought against the same defend- 
 ant by different plaintiffs^ employing the same attorney, the court 
 refused to order the proceedings in five of them to be stayed to 
 abide the event of one, it being sworn that the causes of action were 
 different in all of them.(4) 
 
 § 990. The pending of another action for the same cause may, 
 as we have seen, be pleaded in abatement of the second suit ; but 
 the court will not stay the proceedings on the ground of the jJend- 
 ency of another action for the same cause, against the defendant, 
 jointly with another person, except in the case of oppression or 
 vexation ; though, if such a case be made out, they will interfere 
 in a summary way, or even, it seems, allow the party to plead in 
 abatement, notwithstanding the time to plead has expired.(5) 
 When a second action was brought for the same cause, the court 
 discharged a rule for staying the proceedings in the second action, 
 upon the affidavit of the plaintiff, disclaiming the act of the attor- 
 ney in bringing the first action.(6) And the courts have refused 
 to stay proceedings in an action, merely because the plaintiff had 
 filed a bill in equity for discovery and relief respecting the same 
 matter.(7) 
 
 § 991. Proceedings will be stayed in a new action until the 
 costs of a former action for the same cause be paid by the plain- 
 tiff; (8) whether the former suit were in the same or another 
 court ;(9) and though the suit be by guardian, and he a different 
 
 (1) 4 Cowen, IS. (2) Id.; 6 Cowen, 282 ; 2 Arch. Pr. 198. 
 
 (3) 4 Oowen, 85. (4) 3 Dowl. P. 0. 135. 
 
 (5) 1 Man. & Ryl. 508. (6) 2 Dowl P. 0. 263. 
 
 (T) 2 B. & P. 137. (8) 19 J. R. 237- 
 
 (9) 3 Cowen, 22, 380 j 3 B. & P. 22 ; 1 Taunt. 585. 
 
STAYING PROCEEDINGS, 327 
 
 person from the guardian in the first suit ;(1) or though some of 
 the plaintiffs or defendants are new parties. (2) But the courts 
 have refused to stay proceedings in a qui tarn action, until the costs 
 in a former action, for the same penalties by another party, were 
 paid.(3) They have also refused it when the plaintiff was in pris- 
 on in execution for the costs of the first action.(4:) So they have 
 refused to stay proceedings until the debt and costs recovered by 
 the defendant in a former action were paid.(5) Nor will they 
 stay proceedings until the costs of a suit in chancery, between the 
 same parties concerning the same matter in which the plaintiff's bill 
 was dismissed with costs, were paid.(6) 
 
 § 992. The power of the court to restrain parties from the pros- 
 ecution of a second suit for the same cause, extends to the costs of 
 a different suit only ; and it has been held that the court will in no 
 case stay the prosecution of a suit until the costs of an interlocu- 
 tory order, made in the progress of the same suit, be paid. (7) 
 In all these cases, it is necessary that the first suit should he at an 
 end, and in such a state that the defendant is entitled to receive, 
 and the plaintiff bound to pay, such costs.(8) The motion to 
 stay proceedings should, therefore, be made after the termination of 
 the first suit, and while the second is in a course of litigation.(9) It 
 may be made after verdict for the plaintiff in the second suit, sub- 
 ject to the opinion of the court, and a case made.(lO) But tha, mo- 
 tion comes too late after judgment perfected. (11) After the motion 
 is granted, if the plaintiff proceed in the second action, without 
 first paying the costs of the former, the court, on the defendant's 
 motion, will set aside such proceedings, with costs.(12) 
 
 § 993. In an action for money won at play, the court refused 
 to stay the proceedings until after the trial of an indictment against 
 the parties for a cheat.(13) So, after verdict and judgment, the 
 court refused to stay the proceedings until after the trial of an 
 indictment for perj ury, founded upon the af&davit to hold to bail,(14) 
 or preferred against one of the plaintiffs witnesses.(15) But when 
 a person indicted for a felony sued a banker for money he had de- 
 
 (I) 19 Wendell, 449. (2) 6 Hill, 312. (3) Cowp. 322. 
 (4) 4 Wendell, 203 ; 8 D. & R. 42. (5) 1 H. Bl. 10. 
 
 (6) 19 J. E. 196. See 1 Cow. 189. (7) 2 Wendell, 623. 
 
 (8) Gra. Pr. (2d ed.) 555. (9) 3 Oowen, 51. (10) Id. 
 
 (II) 2 Co-wen, 503. (12) 2 Arch. Pr. 210. 
 (13) 2 Salk. 649. (14) 3 Dowl. P. C. 550. 
 (15)"4M. &S. 140. 
 
328 INCIDENTAL PEOCKEPINGS. 
 
 posited with him, and which was thought to be the produce of the 
 felony, the court, on application, stayed the proceedings, to give 
 time for the trial of the indictment.(l) 
 
 There are a few other cases in which courts, in order to save a 
 defendant from the trouble and vexation of a litigation, which 
 must clearly be fruitless to the plaintiff, or when the prosecution 
 of the suit by the plaintiff is a violation of good faith toward the 
 defendant, have interfered by staying the plaintiff's proceedings ; 
 but this summary mode of practically putting an end to the action, 
 should be adopted only when the right is clear ; and the power of 
 the court for that purpose ought to be exercised with great caution 
 and prudence. 
 
 § 994. Rule to stay proceedings on payment of debt and costs. 
 
 rrp-fj i Gr. H., Attorney for Defendant. 
 
 liiue.j -^ -p^ Attorney for Plaintiff. 
 
 On motion of Mr. H., of counsel for the defendant in this 
 cause, and after hearing counsel in opposition thereto, Ordered, 
 that all further proceedings in this cause be stayed on payment of 
 
 dollars, the debt due from, the defendant to the plaintiff, for 
 
 which this action is brought, together with the plaintiff's costs to 
 be taxed. v 
 
 § 995. Bule for perpetual stay of proceedings. 
 
 vT.-ii 1 ^- -S-) Attorney for Defendant. 
 11 itce.j j,_ j,_^ Attorney for Plaintiff. 
 
 A motion having been made, on the part of the defendant, 
 for a rule to stay proceedings in this cause, after hearing counsel 
 on both sides, on motion of Mr. H., of counsel for the said defend- 
 ant. Ordered, that all proceedings on the part of the plaintiff in 
 this cause be perpetually stayed, upon the defendant's paying into 
 
 court the sum of dollars, the penalty of the bond mentioned 
 
 and described in the declaration in said cause. 
 
 § 996. Whenever several suits are pending in the same court, 
 by the same plaintiff against the same defendant, for causes of action 
 which may be joined, the court in which the same are prosecuted 
 may, in its discretion, if it shall appear expedient, order the several 
 suits to be consolidated into one action ; and when several suits are 
 commenced against joint and several debtors, in the same court, 
 the plaintiff may, in any stage of the proceedings, consolidate them 
 into one action. (2) Under a similar statute in JSTew York, the gen- 
 eral rule was established, that when several actions are pending 
 
 (1) 4 Taunt. 825. See 4 Dowl. P. C. 263. (2) Oomp. L. 1153. 
 
CONSOLIDATING ACTIONS. 829 
 
 betvreen the same parties, for causes of action which may be com- 
 prised in the same declaration, and when the questions to be liti- 
 gated are the same in all, the court will order them to be consoli- 
 dated.(l) The English courts exercised the power of consolidating 
 actions at common law, (2) and the supreme court of New York 
 recognized the same practice before the statute. (3) 
 
 § 997. Consolidation is most frequently allowed in actions ex 
 contractu. Thus, when two separate actions were commenced 
 against a bank, upon two bills of the bank, the court ordered them 
 to be consolidated.(4) When two suits were brought on two jus- 
 tices' judgments, the court ordered them to be consolidated.(5) 
 And the same order was made when two actions were brought by 
 the same plaintiff on an administration bond, to recover two several 
 demands, upon different judgments, for different causes of action. (6) 
 But in England, the court refused to consolidate two actions upon 
 two several bonds, although they were precisely similar to each 
 other.(7) A consolidation has been allowed when the actions 
 would* admit of it, although no defence was intended, if asked for 
 the purpose of avoiding the expeuse of entering up several judg- 
 ments.(8) 
 
 § 998. In actions ex delicto, a consolidation is rarely allowed. 
 In one case, three declarations against different persons for the same 
 assault, were ordered to be consolidated. (9) But in another similar 
 case the application was refused ;(10) the court saying they never 
 went so far as the case of different defendants, but only when the 
 declarations were between the same parties.(ll) 
 
 § 999. The motion must be based upon an affidavit, showing 
 that the causes of action are such as may be joined in the same 
 declaration, and that no defence is intended in any or either of the 
 actions ; or, if intended, that such defence, and the questions which 
 will arise in both, or all of them, will be the same substantially.(12) 
 The affidavits, when a defence is intended to be made, must clearly 
 show that the same question or questions are to be litigated in 
 
 (1) 3 "WendeU, 443 ; 19 id. 23 ; 4 Hill, 46. 
 
 (2) 2 T. R. 639. See 1 Smith, 423 ; 2 Arch. Pr. 198. 
 
 (3) 9 J. R. 262. (4) 19 'Weiiden, 23 ; 9 Id. 451. 
 (5) 3 WendeU, 442. (6) 1 Cowen, 189. 
 
 (T) 1 Chitt. E. 7090 ; 1 Tidd's Pr. 614. (8) 4 Hill, 4T ; 3 'Wendell, 442. 
 
 (9) Prac. Eeg. 151 ; Barnes, 341 ; and see 2 B. & A. 598. 
 
 (10) 1 Stra. 420. (11) See also 4 Cowen, 85; 3 Dowl. P. 0. 135. 
 (12) 19 "Wendell, 23; 4 Hill, 46. 
 
330 INCIDENTAL PROCEEDINGS. 
 
 botli or all of the actions ; and enough of the nature of the action, 
 and of the defence, should be stated, to make this appear to the 
 court ; otherwise the motion will be denied.(l) The motion is en- 
 tered, and an afiidavit filed and served, as in cases of other special 
 motions, 
 
 § 1000. It rests entirely in the sound discretion of the court to 
 grant the motion, or refuse it. If the grounds of the motion are 
 not controverted by the plaintiff, and it does not appear that he 
 will suffer any great delay, or other prejudice, the motion will be 
 granted.(2) And it will be granted, not only when both suits are 
 brought at the same time, but where they are brought at different 
 times ; and it will not be a suf&cient objection that the second cause 
 of action had not accrued at the time the first suit was commenced.(3) 
 Nor will it be an objection that the actions are based upon different 
 transactions, provided the questions to be tried are identical. (4) 
 But the order will not be made when the effect of the consolidation 
 will be to delay the collection of the plaintiff's demands.(5) To 
 entitle the defendant to the rule, it is not necessary for him ta show 
 a defence on the merits.(6) 
 
 § 1001. When several actions are brought upon the sam© 
 policy of insurance, the court, on application of the defendant, 
 and with the consent of the plaintiff, will grant a rule, called the 
 consolidation rule, to stay the proceedings in all the actions but 
 one, the defendants undertaking to be bound by the verdict in 
 such action, and to pay the amount of their several subscriptions, 
 and costs, in case the plaintiff should recover.(7) This mode of 
 consolidation, however, has been held to apply only to several 
 actions on one policy, and does not extend to several policies on 
 one risk.(8) So, when several actions in favor of the same plain- 
 tiff, though against different defendants, concerning the title to 
 property, depend on the same questions and the same evidence, 
 either party may move that only one of the causes be tried, and 
 that the others abide the result.(9) 
 
 § 1002. The motion in such cases must be made by all the 
 defendants, and in actions on a policy it is usual for the plaintiff 
 to consent to the rule ; or, if the plaintiff refuse to consent, the 
 
 (1) 4 HiU, 46. (2) 19 "Wendell, 23. (3) Id. 
 
 (4) 4 Hill, 46. (5) 3 Hill, 460. (6) 3 "Wend. 442. 
 
 (f) 2 Aroli. Pr. 198. (8) 1 Gaines' E. 114. (9) 4 Cowen, 18. 
 
CONSOLIDATING ACTIONS. 331 
 
 court will grant imparlances in all tlie other actions but one, until 
 that one is determined. (1) On the other hand, if the plaintiff con- 
 sents to the rule, the court will sometimes make the defendant 
 submit to reasonable terms, such as admitting the policy, produc- 
 ing and giving copies of books and papers, and undertaking not 
 to file a bill in equity, or bring a writ of error.(2) In other cases, 
 if the fact that the questions and the evidence are the same in all 
 the actions be not disputed by affidavit, the motion will be granted, 
 but not if that fact be denied, or appear doubtful. (3) The pur- 
 port of the consolidation rule is, that the proceedings in all the 
 actions except one be stayed, the defendants undertaking to be 
 bound by the verdict in such action, and to pay the amount of 
 their several subscriptions and costs, if the plaintiff should recover, 
 together with such other terms as the court may think proper to 
 impose. 
 
 § 1003. Although the defendants undertake to be bound by 
 the verdict in one action, yet, this must be understood to mean 
 such a verdict as the courts think ought to stand ; and, therefore, 
 when the defendant, after a verdict for the plaintiff in one action, 
 obtained a new trial, the other causes were held to abide the event 
 of the new trial.(4:) And the rule relates solely to the verdict, 
 and the stipulation merely means that the same verdict shall be 
 ' entered in all the actions, and leaves the party to his writ of error, 
 as if each had been separately tried.(5) The consolidation rule, 
 also, is for the benefit of the defendants, and will not prevent the 
 plaintiff, after a verdict against him, from proceeding to try a 
 second cause included in the same rule.(6) But by proceeding in 
 this way, without applying to the court, he will lose the benefit of 
 any terms which were imposed on the defendant by the rule. (7) 
 
 § 1004. According to the practice of the English courts, when 
 money is paid into court in several actions which are consolidated, 
 and the plaintiff, without taxing costs, proceed to trial in one, and 
 fails, he is entitled to costs in the others, up to the time of paying 
 the money into court.(8) If a commission be taken out in one of 
 the consolidated causes, and the defendant join in the commission, 
 the court will permit the depositions thus taken to be read in evi- 
 dence on the trial of the principal cause.(9) 
 
 (1) Oolem. 68 ; 1 Johns. Gas. 29 ; 1 Tidd's Pr. 615. 
 
 (2) Id. (3) 4 Cowen, 78. (4) 3 Burr. R. 1477. 
 (5) 2 New Kep. 430 ; and see 1 Moore, 79. (6) 4 B. & Adolph. 544 
 (7) Id. 545, note. (8) Arch. N. Pr. 499. (9) 1 Caines' E. 513. 
 
332 INCIDElirTAL PROCEEDINGS. 
 
 The court will sometimes, on the application of the defendant, 
 open the consolidation rule, and try a second cause ; but in such 
 case, they will extend to the second trial all such terms, imposed 
 on the successful party in the first, as are requisite for attaining the 
 justice of the case.(l) But they will not open a consolidation rule 
 after two verdicts the same way.(2) 
 
 § 1005. If the plaintiff obtain a verdict in the cause which is tried, 
 he will proceed to perfect his judgment in that cause in the usual 
 manner, and get the costs taxed in all the causes ; and if the money 
 be not paid, he may proceed to perfect judgment in all the other 
 cases in like manner. (3) 
 
 § 1006. Affidavit to move for consolidation of actions when a de- 
 fence is intended. 
 
 [Titles of causes to he consolidated.] 
 
 County of ss : C. D., the defendant in the above 
 
 entitled suits, being duly sworn, says, ^hat each of the said suits is 
 founded on one instrument in writing [or "policy of insurance"] by 
 which [state the terms and other particulars of the instrument,] 
 [or ''is founded on a promissory note," or "bill of exchange," &c., de- 
 scribing it, or " that both the above suits are actions of assumpsit ; that 
 the first of said suits is brought for money had and received by this de- 
 ponent to the plaintiff''s use in the year 1845 ; and that the second of 
 the above entitled suits is brought upon a written undertaking of the 
 
 defendant to pay the plaintiff dollars for negotiating the sale of 
 
 a bond and mortgage in the year 1844," or as the case may be.] * 
 And deponent further says, that he has fully and fairly stated the 
 case in each of the above entitled causes to G. H., his counsel 
 
 therein, who resides in , and that he has a good and substantial 
 
 defence on the merits in each of the said causes, as he is advised 
 by his said counsel after such statement as aforesaid, and verily 
 believes. And this deponent further says, that the causes of action 
 in the above entitled suits are such as may be properly joined in 
 the same declaration, and that the questions which will arise in 
 all of the said actions are substantially the same, as he is advised 
 by his said counsel, and verily believes, and that the defence to all 
 the said actions will also be substantially the same, and that such 
 defence is [state what]. And further this deponent saith not. 
 Sworn, &c. C. D. 
 
 § 1007. The Wee affidavit when no defence is intended. 
 
 [As in the last form to the *, and then as follows:] And 
 deponent further says, that he does not intend to make any defence 
 
 (1) 5 Taunt. 165; and see 1 Chitl. K. 709, IWa. 
 
 (2) 5 Dowl. P. C. 619 j 1 Tidd's Pr. 614, 616. (3) See 1 Burr. Pr. 412. 
 
JUDGMKNT AS IN CASE ON NON-SUIT. 333 
 
 to either of the said suits, and that a consolidation thereof is asked 
 for the purpose of avoiding the expense of entering up several judg- 
 ments against this deponent. [Conclude as in last form.] 
 
 § 1008. Rule to consolidate in ordinary cases. 
 \_Tiiles of all the causes.] G. H., Attorney for Defendant. 
 
 On reading and filing the affidavits in these causes, and on 
 molidn of M. H., of counsel for the defendant; after hearing counsel 
 in opposition, Ordered, that the said causes be consolidated into one 
 action. 
 
 § 1009. Rule to consolidate actions on policy. 
 [Titles of all the causes.] G. H., Attorney for Defendants. 
 
 On reading and filing affidavits in these causes, and after 
 hearing Mr. H., of counsel for the defendants, and Mr. S., of coun- 
 sel for the plaintifi". Ordered, that all the proceedings on the part of 
 the plaintiff in these causes respectively, except the first, be, and 
 they are hereby stayed ; the said defendants hereby undertaking 
 to be bound by the verdict [or "finding of the court "] in the said 
 first suit, and to pay the amount of their several subscriptions to 
 the said paper instrument, [or, "policy of insurance,"] in case the 
 said plaintiff shall recover in the said first suit, together with the 
 costs of that recovery, and of the other suits, [adding such other 
 terms as may be imposed by the court.] 
 
 § 1010. It is provided, by statute, that when an issue of fact 
 shall be joined in any action, and the ]>laintiff shall neglect to bring 
 such issue to trial, according to the course and practice of the court, 
 such court, on the application of the defendant, may give the like 
 judgment for the defendant as in cases of non-suit; or may, upon 
 just terms, allow a further time for the trial of such issue ; and that 
 if a further time for the trial of such issue be allowed, and the 
 plaintiff neglect to try the same within the time so allowed, the 
 court shall give judgment for the defendant, as in cases of non- 
 8uit.(l) Since the enactment of this statute, the supreme court has 
 provided by rule that either party may give notice of trial ; and 
 that any' party who shall have noticed a cause for trial, and not 
 countermanded such notice, may be compelled to proceed to the 
 trial thereof, at the term for which the same was noticed, unless 
 the same is continued on cause shown, and a compliance with such 
 terms as the court may impose.(2) 
 
 § 1011. In general, therefore, if the defendant desires a trial, 
 
 (1) Comp. L. 1199. (2) Rule 54. 
 
334 INCIDENTAL PROCEEDINGS. 
 
 he may give the notice, and thus compel the plaintiff to bring on 
 the issue to be tried, unless he has good cause for a continuance, 
 or to be non-suited upon his default ; and if the defendant omit to 
 notice the cause for trial, he is deemed tacitly to assent to the 
 delay. But if the plaintiff fail to give security for costs, when 
 ordered to do so, or to produce books and papers, or to furnish a 
 bill of particulars, or other neglect or default of the plaintiff occur, 
 by reason of which it is not in the power of the defendant to expedite 
 the cause, judgment for the defendant as in cases of non-suit will 
 be given. The application in such cases must be made by special 
 motion, grounded on an affidavit of the facts, showing the laches 
 of the plaintiff. 
 
 § 1012. A plea puis darrein continuance (since the last continu- 
 ance) cannot be pleaded after a demurrer,(l) verdict,(2) report of 
 referees,(3) or relicta and cognovit /(4) nor can the matter of it be 
 given in evidence without being pleaded, or, according to our prac- 
 tice, if it be matter in bar of the action, unless notice of the special 
 matter of defence be given under the general issue.(5) But it has 
 been held that it might be pleaded after a stipulation to plead issua- 
 bly,(6) and in an action removed to the court of common pleas by 
 appeal.(7) Matter of defence, which arises after issue joined, should 
 be pleaded at or before the time of the next continuance ; but the 
 court may, in its discretion, allow it to be pleaded, although one 
 or more continuances have intervened.(8) 
 
 § 1013. The plea, or plea and notice, being previously pre- 
 pared, and properly verified,{9) should be presented when the cause 
 is called in its order on the calendar ; but it may be offered even 
 after the jury are gone from the bar, but not after they have ren- 
 dered their verdict.(lO) The effect of the plea is to suspend the 
 trial of the cause, and an issue may be afterwards made and 
 brought to trial or hearing upon it, as in ordinary cases.(ll) But 
 when the plea is by one of several defendants, and contains matter 
 in bar going to his own personal discharge, without affecting the 
 action against the other defendants, the plaintiff may confess the 
 
 (I) Moore, 781 ; 1 Stra. 492. (2) Cro. Jas. 646; 1 Cowen, 42. 
 (3) 12 J. B. 218. (4) 1 Cowen, 42. 
 
 (5) See 3 Cowen, 15; t J. E. 194; 10 Ohio, 300. 
 
 (6) 5 Bing. 414. (t) 1 "Wendell, 80. 
 
 (8) 9 J. E. 255 ; 10 id. 161 ; 19 "Wendell, 639. 
 
 (9) 1 Burr. Pr. 423. (10) 3 Gaines' E. 172. See Bull. N. P. 310. 
 
 (II) See 1 Burr. Pr. 423. 
 
PLEA PUIS dahrein continuance. 335 
 
 plea at once, and enter a nolle prosequi as to sucli defendant, and 
 proceed to trial against the others. (1) In such case, however, the 
 plaintiff should, before going to trial, reduce the confession and 
 nolle prosequi to writing, and serve a copy.(2) The plaintiff may 
 likewise confess, and proceed to trial immediately, when the plea 
 is of some matter going only to the extent of the remedy, as a dis- 
 charge from imprisonment; and this, whether there be several 
 defendants, or one on]y.(3) The plea is amendable, of course, as 
 in other cases.(4:) If it appear that the defence rests in fraud, the 
 plea will be set aside.(5) So, if it be inequitable or unjust, it will 
 be stricken out. (6) 
 
 § 1014. By pleading puis darrein continuance, the rule has 
 been that the defendant waives his former pleading ;(7) and that 
 the case then stands in the same state as if this plea had been the 
 plea originally put in. But this rule has been so far qualified, 
 that a plea puis darrein continuance is not a waiver of the former 
 plea, unless the party abandons the defence before relied on, and 
 assumes a new ground of defence to the action.(8) Nor does the 
 rule apply when the msCtter of the plea affects the remedy only, 
 and not the right of action ;(9) or when the plea goes to but one 
 of several counts, or a particular part of an entire claim.(lO) If 
 the plea has not been pleaded in proper time, the plaintiff cannot 
 treat it as a nullity ;(11) nor can he demur on that ground, but 
 should move to set it aside.(12) 
 
 § 1 015. It has been held that after pleading puis darrein con- 
 tinuance, if the plaintiff fail to reply or demur to it, the defend- 
 ant is not entitled, as a matter of course, to enter his default for 
 not replying ; but that he should apply to the plaintiff, after the 
 time to reply has expired, to enter a rule discontinuing the action. 
 If that is refused, the defendant may then move the court, and 
 either a discontinuance will be ordered, or the defendant will be 
 allowed to proceed to judgment by default on his plea, and the 
 plaintiff will be required to pay the costs of the motion. 
 
 § 1016. If the plaintiff reply or demur to the plea, and judg- ' 
 meni is finally rendered in his favor, he will recover his debt or 
 
 (I) 6 mil, 513. (2) Id. (3) Id. 
 
 (4) See 4 Cowen, 418: Rule 36. (5) 19 Wendell, 639. 
 
 (6) Id. 98. (V) 1 Ld. Baym. 693 ; 1 Salk. 178 ; 1 Aroh. Pr. 201. 
 
 (8) See 2 'Weiidell, 300. (9) 14 id. 161. (10) See 19 "Wendell, 699. 
 
 (II) 9 J. R. 265. (12) 10 J. R. ISl; 1 Wendell, 228. 
 
336 INCIDENTAL PEOCEEDINGS. 
 
 demand, with costs. If the defendant obtain judgment, he will 
 recover costs ; but as the action was well founded at first, it seems 
 he can only recover such costs as have accrued subsequent to the 
 plea.(l) When, on issue joined upon a plea of pafyment puis dar- 
 rein continuance, the defendant obtained a verdict, it was held that 
 he could not recover costs prior to the payment, but that he was 
 entitled to costs from the time of the payment, and not merely 
 from the time of the plea.(2) 
 
 § 1017. Notice of special matter in iar puis darreia continuance. 
 [Title.] 
 
 An now, at this day, that is to say, on the — day of • 
 
 in the term of , until which day the plea aforesaid^ was last 
 
 continued, comes as well the said plaintiflt' as the said defendant, by 
 their respective attorneys. And the said defendant now here gives 
 notice to the said plaintiff, that after the last continuance of this 
 cause, and before this day, to wit., on, &c., at, &c., [here state the 
 matter of defence as in ordinary cases,] all of which the said de- 
 fendant will give in evidence in his defence on the trial of this 
 cause, under the general issue by him heretofore pleaded, and in- 
 sist upon the same as a bar to the further having or maintaining 
 of the aforesaid action thereof by the said plaintiff against him the 
 said defendant. G. H., Attorney for Defendant. 
 
 To E. P., Esq., Plaintiff's Attorney. 
 
 County of , ss : C. D., the above named defendant, 
 
 being duly sworn, deposes and says, that the above notice is true, 
 in substance and matter of fact. C. D. 
 
 Sworn, &c. 
 
 § 1018. The motion in arrest of judgment cannot be made after 
 judgment on demurrer, whether the demurrer were argued or 
 not ;(8) nor for anything which might have been pleaded in abate- 
 ment ;(4) nor on account of a party's own mispleading ;(5) nor for 
 a mere formal defect in the record. (6) It is a rule that whatever 
 is alleged in arrest of judgment, must be such matter as would 
 have been good on demurrer ; but the converse of this rule, that 
 everything which may be alleged as cause of demurrer will be 
 good in arrest of judgment, does not hold, for many defects which 
 would have rendered the declaration bad in substance on demur- 
 rer, are aided by verdict.(7) 
 
 (1) 2 HiU, SST. (2) 5 HUl, 505. 
 
 (3) 1 Stra. 425 ; 6 Taunt. 650. (4) 2 "W. Bl. 1120. 
 
 (5) 12 J. K. 355. (6) 10 id. 200. 
 (1) 3 Bl. Com. 394. See 11 WendeU, 3'74. 
 
AKKESTING JUDGMENT. 837 
 
 § 1019. It lias been held that -when one of several counts is 
 bad, and a general verdict has been rendered for the plaintiff, the 
 judgment will be arrested,(l) unless the record can be amended 
 by the judge's notes,(2) or unless the judge will certify that all the 
 evidence given would properly apply to the good counts, as well 
 as to the bad, in which case the verdict will be allowed to be 
 amended, by applying it to the good count or counts, on payment 
 of the costs of the . motion.(3) Under our system of practice, 
 when the motion is made in the same court where the trial was 
 had, no certificate would be necessary, but the court will determine 
 the fact from what appeared upon the trial. When there were 
 several counts in a declaration, and damages on default were as- 
 sessed separately upon each, and judgment was arrested upon the 
 first count, the plaintiff was allowed to enter a nolle prosequi as to 
 that count, and take judgment on the others.(4) 
 
 § 1020. The motion must be made within two days in term 
 after the rendition of the verdict, or decision of the court, except 
 when a motion for a new trial has been interposed and overruled, 
 and then, within two days after the motion is overruled. (5) On 
 the motion, the court will not look out of the record, except for 
 the purpose of seeing whether the verdict may not be applied to, 
 and judgment rendered upon, the good counts, though some are 
 bad.(6) When the error was merely clerical, the court will perniit 
 the plaintiff to amend after argument, on payment of costs.(7) If 
 the judgment is arrested, each party pays his own costs.(8) ' A 
 mere rule in arrest of judgment does not put an end to the suit ; 
 and if the plaintiff wish to bring a writ of error, the court will order 
 judgment entered for the defendant, to enable him to do so ;(9) and 
 in general, the judgment for the defendant is entered immediately, 
 in connection with the order. 
 
 § 1021. Order arresting judgment on verdict, and judgment for 
 defendant. 
 
 [Title.] 
 
 A motion having been heretofore made, on the part of the 
 defendant, in arrest of judgment upon the verdict rendered in this 
 cause, after hearing arguments of counsel on both sides, and all and 
 
 (1) t Cowen, 58. (2) 9 id. 151. (3) 12 "WendeU, 135. 
 
 (4) 3 J. R. 189. (5) Rule 32. (6) 1 Cowen, V25. 
 
 (7) 11 Wend. 53; 12 id. 135. (8) Cowp. 407; 11 J.R, 141. 
 
 (9) a J. K. 101. 
 
 22 
 
338 INCIDKNTAL PKOCEEDINGS. 
 
 singular tlie premises being seen and by the court now here fully 
 understood, and mature deliberation being thereupon had, it seems 
 to the court now here, that no judgment can be rendered on the 
 verdict aforesaid, inasmuch as the declaration [or, "replication"] 
 of the said plaintiff, and the matters therein contained, are mani- 
 festly insufficient in the law for him the said plaintiff to have or 
 maintain his action aforesaid thereof against him the said defendant. 
 Therefore the judgment on the said verdict is hereby arrested and 
 stayed ; and it is also considered that the said defendant do go 
 thereof without day, &c. 
 
 § 1 022. In order to obtain a supersedeas for not charging a de- 
 fendant in execution under the statute, (1) an affidavit of the facts 
 which entitle him to a discharge may be made, and presented to 
 the judge, together with a certified copy of the judgment; or, a 
 certificate from the sheriff in whose custody he is, of the fact of his 
 being in custody, and of the other matters necessary to be shown, 
 proved by the affidavit of a subscribing witness to such certificate, 
 together with such certified copy of the judgment; and the judge 
 will thereupon make an order requiring the plaintiff to show cause 
 why a supersedeas should not issue. On obtaining such order, it 
 must be served by showing the original and delivering a copy, 
 together with copies of the other papers, upon the plaintiff's attor- 
 ney. After service of the order, the plaintiff may issue a ca. sa., 
 and deliver it to the sheriff, and that will be good cause for not 
 allowing the supersedeas. {2) So, if the defendant has hindered the 
 plaintiff from proceeding, by bringing a writ of error, or obtaining 
 an injunction, he will not be entitled to a supersedeas, if the plain- 
 tiff proceed in due time after the writ of error has been determined, 
 or the injunction dissolved.(3) And an agreement for a settlement 
 or compromise of the matters in dispute, if made in writing, and 
 signed by the defendant or his attorney, will prevent the defendant 
 from obtaining a supersedeas while it remains in force.(4) 
 
 § 1023. If, at the time appointed in the order, the plaintiff do 
 not attend, or if he appear and show no sufficient cause, the judge, 
 on production of an affidavit of due service of the previous order, 
 will allow the supersedeas. The writ is usually prepared and sealed 
 beforehand, and ready for the allowance to be indorsed on it. On 
 being allowed, it must be served on the sheriff, who will thereupon 
 
 (1) 1 Comp. L. 1227. (2) 1 Games' R. 57 ; 3 J. R. 446. 
 
 (3) 2 Arch. Pr. 133. (4) 2 Arch. Pr. 133 ; 1 Burr. Pr. 309. 
 
SUPERSEDEAS. 339 
 
 immediately discharge the defendant out of custody, and he may 
 depart out of custody without waiting for a formal disoliarge.(l) 
 
 § 1024. If the plaintiff, being entitled to judgment, neglect or 
 refuse to perfect it, the defendant should take measures to have it 
 entered against himself. For this purpose, a formal request should 
 be made of the plaintiff to enter his judgment. If this be refused, 
 the defendant should move the court that the judgment be entered • 
 and unless good cause to the contrary be shown, this will be 
 done.(2) The defendant may then, after the expiration of the time 
 allo^ved by the statute, if the plaintiff neglect to charge him in ex- 
 ecution, proceed to obtain a supersedeas.{3) 
 
 § 1025. Supersedeas for not charging defendant in execution. 
 
 Lsr THE NAIIE OF THE PEOPLE OF THE StATE OF MICHIGAN. TO 
 THE SHERIFF OF THE COUNTY OF : 
 
 [SEAL.J Whereas, 0. D. is detained in our prison under youi* 
 custody, by virtue of a certain writ of capias ad respond- 
 endum, issuing out of the circuit court for the said county of 
 
 , and returnable on the — day of , at , to answer 
 
 A. B. of a plea of trespass, &c., [as in the capias.] And whereas 
 
 the said A. B., in the term of said court last past, obtained 
 
 judgment therein against the said C. D. upon the said writ; but, 
 because it appears to us that the said A. B. hath not proceeded to 
 charge the said C. D. in execution within three months after the 
 last day of the term next following that at which the said judg- 
 ment was obtained, according to the form of the statute in such 
 case made and provided : Therefore, we command you that you 
 wholly desist from further taking, arresting, imprisoning, or in any- 
 wise molesting the said 0. D. on the occasion aforesaid ; and if the said 
 C. D. be detained in your custody on the occasion aforesaid, and 
 no o her, then we command you to discharge him without delay 
 out of the prison in which he is so detained, at your peril. 
 
 Witness, &c.(4) 
 
 § 1026. In the preceding portions of this chapter, the proceed- 
 ings treated of, in general, have been such as are peculiar to, and 
 could be originated by one or the other of the parties only ; and 
 they have been so presented as to exhibit the acts of each of the 
 parties respectively in immediate connection with each particular 
 proceeding, and their proper relation to each other, as far as prac- 
 ■ticable. The remaining portions of it will be devoted to the con- 
 sideration of such incidental proceedings as are common to hoik 
 
 (1) 4 J. E. 32. (2) See Colem. R. 54; 2 Cainea' R. 385. 
 
 (3) 1 Burr. Pr. 42?. (4) Comp. L. 1221. 
 
340 INCIDENTAL PKOCEEDINGS. 
 
 parties, and these will be treated of in the same, manner, and, as 
 nearly as may be, according to the most usual order of their 
 occurrence. 
 
 § 1027. Oyer may be demanded either by the plaintiff or de- 
 fendant. If the plaintiff, in his declaration, necessarily make a 
 profert of any deed, writing, letters of administration, or the like, 
 the defendant may pray oyer.(l) But oyer cannot be prayed un- 
 less there has been '^a profert in the declaration, plea, &c. And, 
 therefore, if a deed be pleaded without profert, the other party 
 should demur specially for the want of it, particularly if it be 
 essential to his plea or replication that the deed should be set 
 forth.(2) A profert, however, will not of itself entitle a party to 
 oyer, when it would not be otherwise demandable.(3) In debt on 
 bond conditioned to perform covenants, the defendant cannot 
 crave oyer of the indenture — the bond alone, in such a case, being 
 pleaded with & profert ; but he must himself set forth the indenture, 
 with a profert, if it be necessary to his plea, and the plaintiff may 
 have oyer of it ; or, if the defendant have no copy of the instru- 
 ment, he may obtain time to plead, until the plaintiff gives a 
 copy.(4) 
 
 § 1028. Oyer is generally craved when it is essentially neces- 
 sary that the deed, &c., pleaded should be set forth before the 
 party craving oyer can plead. It is usually craved of bonds and 
 other specialties ; sometimes of letters of administration ;(5) and it 
 has been allowed of policies of insurance.(6) It cannot, however, 
 be craved of an original writ,(7) nor of private statutes,(8) nor of 
 letters patent, or other records.(9) It is in some cases absolutely 
 necessary that the defendant should crave oyer, and set forth the 
 deed upon the record ; as when he pleads performance of a condi- 
 tion or covenant, (10) or demurs to the declaration for a variance 
 from the instrument on which it is founded.(ll) 
 
 § 1029. The party craving oyer is not bound to plead without 
 it, in cases w"' """' \, is properly demandable,(12) even though the 
 
 (1) 1 Tidd's Pr. 586 ; 2 Salk. 497. (2) 2 Arch. Pr. 216. 
 
 (3) 1 Saund. 96 ; 2 Salk. 497 ; and see 24 Wendell, 316. 
 
 (4) 1 Burr. Pr. 428, and oases cited. (6) 2 Wils. 41.'?. 
 
 (6) Hardw. 243. (1) 1 Dougl. 227; 2 Wils. 394; Barnes, 340. 
 
 (8) 2 Dougl. 477. (9) 1 T. E. 149; 1 Tidd'a Pr. 687. 
 
 (10) 5 Cranoh, 257. (11) 2 P. & Du. Pr. 145. 
 
 (12) 18 J. E. 444; 2 Stra. 1186; 1 "Wils. 16. 
 
OYER. 341 
 
 deed be lost ;(L) nor can oyer in sucli cases be dispensed witli by 
 tbe court.(2) If craved when it is not demandable, the other 
 party may treat the demand as a nullity, and proceed to judgment ; 
 but if, instead of doing so, he grant the oyer, the party who craved 
 it has a right to make use of it, and may treat the whole instru- 
 ment as part of the other's plea.(3) The instrument, in theory, is 
 supposed to be actually in court, and, on the demand of the party, 
 entitled to be "read to him'" there, as was anciently the practice. 
 Oyer is now always demanded and granted by the attorneys of 
 the respective parties out of court.(4:) 
 
 § 1030. The demand of oyer should be made before the time 
 for pleading has expired. (5) If made afterwards, it may be treated 
 as a nullity. (6) Oyer may be demanded by a note in writing, (7) 
 which must be served in the usual manner. Oyer may be given 
 without waiting to have it demanded, and in all cases where the 
 opposite party is entitled to , it, it is advisable to serve, with the 
 pleading in which pro/ert is made, a copy of the instrument. (8) 
 If the deed or other instrument be in the hands of a third person, 
 it has been held that the court, on application, will oblige him to 
 give oyer of it, and to produce it, if necessary. (9) The demand of 
 oyer of a bond will not entitle the party to oyer of the condition, 
 and vice versa ; and the party must demand oyer of both, if he 
 wants it.(10) 
 
 § 1031. If the defendant demand oyer, the plaintiff is not bound 
 to grant it within any limited time ; but it is generally his interest 
 to grant it without delay, the defendant not being bound to plead 
 without it, and being entitled to as many days for pleading after 
 the oyer has been given, as he had unexpired at the time of de- 
 manding it.(ll) Therefore, when oyer is duly demanded by a 
 defendant before the time for pleading has expired, if the plaintiff 
 afterwards, and without complying with the demand, enter the de- 
 fendant's default for want of a plea, the proceedings wiU be set 
 aside as irregular.(12) 
 
 (I) 1 Tidd's Pr. 587. (2) Id.; 18 J. R. 444. 
 
 (3) 2 Dougl. 416; Garth. 516; 1 Saund. 317, note 2; 2 Arch. Pr. 216. 
 
 (4) See 1 Burr. Pr. 429, note. (5) 1 T. E.' 150 ; 25 "Wendell, 636. 
 (6) 1 Tidd's Pr. 588. (7) 4 WendeU, 214. 
 
 (8) 1 Burr. Pr. 429. 
 
 (9) 2 Stra. 1198; 1 Sellou, 262; 2 Areh. Pr. 217. 
 
 (10) Saund. 96, 289, note 2 ; 25 "Wendell, 414 ; Com. Dig., Pleader, P. 1. 
 
 (II) 14 J. R. 828 ; 8 Cowen, 132; 2 Arch. Pr. 217. 
 (12) 3 HiU, 444. 
 
842 INCIDENTAL PROCEEDINGS. 
 
 § 1032. If the plaintiff demand oyer, the defendant, according 
 to the English practice, must grant it within two days, exclusive 
 of that on which the demand is made, Sunday not being reckoned 
 if it is the last of the two.(l) Otherwise the plaintiff may sign 
 judgment as for want of a plea.(2) And in New York it was held 
 that, after twelve days from demand of oyer by a plaintiff of a 
 release pleaded by the defendant, no oyer being given, he might 
 treat the plea as a nullity, and enter the defendant's default.(3) 
 The plaintiff has the same time to reply after oyer given, as he had 
 at the time of demanding it.(4) When a party is bound to give 
 oyer of a deed, he must not only furnish a true copy of the instru- 
 ment itself, but also of all indorsements and memoranda upon itj 
 and of all papers attached to it.(5) 
 
 § 1033. If the party demanding oyer do not appear to be enti- 
 tled to it, the other party may refuse to grant it. If the party 
 insist upon his demand, he must then move the court to have his 
 prayer of oyer entered upon the record.(6) This being in the na- 
 ture of a plea, the other party, if he wish to contest the oyer, may 
 counterplead or demur to it, and the court will thereupon give 
 judgment.(7) The judgment is, either that the party have oyer, or 
 that he answer without it. (8) Upon this judgment a writ of error 
 may be brought ; for, to deny oyer when it ought to be gran,ted, is 
 error, but not e converso.{9) 
 
 § 1034. After oyer is granted upon the demand of a defendant, 
 it should precede on the record the matter of the defence, whether 
 that be by plea or demurrer.(lO) A defendant seeking to avail 
 •himself of the condition of a bond, must crave oyer, and set forth 
 the bond and condition in his plea ; otherwise it is no part of the 
 record, though oyer has been given with the declaration. (11) If 
 correct oyer has once been given, and the plaintiff afterwards amend 
 his declaration, it is not necessary to serve new oyer with the 
 
 (1) 2 T. R. 40. 
 
 (2) 6 Mod. 122; 2 Arch. Pr. Sit | 1 Tidd's Pr. 588. 
 
 (3) 4 WendeU, 214. (4) 1 Tidd'a Pr. 588. 
 
 (5) 24 Wendell, 316; and see Willes, 288; 1 Tidd's Pr. 586; 18 J. R. 444; 
 2 Aroh. Pr. 217. 
 
 (6) 6 Mod. 28 ; 1 Tidd's Pr. 588. 
 
 (7) 2 Lev. 142 ; 6 Mod. 28 ; 2 Salk. 498 ; 2 Ld. Raym. 970. 
 
 (8) 2 Lev. 142. 
 
 (9) 2 Sails:. 497 ; 6 Mod. 28; 1 Tidd'a Pr. 588. 
 
 (10) 25 WendeU, 636. (11) Id. 414. 
 
OYEE. 343 
 
 amended declaration. (1) If there be a variance between the declara- 
 tion and oyer, the defendant should set forth the instrument, and 
 demur to the declaration for the variance ;(2) and he cannot take 
 advantage of it at the trial.(8) 
 
 § 1085. If there be a variance between the deed and oyer,(4) or 
 between the deed and the declaration,{5) the defendant, according 
 to the common law practice, should have pleaded non est factum, 
 without setting forth the deed on oyer, and avail himself of the 
 variance on the trial ;(6) and he may do so, according to our pres- 
 ent practice, under the general plea to the action.'(7) But a slight 
 variance between the deed and oyer, or deed and declaration, will 
 not be regarded. (8) And if the defendant plead, without calling 
 on the plaintiff to set forth the attestation and names of the wit- 
 nesses in the oyer, it is a waiver of the objection that they were 
 not given. (9) 
 
 § 1036. "When oyer was demanded and given, but different 
 from the deed as set forth in the declaration, and the defendant 
 pleaded non est factum, it was held that the plaintiff could not, on 
 serving a new oyer, setting forth the instrument correctly, after the 
 expiration of twenty days, enter judgment by defanlt.(lO) 
 
 The plaintiff has been allowed to amend his oyer, on payment 
 of costs, even after a trial and verdict for him, in opposition to a 
 motion by defendant in arrest of judgment, it appearing that the 
 variance arose from a clerical mistake, and that the defendant was 
 not deprived, by the mistake, of a substantial defence.(ll) 
 
 § 1037. Demand of oyer hy defendant. 
 [Title.] 
 
 The defendant demands oyer, and copy of the writing ob- 
 ligatory, and the condition thereof [or '■'•indenture," or " articles of 
 agreem.ent "] mentioned in the declaration in this cause. Dated, &c. 
 
 Yours, &c, G. H., Defendant's Attorney. 
 
 To E. F., Plaintiff's Attorney. 
 
 § 1038. The particulars of the plaintiff's demand, or cause of 
 action, are most frequently required in actions upon contracts, and 
 
 (1) 1 Johns. Cas. 41 S. (2) 5 Hill, 143 ; 2 id. 616. 
 
 (3) 8 J. R. 410, and note; 14 J. E. 400. (4) 5 Taunt. 101 ; 1 Marsh. 214. 
 
 (5) 11 East, 633; 1 Campb. 10. 
 
 (6) 8 J. R. 210, note; 6 "Wendell, 629. See 2 Hill, 616. 
 
 (I) Comp. L. 1150. (8) 19 J. R. 49 ; and see 6 Cowen, 360. 
 (9) 18 J. R. 445. (10) 2 Caines' R. 116. 
 
 (II) 1 Cowen, 483. 
 
344 INCIDENTAL PROCEEDINGS. 
 
 particularly in actions of general assumpsit for work and labor, 
 goods sold and delivered, and tlie like. And in assumpsit for the' 
 non-performance of a contract for the sale of a house, with countsj 
 to recover back the deposit, the plaintiff having in his first count 
 alleged that the defendant, who was to make a good title, had de- 
 livered an abstract which was insufficient, defective, and objec-( 
 tionable, the court obliged the plaintiff to give a particular of all 
 objections to the abstract, arising upon matters of fact.(l) And 
 in an action by a vendee to recover back his deposit, because the 
 condition of the sale had not been complied with, the defendant 
 may have a particular of the grounds on which the plaintiff seeks 
 to recover.(2) And in actions of debt on bond, conditioned for the 
 performance of covenants, or to indemnify, &c., the defendant may 
 call for a particular of the breaches for which the action is 
 brought.(3) And when a general form of declaring is given by 
 statute, it seems reasonable that the plaintiff, if required, should 
 give an account of the particulars of his demand, in order to enable 
 the defendant to be prepared for his defence.(4) 
 
 § 1039. But whenever the particulars of the cause of action are 
 fully specified in the declaration, as in special assumpsit, covenant, 
 or debt on articles of agreement, &c., or in actions on matters of 
 record, a demand of particulars is unnecessary. (5) Nor is it neces- 
 sary, in a bill of particulars, to specify a promissory note set forth 
 in the declaration. (6) In actions ex delicto, the injury complained 
 of is generally stated in the declaration, and, therefore, it is not 
 usual in such actions to ask for a bill of particulars ; but circum- 
 stances may occur which render it necessary. Thus, it has been 
 allowed in trover, (7) escape, (8) and trespass de bonis asporfatis.{9) 
 But the court refused to compel the delivery of a particular in an 
 action on the case against an attorney for negligence in assigning 
 household property, whereby the plaintiff had to pay damages to 
 the assignee.(lO) 
 
 § 1040. The demand of particulars of the plaintiff's cause of 
 action cannot be made until after declaration. (11) It should, in gen- 
 
 (I) 3 Bos. & Pul. 246. (2) 1 Campb. 293. 
 
 (3) 1 Tidd'a Pr. 691. (4) Id. (5) 2 Arch. Pr. 221. 
 
 (6) 4 Wendell, 200; 2 Carr. & P. 26'7; and see 1 Mees. & "W. 51S. 
 0) 4 Cowen, 54. (8) T D. & R. 1U. 
 
 (9) 2 Chitt. Arch. 876. See 10 Mees. & W. BT'?. 
 
 (10) 3 Bing. N. R. 326 ; 5 Dowl. P. 0. 370. ^ 
 
 (II) 1 Chitt. R. 725, note. See 1 Cowen, 572, note. 
 
BILLS OF PAETICULAES. 345 
 
 3ral, be made before plea, but may be made afterwards, it seems, 
 when it can be complied with, without occasioning unnecessary 
 delay. (1) In the cases in which the defendant is entitled to de- 
 mand a bill of particulars, the plaintiff must furnish it upon being 
 served with a notice requiring it ; and, if demanded before the ex- 
 piration of the time to plead, the defendant has the like time to 
 plead after receiving it, to which he was entitled on serving the 
 notice. (2) 
 
 § 1041. If the plaintiff unreasonably neglect to furnish a bill 
 of particulars, or if the bill delivered be insufficient, the defendant 
 may move that the plaintiff be non-suited, and the court will, in 
 its discretion, non-suit the plaintiff, allow further time to furnish it, 
 or require a more particular bill to be delivered.(3) And it seems 
 that a plaintiff may be non pressed as to his common counts only, 
 leaving him to proceed on his special count, if his declaration con- 
 tain one.(4) The plaintiff may voluntarily serve with his declara- 
 tion a bill of particulars, or he may do so after declaring, and thus 
 avoid delay. But this is not usual, except in actions on bills and 
 notes under the statute, when the note or bill is the only demand, 
 and is intended to be given in evidence under the common money 
 counts.(5) 
 
 § 1042. The bill should set forth the plaintiff's claim with 
 sufficient particularity to enable the defendant to meet it at the 
 trial, stating the items of the demand, and when and how it arose, 
 and the sums claimed. Time is material in a biU of particulars ;(6) 
 and the dates of the items should be given with as much particu- 
 larity as possible. If the plaintiff cannot state the precise day, he 
 should give the month or year.(7) But the bill need not state the 
 credit side of an account.(8) And if it refer generally to an ac- 
 count which has been already rendered, without re-stating the 
 items of it, that has been held sufficifent.(9) It need not be in any 
 particular form ; and when, in answer to a request by the defend- 
 ant's attorney for a bill of particulars, the plaintiff's attorney wrote 
 ■him that the claim was only on the note declared on, it was held 
 that it amounted to a bill of particulars, so as to bind the plain- 
 
 (1) See 3 Wendell, iSI. (2) Rule 31. 
 
 (3) Rule 38. See 1 Cowen, 572 ; 4 id. 56; i Hill, 50; U J. R. 329. 
 
 (4) 5 Cowen, 249. (5) 1 Hill, 214, 369. 
 (6) 2 ■Wendell, 511. (7) 4 Cowen, 54. 
 
 (8) 15 J. R. 222. (9) Peake, 172 ; 1 "Wendell, 289. 
 
346 INCIDENTAL PROCEEDINGS. 
 
 tLff.(l) A bill of particulars, containing several charges for casli 
 in different sums, without stating whether the money was lent to, 
 paid out for, or received by the defendant, is insufBcient.(2) So, 
 also, is a bill containing charges for "one note $1,000," another note 
 of the same amount, and " one note $500," without any other 
 description.(3) And so is a bill containing charges for goods 
 sold, &c., giving dates and sums, and then adding, " The same 
 items as above, in every respect, in each year, and on every day 
 of the same (Sundays and the fourth of July excepted), from 
 Sept. 1st, 1838, to Jan. 1st, 1840."(4) 
 
 § 1043. If, after the service of a bill of particulars, the plain- 
 tiff discover that it is incorrect or insufficient, he should apply for 
 leave to amend it, for which purpose, before issue joined, he may, 
 on a proper affidavit, procure a judge's order to show cause why 
 the amendment should not be made, &c. If no sufficient cause be 
 shown, the order will be made absolute.(5) But after issue, and 
 the cause is noticed for trial, application should be made by mo- 
 tipn to the court.(6) And the court has allowed the plaintiff to 
 amend his bill after the cause was .tried, and a new trial granted, 
 and the cause twice noticed for trial afterwards ;(7) and an amend- 
 ment has been allowed after a non-suit.(8) 
 
 § 1044. At the trial, the particulars of the plaintiff's demand 
 are cpnsidered as incorporated with the declaration, and on pro- 
 duction of the bill of particulars, and proof of its delivery, whether 
 rendered on notice or voluntarily, (9) the plaintiff will be confined 
 in his proof to the items it contains. (10) Thus, when the bill stated 
 the plaintiff's demand to be for goods sold by the plaintiff to the 
 defendant, the plaintiff was not allowed to give evidence of goods 
 sold by the defendant, as agent for the plaintiff ;(11) and when the 
 biU stated various sums of money due by the defendant, but some 
 of which were in fact owing from the defendant and his partner, 
 and not from the defendant alone, and the defendant pleaded the 
 non-joinder in abatement, the plaintiff was not allowed to give 
 evidence of those which were due from the defendant solely, 
 because they were not distinguished from the others in the bill of 
 
 (1) 1 Cowon, 316; and see 5 Wendell, 48. 
 
 (2) 4 Hffl, 50. (3) Id. (4) Id. 
 
 (5) 4 Cowen, 503. (6) Id. 144. (7) 4 Oowen, 503. 
 
 (8) 2 B. & P. 245. (9) 1 Cowen, 316. 
 
 (10) 2 Arch. Pr. 222 ; 1 Tidd's Pr. 599. (11) 2 B. & P. 243 ; 3 Bsp. 168. 
 
BILLS OF PARTICULARS. 347 
 
 particulars.(l) So, it was held that, under a bill of particulars 
 for goods sold and delivered, the plaintiff could not recover for 
 Tnoney had and received, although it appeared that the goods had 
 been delivered to the defendant as agent, for sale or return, and 
 that he had sold them and received the value. (2) 
 
 § 1045. It has also been held that evidence of work done in 
 1820, was not admissible under a bill specifjing items of work 
 under date of 20th April, 1821.(3) But as the object of this 
 strictness in a bill of particulars is, that the defendant may know 
 what will be attempted to be proved against him at the trial, and 
 may prepare his evidence accordingly, a mistake in a particular 
 not calculated to deceive or mislead him, will not be regarded as 
 material. (4) Thus, an error in the date of one item,(5) or in 
 describing the parish in which the premises, in an action of debt 
 for rent, were situated, (6) or in describing the business of the 
 plaintiff,(7) or the association to which the defendant belonged, (8) 
 was held to be immaterial, because it could not have misled the 
 defendant.(9) So, where a payment made on account of the de- 
 fendant to A., was stated to have been to B., it was held to be 
 immaterial, unless the defendant would make af&davit that he 
 was misled by the particular.(lO) 
 
 § 1046. A variance between the particulars and the proof has 
 also been held immaterial in the following cases : when the par- 
 ticulars specified a bill of 60Z., bearing date on a certain day, and 
 the evidence was of a bill for 63Z., dated on a different day in the 
 same year and month ;(11) when the particulars described promis- 
 sory notes as bearing interest, and the proof did not support that 
 statement ;(12) when the particulars stated the demand to be for 
 moneys received by the defendant for the use of the plaintiff's tes- 
 tator, specifying the amount to be $605.63, and setting forth the 
 foundation of the claim, and the proof was that the defendant re- 
 ceived $644.45, on the same account ;(I3) when the action was for 
 money had and received to the use of a lankrupt, and the particu- 
 lar was for money had and received to the use of the plaintiffs as 
 
 (I) 1 Esp. 452 ; 2 Sellon'sPr. 339. (2) 8 Bing. 145; 1 Moore & S. 22'7. 
 (3) 2 WendeU, 51T. (4) 2 Arch. Pr. 223; 4 Wendell, 360. 
 (5) 2 Taunt. 224; 1 How. 1'72. (6) 3 M. & S. 380. 
 
 (T) 8 Bing. 411. (8) 10 "Wendell, 268. 
 
 (9) 3 'Wendell, 344. (10) 1 Campb. 69, note. 
 
 (II) Manning's Ind. 24,0 ; 2 Chitt. Arch. 880. 
 
 (12) 3 Wendell, 344. (13) 5 Wendell, 48. 
 
348 INCIDENTAL PEOCEEDINGS. 
 
 assignees ;{\.) wben the particular claimed for money paid, and the 
 evidence was that the plaintiff had paid a debt of the defendant, 
 for which he was responsible, by the conveyance of land accepted 
 in satisfaction.(2) 
 
 § 1047. So, in ejectment to recover premises forfeited for the 
 non-payment of rent, a variance between the amount of rent proved 
 to be due and the amount demanded in the bill, was held to be 
 immaterial.(3) So, disbursements have been held recoverable under 
 an item for cash advanced.{4:) And in a suit of the indorsee against 
 the indorsers of a promissory note, when the bill stated the indorse- 
 ment in blank, which was filled up on the trial, it was held no va- 
 riance.(5) 
 
 An objection for variance must be taken at the trial, and cannot 
 be made afterwards.(6) And although the plaintiff is confined in 
 his proof to the items contained in his bill of particulars, yet, if it 
 appear from the defendant's evidence that he is entitled to recover 
 for items not included in the bill, he may recover for such items.(7) 
 So, also, evidence of matters not contained in the bill is admissible 
 when the object is to rebut evidence of a claim of the opposite 
 party,(8) or to prove a collateral matter.(9) 
 
 § 1048. To obtain the particulars of the defendants set-off, it is 
 only necessary for the plaintiff to serve upon the defendant's attor- 
 ney a request, in writing, that he furnish the same, and, in case it 
 be not furnished within thirty days after such request, the court 
 may exclude all testimony touching it.(lO) If the particulars fur- 
 nished be insufficient, the plaintiff may get an order for further 
 particulars, on application to the court. The same rules apply to 
 the form and contents of the bill of particulars of the set-off as to 
 those of the plaintiff's demand, and the bill may be amended in 
 the same way. A bill of particulars, describing a joint and sev- 
 eral note made by the plaintiff and another person as a note made 
 J3y the plaintiff, is sufficient to entitle the defendant to give the 
 note in evidence, under a notice of set-off.(ll) 
 
 § 1049. A party giving a bill of particulars is not held thereby 
 to farnish evidence against himself, but is merely confined, on the 
 
 (1) 1 Mood. & M. 13'7. (2) 2 WendeU, 481. 
 
 (3) 3 Bing. 3. (4) 1 Moore & S. 536. 
 
 (5) 6 Cowen, 449 ; 1 Burr. Pr. 433, note. 
 
 (6) 1 WendeU, 202. (1) 1 Campb. 68 ; 1 Cowen, 316. 
 (8) 2 Weudell, 593. (9) 2 Bred. & B. 682. 
 
 (10) Rule 39. (11) 23 Wendell, 511. 
 
BILLS OF PARTICULARS. 349 
 
 trial, to the range of proof prescribed by himself; and where ref- 
 erees allowed the plaintiff to resort to the defendant's set-off, to 
 establish a fact, it was held that the evidence was improperly ad- 
 mitted.(l) 
 
 § 1050. Notice to plaintiff to furnish a hill of particulars. 
 [Title.] 
 
 Sir : — Please to take notice that the plaintiff is required to 
 furnish to the defendant's attorney an account in writing of the 
 particulars of his demand for which this action is brought. Dated, 
 &c. Yours, &c., 
 
 Gr. H., Defendant's Attorney. 
 To E. ¥., Esq.., Plaintiff's Attorney.(2) 
 
 § 1051. Bill of particulars of plaintiff s demand. 
 [Title.] 
 
 Sir : — Please to take notice that the following is a bill of 
 particulars of the plaintiff's demand in this cause, and for the re- 
 covery of which this action is brought, to wit : 
 
 1856, April 10, money lent to the defendant, - $250.00 
 " " 13, money paid to R. B. M. for defendant, 100.00 
 " " 27, one horse, sold to the defendant, - 75.00 
 " May 16, one month's labor of plaintiff for de- 
 fendant, 15.00 
 
 [And so throughout, giving the dates, items, and sums with as 
 much particularity as possible.] Dated, &c. 
 
 Yours, &c., E. F., Plaintiff's Attorney. 
 
 To Gr. H., Esq., Defendant's Attorney. 
 
 § 1052. Order to show cause why particulars should not he 
 amended. 
 [Title.] 
 
 On service of this order, and a copy of the affidavit upon 
 which the same is granted, let the plaintiff's [or " defendants] at- 
 torney show cause before me at my chambers in , on the — 
 
 day of , at ten o'clock in the forenoon, why the bill of par- 
 ticulars heretofore furnished by the defeadant [or ^'■plaintiff"] in 
 this cause should not be amended in the particulars specified in 
 said affidavit, and in the meantime let all proceedings in this cause 
 be stayed. [Dated, signed, &c.] 
 
 § 1053. Rule that plaintiff he non- suited for not furnishing hill {or 
 a sufficient hill) of particulars. 
 [Title.] 
 
 It appearing to the court now hqre that the plaintiff in this 
 caxise has unreasonably neglected to furnish to the defendant a bill 
 
 (1) 1 Hall, 379 1 and see Vl Wendell, 20, aa to the effect of a bill of particulars in 
 general. (2) Rules 3T and 38. 
 
350 INCIDENTAL PROCEEDINGS. 
 
 [or " a sufficient iilV] of tlie particulars of his demand, for the 
 recovery of which this suit is brought, after notice requiring the 
 same duly given, pursuant to the rules and practice of this court, 
 on motion of Mr. H., of counsel for the defendant, and after hearing 
 Mr. F., of counsel for the plaintiff, in opposition thereto, it is Or- 
 dered, that the said plaintiff be, and he is hereby non-suited.(l) 
 
 § 1054. The court, on good cause shown, may change the venue 
 in any cause pending therein, and direct the issue to be tried in 
 the circuit court of another county, and make all necessary rules 
 and orders for certifying and removing such cause, and all matters 
 relating thereto, to the court in which such issue is ordered to be 
 tried ; and the court to which any civil cause is so removed, is re- 
 quired to proceed to hear, try and determine the same, and to ex- 
 ecute its judgment therein, in the same manner as if it had been 
 originally prosecuted in such court.(2) 
 
 § 1055. Neither the statute or rules of practice specify the cases 
 in which the venue will be changed, but the most usual, and per- 
 haps the only cases in which a change of venue will be ordered by 
 the court, are— 1, on the ground of the convenience of parties and 
 witnesses, and, 2, for the purpose of a fair and impartial trial. (3) 
 "When there are several defendants, they should all join in the 
 motion, (^4) unless some have suffered a default, in which case the 
 others may move alone.(5) So, when tbe action is in form against 
 several, and process has been served upon some only, the defend- 
 ants served may make the motion. (6) And in a joint action, under 
 the statute, against the several parties to a bill or note, if the action 
 become severed, any of the several defendants may move ; and a 
 plaintiff may make the application as well as a defendant. If the 
 party moving have so delayed that the change of venue will occa- 
 sion the necessity of delay in the trial, the court will in general 
 refuse the application, provided it be clearly chargeable to the 
 party's neglect.(7) 
 
 § 1056. If circumstances require it, the party may, on present- 
 ing the motion papers to the judge or csmmissioner, obtain an 
 order for staying the proceedings for the purpose of making the 
 motion ;(8) but no such order will be granted if it appear that there 
 
 (1) Rule 38. (2) Comp. L. 995. 
 
 (3) See 1 Burr. Pr. 412. (4) 6 -Wendell, 508 ; 1 Howard S. T. R. 156. 
 
 (5) 12 Wendell, 200. (6) 4HiU, 62, note. 
 
 (7) See 3 Gaines' K. 104; 3 J. R. 44T ; 4 Cowen, 554; 18 "Wend. 514; 22 id. 615. 
 
 (8) Rule 74. 
 
CHANGE OF VENUE. 651 
 
 has been unnecessary delay in proceeding. The order, if granted, 
 will not stay the other party from putting the cause at issue, or 
 taking any other step, except giving notice of trial and subpoenaing 
 witnesses. The affidavit upon which the motion is founded, must 
 set forth fully the circumstances upon which the party relies to 
 obtain a change of venue, and must in general be made by the 
 party himself, though, under special circumstances, set forth there- 
 in, it has beea held sufficient when made by his attorney. (1) 
 
 § 1057. If the motion is grounded on the convenience of parties 
 and witnesses, the affidavit should state the names of the witnesses 
 residing in the county to which the party seeks to change the 
 venue,(2) and their residences ;(3) stating the town, village, or 
 particular place of residence, in addition to the county, and that 
 each and every of them is material to the prosecution or defence, 
 as the party is advised by his counsel, and verily believes ;(4) and 
 that, without the testimony of each and eYQrj of them, he cannot 
 safely proceed to trial, as he is advised by his counsel, and verily 
 believes ; and that he has fully and fairly stated the case to his 
 counsel, giving the name and residence of such counsel, and has 
 fully and fairly disclosed to him the facts which he expects to 
 prove by each and every of his witnesses; (5) and (if it be the de- 
 fendant who applies) that he has a good and substantial defence on 
 the merits, as he is also advised by his said counsel, and verily be- 
 lieves. (6) The affidavit may also state the nature of the contro- 
 versy, and show how the witnesses are material, and may also 
 show when the cause of action, or the defence, or both of them, 
 arose ; and those facts will be considered by the court in fixing the 
 place for trial. (7) 
 
 § 1058. The other party may resist the motion by a similar 
 affidavit, showing material witnesses residing, in the county where 
 the venue is laid. (8) It is no answer to a motion to change the 
 venue that the plaintiff will lose a trial, when the defendant is not 
 chargeable with such laches as to occasion the delay.(9) And 
 when the plaintiff swore to a greater number of witnesses than the 
 defendant did, but failed_to answer statenients contained in the de- 
 
 (1) 4 HiU, 64, note. (2) 6 Cowen, 389. 
 
 (3) 1 Hill, etl. (4) 3 Wendell, 425. 
 
 (5) 19 Wendell, 10 ; 1 Howard S. T. R. 55, 10, 165. 
 
 (6) 4 HUl, 64, 66. (1) See 1 Burr. Pr. 413. 
 
 (8) 2 Caines' R. 3V4 ; 3 id. 95 ; 2 J. R. 481 ; 1 Cowen, 102; 19 Wendell, 10. 
 
 (9) 22 WendeU, 616. 
 
352 INCIDENTAL PEOCEEDINGS. 
 
 fendant's affidavit, tending to shoV that others might be substi- 
 tuted for several of those named by the plaintiff, the motion was 
 granted.(l) 
 
 § 1059. When the ground of the motion is that a fair and im- 
 partial trial cannot be had in the county where the suit is com- 
 menced, this must be made to appear very conclusively, in order 
 to induce them to change the venue. Accordingly, the motion 
 was denied where it was founded merely on the fact that the sheriff 
 of the county was a party to the suit ;(2) or that the corporation of 
 a city was a party, when the venue was laid in that city ;(3) or, in 
 an action of slander, or libel, that a violent party spirit prevailed 
 in the county.(4) And the existence of a strong popular excite- 
 ment in a county, on the subject matter of a libel suit, was held to 
 be no cause for refusing to change the venue on an ordinary affi- 
 davit.(5) But the venue was changed on the ground of excite- 
 ment, after two ineffectual attempts to obtain a verdict in the 
 county where the venue was laid.(6) And it was held sufficient 
 cause to change the venue, that the circuit judge of the district 
 where the venue was laid was, previous to his appointment, coun- 
 sel in the cause. (7) 
 
 § 1060. Another mode of transferring a civil suit or proceed- 
 ing for trial from one circuit court to another, has been provided , 
 by statute, where the judge of the court in which it is pending is 
 a party, or is a member of a corporation which is a party, or when 
 he would be excluded from sitting as a juror by reason of consan- 
 guinity or affinity to any party thereto.(8) Any party desiring to 
 transfer any such, suit or proceeding, may apply to a circuit court 
 commissioner of the county in which the same is pending, or to the 
 judge of any adjoining circuit, who is not so disqualified, for an 
 order to transfer the suit ; which application must be in writing, 
 and must specifically set forth the ground for the transfer. And 
 the parties to any such suit or proceeding may, by stipulation in 
 writing, consent to the transfer thereof, without arfy application to 
 a judge or commissioner; in which case the stipulation has the same 
 effect as an order duly inade for that purpose.(9) 
 
 (1) 5 Hai, 509; 1 Howard, VS. (2) 2 Cainea' R. 46. 
 
 (3) 2 Johna. Gas. 335. (4) 1 Gaines' E. 48T. 
 
 (5) 2 "Wendell, 250. (6) 12 Wendell, 203. 
 
 (V) 2 "Wendell, 290. (8) Comp. L. 1000, 1001. 
 (9) Laws of 1858, p. 14. 
 
CHANGK OF VENUE. 353 
 
 § 1061. The application must be in writing, and, according to 
 the usual .course of similar proceedings, should be on oath, either 
 in the form of a petition or an affidavit. On receiving the appli- 
 cation, the judge or commissioner must appoint a time and place of 
 hearing, and direct the manner in which notice of the hearing shall 
 be given to all parties intereeted in such application ; and on the 
 day appointed for the hearing, or on such other day as the hearing 
 may be adjourned to, if it appear that notice has been duly given, 
 he proceeds to hear and determine the application. The judge or 
 commissioner may issue subpoenas for witnesses, and require their 
 attendance as in other cases, and will hear the proofs and allega- 
 tions of the parties, and, if he find cause for granting the order, 
 will specify therein the county to which the cause is transferred. (1) 
 
 § 1062. If any party, or the attorney of record of any party, 
 is a resident of any other county, and the circuit judge for that 
 county is not disqualified, the suit or proceeding must be trans- 
 ferred to such county, unless the parties, by stipulation, otherwise 
 agree. The order must briefly recite the proceedings before the 
 judge or commissioner, and on filing the same with the clerk of 
 the court to which the proceeding is ordered to be transferred, 
 that court becomes possessed of the case, and has jurisdiction of 
 the same as fully as if it had been legally commenced in such 
 court, and may grant such order as may be necessary for the trans- 
 fer of the files and orders relating thereto, and cause notice of the 
 transfer to be given.(2) 
 
 § 1063. Upon delivering to the clerk of the court in which the 
 suit or proceeding was commenced a copy of the order of transfer, 
 duly certified by the clerk with whom the original is filed, he is 
 required to attach together all the original papers filed in the 
 cause or proceeding, and to make true copies of all orders made 
 and entered therein, and to transmit the same, certified under his 
 seal, to the clerk with whom the order of transfer was filed ; which 
 files and copies thereupon have the same force and effect as origi- 
 nal proceedings therein.(3) 
 
 § 1064. Order to stay proceedings for the purpose of moving to 
 change the venue. 
 [Title.] 
 
 Upon reading the within affidavit, it is Ordered, that all pro- 
 ceedings in this cause be stayed until the — day of , to enable 
 
 (1) Comp. L. 1001. (2) Comp. 1. 1001, 1002. (3) Comp. L. 1002 
 
 23 
 
354 INCIDENTAL PE0CEEDING3. 
 
 the defendant [or "plaintiff"] to moye to change the venue in 
 this cause, and, if the motion be then made, until the order of the 
 court thereon. [Dated and signed.] 
 
 § 1065. Revocation of the preceding order. 
 [Title.] 
 
 The plaintiff [or " defendant "] in the above entitled cause, 
 having presented and filed with me an affidavit showing such? 
 facts as will entitle him to retain the venue in said cause, I hereby 
 revoke the order to stay proceedings therein, granted by me oh 
 the — day of . [Dated and signed.] 
 
 § 1066. Rule to change the venue. 
 
 r-rp-.j -1 G. H., Defendant's attorney. 
 lizue.i j,_ j,_^ Plaintiff's attorney. 
 
 On reading and filing the affidavit in this cause, and on 
 motion of Mr. H., of counsel for the defendant, and after hearing 
 counsel in opposition thereto, [or " no one appearing to oppose,^^ 
 Ordered, that the venue in this cause be changed from the county 
 
 of' to the county of , and that the issue in said cause 
 
 be tried in the circuit court for the said county of . And 
 
 it is further Ordered, that the clerk of this court do, without delay, 
 transmit to the clerk of the said circuit court for the county of 
 
 , all the original files and papers in said cause, together 
 
 with certified copies of all rules and orders made and entered in 
 said cause.(l) 
 
 § 1067. Rule denying motion to change the venue. 
 
 j-rp-.j -1 E. F., Attorney for Plaintiff. 
 
 lliue.] Q -^^ Attorney for Defendant. 
 
 A motion having been made on the part of the defendant 
 to change the venue in this cause, after hearing counsel for the 
 respective parties. Ordered, that the said motion be denied, [with 
 — — dollars costs.] 
 
 § 1068. Order of commissioner on receiving application to trans- 
 fer a cause on account of the disqualification of the judge. 
 
 Upon receiving the within application to transfer this cause 
 to another circuit court, it is Ordered, that the hearing of the said 
 
 application be had at my office, in , on the — day of 
 
 next, at ten o'clock in the forenoon, and that the plaintiff give 
 notice thereof to the defendant's attorney, by serving on him a 
 copy'of the within affidavit [or "petition "] and this order, at least 
 — days before the time herein appointed for such hearing. 
 [Dated and signed.] 
 
 (1) Comp. L. 995. 
 
EEFERRING CAUSES. 355 
 
 § 1069. Order to transfer cause. 
 ITitk.] 
 
 An application having been heretofore made to me by the 
 plaintiff in this cause, for an order to transfer the same to another 
 circuit, on the ground that the judge of this court is a party thereto, 
 [or as the case may be ;] and I having appointed this day, at ten 
 o'clock in the forenoon, for the hearing of the said application, at 
 
 my office in , and directed the manner in which notice of such 
 
 hearing should be given to all the parties interested in such appli- 
 cation, and it appearing to me, by the affidavit of • , that the 
 
 notice of such hearing has been duly given in pursuance of such 
 direction, after hearing the proofs and allegations of the parties, 
 and the arguments of counsel, and it appearing to me that the hon. 
 B. F. H. W ., judge of this court, is a party to this suit, [or, " is a 
 member of the Detroit and Howell Plank Road Company, which is a 
 corporation, and a party to this suit" or, as the case may be] ; it is 
 Ordered, that this cause be transferred to the circuit court for the 
 county of ■. [Dated and signed.] (1) 
 
 § 1070. "When a cause is at issue, and it appears to the court 
 that the trial of the same will require the examination of a long 
 account on either side, the court may, upon the consent of loth parties 
 in writing, signed by them or their attorneys, and filed with the 
 clerk, order such cause to be referred to three impartial and com- 
 petent persons.(2) A referee, under this provision of the statute, is 
 proper only in cases of accounts between the parties; and when 
 there is no account, in the usual acceptation of the term, the cause 
 cannot be referred, although there may be many items of damage.(3) 
 It is a proceeding applicable only to actions of assumpsit, or debt 
 on simple contract, and perhaps to some cases of covenant.(4) If 
 an action of tort be referred, although by the consent of parties,, and 
 a report made, it has been held that no judgment can be entered 
 upon it, and, if entered, will be set aside on motion.(5) 
 
 § 1071. If the parties agree on three persons as referees, such 
 persons must be appointed by the court. If the parties disagree, 
 each party is entitled to name one, and the court is required to 
 appoint the persons so named, if they are free from all exceptions, 
 and such other persons as the court shall designate. The referees 
 so appointed must proceed with diligence to hear and determine 
 the matters in controversy. They must appoint a time and place 
 for the hearing, and may adjourn the same from time to time, as 
 
 (1) Comp. L. 1001, 1002. (2) Comp. L. 1153. (3) 6 HiU, 3'73. 
 
 (4) 19 "Wend. 108 ; 9 id. 480 ; 6 id. 503. (5) 19 Wead. 108 ; 2 HiU, 2n. 
 
356 INCIDENTAL PEOCEEDINGS. 
 
 may be necessary ; and, on tlie application of eitlier party, and for 
 good cause shown, they may postpone such hearing to a time not 
 extending beyond the next term of the court in which the suit is 
 pending. (1) 
 
 § 1072. Upon the entry of the order appointing referees, notice 
 should be given them of their appointment by the plaintiff's at- 
 torney. This is usually done by serving them with a copy of the 
 order ; whereupon, and without delay, they should appoint a time 
 and place for the hearing. Notice of the time and place of hearing 
 should be given to the opposite attorney, at least fourteen days 
 before the day of hearing. Witnesses may be compelled to appear 
 before such referees, by subpoenas issuing out of the court in which 
 the cause is pending, in the same manner, and with the like effect, 
 as in cases of trials in such court ; and any one of the referees may 
 administer the necessary oath to the witnesses produced before 
 them for examination.(2) 
 
 § 1073. The cause having been duly noticed for hearing (which 
 may be done by either party), all the referees must meet at the time 
 and place designated therefor, and hear all the proofs and allega- 
 tions of the parties ; but a report by any two of them, in such case, 
 is valid. (3) They may be compelled, by the order of the court, to 
 proceed to the hearing, and to make report of the amount they find 
 due to either party ;(4) and the court may require them to report 
 their decision in admitting or rejecting any witness, in allowing or 
 overruling any question to a witness, or the answer thereto, and 
 all other proceedings by them, together with the testimony before 
 them, and their reasons for allowing or disallowing any claim of 
 either party.(5) 
 
 § 1074. Before proceeding to hear any testimony in the cause, 
 the referees must be severally sworn faithfully and fairly to 
 hear and examine the cause, and to make a just and true report, 
 according to the best of their understanding ; which oath may be 
 administered by any judge, clerk of a court of record, justice of the 
 peace, or notary public.(6) The parties may then produce their 
 respective proofs and allegations. If one of the parties fail to at- 
 tend, the other party may proceed ex parte in his absence.(7) On 
 
 (1) Comp. L. 1154. (2) Id. (3) Id. 
 
 (4) Id. See 1 ■WendeU, fl; 3 J. B. 260. (5) Comp. L. 1154. 
 
 (6) Id. (7) 11 J. B. 402. 
 
EEPEKRIlSra CAUSES. 357 
 
 the hearing, the same rules of evidence are to be observed, and the 
 same forms of proceeding pursued, as on the trial of a cause before 
 a jury.(l) It has been held that, after the cause has been sub- 
 mitted, and the referees have retired, they may, in their discretion, 
 open it, and adjourn to receive further testimony.(2) 
 
 § 1075. The referees may adjourn the hearing for a reasonable 
 time, on their own motion, without the consent of parties ; and such 
 adjournments, although they may extend the time of hearing be- 
 yond the next term of the court, will not put an end to their 
 authority.(3) But they cannot, on motion of one of the parties, and 
 without the consent of the other, postpone the hearing beyond the 
 'next general term of the court ;(4) and if either party desire such 
 a postponement, he must apply to the court.(5) If the referees 
 adjourn improperly, they lose all power over the cause ; but the 
 plaintiff cannot, in such case, proceed to a trial before the court, 
 without first obtaining leave of the court.(6) In order to adjourn, 
 all the referees must meet ;(7) and when the hearing is postponed, 
 it has been held that they may require the payment of costs as a 
 condition to the postponement ;(8) but that the court will not, in 
 case of refusal to pay them, award a precept against the party, nor 
 compel payment on motion.(9) 
 
 § 1076. The referees, after hearing and examining the case, 
 should proceed to make up their report, and if they fail to do so, 
 the court will compel them by a rule requiring them to do so, or 
 show cause why an attachment should not issue against them. (10) 
 The report is in the nature of a verdict,(ll) and must find the sim- 
 ple fact of " diie," or " not due," and the amount. If it merely stat^ 
 facts, without any finding, it is irregular, and will be set aside.(12) 
 The referees may allow damages, in a proper case, for the non-per- 
 formance of a special contract.(13) It is not necessary that all should 
 be present when the report is signed.(14) When signed, the report 
 should be filed with the clerk of the court, whose duty it is to give 
 notice of such filing to the attorneys of both parties.(15) If the 
 
 (1) 6 Cowen, 364 (2) 1 "Wendell, 104. 
 
 (3) 3 HUl, 464, 46':. (4) Id.; 22 "Wendell, 63T. 
 
 (5) 3 HUl, 464. (6) 6 Hill, 260. 
 
 (1) 1 "Wend. 584; 22 id. 637. (8) 12 id. 199. 
 
 (9) 5 Hill, 375. (10) Comp. L. 1128, 1154 ; 1 "Wend. 71 ; 3 J. R. 260. 
 
 (U) 12 J. R. 219. (12) 1 Caines' R. 160; 24 "Wendell, 15. 
 
 (13) 24 "Wendell, 337. (14) 1 Howard S. T. K. 98. 
 
 (16) Rule 77. 
 
358 INCIDENTAL PROCEEDINGS, 
 
 report be confirmed, judgment is rendered thereon in the same man- 
 ner, and with the like effect, as upon the verdict of a jury. The 
 court will award a reasonable compensation to the referees, to be 
 paid by the plaintiff; and taxed in his bill of costs, if he shall be 
 entitled to costs in the suit.(l) 
 
 § 1077. If either party be dissatisfied with the report, he may, 
 within ten days after receiving notice from the clerk of the filing 
 of the same, file objections thereto, (2) and move the court to set 
 the same aside. If the grounds of objection, appear upon the face 
 of the proceedings, they may be specified in the motion,' and 
 reference made to the report ; but if they consist of errors or irreg- 
 ularities which do not so appear, an affidavit must be made, set- 
 ting forth particularly and fully so much of the proceedings as are 
 necessary to show the errors or irregularities complained of, and 
 filed with the clerk on entering the motion. On the filing of such 
 affidavit and entry of motion to set aside the report, the court will, 
 if necessary, require the referees to report fully in relation to all 
 the matters set forth in such affidavit.(3) 
 
 § 1078. The grounds on which the court will interfere, and 
 set aside the report of referees, are the same as will induce it to 
 set aside the verdict of a jury. Thus, the report will be set aside 
 when it was founded on the testimony of a witness who, in the 
 opinion of the court, was not credible,(4) or when it is clearly 
 against the weight of evidence,(5) or where an im^oper measure 
 of damages was adopted, (6) or where the facts in the case were 
 various and intricate, and the matters involved in such doubt and 
 obscurity as to require a re-examination of the merits.(7) And 
 •ivhen the referees certified that they had overlooked a cir- 
 cumstance connected with the accounts submitted, and requested 
 that the same might be sent back to them for re-examination, the 
 court set aside the report, and sent back the accounts to the same 
 referees.(8) But the court has refused to set aside the report 
 because the amount found for a party exceeds the sum specified in 
 his bill of particulars, when the evidence on which itls founded is 
 given without objection, and the court see that the party has in 
 fact recovered no more than he is justly entitled to.(9) 
 
 (1) Comp. L. 1155. (2) Eule 11. 
 
 (3) See Comp. L. 1145, § 10. (4) 2 Cowen, 458. 
 
 (5) 7 "Wend. 118 ; and see 25 id. 243. (6) 5 id. 535. 
 
 (7) 1 Johns. Cas. 280 ; and see 1 Howard, 144. 
 
 (8) 1 Hall, 379. (9) 12 Wendell, 334. 
 
EEFERBING CAUSES. 359 
 
 § 1079. If no objection be made to the report -witliin the time 
 therefor limited, or if objections are made and overruled, the court 
 will confirm the report, and the party in whose favor it is made will 
 be entitled to judgment thereon in the same manner as on a verdict, 
 and to execution upon such judgment. Interest may be computed 
 on the amount reported due from the date of the report, and in- 
 cluded in the judgment.(l) If either party be dissatisfied with the 
 decision of the court on the motion to set aside the report, he may 
 bring a writ of error. For this purpose he must make a case, em. 
 bracing the proceedings and decision complained of, in the nature 
 of a special verdict or bill of exceptions. (2) The case must be 
 drawn up and served by the attorney, and amendments may be 
 proposed, and the case settled, in the same manner as if the trial 
 had been by the court or a jury. 
 
 § 1080. Whenever a cause is at issue, and it appear that the 
 trial will require the investigation of accounts, or the examination of 
 vouchers, the court is authorized to appoint one or more auditors 
 to hear the parties and examine their vouchers, and to state the 
 account and make report thereof to the court.(3) This is done, 
 either upon the request of both parties, or upjn the application of 
 one of the parties, based upon an affidavit showing that it is a proper 
 case to be referred to auditors. If it appear to the court that the na- 
 ture of the case, and the convenience of parties and witnesses, and 
 the economy of the trial, render a reference to auditors proper, and 
 no sufficient objection be established, the court will refer the cause 
 to such person or persons as the parties may agree upon ; or, if they 
 fail to agree, then to some competent person or persons to be named 
 by the court. But if difficult questions of law will arise upon the 
 trial, or if the items of account are few, or the vouchers not numer- 
 ous, and not likely to occupy much time in the proof of the facts 
 or tbe examination of the vouchers, the application will be denied. 
 
 § 1081. Before proceeding to hear any evidence in the cause, 
 the auditors must be sworn in the same manner as referees, and 
 give notice of the time and place of their meeting ; and they may 
 adjourn from time to time as may be necessary. They must all 
 meet, and hear the cause, but a report of a majority of them is valid ; 
 and such report may be compelled by the court in like manner 
 as in the case of referees ; and witnesses may be summoned, and 
 
 (1) Comp. L. 426. (2) See 11 Wend, ill ; 5 id. 587; 4 HUl, 2t. 
 
 (3) Comp. L. 1165. 
 
360 INCIDENTAL PROCEEDINGS. 
 
 compelled to attend and testify before them, in the same manner as 
 before referees, and either of the auditors may administer the neces- 
 sary oath to such witnesses.(l) 
 
 § 1082. The court may, for any sufficient reason, discharge the 
 auditors and appoint others, and may also recomnlit the report, for 
 revision or "further examination, to the same or other auditors.(2) 
 After the report is signed, it must be filed with the clerk, who must 
 give the same notice to the attorneys as in case of a report of ref- 
 erees, and each party has the same time within which to file his ob- 
 jections, if he have any, after receiving such notice.(3) 
 
 No judgment can be entered upon the report of the auditors, as 
 in the case of a verdict or report of referees ; but, if there be no 
 legal objection to the report, it may be used by either party as evi- 
 dence on the trial, but it may be impeached and disproved by other 
 evidence produced on the trial by either party.(4:) .0 
 
 § 1083. The report ought to embrace a statement of the facts 
 proven before the auditors, if desired by either party, with a state- 
 ment of the proceedings, and an account stated, specifying each 
 item of charge on ^oth sides, and the balance which they find to 
 be due to either party. It is the duty of the court to award a rea- 
 sonable compensation to auditors and referees for their services and 
 expenses, which must be paid by the plaintiff, and may be taxed in 
 his bill of costs, if he shall be entitled to costs in the suit.(5) 
 
 § 1084. Consent thai cause be referred. 
 
 imie.] 
 
 The trial of this cause requiring the examination of a long 
 account between the parties, it is consented and agreed that the 
 same may be referred [to J. E., L. M., and 0. P., of ], pursu- 
 ant to the statute in such case made and provided. Dated, &c. 
 
 E. P., Attorney for Plaintiff. 
 
 G. H., Attorney for Defendant.(6) 
 
 § 1085. Rule appointing referees. 
 [Title.} 
 
 On reading and filing the consent thereto in writing of both 
 the parties to this cause, and it appearing to the court that the trial 
 thereof will require the examination of a long account, it is Or- 
 
 (1) Comp. L. 1155. (2) Id. (3) Rule 1*1. 
 
 (4) Comp. L. 1155. (5) Id. (6) Comp. L, 1158. 
 
EEFEERING CAUSES. 361 
 
 dered, that the same te, and it is hereby, referred to J. E., L. M., 
 and 0. P., pursuant to the statute in such case made and provided. (1) 
 
 § 1086. Oath of referees. 
 
 You, as referees, do severally swear that you will faithfully 
 and fairly hear and examine the cause wherein A. B. is plaintiff, 
 and C. D. is defendant, to you referred, and that you will make a 
 just and true report therein, according to the best of your under- 
 standing.(2) 
 
 § 1087. Rule to compel report of referees. 
 \Tiile.] 
 
 On reading and filing aifidavits in this cause, and on motion 
 of Mr. F., of counsel for the plaintiff, after hearing counsel in oppo- 
 sition, Ordered, that the referees appointed in this cause do report 
 
 therein by the — day of , or show cause on the first day of 
 
 the next term of this court, why an attachment should not issue 
 against them.(3) 
 
 § 1088. Eeport of referees in favor of plaintiff . 
 [Title.'] 
 
 We, the subscribers, referees appointed by a rule of this 
 court made in the above cause, [or, " we, the subscribers, two of the 
 referees appointed by a rule of this court made in the above cause, the 
 other referee having met with us at the hearing of this cause^ and heard 
 all the proofs and allegations of the parties,"] having heard and ex- 
 amined the matters in controversy in said cause, and having exam- 
 ined on oath the several "Witnesses produced to us therein, do find 
 * that there is due to the above named plaintiff, A. B., from the 
 
 above named defendant, C. D., the sum of dollars, besides 
 
 costs : all of which we do hereby report to this honorable court. 
 Dated, &c. J. E. 
 
 L.M. 
 
 O. P.(4) 
 
 § 1089. Report of referees in favor of defendant. 
 
 \TitU.] 
 
 [As in the last form to the *, and then as follows :] that 
 there is nothing due from the above named defendant to the above 
 named plaintiff; [or, if a balance be found for the defendant, " that 
 there is due to the above named defendant from the above named plain- 
 tiff, the sum of dollars:"] all which, &c., [as in last form.] 
 
 § 1090. /Special, or supplementary, report of referees. 
 
 [Title.] 
 
 Pursuant to a rule of this court made in the above entitled 
 cause, requiring the referees heretofore appointed therein to report 
 
 (1) Comp. L. 1153. (2) Comp. L. 1154. (3) Id. (4) Id. 
 
862 INCIDENTAL PROCEEDINGS. 
 
 to the said court all the proceedings by them in said cause, together 
 with the testimony before them, &c., [reciting the substance of the 
 rule,] we, the subscribers, referees as aforesaid, do report to this 
 honorable court that this cause came on for hearing before us as such 
 
 referees on the — day of , at , pursuant to notice thereof 
 
 duly given ; and that thereupon the said plaintiff offered, as a wit- 
 ness on his part, J. D., who, being duly sworn, testified as follows : 
 [set forth his testimony, together with the testimony of all the 
 other witnesses, or other evidence on both sides, with the decision 
 of the referees in admitting or rejecting any witness, if required, 
 or in allowing or overruling any question to a witness, or the an- 
 swer thereto, or any other proceedings before them, as required by 
 the rule.] All which we hereby report to this honorable court. 
 [Dated, signed, &c.](l) 
 
 § 1091. Rule to set aside report of referees. 
 
 {_Title.] 
 
 The motion heretofore entered in this cause to set aside the 
 report made by the referees therein, having been brought to argu- 
 ment, after hearing Mr. H., of counsel for the defendant, and Mr. F., 
 of counsel for the plaintiff. Ordered, that the said report be, and 
 the same is hereby, set aside. 
 
 § 1092. Rule denying motion to set aside, and confirming report of 
 referees. 
 
 [Title.] 
 
 A motion having been entered, on the'part of the defendant 
 in this cause, to set aside the report made by the referees therein, 
 after hearing Mr. H., of counsel for the defendant, and Mr. F., of 
 counsel for the plaintifi", in opposition thereto. Ordered, that the 
 said motion be denied, with costs, including an attorney's fee of 
 
 dollars. And on motion of Mr. ¥., of counsel for the said 
 
 plaintiff, it is further Ordered, that the report aforesaid be, and it is 
 hereb}', confirmed. 
 
 §1193. Rule for the appointment of auditors. 
 
 [Title.] 
 
 On reading and filing af&davits in this cause, and it appear- 
 ing to the court that the trial thereof will require the investigation 
 of accounts [and the examination of vouchers], on motion of Mr. 
 
 P., of counsel for the plaintiff. Ordered, that I. S. and E. P., of , 
 
 be, and they are hereby appointed auditors, to hear the parties, and 
 examine their vouchers and evidence, and state the account be- 
 tween the parties, and make report thereof to this court. 
 
 (1) Comp. L. 1154. 
 
SPECIAL JURIES. 363 
 
 §1094. Report of avditors. 
 ITitle.] 
 
 We, the subscribers, auditors appointed by a rule of tHs 
 court made in the abov.e cause, having heard the parties, and ex- 
 amined their vouchers and evidence, and stated the account between 
 them, do report to this honorable court that the annexed schedule, 
 marked A, and signed by us; is a statement of the account between 
 the said parties, as proven and allowed upon the hearing of this 
 cause before us ; and that the exhibits hereto annexed, marked B, 
 0,. D, E and F, are the vouchers of the said parties exhibited to and 
 examined by us on the said hearing. [If either party desire the 
 auditors to report the testimony taken before them on the hearing, 
 add as follows :] And we do further report that the following is the 
 testimony of the witnesses produced and' sworn before us on the said 
 hearing, that is to say : The plaintiff introduced, as a witness on 
 his part, J. D., who, being first duly sworn, says, &c., [stating the 
 testimony of all the witnesses on both sides, in the order in which 
 it was given.] All of which is respectfully submitted. Dated, &c., 
 
 1. o. 
 
 E. P. 
 
 § 1095. A special or struck jury will be ordered by the court, 
 whenever it shall appear that a fair and impartial trial will be more 
 likely to be obtained in any cause pending therein. (1) 
 
 The application for such a jury is made by motion, and must be 
 founded on an afiidavit, setting forth th.e grounds upon which it 
 is made. When a case turns solely on a question of law, and there 
 is no fact in dispute, a special jury will be refused.(2) 
 
 § 1096. The party obtaining the order must give notice, eight days 
 previously, of the time when he will attend before the clerk for the 
 purpose of having such jury struck; and, at the appointed time, 
 the clerk is required to attend at his office, with the original lists 
 of grand and petit jurors returned to him by the officers of the 
 several townships and wards, who are then liable to serve, and, in 
 the presence of the parties or their counsel, to strike the jury, which, 
 is done in the following manner : The clerk selects from such lists 
 the names of forty-eight persons, whom he deems most indifferent 
 between the parties, and best qualified to try the cause. The party 
 obtaining the order, or his attorney, may then strike out one of 
 said names, and the opposite party, his agent or attorney, may 
 strike out another, and so alternately until each party has struck 
 out twelve names. If either party fail to attend, or to strike out 
 any names, the clerk will strike them out for sucb party.(3) 
 
 (1) Comp. L.1194. (2) 2 Carr. & P. 483. (3) Comp. L. 1194 1195. 
 
364 INCIDENTAL PROCEEDINGS. 
 
 § 1097. The clerk will thereupon, make out a list of the names 
 of the twenty-four not stricken out, and certify the same to be the 
 persons drawn to serve as jurors, pursuant to the order of the 
 court, and deliver such list, so certified, to the sheriff of the county, 
 whose duty it is to summon the persons whose names are contained 
 on the list, in the same manner as other jurors are required to be 
 summoned, and to return the names of those summoned to the 
 court; and from the persons so summoned and appearing, a jury 
 is formed, in the same manner as in other cases for the trial of the 
 cause in which a struck jury was ordered. (1) 
 
 § 1098. If the clerk is interested, or related to one of the par- 
 ties, or not indifferent between them, the court must appoint two 
 proper persons to strike such jury, and the persons so appointed 
 have the same powers as the clerk would otherwise have in rela- 
 tion to the certifying, striking, and delivering to the sheriff the 
 names of the persons struck as jurors ; and the sheriff is required 
 in like manner to summon the jurors so selected. The expense of 
 striking a jury must be paid by the party applying for the same, 
 and cannot be taxed in the costs of the suit; sind the struck jurors 
 are paid as in other cases.(2) 
 
 § 1099. Rule for a special jury. 
 [Title.'] 
 
 It appearing to this court that a fair and impartial trial 
 will be more likely to be obtained in this cause by having a struck 
 jury for the trial thereof, on motion of Mr. H., of counsel for the 
 defendant. Ordered, that a special jury be struck for the trial of 
 said cause. 
 
 § 1100. Notice of striking a jury. 
 
 [Title.] 
 
 Sir : — Please to take notice, that on the — day of , at 
 
 ten o'clock in the forenoon, I shall attend on behalf of the above 
 named [defendant] before C. V. B., Esq., clerk of the county of 
 
 , at his office in , for the purpose of having the jury 
 
 struck which has been ordered in this cause. [Dated, signed and 
 delivered as other notice's.] 
 
 § 1101. Certified list of special jurors. 
 [Title.] 
 
 I, E. T., clerk of the county of , do hereby certify 
 
 hat the following is a true list of the names of persons drawn to 
 
 (1) Comp. L. 1196. (2) Id. 
 
COMMISSIONS. 865 
 
 serve as jurors for the trial of this cause, pursuant to the order of 
 
 this court, to wit: [add names of special jurors.] 
 
 In witness whereof, I have hereto set my hand and affixed 
 
 P 1 the seal of the said court, this — day 
 [SEAL.J ^^ 
 
 E. T., County Clerk. 
 
 § 1102. Commissions to take the testimony of witnesses residing 
 out of the state may be awarded when an issue of fact shall have 
 been joined in any action, and it shall appear, on the application 
 of either party, that such witness is material to the prosecution or 
 defence of the action, and upon such terms as the court shall think 
 proper. Such commission may be issued to one or more compe- 
 tent persons, authorizing them, or any one of them, to examine 
 such witness on oath, upon the interrogatories annexed to such 
 commission, to take and certify the deposition of such witness, 
 and to return the same according to the direction given with such 
 commission. (1) 
 
 § 1103. J* n order that such commission issue may be made by 
 the court, or by the judge or circuit court commissioner, upon 
 proof that due notice of the application has been given to the ad- 
 verse party, at least ten days before the making of such applica- 
 tion ; and, upon the written consent of the parties or their attorneys 
 filed in the clerk's office, the clerk may issue such commission 
 without other authority. When an order for a commission is 
 made by the judge or commissioner, it must be filed in the. office 
 of the clerk of the court, and is subject to the control of the court 
 in all respects.(2) 
 
 § 1104. It has been held that a commission may issue to take 
 the testimony of a witness residing out of the state, though his 
 domicil be within the state, he being regarded as a resident out 
 of the state, within the meaning of the statute. (3) The motion 
 for a commission must be based upon an affidavit, stating that an 
 issue of fact has been joined in the cause, and the names and place 
 of residence of the witnesses, and that they are material, as the party 
 is advised by his counsel, and verily believes ;(4) and (if the defend- 
 ant intends to ask for a stay of proceedings untU the return of the 
 commission) that he has a good and substantial defence on the 
 
 (1) Comp. L. 1165, 1166. (2) Id. 1166. • (3) 1 "Wendell, 65. 
 
 (4) 6 Cowen, 209 ; 2 JohnB. Cas. 68, 285 ; 1 Wendell, 66. 
 
366 INCIDENTAL PEOCEEDINGS. 
 
 merits, as he is advised by counsel. (1) It may be made by the 
 attorney of the party,(2) or a third person cognizant of the 
 facts ;(3) and when made by the attorney, it need not state the 
 advice of eounsel.(4) The notice of the motion ought to contain 
 the names of the persons proposed as commissioners. 
 
 § 1105. When a party intends to sue out a commission, he 
 should give notice of his motion before the cause is noticed for 
 trial ; otherwise he may be required to pay costs, (5) unless it ap- 
 pear that he has used due diligence ;(6) and when a party is thus 
 liable for costs, he should, at the time of giving notice of the 
 motion, offer to stipulate to pay the plaintiff's costs of preparing 
 for trial, or he may be compelled also to pay the costs of opposing 
 the motion. (7) If it should be necessary, the party applying for a 
 commission should apply for a stay of proceedings at this stage of 
 the cause. 
 
 § 1106. The opposite party may resist the application for a 
 commission, if he can show reasonable ground for denying it, it 
 being in the discretion of the court .to grant or refuse it, when it is 
 intended as a stay of proceedings ;(8) and, in such case, the court 
 will order the party applying to disclose, by affidavit, what he 
 expects to prove ; and may then, in its discretion, grant the rule 
 absolutely, or conditionally, unless the adverse party will admit 
 the facts sought to be proved. (9) And if, on a motion for a com- 
 mission, with a stay of proceedings, doubt is cast on the hona fides 
 of the application, the commission will not be granted on the com- 
 mon affidavit.(lO) If the rule be intended to operate as a stay of 
 proceedings, it must be so expressed, for it will not, per se, operate 
 as a stay. (11) 
 
 § 1107. Interrogatories must be drawn, to be annexed to the 
 commission, and these of course will vary according to the nature 
 of the case. They must be settled by a justice of the supreme 
 court or circuit judge at chambers, or by a circuit court commis- 
 sion, upon a notice of five days to the opposite party, accom- 
 panied by a copy of the proposed interrogatories. (12) The opposite 
 party may propose cross-interrogatories, and have them settled at 
 
 (1) 1 Wend. 27 ; 4 Hill, 634. (2) T "Wendell, 613. (3) 1 Cowen, 210. 
 
 (4) t Wendell, 513. (5) 1 Johns. Cas. 391. (6) 1 Wend. 283. 
 
 (1) 2 Wendell, 242 ; and see 1 Howard S. T. R. 68. (8) 3 Johns. Cas-IST. 
 
 (9) See 1 Cowen, 369. (10) 3 John?. Cas. 137. (11) 7 Wend. 520. 
 
 (12) Comp. L. 1166 ; Rule 49. 
 
COMMISSIONS. 367 
 
 the time and place of settling the direct interrogatories, and not 
 after, unless further time is granted by the officer settling the 
 same.(l) The parties attend before the officer at the time specified 
 in the notice, by their respective attorneys, and either may except 
 to the interrogatories of the other, and the judge or commissioner 
 will decide upon the exception. If an interrogatory is allowed to 
 pass without exception, the answer cannot be objected to at the 
 trial as incompetent evidence, if it be fairly within the scope of the 
 interrogatory. (2) Further questions may also be proposed in set- 
 tling the interrogatories, and added to those first proposed, if 
 allowed. (3) If no one attend on the opposite side, proof must be 
 made, by affidavit, of due service of a copy of the interrogatories; 
 and of notice of presentation of them for allowance. The indorse- 
 ment of the parties or their attorneys upon the interrogatories, or 
 their consent thereto, is equivalent to the settlement and allowance 
 thereof by the judge. (4) 
 
 § 1108. The interrogatories being settled, the officer then in- 
 dorses an allowance of them, and annexes them to the commission ; 
 and at the same time he will indorse upon the commission a direc- 
 tion, prescribing the manner in which it shall be returned ; and he 
 may, in his discretion, direct the same to be returned by mail, 
 addressed to the clerk of the court out of which it issues. (5) This 
 is the most usual direction ; but when a commission is returned by 
 mail without such a direction, it cannot be received in evidence, if 
 objection be made.(6) The parties or their attorneys may agree, 
 in writing, on the manner in which the commission may be re- 
 turned ; and on filing such agreement with the clerk, the attorney 
 for the party suing out the same may indorse thereon a direction 
 according to such agreement, and the commission must in such 
 case be returned accordingly.(7) 
 
 § 1109. The provision of the statute prescribing the mode of 
 executing the commission, and a copy of which is usually annexed 
 thereto, is as follows : " The persons to whom such commission 
 shall be directed, or any one of them, unless otherwise expressly 
 directed therein, shall execute the commission as follows : 1. They, 
 or any one of them, shall publicly administer an oath to the wit- 
 nesses named in the commission, that the answers given by them 
 
 (1) Kule 49. (2) 6 Cowen, 404. (3) Oomp. L. 1166. 
 
 (4) Id. 1166. (5) Id. (6) 21 Wendell, 156. 
 
 (7) Comp.L. 1167. 
 
368 INCIDENTAL PROCEEDINGS. 
 
 to the interrogatories proposed to them, shall be the truth, the 
 whole truth, and nothing but the truth ; 2. They shall cause the 
 examination of each witness to be reduced to writing, and to be 
 subscribed by him, and certified by such of the commissioners as are 
 present at the taking of the same ; 3. If any exhibits are produced 
 and proved before them, they shall be annexed to the depositions 
 to which they relate, and shall in like manner be subscribed by the 
 witness proving the same, and shall be certified by the commis- 
 sioners; 4. The commissioners shall subscribe their names to each 
 sheet of the depositions taken by them ; they shall annex all the 
 depositions and exhibits to the commission, upon which their re- 
 turn shall be indorsed ; and they shall close them up under their 
 seals, and address the same, when so closed, to the clerk of the 
 court from which the commission issued, as shall have been di- 
 rected on the commission, at his place of residence ; 5. If there 
 shall be a direction on the commission to return the same by mail, 
 they shall immediately deposit the packet, so directed, in the nearest 
 post office ; 6. If there be a direction on the commission to return 
 the same by an agent of the party who sued out the same, the 
 packet, so directed, shall be delivered to such agent."(l) 
 
 § 1110. Any other necessary instructions, to enable the com- 
 missioners to execute the commission in a proper manner, will be 
 added by the attorney. Printed forms of the instructions, as also 
 sets of the entire papers, are usually obtained at the stationers, and 
 kept by attorneys for use. If there are any deeds or writings to be 
 proved, they should also be annexed, and marked as they are re- 
 ferred to in the interrogatories. All the papers are then carefully 
 folded up, and securely sealed, and sent to one of the commissioners 
 by mail or other safe conveyance. 
 
 § 1111. The court will intend that the oath was publicly ad- 
 ministered when the commissioners certify that they administered 
 the oath; (2) and such oath will be deemed to apply to the inter- 
 rogatories on both sides ;(3) and it need not appear by the return 
 that the oath was publicly administered. (4) Depositions have been 
 received in evidence, although the oaths to the witnesses were 
 not administered by the commissioners, it appearing that they were 
 prohibited from administering them, and that they were adminis- 
 tered by the local authorities. (5) Nor is it material in whose hand- 
 
 (i) Comp. L. 1166, 1167. (2) See 1 ffiU, 249. (3) 23 W»nd. 38. 
 
 (4J 1 HUl, 249. (5) 6 Wendell, 476. 
 
 ( 
 
COMMISSION". S69 
 
 writing the depositions are, and the commissioners may employ a 
 clerk,(l) although they are not bound to do so.(2) 
 
 § 1112. The signature of a commissioner will be judicially no- 
 ticed, though his name be not written at length. (3) The annexing 
 of the papers together by wafers is sufficient, and a tape and seal 
 are not indispensable. (4) When a commission is directed to two, 
 either or both of whom being authorized thereby to execute it, and 
 the return is signed by but one of them, it will be presumed that 
 he alone was present at its execution, though the words " by virtue 
 of a commission to us directed " appear in the caption of the re- 
 turn. (5) The papers are closed up under the seals of the commis- 
 sioners, by folding the commission, with the depositions and exhib- 
 its, in a strong envelope, properly secured with tape, on the cross- 
 ings of which the commissioners affix their seals, writing their 
 names, each at or across his seal. (6) It will be presumed that the 
 commissioner who took the testimony closed up and sealed the 
 package himself; (7) and that he discharged his duty by doing 
 everything required to be done in the execution of the commission, 
 which he is not bound to certify specifically as done. (8) 
 
 § 1113. If the packet containing the commission and return be 
 transmitted by mail, the clerk to whom it is addressed must receive 
 the same from the post office, and open and file it in his office ;(9) 
 and indorse on such commission, as well as on the wrapper there- 
 of, the time of its reception, and notify the attorney of the party 
 on whose behalf it was taken thereof without delay ;(10) and such 
 attorney must thereupon give notice of such reception to the oppo- 
 site party or his attorney ; and all objections of form to the depo- 
 sitions are deemed to be waived, unless they be filed in writing 
 and served on the opposite party within two days after such no- 
 tice.(ll) 
 
 § 1114. If such packet be delivered to an agent, he must de- 
 liver the same to the clerk to whom it is directed, or to the judge 
 of the court in which the action is pending, who will receive and 
 open the same on such agent making an affidavit that he received 
 the same from the hands of one of the commissioners, and that it 
 
 (1) 3 Peters, 8. 
 
 (2) 2 Harr. & John*. 442. 
 
 (3) 1 Hill, 249. 
 
 (4) Id. 
 
 (5) Id. 
 
 (6) 1 Burr. Pr. 445. 
 
 (7) 1 Hill, 249. 
 
 (8) Id. 
 
 (9) Comp. L. 1168. 
 
 (10) Bule 49. 
 
 (U) Rule 51. 
 24 
 
 
370 INCIDENTAL PROCEEDINGS. 
 
 has not been opened or altered since he received it.(l) If the 
 agent be dead, or, from sicljness or other casualty, unable to deliver 
 such packet personally, it may be received by the clerk or judge 
 from the hands of any other person, upon such person making affi- 
 davit that he received the same from such agent ; that such agent 
 is dead, or otherwise unable to deliver the same ; that it has not 
 been opened or altered since such person received it, and that he 
 believes the same has not been opened or altered since it came from 
 the hands of the commissioners.(2) The clerk or judge receiv- 
 ing and opening such commission and return, must immediately 
 file the same in the office of the clerk; (3) and notice thereof must 
 be given in the same manner as when received from the post 
 office.(4) 
 
 § 1115. The commission, returns, depositions, and exhibits 
 thereto annexed, must remain on file in the office of the clerk to 
 whom they were addressed, unless the court, by a special order, 
 direct them to be filed with some other clerk ; and they are to be at 
 all times open to the inspection of the parties, who are entitled to 
 copies of the same, or of such parts thereof as they may desire, on 
 payment of the fees allowed bylaw.(5) The examinations and de- 
 positions taken under a commission, executed and returned accord- 
 ing to the statute, or a certified copy thereof, when the originals 
 are filed in any other county than that in which the cause is tried, 
 may be ofiered and used in evidence on the trial of the cause by 
 either party .(6) 
 
 § 1116. Every objection to the competency or credibility of a 
 witness so examined, or to the competency or relevancy of any 
 question put to him, may be made in the same manner, and with 
 the like effect, as if such witness were personally examined at such 
 trial.(7) Counsel have the right to raise such number of objections 
 to the admission of testsmony as they deem proper, and it is the 
 duty of the court to hear and decide them ; but it seems not to be 
 the absolute duty of counsel to raise objections which go merely 
 to form, and are only calculated to produce delay, or turn the party 
 round to another action.(8) When, on the return of a commission, 
 it does not appear that the last general cross-interrogatory was put 
 to, and answered by the witness, the depositions cannot, in general, 
 
 (1) Comp. L. lieT. (2) Id. 116T. (3) Id. 1168. 
 
 (4) See Eulea 149 and 51. (5) Comp. L. 1168. (6) Id. 1168. 
 
 (1) Id. 1168. (8) 1 Hill, 249. 
 
COMMISSION'. 371 
 
 be read in evideiice.(l) But when the counsel of the parties were 
 present at the execution of the commission, and no objection to 
 the omission was taken at the time, the depositions will be re- 
 ceived.(2) If a witness, after being examined on a commission, 
 should come into the state, he may of course be examined on the 
 trial.(3) ' 
 
 § 1117. If a stay of proceedings is granted with the commission, 
 the party obtaining it must use reasonable diligence to have it ex- 
 ecuted and returned ; and what is a reasonable time will depend 
 upon the circumstances of each case, as the distance of the com- 
 missioners' or witnesses' residence, the facilities of intercourse, &c. 
 After the expiration of a reasonable time from the issuing of the 
 commission, the further proceedings vary according as the com- 
 mission was issued by the plaintiff, or defendant. K issued by 
 the plaintiff, the defendant, after the expiration of a reasonable 
 time, may move the court for judgment as in case of non-suit, or 
 that the stay of proceedings be vacated, so that the defendant may 
 notice the cause, and thus compel the plaintiff to proceed to trial.(4) 
 
 § 1118. If issued by the defendant, or when both parties have 
 joined in it, (5) the plaintiff, after the lapse of a reasonable time, 
 may move for leave to proceed to trial, notwithstanding the com- 
 mission. (6) This motion may be resisted, by showing that the 
 delay has been occasioned by the plaintiff, or any other sufiBcient 
 reason therefor.(7) If the plaintiff, without leave of the court, 
 proceed to trial, and the defendant ajppear and examine witnesses, 
 it is a waiver of the commission, and the verdict will be allowed 
 to stand.(8) 
 
 § 1119. The court will sometimes award a second commission. 
 Thus, if a witness, in his testimony under a commission, disclose a 
 collateral fact, to which the inquiry was not directed, a second 
 commission may issue to inquire into that fact; (9) and if a witness 
 die after a commission has issued, and before he has been exam- 
 ined, the court will award a new commission to examine other wit- 
 nesses, but they have refused to permit the name of another witness 
 
 (1) 4 "Wash. 0. 0. R. 324; 25 WendeU, 259. 
 
 (2) Id.; and see 19 "Wendell, 437. (3) 17 J. E. 346. 
 
 (4) See 1 Gaines' R. 517 ; 2 id. 47 ; 23 "Wendell, 38 ; 1 Burr. Pr. 446. 
 
 (5) 2 Jolms. Gas. 70; 1 Caines' R. 115, 503. 
 
 (6) 23 "Wendell, 38. (7) See 2 J. E. 196; 2 Caines' R. 47. 
 (8) 1 Caines' R. 73. (9) 1 Caines' R. 345. 
 
S72 INCIDENTAL PEOCEEDINGS. 
 
 to be inserted ^n the old commission ;(1) and when tlie depositions 
 of witnesses taken under a commission, were read on the trial, and 
 the jury, not being able to agree on a verdict, were discharged, a 
 second commission was issued to examine the same witnesses, it 
 appearing to the court that some of the doubts whicb existed, would 
 probably be removed by such re-examination. (2) 
 
 § 1120. When an interlocutory judgment has been obtained in 
 any action, a commission may be awarded on the application of the 
 plaintiff, in the like cases, and in the same manner, as if an issue 
 of fact had been joined ; and the depositions thereon may be used 
 in evidence on any proceeding to assess the plaintiff's damages, 
 with the like effect as in the case of a trial ; and in case such inter- 
 locutory judgment be set aside, and a trial be had, then sucb de- 
 position may be used in evidence upon such trial.{3) 
 
 § 1121. Affidavit (py defendant) to move for a commission. 
 [Title.] 
 
 County of , ss : C. D., the defendant in this cause, 
 
 being duly sworn, deposes and says, that an issue of fact was 
 
 joined in said cause on the — day of , and (if noticed for trial) 
 
 that the same is noticed for trial at the next term of this court, ap- 
 pointed to be beld on the ■ — day of . And this deponent far- 
 ther says, that he has fully and fairly stated the case in this cause 
 
 to Gr. H., his counsel therein, who resides in , and has fully 
 
 and fairly disclosed to his said counsel the facts whicb he expects 
 to prove by I. J., a witness for this deponent. And this deponent 
 further says, that the said I. J. is a material witness for tbis de- 
 ponent in this cause, as he is advised by his said counsel, after 
 such statement as aforesaid, and verily believes ; and that without 
 the benefit of the testimony of the said I. J., this deponent cannot 
 safely proceed to the trial of this cause, as he is also advised by his 
 said counsel, and verily believes. And deponent further says, that 
 
 the said I. J. does not reside in this state, but resides at , in 
 
 the state of . [If the defendant intend to ask for a stay of 
 
 proceedings, add as follows :] And deponent further says, that he 
 has a good and substantial defence on the merits in this cause, as 
 he is advised by his said counsel, after such statement as aforesaid, 
 and verily believes. 0. D. 
 
 Sworn, &c. 
 
 § 1122. Notice of motion for a commission. 
 {Title.] 
 
 Sir : — Please to take notice, that on the affidavit, with a copy 
 of which you are herewith perved, this court will be moved, at the 
 
 (1) 3 Gaines' E. 321. (2) 17 3. R. 343. (3) Comp. L. 1168. 
 
COMMISSION. 373 
 
 next term thereof, to be held at , on the — day of , at ten 
 
 o'clock in the forenoon, or as soon thereafter as counsel can be 
 heard, that a commission issue in this cause, to be directed to E. M. 
 
 andB. T., of , merchants, authorizing them, or either of them, 
 
 to examine on oath I. J., of , drover, as a witness in this cause, 
 
 on behalf of the defendant, on interrogatories to be annexed to the 
 said commission, in which the plaintiff will be at liberty to join, 
 and that all proceedings in said cause be^ stayed until the execu- 
 tion and return of such commission. Dated, &c. 
 
 G. H., Attorney for Defendant. 
 To E. F., Esq., Attorney for Plaintiff. 
 
 § 1123. HuUfora commission, with a stay of proceedings. 
 
 \Title.] 
 
 On reading and filing affidavits in this cause, and on motion 
 of Mr. H., of counsel for the defendant, and after hearing counsel 
 in opposition thereto, [or, " no one appearing to oppose,'\ Ordered, 
 that a commission issue in this cause, directed to R. M. and S. T., 
 
 of , merchants, to examine on oath I. J., of , drover, as a 
 
 witness in this cause on the part of the defendant, on interroga- 
 tories- to be annexed to the said commission ; and that the plaintiff 
 have leave to join in such commission ; and that the same may be . 
 
 returned by mail, addressed to the clerk of the county of , 
 
 and that all proceedings in this cause be stayed until the execution 
 and return of the said commission. 
 
 § 1124. Commission to examine witnesses. 
 
 In the name op the People of the State of Michigan. To 
 
 e. m. and s. t., of , in the state of , 
 
 [seal.] meechants : 
 
 Whereas it appears to our circuit court for the 
 county of' , that I. J. and 0. B., of- ; are ma- 
 terial witnesses in a certain cause now depending therein, between 
 A. B., plaintiff, and C. D., defendant, and that the personal attend- 
 ance of the said witnesses cannot be procured at the trial of said 
 cause, we, in confidence of your prudence and fidelity, have ap- 
 pointed you, and by these presents do appoint you, or either of 
 you, commissioners to examine the said witnesses ; and therefore 
 we authorize and empower you, or either of you, at certain days 
 and places to be by you, or either of you, for that purpose appointed,' 
 diligently to examine the said witnesses, or such of them as shall 
 be produced before you, or either of you, and each apart, on the 
 interrogatories annexed to this commission, on their respective 
 corporal oaths first taken before you, or either of you, and cause 
 the examination of sa,id witnesses to be reduced to writing, and 
 signed by them respectively and by yourselves, or either of you, 
 and then return the same, annexed to the said commission, unto 
 
374 INCIDENTAL PEOCEEDINGS. 
 
 our said circuit court for the county of , witli all convenient 
 
 speed, enclosed under your seals, or the seal of either of you. 
 Witness, &c. C. B., Clerk. 
 
 Gr. H., Attorney. 
 
 § 1125. Interrogatories to he annexed to coTfimission. 
 
 The Circuit Couet bok the county of . 
 
 Interrogatories to be administered to I. J., of , in the 
 
 state of ■ , a witness to be produced, sworn, and exam- 
 ined, under and by virtue of the annexed commission, before E. 
 
 M. and S. T., merchants, residing in , the commissioners 
 
 therein named, in a certain cause now pending and at issue in the 
 
 circuit court for the county of ■ , wherein A. B. is plaintiff, 
 
 and C. D. is defendant, on the part and behalf of the said defend- 
 ant, [or ^'■plaintiff."'] 
 
 First interrogatory. What is your name, age, and occupation; 
 and where do you now reside ? 
 
 Second interrogatory. Do you know the parties, plaintiff and 
 defendant, in the title of these interrogatories named, or either, and 
 which of them? 
 
 Third interrogatory. [If it relate to a paper to be proved :] Look 
 upon the deed [or ^' paper writing"} now produced and shown to 
 you, at this, the time of your examination, marked [A.], purporting 
 to be [state briefly the purport] ; was or was not such deed [or 
 "paper writing"] executed in your presence? If yea, by whom, 
 when, and where? 
 
 Fourth interrogatory. [This, and subsequent interrogatories, 
 must be framed according to the circumstances of the case.J 
 
 Lastly. Do you know any other matter or thing touching the 
 matters in question, that may tend to the benefit or advantage of 
 the said defendant [or " plaintiff f"] If yea, declare the same fully 
 and at large, as if you had been particularly interrogated thereto. 
 
 G. H., Attorney for Defendant. 
 
 § 1126. Cross-interrogatories to the above. 
 
 The Circuit Court for the county of . 
 
 Interrogatories to be administered by way of cross-exami- 
 nation to I. J., &c., [as in the title of interrogatories in the last 
 form.] 
 
 First cross-interrogatory. Do you, &c., [proceeding with each 
 cross-interrogatory in a separate paragraph, as in the last form.] 
 
 E. F., Attorney for Plaintiff. 
 
 § 1127. Notice of attending judge to settle interrogatories. 
 [Title.] 
 
 Sir: — Please to take notice, that the interrogatories, of which 
 the within is a copy, will fee settled before , at his chamber5! 
 
COMMISSION. 875 
 
 [or " office "] in • , on the — day of , at ten o'clock in 
 
 the forenoon. Dated, &c. Yours, &c., 
 
 Gr. H., Defendant's Attorney. 
 To E. P. Esq., Plaintiff's Attorney. 
 
 § 1128. Stipulation as to mode of returning commission. 
 
 [Title.] 
 
 It is hereby stipulated by and between the parties in this 
 cause, that either of the said parties, or their attorneys, may receive 
 the commission, interrogatories, cross-interrogatories, and deposi- 
 tions in said cause, from the commissioners executing the said com- 
 mission, or either of them, duly sealed up, and deliver them, thus 
 sealed, to the clerk of this court ; and that the affidavit of such 
 party or attorney, that he did so receive and deliver the package, 
 unopened, shall be evidence, and of like effect, as if the commission 
 were returned pursuant to the rule of court granting the same. 
 Dated, &c. E. F., Attorney for Plaintiff. 
 
 G. H., Attorney for Defendant. 
 
 § 1129. Affidavit of agent who delivers commission. 
 
 [Title.] 
 
 County of , ss: K 0., of , being duly 
 
 sworn, deposes and says, that the packet now by him delivered to 
 
 T. G. 0., Esq., clerk of the circuit court for the county of , 
 
 to whom the same is directed, was by this deponent received, on 
 the — day of , from the hands of * E. M., of , mer- 
 chant, a commissioner, as this deponent is informed and believes, 
 named in the commission in the aforesaid packet contained ; and 
 this deponent further says, that said packet has not been opened or 
 altered since he so received it. N. O. 
 Sworn, &c. 
 
 § 1130. Affidavit of person who receives commission from agent, 
 and delivers the same. 
 
 [Title.] 
 
 [As in the last form to the *, and then as follows :] U. Y., 
 the agent of the above named defendant, who sued out the com- 
 mission in the aforesaid packet contained, as this deponent is in- 
 formed and believes ; that the said U. V. is wholly unable to deliver 
 said packet by reason of sickness ; that such packet has not been 
 opened or altered since this deponent received it ; and that he be- 
 lieves the same has not been opened or altered since it came from 
 the hands of the commissioner who delivered it to the said agent. 
 Sworn, &c. N. 0. 
 
 § 1131. Return of commission. 
 To THE Honorable the Circuit Court for the county of 
 
 ■ , IN THE State of Michigan : 
 
 I, the subscriber, one of the commissioners named in the 
 annexed commission, do hereby certify, that on the — ■ day of 
 
376 INCIDENTAL PEOCEEDINGS. 
 
 at my office in , the attorneys of the respective parties in the 
 
 said commission named appeared before me ; and thereupon I. J., 
 the witness mentioned in the said petition, was produced before me 
 on the part and behalf of the defendant, C. D., and I then and there 
 publicly administered to the said I. J. an oath, that the answers 
 given by him to the interrogatories proposed to him in the cause 
 mentioned in the said commission, wherein A. B. is plaintiff, and 
 C. D. is defendant, should be the truth, the whole truth, and noth- 
 ing but the truth ; and, on being so sworil, each of the interrogato- 
 ries [and cross-interrogatories] annexed to the said commission 
 was separa>tely and distinctly read to him, and he was examined 
 by me touching the matters therein referred to, and upon such ex- 
 amination the said I. J. testified in the manner and form as is set 
 forth in his deposition hereto annexed. Dated, &c. 
 
 E. M., Commissioner. 
 
 § 1132. Deposition of a witness taken on commission. 
 
 The deposition of I. J., a witness produced, sworn and ex- 
 amined on the part of the defendant, before R. M., commissioner 
 appointed in and by a commission issued out of the circuit court 
 
 for the county of , in the state of Michigan, for obtaining 
 
 the testimony of the said I. J. in the cause depending in said court, 
 wherein A. B. is plaintiff and C. D. is defendant, that is to say : 
 To the first direct interrogatory the witness saith : My name is 
 
 I. J., and my age is years and upwards. I am a drover by 
 
 occupation, and I now reside in . 
 
 To the second direct interrogatory he saith, &c., [answering fully 
 each interrogatory and cross-interrogatory.] I. J. 
 
 Taken and subscribed this — day j 
 
 of , A. D. 18—, before me, \ 
 
 R. M., Commissioner. 
 
 § 1133. Whenever any action, pending in any court of lav/, 
 being a court of record, shall have been commenced by the actual 
 service of process, or when the defendant shall have appeared in 
 the action, either party may have the testimony of any witness taken 
 conditionally, to be used in the cases and under the circumstances 
 specified in the statute. (1) The party desiring the examination of 
 a witness may apply to any judge of a court of record, or circuit 
 court commissioner, upon an aflidavit, which must state : 1. The na- 
 ture of the action, and the plaintiff's demand ; 2. If the applica- 
 tion be made by the defendant, the nature of his defence ; 3. The 
 name and residence of the witness ; 4. That the testimony of such 
 witness is material and necessary for the party making such appli- 
 cation, in the prosecution or defence of such suit, as the case may 
 
 (1) Comp. L. 1162. 
 
TAKING TESTIMONY CONDITIONALLT. 377 
 
 be ; and, 5. That the -witness is about to depart from this state ; or 
 that he is so sick, aged, or infirm, as to aiford reasonable grounds 
 for apprehension that he will not be able to attend the trial of such 
 suit.(l) 
 
 § 1134. The party making the application should prepare the 
 draft of an order, requiring the adverse party to appear before the 
 judge or commissioner, and attend the examination of the witness 
 at the time and place specified, which time must not exceed twenty 
 days from the date of the order, and may be as much shorter as 
 the exigency of the case may require, and the residence of the 
 adverse party or his attorney will allow, in order to afford suifi- 
 cient opportunity to attend such examination. (2) If the officer is 
 satisfied that the circumstances of the case require the examination 
 of the. witness, in order to attain justice between the parties, he 
 will sign the order, which should be served on the adverse party 
 in the usual manner, with a copy of the affidavit on which it was 
 made ; and an affidavit of due service thereof should then be 
 made.(3) 
 
 § 1135. If it be necessary to compel the attendance of the wit- 
 ness, apply at the same time to the officer for a summons for that 
 purpose, (4) which should be served in the same manner as a sub- 
 poena.(5) At the time specified in the order, the adverse party 
 may show cause against proceeding in such examination, by proof 
 that such witness is not about to depart from this state, or that he 
 is not sick, aged or infirm, or that the application is made colla- 
 sively, to avoid his being examined on the trial of the cause ; and 
 upon any such cause being shown, the application must be dis- 
 missed. (6) 
 
 § 1136. If no sufficient cause be shown, upon due proof of the 
 service of such order, and a copy of the affidavit on which the 
 same was founded, the officer granting the order will proceed to 
 the examination of such witness, and take his deposition, in which 
 deposition must be inserted any answer or declaration of such wit- 
 ness which either party shall require to be included therein ; 
 which deposition must be carefully read to and subscribed by the 
 witness, and certified by the officer taking the same, and, within 
 ten days thereafter, filed with the clerk of the court in which the 
 
 (1) Comp. L. 1162. (2) Id. 1163. (3) Id. 
 
 (4) Comp. L. 1164. (5) Id. 1176. (6) Id. 1163. 
 
378 INCIDENTAL PROCEEDINGS. 
 
 action is pending.(l) The witness should be interrogated to every 
 fact to be deposed to, as if he were examined on a trial. (2) 
 
 § 1137. If a witness, on being summoned to attend and be 
 examined de- bene esse, fail to attend in pursuance thereof, the 
 officer issuing the summons, upon due proof of the service thereof, 
 and of the failure of such witness, is required to issue his warrant 
 to the sheriff of the county to apprehend such witness, and bring 
 him before such of&cer to be examined. And if any witness 
 attending before such officer pursuant to a summons, or brought 
 before such officer, without reasonable cause refuse to be examined, 
 or to answer any legal and pertinent question, or to subscribe his 
 deposition after the same has been reduced to writing, the officer 
 issuing such summons must, by warrant, directed to the sheriff of 
 the county where such witness may be, commit such witness to 
 the common jail of the county in which he resides, there to remain 
 until he submits to be examined, or to answer, or to subscribe 
 his deposition, as the case may be, or until he be discharged ac- 
 cording to law ; which warrant must specify therein particularly 
 the cause of such commitment, and, if such commitment be for 
 refusing to answer any question, such question must be stated in 
 the warrant. (3) 
 
 § 1138. The deposition so taken, or a certified copy thereof, 
 may be given in evidence by either party, on the trial of the cause, 
 or upon the assessment of damages therein, after it shall have been 
 satisfactorily proved that such witness is unable to attend such 
 trial or assessment personally, by reason of his death, insanity, 
 sickness or settled infirmity, or that he has continued absent out of 
 the state, so that his attendance at such trial or assessment could 
 not be compelled by the ordinary process of law.(4) The party 
 offering the deposition in evidence cannot rely upon the presump- 
 tion of the inability of the witness to attend the trial, arising from 
 his advanced age merely.(5) And in case of the absence of a 
 witness, the party offering his deposition in evidence must show 
 that he has used due diligence to procure the attendance of the 
 witness, and that he has made inquiries at his last place of abode, 
 in order to have him subpoenaed. (6) 
 
 (1) Comp. L. 1163. (2) See caption of deposition, &c., 1 Cow. 60, note (a). 
 
 (3) Comp. L. 1176, HIT. (4) Id. 1163. 
 
 (5) 3 Wendell, 180. (6) "Wash. C. 0. R. 219. 
 
TAKING TESTIMONY CONDITIONALLY. 379 
 
 § 1139. The preliminary proof may be made by affidavit, un- 
 less it be specifically objected to on the ground that it is by affidavit, 
 and viva voce proof insisted on ; (1) and it may, it seems, be made 
 by^a party to the suit.(2) The deposition of a foreign witness, 
 taken de bene esse, may be read, though it appear that he came into 
 this state on the request of the party, for the purpose of being ex- 
 amined, and that he is at home in a foreign country, and might have 
 been examined on a commission, and even though a commission 
 may have been issued for the purpose of examining him at his foreign 
 residence.(3) The opposite party may prevent the reading of the 
 deposition, by satisfactory proof that sufficient notice was not given 
 to enable him to attend the examination of such witness, or that 
 such examination was not in all respects fair, and conducted accord- 
 ing to the statute.(4) But he cannot object that the notice was too 
 short, when he appears before the officer, and omits to object for 
 that reason then.(5) 
 
 § 1140. The deposition, thus taken, will have the same effect, 
 and no other, as the oral testimony of the witness would have on 
 such trial or assessment ; and every objection to the competency or 
 credibility of such witness, and to the competency or relevancy of 
 any question put to him, may be made in the same manner as if 
 such witness were personally examined on such trial or assess- 
 ment.(6) 
 
 § 1141. Affidavit hy plaintiff to obtain order to examine witness 
 de bene esse. 
 
 [Title.] 
 
 County of ' , ss ; A. B., the plaintiff in this cause, 
 
 being duly sworn, deposes and says, that this is an action of [as- 
 sumpsit], and is brought to recover [state what]. And this de- 
 ponent further says, that he has fully and fairly stated the case in 
 
 this cause to E. F., his counsel therein, who resides at , and 
 
 has fully and fairly disclosed to his said counsel the facts which he 
 expects to prove by S. W., a witness for this deponent in this 
 
 cause, who resides at ■, and that the testimony of the said S. W. 
 
 is material and necessary for this deponent in the prosecution of 
 this cause, as he is advised by his said counsel, after such statement 
 made as aforesaid, and verily believes ; and that he cannot safely 
 proceed to the trial thereof without the benefit of the testimony of 
 the said witness, as he ia advised by his said counsel, and verily 
 believes. And this deponent further says, that the said S. W. is, 
 
 (1) 1 Cowen, 59. (2) Id. (3) Id. 69. 
 
 (4) Oomp. L. 1163, 1164. (5) 1 Cowen, 59. (6) Comp. L. 1164. 
 
380 INCIDENTAL PEOCEEDINGS. 
 
 as this deponent is informed and verily believes, a transient person, 
 and about to depart from this state for foreign parts [or " is about 
 to depart from — — , in this state, ivhere he is now temporarily remain- 
 ing, and -go to the hanks of Newfoundland, for the purpose of engaging 
 in the fisheries there, for an uncertainandindefinite period"^. And 
 further this deponent saith not. A. B.(l) 
 
 Sworn, &c. 
 
 § 1142. The like affidavit hy defendant. 
 
 [Title.] 
 
 County of , ss: C. D., the defendant in this cause, 
 
 being duly sworn, deposes and says, that this is an action of [as- 
 sumpsit], -and is brought for [state what]. That the defence to the 
 said action is [state what]. And this deponent further says, that 
 he has fully and fairly stated the case in this cause to G. H., his 
 
 counsel therein, who resides at , and has disclosed to his 
 
 said counsel the facts which he expects to prove by M. N., at 
 
 present of , a witness for this deponent therein, and that the 
 
 testimony of the said witness is material and necessary for this de- 
 ponent in the defence of this cause, as he is advised by his said 
 counsel after such statement as foresaid, and verily believes. And 
 this deponent further says, that, as he is also advised by his said 
 counsel, and verily believes, he, this deponent, has a good and 
 substantial defence in this action on the merits, and cannot safely 
 go to trial without the benefit of the testimony of the said M. K. 
 And this deponent further says, that, &c. [as in the last form to 
 the end, or, that the witness is so sick, aged, or infirm, as to afford 
 reasonable grounds for apprehension that he will not be able to 
 attend the trial of this suit.] C. D.(2) 
 
 Sworn, &c. 
 
 § 1143. Order to examine a witness de bene esse. 
 [Title.] 
 
 Let S. W., the witness named in the above [or " annexed," 
 or ^^ within,"] affidavit, be examined de bene esse, as a witness in 
 
 this cause, before me, at my chambers in , on the — day 
 
 of , at ten o'clock in the forenoon of that day ; and let the 
 
 plaintiff [or ^'■defendant"] in this cause appear before me, at the 
 same time and place, to attend the said examination. Dated, &c. 
 
 J. W. T., Circuit Judge.(3) 
 
 § 1144. Summons for witness de bene esse. 
 In the name of the People of the State of Michigan. 
 To S. W.: 
 
 You are hereby summoned to appear and attend before' me, 
 
 , at my office in , on the — day of , to be examined 
 
 and give testimony, pursuant to the statute in such case made and 
 
 (I) Oomp. L. 1162. (2) Id. 1162. (3) Comp. L. 1163. 
 
TAKING TESTIMONY CONDITIONALLY. 381 
 
 provided, on the part of A. B., in a suit pending in the circuit court 
 
 for the county of , wherein the said A. B. is plaintiff, and 
 
 C. D. is defendant; and, for a failure to attend, you will be liable 
 to pay all loss and damage sustained thereby, to the party ag- 
 grieved, and fifty dollars in addition thereto. 
 
 Witness my hand, this — day of , one thousand eight hun- 
 dred and . 
 
 E. P. H., Circuit Court Com.'r for the county of .(1) 
 
 § 1145. Warrant to apprehend a ivitness for examination de bene 
 esse. 
 
 In the name of the People of the State of Michigan. 
 
 To THE sheriff OF THE COUNTY OF ■ : 
 
 You are hereby commanded to apprehend and bring before 
 
 me, at my office in , S. W., a witness duly summoned to attend 
 
 before me for examination de bene esse on behalf of the plaintiff [or 
 '■'■defendant"'] in a certain cause pending in the circuit court for the 
 county of , wherein A. B. is plaintiff and C. D. is defend- 
 ant, and who has failed and neglected so to attend. Hereof fail 
 not at your peril. 
 
 Witness my hand, this ■ — day of , one thousand eight hun- 
 dred and . 
 
 E. P. H., Circuit Court Com.'r for the county of . 
 
 § 1146. Warrant to commit witness for refusing to be examined. 
 
 In the name of the People of the State of Michigan. 
 
 To the sheriff op the county of : 
 
 Whereas S. W. was duly summoned to appear and attend 
 before me, at my office in , on the — day of , to be ex- 
 amined and give testimony, pursuant to the statute in such case 
 made and provided, as a witness on the part of the plaintiff in a 
 
 cause depending in the circuit court for the county of , 
 
 wherein A. B. is plaintiff and C. D. is defendant ; and the said 
 S. W. attended before me in pursuance of the said summons, [or, 
 " and the said S. W., failing to appear and attend before me in pur- 
 suance of the said summons, was duly taken and brought before me by 
 
 the slieriff of the county of , upon a warrant by me issued for 
 
 that purpose,"] and, on being required to depose and give evidence 
 as such witness, he, the said S. W., without any reasonable cause, 
 wholly refused, and does still refuse, to be examined, or to give any 
 evidence as such witness, [or, " and being by me duly sworn as such 
 witness, and duly examined, and his deposition having been reduced to 
 writing ready to be subscribed by him, and he being duly required to 
 subscribe the same, the said S. W., without any reasonable cause, refused, 
 and does still refuse, to subscribe his said deposition;" or, " and being 
 by me duly sworn as such witness, and the following legal and pertinent 
 
 (1) Comp. X. 1164, 1116. 
 
382 INCIDENTAL PROCEEDINGS. 
 
 question having heen proposed to him hy the counsel for the said plain- 
 tiff, that is to say, (state the question asked,) A.e, the said S. W., with- 
 out any reasonable cause, wholly refused, and does still refuse, to answer 
 the same."] 
 
 Now, therefore, you are commanded to take the body of the said 
 S. W., and him safely keep in your custody in the common jail of 
 
 the county of , until he shall submit to be examined as such 
 
 witness, [or, " to answer the question aforesaid" or, " to subscribe his 
 said deposition,"'] or until he be discharged according to law. Wit- 
 ness my hand, this — day of , &c. 
 
 [Signature of officer.](l) 
 
 § 1147. By an act passed, subsequent to the Eevised Statutes of 
 1846, (March 29, 1848,) it is provided that when a witness, whose 
 testimony is required in any civil cause pending in this state, shall 
 live more than thirty miles from the place of trial, or shall be 
 about to go out of the state, and not to return in time for the trial? 
 or is so sick, infirm, or aged, as to make it probable that he will not 
 be able to attend the trial, his deposition may be taken. (2) This 
 statute, without repealing any portion of the Eevised Statutes in 
 relation to the taking of testimony de bene esse, excepting those for 
 the perpetuation of testimony, provides for a proceeding analogous 
 to, but differing in several particulars from, the former, and ex- 
 tending to the case of witnesses able to attend the trial, and within 
 the reach of process to compel such attendance, but residing at such 
 a distance from the place of trial as would render attendance thereat 
 inconvenient to the witness and expensive to the party desiring his 
 testimony. 
 
 § 1148. Under this statute, at any time after the cause is com- 
 menced by the service of process or otherwise, or after it is sub- 
 mitted to arbitrators or referees, either party may apply to the cir- 
 cuit judge or circuit court commissioner of the county in which 
 the cause is pending, and procure such officer to issue a notice to 
 the adverse party to appear before him, if the witness is in such 
 county, at a time and place appointed by such officer for taking the 
 deposition, and put such interrogatories to the witness as he may 
 think fit ; or the party himself may give such notice ; and in either 
 case it must be served on the adverse party, his agent or attorney, 
 allowing, in all cases, not less than^ twenty-four hours after such 
 notice before the time appointed for taking the deposition, and also 
 allowing at the rate of one day for every twenty miles' travel in 
 going to the place of taking such deposition.(3) 
 
 (1) Comp. L. 1176, IITT. (2) Comp. 1. 1111. (3) Id. 1172. 
 
TAKING TESTIMONY CONDITIONALLY. 383 
 
 § 1149. If the witness resides in any other county in this state 
 than that in which the suit is pending, Lhe party wishing to take 
 such deposition may give the like notice to the adverse party, to 
 appear before any justice ©f the peace, circuit judge, or circuit 
 court commissioner, in any other county in this state, and put such 
 interrogatories as he may think fit upon the examination of such 
 witness. If the notice be served by any officer authorized to serve 
 a subpoena, it must be served by delivering to the person notified, 
 or leaving at his place of abode, an attested copy thereof; if served 
 by the party, such service must be made by delivering a true copy 
 of such notice, verified by the affidavit of the party serving the 
 same.(l) 
 
 § 1150. The witness must be sworn to testify the truth, the 
 whole truth, and nothing but the truth, relating to the cause for 
 which the deposition is taken ; whereupon the party in whose be- 
 half he is sworn may first examine him, either upon written or 
 verbal interrogatories, on all points which he shall deem material, 
 and then the other party may examine him in like manner ; after 
 which, either party may propose such interrogatories as the case 
 may require. His deposition must be reduced to writing, and care- 
 fully read over to and subscribed by the witness. The officer tak- 
 ing the deposition may, before proceeding, require proof of the due 
 service of the notice to the adverse party, if he do not appear ; but 
 if notice has actually been given, such fact may be shown when 
 the deposition is offered in evidence, and the deposition will be re- 
 ceived, although there was no competent evidence of such service 
 before the officer. (2) 
 
 § 1151. The officer taking the deposition must annex thereto 
 a certificate of the time and manner of taking it, the person at 
 whose request, and the cause or suit for which it was taken, with 
 the reason for taking it ; and stating also whether tha adverse party 
 attended, and, if not, returning with the deposition the notice, if 
 any, that was proved before such officer to have been given to 
 such party. The deposition is required to be delivered by the 
 officer before whom it is taken, to the court, arbitrators, or referees 
 before whom the cause is pending, or to be enclosed and sealed 
 up, and directed to them, and to remain sealed until opened by 
 such court, arbitrators, or referees. Such deposition cannot be 
 used, if it appear that the reason for taking it no longer exists, 
 
 (1) Comp. L. 11'72. (2) 3 Mich. B. 185. 
 
384 INCIDENTAL PROCEEDINGS. 
 
 unless some otiier sufficient reason then exist for using it, in ■whic'h 
 case it will be admitted ;(1) but every objection to the competency 
 or credibility of the witness, and to the propriety of any question 
 put to him, may be made when the deposition is produced, in the 
 same manner as if the witness were personally examined on the 
 trial, except that any objection to the competency of the witnessj 
 on the ground of interest, must be made at the time of taking the 
 deposition, or it cannot be allowed.(2) 
 
 § 1152. When the plaintiff discontinues, or becomes non-suited, 
 and another suit is afterwards commenced for the same cause be- 
 tween the same parties, or their respective representatives, and 
 when any suit is appealed, all depositions taken on the first suit, 
 or in the suit below, may be used on the trial of the second, or on 
 the appeal, in the same manner, and subject to the same conditions 
 and objections, as if originally taken for the second suit, or on the 
 appeal, whenever such deposition has been duly filed in the court 
 where' the first suit was pending, or in the court below. The 
 party taking the deposition must, upon the same being received 
 and filed by the clerk, give notice thereof to the opposite party ; 
 and all objections of form thereto will be deemed waived, unless 
 filed in writing, and served on the opposite party within two days 
 after such notice.(3) 
 
 § 1153. Witnesses may be summoned, and their attendance 
 compelled, in the same manner as in cases of witnesses summoned 
 to be .examined de bene esse under the provisions referred to in the 
 last preceding subdivision of this chapter, provided such witness 
 is summoned to attend and give his deposition at some place within 
 the township where he resides, or within fifteen miles of the place 
 of his abode.(4) When application is made to any officer to ap- 
 point a time and place for taking the deposition, or at least before 
 proceeding to. take such deposition, it is advisable to present to 
 such officer an affidavit, setting forth the reason for taking such 
 deposition. Such affidavit, which may be substantially the same in 
 in form as § 1141, together with an affidavit of service of the notice 
 required to be given to the adverse party, returned by the officer 
 with the deposition — will be sufficient evidence of the facts therein 
 stated. 
 
 § 1154. Any person who expects to he a party to a suit to be 
 thereafter commenced in any court of record, may cause the testi- 
 
 (1) Comp. L. 11V3. (2) Id. (3) Eule 61. (4) Comp. L. llli. 
 
TAKING TESTIMONY CONDITIONALLY. 385 
 
 mony of any witness material to him in the prosecution or defence 
 of such suit, to be taken conditionally and perpetuated ; and such 
 deposition may be taken and certified before the same person, on 
 the same notice, and in the same manner as is in the aforesaid act 
 provided for taking depositions in this state, and sealed up and 
 delivered to the clerk of the county where it is taken, and so re- 
 main until ordered to be removed and opened by the court before 
 whom such suit shall be pending, when it may be used, subject 
 to any objection which could lie against it in case the suit had 
 been pending at the time it was taken.(l) But in order to entitle 
 a party to take such deposition, when no suit is pending, one of 
 the causes mentioned-in the second section of the act aforesaid,(2) 
 and above recited, must exist. 
 
 § 1155. Notice of taking testimony of witness within this state. 
 \Title.] 
 
 Sir: — ^Please to take notice, that on the — day of 
 
 at ten o'clock in the forenoon, V. W. will be examined as a wit- 
 ness on the part of the plaintiff in this cause, before E. F. M., Esq., 
 
 circuit court commissioner for the county of , at his office 
 
 in , in said county, at which time and place you are at lib- 
 erty to appear before the said commissioner, and put such inter- 
 rogatories to the said witness as you may think fit. You will further 
 please to take notice, that the reason for taking the deposition of 
 the said witness appears in the affidavit, with a copy whereof you 
 are herewith served. Dated, &c. 
 
 Yours, &c., E. F., Attorney for Plaintiff. 
 
 To G. H., Esq., Defendant's Attorney. 
 
 fif the service of notice be made by an officer, it may be indorsed 
 as follows :] 
 
 " A true copy of the original. 
 
 Attest, E. B., Constable." 
 
 [K served by the party or his attorney, the copy of notice served 
 may be verified by an affidavit in the following form :] 
 
 [Title.] 
 
 County of , ss : A. B., the plaintiff in the above 
 
 entitled cause, being duly swprn, says that the within [or "-an- 
 neaxd^^l is a true copy of the original notice of the taking of the 
 deposition of V. "W". as a witness for this deponent in the, said 
 cause. A. B. 
 
 Sworn, &o. 
 
 (1) Comp. L. 1114, 1175. (j) ij. 1171. 
 
 25 
 
386 INCIDENTAL PBOCEEDINGS. 
 
 § 1156. Affidavit of service of notice of taking deposition of witness. 
 
 [Title.] 
 
 County of , ss : A. B., plaintiff in this suit, being 
 
 duly sworn, deposes and says, that on the — day of , he, this 
 
 deponent, served upon C. D., the above named defendant, a copy 
 of the an^iexed notice, with an affidavit thereon indorsed, a true 
 copy of which is indorsed on the annexed notice, by delivering 
 the same to him, the said C. D., personally. And further this de- 
 ponent saith not. A. B. 
 Sworn, &c. 
 
 § 1157. Certificate of officer taking deposition, 
 imie.] 
 
 I., E. F. M., circuit court commissioner for the county 
 
 of , do hereby certify that the foregoing deposition of V, 
 
 W. was taken before me, at my office in — , on the part and 
 
 at the request of A. B., the above named plaintiff; that the said 
 deposition was taken pursuant to the notice, a copy of which, with 
 an affidavit of service thereof, is hereto annexed, and that the said 
 deposition was taken for the reason that the said V. W. resides 
 more than thirty miles from the place of trial of said cause, as ap- 
 pears by the affidavit of the said plaintiff, also hereto annexed ; 
 that, before making the said deposition, the said V. W. was by 
 me duly sworn to testify the truth, the whole truth, and nothing 
 but the truth relating to the cause aforesaid ; and that, at the taking 
 of the said deposition, Gr. H., Esq., the attorney of the above named 
 defendant, appeared before me, and put such interrogatories to the 
 said witness as he thought fit. Dated, &c. 
 
 E. F. M., Circuit Court Com.'r for the county of . 
 
 § 1158. In order to secure the benefit of any paper in the hands 
 of the opposite party, as evidence on the trial, notice to produce such 
 paper on the trial of the cause, or that, in default thereof, parol 
 evidence of its contents will be given, ought to be served upon 
 such party or his attorney, in which notice the. paper should be 
 sufficiently described, so as to apprise him of the paper required. 
 A notice requiring the party to produce " all fetters, papers and 
 documents, touching or concerning the bill of exchange mentioned 
 in the declaration, and the debt sought to be recovered," has been 
 held insufficient. (1) But notice to the attorney of a defendant to 
 produce on the trial a certain letter, written by the plaintiff to the 
 defendant, concerning an execution which was produced on a for- 
 mer trial in the same cause, " and all other papers in your custody 
 or power relating to the matter in controversy in this cause," was 
 
 (1) Ey. & Mood. 341. 
 
UrOTICE TO PRODUCE PAPERS. 387 
 
 lield to be sufficiently explicit to apprise the attorney that the exe- 
 cution was one of the papers which he was called on and expected 
 to produce — it appearing that, on such former trial, the letter and 
 execution had been produced by the defendant's attorney himself 
 and he must have known it was the principal paper vvanted.(l) 
 
 § 1159. After service of the notice, an affidavit of the service 
 should be made, to be used if necessary. When the attorney has 
 been changed, a notice served on the first attorney, before the 
 change, is sufficient.(2) A party cannot have the benefit of such 
 evidence by subpoenaing the attorney to produce it, and compelling 
 him to testify, if it was delivered to him by his client as support- 
 ing the action or defence.(3) But after notice to produce a paper 
 has been given, the attorney may be called as a witness to prove 
 its execution, and that it is in his possession, so as to entitle the 
 opposite party, on his refusal to produce it at the trial, to give parol 
 evidence of its contents. (4) 
 
 § 1160. The notice must be served a reasonable time before the 
 trial, and what will be considered a reasonable time must, of course, 
 depend upon the circumstances of the case. A notice to produce 
 a paper, given after the commencement of the circuit, and four days 
 before the trial, when the residence of the party required to produce 
 it was but twelve miles from the place of trial, was held to be suffi- 
 cient.(6) But a notice to produce the books of an insurance com- 
 pany, given two days before the commencement of the circuit, 
 when the circuit was held at the city of CJtica, and the books were 
 in the city of New York, was held to be insufficient.(6) And no- 
 tice 1o produce a paper in evidence, given a few minutes before it 
 is called for, is not sufficient, unless the paper is in court.(7) But 
 when the paper is in court, or so near the place where the court 
 is sitting that it can be obtained without delaying the trial and 
 without material inconvenience to the party, a notice given after 
 the trial has commenced, will be sufficient. (8) 
 
 § 1161. Having given the requisite previous notice, the paper 
 
 (1) U Wendell, 65. (2) 1 Mood. & R. 242. 
 
 (3) 7 Wendell, 216. (4) 17 J. R. 336. See 1 Mood. & M. 235. 
 
 (6) 13 Wendell, 505. 
 
 (6) 3 Wendell, 300; and see 7 Cowen, 739; 3 Carr. & P. 19; 5 i^. 522; 1 Mood. 
 & R. 259; 3 B. & Adol. 182. 
 
 (7) 7 WendeU, 216. 
 
 (8) 13 id. 505. See 4 Burr. R. 2484; 1 Mood. & M. 235. 
 
388 INCIDENTAL PROCEEDINGS. 
 
 may be called for on entering upon tlie trial of tlie cause ;(1) and 
 if the opposite party fail or refuse to produce it on proof of ser- 
 vice of the notice, and the paper is in his possession or power, 
 parol evidence of its contents may then be introduced ; and if such 
 evidence be imperfect, every presumption will be against the party, 
 who might remove all doubt by producing the better evidence.(2) 
 But a party has no right to infer, from the refusal of his adver- 
 sary to produce books or paper's which may have been called for, 
 that, if produced, they would establish the fact which he alleges 
 they would prove. They must first be shown to be in his posses- 
 sion, and some general evidence of such parts of their contents as 
 are applicable to the case must first be given before a foundation 
 is laid for any inference or presumption on account of their non- 
 production.(3) 
 
 § 1162. If the instrument called for is produced, it may be in- 
 troduced in evidence by the party requiring its production, or not, 
 as he may choose.(4) If it is introduced in evidence, it must first 
 be proved in the usual way ;(5) and if there be an attesting wit- 
 ness, he must be called, or his absence accounted for.(6) But when 
 a party to a suit produces, pursuant to notice, an instrument to 
 which he is a party, and under which he claims a beneficial inter- 
 est, it is not necessary for the other party to prove its execution.(7) 
 
 § 1163. Notice to produce a paper at the trial. 
 
 [Title.] 
 
 Sir : — Please to take notice, that you are hereby required 
 to produce ; on the trial of this cause, a certain paper writing [or 
 
 ^'deed^'], bearing date on or about the — day of ^ , made and 
 
 executed between S. 0. of the one part, and B. E. of the other part, 
 by which, &c., [describe the contents of the instrument, in sub- 
 stance, as near as may be,] or, in default thereof, parol [or " second- 
 wry "] evidence will be given of its contents. Dated, &c. 
 
 E. F., Plaintiff's Attorney. 
 To G. H., Defendant's Attorney. 
 
 § 1164. Provision has been made by statute, and the standing 
 rules of the court, for compelling the discovery and proditction of 
 booJcs and papers, when necessary in the progress of a cause.(8) 
 
 (1) 2 Stark. E. 22, 49. ' (2) 1 Wendell, 34. 
 
 (3) Id. (4) 2 Wash. 0. 0. R. 482. 
 
 (6) 2 Campb. 94; 8 East, 648, 549; 1 Arch. Pr. 169 ; IJ. E. 395, note (o); It id. 168. 
 
 (6) 5 Mann. & Gr. 204. ' (1) 12 J. E. 223 ; 17 id. 158 ; 3 Taunt. 60. 
 
 (,8) See Comp. L. 989 ; Circuit Court Eules, pp. 32, 33, 34. 
 
DISCOVERY OF BOOES AND PAPERS. 389 
 
 The application for such discovery and production may be made 
 by petition to the circuit court in term time, or to the judge in va- 
 cation, in the following cases : 1. By the plaintiff, to compel the 
 discovery of papers or documents in the possession or under the 
 control of the defendant, which may be necessary to enable the 
 plaintiff to declare, or to answer any pleading of the defendant ; 
 2. The plaintiff may be compelled to make the discovery of papers 
 or documents, when the same shall be necessary to enable the de" 
 fendant to answer any pleading of the plaintiff; 3. The plaintiff 
 may be compelled, after declaring, and the defendant, after plead- 
 ing, to produce and discover aU papers or documents on which the 
 action or defence is founded; and, 4. After issue joined in any 
 action, either party may be compelled to produce and discover all 
 such books, papers and documents, as may be necessary to enable 
 the party applying for such discovery to prepare for the trial of the 
 cause;(l) 
 
 § 1165. The petition for such discovery must state the facta 
 and circumstances on which the same is claimed,, and must be veri- 
 fied by affidavit, stating that the books, papers and documents 
 whereof discovery is sought, are not in the possession or under the 
 control of the party applying therefor, and that the party making 
 such affidavit is advised by his counsel, and verily believes, that 
 the discovery of the books, papers or documents mentioned in such 
 petition, is necessary to enable him to declare, or answer, or to pre- 
 pare for trial, as the case may be.(2) The remedy provided by the 
 statute and rules of practice, is not confined to cases where the evi- 
 dence sought constitutes, in itself, the cause of action, or ground of 
 defence, but extends to all books, papers and documents relating to 
 the merits of the suit, or any defence therein.{8) When, however, the 
 discovery sought relates to remote and complicated transactions 
 extending through a long period of time, the court has refused to 
 compel it to be made, leaving the party to his remedy in equity.(4) 
 It has also been refused when the party could proceed by notice to 
 produce the paper on the trial,(5) or by svbpcena duces tecum.(Q) 
 
 § 1166. The application for a discovery, &c., of books and pa. 
 pers, must be made in season. A discovery will not be ordered 
 after a cause has proceeded to a hearing before referees, and 
 
 (1) Rule 40. (2) Rule 41. 
 
 (3) Comp. L. 989 ; 9 Wend. 458. (4) 20 WendeU, 682. 
 
 (5) 2 HaU, 52. \6) 5 Cowen, 2?. 
 
390 INCIDENTAL PROCEEDINGS. 
 
 evidence given on both sides, unless under very special cir- 
 cumstances, and the delay in applying for the discovery is satis- 
 factorily explained.(l) In order to avoid the payment of costs* 
 which will otherwise generally be made a condition of granting 
 the application, the party desiring the discovery should first apply 
 to the opposite party for the documents required.(2) If he refuse 
 to discover or produce them, such party' will then proceed by pe- 
 tition, verified as reE^uired by the rule. If the application is made 
 in term time, it must be made to the court, and the rule moved for 
 will be that the discovery, &c., be made within a specified time, or 
 that the party against whom it is sought, show cause why the 
 prayer of such petition should not be granted. (3) 
 
 1 1167. Whether the petition be presented to the court in term 
 time, or to the judge in vacation, it should be accompanied with 
 the draft of a rule or order for the discovery and production 
 sought, which must specify the mode in which the same is to be 
 made, and which may be either by requiring the party to deliver 
 sworn copies of matters to be discovered, or by requiring him to 
 produce and deposit the same with the clerk of the court in which 
 the trial is to be had ; and it must also specify the time within 
 which the discovery is to be made, and when the papers are re- 
 quired to be deposited ; and the order must specify the time for 
 which the deposit shall continue ;(4) and the court or judge, in 
 granting the order, is to be governed by the principles and practice 
 of the court of chancery, except that the costs of the proceedings 
 are always to be awarded in the discretion of the court.(5) 
 
 § 1168. The order, when made, operates as a stay of all other 
 proceedings in the cause, until it is complied with or vacated, and 
 the party obtaining such order has the like time to declare, plead 
 or answer, after it has been complied with or vacated, to which he 
 was entitled at the time of making the order.(6) Every such order 
 may be vacated by the court, or by the judge granting the same : 
 1. Upon satisfactory evidence that it ought not to have been grants 
 ed ; 2. Upon the discovery sought being obtained ; or, 3. Upon 
 the party required to make the discovery denying, -on oath, the 
 possession or control of the books, papers or documents ordered to 
 be produced.(7) 
 
 (1) 22 "Wendell, 63T. (2) 9 "WendeU, 468. (3) Comp. L. 988^ 
 
 (4) Rule 42. (5) Rule 43; Comp. L. 989. (6) Rale 45. 
 
 \l\ Rvde 44. 
 
DISCOVERT OF BOOKS AND PAPEBS. 391 
 
 § H69. The rule or order is complied with, according to its 
 terms, either by delivering to the opposite party or his attorney* 
 within the time specified therein, sworn copies of the books, papers 
 or documents sought, or b;^ depositing the originals in the office of 
 the clerk of the court in which the trial is to be had, where they 
 must be left during the time required by such rule or order. 
 And it must be strictly complied with. Leave given to the party 
 seeking the discovery to examine the books, &c., at the store of 
 the owner, will not answer as a substitute.(l) In case of a deposit 
 pursuant to the order, the party obtaining it proceeds to inspect 
 the books, &c., and to take transcripts from them, to be used as 
 secondary evidence, in case the originals are not produced at the 
 1aial.(2) 
 
 § 1170. In case of the party neglecting or refusing to obey 
 such order for a discovery, within such time as the court shall deem 
 reasonable, the court may non-suit him, or strike out any plea or 
 notice he may have given, or debar him from any particular de- 
 fence in relation to which ■ such discovery was sought ; and the 
 power of the court to compel such discovery is confined to these 
 remedies, and does not extend to authorize any other proceedings 
 against the person or property of the party so neglecting or refus- 
 ing.(3) The books, papers and documents, or sworn copies thereof, 
 produced under the rule or order for a discovery, will have the 
 same effect, when used by the party requiring them, as if produced 
 upon notice, according to the practice of the court.(4) 
 
 § 1171. Petition to compel a discovery and production of paperst 
 &c., to enable the plaintiff to declare. 
 
 [Titk.] 
 
 To THE HONOEABLE B. L., ClECUIT JUDGE OF THE JUDI- 
 CIAL CIRCUIT: 
 
 The petition of A. B. respectfully showeth, that an action of 
 
 has been commenced in the said circuit court for the county 
 
 of , by your petitioner, against 0. D. by summons, returna- 
 ble on the — day of last, and that the said C. D. has duly 
 
 appeared in the said action at the suit of your petitioner; and 
 that your petitioner hath not as yet declared against the said C. D. 
 in the said action. * And your petitioner farther shows, that a 
 certain paper writing [or " a certain instrument in writing,^'' state 
 the date and substance of the paper or instrument, and the parties 
 
 (1) 1 Howard, 196. (2) 1 'WencleU, 636. 
 
 (3) Euje 46| Comp. L. 989. (4) Id.; Rule 4t. 
 
392 INCIDENTAL PROCEEDINGS. 
 
 thereto, as nearly as possible,] is in the custody or under the con- 
 trol of the said C. D., as your petitioner verily believes and ex- 
 pressly charges. And your petitioner further shows, that the said 
 paper -writuig [or " instrument in writing "] is material to enable 
 your petitioner to declare against the said C. D. in the action afore- 
 said, and that your petitioner cannot safely declare in the said ac- 
 tion without it, as he is' advised by B. P., Esq., his counsel therein, 
 and verily believes. And your petitioner further shows, that he 
 has applied to and requested the said C. D. to discover and pro- 
 duce the said paper writing [or " instrument "] to your petitioner, 
 and to permit your petitioner to take a copy thereof, [or " to de- 
 liver to your petitioner a sworn copy thereof"] but, that the said C. D. 
 has wholly refused to comply with such application and request ; 
 wherefore your petitioner prays your honor to grant him an order, 
 pursuant to the statute in such case made and provided, and the 
 rules of the said court, requiring the said C. D. to discover and 
 produce the said paper writing [or "instrument"] herein above 
 mentioned, so as to enable your petitioner to declare in the said 
 action, in such manner and time, and under such terms as your honor 
 shall prescribe and direct. And your petitioner wiU ever pray, &c. 
 E. P., Plaintiff's Attorney.(l) A. B. 
 
 Affidavit to accompany petition. 
 
 County of , ss: A. B., the petitioner above named, 
 
 being duly sworn, says that he has read the above petition, and 
 knows the contents thereof, and that the same is true in substance 
 and in fact, to his best knowledge and belief. And this deponent 
 further says, that the paper writing whereof a discovery and pro- 
 duction are sought by the said petition, is not in his possession, nor 
 under his control. And this deponent further says, that he has 
 fully and fairly stated his case in this cause to E. P., Esq., his coun- 
 sel, who resides at , and that the discovery and production of 
 
 the said paper writing is necessary to enable this deponent to de- 
 clare in the action mentioned in the said petition, as he is advised 
 by his said counsel, and verily believes. And further this depo- 
 nent saith not. A. B. 
 Sworn, &c.(2) 
 
 § 1172. Petition by defendant for discovery of papers to enable him 
 to answer the declaration. 
 
 [Title.] 
 
 To THE Circuit Coubt foe the county of . 
 
 The petition of C. D. respectfully showeth, that an action 
 
 of has been commenced by A. B., against your petitioner in 
 
 the said circuit court for the county of , by summons ; that 
 
 your petitioner has duly appeared in the said action, and that the 
 said A. B. has declared therein against your petitioner. That the 
 
 (1) Oomp. L. 989 ; Rule 41. (2) Rule 41. 
 
DISCOVERY OF BOOKS AND PAPBES. 393 
 
 declaration of the said A. B. charges your petitioner with [here 
 state briefly the substance of the declaration], and that the time 
 allowed your petitioner by the rules of this court to answer the 
 
 said declaration, will expire on the — day of instant, [or, 
 
 " next"] * And yoxir petitioner further shows that a certain paper 
 writing [or " instrument," describe it as in last form,] is in the 
 custody or under the control of the said A. B., as your petitioner 
 verily believes and expressly charges. And your petitioner fur- 
 ther shows that the said paper writing [or " instrument "] is mate- 
 rial to enable your petitioner to answer the said declaration of the 
 said A. B., in the action aforesaid, and that your petitioner cannot 
 safely plead to or answer the said declaration without it, as he is 
 advised by his counsel, and verily believes. And your petitioner 
 farther shows, that he has applied to and requested the said A. B. 
 to discover and produce the said paper writing [or " instrument "] 
 to your petitioner, and to permit your petitioner to take a copy 
 thereof, [or " to deliver to your petitioner a sworn copy thereof"'] but 
 that the said A. B. has wholly refused to comply with such appli- 
 cation and request ; wherefore your petitioner prays this honorable 
 court to grant him an order, pursuant to the statute in such case 
 made and provided, and to the rules of the said cdurt, requiring 
 the said A. B. to discover and produce the said paper writing [or 
 " instrument "] above mentioned, so as to enable your petitioner to 
 plead to or answer the declaration in the action aforesaid, in such 
 manner and time, and under such terms as this honorable court 
 shall prescribe and direct. And your petitioner wiU ever pray, &c. 
 G. H., Defendant's Attorney. C. D. 
 
 Affidavit to accompany the foregoing. 
 
 y County of , ss : — C. D., the petitioner above named, 
 
 being duly sworn, says, &c., [as in the af&davit to the last form, 
 substituting the word "answer," for "declare."] 
 
 § 1173. Petition hy either party for discovery of papers, in order 
 to prepare for trial. 
 
 [Commencement as in preceding forms.] 
 
 The petition of A. B. [or " 0. D."] respectfully showeth, that an 
 
 action of has been commenced in the said circuit court for 
 
 the county of , by your petitioner against C. D., [or "by A. B. 
 
 against ijour petitioner,"] by declaration, filed pursuant to the stat- 
 ute: that the said declaration charges the said defendant with 
 [here state briefly the substance of the declaration], to which the 
 said defendant has pleaded the general issue, and given notice of 
 the following special matter of defence [state it briefly] ; and that 
 issue was thereupon joined on the — day of . * And your pe- 
 titioner further shows, that a certain paper writing [or " instrument," 
 describe it as in preceding forms] is in the custody or under the 
 control of the said defendant [or "plaintiff"], as your petitioner 
 expressly charges and verily believes. And your petitioner further 
 shows, that the said paper writing [or " instrument"] is material to 
 
394 , INCIDENTAL PROCEEDINGS. 
 
 enable him to sustain his said declaration [or " is material to his 
 defence"] on the trial [or " is material to enable him to prepa/re for 
 the trial"] of the issue abbve set forth, inasmuch as, by it, it will 
 appear, &c., [briefly state what facts the petitioner relies on as 
 appearing by the document sought,] as your petitioner is advised 
 by E. F., Esq., his counsel, and verily believes. And your peti- 
 tioner further shows, that he has applied to, and requested the said 
 defendant [or "plaintiff^'] to discover and produce the said paper 
 writing [or " instrument"} to your petitioner, and to permit your 
 petitioner to take a copy thereof, [or " to deliver to your petitioner a 
 sworn copy thereof,'] but that the said defendant [or "plaintiff"] has 
 wholly refused to comply with such application and request; 
 wherefore your petitioner prays your honor [or "this honorable 
 court"] to grant him an order, pursuant to the statute in such case 
 made and provided, and to the rules of this court, requiring the 
 said defendant [or "plaintiff'"] to discover and produce the said 
 paper writing [or " instrument"] above mentioned, so as to enable 
 your petitioner to use the same on [or " to prepare for"] the trial of 
 the issue aforesaid, in such manner and time, and under such terms 
 and restrictions as your honor [or "this honorable court"] shall pre- 
 scribe and direct. A. B. [or " C. D.] 
 E. F., Plaintiff's Attorney, 
 
 [or " G-. H., Defendant's Attorney."] 
 
 [The affidavit to accompany the foregoing is the same as in the 
 preceding forms, substituting in the place of the words " to declare," 
 &c., or "to answer," &c., the words "to prepare for the trial of the 
 issue joined in the said action."] 
 
 § 1174. Petition for production and deposit of books. 
 
 [As in the preceding forms to the * , and then as follows :] 
 And your petitioner further shows, that certain books of account, 
 to wit., [here describe the books required] are in the custody or 
 under the control of the said A. B. (the opposite party), as your 
 petitioner expressly charges and verily believes. And your peti- 
 tioner further shows, that the said books of account are material _ 
 to enable him to declare against the said C. D., in the aforesaid 
 action, [or " to enable your petitioner to answer the declaration of the 
 said A. B., in the action aforesaid"] and that your petitioner cannot 
 safely declare in said action [or "cannot safely answer the said decla- 
 ration,"] without an inspection and examination thereof, as he is 
 advised by Cr. F., his counsel, and fully believes, [or as in the last 
 form, with the necessary changes.] And your petitioner further 
 shows, that he has applied to and requested the said A. B. [or " C. 
 B."} to discover and produce the said books of account to your 
 petitioner, and to permit your petitioner to examine the same, but 
 that the said A. B. [or " C. D."] has wholly refused to comply 
 with said application and request. Wherefore, &c., [as in previous 
 forms, substituting " books of account^ for "paper writing" &c.] 
 
DISCOVEET OF BOOKS AND PAPEES. 395 
 
 § 1175. Rule for production and deposit of hooks, &c. 
 
 [TUh.] 
 
 On readiBg and filing petition and affidavit in this cause, 
 and on motion of Mr. F., of counsel for the plaintiff, Ordered, that 
 the defendant in this cause produce, and deposit with the clerk of 
 this court, within — days after service upon him or his attorney 
 of a copy of this rule, [describe the books required to be produced,] 
 and that the said books, on being so produced and deposited, re- 
 main with the said clerk for the space of — days ; or that the said 
 defendant show cause, on the fijst day of the next term of this 
 court, why he should not produce the same. 
 
 [The rule absolute for the same, when no sufficient cause is shown 
 is in the same form, omitting the last clause, and adding a clause 
 for costs if necessary.] 
 
 § 1176. Judges order for production and deposit of hooks. 
 
 [Title.'] 
 
 It is hereby Ordere^ that the plaintiff in this cause produce 
 and deposit with the clerk of the circuit court for the county of 
 
 , within — days after service upon him, or his attorney, of 
 
 a copy of this order, and of the petition and affidavit on which 
 this order is granted, the books of account [or, as the case may 
 be,] described in the said petition, and that the said books, on 
 being so produced and deposited, remain with the said clerk for 
 the space of — days, or that the said plaintiff show cause, on the 
 first day of the next term of the said court, why the prayer of sach 
 petition should not be granted. Dated, &c. 
 
 P. J. L., Circuit Judge.(l) 
 
 § 1177. Judge's order for discovery and production of papers, &c. 
 
 [Title?i 
 
 It is hereby Ordered that the plaintiff in this cause discover 
 and produce, within ' — days after service upon him, or his attorney, 
 of a copy of this order, and of the petition and affidavit on which 
 the same is granted, the paper writing [or " instrument," or " in- 
 denture"] described in the said petition, by delivering a sworn copy 
 thereof to the defendant or his atttorney ; or that the said plaintiff 
 show cause, on the first day of the next term of the circuit court 
 
 for the county of , why the prayer of such petition should 
 
 not be granted. Dated, &c. E. L., Circuit Judge. 
 
 § 1178. The inspection of public hoolcs is, in some cases, necessary, 
 and the court will, on a proper showing, make an order, granting 
 leave to inspect and take copies of them ; and it has been a gen- 
 
 (1) Comp. L. 989. 
 
396 INCIDENTAL PBOCEEDINGS, 
 
 eral rule in tlie Englisli practice, that a party has a right to inspect 
 and take copies of such books, &c., as are of a pitblic nature, wherein 
 he has an interest, provided they be material to the suit, and 
 the party in posessioh be not obliged to furnish evidence against 
 himself in a criminal prosecution.(l) The books of the Quarter 
 Sessions, (2) the court rolls, and books of a manor, (3) parish books, 
 and the books of the custom house, post of&ce, bank and East In- 
 dia company, have been considered as public books, which every 
 person having an interest therein has a right to inspect.(4) So, 
 the books of a corporation are in the nature of public books,(5) 
 and every member of the corporation, having an interest therein, 
 has a right to inspect and take copies of them, for any matter that 
 concerns himself, though it be in dispute with others.(6) If, how- 
 ever, the suit be between the corporation and a stranger, inspection 
 wUl not be granted.(7) 
 
 § 1179. This practice has, to a great extent, been superseded 
 by the provisions of the statute relating to the discovery and 
 production of books and papers ; but cases may still arise in which 
 the court would not order public books to be deposited for inspec- 
 tion, and when the party could not have the desired access tcr 
 them, by a notice to produce them on the trial.(8) In such cases, 
 the motion for leave to inspect would still seem to be the proper 
 mode of proceeding.(9) The motion must be founded, on an affida- 
 vit of the facts under which the inspection is claimed, and will be 
 entered and made in the same manner as other special motions ; 
 and the rule, if the motion is granted, should be served upon the 
 party having the. books in his possession. The inspection, when 
 granted, will always be confined to such entries as relate to the 
 subject in dispute.(lO) 
 
 § 1180. Affidavit to move for leave to inspect public books, 
 imie.'] 
 
 County of , ss: A. B., [or "0. D.,"] the above named 
 
 plaintiff, [or " defendant"'^ being duly sworn, says, that this action 
 is brought for [state what], and that the defendant has pleaded 
 [state what], and that the said cause is now at issue. And deponent 
 
 (1) 1 W. Bl. 44 (2) 1 "Wils. 291. (3) 1 Ld. Raym. 263. 
 
 (4) 2 Ld. feaym. 851; 1 Stra. 304; 2 id. 954; Barnes, 236; 1 Tidd's Pr. 593, 594; 
 Arch. N. Pr. 392. 
 
 (5) 2 Stra. 964. (6) Id. 1223 ; Barnes, 235. 
 (1) 2 Stra. 1203. See 1 T. R. 689; 3 id. 303 ; 8 id. 590. 
 
 (8) See 6 Cowen, 419. (9) See 1 Burr. Pr. 451. 
 
 (10) Barnes, 235; 2 Stra. 1O05, 1223; 3 T. B. 303, SIO ; and see 1 Tidd's Pr. 649. 
 
ATTACHMENT AGAINST WITNESS. 397 
 
 farther says, that he has fully and fairly stated the case in this 
 
 cause to E. F., Esq., his counsel therein, who resides in , and 
 
 that certain books now in the possession of [state who], to wit., 
 [here designate the books,] contain entries relating to the subject 
 matter of this action ; and that this deponent cannot safely proceed 
 to the trial of this cause without an inspection of said books, and 
 copies of the entries above referred to, as he is advised by his said 
 counsel, after such statement as aforesaid, and verily believes. 
 And this deponent further says, that application has been made to 
 
 the said ■ for permission to examine the aforesaid books, and 
 
 that such permission has been refused. And further this deponent 
 says not. A. B. 
 
 Sworn, &c. 
 
 § 1181. Ruhfor leave to inspect public hoohs. 
 ITitle.] 
 
 On reading and filing affidavits in this cause, and on motion 
 of Mr. H., of counsel for the defendant, and after hearing counsel 
 in opposition thereto. Ordered, that the defendant have leave to 
 inspect and examine [here designate the books, and in whose cus- 
 tody], and to take copies of such entries in said books as may 
 relate to the subject matter of this suit, and that the said [the party 
 in whose possession they are], permit the same to be inspected and 
 examined accordingly. 
 
 § 1182. Every person duly subpoenaed as a^ witness to attend 
 any circuit court, is bound to attend according to the command of 
 the subpoena, and for every failure so to attend, without a reasona- 
 ble excuse, is deemed guilty of a contempt of the court out of which 
 the subpoena issued,(l) and may be proceeded against by attach- 
 ment.{2) On the witness failing to appear at the trial, on being 
 called, after having been regularly subpoenaed, (3) if his testimony 
 should be considered material, a motion may be immediately made 
 for an attachment against him ; and this may be coupled with a 
 motion to put off the trial on the ground of the witness' absence. 
 The application should be founded on an afldavit of the party, 
 ' stating the service of the subpoena upon the witness, and his fail- 
 ure to attend, and that he is material.(4) 
 
 § 1183. If the application for an attachment be allowed, a rule 
 will be entered accordingly, and thereupon the clerk will issue 
 
 the writ, indorsing it, " The People, &c., ex rel. A. B. vs. ," 
 
 (the witness,) and also indorsing on the back thereof the words 
 
 (1) Comp. L. 1115. (2) Id. 1228. 
 
 (3) 3 Moore, 222. (4) 5 DowL P. C. 144; 1 Burr. Pr. 452. 
 
398 INCIDENTAL PROCEEDINGS. 
 
 " By special order of the court, 1l. C, 0., clerk."(l) The writ is 
 tested on the day when it is issued, and usually made returnable 
 forthwith. It must be delivered to the sheriff, whose duty it is to 
 execute it by arresting the witness, and keeping him in his custody, 
 bringing him personally before the court, and detaining him in his 
 custody until discharged by the order of the court.(2) The ina- 
 bility of the witness, from sickness or otherwise, to attend the 
 court personally, will be a suificient excuse for not bringing him 
 before such court, nor is the officer required, in any case, to con- 
 fine the person arrested on the attachment in any prison, or other- 
 wise to restrain him of his liberty, except so far as shall be neces- 
 sary to secure his personal attendance. (3) 
 
 § 1184. "When the witness is brought into court on the attach- 
 ment, interrogatories should be filed, specifying the facts and cir- 
 cumstances alleged against him, and requiring his answer thereto ; 
 to which the witness must make written answers on oath, within 
 such reasonable time as the court shall allow.(4) The court may 
 receive any affidavits or other proofs, contradictory of the answers 
 of the witness, or in confirmation thereof, and upon the original 
 affidavits, such answers, and such subsequent proof, must determine 
 whether the witness has been guilty of the misconduct alleged.(5) 
 The witness may ^how that the subpoena was not served a reason- 
 able time before the trial ;(6) or that he was not personally served 
 with it; (7) or that the fees allowed him by law were not paid or 
 tendered to him ;(8) or any other reasonable excuse for his non- 
 attendance, such as sickness, imprisonment, attendance in some 
 other court as a witness, or the like. 
 
 § 1185. If the court shall adjudge the witness to have been 
 guilty of the misconduct alleged, and that such misconduct was 
 calculated to, or actually did, defeat, impair, impede or prejudice 
 the rights or remedies of the party in whose behalf he was sub-# 
 poenaed, it will proceed to ^ impose a fine, or to imprison him, or 
 both, as the nature of the case shall require.(9) A witness duly 
 subpoenaed to attend a circuit court, is bound to make extraordinary 
 efforts to obey the writ, and no trifling inconvenience will excuse 
 his non-attendance. Unless the contempt is purged, the witness 
 
 (1) Comp. L. 1131. (2) Comp. L. 1130, 1131. (3) Id. 1134. 
 
 (4) Id. 1132 ; 15 "Wend. 602. (5) Comp. L. 1132. (6) 1 Stra. 510. 
 
 (1) 2 Id. 1054. (8) Id. 1160 J 1 H.B1. 4. (9) Comp. L. 1132. 
 
ATTACHMENT AGAITSTST WITNESS. 399 
 
 will be fined, not only the costs of the attachment, but the full 
 amount of the costs of the circuit incurred by the party who sub- 
 poenaed him, in consequence of his neglect, if the trial was put off 
 by reason of his absence.(l) 
 
 § 1186. Affidavit to move for attachment against witness. 
 [Title.] 
 
 County of , ss : C. D., the defendant in this cause, 
 
 being duly sworn, deposes and says, that on the — day of , at 
 
 [the place of service] he served the annexed subpoena on T. TJ., 
 
 the witness named therein, personally, by then and there showing 
 to the said T. U. the said subpoena, with the seal of the court 
 thereon, and delivering to him a true copy thereof [or " a subpoena 
 ticket containing the substance thereof''], and paying [or '' tendering "] 
 to the said T. U., at the same time and place aforesaid, the sum of 
 
 dollars and cents, for his fees for traveling to and from 
 
 the court named in the said subpoena, and for his attendance thereat. 
 And this deponent further says, that the said T. U. is a material 
 witness for him on the trial of this cause, without whose testimony 
 he cannot safely proceed to the trial thereof, as he is advised by 
 G. H., Esq., his counsel therein, to whom he has fully and fairly 
 stated the case in this cause, and what he expects to prove by the 
 said T. U., and as this deponent verily believes. And this de- 
 ponent further says, that the said T. U. has wholly failed to attend 
 this court as a witness for this deponent, in pursuance of the said 
 subpoena, without any reasonable excuse known, to this deponent. 
 Sworn, &c. C. D. 
 
 § 1187. RuUfor attachment against witness. 
 \Title.] 
 
 On reading and filing affidavit in this cause, and on motion 
 of Gr. H., Esq., of counsel for the defendant, Ordered, that an at- 
 tachment do forthwith issue against T. U., for an alleged contempt 
 of this court, in not obeying a subpoena issued out of this court, 
 on behalf of the said defendant in this cause, and duly served upon 
 Mm, the said T. IT. 
 
 § 1188. Attachment against witness for disobeyiru/ subpcena. 
 
 In THE NAME OF THE PEOPLE OF THE StATE OF MICHIGAN. To 
 THE SHERIFF OF THE COUNTY OF : 
 
 [seal. J We command you to attach T. U., and bring him 
 forthwith [or, "ow the — day of , instant"] per- 
 sonally before the circuit court for the county of , to answer 
 
 to said court for a certain contempt in not obeying a certain writ 
 of subpoena, issued out of the said court, and to him directed, and 
 
 (1) 15 WendeU, 602 ; and see 10 Mees. & "W. 16. 
 
400 INCIDENTAL PROCEEDINGS. 
 
 on Mm duly served, commanding Mm to appear on, &c., at &c., [as 
 in the subpoena,] before the said court, to testify and give evidence 
 in a certain cause then to be tried between A. B., plaintiff, and C. 
 D., defendant, on the part of the defendant [or " plaintiffyi And 
 you are further commanded to detain the said T. U. in your cus- 
 tody, until he shall be discharged by the said circuit court. And 
 have you there then this writ. Witness, &c. [Tested in the same 
 manner as other writs.] 
 
 [Indorsed.'] 
 
 The Circuit Court for the County of . The People, &c., 
 
 ex rel. A. B. vs T. U. Attachment. J. H,, Attorney. Issued by 
 special order of the court. C, V. B., Clerk.(l) 
 
 § 1189. Interrogatories on attachment against witness for disoheying 
 a svhpcena. 
 
 The Circuit Court for the county of . 
 
 Interrogatories to be administered to T. U., who is in the 
 
 custody of C. B., sheriff of the county of , on an attachment 
 
 issued against him for disobeying a subpoena directed to the said 
 T. U., commanding him to appear before the said circuit court for 
 
 the qpunty of , at, &c., on, &c., [the day, time, and place 
 
 named in the subpoena,] to testify as a witness, in a certain cause 
 pending in said court, wherein A.»B. is plaintiff, and C. D. is defend- 
 ant, on the part of the defendant, [or ^^ plaintiff."'] 
 
 First interrogatory. Were you or not subpoenaed to appear and 
 testify at the time, in the manner, and between the parties in 
 the caption of these interrogatories mentioned? If yea, state 
 when, where, how, and by whom you were so subpoenaed, and 
 whether any and what money was paid or tendered to you for 
 your fees as such witness ? Declare fully. 
 
 Second interrogatory. Look at the annexed writ of subpoena 
 now exhibited to you, at this, the time of your examination. Is 
 that the writ by which you was so subpoenaed, and was a copy 
 thereof, or a subpoena ticket, at the same time left with you, 
 agreeing in substance with such subpoena ? Declare, to your best 
 knowledge and belief. 
 
 Third interrogatory. Did you, or not, obey such subpoena, by 
 attending as a witness at the time and place therein mentioned, 
 and from day to day during the sitting of the court in the said 
 writ specified, or until the court, or the party in whose behalf you 
 was subpoenaed, duly discharged you ? If nay, why did you not 
 so attend ? Answer fully. G, H., Attorney for Defendant. 
 
 (1) Comp. L. 1131, § 14. 
 
HABEAS CORPUS AD TESTIFICANDUM. 401 
 
 § 1190. Huh discharging attachment against witness. 
 
 The People of the State of Michigan, 
 
 ex rel. A. B. 
 
 vs. 
 
 T. U. 
 
 On reading and filing the answer of the respondent to the 
 interrogatories filed against him in this cause, and on motion of 
 Mr. 0. E., of counsel for respondent, Ordered, that the attach- 
 ment in this matter be, and it is hereby discharged. 
 
 § 1191. Bule imposing a fine on witness. 
 [Title as in lastf^rm.] 
 
 The respondent not having answered the interrogatories 
 filed and served in this cause, [or " not having shown any reasona- 
 ble eoccusefor disobeying the writ of subpoena mentioned in the inter- 
 rogatories filed and served in this cause"'\ on motion of Gr. H., of 
 counsel for the relator, the said T. U. is adjudged guilty of the 
 miseoiSduct alleged against him in the affidavit of the said A. B., 
 the relator, on file in this court. And the said T. U. is hereby- 
 adjudged to pay a fine of dollars, and dollars costs ' of 
 
 this motion, and to stand committed until the same be paid. 
 
 § 1192. A habeas corpus ad testificandum is a writ issued for 
 the purpose of bringing a person in prison before the court, to be 
 used as a witness ; and it is provided by statute that every court 
 of record shall have power, upon the application of any party in 
 any suit or proceedings, civil or criminal, pending in such court, 
 to issue a writ of habeas corpus for the purpose of bringing before 
 such court any prisoner who may be detained in any jail or prison 
 within this state, for any cause except a sentence for a felony, to 
 be examined as a witness in such suit or proceeding, in behalf of 
 the party making such application,.(l) Such writs may also be 
 issued by any justice of the supreme court, judge of the circuit 
 court, or any officer authorized to perform the duties of such cir- 
 cuit judge, upon the like application of a party to any suit or pro- 
 ceedings pending in a court of record, or pending before any 
 officer or body who may be authorized to examine witnesses in 
 any suit or proceeding. (2) 
 
 % § 1193. The party desiring the attendance of the witness, 
 must make an application, verified by affidavit, stating the title 
 and nature of the suit or proceeding in regard to which the testi- 
 
 (1) Comp. L. 1311, (2) Laws of 1868, p. 11. 
 
 26 
 
402 mCIDENTAL PEOCEEDINGS. 
 
 mony of such prisoner is desired, and tkat tlie testimony of such 
 prisoner is material and necessary to Buch party on the trial or 
 hearing of such suit or proceeding, as he is advised by counsel, 
 and verily believes ; but if the application be made by the attorney- 
 general, or a prosecuting attorney, it is not necessary to swear to 
 the advice of counsel.(l) If the application be made to the court, 
 the af&davit is read and filed, and, if sufficient, a rule is thereupon 
 made that the writ issue. If made to a judge or commissioner, . 
 the writ shquld be made out and sealed, and presented for allow- 
 ance with the af&davit. It may be made returnable on a day cer- 
 tain, or forthwith, as the case may require, (2) and is tested on the 
 day when it issues. Every such writ must be indorsed with a 
 certificate of the allowance thereof, and with the date of such 
 allowance ; which indorsement, if the writ be awarded by a court, 
 must be signed by the presiding judge ; if it be awarded by any 
 officer out of court, the indorsement must be signed by such 
 offiGer.(3) 
 
 § 1194. The writ must be served on the sheriff or other officer 
 in whose custody the prisoner may be. It can only be served by 
 an ekcior of some county within the state ; and, in order to make 
 thfe service complete, the party serving it must tender to the person 
 in whose custody the prisoner may be, if he be a sheriff, coroner, 
 constable or marshal, the fees allowed by law for bringing up the 
 prisoner, unless the writ is sued out by the attorney- general or a 
 prosecuting attorney, in which case such payment is not necessary.(4)' 
 The writ is served by delivering it to the person to whom it is 
 directed ; or, if he cannot be found, it may be served by leaving at 
 the jail or other place where the prisoner may be confined, with 
 any under officer, or other person of proper age, having charge for 
 the time of such pris6ner ; or, if the person upon whom the writ 
 ought to be served conceal himself, or refuse admittance to the. 
 party attempting to serve such writ, it may be served by fixing it 
 in some conspicuous place on the outside, either of his dwelling 
 house or of the place where the party is confined.(5) 
 
 § 1195. Whenever such writ shall be issued, it is the duty of 
 the officer to whom it is delivered to obey and return it according 
 to the command thereof, in the manner, and within the time pre. 
 scribed by law ;(6) although it be directed to him by a wrong name 
 
 (1) Comp. L. 1371. (2) Comp. L. 1384. (8) Id. 1384. 
 
 (4) M. (6) Id. 1385. (6) Id. U13. 
 
HABEAS CORPUS AD TESTIFICANDUM. 403 
 
 or to another person.(l) If the writ be returnable at a day certain, 
 such return must be made, and the prisoner produced at the time 
 and place specified ; if it be returnable forthwith, and the place be 
 within twenty miles of the place of service, the return must be 
 made, and the prisoner produced within twenty-four hours ; and 
 the like time is allowed for every additional twenty miles.(2) 
 
 The several provisions contained in chapter 134 of the Eevised 
 Statutes of 1846, are construed to apply to this writ, as well as to 
 all other writs of habeas corpus authorized by any statute of this 
 state, so far as they may be applicable.(3) 
 
 § 1196. Petition for habeas corpus ad testificandum. 
 [Title of ike cawie.'\ 
 
 To THE Circuit Court for the couhttt of , [or " To 
 
 the Honorable F. J. L., Judge of the Circuit Court for the county 
 
 The petition of A. B., the above named plaintiff, respectfully 
 showeth, that this action is brought to recover, &c., [state the 
 nature of the action,] and that the defence to the same is [state 
 what]. And your petitioner further shows, that he has fully and 
 fairly stated the case in this caijose to E. F., Esq., his counsel therein, 
 
 who resides at , and has fully and fairly disclosed to his said 
 
 counsel what he expects to prove by E. S., who is now a prisoner 
 
 for [state what] in the custody of the sheriff of the county of , 
 
 and that the testimony of the said E. S. is material and necessary 
 for your petitioner on the trial of this cause, as he is advised by his 
 said counsel, and verily believes; and that, without the benefit of 
 the testimony of the said E. S., your petitioner cannot safely pro- 
 ceed to the trial of this cause, as he is also advised by his said 
 counsel, and verily believes. And your petitioner further shows, 
 that this cause is noticed for trial at the next term of this court, 
 
 appointed to be held at , on the — day of next, [or 
 
 " instant^'] And your petitioner therefore prays that a writ of habeas 
 corpus may be issued, diriected to the said sheriff of the county 
 
 of ■ , to bring before this honorable court the said E. S., to 
 
 be examined as a witness in this suit in behalf of your petitioner. 
 And your petitioner will ever pray, &c. A. B. 
 
 E. F., Plaintiff's Attorney. 
 
 Affidavit verifying ike foregoing petition. 
 
 County of — — ■ — , ss : A. B., the petitioner above named, 
 being duly sworn, says, that he has read the above petition by him 
 subscribed, arid knows the contents thereof, and that the same is 
 true in substance and in fact. And further this deponent saith not. 
 Sworn, &c. A. B. 
 
 (1) Id. 13Y6 ; S J. B. 357. (2) Comp. L. 1386, 1386. (3) Id. 1386. 
 
404 INCIDENTAL PEOCEEDINGS, 
 
 § 1197. Habeas corpus ad testificandum. 
 
 In the name of the People op the State of Michigan. To 
 the sheriff of the county of : 
 
 [seal.] We command you that you have the body of E. S., 
 
 detained in our prison in your custody, as it is said, 
 
 under safe and secure conduct, before the circuit court for the 
 
 county of — ■ , at , forthwith, [or " on the — day of ,"] 
 
 to testify and give evidence in a certain cause now pending in the 
 said court, and then and there to be tried between A. B., plaintiff, 
 and C. D., defendant, of a plea of trespass on the case, on the part 
 of the plaintiff [or " defendant^'] And immediately after the said 
 S. S. shall then and there have given his testimony in the said 
 cause, that you return him to our said prison, under safe and secure 
 conduct. And have you then there this writ. 
 
 Witness the honorable F. J. L., circuit judge at , the — day of 
 
 , in the year of our Lord one thousand eight hundred and . 
 
 E. F., Attorney. T. C. 0., Clerk. 
 
 l_Indorsed, in addition to the title,] 
 
 " Allowed this — ■ day of . 
 
 "P. J. L., Circuit Judge." 
 
 § 1198. Return of sheriff to the above writ. 
 
 In obedience to the within [or "annexed^^] writ, I hereby 
 certify and return, that I have E. S., the prisoner named in the 
 
 said writ, before the circuit court for the county of , as I 
 
 am therein commanded. 
 
 The answer of J. K., Sheriff of the county of . 
 
 § 1199. The trial of a cause may he put off, on the motion of 
 either party, when a necessity for delay exists, and the party mak- 
 ing the application has used due diligence in preparing for trial. 
 If the cause for a postponement of the trial be such that it may 
 probably be removed in time to try the issue during the same term, 
 on a proper showing by affidavit, the cause may be continued from 
 day to day, or to some particular day, on payment of the current 
 costs of the opposite party.(l) If, however, there is no reasonable 
 probability that the party applying will be in readines^ during the 
 same term, he should move for a continuance to a subsequent 
 term ; and in such case, as we have before seen, unless the motion 
 is made on the first day of the term, a satisfactory excuse must be 
 shown for the delay.(2) The motion for a continuance need not 
 be entered in the special motion book, and may be heard at once 
 upon the presentation of the affidavit on which it is founded. (3) 
 
 (1) See 2 "WendeU, 286. (2) Rule 65. (3) Kule 29. 
 
PUTTING OFF TRIAL. 405 
 
 § 1200. The most usual ground of the application to put off the 
 trial of a cause, is the absence(l) or illness(2) of a material witness. 
 It has been allowed, however, on other grounds — such as the ab- 
 sence of the plaintiff, when the defendant has a right to examine 
 him on the trial, (3) the illness of the defendant's attorney, (4) the 
 absence of a judicial document sworn to be material and necessary 
 on the trial,(5) the publication of a libel immediately befpre the 
 trial, with intent to influence the jury, (6) and the arrest of the de- 
 fendant while coming to attend the trial.(7) But the trial will not 
 be put off on account of the absence of a transient witness, when 
 the defendant has had an opportunity of examining him ; nor, in 
 general, on account of the absence or want of preparation of the 
 defendant's counsel.(8) If a party is apprised of a material witness, 
 whose testimony he cannot procure in time, he ought to apply to 
 the court to put off the trial ; and if he goes to trial without the 
 testimony of the witness, and a verdict is found against him, the 
 court will not grant a new trial for the purpose of letting in the 
 evidence of the witness. (9) 
 
 § 1201. The essential requisites of the affidavit upon which the 
 motion is founded, have already been stated.(lO) 
 
 The English courts have refused to pat off the trial, when it did 
 not appear that there was any likelihood of the witness' return; (11) 
 when the witness did not go abroad until after the notice of trial 
 was given, and he might, consequently, have been served with a 
 sulpcena in sufficient time ;(12) when the evidence of the absent wit- 
 ness was intended to sustain a defence not favored by the court ;(13) 
 and when the object of the postponement was to obviate an objection 
 to the competency of a witness.(14) And they will also, it seems, 
 refuse it, if the party applying have conducted himself unfairly, or 
 have been the cause of any improper delay.(15) 
 
 § 1202. When it appears that the rights of the opposite partv 
 will be endangered by the postponerhent of the trial, the court may 
 in addition to the payment of costs, impose other terms upon the 
 
 (1) 2 Arch. Pr. 231. (2) 4 Hill, 567, 570. 
 
 (3) 2 "Wendell, 611 ; 4 HiU, 567. (4) Sager, 63; 3 Tounge & J. 381. 
 
 (5) 1 D. &. R. 159. (6) 1 Burr. R. 510 ; 3 Brod. & Bing. 372. 
 
 (7) lECampb. 229. (8) 2 Caines' R. 384; 2 Cowen, 578. 
 
 (9) 15 J. R. 293. 10) Ante, §§ 435, 436. 
 
 11) 1 "W. Bl. 517. (12) Barnes, 442. 
 
 (13) 1 B. & P. 454. (14) 1 Mood. & M. 377. 
 
 (15) 1 B. & P. 33 ; and see 2 Arch. Pr. 237 ; 2 Tidd's Pr. 770. 
 
406 INCIDENTAL PROCEEDINGS. 
 
 party moving. Thus, in England, the defendant has been required 
 to pay money into court, or give security for it ;(1) and to ad- 
 mit the publication of the libel for which the action is brought ;(2) 
 and, in an action of tort, when the defendant moved to put off 
 the trial for the want of a witness, on its appearing to the satisfac- 
 tion of the judge that there was reason to apprehend that the 
 defendant might die previous to the next circuit, the court held 
 that the judge was warranted in imposing, as a condition of put- 
 ing off the trial, that the defendant should stipulate that his death 
 should not abate the suit.(3) When a defendant pleads a plea in 
 abatement, he must be prepared to prove his plea promptly, and a 
 strong case must be made out, before the court will postpone a trial 
 to enable him to procure the evidence of witnesses.(4) 
 
 § 1203. Challenges, on the trial of a cause by jury may be made 
 by either party, and are to the array , or to thepolls.{5) A challenge 
 to the array is an objection to all the jurors returned by the sher- 
 iff, collectively.(6) It is an exception to the whole panel in which 
 the jury are arrayed, or set down in order by the sheriff in his re- 
 turn ; and is founded on some partiality or default in the sheriff 
 or his under officer, or the clerk, who arrayed the panel.(7) This 
 kind of challenge is unusual in ordinary cases. A challenge to 
 the polls is an exception to particular jurors, and may be inter- 
 posed for any matter which disqualifies the juror from serving.(8) 
 Challenges of both kinds are also divided into principal challenges 
 and challenges to the favor.(9) A principal challenge is when the 
 cause assigned carries with it, prima facie, evident grounds of sus- 
 picion, either of malice or favor, or goes at once to disqualify the 
 juror from serving. A challenge to the favor is for some cause or 
 matter implying merely a probability of bias or partiality, not 
 amounting to a principal challenge.(lO) 
 
 § 1204. At the common law, the grounds of challenge to the 
 array embrace a variety of cases, either implying bias, or a pro- 
 bability of bias, in the sheriff or returning officer.(ll) But our 
 statutes have taken away several of those grounds ; other sufficient 
 
 (1) 2 Arch. Pr. 231. (2) 4 D. & R. 830. 
 
 (3) 10 Wendell, 515. (4) 2 Ohitt. R. 5. ' 
 
 (6) 3 Bl. Com. 358. (6) Co. Litt. 156, 158. 
 (1) 3 Bl. Com. 359 ; Gilb. C. P. 98; 1 Arch. Pr. 204; 9 J. R. 260 ; 1 Cowen, 432, 
 and note. 
 
 (8) 3 Bl. Com. 361. (9) Co. Litt. 156. 
 
 (10) 1 Arch. Pr. 204; 1 Burr. Pr. 464. (11) See 1 Arch. Pr. 204, 206. 
 
CHALLENGES. 
 
 407 
 
 guards against the bringing of prejudiced or otherwise improper 
 persons into the array having been provided. It is not now a 
 cause of challenge to any panel or array of jurors, in any cause, 
 that the elerk who drew them was a party or interested in such 
 cause, or was counsel or attorney for, or related to either party 
 therein ; or that they were summoned by the sheriff, who was a 
 party or interested in such cause, or related to either party therein, 
 unless it be alleged in such challenge, and be satisfactorily shown, 
 that some of the jurors drawn by the. clerk were not summoned, 
 and that such omission was intentionaL(l) And it has been held 
 not to be a good cause of challenge, that two sets of jurors are 
 drawn at the same time from the jury box, for two distinct courts, 
 if they are kept entirely separate, and a distinct panel of each is 
 given to the sheriff; nor that the jurors are drawn more than four- 
 teen days before the sitting of the court at which they are to 
 8erve.(2) 
 
 § 1205. Challenge to the polls may be on account of some de. 
 feet or disqualification of the person to serve as a juror, {propter 
 defectum ;) as that he is not qualified, as required by the statute ;(3) 
 in which case he will be discharged, if the court be satisfied of the 
 fact (4) But a matter which exempts a person from serving on a j ury^ 
 and does not incapacitate him, cannot be a cause of challenge.(5) 
 Challenges may also be on account of some bias, or partiality, 
 {propter affectum ;) as that the juror is of kin to either party, with- 
 in the ninth degree ;(6) that there is affinity or alliance by marriage 
 between the juror and one of the parties ;(7) if such affinity con. 
 tinue, or there be issue of the marriage alive,- — ^for otherwise it would 
 be but a challenge to the favor ;(8) that the juror is god-father to 
 the party's chUd, or the party god-father to the juror's child ; that 
 the juror has land which depends upon the same title as the land in 
 question ; and so, in all other cases where the juror has an interest 
 in the result of the action, direct or collateral ;(9) that the juror 
 has before given a verdict in the same cause, or upon the same title 
 or matter, although between other parties ; that he was chosen ar- 
 bitrator in the same cause, by one of the parties, and had entered 
 
 (1) Comp. L. 1196. (J) 4 "Wendell, 675 ; 3 id. 314. 
 
 <3) Comp. L. 1189. (4) Co. Litt. 156. 
 
 <5) 1 Arch. Pr. 205. (6) Finch. L. 401 ; 3 BL Oom. 363. 
 
 <T) 1 HUl, 64. 
 
 (8) Co. Litt. 157 ; and s«e 1 Co wen, 418, and note. 
 
 /,9) 1 Arch. Pr. 206. 
 
408 INCIDENTAL PEOCBEDINGS. 
 
 upon au examination of it ; but otherwise if he were chosen in- 
 differently by both parties.(l) 
 
 § 1206. And so if the juror is counsellor or servant of either 
 party -(2) that he is tenant of either party ;(3) that he is of the 
 same society or corporation with either party .(4) But it has been 
 held that it is no cause of challenge that he is a freemason, when 
 one of the parties is a freemason, and the other is not. It is also 
 ground of challenge that the juror has taken information of the 
 case before he is sworn ;(5) that he has declared his opinion of the 
 case beforehand ;(6) that he has formed an opinion of the guilt of 
 the defendant ;(7) that, since he has been returned, he has eaten or 
 drank at the expense of one of the parties ;(8) that one of the 
 parties has labored the juror, and given him money or other thing 
 for giving his verdict ; that an action implying malice or displeas- 
 ure is pending between the juror and one of the parties; but if 
 not implying malice, &c., it is only matter of challenge to the 
 favor.(9) 
 
 § 1207. The challenge to the polls for favor is of the same na- 
 ture with the principal challenge, propter affectum, but of inferior 
 degree. The general rule is, that the juror should be indifferent ; 
 and if it appear probable that he is not so, this may be made the 
 subject of challenge, either principal or to the favor, according to 
 the degree of the probability of his being biased.(lO) In penal ac- 
 tions, for the recovery of any sum, it is not a good cause of chal- 
 lenge to a juror summoned, that such juror, or the ofBcer who 
 summoned him, is liable to pay taxes in any county, city, vUlage^ 
 township, or district which may be benefited by such recovery.(ll) 
 
 § 1208. Neither kind of challenge can be made before a foil 
 jury have appeared.(12) The order in which challenges should be 
 made is, first, to the array, and, second, to the polls, and not vw& 
 versa. (13) It is not material which party begins to challenge first ; 
 but whichever begins first, must finish all his challenges before the 
 
 (1) 1 Arch. Pr. 206. (2) Co. Ktt. 157. 
 
 (3) Gilb. P. C. 96. (4) 3 Bl. Com. 363. 
 
 (5) 2 Hale P. C. 306. 
 
 (6) 2 Hawk. P. C, c. 43, §28; IJ. E. 316; 1 Cowen, 432; 1 id. 108; 6 id. 555, 
 651 ; 3 "Wendell, 314. 
 
 (I) 4 Wendfill, 229. (8) Co. Litt. 16t. 
 
 (9) Co. Litt. ISt; 1 Arch. Pr. 206. (10) Arch. Pr. 206, 20T. 
 
 (II) Oomp. L. 1196. (12) 4 B. & Aid. 4T1; 1 Cow. 432, Eoto I. 
 (13) Go. Litt. 158a. 
 
CHALLENGES. 409 
 
 other begins ; otherwise lie is precluded from making any further 
 challenges.(l) If a witness is challenged, and the challenge be over- 
 ruled, or if he be tried, and found indifferent upon the challenge 
 of one party, he may still be challenged by the opposite party .(2) 
 
 § 1209. The challenge to the array must be in writing, setting 
 forth the matter of the challenge with certainty and precision. (3) 
 The challenge to the polls is generally made ore tenus, but may 
 be required by the court to be made in writing ; and in all cases of 
 challenge for cause, such cause is required to be immediately 
 assigned, and the truth thereof must be determined by the court.(4) 
 If the facts alleged in the challenge are admitted, the court deter- 
 mines their sufficiency, and either quashes the array or panel, or 
 excludes the juror, or overrules the challenge, as upon a demurrer 
 to the challenge.(5) If the facts alleged in the challenge are de- 
 nied, this constitutes an issue of fact, which the court must try ; 
 or, if it be a challenge to the favor, it may be tried either by the 
 court itself or by triers appointed by the court for that purpose.(6) 
 In the latter case, it is generally referred to triers for decision.(7) 
 
 § 1210. In case of a challenge for favor, if triers are demanded, 
 and two of the jurors have been already called and taken the box 
 without challenge, they act as triers ;(8) otherwise the court appoints 
 two indifferent persons to try it, who are sworn for the purpose ;(9) 
 and if they try one more, and find him indifferent, he is sworn, 
 and then he and the two triers try the next ;(10) and when another 
 is found indifferent and sworn, the two triers are superseded, and 
 the two first sworn on the jury try the rest.(ll) A juror may be 
 examined on oath of voir dire, with regard to such causes of chal- 
 lenge as are not to his discredit, but not to anything that tends to 
 his disgrace or disadvantage. (12) After the challenge is decided, 
 if the juror be found indifferent, he is immediately sworn on the 
 jury ; if otherwise, he is desired to quit the jury bo«, and the 
 oflScer proceeds to swear the next juror, if not chaUenged.(13) If 
 the triers are in doubt whether the juror is indifferent, they should 
 find him not indifferent.(14) 
 
 (1) Trials per pais, 144. (2) Co. Litt. 158. 
 
 (3) 1 Mich. B. 451. (4) Comp. L. 1198. 
 
 (5) See 6 Cowen, 555 ; 1 id. 108; 9 J. E. 261 ; 1 Cowen, 441, note. 
 
 (6) 4 Wendell, 231. (7) 1 Mich. R. 451. 
 (8) 1 South. K. 12. (9) 1 Salk. 152. 
 (10) Co. Litt 158. (11) 1 Bl. Com. 363. 
 (12) 3 Bl. Com. 364; Co. Litt. 1686. (13) 1 Arch. Pr. 208. 
 (14) 4 City Hall Eecorder, 81. 
 
410 INCIDENTAL PROCEEDINGS. 
 
 § 1211. The cotirse now usually practiced* is for the clerk to 
 draw, from the' box containing the names of the jurors returned, 
 the names of. twelve who are present, and who, on being called, 
 take their seats in the jury box. The plaintiff is then asked if he 
 has any challenges to make, and if he make any challenge to the 
 polls for cause, each challenge so made is separately tried by the 
 court, as made ; and if sustained, the juror so challenged is rejected, 
 and another is drawn or summoned in his place, before another 
 challenge is tried, so that the jury is kept full. After the plain- 
 tiff has made his challenges, the defendant is asked if he has any 
 to make ; and if so, the same course is pursued as in the case of 
 the plaintiffis challenges, and if any jurors are rejected on the 
 challenge of the defendant, the plaintiff may then challenge any 
 of those who have been, drawn to fill their places. 
 
 § 1212. The same course is pursued, giving each party, alter- 
 nately, an opportunity to challenge any new jurors, until each has 
 had an opportunity to challenge every juror. Each party has the 
 right to challenge, peremptorily, two of the jurors called in each 
 case.(l) This right may be exercised at any time before the jury 
 ig sworn, while there are jurors in the box that the party has not 
 before had an opportunity to challenge ; but after he has made his 
 challenges, or waived them, he cannot afterwards challenge a 
 juror, pCTemptorily, that he has before passed without challenge, 
 
 A challenge of a juror for principal cause may become a part of 
 the record, and may be reviewed on error. (2) And a bill of ex- 
 ceptions lies for refusing triers, or upon any question arising upon 
 a challenge to jurors, in a case when triers may be demanded.(3) 
 
 § 1213. Challenge to the array. 
 
 [Title of caused 
 
 And now, at this day, to wit., on the — day of ■, at 
 
 — — -, come as well the aforesaid plaintiff as the aforesaid defendant, 
 by their respective attorneys, and the jurors of the jury empan- 
 neled in this cause, being summoned, also come, and hereupon the 
 said [defendant] challenges the array of the said panel ; because, 
 he says that, &c., [here set forth the matter of the challenge with 
 certainty and precision,] and this he is ready to verify : wherefore, 
 he prayetii jindgnaent, and that the said panel may be quashed. 
 
 G. H., Attorney for Defendant.(4:) 
 
 (1) Comp. L. 1198. (2) 1 Cowen, 108. See 6 id. 556. 
 
 (3) 21 Wendell, 509. (4) 1 Mich E.451; 1 Coven, 439,-&ote; 1 id. 720. 
 
EXCEPTIONS. 411 
 
 § 1214. Any party . aggrieved by any opinion, direction, or 
 judgment of any circuit court in a civil suit or action, may allege 
 exceptions thereto, in writing, at tlie time sucli opinion or direction 
 is given, or such judgment pronounced ; or if sucli exception be to 
 the charge given by the court to the jury, it must be made before 
 the jury shall have delivered their verdict. (1) Exceptions must be 
 taken on some point of law, arising upon a fact not denied, in 
 which either party is overruled by the court ;(2) as for admitting 
 or refusing a challenge ;(3) for admitting improper evidence,(4) 
 provided injustice have been done by such admission ;(5) for ad- 
 mitting irrelevant evidence, which may have influenced the ver- 
 dict ;(6) for refusing proper evidence ; (7) for overruling a demur- 
 rer to evidence ;(8) for refusing to notice material testimony ;(9) 
 or for refusing to charge the jury upon a question of law, provided 
 his attention was called to it, but not otherwise ;(10) or for charging 
 erroneously upon a question of law.(ll) 
 
 §, 1215. But a bill of exceptions will not lie when there is no 
 error in point of law in the charge, although the comments of the 
 judge upon the evidence strongly indicate an opinion adverse to 
 the party against whom the verdict is rendered.(12) Nor can an 
 erroneous opinion of the judge, upon a point of law having no con« 
 nection with the case, be made available by way of exception ;(13) 
 although the court wUl look through the case, and if they see that 
 it might have been affected by the charge or opinion injuriously 
 to the party excepting, a new trial will be ordered.(14) Nor will a 
 bill of exceptions lie for a misdirection of the judge as to a matter 
 of fact.(15) Nor can the decision of the judge, in a matter resting 
 in his discretion, be reviewed upon a bill of exceptions ; as for 
 refusing to open the proofs, after the evidence has been closed ;(16) 
 or to postpone a trial ;(17) or to suspend the trial until the defend- 
 ant could seek and subpoena the plaintiff ;(18) or for disregarding a 
 
 (I) Comp. L. 1198 ; 4 Mich. E. 8T ; id. 4,19. (2) 1 Cowen, 622 ; 2 Gaines' E. 168. 
 (3) 1 Arch. Pr. 210 ; 21 Wend. 509. (4) 1 Salk. 284j 2 Hall, 40; 12 Wend. 64. 
 (5) Id. 41. (6) 19 Wendell, 232. 
 
 , (1) 1 Arch. Pr. 210. (8) Cro. Car. 342; 2 H. Bl. 208. 
 
 (9) 2 Cowen, 479. 
 
 (10) 5 Cowen, 243 ; 1'? J.E. 218 ; 6 Wendell, 268 ; 8 id. Ill; 13 id. 41. 
 
 (II) 4 Cranoh, 62; 2 Hill, 44'r. (12) 12 Wendell, 299; 11 id. 18. 
 
 (13) 19 Wend. 186 ; 2 Hill, 206. 
 
 (14) 9 Cowen, 6'74 ; H Wendell, 83 ; and «ee 2 Hill, 447 ; 5 Ohio R. BJ5, 609. 
 
 (15) 2 Caines' E. 168; 14 J. K. 304. (16) 2 Hill, 248. • 
 (1'7) 3 Hill, 432. (18) 4 Hill, 119. 
 
412 INCIDENTAL PBOOEEDINGS. 
 
 variance on the trial ;(1) or the like.(2) Nor is the decision of 
 the court upon a motion to strike an amended declaration from the 
 files, the subject of an exception. (3) 
 
 § 1216. When either party is dissatisfied with the ruling of the 
 judge upon any question of law arising in the progress of the trial, 
 his counsel excepts to the decision verbally, at the time of making 
 it, or, if it be to the charge, before the jury render their verdict. 
 The exceptions must at once be reduced to writing, but not in any 
 precise form, the object being to preserve a memorandum of them, 
 from which they may afterwards be reduced to form, and the trial 
 proceeds to its termination in the usual manner. After the trial, 
 the party taking the exceptions prepares a brief statement of so 
 many of the facts as are necessary to sholv the grounds of the ex- 
 ceptions, and to enable the court above rightly to understand 
 them.(4) The bUl should contain no more of the facts which 
 transpired at the trial than are necessary distinctly to raise the 
 questions intended for review.(5) Nor should any facts or circum- 
 stances be omitted whi#i are necessary to show the bearing of the 
 decision complained of, upon the result of the trial ; for unless the 
 decision is shown to have been material, it will not be ground of 
 reversal, however erroneous it may be. When the exception is to 
 the charge of the judge, and it embraces several points of law, the 
 exception must, in general, specify the particular points in respect 
 to which error is alleged.(6) And the bill must show, on its face, 
 that the exceptions were taken on the trial.(7) 
 
 § 1217. Unless further time is allowed, the party alleging ex- 
 ceptions must give notice to the opposite party, for some day dur- 
 ing the term at which the trial was had, when and where such ex- 
 ceptions will be settled by the circuit judge.(8) Further time for 
 settling the bill is generally allowed, or agreed upon by the parties 
 to suit their convenience. At or before the time specified for set- 
 tling such bill, the party alleging exceptions must serve a copy of 
 the bill prepared by him upon the opposite party, who may pro- 
 pose amendments thereto in writing, and the same will thereupon, 
 or at such other time as he may appoint, be settled by the judge 
 according to the facts, and signed by him, and delivered to the 
 party alleging such exceptions ; who must file the same with the 
 
 (1) 4 Hill, 18T. (2) 3 ffiU, 159. 
 
 (3) 1 Doug. Mich. E. 434. (4) Rule 86. 
 
 (5) 15 "Wendell, 581. (6) 23 "Wendell, 316. 
 
 (7) 5 Hill, ill. (8) Rule 86. 
 
EXCEPTIONS. 413 
 
 clerk -within ten days thereafter, or, in default thereof, will be 
 deemed to have waived the exceptions, unless further time for 
 filing them be allowed by the judge.(l) It is usual, when further 
 time is allowed for settling the bill, to require that a copy of the 
 bill be served upon the opposite party a sufficient time before that 
 specified for settling it, to enable him to have his amendments ready 
 to present at the same time. It is advisable, in such case, to obtain 
 from the court an order to stay proceedings upon the judgment 
 which may be rendered in the cause, until the bUl of exceptions 
 can be settled. 
 
 § 1218. The parties have the right to be heard by counsel be- 
 fore the judge, and the judge will amend and settle the exceptions 
 according to the facts.(2) He may correct his charge, even where 
 the parties have agreed upon it ;(3) and he may also insert such 
 proof as goes to waive the exception.(4) He may also strike out 
 any matter not properly inserted, whether objected to by the 
 other party or not, and insert any evidence or other matter which 
 has been improperly omitted, and make any other corrections 
 which may seem to be required. After the exceptions are so set- 
 tled, the bill should be fairly engrossed, without delay, for the sig- 
 nature of the judge. When there is an order staying proceedings 
 until the settlement of the bill of exceptions, the party tendering 
 the bill is entitled to a reasonable time after attending before the 
 judge for settlement, to engross the bill, and obtain the signature 
 of the judge ; and until the judge's signature is obtained, the bill 
 will not be considered as settled, and any proceeding by the oppo- 
 site party in the meantime wUl be irregular, and set aside by the 
 court on motion. (5) 
 
 § 1219. If the bill state the fiicts truly, the judge may be com- 
 pelled, by the court to which a writ of error may be brought, to 
 sign the same.(6) When the bill of exceptions has been signed by 
 the judge, and filed with the clerk, it becomes a part of the record in 
 the cause, and will be returned, with the other proceedings therein, 
 if such cause be removed by writ of error to the supreme court 
 for review.(7) 
 
 If the bill of exceptions be improperly settled, or improperly 
 dated, the party objecting should move to set it aside ;(8) or he 
 
 (1) Rule 86. (2) See 6 Cowen, 669. 
 
 (3) Id. (4) 7 id. 364. 
 
 (5) See 9 Wend. 493 ; "Zi id. 664. (6) Oomp. L. 1199; 6 J. B. 2'?9; 5 Wend. 132. 
 
 0) Comp. 1. 1199. (8) 10 Wendell, 264. 
 
414 INCIDENTAL PEOCEEDINGS. 
 
 may move to have it referred back to tlie judge who tried the cause, 
 to be reviewed and corrected.(l) But a bill of exceptions, signed 
 by the circuit judge, showing the exceptions toliavebeen properly 
 taken on the trial, is to be presumed properly signed, and within 
 the proper time, though dated several months after the trial and 
 after judgment entered, and though nothing appears in the bill 
 itselfj or in the record, to show affirmatively that time was allowed 
 for its preparation and settlement.(2) 
 
 § 1220. When the cause is tried by the court without a jury, ex- 
 ceptions may be taken by either party, and a bill of exceptions 
 made, in the same manner, and with the like effect, as upon a trial 
 by jury.(3) And either party may, at any time before judgment, 
 preseiit to the court such points of law as may be deemed material) 
 in the same manner in which such points are presented upon re- 
 quests to charge in jury trials ; and the court, in its finding, is 
 required to pass specially on all sucb points as in charging a jury, 
 as near as may be ; and whenever such points are presented, the 
 facts, as well as the law, must be embodied in the finding of the 
 court.(4) If the finding of the court is not deemed sufficiently full 
 or definite, either on facts or law, amendments to such finding may 
 be proposed and settled ;(5) and- within four days after the finding 
 is completed and filed, or within such other time as may be allowed 
 for that purpose, any party aggrieved may briefly, in writing, allege 
 exceptions to the matters of law embodied in such finding, and 
 such exceptions may thereafter be put in form, and settled in the 
 same bill which may contain the exceptions taken during the trial, 
 and in the same manner with bills of exceptions in other cases.(6) 
 
 § 1221. Billof exceptions on the part of the defendant to the judges 
 charge to the jury. 
 The Circuit Oouet for the county op 
 
 C. 
 ads. 
 
 A. 
 
 D. I 
 
 ■,ds. V 
 
 At a session of the said court, held at the court house in 
 
 , in said county of , on the — day of , in the year one 
 
 thousand eight hundred and — , before the honorable J. S., judge of 
 the said circuit court, the issue joined between the parties in this 
 
 cause came on to be tried by a jury of the said couiity of — , 
 
 for that purpose duly empanneled, good and lawful men of the 
 said county, at which day came there as well the said plaintiff as 
 
 (1) B -Wendell, 312 ; 6 Mich. B. 69. (2) 5 Mich. B. 3J. " (3) Bule 80. 
 
 (4) Bate 8T. (5) Eula 88. (6) Bule 89, 
 
EXCEPTIONS. 415 
 
 the said defendant by their respective attorneys; and the jurors of 
 the jury aforesaid, empanneled to try the said issue, also came, 
 and were then and there duly chosen and sworn to try the issue 
 aforesaid, between the parties aforesaid. * And upon the trial 
 of the issue aforesaid, the counsel for the said plaintiff, to main- 
 tain and prove the said issue on his part, gave in evidence that, &c., 
 [here set out the evidence on the part of the plaintiff, so far as may 
 be necessary, and then proceed as follows :J f And, thereupon, 
 the counsel for the said defendant, to maintain and prove the said 
 issue on his part, gave in evidence that, &c., [here set out the evi- 
 dence, as far as material, on the part of the defendant,] whereupon 
 the said counsel for the said defendant did then and there insist 
 before the said circuit judge, on behalf of the said defendant, that 
 the said several matters so produced and given in evidence on the 
 part of the said defendant as aforesaid, were sufficient, and ought 
 to be admitted and allowed as decisive evidence to entitle the said 
 defendant to a verdict, and to bar the said plaintiff of his aforesaid 
 action ; and the said counsel for the said defendant did then and 
 there pray the said court to admit and allow the said matters so 
 produced and given in evidence for the said defendant, to be con- 
 clusive evidence in favor of the said defendant to entitle him to a 
 verdict in this cause, and to bar the said plaintiff of his action 
 aforesaid. But to this the counsel for the said plaintiff did then 
 and there object, and insist before the said circuit court that the 
 same were not sufficient, nor ought to be admitted or allowed to 
 entitle the said defendant to a verdict, or to bar the said plaintiff 
 of his action aforesaid ; and the said circuit judge did then and 
 there declare, and deliver his opinion to the jury aforesaid, that 
 the said several matters so produced and given in evidence on the 
 part of the said defendant, were not sufficient to bar the said plain- 
 tiff of his action aforesaid ; whereupon, the said counsel for the said 
 defendant did then and there, on behalf of the said defendant, 
 except to the aforesaid opinion of the said circuit judge, and in- 
 sisted on the said several matters as an absolute bar to the said 
 action. And the said circuit judge did then and there also fur- 
 ther declare and deliver his opinion to the said jury, that, &c., 
 [state particularly an^ separately each specific remark which is 
 ex43epted to, in the charge to the jury, and state expressly, after 
 each remark, the exception thereto, as follows:] to which last 
 mentioned opinion of the said circuit judge, the said counsel for 
 the said defendant did then and there, on behalf of the said defend- 
 ant, except. 
 
 And the said circuit judge, under the charge, and with the 
 directions aforesaid, left the aforesaid issue, and the evidence so 
 given on the trial thereof as aforesaid, to the said jury ; and the 
 jury afo]resaid then and there gave their verdict for the said plain- 
 tiff, and assessed his damages, on occasion of the premises, at the 
 sum of — — dollars. And inasmuch as the said several matters 
 so produced and given in evidence on the part of the said defend- 
 ant, and by his counsel aforesaid objected and insisted on as a bar 
 to the action aforesaid, do not appear by the record of the said 
 trial and verdict, the counsel for the said defendant did then and 
 
416 INCIDENTAL PROCEEDINGS. 
 
 there propose the aforesaid exceptions to the opinion of the said 
 circuit judge, and request him to sign this bill of exceptions, con- 
 taining the several matters aforesaid, pursuant to the statute in 
 such case made and provided ; and, thereupon, the said circuit 
 judge, at the request of the counsel for the defendant aforesaid, 
 hath signed this bill of exceptions, pursuant to the statute aforesaid, 
 
 on the — day of , one thousand eight hundred and ■ . 
 
 J. S., Circuit Judge.(l) 
 
 § 1222. The like on the part of the plaintiff. 
 
 [As in the preceding form to the f, and then as follows :] 
 Whereupon the said counsel for the said plaintiff did then and 
 there, on behalf of the said plaintiff, insist before the said circuit 
 court, that the said matters so produced and given in evidence on 
 the part of the said plaintiff as aforesaid, were sufficient, and ought 
 to be admitted and allowed as decisive evidence to entitle the said 
 plaintiff to a verdict on the said issue so joined as aforesaid, between 
 the parties aforesaid ; and the said counsel for the said plaintiff did 
 then and there pray the said circuit judge to admit and allow the 
 said matters so produced and given in evidence for the said plain- 
 tiff, to be conclusive for the said plaintiff to entitle him to a verdict 
 in this cause ; but to this the counsel for the said defendant did 
 then and there object, and insist before the said circuit court that 
 the same matters so given in evidence on the part of the said plain- 
 tiff were not sufficient, and ought not to be admitted or allowed, to 
 entitle the said plaintiff to a verdict ;' but that the said matters so 
 given in evidence on the part of the said defendant were sufficient, 
 and ought to be admitted and allowed to bar the said plaintiff of 
 his action aforesaid. And the said circuit judge did then and there 
 declare and deliver his opinion to the jury aforesaid, that the sev- 
 eral matters so produced and given in evidence on the part of the 
 said plaintiff, were not sufficient to entitle him to a verdict in this 
 causey but that the said several matters so produced and given in 
 evidence on the part of the said defendant, were sufficient to bar 
 the said plaintiff of his said action. Whereupon the said counsel 
 for the said plaintiff did then and there, on behalf of the said plain- 
 tiff, except to the aforesaid opinion and decision of the said circuit 
 judge, and insisted on the said several matters as sufficient to sus- 
 tain the said action on the part of the said plaintiff, and to entitle 
 him to a verdict. And the said circuit judge, &c., [conclude as 
 in the last form, substituting "plaintiff" for " defendant."] 
 
 § 1223. BiU of exceptions tojudge^s decision rejecting evidence. 
 
 [As in § 1220 to the *, and then as follows :] And upon the 
 trial of the said issue, the counsel for the said plaintiff, to maintain 
 and prove the said issue on his part, called S. P., who, being duly 
 sworn, testified that, &c., [state the testimony.] The counsel for 
 
 (1) Till. Forms, 182 ; Bunr. Ap. § 91. 
 
BILLS OF EXCEPTIONS. 417 
 
 the plaintiff, further to maintain and prove the issue on his part, 
 called W. D., who, being duly sworn, testified that, &c., [state 
 what.] The counsel for the said defendant, to maintain and prove 
 the said issue on his part, then cross-examined the said W. D., and 
 on such cross-examination he testified that, &c., [state what.] The 
 counsel for the said plaintiff, further to maintain and prove the 
 said issue on his part, introduced, &c., [state the documentary evi- 
 dence, if any, and how proved.] 
 
 The counsel for the plaintiff here rested his cause ; and the coun- 
 sel for the said defendant, to maintain and prove the said issue on 
 his part, offered to prove that, &c., [state the evidence offered.] 
 But the oounsel for the plaintiff then and there objected to the 
 introduction of such evidence, on the ground that, &c., [state the 
 ground of objection.] And thereupon the said circuit judge 
 decTared and delivered his opinion that, &c., [state the opinion], 
 and rejected the said evidence as inadmissible, to which opinion 
 and decision of the said circuit judge the said counsel for the de- 
 fendant did then and there, on behalf of the said defendant, except. * 
 
 The said issue was thereupon submitted to the j ury, and they then 
 and there found a verdict for the said plaintiff, and assessed his 
 
 damages, on occasion of the premises, at the sum of dollars 
 
 and cents. 
 
 And because none of the exceptions so offered and made to the 
 opinion and decision of the said circuit judge, do appear upon the 
 record of the said trial, therefore, on the prayer of the said defend- 
 ant by his said counsel, the said circuit judge hath signed this bill 
 of exceptions, according to the statute in such case made and pro- 
 vided, this — day of , one thousand eight hundred and . 
 
 J. T., Circuit Judge. 
 
 § 1224. Bill of exceptions to judge's decision admitting evidence. 
 
 [As in § 1220 to the *, and then as follows :] And upon 
 the trial of the said issue, the counsel for the said plaintiff, to main- 
 tain and prove the issue on his part, produced and offered in evi- 
 dence a certain deed of bargain and sale, [or " a certain writing 
 obligatory" or " a certain promissory note," or otherwise, as the case 
 may be, setting out the instrument offered in evidence, and then 
 proceed as follows :] But to the reading of the same in evidence 
 the said counsel for the said defendant did then and there object, . 
 because, &c., [here state the objections, and then add :] But the 
 said circuit judge did then and there declare and deliver his opinion 
 that the said objection so taken by the counsel for the defendant 
 as aforesaid, ought not to be allowed, but that the said deed [or 
 " writing obligatory" or ^^ promissory note" &c.,] ought to be admit- 
 ted in evidence ; and did accordingly decide that the same should 
 be read in evidence on the part of the said plaintiff; to which said 
 opinion and decision of the said circuit judge the said counsel for 
 the defendant did then and there, on behalf of the said defendant, 
 except. 
 
 [K the exception be taken to the admission of a witness, or to 
 the admission of the testimony of a witness, after the * in § 1220, 
 
 27 
 
418 INCIDENTAL PEOOEEDINGS. 
 
 proceed as follows :] And Tipon the trial of the said issue, the 
 counsel for the said plaintiff, to maintain and prove the said issue 
 on his part, produced as a witness J. W., and offered to prove hy 
 the said J. W. that, &c., [state what, and then proceed as follows :] 
 But to the admission of the said J. W. as a witness, [or " to the ad- 
 mission of the said matters so offered to he given in evidence on ike part 
 of the said plaintiff as aforesaid"'] the said counsel for the said de- 
 fendant did then and there object, because, &c., [here state the ob- 
 jections, and then add :] But the said circuit judge did then and 
 there declare and deliver his opinion that the said objections so 
 taken by the counsel for the said defendant, ought not to be allowed, 
 but that the said J. W. ought to be allowed to testify as a witness, 
 [or " that the matter so offered to he given in evidence on ihepart of the 
 said pilaintiff, ought to he admitted and received in evidence,"] and did 
 accordingly decide that the said J. W. should be admitted*and 
 sworn, and then and there did admit the said J. W. to be sworn 
 as a witness, [or ^'' that the matter so offered as aforesaid should he 
 given in evidence on the part of the said plaintiff, and did then and 
 there admit and receive the same in evidence,"] to which said opinion 
 and decision of the said circuit judge the counsel for the said de- 
 fendant did then and there, on behalf of the said defendant, ex- 
 cept * [conclude as in § 1220 or § 1221.] 
 
 § 1225. Bill of exceptions on thepart of defendant, in a cause tried 
 by the court without a jury. 
 
 ITiile.] 
 
 At a session of the said court, held at the court house in 
 
 , in said county of , on the — day of , in the 
 
 year one thousand eight hundred and , before the honorable 
 
 E. L., circuit judge of the judicial circuit, the issue joined 
 
 between the parties in this cause came on to be tried by the court 
 without a jury ; at which day came there as well the said plaintiff 
 as the said defendant by their respective attorneys. And upon the 
 trial of the issue aforesaid, the counsel for the said plaintiff, to 
 maintain and prove the said issue on his part, &c., [as in the two 
 last forms to the *, and then proceed as follows :] Whereupon the 
 issue so joined as aforesaid was submitted to the said court for de- 
 cision : and thereupon the said cause was held and continued under 
 advisement by the said court, and no decision was made or judg- 
 ment rendered therein until afterwards, to wit., on the — day of 
 
 , at which day, and before the rendition of any decision or 
 
 judgment therein, the said counsel for the said defendant, on the 
 part and behalf of the said defendant, did present to the said court 
 the following points of law, which were by him deemed material in 
 the determination of this cause, to wit., [here state fully the points 
 of law presented to the court,] and did then and there request the 
 said court to pass specially on each of the said points of law so 
 presented, in its finding in this cause. And the said court, after- 
 wards, to wit., on the — day of , did make and file with the 
 
 clerk of this court the finding and decision of the said court in said 
 cause, in writing, as follows : [here set forth the finding of the 
 
SPECIAL VERDICTS. 419 
 
 eoiirt :] to which said finding of the said court upon the several 
 points of law so presented to the said court to be passed upon as 
 aforesaid, the counsel for the said defendant, within four days after 
 the filing of the said finding with the said clerk, did, in behalf of the 
 said defendant, allege exceptions in writing, and file the same with 
 the said clerk. 
 
 And because none of the said exceptions so ofiered and made to 
 the seyeral opinions and decisions of the said circuit court do ap- 
 pear upon the record of the said trial, therefore, on the prayer of 
 the said defendant by his said counsel, the said circuit judge hath 
 
 signed this bill of exceptions, this — day of , one thousand 
 
 eight hundred and . B. L., Circuit Judge.(l) 
 
 § 1226. Amendments proposed to bill of exceptiork, 
 ITitle.] 
 Amendments to Bill of Exceptions. 
 
 Amendment 1. On page — , line , strike out the words [state 
 
 them], and insert [state what.] 
 
 Amendment 2. On page — , line ^, after the words [state 
 
 them,] insert the words [state them.] [And in the same manner 
 throughout, as the case may require.] 
 
 E. R, Attorney for Plaintiff: 
 
 § 1227. When the jury render a special verdict, it is not, in gen- 
 eral, drawn up in form at the trial, but it is sufficient for the counsel 
 to make a minute of the facts found specially by the jury, and 
 deliver it to the judge, or the judge may note them himself, as he 
 may elect. Both the judge and the counsel usually make a minute 
 of the facts as found by the jury, and stated through their foreman. 
 According to the English practice, the special verdict is dictated 
 by the court at the trial, and signed by counsel on both sides before 
 the jury are discharged; and if, in settling it, any difference of 
 •opinion arise about a fact, the opinion of the jury is taken, and the 
 fact is stated accordingly.(2) And the minute of the verdict, taken 
 at the trial, should embrace a full finding of the facts upon all the 
 issues submitted to the jury, and a full understanding of them 
 should be had by the judge and the dounsel on both sides, and a 
 reference had to the jury before they are discharged, to settle any 
 facts about which there is any misunderstanding or disagreement 
 between counsel 
 
 § 1228. Neither the statute, nor the standing rules of the court, 
 direct the mode of settling the special verdict; and it is, therefore, 
 
 (1) Rules 80, 8J, 89. (2) 1 Arob. Pr. 214, 
 
420 INCIDEWTAL PROCEEDINGS. 
 
 necessary, when a special verdict is rendered, and it cannot conye- 
 niently be drawn up in form during the same term, that a special 
 rule should be obtained, directing the manner of settling it. This 
 rule requires the plaintiff's attorney to prepare and serve a copy of 
 the verdict on the attorney of the opposite party within a certain 
 time, and allows the opposite attorney a certain time to prepare 
 and serve a copy of amendments, and directs that if the parties do 
 not agree, the plaintiff's attorney shall give notice of the time and 
 place when and where the special verdict will be settled by the 
 judge; or the rule may direct that the special verdict shall be 
 prepared, a copy served on the opposite attorney, amendments 
 proposed and ^erved, and notice given of settlement before the 
 judge, within the same time, and under the same regulations as 
 are provided by the standing rules of the court with respect to 
 cases. 
 
 § 1229. The verdict must state the facta proved at the trial, and 
 not the evidence given to prove those facts ;(1) otherwise it will be 
 set aside, and a new trial ordered.(2) But if a special verdict, on 
 a mixed question of law and fact, find facts from which the court 
 can draw clear conclusions, it is no objection to the verdict that 
 the jury have not themselves drawn such conclusions,- and stated 
 them as facts in the case.(3) The verdict must not state exceptions 
 to the competency of witnesses, or the admissibility of evidence ; 
 those being available only on a bill of exceptions, or case ;(4) and 
 if such matters be stated, they will be disregarded. (5) The names 
 of the witnesses sworn on the trial should not appear in the ver. 
 diet ;(6) nor should deeds be set out in it in liaee verba, but merely 
 the substance of them stated, unless the question in dispute rest 
 tipon their construction. (7). A negative need not be found in a 
 special verdict, unless when necessary to show that some matter 
 therein mentioned does not come within a particular exception.(8) 
 Matter not within the issue between the parties, as that an affidavit 
 verifying the plea had not been filed, will be rejected as surplus^ 
 age; (9) and a special verdict, finding that the defendant does not 
 appear, or offer any evidence in support of his plea, is a nu]lity.(10) 
 
 (i) 8 Cowen, 406, 409, 'JOO; 5 HiU, 634; 4 id. Itl. 
 
 (2) \ Bast, 111; 3 Taunt. 209 j 1 Aroh.Pr. 214; 1 Mich. E. 294. 
 
 (3) 18 Co-wen, 406. (4) 8 Cow. 669 ; 8 "Wendell, 480. 
 (5) 8 Co-wen, 669. (6) 8 Cowen, '700. 
 
 (T) 1 ATeh. Pr. 214. (8) WiUes, IIT. 
 
 (9.) 16 J. E. 301. (10) 3 Cowen, 361. 
 
SPECIAL VERDICTS. 421 
 
 I 1230, When, after settlement, the verdict was found to be 
 defective, it was allowed to be amended on motion, and on proper 
 af&davits.(l) And a mistake in framing a special verdict in the 
 common pleas, was held to be amendable there, after error to the 
 supreme court, joinder in error, and several notices of argument, 
 the delay being accounted for.(2) The court, however, will not, 
 on affidavit, amend a special verdict agreed upon between the par- 
 ties without triaL But if there appear to be any mistake, as to a 
 matter of fact by either party, they will order it to be vacated, on 
 payment of costa(3) 
 
 The special verdict having been settled, forms a part of the re- 
 cord,(4) and may be brought on for argument without farther 
 notice, in the same manner as a certiorari or demurrer. 
 
 § 1231. Special verdict, as prepared for settlement. 
 [Title.] 
 
 At a session of the said court, held at the court house in 
 
 , in said county of , on the — day of , in the year 
 
 one thousand eight hundred and — , before the honorable B.. W., 
 judge of the said circuit court, come as well the above named 
 plaintiff as the above named defendant, by their respective attor- 
 neys, and the jurors of the jury summoned to try the issue between 
 the parties in this cause, being called, also come ; who, to speak the 
 truth of the matters aforesaid being chosen, tried and sworn, say 
 upon their oath, [here state the facts found by the jury, and not the 
 
 evidence of those facts, thus :] that on the — day of , in the year 
 
 , one E. Z. duly made and published his last will and testa- 
 ment, in the manner and form required by law for passing real 
 estate, and which was duly attested according to law, whereby, 
 among other things, he devised to, [stating the particulars.] 
 
 And the jurors aforesaid, upon their oath aforesaid, do further 
 say, that the said E. Z., afterwards, on, &c., at, &c., died without 
 altering or revoking his said will. 
 
 And the jurors aforesaid, upon their oath aforesaid, do further 
 say, that, &c., [stating all the material facts consecutively ; and 
 then conclude as follows :] 
 
 But whether or not, upon the whole matter aforesaid, by the 
 jurors aforesaid, in form aforesaid found, the said defendant is 
 guilty of the matters in the said plaintiff's declaration laid to his 
 ■charge, [or " did promise and undertake" or " did seal and deliver the 
 bond or obligation in the said plaintiff ''s declaration mentioned and set 
 forth" or whatever else may be in issue,] the jurors aforesaid are alto- 
 gether ignorant, and thereupon pray the advice of this honorable 
 court; and i^ upon the whole matters aforesaid, it shall seem to the 
 said court that the said defendant is guilty of unlawfully withhold- 
 
 (1) Stra. 514; 8 Mod. 49. (2) 2 Cowen, 408. 
 
 |3) 2 Cowen, 615. (4) 1 Burr. fr. 242. 
 
422 IN'CIDENTAL PROCEEDINGS. 
 
 ing the premises in the said plaintiff's declaration described from the 
 said plaintiff, [or whatever the affirmative of the issue may be,] 
 then the jurors aforesaid, upon their oath aforesaid, say, that the 
 said defendant is guilty thereof in manner and form as the said 
 plaintiff hath in his said declaration complained against him ; and 
 in that case they assess the damages of the said plaintiff, by reason 
 of the matters aforesaid, besides his costs and charges by him 
 
 about his suit in that behalf expended, to dollars. But if, 
 
 upon the whole matters aforesaid, it shafi seem to the said court 
 that the said defendant is not guilty of, ' [stating the negative of the 
 issue,] then the jurors aforesaid, upon their oath aforesaid, say, that 
 the said defendant is not guilty thereof, in manner and form as he 
 hath in his plea in this cause alleged. 
 
 [If the counsel of the respective parties agree upon the form of 
 the verdict, they will sign an indorsement upon it to that effect. 
 If settled by the judge, he will certify accordingly. Amendments 
 may be proposed in the same form as to a bill of exceptions, or 
 case.] 
 
 § 1232. Special cases are of two kinds ; such as are made be- 
 fore judgment, and such as are made after judgment. Parties to 
 any civil action pending in any circuit court, and parties to any 
 question of difference which might be the subject of a civil action, 
 without bringing suit, may agree upon a case containing the facts 
 of the matter in controversy, and submit the same to the court ; 
 and the court will thereupon hear and determine the cause at any 
 term thereof and render judgment thereon as in other cases ; but 
 if such case be agreed upon without action, it must appear, by affi- 
 davit, that the controversy is real, and the proceeding in good 
 faith, to determine the rights of the parties ; and in such case no 
 costs can be given to either party .(1) And in any civil cause de- 
 pending in a court of record, when the parties agree upon a case 
 containing the facts, the court must determine the same, and ren- 
 der judgment therein, as upon a special verdict finding such fe,cts.(2) 
 If either party shall wish to have such cause, after judgment, re- 
 moved to the supreme court, for any error in the determination or 
 judgment, the clerk of ike circuit court is required to certify such 
 case, and the judgment thereon, to the supreme court, and such 
 court thereupon becomes possessed of the cause, and may give such 
 judgment, and with such costs, as justice may require.(3) 
 
 § 1233. It is further provided, by statute^ that any case made 
 after judgment in any circuit court, and agreed upon by the par- 
 
 (1) Comp. L. 995.. (2) Comp. L. 1228. (3) Comp. L. 996, 996. 
 
SPECIAL CASES. 423 
 
 ties, or settled by tlae court, may be removed to tbe supreme court 
 in like manner, -without any bill of exceptions or writ of error, and 
 tliat all questions arising upon any case so certified, shall be open 
 to argument, and subject to the adjudication of the supreme 
 court ;(1) and that in cases tried by the court without a jury, either 
 party, desiring a review of the facts, may make a case containing so 
 much of the evidence as may be material to the question to be 
 raised, and that such case shall be settled as provided by the rules 
 of court.(2) The party desiring such review under either of the 
 provisions last above cited, must, unless the same shall be pre- 
 viously agreed upon by the parties, prepare the case, and serve a 
 copy thereof on the opposite party, within ten days after notice of 
 the judgment ; and amendments may be proposed, and a copy 
 served on the party who prepared the case, within ten days there- 
 after ; and within four days after service of a copy of such amend- 
 ments, the party who prepared the case must serve the opposite 
 party with a notice to appear within a specified time, not less than 
 six, nor more than twenty days thereafter, before the judge who 
 tried the cause, to have the case and amendments settled. (3) 
 
 § 1234. The judge, at the time and place specified in the notice, 
 or at such other time as he may appoint, settles the case as he deems 
 consistent with the truth of the facts. In order to facilitate such 
 settlement, and to enable the opposite party to propose his amend- 
 ments with more ease and certainty, the folios of the case are re- 
 quired to be so numbered that each copy shall correspond. (4) If 
 the party omits to make the case within the time therefor limited, 
 he is deemed to have waived his right thereto ; and when a case is 
 made, and the parties omit within the several times limited by the 
 rules, the one party to prepare amendments, and the other to no- 
 tify an appearance before the judge, they are respectively deemed, 
 the former to have agreed to the case as proposed, and the latter 
 to have agreed to the amendments as proposed. But every case 
 made after judgment, must be settled and signed by the judge be- 
 fore it is filed.(5) The party making a case must procure it to be 
 filed within ten days after it is settled and signed, or it will be 
 deemed to be abandoned.(6) 
 
 § 1235. By a careful attention to the statutory provisions and 
 rules of practice above recited, it is readily seen that a case made, 
 
 (1) Comp. L. 996 ; Laws of 1851, p. 242. (2) Laws of 1853, p. ISl; Comp. L. 999. 
 (3) Eule 81. (4) Rule 81. 
 
 (6) Rule 82. (6) Eule 83. 
 
424 INCIDENTAL PROCEEDINGS. 
 
 whether before or after judgment, differs very essentially from a 
 special case, as defined in the books on general practice in common 
 law courts ; and that while most of the general principles which 
 govern the form and substance of the common law case are appli- 
 cable to a case made under our statutes, yet the office and effect of 
 the case, and the mode of proceeding thereon, are very different. 
 According to the English practice, where a difficulty in point of 
 law arose on the trial of a cause, the jury might, instead of finding 
 a special verdict, find a general verdict for the plaintiff, subject to 
 the opinion of the judge or the court above, on a special case, with 
 regard to the matter of law. The case was either dictated by the 
 judge at the trial, and signed by counsel on both sides before the 
 jury were discharged, when, if any difference of opinion arose about 
 a fact, the opinion of the jury might be taken, and the fact stated 
 accordingly ; or it was settled afterwards, and any difference of 
 opinion as to facts was determined by the judge from his notes.(l) 
 
 § 1236. Such a case had this advantage over a special verdict, 
 that it was attended with much less expense, and obtained a much 
 speedier decision. But it constituted no part of the record in the 
 cause, and nothing but the general verdict appeared therein, and 
 the parties were thereby precluded from a writ of error, if dissat- 
 isfied with the judgment of the court or judge upon the point of 
 law. (2) The mode adopted to obviate this latter objection was for 
 the judge at nisiprius to grant leave, or for the pafties to stipulate, 
 that either party might afterwards have the special case turned 
 into a special verdict, should it become necessary to take the opin- 
 ion of a court of error on the case.(3) And so, according to the 
 former practice in New York, the case could not be removed by 
 writ of error, because it was not entered upon the record, and 
 hence, on making a case, it was usual for the court to grant leave, 
 or for the parties to stipulate that the case made might be turned 
 into a special verdict, or bill of exceptions, at the option of either 
 party. In the former case, it was necessary that all disputed facts 
 should be found by the jury ; and in the latter the points of law 
 decided at the circuit, were required to be distinctly stated in the 
 case substantially as in a bill of exceptions. (4) 
 
 § 1237. All these objections to a special case are obviated by 
 the statute and rules of practice, which provide for a removal of 
 
 (1) See 1 Arch. Pr. 216. (2) I Arch. Pr. 216 ; 3 Bl. Com. StS. 
 
 (3) 1 Arch. Pr. 216. (4) 1 Burr. Pr. 463, 464. 
 
SPECIAL CASKS. 425 
 
 the case to the court of last resort, for review and adjudication, 
 both upon the law and the facts, by the simple process of certify- 
 ing the case, and the judgment thereon in the circuit court, to the 
 supreme court, and filing the same in the office of one of the clerks 
 of that court. K the case is agreed upon hefore judgment, it must 
 contain the /acte of the matter in controver3y.(l) AfUr judgment, 
 if there is no dispute about the facts, they may be agreed upon 
 and stated in the case, and the questions of law arising thereon 
 only be submitted for decision ; but if the facts be disputed, and 
 the party making the case desires a review of the questions of 
 fact upon the evidence appearing upon the trial, the case must 
 contain so much of the evidence as may be material to the ques- 
 tion to be raised.(2) The finding of the facts by the court, in a 
 case tried without a jury, cannot be treated as a case made, and 
 no ruling of the court on questions of law embodied therein can 
 be reviewed, except by bill of exceptions, or on a case made as 
 provided by statute ; but such finding constitutes a part of the 
 record in the cause, and is treated in all respects as a special ver- 
 dict, and error may be alleged that the same does not support the 
 judgment, as on a special verdict.(S) 
 
 § 1238. If a case, containing the facts relating to the matter in 
 controversy, be made in an action pending, it is entitled in the 
 cause ; but if it be made without any suit brought, of course it is 
 not entitled in any suit. Nor is it required to be in any precise 
 form. It is important, however, that it set forth truly and clearly 
 all the facts which are material to be considered in determining 
 the rights of the parties involved in the controversy, for the court 
 cannot amend a ca^e agreed upon by the parties. But perhaps the 
 court would, as in the case of a special verdict, order it to be va- 
 cated, when it clearly appeared that there was a mistake, as to a 
 material fact, in framing the case. (4) "When made in a cause 
 pending, whether before or after judgment, it should set forth the 
 substance of the pleadings, so as to exhibit the issue to which the 
 facts or the evidence relate, and thus enable the court to which 
 it may be removed for review, to see their proper application to 
 the subject of dispute. A case made for review upon the evidence, 
 affords all the advantages of a demurrer to evidence, whUe it is 
 more simple, and better adapted to attain the ends of justice. 
 
 (1) Oomp. L. 995. (3) Rule 80; Comp. L. 999. 
 
 (3) Eule 90. (4) See 2 Cowen, 615. 
 
426 INCIDENTAL PROCEEDINGS. 
 
 § 1239. Case agreed upon hy parties without Iringing suit. 
 {No title.'] 
 
 "We, A. B., of , and 0. D., of , being parties to a 
 
 question of difference whicli might be the subject of a civil action, 
 and having agreed to submit the same to the circuit court for the 
 
 county of , without suit, upon a case to be agreed upon 
 
 between us, containing the facts of the matter in controversy, for 
 the determination and judgment of the said court, in pursuance of 
 the statute in such case made and provided, do hereby agree upon 
 the following facts, as constituting the case to be so submitted, that 
 is to say : 
 
 The said A. B. claims the right to recover against the said C. D. 
 
 that certain tract or parcel of land situate in the township of , 
 
 in the county of , known and described as [here describe 
 
 the land with the same particularity as in a declaration in eject-' 
 ment], which said lands the said A. B. claims in fee, and insists 
 that he is entitled to the possession thereof, and which said lands are 
 now in the possession of the said C. D., who also claims to hold the 
 same in fee, and withholds the possession thereof from the said A. B. 
 
 The facts and circumstances upon which the title to the said 
 
 tract of land depends, are as follows : On the — day of , 
 
 A. D. , the said C. D. entered the said land at the United 
 
 States land office at Genesee, at which office the same was for sale, 
 and paid the price fixed by law therefor, and received from the 
 receiver of the said land office a duplicate certificate of the payment 
 of the said purchase money for the said land, bearing date on the 
 
 day and year last aforesaid, and that on the — day of , the 
 
 said land was conveyed by patent from the United States to the 
 said C. D., under which said patent the said 0. D. now claims to 
 hold and possess the said land ; and he claims no other right or 
 title thereto. 
 
 At a sale of lands returned to the auditor-general's office as de- 
 linquent for taxes of the year , held at the office of the county 
 
 treasurer of the said county of , on the — day of , the 
 
 said above described parcel of land was sold by the said treasurer 
 as delinquent for the taxes aforesaid, and on such sale the same 
 were bid off by and sold to the said A. B. for the amount of the said 
 taxes, with the interest, costs, and charges thereon ; that no re- 
 demption of the said lands was made within the time limited by 
 law for the redemption of land sold for the non-payment of taxes, 
 nor was the said sale cancelled by the said auditor-general ; and 
 that after the time so limited for the redemption thereof had ex- 
 pired, to wit., on the — day of , J. S., Esquire, the auditor- 
 general of the state of Michigan, made and executed, under his 
 hand and seal, and acknowledged in due form of law, and de- 
 livered to the said A. B. his deed of the said land, a copy whereof 
 is hereto annexed, and made a part of the case between the said 
 parties, [or " which said deed is in the words and figures following, 
 thht is to say" setting forth a true copy of the deed, with the signa 
 ture, seal and acknowledgment, and with the names of the wit- 
 nesses.] Under and by virtue of which said last mentioned deed 
 
SPECIAL CASES. 427 
 
 of conTeyance, the said A. B. claims to be the owner of the said 
 land, and entitled to the possession thereof as aforesaid. 
 
 But the said C. D. claims and insists that the said last mentioned 
 deed is invalid, and vested no title to, or right of possession of the 
 premises in question in the said A. B., by reason of the following 
 facts, which are also admitted and agreed upon between the said 
 patties, that is to say : that the said tax, on account of the non- 
 payment of which the said land was returned and sold as delin- 
 quent as aforesaid, was levied and assessed upon the said land after 
 he, the said 0. D., had so entered the same, and paid therefor, and 
 received the certificate of purchase as aforesaid, but before any 
 patent or other conveyance of the title thereto had been executed 
 on behalf of the United States, and while the legal title to the said 
 land remained in the United States ; wherefore he claims and insists 
 that the said land was not subject to taxation at the time when the 
 aforesaid taxes were levied thereon, and could not, therefore, be 
 lawfully sold for the non-payment of such taxes. [Set forth also 
 any supposed irregularity or defect in the proceedings in assessing 
 the taxes, or returning the land, or in the sale thereof.] 
 
 And it is-stipulated and agreed by and between the said A. B. 
 and the said 0. D., that upon the foregoing facts the said circuit 
 court shall- determine the question of difference between them, 
 and shall render judgment according as the rights of the said 
 parties in law may appear, and in the same manner as if an action 
 of ejectment had been brought by the said A. B. against the said 
 C D. in the same court for the recovery of the premises in ques- 
 tion, and an issue of fact upon the merits had been therein joined 
 between the parties, and the facts aforesaid admitted or proven 
 upon the trial of such issue. Dated this — day of — 
 
 A. B. 
 CD. 
 
 Affidavit to accompany the foregoing. 
 
 County of , ss : A. B., being duly sworn, deposes 
 
 and says, that a controversy has arisen between this deponent and 
 C. D., as set forth in the foregoing case made and agreed upon be- 
 tween the said C. D. and this deponent, and that such controversy 
 is real and not feigned, and that this proceeding is in good faith, 
 to determine the rights of the said parties. A. B. 
 
 Sworn, &c. 
 
 § 1240. Case agreed upon by parties after suit brought. 
 
 The Circuit Couet for the county of . 
 
 A. B. 
 
 vs. 
 
 CD. 
 
 This is an action of covenant. The declaration sets forth 
 
 that on the — day of , at , the said defendant made 
 
 and executed to the said plaintiff a certain deed or agreement in 
 
428 INCIDENTAL PROCEEDINGS. 
 
 in writing, sealed with his seal, whereby he, the said defendant, 
 covenanted and agreed [set forth the covenant,] and assigns the 
 following breaches of the said covenant, to wit., [set forth the 
 breaches assigned as in the declaration,] and claims damages by- 
 reason of such alleged breaches to the sum of dollars. 
 
 The plea of the said defendant to the said declaration is the 
 general issue, with a notice thereto annexed, that the said defeftd- 
 ant, on the trial of this cause, will give in evidence under such 
 general issue, and insist in his defence, in bar of the said action, 
 that, &c. [state the substance of the notice.] 
 
 The facts of the matter in controversy in this suit are the follow- 
 ing : [set forth the facts tending to establish the execution of the 
 deed or instrument declared on, the several breaches of the cove- 
 nants contained therein, as set forth in the declaration, and the 
 damages by reason thereof; and then the facts tending to establish 
 the defence set up by the defendant, and then add as follows :] 
 
 And it is stipulated and agreed by and between tha said parties, 
 that upon the foregoing facts, the said circuit court shall determine 
 the questions of difference between them in this cause, and shall 
 render judgment therein, according as the rights of the said parties 
 in law may appear, in the same manner as if the facts aforesaid 
 were proven upon the trial of the said issue. Dated, &c. 
 
 § 1241. Case made after judgment, when the facts are agreed upon. 
 
 {Title.] 
 
 This was an action of assumpsit, brought by the plaintiff, as 
 first indorsee of a bill of exchange, against the defendant, as acceptor 
 of the same. 
 
 The declaration consisted of the common money counts at length, 
 with a notice subjoined, that a bill of exchange, of which a copy 
 was also subjoined, would be given in evidence for the plaintiff on 
 the trial, under the money counts. 
 
 The plea was the general issue, with a notice thereto annexed, 
 that the defendant would give in evidence on the trial of this cause, 
 and insist in his defence, and in bar of the action of the said plain- 
 tiff, that, &o., [state the substance of the notice.] 
 
 The said issue came on to be tried in the said circuit court, 
 before the honorable N. B., circuit judge of the judicial cir- 
 cuit, at a session of the said court held at , in the county 
 
 of , on the ■ — • day of , one thousand eight hundred 
 
 and ■ , and was tried by a jury. * 
 
 The counsel for the plaintiff, on the trial of the said issue, pre- 
 sented in evidence a bill of exchange in the words and figures fol- 
 lowing, to wit., [insert a copy of the bill.] 
 
 The signature of the said defendant to the acceptance indorsed 
 upon the said bill, was admitted by the defendant, and the said 
 plaintifif's counsel then proved by O. M. that there was due upon 
 said bill, for principal and interest, the sum of dollars. Where- 
 upon the said plaintiff's counsel rested his case. 
 
 The defendant's counsel then proved, &c., [state the facts proved 
 on the part of the defendant, and the questions, if any, arising 
 
SPECIAL CASES. 429 
 
 upon sucli facts, and the decision of the court thereon, and if any 
 facts were offered to be proved, and rejected, and exception taken, 
 state the same substantially as in a bill of exceptions ; and in the 
 same manner, if any exception was taken to the charge of the court 
 to the j ury.] The j ury rendered a verdict in said cause for the plain- 
 tiff for dollars damages ; whereupon, afterwards, to wit., on 
 
 the — day of , a judgment was rendered in favor of the said 
 
 plaintiff against the defendant, for the damages aforesaid, together 
 with the costs and charges of the said plaintiff by him about his 
 suit expended. 
 
 Settled and signed this — day of -. 
 
 S. G., Circuit Judge. 
 
 § 1242. Case made after judgment^ for review upon the evidence. 
 
 [As in the last preceding form to the *, and then proceed 
 as follows :] And upon the said trial, the counsel for the said plain- 
 tiff, to maintain and prove the said issue on his part, introduced, as 
 a witness, H. M., who, being duly sworn, testified as follows : [state 
 his testimony, and the testimony of any other witnesses offered on 
 the part of the plaintiff, if material, together with any objections 
 made, and exceptions taken upon the introduction thereof.] 
 
 And the counsel for the said plaintiff, further to maintain and 
 prove the said issue on his part, produced and offered in evidence 
 a certain writing obligatory, [or "promissory note" or ''^instrument 
 
 in writing"] bearing date on the — day of , [describing the 
 
 instrument.] But to the reading of the same in evidence, the said 
 counsel for the said defendant did then and there object, because, 
 &c. [state the objections, and then add :] But the said circuit judge 
 did then and there declare and deliver his opinion that the said 
 objection so taken by the counsel for the said defendant ought not 
 to be allowed, but that the said writing obligatory [or "promissory 
 note," or " instrument in writing,"] ought to be admitted and re- 
 ceived in evidence, on the part of the said plaintiff, and did 
 accordingly decide that the same should be, and the same was 
 thereupon, read in evidence on the part of the said plaintiff; to 
 which said opinion and decision of the said circuit judge, the said 
 counsel for the said defendant did then and there, on behalf of the 
 said defendant, except. "Whereupon the said counsel for the said 
 plaintiff, rested his case. 
 
 And the said counsel for the defendant, to maintain and prove 
 the said issue on his part, introduced, as a witness on the part of 
 the said defendant, M. L., who being duly sworn, testified that, &c. 
 [state his testimony, and any other testimony on the part of the 
 defendant, material to the question to be raised^ and then state the 
 verdict and judgment thereon, and conclude as in the last form.] 
 
 § 1243. If, in any civil cause or criminal prosecution in any 
 circuit court, any question of law arises, which, in the opinion of 
 the circuit judge, should be reserved for the opinion of the supreme 
 coiirt, he is required to report the case, so far as may be necessary 
 
430 INCIDENTAL PEOCEEDINGS. 
 
 to present such question of law, and transmit the same to the clerk 
 of the supreme court nearest to the county where such cause or 
 prosecution is pending. The clerk must file and keep such case in 
 his office until the next term of the supreme court, held within 
 his county, when he is required to present it to the court, or one 
 of the judges thereof, and the matter so reserved will be heard and 
 determined by such court as in other cases, and the opinion of the 
 supreme court, together with such instructions as may seem to be 
 required, must be certified to the circuit court from which the case 
 was reported. The reservation of a case operates as a stay of all 
 proceedings in the cause, until the question reserved has been de- 
 termined by the supreme court, and their opinion certified to the 
 circuit court.(l) 
 
 § 1244. When the court reserves a question for the opinion of 
 the supreme court, the case is usually drawn up by the plaintiff's 
 attorney, and submitted to the defendant's attorney, who proposes 
 any amendments that he may think necessary, when it is settled 
 by the judge, and a fair engrossed copy made, to be signed by him, 
 and transmitted to the clerk of the supreme court. The circuit 
 judges can reserve, for the opinion of the supreme court, questions 
 of law only, and not questions of fact, nor questions involving 
 both law and fact.(2) A motion for a new trial, on the ground 
 that the verdict is against evidence, for the reason that the facts 
 proved, or to prove which evidence was given, did not make out a 
 crime, embraces both law and fact, and cannot, therefore, be re- 
 served.(3) Questions reserved should be presented directly and 
 definitely, and the supreme court will not look into a statement of 
 facts and objections, and infer what questions, among the many 
 which may arise on them, are those which were meant to be re- 
 served. It was not the intention of the statute that questions 
 should be reserved, unless the circmt judge has well founded 
 doubts upon them, save when they are new, and of public im- 
 portance.(4) 
 
 § 1 245. The general form of a case reserved for the opinion of 
 the supreme court, may be substantially the same as a case agreed 
 upon and settled for review after judgment, in which the fads upon 
 which the questions of law arise are stated, and not the evidence 
 from which the facts are deduced. It must also state the issue, or 
 
 (1) Comp. L. 996. (2) 5 Mich. R. 22. 
 
 (3) Id. ibid.; Id. 66. (4) Id. 10 ; and see id. 141. 
 
NEW TEIAL3, 431 
 
 matter in controversey, so as to stow the materiality of the ques- 
 tions raised ; and the particular questions upon which the opinion 
 of the court above is asked, should also be distinctly and clearly 
 stated, as we have seen above, or they will not be considered. 
 
 § 1246. New trials are granted, either for irregularity in bring- 
 ing on or conducting the trial, or on the merits of the action. 
 They are granted on the ground of irregularity — ^for want of a no- 
 tice of trial — for want of a proper jury — for misbehavior in the 
 prevailing party — and for misconduct of the jury. Thus, if the 
 plaintiff give no notice of trial, or an insufficient one, the court 
 will grant a new trial on that ground.(l) But the irregularity is 
 waived, if the defendant appear at the trial, and make a defence. (2) 
 And so, when there is a want of a proper jury, arising from some 
 irregularity on the part of the sheriff or clerk in summoning or 
 impanneling them. "When, however, no abuse or injury is pre- 
 tended, and no objection is made at the time, the mistake of the 
 officer will not furnish a suflicient ground for setting aside the pro- 
 ceedings.(3) But it has been held that if a juror have been sworn 
 upon the jury by a wrong surname, (particularly when he was not 
 the person summoned, or intended to be sworn,) a new trial will 
 be granted; (4) otherwise, if the juror be sworn by a wrong Chris- 
 tian name.(5) It is discretionary with the court to grant a new 
 trial in such a case or not ; and they will not do so, unless the mis- 
 take as to the juror has been intentional ;(6) or productive of some 
 ■injustice ;(7) or unless such juror were otherwise incompetent.(8) 
 
 § 1247. If, as we have before seen, the party for whom the 
 verdict is afterwards given deliver to the jury, after they have left 
 the bar, evidence which has not been shown to the court, a new 
 trial will be granted, unless it appear that they have not looked at 
 it. So, if he have labored the jury, or used any improper influ- 
 ence with them to induce them to give a verdict in his favor, a 
 new trial will be granted.(9) Where handbills reflecting on the 
 plaintiff's character were distributed in court, and shown to the 
 jury on the day of trial, a verdict against him was set aside, and a 
 
 (1) 2 Salk. 646. (2) Id. Barnes, 233; and see 1 Caiues' E. 153. 
 
 (3) 6 Oowen, 584. 
 
 (4) 'Willeg, 484; Barnes, 453, 454; 1 Stra. 640 ; 2 Ld. Eaym. 1410; 2 Arch. Pr. 253. 
 
 (5) 12 East, 231, note. (6) See 1 Vendell, 411 
 
 (7) 12 East, 229. 
 
 (8) See 7 D. & a. 684; 1 Oowen, 419; 1 Howard, 175. 
 
 (9) 2 Areh. Pr. 255 ; 13 Mass. E. 218 ; 1 Serg. & E. 169. 
 
432 INCIDENTAL PROCEEDINGS. 
 
 new trial granted, althougli the defendant, by his affidavit, denied 
 all knowledge of the handbills.(l) But merely desiring a juror to 
 be present at the trial of a cause, has been held to be no ground 
 for a new trial. (2) But when, by a fraudulent trick on the part of 
 the defendant, the plaintiff's counsel were taken by surprise, and 
 the defendant thereby obtained a verdict, the court set it aside, and 
 granted a new trial.(3) 
 
 We have already noticed the misconduct of the jury, for which 
 their verdict will be set aside. 
 
 § 1248. On the merits, the usual grounds of application for a 
 new trial are, the absence of the party, or his counsel, or witness ; 
 surprise ; or newly discovered evidence ; or that the verdict is 
 against law or evidence; that the judge misdirected the jury, or 
 erred in the admission or rejection of evidence ; or that the dam- 
 ages are excessive, or too small. 
 
 Courts have, in some instances, granted new trials when a ver- 
 dict has been obtained against a party on account of the absence 
 of his counsel,(4) or attorney.(5) But such instances are very 
 rare, and depend upon the peculiar circumstances of the case.(6) 
 
 A new trial will seldom be granted when a verdict has been, 
 given against a party, or a plaintiff has been non-suited, for want 
 of evidence which might have been produced at the trial,(7) unless 
 the verdict be manifestly against the justice and equity of the 
 case.(8) And the absence of a material witness will not, in gen- 
 eral, be allowed as a ground for a new trial, when the party might 
 have moved to put off the trial on that account.(9) 
 
 § 1249. When, however, the party is taken by surprise, as 
 when a witness, who has been duly subpoenaed, absents himself at 
 the moment of trial, so that the party cannot avail himself of the 
 benefit of his testimony, the court will grant a new trial.(lO) The 
 court will not, however, grant a new trial on the ground that the 
 plaintiff was surprised at the defence set up ;(11) or upon a sug- 
 gestion that the party was not apprised of particular evidence, and 
 
 (1) 3 B. & B. 272. (2) 1 Stra. 643. 
 
 (3) 2 Arch. Pr. 256; 1 Burr. Pr. 468. (4) 2 S»lk. 646. 
 
 (6) 3 B. & A. 328. 
 
 (6) 3 Taunt. 484; 1 Price, 201; 2 Chitt. R. 269; 1 Caines' R. Ill; 2 id. 336, 384. 
 
 (I) 1 Wils. 98 ; 3 Salk. 361. (8) 5 Burr. R. 2631. 
 
 (9) 8 Taunt. 236 ; 15 J. R. 293; 1 Oainea' R. 154; 2 Johns. Cas. 318. 
 
 (10) 25 Wendell, 663; l id. 62; 14 J. R. 112. 
 
 (II) 9 J. E. 11. 
 
NEW TEIALS. 433 
 
 therefore not prepared to answer it ;(1) or because a witness has, 
 either from inattention or the want of preparation, made a mistake 
 in giving his evidence ;(2) or on account of the manner in which 
 he was sworn ;(3) or of an objection to his competency, discov- 
 ered after the trial.(4) 
 
 § 1250. In order to obtain a new trial on the ground of newly 
 discovered evidence, it mnst be made to appear, by affidavit, that the 
 evidence has been discovered since the last trial ;(5) that no laches 
 is imputable to the party ;(6) and that the testimony is material :(7) 
 for which purpose the evidence must be set forth.(8) But a new 
 trial will not be granted on this ground, if it appear that the evi- 
 dence might, with reasonable attention and diligence, have been 
 procured before the first trial,(9) nor when the newly discovered 
 evidence is merely cumulative,(10) that is, when it consists merely 
 of additional facts and circumstances, going to establish the same 
 points which were principally controverted on the first trial, or of 
 additional witnesses to the same facts and circumstances,(ll) unless 
 the evidence is of a different kind and character from that adduced 
 on the trial, (12) nor when it is intended merely for the purpose of 
 impeaching the testimony of a witness.(18) 
 
 § 1251. When the verdict is against law, a new trial will be 
 granted. (14) So, if the jury find a verdict contrary to evidence, the 
 court will, in general, grant a new trial, (15) if the justice of the 
 case require it,(16) but not otherwise.(l7) So, if a verdict be found 
 for the defendant against the evidence, in a vexatious or hard 
 action, or for the plaintiff after an unconscionable defence, a new 
 trial will not be granted, (18) unless some rule of law has been 
 
 (1) 2 Atk. 319 ; 2 Chitt. R. 294; 2 Moore, 179 ; 8 Taunt. 238. 
 
 (2) Say. 21 ; but see 5 Taunt. 277 ; 1 Bing. 145. 
 
 (3) 3 B. & B. 232. (4) 1 T. R. 717 ; 1 Bos. & PuU. 439a. 
 
 (5) 2 Gaines' R. 155. 
 
 (6) 18 J. E. 488 ; 5 "WendeU, 127 ; 10 id. 285. 
 
 (7) 3 Gaines' R. 182, 186. 
 
 (8) 4 J. B. 425 ; 4 Ohio R. 5 : and see 1 Hall, 382. 
 
 (9) 18 J. R. 488 ; 5 Wendell, 127; 10 id. 285. 
 
 (10) 8 J. R. 84; 15 id. 210; 9 Cowen, 266. 
 
 (11) 5 Wend. 127 ; 10 id. 285. (12) 4 Wendell, 579. 
 
 (13) 1 Gaines' R. 24 ; 4 J. R. 425 ; 5 id. 248 ; 3 id. 255 ; but see 14 id. 186. 
 
 (14) 19 Wendell, 181. (15) 1 Burr. E. 390; 6 Hill, 44. 
 
 (16) 1 M. & S. 576. 
 
 (17) 4 T. R. 468 ; 3 Wils. 273 ; 2 id. 362, 302 ; 2 W. Bl. 1221 ; 2 Burr. E. 936 • 
 Cowp. 597. 
 
 (18) IjBurr. E. 11, 64; 3 id. 1306 ; 2 Salk. 663, 644, 648. 
 
 28 
 
434 INCIDENTAL PROCEEDINGS. 
 
 violated. (1) Nor will it be granted in any other cases of strict 
 right, or summum jus., when the rigorous exaction of extreme legal 
 justice would hardly be reconcilable to conscience.(2) When the 
 evidence given at the trial was contradictory (3) or doubtful,(4) 
 or when the verdict depends upon the credit of witnesses, (5) the 
 court will seldom grant a new trial, unless there was a decided 
 preponderance against the verdict, (6) it being an established rule 
 that the verdict must be clearly and palpably against the weight 
 of the evidence, to warrant the granting of a new trial on that 
 ground, (7) even though it be directly contrary to the charge of the 
 judge.(8) 
 
 § 1252. For any misdirection of the judge, or error in the admis- 
 sion or rejection of testimony, on account of which the judgment 
 would be set aside upon a bill of exceptions taken and error, 
 brought, it is obvious that a new trial ought, in general, to be 
 granted. It has been held, however, that a mere suggestion of 
 the judge at the trial, which the party is not bound to follow, 
 furnishes no ground for granting a new trial. (9) And when the 
 charge was not strictly correct, but the jury could not be misled 
 by it, a new trial will not be granted for that error. (10) For 
 excessive damages the court will grant a new trial in all cases where 
 the damages may be ascertained by mere calculation ;(11) and in 
 other cases of actions ex contractu, if it appear clearly that the 
 damages are excessive.(12) But in actions ex delicto, such as actions 
 for criminal conversation, (13) seduction, (14) battery,(15) false impri- 
 sonment,(16) or other personal torts,(17) malicious prosecution,(18) 
 slander,(19) or the like, a new trial is seldom granted on this ac- 
 count, unless the damages are outrageous, or unless the court is 
 
 (1) 2 Cowen, 419 ; 2 Prioe, 282 ; 4 Bing. 195. 
 
 (2) 2 Arch. Pr. 253. See 3 B. & 0. 357 ; 5 Ohio R. 109. 
 
 (3) 8 Cowen, 223; 6 id. 682. (4) 3 J. R. 170. 
 
 (5) 6 Cowen, 682. 
 
 (6) 2 Stra. 1142 ; 3 Wils. 63, 47 ; and see 15 J. R. 493 ; 2 "Wendell, 352; 5 id. 48 ; 
 2 Cowen, 479 ; 8 J. R. 369; 2 HUl, 576; 3 id. 250. 
 
 (7) 12 'Wendell, 27 ; 6 Ohio R. 456. (8) 7 Cowen, 202 ; 1 Burr. Pr. 468. 
 
 (9) See 7 Cowen, 29; 9 id. 140; 1 Man. & Ryl. 272, 269; 19 Wendell, 186. 
 
 (10) 6 Mich. R. 287. (11) See 1 Taunt. 491. 
 
 (12) 2 Arch. Pr. 254. 
 
 (13) 4 T. R. 651 ; 1 Burr. R. 609 ; 15 "Wendell, 270. 
 
 (14) 11 Bast, 23 ; 3 "Wila. 18. (16) 5 T. R. 257 ; 2 "Wils. 252. 
 (16) 2 "Wila. 205, 160, 244. (17) 2 "W. BL 929; Cowp. 230. 
 
 (18) 4 "W. Bl. 1327; Cowp. 37; 23 "WendeU, 85. 
 
 (19) 2 Salk. 644; 2 "Wendell, 352. 
 
SKW TRIAL'S. 485 
 
 satisfied that the jury acted under the influence of undue motives, 
 or of gross error and misconception,(l) 
 
 § 1253, On the other hand, a new trial will not be granted on 
 account of the smaUness of the damages,{2) unless it has arisen from 
 some mistake in point of law, either on the part of the court, (3) 
 or of the jury,(4) or from some unfair practice on the part of the 
 defendant.(5) When the verdict is set aside on the ground of the 
 irregularity or misconduct of the party obtaining it, he will, in 
 general, be required to pay the costs of the former trial, and of the 
 motion.(6) But when the irregularity consists in the misconduct 
 of the jury, the costs will abide the event of the new trial.(7) 
 If the verdict be set aside on the merits, the costs will generally 
 be directed to abide the event, except when the verdict is set aside 
 as contrary to evidence, or for excessive damages ; in which cases 
 the new trial is usually granted on payment of costs, (8) 
 
 § 1254, The granting of a new trial is matter of diacretion ; 
 and if the court see that legal j ustice has been done by the verdict, 
 they will not disturb it.(9) Thus, when improper evidence was 
 admitted on the trial, a new trial will not on that ground be 
 granted, if the court see that the result would be the same if the 
 evidence was rejected; although, on a biU of exceptions, the judg- 
 ment would be reversed and a new trial awarded. (10) So, a motion 
 Sbr a new trial will be denied, irrespective of*the ground on which 
 the cause was disposed of, if the court see that another exists, 
 which must ultimately prove fatal to the party moving.(ll) And, 
 on the other hand, if it appear that the plaintiff ought not to have 
 recovered on an objection which, had it been taken at the trial, 
 could not have been obviated, the verdict will be set aside.(12) 
 Nor will the verdict be set aside for misdirection of the judge, 
 when it is manifest that the party complaining sustained no injury 
 from such misdirection,(13) And if it appear that the plaintiff can- 
 not, in any event, recover more than nominal damages, a new 
 
 <1) Id. ib. ; 6 T. B. 244. (2) 2 Stra. 940, 1051 ; 2 Dougl. 509, 51Q. 
 
 (3) 2 Stra. 1259 ; 2 Dougl. 510. (4) 1 Stra. 425. 
 
 (5) 2 Salk. 647 ; 2 Arch. Pr. 254. 
 
 (6) 2 DunL Pr. 684-5 ; and see 1 Johns. Cas. 242 ; 2 id. 104. 
 <7) 1 Stra. 642. 
 
 (8) 3 Co-wen, 342 ; 11 "WendeU, 501 ; 4 HUl, 104. 
 
 (9) 5 Hill, 272. , 
 <10) See 34 WeEdeU, 231 ; 12 id. 404 ; 6 Hill, 292. 
 
 (11) 1 Hill, 118; see 1 Denio, 226. (12) 1 Wendel], 389. 
 
 (13) 23 Wend. 79 ; 6 Mich. B. 287, 
 
436 INCIDENTAL FKOCEEDINGS, 
 
 trial will not be granted ;(1) but this rule applies only to cases 
 where the trivial nature of the claim is clear and Tin(juestionable.(2) 
 
 § 1255. Each party takes notice of the order granting a new 
 trial ; and either party, upon the entry of such order, may notice 
 t&e caiuse for trial as if none had been had, and cause it to be 
 placed on the calendar in the usual way. In consequence of the 
 changes which occur from time to time under our system, great 
 inconvenience is sometimes experienced in the disposition of mo- 
 tions for new trials, and the settlement of bills of exception, and 
 special eases after judgment. It has often happened that upon 
 the retirement of the judge who tried the cause, or his death, or 
 the expiration of his term of office, motions and proceedings of this 
 kind remain undisposed of, in which the parties are unable to 
 agree upon the facts. In such cases, perhaps, if the minutes of 
 the former judge can be obtained, and are sufiiciently full, they 
 may enable the new judge to decide the disputed facts^ or deter- 
 mine what objections were made, and how disposed of, and wha* 
 exceptions, if any, were taken upon the trial, and thus to decide 
 the motion, or settle the bill or case. But the minutea kept by 
 the judge on the trial are hastily made, and intended only as aids 
 t© his memory, and are not, in general, so full and particular as to 
 show all that may be material to the question to be settled. Nor 
 are they placed upoj^ the files, or otherwise made accessible or 
 authoritative as evidence of what they may purport to contain. 
 Under such circumstances, if there be any dispute about material 
 facts, the only practicable mode of settling it would seem to be by 
 affidavits of the attorneys or counsel in the cause. 
 
 § 1256. A repleader was formerly allowed by the corart when 
 the issue was immaterial- that is, when it was taken on some point 
 of fact which did not determine the merits of the action, and upon 
 which the court could give no ju(Jgment.(3) Thus, in, assumpsit 
 against an administratrix, on promises made by the intestate, when 
 she pleaded that she did not undertake, &c., upon which there was 
 an issue, a repleader was awarded.(4) And the rule was, that when 
 the finding on the issue did not determine the right, the court 
 would, in general, award a repleader, unless it appeared from the 
 record that no mode of pleading could be available.(5) But it 
 
 (1) 1 Johns. Caa. 259 ; 3 J. R. 239. (2) 3 Hill, 134. 
 
 (3) GUb. C. P. 147 ; & J. E. 1 ; 6 "Wendell,. 433 ; 2 Hill, 86. 
 
 (4) 2 Ventria, 19& (5) 1 Burr.B. 292.. 
 
COMPELLING KETUEN OF EXECUTION, 437 
 
 would in no case be allowed until after ver(iict,(l) and might be 
 granted aftei* error.'{2) 
 
 It is otvious, however, that under our practice, where the only 
 plea to the merits consists of a demand of trial of the matters set 
 forth in the declaration, a repleader can never be appropriate ; for 
 if the defeet occurred in the declaration, a repleader could not be 
 awarded.(3) 
 
 § 1257, The proceedings against a sheriff to compel the return of 
 ■an execution, are the same as those to compel the return of a capias, 
 summons, or declaration. If the execution be not returned by the 
 return day, a rule to return the same may be entered, and, notice 
 thereof given, pursuant to rule 96^ and in ease of default, an at- 
 tachment may be issued to the coroner, or new sheriff, according 
 as the circumstances may require. An attachment has been 
 allowed to issue agaiast a sheriff for not returning an execution, 
 after the lapse of twelve years from the time when it issued. (4) 
 And it has been held that a second attachment may be issued on 
 the same default, without a new af6idavit.(5) If the coroner return 
 that the sheriff is in his custody on an execution against his body, 
 the court will award an oIms attachment, and a habeas corpus to 
 bring up the sherif£,(6) 
 
 § 1258. The interrogatories filed on th-e sheriff's being brought 
 in on the attachment, may be amended by adding an interrog- 
 atory .(7) The sheriff cannot, in his answers, avail himself of 
 any amendable defect in the execution,(8) Nor is it a suflS.cient 
 answer that the execution never came into his own hands, but 
 only to the hands of his deputy. (9) 
 
 If the sheriff answer the interrogatories filed against him to the 
 satisfaction of the court, he will be discharged ; but if he neglect 
 to answer, or if his answer be insufficient, the court will proceed 
 to impose a fine on him, which is usually to the sum indorsed on 
 the execution, with interest, and also the costs of the motion. 
 The forms of proceeding are similar to those in proceedings to 
 oompel a return of a capias ad respondendum, as in §§ 805 to 819 
 inclusive, except in the name of the process. 
 
 <1) 2 Salt 5T9; 2 Tidd's Pr. 952, 
 
 (2) 23 'Wendell, 693 ; and see'l Burr. Pr. 4V1, and eases there referred to. 
 
 (3) See 1 Wash. E. 135. 
 
 <4) 5 J. E. 356. See 1 id. 555- i Hill, 11. 
 
 j(5) Seel Howard, 67, (6) Comp. L. 1130; 22 'Wendell, 635. 
 
 <5) 6 Cowen, 41. iS) 1 'WendeU, 16. 
 
 {.9} 6 Cowen, 4L 
 
438 INCIDENTAL PBOC'EEDINGS. 
 
 § 1259. An vrregulariiy in practice is defined to be the want of 
 adherence to some prescribed rule or mode of proceeding ; and con- 
 sists either in omitting to do something that is necessary for the due 
 and orderly cortducting of a suit, or doing it at an unseasonable 
 time, or y& an improper manner.(l) The particular irregular- 
 ities which most commonly occur in the course of an action, have 
 been already noticed in the order in which they usually occur. 
 The general rules on the subject will now be noticed. 
 
 In order to secure a regular and uniform system of procedure 
 in actions brought and conducted in the circuit courts, it is an 
 established principle, that any proceeding of either party which is- 
 not in accordance with the course and practice of the court, will 
 be set aside as irregular^ without regard to the merits of the con- 
 troversy, (2) on the application of the opposite party • provided the 
 application be made in proper season.(3) 
 
 § 1260. If any necessary proceeding have been omitted by the 
 plaintiff, his next subsequent proceeding will be set aside for irreg- 
 ularity.(4) Thus, if the defendant is arrested on process not bail- 
 able of course, but requiring an affidavit and order,, and there is. 
 no affidavit, or an insufficient one, the arrest will be set. aside for 
 irregularity. (5) So, if the plaintiff enter judgment for want of a 
 plea, without having served bis declaration, the court, on the mo- 
 tion of the defendant, will set aside the judgment. And if the 
 plaintiff proceed to trial without first giving the requisite notice 
 of trial to the defendant, and recover a verdict,, the court will set 
 it aside as irregular, and grant a new trial.(6),. 
 
 If any necessary proceeding on the part of the plaintiff be not had 
 within the time limited for it, or be had before the time appointed 
 for it by the practice of the court, it wiU be set aside as irregular. 
 Thus, if process be served or executed after it is returnable, the 
 court will set aside the service or execution. And if a judgment 
 be entered before the time for pleading has expired, such judg- 
 ment will be set aside for irregularity .(7) 
 
 § 1261. If any necessary proceeding be not done in the manner 
 prescribed by the practice of the court, it may be set aside for 
 irregularity.. Thus,, if a capias or execution be materially defective 
 
 \ 
 
 (1) 1 Tidd'B Pr.. 561. (2) 2 Cainea' R. 45. 
 
 (S) See 10- Wendea, 568; (4) 1 Burr. Pr. 413.. 
 
 (5) 2 Arch. Pr; 226. (S^ Id. 
 (1) 2 Arch.Pr..a2'!L. 
 
IRREGULARITY. 439 
 
 in form, or be served or executed on Sunday, the court will set it 
 aside, and order the defendant to be discharged, or the goods 
 seized under the writ, or the produce of them, to be returned to 
 the defendant, according as the case may require.(l) And if any 
 proceedings are had which are not warranted by the particular 
 circumstances of the case, according to the practice of the court, or 
 for which there is no foundation, as where judgment is entered for 
 want of a plea after plea pleaded, the court will set aside the 
 proceeding for irregularity. (2) 
 
 § 1262. The motion to set aside proceedings for irregularity 
 must be founded on affidavit of the facts relied upon, unless they 
 appear on the face of the records or files of the court ; and must be 
 entered and brought to argument like other special motions. In 
 the entry of the motion, whether the iri-egularity appear in the 
 record or is shown by affidavit, it must be specifically pointed 
 out ; and it should point out every ground of irregularity then 
 known to exist, or it will be a waiver of such as are not specified 
 in the motion.(3) It must be made at the first opportunity after 
 the irregularity has taken place, and before any further proceed- 
 ings have been had in the cause by the party complaining of it,(4) 
 unless he were ignorant of the irregularity, (5) in which case he 
 must apply as soon as he has knowledge of it. But in such case 
 he must show due diligence in informing himself of it, otherwise 
 the motion will not be granted. (6) 
 
 § 1263. The rule in such cases is, that if the party, being 
 aware of the irregularity, overlook it, and take subsequent steps in 
 the cause ; or, being put fully upon inquiry, neglect to inform him- 
 self of the irregularity, it is a waiver of the irregularity, and he 
 cannot afterwards take advantage of it.(7) Thus, an irregularity 
 in the capias, is cured by appearance, or any act recognizing the 
 writ, as by obtaining time to put in bail, (8) or by obtaining an 
 order to show cause of action,(9) or paying the debt and part 
 of the costs,(10) or admitting the debt after service of the writ or 
 
 (1) 2 Aroh. Pr. 227. (2) 2 id. 228 ; Arch. N. Pr. 410, 411. 
 
 (3) 2 B. & A. 313. 
 
 (4) 2 Aroh. Pr. 225 ; Arch. N. Pr. 414, 415 ; 10 J. R. 486 ; 10 "WendeU, 560 ; 1 How. 
 S. T. R. 142. 
 
 (5) 3 Gaines' R. 101 ; 6 Hill, IT. (6) 4 Cowen, 91 ; 5 id. 446. 
 
 (7) 1 Tidd's Pr. 562 ; 2 Dowl. P. 0. 47 ; 2 B. & P. 110. 
 
 (8) 6 B. & C. 76 ; 9 D. & R. 124. (9) Gra. Pr. (2d ed.), 122, 703. 
 (10) 11 Price, 122. 
 
440 inrciDEiirTAL peoceedings. 
 
 declaratioii,(l) and requesting time to pay it.(2) So, a defect in 
 tlie affidavit to hold to bail is waived by perfecting bail,(3) or 
 merely putting in bail,(4) or an irregularity in the notice of bail, 
 by an exception to the bail, or in the service of a declaration, by 
 obtaining an order for a bill of particulars,(5) or in the service of 
 a plea, by the plaintiff's attorney accepting and keeping it, (6) or 
 in the appearance of an attorney by his being recognized as such 
 by the opposite party, (7) and the like. 
 
 § 1264. But when aproceedingis completely defective and void, 
 or, in other words, a nullity, the defect is not waived by any delay, 
 or any subsequent proceeding of the opposite party.(8) Thus, 
 when the defendant pleaded in abatement without a proper affida- 
 vit, and afterwards signed judgment of non pros, for not replying 
 thereto, it was held that the judgment was irregular, and that the 
 irregularity was not waived by the plaintiffs paying the costs of 
 the judgment.(9) So, when the process,(10) or declaration, was 
 served on Sunday,(ll) or out of the jurisdiction of the court,(12) 
 it was held to be void to all intents, and could not be waived. 
 
 It is a general rule at common law that, after the lapse of twenty 
 years, no judicial proceeding will be set aside for irregularity.(13) 
 And it. has been held that after the lapse of ten years a judgment 
 will not be set aside for this reason.(14) And it is provided by 
 statute that no judgment in any court of record shall be set aside 
 for irregularity on motion, unless such motion be made within one 
 year after the time such judgment was rendered.(15) A similar 
 provision of statute, (16) from which our statute was copied, has 
 been held not to be applicable to cases where the irregularity is 
 not merely technical, but a matter of substance.(17) 
 
 § 1265. If the court is satisfied that the proceeding is irregular, 
 and that there has been no laches, it will grant the motion, (18) set- 
 ting aside the proceeding that is irregular, and, in general, leaving 
 
 (I) T Moore, 461 ; 1 Man. & Ryl. 320. (2) 1 Tidd'a Pr. 513. 
 (3) 1 East, 81 ; 1 B. & P. 132. (4) 1 Bast, 330. 
 
 (5) 8 Taunt, 592. (6) 2 New R. 509. 
 
 (7) 1 Howard, 66. » 
 
 (8) 2 Dowl. P. 0. 615 ; 3 East, 155 ; 1 Chitt. E. 400 ; 3 Dowl. P. 0. 551 ; Arch. N. 
 Pr. 411, 412; 4 Mich. E. 111. 
 
 (9) 1 Dowl. P. C. 28. (10) 3 East, 155. 
 
 (II) 1 H. Bl. 628. (12) 4 Mich. 111. 
 (13) 1 J. E. 556. (14) 4 "Wendell, 21'7. 
 
 (15) Comp. L. 1207. (16) 2 N. T. R. S. 282, § 2. 
 
 (17) 19 Wendell, 108; 1 Howard, 139. (18) 10 Wendell, 568, 569. 
 
lEREGULAEll'Y. 441 
 
 the party at liberty to go on from the last regular proceeding.(l) 
 But if there be a total defect in the proceedings, they will be stayed 
 in toto.{2) If the defect be an amendable one, the court, while it 
 grants the motion, will allow the other party to amend. 
 
 If the irregular party, instead of resisting the motion, wish to 
 abandon the irregular proceeding, he may do so, according to the 
 English practice, by giving the other party a notice to that effect, 
 and offering to pay the costs up to that time. (3) And when, after 
 such an offer, the party persisted in his motion, the court made the 
 rule absolute, upon condition that he should pay all the costs subse- 
 quent to the offer.(4) In another case, the attorney was ordered to 
 pay the costs subsequently incurred.(5) 
 
 § 1266. As a general rule, costs follow on setting aside pro- 
 ceedings as irregular ; (6) although they are in the discretion of 
 the court, andh ave, under special circumstances, been refused, as 
 where the question presented was a doubtful one, or the like.(7) 
 If the irregularity complained of be amendable, of course, it seems 
 costs will not be allowed.(8) The court will also sometimes impose 
 such terms on the moving party as they may deem just : as, where 
 the proceedings appear to have been had in good faith, and in con- 
 sequence an action of trespass or false imprisonment will techni- 
 cally lie, the court has required the party moving to stipulate not 
 to bring an action,(9) or, if already brought, to discontinue it on 
 payment of costs ;(10) and the opposite party, it is said, should be 
 careful to see that such terms are imposed by the rule.(ll) 
 
 § 1267. Intimately connected with the subject of irregularities, 
 is that of amendments ; for while courts should confine parties to a 
 due observance of those formal rules of procedure which are essen- 
 tial to the effectual prosecution and defence of actions, they should 
 always be disposed to overlook mere technical irregularities, when- 
 ever consistent with the purposes of justice and the general objects 
 of practice ; and to allow amendments of such proceedings to be 
 made in all cases where it can be done with prudence and safety. 
 
 (1) 1 Tidd's Pr. 564; 2 Chitt. R. 237 ; 1 Caines' E. 6. 
 
 (2) 1 Chitt. E. 400 ; 1 Tidd's Pr. 515. (3) Arch. N. Pr. 416 ; Arch. Forms, 445. 
 
 (4) 4 Man. & R7I. 100. 
 
 (5) 2 Tyr. 165 ; and see 5 Dowl. P. 0. 266. 
 
 (6) 1 Tidd's Pr. 564. (T) Graham's Pr. 101. 
 (8) 5 Moore & P. 319. (9) 3 J. R. 257. 
 
 (10) 4 Cowen, 49. 
 
 (11) 1 Chitt. R. 134, note ; 1 Burr. Pr. 4'!5 ; 5 HUl, 242. 
 
442 INCIDENTAL PROCEEDINGS. 
 
 We have already had occasion to consider, to some extent, the 
 several cases in which the process, appearance, declaration, plea, 
 and subsequent proceedings; may be amended ; but some additional 
 cases of amendments allowed in the declaration, plea, &c., may 
 here be noticed, as practical illustrations of the principles which 
 control the action of courts upon this subject. 
 
 ■§ 1268. After issue joined, the plaintiff has been allowed to 
 amend his declaration in trover ;(1) and in slander, when the action 
 would otherwise be lost by the running of the statute of limita- 
 tions.(2) And, it seems, an amendment will be allowed by intro- 
 ducing a new cause of action into the declaration, provided the 
 suit was intended to embrace it, and it was omitted in declaring, 
 through a mistake of the pleader; and this, whether the statute of 
 limitations has since closed iipon it or not.(8) But, in general, a 
 new cause of action cannot be introduced by amendment.(4) And 
 where a suit was brought by a public ofiicer in his name of office 
 alone, the plaintiff was permitted to amend, after issue, by prefix- 
 ing his proper name to his official designation wherever it occurred 
 in the proceedings, on payment of costs.(5) After notice of trial, 
 the plaintiff was allowed to amend his declaration by changing the 
 venue ;(6) and after the cause had been two years at issue, and 
 twice noticed for trial, by adding a new count upon the same cause 
 of action .(7) But a plaintiff will not be allowed to amend his de- 
 claration by substantially changing one of the parties, after issue 
 joined and notice of trial ; his proper course is to discontinue, and 
 commence anew. (8) After a non-suit, an amendment has been 
 allowed, when a fresh action would otherwise be barred by the 
 statute.(9) But a plaintiff who has been non-suited at the circuit, 
 on the ground that the declaration contained no count adapted to 
 the nature of his case, was not allowed to amend his declaration 
 by adding a new count, except upon condition of paying all costs 
 subsequent to the plea.(lO) 
 
 § 1269. After verdict, an amendment has been allowed in debt, 
 when the mistake was in making jorq/er^ and giving oyer ;(11) in 
 replevin, where there was a technical defect in an avowry ;(12) in 
 
 (1) 2 J. R. 295. (2) 1 WendeU, 93. 
 
 (3) 1 Hill, eSY. (4) 1 Doug. Mioli. R. 434. 
 
 (5) 1 Denio, 2T9. (6) 9 "Wendell, 430; 1 Howard, 5, 234. 
 
 (I) 12 Wendell, 228. See 2 J. E. 206. (8) 1 Howard, 115. 
 
 (9) 2 Chitt. R. 28. (10) 6 HiU, 87T. See 1 Howard, 82. 
 
 (II) 4 Cowen, 124. (12) 5 Cowen, 501. 
 
AMENDMENTS. 443 
 
 case, where the cause of action was laid after the commencement 
 of the suit;(l) and, in trover, for notes where they were misde- 
 scribed.(2) After three trials at the circuit, and nine years after the 
 commencement of the suit, the declaration was allowed to be 
 amended by adding a count setting forth a special agreement ; the 
 agreement having been proved at each trial without objection to 
 the declaration, and the statute of limitations having run so as to 
 bar a new action. (3) And in an action against a corporation, the 
 plaintiff was allowed to amend his process and declaration, by 
 changing the form of action from covenant to assumpsit, upon 
 payment of costs of opposing motion only, when it appeared that 
 the defendants did not raise the objection until the cause had gone 
 through a long course of litigation, and the defendants, in the first 
 place, erroneously issued the instrument declared on, without affix- 
 ing their seal. (4) It seems to be a general rule, that an application 
 to amend the declaration will never be refused, when it does not 
 operate as a surprise upon the defendant, or subject him to injury ; 
 but in such case the plaintiff must pay the costs of the motion, and 
 the defendant will be allowed to withdraw his plea, and plead de 
 novo.{b) But the court will not allow a declaration to be amended 
 after verdict, by increasing the damages,(6) unless the plaintiff 
 abandon his verdict, pay the defendant's costs of the trial and of 
 resisting the motion, and consent to a new trial. (7) 
 
 § 1270. The court has allowed a plea in bar to be amended 
 after issue joined and witnesses examined on interrogatories ; (8) 
 after trial; (9) after motion for judgment non obstante veredicto ;{10) 
 and even after judgment.(ll) And they will allow a notice of set- 
 off to be added to the general issue. (12) They have also allowed 
 a defendant to amend, a second time, his plea of bankrupt dis- 
 charge, after demurrer and default for not joining, and after notice 
 of trial on an issue in fact, on payment of costs of the default, cir- 
 cuit and demurrer, and costs of opposing motion ; the excuse 
 offered being ignorance of a late decision. (13) 
 
 § 1271. Amendments are allowed either of course, without 
 
 (1) 2 Oowen, 515. (2) 1 Cow. 517 ; and see 1 "WendeU, 12. 
 
 (3) 6 "Wendell, 506. (4) 1 Howard, 82. 
 
 (5) 1 Hall, 165. (6) It J. R. 111. 
 
 (t) 3 Wendell, 356; and see 10 id. 604 ; 7 T. E. 132; 1 M. &S. 615. 
 
 (8) 4 DowL P. C. 643. (9) 2 Cbitt. R. 2T. 
 
 (10) 5 Wendell, 112. (11) 1 H. Bl. 238. 
 
 (12) 1 Wendell, 302. See 4 Cow. 555. (13) 1 Howard, 67. 
 
444 INCIDENTAL PROCEEDINGS. 
 
 motion and without costs, under the standing rule ;(1) or upon 
 special motion ; or on the argument of motions to set aside pro- 
 ceedings as irregular or defective. If the amendment desired be 
 not of course, or if, after having once amended the pleading of 
 course, any further amendment becomes necessary, leave to amend 
 must be obtained from the court on motion. And this is the 
 proper course in the first instance, when a party wishes to amend 
 some error or defect in any of the other proceedings' in the action. 
 On a motion for leave to amend, the court inquire no further into 
 the merits of the amendment proposed, than to see that it is not 
 frivolous ; and they have allowed a defendant to amend by adding 
 a notice of special matter, though it was doubtful whether it was a 
 defence at law, or belonged exclusively to equity.(2) 
 
 § 1272. On granting leave to amend, the court may oblige the 
 party to submit to such equitable terms as may be necessary to 
 prevent the opposite party from being prejudiced by the amend- 
 ment.(3) Thus, on allowing the amendment of a plea, it will be 
 made a condition that the new plea go to the merits, or that the 
 defendant shall not plead a new unconscionable defence.(4) And 
 the defendant will not be allowed to add a plea of the statute of 
 limitations.(5) Payment of the costs incident to the amendment, 
 is a condition usually annexed in all cases ;(6) embracing the 
 costs of opposing the motion, and sometimes costs of the previous 
 proceedings ; these being always in the discretion of the court ;(7) 
 and amendments are sometimes allowed without costs. (8) 
 
 § 1273. As we have already seen, leave to amend is frequently 
 granted by the court on the argument of motions made by the 
 adverse party, for the purpose of taking advantage of the defect in 
 question ; as on demurrer to pleadings, on motion in arrest of judg- 
 ment, and on motion to set aside proceedings for irregularity ; and 
 this will be allowed upon the papers introduced to impeach the 
 proceedings, without compelling the other party to make and enter 
 a cross-motion for that purpose.(9) In such cases the same terms 
 are imposed on allowing an amendment, as in other cases. On the 
 subject of amendments generally before judgment, the statute pro- 
 
 (1) Rule 35. (2) i Cowen, 558. 
 
 (3) 2 Arch. Pr. 262. (4) 6 Cow. 606 ; and see 3 Dowl. P. 0. 191, 
 
 (5) 1 Burr. Pr. Ill; and cases there cited. 
 
 (6) 1 Petersd. Abr. SOT, 508. (7) See 6 HiU, 311; 1 Howard, 82. 
 (8) 1 Johns. Cas. 220; 10 "Wend. 604. (9) See 1 Cowen, 199 ; 4 HiU, 34. 
 
AMENDMENTS. 445 
 
 vides that the court in which any action shall be pending, shall 
 have power to amend any process, pleading for proceeding in such 
 action, either inform or substance, for the furtherance of justice, on 
 such terms as shall be just, at any time before judgment rendered 
 therein ; and that if such amendment be made to any pleading, in 
 matter of substance, the adverse party shall be allowed an opportu- 
 nity, according to the course and practice of the court, to answer 
 the pleading so amended. (1) 
 
 § 1274. The statute has further provided that, after judgment 
 rendered in any cause, any defects or imperfections, in matter of 
 form, contained in the record, pleadings, process, entries, returns, 
 or other proceedings, may be rectified and amended by the court, 
 in affirmance of the judgment, so that such judgment shall not be 
 reversed or annulled ; and that any variation in the record, from 
 any process, pleading or proceeding had in such cause, shall be 
 reformed and amended according to such original process, pleading, 
 or proceeding ; and that all returns made by any sheriff or other 
 officer, or by any court or subordinate tribunal, to any court, may 
 be amended, in matter of form, by the court to which such returns 
 shall be made, in their discretion, as well before as after judgment.(2) 
 
 § 1275. The statute further provides that, when a verdict shall 
 have been rendered in any cause, the judgment thereon shall not 
 be stayed, nor shall any judgment upon confession, nihil dicit or 
 non sum informatus, be reversed, impaired, or in any way affected, 
 by reason of the following imperfections, omissions, defects, matters 
 or things, or any of them, in the pleadings, process, record or pro- 
 ceedings, namely: 
 
 1. For any default or defect in process ; or for misconceiving any 
 process, or awarding the same to a wrong officer ; or for the want 
 of any suggestion for awarding process, or for any insufficient sug- 
 gestion ; 
 
 2. For any imperfect or insufficient return of any sheriff or 
 other officer, or that the nafiie of such officer is not set to any 
 return actually made by him ; 
 
 3. For any variance between the original writ, bill, plaint, and 
 declaration, or between either of them ; 
 
 (1) Comp. L. 1200; and see i Denio, 263; 1 Kernan, IZI; 5 McLean, 135; 2 
 Gushing, 491. 
 
 (2) Comp. L. 1200, 1201. 
 
446 INCIDENTAL PROCEEDINGS. 
 
 4. For any mispleading, miscontinuance, or discontinuance, in- 
 sufficient pleading, or misjoining of issue ; 
 
 5. For the want of any warrant of attorney by either party, 
 except in cases of judgment by confession, when such warrant is 
 expressly required by law ; 
 
 6. For any party under twenty-one years of age, having ap- 
 peared by attorney, if the verdict or j udgment be for him ; 
 
 7. For the want of any allegation or averment, on account of 
 which omission a special demurrer could have been maintained ; 
 
 8. For omitting any allegation or averment of any matter, with- 
 out proving which the jury ought not to have given such verdict ; 
 
 9. For any mistake in the name of any party or person, or in 
 any sum of money ; or in the description of any property ; or in 
 reciting or stating any day, month, or year, when the correct name, 
 time, sum, or description shall have been once rightly alleged, in 
 any of the pleadings or proceedings ; 
 
 10. For a mistake in the name of any juror or officer ; 
 
 11. For the want of a right venue, if the cause was -tried by a 
 jury of the proper county ; 
 
 12. For any informality in entering a judgment, or making up 
 the record thereof; or in any dSntJinuance or other entry upon 
 such record ; 
 
 13. For any other default or negligence of any clerk or of&cer 
 of the court, or of the parties, their counsellors, or attorneys, by 
 which neither party shall have been prejudiced.(l) 
 
 § 1276. And it is further provided, that the omissions, imper- 
 fections, variances, and defects therein before enumerated, and all 
 others of the like nature, not being against the right and justice 
 of the matter of the suit, and not altering the issue between the 
 parties, or the trial, shall be supplied and amended by the court 
 where the judgment shall be given, or by the court into which such 
 judgment shall be removed by writ of error; and these provisions 
 extend to all actions in courts of law, and all suits for the recovery 
 of any debt due to the people of this state, or for any debt, duty, 
 or revenue belonging to them ; and to all actions for penalties and 
 forfeitures : as well as to all writs of mandamus and prohibition > 
 to all informations in the nature of a quo warranto ; to writs of 
 scire facias; and to the proceedings thereon. (2) Under these pro- 
 visions the courts will allow amendments of the proceedings after 
 
 (1) Comp. L, 1201, 1202. (2) Id. 1202; 1 Mich. R. 344. 
 
AMENDMENTS. 447 
 
 judgment, either before or after a writ of error has been brought 
 to reverse it. 
 
 § 1277. Amendments hefore error brought are allowed by the 
 court in which the judgment was rendered, on motion in the usual 
 manner.(l) And the court have allowed an amendment after 
 judgment by default, by adding a nolle prosequi ;{^) and they have 
 allowed a plea by an executor to be amended nearly three years 
 after the record had been made up, the substantial j ustice of the 
 case being with the defendant.(3) After error brought, all defects 
 and errors which are amendable under the statute, will be amended 
 either by the court below or by the appellate court.(4) 
 
 § 1278. When the error or omission is merely a clerical or 
 technical one, the court above, on error brought, will disregard it 
 without making any formal amendment.(5) In other cases, a mo- 
 tion should regularly be made in the court below for leave to 
 amend, and the court will stay the proceedings, if necessary, to 
 enable the party to make such motion ;(6) and the motion may be 
 made in the court below, after error brought and reversal. (7) The 
 defendant was allowed to amend his plea, after a reversal of the 
 judgment oq error, on paying the costs of both courts.(8) So an 
 amendment was allowed in a court of error by entering a nolle 
 prosequi on the record, on payment of the costs of the motion and 
 the writ of error, although the defendant below had been commit- 
 ted on a ca. sa., and a suit brought against him and his bail for his 
 escape from the liberties.(9) And the memorandum of a record 
 was allowed to be altered, by inserting the real day, after error 
 brought ;(10) and a mistake in a record, as to the name of the 
 party in whose favor judgment was recovered, is clerical, and may 
 be amended on error.(ll) So the ^osfea has been allowed to be 
 amended after error brought, so as to make it embrace all the issues 
 in the cause.(12) And so, after error brought, the court has allowed 
 a party to amend his continuances in the judgment record, and to 
 &lepostea, clerk's certificate, and the like papers nunc pro tunc.[lZ) 
 
 (I) See V "WendeU, 234. (2) 6 Cowen, 40. 
 
 (3) 1 H. Bl. 238. (4) See 2 Coweu, 408 ; 3 J. E. 95. 
 
 (5) 4 J. R. 499. See 6 Hill, 217. (6) See 7 WendeU, 234, 345. 
 
 (7) 6 Cowen, 606. (8) Id; 5 id. 21. 
 
 (9) 7 Cowen, 524. (10) 7 T. R. 474. 
 
 (II) 7 Cowen, 344. (12) 7 Cow. 425. See 3 Ring. 334. 
 (13) 2 Cowen, 410. • 
 
448 INCIDENTAL PROCEEDINGS. 
 
 § 1279. There are cases in whicli defects or errors in the pro- 
 ceedings, if not duly taken advantage of by the opposite party, 
 are aided or cured by subsequent proceedings, and do not require 
 any amendment ; as, when one of the parties to the action has a 
 ground of objection to the proceedings of the other, as irregular 
 or defective, but omits to talie advantage of it in due time and 
 manner ; in which case, such omission is considered as a waiver 
 of the objection, and the defect is thereby said to be cured. Thus, 
 a defect in the capias, as we have seen, is cured by the defendant's 
 appearance, and a defect in the declaration is, in many cases, 
 cured by the plea ; and so of the other pleadings in a cause ; and 
 an irregularity appearing upon the face of a bill of exceptions, is 
 waived by a joinder in error.(l) In such cases, the defect is said 
 to be aided by the act of the party. 
 
 At the common law, when there is any defect or omission in any 
 pleading, whether in substance or form, which would have been a 
 fatal objection upon demurrer, yet if the issue joined be such as 
 necessarily required, on the trial, proof of the facts so defectively 
 or imperfectly stated or omitted, and without which it is not to be 
 presumed that either the judge would direct the jury to give the 
 verdict, or the jury would have given it, such defect, imperfection 
 or omission is cured by the verdict ; or, as is said, such defect is 
 not a jeofail after verdict, (2) and will be supplied by intendment on 
 motion in arrest of judgment.(3) And the power of a verdict to 
 cure formal defects in pleading, should be liberally applied.(4) 
 The same rule is adopted by the statute above recited.(5) But if 
 the plaintiff, in his declaration, either state a defective title, oi 
 totally omit to state any title or cause of action whatever, a verdict 
 will not cure the defect, either at common law or under the 
 statute. (6) 
 
 § 1280. Having treated of the practice, in the various forms of 
 action now in use in this state, and the incidental proceedings 
 connected therewith, as far as the plan of the present work will 
 admit, there still remains to be considered a very important class 
 of proceedings, of which the circuit courts have jurisdiction, and 
 which are not called actions. The enlarged jurisdiction of these 
 
 (1) 1 Doug. Mioh. R. 213. 
 
 (2) 1 Saund. 228, note (1) ; 2 Arch. Pr. 264; 1 Burr. Pr. 480. 
 
 (3) 11 -Wendell, SU. (4) 3 Cowen, 662. 
 
 (5) Comp. L. 1201. 
 
 (6) 11 Wendsll, 374 ; 2 Dougl. BTO, 683 | 1 Saund. 136, tila; 2 Arch. Pr. 209; 
 Aroh. PI. 164, 166 ; 1 Burr. Pr. 480. 
 
SOIEB FACIAS. 449 
 
 courts, under the new constitution, embracing writs of mandamus, 
 quo warranto, certiorari, and all other writs necessary to carry into 
 effect their orders, judgments, and decrees, and give them a general 
 control oyer inferior courts and tribunals within their respective 
 jurisdictions, (1) seems to render it necessary that in a work of this 
 kind the practice in several of these proceedings should receive the 
 same attention as that relating to actions properly so called. Accord- 
 ingly the following chapter will be devoted to the consideration of 
 the practice in such proceedings, omitting a variety of those, the 
 details of which are minutely pointed out by the statutes. 
 
 CHAPTER XI. 
 
 SPECIAL PROCEEDINGS, NOT CALLED ACTIONS. 
 SCIEE FACIAS. 
 
 § 1281. A scire facias is a judicial writ, founded upon some 
 record, and requiring the person against whom it is brought to 
 show cause why the party bringing it should not have advantage of 
 such record, or, in the case of a sci7-e facias to repeal letters 
 patent,(2) or acts of incorporation,(3) why the record should not 
 be annulled and Tacated.(4) It is either of a private or public 
 natura As a private remedy, it is an auxiliary to other actions, 
 being founded upon matters of record in such actions, and lies 
 when judgment has been recovered upon a bond or for a penal sum, 
 to assess and collect the damages for further breaches upon a bond 
 with condition other than for the payment of money, or for a 
 penal sum for the non-performance of a covenant or written agree- 
 ment,(5) or to have execution when judgment has been obtained 
 against a joint debtor not served with process,(6) or against special 
 bail.(7) One of the former principal uses of a scire facias, to have 
 execution upon a judgment after two years, by reviving it, has been 
 superseded, as we have already seen, by the statute authorizing an 
 application to be made by motion, on due notice to the opposite 
 party, for leave to issue such execution,(8) It was also formerly 
 
 (1) Const., Art. 6, § 8. (2) Comp. L. 1386. 
 
 (3) Id. 1387. (4) 2 Aroh. Pr. 86. 
 
 (5) Comp. L. 1222. ' (6) Id. 1220. 
 
 (7) Id. 1144 (8) Comp. L. 1208, 1209. 
 
 2» 
 
450 SPECIAL PBOCEEDINGS. 
 
 used to revive suits upon the death of parties, or when the situa- 
 tion of the parties was changed by marriage, &c.(l) 
 
 § 1282. In its character of a public remedy, scire facias lies in 
 behalf of the people of this state, upon the relation of the attorney- 
 general, or of any private person, for the purpose of vacating and 
 annulling any letters patent granted by the people of this state in 
 the following cases : 1. When it shall be alleged that such letters 
 patent were obtained by means of some fraudulent suggestion, or 
 concealment of a material fact, made by the person to whom the 
 same were issued, or "made with his consent or knowledge ; 
 2. When it shall be alleged that such letters patent were issued 
 through mistake, and in ignorance of some material fact ; and, 3. 
 When the patentee, or those lawfully claiming under him, shall 
 have done or omitted any act, in violation of the terms and con- 
 ditions upon which such letters patent were granted, or shall, by 
 any other means, have forfeited the interest acquired under the 
 same.(2) It also lies upon the relation of the attorney-general, 
 when specially directed by the legislature, against any corporation 
 created or renewed by any act of the legislature, for the purpose 
 of 'vacating and annulling such act, on the ground that the same 
 was passed upon some fraudulent suggestion, or concealment of a 
 material fact, made by the persons incorporated by such act, or 
 made with their consent or knowledge. (3) 
 
 § 1283. Writs of scire facias may be issued, tested and returned, 
 at the same time and in the same manner as original writs in 
 personal actions; and, except when otherwise specially provided 
 by statute, it is not necessary to have any particular number of 
 days between the test and return day thereof.(4) It issues out of 
 the court in which the record upon which it is founded is sup- 
 posed to remain, or out of the supreme court, directed to the 
 sheriff of the proper county, reciting the joroceedings upon which 
 it is founded, and commanding the sheriff that he make known to, 
 or summon the party in question, to be before the court on the 
 return day of the writ, to show, if he has anything to say why the 
 proceeding sought by the writ should not be had by the party 
 issuing it, and further to do and receive what the court shall con- 
 sider in that behalf, and that he have the writ in court on the 
 return day, &c. It is sealed, signed by the clerk and the attorney 
 
 (1) Cee i Burr. Pr. 16ii. (2) Com^. . . 1230, ^381. 
 
 (3)Iu. 1387. (-)Id.l„,.f. 
 
SOIEE FACIAS. 451 
 
 of tlie party issuing it, indorsed '^/vitii tlie title of the court and the 
 names of the parties, and delivered to the sheriff for service like 
 othsT -.vrios. The particular lorir. of it will of course vary, accord- 
 ing to the iiatuio cf the otjsot sought to he attrined by it. 
 
 § 1284 The particular rcatters and circumstances upon which 
 the writ is- founded, must be set forth with sr.ch convenient cer- 
 tainty that the defendants may be fully apprised of their general 
 natuie.(l) Care must be taken that the writ strictly pursue the 
 terms of the judgment, recognizance, or other record upon which 
 it is founded. Upon a judgment against two, when the ohjsct 
 was to revive the judgment, it was held that a scire facias could 
 not be sued out against one only ;(2) but upon a recognizance it is 
 otherwise, because it is joint and several.(3) When executors or 
 administrators are plaintiffs in the writ, they are required to make 
 profert of their letters testamentary, or of administration, in the 
 writ, in the same manner as in a declaration.(4) It is made the 
 duty of the sheriff or other officer, to whom any writ of scire facias 
 is directed, to endeavor to serve it, notwithstanding any directions 
 he may receive to the contrary from the plaintiff therein or his 
 attorney. (5) 
 
 § 1285. Every such writ must be served by delivering a copy 
 thereof, certified by the officer serving the same, to the party re- 
 quired to be summoned, or by leaving the same at his dwelling- 
 house, 7/ith some person of proper age. If such writ be issued 
 against a corporation, it must be served in the same manner as 
 prescribed for the service of an original summons upon a corpora- 
 tion.(6) In all cases where proceedings are had against bail by 
 scire facias, it is necessary that such writ should be personally 
 served upon the defendant, and to have the same duly returned that 
 it has been so served, before any further proceedings thereon can 
 be had.(7) 
 
 The return of the officer is similar to tha,t of other process ; but 
 the forms of such returns differ according to the nature of the pro- 
 cess and the mode of service. If the officer succeed in effecting a 
 service of the writ, his return will be scire feci, that he has given 
 notice to the party. If the defendant cannot be found, the return 
 must state the fact. 
 
 (1) Comp. L. 1387. (2) 2 Salk. 698. 
 
 (3) 2 Arch. Pr. 97. (4) Comp. Ti 1388. 
 
 (5) i:. 1387. (6) Id. i3^7,. iS88, 1230. 
 (1) L;. WiA. 
 
452 SPECIAL PSOCEEDINGS. 
 
 § 1286. In all cases where the writ is returned by the officer 
 duly served, the appearance of the persons or corporations so sum- 
 moned will be entered by the clerk as in other cases ; and the 
 plaintiff is entitled, on the filing of the writ so Teturned, to enter 
 a rule requiring the defendant to plead to such writ within twenty 
 days after service of notice thereof, notice of which rule must be 
 served in the same manner as in personal actions, and with the 
 like effect. (1) K the sheriff return that any person who was the 
 original defendant in a judgment, and was required to be summoned 
 by such writ, cannot be found, and has no dwelling-house within 
 his county, the court will, a^ter the filing of the scire facias, direct 
 a rule to be entered, requiring the defendant to appear and plead 
 to such scire facias within twenty days after the last publication of 
 such rule ; a copy of which rule, certified by the clerk, is required 
 to be published for four weeks successively, in such paper as the 
 court may direct.(2) When the writ is served by the officer, the 
 copy served must be certified by him, and it has been held that 
 the indorsement of the word "copy" on it, merely, does not 
 amount to a certifioate.(3) 
 
 § 1287. Upon the due publication of such rule, if the defend- 
 ant do not appear and plead within the time therefor limited by 
 such rule, the plaintiff is entitled, upon filing an affidavit of such 
 publication, to enter the default of the defendant, and judgment 
 will be rendered upon such default, in like manner as if the writ 
 had been returned served.(4) And so, if the scire facias have been 
 returned duly served, and the defendant neglect to plead within 
 the time limited therefor, on filing an affidavit of due service of 
 notice of the rule to plead, his default may be entered, and judg- 
 ment rendered against him, in the same manner as on the service 
 of a declaration and notice of rule to plead.(5) But no proceeding 
 can be had on any writ of scire facias, unless the same shall have 
 been cerved, or notice thereof published, as provided by the stat- 
 ute.(,6) 
 
 § 1288. Writs of scire fadas, and the proceedings thereon, are, 
 as we hays seen, amendable in the same manner as proceedings in 
 actioa3.(7) After appearance, the plaintiff may amend the scire facias 
 of course, the same as an ordinary declaration, and the amended 
 
 (1) Oomp. L. 1388. (2) Id. 
 
 (3) 1 Eovard S. T. K. 167. (4) Coicp. 1. 1388. 
 
 (B) 18 Vendell, 626. (6) Comp. L. 1288. 
 (1) It. 1202. 
 
SOIEE FACIAS. '^-53 
 
 scire facias need not be 8ealed.(l) If the writ have been irregu- 
 larly issued, the defendant may move to set it aside.(2) The court 
 will, however, allow it to be amended in the teste i(3) or venue ;(4) 
 and will also allow an amendment when the writ varies from the 
 judgment. (5) But the plaintiff cannot amend by adding new par- 
 ties, the necessity for whose joinder existed previous to the issuing 
 of the writ, especially when, as against such new parties, the stat- 
 ute of limitations has attached.(6) 
 
 § 1289. No declaration is required to be filed upon a scire 
 facias, and the defendant is required to plead to such writ in the 
 same manner as to a declaration.(7) Thus, the pleadings on a scire 
 facias are governed by the same rules as in ordinary cases, and 
 unless there be some ground for a plea in abatement, or a demur- 
 rer, the general form of a plea to the merits, consisting of a de- 
 mand of trial of the matters set forth in the scire facias, must be 
 used, and notice be given of any special matter of defence which 
 could not be given in evidence under the general plea. The issue, 
 as in personal actions, is either in law or in fact, and is produced in 
 the same way, by demurrer or traverse, and is governed by the 
 same rules as in ordinary cases, and the argument or trial is 
 brought on and conducted in the same manner. On the trial of an 
 issue in fact, the court or jury find the affirmative or negative of 
 the issue, but they cannot give damages for the delay of execu- 
 tion.(8) The plaintiff may be non-suited as in other cases.(9) 
 
 § 1290. If judgment be had by default or on demurrer, it is 
 final, except when the object of the scire facias is the assessment of 
 damages in the original action. The judgment, if rendered for the 
 party issuing the writ, is either that he have his execution, or that 
 the damages be assessed or recovered, as the case may be. Costs 
 are recoverable as in other cases ;(10) and when a scire facias 
 is prosecuted in good faith, and in a proper case, costs follow 
 the recovery, no matter how small the amount.(ll) The costs 
 must be made out and taxed, and embraced in the execution, 
 in the usual manner. The execution, which is either a fi. 
 fa. or a ca. sa., is nearly in the same form, and is issued in 
 the same manner as in ordinary cases. It must be founded on 
 
 (1) 18 "WendeU, 526. (2) 1 Howard, 161. 
 
 (3) Id. ibid. (4) Id. 68. 
 
 (5) 9 Bast, 316 ; 4 Dowl. P. 0. 6'7 ; 1 id. 501. 
 
 (6) 22 WendeU, 608. C?) Comp. L. 1388. 
 (8) 2 Ld. Eaym. 1532 ; 2 Arch. Pr. 100. (9) 1 Campb. 484. 
 (10) Comp. L. 1461. (11) 12 Wendell, 188. 
 
454 SPECIAL PROCEEDINGS. 
 
 the judgment in tlie scire facias.{l) If the writ be brought to annul 
 letters patent, or an act of incorporation, and the judgment be for 
 the people, it is that the letters patent, or act of incorporation spe- 
 cified in the writ, as the case may be, be vacated and annulled; (2) 
 and execution issues for the costs only. 
 
 § 1291. It has been assumed that the circuit courts have juris- 
 diction of the writ of scire facias, as well when applied in its char- 
 acter of a public remedy, as when used as a private remedy. The 
 statute(3) conferred power to issue such writs, for vacating and 
 annulling patents and acts of incorporation, upon the supreme court 
 only. But the constitution of 1850 conferred upon' the circuit 
 courts original jurisdiction in all matters, civil and criminal, not 
 excepted in the constitution, and not prohibited by law.(4) Juris- 
 diction in this case, not being excepted in the constitution, nor 
 prohibited by law, the circuit courts, it is supposed, have concurrent 
 jurisdiction with the supreme court in this class of proceedings, 
 within their respective counties, and exclusive jurisdiction in all 
 other cases oi scire facias.{5) 
 
 § 1292. Scire facias against special hail. 
 In the name of the People of the State of Michigan. To 
 
 THE sheriff of THE COUNTY OF : 
 
 [seal.] Whereas E. F. and G. H., of the county of , 
 
 heretofore, to wit, on the day of , in the 
 
 year of our Lord one thousand eight hundred and , came, 
 
 in their proper persons, before J. K., Esq., clerk of our circuit court 
 
 for the county of , and severally acknowledged themselves 
 
 to owe A. B., plaintiff in a certain action of trespass [or as the action 
 may be,] then lately commenced in the said circuit court for the 
 
 county of , by and at the suit of the said A. B. against one 
 
 C. D., the sum of dollars each, to be levied upon their several 
 
 goods and chattels, lands and tenements, upon condition that if the 
 said C. D., the defendant in the said action, should be condemned 
 in the said action, at the suit of the said A. B., the plaintiff therein, 
 he, the said C. D., should pay the costs and condemnation of the 
 said court, or render himself into the custody of the sheriff of the 
 
 county of ■ — , [the county in which the defendant was arrested] 
 
 for the same, or if he should fail to do so, that the said E. F. and 
 G-. H. would pay the costs and condemnation for him ; which said 
 
 recognizance, afterwards, to wit., on the — day of , in the 
 
 year of our Lord one thousand eight hundred and , wasduly 
 
 filed in the of&ce of the clerk of the said circuit court for the county 
 of , as by the record of the said recognizance, still remaining 
 
 (1) 1 Bing. 133. (2) Comp. L. 1387. 
 
 (3) Rev. Stats, of 1846, ch. 135. (4) Art. 6, § 8. 
 
 (5) See Comp. L. 59, 994, 1386. 
 
SCIRE FACIAS. 455 
 
 in our said court, more fully appears. And although the said A. 
 
 B. afterwards, to wit, on the — ■ day of , in the term 
 
 of our said court, in the year aforesaid, at , by the consideration 
 
 and judgment of the same court, recovered in the said action against 
 
 the said C. D. dollars for his damages which he had sustained, 
 
 as well on occasion of the committing of certain trespasses before 
 then by the said C. D., to the damage of the said A. B., [or as the 
 case may he,] as for his costs and charges by him about his suit in 
 that behalf expended, whereof the said 0. D. is convicted, as by 
 the record and proceedings thereof, still remaining in our said court 
 
 at , more fully appears ; yet the said C. D. hath not paid or 
 
 satisfied the said damages, or any part thereof, to the said A. B., or 
 rendered himself into the custody of the sheriff of the said county 
 
 of , according to the form and effect of the said recognizance ; 
 
 and as w^ell the said recognizance as the said judgment still remain 
 in full force and effect, in nowise set aside, reversed or satisfied, as 
 we have received information from the said A. B., in our said court ; 
 and whereas, after the rendition of the aforesaid judgment, to wit., 
 
 on the — day of , in the year of our Lord one thousand eight 
 
 hundred and , the said A. B., for the purpose of obtaining sat- 
 isfaction of his damages so by him recovered as aforesaid, sued out 
 of our said court, upon the judgment aforesaid, a certain writ of 
 capias ad satisfaciendum, directed to the sheriff of the said county 
 
 of , commanding him, in the name of the people of the 
 
 state of Michigan, that he take the said C. D., &c., [setting out 
 the substance of the writ, and then as follows:] which said 
 
 writ was, on the said — day of , delivered to the said 
 
 sheriff of the county of , to be executed ; and the said 
 
 sheriff of the county of , afterwards, and on the return 
 
 day mentioned in the said writ, returned the same into the 
 said court, with a return thereon by him indorsed, that the said 
 
 C. D. could not be found within his county, as we have also 
 received information from the said A. B., in our said court: 
 "Wherefore the said A. B. hath besought us to provide him 
 a proper remedy in this behalf; and we, being willing that what 
 is just in this behalf should be done, command you that you 
 make known to [or " summon"] the said E. F and G. H., that they 
 
 be before our circuit court for the county of , at , 
 
 on , to show if they have or know, or if either of them has or 
 
 knows, of anything to say for themselves, or himself, why the said 
 A. B. ought not to have execution against the said E. F. and G. H. 
 for the damages aforesaid, according to the force, form, and effect 
 of the said recognizance, if it shall seem expedient for him or them 
 so to do ; and further, to do and receive what our said court shall 
 then and there consider of them in this behalf. And have you then 
 there this writ. 
 
 Witness the honorable A. B., circuit judge of the judicial 
 
 circuit, at , the — day of , in the year of our Lord one 
 
 thousand eight hundred and . E. T. T., Clerk. 
 
 E. M., Attomey.(l) 
 
 (1) See Oomp. Ii. 1141, 1144; Burrill'fl Appendix, 471. 
 
456 SPECIAL PKOCEEDINGS. 
 
 § 1293. Scire facias to have eocecution for further breaches. 
 
 In the name of the People of the State of Michigan. To 
 the sheriff of the county of : 
 
 [SEAL.J Whereas, A. B., heretofore, to wit., on the — day 
 
 of J in the year of our Lord one thousand eight 
 
 hundred and , in the town of , in the year last aforesaid, 
 
 in our circuit court for the county of , by the consideration 
 
 aild judgment of the same court, recovered against 0. D. a certain 
 
 debt of — dollars — — , and also dollars, which in the same 
 
 court were adjudged to him, the said A. B., for his damages, which 
 he had sustained, as well on occasion of the detaining of that debt, 
 as for his costs and charges by him about his suit in that behalf 
 expended ; whereof the said 0. D. is convicted, as by the record 
 and proceedings thereof remaining in our said court manifestly 
 appears ; which said judgment, so recovered against the said C. V. 
 as aforesaid, was had and obtained upon a certain writing obliga- 
 tory, bearing date the ■ — day of , in the year of our Lord one 
 
 thousand eight hundred and , and sealed with the seal of the 
 
 said C. D., whereby the said 0. D. became held and firmly bound 
 
 to the said A. B. in the said sum of dollars, to be paid to the 
 
 said A. B. when the said C. D. should be thereunto afterwards 
 requested, with, and under a certain condition to the said writing 
 obligatory subscribed, whereby, after reciting, &c., [here state the 
 recitals,] it was declared that if, &c., [here state the condition of the 
 bond,] then the said obligation was to be void, otherwise to remain 
 in full force and virtue; and whereas the said A. B., in his decla- 
 ration exhibited by him in the said action in which the said judg- 
 ment was so obtained as aforesaid, assigned a certain breach [or 
 "cerfcsm breaches''''^ of the said condition of the said writing obliga- 
 tory, according to the form of the statute in such case made and 
 provided, and damages were thereupon assessed for and by reason 
 of the breach [or " breaches"'] so assigned. And whereas it hath 
 been, and is, duly suggested by the said A. B. in our said court, as 
 other and further breaches of the said condition of the said writing 
 obligatory, than the said breach [or ^'■breaches"] so assigned as afore- 
 said, that [here set forth the further breaches.] For which said 
 last mentioned breaches of the aforesaid condition of the said wri- 
 ting obligatory, the said A. B. hath besought us to provide him a 
 proper remedy ; and we, being willing that what is just in this 
 behalf should be done, do, according to the form of the statute in 
 such case made and provided, command you that you make known 
 to [or " summon"] the said C. D., that he be before our circuit 
 
 court for the county of , at , on the — day of , 
 
 to show cause why execution should not be awarded against him 
 upon the said judgment so obtained as aforesaid, for the damages 
 to be assessed by reason of the said last mentioned breaches of the 
 said condition of the aforesaid writing obligatory, if it shall seem 
 expedient for him so to do ; and further, to do and receive what 
 our said court shall then and there consider of him in this behalf. 
 And have you there then this writ. 
 
 Witness, &c,, [teste as in last form.j 
 
SCIEE FACIAS. 457 
 
 § 1294. Scire facias against husband and wife upon a judgment 
 recovered against the wife, when sole. 
 
 In the name of the People of the State of Michigan. 
 
 To the sheriff of the county of : 
 
 [seal.] Whereas A. B., lately in our circuit court for the 
 
 county of -, at , in said county of ^j 
 
 by bill without our writ, and by the judgment of the same court, 
 
 recovered against C. D. dollars for his damages which he had 
 
 sustained, as well on occasion of the not performing certain prom- 
 ises and undertakings then lately made by the said C. D. to the 
 said A. B., as for his costs and charges by him about his suit in 
 that behalf expended, whereof the said 0. D. is convicted, as ap- 
 pears to us of record ; and afterwards the said C. D. intermarried 
 with and took to husband B. P. ; and now, on behalf of the said 
 A. B., in our said court, we have been informed that, although 
 judgment be thereupon given, yet execution of the damages afore- 
 said still remains to be made to him ; wherefore the said A. B. 
 hath besought us to provide him a proper remedy in this behalf; 
 and we, being willing that those things which are just and right 
 should have a due execution, do therefore command you, that 
 you make known to [or " summon"'] the said C. D. and E. F., that 
 
 they be before our said circuit court for the county of , 
 
 at , in said county, on the — day of , if they have 
 
 or know of any cause why the said A. B. ought not to have his 
 execution for the damages so by him recovered as aforesaid, as well 
 against the said E. F. as against the said C. D., if they shall think 
 it expedient for them, or either of them, to do so ; and further to 
 do and receive what our said court shall then and there consider 
 of them in this behalf And have you there then this writ. 
 Witness, &c., [as in § 1292. ](1) 
 
 § 1295. Scire facias on judgment for penalty of probate bond, 
 by person injured by breaches thereof to have execution for such 
 breaches. 
 
 In the name of the People of the State of Michigan, 
 
 To THE sheriff OF THE COUNTY OF : 
 
 [seal.] Whereas O. N., judge of probate of the county of 
 , heretofore, to wit., on the day of 
 
 in the year of our Lord one thousand eight hundred and , in 
 
 our circuit court for the county of , at , by the judg- 
 ment of the same court, recovered against C. D., B. F.,.and G. H., 
 
 a certain debt of ■ ■ dollars, and also ■ dollars, which in the 
 
 same court were adjudged to the said O. N., judge of probate as 
 aforesaid, as well on occasion of the detaining that debt, as for his 
 costs and charges by him about his suit in that behalf expended ; 
 whereof the said 0. D., E. F., and Gr. H., are convicted, as by the 
 record and proceedings thereof remaining in the same court mani- 
 festly appears ; which said judgment so recovered against the said 
 C. D., E. F., and Gr. H., was had and obtained upon a certain 
 
 (1) Till, Forma, 42. 
 
458 SPECIAL PROCEEDINGS. 
 
 writing obligatory, bearing date tbe — day of , in the year 
 
 of our Lord one thousand eight hundred and , and sealed 
 
 with the seals of the said C. D., E. F., and Gr. H., whereby the said 
 0. D., E. F., and Gr. H., became held and firmly bound to the 
 
 said O. N., judge of probate, as aforesaid, in the said sum of 
 
 dollars, to be paid to the said O. N., judge of probate as aforesaid, 
 with and under a certain condition to the said writing obligatory 
 [siibscribed, whereby, after reciting, &c., here state the recitals,] it 
 was declared, that if, &c., [here state the condition of the bond,] 
 then the said obligation was to be void, otherwise to remain in full 
 force and virtue. And whereas the said O. IST., in his declaration 
 exhibited by him in the said action, in which the said judgment was 
 so obtained as aforesaid, assigned a certain breach [or "breaches"] 
 of the condition of the said writiag obligatory, according to the 
 form of the statute in such case made and provided, and dam- 
 ages were thereupon assessed for and by reason of the breach [or 
 " breaches"] so assigned. And whereas, it hath been and is duly 
 suggested and made known by J. K., in our said court, as other 
 breaches of the said condition of the said writing obligatory than 
 the said breaches so assigned by the said 0. N., judge of probate 
 as aforesaid, that, &c., [set forth the breaches by which the party 
 suing out the writ claims to have been injured, and then proceed 
 as follows :] by which said last-mentioned breaches the said J. K. 
 is greatly injured and damnified, as he, the said J. K., hath given 
 our said court here to understand and be informed ; and for which 
 said last-mentioned breaches of the aforesaid condition of the said 
 writing obligatory, the said J. K. hath besought- us to provide him 
 a proper remedy. And we, being willing that what is just in this 
 behalf should be done, do, according to t-he form of the stiatute in 
 such case made and provided, command you that you make known 
 to [or "summon"] the said C. D., E. F., and Gr. H., to be before 
 
 our said circuit court for the county of , at , on the 
 
 — day of , to show cause why execution should not be 
 
 had and awarded against them in favor of the said J. K. upon the 
 judgment so obtained by the said 0. N., judge of probate as afore- 
 said, for the damages to be assessed by reason of the said last- 
 mentioned breaches of the said condition of the said writing oblig- 
 atory, if it shall seem expedient for them so to do ; and further 
 to do and receive what our said court shall then and there con- 
 sider of them in this behalf. And have vou then there this writ. 
 Witness, &c., [as in § 1292.] (1) 
 
 § 1296. Scire facias upon judgment against joint debtors, when 
 process or declaration was served only on one. 
 
 In the name of the People of the State of Michigan. To 
 
 THE SHERIF op THE COUNTY OF : 
 
 [seal.] "Whereas A. B., heretofore, to wit., on the — day of 
 , in the year of our Lord one thousand eight hun- 
 dred and ■ , in our circuit court for the county of , by 
 
 (1) Comp. L. 908. 
 
SCIRE FACIAS. 459 
 
 tlie considerationjand judgment of tlie same court, recovered against 
 C. D. and E. F. dollars, for his damages which he had sus- 
 tained, as well on occasion of the not performing certain promises 
 and undertakings then lately made by the said C. D. and E. F. to 
 the said A. B., as for his costs and cibarges by him about his suit 
 in that behalf expended, whereof the said C. D. and E. F. are con- 
 victed, as by the record and proceedings thereof remaining in our 
 said court manifestly appears ; which said judgment so recovered 
 against the said C. D. and E. F. was had and obtained upon a cer- 
 tain promissory note, bearing date on the — day of , made 
 
 and executed by the said C. D. and E. F., whereby the said 0. D. 
 and B. F., ninety days after the date thereof, promised to pay to 
 
 the said A. B., or bearer, dollars, with interest, for value 
 
 received, [or whatever the foundation of the action may have 
 been ;] and whereas the summons [or " declaration "] by which the 
 suit wherein the aforesaid judgment was had and obtained as afore- 
 said, was duly served upon the said 0. D., one of the defendants 
 therein, who appeared in the said suit, but was not served upon 
 the said E. F., nor did the said E. F. appear or answer to the said 
 plaintiff therein : And now, on behalf of the said A. B. in our said 
 court, we have been informed that, although judgment be there- 
 upon given as aforesaid, yet execution of the damages aforesaid 
 still remains to be made to him ; wherefore the said A. B. has 
 l^esought us to provide Mm a proper remedy in this behalf; and 
 we, being willing that those things which are just and right should 
 have a due execution, do, therefore, according to the form of the 
 statute in such case made and provided, command you that you 
 summon the said B. P., that he be before our said circuit court for 
 
 the county of , at — — , on the - — day of , to show if 
 
 he has anything to say why the said A. B., plaintiff as aforesaid, 
 ought not to have execution against him, the said E. F., upon the 
 judgment aforesaid, in the same manner and with the like effect as 
 if he had been served with the process [or " declaration "] by which 
 the said suit was commenced ; and further to do and receive what 
 our said court shall then and there consider of him, in this behalf. 
 And have you then there this writ. 
 Witness, &c. [as in § 1292.] (1) 
 
 § 1297. Beturn to scire facias served. 
 
 By virtue of this writ, to me directed, I have summoned the 
 within named defendant, by delivering to him a copy of this writ, 
 duly certified by me [or " hy leaving a copy thereof, duly certified hy 
 me, at the dwelling house of the within named defendant, with a person 
 of proper age."] S. H., Sheriff.(2) 
 
 § 1298. Return when the defendant cannot he found, and has no 
 dwelling house within the county. 
 
 The within named defendant cannot be found in my county, 
 and has no dwelling house therein. S. H., Sheriff. 
 
 (1) Comp. L. 1220, 1221. (2) Comp. L. 1381, 1388. 
 
460 SPECUL PEOCEEDIKGS. 
 
 § 1299. Ruhfor appearance of a defendant not served. 
 
 A. B. 
 vs. 
 
 C. D. 
 
 The sheriff of tlie county of , having returned to the 
 
 writ of scire facias in this cause, that the defendant, 0. D., could 
 not be found within his county, and that he has no dwelling house 
 therein, on motion of E. F., of counsel fqr the said plaintiff, 
 Ordered, that the said defendant, 0. D., do appear and plead to 
 the said writ of scire facias, within twenty days after the last pub- 
 lication of this rule ; and that a copy of this rule, certified by the 
 clerk of this court be, published for four weeks successively in the 
 [insert the name of the paper,] a public newspaper published and 
 circulating in the said county of .(1) 
 
 § 1300. Common rule for defendants appearance on return of 
 scire facias served, and that he plead thereto. 
 
 [Date.] 
 E. F., Attorney. 
 
 The scire facias issued in this cause having been returned by 
 
 the sheriff of the county of ■ , duly served, on motion of 
 
 E. F., attorney for the plaintiff, Ordered, that the appearance of the 
 said defendant, 0. D., be, and it is hereby, entered ; and that the 
 said C. D. plead to the said writ of scire facias within twenty days 
 after service of notice of this rule, or judgment, &c.(2) 
 
 § 1301. Notice of rule id plead. 
 [Title of court and cause.l 
 
 Sir: — Please take notice, that upon the return of the writ 
 of scire facias in this cause duly served, a rule was entered in the 
 book of common rules, kept by the clerk of this court, requiring 
 you to plead to the said writ within twenty days after service of 
 notice of such rule, or judgment, &c. Yours, &c.. 
 
 To C. D., Defendant.(3) E. F. Plaintiff's Attorney, 
 
 § 1302. , Ruhfor defendants default for want of a plea. 
 
 ^- ^'X [Date.-] 
 
 (^^■-Q j E. F., Attorney. 
 
 On reading and filing af&davit of due service of notice of 
 the rule to plead heretofore entered in this cause, [or, " on reading 
 and fling an affidavit of the due publication of the rule heretofore made 
 in this cause, requiring the defendant, G. D., to plead to the writ of 
 SCIRE FACIAS therein within twenty days after the last publication of 
 
 (1) Comp. L. 1388. (2) Id. (3) Id. 
 
SCIRE FACIAS. 461 
 
 the said rule"'] on motion of B. F., attorney for the above named 
 plaintiff, Ordered, that the defauk of the said C. D., in not plead- 
 ing, be, and the same is hereby, entered. 
 
 § 1303. Rule making default absolute, for interlocutory judgment, 
 and assessment of damages, for other or further breaches. 
 
 ^- ^- 1 [Bate.] 
 
 ^^■■Q I B. P., Attorney. 
 
 The appearance of the defendant and his default in not 
 pleading to the writ of scire facias in this cause, having been duly 
 entered, and [four] days in term having elapsed since the entry 
 thereof, on motion of B. B., attorney for plaintiff. Ordered, that 
 the said default be, and the same is hereby, made absolute. And 
 on like motion, Ordered, interlocutory judgment, and that the 
 plaintiff's damages be assessed by the court, [or, " by a fury."] 
 
 § 1304. Bule for final judgment by default. 
 
 [Title.] 
 
 The appearance of the said defendant and his default in not 
 pleading to the writ of scire facias in this cause having been duly 
 entered, and the said default having become absolute, and the dam- 
 ages of the said plaintiff on occasion of the breaches [or "further 
 breaches "] in the said writ of scire facias assigned, having been duly 
 
 assessed at the sum of dollars, therefore it is considered that 
 
 the said A. B. have his execution against the said C. D., of the 
 damages so assessed as aforesaid, together with his costs and charges 
 by the said A. B. laid out in and about the prosecution of his said 
 writ of scire facias, to be taxed, and by the court now here adjudged 
 to him, according to the form of the statute in such case made and 
 provided. 
 
 § 1305. In case of an issue in law or in fact, it is argued and 
 decided, or tried, as in ordinary cases, and the forms of the pro- 
 ceedings are substantially the same, varying as indicated in the 
 foregoing precedents, according to the circumstances of the case. 
 Formerly, upon the death of a sole plaintiff or defendant, if 
 the cause of action survived, it was necessary to revive the suit 
 by scire facias in favor of or against the executor or adminis- 
 trator of the deceased party. But provision is now made by 
 statute(l) for reviving the suit in such cases, when the party 
 dies before final judgment, by a suggestion of the death upon 
 the record, and proceeding as therein provided. If a sole de- 
 fendant die after final judgment, and before execution, the judg- 
 ment, as we have seen, is certified to the probate court as a debt 
 
 (Oomp. 1. liu.f, 1168, 1160. 
 
462 SPECIAL PROCEEDINGS. 
 
 established, to be paid in the course of administration. If, Low- 
 ever, a sole plaintiff die after find judgment, it seems to b3 ctill 
 necessary that his esecutors or administrators should sue out a 
 writ of scire fades, in order to have execution upon it. In this 
 case the following forms may be used : 
 
 § 1306. Scire facias hy an executor, on the death of a soh plaintiff 
 after final judgment in assumpsit. 
 
 In the name gp the People of the State of Michigan. To 
 
 THE sheriff of THE COUNTY OF : 
 
 [seal.] Whereas A. B., lately in our circuit court for the 
 
 county of , by the judgment and consideration 
 
 of the same court, recovered against C. D. dollars, for his 
 
 damages which he had. sustained, as well on occasion of the non- 
 performance of certain promises and undertakings then lately made 
 by the said 0. D. to the said A. B., as for his costs and charges by 
 him about his suit in that behalf expended, whereof the said C. D. 
 is convicted, as appears to us of record ;* and afterwards, to wit., 
 
 on the — day of , in the year one thousand eight hundred 
 
 and , at , [the place of the death,] the said A. B. died, 
 
 having first duly made and published his last will and testament 
 in writing, and thereby constituted and appointed E. P. executor 
 thereof;, after whose death, the said E. P. duly proved the said last 
 will and testament of the said A. B., and took upon himself the exe- 
 cution thereof, as by the information, of the said E. P., in our said 
 court, we have been given to understand : and whereas, by the 
 letters testamentary of the said A. B., deceased, by the said E. P., 
 brought now here into the said court, it fully appears to^he said 
 court that the said E. P. is the executor of the said last will and 
 testament of the said A. B., deceased, and hath taken upon himself 
 the execution thereof : and now, on behalf of the said E. P., exe- 
 cutor as aforesaid, in our said circuit court for the county of , 
 
 we have been informed that, although judgment was thereupon 
 given, yet execution of the damages aforesaid still remains to be 
 made to him : wherefore, the said E. P., executor as aforesaid, 
 hath besought us to provide him a proper remedy in this behalf; 
 and we, being willing that those things which are just and right 
 should have a due execution, do therefore command you, that you 
 summon the said 0, D., that he be before our said circuit court for 
 
 the county of , on the — day of next, [or " instant,"] 
 
 at , in said county, to show if he lias or knows of any cause 
 
 why the said E. P., executor as aforesaid, should not have execu- 
 tion against him of the damages aforesaid, according to the force, 
 form, and effect of the said recovery, if he shall think it expedient 
 for him so to do ; and further to do and receive what our sajd 
 court shall then and there "consider of him in this behalf. And 
 have you then there this writ. "Witness, &c., [as in § 1292.](1) 
 
 (I) Comp. L. 1388. 
 
MANDAMUS. 463 
 
 § 1307. Scire facias in the like case by an administrator. 
 
 [As in the last form to the *, and then as follows :] and after- 
 wards, to wit., on the — day of , in the year one thousand 
 
 eight hundred and , at , the said A. B. died intestate ; 
 
 after whose death, administration of all and singular the estate, 
 goods, chattels, credits, and effects which were of the said A. B., 
 at the time of his death, in due form of law was granted to E. F., 
 as by the information of the said B. F., in our said circuit court, 
 we have been given to understand ; and whereas, by the letters 
 of administration of all and singular the estate, goods, chattels, 
 credits, and effects which were of the said A. B. at the time of his 
 
 death granted to the said E. F., on the — day , by the judge 
 
 of probate of the county of ; and by the said E. F. now 
 
 here brought into the said court, it fully appears to the said court 
 that the said B. F. is such administrator as aforesaid ; and now, on 
 behalf of the said B. F., administrator as aforesaid, in our said cir- 
 cuit court for the county of , we have been informed that 
 
 although judgment be thereupon given, yet execution of the dam- 
 ages aforesaid still remains to be made to him: wherefore, the 
 said E. F., administrator as aforesaid, hath besought us to provide 
 him a proper remedy in this behalf; and we, being williag that 
 those tilings which are just and right should have a due execution, 
 do therefore command you, that you summon the said C. D., that 
 
 he be before our said circuit court for the county of , at , 
 
 in said county, on the — day of next, [or " instant,"] to show 
 
 if he has or knows of any cause, why the said E. F., administrator 
 as aforesaid, ought not to have his execution against him of the 
 damages aforesaid, according to the force, form, and effect of the 
 said recovery, if he shall think it expedient for him to do so ; and 
 further to do and receive what our said court shall then and there 
 consider of him in this behalf. And have you then there this writ. 
 
 Witness, &c., [as in § 1292.](1) 
 
 MANDAMUS. 
 
 § 1308. The writ of mandamus has been denominated a high 
 prerogative writ.(2) In England it issues, in the king's name, out 
 of the court of king's bench only ;(3) and, in general, it issues out 
 of the highest court of original jurisdiction in the government, 
 being that court which exercises a general supervisory control over 
 all inferior courts and tribunals throughout the state, and which is 
 generally styled the supreme court. In this state, until the new 
 
 (1) Comp. L. 13S5. 
 
 (2) 4 HUl, 581; 3 Dl. Com. 110 j 2 Johns. Gas. (2d ed.) 21'?, note. 
 
 (3) 3 Bl. Com. 110. 
 
464 SPECUL PROCEEDINGS. 
 
 constitution took effect, the supreme court had exclusive jurisdic- 
 tion to issue writs of mandamus ; but now, as we have before seen, 
 the several circuit courts have concurrent power with the supreme 
 court to issue such writs, within their respective jurisdictibns.(l) 
 It is a command, issuing in the name of the sovereign, that is, of 
 the people of the state, directed to some person, officer, corpora- 
 tion, or inferior court or tribunal, commanding them to do some 
 specific act perta,ining to their office, character, or situation, agree- 
 ably to right and justice.(2) It can only be employed in cases 
 where the party has a clear legal right or title, and there is no 
 other adequate legal remedy.(3) * 
 
 § 1309. By legal remedy, is, meant a remedy at law ; and it has 
 been held to be no objection to the granting of the writ, that the 
 party may have redress by resort to a court of equity ; nor that 
 the adverse party may be punished criminally for omitting to do 
 the act to compel the performance of which the writ is sought.(4) 
 It will not, therefore, be awarded when the party has an adequate 
 remedy by action; and the application has been refiised upon this 
 ground, when sought to compel a corporation to transfer stock on 
 its books; (5) or to compel a county treasurer to pay money when 
 he withholds it without sufficient cause; (6) or to compel the super- 
 visors of a county to allow a person, wrongfully assessed, the 
 amount of the tax collected from him, or the like.(7) ISTor will it 
 be allowed when the party has a remedy by writ of error, or ap- 
 peal, as to compel a subordinate court to vacate a rule arresting 
 judgment ;(8) or to enter the satisfaction of a judgment ;(9) or 
 to vacate a rule setting aside the report of referees.(10) Nor is 
 it allowable when another specific legal remedy is provided by 
 statute, as to compel the delivery of the books and papers belong- 
 ing to an office, when the relator's title to such office is clear and 
 free from any reasonable doubt, a remedy being provided by sum- 
 mary process under the statute ;(11) or to restore a party to the 
 
 (1) Const., Art. 6, §8. (2) 2 Burr. Pr. 1T2. 
 
 (3) 1 Doug. Mich. E. 310; Id. ilt; 2 Barb. S. 0. E. 417; 5 HiU, 616; 18 Peters, 
 291 ; 1 Kernan, 563. 
 
 (4) 10 WendeU, 395, 397. 
 
 (5) 6 Hill, 243; 10 J. R. 484; 10 Howard Pr.Tl. 544. 
 
 (6) 2 Cowen, 444. 
 
 (I) 1 Kernan, 563 ; 1 WendeU, 318; 19 id. 73. 
 
 (8) 1 Cowen, 143. (9) 10 -Wendell, 546. 
 
 (10) 21 WendeU, 20. 
 
 (II) 5 Hill, 631, note; 7 Howard Pr. R. 124; li id. SIS. 
 
MANDAMUS. 465 
 
 possession of an office, wlien the right to such office is in dispute, 
 a remedy being provided by action. (1) 
 
 § 1310. But when a specific duty is imposed by statute upon 
 public officers or bodies, they may be compelled to execute it by 
 mandamus, although an action for damages might also lie.(2) 
 There are many cases, however, where, although the party has no 
 other legal remedy, a writ of mandamus will not be allowed. Such 
 are motions for new trials on the weight of evidence, on the ground 
 of surprise, or to let in newly discovered evidence ; and applica- 
 tions for leave to amend, and for -relief against defaults, and the 
 like cases, when the motion or application is addressed to the sound 
 discretion of the court of original jurisdiction, whose decision is 
 final ;(3) it being a well-established rule that a mandamus will 
 not be granted to coerce the discretion of a subordinate tribunal.(4) 
 
 § 1311. It has been accordingly held, that the writ cannot be 
 allowed to compel a subordinate court to grant a new trial upon 
 the merits; (5) nor to vacate a rule setting aside a report of ref- 
 erees, on the ground that it is founded on insufficient evidence; (6) 
 nor to vacate a rule setting aside a regular default, and permitting 
 the defendant to plead on payment of costs ;(7) nor to vacate the 
 condition of a rule setting aside a ca. sa. for irregularity ;(8) nor 
 to vacate a rule to quash an appeal taken by default in the absence 
 of the relator's attorney ;(9) nor a rule granting an amendment 
 without the payment of costs ;(10) nor to retax a bill of costs ;(11) 
 nor for the purpose of controlling the mere chamber business of a 
 judge of an inferior court ;(12) or the practice in other courts ;(13) 
 or the like. But although a writ of mandamus will not be granted 
 when the subordinate court has a discretion, and proceeds to exer- 
 cise it, yet, if the subordinate court refuse to act, or to entertain 
 the question for its discretion, it will be allowed to set the inferior 
 court ia motion, and compel it to proceed, and exercise the powers 
 conferred upon it.(14) 
 
 (1) 20 Barb. R. 302. 
 
 (2) 12 Howard Pr. E. 224; 20 Barb. E. 294; and see, also, 1 Barb. S. C. R. 34. 
 
 (3) See 20 "Wendell, 662 ; 18 id. 98; 1 Deoio, 679. 
 
 (4) 1 WeudeU, 291, 299 ; 1 Cowen, 15 ; 10 Wendell, 285. 
 
 (5) 2 Cowen, 479. (6) Id. 458; 19 Wendell, 68. 
 (7) 6 Cowen, 392. (8) 3 id. 59. 
 
 (9) 7 id. 363. (10) 8 Wendell, 509. 
 
 (11) 19 id. 113. (12) 6 Cowen, 31. 
 
 (13) 16 Howard Pr. R. 200; 15 id. 392; and see, also, 1 Howard Pr. E. 417 371. 
 1 Wendell, 73 ; 2 Burr. Pr. 173. ' ' 
 
 (14) 14 East, 395; 19 J. E. 260; 18 Wendell, 92, 95; 12 Barb. 446. 
 
 30 
 
4:66 SPECIAL PEOCEEDINGS. 
 
 § 1312. But this writ is, in many cases, the appropriate remedy 
 for the purpose of compelling inferior judicial tribunals to do some 
 act belonging to their duty. Thus, it has been allowed to compel 
 a court of sessions to enter judgment on a verdict when that court 
 had no power to grant a new trial ;(1) to compel a court or judicial 
 officer to seal or amend a bill of exceptions ;(2) to allow an appeal 
 to be placed on the calendar, and to hear the argument thereof, and 
 to give j udgment thereupon, when it had been dismissed -without 
 authority ; (3) to settle a case after denial of a motion to set aside the 
 report of referees, so as to enable the party to take an appeal ;(4) 
 to approve a new appeal bond on an appeal from the judgment of 
 a justice of the peace ;(5) to compel a justice of the peace to issue 
 execution upon a judgment rendered by him ;(6) and to compel a 
 county judge to file his decision after it is completed.(7) 
 
 § 1313. But when the court or officer has acted judicially in 
 making a decision or order, whether such decision be right or 
 wrong, it will not be reviewed and corrected by mandamus. It 
 will be awarded, to set an inferior court in motion, when it has 
 refused to act, but not for the purpose of requiring it to come to 
 any particular conclusion, or to retrace its steps where it has 
 already acted.(8) Accordingly it has been denied to compel an- 
 inferior court to vacate an order dismissing an appeal, and allow 
 the appellant to file an amended recognizance, and proceed to trial 
 in the cause ;(9) to vacate a rule setting aside a report of referees, 
 although the court clearly erred in making the rule ;(10) to compel 
 a judge to issue his warrant on a complaint for an intrusion, when 
 he had refused to do so after hearing evidence upon the subject ;(11) 
 to compel an inferior court to vacate an order authorizing a defend- 
 ant to enter a judgment nunc pro tunc, in a case where the supe- 
 rior court would have denied the application for such order on 
 account of delay in making it ;(12) to vacate an order opening a 
 judgment to enable the defendant to plead his discharge in bank- 
 ruptcy ;(13) to vacate a rule setting aside an execution issued by a 
 
 (1) 1 Johns. Gas. 179. * 
 
 (2) 1 Gaines' R. 511; 2 J. R. 279 ; 2 Johns. Gas. 118 ; 5 Wendell, 132, note. 
 
 (3) 13 Howard Pr. R. 279, 398, 401. (4) See 20 "Wendell, 663. 
 (5) 1 Howard Pr. R. 196. (6) 2 id. 109 ; 22 Barb. 602. 
 
 (I) 5 Howard Pr. R, il. 
 
 (8) 1 Mioh. B. 359; 2 Denio, 192; 18 Wendell, 79; 20 id. 658; 3 Howard Pr. E. 
 30; 13 id. 277; 3 Dallas, 42; 13 Peters, 290. 
 
 (9) 1 Mioh. E. 359 ; 3 Binney, 273. (10) 21 Wendell, 20. 
 
 (II) 1 Denio, 617 ; 1 Howard Pr. E. 186. (12) 1 Denio, 644. 
 (13) 2 id. 191. 
 
MANDAMUS. 467 
 
 justice of the peace on a judgment rendered before him, and dock- 
 eted in the clerk's office.(l) 
 
 § 1314. The writ of mandamus is also the proper remedy to 
 compel corporations and inferior officers, besides those occupying 
 judicial stations, to perform the duties imposed on them by law ; 
 whilst, Avith respect to subordinate yt«£iaaZ tribunals and officers, 
 the operation of the writ has been confined, as has already ap- 
 peared, to a mandate that they proceed; yet, as to corporations 
 and ministerial officers, the authority of the writ has been recog- 
 nized as extending not only to compel them to act, but to direct 
 the manner in which they shall act. (2) Thus, it has been allowed 
 to compel the supervisors of a county to aUow the account of a 
 county clerk for expenses incurred, and services performed by him 
 according to law ;(3) to compel them to restore the names of certain 
 banks, which they had struck off from the assessment roll as made 
 by the assessors ;(4) to levy and collect the amount of a deficiency 
 on the sale of lands foreclosed on loan-office mortgages ;(5) and to 
 levy and collect the amount of damages sustained by owners of 
 lands taken for the improvement of a public highway,(6) and the 
 like cases. (7) 
 
 § 1315. So, when the supervisors of a county have neglected to 
 perform any duty required of them at their annual meeting, as to 
 issue warrants for the military commutation money, they may be 
 compelled by mandamus to meet and perform that duty.(8) And 
 when a creditor has an account against a county, and no discre- 
 tion is vested in the board of supervisors in relation to it, and there 
 is a clear legal duty resting upon them to cause the whole amount 
 of the account to be collected and paid, which duty they refuse to 
 perform, it seems the only remedy of the creditor is by an applica- 
 tion to the court for a mandamus to compel them to perform it.(9) 
 It has also been issued to compel commissioners of highways to open 
 and work a road which has been laid out by commissioners ap- 
 pointed by an act of the legislature, (10) and to open a road where 
 
 (1) 1 Denio, 646, note. 
 
 (2) 20 "Wendell, 658 ; 2 Barb. S. C. R. 418; 19 J. E. 263; 12 Howard Pr, R. 224 ■ 
 13 id. 2'7T. ' ' ' 
 
 (3) 18 J. K. 242; and see 3 Mich. R 4H5. 
 
 (4) 4 HiU, 20. (5) 10 WendeU, 363. 
 
 (6) 4 Barb. 64. 
 
 (7) Seel9J.R.272; 6 Cow., 292 ; 3Barb. S. C. R. 332; 20 id. 294; 12 How.Pr,R.50. 
 
 (8) 4 Selden, 318. (9) 20 Barb. 294, 297. 
 (10) 19 'Wendell, 56. 
 
468 SPECIAL PROCEEDINGS. 
 
 they had refused to do so, and their decision had been reversed on ap- 
 peal, and the appellate tribunal had proceeded to lay out the road.(l) 
 
 § 1316. A mandamus has also been allowed to compel a town 
 clerk to record the survey of a road ;(2) a county clerk to record a 
 deed properly acknowledged and certified ;(3) the clerh of a marine 
 court to issue execution upon a judgment rendered by such court;(4) 
 the mayor of a city to grant a license, when the party was entitled 
 to it as a matter of legal right, (5) or to administer Ihe oaths of 
 office to persons returned by the inspectors of election as assessors 
 of a ward ;(6) to compel the trustees of a school district to issue their 
 warrant for the collection of a tax;(7) to compel a sheriff to execute 
 and give a deed of lands; (8) to compel canal appraisers to appraise 
 damages occasioned by a canal, (9) and canal commissioners to pay 
 the amount of damages appraised ;(10) to compel a jury to complete 
 their assessment of damages for the opening of a street in a vil- 
 lage ;(11) to compel a county treasurer to pay the amount of an ac- 
 count which had been legally audited and allowed by the board of 
 supervisors, (12) and to compel commissioners for loaning moneys of 
 the United States, to pay over surplus moneys in their hands.(13) 
 
 § 1317. It has also been issued to compel the comptroller to 
 issue his warrant to pay tolls collected by him for the state ;(14) to 
 compel the comptroller of a city to draw his warrants on the city 
 chamberlain for moneys ordered to be paid by the corporation ;(15) 
 to compel the common council of a city to proceed in the matter of 
 widening a street ;(16) to compel trustees of non-resident debtors to 
 appoint referees in pursuance of the statute, in order to contest the 
 validity of debts presented and claimed by attaching creditors, (17) 
 and to compel a corporation t6 exhibit its books and papers to a 
 director or corporator, he having a right, at all reasonable times, to 
 examine them. (18) 
 
 (1) 16 J. R. 61 ; 12 Barb. 194-6; 4 Selden, 416; 1 Oowen, 23 ; 4 id. 544. 
 
 (2) 1 J. R. 550. (3) 14 J. R. 325. 
 ^4) 13 Howard Pr. R. 5, 260 ; 22 Barb. 502. 
 
 (5) 13 Barb. 206. (6) 3 Hill, 43 ; 4 Abb. Pr. R. 36. 
 
 (I) 8 Howard Pr. R. 358, 125. 
 
 (8) 1 Cowen, 502 ; 18 Wendell, 598 ; 1 Barb. S. C. R. 319 ; 4 Denio, 118. 
 
 (9) 6 Cowen, 518. (10) 1 id. 526. 
 
 (II) 1 Barb. S. C. R. 34. (12) 15 Barb. 529 ; 19 id. 468. 
 (13) 1 Howard Pr. R. 160. (14) 18 "Wendell, 695. 
 
 (15) 16 Barb. 603. (16) 22 Barb. 404. 
 
 (11) 1 Howard Pr. R. 80; 2 id. 200. 
 
 (18) 1 Howard Pr. R. 241 ; 12 Wendell, 183. See, also, 2 Cowen, 485; 23 Wend. 
 458 ; 2 Johns. Cas. (2d ed.) 21T— 32 to 61, notes. 
 
MANDAMUS. 469 
 
 § 1318. The same rule wliich applies to subordinate courts, 
 applies also to corporations, and ministerial or other officers, when 
 they have acted judicially, or when they are vested with a discre- 
 tionary power in regard to the performance of an act, and have 
 exercised the discretion conferred upon them,(l) and the operation 
 of the writ is the same, in these respects, as when directed to such 
 judicial tribunals.(2) Thus, the writ has been denied when applied 
 for to compel a hoard of supervisors to audit and allow an account, 
 when they have adjudicated upon it, and allowed part and rejected 
 part; (3) to compel assessors to reduce their assessments when the 
 affidavits produced before them are not in conformity with the 
 statute ;(4) or to compel the attorney-general to prosecute an action 
 to establish the right of a party to an office. Nor will it be allowed 
 to compel a county treasurer to pay an account audited by the 
 board of supervisors, when the subject matter of the account is not 
 within the jurisdiction of the board ; (5) nor to compel a board of 
 supervisors to correct an assessment roll after the same has been 
 reviewed and finally acted upon by them, and a warrant for the 
 collection of the taxes issued to the collector of the town,(6) nor in 
 any of the like cases. 
 
 § 1319. This writ has also been frequently adopted for the 
 purpose of restoring to an office one who has been illegally deprived 
 of the possession of it. In such cases it confers no title upon the 
 person thus restored, its sole operation being to put him in a situa- 
 tion to enforce his former title, if sufficient in law ;(7) the only 
 mode of trying the title to an office being by information in the 
 nature of a quo warranto ; though, if a quo warranto will not lie, a 
 mandamus will be granted, upon the principle that the party shall 
 not be remediless. (8) It has been allowed to compel the proper 
 officers to admit to the possession of his office or place one elected 
 to the office of mayor,(9) recorder,(10) sergeant,(ll) aldermen,(12) 
 and brigadier-general.(13) 
 
 (1) 3 Mich. R. 427. (2) 19 "WendeU, 56; 12 Barb. 446. 
 
 (3) 12 Howard Pr. R. 204; and see 12 J. R. 224, 414 ; 19 id. 260 ; 9 'Wendell, 508 ; 
 1 HiU, 362 ; 14 Barb. 52 ; 1 How. Pr. R. 116. 
 
 (4) 12 Barb. 608. (5) 6 HiU, 244; 13 Howard Pr. R. 314. 
 
 (6) 15 Barb. 608; 24 id. 166. 
 
 (7) 2 Johns. Cas. (2d ed.) 21T, 10 to 56 notes. 
 
 <8) 6 Bast, 356 ; 5 Hill, 629. (9) 2 RoU. Ab. Restitution, PL 4. 
 
 (10) Id., PL 6. (11) Id. PL 71. 
 
 (12) 2 Bulst, 122. (13) 20 Barb. 302. 
 
470 SPECIAL PROCEEDINGS. 
 
 § 1320. 'i^The writ of mandamus has also been allowed to com- 
 pel an insurance company to swear in a director, the company hav- 
 ing been created by charter from the crovvD;(l) to restore the direc- 
 tors of a banking company who were refused the exercise of their 
 rights as directors by a majority of the board,(2) as when the cash- 
 ier of a bank refused to permit a director to inspect the discount 
 book, and his conduct was approved by a resolution of the board,(3) 
 and to compel a medical society to restore a party to membership 
 where he had been illegally expelled.(4) Also, to compel the trus- 
 tees of a meeting-house to admit a dissenting minister who was duly 
 elected ;(5) and it seems that the writ of mandamus is the only 
 proper remedy to put a minister of any religious denomination into 
 possession of the pulpit to which he is entitled,(6) and this notwith- 
 standing such pulpit is occupied by another person.(7) 
 
 § 1321. But a mandamus wiU not be granted to admit a person 
 to an office, when the office is already filled by another, who has 
 been sworn and admitted, and holds by color of right ;(8) nor 
 when there is an appropriate remedy by quo warranto /(9) nor when 
 there is a real and substantial dispute as to the title to the office.(lO) 
 But when the title to an office is beyond a substantial dispute, and 
 the objection clearly frivolous, and the possession of the books and 
 papers would not give the party entitled the entire control of the 
 office, the writ of mandamus will be awarded.(ll) 
 
 § 1822. In issuing or withholding the writ of mandamus, the 
 court will exercise a sound discretion ;(12) as when it is manifest 
 that the writ would not accomplish the substantial object sought 
 to be attained ;(13) or where the object of the writ is merely to try 
 a private right ;(14) or where the prosecution of it would be attended 
 with manifest hardship and clifficulties.(15) But this discretion is 
 regulated by those well-settled principles and rules of law wbich 
 have been stated and illustrated above, and which will always be 
 regarded in determining the question whether the writ shall be 
 
 (I) 1 Stra. 696. (2) T Loui. K. 509. 
 (3) 12 Wendell, 183. (4) 2 Barb. 570. 
 
 (5) 3 Burr. E. 1265. (6) 2 Barb. S. C. R. 398, 41t, 419. 
 
 {1) Id. (8 3 Johns. Cas. 19; 20 Barb. 302. 
 
 (9) Id. ; and see 5 Hill, 616. (10) Id.; 1 Howard Pr. R. 124. 
 
 (II) Id. 128 ; and see 2 Johns. Caa. (2d ed.) 211, 52 to 59 notes. 
 
 (12) 4 Hill, 583 ; 13 Barb. 450 ; 1 Cowen, 502 ; 2 Johns. Oas. (2d ed.) 2lT, 4 note. 
 
 (13) 12 Barb. 211; 15 id. 608; 20 Wendell, 108. 
 
 (14) 2 Johns. Cas. 217, 5 note. (15) 15 Barb. 617 ; 1 Cowen, 502. 
 
MANDAMUS. 471 
 
 awarded or not.(l) It is also a general, rule that the writ will not 
 be granted except for public purposes, and to compel the perform- 
 ance of public duiies,{2) although it is often used to enforce private 
 right, when withheld by public officers in violation of their official 
 duty.(3) And it will not be granted unless the application has 
 been preceded by a distinct demand of the specific thing, the per- 
 formance of which is the object of the mandamus, and by a refusal 
 of performance, or conduct equivalent to it. But it is not neces- 
 sary that the word refuse should be used ; it is sufficient if it appear 
 that the defendant withholds compliance, and distinctly determines 
 not to do what is required. (4) 
 
 § 1323. It has been held that, in a matter of public right, any 
 citizen may prosecute a writ of mandamus, when the object is to 
 enforce the execution of the common law, or of an act of the leg- 
 islature.(5) It has been settled, however, in our own supreme 
 court, that, to entitle an individual citizen to be heard in such a 
 case as a relator, and on his own motion, he must, in general, show 
 that he has some individual interest in the subject matter of com- 
 plaint, which is not common to all the citizens of the state.(6) 
 When the matter relates to private or corporate rights, the title to 
 relief at the suit of the relator should appear.(7) And when the 
 application is made in behalf of a particular class, and the legisla- 
 ture has provided that they shall be represented by a particular 
 officer, such officer is the proper person to prosecute the writ, and 
 to be named as relator therein. (8) 
 
 § 1824. As to the time within which the writ may be prosecuted, 
 there is no statutory limitation. It has been held, however, that 
 the writ will not be granted when the party has slept upon his 
 rights. Thus, when a motion was made for a mandamus to compel 
 a court of common pleas to quash an appeal, after the lapse of five 
 years from the final decision of the cause, it was denied, as being 
 made too late ;(9) and so, when an application was for a writ re- 
 quiring a court of common pleas to compel a justice of the peace to 
 amend his return, it was denied, because there had been a delay of 
 
 (1) See 2 Johns. Cas. (2d ed.) 217, 4 note. 
 
 (2) Bao. Abr. title Mandamus, 3 Bl. Com. 110. 
 
 (3) 3 Mich. B. 475. (4) 3 A. & B. 217. 
 
 (5) 19 "Wendell, 56; 1 How. Pr. R. 186; but see 13 Barb. 449, 450. 
 
 (6) 4 Mich. R. 98. 
 
 (7) 19 "Wendell, 56; 1 How. Pr. E. 186; and see 10 "Wendell, 30. 
 
 (8) 1 Denio, 617 ; 1 How. Pr. E. 186. (9) 2 "Wendell, 256. 
 
472 SPECIAL PEOCEEDINGS. 
 
 a year after the happening of the errors complained of.(l) But 
 when the object is to enforce a substantial right by means of a 
 mandamus, it seems the party should be allowed the time given by 
 statute to obtain a remedy for injuries essentially of a similar char- 
 acter, in the ordinary way, if that could be pursued.(2) 
 
 § 1325. The application for the writ of mandamus, must be 
 founded on affidavits, which should distinctly and fully set forth 
 the facts upon which the relator relies to establish his right to the 
 relief demanded ;(3) and when the allegations in the affidavits are 
 not so positive that an indictment for perjury would lie upon them 
 if false, the affidavits will be held insufficient.(4) And it is said 
 that "the affidavits should also anticipate and answer every possible 
 objection or argument in fact which it may be expected will be 
 urged against the claim," and that " when any strong evidence is 
 expected, any disputable or material facts should be corroborated 
 by one or more respectable and experienced individuals. "(5) The 
 affidavits on which the application is to be made, should not be 
 entitled in any manner.(6) But when the affidavit was entitled 
 " Supreme Court. In the matter of J L. against the judges," &c., it 
 was held that this was not such an entitling as to vitiate it.(7) 
 
 § 1826. The motion is, either ihai & peremptory mandamus issue 
 in the first instance, or that an alternative mandamus issue, or for 
 an order to show cause, in the nature of an alternative mandamus, 
 why a peremptory mandamus should not issue to compel the per- 
 formance of the act in question. (8) A peremptory mandamus will 
 seldom be granted in the first instance ; but when both parties are 
 heard on the application, and there is no dispute about the facts, 
 and the right of the applicant to the writ is clear, the court will 
 issue a peremptory mandamus at once.(9) It will also be allowed 
 to issue at once when it is apparent that no excuse can be given 
 for the non-performance of the act, and the rights of the applicant 
 might be endangered by delay ;(10) and also when, on an order to 
 show cause, no satisfactory cause is shown.(ll) "When the applica- 
 tion is made to a court whose judgments are subject to be reviewed 
 
 (1) 2 Wendell, 264; 1 M. & S. 32; and see 2 Johns. Cas. (2d ed.) 217, 14 note. 
 
 (2) 12 Barb. 446. (3) 1 Johns. Cas. 134; 3 T. R. SIS. 
 (4) 5 T. R. 466, 469; 2 Johns. Cas. (2d ed.) 217, 62 note. 
 
 (6) 1 Chitt. Gen. Pr. 808, 809; and see 2 Johns. Cas. (2d ed.) 217, 62 note. 
 
 (6) 2 J. E. 371 ; 1 Wend. 291. (7) 6 Cowen, 61. 
 
 (8) 10 Wend. 30 ; 3 How. Pr. R. 164. (9) 7 Cowen, 526; 4 Abb. Pr. R. 36. 
 
 (10) See 14 J. E. 325. (U) 12 Wendell, 183 ; 6 Cowen, 618. 
 
MANDAMUS. 473 
 
 by writ of error from an appellate court, and tlie facts on whicli the 
 applicant relies are in dispute, and the parties may wish a review 
 of the case on appeal, an alternative mandamus will be issued. The 
 , usual practice, however, is, especially when made to a court of last 
 resort, to grant an order to show cause, instead of issuing the alter- 
 native writ;(l) and particularly when the application is to compel 
 the performance of an act by a subordinate court.(2) 
 
 § 1327. The practical difference between the order to show 
 cause and an alternative mandamus is, that the alternative man- 
 damus is answerfed by a return, which is in the nature and performs 
 the office of a plea, whde the order to show cause, like all other 
 orders of a similar character, is answered by affidavits, (3) and hence, 
 in the former case, a judgment is rendered, upon which a writ of 
 error lies as on other judgments ; while, in the latter case, no judg- 
 ment is rendered, and the decision of the court upon the applica- 
 tion is final.(4) But whether the writ has been granted or denied 
 on a motion for a peremptory mandamus, or on the return of an 
 order to show cause, the court, on the suggestion of either party, 
 will permit the alternative mandamus to issue, in order to place 
 the question in a situation to be carried further. (5) The court will 
 not determine doubtful questions on the application, but will make 
 the order or grant the writ, that the matter may come before them 
 on the return.(6) 
 
 § 1328. The application for the writ, or order to show cause, is 
 usually made ex parte, and without notice. But if it be intended 
 to apply for a peremptory mandamus in the first instance, it wiU, 
 in general, be necessary to serve copies of the affidavits relied upon, 
 with a notice of the motion, upon the defendant, a reasonable time 
 before the motion is made, unless such notice is waived. It is not 
 treated as an ordinary special motion, and is not therefore entered 
 in the special motion book. On the return of the order to show 
 cause, or the motion for the peremptory writ, if the opposite party 
 appears, the relator holds the affirmative ; and, after making his 
 motion and reading his affidavit, the other party is heard in oppo- 
 sition to the motion, when the relator will be at liberty to reply. (7) 
 The rule granting the writ may properly be entitled in the cause.(8) 
 
 (1) 10 "Wend. 30 ; 2 Mich. E. IST. (2) 9 "Wendell, 4'72 ; 2 Johns. Gas. 68. 
 
 (3) 3 Mich. B. 18t. (4) 3 How. Pr. B. 165. 
 
 (5) 20 Barb. 86 ; 13 How. Pr. E. 305, 309 ; 10 Wend. 31 ; 12 id. 183 ; 6 Cow. 518. 
 
 (6) See 7 Howard Pr. B. 293 ; 1 id. 163. 
 
 (7) 12 "WendeU, 184, note. (8) 2 How. Pr. E. 60. 
 
474 SPECIAL PROCEEDINGS. 
 
 § 1329. The alternative -writ should be directed to the person, 
 body, or tribunal by -whom it is to be expected, or whose duty it is 
 to do the act required. But when it was prosecuted to compel 
 commissioners of highways to do a certain act, it was held that it 
 need not, in the first instance, be directed to them by their indi. 
 vidual names, and that it was only in case of disobedience to the 
 writ, that they were liable to be proceeded against personally.(l) 
 And when it was issued for the purpose of compelling a cashier 
 of a bank to allow one of the directors to inspect a book, when 
 he had refused to do so, and such refusal had been approved by 
 the board of directors, it was held that the writ might properly be 
 directed to the cashier alone ; though it might not have been im. 
 proper to have directed it also to the directors, especially as they 
 had been notified of the application, and several of them had ap- 
 peared to such cause against it.(2) If the writ is wrongly directed, 
 the proceedings will be irregular, and the writ will be quashed ; as 
 when it was directed to the mayor, aldermen and commonalty, 
 when the name of the corporation was "the mayor, burgesses and 
 commonalty, &c."(3) 
 
 § 1330. In the alternative mandamus, the relator must set forth 
 his title, or the facts upon which he relies for the relief sought, and 
 by it the defendant is required to do the particular act asked for, 
 or show cause ; and this must be done so clearly and distinctly, 
 that the facts alleged may be admitted or denied ; and so that the 
 defendant may, at any time after a return, and before a peremptory 
 mandamus awarded, object a want of sufficient title in the relator 
 to the relief sought, or show any other defect in substance.(4) It 
 is- not sufiicient to refer in the writ to the affidavits on file, on 
 which the order for a mandamus was made, for any particulars of 
 the relator's title, though such reference has been permitted to show 
 the amount of a sum of money claimed. (5) And when the writ asser- 
 ted, generally, that injustice had been done the relators in assessing 
 their property, and that they had been unjustly assessed, and that 
 the defendants had refused to correct the erroneous assesment, it 
 was held that these allegations were insufficient of themselves to 
 entitle the relators to relief, and that the relators should have stated 
 
 (1) 16 J. R. 61. (2) 12 -Wendell, ISt. 
 
 (3) 2 Salk. 443. See, also, id. 434, 699, tOl ; 2 Johns. Cas. (2d ed.) 217, 64, 65 notes, 
 and the cases there cited. 
 
 (4) See 3 How. Pr. R. 30, 165; 7 id. 81 ; 2 Comstock, 490; 15 Barb. 607. 
 
 (5) 10 Wendell, 25. 
 
MANDAMUS. 475 
 
 tlie particulars, in order that it might be seen from them that 
 the charge was well founded, and that the defendants might be 
 enabled specifically to answer the complaint.(l) 
 
 § 1331. When, however, the writ is issued to compel a sub- 
 ordinate court to seal a bill of exceptions, it need not set forth 
 the bill -,{2) and if the production of records be the object of the 
 writ, they need not be specifically described, a general description 
 being sufficient.(3) It should set forth with sufficient certainty 
 the duty to be performed ;(4) especially as the peremptory writ, if 
 granted, must correspond with it in this respect.(5) And it must 
 not demand too much ; otherwise, judgment will be given for the 
 defendants.(6) The writ is tested on the day it issues, and is made 
 returnable on some day in the same term designated by the court, 
 or on the first day of the next term ; and should be served a rea- 
 sonable time before the day specified for showing cause. The mode 
 of service is by showing the original and delivering a copy.(7) 
 
 § 1332. If the relator discover any informality in the writ 
 after it has been issued, he may apply for leave to amend it at any 
 time before the return.(8) But it has been held that an amend- 
 ment would not be permitted after the return has been made and 
 traversed. (9) The statute of amendments embraces this writ and 
 the proceedings thereon, as well as proceedings in personal ac- 
 tions.(lO) According to the English practice, the amendment is 
 made by a judge's order.(ll) If there is a mistake in the writ, the 
 prosecutor may quash it, and have a new one before it is re- 
 turned.(12) 
 
 § 1333. After an alternative writ has been served, the defend- 
 ant may move the court to quash it, if defective.(13) The motion 
 may be founded upon some irregularity in the issuing of the 
 writ,(14) or upon some defect in form, or substance.(15) The motion 
 
 (1) 15 Barb. 613 ; 2 Johns. Cas. (2d ed.) 21'r, 66 note. 
 
 (2) 4 Cowen, 13. (3) 1 Sid. 31 ; 3 Steph. N. P. 2321. 
 (4) 6Mod.310; 2id.316; 2Stra.85';,89'7. (5) 1 HUI, 50; 12 Barb. 446. 
 
 (6) 1 BKll, 55; 2 Mioh. R. 187. (1) 4 Cowen, 13, 403; 1 J. R. 64. 
 
 (8) 6 Mod. 133 ; Bao. Abr. Mandamus; B. Doug. R. 135; 5 Abb. Pr. R. 241. 
 
 (9) 4 T. B. 690. (10) Comp. L. 1202. 
 
 (11) See 2 Johns. Cas. (2d ed.) 21f, el note; 3 Steph. N. P. 2325. 
 
 (12) Id. (13) 4 Cowen, 13. 
 
 (14) 19 Wendell, 67. 
 
 (15) 10 id. 25; 1 How. Pr. E. 186; 1 Stra. 55; 2 Salk. 699, 701. 
 
476 SPECIAL PE0CEEDIN6S. 
 
 to set aside, or quash the -writ for irregularity in issuing it, or for 
 defect in form, should be made before the writ is returned ; but de- 
 fects in substance may be taken advantage of at any time before 
 the peremptory mandamus is awarded.(l) This motion is in the 
 nature of a demurrer, and, of course, admits the facts properly 
 stated in the writ.(2) 
 
 If there be no ground for quashing the writ, and the defendant 
 require more time in which to make a return, he may apply to the 
 court, or the judge in vacation, for an order enlarging the time, in 
 the same manner as in personal actions. (3) 
 
 § 1334. The person, body, or tribunal, to whom the writ is 
 directed and delivered, must make return to the first or alternative 
 writ, and for a neglect to do so may be proceeded against as for a 
 contempt.(4) When the mandamus is directed to a corporation, 
 requiring it to do a corporate act, or show cause, and no return is 
 made, the attachment is issued only against those particular per- 
 sons who refuse to yield obedience to it; but where it is directed 
 to several persons, in their natural capacity, the attachment must 
 issue against all ; but when they are brought before the court, the 
 punishment of each will be proportioned to his several offence.(6) 
 If the writ be directed to a town council, and they adjourn the 
 corporate assembly in order to prevent the return being made, the 
 members will be punishable as for a contempt.(6) 
 
 § 1335. The defendant cannot demur to the writ, but must 
 take advantage of substantial defects by motion to quash or set it 
 aside ;(7) in which case no return is made ; nor is a return neces- 
 sary when the defendant, on being served with the writ, puts an 
 end to the controversy by performing the act required to be 
 done. (8) If neither of these courses is adopted, a return should 
 be made within the time mentioned in the writ, or within such 
 farther time as shall have been allowed by the court or judge for 
 that purpose ; and it is no excuse for not making the return, that 
 the writ has not been returned and filed.(9) Such return must 
 
 (1) 10 'Wendell, 31 ; and see 2 Comstock, 492 ; 14 Barb. 52 ; 11 How. P. R. 89 ; 2 
 Johns. Gas. (2d ed.) 21'?, 6t, 68 notes. 
 
 (2) 1 How. Pr. R. 290. (3) Comp. L. 139T. 
 
 (4) Comp. L. 1396. 
 
 (5) See 2 Johns. Gas. (2d ed.) 21T, 69 note, and oases there cited. 
 
 (6) Id. ; 10 Mod. 56. (Y) 6 Abb. Pr. R. 30. 
 
 (8) 10 -Wendell, 31. (9) 4 Cowen, 73, 76, 403. 
 
MANDAMUS. 477 
 
 be positive and certain, (1) and not argunientative,(2) nor eva- 
 sive. (3) It must eitter deny the facts stated in tlie writ, or show 
 other facts sufficient to defeat the relator's claim.(4). It should 
 state facts, and not the evidence from which such facts may be in- 
 ferred. (5) 
 
 § 1336. Several causes may be set forth in the return, but 
 they must be consistent, and, if inconsistent, the whole will be 
 quashed.(6) But when it sets forth several independent matters, 
 not inconsistent with each other, some of which are good in law, 
 and some bad, the court may quash the return as to such as are 
 bad, and put the prosecutor to plead to or traverse the resfc.(7) 
 It is not necessary, however, that every part of the return should 
 be good ; the court will not quash it, if, on the whole, it state a 
 sufficient reason to justify the party making it.(8) Certainty to a 
 common intent will, in general, be sufficient in a return, and there 
 will be no intendment for or against it.(9) And if the return 
 contains anything more than a full answer to the substantial aver- 
 ments in the writ, it may be rejected as surplusage, or struck out 
 on motion. (10) The return, it seems, may be received without a 
 verification ;(11) or the court may require it to be verified.(12) 
 And it has been held that it need not be signed by or on behalf of 
 the J^arty making it ; and that, if made by a corporation, it need 
 not be signed or sealed.(18) But there would seem to be an evi- 
 dent propriety in requiring the return to be signed, if not verified, 
 by or on behalf of the party making it. 
 
 § 1337. When a return has been made to an alternative writ 
 of mandamus, the person prosecuting it may demur or plead to 
 any or all tiie material facts contained in such return, and the like 
 proceedings are required to be had thereon, for the determination 
 thereof, as might have been had if the person prosecuting such 
 writ had brought his action on the case for a false return.(M-) Un- 
 der this provision of the statute, it is the duty of the relator to file 
 his plea or demurrer, and serve a copy thereof on the defendant 
 
 (1) 1 Ld. Eaym. 559. 
 
 (2) 10 Wend. 25 ; Dougl. 158 ; 5 T. K. 56 ; 6 Mod. 309. 
 
 (3) 1 Barb. S. C. R. 34. (4) 10 Wendell, 25 ; 11 How. Pr. R. 89. 
 (5) 2 Comstock, 496; 10 Wend. 32. (6) 2 Salk. 436; 2 Ld. Raym. 1244. 
 
 (7) 2 T. E. 456; 5 id. 66 ; 6 id. 493. (8) 6 T. R. 490. 
 
 (9) Doug. 159; 2 Salk. 431. (10) 2 Comstock, 496. 
 
 (11) 1 Sid. 227. (12) Pol. 455. 
 
 (13) See 2 Jolms. Cas. (2d ed.) 217, 74 note; 1 Salk. 192; Com. Dig. Mandamus, 2- 
 
 1 Ld. Eaymu 223. (14) Comp. L. 1396. 
 
478 SPECIAL PEOCEEDINGS. 
 
 who, without further notice, must join in demurrer, or answer the 
 plea, if an answer be necessary, within the time limited by the 
 rules of the court for joining in demurrer or replying in other 
 cases. If the defendant find it necessary to amend his return after 
 it has been filed, he should apply to the court for leaye to do so. 
 But amendments, except of mere clerical mistakes, are allowed 
 with caution ; and after a verdict on the traverse to a return, the 
 court refused to allow the defendants to amend by setting forth a 
 different constitution of the corporation. (1) 
 
 If the return is evasive, or otherwise insufficient, the relator may 
 apply to the court for a further or supplementary return ;(2) but a 
 motion for a return of additional facts cannot be granted, unless 
 such additional facts are set forth in the alternative writ.(3) 
 
 § 1338. Neither the statute nor the rules of court prescribe 
 the time within which the relator shall demur or plead to the re- 
 turn, but the practice in each particular case is necessarily regu- 
 lated by special rule. If the relator fail to demur or plead to the 
 return within the time prescribed, the facts alleged in the return 
 will be considered as admitted to be true, and the case will be 
 determined by the court in the same manner as if the relator had 
 formally demurred to the return.(4) But if the relator fail to inter- 
 pose any plea or demurrer to the return, it is at least questionable 
 whether, if dissatisfied with the decision of the court, he can carry 
 up the cause for review. (5) But although the relator may plead or 
 demur to the return, he cannot do both.(6) He is not allowed to 
 dissect the return, and plead to some parts and demur to the resi- 
 due.(7) When the return alleges several material facts, the relator, 
 in pleadicig to it, need not deny all the facts ; but he may deny any 
 one or more of them, and omit to plead to the others, in which 
 case the facts not denied will be taken as true.(8) Nor will the 
 relator be allowed to demur specially to the return made by a sub- 
 ordinate tribunal, but, upon suggestion of its insufiiciency, a fur- 
 ther or supplementary return will be ordered, when necessary, and 
 thus the rights of a party as effectually protected as if permitted to 
 demur specially. (9) 
 
 (1) 1 T. E. 669; Doug. 134. See, also, 2 Johns. Gas. (2d ed.) 217, 74 note. 
 
 (2) 19 Wend. 429, 430 ; 1 id. 475. (3) 3 How. Pr. E. 30. 
 
 (4) See 6 WendeU, 559, 560 ; 7 id. 475 ; 1 Barb. S. C. E. 379, 384. 
 
 (5) See 6 WendeU, 559, 560 ; 10 id. 632 ; 7 id. 475 ; 1 Barb. S. C. E. 379, 384. 
 
 (6) 1 Wendell, 38. (7) Id. 
 
 (8) 3 How. Pr. E. 381 ;" 16 Mod. E. 174. (9) 9 "Wendell, 429, 430. 
 
MANDAMUS. 479 
 
 § 1339. If tke relator demur to the return, or the defendant 
 demur to the plea put in to the return, the facts alleged in such 
 return, or in such plea, are thereby admitted to be true ; and the 
 question being one of law, should be put upon the calendar as an 
 " issue of law," and may be brought on to argument in the same 
 manner as an issue in law in a personal action. And when the 
 relator, instead of demurring to the return, applies to the court for 
 a peremptory mandamus, the facts set forth in the return are taken 
 as true, and the question is one of law whether, from the facts so 
 admitted, a mandamus should be awarded. (1) 
 
 If the facts in the return are denied, or an issue of fact exists in 
 any other way on the pleadings, the cause is noticed and brought 
 to trial upon such issue, in the same manner as in a personal action. 
 If the proceedings be had in the supreme court, such issue of fact 
 must go to the circuit court for the county within which the mate- 
 rial facts contained in the mandamus are alleged to have taken 
 place ; and if had in a circuit court, they can only be had in the 
 circuit court for such county.(2) When the relator put in a plea, 
 denying all the material allegations in the return, it was held that 
 he thereby admitted that, upon its face, the return was a sufficient 
 answer to the case made by the alternative writ, and that upon 
 the trial, the relator holding the affirmative of the issue, the return 
 is to be taken as true, until it is falsified by proof ; (8) for at the 
 common law it was taken as true, and could not be traver3ed.(4) 
 
 § 1340. In case a verdict is found for the person sueing out the 
 writ, or if judgment be given for him upon demurrer, or by default, 
 he is entitled to recover damages and costs, in like manner as he 
 might have done in an action on the case for a false return.(5) 
 The damages, if any are claimed, are assessed by the court or jury 
 upon the trial of the issue of fact ; or, if judgment be taken by 
 default, or on demurrer, they are assessed by the court or a jury 
 as in ordinary cases. A recovery of damages under the provision 
 of the statute above referred to, against the party makino- the 
 return, will be a bar to any other action against such party for 
 making such return.(6) Judgment is entered on the decision of 
 the court or verdict of the jury, as in ordinary personal actions. 
 If a party has judgment for costs, or damages and costs, he may 
 have execution to collect the same ; and whether he recover judg- 
 
 (1) 1 "WendeU, 4:15. (2) Comp. L. 1396. 
 
 (3) 24 Barb. 341, 348. (4) See 2 Johns. Cas. (2d ed.) 211, '75 note. 
 
 (5) Comp. L. 1396, 1391 (6) Comp. L. 139Y. 
 
480 SPECIAL PEOCEEDINGS. 
 
 ment on verdict, demurrer, or default, he is entitled to a peremp- 
 tory mandamus without delay.(l) 
 
 § 1341. The peremptory mandamus is, in form, very similar 
 to the first writ, omitting the alternative allowing the defendants 
 to show cause, and is issued and served in the same manner ; and 
 it must correspond with the alternative writ in respect to the thing 
 required to be performed.(2) When awarded, an order to that 
 effect is entered, and if costs are given, their allowance should be 
 inserted in the order. When the alternative writ has been regu- 
 larly served, the court may, in its discretion, upon due proof of 
 such service, award a peremptory mandamus without compelling 
 a return.(3) If the peremptory mandamus is not obeyed, the court, 
 on due proof of its service upon the proper parties, and that it has 
 not been obeyed, will grant an attachment against the persons 
 refusing obedience to it.(-i) A nd when the affidavit showed that 
 the defendant had kept out of the way, so that personal service 
 of the writ could not be made upon him, and that the writ had 
 been left at his house, the court ordered him to show cause.(5) 
 The court have set aside a peremptory mandamus, when it was 
 unfairly obtained. (6) 
 
 § 1342. Whenever a peremptory mandamus is directed to any 
 public officer, body, or board, commanding them to perform any 
 public duty specially enjoined upon them by any provisions of 
 law, if it appear to the court that such officer, or any member of 
 such body or board, has, without just excuse, refused or neglected 
 to perform the duty so enjoined, the court may impose a fine, not 
 exceeding two hundred and fifty dollars, upon every such officer, 
 or member of such body or board ; which fine, when colleccad, is 
 to be paid into the state treasury. And the payment of such fine 
 is made a bar to any action for any penalty incurred by such 
 officer, or member of such body or board, by reason of his refusal 
 or neglect to perform the duty so enjoined.(7) 
 
 § 1343. If an order to show cause be made, instead of issuing 
 an alternative mandamus, costs will be awarded, or not, in the dis- 
 cretion of the court, upon the final disposition of the motion. If 
 
 (1) Comp. L. 1^^1. (2) 1 HiU, 50 ; 12 Barb. 446. 
 
 (3) 1 J. B. 64. (4) 2 Gaines' R. St. 
 
 (5) 12 Mod. E. 312 ; and see 2 Johns. Gas. (2d ed.) 217, 79 note. 
 
 (6) 1 Gaines' E. 8. (7) Gomp. L. 1397. 
 
MANDAMUS. 481 
 
 judgment be rendered in favor of the relator, he is entitled to 
 costs in the cases specified in the statute, that is to say, in the same 
 cases in which he would be entitled to them in an action on the 
 case for a false return.(l) In all other cases they are awarded or 
 withheld, as to the court may seem just. 
 
 § 1344. Rule to show cause why mandamus should not issue. 
 
 The Circuit Couet for the county of ■ — . 
 
 The People, ex rel, A. B., ) 
 vs. > 
 
 C. D. ) 
 
 On reading and filing affidavits of A. B., the relator above 
 named, and of M. L,, and on motion of E. ¥., of counsel for relator. 
 Ordered, that 0. D. show cause, at the next term of this court, to be 
 
 held at the court house in , in said county, on the — day 
 
 of next, [or " instant,'"] why a peremptory mandamus should 
 
 not be issued out of the said court, to compel him, the said 0. D., to, 
 &c., [state the particular act required to be done.] And it is farther 
 Ordered, that a copy of this order, together with a copy of the affi- 
 davits aforesaid, and upon which this order is founded, be served 
 
 on the said 0. D., days before the time herein above limited 
 
 for showing cause. 
 
 § 1345. Hide for an alternative mandamus. 
 [Title as in last form.'] 
 
 On reading the affidavits of A. B. and others in this cause, 
 and on motion of E. F., of counsel for the relator. Ordered, that a 
 mandamus issue out of, and under the seal of this court, directed 
 to the said 0. D., commanding him fijrthwith to deliver to the said 
 A. B. all books and papers, and everything appertaining to the 
 
 office of [register of deeds of the county of ,] or that he show 
 
 cause before this court, at, &c., on the — day of next, [or 
 
 ^^ instant,"] why he should not deliver the same. 
 
 § 1346. Alternative mandamus to a corporation to admit an alder- 
 man into office. 
 
 In the name of the People of the State of Michigan. To 
 the Mayor, Aldermen and Commonalty of the 
 city of : 
 
 [seal.] Whereas A. B. was duly elected one of the aldermen 
 
 of the — ward of the said city, to wit., on, &c., at, &c., 
 
 and by the said mayor or recorder of the said city, in 
 
 presence of you, the said aldermen and commonalty, ought to be 
 
 sworn and admitted into the said office of alderman ; nevertheless 
 
 (1) Comp. L. 1396, 1391 
 
 31 
 
482 SPECIAL PROCEEDINGS. 
 
 you, not being ignorant of the premises, but disregarding your 
 duty therein, have not only refused, (though thereto required by 
 the said A. B.) to cause the said A. B. to be sworn and admitted 
 into the said of&ce of alderman, in manner aforesaid, but yet do 
 refuse so to do, in contempt of us, and to the great damage of the 
 said A. B., as by his complaint we have been given to understand : 
 "We, therefore, being ayilling that speedy justice should be done in 
 this behalf, do command and firmly enjoin you that, immediately 
 after the receipt of this writ, you do cause the said A. B. to be duly 
 sworn and admitted into the said of&ce of alderman, or to signify 
 the cause to us why you cannot or will not cause the said A. B. 
 to be so sworn and admitted as aforesaid ; and how you shall have 
 executed this, our writ, make known to our circuit court for the 
 county of , at , on the — day of next. 
 
 Witness the honorable B. F. Gr., circuit judge of the judi- 
 cial circuit, at , this — day of , one thousand eight hundred 
 
 and , E. W., Clerk. 
 
 E. P., Attorney. 
 
 § 1347. Peremptory mandamus. 
 
 [Where a peremptory mandamus has been allowed after an 
 alternative writ, the form will be the same as that of the first writ, 
 adding, after the words " as hy Ms complaint we have been given to 
 understand," the following : " and which complaint we have adjudged 
 to be true, as appears to us of record" omitting also the alternative 
 clause to show cause. When a peremptory writ is granted in the 
 first instance, it may be issued in the following form :] 
 
 In the name op the People of the State of Michigan. To 
 
 the board of supervisors of the county of : 
 
 [seal.] Whereas A. B. lately presented to you a certain 
 
 claim against the said county of , for the sum of 
 
 dollars, which had before then justly accrued, and was then 
 
 justly due to him, the said A. B., for [state what], and then re- 
 quested you to audit and allow the same to him, and to draw your 
 warrant for the amount thereof upon the county treasurer of the 
 
 said county of , and which said claim you ought to have 
 
 audited and allowed to the said A. B., and to have caused your 
 warrant to be drawn upon the said county treasurer of the county 
 of ^ for the amount thereof; and whereas we have been in- 
 formed, by the complaint of the said A. B., that you, not being 
 ignorant of the premises, but disregarding your duty therein, have 
 not only refused (though thereto required by the said A. B., as 
 aforesaid,) to audit and allow the said claim of the said A. B., and 
 to draw your warrant upon the county treasurer for the payment 
 thereof, but that you yet refuse to do so, to the great damage and 
 grievance of the said A. B. : We, therefore, being willing that due 
 and speedy justice should be done to the said A. B. in this behalf, 
 as it is reasonable, do command and firmly enjoin you that, im- 
 
MANDAMUS. ' 483 
 
 mediately after tlie receipt of tHs our writ, you do, without delay, 
 audit and allow to the said A. B. his said claim and demand 
 
 against the said county of , and that you draw your warrant 
 
 therefor upon the county treasurer of the county aforesaid, for the 
 payment thereof, that the same complaint may not, by j'our de- 
 fault, be again repeated to us ; and how you shall have executed 
 this, our writ, make known to us, before our circuit court for the 
 
 said county of , at, &c., on, &c., next, [the return day,] upon 
 
 peril that may fall thereon. 
 
 Witness, &c., [teste as in the alternative writ.] 
 
 § 1348. Answer to alternative writ of mandamus. 
 
 The AJsrswEE op the Mayoe, Aldermen and Commonalty 
 
 OF 
 
 We, the said mayor, aldermen and commonalty of the city 
 
 of , do certify to the circuit court for the county of 
 
 , within mentioned, that the within named A. B. was not 
 
 elected an alderman, as by the within writ is alleged, and, therefore, 
 we could not cause him to be sworn nor admitted, as by that writ 
 we were within commanded. C. D., Mayor, [seal.] 
 
 §" 1349. Verdict in favor of relator, and judgment thereon. 
 
 The People, ex rel. A. B., 
 vs. 
 The Mayor, Aldermen and Com- 
 monalty OF THE CITY OF . 
 
 The parties being in court, by their respective attorneys, 
 ready for trial, thereupon came a jury, to wit., [names of the ju- 
 ry,] good and lawful men, who, being impanneled, tried and sworn 
 well and truly to try the issue between the parties, sat together ; 
 and, after hearing the proofs and allegations of the parties, the 
 arguments of counsel, and the charge of the court, retired from 
 the bar thereof under charge of W. T., an of&cer of the court, 
 duly sworn for that purpose ; and, after being absent for a time, 
 returned into court and say, upon their oath, that the said A. B. 
 was duly elected an alderman, in manner and form as by the writ 
 of mandamus in this cause is alleged ; and they assess the damages 
 which the said A. B. hath sustained, by reason of his not being 
 sworn and admitted into the said office, as alleged in the said writ 
 over and above his costs and charges by him about his suit in this 
 
 behalf expended, at the sum Of dollars ; whereupon the said 
 
 A. B. prays judgment, and also the people's writ of peremptory 
 mandamus, to be directed to the said mayor, aldermen and com- 
 monalty of the city of , commanding them to cause the said 
 
 A. B. to be sworn and admitted into the said ofiice of alderman 
 &c. Therefore, it is considered that the said A. B. do recover 
 against the said mayor, aldermen and commonalty his damages afore- 
 said, by the jurors aforesaid, in form aforesaid assessed, together with 
 his costs and charges aforesaid, to be taxed, and that the said A. B. 
 
484 SPECIAL PEOCEEDINGS. 
 
 have execution thereof. And it is further considered that the peo- 
 ple's writ of peremptory mandamus do forthwith issue, directed to 
 the said mayor, aldermen and commonalty, commanding them, upon 
 pain and peril that shall fall thereon, to cause the said A. B. to be 
 immediately sworn and admitted into the aforesaid oifice of alder- 
 man, according to the command of the former writ of alternative 
 mandamus issued in this cause. 
 
 [For entries of default, interlocutory judgments, references to 
 assess damages, and final judgments thereon, as well as upon 
 demurrer, reference may be had to the forms of corresponding 
 proceedings in ordinary cases, which may be readily varied accord- 
 ing to the nature and circumstances of the case.] 
 
 PROHIBITION. 
 
 § 1350. The writ of prohihiti&n, and the proceedings thereon, 
 are very nearly analogous to the mandamus and the proceedings 
 upon that writ. Thus, where the object of a party is to compel a 
 proceeding to be had, or an act to be done by some person, body 
 or tribunal, to which he is entitled by law, and there is no other 
 specific remedy provided, we have seen that a writ of mandamus 
 is the appropriate remedy. Where, on the contrary, his object is 
 to prohibit or stay the prosecution of any proceedings, the remedy 
 (if any is allowed by law) is by writ of prohibition. {!) The of&ce 
 of the writ- of prohibition is to prevent courts from going beyond 
 their jurisdiction in the exercise of judicial power, and it stays 
 both the court and the party from proceeding in the matter.(2) It 
 is applied for by affidavits, upon motion, in the same manner as 
 writs of mandamus, and commands the court and party to whom 
 it is directed to desist and refrain from any further proceedings in 
 the suit or matter specified therein, until the next term of the 
 court issuing the writ, and the further order of such court thereon, 
 and then to show cause why they should not be absolutely re- 
 strained from any further proceedings in such suit or matter. But 
 writs of prohibition can only be issued out of the supreme court,{3) 
 and cannot, therefore, be treated of here consistently with the 
 plan of the present work. 
 
 INFOKMATION IN THE NATURE OF A QUO WARRANTO. 
 
 § 1351. By the constitution, power is conferred upon the sev- 
 eral circuit courts to issue writs of quo warranto within their 
 respective jurisdictions, concurrently with the supreme court.(4) 
 
 (1) 3 Bl. Com. 110 ; 2 Burr. Pr. 182. (2) 2 HiU, 36T. 
 
 (3) Comp. L. 1397. (4) Const, art. 8, §§ 3, 8 ; Comp. L. 68, 69. 
 
QUO WARRANTO. 485 
 
 A -writ of quo warranto, says Sir Wm. Blackstone,(l) is in the 
 nature of a writ of right for the king, against him who claims or 
 usurps any office, franchise or liberty, to inquire by what authority 
 he supports his claim, in order to determine the right. It lies also 
 in the case of non-user, or long neglect of a franchise, or mis-user, 
 or abuse of it ; being a writ commanding the defendant to show by 
 what warrant he exercises such a franchise, having never had any 
 grant of it, or having forfeited it by neglect or abuse. la case of 
 judgment for the defendant, he had an allowance of his franchise ; 
 but in case of judgment for the king, for that the party is entitled 
 to no such franchise, or hath disused or abused it, the franchise 
 was either seized into the king's hands, to be granted out again to 
 whomsoever he should please ; or, if it were not such a franchise as 
 might subsist in the hands of the crown, there was .merely a judg- 
 ment of ouster to turn out the party who usurped it.(2) 
 
 § 1352. Being in the nature of a writ of right /or the king, the 
 old writ of quo warranto only lay for an usurpation on the rights 
 or prerogatives of the croww;(3) and the judgment was final and 
 conclusive, even against the crown. For these causes, and more 
 especially on account of the delays attending it, it has long since 
 fallen into disuse in England, and introduced the modern method 
 of prosecution, by information filed in the court of king's bench 
 by the attorney-general, in the nature of the writ of qua warranto, 
 wherein the process is speedier, and the judgment not quite so 
 decisive,(4) and which is also applicable to cases not reached by 
 the old writ.(5) The writ of quo warranto has never been used in 
 this state ; but prior to the revision of the statutes in 1846, when 
 the proceedings in cases of informations in the nature of a quo war- 
 ranto were first regulated, and the classes of cases in which such 
 informations might be filed were specified, such information was 
 resorted to as the appropriate remedy in all cases where the writ 
 of quo warranto would lie at the common law. (6) The writ of quo 
 warranto being now regarded as obsolete, the same term is gener- 
 ally applied to the proceeding by information in the nature of a 
 writ of quo warranto ; hence it is assumed that, in conferring power 
 upon the circuit courts to issue such writs, jurisdiction of informa- 
 tions in the nature of a writ of quo warranto, as regulated by the 
 statute then in force, was intended to be conferred upon them by 
 the new constitution. 
 
 (1) 3 Bl. Com. 262. (2) Id. 264. 
 
 (3) 4 T. R. 391 (4) 3 Bl. Com. 263. 
 
 (5) See 4 T. R. 381 ; 2 Stra. 819, 1196. (6) See 1 Doug. Mich. R. 59; 2 id. 359.]— 
 
486 SPECIAL PEOCEEDINGS. 
 
 § 1353. The statute(l) provides that an information, in the 
 nature of a quo warranto, may be filed by the attorney-general 
 against individuals, either in term time or vacation, upon his own 
 relation, or upon the relation of any private party, and without 
 applying to the court for leave, in either of the following cases : 
 
 1. When any person shall usurp, intrude into, or unlawfully 
 hold or exercise any public office, civil or military, or any fran- 
 chise within this state ; or any office in any corporation created by 
 the authority of this state ; 
 
 2. "When any public officer, civil or military, shall have done or 
 suffered any act which, by the provisions of law, shall work a for- 
 feiture of his office ; 
 
 3. When any association, or number of persons, shall act as a 
 corporation within this state, without being legally incorporated. 
 
 § 1354. When the title to an office is in dispute, the only mode 
 of trying it, is by information, in the nature of a quo warranto. 
 The court will not determine the question on a writ of raanda- 
 7nus.{2) This remedy has been resorted to for the purpose of de- 
 termining the right to the office of judge of a court of general 
 sessions ;(3) of judges of a county court ;(4) of commissioner of 
 deeds; (5) of county treasurer ; (6) of police justice; (7) of first 
 judge; (8) of constable; (9) of county clerk; (10) of sheriff ;(11) and 
 in many other similar cases. 
 
 § 1355. The information in such cases is substantially to the 
 following effect : The attorney-general comes into court, and, in 
 behalf of the people of the state, and at the relation of the person 
 claiming the office, gives the court to understand and be informed 
 that the party complained of has usurped and exercised the office 
 without any legal warrant or authority, and that the relator was 
 duly elected to the office, and is rightfully entitled thereto, &c.(12) 
 On filing the information, a summons is issued thereon, which 
 must be served and returned in the same manner as in personal 
 actions ; and upon the return of such summons served, the clerk 
 is required to enter the defendant's appearance.(13) The attorney- 
 
 (I) Comp. 1. 1390. (2) 5 Hill, 616. 
 (3) 2 HiU, 31. (4) 25 Wendell, 9. 
 (5) 24 id. 409. (6) 23 id. 9. 
 
 (7) id. 414. (8) 21 id. 563. 
 
 (9) It id. 81. (10) 2 Mioh. E. 438. 
 
 (II) 5 Mioh. E. 146. (12) Comp. L. 1391. 
 (13) Id. ibid. 
 
QUO WARRANTO. 487 
 
 general may thereupon enter a rule, requiring the defendants to 
 plead to the information filed against them in twenty days after 
 service of a copy thereof, which may be served in the same man- 
 ner and with the like effect as rules upon declarations in personal 
 actions.(l) If the defendant neglect to plead to the information, 
 according to the terms of the rule, his default may be entered as in 
 ordinary cases. The statute provides that an order may be made 
 to enlarge fche time to plead or demur, upon an information in the 
 nature of a quo warranto, by the supreme court, or by a justice 
 thereof, hut hy no other person.{2) 
 
 § 1356. The information being in the nature of a declaration, 
 the defendant may plead or demur to it, and the attorney-general 
 may demur or reply to the plea, as in ordinary cases, prior to the 
 enacting of the Revised Statutes of 1846. When the title to an 
 office is in dispute, the plea sets forth the defendant's claim to the 
 of&ce, as that he was duly elected to it, (stating how,) and is en- 
 titled to hold it, and traversing the usurpation charged in the in- 
 formation. Double pleas are not allowed.(3) In a plea to an 
 information charging individuals with, claiming and using the fran- 
 chise of a body politic and corporate, and acting as a corporation, 
 it was held to be unnecessary to deny the claim, and that it was 
 sufficient to deny the user of the franchise.(4) A repleader will be 
 allowed, if necessary. (5) "When the pleadings are brought to an 
 issue of law or of fact, such issue is brought to argument or trial 
 as in ordinary cases. 
 
 § 1357. Whenever the summons is returned not served, by 
 reason of the defendants or the officers of the corporation not 
 being found within the county, the court will direct a rule to be 
 entered, requiring the defendant, whether an individual or a cor- 
 poration, to appear and plead to such information, within twenty 
 days after the last publication of such rule. A certified copy of 
 _^such rule must be published, four weeks successively, in such paper 
 as the court may direct ; and if the defendant does not appear and 
 plead to the information within the time limited by the rule, upon 
 filing an affidavit of the due publication of such rule, the default 
 of the defendant may be entered in like manner as if the writ had 
 been duly served. (6) 
 
 (1) Comp. L. 1393. (2) Id. 1394. 
 
 (3) 18 Wendell, 601. (4) 16 WendeU, 655. 
 
 (5) 23 Wendell, 537. (6) Comp. I. 1394. 
 
4S8 SPECIAL PEOCEEDINGS. 
 
 § 1358. Judgment is rendered either upon the default of the 
 defendant, or upon hearing or trial of-the issue, as in ordinary per- 
 sonal actions. If the defendant is found or adjudged guilty of 
 usurping or intruding into, or unlawfully holding or exercising 
 any office, franchise or privilege, the judgment will be that the 
 defendant be ousted, and altogether excluded from such office, fran- 
 chise or privilege ; and also that the attorney general, or the relator, 
 if there be one, recover his costs against the defendant. The court 
 may also, in its discretion, impose a fine upon the defendant against 
 whom such judgment is rendered, not exceeding two thousand 
 dollars, which fine, when collected, is required to be paid to the 
 state treasurer.(l) If the information has set forth the name of the 
 person rightfully entitled to the office in question, with an averment 
 of his right thereto, judgment may be rendered upon the right of 
 the defendant, and also upon the right of the party so averred to 
 be entitled, or only upon the right of the defendant, as justice 
 may require.(2) 
 
 § 1359. If judgment be rendered upon the right of the person 
 so averred to be entitled, and it be in favor of such person, he 
 becomes at once entitled, after taking the oath of office, and exe- 
 cuting any official bond that may be required of him by law, to 
 take upon him the execution of the office ; and it is his duty, im- 
 mediately thereafter, to demand of the defendant in such informa- 
 tion, all the books and papers in his custody, or within his power, 
 belonging to such office.(3) If the defendant refuse or neglect to 
 deliver over any such books or papers, pursuant to such demand* 
 he is deemed guilty of a misdemeanor, and summary proceedings 
 may be had, to compel the delivery of sucb books and papers, as 
 provided by chapter 103 of the Eevised Statutes.(4) 
 
 § 1360. The course of proceeding to compel the delivery of 
 books and papers, is by an order to show cause why he should not 
 be compelled to deliver the same, whicb is obtained on the com- 
 plaint of the party entitled, supported by the oath of the complain, 
 ant and such other testimony as he may offer, from any judge of 
 a court of record, or circuit court commissioner for the county in 
 which the party shall reside ; and which is followed, in case cause 
 is not shown, by a commitment to the jail of the county, there to 
 remain until he shall deliver such books and papers, or be other 
 
 (1) Comp. L. 194. (2) Id. 1391. 
 
 (8) Id. ibid. (4) Id. ibid. 
 
QUO WAREANTO. 489 
 
 wise discharged according to law. The complainant may then, if 
 necessary, obtain from the officer before whom the proceedings are 
 had, a search warrant, by which the books and papers appertaining 
 to the office may be seized and brought before such officer, who, 
 on being satisfied that they appertain to the office, is required to 
 cause them to be delivered to the complainant.(l) 
 
 § 1361. The relator, in addition to the recovery of the officcj 
 and the books and papers appertaining to it, upon a judgment es- 
 tablishing his right, is also allowed to recover damages arising from 
 his exclusion from the office. For this purpose, he may, at any 
 time within one year after the rendering of such judgment, make 
 and file a suggestion that he has sustained damages to a certain 
 amount, by reason of the usurpation by the defendant of the office 
 from which such relator has been evicted, and praying judgment 
 therefor. Upon filing such suggestion, a rule to plead is entered) 
 and a copy of the suggestion, with notice of the rule to plead, served 
 on the defendant, in the same manner and with the like effect as 
 upon the filing of a declaration in personal actions. The defendant 
 may plead the general issue to such suggestion, which will consist 
 of a demand of trial of the matters therein set forth, in the same 
 manner as in personal actions ; and all issues of law or fact joined 
 between the parties, must be determined as in personal actions; 
 and if the plaintiff succeed, he will be entitled to recover the dam- 
 q,ges which he may have sustained by reason of such usurpation of 
 his office. (2) 
 
 § 1362. The statute, which was enacted before the new consti- 
 tution, and conferred jurisdiction only upon the supreme court, 
 provides, that if no issue of fact be joined upon such suggestion, or 
 if judgment be rendered against the defendant by default, on de- 
 rdurrer or otherwise, a writ of inquiry shall be issued to the sheriff 
 of the county within which the duties of the office are to be exer- 
 cised, if the same be local, and, if not local, to the sheriff of any 
 county within this state, to assess the damages sustained by the 
 person filing the suggestion, by reason of the premises, or that an 
 order may be entered that such damages be assessed at a circuit 
 court to be held in any county of this state.(8) The practice, how- 
 ever, is, in all cases, when the proceeding is had in the supreme 
 court, to order the assessment of damages to be made in the cir- 
 
 (1) Oomp. L. 1368. (2) Id. 1391, 1392. (3) Id. 1392. 
 
490 SPECIAL PEOCEEDINGS. 
 
 cuit of the proper county, either by the court or a jury, as the par- 
 ties may desire. If the proceedings are had in a circuit court, the 
 damages are assessed in the same manner; a writ of inquiry is 
 never issued for the assessment of damages in any case. 
 
 Judgment is entered, and execution issued for the damages and 
 costs, in the same manner as in personal actions.(l) The provisions 
 of the statute of amendments extend to all informations in the nature 
 of a quo warranto, and to the proceedings thereon. (2) 
 
 § 1363. An information, in the nature of a quo warranto, may 
 also be filed by the attorney general, upon his own relation, or up- 
 on the the relation of any private party, on leave granted, against 
 any corporate body, whenever such corporation shaU : 
 
 1. Offend against any of the provisions of the act or acts cre- 
 ating, altering or renewing such corporation ; or, 
 
 2. Violate the provisions of any law by which such corporation 
 shall have forfeited its charter by mis-user ; or, 
 
 8. Whenever it shall have forfeited its privileges and franchises 
 by non-user; or, 
 
 4. Whenever it shall have done or omitted any acts which 
 amount to a surrender of its corporate rights, privileges and fran- 
 chises ; or, 
 
 5. Whenever it shall exercise any franchise or privilege not 
 conferred upon it by law ; and it is made the duty of the attorney 
 .general, whenever he shall have good reason to believe that the 
 same can be established by proof, to file such information in every 
 case of public interest ; and also in every other case in which satis- 
 factory security shall be given to indemnify the people of the state 
 against all costs and expenses to be incurred thereby.(3) 
 
 § 13 Leave to file such information may be granted by 
 
 the supreme court in term time, or by any justice thereof in 
 vacation, upon the application of the attorney general, but by no 
 other of&cer ; and such court or justice may, in their discretion, 
 direct notice of such application to be given to such corporation 
 or its officers, previous to granting such leave, and may hear such 
 corporation in opposition thereto. Upon such leave being granted, 
 and indorsed upon the information under the hand of the clerk of 
 the court, or of the justice granting the same, the attorney general 
 may forthwith file it with the clerk, and thereupon (unless such 
 corporation appeared by counsel, and were heard in opposition to 
 
 (1) Comp. L. 1392, 1461. (2) Id. 1202. (3) Id. 1392. 
 
QUO WABEANTO. 
 
 491 
 
 the motion for leave,) may issue a summons against such corpora- 
 tion, commanding the sheriff to summon such corporation to 
 appear in the said court, and to answer the said information. But 
 when such corporation have so appeared, and been heard by coun- 
 sel, the court or justice granting leave, may also direct a rule to be 
 entered, requiring the defendants to appear and plead to such in- 
 formation within twenty days after service of a copy thereof and 
 notice of such rule, and in such case it is not necessary to issue a 
 summons. (1) 
 
 § 1365. Upon the return of the summons served, the appear- 
 ance of the defendants is entered, as in the case of an information 
 against an individual, and if not served, an order for appearance is 
 entered and published, in the same manner and with the like effect 
 as in other cases. (2) 
 
 The plea of the defendants sets forth their title to exercise 
 the franchise in question, by stating, in substance, that by or 
 in pursuance of an act of the legislature, they "were created a 
 body politic and corporate, by their corporate name (stating it), 
 and that, by virtue of such act, or by virtue of their compliance 
 with the law under which the corporation was formed, they became 
 and are a body politic and corporate, entitled to use the liberties 
 and franchises granted to them, and particularly the franchise in 
 question (stating it). 
 
 § 1366. If the defendants are found or adjudged guilty, judg- 
 ment of ouster and for costs is given, as against individuals ; and 
 whenever it is found or adjudged that any such corporation has, by 
 any mis-user, non-user or surrender, forfeited its corporate rights, 
 privileges and franchises, judgment is rendered that such corpora- 
 tion be ousted, and altogether excluded from such corporate rights, 
 privileges and franchises, and that the said corporation be dissolved. 
 The court may also,in their discretion, impose a fine, as in cases of 
 informations against ihdividuals.(3) The court may cause the costs 
 of the proceedings to be collected by execution against the persons 
 claiming to be a corporation, or by attachment against the directors 
 or other ofScers of such corporation.(4) 
 
 After judgment has been rendered, further proceedings are 
 had in a court of chancery, which is empowered to restrain the 
 corporation by injunction, and to appoint a receiver of its property 
 
 (1) Comp. L. 1393. (2) Id. 1393, 1394 (3) Id. 1394. (4) Id. ibid. 
 
492 SPECIAL PROCEEDINGS. 
 
 and effects, take an account, and make distribution among cred- 
 itors, &c.(l) 
 
 § 1367. It is further provided by statute, tliat when several 
 persons claim to be entitled to the same office or franchise, an in- 
 formation may be filed against all such persons, in order to try 
 their respective rights to such office or franchise.(2) It is also 
 provided, that whenever, by the provisions of law, any property, 
 real or personal, shall be forfeited to the people of this state, or to 
 any officers for their use, an information for the recovery of such 
 property, alleging the grounds of such forfeiture, may be filed by 
 the attorney-general in the circuit court ; upon which the like pro- 
 ceedings and judgment shall be had, if the information be to 
 recover personal property, as in actions of trover; and if to recover 
 real property, as in actions of ejectment. 
 
 § 1368. Information in the nature of a quo warranto against an 
 individual. 
 
 County of , ss: J. M. H., attorney-general of the 
 
 state of Michigan, who sues for the people of the said state in this 
 
 behalf, comes here into the circuit court for the county of , 
 
 on the — day of , in the year of our Lord one thousand eight 
 
 hundred and , and upon his own relation, [or "upon the 
 
 relation of A. B., of , in the county aforesaid,"] according to 
 
 the form of the statute in such case made and provided, gives the 
 said court here to understand and be informed, that C. D., of the 
 
 said county of , for the space of [one month and upwards] 
 
 now last past, hath held, used and exercised, and still doth hold, 
 use and exercise the office of [judge of probate of the said county 
 
 of ], without any legal election, appointment, warrant or 
 
 authority whatsoever therefor; and the said attorney -general further 
 gives the court here to understand and be informed, that at an 
 election for [state what offices], held, &c., [state the time and place 
 of the election], the said A. B. was duly elected and chosen [judge 
 
 of probate] of the said county of , and that the said A. B. 
 
 hath ever since been, and still is rightfully entitled to hold, use 
 and exercise the said office; which said office of [judge of pro- 
 bate] of the county of , aforesaid, the said C. D., during all 
 
 the time aforesaid, [or " since the time of said election,"] hath usurped, 
 intruded into and unlawfully held and exercised, and still doth 
 usurp, intrude into and unlawfully hold and exercise, to wit., at 
 the county aforesaid, in contempt of the people of the state of 
 Michigan, and to their great damage and prejudice ; whereupon 
 the said attorney-general prays the advice of the court here in the 
 premises, and for due process of law against the said C. D., in this 
 behalf to be made, to answer to the said people, by what warrant 
 
 (1) Comp. L. 1395. (2) Id. 1394. 
 
QUO WARRANTO. 493 
 
 he claims to hold, use, exercise and enjoy the said office of [judge 
 
 of probate] of the said county of . 
 
 J. M. H., Attorney-general. 
 
 § 1369. Information against a corporation. 
 
 County of , ss: B. M., attorney -general of the 
 
 state of Michigan, who sues for the people of the said state in this 
 
 behalf; comes here into the circuit court for the county of , 
 
 on the — day of , in the year of our Lord one thousand 
 
 eight hundred and , and for the said people, gives the said 
 
 court here to understand and be informed, that the [president, 
 
 directors and company of the ■ bank], to wit., at , in the 
 
 county aforesaid, for the space of years now last past and 
 
 upwards, have used, and still do use, without any warrant, grant 
 or charter, the following liberties, privileges and franchises, to 
 wit., that of being a body politic and corporate in law, fact and 
 name, by the name of [the president, directors and company of 
 
 the bank], and by the same name to plead and be impleaded, 
 
 to answer and be answered unto ; and also the following liberties, 
 privileges and franchises, to wit., that of issuing and putting into 
 circulation as money, in and by the name aforesaid, bank-bills 
 payable in money, and of discounting bills of exchange and prom- 
 issory notes in and by the name aforesaid: all which said liberties, 
 privileges and franchises the said president, directors and com- 
 pany of the bank aforesaid, during all the time aforesaid, 
 
 have usurped, and still do usurp upon the said people, to their 
 great damage and prejudice ; whereupon the said attorney-general 
 prays the advice of the said court in the premises, and due process 
 
 of law against the president, directors and company of the 
 
 bank aforesaid, in this behalf to be made, to answer to the said 
 people, hy what warrant they claim to have, use and enjoy the 
 liberties, privileges and franchises aforesaid. 
 
 E. M., Attorney-general.(l) 
 
 [Indorsement of leave to file information.] 
 
 Supreme Court, ss: On motion of E. M., attorney-general, 
 leave is granted by the supreme court to file the within informa- 
 tion. [And the defendants therein named, having appeared before 
 the said court by their counsel, and been heard in opposition to 
 the motion for leave to file the same, it is Ordered, that on filing 
 the said information, a rule be entered, requiring the defendant to 
 appear and plead thereto within twenty days after service of a 
 copy thereof and notice of such rule.] N. H., Clerk.(2) 
 
 § 1370. Summons upon information. 
 In the name of the People op the State of Michigan. To 
 
 the sheriff op the county op : 
 
 [seal.] We command you to summons the president, direct- 
 ors and company of the bank, to be and appear 
 
 in our circuit court for the county of , at the court house 
 
 (1) Comp. L. 1392. (2) Id. 1393. 
 
494 SPECIAL PROCEEDINGS. 
 
 in , on the — day of next, [or " mston^,"] to answer a 
 
 certain information filed therein by E. M., attorney-general of the 
 state of Michigan, in behalf of the people of the said state, against 
 
 the said president, directors and company of Ihe bank, for 
 
 usurping upon the said people certain liberties, privileges and 
 franchises therein specified. And have you then there this writ. 
 
 Witness, &c., [tested like other writs.] R. 0., Clerk. 
 
 E. M., Attorney-general. (1) 
 
 § 1371. Suggestion of damages on judgment against an itidividual 
 for usurping an office. 
 
 The Circuit Court for the county of . 
 
 J. M. H., Attorney-general, 
 
 ex rel. A. B., 
 
 vs. 
 
 CD. 
 
 And now at this day, to wit., the — day of , in the 
 
 year one thousand eight hundred and , before the said circuit 
 
 court for the county of , comes the said A. B., by E. F., his 
 
 attorney, and, according to the form of the statute in such case 
 made and provided, suggests to the said court, and gives the said 
 court now here to understand and be informed that he, the said 
 
 A. B., hath sustained damages to the amount of dollars, by 
 
 reason of the usurpation, by the said C. D., of the said ofiice of 
 
 [judge of probate of the said county of J, as is mentioned 
 
 and set forth in the information filed in this cause. Wherefore 
 the said A. B. prays judgment for his damages aforesaid, accord- 
 ing to the form of the statute in such case made and provided. 
 
 E. E., Attorney for A. B.(2) 
 
 common law certiorari. 
 
 § 1372. In the exercise of the supervisory powers of the cir- 
 cuit courts over all inferior courts and tribunals, conferred upon 
 them by the constitution, they are also authorized to issue writs of 
 certiorari The ofBce of a writ of error, is to remove judgments 
 from inferior courts of record, proceeding according to the course 
 of the common law, to a superior court for review. But for the 
 purpose of reviewing the final adjudications of inferior courts not 
 of record, and of special tribunals, commissioners, magistrates and 
 officers exercising judicial powers affecting the property or rights 
 of the citizen, and who act in a summary way, or in a new course 
 different from the common law, another writ has been provided 
 
 (1) Comp. L. 1391, 1393. (2) Comp. L. 1391. 
 
COMMON LAW CERTIORABI. 
 
 495 
 
 by tlie common law, and recognized by the constitution and stat- 
 ntes, termed a certiorari{l) The writ of certiorari is also used as 
 an original or auxiliary remedy in other cases ;(2) but it is only 
 in its office of removing final adjudications, for review in a circuit 
 court, that it will now be considered. In this oface or use of the 
 writ, it possesses many of the qualities of a lurit of error, but it 
 differs from that writ in an important particular, in which it more 
 nearly resembles the writ of prohibition, which is, that it contem- 
 plates and is founded upon want of jurisdiction, or usurpation of 
 power on the part of the court, officer or body complained of. Its 
 principal office is to keep inferior magistrates within the compass 
 of their power.(3) Mere error, however considerable, if there be 
 no usurpation, is not, in general, ground for issuing the writ.(4:) 
 
 § 1373. The writ of certiorari is also one of the modes of 
 appeal from justices' courts to the circuit courts, in which cases, 
 as regulated by the statute, it performs all the functions of a writ 
 of error. (5) ■* 
 
 The common law writ of certiorari lies to review the acts of offi- 
 cers of municipal corporations, if plainly judicial in their character ; 
 but it is otherwise in regard to mere corporate or ministerial acts. (6) 
 It was held to be the appropriate remedy for reviewing the action 
 of a circuit court in an attachment case under the Eevised Statutes 
 of 1838, when the affidavit was insufficient, and the court, without 
 authority, allowed a new one to be filed ;(7) to review the judg- 
 ment of a justice of the peace, in a summary proceeding by com- 
 plaint under the by-laws of a village ;(8) to review the decision of 
 a notary public, acting as commissioner, in dissolving an attach- 
 ment, the law conferring the power to act in such case being 
 declared unconstitutional; (9) and to review the decision of a 
 county court, in a case arising under chapter 42 of the Eevised 
 Statutes, relating to the maintenance of illegitimate children. (10) 
 But it has been held that it will not lie directly to review the 
 decision of persons acting as commissioners in the laying out of a 
 highway, though it be shown that they omitted to take the oath 
 
 (1) 2 Tidd's Pr. 1051 ; 25 Wendell, ISt ; 2 Hfll, 9 ; and see 1 Dong. Mich. E. 319 ; 
 2 id. 358 ; 1 Mich. R. 504; 6 id. 137. 
 
 (2) Comp. L. 1085, 1102, 1374. (3) 24 Wendell, 253. 
 
 (4) 5 Hill, 264; 20 Wendell, 145, 148 ; 23 id. 277. 
 
 (5) Comp. L. 1085 to 1088. (6) 2 Hill, 14; Id. 9.'' 
 (7) 1 Doug. Mich. R. 319. (8) 2 id. 358. 
 
 (9) 5 Mich. R. 409. (10) 1 Mich. E. 504. 
 
496 
 
 SPKOIAL PROCEEDINGS. 
 
 of office within the time limited by law ;(1) nor to remove and cor- 
 rect the proceedings of a board of supervisors in assessing county 
 and town taxes ;(2) nor to a ministerial officer, for the purpose of 
 examining his right to proceed upon process under which he is 
 acting. (3) 
 
 § 1374. A certiorari is a judicial writ, issuing out of the supreme 
 court, or the proper circuit court, under its seal, directed to the 
 judge, officer or other party complained of, reciting the proceedings 
 in question, and the desire of the people to he certified {certiorari) 
 of them, and commanding the officer, or other party to whom it is 
 directed, to certify and return the record or proceedings to the court 
 from which the writ issues, on a specified day, (the return day,) so 
 that the court may cause to be done in the case what of right 
 ought to be done, &c., and is tested and signed like ordinary pro- 
 This writ does not issue ex debito justitice, but, under the 
 
 cess. 
 
 statute,(4) may be allowed by any justice of the supreme court, or 
 circuit coiirt commissioner ; or, if issued out of a circuit court, upon 
 application to such court by motion, and a rule entered thereon, 
 granting leave. The motion, whether made to an officer out of 
 court, or to the court in term time, must be founded upon affidavit 
 of the necessary facts, and may be made ex parte, without notice, 
 unless the court or officer to whom application is made shall deem 
 a notice necessary, and direct it to be given, in which case oppos- 
 ing affidavits may be read.(5) 
 
 § 1375. Ko writ can be issued to correct any proceedings, unless 
 it be brought within the same time after such proceedings have 
 been had as is limited for bringing a writ of error upon a judg- 
 ment, (which is two years,) except in certain specified cases of 
 disability.(6) 
 
 The motion being granted and rule entered, the writ may then 
 be issued in such form as the circumstances of the case may re- 
 quire. It should distinctly name the parties aggrieved, and set 
 forth the cause of complaint,(7) and, when served, should be ac- 
 companied with a certified copy of the rule of allowance, or a 
 certificate of the clerk that the writ was duly allowed.(8) It must 
 
 (1) 1 Hill, 61i. 
 
 (3) 1 Hill, 195. 
 
 (5) See 2 Burr. Pr. 196. 
 
 (1) 23 -Wendell, 211; 24 id. 249. 
 
 (2) 1 id. 195 ; 15 Wendell, 198. 
 (4) Comp. L. 1401. 
 (6) Comp. L. 1400, 1401, 1402. 
 (8) 19 WendeU, 640. 
 
COMMON LAW CERTIOEARI. 497 
 
 be indorsed in tlie same cases, and with the like effect as original 
 ■writs, by some responsible person as surety for costs.(l) 
 
 § 1376. The writ is obeyed by returning and certifying the 
 record of the proceedings of the inferior tribunal, or the entries 
 made by it in the nature of a record. A common law certiorari 
 removes nothing more, and if the return contains anything more, 
 it will be rejected or disregarded pro tanto.{2) The writ cannot, 
 in general, bring up for review the evidence, and the rulings and 
 decisions of the inferior tribunal thereon, but only the record. 
 When there is technically no record, the written proceedings and 
 orders, or a history of the proceedings and the written orders, which 
 are in the nature of records, are to be certiiied.(3) The facts or 
 evidence before the inferior tribunal are not to be returned, except 
 so far as may be necessary to enable the court to determine upon 
 a point of jurisdiction, or other question of law arising in the course 
 of the proceedings.(4) 
 
 If the writ has been issued in an improper case, the defendant 
 may move to quash it, and the court will quash it, even after a 
 return and a hearing upon the merits. (5) 
 
 § 1377. On the argument, the court will examine the return 
 no further than is necessary to ascertain if the inferior tribunal has 
 acted within the limits of its jurisdiclion.(6) If a want of jurisdic- 
 tion appear on the return of the writ, the proceedings will be re- 
 versed without any assignment of errors, such assignment not being 
 applicable to a common law ceriiorari.{7) The party prevailing on 
 a writ of certiorari in any proceeding of a civil nature, is entitled 
 to his costs against the adverse party in all cases ; and in case such 
 writ appear to have been brought for the purpose of delay or vex- 
 ation, the court may award double costs to the prevailing party.(8) 
 
 § 1378. Enles have been adopted by the supreme court for 
 regulating the practice on writs of certiorari in that court to some 
 extent, but these rules are not made applicable to the proceed- 
 ings in the circuit courts.(9) The most important change made 
 by these rules, is that which requires the party suing out the 
 writ, to file a special assignment of errors within ten days 
 
 (1) Comp. L. 1402. (2) 2 Hill, 9. (3) 25 "Wendell, 168. 
 
 (4) 15 id. 452. (5) 2 Hill, 9; 1 How. Pr. R. 141. (6) 2 Hill, 9. 
 
 (7) 20 Wendell, 625 ; 1 Cowen, 28, note (a) ; 24 Wendell, 249. 
 
 (8) Comp. L. 1402. (9) Supreme Court Rules 10, 11, 12, 15, 16, lY, 18, 20. 
 
 32 
 
498 SPECIAL PEOOEEDINGS. 
 
 after the return day mentioned in the writ, and providing that 
 no judgment or proceeding shall be reversed or annulled for 
 any other defect or error than such as shall be thus specially as- 
 signed.(l) Until otherwise provided by general rule, the practice 
 in the circuit courts will continue as at common law, or be regu- 
 lated in each case, so far as may be necessary, by special rules. 
 
 § 1879. Certiorari to review the judgment of a justice of the peace, 
 on complaint af an overseer of highways^ for neglect to worh on high- 
 way, &c. 
 
 In the name of the People of the State of Michigan. To 
 "3. E. B., ONE of the Justices of the Peace op the 
 
 TOWNSHIP OF , IN THE COUNTY OF : 
 
 [SEAL.^] We being willing, for certain causes, that our circuit 
 
 •court for; the said county of , should be certified 
 
 of a certain judgment lately rendered by you against A. B., in 
 favor of the people of the state of Michigan against C. D., for the 
 
 sum of dollars and — cents, upon the complaint of 0. C. M., 
 
 overseer of highways of road district, number , in the township 
 
 of , in said county of , for and on account of a certain 
 
 supposed default, refusal or neglect of him, the said C. D., mentioned 
 in the said complaint : Do therefore command you, that the said 
 judgment, together with the said complaint, and the testimony given, 
 and offered to be given, on the hearing thereof, with your decision 
 thereon, with all things touching and concerning the same, by 
 whatever names the parties thereto are called, before our circuit 
 
 court for the county of , at , in said county, on the — 
 
 day of — • — next, you send under your hand, together with this 
 writ, that our said court may further thereupon cause to be done 
 therein what of right ought to be done. 
 
 "Witness, &c.[tested'in the usual form.j 
 
 HABEAS CORPUS AND CERTIOBABI TO INQUIRE INTO CAUSE OF 
 
 DETENTION. 
 
 § 1380. The writ of habeas corpus has been denominated the 
 most celebrated writ in the English law; (2) and is justly regarded 
 by us, as well as by those with whom it originated, as a great 
 bulwark of personal liberty ; and it has been the especial care of 
 the legislatures of most, if not of all the states of the federal union, 
 to make it easily accessible to all, and efficient to accomplish the 
 end for which it was designed. The legislature of this state, avail- 
 
 (1) Supreme Court Rule 12. (2) 3 Bl. Com. 129. 
 
HABEAS CORPUS AND CERTIOEARI. 499 
 
 ing itself of the wisely-directed labors of those of older and more 
 populous states, with such modifications as experience indicated 
 to be necessary, has prescribed, with great minuteness and particu- 
 larity, the circumstances under which the writ may be demanded, 
 and the mode of proceeding thereupon, so that little more can be 
 done here than to repeat the provisions of the statute upon the 
 subject. 
 
 § 1381. Every person committed, confined or restrained of his 
 liberty within this state, for any criminal or supposed criminal 
 matter, or under any pretence whatsoever, except in the cases 
 otherwise specified in the statute, may prosecute a writ of habeas 
 corpus or of certiorari, according to the provisions therein contained, 
 to inquire into the cause of such imprisonment or restraint.(l) The 
 cases excepted by the statute, of persons who are not entitled to 
 prosecute such writ, are as follows : 
 
 1. Persons committed or detained by virtue of any process 
 issued by any court of the United States, or any judge thereof, in 
 cases where such courts or judges have exclusive jurisdiction under 
 the laws of the United States, or shall have acquired exclusive 
 jurisdiction by the commencement of suits ia such courts ; 
 
 2. Persons committed for treason or felony, or suspicion thereof, 
 or as accessories before the fact to a felony, when the cause is 
 plainly and specially expressed in the warrant of commitment ; 
 
 3. Persons convicted, or in execution, upon legal process, civil 
 or criminal ; 
 
 4. Persons committed on original process in any civil action in 
 which they were liable to be arrested and imprisoned, unless when 
 excessive and unreasonable bail is required. (2) 
 
 § 1882. Imprisonment, within the meaning of the law, may be 
 either by some private person acting without process, under pre- 
 tence of some private right, or by one claiming to act under due 
 process of law.(3) When the contest was between a father and a 
 master to whom children had been indented, it was held that the 
 latter might have the writ to bring up the children, when in the 
 custody of their father.(4) It will lie also in behalf of a parent or 
 guardian, for the custody and deliverance of a child or wArd.(5) It 
 also lies at the instance of a husband for the deliverance of the 
 
 (1) Comp. L. 1372, 13'!3. (2) Id. 1373, §8. 
 
 (3) 3 Hill, 651, note. 
 
 (4) 1 Sand. S. 0. K. 672 ; and see 8 J. E. 328. 
 
 (5) 8 Paige, 47; 25 WendeU, 64; 22 Barb. 178; 4 KernaD,.575. 
 
500 SPECIAL PEOCEEDINGS. 
 
 wife.(l) In these and the like cases, the right to the writ exists at 
 the common law. (2) 
 
 § 1383. Application for such writ must be made by petition, 
 signed by the party for whose relief it is intended, or by some 
 person in his behalf, and addressed to the court or officer to whom 
 ■^he application is intended to be made, as follows : 1. To the 
 supreme court during its sitting ; or, 2. During any term or vaca^ 
 tion of the supreme court, to any one of the justices of the supreme 
 court, or any person who may be authorized to perform the duties 
 of a justice of the supreme court at chambers, circuit court com- 
 missioner, or judge of a circuit court, being or residing within the 
 county where the prisoner is detained; or, if there be no such 
 of&cer within the county, or if he be absent, or for any cause be 
 incapable of acting, or having refused to grant such writ, then to 
 some officer having such authority, residing 'in any adjoining 
 county. But if the application be made to any officer not residing 
 within the county where the prisoner is detained, proof must be 
 made to such officer by the affidavit of the party applying, or by 
 other sufficient evidence, that there is no such officer in such county 
 authorized to grant such writ, or, if one reside there, that he is 
 absent, or, for some cause to be specially set fortji, is incapable of 
 acting, and if such proof be not produced, the application must be 
 denied.(3) Application may also be made for such writ to the 
 circuit court for the county in which the party is imprisoned, at 
 any term thereof. (4) 
 
 § 1384:. The application for the writ may be made by the per- 
 son imprisoned, or by his agent or attorney, or by any friend of 
 the prisoner who has knowledge of the necessary facts to entitle 
 him to the writ, and this, too, without any express or other 
 authority for that purpose. (5) In cases of infants, the court will 
 generally allow any one to appear and litigate for them in good 
 faith, as next frierd.(6.) And when an infant child is illegally 
 detained from the father, he may properly apply for a writ of 
 habeas corpus in his own right, and without the privity of the 
 child. (7) And when the supreme court or any justice thereof, or 
 any judge of a circuit court, shall have evidence, from any judicial 
 proceeding before him, that any person within the county where 
 
 (1) 1 Duer, 714, 715. (2) Id. (3) Comp. L. 1373. 
 
 (4) See Const. Art. 6, § 8. (5) 3 HUl, 654, note. (6) Id. 
 
 (7) 3 HiU, 399. 
 
HABEAS COEPUS AND CEKTlORARI. 501 
 
 such court or officer stall be, is illegally confined and restrained of 
 his liberty, it is the duty of such court or officer to issue a writ of 
 habeas corpus or certiorari, although no petition be presented, or 
 application made for such writ.(l) 
 
 § 1385. The petition must state, in substa ] < 
 
 1. That the person in whose behalf the writ is applied for, is 
 imprisoned or restrained of his liberty, the officer or person by 
 whom he is so confined or restrained, and the place where, naming 
 both parties, if their names be known, and describing them, if 
 their names be not known ; 
 
 2. That such person is not committed or detained by virtue of 
 any process, judgment, decree or execution specified in the eighth 
 section of chapter one hundred and thirty -four of the Eevised 
 Statutes of 1846 ; 
 
 3. The cause or pretence of such confinement or restraint, ac- 
 cording to the best of the knowledge and belief of the party ; 
 
 4. If the confinement be by virtue of any warrant, order or pro- 
 cess, a copy thereof must be annexed ; or it must be averred that 
 for some sufficient reason a demand of such copy could not be 
 made ; or th&,t such demand was made, and that such copy was 
 refused ; 
 
 5. If the imprisonment be alleged to be illegal, the petition must 
 also state in what the alleged illegality consists. 
 
 6. It must specify whether the party applies for the writ of 
 habeas corpus, or for the writ of certiorari ; and, 
 
 7. It must be verified by the oath of the party making the ap- 
 plication. (2) 
 
 The refusal or neglect of any officer, for six hours after demand 
 and tender of his fees, to deliver a copy of the warrant, &c., under 
 which he detains the prisoner, subjects him to two hundred dollars 
 damages.(3) ^ 
 
 § 1386. Any court or officer empowered to grant any writ ap- 
 plied for under the statute, to whom such petition shall be presented, 
 is required to grant such writ without delay, unless it shall appear 
 from the petition itself, or from the documents annexed, that the 
 party applying therefor is, by the provisions of the statute, pro 
 hibited from prosecuting such writ.(4) And if any court or officer 
 authorized by the statute to grant writs of habeas corpus or certiorari, 
 to inquire into the cause of any imprisonment or detention, shall 
 
 (1) Comp. L. 1375. (2) Id. 1374. (3) Id. 1383, 1384. (4) Id. ibid. 
 
502 SPECIAL PROCEEDINGS. 
 
 refuse to grant such writ -when legally applied for, every member 
 of such court -who shall have assented to such refusal, and every 
 such officer thereby becomes liable to the party aggrieved, in one 
 thousand dollars damages. (1) 
 
 § 1387. The statute prescribes the forms of these writs, and 
 provides that they shall not be disobeyed for any defect of form, 
 but that they shall be sufficient : 
 
 1. If the person having the custody of the prisoner be designated, 
 either by his name of office, if he have any, or by his own name ; 
 or, if both such names be unknown or uncertain, he, may be de- 
 scribed by an assumed appellation ; and any one who may be 
 served with the writ shall be deemed the person to whom it is 
 directed, although it may be directed to him by a wrong name or 
 description, or to another person ; 
 
 2. If the person imprisoned or restrained, or who is directed to 
 be produced, be designated by name ; or, if his name be uncertain 
 or unknown, if he be described in any other way so as to designate 
 the person intended. (2) 
 
 § 1388. If issued by a court, the writ must be sealed with the 
 seal of the court by which it is awarded ; if awarded by any officer 
 out of court, it must be under the seal of the court before which it 
 is made returnable, or if it be returnable before some body other 
 than a court of record, or before an officer out of court, it must be 
 under the seal of the supreme court, or of the circuit court for 
 the county in which it is issued.(3) It is tested on the day when 
 it issues, and may be made returnable at a day certain, or forth- 
 with, as the case may require. It must be indorsed with a certi- 
 ficate of the allowance thereof, and with the date of such allow- 
 ance; which indorsement, if the writ be awarded by a court, must be 
 signed by the chief justice or other presiding officer of such court ; 
 and if awarded by any officer out of court, it must be signed by 
 such officer ; and if allowed upon the application of the attorney 
 general or a prosecuting attorney, the indorsement must state that 
 it was allowed upon such application. (4) 
 
 § 1389. Every person allowing a writ oi habeas corpus directed 
 to any person other than a sheriff, coroner, constable or marshal, 
 may, in his discretion, require as a duty to be performed, in order 
 to render the service thereof effectual, that the charges of bringing 
 
 (1) Comp. L. 13'75, 1376. (2) Id. IStS. (3) Id. 1384. (4) Id. 1384. 
 
HABEAS CORPUS AND CERTIORARI. 503 
 
 up such prisoner shall be paid by the petitioner ; and in such case 
 such officer is required to specify, in the allowance of the writ, the 
 amount of such charges so to be paid, which must not exceed the 
 fees allowed by law to sheriffs for similar services. 
 
 The writ can only be served by an elector of some county within 
 this state ; and the service of habeas corpus is not deemed complete 
 unless the party serving it shall tender to the person in whose cus- 
 tody the prisoner may be, if such person be a sheriff, coroner, con- 
 stable or marshal, the fees allowed by law for bringing up such 
 prisoner, nor, when such person is not such officer, until the sum, 
 if any, specified in the certificate of allowance, be' paid by the 
 petitioner.(l) 
 
 § 1390. Every such writ of habeas corpus or certiorari, issued in 
 pursuance of the statute, may be served by delivering the same to 
 the person to whom it is directed ; or, if he cannot be found, it may 
 be served by being left at the jail or other place in which the pris- 
 oner may be confined, with any under-officer, or other person of 
 proper age, having charge, for the time, of such prisoner. And if 
 the person upon whom the writ ought to be served conceal him- 
 self, or refuse admittance to the party attempting to serve such 
 writ, it may be served by fixing it in some conspicuous place on 
 the outside either of his dwelling house or of the place where the 
 party is confined. 
 
 § 1391. It is the duty of every sheriff, coroner, constable or mar- 
 shal, upon whom a writ of habeas corpus shall be served, whether 
 such writ be directed to him or not, upon payment or tender of the 
 charge s allowed hy law, to obey and return such writ according to 
 the exigency thereof; and it is the duty of every other person upon 
 whom such writ shall be served, to obey and execute such writ ac- 
 cording to the command thereof, without requiring the payment of 
 any charges, unless the payment of such charges shall have been 
 required by the officer issuing such writ. And it is in like manner 
 the duty of the person upon whom any writ of certiorari, issued 
 pursuant to the statute, shall be served, upon payment or tender of 
 the fees allowed by law for making a return to such writ, and for 
 copying the warrant or other process to be annexed thereto, to 
 obey and return the same according to the exigency thereof. But 
 if the writ of habeas corpus was sued out by the attorney general 
 or a prosecuting attorney, it is not necessary to pay or tender any 
 fees.(2) 
 
 (1) Comp. L. 1384, 1385. (2) Id. 1364, 1385. 
 
504 SPECIAL PROCEEDINGS. 
 
 § 1392. If the writ of habeas corjms be returnable at a day cer- 
 tain, such return must be made, and the prisoner produced at the 
 time and place specified therein ; if it be returnable forthwith, and 
 the place be within twenty miles of the place of service, such re- 
 turn must be made, and the prisoner produced within twenty-four 
 hours ; and the like time is allowed for every additional twenty 
 miles.(l) But whenever, from the sickness or infirmity of the per- 
 son directed to be produced by any writ of habeas corpus, such 
 person cannot, without danger, be brought before the court or 
 of&cer before whom the writ is made returna'ble, the party in whose 
 custody he is may state that fact in his return, verifying the same 
 by his oath ; and if such court or of&cer be satisfied of the truth 
 of such allegation, and the return be otherwise sufiScient, they are 
 required to proceed upon such return, and to dispose of the matter 
 jn the same manner as if a writ of ceriiorari had been issued, instead 
 of a writ of habeas corpus.{2) 
 
 § 1393. The person upon whom any writ of habeas corpus or 
 ceriiorari shall have been duly served, is required to state, in his 
 return, plainly and unequivocally : 
 
 1. Whether he have or have not the party in his custody, or un- 
 der his power or restraint ; 
 
 2. If he have the party in his custody or power, or under his 
 restraict, the authority and true cause of such imprisonment or 
 restraint, setting forth the same at large ; 
 
 3. If the party be detained by virtue of a writ, warrant or other 
 written authority, a copy thereof must be annexed to the return, 
 and the original must be produced and exhibited on the return of 
 the writ to the court or ofi&cer before whom the writ is returnable : 
 
 4. If the person upon whom such writ shall have been served, 
 shall have had the party in his power or custody, or under his 
 restraint, at any time prior or subsequent to the date of the writ, 
 but has transferred such custody or restraint to another, the return 
 must state particularly to whom, at what time, for what cause, and 
 by what authority such transfer took place. The return must be 
 signed by the person making it ; and, except when such person shall 
 be a sworn public officer, and shall make his return in his official ca- 
 pacity, it must be verified by his oath. If the writ of habeas corpus 
 be issued, the person or ofi&cer on whom it has been served, must 
 also bring the body of the person in his custody, according to the 
 command of the writ, except in case of the sickness of such person, 
 as before mentioned.(3) 
 
 (1) Comp. L. 1385, 1386. (2) Id. 1380. (3) Id. 1316. 
 
HABEAS CORPUS AND CEETIOEAEI. 505 
 
 § 1394. If the person upon whom such writ oi habeas corpus ox 
 certiorari shall have been duly served, shall refuse or neglect to obey 
 the same by producing the party named in any such writ of habeas 
 corpus, and making a full and explicit return to every such writ of 
 habeas corpus or certiorari within the tim e therefor limited by the 
 statute, and no sufficient excuse be shown for such refusal or 
 neglect, it is the duty of the court or of&cer before whom such 
 writ shall have been made returnable, upon due proof of the serv- 
 ice thereof, forthwith to issue an attachment against such person. 
 Such attachment may be directed to the sheriff of any county 
 within this state, commanding him forthwith to apprehend such 
 person, and bring him before such court or ofiicer; and on being 
 so brought before the court or of&cer, such person will be commit- 
 ted to close custody, in the jail of the county in which such court 
 or officer shall be, without being allowed the liberties thereof) 
 until he shall make return to such writ, and comply with any 
 order which may be made by such court or ofiicer, in relation to 
 the person for whose relief such writ shall have been issued. (1) 
 
 § 1395. If a sheriff of any county shall have neglected to return 
 such writ of habeas corpus or certiorari, the attachment may be 
 directed to any coroner or other person to be designated therein, 
 who will have full power to execute the same ; and such sheriff, 
 upon being brought up, may be committed to the jail of any 
 county other than his own. The court or officer by whom any 
 such attachment may be issued, may also, at the same time, or 
 afterwards, issue a precept to the same sheriff or other person to 
 whom such attachment shall have been directed, commanding him 
 to bring forthwith before such court or ofiicer the party for whose 
 benefi.t such writ of habeas corpus or certiorari shall have been 
 allowed ; who will thereafter remain in the custody of such sheriff 
 or person, until he shall be discharged, bailed, or remanded, as 
 such court or ofiicer shall direct ; and in the execution of such 
 attachment or precept, or either of them, such sheriff or other 
 person to whom they are directed, may call to his aid the power 
 of the county as in other cases. (2) 
 
 § 1396. The court or ofiicer before whom the party shall be 
 brought on such writ of habeas corpus, is required, immediately 
 after the return thereof, to proceed to examine into the facts con- 
 tained in the return thereto, and into the cause of the confinement 
 
 (1) 1 Comp. L. 13Y6, isn. (2) Id. ISVT. 
 
506 SPECIAL PEOOEEDINGS. 
 
 or restraint of such party, whether the same shall have been for 
 any criminal or supposed criminal matter or not. If no legal 
 cause be shown for the imprisonment or restraint, or for the con- 
 tinuation thereof, such court or officer will discharge the party at 
 once from the custody or restraint under which he is held ; but it 
 is the duty of the court or officer forthwith to remand such party, 
 if it appear that he is detained in custody, either : 1. By virtue of 
 process issued by any court or judge of the United States, in a 
 case where such court or judge has exclusive jurisdiction ; or, 2. 
 By virtue of the final judgment or decree of any competent court 
 of civil or criminal jurisdiction, or of any execution issued upon 
 such judgment or decree ; or, 3. For any contempt specially and 
 plainly charged in the commitment, by some court, officer or body, 
 having authority to commit for the contempt so charged ; and, 4. 
 That the time during which such party may be legally detained 
 has not expired. 
 
 § 1397. If it appear, on the return, that the prisoner is in custody 
 by virtue of civil process from any court legally constituted, or 
 issued by any officer in the course of judicial proceedings before 
 him, authorized by law, such prisoner can only be discharged in 
 one of the following cases : 1. When the jurisdiction of such court 
 or officer has been exceeded, either as to matter, place, sum or 
 person ; 2. Where, though the original imprisonment was lawful, 
 yet, by some act, omission or event which has taken place after- 
 wards, the party has become entitled to be discharged ; 3. Where 
 the process is defective in some matter of substance required by 
 law, rendering such process void ; 4 Where the process, though 
 in proper form, has been issued in a case not allowed by law ; 
 §. Where the person having the custody of the prisoner, under 
 such process, is not the person empowered by law to detain him ; 
 or, 6. When the process is not authorized by any j udgment, order 
 or decree of any court, nor by any provision of law.(l) But no 
 court or officer has power, on the return of a writ of habeas corpus 
 or certiorari, issued under the statute, to inquire into the legality 
 or justice of any process, judgment, decree or execution specified 
 in the eighth section of the chapter above referred to ; nor into the 
 justice or propriety of any commitment for a contempt, made by 
 any court, officer or body according to law, and specially or plainly 
 charged in such commitment. (2) 
 
 (1) Comp. L. 13T8 ; 3 Hill, 661, note. 
 
 (2) Comp. L. 1378. See 2 Park. Cr. B. 650; 16 Barb. 363; 5 Hill, 16l ; 3 Hill, 
 651, 662, note. 
 
HABEAS CORPUS AND CEETIOEAEI. 507 
 
 § 1398. When there are two causes of imprisonment set forth 
 in the return, one valid and the other invalid, the court may, on 
 habeas corpus, discharge as to the invalid cause, and remand the 
 prisoner as to the other.(l) When the imprisonment is under 
 process valid on its face, it will be deemed prima facie legal, and 
 the burden of impeaching its validity, by showing a want of juris- 
 diction in the magistrate or court from which it issued, must be 
 assumed by the prisoner.(2) And if he fail in thus impeaching it, 
 he will be remanded to custody. Error, irregularity, or want of 
 form, is no objection ; nor is any defect which may be remedied on 
 motion .(3) And, in general, when the imprisonment is on civil 
 process regular and valid on its face, the examination will be con- 
 fined to the jurisdiction of the court which issued it, and to the 
 inquiry whether some event has not since occurred to entitle the 
 prisoner to his discharge.(4) 
 
 § 1399. If it appear that the party has been legally committed 
 for any criminal offence, or if he appear by the testimony offered 
 with the return, or upon the hearing thereof, to be guiliy of any 
 such offence, although the commitment be irregular, the court or 
 oflScer before whom such party shall be brought, must proceed to 
 let such party to bail, if the case be bailable, and good bail be 
 offered ; or, if not, he must forthwith remand the party .(5) When 
 the commitment is irregular, to authorize the ofBcer to remand the 
 prisoner, the testimony showing that he is guilty of the offence 
 charged, must be produced on the return of the writ, or at the 
 hearing thereon ; and it is too late to present such testimony on a 
 subsequent day, when the judge announces his decision to dis- 
 charge the prisoner.(6) 
 
 § 1400. It has been holden that, on a commitment by final 
 process upon a summary conviction, the court or ofiicer may ex- 
 amine the record of conviction; and that, if it be void, he may dis- 
 charge the prisoner ;(7) and that final process may, in all cases, be 
 impeached by showing, either that there was no judgment, decree 
 or conviction on which it is founded, or that such judgment, decree 
 or conviction is absolutely void ; or that the judgment does not 
 show a case authorizing the execution on which the defendant is 
 
 (1) 1 Cowen, 412. (2) 3 Hill, 661, note; 1 Sand. S. 0. E. 102. 
 
 (3) 18 J. R. 305 ; 1 Barb. S. 0. R. 193 ; 3 id. 3Y, 1 62 ; 1 Hill, 154. 
 
 (4) Id. ibid. (5) Comp. L. 13T8, 1379. 
 (6) 1 Sand. S. C. E. T02. (1) 1 Park. Cr. R. 195. 
 
508 _ SPECIAL PROCEEDINGS. 
 
 arrested.(l) And even -wlaen the imprisonment is under the as- 
 serted a^ithority of the United States, when in fact there is clearly 
 no real authority, the court has jurisdiction, and may discharge the 
 prisoner.(2) 
 
 § 1401. Whether the affidavits upon which an attachment for 
 contempt is issued, are sufficient to warrant the officer in issuing it, 
 is a matter that cannot be reviewed on habeas corj)us.{3) And 
 where the return showed that the witness was detained under a 
 commitment for contempt, in refusing to answer questions as a 
 witness, relating to a criminal complaint, it was held that the 
 officer before whom the writ was returnable had no right to inquire 
 into the truth of the facts adjudged by the committing magistrate ; 
 nor whether the questions put to the witness were proper ; nor 
 whether he was privileged from answering.(4:) But the officer 
 may inquire whether in truth there is any process of commitment, 
 and whether it is valid upon its face ; and he may also inquire 
 whether any cause has arisen since the commitment, for putting 
 an end to the imprisonment. (5) And it has also been held that he 
 may inquire whether the magistrate had jurisdiction, notwith- 
 standing the commitment recites the necessary facts to give juris"- 
 diction.(6) 
 
 § 1402. Notice is, in some cases, required to be given of the 
 pendency of the application, and the statute has provided that 
 when it shall appear, from the return of the writ, that the party 
 named therein is in custody on any process under which any other 
 person has an interest in continuing his imprisonment or restraint, 
 no order shall be made for his discharge, until it shall appear that 
 the party so interested, or his attorney, if he have one, shall have 
 had at least four days' notice of the time and place at which such 
 writ shall have been made returnable. And when it appears 
 from the return that the party is detained upon a criminal accusa 
 tion, such court or officer shall make no order for the discharge of 
 such party, until sufficient notice of the time and place at which 
 such writ shall have been returneH, or shall be made returnable, 
 shall be given to the prosecuting attorney of the county within " 
 which such court or officer shall be, or to the attorney-general, if 
 there be no such prosecuting attorney within the county.(7) 
 
 (1) 15 How. Pr. R. 210. (2) 3 Hill, 651, note; and see 6 J. R. 337. 
 
 (3) 2 Sand. S. C. R. 129. (4) 5 Hill, 164 ; and see 11 How. Pr. R. 418. 
 
 (5) Id. ibid. (6) 5 Hill, 164, 168. 
 
 (1) Comp. L. nl9. See 12 WendeU, 229 ; 14 id. 48; 5 Hill, 169 ; 3 Hill, 657, note. 
 
HABEAS COEPUS AND CERTIORAKI. 509 
 
 § 1403. The party brouglit before any sucli court or officer, on 
 the return of any writ of habeas corpus, may deny any of tke ma- 
 terial facts set forth in the return, or allege any fact, to show either 
 that his imprisonment or detention is unlawful, or that he is entitled 
 to his discharge, which allegations or denials must be on oath ; and 
 thereupon such court or officer is required to proceed in a summary 
 ■way to hear such allegations and proofs as may be produced in 
 support of such imprisonment or detention, or against the same, 
 and to dispose of such party as the justice of the case may require.(l) 
 
 Under a corresponding provision of the statute of New York,(2) 
 rom which the above provision was taken, the courts and judges 
 of that state have differed greatly in opinion as to its proper con- 
 struction, especially as to how far the court, or officer under it, may 
 go behind the warrant on which the prisoner is detained, and re- 
 view the acts or decisions of the officer or tribunal issuing the pro- 
 cess of commitment.(3) 
 
 § 1404. In the somewhat celebrated case of The People vs. 
 JfcLeod,{4:) it was held that a party, duly committed upon a regular 
 indictment for murder, cannot be discharged upon habeas corpus by 
 proving his innocence merely, however clear the proof may be_ 
 The court, in that case, say that the section in question was not in- 
 tended to give a prisoner the right to a summary trial, as to the 
 question of guilt or innocence, but only to enable him, by evidence 
 aliunde the return, to dispute the fact of his being detained on the 
 process or proceeding set forth, or to impeach it for lack of juris- 
 diction, or to show that, by some subsequent event, as a pardon, 
 reversal of judgment, &c., it had ceased to be a lawful cause of 
 detention.(5) And so it was held that the question whether a 
 former trial and conviction are a bar to an indictment subsequently 
 found for murder alleged to have been previously committed, can. 
 not be raised, and made a ground for discharge on habeas corpus.(Q) 
 
 § 1405. And in a case before a county judge at chambers, when 
 a pardon was alleged in answer to a return on habeas corpus, and 
 it was sought to avoid the effect of such pardon by showing that it 
 had been fraudulently obtained, it was held that the court or officer 
 could not go behind the pardon to inquire into the regularity of 
 the proceedings, notwithstanding that it was apparent that the 
 
 (1) Oomp. L. 1379, § 36. (2) 2 R. S. of N. T. 569, §48. 
 
 (3) See Crary's New York Pr. 121. (4) 1 Hill, 337. 
 
 (5) See 25 Wendell, 483, 5t0. (6) 3 Park. Or. R. 126. 
 
510 SPECIAL PROCEEDINGS, 
 
 pardon had been obtained by gross fraud and misrepresentation.(l) 
 In proceeding under the -writ, it was said, the officer is " confined 
 to jurisdictional questions, and to what may be called the prima 
 facie appearance of the proceedings, without raising any collateral 
 issues, and without any impeachment of records, deeds or papers 
 fair on their face, and with the sole object of inquiring whether 
 the party is legally detained."(2) And in the case of The People vs. 
 Casseb,{S) it is also said that this section was maialy, if not solely, 
 intended for cases where the party is restrained of his liberty with- 
 out authority of legal process ; that in such cases the return is usually 
 made by a person having an interest in the question, and who has 
 exercised the restraint upon his own responsibility, as the parent, 
 husband, master or guardian of the person imprisoned ; in which 
 case it is very proper that the facts which they state in the return, 
 should be open to investigation ; but that it is otherwise when the 
 return is made by an officer having legal process ;('4) and in another 
 case,(5) where the relators were detained on civil process, it was 
 held that the court could not look beyond the colorable authority 
 of the j adge who issued the warrant, and denying that the habeas 
 corpus was intended as a writ of review, to correct the errors of 
 inferior tribunals. 
 
 § 1406. On the other hand, in the case of The People vs. 3far- 
 iin,{6) the prisoners being detained on a warrant of commitment 
 for trial on a charge of grand larceny, on application for their dis- 
 charge, on the ground that they were innocent of the crime alleged, 
 it was held that the whole question of guilt or innocence, on a 
 commitment before indictment, was open for examination on the 
 return of the writ of habeas corpus ; and that in such case, under 
 the statute, the proceedings are in the nature of an appeal from the 
 decision of the committing magistrate ; but that in criminal cases^ 
 when an indictment has been found, the rule is otherwise.(7) In 
 a case where a person was arrested as a fugitive from justice, and 
 was afterwards brought before a justice of the supreme court, on 
 habeas corpus, for the purpose of inquiring into the cause of his 
 detention, it was held proper for the justice to look behind the 
 warrant, for the purpose of ascertaining whether the officer liad 
 jurisdiction to issue it.(8) But, in such case, the court will not in- 
 
 (1) 8 How. Pr. E. 478. (2) Id. 783. (3) 5 Hill, 168. 
 
 (4) Id. (5) 1 Barb. S. C. E. 340.. (6) 1 Park. Cr. R. 181. 
 
 (7) See Crary's N. T. Pr. 124, and cases there cited. 
 
 (8) 1 Park. Cr. R. 429 ; 1 Barb. S. C. R. 249; 1 Sand. S. 0. E. 702. 
 
HABEAS CORPUS AND CEBTIORAEJ. 511 
 
 quire as to the probable guilt of the accused, but only whether he 
 has been properly charged with guilt. The place of the inquiry, in 
 respect to the guilt, is Arhere the offence is charged to have been 
 committed. (1) 
 
 § 1407. Although the writ of habeas corpus has been frequently 
 resorted to under the present and former statutes of this state, to 
 obtain a release from illegal imprisonment, no case of this kind 
 appears to have arisen or been reported in the supreme court. 
 Applications for the writ are usually made, when necessary, to a 
 circuit court commissioner ; and although there has probably not 
 been a perfect uniformity in the opinions and decisions of these 
 officers, it has very generally been held by them, and by the judges 
 who have exercised the same powers, that under the section of the 
 statute in question, if the process of commitment be regular upon 
 its face, the officer is not authorized to go back of it, except to 
 inquire whether the court or magistrate had jurisdiction to issue 
 it, and cannot, to any. extent, inquire into the merits of the question 
 or controversy which was adjudicated before the magistrate, and 
 resulted in the issuing of the process. But in a case where the 
 restraint is not under any process, but under a claim of legal au- 
 thority, growing out of the relationship of the parties, as of husband 
 /and wife, parent and child, master and apprentice, the whole uierits 
 of the controversy are necessarily open to investigation, and the 
 officer can only determine the legality of the restraint by an origi- 
 nal inquiry into, and a decision of the rights of the respective par- 
 ties. But in case of process issued upon a judgment or decision of 
 a court or magisti-ate having competent jurisdiction, to allow the 
 grounds of such judgment or decision to be inquired into, would be 
 to give the writ of habeas corpus the efE'ect of a writ of error, to be 
 adjudicated upon a summary hearing before an officer from whose 
 decision there would be no practicable mode of appeal. 
 
 § 1408. In regard to all the cases specified in the eighth sec- 
 tion, and in the case of a commitment for contempt, the power of 
 the court or officer on the return of a habeas corpus or certiorari^ is 
 expressly limited, as we have already seen, by section thirty, which 
 provides that no such officer shall have power to inquire into the 
 legality or justice of any process, judgment, decree or execution spe- 
 cified in section eight ; nor into the justice or propriety of any 
 commitment for a contempt made by any court, officer or body 
 
 (1) 9 ■Wendell, 220; and see 12 id. 323, 325. 
 
512 . SPECIAL PROCEEDINGS. 
 
 according to law, &c. This provision does not, however, include a 
 commitment for trial, upon a preliminary examination, for an oifence 
 not amounting to a felony, but does expressly include every case 
 of a commitment for treason or felony, or for suspicion thereof, or 
 as an accessory before the fact to a felony, where the cause is plainly 
 and specially expressed in the warrant of commitment. Thus, 
 under our statute, there would seem to be no room left for doubt 
 as to the extent of the_ inquiry which the court or ofiicer has power 
 to make, except in cases of minor offences, not punishable by im- 
 prisonment in the state prison. 
 
 § 1409. And in regard to the class of cases last mentioned, 
 section thirty-one indicates very clearly the extent of the inquiry 
 which the court or ofiicer has power to make. " If it appear that 
 the party has been legally committed for any criminal offence ; or 
 if he appear, by the testimony offered with the return, or upon the 
 hearing thereof, to he guilty of any such offence, although tlie com- 
 mitment be irregular, the court or ofiicer before whom such party 
 shall be brought, shall proceed to let such party to bail, if the case 
 be bailable, and good bail be offered ; or, if not, shall forthwith 
 remand such party." The legality of the process is the first question 
 to be inquired into, and if it be found to be legal, that is to say, 
 such as will justify the sheriff or jailer in detaining the prisoner, 
 and protect him against an action of trespass for false imprisonment, 
 or, in other words, if the process be not irregular and void, and 
 therefore illegal, the court or officer can inquire no further, how 
 much soever the magistrate may have erred in judgment, but must 
 let the prisoner to bail, or forthwith remand him. If, however, the 
 process be found to be irregular, and therefore illegal, the question 
 of the party's guilt or innocence may be fully inquired into, and if 
 he do not appear to be guilty of any such offence as is charged 
 against him, he will be entitled to be at once discharged. 
 
 § 1410. The issue, if any be joined on the return of the writ, 
 must be tried by the court or officer before whom the proceeding 
 is pending; and the party brought up on \}aQ habeas corpus yi\\\ 
 not be received as a witness in support of his application. (1) In 
 reference to the evidence which may be received upon the trial of 
 such issue, the inquiry being summary, the court or officer will 
 exercise a sound discretion, and will, in general, allow the parties 
 to introduce affidavits in support of, or against the imprisonment 
 
 (1) 6 Hm, If ; 5 Abb. Pr. E. 212 ; 1 Selden, 383. 
 
HABEAS COEPUS AND OERTIOKAEI, 513 
 
 or detention, thougli taken without notice to the adverse party, the 
 question of their reception being determined according to the cir- 
 cumstances of each case. But in examinations relating to criminal 
 charges, the personal attendance of the witnesses will be required, 
 unless it be shown that it could not be obtained by the exercise of 
 reasonable diligence. Ex parte affidavits are regarded as evidence 
 of the lowest admissible grade, to be cautiously received, and scru- 
 tinized closely.(l) If the prisoner require proof of the writings or 
 documents on which his arrest is founded, he may prove their con- 
 tents by the best evidence at hand, or which he can procure with 
 reasonable diligence, without regard to the ordinary rules of evi- 
 dence.(2) If the facts set forth in the return are admitted, or not 
 denied, the law of the case alone is, in general, to be inquired into, 
 and the proceeding will be the same as if a demurrer to the return 
 had been put in. (3) 
 
 § 14:11. After the return has been made, some preliminary 
 proceedings may be necessary, before proceeding to examine the 
 merits of the case. Thus, objections may be made to the form of the 
 return, as not being in compliance with the statute, or otherwise 
 defective.(4) But a sheriif' s return of commitment will be liber- 
 ally construed. (5) The court may, in its discretion, allow an 
 amendment of the return, and it may be amended after it has been 
 filed.(6) The amendment may be either in form or substance,(7} 
 and if it be not true, the person who makes the return is in the 
 same peril as if the fact embraced in the amendment had been 
 originally returned. (8) The court can only permit the amendment, 
 not make it, but the amendment must be made by the one who 
 made the defective return. (9) The court or officer will also look into 
 the return, before proceeding to an examination of the merits, for 
 the purpose of inquiring whether all parties entitled thereto have 
 been notified, as required by the statute, of the time and place 
 when and where the writ was returnable, and, if not, will suspend 
 all proceedings until such notice be given. 
 
 § 1412. If the party be not entitled to his discharge, and be 
 not bailed, the court or officer is required to remand him to the 
 
 (1) See Hurd on Hob. Corp. 323. (2) 1 Sand. S. C. R. 702. 
 
 (3) 3 Hffl, 658, note. 
 
 (4) 10 J. R. 328 ; 11 Mass. R. .83 ; 3 HiU, SSt, note ; Bao. Abr. Habeas Corpus, 
 PI. 1, 9, 10; 1 Chitt. Cr. Law, 127. 
 
 (5) 1 HiU, 154. (6) Ad.&Bl.TSl. 
 (1) 10 Mod. R. 102. (8) Id. 
 
 (9) SHUl, est, note; PI. 25. 
 
514 
 
 SPECIAL PEOCEEDINGS. 
 
 custody, or place him under the restraint, from whicli he was 
 taken, if the person under whose custody or restraint he was, be 
 legally entitled thereto ; if not so entitled, he must be committed 
 by such court or ofScer to the custody of such officer or person 
 as by law is entitled thereto. During the progress of the trial or 
 inquiry, and until judgment be given upon the return, the court or 
 officer before whom the party was brought, may either commit him 
 to the custody of the sheriff of the county in which such court or 
 officer may be, or place him in such care, or under such custody, 
 as his age and other circumstances may require. 
 
 § 1413. The writ of certiorari may be applied for, as we have 
 seen, in all cases where a habeas corpus might issue ; and it is 
 further provided by the statute, that whenever an application shall 
 be made for a writ of habeas corpus, according to the provisions 
 thereof, to any court or officer, if it appear to such court or officer, 
 upon the facts set forth in the petition, that the cause, matter, or 
 offence for which the person is confined or detained is not bailable 
 according to the provisions of law, instead of awarding such writ 
 of habeas corpus, a writ of certiorari may be granted, directed to the 
 officer or person in whose custody, or under whose control, such 
 prisoner shall be alleged to be, in like manner as if such a writ of 
 certiorari had been applied for by the prisoner; and upon the 
 return to such certiorari being made, the court or officer before 
 whom such writ shall be returnable, is required to proceed in the 
 same manner as upon returns to writs of habeas corpus, and to hear 
 th.e proofs in support of or against the return.(l) 
 
 § 1414. If it appear, upon such hearing, that the person de- 
 tained is illegally imprisoned, confined, or restrained of his liberty, 
 the court or officer will make an order that those having such per- 
 son in their custody, discharge him forthwith ; and if it appear 
 that such person is legally detained, imprisoned or confined, and 
 is not entitled to be bailed, such court or officer will thereupon 
 cease from all further proceedings thereon. But if, upon the re- 
 turn of any writ of certiorari, it appear that the person detained is 
 entitled to bail, the court or officer before whom the same was re- 
 turnable, is required to make an order, directing the sum in which 
 such person shall be held to bail, and the court at which he shall 
 be required to appear ; and that, on such bail being entered into, 
 in conformity to such order, and the provisions of law, such pris- 
 oner be discharged.(2) 
 
 (1) Comp. L. 1380. (2) Id. 1380, 1381. 
 
HABEAS CORPUS AND CEETIOEAEI. 515 
 
 § 1415, Upon the production of such order to any circuit 
 court commissioner of any county in which such prisoner may be, 
 he is authorized to take the recognizance of the person so detained, 
 and of two sufficient sureties, in the sum so directed, with a con- 
 dition for the appearance of such person at the court designated in 
 such order ; but, previous to taking such recognizance, such com- 
 missioner must be satisfied, by the oath of the persons offering 
 themselves as sureties, that they are householders of the county, 
 and are severally worth double the sum in which they are required 
 to be bound, over and above all demands against them ; which 
 recognizance must be filed by the of&cer taking it with the clerk 
 of the court before which the prisoner is bound to appear, and 
 thereupon such ofiicer is required to certify upon such order the 
 compliance therewith ; and the production of such order, so cer- 
 tified, entitles the prisoner to be discharged from imprisonment for 
 the cause which was returned to such writ of certiorari.{l) 
 
 § 1416. Obedience to any order for the discharge of any pris- 
 oner, granted in pursuance of the statute, may be enforced by the 
 officer granting it, by attachment, in the same manner as is therein 
 provided for neglect to make return to a writ oi habeas corpus, and 
 with the like effect in all respects ; and the person guilty of dis- 
 obedience to such order becomes liable to the party aggrieved in 
 the sum of one thousand dollars damages, in addition to any special 
 damages such party may have sustained ; and no sheriff or other 
 officer is liable to any civil action for obeying any such order of 
 discharge ; and if any action be brought against such ofiicer for 
 suffering any person committed to his custody to go at large, pur- 
 suant to such order, he may give evidence thereof, under his plea 
 of the general issue, in bar of the action,(2) 
 
 § 1417. Notwithstanding any writ of certiorari may have been 
 issued, according to the provisions of the statute above recited, the 
 court or ofi&cer before whom the same was returnable, may issue a 
 writ of habeas corpus, which will, in all respects, be subject to the 
 provisions contained in the statute in regard to such writs ■ and if 
 the court or officer refuse a writ of certiorari, or, upon the return 
 thereof, refuse to discharge the person detained, if such person 
 claim the writ of habeas corpus, he will be entitled to the same as 
 therein provided.(3) 
 
 (1) Comp. L. 1381. (2) Id. 1381. (S) Id. 1382. 
 
516 SPECIAL PEOCEEDINGS. 
 
 § 1418. No person who has been discharged by the order of 
 any court or officer, npou a habeas corpus or certiorari, issued pur- 
 suant to the statute, can be again imprisoned, restrained or kept in 
 custody for the same cause ; but it will not be deemed the same 
 cause : 1. If he shall have been discharged from a commitment on 
 a criminal charge, and be afterwards committed for the same 
 offence, by the legal order or process of the court wherein he shall 
 be bound, by recognizance, to appear, or in which he shall be 
 indicted or convicted for the same offence ; or, 2. If, after a dis- 
 charge for defect of proof, or for any material defect in the com- 
 mitment in a criminal case, the prisoner be again arrested on suffi- 
 cient proof, and committed by legal process for the same offence ; 
 3. If in a civil suit the party has been discharged for any illegality 
 in the judgment or process, and is afterwards imprisoned by legal 
 process for the same cause of action ; or, 4. If, in any civil suit in 
 which process may lawfully issue against the body, he shall have 
 been discharged from commitment on original process, and shall 
 be afterwards committed on execution in the same cause, or on 
 original process in any other suit, after such first suit shall have 
 been discontinued.(l) 
 
 § 1419. And if any person, either solely, or as a member of 
 any court, or in the execution of any order, judgment or process, 
 knowingly recommit, imprison or restrain of his liberty, or cause 
 to be recommitted, imprisoned or restrained of his liberty, for the 
 same cause, except as mentioned in the last section, any person so 
 discharged, or knowingly aid or assist therein, he will be liable 
 therefor to the party aggrieved in the sum of one thousand dollars 
 damages, and will also be deemed guilty of a misdemeanor. And 
 any one having in his custody, or under his power, any person 
 who, by the provisions of such statute, would be entitled to a writ 
 of habeas corpus or certiorari, to inquire into the cause of his deten- 
 tion, or for whose relief any such writ shall have been duly issued, 
 who shall, with intent to elude the service of any such writ, or to 
 avoid the effect thereof, transfer such prisoner to the custody, or 
 place him under the power or control of another, or conceal him, 
 or change the place of his confinement, \vill also be deemed guilty 
 of a misdemeanor ; and every person who shall knowingly aid or 
 assist in any such transfer, concealment, &c., will be deemed guilty 
 of the like offence, the punishment for which is a fine not exceed- 
 ing one thousand dollars, or imprisonment in the county jail not 
 ex;ceeding six months, or both, in the discretion of the court.(2) 
 
 (1) Comp. L. 1382. (2) Id. 1382, 1383. 
 
HABEAS COEPUS AND CEETIOEAEI. 517 
 
 § 1420. As a further security to the citizen, in cases where the 
 writ of habeas corpus might not be so promptly efficacious as the 
 exigency of the circumstances may require, it is provided by the 
 statute that, whenever it shall appear, by satisfactory proof, that any 
 one is held in illegal confinement or custody, and that there is 
 good reason to believe that he will be carried out of the state, or 
 suffer some irreparable injury, before he can be relieved by the 
 issuing of a habeas corpus or certiorari, any court or officer author- 
 ized to issue such writs, may issue a warrant, reciting the facts, 
 and directed to any sheriff, constable or other person, and com- 
 manding such officer or person to take such prisoner, and forth- 
 with to bring him before such court or officer, to be dealt with 
 according to law; and when the proof is also sufficient to justify 
 an arrest of the person having such prisoner in his custody, as for 
 a criminal offence committed in the taking or detaining of such 
 prisoner, the warrant must also contain an order for the arrest of 
 such person for such ofience.(l) 
 
 § 1421. Any officer or person to whom such warrant shall be 
 directed, is required to execute the same by bringing the prisoner 
 therein named, and the person who detains him, if so commanded 
 by the warrant, before the court or officer wlio issued the same ; 
 and, thereupon, the person detaining such prisoner is required to 
 make a return in like manner, and the like proceedings are to be 
 had thereon, as if a writ of habeas corpus had been issued in the 
 first instance. 
 
 If the person having such prisoner in his custody be brought 
 before such court or officer, he is to be examined, committed, bailed 
 or discharged by such court or officer, in like manner as in other 
 criminal cases of the like nature. (2) 
 
 § 1422. Petition for habeas corpus or certiorari. 
 To THE Circuit Court foe the county of ■ 
 
 The petition of A. B. respectfully shows, that he is now 
 imprisoned and restrained of his liberty by 0. P., sheriff of the 
 
 said county of , in the county jail at , in said county, 
 
 for a supposed criminal offence, to wit, [state the offence with 
 which he is charged.] 
 
 And your petitioner further shows, that he is not committed or 
 detained by virtue of any process, judgment, decree or execution 
 specified in the eighth section of chapter one hundred and thirty- 
 four of the Revised Statutes of this state; but that, according to the 
 best of your petitioner's knowledge and belief such confinement is 
 
 (1) Comp. L. 1383. (2) Id. 1383. 
 
518 SPECIAL PROCEEDINGS. 
 
 by virtue of a warrant, [or "-order," or ^^ process,^^'] a copy of which 
 is hereto annexed. [If a copy cannnot be set forth, instead of the 
 last clause, substitute the following :] And the said A. B. avers, 
 that a demand of a copy of the warrant, order or process, by vir- 
 tue of which he is so confined as aforesaid, could not be made, by 
 reason of, [some sufficient reason must here be stated, or, if a 
 demand has been made and copy refused, say,] And your petitioner 
 avers that, before the making of this application, a demand of a 
 copy of the warrant, order or process, by virtue of which he is so 
 confined as aforesaid, was made of the said O. P., and the legal fees 
 therefor at the same time tendered to him, but that such copy was 
 refused. 
 
 And your petitioner further states and shows that, as he is 
 advised by his counsel, G. H., to whom he has fully and fairly 
 stated the facts and circumstances of the case, and as your peti- 
 tioner verily believes, the said imprisonment is illegal, and that 
 such illegality consists in this, to wit., [state in what the alleged 
 illegality consists.] 
 
 Wherefore, your petitioner prays that a writ of habeas corpus [or 
 ^'certiorari"] may be issued, to inquire into the cause of his said 
 imprisonment and detention, and that he may be relieved there- 
 from. And your petitioner will ever pray, &c. Dated, &c. 
 
 G. H., Attorney .(1) A. B. 
 
 [If the petition is by a third party, it will be varied accordingly.] 
 
 Verification of petition. 
 
 County of , ss : A. B., the above named petitioner, 
 
 being duly sworn, says that the foregoing petition is true, in sub- 
 tance and in fact. A. B. 
 
 Sworn and subscribed, &c. 
 
 § 1423. Writ of habeas corpus. 
 In the name of the People of the State of Michigan. To 
 
 THE SHERIFF OF THE COUNTY OF [or " to A. 5."] : 
 
 [seal.] We command you that you have the body of C. D., 
 
 by you imprisoned and detained, as it is said, together 
 
 with the time and cause of such imprisonment and detention, by 
 
 whatsoevername the said CD. shall be called or charged, before our 
 
 justices of our supreme court, [or " lefore our circuit court for the 
 
 county of ,"■ or " lefore E. F., one of the justices of our supreme 
 
 court," or as the case may be,] at, /kc, on, &c., [or ^'■immediately 
 after the receipt of this writ,"J to do and receive what shall then and 
 there be considered concerning the said G. D. 
 
 Witness, &c> 
 
 [If issued by the court, the teste will be in the same form as that 
 of other writs, and the writ be signed by the clerk. If issued by 
 an oificer out of court, it will be tested in the name of such officer, 
 and signed by him.] 
 
 (1) Comp. L. 1^14. 
 
HABEAS COUPUS AND CERTIOEARI. 519 
 
 Allowance of writ. 
 
 Allowed, the — day of , [or, " allowed, on application 
 
 of the attorney general" OT ^^ allowed on the application of the prose- 
 cuting attorney of the county of , this — day of ." If the writ 
 
 Js directed to any person other than a sheriff, coronor, constable or 
 marshal, and the charges for bringing up the prisoner are required 
 to be paid, the following mast be added to the allowance :] And 
 the charges for bringing up such prisoner, amounting to the sum 
 
 of dollars, are hereby required to be paid by the petitioner 
 
 on whose application this writ is issued. 
 
 W. H. C. W., Judge of the Circuit Court for 
 
 the County of .(1) 
 
 § 1424. Writ of certiorari. 
 In the name of the People op the State of Michigan. To 
 
 THE SHERIFF OF THE COUNTY OF [or " tO A. B."~\ : 
 
 [seal.]' We command you that you certify fully and at large 
 
 to our circuit court for the county of , [or " to 
 
 E. F; one of our justices of our supreme court" or as the case may 
 be,] at, &c., on, &c., [or " immediately after the rcczipt of this writ"'\ 
 the day and cause of the imprisonment of C. D., by you detained, 
 as it is said, by whatsoever name the said 0. D. shall be called or 
 charged. And have you then there this writ. 
 
 Witness, &c., [tested as in the last form.] 
 
 [Allowance of writ as in the last form, except the clause in re- 
 gard to charges, which is not applicable to a certiorari.'] 
 
 § 1425. Petition, showing that party may he carried out of the slate, 
 or suffer irreparable injury before he can be relieved by habeas corpus. 
 
 To THE Circuit Court for the county of . 
 
 [Set forth the same facts as in a petition for a habeas corpus, 
 substantially; and then proceed as follows :] And your petitioner 
 further shows that the said W. H., in whose custody the said A. B. 
 is now detained, is making preparations to remove the said A. B. 
 out of this state, and that he has publicly stated to several persons, 
 in the hearing of your petitioner, that he should leave this state 
 
 with the said A. B., immediately, for the state of ; and that 
 
 your petitioner or any other person had no power to prevent him 
 from doing so, and your petitioner believes, and has no doubt, but 
 that such is the intention of the said W. H., and that he will do so 
 unless a warrant issue immediately for the said A. B., to remove 
 him from the custody of the said W. H., before he, the said A. B., 
 can be relieved by the issuing of a writ of habeas corpus or certiorari. 
 [If some other irreparable injury is likely to be suffered by the 
 
 (1) Comp.L. 1384, 1385. 
 
520 SPECIAL PROCEEDINGS. 
 
 prisoner, state what and how, particularly ; and if the person having 
 the prisoner in custody has been guilty of a criminal offence in 
 taking or detaining him, set forth the facts and circumstances to 
 establish such criminality. This petition must be verified in the 
 same manner as a petition for a habeas corpus.'] 
 
 Affidavit in support of the above petition. 
 
 County of ■ , ss : E. S., of , in said county, 
 
 being duly sworn, deposes and says, that he is well acquainted 
 with A. B. and W. H., in the annexed petition named ; and that 
 
 on the — day of instant, at , in said ccmnty, this deponent 
 
 heard the said W. H. state publicly, that he should immediately 
 [or ^^as soon as he could procure a suitable conveyance for that 
 purpose" or as the fact may be,] carry the said A. B. out of this 
 
 state, and remove him to the state of . And this deponent 
 
 further saith, [state any other material facts within the knowledge 
 of the deponent, in corroboration of those stated in the petition.] 
 Sworn, &o. E. S. 
 
 § 1426. Warrant upon the foregoing application. 
 
 In the name of the People of the State of Michigan. To 
 
 J. K., sheriff of the county of [or " to any 
 
 constable of the county of ;" or " to R. /&"] : 
 
 [seal.] Whereas E. F. has made application to the circuit court 
 
 for the county of , for the issuing of a warrant to 
 
 take A. B., who is alleged to be illegally confined by [or in the 
 custody of] W. H. And whereas it appears by the proofs pre- 
 sented to the said court on such application, that, &c., [recite the 
 facts which appear in proof, showing the illegal confinement or 
 custody complained of, and that the party will probably be carried 
 out of the state, or suffer some irreparable injury before he can be 
 relieved by the issuing of a habeas corpus or certiorari, and then as 
 follows :] 
 
 From which facts it satisfactorily appears to the said court, that 
 the said A. B. is held in illegal confinement [or " custody,"] by 
 the said W. H., and that there is good reason to believe that the 
 said A. B. will be carried out of this state, [or " that the said A. B. 
 will suffer an irreparable injury"] before he can be relieved by a 
 habeas corpus or certiorari, unless the application aforesaid be granted. 
 You are therefore commanded to take the said A. B., and forth- 
 with to bring him before the said circuit court for the county 
 
 of' , at in said county, to be dealt with according to 
 
 law. [If the proofs presented in support of the petition be suffi- 
 cient to justify an arrest of the person having the prisoner in his 
 custody, as for a criminal offence committed in the taking or de- 
 taining of the prisoner, proceed as follows:] 
 
 And whereas it appears from the proofs aforesaid, that the said W. 
 H., in the taking of the said A. B., committed an assault and bat- 
 tery upon him, the said A. B., against the peace of the people of the 
 
HABEAS CORPUS AND CEBTIOEAEI. 521 
 
 state of Michigan, [or as the offence may be], you are further 
 commanded to arrest the said W. H., and forthwith to bring him 
 before the said circuit court, at the place aforesaid, to answer for 
 the said offence, and to be dealt with as the law requires. And 
 have you then there this writ. 
 
 Witness, &c., [tested in the same form as other writs.] (1) 
 
 [Tndorsed.l 
 
 " Issued by order of the court. 
 
 T. B., Clerk." 
 
 § 1427. Attachment for disobedience to a writ of habeas corpus. 
 In the name of the People of the State of Michigan. To 
 
 THE sheriff op THE COUNTY OF : 
 
 [seal.] Due proof having been made before the circuit court 
 
 for the county of , that a writ of habeas corpus, 
 
 heretofore issued by the said court, directed to W. H., and com- 
 manding him that he have the body of A. B., &c., [reciting the 
 substance of the writ,] was duly served upon the said W. H., on the 
 
 — day of , and that the said W. H. has refused [or "neglected"'} 
 
 to obey the same by producing the said A. B. before the said court, 
 and making a return [or "a full and explicit return"] to such writ 
 within the time required by the statute in such case made and pro- 
 vided ; and no sufficient excuse being shown for such refusal, [or 
 "neglect,"] you are therefore commanded forthwith to arrest the 
 said W. H., and bring him before the said circuit court for the 
 county of , at in said county, to be dealt with accord- 
 ing to law. And have you then there this writ. 
 
 Witness, &c.(2) 
 
 [Indorsed.] 
 "Issued by order of the court. 
 
 T. B. C, Clerk." 
 
 § 1428. Attachmentfor disobedience to a writ of certiorari. 
 [The same in substance as the last form, omitting all that relates 
 to bringing up the prisoner.] 
 
 § 1429. Commitment for disobedience to writ. 
 In the name op the People op the State of Michigan. To 
 
 THE sheriff of THE COUNTY OF : 
 
 [seal.] Whereas the body of W. H. has been attached, and 
 he brought before the circuit court for the county of 
 — , for refusing [or " neglecting"] to obey a certain writ of 
 
 habeas corpus, [or "certiorari," &c., following the recital in the 
 writ of attachment] 
 
 (I) Comp. li. 1383. (2) Comp. L. 1316, 1311. 
 
522 SPECIAL PROCEEDINGS. 
 
 And whereas the said W. H. still refuses to obey the said writ 
 of habeas corpus by producing the body of the said A. B., as he is 
 therein comnaanded, and making a return [or " a full and explicit 
 return^^] to the said writ. 
 
 [If the writ was a certiorari, instead of the last paragraph, sayj 
 And whereas the said W. H. still refuses to obey the said writ of 
 certiorari, by making a return [or, " a full and explicit return"] 
 thereto : 
 
 You are therefore hereby commanded forthwith to convey the 
 said W. H. to the jail of the said county, and there commit him 
 to close custody in such jail, without being allowed the liberties 
 thereof, there to remain until he shall make return to such writ of 
 habeas corpus [or "certiorari"], and also comply with the order of 
 this court, this day made and entered, requiring the said W. H. to 
 [state what he is required to do in relation to the person for whose 
 relief the habeas corpus or certiorari was issued.] 
 
 Witness, &c.(l) 
 
 § 1430. Precept for party foT; whose benefit the order was allowed. 
 In the name of the People op the State of Michigan. To 
 
 THE sheriff of THE COUNTY OF : 
 
 [seal.] Whereas a writ of habeas corpus has heretofore been 
 
 issued by the circuit court for the county of , 
 
 directed to W. H., commanding him to have the body of A. B., 
 by him imprisoned and detained, as it was said, together with the 
 time and cause of such imprisonment, before our circuit court, &c., 
 [as in the writ,] and which writ has been duly served upon the said 
 W. H. ; and whereas the said W. H. has refused [or ^'■neglected "] 
 to produce the body of the said A. B., according to the command of 
 the said writ ; for which refusal [or " neglect"] an attachment has 
 been issued by the said circuit court against the said W. H. : 
 
 You are therefore commanded forthwith to bring the said A. B. 
 
 before the said circuit court for the county of , at in 
 
 said county, to be disposed of as the law requires. And have you 
 then there this writ. 
 
 Witness, &c.(2) 
 
 [Indorsed.] 
 
 "Issued by order of the court. 
 
 E. W., Clerk." 
 
 § 1431. Return to writ of habeas corpus — party produced. 
 The return of W. H., sheriff of the county of ■ 
 
 to thb writ op habeas corpus hereto annexed : 
 
 In obedience to the writ of habeas corpus hereto annexed, 
 I do hereby certify and return to the circuit court for the county 
 
 of , * that before the coming of the said writ to me, to wit., 
 
 on the — day of , the said A. B. was placed in my custody 
 
 (1) Comp. L. 1317. (2) Id. 13lt. 
 
HABEAS CORPUS AND CERTIORARI. 523 
 
 by virtue of an execution [or " warrant of commitment "'] issued, &c., 
 [state the cause of imprisonment,] a copy of which said execution 
 [or " icarrant "] is hereto annexed, and that the said A. B.is now 
 in my custody, under and by virtue of the said execution [or 
 "lyarrojii!."] 
 
 All which I certify, and have here the body of the said A. B., 
 as bv the said writ I am commanded. Dated, &c. 
 
 W. H., Sheriff. (1) 
 
 § 1432. Return to writ— party not in custody. 
 
 [ As in the last form to the *, and then as follows :] That nei- 
 ther at the time of the issuing of the said writ, nor at any time since, 
 was the said A. B. in my custody, or in any manner under my power 
 or restraint ; nor have I, at any time before or subsequent to the 
 issuing of the said writ, had the said A. B. in my power or custody, 
 or under my restraint, and transferred such custody or restraint to 
 any other. Wherefore, I cannot have his body before the said 
 court, as bv the said writ I am commanded. Dated, &c. 
 
 W. H., Sheriff. 
 
 [If the person making the return is not a sworn public officer, 
 or does not make the return in his official capacity, it must be 
 verified by his oath, substantially as follows :] 
 
 County of , ss: W. H., being duly sworn, says that 
 
 the foregoing return, made and subscribed by him, is true, in sub- 
 stance and in fact. W. H. 
 Sworn, &c. 
 
 § 1433. Notice of issuing writ to party interested. 
 To E. G., [or " To G. K, Attorney for K (?.] : 
 
 Sir: — You will please take notice, that a writ of habeas 
 corpus [or " certiorari "J has been issued by the circuit court for the 
 
 county of — , to inquire into the cause of the imprisonment of 
 
 A. B., now confined in the jail of the said county of , on 
 
 process under which you have, or claim to have, [or "under 
 which the said E. G. has, or claims to have"'] an interest in con- 
 tinuing his imprisonment or restraint ; and that the said writ is 
 made returnable before the said circuit court, at the court house 
 
 in ■ , in the said county, on the — day of instant, [or 
 
 " next"] at ten o'clock in the forenoon. Dated, &c. 
 
 Yours, &c. 
 
 E. F., Attorney for A. B.(2) 
 
 § 1434. The like notice to proseQuting attorney. 
 
 To C. D., Prosecuting Attorney of the county of : 
 
 Sir: — Please to take notice, that a writ of habeas corpus [or 
 "certiorari"] has been issued by the circuit court for the county 
 
 (1) Comp. L. 13'76. (2) Id. 1319. 
 
524 SPECIAL PROCEEDINGS. 
 
 of , to inquire into the cause of the imprisonment of A. B., 
 
 now confined in the jail of said county, under a criminal accusa- 
 tion, and that the said writ is made returnable before the said cir- 
 
 cuit court, at the court house in in said county, on the — 
 
 day of next, [or " instant,"] at ten o'clock in the forenoon, 
 
 [or "forthwith."] Dated, &c. Yours, &c. 
 
 G. H., Attorney for A. B.(l) 
 
 § 1435. Order for discharge of prisoner. 
 In the matteb of ) 
 
 A. B. \ 
 
 It appearing, from the return of W. H. to the writ of haheas 
 corpus [or '^certiorari"], heretofore issued out of this court for the 
 relief of A. B., that he, the said A. B., is illegally imprisoned [or 
 " detained "] by the said W. H., it is Ordered, that the said W. H. 
 forthwith discharge the said A. B. out of his custody. [If the pris- 
 oner is brought before the court on haheas corpus, the order will be,] 
 That the said A. B. be, and he is hereby discharged from the cus- 
 tody of the said W. H. (2) 
 
 § 1436. Order for remanding the prisoner. 
 In the matter of ) 
 A. B. [ 
 
 A. B. having been brought before this court upon a writ of 
 habeas corpus, heretofore issued out of said court, directed to W. H., 
 
 sheriff of the said county of , for the purpose of inquiring 
 
 into the cause of his imprisonment, and it appearing to the said 
 court, by the return of the said W. H. to the said writ, and upon 
 the healing thereof, that the said A. B. is legally imprisoned and 
 detained, under and by virtue of an execution duly issued upon a 
 
 finaljudgment, rendered in the circuit court for the county of , 
 
 in favor of 0. G., as plaintiff, against the said A. B. as defendant, 
 in an action of trespass, [or " hy virtue of a commitment for a contempt, 
 issued by the circuit court for the county of , in which commit- 
 ment the said contempt is specially and plainly charged; and the said 
 court having authority to commit for the contempt so charged," or other- 
 wise, as the case may be ;] it is thereupon Ordered, that the said A. 
 B. be, and he is hereby remanded into the custody of the said W. 
 H., and to his former imprisonment under the execution [or " com- 
 mittal"] aforesaid.(3) 
 
 § 1437. Traverse of return to habeas corpus or certiorari. 
 
 The Circuit Court for the County of . 
 
 In the matter of ) 
 
 A. B. j 
 
 The said A. B., in answer to the return of W. H. to the 
 writ of habeas corpus [or "certiorari"] heretofore issued by this 
 
 (1) Comp. L. 1379. (2) Id. 1380, 13'77. (3) Id. 1311. 
 
HABEAS CORPUS AND CEETIOEARI. 525 
 
 court, and directed to the said "W. H., for the purpose of inquiring 
 into the cause of the imprisonment of the said A. B. by the said 
 W. H., saith, that he denies, &c., [specify the matters contained in 
 the return which the party denies.] 
 
 And the said A. B., in further answering the said return, now 
 here states and shows, that, &c., [set forth the facts, to show either 
 that the imprisonment or detention is unlawful, or that the party 
 is otherwise entitled to be discharged.] A. B.(l) 
 
 Verification of answer. 
 
 County of , ss : A. B., being duly sworn, deposes 
 
 andsays, that the foregoing answer, by him subscribed, is true, in 
 substance and in fact. A. B. 
 
 Sworn, &c. 
 
 § 1438. Recognizance of hail of persons hrought up on habeas cor- 
 pus, and detained under a legal commitment. 
 
 County of , ss : Be it remembered, that on the — 
 
 day of , in the year one thousand eight hundred and , 
 
 personally appeared in open court, A. B. as principal, and E. P. 
 and G. H. as sureties, and severally acknowledged themselves to 
 be indebted to the people of the state of Michigan, in the sum 
 of — dollars, to be levied of their respective goods and chattels, 
 lands and tenements, to the use of the said people, if default shall 
 be made in the condition following : 
 
 Whereas the above bounden A. B. is in the custody of the sheriff 
 
 of the county of , under a commitment issued by B. R., a 
 
 justice of the peace of the said county of , from which com- 
 mitment it appears that the said A. B. is charged with the crime 
 of grand larceny committed within the said county : Now, there- 
 fore, the condition of this recognizance is such, that if the said A. 
 B. shall personally appear at the next circuit court appointed to be 
 
 held in said county, on the — day of next, then and there to 
 
 answer to any indictment or information to be preferred against 
 him for the said offence, and to do and receive what by the said 
 court shall then and there be enjoined upon him, and not depart 
 the said court without leave, then this recognizance to be void ; 
 otherwise to remain in full force and virtue.(2) 
 
 § 1439. Order on return of certiorari, that prisoner be let to bail. 
 
 In the matter of ) 
 
 A. B. \ 
 
 It appearing to the court, upon the return of the writ oi 
 certiorari, issued by this court, to inquire into the cause of the im- 
 prisonment of A. B., that he, the said A. B., is legally detained in 
 the custody of the sheriff of the county of , under a com- 
 
 (1) Comp. L. 13T9. (2) Id. 1318, ISTg. 
 
626 SPECIAL PROCEEDINGS. 
 
 mitment by 0. S., a justice of the peace of the said county, in whicli 
 he, the said A. B., is charged with the crime of grand larceny, and 
 that the said A. B. is entitled to bail ; it is thereupon Ordered, that 
 
 he, the said A.B., be held to bail in the sum of dollars, for his 
 
 appearance at the next term of the circuit court for the county 
 
 of' . 
 
 And it is further Ordered, that upon such bail being entered 
 into, in conformity to this order and the provisions of law, the said 
 A. B. be discharged.(l) 
 
 County of , ss : I, 0. V. B., clerk of the circuit 
 
 court for the said county, do hereby certify that the foregoing is a 
 true copy, compared by me, of an original order made and entered 
 in the said court, on the — day of -. , and of the whole of such 
 order. 
 
 In witness whereof I have hereunto set my hand, and affixed the 
 [seal.] seal of the said circuit court, this ■ — day of — — , in the 
 year one thousand eight hundred and . C. V. B., Clerk. 
 
 § 1440. Recognizance tahen hy circuit court commissioner, on pro- 
 duction of the above order. 
 
 County of , ss: Be it remembered, that on the 
 
 day of , one thousand eight hundred and ■ , before B. P. 
 
 M., circuit court commissioner for the said county of , per- 
 sonally appeared A. B. as principal, and J. S. and E. N. as sure- 
 ties, and severally acknowledged themselves to be indebted to the 
 
 people of the state of Michigan, in the sum of dollars, to be 
 
 levied of their respective goods and chattels, lands and tenements, 
 to the use of the said people, if default shall be made in the con- 
 dition following : 
 
 Whereas the above bounden A. B. is in the custody of the sheriff 
 of the county of , under a commitment issued by 0. L., a jus- 
 tice of the peace of the said county, from which commitment it ap- 
 pears that the said A. B. is charged with the crime of grand larceny, 
 committed within the said county : 
 
 Now, therefore, the condition of this recognizance is such, that 
 iif the said A. B. shall personally appear at the next circuit court, 
 
 appointed to be held in said county, on the day of next, 
 
 then and there to answer an indictment or information to be pre- 
 ferred against him for the said offence, and to do further and re- 
 ceive what shall by the said court be then and there enjoined upon 
 him, and shall not depart the said court without leave, then this 
 recognizance to be void ; otherwise to remain' in full force and 
 'virtue. A. B. 
 
 Taken, subscribed and acknowl- 1 J. S. 
 
 edged before me, the day and V E. N. 
 
 year first above written. ) 
 
 E. P. M., Circuit Court Commissioner 
 for the county of .(2) 
 
 (1) Comp. L. 1381. (2) Id. 1381. 
 
CRIMINAL CONTEMPTS. 527 
 
 § 1441. Commissioner's certificate of compliance with order for 
 letting party to hail, to he indorsed thereon. 
 
 I liereby certify tliat the within order has been fully complied 
 with by the within named A. B. Dated, &c. 
 
 E. F. M., Circuit Court Commissioner for 
 
 the county of . 
 
 CRIMINAL CONTEMPTS, 
 
 § 1442. Courts of record, to enable them to maintain order, 
 preserve decorum, and secure efficiency in the administration of 
 justice, and a due respect to their authority, are clothed with power 
 to punish such conduct as necessarily has a direct tendency to sub- 
 vert these purposes, by proceeding against persons guilty thereof, 
 as for a criminal contempt. But, lest courts and judges, under a 
 sense of offended personal dignity, should be tempted to exercise 
 such power oppressively, or in cases where a milder remedy would 
 be more appropriate, the particular offences which alone may be 
 so punished, are specified in the statute, and the extent of the pun- 
 ishment which may be inflicted, specially defined and limited. 
 
 § 1443. The acts for which persons may be so punished by a 
 court of record, are the following, and no others : 
 
 1. Disorderly, contemptuous, or insolent behavior, committed 
 during its sittings, in its immediate view and presence, and directly 
 tending to interrupt its proceedings, or to impair the respect due 
 to its authority ; 
 
 2. Any breach of the peace, noise or disturbance, directly tend- 
 ing to interrupt its proceedings ; 
 
 3. Wilful disobedience of any process or order, lawfully issued 
 or made by it ; 
 
 4. Eesistance wilfully offered by any person to the lawful order 
 or process of the court ; 
 
 6. The contumacious and unlawful refusal of any person to be 
 sworn as a witness ; and, when so sworn, the like refusal to answer 
 any legal and proper interrogatory ; 
 
 6. The publication of a false or grossly inaccurate report of its 
 proceedings ; but no court can punish, as a contempt, the publica- 
 tion of true, full and fair reports of any trial, argument, proceed- 
 ings or decision had in such court.(l) 
 
 (1) Comp. L. 1124. 
 
528 
 
 SPECIAL PEOCEEDINGS. 
 
 § 1444. Punishment for contempts may be by fine, or by im- 
 prisonment in the jail of the county where the court may be sitting, 
 or both, in the discretion of the court ; but the fine can in no case 
 exceed the sum of two hundred and fifty dollars, nor the imprison- 
 ment thirty days ; and when any person shall be committed to 
 prison for the non-payment of any such fine, he must be discharged 
 at the expiration of thirty days. If the contempt be committed in 
 the immediate view and presence of the court, it may be punished 
 summarily ; in other cases, the party must be notified of the accusa- 
 tion, and have a reasonable time to make his defence. In the 
 former case, the court convicts the party upon its own view of the 
 act which constitutes the contempt, without the necessity of any 
 other proof, by an order or judgment entered in its journal, setting 
 forth the particular circumstances of the offence, and prescribing 
 the punishment ; in other cases, an order is entered, specifying the 
 circumstances which constitute the supposed offence, and requiring 
 the party accused to show cause, on a day therein named, why he 
 should not be punished therefor, as for a criminal contempt ; a cer- 
 tified copy of which order must be served upon the party accused 
 a reasonable time before the day therein specified for showing 
 cause. 
 
 § 1445. On the day specified in the order for that purpose, or 
 any subsequent day to which the hearing may be postponed, if the 
 person accused appear, or, if not, upon du-e proof of service of a 
 copy of the order, the court will proceed to inquire into the truth 
 of the accusation, which may be supported or defended against, 
 either by affidavits or the oral examination of witnesses, as in 
 other cases of summary proceedings ; and if upon such hearing the 
 party accused is adjudged guilty, an order or judgment is there- 
 upon entered, specifying the circumstances of the offence, and pre- 
 scribing the punishment as in the case of a summary conviction. 
 If the paj'ty appear on the day named in the order, and satisfy the 
 court that further time is necessary to enable him to make his 
 defence, further time for that purpose will be granted to him. If, 
 upon the hearing, the court is not satisfied of the guilt of the ac- 
 cused, an order will be made discharging the rule to show cause. 
 
 § 1446. It is further provided by the statute, that nothing in 
 the provisions above recited shall be construed to extend to any 
 proceeding against parties or officers as for a contempt, for the 
 purpose of enforcing any civil right or remedy. (1) Persons pun- 
 
 (1) Comp. L. 1125. 
 
CEIMINAL CONTEMPTS. 529 
 
 ished for a criminal contempt under the preceding provisions, are, 
 notwithstanding, liable to indictment [or information! therefor, if 
 the same be an indictable offence ; but the court in which a con- 
 viction may be had on such indictment, [or information,] is required, 
 in forming its sentence, to take into consideration the punishment 
 before iniilcted.(l) Where a criminal contempt has been com- 
 mitted, requiring punishment, it is the duty of the prosecuting 
 attorney to conduct the prosecution, as in other criminal cases, un- 
 der the direction of the court. 
 
 § 1447. Order for summary punishment of contempt, committed ' 
 in the immediate view and presence of the court. 
 
 In the matter of ) 
 
 A. B. \ 
 
 It appearing to the court now here, from its own immediate 
 view thereof that A. B. hath been, and is guilty of the following 
 disorderly behavior committed during its sitting, in the immediate 
 view and presence of the said court, and directly tending to inter- 
 rupt its proceedings, that is to say, [set forth the particular circum- 
 st .nees of the offence ;] wherefore, it is adjudged by the said court 
 now here, that the said A. B, is guilty of a criminal cintempt of 
 the said court. And it is further Ordered and adjudged, that the 
 
 said A. B. do pay to the people of this state a fine of dollars, 
 
 and that he be imprisoned in the common jail of the county of 
 
 • , until the same be paid, not exceeding thirty days, [or 
 
 " that the said A. B. he imprisoned, in the common jail of ilie county 
 oj — — — , for — ■ days, from and including this day, and that he also 
 pay to the people of this state a fine of dollars.J 
 
 § 1448. Bu,Ie to show cause why party should not he punished as 
 for a criminal contempL 
 
 In the matter of [ 
 
 A.B. f 
 
 It having been made to appear to this court, by the afSdavit 
 
 of W. C, now on file therein, that A. B., on the — day of , and 
 
 during the sitting of this court, made a great noise and disturbance 
 within the room where the said court was then sitting, [or " com- 
 mitted a violent assault on one 0. P., within the room where this court 
 was then sitting, against the peace of the people of the state of Mlchi- 
 gan^'''\ and directly tending to interrupt the proceedings of the said 
 court ; therefore, it is Ordered, that the said A. B. show cause be- 
 fore this court, on the — day of instant, why he should not be 
 
 punisked for the misconduct aforesaid, as for a criminal contempt 
 of the said court. And it is further Ordered, that the sheriff' of the 
 said county of cause a certified copy of this order to be 
 
 (1) Comp. Ii. H25. 
 .S4- 
 
530 SPECIAL PROCEEDINGS. 
 
 served on the said A. B. without delay, and that lie certify to this 
 court in what manner he shall have served the same. 
 
 [The clerk should immediately make and certify a copy of the 
 above order, and deliver it to the sheriff for service.] 
 
 § 1449. Order adjudging party guilty of contempt, after hearing. 
 
 In the matter of | 
 A. B. \ 
 
 On reading and filing af&davit of due service of a certified 
 copy of the order made and entered on the — day of , requir- 
 ing A. B. to show cause before this court, on the — day of • 
 
 instant, why he should not be punished for the misconduct therein 
 set forth, as for a criminal contempt of this court, and now, after 
 hearing the said A. B. in his defence, ("or " the said A. B. not appear- 
 ing or showing anything in his defence fl and it satisfactorily^ appear- 
 ing to this court, by due proof, that the said A. B., on the — day 
 
 of , during the sitting of this court, and in the room within 
 
 which the said court was then sitting, did make a great noise and 
 disturbance, [or "commit a violent assault upon one O. P., against 
 the peace of the people of the state of Michigan," or as the case may 
 be,] and directly tending to interru] it tine proceedings of the said 
 court ; thereupon it is adjudged by the said court now here, that 
 the said A. B. is guilty of a criminal contempt of this court, &c., 
 [as in the last form but one, to the end. J 
 
 [A certified copy of the order of commitment, will be a suiS- 
 cient warrant for the sheriff to detain the prisoner in jail, until he 
 becomes entitled to his discharge.] 
 
 PROCEEDINGS AS FOR CONTEMPTS, TO ENFORCE CIVIL REMEDIES, 
 AND TO PROTECT THE RIGHTS OF PARTIES IN CIVIL ACTIONS. 
 
 a 
 
 § 1450. For the purpose of enabling courts to protect the rights 
 of parties in civil actions, and to enforce the civil remedies to which 
 hey are entitled, it has been provided by the statute that every 
 court of record shall have* power to punish, by fine and imprison- 
 ment, or either, any neglect or violation of duty, by which the 
 rights or remedies of a party, in a cause or matter depending in 
 such, court, or triable therein, may be defeated, impaired, impeded 
 or prejudiced, in the following cases : 
 
 1. All attorneys, counselors, solicitors, clerks, registers, sheriffs, 
 coroners, and other persons duly elected or appointed to perform 
 any judicial or ministerial services, for any misbehavior in such 
 oiiice or trust, or for any willful neglect or violation of duty therein 
 for disobedience of any process of such court, or any lawful order 
 
PEOCEEDINGS AS FOR CONTEMPTS, 531 
 
 thereof, or of any lawful order of a judge of sucli court, or any 
 officer authorized to perform the duties of such judge ; 
 
 2. Parties to suits for putting in fictitious bail or sureties, or for 
 any deceit, or abuse of the process or proceedings of the court ; 
 
 3. Parties to suits, attorneys, counselors, solicitors, and all other 
 persons, for the non-payment of any sum of money ordered by such 
 court to be paid, in cases where by law execution cannot be award- 
 ed for the collection of such sum ; and any other disobedience to 
 any lawful order, decree or process of such court ; 
 
 4. All persons for assuming to be officers, attorneys, solicitors, or 
 counselors of any court, and acting as such without authority ; for 
 rescuing any property or persons, which shall be in the custody of 
 any officer by virtue of process issued from such court ; for unlaw, 
 fully detaining any witness or party to a suit, while going to, 
 remaining at, or returning from the court where such suit shall be 
 noticed for trial ; and for any other unlawful interference with the 
 process or proceedings in any action ; 
 
 5. All persons summoned as witnesses, for refusing or neglect- 
 ing to obey such summons, or to attend, or to be sworn, or answer 
 as such witness ; 
 
 6. Persons summoned as jurors in any court, for improperly con- 
 versing with any party to a suit to be tried at such court, or with 
 any other person in relation to the merits of such suit ; for receiv- 
 ing communication from any such party, or from any other person 
 in relation to the merits of such suit, without immediately disclos- 
 ing the same to the court ; 
 
 7. All inferior magistrates, officers and tribunals, for disobedience 
 of any lawful order or process of a superior court, or for proceeding 
 in any cause or matter contrary to law, after such cause or matter 
 shall have been removed from their jurisdiction ; and, 
 
 8. All other cases where attachments and proceedings as for con- 
 tempts have been usually adopted and practiced in courts of record 
 to enforce the civil remedies of any party, or to protect, the rights 
 of any such party. (1) 
 
 § 1451. "When any misconduct, punishable by fine and imprison, 
 ment, as declared in the section just cited, shall be committed in 
 the immediate view and presence of the court, it may, be punished 
 summarily, by fine or imprisonment, or both, as prescribed by the 
 statute. But when such misconduct is not so committed the court 
 must be satisfied by due proof, by affidavit, of the facts, charged, 
 
 (1) Comp. L. 1128, 1129, § 1. 
 
532 SPECIAL PKOCEEDINGS. 
 
 and cause a copy of such affidavit to be served on the party ac- 
 cused, a reasonable time to enable him to make his defence, except 
 in cases of disobedience to a subpoena, and of any rule or order 
 requiring the payment of money.(l) When any rule or order of 
 the court shall have been made for the payment of costs, or any 
 other sum of money, and proof, by affidavit, is made of the per- 
 sonal demand of such sum of money, and of a refusal to pay it, the 
 court may order a precept to commit the person so disobeying to 
 prison, until such sum, and the costs and expenses of the proceed- 
 ing, shall be paid. In all other cases than that last specified, the 
 court is required, either to grant an order on the accused party to 
 show cause, at some reasonable time to be therein specified, why 
 he should not be punished for the alleged misconduct, or to issue 
 an attachment to arrest such party, and bring him before the court 
 to answer for such niisconduct.(2) 
 
 § 1452. "When a rule has been entered in any court, according 
 to the practice thereof, requiring any officer or other person to 
 whom any process of such court may have been delivered, to re- 
 turn the same, an attachment for disobedience to such rule may 
 issue, according to the practice of the court, to arrest such officer 
 or person, to answer for such disobedience, without special appli- 
 cation to the court.(3) Eule 98, as we have before seen, provides 
 for the entry of a rule in the book of common rules, requiring the 
 officer to return the process within twenty days after service of 
 notice thereof, and for the issuing of an attachment upon the de- 
 fault of such officer, the proceedings upon which were treated of 
 in the last preceding chapter. 
 
 § 1453. If the party charged with misconduct be in the cus- 
 tody of any officer by virtue of an execution against his body, or 
 by virtue of any process for any other contempt or misconduct, 
 the court may award a writ of habeas corpus to bring up the body 
 of such person to answer for such misconduct ; and in cases where 
 a party is entitled to an attachment against any person without 
 the special order of the court, and such person shall be so in cus- 
 tody, a writ of habeas corpus to bring up such person may be al- 
 lowed by any judge of the court, or by any other officer authorized 
 to perform the duties of such judge in vacation. Such writ will 
 authorize the sheriff in whose custody such person may be, to re- 
 move and .bring him before the court to which the same may be 
 
 (1) Comp.L. 1129. <2) Id. 1229, 1230. (3) Id. 1130; Eule 98. 
 
PKOCEEDINGS AS FOR CONTEMPTS. 533 
 
 made returnable, and to detain him at the place where such court 
 shall be sitting, until some order be made by the court for his dis- 
 position.(l) The writ in these cases is termed a habeas corpus re- 
 spondendum, and differs in form from the writ of habeas corpus ad 
 testificandum, and habeas corpus cum causa, or ad faciendum et re- 
 cipiendum, which have already been considered. The writ in this 
 case is not auxiliary to or in aid of the attachment, but performs 
 the office of an attachment, in bringing the person charged with 
 misconduct before the court, to answer far such misconduct. 
 
 § 1454. When a party is not entitled to an attachment of 
 course, application must be made to the court, founded on proper 
 affidavits, either for an attachment, or for a rule to show cause why 
 the accused party should not be punished for the misconduct 
 alleged. If a rule is granted for an attachment, the writ may be 
 issued immediately ; but if a rule to show cause be granted, a copy 
 of such rule, together with copies of the affidavits on which it is 
 founded, must be served on the party accused. If the application 
 be made by a party to any suit pending, and the misconduct 
 charged relate to such suit, the affidavits used on the motion, and 
 also in showing cause against the rule, must be entitled in the 
 suit.(2) On a rule to show cause, if no sufficient cause be shown, 
 the rule will be made absolute, and the attachment may then be 
 issued immediately ;(3) but if sufficient cause be shown, the rule 
 wUl be discharged. 
 
 § 1455. On granting an attachment by special order of the 
 court, such court is required to direct the penalty in which the de- 
 fendant shall give bond for his appearance to answer. In all other 
 cases, where a party is entitled to an attachment without the 
 special order of the court, he must make application to a judge of 
 the court, or to some officer authorized to perform the duties of 
 such judge, who, upon due proof of the facts and circumstances, is 
 required to direct the penalty in which the defendant shall give 
 bond for his appearance, to answer the matter alleged against him, 
 and to indorse such order on the attachment When the writ ia 
 issued by the special order of the court, a certificate to that effect 
 must be indorsed on the writ, by the clerk of the court, showing 
 also the sum, if any has been specified, in which the defendant ia 
 to be held to bail on such writ.(4) 
 
 (I) Comp. L. 1130. (2) 9 J. E. 160 ; S T. E. 253; 12 Bast, 165. 
 
 (3) See 2 Caines' E. 333. (4) Comp. L. 1130, 1131. 
 
534 SPECIAL PEOOEEDINGS. 
 
 § 1456. The attachment is served by the officer to -whom it 
 is directed and delivered, by arresting the defendant, or party 
 against whom it is issued. On arresting the party, the sheriff is 
 required to keep such person in his actual custody, and to bring 
 him personally before the court issuing the attachment, and to keep 
 and detain him in his custody until the court issuing the attach- 
 ment shall have made some order in the premises, unless he entitle 
 himself to be discharged in the manner prescribed by the statute.(l) 
 But the officer is not required to confine him in prison, or otherwise 
 to restrain him of his persona' erty, except so far as shall be 
 necessary to secure his personal attendance. And the inabilityj 
 from sickness or otherwise, of such person to attend court per- 
 sonally, is a sufficient excuse for not bringing him before such 
 court.(2) 
 
 § 1457. In cases where a sum shall be indorsed on any attach- 
 ment by the special order of the court, and when any sum shall 
 have been so indorsed by any other officer, as prescribed by the 
 statute, the defendant will be entitled to be discharged from arrest 
 on such attachment, upon executing and delivering to the officer 
 making the same, in his name of office, and to his assigns, at any 
 time before the return day of such writ, a bond, with two sufficient 
 sureties, in the penalty indorsed on such attachment, with a con- 
 dition that the defendant will appear on the return of such attach- 
 ment, and abide the order and judgment of the court thereupon.(3) 
 When the attachment is issued by the special order of the court, if 
 no sum be specified in which the defendant is to be held to bail, he 
 will not be entitled to be discharged &om the arrest upon executing 
 any bond, or in any other manner, unless upon the special order of 
 the court issuing the attachment. But if the attachment was issued 
 without the special order of the court, and an order specifying the 
 amount in which the defendant is to be held to bail is not indorsed 
 on the attachment ; he is entitled to be discharged from the arrest, 
 on executing a bond in the penalty of one hundred dollars, with 
 sureties, in the same manner and with the like condition as above 
 specified. The bond, if any be taken, must be returned and filed 
 with the attachment. (4) 
 
 § 1458. The course of proceedings in case the sheriff or other 
 officer shall neglect to return the attachment by the return day 
 
 (1) Comp. L. 1130, 1131 ; 1 Hill, 154. (2) Comp. L. 1134. 
 
 (3) Id. 1131. (4) Id. 1131. 
 
PROCEEDINGS AS FOB CONTEMPTS. 535 
 
 therein, has been sufficiently shown in the preceding chapter, in 
 treating of proceedings against the sheriff, &c., to compel a return 
 of process. The officer who serves the attachment, must return it 
 to the court at the place where the court is held, on the return day, 
 and during the actual sitting of the court. (1) But he has the whole 
 time of the actual sitting of the court on the return day in which 
 to return it, unless he is specially directed by the court to return it 
 immediately.(2) If the attachment, which is returnable on a par- 
 ticular day, is not received by the sheriff in time to serve it, and 
 to bring the defendant before the court at the place required, he 
 should not arrest the defendant, but should return the attachment 
 iarde.{3) 
 
 § 1459. The defendant being brought into court, or appearing 
 at the return day, the statute provides that the court shall cause 
 interrogatories to be filed, specifying the facts and circumstances 
 alleged against him, and requiring his answer thereto.(4) In prac- 
 tice it is usual to have the interrogatories previously prepared, and 
 they are then read and filed on the return of the attachment. If 
 not filed on the return, they should be filed as soon as practicable 
 thereafter, and the defendant either remains in custody, or his 
 recognizance is taken to appear de die in diem, until the court de- 
 termines the case. If the interrogatories be not filed within a rea- 
 sonable time, the defendant may move to be discharged out of 
 custody, or, if he be out on bail, that his recognizance may be dis- 
 charged. (5) But the party prosecuting the attachment may ex- 
 hibit his interrogatories at any time before the motion is actually 
 made.(6) 
 
 § 1460. Upon the interrogatories being filed, the defendant 
 must make written answers to them on oath, within such reasonable 
 time as the court shall allow.(7) K he refuse to answer, he may 
 be recomitted, or, if out on bail, and he do not attend to be exam- 
 ined, the court may either award another attachment, or may order 
 the bond taken on the arrest to be prosecuted, or both ;(8) or he 
 may be attached for his second contempt, and punished according- 
 ly.(9) If, however, the interrogatories be improper, the defend- 
 
 iX) 1 Paige, 435; and see 3 id. 85. (2) *l Paige, 435. 
 
 (3) 4 id. 360. (4) Oomp. L. 1132. 
 
 (5) 2 ■Wend. 611 ; I Johns. Gas. 31; 3 Cowen, 341. 
 
 (6) Gra. Pr. 696. (7) Comp. L. 1132. 
 
 (8) Id. 1133. \s) 1 DaU. 319 ; 2 Arch. Pr. 344. 
 
536 SPECIAL PEOCEEDINGS. 
 
 ant has a rigLt to except or demur to them.(l) And tfie inter- 
 rogatories may be amended for tine purpose of explaining an am- 
 ^'g'lity, or obtaining a more full answer, if necessary, to the matters 
 already stated, but not for the purpose of introducing any new 
 matter.(2) And they may be amended by adding a new inter- 
 rogatory, if necessary .(3) The court may receive any affidavits 
 or other proofs, contradictory of the answers of the defendant, or 
 in confirmation thereof; and upon such answers, and such subse" 
 quent proofs, must determine whether the defendant has been guilty 
 of the misconduct alleged.(4) 
 
 § 1461. If the party attached, by his answers and evidence, clear 
 himself of the contempt charged, or misconduct alleged, the attach- 
 ment will be discharged ; but if the court shall adjudge the defend- 
 ant to have been guilty of the misconduct alleged, and that such 
 misconduct was calculated to, or actually did, defeat, impair, im- 
 pede, or prejudice the rights or remedies of any party, in a cause 
 or matter depending in such court, the statute requires that such 
 court shall proceed to impose a fine, or to imprison him, or both, 
 as the nature of the case shall require. If an actual loss or injury 
 has been produced to any party by the misconduct alleged, the 
 court will order a sufficient sum to be paid by the defendant to 
 such party to indemnify him, and to satisfy his costs and expenses, 
 instead of imposing a fine upon such defendant; and in such case, 
 the payment and acceptance of such sum is an absolute bar to any 
 action by such aggrieved party, to recover damages for such injury 
 or loss. In all other oases, the fine cannot exceed two hundred 
 and fifty dollars, over and above the costs of the proceedings.(5) 
 
 § 1462. "When the misconduct complained of consists in the 
 omission of some act or duty, which it is yet in the power of the 
 party to perform, he can be imprisoned only until he shall have 
 performed such act or duty, and paid such fine as shall be imposed, 
 and the costs and expenses of the proceedings ; and in such case 
 the order and process of commitment must specify the act or duty 
 to be performed, and the amount of the fine or expenses to be paid. 
 In all other cases, where no special provision is otherwise made by 
 law, if imprisonment be ordered, it must be for some reasonable 
 time, not exceeding six months, and until the expenses of the pro- 
 
 (1) 12 Mod. 499; 1 Stra. 444; 1 Bao. Ahr. 286. 
 
 (2) 1 Johns. Gas. 31. (3) 6 Cowen, 41. 
 (4) Comp. L. 1132. (5) Id. ibid. 
 
PROCEEDINGS AS FOR CONTEMPTS. 537 
 
 ceedings are paid ; and, also, if a fine be imposed, until such fine 
 be paid ; and in the order and process of commitment, the dura- 
 tion of such imprisonment is required to be expressed.(l) 
 
 § 1463. In construing the provisions of the statute referred to 
 in the last section, it has been held that the sum for the non- 
 payment of which a commitment is ordered, need not be directly 
 named in the order, but may be ascertained by a reference thereby 
 directed to the proper officer ; and that the officer's report, when 
 perfected, though made after the order, is to be regarded as a part 
 of it. (2) Thus, in the case of a proceeding to compel an attorney 
 of the court to pay over moneys collected for his client, a rule was 
 entered, which recited the filing of interrogatories, together with 
 the fact of the defendant having answered ; and then, after refer- 
 ring it to the clerk, forthwith to ascertain and report the costs, and 
 the amount directed by a previous order in the same matter to be 
 paid by the defendant, went on to fine him in the amount so to he 
 reported, and ordered that he be committed to the custody of the 
 sheriff until that sum, as well as the costs and expenses of the com- 
 mitment, were paid ; and it was held by the court that, the report 
 being filed the next day, a certified copy thereof, and of the rule, 
 were sufficient to authorize the sheriff to arrest and imprison the 
 defendant.(3) And in construing the provision above recited, 
 which prescribes what the order and process of commitment shall 
 contain, it has been held that the higher courts of record have 
 power to commit by rule, without writ or warrant, and that the 
 rule to stand committed was in itself process for that purpose.(4) 
 Courts of inferior jurisdiction, however, have no power to commit, 
 even for a contempt, without a regular warrant in writing.(6) 
 
 § 1464. It has also been held that the process of commitment 
 need not state all the facts and proceedings necessary to confer 
 jurisdiction ; but it is sufficient if, upon its face, it appears that the 
 court had jurisdiction, states in substance the cause of the commit- 
 ment, and specifies the act or duty to be performed, and the ex- 
 penses to be paid.(6) And where an attachment was issued against 
 the defendants for interfering with personal property in the hands 
 of a receiver, it was held that the order of commitment, in cases 
 of that description, should recite the substance of the alleged mis- 
 
 (1) Comp. L. 1133. (2) 1 Hill, 154. 
 
 (3) Id. ibid. (4) 1 HiU, 169, ITO. 
 
 (5) 2 Marsh. 377 ; 7 Taunt. 63. (6) 1 Keman, 324 ; 10 Barb. 624. 
 
588 SPECIAL PROCEEDINGS. 
 
 conduct, the adjudication of the court that the parties were guilty 
 thereof, and that such misconduct was calculated to, and did im- 
 pair, defeat, impede or prejudice the rights or remedies of the 
 prosecutor, or the parties to the action ; and should direct the pay- 
 ment of a fine sufficient to indemnify the party injured, and to 
 satisfy the costs and expenses of the proceeding ; and that, if any 
 thing remains to be done by the defendants, the order should also 
 specify particularly what they are to do, and the manner in which 
 it is to be done, to entitle them to be discharged upon payment 
 of the fine imposed.(l) The order should also direct to whom 
 the fine is to be paid, or what is to be done with the money when 
 paid. (2) 
 
 § 1465. When the defendant, after being served with an attach- 
 ment, fails to appear on the return day, and the court order the 
 bond taken on the arrest to be prosecuted, such order operates as 
 an assignment of the bond to any aggrieved party who shall be 
 authorized by the court to prosecute the same ; and such party 
 may maintain an action thereon in his own name, as assignee of the 
 sheriff or officer to whom it was given, in the same manner as in 
 other actions on bonds with condition to perform covenants other 
 than the payment of money. But if there be no party aggrieved 
 by the misconduct for which the attachment was issued, the court, 
 in case the defendant fails to appear according to the condition of 
 the bond, will order the same to be prosecuted by the attorney- 
 general, or by the prosecuting attorney for the county in which it 
 was taken, in the name of the officer who took such bond. (3) 
 
 § 1466. The measure of the damages to be assessed in favor of 
 an aggrieved party, when the action is brought by him, is the extent 
 of the loss or injury sustained by him, by reason of the miscon- 
 duct for which the attachment was issued, and his costs and ex- 
 penses in prosecuting such attachment. (4) If the suit be brought 
 by the attorney-general or prosecuting attorney, the whole penalty 
 of the bond is forfeited, and will be recovered ; and from the 
 moneys collected thereon, the court will order such sum to be paid 
 to the party prosecuting the attachment, as the court ordering the 
 prosecution shall think proper, to satisfy the costs and expenses 
 incurred by him, and to compensate him for any injury he may 
 have sustained bv the misconduct for which such attachment was 
 
 (1) 9 Paige, 312 ; and see 2 id. 103. (2) Id. ibid.; 2 Denlo, 610. 
 
 (3) Comp. L. 1133. (4) Id. 1133. 
 
PROCEEDINGS AS FOE CONTEMPTS. 539 
 
 issued ; and the residue of sucli moueys is required to be paid into 
 the treasury of the county in -which the bond was taken, to the 
 credit of the library fund.(l) 
 
 § 1467. The officer taking a bond for the appearance of a de- 
 fendant upon an attachment, is responsible for the sufficiency of 
 the sureties, if he had reasonable ground to doubt their sufficiency 
 at the time when he took them. In such case, if, on the return of 
 an execution duly issued upon any judgment obtained on such 
 bond, it appear that they were insufficient, the officer is liable in 
 an action on the case to the party aggrieved, who may have prose- 
 cuted such suit, for the amount of the judgment recovered by him, 
 and for his costs and expenses in such suit ; or if such suit was 
 brought by the attorney-general, or a prosecuting attorney, an 
 action on the case may, in like manner, be brought by them in the 
 name of the people of this state for the amount of the judgment so 
 recovered ; and the same disposition is required to be made of the 
 moneys collected in such action on the case against such officer, as 
 if they had been collected on the judgment upon the bond. (2) 
 
 § 1468. It will have been observed that, as in the case of a 
 criminal contempt, if the misconduct is committed in the imme- 
 diate view and presence of the court, it maj he punished summarily ; 
 but when not so committed, the court shall be satisfied by due 
 proof, by affidavit, of the facts charged, &c., except in cases of dis- 
 obedience to any rule or order requiring the payment of moneyj 
 and of disobedience to any subpoena. If there were no qualifica- 
 tion of the power thus conferred upon the court, it would, upon 
 its own view of the misconduct, at once pronounce a conviction of 
 the guilty party without further proof, and adjudge the punishment 
 to be inflicted. But, by a subsequent section, it is provided that, 
 in all cases, except that of disobedience to an order for the payment 
 of costs, or any other sum of money, the court shall either grant 
 an order on the accused party, to show cause, at some reasonable 
 time, to be therein specified, why he should not be punished for 
 the alleged miscondu-ct, or shall issue an attachment to arrest such 
 party, and to bring him before the court to answer for such mis- 
 conduct. 
 
 § 1469. The only difference, then, in the course of proceeding 
 when the misconduct is committed in the immediate view and 
 
 (1) Comp. L. 1134. (2) Id. 1134. 
 
540 SPECIAL PEOCEEDINGS. 
 
 presence of tlie court, and when it is not so committed is, that in 
 the former case, upon the motion of the aggrieved party, and with- 
 out further proof, the court will either grant a rule to show cause, 
 or issue an attachment to bring the accused before the court to 
 answer for such misconduct; whereas, in the other case, no order 
 to show cause can be made, nor any attachment be issued, until 
 the court shall be satisfied, by affidavit, of the facts charged. After 
 the granting of the order, or the issuing of the attachment, the pro- 
 ceeding is the same, in all respects, in both cases. 
 
 § 1470. "When an order is made upon a party to show cause 
 why he should not be punished for the misconduct alleged, a copy 
 of such order, together with a copy of the affidavit upon which it 
 is founded, must be served upon the accused party personally, un- 
 less personal service is dispensed with on special grounds.(l) If 
 the defendant does not appear at the day appointed, or on such 
 other day as may be afterwards designated for that purpose, or if 
 he appears, and does not deny the alleged misconduct, the court 
 may at once proceed to make a final decision, that the accused 
 party has been guilty of the misconduct charged, and to award the 
 proper punishment therefor. If the misconduct is denied on oath, 
 the court may discharge the order to show cause, or may take such 
 proof as either party may offer in support of or against the charge; 
 or the court may refer it to the circuit court commissioner or clerk 
 to take such proofs, and report the same to the court, if this course 
 will best suit the convenience of the court or of the parties. 
 
 § 1471. The course to be pursued, when the party accused is 
 proceeded against by attachment, has been sufficiently indicated. 
 Whichever course may be taken, the inquiry is, whether the party 
 has been guilty of the misconduct charged, and whether such mis- 
 conduct was calculated to, or actually did, defeat, impair, impede 
 or ^prejudice the rights or remedies of any party in a cause or mat- 
 ter depending in the court. If the court, upon such inquiry, finds 
 the party guilty, and it appear that an actual loss or injury has 
 been sustained by the aggrieved party, a further inquiry may be 
 necessary to ascertain the amount of such loss ; and this inquiry 
 may be made directly by the court, or by a reference, or further 
 reference for that purpose. (2) The actual loss or injury, contem- 
 plated by the statute, is pecuniary in its nature, and such as is 
 capable of being estimated with reasonable certainty; and where 
 
 (1) 2 Barb. Ch. Pr. 2Y8. (2) See 2 Barb. Oh. Pr. 219. 
 
PEOCEEDINGS AS FOR CONTEMPTS. 541 
 
 there is no evidence that an actual loss has been sustained, the pros- 
 ecutor is entitled only to his costs and expenses.(l) A reasonable 
 counsel fee has been held to be allowable, as part of the necessary 
 expenses of the party in prosecuting for the contempt.(2) 
 
 § 1472. In such case, if the misconduct of the party arose from 
 an honest misapprehension of the offending party, of the nature of 
 the act which he did, and it occurred in good faith, and in the be- 
 lief that it was not disobedience, yet, if an actual loss has re- 
 sulted from the disobedience to an order of the court, such court 
 has no discretion which will absolve it from imposing a line suf- 
 ficient to indemnify the injured party for his loss; but no fine 
 should be imposed, or imprisonment ordered, in such a case, by 
 way of punishment as for an offence ; but if the disobedience was 
 willful, and designedly contemptuous, the contempt may be pun- 
 ished according to the aggravation of the case ; and, although no 
 actual loss to the relator is shown, the court may impose a fine not 
 exceeding two hundred and fifty dollars, over and above the costs 
 and expenses of the proceedings, and imprison the accused for a 
 term not exceeding six months, for the purpose of punishment 
 alone.(3) 
 
 § 1473. In determining the punishment to be inflicted upon a 
 party, a statement, in general terms, that he acted under the advice 
 of counsel, will not be accepted in excuse or palliation of the mis- 
 conduct. To enable the court to regard such advice as affording 
 any evidence of the party's having acted honestly or in good faith, 
 he must state the name of his counsel, the information which was 
 laid before him, and the exact import of the advice given ; and if 
 the advice was ia writing such writing should be produced ; and 
 if not, it should be verified by the afi&davit of the counsel who gave 
 it.(4) Such advice, however, will not be regarded at all, so far as 
 the rights of the relator are concerned.(5) If the defendant is com- 
 mitted to prison upon a conviction for a contempt, it is the duty of 
 the sheriff to keep him in that part of the building devoted to the 
 purposes of a prison, and in the same manner as he is required to 
 keep persons charged with criminal offences; and it would be an 
 escape to permit the defendant to go at large in the sitting room 
 occupied by the sheriff's family, although such room is a part of 
 
 (1) 1 Duer, 512; and see 2 Paige, 326; 4 id. 164, 456. 
 
 (2) 4 Duer, 148. (3) 1 Duer, 512. (4) Id. 513. 
 (5) 4 Paige, 163, 450; 7 id. S64; and see 3 Sand. S. C. E. 662 ; 3 Paige, 253. 
 
542 SPECIAL PEOCEEDXNGS. 
 
 the building which contains the jail.(l) But persons committed 
 for non-payment of costs, are entitled to the liberty of the jail 
 limits, and constitute an exception to this rule.(2) 
 
 § 1474. As an effect of the contempt, the party guilty thereof 
 cannot, in general, apply to the court for a favor while he is in 
 contempt. He must purge his contempt, by complying with the 
 former order of the court, and until he does this, the court will not 
 grant an application in his favor, which is not a matter of strict 
 right.(3) Thus, when the defendant is in contempt for the breach 
 of an injunction, he cannot be heard upon a motion to discharge a 
 ne exeat against him in the same cause, until he has purged himself 
 of the contempt; (4) nor to open a default for hot answering ;(5) 
 nor to vacate the inj unction, for the violation of which he is in con- 
 tempt.(6) Nor, when he is in contempt for want of an answer, 
 can he move to have the bill dismissed, even upon terms of giving 
 the complainant all the benefit of a decree.(7) The defendant, in 
 such case, might purge his contempt by putting in either a plea or 
 an answer to the whole bill, and paying the costs, after the service 
 of the first or ordinary process of attachment to compel an an- 
 swer.(8) The same rule prevails both in proceedings at law and 
 in chancery. (9) 
 
 § 1475. But a party in contempt may be heard upon a motion 
 to show that the proceedings against him have been irregular.(10) 
 In such case, however, he must confine his motion to the object of 
 getting rid of the order of which he complains; and if he embraces 
 other matters in his motion, he will not be allowed to go into them 
 until he has shown that the order .upon which his contempt was 
 incurred, was irregular. (11) Nor is he precluded by his contempt 
 from making a motion in another cause, having reference to a 
 separate and distinct subject, though between the same parties.(12) 
 Nor can a party object to a cause being heard, on the ground that 
 the adverse party is in contempt.(13) Parties in contempt are, 
 
 (I) 10 Paige, 606 ; 4 id. 282. (2) Comp. L. 1450, 1453. 
 
 (3) I Paige, 646 ; 4 id. 450 ; 1 Barb. S. C. R. 225 ; 4 Sand. Ch. E. 366 ; 16 Howard 
 Pr. E. 568. 
 
 (4) 1 Clarke, Cli. E. 223. (5) 4 Sand. Ch. E. 366. 
 (6) 4 How. Pr. R. 225. (7) 2 Younge & Coll. 70. 
 (8) 10 Paige, 443. (9) Gra. Pr. 700. 
 
 (10) 3 Mylne & Craig, 191 ; 1 Paige, 646, 647. 
 
 (II) Id. ibid. (12) 1 Eusa. &, My. 103. 
 (13) 7 Sim. 200. 
 
PEOCEEDINGS AS FOR CONTEMPTS. 543 
 
 however, sometimes allowed to make applications to the court for 
 favors, notwithstanding their contempt ; but in such cases the ap- 
 plication will only be granted on condition of purging the contempt, 
 by complying with the former order of the court. Thus, when a 
 defendant in contempt applied, after the proofs in a cause were 
 regularly closed, to examine a witness on commission, the applica- 
 tion was granted upon payment of the costs of the motion, and 
 the costs necessary to be paid to purge the contempt.(l) 
 
 § 1476. The affidavits on which the attachment, or order to 
 show cause is founded, as well as the attachment and subsequent 
 proceedings, when the proceeding is against a party to the suit, 
 are properly entitled in the original cause.(2) But when the pro- 
 ceeding, is against persons who are not parties to the suit, the 
 affidavit and other papers, previous to and including the order for 
 the attachment, should be entitled in the original cause, and all 
 the subsequent proceedings should be entitled in the name of the 
 people, on the relation of the party prosecuting the attachment,(3) 
 thus : " The People of the Slate of Michigan, ex rel. A. B., vs. J. S.{'^ 
 
 When both parties are heard on the application for an attach- 
 ment, if the affidavits in relation to the alleged contempt are con- 
 flicting, the court will issue the attachment to bring the defendant 
 into court, so that he may be examined on interrogatories as to the 
 contempt, and so as to enable the plaintiff to compel the attend- 
 ance of witnesses to prove the facts.(5) 
 
 § 1477. Affidavit of service of order to pay money, and of demand 
 of puyTnent. 
 
 The Circuit Court for the county op — . 
 
 A. B. 
 
 vs. 
 CD. 
 
 County of , ss: E. S., of , being duly sworn, 
 
 deposes and says, that on the — day of he served upon C. D. 
 
 above named, a copy of the order hereto annexed, by delivering 
 the same to and leaving the same with the said C. D., at his 
 [dwelling house] m said county ; and that, at the time he so served 
 the said copy, this deponent showed the said C. D. said order hereto 
 annexed. And this deponent further says, that at the time of the 
 service' of said order as aforesaid, he 'personally, on behalf of 
 
 (1) 1 Paige, 646 ; and see 4 Sand. Ch. E. 366, 368. 
 
 (2) 4 Paige, 360; 1 id. 325; 1 Barb. S. 0. R. 221. 
 
 (3) 5 J. R. 235 ; 9 id. 160; 4 Paige, 360. (4) 1 Burr. Pr. 359, 
 (5) 4 Paige, 318. 
 
544 SPECIAL PEOCEEDINGS. 
 
 tlie said A. B., demanded of the said C. D. payment of tlie costs 
 [or " moneys"'] mentioned in the said order, but the said C. D. neg- 
 lected and refused to pay the same, or &ny part thereof And this 
 deponent further says, that he was duly authorized to demand the 
 said moneys in behalf of the said A. B. as aforesaid, as appears 
 by the power of attorney hereto annexed ; and that, at the time 
 the said demand was so made, this deponent stated to the said 
 C. D. the nature of his authority, and showed him the said power 
 of attorney. R. S. 
 
 Sworn, &c. 
 
 § 1478. Order for precept to commit for non-payment of money. 
 
 [Title.] 
 
 On reading and filing the affidavit of R. S., showing due 
 personal service on the defendant, of a copy of the order made in 
 the above entitled cause, on the — day of last, and also show- 
 ing a demand of the payment of the costs [or " moneys'^] mentioned 
 in the said order, of the said defendant personally, and of his neg- 
 lect and refusal to pay the same, or any part thereof; and the costs 
 of this proceeding to compel payment thereof, having been fixed 
 
 by the court at the sum of dollars : 
 
 Now, therefore, on motion of E. F., attorney for the said plain- 
 tiff, it is Ordered, that a precept be issued out of and under the seal 
 of this court, directed to the sheriff of the county of , com- 
 manding him to take the body of the said C. D., and commit him 
 
 to the common jail of the said county of and to keep and 
 
 detain him therein, under his custody, until he shall pay the sum 
 
 of dollars, as required by the aforesaid order ; and, also, the 
 
 further sum of dollars, for the costs and expenses of the pro- 
 ceeding to compel such payment, together with the sheriff's fees on 
 this precept. ' 
 
 § 1479. Precept to commit for non-payment of money. 
 
 In the name of the People of the State of Michigan, 
 to the sheriff of the county of : 
 
 [SEAL.] Whereas, on the — day of , by a certain or- 
 der made in our circuit court for the county of , 
 
 in a certain action depending in our said court, wherein A. B. is 
 plaintiff and 0. D. is defendant, it was ordered, that the said C. D. 
 
 should pay to the said A. B. the sum of dollars, for, &c., [state 
 
 for what the moneys were ordered to be paid;] and whereas it 
 has been fully made to appear, in our said court, that although the 
 
 said sum of dollars has been personally demanded of the said 
 
 C. D., by or on behalf of the said A. B., yet the said C. D. has 
 hitherto wholly neglected and refused, and still does neglect and 
 refuse, to pay the same ; and whereas, the costs and expenses of the 
 proceeding, on the part of the said A. B., to compel payment 
 
 thereof, have been fixed by the said court at the sum of 
 
 dollars : 
 
 Now, therefore, we command you to take the body of the said 
 
PROCEEDINGS AS FOR CONTEMPTS. 545 
 
 C D., and commit Mm to the common jail of tlie county of - 
 
 and to keep and detain him therein, under your custody, until he 
 
 shall pay the said sum of dollars for the said money so ordered 
 
 to be paid as aforesaid : and, also, the said sum of dollars, for 
 
 the costs and expenses of the proceedings to compel such payment, 
 together with your fees on this precept. And you are to certify to 
 
 our said court, at the court house in , in said county, on the 
 
 — day of next, in what manner you shall have executed 
 
 this writ. 
 
 Witness, &c., [tested in the same manner as other writs.] 
 
 [Indorsed.'] 
 
 " By the Court. 
 
 C. Y. B., Clerk." 
 
 § 1480. Order to show cause why party should not be punished 
 for alleged misconduct. 
 
 A. B. I 
 
 vs. ]■ 
 C. D. ) 
 
 It appearing to the court now here, from its own immediate 
 view thereof, [or "from the affidavit of A. B."] that C. D., the de- 
 fendant in this suit, on the — day of • , during the sitting 
 
 of the said court, [and in its immediate view and presence,] and 
 during the trial of the issue joined in the said cause, took and re- 
 moved from the records and files in said cause, the depositions of 
 certain witnesses, which had theretofore been taken on the part 
 and behalf of said plaintiff, by virtue of a commission duly issued 
 out of said court for that purpose, to be used by him on the 
 trial of said cause, Jpid which commission with the deposition 
 aforesaid thereto annexed, had been returned to and filed in this 
 court in conformity to the statute in such case made and provided, 
 and the rules and practice of the court, as it is alleged, whereby 
 the rights and remedies of the plaintiff in said cause are greatly 
 impaired, impeded, and prejudiced, as it is also alleged ; on motion 
 of E. P., attorney for the said plaintiff, it is Ordered, * that the said 
 
 C. D. show cause before this court, on the — day of next 
 
 why he should not be punished for the said alleged misconduct! 
 And it is further Ordered, that a copy of this order be served upon 
 the said C. D., without delay, [together with a copy of the affidavit 
 on which the same is founded.] 
 
 § 1481. Order thai an attachment issue. 
 
 [As in the last form to the *, and then as follows :] That an 
 attachment, as for a contempt, be issued against the said C. D 
 
 directed to the sheriff of the county of , and returnable at the 
 
 next term of this court, to be held at the court house in in 
 
 said county, on the — day of next; and that the said C.'d. 
 
 be held to bail on the said attachment, in the sum of dollars' 
 
 35 
 
546 SPECIAL PROCEEDINGS. 
 
 § 1482. Attachment. 
 
 In the name of the People of the State of Michigan. To 
 
 the sheriff of the county of : 
 
 [seal.] We command you that you attach C. D., so that you 
 may have his body before our circuit court for the 
 
 county of , on the — day of next, to answer to our 
 
 said court for a certain contempt, committed in our said court, as 
 it is alleged. And have you then there this writ. 
 
 "Witness, &c. . 
 
 E. F., Attorney. 
 
 [If the attachment is issued by the special order of the court, it 
 will be indorsed by the clerk as follows : " Issued hy the sj)ecial 
 order of the court ;" and if the attachment be bailable, add as fol- 
 lows: " Hold the defendant to bail in the sum of dollars. H. 0. 
 
 S., Clerk."] 
 
 [If the attachment issues of course, without the special order of 
 the court, it may be indorsed by the j udge or commissioner as 
 follows :] 
 
 Let the defendant give bond for his appearance in the sum of 
 
 dollars. Dated, &c. 
 
 W. S. M., Circuit Court Com'r for the county of . 
 
 § 1483. Order adjudging accused guilty, and directing payment 
 of loss sustained by relator, dec. 
 
 A. B.) 
 vs. > In attachment. 
 
 C. D.j 
 
 The respondent having failed to show any sufficient cause 
 why he should not be punished for the alleged misconduct men- 
 tioned in the order heretofore made therein, and duly served upon 
 him, after hearing the proofs and allegations of the parties, and 
 the arguments of counsel, it appearing to the said court now 
 here that the said defendant, during the sitting of the said court, 
 and during the trial of the issue joined in this cause, wherein the 
 said A. B. is plaintiff, and the said C. D. is defendant, to wit., on 
 
 the — day of , at the court house in the said county of , 
 
 did willfully take and remove from the records and files in the 
 said cause the depositions of certain witnesses, which had thereto- 
 fore been taken in said cause on the part and behalf of the said 
 plaintiff, by virtue of a commission duly issued out of the said 
 court for that purpose, to be used by him on the trial thereof, and 
 which commission, with the depositions aforesaid thereto an- 
 nexed, had, before that time, been duly returned to and filed in 
 the said court, in conformity to the statute in such case made and 
 provided, and the rules and practice of this court, whereby the 
 rights and remedies of the said A. B., the plaintiff in said cause, 
 were and are greatly impeded, impaired and prejudiced; it is there- 
 
FORCIBLE KNTEIES AND DETAINERS, ETC. 547 
 
 fore adjudged by the said court now here, that he, the said C. D., 
 hath been and is guilty of the misconduct aforesaid, and of a con- 
 tempt of this court. And it further appearing to this court that 
 an actual loss and injury to the said A. B., hath been produced by 
 
 the said misconduct, to the amount of ■ dollars, and that the 
 
 costs and expenses of the said A. B., in this proceeding, amount 
 
 to the sum of dollars; it is, therefore. Ordered and adjudged, 
 
 that the said 0. D. do pay to the said A. B. the said sum of ■ 
 
 dollars, for his said loss and inj ury, together with the said sum of 
 
 dollars, for his costs and expenses aforesaid ; and that he, the 
 
 said C. D., be committed to the said jad. of the said county of 
 
 , and there imprisoned by and under the custody of the 
 
 sheriff of the said county of , until the aforesaid sums of 
 
 money, together with the fees of the said sheriff in the execution 
 of this order, be paid by the said C. D. 
 
 CHAPTER XII. 
 
 MISCELLANEOUS PEOCEBDINGS. 
 
 § 1484. In this chapter it is proposed to treat, with as much 
 brevity as is consistent with, practical utility, of some special pro- 
 ceedings, which, though not in general originating in the circuit 
 courts, usually arise before the circuit court commissioners or 
 judges out of court, and are frequently the subject of review in 
 such courts ; and which, from their importance, and the nature of 
 the proceedings themselves, as much require the aid of professional 
 learning and skill, as many of the actions that are commenced and 
 prosecuted in such courts. It is believed, therefore, that the forms 
 of such proceedings, carefully prepared, and adapted to the re- 
 quirements of the statutes under which they are had, may be 
 equally as valuable to attorneys and other officers of the circuit 
 courts, as those of the more common proceedings incident to ordi- 
 nary actions. 
 
 FORCIBLE ENTRIES AND DETAINERS ; AND SUMMARY PROCEEDINGS 
 TO RECOVER POSSESSION OF LAND IN OTHER CASES. 
 
 § 1485. In order to prevent that disturbance of the public 
 peace which would often result from violent acts, if men were 
 allowed to take the law into their own hands, and to take forcible 
 possession of lands which rightfully belong to them, but which are 
 held by another, it has been provided, by statute, that no person 
 
^^8 MISCELLANEOUS PROCEEDINGS. 
 
 shall make entry into lands, tenements or other possessions, but in 
 cases where entry is given by law, and tliat, in such cases, he shall 
 not enter with force, but only in a peaceable manner ;(1) and that 
 when any forcible entry shall be made, or when an entry shall be 
 made in a peaceable manner, and the possession shall be unlaw- 
 fully held by force, the person entitled to the premises may be 
 restored to the possession thereof in the manner provided by the 
 statute.(2) 
 
 § 1486. To constitute a forcible entry, there must be something 
 of personal violence, or tendency to or threat of personal violence, 
 unless the entry or detainer be riotous. In all cases, there must 
 be something more than a mere trespass upon the property.(3) 
 Breaking the door of a house, especially of a dwelling house, has 
 been said to be the least evidence that has been held sufficient to 
 constitute a forcible entry. Breaking the door of an out-house, in 
 the actual possession of the complainant, by forcing the lock, is not 
 sufficient. (4) Proof that the defendants (there being but two of them) 
 repaired alone and unarmed to the premises, and that one of them 
 pounded upon the door, and it was opened, whereupon they both 
 entered, is not sufficient.(5) The same circumstances of violence 
 which will make an entry forcible, will make a detainer forcible 
 also ; and whoever keeps an unusual number of people, or unusual 
 weapons, or threatens to do some bodily hurt to the former pos- 
 sessor if he dare return, will be adjudged guilty of a forcible de- 
 tainer, though no attempt be made to re-enter.(6) 
 
 § 1487. The person forcibly put out, or forcibly held out of 
 the possession, and the guardian of any person being a minor, are 
 the' proper persons to institute the proceedings. They must be 
 prosecuted by and in the name of the party in whom the possession 
 was, in contemplation of law, and not by individuals who may 
 have been charged with authorities or duties respecting it ; and it 
 was therefore held, that proceedings for the forcible entry and 
 detainer of a church owned by a religious society, incorporated 
 under a general statute, should be in the name of the corporation, 
 and not in the individual names of the trustees.(7) A mere intruder 
 or trespasser cannot institute proceedings under the statute, and be 
 
 (1) Comp. L. 1322. (2) Id. 1323. 
 
 (3) n Wendell, 262 j 24 Barb. 16 ; 2 Doug. Mich. E. 372. 
 
 (4) Id. ibid. (5) 1 Mich. R. IT; 2 Doug. Mich. E. 312. 
 (6) 8 Cowen, 226; 3 Bac. Abr. 253. (1) 1 Kern. 94 
 
FORCIBLE ENTRIES AND DETAINERS, ETC. 549 
 
 restored to the possession whicli he unlawfully held. Thus, -when 
 A. obtained possession of the premises occupied by B., by knock- 
 ing the door open -vrith a hammer in B.'s absence, and in A.'s ab- 
 sence B. soon afterwards entered by similar violence, it was held 
 that A.'s temporary occupation, so acquired, was not such quiet 
 and peaceable possession as would enable him to maintain forcible 
 entry and detainer under the statute.(l) The possession ought to 
 be such as to be prima facie evidence of title, and not such merely 
 as shows that an intrusion or trespass has been committed by the 
 person forcibly put out. 
 
 § 1488. The person entitled to the possession of the premises, 
 his agent or attorney, may make complaint, in writing and on oath, 
 setting forth that the person complained of is in possession of the 
 lands or tenements in question, describing them, and that he en- 
 tered into the same with force, or that he unlawfully withholds the 
 same by force, and deliver such complaint to the circuit judge, or t 
 circuit court commissioner for the county. (2) The complaint must , 
 state that the complainant is entitled to the possession of the prem- 
 ises, but need not state any details of the circumstances upon 
 which it rests. (3) The general form indicated by the statute is 
 sufficient.(4) If it be for a forcible entry, and the detainer be not 
 forcible, it is not necessary to state in the complaint that the entry 
 was unlawful ; for if it was forcible, although entry was given by 
 law, the statute declares it unlawful. But if the entry was peace- 
 able, and the forcible detainer be complained of, it is necessary to 
 allege that the premises are unlawfully withheld by force ; for to 
 make such force unlawful, the possession itself must be so ; other- 
 wise the force would not be unlawful, because one may maintain 
 his rightful possession by force. 
 
 § 1489. Upon receiving such complaint, the of&cer to whom it 
 is delivered is required to issue his warrant, directed to the sheriff 
 or any constable of the same county, commanding him to appre- 
 hend the person named in such complaint, and to bring him forth- 
 with before such officer, to answer such complaint ; or such officer 
 may, at the option of the complainant, issue a summons against 
 the defendant, as in the case of a tenant holding over after the 
 expiration of his term ; and the sheriff or constable to whom any 
 such warrant shall be delivered, is required to execute the same 
 
 (1) 2 Doug. Mich. R. IT. (2) Oomp. L. 1323. 
 
 (3) 4 Mich. B. 344, 345. (4) Id. 
 
550 MISCELLANEOUS PKOCEEDINGS. 
 
 by arresting the defendant, and bringing him forthwith before the 
 officer who issued it, and thereupon to notify the complainant of 
 such arrest. Upon the defendant being brought before the officer 
 on such warrant, he may plead not guilty to the complaint ; or, if 
 he neglect or refuse to plead thereto, the officer must enter such 
 plea for him.(l) 
 
 § 1490. On such issue being joined, the officer possesses all the 
 powers necessary for the trial and determination thereof, and may 
 issue subpoenas for witnesses, and compel their attendance, in like 
 manner as justices of the peace are authorized to do within their 
 jurisdiction, and may enforce obedience to all orders and process 
 lawfully made or issued by him.(2) If neither party demand a 
 jury, the trial is had by the officer ; but if, before proceeding to the 
 trial of the issue, either the complainant or defendant request that 
 it be tried by a jury, such jury is required to be selected and sum- 
 moned, and the same proceedings to be had, in all respects, as upon 
 the trial of a cause by a j ury in a j ustice's co urt, except that the sher- 
 iff, if present, may perform the same duties in the selecting, sum- 
 moning and keeping of the jury, as constables are authorized to per- 
 form in justice's courts, and the venire is to be directed to the sheriff 
 or any constable of the county .(3) Under this provision of the 
 statute, the jury will be selected in the following manner : The 
 officer will direct the sheriff, or a constable, or some other disin- 
 terested person of the county, to write down a list of the names of 
 eighteen inhabitants of the county, qualified to serve as jurors in 
 courts of record, who shall be nowise of kin to the complainant 
 or defendant, nor interested in the suit ; the officer or persoui 
 making the selection being first sworn to select such persons 
 according to his best judgment, and without favor or partiality to 
 either party. (4) 
 
 § 1491. From such list each party may strike off six names; 
 and in case of the absence or refusal of either party to strike out, 
 the officer before whom the issue is pending will strike out for him 
 six names from such listj and such officer thereupon issues a 
 venire, directed to the sheriff or any constable of the county, re- 
 quiring him to summon the six persons whose names remain on, 
 the list, to appear before such officer at a time and place to be 
 named therein, for the trial of such issue ; and the sheriff or con- 
 
 (1) Comp. L. 132a. (2) Id. 1323, 1324, 1321. 
 
 (3) Id. 1324. (4) Id. 1Q65. 
 
FOEOIBLE ENTRIES AND DETAINERS, ETC. 551 
 
 stable is required to serve such venire personally on each juror 
 named therein, if he be found within his county. The parties may 
 agree upon six, or any less number of jurors, to try the cause ;, in 
 "which case the venire is issued for summoning the persona so' 
 agreed upon, who, when summoned and appearing, will constitute 
 the jury ; and the officer will make an entry of such proceedings in 
 his minutes. If any of the jurors named in the venire are not 
 found, or fail to appear according to the summons, or if there 
 should be any legal objection to any who appear, it is the duty of 
 the sheriff or constable, on being so directed by the officer, to sum- 
 mon a sufficient number of talesmen to supply the deficiency.(l) 
 
 § 1492. After an issue has been joined upon any complaint, 
 pursuant to the statute, the hearing may be adjourned from time 
 to time, as may be necessary, upon sufficient cause being shown, 
 not exceeding thirty days. If such hearing Be adjourned on the 
 application of a defendant proceeded against by warrant, and the 
 complainant does not consent thereto, such defendant must con- 
 tinue in the custody of the sheriff or constable, unless he shall 
 give bond to the complainant in the penal sum of fifty dollars, 
 conditioned to pay all such costs as may be awarded against him 
 in such cause.(2) 
 
 Upon the trial of the issue, the mode of procedure and the 
 rules of evidence are the same as upon a trial before a justice of 
 the peace or in a court of record, and no ex parte affidavit relating 
 to such issue can be received in evidence, uijless the parties agree 
 to allow the same. (3) 
 
 § 1493. If the complaint be for a forcible entry, upon the 
 trial of the issue, or upon the default of the defendant to appear, 
 if he was proceeded against by summons, the complainant must 
 show that he was in the quiet and peaceable possession of the 
 premises described in his complaint, and that the defendant entered 
 into the same with force ; but he need not show any other evidence 
 of title than his possession, and this evidence cannot be over- 
 thrown by the defendant, either by showing a legal title in him- 
 self or the want of it in the complainant, because neither will justify 
 his forcible entry.(4) Proof that he was in the full and peaceable 
 possession of the premises, not as a mere trespasser or intruder, and 
 that he has been forcibly expelled therefrom, gives him the right 
 
 (1) Comp. L. 1065, 1066. (2) Id. 132S. 
 
 (3) Id. 1066. (4) See 4 Mioh. E. 343. 
 
552 MISCELLANEOUS PROCEEDINGS. 
 
 to be restored to his former possession, and supports the allegation 
 in his complaint, that he is entitled to the possession of the 
 premises.(l) But if the complaint be for a forcible detention 
 only, the complainant must show his title and right to the posses- 
 sion, and that the possession of the defendant is unlawful, and held 
 by force. 
 
 § 1494. If the defendant be convicted upon a trial before the 
 officer, or by the verdict of a jury, or upon a plea of guilty to 
 such complaint, the officer who issued the process is required 
 thereupon to enter a judgment that the complainant have restitution 
 of the premises, and to tax the costs and expenses of the com- 
 plainant ; and also to issue a precept, commanding the sheriff or 
 any constable of the county to cause the complainant to be re- 
 stored, and put in full possession of such premises; and also, in 
 the same precept, or in a separate execution, to direct the costs 
 and expenses so taxed to be levied and collected of the defendant, 
 in the same manner as costs are or may be collected on judgments 
 before justices of the peace in personal actions.(2) But if the 
 complainant fail to prosecute his complaint, or on such trial the 
 defendant be found not guilty, judgment will be rendered in his 
 favor for his costs, to be taxed and collected of the complainant 
 in the same manner provided for the collection of costs in favor 
 of a complainant recovering judgment. (3) 
 
 § 1495. The statute further provides for recovering the posses- 
 sion of premises, by the person entitled thereto, by a summary 
 proceeding, in the following cases : 
 
 1. When any person shall hold over any lands or tenements 
 after the time for which they are demised or let to him, or to the 
 person under whom he holds, or contrary to the conditions or 
 covenants of any lease or agreement under which he holds ; 
 
 2. When any rent shall become due on any such lease or agree- 
 ment, and the tenant or person in possession shall have neglected 
 or refused, for fourteen days after demand of the possession made 
 in writing, to deliver up possession of the premises, or pay the 
 rent so due ; 
 
 3. When any person shall continue in possession of any prem- 
 ises sold by virtue of any mortgage or execution, after the 
 expiration of the time limited by law for the redemption of such 
 premises ; 
 
 (1) 1 How. Pr. R. 441. (S) Comp. L. 1324. (3) Id. ibid. 
 
FORCIBLE ENTRIES AND DETAINERS, ETC. 553 
 
 4. When any tenant at will or by sufferance shall hold over 
 after the determination of his estate by a notice to quit, as pro- 
 vided by la-w.(l) 
 
 § 1496. In the cases specified in the last preceding section, the 
 person entitled to the possession of the premises, his agent or 
 attorney, may make complaint, in writing and on oath, and deliver 
 the same to the circuit judge or circuit court commissioner for the 
 county, setting forth that the person complained of is in possession 
 of the lands or tenements in question, describing them, and that 
 such person holds the same unlawfully, and against the right of 
 the complainant.(2) The form of the complaint, like that for a 
 forcible entry or detainer, or a declaration in ejectment, is general, 
 and it is sufficient if it follow the statute. The premises must be 
 described with the same degree of particularity which is required 
 in a declaration in ejectment, for which this proceeding is a substi- 
 tute. The rule in such cases is, that they must be described -with 
 such convenient certainty, that the officer executing a writ of 
 restitution will be enabled, from such description, to distinguish 
 the premises in question, and to put the complainant in possession. 
 
 § 1497. Upon receiving such complaint, the officer to whom it 
 is delivered is required to issue a summons; directed to the sheriff 
 or any constable of the same county, commanding him to summon 
 the defendant to be and appear before such officer, at a time and 
 place therein to be specified, not less than three nor more than six 
 days from the issuing thereof, to answer to such complaint. The 
 summons must be served by the officer to whom it is delivered, at 
 least two days before the return day thereof, by reading the same 
 to the defendant, if he be found within the county, and delivering 
 to him a copy thereof, if required ; or by leaving a true copy 
 thereof, certified by him, at the usual place of abode of such defend- 
 ant, with some person of suitable age, to whom he must explain 
 the contents thereo£(8) 
 
 § 1498. Upon the return of such summons, if the same be 
 returned duly served, and the defendant appear, such defendant 
 may plead not guilty to the complaint ; or, if he neglect or refuse 
 to plead thereto, the officer is required to enter such plea for him ; 
 and thereupon the issue will be tried, and judgment rendered, and 
 the same proceedings had thereon in all respects, and the costs 
 
 (1) Comp. L. 1324, § 12. (S) Id. § 13. (3) Id. 1325. 
 
554 MISCELLAKEOtrS PHOCEEDINGS. 
 
 taxed and collected, in tlie same manner as in cases of forcible 
 entry or detainer, and -vfith tlie like effect.(l) 
 
 On the trial of the issue, the complainant must rely upon the 
 strength of his own title, as in an action of ejectment, and notupon 
 the weakness of the title of the defendant, and whatever would 
 be proper to be given in evidence in defence in such an action, 
 may also be given in evidence upon such trial, under the plea of 
 not guilty. 
 
 § 1499. In the case of a tenant holding over contrary to the 
 terms and conditions of the demise, he cannot dispute the title of 
 his landlord, nor, by his own act merely, change the tenure, so as 
 to enable himself to hold against his landlord. Thus, where A. 
 complained against B. for holding over certain premises, contrary 
 to the terms and conditions of his lease ; proof was offered in 
 defence, that B. was, at the time of the alleged leasing from A., 
 in possession of the premises under a subsisting lease from C, it 
 was held competent either for B., the tenant, or C, his landlord, 
 to defend by showing these facts, even though A. claimed title to 
 the premises under an act of the legislature granting them to 
 him.(2) The contents of a notice to quit may be proved either by 
 a duplicate original, compared by the party serving it, or by parol 
 evidence of its contents, without giving notice to produce the 
 original.(3) Where the statute required a demand, in writing, of the 
 premises, at least twenty days before summary proceedings should 
 be commenced to recover possession, it was held that a demand 
 requiring the tenant to quit the premises in ten days, but which 
 was served twenty days before proceedings instituted, was suf&- 
 cient.(4) It was also held that the proceedings to recover posses- 
 sion of the premises for the non-payment of rent, was properly 
 instituted by the lessor in his own name, although he had pre- 
 viously assigned the rents to accrue under the lease to a third 
 person.(5) 
 
 § 1500. The summary remedy given by the statute to obtain 
 possession of lands sold under a mortgage or execution, after the 
 time limited for redemption has expired, applies only where there 
 is a privity between the parties, and not where the grantee of a 
 purchaser on such sale seeks to recover possession from a person 
 who holds adversely to the mortgagor or judgment debtor.(6) And 
 
 (1) Comp. L. 1326, 1326. (2) 1 Dong. Mich. E. 1V9 ; 2 id. IIT. 
 
 (3) Id. ibid. ; Till. Ad. on Ej. 313. (4) 2 Dong. Mich. B. 120. 
 
 (6) Id. ibid. (6) 2 Doug. Mich. R, SYt. 
 
FORCIBLE ENTRIES AND DETAINEES, ETC. 555 
 
 when a purchaser under a statutory mortgage foreclosure, seeks to 
 recover the possession of a per^n holding over after the time 
 limited for redemption has expired, he must prove the regularity 
 of all the proceedings on the foreclosure; (1) and whether the com- 
 plaint be for a forcible entry or detainer, or for holding over after 
 nonpayment of rent, or otherwise, the defendant may show in his 
 defence that he, or his ancestors, or those under whom he holds 
 the premises, have been in the quiet possession thereof for three 
 years next before the filing of the complaint ; and unless it also 
 appear that his estate therein is ended, no restitution can be made 
 under the statute.(2) 
 
 § 1501. If the defendant fail to appear on the return of the 
 summons duly served, the hearing may be adjourned, in the dis- 
 cretion of the officer, not more than six days from such return ; 
 and on the day to which the hearing may be adjourned, if the 
 defendant appear, the same proceedings may be had as if he had 
 appeared at the return of the summons. If the defendant fail to 
 appear on the return of the summons, and there be no adjourment, 
 or if he fail to appear on the day to which the hearing may be 
 adjourned, the officer is required to note such failure in the minutes 
 of his proceedings, and proceed to hear the complaint, and to in- 
 quire into the truth thereof; and if such of&cer be satisfied that 
 the complaint is true, and that the complainant is entitled to resti- 
 tution of the premises, he will render judgment accordingly, and 
 tax the costs for the complainant, and issue a writ of restitution, 
 and process for the collection of the costs, as in other cases, and 
 with the like effect,(3) and if the defendant be found guilty of for- 
 cibly or unlawfully holding over or detaining any part of the 
 premises, judgment may be rendered in accordance with such find- 
 ing.(4) But no writ of restitution can be issued under the statute, 
 until the expiration of five days after the entry of judgment of 
 restitution, and in case of an appeal within that time, not until 
 such appeal shall be determined.(6) 
 
 § 1502. The statute also provides that every person summoned 
 as a juror, or subpoenaed as a witness, who shall not appear, or, 
 appearing, shall refuse to serve or testify in any such cause prose- 
 cuted under the statute, shall forfeit and pay for every such 
 refusal, unless some reasonable excuse be shown, such fine, not 
 
 (1) 2'Doug. Mioh. R. 3U. (2) Comp. L. 132'7. (S) Id. 1326. 
 
 (4) Id. 1328, 1329. (5) Id. 1328. 
 
556 MISCELLANEOUS PROCEEDINGS. 
 
 exceeding ten dollars, as the officer before -whom the proceedings 
 are instituted shall think proper to impose; and such officer is 
 authorized and required to issue an execution for the collection 
 thereof, directed to the sheriff or any constable of the county, in 
 the same manner, and with the like effect, as justices of the peace 
 are authorized to do in cases of similar fines imposed by them.(l) 
 
 § 1503. The complainant obtaining restitution of any premises 
 under the provisions of this statute, is also entitled to an action of 
 trespass, or trespass on the case, against the defendant, and may 
 recover treble damages from the time of the forcible entry, or 
 forcible detainer, or of the notice to quit, or demand of possession, 
 as the case may be and all other damages to which he may be 
 entitled ;(2) or if the suit be appealed, such complainant may, at 
 his election, bring his action upon the appeal bond.(3) 
 
 § 1504. Either party, considering himself aggrieved by the 
 determination or judgment of the judge or commissioner, may 
 appeal therefrom to the circuit or district court for the same county, 
 within the same time, in the same manner; and a return to such 
 appeal may be compelled, and the same proceedings thereupon had, 
 as near as may be, and with the like effect, as in cases of appeals 
 from judgments rendered before justices of the peace, and costs 
 may be awarded and collected in the circuit court in the same 
 manner. But before any appeal by a defendant can be allowed, he 
 must, in addition to the usual recognizance, make and execute to 
 the complainant a bond, in a penalty to be fixed by the judge or 
 commissioner, not less than twice the annual rent of the premises 
 in dispute, with good and sufficient sureties, who shall justify, and 
 also be approved by the judge or commissioner, conditioned that 
 if the complainant obtain restitution of the premises in the suit, 
 the defendant will forthwith pay all the rent due or to become 
 due to the complainant for the premises described in the com- 
 plaint, up to the time the complainant shall obtain possession 
 thereof, together with costs of suit in prosecuting said complaint, 
 and obtaining restitution' of said premises ; which bond must be 
 delivered to the complainant, his agent or attorney. 
 
 § 1505. The trial in the circuit or district court, upon an 
 appeal, is conducted in the same manner as in cases appealed from 
 
 (1) Comp. L. 132t ; and sea id. 1063, 1064, 1068. 
 
 (2) Id. 132T. (3) Id. 1328. 
 
FOECIBLK ENTRIES AND DETAINEES, ETC. 557 
 
 a justice's court, and tlie issue may be tried by the court, or by a 
 jury on the demand of either party ; or the court may order it to 
 be tried by a jury, if it seem to the court more proper that it 
 should be so tried. Although the proceedings in their inception 
 are summary, the trial in the circuit court is according to the 
 course of the common law, and a writ of error therefore lies to 
 remove the judgment to the supreme court for review. (1) Hence, 
 exceptions may be taken to the rulings and charge of the court, 
 and a bill of exceptions settled as in ordinary actions.(2) If, upon 
 the trial of an appeal in the circuit court, judgment be rendered 
 in favor of the complainant, upon delivering a certified copy of 
 the entry thereof to the officer before whom the proceedings were 
 commenced, he is required to issue his precept for restoring to the 
 complainant the possession of the premises.(3) 
 
 § 1506. Complaint for a forcible entry. 
 
 County" of , ss : H. W. B., being duly sworn, makes 
 
 complaint, and on his oath says, that heretofore, to wit., on the 
 
 — day of , A. D. , he was in the quiet and peaceable 
 
 possession of the following described lands and premises, situate 
 
 in , in said county, to wit., [here describe the premises with 
 
 sufficient certainty,] and that on the day and year last aforesaid, 
 0. R. unlawfully entered into the same premises with force, and 
 ejected and expelled this complainant therefrom, and has ever 
 since continued, and still is unlawfully in the possession of the 
 said lands and premises, contrary to the statute in such case made 
 and provided ; and that this complainant is well entitled to the 
 possession thereof; wherefore he prays that he may be restored to 
 the possession of the same. H. W. B. 
 
 Sworn, &c.(4) 
 
 § 1507. Complaint for a forcible detainer, where entry was made 
 in a peaceable manner. 
 
 County of , ss: J. C, being duly sworn, makes 
 
 complaint, and on his oath says, that heretofore, to wit., on the 
 
 — day of , he was in the quiet and peaceable possession of 
 
 the following described lands and premises, situate in in said 
 
 county, to wit., [describe the premises -^ith sufficient certainty,] 
 and that on the day and year last aforesaid, 0. R. forcibly entered 
 into the said premises, and unlawfully holds the same, and holds 
 this complainant out of the possession thereof by force, contrary 
 to the statute in such case made and provided, and to the great 
 disturbance of the people of the state of Michigan, and tiiat this 
 complainant, at the time of the said entry, was, and ever since has 
 been, and still is, well entitled to the possession of the same • 
 
 (1) 4 Mieh. R. 629. (2) Id. ibid. (3) Comp. L. 1328. (4) Id. 1323. 
 
558 MISCELLANEOUS PROCEEDINGS. 
 
 ■wherefore he prays that he may be restored to the possession of 
 the said lands and premises. J. C. 
 
 Sworn, &o. 
 
 § 1508. Warrant for arrest of person complained against for a 
 forcible entry. 
 
 In the name of the People of the State of Michigan. To 
 
 THE sheriff [or "any constable"] OF the county of : 
 
 Whereas H. W. B. hath made complaint, in writing 
 and on oath, and delivered the same to E. F. M., circuit 
 
 court commissioner for the county of , setting forth 
 
 that Ijeretofore, to wit., on the — day of , he was in the 
 
 quiet and peaceable possession of the following described lands 
 
 and premises, situate in , in said county to wit., [describe the 
 
 lands as in the complaint], and that on the day and year last afore- 
 said, 0. E.* entered into the same premises with force, and ejected 
 and expelled the said H. W. B. therefrom ; and that he, the said 
 O. E. hath ever since been, and still is unlawfully in possession of 
 the said lands and premises, contrary to the statute in such case 
 made and provided, and to the great disturbance of the people of 
 the state of Michigan ; and that he, the said H. W. B., is well 
 entitled to the possession thereof: Now, therefore, we command 
 you to apprehend and take the said 0. E., and bring him forthwith 
 before the said E. F. M., circuit court commissioner for the said 
 county, at his office in said county, to answer the said complaint. 
 And have you there then this writ. 
 
 Given under my hand, at , this — day of , one thousand 
 
 eight hundred and . 
 
 E. F. M., Circuit Court Com'rforthe county of .(1) 
 
 E. F., Attorney. 
 
 § 1509. Warrant for arrest of person complained against for a 
 forcible detainer. 
 
 [As in the last form to the *, and then as follows :] Peaceably 
 entered into the same premises, and unlawfully holds the same, and 
 holds the said complainant out of the possession thereof by force, 
 contrary to the statute in such case made and provided, and to the 
 great disturbance of the people of the state of Michigan ; and that 
 he, the said complainant, at the time of the said entry, was, and 
 ever since has been, and still is,- well entitled to the possession of 
 the same: Now, therefore, &c., [as in the last form to the end.(2) 
 
 § 1510. Summons on complaint for a forcible entry or forcible de- 
 tainer. 
 
 [As in one of the last two forms, according as the circumstances 
 may be, to the end of the recital of the complaint, and then as fol- 
 
 (1) Comp. L. 1323. (2) Id. 1323. 
 
FOECIBLK ENTRIES AND DETAINEES, ETC. 559 
 
 lows :] Now, therefore, we command you to summon the said 0. 
 E., to be and appear before E. F. M., circuit court commissioner 
 
 for the county of , at his office in ■, in said county, on 
 
 the — day of next, [or ^'instant,"] at ten o'clock in the fore- 
 noon, to answer the said complaint. And have you then there 
 this writ. 
 
 Given under my hand, at , this — day of , one thousand 
 
 eight hundred and . [Signature of officer.](l) 
 
 § 1511. Officer's return to warrant. 
 
 I have taken the within named 0. R., whose body I have 
 here ready, as within I am commanded. 
 
 S. T., Sheriff, [or " constable:''] 
 [If the defendant cannot be found within the county, the return 
 may be as follows : " The within named 0. R. is not found in the 
 
 county of - — ■." Other forms of returns may be required in 
 
 special cases, which will correspond with returns to a capias ad re- 
 spondendum in similar cases.] 
 
 § 1512. Officer's return to summons. 
 
 On the — day of ' I served the within summons, person- 
 ally, on the within named defendant, by reading the same to him, and 
 delivering him a copy thereof, at his request ; [or, " On the — day 
 
 of I served the within summons, by leaving a true copy thereof, 
 
 certified by me, at the usual place of abode of the within named 0. R., 
 with a pierson of suitable age, to whom I explained the contents there- 
 ofr^i'i) 
 
 § 1513. Venire for jury . 
 
 In the name of the People op the State op Michigan. To 
 
 THE SHERIFP [OR " any constable"] OF the countt OF : 
 
 "We command you that, without delay, you summon B. F., 
 G. H., I. J., K. L., M. N., and 0. P., good and lawful men, 
 selected according to the statute in such case made and pro- 
 vided, [or, " agreed upon by the parties,"] to be and appear before E. 
 
 P.- H., circuit court commissioner for the county of , at his 
 
 office in , in said county, on the — day of ■ instant, at ten 
 
 o'clock in the forenoon, to form a jury for the trial of a certain 
 issue joined between A. B., complainant, and 0. D., defendant, 
 upon the complaint of the said A. B., for an alleged forcible entry, 
 [or '^forcible detention,"] by the said 0. D., of certain lands and 
 premises therein described, to the possession whereof the said A. 
 B. claims to be well entitled, then and there to be tried before the 
 said E. P. H., commissioner as aforesaid. [If the complaint be for 
 holding over, contrary to the terms of a lease or other agreement, 
 or after the termination of a tenancy at will, &c., the statement of 
 
 (1) Comp. L, 1323, 1325. (2) Id. 1325. 
 
560 MISCELLANEOUS PKOOBEDINGS. 
 
 the matter in issue will be varied accordingly.] Hereof fail not, 
 and of this writ make due return. 
 
 Given under my hand, at , in the county of , this — 
 
 day of , one thousand eight hundred and ■ . 
 
 [Signature of officer.] 
 
 § 1514. Subpoena for witnesses. 
 In the name of the People of the state of Michigan. To 
 
 O. C, E. M., AND I. S. 
 
 You are hereby commanded personally to be and appear 
 before B. F. M., circuit court commissioner for the county of' 
 
 at his office in , in said county, on the — day of instant, 
 
 at ten o'clock in the forenoon, to testify what you may know re- 
 lating to a certain issue joined between A. B., complainant, and C. 
 D., defendant, upon the complaint of the said A. B., for a forcible 
 entry into certain premises therein described, and then and there 
 to be tried between the parties aforesaid, before the said E. F. M., 
 circuit court commissioner as aforesaid. And this you are not to 
 omit under the penalties imposed by law for such omission. 
 
 Given under my hand, at , this — day of , one thousand 
 
 eight hundred and . [Signature of commissioner.] 
 
 § 1515. Oath to jurors. 
 
 You shall well and truly try this matter in difference be- 
 tween A. B., complainant, and 0. D., defendant, and unless dis- 
 charged by me, a true verdict give, according to law and evi- 
 dence.(l) 
 
 § 1516. Oath to witness. 
 
 You do solemnly swear that the evidence you shall give, 
 relating to the matter in difference between A. B., complainant, 
 and C. D.,. defendant, shall be the truth, the whole truth, and noth- 
 ing but the truth.(2) 
 
 § 1517. Oath to officer attending jury. 
 
 You do swear [or " affirm "] that you will, to the utmost of 
 your ability, keep the persons sworn as jurors on this trial, in some 
 private and convenient place, without meat or drink, except such 
 as shall be ordered by me ; that you will not suffer any communi- 
 cation, orally or otherwise', to be made to them ; that you will not 
 communicate with them yourself, orally or otherwise, unless by my 
 order, or to ask them if they have agreed upon their verdict, until 
 they shall be discharged ; and that you will not, before they render 
 their verdict, communicate to any one the state of their delibera- 
 tions or the verdict they have agreed upon. (3) 
 
 (1) Comp. L. 1066. (2) Id. 106f. (3) Id. 106'7, 1068. 
 
FOECIELE ENTEIBS AND DETAINEES, ETC. 561 
 
 § 1518. Verdict of the jury. 
 
 We find the defendant guilty [or "not guilty'''''] of unlawfully 
 entering into the premises described in the complaint in this cause, 
 ^vith force, [or " of unlawfully detaining the inemises described in the 
 com2')laint in this cause hy force f or '■'■we find that the said defendant is 
 in the possession of the premises described in the complaint in this cause, 
 and that he is guilty of unlawfully holding the same against the right 
 of the complainant,^'' or as the case may be,] in manner and form as 
 the said A. B. hath in his complaint in this cause alleged. 
 
 § 1519. Complaint for unlawfully holding over after the right to 
 hold has ceased. 
 
 County of , ss: A. B., being duly sworn, makes 
 
 complaint, and on his oath says, that C. D. is now in the possession 
 
 of the following described lands and premises, situate in , in. 
 
 said county, to wit., [describe the premises with sufficient certainty,] 
 and that he holds the same unlawfully, and against the right of 
 this complainant. A. B. 
 
 § 1520. Summons on complaint for holding over after the right to 
 hold has ceased. 
 
 [The form of the summons is the same as in the case of a forcible 
 entry, or forcible detainer, except in the recital of the complaint, 
 which must be varied as the circumstances require.] 
 
 § 1521. Conviction of defendant on trial before officer without a 
 jury, and judgment thereupon. 
 
 A. B., Complainant, | j3^fo,g^_ g. C, Circuit Court Commis- 
 C. D., Defendant. ) ^^«^^^' ^°^ *^^ ^^^^^^^ «^ • 
 
 A. B., the complainant in this cause, having made com- 
 plaint, in writing and on oath, and delivered the same to me, set- 
 ting forth, &c., [state the substance of the complaint,] and I having 
 thereupon, at the request of the said complainant, issued a warrant, 
 [or ^^ summons,'" as the fact may be,] directed to the sheriff or any 
 
 constable of the county of , commanding him to apprehend 
 
 the said C. D., and to bring him forthwith before me to answer the 
 said complaint: [or "commanding him to summon the said C. I).,'" &c.] 
 And the said C. D. having been duly brought before me by the 
 sherift" [or "0. F., a constable,"] of the said county, by virtue of the 
 warrant aforesaid, [or " and the said C. D. having didy appeared be- 
 fore me, in pursuance of the said summons,'" or as the case may be,] 
 
 at my ofEice in , in said county, on the — day of ; and 
 
 pleaded not guilty to the said complaint, * and the said parties 
 being ready for trial, thereupon, to wit., on the day last aforesaid, 
 proceeded to the trial of the issue so joined as aforegaid before me. 
 And after hearing the proofs and allegations of the parties, and the 
 arguments of counsel, it is adjudged and determined, and I do 
 hereby adjudge and determine, that the said C. D. is guilty of un- 
 
 36 
 
562 MISCELLANEOUS PROCEEDINGS. 
 
 lawfully entering into the premises described in the complaint in 
 this cause with force, [or "0/ unlawfully detaining the premises de- 
 scribed in the complaint in this cause hy force /" or " that the said C. D. 
 is in possession of the premises described in the complaint in this cause, 
 and that he is guilty of unlawfully holding the same against the right of 
 the complainant,^^'] in manner and form as the said A. B. hath in his 
 said complaint alleged. [If it appear on the trial that the defend- 
 ant is guilty of forcibly or unlawfully holding over or detaining 
 Only a part of the premises described in the complaint, the finding 
 of the court will specify what part, and the judgment be rendered 
 accordingly.] It is therefore Ordered and adjudged, that the said 
 A. B. have restitution of the premises, as described in his said 
 complaint. And it is further Ordered and adjudged, that the said 
 A. B. do recover against the said C. D. his costs and expenses of 
 
 the said complaint now here taxed at the sum of dollars, and 
 
 that he have execution thereof. Dated, &c. 
 
 A. B. C, Circuit Court Com'r for the county of . 
 
 § 1522. Trial by jury, conviction and judgment thereon. 
 
 [As in the last form to the *, and then as follows :] And 
 the said complainant, [or "defendant,"] before proceeding to the 
 trial of the issue so joined, having requested that the same should 
 be tried by a jury, thereupon six good and lawful men, to wit., 
 [state the names of the jurors,] were duly selected and summoned 
 to constitute a jury for the trial of the said issue, in pursuance of 
 the statute in such case made and provided, and who afterwards, 
 
 to wit., on the — day of , appeared before me in pursuance of 
 
 the said summons ; and the said parties being present and ready for 
 trial, and the jurors aforesaid being duly impanneled, tried and 
 sworn, after having heard the proofs and allegations of the parties 
 and the arguments of counsel, retired under the charge of C. B., 
 sheriff of the said county, [or " 0. P., one of the constables of the said 
 county,"] duly sworn for that purpose, to consider of their verdict 
 to be given ; and, after being absent for a time, returned into my 
 of&ce, and before me say, upon their oath, that they find [state the 
 verdict of the jury, as in § 1518.] It is therefore Ordered and 
 adjudged, &c., [as in the last form to the end.] 
 
 § 1523. Precept to restore premises to complainant, with execution 
 for costs, &c. 
 In the name of the People of the State of Michigan. To 
 
 THE sheeifp [or " any constable"] OF THE COUNTY of : 
 
 Whereas A. B. did, on the — day of , make complaint, 
 
 in writing and on oath, and deliver the same to the undersigned 
 A. E. C, circuit court commissioner for the county of -, set- 
 ting forth, &c. [state the complaint and subsequent proceedings, as 
 in one of the last two preceding forms, including the judgment of 
 restitution, and for costs and expenses, and then proceed as follows;] 
 You are therefore hereby commanded to cause the said complain- 
 ant to be restored and put into full possession of the said premises, 
 according to the force, form and effect of his said recovery. 
 
FOECIBLE ENTEIES AND DETAINERS, ETC. 663 
 
 And you are also further commanded to levy the said sum of 
 dollars of the goods and chattels of the said C. D. within 
 
 your' county, (excepting such goods and chattels as are by law 
 exempted from execution,) and bring that money before the said 
 
 A. E. C, circuit court commissioner as aforesaid, at his office in , 
 
 in said county, in sixty days from the date hereof, to render to 
 the said A. B. for his costs and expenses aforesaid. Hereof fail 
 not, and of this writ make due return. 
 
 Given under my hand, the — day of , one thousand eight 
 
 hundred and . 
 
 A. E. C, Circuit Court Com'r for the county of .(1) 
 
 § 1524. Affidavit for appeal. 
 
 CD. ) 
 ads. \ 
 
 A. B. ^ 
 
 County of , ss : C. D., the defendant above named, 
 
 being duly sworn, deposes and says, that on the — day of 
 
 last, [or " instant,^''] A. B. made complaint, in writing and on oath, 
 and delivered the same to J. M. N., circuit court commissioner for 
 
 the county of , setting forth that, &c. [state the substance of 
 
 the complaint.] And that afterwards, to wit., on the — day of 
 
 , this deponent appeared before the said J. M. N., commissioner 
 
 as aforesaid, pursuant to a summons issued by the said commisioner 
 upon the aforesaid complaint, [or " wa^ brought before the said J. M. 
 N., commissioner as aforesaid, upon a warrant by him issued upon the 
 aforesaid complaint"] and thereupon pleaded not guilty to said com- 
 plaint ; and that such proceedings were thereupon had, that after- 
 wards, to wit., on the — day of instant, [or "last past,"] the 
 
 said commissioner made and entered a judgment that the said 
 A. B., complainant, should have restitution of the premises as 
 described in his said complaint, and also that the said A. B. should 
 recover against this deponent the costs and expenses of his said 
 complaint, then there taxed at the sum of ■ — • — dollars, and that 
 he, the said A. B., should have execution thereof. And this depo- 
 nent further says, that the said judgment, so rendered, is not in 
 accordance with the just rights of this deponent, as he verily 
 believes. [If there be any objection to the process, complaint, or 
 other proceedings, and the decision of the commissioner thereon, 
 which would not be allowed to be made on the trial of the appeal, 
 the same may be set forth specifically in the affidavit.] And fur- 
 ther this deponent saith not. C. D. 
 Sworn, &c.(2) 
 
 § 1525. Recognizance on appeal. 
 
 Be it kemembered. That on this — day of , one 
 
 thousand eight hundred and , before E. F. M., circuit court 
 
 commissioner for the county of , personally appeared C. D., 
 
 (1) Comp. L 1324, lOfl. (2) Id. 1327, 1080. 
 
564 MISCELLANEOUS PEOCEEDHSTGS. 
 
 as principal, and E. M. and R. D., as sureties, and severally 
 acknowledged themselves to be indebted unto A. B. in the penal 
 
 sum of dollars, to be levied of their several goods and 
 
 chattels, lands and tenements, to the use of the said A. B., if 
 default shall be made in the condition following : 
 
 Whereas, the above-named A. B., lately, before E. F. M., cir- 
 cuit court commissioner as aforesaid, prosecuted a certain com- 
 plaint by him made against the said C. D., for entering into certain 
 premises therein described, with force, [or as the case may be,] to 
 which said complaint the said C. D. pleaded not guilty ; and such 
 proceedings were thereupon had, that afterwards, to wit, on the 
 
 — da}'' of last, [or '■'■instant"] a judgment was rendered by 
 
 the said E. F. M., as such circuit court commissioner, for a restitu- 
 tion of the said premises to the said A. B. ; and, also, that he, the 
 said A. B., recover against the said 0. D. his costs and expenses of 
 
 the said complainant, then and there taxed at the sum of 
 
 dollars, and that the said A. B. have execution thereof; from which 
 said judgment the said C. D. is about to appeal to the circuit court 
 for the said county of : Now the condition of this recog- 
 nizance is such, that if the said C. D. shall prosecute his said 
 appeal with all due diligence to a decision in the said circuit court, 
 and in case a judgment be rendered against him in such court, if 
 he shall pay the amount thereof, including the costs of the said 
 appeal, with interest thereon ; and in case his said appeal shall be 
 discontinued or dismissed, if he shall pay the costs of such appeal, 
 then this recognizance is to be void ; otherwise of force. 
 
 Taken and acknowledged before I C. D. 
 
 me, this — day of , V E. M. 
 
 A. D. 18—. \ R. D. 
 
 E. F. M., Circuit Court Com'r for 
 the county of . 
 
 I hereby certify that the sureties in the above [or ^'■within"'] 
 recognizance justified their responsibility on oath before me, this 
 
 — day of , A. D. 18 — . [Signature of officer.](l) 
 
 § 1526. Bond to he given hy defendant on appeal, in addition to 
 recognizance. 
 
 Know all men bt these presents, That avc, C. D., as 
 principal, and E. M. and E. D., as sureties, are held and firmly 
 bound" unto A. B. in the sum of — — dollars, lawful money, to be 
 paid to the said A. B., his heirs, executors or administrators, to the 
 payment of which sum, well and truly to be made, we bind our- 
 selves, our executors and administrators firmly by these presents. 
 Sealed with our seals, and dated this — day of , A. D. 18 . 
 
 AVhereas the above-named A. B., lately, &c., [recite proceed- 
 ings and judgment before the commissioner, &c., as in last form, 
 and then proceed as follows :] Now, therefore, the condition of 
 
 (1) Comp. L. 1327, 1080, 1081. 
 
PUNISHMENT OF FEAUDULENT DEBTORS. 565 
 
 this obligation is sucli, that in case the said A. B. shall obtain resti- 
 tution of the premises described in the said complaint in the said 
 suit, upon the said appeal, if the said C. D. shall forthwith pay all 
 the rent due or to become due to the said complainant for the said 
 premises, up to the time when the said complainant shall obtain 
 possession thereof, together with costs of suit in prosecuting said 
 complaint, and obtaining restitution of the said premises, then this 
 obligation is to be void; otherwise to remain in full force and 
 virtue. C. D. [l. s.] 
 
 E. M. [L. s. i 
 E. D. [L. s.] 
 
 § 1527. Trial in the circuit court ly jury, and verdict and 
 judgme^it for complainant. 
 
 A. B., Complainant, 1 Proceeding to recover possession of land. 
 vs. > Appeal from judgment of commis- 
 
 C. D., Defendant. ) sioner. 
 
 The parties in this suit being in court, ready for trial, 
 thereupon came a jury, to wit, [names of jurors,] good and law- 
 ful men, who were duly impanneled, tried and sworn well and truly 
 to try the issue between the parties, and after hearing the proofs 
 and allegations of the parties, the arguments of counsel, and the 
 charge of the court, retired under the charge of W. A., an officer 
 of the court duly sworn for tliat purpose, to consider of their ver- 
 dict to be given; and, after being absent for a time, return into 
 court, and say, upon their oath, that they find, &c., [set forth th« 
 verdict as in § 1.518.] And it is thereupon Ordered and adjudged, 
 that the said A. B. have restitution of the premises, as described 
 in the said complaint. And it is farther Ordered and adjudged, 
 that the said complainant do recover against the said defendant 
 his costs and charges by him about his suit in this behalf expended 
 to be taxed, and that he have execution thereof. 
 
 [Execution upon the judgment for costs issues out of the circuit 
 court ; but, in order to obtain restitution of the premises, the com- 
 plainant must obtain a certified copy of the judgment, and deliver 
 it to the commissioner, who will thereupon issue his precept for 
 that purpose, reciting the proceedings had before him, as in § 1521, 
 and also the appeal and judgment in the circuit court, and that a 
 certified copy of the entry of such judgment has been delivered to 
 him.](l) 
 
 PUNISHMENT OF FRAUDULENT DEBTORS. 
 
 § 1528. The constitution and laws of this state have made am- 
 ple provisions for protecting the honest, but unfortunate debtor 
 against any interference with his person on the part of the creditor ; 
 
 (1) See Comp. L. 1328. 
 
666 
 
 MISCELLANEOUS PEOCEEDINGS. 
 
 and they have also provided liberally for the exemption of real 
 and personal property in his hands from the claims of creditors, 
 not only to secure the debtor and his family against immediate 
 want, but to enable him to pursue whatever avocation or business 
 he may be engaged in for the continued support of himself and 
 family, and for the accumulation of means to discharge his pecu- 
 niary obligations. The design of these provisions has been entirely 
 beneficent, and they have proceeded, not upon the supposition that 
 all men would act more honestly and conscientiously when relieved 
 from the power of legal coercion, but upon the idea that the power 
 of legal coercion by the creditor, as it existed priqr to the abolish- 
 ing of imprisonment for debt, and the comparatively recent exten- 
 sion of the exemption laws, was productive of greater evils to 
 individuals and the community, than were to be apprehended 
 from its restriction. 
 
 § 1529. While this generous legislation was intended to secure 
 to each individual his personal liberty, in all cases where it is not 
 inconsistent with the general welfare of the community, and to 
 secure him the means of living, a«id accumulating property, it 
 justly regards all that a man has beyond what the law has deter- 
 mined to be necessary to those ends, as equitably belonging to the 
 creditor, and to be held subject to his right to apply it, in the mode 
 provided by law, to the satisfaction of his claim. And hence any 
 secreting or other fraudulent disposition of such property, with the 
 intent to defeat the rights of such creditor, is properly regarded as 
 an offence of the same nature with embezzlement and larceny, 
 differing only in degree ; and the statute has therefore provided 
 not only for the punishment of such an offence, but for compelling 
 the application of the property which is the subject of it to the 
 satisfaction of the creditor. 
 
 § 1530. The statute relating to the punishment of fraudulent 
 debtors, after specifying the cases in which imprisonment is not 
 allowed, and which have been already noticed, provides further, 
 that in all cases where, by the preceding provisions, a defendant 
 cannot be arrested or imprisoned, it shall be lawful for the plain- 
 tiff who shall have commenced a suit against such defendant, or 
 shall have obtained a judgment or decree against him in any court 
 of record, or justice's court, to apply to any judge of the court in 
 which such suit is brought, or to any circuit court commissioner, 
 or to any justice of the peace before whom such suit is brought or 
 judgment obtained, or before whom such proceedings shall have 
 
PUNISHMENT OF FEAUDULENT DEBTORS. ' 567 
 
 been transferred, for a warrant to arrest tlie defendant in such 
 suit.(l) 
 
 § 1531. 'No such warrant can be issued, unless satisfactory 
 evidence shall be adduced to such officer by the affidavit of the 
 plaintiff, or of some other person or persons, that there is a debt 
 or demand due to the plaintiff from the defendant, and specifying 
 the nature and amount thereof, as near as may be, for which the 
 defendant, according to the provisions of such statute, cannot be 
 arrested or imprisoned, and establishing one or more of the follow- 
 ing particulars: 
 
 1. That the defendant is about to remove any of his property 
 out of the jurisdiction of the court in which the suit is brought, 
 with intent to defraud his creditor or creditors ; or, 
 
 2. That the defendant has property or rights in action, which he 
 fraudulently conceals, or that he has rights in action, or some in- 
 terest in any public or corporate stock, money, or evidence of debt, 
 which he unjustly refuses to apply to thp payment of any judg- 
 ment or decree which shall have been rendered against him belong- 
 ing to the complainant ; or, 
 
 3. That he has assigned, removed, or disposed of, or is about to 
 dispose of, any of his property, with the intent to defraud his cred- 
 itor or creditors ; or, 
 
 4. That the defendant fraudulently contracted the debt, or in- 
 curred the obligation upon which the suit is brought.(2) 
 
 § 1532. The commencement of a suit, or the recovery of a 
 judgment, are essential preliminaries to the application for a war- 
 rant ; and a suit is not considered as commenced, within the mean- 
 ing of the statute, unless the summons is not only issued, or the 
 declaration filed and delivered, but duly served.(3) 
 
 The affidavit must state whether the plaintiff's demand is founded 
 upon contract or judgment, and must also state the facts and cir- 
 cumstances upon which the application is founded, as that the 
 defendant had declared his intention to remove his property, &c., 
 or had assigned it without consideration, or secreted it, or any cir- 
 cumstance indicating fraud ; the mere belief of the plaintiff is not 
 sufficient.(4) A plain case ought to be made out by the affidavits, 
 to authorize the granting of a warrant.(5) 
 
 (1) Comp. L. 1412. (2) Id. Iil2, 1413. 
 
 (3) See 6 HiU, 11 ; 16 "Wendell, 554. (4) 14 WendeU, 23T. 
 
 (5) 6 Hill, 429. 
 
568 MISCELLANEOUS PROCEEDINGS, 
 
 § 1533. Upon such proof being made to the satisfaction of the 
 officer to whom the apphcation is made, he is required to issue a 
 warrant under his hand in behalf of the people of this state, directed 
 to the sheriff or any constable of the county, briefly setting forth 
 therein the nature of the complaint, and commanding the officer to 
 whom it is directed to arrest the person named in such warrant, 
 and bring him before the officer issuing the same without delay. 
 The warrant must be accompanied by a copy of all affidavits pre- 
 sented to the officer, upon which the warrant issued ; which must 
 be certified by such officer, and delivered to the defendant at the 
 time of serving the warrant, by the officer serving the same.(l) 
 This warrant, though in the form of a criminal process, in its use 
 and effect, is a summary civil proceeding to enforce the collection 
 of a debt arising upon contract.(2) And the provisions author- 
 izing it, and the subsequent proceedings, are said to be no more 
 than a statutory execution against choses in action and other effects 
 of the debtor, not tangible by means of the ordinary _;?.ya.(3) The 
 warrant is to be executed by arresting the person named therein, 
 and bringing him before the officer who issued it ; or, in case of 
 his absence or inability, before some other officer having jurisdic- 
 tion in the case, and the prisoner is to be kept in custody until he 
 is discharged or committed. (4) The defendant can only be arrested 
 in the county in which the officer issuing the warrant resides. (5) 
 
 1534. On the person so arrested being brought before such 
 officer, he may controvert any of the facts and circumstances on 
 which the warrant issued, and may, at his option, verify his allega- 
 tions by his own affidavit ; and in case of his so verifying the same, 
 the complainant may examine such defendant on oath, touching 
 any fact or circumstance material to the inquiry, and the answers 
 of the defendant on such examination are required to be reduced 
 to writing, and subscribed by him, and he will not be excused from 
 answering as a witness in relation to such fraud.(6) The officer 
 conducting the inquiry is also required to receive such other proof 
 as the parties may offer, either at the time of such first appearance, 
 or at such other time as such hearing may be adjourned to. In 
 case of an adjournment, the officer may take a recognizance, with 
 surety, from the defendant, for his appearance at the adjourned 
 hearing, and conditioned that such defendant will not, meanwhile, 
 secrete, destroy, dispose of, or in any manner make way with, or 
 
 (1) Comp.L. 1413. (2) 5 Hill, 601. (3) Id. 608; 4 Hill, 571, 619. 
 
 (4) Comp. L. 1413. (6) 5 Hill, 605. (6) Comp. L. 1413, 1416. 
 
PUNISHMENT OF FBAUDULENT DEBTOES. 569 
 
 put out of his possession, any of Ms property not exempt from sale 
 on esecution.(l) 
 
 § 1535. The statute gives the of&cer conducting the inquiry 
 the same authority to issue suhpcenas for witnesses, and to enforce 
 obedience thereto, and to punish witnesses for refusing to testify, 
 as are conferred by law upon such of&cers in other proceedings be- 
 fore them.(2) In such cases, on proof of due service of the subpcena 
 or summons, and of the failure of the witness to attend, he may 
 issue his warrant to the sheriff of the county in which the witness 
 may be, to apprehend such witness, and bring him before such 
 officer to testify. And if any witness attending or brought before 
 such officer, without reasonable cause, refuse to be examined or to 
 answer, &c., he may be committed by warrant to the jail of the 
 county in which such witness resides, there to remain until he sub- 
 mits to be examined, or to answer, &c.(3) 
 
 § 1536. If the officer is satisfied from all the proofs before him 
 that the allegations of the complainant are substantiated, and that 
 the defendant has done, or is about to do, any of the acts specified in 
 the statute upon which a warrant is authorized to be issued, he is 
 required to direct, by a commitment under his hand, that such de- 
 fendant be committed to the jail of the county in which such hear- 
 ing is had, to be there detained until he shall be discharged ac- 
 cording to law; and such defendant must be committed and de- 
 tained accordingly.(4) If the allegations of the complainant are 
 not substantiated, the complaint will be dismissed, and the defend- 
 ant discharged ; and in such case the complainant is liable for all 
 fees to officers and witnesses, (which are the same as in other crim- 
 inal cases,) and for all legal costs and expenses which the defend- 
 ant shall have incurred.(5) The statute does not apply to any 
 property expressly exempted by law from levy or sale under exe- 
 cution.(6) 
 
 § 1537. The statute provides that the commitment shall not 
 be granted if the defendant shall either : 
 
 1. Pay the debt or demand claimed, with the costs of the suit 
 and of the proceedings against him ; or, 
 
 2. Give security, to the satisfaction of the officer before whom 
 the hearing shall be had, that the debt or demand of the plaintiff. 
 
 (1) Comp. L. 1413, 1414. (2) Id. 1414. (3) Id. 1176. 
 
 (4) Id. 1414. (5) Id. 1415. (6) Id. 1415. 
 
570 MISCELLANEOUS PEOCEEDINGS. 
 
 with tlie costs of the suit and proceedings aforesaid, shall be paid 
 within ninety days, if a judgment shall have been recovered there- 
 on, or within ninety days after judgment shall be obtained, in case 
 no judgment shall have been rendered thereon ; or, 
 
 8. Enter into a bond to the complainant, in a penalty not less 
 than twice the amount of the debt or demand claimed, with such 
 surety or sureties as shall be approved by such officer, conditioned 
 that such defendant will, within thirty days thereafter, apply for 
 an assignment of all his property, and for a discharge, as provided 
 in the one hundred and forty -third chapter of the Eevised Statutes, 
 and diligently prosecute the same until he obtains his discharge. (1) 
 
 § 1538. A defendant committed pursuant to the statute must 
 remain in custody, in the same manner as other prisoners on crim- 
 inal process, until a final judgment shall have been rendered in his 
 favor in the suit prosecuted by the creditor at whose instance such 
 defendant shall have been committed; or until he shall have as- 
 signed his property and obtained his discharge, agreeably to the 
 provisions of the one hundred and forty-second, or of the one hun- 
 dred and forty -third chapter of the Eevised Statutes ; but such de- 
 fendant may be discharged by the officer committing him, or any 
 other person authorized to perform the duties of such officer, on such 
 defendant paying the debt or demand claimed, or giving security 
 for the payment thereof, or executing the bond to apply for an as- 
 signment, &c., as provided in the tenth section, before referred to.(2) 
 
 § 1539. The person so committed, who shall have given a bond 
 to apply for an assignment of his property in pursuance of the stat- 
 ute, or against whom any suit shall have been commenced in a 
 court of record or justice's court, in which such person cannot, un- 
 der the provisions of the statute, be arrested or imprisoned, may 
 petition for an assignment of his property, and for a discharge, 
 agreeably to the provisions, either of the one hundred and forty- 
 second, or of the one hundred and forty-third chapter of the Ee- 
 vised Statutes, and the same proceedings may bp had thereon as is 
 provided by said chapters respectively, and with like efiect.(3) 
 
 § 1540. "Whenever a bond is given under the tenth section of 
 the statute, to prevent a commitment of the defendant, and the 
 same shall have become forfeited by the non-performance of the 
 condition thereof, the plaintiff may recover thereon the amount due 
 
 (1) Comp. L. UU, § 10. (2) Id. 1416, 1414, § 10. (3) Id. 1415. 
 
PUNISHMENT OF FRAUDULENT DEBTOES. 571 
 
 to him on the judgment obtained in the original suit instituted 
 against the defendant giving such bond.(l) 
 
 § 1541. It is further provided by the statute, that any person 
 •who shall remove any of his property out of any county, with in- 
 tent to prevent the same from being levied upon by an execution, 
 or who shall secrete, assign, convey, or otherwise dispose of any of 
 his property, with intent to defraud any creditor, or to prevent 
 such property from being made liable for the payment of his 
 debts, and any person who shall receive such property with such 
 intent, shall, on conviction thereof, be deemed guilty of a mis- 
 demeanor. And when it shall appear to any ofBcer authorized to 
 entertain proceedings under such statute, that any misdemeanor or 
 perjury has been committed by any party or witness, he is required 
 to take the measures prescribed by law, to cause the offender to 
 appear at the proper court having jurisdiction of the offence, to 
 answer for the same.(2) The answer which a party may have 
 given in the proceedings before such of&cer in relation to any 
 fraud charged in the complaint, cannot be given in evidence against 
 him upon a trial for such misdemeanor, nor used against him in 
 any other suit or prosecution. (3) 
 
 § 1542. A debtor proceeded against on the ground of having 
 removed his property, may show that the removal consisted in 
 .taking it with him on change of residence of himself and family, 
 and that his intended removal was communicated to several per- 
 sons in the place of his former residence. It is not necessary to 
 show that such intended removal came to the knowledge of the 
 complainant.(4) 
 
 It is not necessary, for the purpose of a conviction, that the cred- 
 itors intended to be defrauded should be judgment creditors.(5) 
 
 Any person imprisoned on any process, who shall be entitled to 
 be discharged under the provisions of the statute, may bring a 
 writ of habeas corpus or certiorari for that purpose, in the manner 
 provided by law.(6) 
 
 § 1543. Affidavit to obtain warrant under chapter 141 of the 
 Revised Statutes. 
 
 County of , ss: A. B., of , being duly sworn, 
 
 deposes and says, that C. D., of , is justly indebted to him in 
 
 the sum of ■ dollars upon a promissory note made by the said 
 
 C. D. ; [or "upon an account for goods, wares and merchandise sold 
 
 (1) Comp. L. 1415. (2) Id. 1416. (3) Id. ibid.; 16 Wend. 546. 
 
 (4) 19 WendeU, 480. (5) 16 Wendell, 546. (6) Comp. L. 1416. 
 
572 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 and delivered hy the said A. B. to the said C. Z>.;" or "«pon an ac- 
 count for work and labor, and services performed hy the said A. B. 
 for the said C. D. at his request;" or " upon a hand executed by the said 
 C. D. to the said A. B. for the payment of money''' ; or '■'■upon a judg- 
 ment rendered in favor of the said A. B. against the said C. D. in the 
 
 circuit court for the county of ;" or " upon a judgment rendered 
 
 in favor of IE. F. against the said G. D. in the circuit court for the 
 
 county of , and assigned hy the said R F. to the said A. B., and 
 
 which belongs to the said A. B. ;" or otherwise, stating the origin of 
 the deniand,] for which demand the said C. D. cannot be arrested 
 or imprisoned, according to the provisions of chapter one hundred 
 and forty-one of the Revised Statutes of this state. 
 
 And this deponent further says, that he has commenced a suit 
 against the said C. D. [or, if judgment has already been obtained, 
 " that he has recovered a judgment against the said C. D. upon the 
 said demand'^] in the circuit court for the county of ■ . 
 
 And this deponent further says, that he has reason to believe, 
 and does believe, that the said C. D. is about to remove [a part of J 
 his property out of the jurisdiction of the court in which the said 
 suit is brought, [or ^'judgment is obtained"'] with intent to defraud 
 his creditor [or ''creditors;" or, "that the said C. D. has property 
 or rights in actionwhich he conceals"] and that the facts and circum- 
 stances constituting the grounds of his said belief are the following, 
 that is to say : [here state the facts and circumstances upon which 
 such belief is founded, substantially in the following manner:] that 
 the said 0. D. has been busily employed during the last week in 
 packing up goods, wares and merchandise belonging to him in a 
 
 certain store in , in said county ; that the said goods were so 
 
 packed in a clandestine manner, and in trunks and boxes con- 
 venient for transportation, and indicating a design speedily to 
 remove them ; and that some of them have already been conveyed 
 to and placed in the freight depot of the D. & M. Railway Company 
 for transportation to some place to this deponent unknown, [or 
 
 " in boxes marked and directed to , in the state of ,"] and that 
 
 the said C. D. has recently declared to J. K., of , his intention 
 
 to leave his present place of residence on the instant, [or 
 
 " that he was determined to place his property where his creditors could 
 not reach it" or otherwise, according to the particular facts of the 
 case.] 
 
 [The affidavit will further vary according to the class of frauds 
 alleged against the defendant; thus, after the preliminary part, it 
 may proceed as follows :] 
 
 And this deponent further says, that the said C. D. has assigned 
 and disposed of [state what property] to one E. K., by a pretended 
 sale and transfer, when in fact no consideration has been received 
 by the said C. D. therefor, and the said property is held by the 
 said E. K. in secret trust for the said 0. D., and the same was done 
 with the intent to defraud the creditors of the said C. D., [or, " that 
 the said C. D. fraudulently contracted the debt for the recovery of which 
 the aforesaid action was commenced against him hy this deponent, by 
 
PUNISHMENT OF FKAUDULENT DEBTORS. 573 
 
 falsely representing to this deponent that he ivas a merchant in good 
 standing^ and loorth a large amou7it," stating tlie facts.] 
 
 [Affidavits of other persons may be taken to substantiate the 
 facts relied upon in proof of the alleged fraud, if necessary.] (1). 
 
 § 1544. Warrant to arrest the defendant. 
 In the name op the People of the State of Michigan. To 
 
 THE shebifp [or "any constable"] of the county of : 
 
 Whereas A. B. did, on the — day of , make application 
 
 to the "undersigned, circuit court commissioner for said county, 
 for a warrant to arrest 0. D. ; and whereas satisfactory evidence 
 has been adduced before me that there is a debt or demand due 
 from the said C. D. to the said A. B., for which the said 0. D. can- 
 not be arrested or imprisoned, according to the provisions of chap- 
 ter one hundred and forty-one of the Eevised Statutes of this state, 
 
 amounting to the sum of dollars ; and that the said A. B. has 
 
 commenced a suit in the circuit court for the county of , for 
 
 the recovery thereof; and that the said C. D. is about to remove 
 his property out of the jurisdiction of the court in Avhich the said 
 suit is brought, with intent to defraud his creditors, [or otherwise, 
 according to the grounds of the application] : You are therefore 
 hereby commanded to arrest the said 0. D., and bring him before 
 
 me without delay, at my office in , in the said county of , 
 
 to be dealt with according to law. Hereof fail not ; and of this 
 writ make due return. 
 
 Given under my hand, at , this — day of , one thousand 
 
 eight hundred and . [Officer's signature.] 
 
 B. F., Attorney.(2) 
 
 [This warrant must be accompanied with a certified copy of the 
 affidavits on -which it is granted, to be delivered to the defendant 
 at the time of making the arrest.] (3) 
 
 § 1545. Recognizance on adjournment. 
 
 Be it remembered, That on this ■ — ■ day of , one thou- 
 sand eight hundred and , C. D., of , I. J., of' ; and K. L., 
 
 of , personally came before E. P. H., circuit court commissioner 
 
 for the county of , and severally acknowledged themselves to 
 
 owe to the people of the state of Michigan the sum of dollars 
 
 to be made and levied of their and each of their goods and chattels, 
 lands and tenements, to the use of the said people, if default shall 
 be made in the condition following: 
 
 The condition of this recognizance is such, that if the said C. D. 
 shall personally appear before E. P. H., circuit court commissioner 
 
 for the county of , at his office in , in said county, on 
 
 the — day of ■ instant, at ten o'clock in the forenoon, then and 
 
 there to answer to a complaint preferred against him by A. B. 
 
 (1) Comp. L. 1412. (2) Id. 1413. (3) Id. Ibid. 
 
574 MISCELLANEOUS PROCEEDIK'GS. 
 
 under the provisions of chapter one hundred and fortj-one of the 
 Revised Statutes of this state, relating to the punishment of fraud- 
 ulent debtors, and submit himself to the said commissioner in re- 
 spect to the said complaint, and if in the meanwhile the said C. D. 
 shall not secrete, destroy, dispose of, or in any manner make way 
 with or put out of his possession any of his property not exempt 
 from sale on execution, then this recognizance to be void ; other- 
 wise to be and remain in full force and virtue. C. D. 
 Taken, signed and acknowledged ) I. J. 
 
 before me, the — day of . j K. L. 
 
 E. P. H., Circuit Court Com'r for 
 
 the county of .(1) 
 
 § 1546. Commitment of defendant. 
 In the name of the People of the State of Michigan. To 
 
 the sheriff of the county of : 
 
 Whereas A. B. heretofore made complaint before me, cir- 
 cuit court commissioner for the county of , against C. D., 
 
 representing that the said A. B. had. commenced a suit [or "ob- 
 tained a judgment"] in the circuit court for the county of , 
 
 against the said C. D. for a demand amounting to the sum of 
 
 dollars, which the said A. B. alleged was due to him upon a con- 
 tract, for which demand the said C. D. could not be arrested or 
 imprisoned according to the provisions of chapter one hundred 
 and forty-one of the Revised Statutes of this state, relating to the 
 punishment of fraudulent debtors ; and that the said C. D. was 
 about to remove a part of his property out of the jurisdiction of 
 the said court in which the said suit was brought, [or " the said 
 judgment was obtained" or such other fraud as was alleged in the 
 affidavit,] and produced before me affidavits of the said allegations, 
 which were to me satisfactory proof of the said allegations; 
 whereupon, in pursuance of the said statute, I issued my warrant 
 for the arrest of the said C. D. ; by virtue of which he was arrested 
 
 and brought before me at my office in , in said county, on the 
 
 — day of , instant, [or " last"] where and when I proceeded 
 
 to hear the said complaint, and the proofs and allegations of the 
 parties in relation thereto, [and adjourned the said hearing, for fur- 
 ther examination, to the — day of , instant, at the same place, 
 
 whete and when I heard further proofs and allegations of the par- 
 ties.] And upon the said hearing, having fully considered the said 
 allegations and proofs,* I was satisfied and did determine ami 
 decide that the allegations of the said complainant were substan- 
 tiated, and that the said C. D. is about to remove a part of his 
 property out of the jurisdiction of the court in which said suit i.s 
 commenced, [or "judgment was rendered," or whatever act of 
 fraud was proved :] and the said C. D. not having done any of thtt 
 acts prescribed in and by the said statute, to prevent the issuing of 
 the warrant of commitment, as therein provided : You are, there- 
 fore, commanded to commit the said C. D. to the jail of the said 
 
 (1) Comp. L. Uid, 1414. 
 
PUNISHMENT OF FRAUDULENT DEBTOES. 575 
 
 county of , to be there detained until he shall be discharged 
 
 according to law. 
 
 Given under my hand, at , this — day of , one thou- 
 sand eight hundred and . [Signature of officer.] 
 
 § 1547. ■ Discharge of defendant 
 
 [As in the last form, omitting the style and direction of the 
 ■warrant, and commencing with the word " whereas" to the *, and 
 then as follows : ] It appears to me that the allegations of the said 
 complainant are not substantiated, and that the said defendant hath 
 not committed the several fraudulent acts complained of, or any or 
 either of them : Thereupon, it is Ordered, that the complaint of the 
 said A. B. be, and it is hereby dismissed, and that the said C. D. 
 be forthwith discharged out of custody thereon. 
 
 § 1548. Bond to secure payment of claim. 
 
 Know all men by these presents, That we, C. D., as 
 principal, and I. J. and K. L., as sureties, are held and firmly 
 
 bound unto A. B. in the penal sum of dollars, lawful money, 
 
 to be paid to the said A. B., his executors, administrators or 
 assigns, to the payment of which sum well and truly to be made, 
 we bind ourselves, our executors and administrators, firmly by 
 these presents. Sealed with our seals, and dated this — day of 
 
 "Whereas, the said A. B. has commenced a suit against the above 
 
 bounden C. D. in the circuit court for the county of , to 
 
 recover the amount of a certain promissory note, made by the said 
 
 C. D. to the said A. B., upon which there is now claimed to be 
 due the sum of dollars ; and whereas, since the commence- 
 ment of the said suit, the said A. B. hath made complaint before 
 
 E. P. H., circuit court commissioner for the county of , 
 
 representing that he had commenced such suit against the said C. 
 
 D. for the demand aforesaid, for which demand the said 0. D. 
 could not be arrested or imprisoned, according to the provisions of 
 chapter one hundred and forty -one of the Revised Statutes of this 
 state, relating to the punishment of fraudulent debtors ; and that 
 he, the said C. D., was about to remove his property out of the 
 jurisdiction of the said circuit court in which the said action was 
 brought, and produced before the said commissioner affidavits 
 which were to him, the said commissioner, satisfactory evidence to 
 substantiate the said allegations of the said A. B. ; whereupon the 
 said commissioner issued his warrant, pursuant to the statute in 
 such case made and provided, for the arrest of the said C. D., upon 
 which said warrant he, the said C. D., was afterwards, to wit., on 
 the — day of , arrested and brought before the said commis- 
 sioner ; and the said commissioner, after hearing the said complaint, 
 and the proofs and allegations of the parties in relation thereto, 
 was satisfied and did determine and decide that the allegations of 
 the said complainant were substantiated, and that the said C. D. 
 was about to remove his property out of the jurisdiction of the 
 court in which the said suit was so commenced :* 
 
576 
 
 MISOELLAJSTEOUS PROCEEDINGS. 
 
 Now, therefore, tlie condition of this obligation is such, that if 
 the said 0. D. shall well and truly pay the debt or demand of the 
 said A. B., with the costs of the" suit and proceedings aforesaid, 
 within ninety days after judgment shall be recovered therefor in 
 the suit aforesaid, in favor of the said A. B. against the said C. D., 
 then this obligation to be void ; otherwise to remain in full force 
 and virtue. C. D. [l. s.] 
 
 I. J. [L. s.] 
 K. L. [L. s.] 
 [Indorsed.'] 
 
 The within bond being to my satisfaction sufficient security to 
 the withia-named A. B., I do hereby approve the same. 
 
 [Signature of officer.] 
 
 [The form of the bond will vary according to the circumstances 
 of the case.] 
 
 § 1549. Bond to apply for assignment of property. 
 
 [As in the last form to the * and then as follows :] Now, there- 
 fore, the condition of this obligation is such, that if the said C. D. 
 shall, within thirty days from this date, apply for an assignment 
 of all his property, and for a discharge, as provided in the one 
 hundred and forty -third chapter of the Eevised Statutes of this state, 
 and diligently prosecute the same until he obtains such discharge, 
 then this obligation to be void ; otherwise "to remain in full force 
 and virtue. [Signatures and seals.] 
 
 [Indorsed^ 
 
 I approve of the sureties in the within bond. Dated, &c. 
 
 [Signature of officer.] 
 
 BOATS AND VESSELS. 
 
 § 1550. Every ship, boat or vessel, used or intended to be used 
 in navigating the waters of this state, is subject to a lien thereon : 
 
 1. For all debts contracted by the master, owner, agent or 
 consignee thereof, on account of supplies and provisions furnished 
 for the use of such ship, boat or vessel ; on account of work done 
 or services rendered on board of such ship, boat or vessel, by sea- 
 men or other persons employed thereon ; or for furnishing board 
 and lodging, or both of them, to persons engaged in constructing, 
 repairing, or in any other manner about such boat or vessel ; on 
 account of work done or materials furnished by mechanics, trades- 
 men or others in or about the building, repairing, fitting, famishing 
 or equipping such ship, boat or vessel ; 
 
 2. For all sums due for wharfage or anchorage of such ship, 
 boat or vessel within this state ; 
 
COLLECTION OP DEMANDS AGAINST SHIPS, ETC. 577 
 
 3. For all damages arising from tlie non-performance of any con- 
 tract of affreightment, or of any contract touching the transport- 
 ation of persons or property, entered into by the master, owner 
 agent or consignee of such ship, boat or vessel ; 
 
 4. For all damages arising from injuries done to persons or 
 property by such ship, boat or vessel, when the same shall have 
 occurred through the negligence or misconduct of the master or 
 hands employed thereon. (1) 
 
 § 1551. The provisions of the statute just cited, create a specific 
 lien upon the boat or vessel for the several species of claims above 
 specified, to be enforced in the manner therein provided, and apply 
 to contracts made and injuries received within this state only, and 
 not to such as have arisen without the state.(2) Thus, when work 
 was done, and materials furnished by ship-carpenters in the repair- 
 ing of a steamboat in Buffalo, in the state of New York, it was 
 held that no lien attached to the vessel under the statute, and that 
 the remedy therein provided was not applicable to such claim. (3) 
 And so, where a contract was made in the city of Chicago for the 
 transportation of certain goods from thence to Detroit in this state, 
 and the goods were placed on board a vessel at the former place to 
 be thus transported, which goods were not delivered in Detroit, it 
 was held that no lien attached to the vessel, the contract not having 
 been made within this state.(4:) Nor does a lien attach for supplies, 
 means or money furnished, and used in the building, fitting and 
 furnishing of the boat. The lien for supplies can only attach when 
 furnished after the boat has been built, and means and money 
 advanced are not the subject of such a lien. (5) 
 
 § 1552. When a lien has attached to a vessel under the statute 
 of this state, it is not displaced by the seizure and sale of such 
 vessel under the law of another state, by creditors residing therein, 
 the law of such state requiring no notice to be given of the pro- 
 ceedings under it to non-residents, but precluding such non-resi- 
 dents from appearing and asserting their claims against the vessel ; 
 ■such proceedings not being in effect proceedings in rem, and there- 
 fore having no extra territorial force to displace the previous liens 
 of creditors in this state.(6) 
 
 (1) Comp. L. 1313, 1314, § 1. (2) 1 Mich. R. 469. 
 
 (3) Id. (4) 2id.>350. 
 
 (5) 1 i4 225. (6) 4 Mich. R. 45. 
 
 37 
 
578 MISCELLANEOUS PEOCEEDINGS. 
 
 § 1553. Any person having any such claim or demand as is 
 declared to constitute such a lien, is authorized to make application 
 to any officer authorized to perform the duties of a circuit judge 
 at chambers, or to any judge of any court of record in the county 
 within which such ship, boat or vessel shall then be, for a warrant 
 to enforce the lien of such claim or demand, and to collect the 
 amount thereo£(l) Such application must be in writing, and must 
 specify the particulars of the demand, and in whose favor the same 
 accrued, and the amount due the creditor or claimant, over and 
 above all payments and discounts, as near as may be ; and must be 
 verified by the affidavit of such creditor or claimant, or of some 
 other credible person having, knowledge of the facts.(2) When the 
 application was made to a circuit court commissioner, it was held 
 not necessary to state in the complaint that the vessel is within 
 the county in which the application is made ; but if made to a 
 judge of a court of record, it ought to show that the vessel is then 
 within the same county.(3) Nor is it necessary, in order to confer 
 jurisdiction upon the officer, that the complaint should state that 
 the services which are the subject of the claim were rendered in 
 this state.(4) And it is sufficient to describe the vessel as " a vessel 
 navigating the waters of this state," this language being equivalent 
 to the averment required by the statute, that it is a vessel used in 
 navigating the waters of this state.(5) 
 
 § 1554. Upon such application being made in conformity with 
 the statute, the officer is required to issue his warrant to the sheriff 
 of the county, or any constable thereof, commanding hirA to seize 
 and safely keep such ship, boat or vessel, her tackle, apparel and 
 furniture, to answer all such liens as shall be established against it 
 according to law, and to make return of his proceedings under 
 such warrant to the officer issuing it, within ten days after such 
 seizure.(6) The sheriff to whom any such warrant shall be directed 
 and delivered, is required forthwith to execute the same, and to 
 keep the boat or vessel, and other property seized by him, to be 
 disposed of as directed by the statute ; and, within ten days after 
 such seizure, to make a return to the officer who issued the warrant, 
 stating therein particularly his doings in the premises, and to make 
 out, subscribe, and annex thereto, a just and true inventory of all 
 the property so seized. Whenever any such warrant shall be issued. 
 
 (1) Laws of 1858, p. 10. (2) Comp. L. 1314. (3) 3 Mich. E. 1. 
 
 (4) Id. (5) Id. (6) Comp. L. 1314. 
 
COLLECTION OF DEMANDS AGAINST SHIPS, ETC. 579 
 
 no other warrant can be issued against the same ship, boat or vessel, 
 unless the first warrant be suspended. (1) 
 
 § 1555. Upon return being made to the warrant, the officer 
 issuing it is thereupon required, immediately, to cause a notice to 
 be published, in a newspaper printed in the county in which the 
 warrant was issued, if there be one; and, if there be none printed 
 in such county, then in a newspaper printed nearest to such county, 
 or in such paper as the officer may direct, once in each week, for 
 twelve weeks successively, containing the following matters: 
 
 1. It must state the issuing of the warrant, and the name of the 
 ship, boat or vessel seized, or a description of it; and, if known to 
 such officer, the port or place to which she belongs, and the name 
 of her last commander ; 
 
 2. It must require all persons who claim to have any demands 
 against such ship, boat or vessel, her tackle, apparel or furniture, 
 under the provisions of the statute, to deliver an account of their 
 respective claims or demands to such officer, within three months 
 from the first publication of such notice, or that their remedy 
 against such boat or vessel will be forfeited ; 
 
 3. It must state that such ship, boat or vessel, her tackle, apparel 
 and furniture, will be sold for the payment of the claims against it, 
 unless the owner, consignee or commander thereof, or some person 
 interested therein, appear and discharge such warrant according 
 to law, within three months from the first publication of such 
 notice. (2) 
 
 I 1556. When proceedings were had under the statute, and a 
 vessel was attached upon the application of a creditor having a 
 claim which constituted a lien thereon, and the notice to creditors 
 to produce their claims was published three months, at the end of 
 which time the vessel was discharged upon the giving of the bond 
 provided for by the statute ; it was held that creditors who -failed 
 to file their demands with the officer who issued the warrant 
 within three months from the first publication of such notice, lost 
 the benefit of the lien given them by the first section,(3) But it 
 seems that if the vessel had been discharged upon the giving of 
 the bond within the three months, the lien of such creditors would 
 have still continued, and they would have had the same remedy 
 for enforcing it, as if no proceeding had been had by other credit- 
 ors.(4) 
 
 nomp. L. 1315. (2) Id. 1316. (3) 2 Mich. R. 151. (4) Id. 
 
580 MISCELLANEOUS PEOCEEDINGS. 
 
 § 1557. Any person having any lien imder the provisions ot 
 the statute, upon the property so seized, may deliver to the officer 
 an account in writing of his demand, accompanied by such affida- 
 vit as is required on the first application for a warrant ; and he is 
 thereupon deemed an attaching creditor, and entitled to the same 
 benefits, and subject to the same responsibilities as the claimant at 
 whose instance such warrant originally issued ; and it is declared 
 that all liens under the statute, upon the property so seized, an 
 account of which shall not be presented to such officer within the 
 time limited in the notice, shall cease.(l) 
 
 § 1558. The owner, consignee, agent or commander of any 
 ship, boat or vessel so seized, and any person interested therein, 
 may, at any time before an order of sale shall be made, apply in 
 person or by attorney to the officer who issued the warrant, for an 
 order to discharge the same. Such person must execute and deliver 
 to the officer to whom the application is made, a bond to the 
 creditors or claimants prosecuting such warrant, in a penalty at 
 least double the amount of debts and claims sworn to, with such 
 security as the officer shall approve, conditioned that the obligors 
 therein will pay the amount of all such claims and demands as 
 shall have been exhibited, which shall be established to have been 
 subsisting liens upon such ship, boat or vessel, pursuant to the 
 provisions of the statute, at the time of exhibiting the same 
 respectively ; and upon the execution and delivery of such bond, 
 the officer is required to grant his order, discharging the warrant 
 issued by him ; and no further proceedings can be had against the 
 ship, boat or vessel so seized under the provisions of the statute, 
 founded upon any demands included in such bond .(2) 
 
 § 1559. The bond so given is to be held for the common ben- 
 efit of all the attaching creditors, and may be prosecuted by any 
 of them jointly, or by any one of them separately, in respect to 
 his separate demand ; and the statute declares that " the said officer 
 shall have full power to hear, try and determine any such suit which 
 may he commenced on such hand." This last clause was added, by 
 an amendment to the Revised Statutes in the year 1857, without 
 making any provision whatever for the mode of trial.(3) For that 
 reason, it would probably be entirely nugatory. But the power 
 thus conferred upon circuit court commissioners, and jiidges of 
 courts of record at chambers, including judges of probate, was 
 
 (1) Comp. L. 1315, 1316. (2) Id. 1316. (3) Laws of 1857, p. 40T. 
 
^ COLLECTION OF DEMANDS AGAINST SHIPS, ETC. 581 
 
 probably intended to be withheld from such officers by the con- 
 stitution.(l) 
 
 § 1560. In the suit upon such bond, the attaching creditors, 
 respectively, are required to state in their declaration their respect- 
 ive demands, averring that the claim therefor was a subsisting lien 
 on such ship, boat or vessel at the time of the exhibition thereof^ 
 as provided by the statute ; and to assign, as a breach of such 
 bond, the non-payment of the claim of such creditor.(2) To such 
 declaration the defendant may plead as in other actions on bond, 
 and may plead to the assignment of breaches ; and the same pro- 
 ceedings are to be had thereon, as on other bonds with conditions 
 other than for the payment of money ; and the damages may be 
 assessed, and judgment rendered, and execution had thereon for 
 such damages in the same manner, except that no stay of execu- 
 tion is to be allowed where the suit is prosecuted in a justice's 
 court, as in other cases of judgments in such court.(3) 
 
 In declaring in an action on the bond, it is not necessary to aver 
 that the application of the creditor was in writing, nor that the 
 vessel released upon the execution of the bond was, at the time of 
 its seizure, within the jurisdiction of the court.(4) The plaintiff 
 in his declaration, may confine himself strictly to the bond, and 
 need not set forth other facts and circumstances connected with 
 the proceedings before the officer, not therein recited.(5) _^ 
 
 § 1561. If the creditors who shall have exhibited their claims, 
 according to the provisions of the statute, shall not have been satis- 
 fied, and if such warrant shall not have been discharged in the 
 manner therein provided, within the time for that purpose limited, 
 the officer who issued the same is required, within one month after 
 the expiration of the time so limited, upon due proof of the publi- 
 cation of the notice therein required, to issue his order to the sheriff 
 who seized the ship, boat or vessel, under such warrant, directing 
 him to proceed to sell the boat or vessel so seized, her tackle, ap- 
 parel and furniture, and to state in such warrant the amount neces- 
 sary to be raised to satisfy such claims and expenses. If it shall 
 appear to such officer that the claims exhibited before him, and the 
 expenses of the proceedings, can be satisfied by a sale of the tackle, 
 
 (1) See the case of Chandler v. Kash, 5 Mich. R. 409. 
 
 (2) Comp. L. 1316, 1317. (3) Id. 1317 ; Laws of 1857, p. i08. 
 (4) 2 Mich. E. 344. (5) Id. 347. 
 
582 MISCELLANEOUS PROCEEDINGS. 
 
 apparel and furniture of suet ship, boat or vessel, he must modify 
 his order, so as only to require such property to be sold. 
 
 § 1562. Within twenty days after the service of such order on 
 the sheriff, he must proceed to sell the ship, boat or vessel so seized 
 by him, her tackle, apparel and furniture, or such part thereof as 
 shall be sufficient to satisfy the claims exhibited, and the expenses 
 incurred, upon the same notice, in the same manner, and in all re- 
 spects subject to the provisions of law relating to the sale of per- 
 sonal property upon execution. He must make a retnrn to the 
 officer granting the order, of his proceedings under the same ; and 
 the proceeds of the sale, after deducting his fees and expenses in 
 seizing, preserving, watching and selling such ship, boat or vessel, 
 are to be retained by the sheriff, to be distributed as directed by 
 the statute.(l) The fees for keeping any ship, boat or vessel, seized 
 under the statute, are one dollar and fifty cents for every twenty- 
 four hours ; but the court may, in any case, allow as costs the ne- 
 cessary expenses arising from keeping the same. All other costs 
 are the same as are established by law for like services in other 
 cases ;(2) and in case of an action upon any bond given for the re- 
 lease of a boat or vessel, such costs will be taxed against the losing 
 party in such action. (S) 
 
 § 1563. At the time of issuing the order of sale, the officer 
 granting the same must also order a notice to be published, in the 
 same newspaper in which the notice of seizure was published, once 
 in each week for three successive weeks, requiring all persons who 
 have exhibited any claims against such ship, boat or vessel, and 
 the owner, agent, consignee, master, and all other persons inter- 
 ested therein, to appear before him at a day therein to be specified, 
 not less than thirty days, nor more than forty days from the first 
 publication of such notice, to attend a distribution of the proceeds 
 arising from such sale. 
 
 § 1564. On the day appointed in such notice, the officer will 
 hear the proofs and allegations of the parties, and make distribu- 
 tion of the proceeds arising from the sale, after deducting the ex- 
 penses of the proceedings, among the creditors who shall have ex- 
 hibited their claims as provided by the statute, unless the claims 
 of such creditors, or some of them, are contested by the owner, 
 
 (1) Comp. L. 131T, 1318. (2) Id. 1321. 
 
 (3) Id. ibid.; Laws of 1850, p. 205. 
 
583 
 
 agent, consignee or master of the boat or vessel, or by some other 
 of such creditors. 
 
 In case of such contest, the party making the objection must file 
 with the officer a written statement thereof, and his request that 
 the claims so objected to be tried ; and upon such objection and 
 request being filed, the officer is vested with all the power neces- 
 sary for the trial and determination of such claim, and is required 
 to proceed to hear and determine the same ; and for that purpose 
 may issue subpoenas, and compel the attendance of witnesses, in 
 the same manner as justices of the peace are authorized by law to 
 do in cases within their jurisdiction. 
 
 § 1565. If, before proceeding to the trial of any such contested 
 claim, either party shall request that the same be tried by a jury, 
 such jury is to be selected and summoned, and the same proceed- 
 ings are to be had, in all' respects, as upon the trial of a cause by 
 a jury in a justice's court, except that the sheriff, if present, may 
 perform the same duties in selecting, summoning, and keeping of 
 the jury in such case, as constables are authorized to perform in 
 justices' courts, and the venire is to be directed to the sheriff or 
 any constable of the county. The determination of the officer, or 
 the verdict of the jury upon such trial, as the case may be, is final 
 and conclusive between the parties, unless an appeal be taken 
 therefrom to the circuit court for the same county, as provided 
 by the statute. (1) 
 
 § 1566. Either party considering himself aggiieved by the de- 
 termination of such officer, or the verdict of such jury, may appeal 
 therefrom to the circuit court for the same county, within the same 
 time, in the same manner, and a return may be compelled, and the 
 same proceedings thereupon had, as near as may be, and with the 
 like effect in all respects, as in cases of appeals from judgments 
 rendered before justices of the peace, and costs are to be awarded 
 and collected in the circuit court in the same manner.(2) The mode 
 of selecting and summoning a jury, of trial, and of appeal to the 
 circuit court, are substantially the same as in cases of summary 
 proceedings to recover possession of land, treated of under the last 
 preceding head,- to which reference may be had for the appropriate 
 forms in such cases. 
 
 § 1567. Upon the final determination of such claim, the officer 
 
 (1) Comp. L. 1318, 1319. (2) Id. 1319. 
 
584 
 
 MISCELLANEOUS PEOCEEDINGS. 
 
 before whom the proceedings are had is required to make distribu- 
 tion of the proceeds of the sale, after deducting the expenses of the 
 proceedings before him, among the attaching creditors, according 
 to the amount due to each ; and on making a distribution of such 
 proceeds, the officer makes an order on the sheriff having such 
 proceeds in his hands, directing him to pay the same to the sev- 
 eral attaching creditors, according to the amount due to each. K 
 the proceeds of the sale are not sufficient, after deducting all legal 
 charges, to satisfy all the claims against such ship, boat or vessel, 
 which shall have been exhibited and established according to the 
 statute, distribution is to be made among such creditors in propor- 
 tion to the amount of their respective claims. (1) 
 
 § 1568. Every ofiicer who shall issue any warrant, pursuant to 
 the statute, for enforcing any such lien, is also required to cause 
 the application, afiidavits, and proofs presented to him by the at- 
 taching creditors, and copies of all warrants issued, and of all orders 
 made by him, with a list of the fees and expenses allowed by him, 
 and a report of all the proceedings had or done by him, to be filed 
 in the of6.ce of the clerk of the circuit court for the county in which 
 the proceedings are had ; and such report, and a copy thereof, duly 
 certified by the clerk, are conclusive evidence that the proceedings 
 therein stated were had before such ofiicer. Upon such report 
 being made, the court may correct any errors that shall appear to 
 have been committed in the proceedings, and make such order as 
 shall be just, and may remit the proceedings to the of&cer who 
 issued the warrant, or the court may proceed to do such acts and 
 things as shall be necessary in the premises. But no such proceed- 
 ing is to be abated, quashed, or set aside for any clerical or circum- 
 stantial error, or any misnomer of a ship, boat or vessel, when the 
 same can be amended without injustice; and in all such cases 
 amendments are to be granted on such terms as the court may 
 think proper.(2) 
 
 § 1569. The ofiicer who issued the warrant may compel the 
 sheriff to whom it was delivered to return the inventory taken 
 by him, and to pay over moneys in his hands, pursuant to any 
 order for that purpose, by an order of such ofiicer, and by process 
 of attachment for disobedience thereto on the application of any 
 creditor. And if any person summoned as a juror, or subpoenaed 
 as a witness to attend before such ofiBicer, fail to appear, or, appear- 
 
 (1) Comp. L. 1319. (2) Id. 1319, 1320, 1321. 
 
COLLECTION OF DEMANDS AGAINST SHIPS, ETC. 585 
 
 ing, refuse to serve or to testify, he forfeits, and is liable to pay, for 
 every such refusal, unless some reasonable excuse be shown, such 
 fine, not exceeding ten dollars, as such officer shall think proper to 
 impose ; and such oflB.cer is authorized and empowered to issue an 
 execution for the collection thereof, directed to the sheriff or any 
 constable of the county, in the same manner, and with thj like 
 effect, as justices of the peace are authorized to do in cases of sim- 
 ilar fines imposed by them.(l) 
 
 § 1570. No proceeding can be had, under the statute, to enforce 
 the liens authorized by the provisions thereof, against any vessel 
 which shall have been seized by virtue of process issuing from any 
 court of the United States, having admiralty jurisdiction, while 
 such vessel is actually held under such seizure ; nor against any 
 vessel which shall have been sold by order of such court, except 
 for debts contracted or damages sustained after such sale ; but 
 nothing in these provisions contained is to be so construed as to 
 impair the validity of any liens created by the statute, the payment 
 of which shall be decreed by any court of the United States.(2) 
 
 § 1571. In case of the death, resignation, removal, or absence 
 of any ofiicer before whom proceedings may have been, com- 
 menced under the provisions of the statute, before the same shall 
 have been completed and determined, the warrant and proceedings 
 may be transferred to any other officer authorized to perform the 
 duties of a justice of the supreme court at chambers, or to any 
 other judge of a court of record in the proper county, who will 
 thereupon have jurisdiction of the matter so transferred, in the 
 same manner as if he had originally issued the warrant in the 
 cause ; or, in case of the temporary absence of the officer before 
 whom the proceedings were commenced, before they are com- 
 pleted, such other officer, or any justice of the peace of the proper 
 county, may continue any such proceedings until the return of the 
 officer before whom they were commenced ; but no such continu- 
 ance can extend beyond thirty days.(3) 
 
 § 1572. Application for a warrant to seize a boat or vessel. 
 To J. M. K, Esquire, Circuit Court Commissioner for the 
 
 COUNTY of , [or " To W,F. IF., Circuit Judge of the 
 
 judicial circuit."] 
 
 The petition of A. B. respectfully shows, that your petitioner 
 has a claim or demand, upon which there is now justly due to him 
 
 (1) Oomp. L. 1320. (2) Id. 1320. 
 
 (3) Id; 1321, 1322; Laws of 1850, p. 205. 
 
586 MISCELLANEOUS PROCEEDINGS. 
 
 the sum of dollars, over and above all payments and dis- 
 counts, as near as may be, and which said claim or demand consti- 
 tutes a lien upon the steamboat [Plymouth Eock], under and by 
 virtue of the provisions of chapter one hundred and twenty-two 
 of the Revised Statutes of this state ; that such debt or demand 
 was contracted by C. D., the master [or " owner,^^ or " agent," or 
 " con§iffnee"] of the said vessel, and that the same accrued in favor 
 of your petitioner for and on account of supplies and provisions 
 furnished by your petitioner for the use of the said vessel, at the 
 request of the said C. D., as such master [or " owner" or " agent," 
 or '' consignee"] as aforesaid, between the first day of April and 
 the last day of ISTovember, in the year one thousand eight hundred 
 
 and ; and that at the time when the said claim and every 
 
 part thereof so accrued as aforesaid, the said vessel was used, and 
 that the same is still used, in navigating the waters of this state. 
 And your petitioner further shows, that the following is a specifi- 
 cation of the particulars of his said claim or demand, that is to 
 say : [set forth the items of the account, with the date and amount 
 of each, particularly.] 
 
 [If the application is made to a judge of a court of record, add 
 as follows:] and your petitioner further shows, that the said vessel 
 
 is now within the county of , in which this application is 
 
 made. And your petitioner therefore applies for a warrant for 
 the seizure of the said vessel, her tackle, apparel and furniture, 
 and for the enforcement of his said lien thereon, pursuant to the 
 provisions of the statute aforesaid. Dated, &c., A. B.(l) 
 
 Verification of petition. 
 
 County of , ss : A. B., of , being duly sworn, 
 
 deposes and says, that the matters set forth in the foregoing peti- 
 tion, by him subscribed, are true in substance and in fact. And 
 further this deponent saith not. A. B. 
 
 Sworn, &c. 
 
 § 1573. Warrant for seizure of vessel. 
 
 In THE NAME OF THE PEOPLE OF THE STATE OF MICHIGAN. To 
 
 THE SHERIFF [OR " any constable"] OF THE COUNTY OF : 
 
 "Whereas A. B. did, on the — day of instant, niake 
 
 application to the subscriber, [circuit judge of the judicial 
 
 circuit of said state,] by petition in writing, duly verified by his 
 afiidavit, setting forth that he, the said A. B., has a claim or 
 demand upon which there is now justly due to him the sum of 
 
 dollars, over and above all payments and discounts, as near 
 
 as may be, and which said claim constitutes a lien upon the steam- 
 boat [Plymouth Eock], under and by virtue of the provisions of 
 chapter one hundred and twenty-two of the Eevised Statutes of 
 this state ; that such demand was contracted by C. D., the master 
 [or as the case may be] of the said vessel, and that the same 
 
 (1) Comp. L. 1314. 
 
COLLECTION OF DEMANDS AGAINST SHIPS, ETC. 587 
 
 accrued in favor of the said A. B. for and on account of supplies 
 and provisions furnished by the said A. B. for the use of the said 
 vessel, at the request of the said 0. D. as such [master] as afore- 
 said, between the first day of AprU and the last day of Kovember, 
 
 one thousand eight hundred and ; the particulars of which 
 
 said demand are specified in the said petition ; and it farther 
 appearing from the said petition that, at the time when the said 
 claim and every part tliereof so accrued, the said vessel was used, 
 and that the same is still used in navigating the waters of this 
 
 state, and that said vessel is now wiihin the said county of , 
 
 and the said A. B. having therein applied to the undersigned for a 
 warrant for the seizure of the said vessel, her tackle, apparel and 
 furniture, and for tbe enforcement of his said lien thereon, pur- 
 suaat to the provisions of the statute aforesaid : Now, therefore, 
 you are commanded to seize and safely keep the said steamboat 
 (_Pl7mouth Eock], her tackle, apparel and furniture, to answer all 
 such liens as shall be established against it, according to law and 
 to make return of your proceedings under this warrant to the 
 undersigned [circuit judge as aforesaid], within ten days after you 
 shall have made such seizure. Hereof fail not. 
 
 Given under my hand, at , this • day of , one thou- 
 sand eight hundred and . [Signature of of&cer].(l) 
 
 § 1574. Return of proceedings of officer under warrant. 
 
 To W. B. W., Circuit Judge of the judicial ciecuit : 
 
 I hereby certify and return, that by virtue of the warrant 
 
 heretofore issued by W. B. "W., circuit judge of the judicial 
 
 circuit, on the application of A. B. against the steamboat [Plymouth 
 Eock], her tackle, apparel and furniture, bearing date on the — 
 
 A&f of directed to the sheriff, or any constable of the county 
 
 of , and to me delivered, I, the undersigned, sheriff of the 
 
 said county, [or "o??e of the constables of the said county"'] did, on 
 
 the — day of , seize and take into my custody for safe keeping 
 
 the said steamboat [Plymouth Eock], her tackle, apparel and fur- 
 niture ; and that the annexed is a full and true inventory of all 
 the property so seized and taken by me under and by virtue of the 
 said warrant ; all of which remains in my custody, and is safely 
 kept by me for the purposes specified in the said warrant. Dated 
 this ■ — day of , 18 . [Signature of of&cer.](2) 
 
 Inventory of property seized hy virtue of the warrant mentioned in 
 the annexed return. 
 
 One steam- vessel, known and and designated as the [Ply- 
 mouth Eock], [describe each article of tackle, apparel and furni- 
 ture separately.] Dated, &c. [Signature of ofiScer.] 
 
 (1) Comp. L. 1314. (2) Id. 1315. 
 
538 MISCELLANEOUS PROCEEDINGS. 
 
 § 1575. Notice to claimants on return of proceedings under luarrant. 
 
 Notice is hereby given, That on the — day of last, 
 
 upon the application of A. B., of , to me duly made in writing, 
 
 and verified by his affidavit, pursuant to the provisions of chapter 
 one hundred and twenty-two of the Revised Statutes of this state, 
 I issued a warrant, directed to the sheriff or any constable of the 
 
 county of , commanding him to seize and safely keep the 
 
 steamboat [Plymouth Rock], her tackle, apparel and furniture, to 
 answer all such liens as should be established against it according 
 
 to law ; and that the sheriff of the said county of , to whom 
 
 the said warrant was delivered, has made a return of his proceed- 
 ings under the said warrant to me, in pursuance of the statute 
 aforesaid ; and that the said vessel belongs to the port of [Detroit], 
 and the name of her last commander is E. S. 
 
 All persons who claim to have any demands against the said 
 vessel, her tackle, apparel or furniture, under the provisions of 
 the statute aforesaid, ai'e, therefore, required to deliver to the sub- 
 scriber an account of their respective claims or demands, within 
 three months from the first publication of this notice, or their 
 remedy against the said vessel will be forfeited. 
 
 Notice is also hereby further given, that the said vessel, her 
 tackle, apparel and furniture, will be sold for the payment of the 
 claims against it, unless the owner, consignee or commander thereof, 
 or some person interested therein, shall appear and discharge such 
 warrant according to law, within three months from the first pub- 
 lication of this notice. Dated, &c. 
 
 [Signature of judge or commissioner.](l) 
 
 § 1576. Bond to obtain discharge of warrant. 
 
 Know all men by these presents, That we, R. S., com- 
 mander [or "owner" "agent" or "consignee"] of the steamboat 
 [Plymouth Rock,] [or "a person interested in the steamboat Ply- 
 mouth Boch,"] as principal, and E. F. and G. H. as sureties, are 
 held and firmly bound unto A. B., J. K. and L. M., [name all the 
 persons who have presented their claims to the officer issuing the 
 
 warrant, duly verified,] in the penal sum of dollars, [double 
 
 the amount of debts and claims sworn to,] lawful money, to be paid 
 to the said A. B., J. K. and L. M., their executors or administra- 
 tors ; to the payment of which sum, well and truly to be made, we 
 bind ourselves, our heirs, executors and administrators, firmly by 
 these presents. Sealed with our seals, and dated this — day of 
 , one thousand eight hundred and . 
 
 The condition of this obligation is such, that, whereas the said 
 
 A. B. heretofore, to wit., on the — day of , made application 
 
 in writing, verified by his affidavit, to W. B. W., circuit judge of 
 
 the • judicial circuit of the state of Michigan, setting forth that 
 
 he had a claim or demand, upon which there was then justly due 
 to him the sum of dollars, &c., [recite the substance of the 
 
 (1) Comp. L. 1315. 
 
COLLECTION OF DEMANDS AGAINST SHIPS, ETC. 589 
 
 petition as in the warrant, (§ 1573,) and then proceed as follows :] 
 whereupon the said W. B. W. issued his warrant, reciting the said 
 application, and directed to the sheriff or any constable of the 
 
 county of , commanding him to seize and safely keep the 
 
 said vessel, her tackle, apparel and furniture, to answer all such 
 liens as should be established against it according to law ; by vir- 
 tue of which said warrant the sheriff of the said county of , 
 
 to whom the said warrant was delivered, hath seized and taken 
 the said steamboat, her tackle, apparel and furniture, and now 
 holds and keeps the same in his custody, under and by virtue of 
 the said warrant ; and whereas the said J. K. and L. M., each of 
 them severally claiming to have a lien upon the said vessel, the said 
 
 J. K. to the amount of dollars, and the said L. M. to the 
 
 amount of dollars, over and above all payments and dis- 
 counts, since the issuing of the said warrant, have respectively 
 presented an account, in writing, of their said several demands, to 
 the ofS.cer aforesaid who issued the said warrant, accompanied by 
 tbeir several and respective affidavits, as prescribed by the statute 
 aforesaid: Now, therefore, if the above bounden obligors shall 
 well and truly pay the amount of all such claims and demands as 
 have been so exhibited to the of&cer issuing the said warrant, 
 which shall be established to have been subsisting liens upon the 
 said vessel, pursuant to the provisions of chapter one hundred and 
 twenty-two of the Revised Statutes of this state, at the time of ex- 
 hibiting the same respectively, then this obligation is to be void ; 
 otherwise to be and remain in full force and virtue. 
 
 C. D. [L. S.J 
 E. P. [L. s.] 
 G. H. [L. s.](l) 
 [ Indorsed. ] * 
 
 I approve of the security of the within bond. Dated, &c, 
 
 [Signature of officer.] 
 
 § 1577. Order discharging warrant on giving bond. 
 
 A bond having been duly executed by R. S., commander 
 of the steamboat [Plymouth Rock, J [or as the case may be,] with 
 sufficient security, approved by me, to the creditors or claimants 
 prosecuting the warrant issued by me, on the application of 
 
 A. B., and bearing date on the — day of , for the seizure and 
 
 safe keeping of the said steamboat, [Plymouth Rock,] her tackle, 
 apparel and furniture, to answer all such liens as should be estab- 
 lished against it according to law : Now, therefore, in pursuance 
 of the statute in such case made and provided, I do hereby dis- 
 charge the said warrant, and direct that the said vessel, her tackle 
 apparel and furniture, be restored to the said R. S., her com- 
 mander, [or "consignee" or otherwise, as the case may require.] 
 
 Dated this — day of , one thousand eight hundred and . 
 
 W. B. W., Circuit Judge of the ■ judicial circuit. 
 
 (1) Comp. L. 1316. 
 
590 MISCELLANEOUS PROCEEDINGS. 
 
 § 1578. Order for sah of vessel, dkc. 
 
 The warrant heretofore isued by me, on the application of 
 A. B., for the seizure of the steamboat [Plymouth Rock], her 
 tackle, apparel and furniture, pursuant to the provisions of chapter 
 one hundred and twenty-two of the Eevised Statutes of this state, 
 
 bearing date on the — day of , directed to the sheriff or anv 
 
 constable of the county of , and delivered to S. E., sheriff 
 
 of said county, to be executed, not having been discharged, and 
 the creditors who have exhibited their claims as provided in the 
 said chapter, not having been satisfied ; and the said sheriff having 
 made return to me that he had ei"ecuted the said warra&t by seiz- 
 ing the said vessel, and that he safely keeps the same according to 
 the command of the said warrant ; and I having thereupon caused 
 a notice to be published as required by the eighth and ninth sec- 
 tions of the said statute, once in each week for twelve weeks suc- 
 cessively, due proof of which publication has been made to me by 
 the affidavit of 0. P. ; and it appearing to me that the amount 
 necessary to be raised to satisfy the aforesaid claims, with the ex- 
 penses of the aforesaid proceedings, is the sum of • ■ dollars : 
 
 I do, therefore, in conformity with the requirements of the said 
 statute, order and direct that the said S. E., the sheriff who seized 
 the said vessel under the warrant aforesaid, proceed to sell the 
 said vessel, her tackle, apparel and furniture, for the payment of 
 the said claims and expenses, upon the same notice, in the same 
 manner, and in all respects subject to the provisions of law in case 
 of the sale of property upon execution ; and that he, the said sheriff, 
 make due return to me of his proceedings under this order. Dated 
 this — day of , 18 . [Signature of officer.] 
 
 [If it appear to the ofiicer that the claims exhibited before him, 
 and the expenses of the proceedings, can be satisfied by a sale of 
 the tackle, apparel and furniture, or some part thereof, without 
 selling the vessel, the order of sale will be so modified as to require 
 only a sale of such property .](1) 
 
 § 1579. Notice to attend distribution of proceeds of sak. 
 
 To all persons who have exhibited any claims before me 
 against the steamboat [Plymouth Eock], her tackle, apparel and 
 furniture, under the warrant issued by me for the seizure and safe 
 keeping of said vessel, her tackle, apparel and furniture, on the 
 application of A. B., pursuant to the provisions of chapter one 
 hundred and twenty-two of the Eevised Statutes of this state, bear- 
 ing date on the ■ — day of ; and to the owner, agent, consignee 
 
 and master of the said vessel, and all other persons interested 
 therein : Take notice, That you are required to appear before me, 
 
 at my chambers [or " office"~\ in , in the county of , on 
 
 the — day of next, [name a particular day, not less than thirty 
 
 (1) Comp. L. 1317. 
 
591 
 
 nor more than forty days from the first publication of the notice,] 
 at ten o'clock in the forenoon, to attend a distribution of the pro- 
 ceeds arising from the sale of the said vessel, her tackle, apparel 
 and furniture. Dated, &c. [Signature of officer.] (1) 
 
 § 1580. Objection by owner, agent, consignee or master of vessel, 
 or by a creditor, to the claim of a Cicdilor. 
 
 In the matter of steamboat ) Before W.B.W., Circuit Judge of 
 
 [^Plymouth Eoch.'\ \ the judicial circuit. 
 
 And now at this day, to wit., on the • — ■ day of , on 
 
 which day the owner, agent, consignee, master, and all persons in- 
 terested in the said steamboat [Plymouth Kock], and all persons who 
 have exhibited any claims against the said vessel under the warrant 
 
 issued by W. B. W., circuit judge of the judicial circuit, on 
 
 the — day of , upon the application of A. B., for the seizure 
 
 and safe keeping of the said vessel, to answer all such liens as 
 should be established agamst it according to law, pursuant to 
 the provisions of chapter one hundred and twenty-two of the 
 Ee vised Statute of this state, were required by a notice given and 
 published by the said circuit judge, bearing date on the — day of 
 
 , to appear before him, at his chambers in , in the county 
 
 of , to attend a distribution of the proceeds arising from the 
 
 sale of the said vessel, her tackle, apparel and furniture, comes 
 before the said circuit judge, pursuant to the notice aforesaid, J. 0., 
 the owner of the said steamboat [Plymouth Rock] [or " Yl Z., one 
 of the creditors who has exhibited his claim against the said steamboat 
 [Plymouth Modi], accompanied with his affidavit, in pursuance of the 
 statute aforesaid,"] and objects to the claim exhibited by E. H. 
 
 before the said circuit judge on the — day of , as constituting 
 
 a lien upon said vessel, and hereby contests the same, for the fol- 
 lowing reasons, that is to say : [set forth the particular objections 
 to such claim ;] and he hereby requests that the said claim of the 
 said E. H. may be tried. * [Signature of contestant.] (2) 
 
 [The mode of trying the contested claim, either by the judge or 
 commissioner, or by a jury, and the proceedings upon an appeal 
 to the circuit court, if one be taken by either party, are so nearly 
 analogous to the corresponding proceedings in cases of forcible 
 entry and detainer, that a reference to the forms under that head 
 is deemed sufficient, without repeating them here.] 
 
 § 1581. Order for distribution of proceeds of sale, and for pay- 
 ment to creditm's. 
 
 Notice having been given by me, and duly published, pur- 
 suant to chapter one hundred and twenty-two of the Eevised Stat- 
 utes of this state, requiring all persons who have exhibited any 
 
 (1) Oomp. L. 1318. (2) Id. 1318. 
 
592 MISCELLANEOUS PROCEEDINGS. 
 
 claims before me against tlie steamboat [Plymouth Eock], her 
 tackle, apparel, and furniture, under the warrant issued by me for 
 the seizure and safe keeping thereof, on the application of A. B., 
 
 pursuant to the said statute, bearing date on the — day of ; 
 
 and to the owner, agent, consignee, and master of the said vessel, 
 and all other persons interested therein, to appear before me, at my 
 
 chambers, [or " office,^''] in , in the county of , on the — 
 
 day of , at ten o'clock in the forenoon, to attend a distribution 
 
 of the proceeds arising from the sale of the said vessel, her tackle, 
 apparel, and furniture, on which day the following-named persons, 
 to wit., [name the creditors,] who had, before the giving of the 
 said notice, exhibited their respective claims against the said vessel 
 before me, accompanied by their respective affidavits, pursuant to 
 the statute aforesaid, and no one appearing to contest the said 
 claims, or either of them, or making or filing any objection thereto 
 in writing, after hearing the allegations and proofs of the parties, 
 it is decided and determined, and I do hereby decide and deter- 
 mine, that the said A. B. hath established a lien against the said 
 
 vessel, in pursuance of the statute aforesaid, to the amount of 
 
 dollars, over and above all payments and discounts, and that he is 
 entitled to receive from the proceeds of the sale of the said vessel, 
 her tackle, apparel and furniture, the sum aforesaid, in the distri- 
 bution of the said proceeds ; and that J. K. hath established a like 
 lien against the said vessel, pursuant to the said statute, to the 
 amount of dollars, and that he, the said J. K., is entitled to re- 
 ceive from the proceeds of the said sale the said sum last mentioned, 
 in the distribution of such proceeds ; and that L. M. hath estab- 
 lished, &c., [naming all the creditors who have established such 
 liens, and the amounts to which they are respectively entitled, and 
 then proceed as follows:] And hereupon it is ordered that the 
 
 sheriff of the county of , who made the said sale, and now 
 
 has in his hands the proceeds thereof, be directed, and he is hereby 
 directed, to pay the same to the several creditors entitled thereto, 
 and herein before named, to the full amount of their several and 
 respective liens so established as aforesaid, according to the distri- 
 bution of the said proceeds herein made, after first paying from 
 such proceeds all the costs and expenses of the proceedings under 
 the warrant aforesaid, for the enforcement of the said liens. Dated 
 
 this — day of , one .thousand eight hundred and . 
 
 [Signature of officer.] (1) 
 [If any of the claims are contested, this form will be varied, so 
 as to contain a brief recital of the fact, and of the proceedings 
 thereon, with the determination thereof; and if the proceeds of 
 the sale are not sufficient to pay all the claims established, after 
 paying the expenses of the proceedings, the order should specify 
 the amount to be paid to each creditor as his distributive share of 
 such proceeds, in proportion to the amount of his claim estab- 
 lished.] (2) 
 
 (1) Comp. L. 1318, 1319. (2) See Comp. L. 1318, 1319. 
 
COLLECTION OF DEMANDS AGAINST SHIPS, ETC. 593 
 
 § 1582. Report of "proceedings to he filed with the cleric of (lie circuit 
 court for the county. 
 
 In the matter of steamboat \ 
 [Plymouth Rock.] \ 
 
 To the Circuit Court for the county of . 
 
 Pursuant to the requirements of section thirty-two of chapter 
 one hundred and twenty-two of the Revised Statutes of this state, 
 
 I do hereby respectfully report : That, on the — day of , A. B. 
 
 of presented to me the petition and affidavit accompanying 
 
 the same, hereto annexed, and marked "Schedule A;" and that I 
 thereupon issued a warrant for the seizure and safe keeping of the 
 steamboat [Plymouth Rock], the vessel named in the said petition, 
 of which warrant the following is a true copy, to wit., [copy the 
 warrant entire,] and that, pursuant to the command in the said 
 
 warrant in that behalf contained, the sheriff of the county of — , 
 
 to whom the same was delivered to be executed, made a return of 
 his proceedings thereon to me, of which the following is a true 
 copy, to wit., [set forth a copy of the sheriff's return] ; that upon 
 such return being made to me as aforesaid, I immediately caused 
 the notice, of which the following is a true copy, [copy of notice 
 
 of seizure] to be published in the , a newspaper published in 
 
 the said county of the first publication whereof was on the 
 
 — day of , and that such notice was published in said news- 
 paper once in each week for twelve weeks successively, as appears 
 by the affidavit, of which the following is a true copy [set forth 
 a copy of affidavit of publication] ; that after the first publication 
 
 of the said notice, to wit., on the ■ — ■ day of' , J. K. delivered to 
 
 me an account in writing of his demand against the said vessel, 
 accompanied by his affidavit thereto annexed, which account and 
 affidavit of the said J. K. are also hereto annexed, and marked 
 " Schedule Bf and that on the — ■ day of ■ — — L. M. delivered to 
 me an account, in writing, of his demand against the said vessel, 
 accompanied by his affidavit thereto annexed, which said account 
 and affidavit of the said.L. M. are also hereto annexed, and marked 
 " Schedule C." [If the warrant was discharged upon the giving of 
 a bond, as provided for in section fourteen of the chapter referred 
 to, set forth the giving of the bond, and a list of the fees and ex- 
 penses allowed ; but if no such bond was given, and the warrant 
 was not otherwise discharged, proceed as follows :] and I do further 
 
 certify and report, that afterwards, to wit., on the — day of , 
 
 the several creditors who had exhibited their claims, as provided 
 in the said statute, not having been satisfied, and the said warrant 
 not having been discharged as therein provided, and the time for 
 that purpose limited having expired, upon due proof of the publi- 
 cation of the notice aforesaid, I issued my order to the sheriff of 
 
 the county of , who seized the said vessel under the warrant 
 
 aforesaid, of which said order the following is a true copy, to wit, 
 [set forth a copy of the order of sale in full :] and that at the time 
 of issuing the said order of sale, I also ordered a notice to be pub- 
 lished in the same newspaper in which the said notice of seizure 
 had been publishedj once in each week for three successive weeks, 
 
594 MISCELLANEOtTS PEOCEEDINGS, 
 
 of whicli said last-mentioned notice the following is a true copy, to 
 wit., [set forth a copy of the notice to creditors and others to attend 
 the distribution of the proceeds of the sale] and which said notice 
 was duly published according to the requirements of the said 
 order. And I do further certify and report, that before the day 
 appointed in the said last-mentioned notice for a distribution of the 
 
 proceeds of the sale of the said vessel, to wit., on the — day of' , 
 
 the said sheriff of the county of made and delivered to me 
 
 a return of his proceedings under the said order of sale, of which 
 said return the following is a true copy, that is to say, [copy sheriff's 
 return of the sale made by him] and that on the day so appointed 
 in the said last mentioned notice, I proceeded to hear the allega- 
 tions and proofs of the parties, and to determine the several claims 
 so exhibited to me as aforesaid against the said vessel, and to make 
 distribution of the proceeds of the said sale, and I thereupon made 
 the order, of which the following is a true copy, to wit., [copy the 
 order for distribution.] [If any claim so presented was contested, 
 set forth the fact, and the trial and determination thereof, before 
 setting forth the order of distribution ; and set forth, also, any 
 other proceedings had or done before the officer in the premises, 
 and then proceed as follows :] and I further certify and report, 
 that the following is a list of the fees and expenses of the proceed- 
 ings aforesaid, allowed by me, to wit., [set forth each item of ser- 
 vice and expense, and the amount allowed therefor, as in an 
 
 .ordinary bill of costs.] Dated this — day of . 
 
 [Signature of officer.] 
 
 LIENS OF MECHANICS AND OTHERS. 
 
 § 1583. Somewhat analogous to the lien of the ship-carpenter 
 and material-man upon the vessel which he aids in building, is the 
 lien given to the person who furnishes labor or materials for the 
 erection or repair of a building, in pursuance of a contract in 
 writing, executed, acknowledged and recorded, in the manner pro- 
 vided for by the statute. It is provided that every person who 
 shall, by contract with the owner of any piece of land, furnish 
 labor or materials for erecting or repairing any building, or the 
 appurtenances of any building, on such land, shall have a lien 
 upon the whole piece of land, not exceeding one-quarter of a sec- 
 tion, for the amount due to him for such labor and materials ; but 
 such lien does not attach, unless the contract is made in writing, 
 signed by the owner of the land, or by some person duly author- 
 ized by him, and acknowledged and recorded in the office of the 
 register of deeds of the county where the land lies.(l) 
 
 (1) Oomp. L. 1343. 
 
LIENS OF MECHANICS, ETC. 595 
 
 § 1584. The lien of the mechanic or material-man for labor 
 done or materials furnished in the construction of a building, 
 attaches only upon the interest of the person for whom it was 
 erected. If, therefore, when the lien attaches, the person causing 
 the building to be erected has no title to the land on which it 
 stands, but a mere right resting in contract, to a conveyance on 
 the performance of a condition precedent, and that right is after- 
 wards lost by his failure to perform the condition; subsequent 
 proceedings to enforce the lien will convey no right or title to the 
 purchaser.(l) 
 
 § 1585. If the land to which the contract relates is under an 
 attachment at the time of recording such contract, the attaching 
 creditor is preferred to the extent of the value of the land and 
 buildings as they may be when the contract is recorded; (2) and 
 if the person who procures the work to be done has an estate for 
 life only, or any other estate less than a fee-simple in the land on 
 which the work is done ; or if the land, at the time of recording 
 the contract, is mortgaged, or under any other incumbrance, the 
 person who procures the work to be done is, nevertheless, to be 
 considered the owner for the purposes of the statute, to the extent 
 of his right and interest in the land ; and the lien will bind his 
 whole estate and interest therein, in like manner as a mortgage 
 would have done ; and the creditor may cause the right of redemp- 
 tion, or whatever other estate or interest such person had in the 
 land, to be sold and applied to the discharge of his claim.(3) 
 
 § 1586. Proceedings for enforcing the lien must be com- 
 menced within six months after the money due by the contract, or 
 the last installment thereof, shall become due and payable, or the 
 lien will be dissolved. Such proceedings are commenced by peti- 
 tion, and the statute provides that when any sum due by such 
 contract shall remain unpaid for the space of sixty days after the 
 same is payable, the creditor may, upon a petition to the circuit 
 court for the county in which the land lies, obtain an order for the 
 sale thereof, and for applying the proceeds to the discharge of his 
 demand. Such petition may be filed, either in term or in vacation, 
 and it must contain a brief statement of the contract on which it 
 is founded, and the amount due thereon, with a description of the 
 premises which are subject to the lien, and all other material facts 
 and circumstances, and must contain a prayer that the premises 
 
 (1) 2 Doug. Mich. R. 6i. (2) Comp. L. 1346. (3) Id. 1347. 
 
596 MISCELLANEOUS PEOCEEDINGS. 
 
 may be sold, and the proceeds of the sale be applied to the dis- 
 charge of the demand.(l) If the petitioner be a non-resident of the 
 state, the petition must be indorsed by a responsible person, as 
 security for costs, in the same manner that a declaration is required 
 to be indorsed in like cases, and with the like effect.(2) 
 
 § 1587. Upon filing the petition, an order may be entered of 
 course, that the owner of the land appear and answer such 
 petition within twenty, days after service of notice of such 
 order, and a copy of the petition, upon such owner. Notice of 
 such order, and a copy of the petition, must be personally served 
 upon such owner, if he resides within this state, and notice of the 
 filing of the petition and entry of such order must also be 
 served upon all other creditors who have a similar lien upon the 
 same lands. If it satisfactorily appear to the court that the owner 
 resides out of the state, the court will make an order that notice of 
 filing such petition be given to all persons interested, by publishing 
 the same, together with the substance of the petition, in some pub- 
 lic newspaper, printed or circulating within the county, for six 
 successive weeks.(3) 
 
 § 1588. Every creditor, having a similar lien upon the same 
 land, may appear and prove his claim, and the owner may appear 
 and disprove the same ; and each of the creditors may contest the 
 claim of every other creditor, and the court will hear and deter- 
 mine the several claims in a summary manner, either with or 
 without a jury, as the case may require. Every material fact is to 
 be submitted to a jury, if required by either party, or if it. shall 
 be thought proper by the court ; and such trial may be had upon 
 a question stated, or upon an issue formed under the direction of 
 the court, or otherwise, as the court shall order ; and the court is 
 required to examine all the claims that may be presented, and to 
 ascertain and determine the amount due to each creditor who has 
 a lien of the kind mentioned in the statute upon the estate in 
 question, and to allow every such claim that is due absolutely and 
 without any condition, although not then payable, with a rebate 
 of interest to the time when it would become payable. (4) And 
 when the owner of the land shall have failed to perform his part 
 of the contract, and by reason thereof the other party shall, with- 
 out his fault, have been prevented from completely performing his 
 
 (1) Comp. L. 1343, 1344, (2) Id. 1348. (3) Id. 1344. (4) Id. 
 
LIENS OF MECHANICS, ETC. 597 
 
 part, he is entitled to a reasonabie compensation for as mucli there- 
 of as he has performed, in proportion to the price stipulated for 
 the whole, and the court is required to adjust his claim accord- 
 iJigly-(l) 
 
 § 1589. If a lien be established in favor of any of the cred- 
 itors whose claims are presented, whether the petitioning creditor 
 or any other, the court will order a sale of the premises to be 
 made by the sheriff or circuit court commissioner of the county. 
 If any part of the premises can be separated from the residue 
 and sold, without damage to the whole, and if the value of such 
 part is sufiB.cient to satisfy all the claims proven in the case, the 
 court may order a sale of that part, if it appear to be most for the 
 interest of all the parties concerned. The officer making the sale 
 must give notice of the time and place appointed therefor in the 
 manner prescribed for the sale of real estate on executions, unless 
 the court shall order other or different notice to be given, and the 
 officer is required to give the purchaser a certificate of the sale, in 
 like manner as certificates are required to be given on a sale upon 
 execution, and with the same effect ; and all lands so sold may be 
 redeemed in like manner, and upon the same terms as are provided 
 in the case of a sale of real estate on execution.{2) 
 
 § 1590. If the claims against the estate are all ascertained at 
 the time of ordering the sale, the court may at the same time 
 order the officer to pay over and distribute the proceeds of the 
 sale, after deducting all lawful charges and expenses, to and 
 among the several creditors, to the amount of their respective 
 claims, if there is sufficient therefor ; and, if there is not sufficient, 
 then to divide and distribute the same among the creditors in pro- 
 portion to the amount due to each of them ; but if the claims shall 
 not all have been ascertained when the sale is ordered, or if, for 
 any other reason, it is deemed proper to postpone the order of 
 distribution, the court may direct the ofl&cer to bring the proceeds 
 of the sale into court, to be disposed of according to the order of 
 such court; and if, in consequence of the claims of attaching 
 creditors, or for any other cause, the whole cannot be properly 
 distributed at once, the court may make two or more successive 
 orders of distribution, as the circumstances may require.(3) 
 
 § 1591. If there be any surplus of the proceeds, after making 
 
 (1) Comp. L. 1344, 1345. (2) Id. 1345. (3) Id. 1345, 1346. 
 
598 MISCELLANEOUS PEOOEEDINGS. 
 
 all the payments so required to be made, it is required to be fortb- 
 ■witb paid over to the owner of tbe land ; but sucb surplus is 
 liable to be attached or taken in execution in like manner as if it 
 proceeded from a sale made on an exec^ition. 
 
 In case tbe land was under attachment at tbe time of recording 
 tbe contract, the court will ascertain, by a jury or otherwise, what 
 portion of the proceeds of the sale shall be held subject to such 
 attachment, as derived from the value of the premises when 
 the contract was recorded ; and if the attaching creditor recover 
 in his suit, he is entitled to receive on his execution the proportion 
 of such proceeds that are held subject to his attachment, or so 
 much thereof as may be necessary to satisfy his execution, and the 
 residue, if any, of such proceeds are to be applied in the same 
 manner as if there had been no attachment.(l) 
 
 § 1592. If the land to which the contract relates, be attached 
 after the recording of the contract, the proceeds are to be applied, 
 after discharging all prior liens and claims, as far as shall be neces- 
 sary, or so far as the same will extend, to satisfy the execution of 
 such attaching creditor ; and if an attachment is made after the 
 recording of such contract, and if, after the attachment, another 
 such contract be recorded, the creditor in the latter contract will 
 be entitled to be paid only out of the residue after satisfying the 
 attaching creditor, and also paying all that is due on the contracts 
 that were recorded before the attachment. 
 
 When there are several attaching creditors, they are entitled, as 
 between themselves, to be paid according to the order of their 
 respective attachments ; but when several creditors who are entitled 
 to the lien provided for by the statute, have all equal rights, as 
 between themselves, and the fund is insufficient to pay the whole, 
 they are entitled to share it equally in proportion to their respect- 
 ive claims.(2) 
 
 § 1593. If the person indebted in any contract die, or convey 
 away his estate, before the commencement of suit on the contract, 
 the suit may be prosecuted against his heirs, or whoever holds the 
 estate which he had in the premises at the time of making the con- 
 tract ; or, if a suit is commenced in his lifetime, it may be prosecuted 
 against his representatives or assigns, in like manner as if the estate 
 had been mortgaged to secure the debt ; and if the creditor die 
 before the commencement of a suit thereon, the suit may be prose- 
 
 (1) Comp. L. 1346. (2) M. 1346, 134'J. 
 
LIENS OF MECHANICS, ETC. 599 
 
 cuted by Ms executors or administrators ; or, if commenced in his 
 lifetime, it may be prosecuted by them as it might have been by 
 the deceased, if liTing.(l) 
 
 § 1594. Kit appear, in any stage of the proceedings, that the 
 suit was commenced by the petitioning creditor before the expira- 
 tion of the sixty days, or after the expiration of the six months, 
 in that behalf limited ; or, if the petitioning creditor become non- 
 suit, or for any cause fail to establish his claim, the suit may, never- 
 theless, be prosecuted by any other creditor having such a lien, in 
 the same manner as if it had been originally commenced by the 
 latter, if the circumstances of the case are such that he might then, 
 or at any time after the commencement of the original suit, have 
 commenced a like suit on his own claim ; and, if the suit is com- 
 menced by the petitioning creditor before the expiration of the 
 sixty days in that behalf limited, his claim may, nevertheless, be 
 allowed, if he is otherwise entitled thereto, and if the suit is prose- 
 cuted by any other creditor as aforesaid ; but in that case he will 
 not be entitled to any costs, and he may be compelled to pay the 
 costs that shall have been incurred by the debtor, or any part 
 thereof, as the court shall deem reasonable. The costs in all 
 other cases are subject to the discretion of the court, and may 
 be ordered to be paid out of the proceeds of the sale, or by any of 
 the parties, as justice and equity may require.(2) 
 
 § 1595. The statute does not prevent any creditor from pursu- 
 ing his remedy by action at the common law, in the same manner 
 as if he had no such lien for the security of his debt. When the 
 debt, secured by such lien, is fully paid, it is the duty of the cred- 
 itor, at the expense of the debtor, to enter on the margin of the 
 record of the contract a discharge of his lien, or to execute a deed 
 of release thereof, in like manner as is provided by statute in rela- 
 tion to the discharge of mortgages after payment thereo£(3) 
 
 § 1596. The proceeding provided for by the statute for en- 
 forcing the liens of mechanics and material-men, is essentially an 
 equitable one, though had on the law side of the court, and assimi- 
 lating, in some respects, to the proceedings in ordinary actions at 
 law. The mode of inquiry for determining the material facts, is 
 of a summary character, and the court exercises a large equitable 
 
 (1) Comp. L. 1347. (2) Id. 1347, 1348. (3) Id. 1348. 
 
600 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 discretion in directing the manner of ascertaining and adjusting the 
 rights of all parties interested in the result of the proceedings. If 
 no jury be demanded by either party, for the trial of any material 
 facts, the court may refer it to a circuit court commissioner to 
 examine witnesses and report their depositions, as in other cases of 
 summary proceedings pending therein ; and this latter course wHl, 
 in most cases, best suit the convenience of the parties, and expe- 
 dite the proceedings at the same time. But if either party demand 
 that material facts in issue be tried by a jury, such trial can only 
 be had in court, and will be governed by the same general rules 
 as other trials of issues of fact by jury. 
 
 § 1597. It is also to be considered, that proceedings of this 
 kind, which differ very materially from an ordinary action at law, 
 or suit in chancery, but are of a special character, regulated in all 
 their essential features by the statute, and involving, as they some- 
 times do, a variety of different, and perhaps conflicting interests, 
 require more than ordinary care on the part of counsel who con- 
 duct them, in their preparation. A thorough and methodical 
 arrangement, beforehand, of all the detaUs which will require atten- 
 tion during the progress of the proceedings, so far as it is prac- 
 ticable to arrange them, will not only enable counsel to aid the 
 court essentially in adjusting and securing the rights of all the 
 parties, but will save counsel much labor and vexation that would 
 be likely to result from neglect of it, and not unfrequently irom a 
 fatal mistake, which would render the whole proceedings nugatory, 
 and result in loss to the party and injury to his attorney. 
 
 * §. 1598. Petition for order of sale, &c. 
 
 To THE ClECUIT COUBT FOE THE COUNTY OF . 
 
 The petition of A. B., of , respectfully represents, That 
 
 on the — day of ; he, this deponent, entered into a contract in 
 
 writing with C. D., of . bearing date on the day and year last 
 
 aforesaid, which said contract was signed by the said 0. D. and 
 your petitioner, and by which your petitioner agreed, &c., [set forth 
 the substance of the contract, and then proceed as follows :] Which 
 said contract was afterwards, to wit., on the day and year aforesaid, 
 duly acknowledged by the said C. D. before E. S., a notary public 
 
 in and for the said county of , as by his certificate of the 
 
 acknowledgment thereof, indorsed on the said contract, and signed 
 by the said E. S. as such notary public, reference being thereto 
 had, will more fully and at large appear. And your petitioner 
 
 farther represents, that on the — day of , the said contract, 
 
 with the acknowledgment thereof, was duly recorded in the ofiice 
 
 of the register of deeds of the said county of , in book [A. 
 
 of miscellaneous records, on pages ,] as by the certificate of 
 
LIENS OF MECHANICS, ETC. 601 
 
 C. H., then register of deeds of the said county of , indorsed 
 
 thereon, and signed by him as such register, reference being thereto 
 had, will more fully and at large appear. 
 
 And your petitioner further represents, that he has furnished all 
 the materials, and performed all the carpenter and joiner work in 
 and about the construction of the building mentioned and described 
 in the said contract, according to the terms thereof, and in every 
 respect performed and fulfilled the same on his part ; and that there 
 is now due and payable to your petitioner from the said C. D., by 
 
 and upon the contract aforesaid, the sum of dollars ; and that 
 
 the same has been so due and payable for the space of sixty days 
 and upwards next preceding this date, and still remains unpaid, 
 and which said sum constitutes a lien in favor of your petitioner 
 upon the tract or parcel of land hereinafter mentioned and de- 
 scribed, under and by virtue of the provisions of chapter one hun- 
 dred and twenty-six of the Eevised Statutes of this state. 
 
 And your petitioner further represents and shows, that the build- 
 ing mentioned and described in the said contract was erected in 
 pursuance thereof upon [describe the premises which are subject 
 to the lien with the same certainty as is required in a declaration 
 in ejectment], which said lands and premises were then, and still 
 are, owned by the said C. D. in fee. * And your petitioner there- 
 fore prays that all and singular the premises aforesaid may be sold, 
 in pursuance of the statute aforesaid, and that the proceeds of such 
 sale may be applied to the discharge of your petitioner's said de- 
 mand. And your petitioner will ever pray, &c. Dated this — 
 day of , one thousand eight hundred and . A. B. 
 
 E. F., Attorney. 
 
 County of , ss: A. B., being duly sworn, says that 
 
 the foregoing petition, by him subscribed, is true in substance and 
 in fact. A. B. 
 
 Sworn, &c. 
 
 § 1599. Order that owner appear and ansiver petition. 
 A. B. 
 
 vs. 
 
 [Bate.] 
 
 q"^ C E. F., Attorney. 
 
 On filing the petition of A. B. in this cause, and on motion 
 of B. ¥., attorney for petitioner, Ordered, that 0. D., the respondent, 
 appear and answer the said petition, within twenty days after 
 service upon him of notice of this order and a copy of the said 
 petition. B. F., Attorney for petitioner. 
 
 § 1600. Notice of order to appear and ayiswer, to he indorsed on a 
 copy of the petition. 
 
 To 0. D., EESPONDENT : 
 
 Sir : — Please to take notice, that on filing the petition, of 
 which the within is a true copy, in the ofS.ce of the clerk of the 
 
 circuit court for the county of , an order was duly entered 
 
 in the book of common rules kept by said clerk, requiring you 
 
602 MISCELLANEOUS PROCEEDINGS. 
 
 to appear and answer the said petition, within twenty days after 
 service upon you of notice of such order, and a copy of the said 
 petition. Dated, &c, Yours, &c. 
 
 E. F., Attorney for petitioner. 
 
 § 1601. Order for ^publication of notice where owner resides out of 
 the state. 
 
 A. B. I 
 
 vs. )■ 
 
 CD. j 
 
 It satisfactorily appearing to this court, by the affidavit of A. 
 B., the above named petitioner, that the said C. D. resides out'of this 
 state, to wit, in the state of [New York], on motion of B. F., attor- 
 ney for the said petitioner, it is Ordered, that notice of the filing of 
 the said petition of the said A. B. be given to all persons interested, 
 by publishing the same, together with the substance of the said pe- 
 tition, in the , a public newspaper, printed [or " circulating"] 
 
 within the county of , for six successive weeks. 
 
 § 1602. Notice in pursuance of foregoing order. 
 
 The Circuit Court fob the county of . 
 
 A.'B.| 
 
 vs. > 
 
 CD. ) 
 
 Pursuant to an order made and entered in this cause, on the 
 
 ■ — day of , in the circuit court for the county of , Notice 
 
 is hereby given to all persons interested, that on the • — day of , 
 
 he, the said A. B., filed in the said court his petition against the 
 said C. D., setting forth, &c., [state the substance of the petition,] 
 and that the said C D. is required to appear in the said court, and 
 answer the said petition, within six weeks from the first publica- 
 tion of this notice. Dated this — day of . 
 
 E. F., Attorney for petitioner. 
 
 § 1603. Petition of another creditor having a similar lien. 
 
 The Circuit Court for the county of . 
 
 A. B. ) 
 
 vs. y 
 
 CD. ) 
 
 [The petition in this case may be the same in substance as 
 the original petition to the *, from which proceed as follows :] And 
 your petitioner therefore prays that he may be allowed to prove 
 his said claim in this suit, against the said C. D., and that he may 
 have the same benefit thereof in all respects as if the said suit had 
 been originally commenced by your petitioner. And your peti- 
 tioner will ever pray, &c. I. K. 
 E. F., Attorney for I. K. 
 [Verify the petition in the same manner as the original petition 
 is verified.] 
 
LIENS OF MECHANICS, ETC. 603 
 
 § 1604. Answer of respondent. 
 The Ciecuit Couet for the county of 
 CD. 
 
 ads. ^ The answer of C. D., tlie respondent, to the petition of A. B. 
 
 This respondent, Q. D., not waiving any objection or excep- 
 tion which might be taken to the said petition, for answer thereto 
 saith, &c., [admit or deny all the material facts set forth in the pe- 
 tition, and set up any matter of defence to which the respondent is 
 entitled.] 
 
 § 1605. Answer to claim of creditor who has presented the same 
 pending the suit. 
 
 [The petition of such creditor may he answered, and his 
 claim contested, in the same manner as if he were the original pe- 
 titioning creditor.] 
 
 [If any creditor contests the claim of any othier creditor upon any 
 special ground of defence thereto, which may require to be tried 
 by a jury, the objection or defence ought to be stated in writing, 
 so that an issue of fact may be distinctly presented for trial. Upon 
 the hearing of the claims, whether the respondent appears or not, 
 if he does not admit them, they must be established by proof, the 
 petition not being evidence for that purpose. ] 
 
 § 1606. Order determining claims, and for sale of premises. 
 
 A. B. ) 
 vs. V 
 
 C. D. ) 
 
 The court having examined the several claims presented in 
 this cause, and it appearing to the said court that there is due from 
 
 the said C. D. to the petitioner A. B. the sum of dollars, and 
 
 to I. K., who has presented his claim in this suit since the com- 
 mencement thereof, the sum of dollars, and that the said 
 
 sums, respectively, are a lien upon the premises mentioned and 
 described in the petition of the said A. B., under and in pursuance 
 of chapter one hundred and twenty -six of the Revised Statutes of 
 this state, in manner and form as the said A. B. and I. K. have in 
 their several petitions on file in this cause respectively alleged ; it 
 is thereupon decided and determined that the said A. B. and I. 
 K. are each of them respectively entitled to the said sum so ap- 
 pearing to be due to him, and that the same is a lien upon the 
 premises aforesaid, pursuant to the provisions of the statute afore- 
 said. And on motion of E. F., attorney for the said creditors, it is 
 now here Ordered, that all and singular the premises mentioned 
 and described in the petition of the said A. B. in this suit, as being, 
 &c., [describe the premises to be sold,] be sold at the court house 
 
 in , in said county of , by the sheriff of the said county ; 
 
 he, the said sheriff, first giving notice of the time and place ap- 
 
604 MISCELLANEOUS PROCEEDINGS. 
 
 pointed for such sale, in the manner prescribed by law in relation 
 to the sale of real estate on executions, and that he give to the pur- 
 chaser at such sale a certificate thereof, in like manner as certificates 
 are required by law to be given on sales upon execution. [If the 
 court deem some other mode of notifying the sale more proper 
 than that above directed, the order will be modified in that respect 
 accordingly. If there appear to be no reason for postponing the 
 distribution of the proceeds of the sale, the order may proceed as 
 follows :] And it is further Ordered, that the said sheriff pay over 
 and distribute the proceeds of the said sale, after deducting all law- 
 ful charges and expenses, to and among the said several creditors 
 hereinbefore named, to the amount of their said respective claims, 
 if there shall be sufficient therefor ; and if there shall not be suffi- 
 cient to pay the whole amount of said claims, that then he divide 
 and distribute the same between the said creditors, in proportion 
 to the amount due to each of them as aforesaid. [If there be any 
 reason for postponing the distribution, the order wiU direct the 
 officer to bring the proceeds of the sale into court, to be disposed 
 of according to the order of such court.] (1) 
 
 § 1607. Order of reference to ascertain what portion of proceeds 
 shall be held subject to attachment. 
 
 A. B. ) 
 
 vs. > 
 
 C. D. ) 
 
 It appearing to the court that, at the time of recording the 
 contract set forth in the petition of A. B. in this cause, an attach- 
 ment had been levied upon the premises therein mentioned and 
 described, at the suit of M. N. against the said C. D., whereby the 
 said M. N. obtained a preference over the lien of the said A. B., 
 to the extent of the value of the said land and the buildings 
 thereon, as they were at the time of recording the said contract, 
 on motion of E. P., attorney for the said petitioner, it is Ordered, 
 that it be referred to the circuit court commissioner for the county 
 
 of , to take proofs, inquire and ascertain what portion of the 
 
 sum of dollars, being the proceeds of the sale of the said 
 
 premises, ought to be held subject to the said attachment, as derived 
 from the value of the said. premises at the time when the sa,id con- 
 tract was so recorded; and that he report the same, with the 
 proofs taken by him, to this court, with all convenient dispa;tch.(2) 
 
 SALE OF REAL ESTATE OF RELIGIOUS CORPORATIONS. 
 
 § 1608. Although, at the common law, every corporation 
 aggregate, including religious corporations, might alien its real 
 
 (1) Comp. L. 1345. (2) Id. 1346. 
 
LIENS OF MECHANICS, ETC. 605 
 
 estate in fee, or create any lesser estates therein witliout limitation 
 or restriction ;(1) yet this right, in regatd to the disposal of church 
 property, or the property of religious corporations, was taken away 
 at an early day in England, and the restraining statutes became a 
 part of the unwritten law of this country in its colonial state. (2) 
 Our statute, therefore, concerning churches and religious societies, 
 establishing uniform rules for the acquisition, tenure and disposi- 
 tion of property, conveyed or dedicated for religious purposes, (3) 
 does not, in terms, restrict or inhibit the exercise of such power of 
 disposition ; but, assuming the absence of such a power, has pro- 
 vided for a sale of such property by religious corporations, in cases 
 where the proper court shall see good reason for consenting 
 thereto. 
 
 § 1609. The statute above referred to(4) provides, that it shall 
 be lawful for the circuit court for the county in which any such 
 religious corporation shall have been constituted, on the applica- 
 tion of such corporation, if such court shall deem it proper, to 
 make an order for the sale of any real estate belonging to such 
 corporation, and to direct the application of the moneys arising 
 tlierefrom to such uses as the said corporation, with the approba- 
 tion of said court, shall conceive to be for the interest of such cor- 
 poration ; but no such sale can be authorized by the court where 
 it would be inconsistent with the express terms or plain intent of 
 the grant, donation, conveyance or devise, by which the same was 
 conveyed or devised to or for the use of such church, congregation 
 or society, prior to the passage of the act. (5) 
 
 § 1610. At least thirty days' notice must be given of any such 
 application, by publishing the same in some newspaper pub- 
 lished in the county, if one be there published, and, if not, then 
 by posting up notices in three or more public places in such county. 
 (6) The statue does not specify what the notice shall contain ; 
 but, the object of it being to inform those interested of the nature 
 of the application, and the time when it is to be made, it ought to 
 be sufficiently specific for this purpose. It should be signed by 
 the trustees, who constitute the corporation, or a majority of them, 
 and must specify the time when and the court to which the appli- 
 cation will be made by the corporation. 
 
 (1) Co. Litt. 44a, 300 ; 3 Barb. Ch. R 123. 
 
 (2) Id.; and see 23 Barb. 333. (3) laws of 1855, p. 313 j Oomp. I. 660. 
 (4) Corap. L. 664, § 19. (5) Laws of 1855, pp. 31T, 318. 
 
 (6) Id. 318; Comp. Ii. 664. 
 
606 MISCELLANEOUS PROCEEDINGS. 
 
 § 1611. The trustees, by sucli name as shall have been adopted 
 in the manner provided by the statute, alone constitute the corpo- 
 ration, and have charge of the property belonging to, and have 
 power to transact all the afiairs relative to the temporalities of the 
 church, congregation or society, (1) and therefore no action on the 
 part of such church, congregation or society, is necessary to 
 authorize such trustees to give the notice, make the application, or 
 dispose of the proceeds of the sale. The application must be 
 made to the court in term time, no power being conferred upon the 
 judge to receive or hear it in vacation. It must be made by and 
 in the name of the corporation, and the court has no power to 
 grant an application made otherwise.(2) 
 
 § 1612. The application is properly made by petition, which 
 should describe the lands desired to be sold, and set forth the 
 reasons why a sale is deemed desirable, and for the interest of the 
 corporation, and also the disposition which the corporation proposes 
 to make of the proceeds of the sale ; and should be verified by the 
 oath of the trustees making it. 
 
 The order of the court is only necessary in cases where the abso- 
 lute right and title to the lands are to be.sold.(3) The sale of pews 
 in a church is not therefore a sale of real estate, within the mean- 
 ing of the statute, for by the grant of a pew, the grantee acquires 
 only a limited usufructury right. (4) Nor is the order of the court 
 necessary to give validity to a mortgage executed by a religious 
 corporation for a portion of the consideration-money of premises 
 purchased.(5) The statute is only applicable where the corporation 
 owns real property, and its object is that the court may control 
 the disposition of the proceeds, and prevent a misapplication of 
 trust fiinds.(6) 
 
 § 1613. It is not necessary for the corporation to show that it 
 has found a purchaser for the premises proposed to be sold, but a 
 conditional order can be made, authorizing a sale at a price not 
 less than a sum fixed by the court, and so that, if a purchaser 
 cannot be found at that sum, no sale will be'made.(7) And, if it 
 be necessary, a reference may be made to the circuit court com- 
 missioner, to ascertain the value of the property, or any other 
 
 (1) Comp. L. 660, 661. » 
 
 (J) 4 Abb. Pr. E. 182 ; and see 1 Kern. B. 94, 243. 
 
 (3) 5 Cowen, 494. (4) Id. (6) 18 Barb. 36. 
 
 (6) Id. 49. (7) 3 Edw. Oh. E. 151. 
 
LIENS OF MECHAN-ICS, ETC. 607 
 
 material facts set fortli in the petition, or tlie court may ascertain 
 such value or other facts, by the examination of witnesses orally 
 in court. 
 
 If the application is approved by the court, an order will be 
 entered directing a sale of the premises, in pursuance of the prayer 
 of the petition. No valid sale can be made without the previous 
 order of the court, and it is at least doubtful whether a subsequent 
 ratification by the court would give validity to it.(l) But the 
 court has no power to dictate to the corporation how, or to whom, 
 it shall sell, or to require it to sell against its will, or otherwise to 
 control it in the disposition of its property, or of the proceeds 
 thereof It may withhold its assent, and will do so if the sale, or 
 the proposed application of the proceeds, be not approved ; but it 
 can only allow or disapprove what is proposed by the corpora- 
 tion.(2) 
 
 § 1614. Notice of application for order for sale of real estate of 
 religious corporations. 
 
 The trustees of the [First Congregational Church of ], a 
 
 religious corporation, duly organized under the laws of this state, 
 hereby give notice, that they will make application to the circuit 
 
 court for the county of , on the first day of the next term 
 
 thereof, appointed to be held at the court house in , in said 
 
 county, on the ■ — • day of ■ next, or as soon thereafter as counsel 
 
 can be heard, for an order of the said court that the following 
 described real estate, belonging to the said corporation, to wit., 
 [describe the property] may be sold, and that the proceeds arising 
 from such sale may be directed to be applied [state how]. Dated, 
 &c. [Signatures of trustees, or a majority of them.] 
 
 § 1615. Petition for order of sale. 
 To THE CiECuiT Court for the county op . 
 
 The petition of the trustees of the [First Congregational 
 
 Church of ^ respectfully represents, that they are a religious 
 
 corporation, duly organized under the act of the legislature of this 
 state, entitled "An act concerning churches and religious societies, 
 establishing uniform rules for the acquisition, tenure, control and 
 disposition of property conveyed or dedicated for religious pur- 
 poses, and to repeal chapter fifty-two of the Revised Statutes ;" 
 approved February thirteenth, one thousand eight hundred and 
 fifty- five ; that, as such corporation, they are the owners of the 
 following described piece or parcel of land, to wit., [describe the 
 land.] And your petitioners further show, that they are desirous 
 
 of disposing of the said real estate, and that A. B., of ■, in said 
 
 county, has offered and agreed to pay for the same, upon receiving 
 a conveyance thereof, vesting the title of the same in him, the sum 
 
 (1) See 1 Paige, 84. (2) See 16 Barb. 237 ; 23 id. 335. 
 
608 MISCELLANEOUS PHOCEEDIKGS. 
 
 of dollars, which sum is the fair market value of the said 
 
 property, as your petitioners verily believe ; and that the following 
 are the reasons why your petitioners wish to sell the same, to wit., 
 [state the reasons why a sale is desired.] 
 
 And your petitioners further show, that they are indebted to 
 various individuals residing in said county, to an amount in the 
 aggregate equal to, or exceeding, the whole price or consideration 
 which they expect to receive for said real estate, and that they have 
 no property with which to pay the said indebtedness, except the 
 said real estate ; and your petitioners are desirous that the avails 
 of the said real estate, when received by them, should be applied 
 in discharge of the said indebtedness. 
 
 And your petitioners therefore pray that an order may be made 
 by this honorable court, for the sale of the real estate aforesaid by 
 them, upon the terms aforesaid, and that the proceeds of the said 
 sale may be applied in payment of the aforesaid indebtedness of 
 your petiiioners. Dated, &c. 
 
 [Signatures of trustees, or a majority of them.J 
 
 CouNTT OF , ss: J. H., T. S., E. M., J. G., and 0. 
 
 R., being duly sworn, each for himself deposes and says, that he 
 
 resides in , in said county, and is one of the trustees of the 
 
 [First Congregational Church of ], and that the persons whose 
 
 names are subscribed to the foregoing petition comprise all of the 
 said trustees, [or "compose a majority of the said trustees ;"] that he 
 has read [or " heard read"] the said petition by him subscribed, and 
 knows the contents thereof, and that the same is true of his own 
 knowledge, except as to the matters therein stated on information 
 or belief, and as to those matters he believes it to be true. 
 Sworn, &c. [Signatures.] 
 
 § 1616. Order for sale, and directing application of proceeds. 
 In the matter of the petition of the trustees ) 
 
 OF THE [First congregational ChurcJi] OF . j 
 
 On reading and filing the petition of the trustees of the [First 
 
 Congregational Church of ], dated on the — day of , 
 
 praying for an order for the sale of the real estate therein described, 
 and that this court direct the application of the proceeds of such 
 sale as therein specified, together with the aifidavitof the said trus- 
 tees, [or "a majority of the said trustees"'] verifying the said petition ; 
 and also an aflidavit of due publication of notice of said application, 
 pursuant to the statute in such case made and provided ; on mo- 
 tion of B. F., attorney for the said petitioners, it is Ordered, that 
 the said trustees be, and they are hereby authorized to sell the said 
 real estate, at and for the consideration named in said petition, to 
 
 ■wit., for the sum of dollars ; which said real estate is described 
 
 in the said petition as follows: [describe the property to be sold.] 
 
 And it is further Ordered and directed, that the proceeds of the 
 said sale, after paying the expenses of this application, be applied 
 by the said trustees as follows, that is to say, [state the manner in 
 which the proceeds are to be applied.] 
 
V 
 
 PROVING THE EXECUTION OF DEEDS. 609 
 
 PROYING THE EXECUTION OP DEEDS. 
 
 § 1617. Conveyances of lands, or any estate or interest tlierein, 
 may be made by deed, signed and sealed by the person from whom 
 the estate or interest is intended to pass, being of lawful age, or by 
 his lawful agent or attorney, and acknowledged or proved, and 
 recorded as directed in cliapter sixty-five of the Revised Statutes, 
 without any other act or ceremony whatever. (1) A deed, properly 
 executed and delivered, though not acknowledged, or proved and 
 recorded, is a good and valid conveyance as against the grantor, 
 and all others having actual notice of it ; but iu order to make it 
 valid, as against subsequent purchasers or incumbrances in good 
 faith, it is necessary that it sh.ould be made a public record, so that 
 all persons interested may have the means of knowing that it ex- 
 ists. But it cannot be recorded until it has been acknowledged by 
 the person executing it, before some ofiicer authorized to take such, 
 acknowledgment, who must indorse thereon a certificate of the 
 acknowledgment thereof, and the true date of making the same, 
 under his hand,(2) or until tbe execution tbereof has been duly 
 proven, in tbe manner autborized by tbe statute.(3) 
 
 § 1618. If any grantor, after having made and delivered his 
 deed, without having acknowledged such execution, either die or 
 depart from, or reside out of the state, tbe due execution of sucb 
 deed may be proved by any competent subscribing witness thereto, 
 before any court of record in this state ; or, if all the subscribing 
 witnesses are also dead or out of the state, it may be so proved by 
 proving the handwriting of the grantor, and of any subscribing 
 witness thereto. If tbe grantor reside in this state, and refuse to 
 acknowledge his deed, and all tbe subscribing witnesses thereto are 
 dead or out of the state, the execution tbereof may be proved before 
 any court of record, by proving the handwriting of the grantor, or 
 of any subscribing witness. In the case last mentioned, the grantee, 
 or any person under him, may apply to the court for a summons, 
 which will be issued upon the proper showing by aSidavit, requir- 
 ing the grantor to appear at a certain time, to hear the testimony 
 of the witnesses who may be produced and examined to prove the 
 execution of the deed.(4) 
 
 § 1619. The court before whom any such deed may be pre- 
 sented to be proved, is authorized to issue subpoenas to the sub- 
 
 (1) Comp. L. 838. (2) Id. 838, 839. (3) Id. 840. ;(4) Id. 
 
 39 
 
610 MISCELLANEOUS PEOCEEDINGS. 
 
 scribing witnesses or otliers, as the case may require, to appear and 
 testify touching the execution of such deed ; which subpoenas may 
 be served in any part of this state ; and every person who, being 
 served with such subpoena, shall neglect or refuse to appear, with- 
 out reasonable cause, or, appearing, shall refuse to answer on oath 
 touching the matter of inquiry, is liable to the injured party in the 
 sum of one hundred dollars damages, and for such further dam- 
 ages as the party in whose behalf he was subpoenaed may sustain 
 thereby ; and may also be committed to prison for a contempt of 
 court, there to remain until he shall submit to answer upon oath as 
 aforesaid. (1) 
 
 § 1620. Affidavit on application for summons to grantor. 
 
 County of , ss : A. B., of ■ ■, in said county, being 
 
 duly sworn, deposes and says, that on the — day of , 0. E., who 
 
 resides in , in this state, made and executed, under his hand and 
 
 seal, and delivered to this deponent, in the presence of J. K. and 
 L. M., who subscribed their names thereto as witnesses of such exe- 
 cution, a certain deed of conveyance, bearing date on the day and 
 year aforesaid, whereby the said 0. E. granted, remised, released, 
 aliened, and confirmed unto this deponent, his heirs and assigns 
 forever, all that certain piece or parcel of land, situate, lying and 
 
 being in , in the county of , described as follows, to 
 
 wit., [describe the land.] 
 
 And this deponent further says, that the said Q. E. has been sev- 
 eral times applied to by this deponent, and requested to acknowl- 
 edge the execution of the said deed, before some officer authorized 
 by law to take such acknowledgment, but that he, the said 0. E., 
 has always refused, and still does refuse so to do. 
 
 And this deponent further says, that all of the subscribing wit- 
 nesses to the said deed are now dead [or " out of this stated'] 
 Sworn, &c.(2) A. B. 
 
 § 1621. Summons to grantor to hear proof of deed. 
 
 In the name of the People of the State of Michigan. To 
 
 0. E. : 
 [seal.] You are herebj'' summoned to be and appear in the 
 
 circuit court for the county of , at , in said 
 
 county, on the — day of , next, [or " instant"'\ to hear the 
 
 testimony of such witnesses as may be produced by A. B., for prov- 
 ing the execution of a certain deed of conveyance, bearing date on 
 the — day of -: , executed by you to the said A. B., in the pres- 
 ence of J. K. and L. M., and delivered to the said A. B., as it is 
 said, whereby you, the said 0. E., on the day and year last afore- 
 said, granted, remised, released, aliened, and confirmed unto the 
 said A. B., his heirs and assigns forever, all that certain piece or 
 parcel of land, situate, lying and being in • , in the county 
 
 (1) Comp. L. 841. (2) Id. 840, § 18. 
 
PROVING THE EXECUTION OP DEEDS. 611 
 
 of , described as follows, to wit., [describe the land,] as it is 
 
 alleged. 
 
 Witness, the honorable J. W. T., Circuit Judge of the 
 
 judicial circuit, at •, in the county of , this — day of 
 
 , one thousand eight hundred and . E. S., Clerk. (1) 
 
 [If the grantor be dead, or has departed from or resides out of 
 the state, no summons is necessary.](2) 
 
 § 1622. Oath to witness. 
 
 You solemnly swear that you will true answers make to 
 such questions as shall be put to you, touching the execution of 
 the deed of conveyance now here present, between 0. R., of the 
 one part, and A. B., of the other part. So help you God. 
 
 § 1623. Order on proof of deed, when the grantor is dead, or has 
 removed from or resides out of the state. 
 
 In the JtATTER OF PROVING A DEED OF ) 
 CONVEYANCE FROM O. R. TO A. B. j 
 
 A. B., of , having presented to this court a deed of 
 
 conveyance, bearing date on the — day of , purporting to 
 
 have been duly executed by 0. R., to the said A. B., and to have 
 been executed in the presence of J. K. and L. M., whose names 
 are subscribed thereto as witnesses of the execution thereof, and 
 the said L. M. having been produced, sworn and examined before 
 the said court, touching the execution and delivery thereof, and it 
 satisfactorily appearing, from the testimony of the said L. M., that 
 the said deed of conveyance was duly signed and sealed by the said 
 0. R. in the presence of the said J. K. and L. M., who at his request 
 subscribed the same as witnesses of the execution thereof, and that 
 the said deed was by the said 0. R. duly delivered to the said A. B., 
 the grantee therein named ; and it further appearing to the said 
 court that the said 0. R., afterwards, and on or about the — day of 
 
 , died, [or " that the said 0. B. has departed from this state,'" or 
 
 " thai the said 0. R. resides out of this stofe,"] not having acknowl- 
 edged the said deed : Now, therefore, it is adjudged and determined 
 by the said court that the due execution of the said deed has been 
 and is sufficiently proved, pursuant to the statute in such case made 
 and provided. And that the clerk of this court certify the same 
 by indorsing upon the said deed a copy of this order, certified by 
 him, under the seal of this court. 
 
 [If the subscribing witnesses are dead, or reside out of the state, 
 proof must be made of the fact, and other witnesses introduced to 
 prove the handwriting of the grantor and of a subscribing witness ; 
 in which case the recital in the order will be varied according to 
 the circumstances of the case.] 
 
 (1) Comp. L. 840, § 18. (2) Id. § 14. 
 
612 MISCELLANEOUS PROCEEDINGS. 
 
 § 1624. Order on proving deed, where the grantor resides in this 
 state. 
 
 In the matter of proving a deed op ) 
 conveyance from 0. e. to a. b. j 
 
 A. B. having presented to this court a deed of conveyance, 
 
 bearing date on the — day of , purporting to have been 
 
 duly executed by the said 0. E. to the said A. B., and to have been 
 executed in the presence of J. K. and L. M., whose names are sub- 
 scribed thereto as witnesses of the execution thereof ; and having 
 also made and filed in this court an af&davit, setting forth that the 
 said 0. E. executed and delivered to him the said deed ; that the 
 said 0. E. resides in this state, and that he refuses to acknowledge 
 his said- deed ; and that the subscribing witnesses thereto are all 
 dead, [or " out of this state;"] whereupon, at the request of the said 
 A. B., a summons was issued out of and under the seal of this court, 
 directed to the said O. R, requiring him to be and appear in this 
 court on the — day of , to hear the testimony of such wit- 
 nesses as might be produced by the said A. B. for proving the ex- 
 ecution of the said deed ; and the said O. E. having appeared, in 
 pursuance of the said summons, and heard such testimony ; and it 
 satisfactorily appearing to the said court, after hearing the proofs 
 and allegations of the said parties, that the said deed was duly ex- 
 ecuted and delivered by the said 0. E. to the said A. B., in the pres- 
 ence of J. K. and L. M., who subscribed their names to such deed 
 as witnesses of the execution thereof, and that the said 0. E. refuses 
 to acknowledge the execution of the said deed, and that all the 
 subscribing witnesses to the same are dead [or " out of the state :] 
 Now, therefore, it is adjudged and determined by the court, that the 
 due execution of the said deed has been and is sufhciently proved, 
 pursuant to the statute in such case made and provided ; and it is 
 Ordered, that the clerk of this court certify the same, by indorsing 
 upon the said deed a copy of this order, certified by him under the 
 seal of the said court.(l) 
 
 ADMEASUREMENT OF DOWER UPON RECOVERY IN EJECTMENT. 
 
 § 1625. The action of ejectment may be brought by any widow 
 entitled to dower, or by any woman so entitled, and her husband, 
 after the expiration of six months from the time when her right 
 accrued, to recover her dower of any lands, tenements or heredit- 
 aments. (2) In such action the declaration must set forth that the 
 plaintiff was possessed of one undivided third part of the premises 
 as her reasonable dower, as widow of her husband [naming him] ;(3) 
 
 (1) Comp. 1. 840, § 18. (2) Id. 1230. (3) Id. 1231. 
 
ADMEASUREMENT OF DOWEE. 613 
 
 and if a recovery be had in tke action, and sucli dower shall not 
 have been previously admeasured, instead of a writ of possession 
 being issued, as in ordinary cases, the plaintiff must proceed to 
 have her dower assigned to her in the manner provided for in the 
 statute. 
 
 § 1626. Upon perfectiiig the judgment, the court, on the motion 
 of the plaintiff, except where some other provision is made by the 
 statute, will appoint three discreet and disinterested freeholders of 
 the county, for the purpose of making admeasurement of the dower 
 of the plaintiff, out of the lands described in the judgment; and 
 such commissioners proceed in like manner, possess the like 
 powers, and are subject to the like obligations, as commissioners 
 appointed by the judge of probate to set off dower.(l) li] however, 
 the lands were aliened by the husband, in his lifetime, and dower 
 cannot be assigned therein by metes and bounds without injustice 
 or manifest injury to the widow, or to the owner or owners, person 
 or persons in possession of such lands, or some one of them, the 
 court may award and adjudge a sum of money in lieu of dower to 
 be paid to the widow ; or may assign to her, as tenant in common, 
 a just proportion of the rents, issues and profits of the lands, regard 
 being had in all cases to the true value thereof at the time of such 
 alienation by the husband, and to the probable duration of the life 
 of the doweress at the time such sum of money shall be so adjudged, 
 or such rents, issues and profits assigned to her.(2) 
 
 § 1627. If the husband shall have executed a mortgage upon 
 the lands before his marriage ; or if, upon the purchase of such, 
 lands after marriage, he shall at the same time have given back a 
 mortgage to secure the payment of the purchase money ; or if the 
 wife shall have joined with her husband in the execution of a 
 mortgage of the premises, and in either case the heir or other per- 
 son claiming under the husband, pay and satisfy such mortgage, 
 the amount so paid will be deducted from the value of the land, 
 and the widow will have set out to her for her dower in the mort- 
 gaged lands the value of one- third of the residue.(3) And whenever 
 a widow is entitled to dower out of any lands which shall have 
 been aliened by the husband in his lifetime, and such lands shall 
 have been enhanced in value after the alienation, such lands are to 
 be estimated, in setting out the widow's dower, according to their 
 value when they were so aliened. (4) 
 
 (1) Comp. L. 1240, 851, 852. (2) Id. 855. (3) Id. 851; 6 Mich. E. 410. 
 
 (4) Comp. L. 851. 
 
614 MISCELLANEOUS PROCEEDIISrGS. 
 
 § 1628. When sucli commissioners are appointed, they must 
 be sworn before a judge or justice of the peace, to the faithful dis- 
 charge of their duties, and they are required, as soon as may be, to 
 set off the dower to which the plaintiff is entitled.(l) This must 
 be done by metes and bounds, or in such other manner that the 
 part set off may be distinguished and known, and the commission- 
 ers must make such a description of it, that possession may be 
 given from such description ; and, whenever it is necessary for that 
 purpose, the commissioners may employ a surveyor and assistants. 
 When they have completed their admeasurement, they must make 
 a report of their doings to the court, in writing, which report wiU 
 be confirmed by the court, unless good cause to the contrary be 
 shown, and entered at large in the journal of the proceedings of 
 the court ; and upon the confirmation thereof, the plaintiff is enti- 
 tled to a writ of possession, to be issued to the sheriff of the proper 
 county, describing the premises assigned for the dower, and com- 
 manding him to put the plaintiif in possession thereo£(2) 
 
 § 1629. Rule appointing commissioners to admeasure dower, after 
 recovery in ejectment. 
 
 A. B.| 
 vs. V 
 
 C. D.j 
 
 Judgment having been heretofore rendered in this cause, 
 that A. B., the plaintiff herein, do recover against C. D., the above- 
 named defendant, the possession of one undivided third part of the 
 premises described in the declaration in this cause as follows, to 
 wit., [describe the lands according to the recovery,] as her reason- 
 able dower therein, as widow of J. B., late of , deceased ; * on 
 
 motion of E. P., attorney for the said plaintiff, it is by the court 
 now here Ordered, that L. M., K S. and T. R., three discreet and 
 
 disinterested freeholders of the said county of , be, and they 
 
 are hereby, appointed commissioners for the purpose of making 
 admeasurement of the dower of the said plaintiff in the lands herein- 
 above described, according to the force, form and effect of her said 
 recovery, pursuant to the statute in such case made and provided ; 
 and that they make report of their proceedings to this court as 
 soon as may be.(3) 
 
 § 1630. The like, when amount is reduced hy payment of a mort- 
 gage. 
 
 [As in the preceding form to the *, and then as follows :] And 
 it appearing to the said court now here that, during the lifetime of 
 the said J. B., to wit., on the — day of , and before his mar- 
 
 (1) Comp. L. 852. (2) Id. 1240, 1241. (3) Id. 1240. 
 
ADMEASUEEMENT OF DOWEE. 615 
 
 riage with tlie said A. B., he, the said J. B., made and executed a 
 
 mortgage thereon to Y. Z., for securing the payment of dollars, 
 
 and the interest thereon, [or, if the mortgage was given for the 
 purchase money of the hinds after the marriage, or if the plaintiff 
 joined with her husband in the mortgage, state the fact accordingly ;] 
 
 and that the said J. B. afterwards, to wit., on the — day of , 
 
 aliened and conveyed the said lands and premises to the said 0. D.,' 
 subject to the said mortgage, and that he, the said 0. D., after he 
 so became the purchaser of the said lands and premises, to wit., on 
 
 the — day of , paid to the said Y. Z. the full amount of the 
 
 principal and interest then remaining due and unpaid upon the 
 said mortgage, amounting to the sum of dollars, in full satis- 
 faction and discharge thereof; and it further appearing to the said 
 court that, at the time when the said lands and premises were so 
 aliened and conveyed by the said J. B. to the said C. D. as afore- 
 said, the fair value thereof was the sum of dollars, and that 
 
 the same have been enhanced in value since the said alienation ; 
 on motion of E. P., attorney for the said plaintiff, it is Ordered, 
 that L. M., N. S. and T. E., three discreet and disinterested free- 
 holders, of the said county of , be, and they are hereby, 
 
 appointed commissioners for the purpose of making admeasurement 
 of the dower of the said plaintiff in the lands and premises herein- 
 before described, after deducting from the value thereof the said 
 
 sum of dollars, so paid by the said 0. D. in satisfaction and 
 
 discharge of the said mortgage, and estimating the said lands and 
 premises, in setting out and admeasuring such dower, according to 
 their true value at the time when they were so aliened by the said 
 J. B. to the said 0. D. as aforesaid.(l) 
 
 [A certified copy of the order appointing commissioners should 
 be obtained from the clerk, and delivered to them.] 
 
 § 1631. Oath of commissioners. 
 [Title of court and cause.] 
 
 "We, L. M., N". S. and T. R,, do severally swear, that we will 
 faithfully discharge our several duties as commissioners appointed 
 by the said court in this cause, for the purpose of making admeas- 
 urement of the dower of the said plaintiff in the lands and premises 
 mentioned and described in the order of said court appointing us 
 such commissioners, according to the best of our several and re- 
 spective abilities. L. M. 
 Sworn, &c.(2) K S. 
 
 T. R. 
 
 [The oath must be taken before a judge or a justice of the peace, 
 and filed with the other papers in the cause.] 
 
 i(l) Comp, L. S51 ; 6 Mich, E. 470. (3) Comp, L. 852. 
 
616 MISCELLANEOUS PROCEEDINGS. 
 
 § 1632. Report of commissioners. 
 [Title of the court and cause.'] 
 To THE Circuit Court for the county of — 
 
 The undersigned, L. M., K S. and T. E., commissioners 
 
 appointed by an order of this court, dated on the — day of , 
 
 for the purpose of making admeasurement of the dower of the said 
 
 A. B., the plaintiff above named, as widow of J. B., late of , 
 
 deceased, in the lands and premises described in the said order, do 
 respectfully report : 
 
 That, having been first duly sworn to the faithful discharge of 
 our duties as such commissioners, we met on the premises described 
 
 in the said order, on the — day of , to discharge the dutv and 
 
 esercise the trust aforesaid ; and that, as well the said A. B., by 
 E. F., her attorney, as the said C. D., by Gr. H., his attorney, then 
 and there appeared, [or, if neither of the parties appeared, in person 
 or by attorney, state the fact, and that they were notified to appear 
 at such time and place, to attend the admeasurement of such 
 dower;] whereupon we, the said commissioners, caused a survey 
 of the said lands and premises to be made, [in the presence of the 
 said parties,] a map of which said survey is hereto annexed. 
 
 And we do further report, that [after deducting from the value 
 
 of the said lands and premises the said sum of dollars, paid 
 
 by the said C. D. in satisfaction and discharge of the mortgage men- 
 tioned in the order aforesaid, and estimating the said lands and 
 premises according to their true value at the time when they were 
 aliened by the said J. B. to the said 0. D.] we have admeasured 
 and allotted to the said A. B. for her dower in the [residue of the] 
 said lands and premises, the one-third part thereof, which said part 
 is bounded and described as follows : [insert the description, show- 
 ing the quantity, courses, and distances of lands assigned to the 
 plaintiff, with a description of the posts, stones, or other permanent 
 monuments marking the boundaries,] being the part designated, on 
 the map hereto annexed, by the letter " B." 
 
 And we further report, that the following are the items of the 
 charges and expenses attending the said admeasurement, including 
 our fees as commissioners, viz. : 
 
 Three days' services of each commissioner, at $2 per 
 
 day for each, - $18 00 
 
 Cash Tjaid H. P. for two days' services as surveyor, at 
 
 $2 50 per day, -_ 5 00 
 
 Cash paid for two chain and flag bearers, two days 
 
 each, at $1 per day each, 4 00 
 
 $27 00 
 
 Dated this — day of , A. D. 18 . 
 
 [Signatures of commissioners.](l) 
 
 (1) Comp. L. 852, 1240. 
 
ADMEASUREMENT OP DOWER. 617 
 
 § 1633. Rule to confirm report of commissioners. 
 
 A. B, 
 vs. 
 
 C. D. 
 
 On reading and filing the report of L. M., N. S. and T. R., 
 commissioners heretofore appointed by this court for the purpose 
 of making admeasurement of the dower of the above-named plain- 
 tiff, as widow of J. B., deceased, in the lands and premises men- 
 tioned and- described in the order of this court appointing them 
 such commissioners ; . by which it appears that, after being duly 
 
 sworn, the said commissioners did, on the — day of , [after 
 
 making the deduction therefrom required by the said order, and 
 estimating the said lands and premises according to their true value 
 at the time when they were aliened and conveyed by the said J. B. 
 to the said C. D., as required by the said order,] admeasure, set 
 apart, and allot to the said A. B., as and for her dower therein, the 
 one-third part in value of [the residue of] the said lands and prem- 
 ises, as follows, to wit., [describe the premises set off to the plain- 
 tiff;] and by which report it also appears that the charges and ex- 
 penses of the said commissioners attending such admeasurement 
 amount to the sum of [twenty-seven] dollars ; on motion of Mr. F., 
 of counsel for the said plaintiff, no good cause to the contrary be- 
 ing shown, it is Ordered, that the said report be, and it is hereby 
 in all things ratified and confirmed ; and also that a writ of posses- 
 sion do issue to the sheriff of the county of , to put the said 
 
 plaintiff into the possession of the premises so admeasured and 
 allotted to her for her dower as aforesaid, in pursuance of the stat- 
 ute in such case made and provided.(l) 
 
 § 1634:. Order awarding a sum of money in lieu of dower. 
 
 A. B. ) 
 vs. Y 
 
 C. D.j 
 
 Judgment having been heretofore rendered in this cause, that 
 A. B., the above-named plaintiff, do recover against C. D., the above- 
 named defendant, the possession of one undivided third part of the 
 premises described in the declaration of the said plaintiff herein, 
 for her dower as widow of J. B., deceased ; * and it appearing to 
 the said court now here that the said lands were aliened and con- 
 veyed by the said J. B. in his lifetime to the said C. D., and that 
 the dower in the said lands cannot be assigned by metes and bounds 
 without injustice and manifest injury to the said plaintiff, [or " to 
 the said defendant ;"] and it further appearing to the said court that 
 the said dower-right and interest of the said plaintiff, as such widow 
 as aforesaid, in the said lands and premises, regard being had to 
 the true value thereof at the time when the same were aliened by 
 the said J. B. as aforesaid, and to the probable duration of the life 
 of the said A. B., are of the value of dollars ; and that the 
 
 (1) Comp. L. 1240, 1241. 
 
^18 MISCELLANEOUS PEOCEEDINGS. 
 
 said last mentioned sum will be a full, fair, and just compensation 
 to the said A. B. therefor; it is therefore Ordered and adjudged, 
 and this court, by virtue of the power and authority therein vested 
 by the statute in such case made and provided, doth award, order, 
 and adjudge, that the said defendant C. D. pay to the said A. B. 
 the said sum of dollars, in lieu of her dower aforeBaid.(l) 
 
 § 1635. Order assigniny dower of rents, issues, and profits, as 
 tenant in common with other owners. 
 
 [As in the last form to the *, and then as follows :] And 
 it appearing to the said court now here that the estate out of 
 which the said dower is to be assigned, consists of a mill, [or " a 
 single tenement,^'''] which cannot be divided without damage to the 
 whole, [or " cannot he divided hy metes and bounds,"] it is therefore 
 Ordered and adjudged, that one equal third part of the rents, issues, 
 and profits of the said premises be, and they are hereby assigned 
 to the said A. B. as and for her dower therein, to be had and received 
 by her as a tenant in common with the other owner or owners of 
 the said estate. (2) 
 
 MISCELLANEOUS FOEMS IN CRIMINAL PEOCEEDINGS. 
 
 § 1636. It is not the design of this work to treat of proceedings 
 m criminal cases ; but as a matter of convenience to the clerk and 
 other officers of the court, who may have occasion to use them, a 
 few of the most common forms of journal entries and other pro- 
 ceedings in criminal matters will here be given. 
 
 § 1637. Judge!s order for drawing and summoning a grand jury. 
 
 It appearing to the undersigned, circuit judge of the 
 
 judicial circuit, that it is proper and necessary that a grand jury be 
 drawn and summoned to attend the circuit court for the county of 
 
 , at the next ensuing term thereof; I hereby order and 
 
 direct that such grand jury be drawn and summoned, in pursuance 
 of the statute in such case made and provided, to attend said court 
 at the next term thereof, appointed to be held at the court house 
 
 in said county, on the — day of next. 
 
 Given under my hand, this — day of , one thousand eight 
 
 hundred and . N. B., Circuit Judge.(3) 
 
 § 1638. Entry on grand jury being called and sworn. 
 
 The following persons, drawn and summoned under and in 
 pursuance of the order and direction of IS". B., circuit judge in that 
 
 (1) Comp. L. 855 ; Laws of 184'?, p. 13. (2) Comp. L. 852. 
 
 (3) Laws of 1859, p. 393, § 7. 
 
FORMS IN CRIMINAL PROCEEDINGS. 619 
 
 behalf, in writing, under his hand, and duly filed with the clerk of 
 this court, according to the statute in such case made and provided, 
 to attend at the present term, of this court, and serve as grand 
 jurors, appeared and answered to their names, to wit., [here insert 
 the names of the jurors who appear and answer,] and after having 
 been duly sworn, and received the charge of the court, retired to 
 their room, and subsequently reported to the court that they had 
 organized by electing E. S. their foreman. 
 
 § 1639. Oath to he administered hy the clerJc to the tioo first on 
 alphabetical list of grand jurors. 
 
 You, as grand jurors of this inquest for the body of this 
 county of , do solemnly swear, that you will diligently in- 
 quire and true presentment make of all such matters and things as 
 shall be given you in charge ; your own counsel, and the counsel 
 of the people, and of your fellows, you shall keep secret ; you shall 
 present no person for envy, hatred, or malice, neither shall you 
 leave any person unpresented for love, fear, favor, affection or hope 
 of reward ; but you shall present things truly as they come to your 
 knowledge, according to the best of your understanding. So help 
 you God.(l) 
 
 § 1640. Oath to other grand jurors. 
 
 The same oath which your fellows have taken on their part, 
 you, and each of you, on your part, shall well and truly observe' 
 and keep. So help you God.(2) 
 
 [Any person returned as a grand juror will be allowed to make 
 affirmation, substituting the word " affirm," instead of the word 
 "swear," and also the words, "this you do under the pains and 
 penalties of perjury," instead of the words "so help you Grod."(3) 
 
 § 1641. Oath to witness lefore grand jury. 
 
 You do solemnly swear that the evidence you shall give 
 before the grand jurors of this inquest, touching the complaint in 
 behalf of the people of this state against 0. D. for larceny, now 
 under examination, shall be the truth, the whole trath, and nothing 
 but the truth. So help you God. 
 
 [If the witness have conscientious scruples about swearing, he 
 may affirm, substituting for the word "swear," the words "sin- 
 cerely and truly declare and affirm ;" and also substituting, in the 
 place of the words "so help you God," the words "this you do 
 under the pains and penalties of perjury."] 
 
 (1) Comp. L. 1581. (2) Id. 1581, 1582. (3) Id. 1582. 
 
620 MISCELLANEOUS PROCEEDINGS. 
 
 § 1642. Entry upon grand jury coming into court, and malcing 
 presentments. 
 
 The grand jury came into court, and made a presentment, 
 [or "sundry presentments,''^'] and retired again to their rooms, [or, 
 " and having no further business before them, were discharged by the 
 court."] 
 
 § 1643. Indorsement to be made by clerk on indictment. 
 
 Presented by the grand jury, and filed in open court, this — 
 day of , A. D. 18 . T. 0., Clerk. 
 
 § 1644. Entry upon arraignment of prisoner. 
 The People of the 
 State op Michigan 
 
 vs. 
 CD. 
 
 Indictment [or "information"] for lar- 
 ceny. 
 
 C. D., the respondent in this cause, having been duly 
 arraigned at the bar in open court, and the indictment [or "infor- 
 mation "] being read to him by the prosecuting attorney, pleaded 
 thereto guilty, [or " not guilty.''] 
 
 § 1645. Trial and conviction. 
 
 [Title as in last form.] 
 
 The respondent in this cause being present and trial ordered, 
 thereupon came a jury, to wit., [insert the names of jurors] who were 
 duly impanneled, tried and sworn well and truly to try and true 
 deliverance make between the people of this state and the prisoner 
 at the bar, whom they should have in charge, according to the 
 evidence and the laws of tbis state ; and after having heard the proofs 
 and allegations of the parties, the arguments of counsel, and the 
 charge of the court, retired from the bar thereof under the charge 
 of P. P., an of&cer of the court, duly sworn for that purpose, to 
 consider of their verdict to be given ; and, after being absent for a 
 time, return into, court and say, upon their oath, that they find the 
 said 0. D., * guilty in manner and form as the said people have in 
 their indictment [or "information"] in this cause charged. 
 
 § 1646. Trial and verdict of acquittal. 
 
 [As in the last form to the * and then as follows :] not guilty 
 in manner and form as the said people have in their indictment 
 [or " information "] in this cause charged ; whereupon the said 
 C. D. is discharged from custody [or the said G. D. and his sureties 
 are discharged from their recognizance."] 
 
 § 1647. Oath of petit jury on trial of a criminal cause. 
 
 You shall well and truly try, and true deliverance make, 
 between the people of this state and the prisoner at the bar, whom 
 
FORMS IIJ CRIMINAL PROCEEDINGS. 621 
 
 you shall have in charge, according to the evidence and the laws 
 of this state. So help you God.(l) 
 
 [If a juror aiSrm, instead of the words "so help you God" say, 
 "this you do under the pains and penalties of perjury." ]{2) 
 
 § 1648. Oath of witness 071 the trial of a criminal cause. 
 
 You do solemnly swear, that the evidence you shall give 
 relating to this issue between the people of this state and the pris- 
 oner at the bar, shall be the truth, the whole truth, and nothing 
 but the truth. So help you God. 
 
 [If the witness affirm, instead of the word "swear" say "sincerely 
 and tridy declare and affirm," and, instead of the words " so help you 
 God" say, " (his you do under the pains and penalties of pier jury. "'\ 
 
 § 1649. Judgment on conviction, 
 [Title.] 
 
 C. D., the respondent in this cause, having been by the ver- 
 dict of the jury [or "upon his plea of guilty"] duly convicted of 
 
 the crime of , as appears by the record thereof; and having 
 
 been, on motion of the prosecuting attorney, brought to the bar of 
 the court for sentence ; and having there been asked by the court 
 if he had anything to say why judgment should not be pronounced 
 against him, and alleging no reason to the contrary ; * therefore it 
 is Ordered and adjudged by the court now here, that the said C. D. 
 be confined in the state prison at [Jackson], at hard labor, for the 
 period of years, from and including this day. 
 
 § 1650. Judgment on conviction of juvenile offender. 
 
 [As in the last form to the *, and then as follows :] And 
 it appearing to the said court by satisfactory testimony taken un- 
 der oath before said court, that the said 0. D. is under the age of 
 
 sixteen years, and that he was years of age on the — day of 
 
 last ; Therefore, it is Ordered and adjudged by the said court 
 
 now here, that the said C. D. be conveyed to and detained, and 
 kept in custody at the reform school of this state, aj; [Lansing], until 
 he shall be twenty-one years of age.(3) 
 
 § 1651. Warrant for removal of convict to state prison. 
 In the name of the People of the State of Michigan. 
 
 To THE sheriff OF THE COUNTY OF : 
 
 [seal.] Whereas C. D. has lately, in our circuit court for 
 
 the said county of , been duly convicted of the 
 
 crime of , and sentenced therefor to imprisonment in the state 
 
 prison at [Jackson], at hard labor for the period of years, from 
 
 and including the day of his said sentence, as more fully appears 
 
 (1) Comp. L. 1592. (2) Id. 1592. 
 
 (3) Comp. L. 1631 ; Laws of 1859, p. 394. 
 
622 MISCELLANEOUS PEOCEEDINGS. 
 
 by a certified abstract from the minutes of tlie said court of sucli 
 conviction and sentence, lierewitb delivered to you, and accom- 
 panying this warrant ; you are, therefore, commanded to cause the 
 said C. D., witliout needless delay, to be removed from the jail of 
 
 the said county of , to the state prison at [Jackson]. 
 
 Witness, the honorable N. B., circuit judge, at , in the 
 
 county of ■ , this — day of , one thousand eight hundred 
 
 and -^ — . H. 0. S., Clerk. 
 
 § 1652. Recognizance of prisoner against whom an information 
 or indictment has been presented. 
 \Title.] 
 
 Be it remembered, that on this — day of , personally 
 
 appeared in open court the above named C. D., as principal, and 
 E. F., as surety, and severally acknowledged themselves to owe 
 
 to the people of the state of Michigan the sum of dollars each, 
 
 lawful money, to be levied of their respective goods and chattels, 
 lands and tenements, to the vise of the said people, if default be 
 made in the condition following : 
 
 The condition of this recognizance is such, that if the said 0. D. 
 shall well and truly appear at the next term of this court, and an- 
 swer to an information [or " indictment "] on file against him in 
 said court for larceny, [or whatever the offence may be,] and not 
 depart the said court without leave, until discharged by due course 
 of law, then this recognizance to be void ; otherwise to remain in 
 full force and virtue. 
 
 § 1653. Recognizance for attendance of witness. 
 [Title.] 
 
 Be it remembered, that on this — day of , personally 
 
 appeared in open court G. H., a witness on the part of the people 
 in this cause, and acknowledged himself to owe to the people of 
 the state of Michigan the sum of ■ — — dollara, to be levied of his 
 goods and chattels, lands and tenements, to the use of the said peo- 
 ple, if default be made in the condition following: 
 
 The condition ef this recognizance is such, that if the said G. H. 
 shall well and truly appear at the next term of this court, to give 
 evidence touching the offence charged in the information [or " in- 
 dictment"] in this cause, and not depart said court without leave 
 until duly discharged, then this recognizance is to be void ; other- 
 wise to be and remain in full force and virtue. 
 
 § 1654. Trial, conviction and judgment, under liquor law. 
 [Title.] 
 
 The respondent in this cause being present, and trial order- 
 ered, thereupon came a jury, to wit, [name the jurors,] good and 
 lawful men, who to try the issue between the parties were duly 
 impanneled, tried, and sworn; and after hearing the proofs and 
 allegations of the parties, the arguments of counsel, and the charge 
 of the court, retired from the bar thereof under the charge of 0. P., 
 
FORMS IN CRIMINAL PROCEEDINGS. 623 
 
 an officer of the court, duly sworn for that purpose, to consider of 
 their verdict to be given ; and, after being absent for a time, return 
 into court and say upon their oath that they find the said defendant 
 C. D. guilty in manner and form as the said people have in their 
 information [or "indictment''^] in this cause charged; and the said 
 0. D. being brought to the bar of this court for sentence, and being 
 there asked by the court if he had anything to say why judgment 
 should not be pronounced against him, and alleging no reason to 
 the contrary: Therefore, it is Ordered and adjudged by the court 
 now here, that the said 0. D. do pay to the people of this state a 
 
 fine of dollars, together with the costs of the said people by 
 
 them incurred in and about this prosecution, to be taxed ; and that 
 the said C. D. be committed to the common jail of this county of 
 
 , until the same be paid, not exceeding from the time 
 
 of the said conviction, [or "from and including this day.'"] 
 
INDEX. 
 
 Abatement, pleas in, 96 to 100 ; isiue upon, 100-1; demurrer to, 100 ; replic*- 
 tion to, 100. 
 
 ACCOUNT, action of, not used, 24. 
 
 AG ETIAM CLAUSE in Mailable process, 36. 
 
 ACKNOWLEDGMENT of deeds of conveyance, 609. 
 
 ACTION OP REPLEVIN, how commenced, 70 ; proceedings in, 70 to 74 ; cauie of, 
 liow stated in declaration, 79 to 83 ; how served, 134. 
 
 ACTIONS, division of, 19 ; relating to real estate, 19 ; personal, 19 ; object of eject- 
 ment, 20 ; of waste, 20 ; of trespass qtiare claztsum /regit, 20 ; of nuisance, 21 ; of 
 assumpsit, 21 ; of debt, 21; of covenant, 22; of replevin, 22 ; of trespass W rf 
 Urmis, 22; of trespass de lonis asportatis, 22; of trespass on the c«se, 22; of tro- 
 ver, 23 ; of slander, 23 ; of libel, 23 ; of malicious prosecution, 23 ; detinue abol- 
 ished, 24 ; account and annuity not used, 24 ; considerations preliminary to com- 
 mencement of, 34; by whom to be brought, 26 ; when may be in name of agent, 
 26 ; when by survivor, 27 ; when by heir or devisee, 27 ; when by executor or 
 administrator, 27; what survive, 27; when wife may sue without husband, 27; 
 ex contractu, parties to, 28; ex delicto, parties to, 29; election of, 31; joinder of 
 different causes of, 32-3; local, 33; transitory, 33; modes of commencing, 34; 
 when by capias, 34 ; when deemed to be commenced, 37 ; on bail bond by assignee, 
 272; by sheriff, 274; parties to, 273; staying proceedings in, 272-3; showing 
 cause of, 276; consolidation of, 328 to 333 ; change of venue in, 350 to 352 ; trans- 
 fer of, for trial, 352 to 355. 
 
 ACTS OF THE LBaiSLATURB, how proved, 124 
 
 ADDING BAIL, 283. 
 
 ADJOURNMENTS, of hearing before referees, 355, 357 ; of hearing before auditors, 
 359 ; of hearing in case of forcible entry or detainer, 551 ; in summary proceedings 
 to recover possession of land, 555. 
 
 ADMINISTRATORS, ^. /a. for, in judgment recovered by intestate, 225; fi. fa. on 
 judgment in favor of, 226 ; against, for costs de bonis propriis, 226. 
 
 ADMISSION, of attorneys, 7, 8; of serrice of papers, 259. 
 
 AFFIDAVIT, to hold to bail, 34 ; form of, in assumpsit, 36 ; in trespass, 36 ; jurat, 37 ; 
 for attachment, what to state, 60-1 ; when to be made,60-l ; to be annexed to 
 writ of replevin, 71 ; of sureties in replevin bond, 73 ; verifying plea in abatement, 
 99 ; denying execution of written instrument, 112 ; made in other states or coun- 
 tries, how authenticated, 126 ; of facts within knowledge of adverse party, 130 ; 
 for continuance of cause, requisites of, 133 ; for motions, 247 ; by whom to be 
 made, 247 ; proceedings when person refuses to make, 248 ; entitUng, 248 ; com-- 
 menoement of, 248-9; body of, 249; how subscribed, 249; jurat to, 250; before 
 whom taken, 250 ; on application for judge's order, 253 ; counter afSdavits on 
 motion, 243 ; of delivery of writ to sheriff, and notice of rule to return, 264, 267 ; 
 of coroner's default in not returning attachment against sheriff, 268 ; on showmg 
 cause of action, 276 j of special bail on justifying, 280, 282 j on proceeding against 
 
 40 
 
626 
 
 INDEX, 
 
 AFFIDAVIT— coMfcuet?. 
 
 sheriff to compel appearance, 285 ; of service of notice of rale to put in bail, 286; 
 to appose bail, 286 ; to set aside regular defaults, 307-8 ; of merits, 309 ; to 
 move for consolidation of actions, 332 ; for swperiedeas, 338 ; to move for com- 
 mission to take testimony, 365-6, 3';2 ; of agent who delivers commission, 369, 
 375 ; of person who receives commission from agent, 370, 375 ; on application for 
 examination of witness conditionally, 376, 379, 380; of service of notice of taking 
 depositions, 386 ; verifying petition for discovery of books and papers, 389, 392; 
 to move for attachment against witness, 397, 399 ; verifying petition for habeas 
 corpus ad iesUficcmdwrn, 401, 403 ; on motion to set aside proceedings for irregu- 
 larity, 439 ; on appHoation for mamdamvs, 472 ; of publication of rule to appear 
 and plead to information, 487 ; on trial of issue upon return of Tiabeas corpus or 
 certiorari, 512, 513 ; on application for precept to commit for non-payment of 
 money, 532 ; on motion for attachment, Ac, how entitled, 533, 543 ; on hearing 
 upon charge of misconduct, 536 ; of service of order to pay money, and of de- 
 mand, &c., 643; on apphcation for warrant against fraudulent debtor, 567; copies 
 of to be served with warrant, 568; on apphcation for summons to grantor to ap- 
 pear and hear proof of execution of deed, 609. 
 
 AFFIRMATION, by petit juror, 147 ; of witness, 148. 
 
 AGENT, suitor may appear by, 14. 
 
 AGREEMENTS, between parties or attorneys, when to be in writing, 259, 260, 14. 
 
 ALIAS CAPIAS, 48; summons, 55; writ of possession, 74; fi.fa., 192, 216. 
 
 ALLOWANCE, of attachment against coroner for not returning attachment, 269; of 
 interrogatories to be annexed to commission, 367 ; ol habeas corpus ad testificandum, 
 402 ; of common law certiorari, 496 ; of habeas corpus or certiorari to inquire into 
 cause of detention, 498. 
 
 ALTERNATIVE MANDAMUS. See MAmAinrs. 
 
 AMBASSADORS, privflege of, from arrest, 38. 
 
 AMENDMENT, of capias ad respondendum, 38 ; of pleading demurred to, 102-3-4^ 
 160 ;, of execution, 195 ; of sheriff's certificate of sale, 208 ; of entry of appearance, 
 275; of declaration, 295; costs on, 296; of other pleadings, 296; of bill of partic- 
 ulars, 346; of bills of exceptions, 412; of finding of court, 414 ; of special verdict, 
 421 ; of special case, 423 ; when allowed in general, 441 ; after issue, 441 ; after 
 verdict, 441 ; after judgment, 446 ; statute of amendments, 445 ; before and after 
 error; brought, 447 ; at common law, 448 ; of rmmdamus, see Mandamus ; of re- 
 turn to habeas corpus or certiorari, 513. 
 
 ANIMALS, attached, sale of, 67 ; what exempt from execution, 204^5 ; selecting 
 those exempt, 205-6. 
 
 APPEAL, in cases of forcible entry or detainer, or unlawfully holding over, B56-7 ; 
 in case of contested claim against a ship, boat, or vessel, 583. 
 
 APPEARANCE, when waiver of irregularity in writ, 38; by puttmg in special bail, 
 54 ; entry of by clerk after process or declaration served, 58 ; may be required 
 before dissolution of attachment, 69; proceeding against sheriff to compel, 274; 
 how entered when defendant was served by a fi.otitious name, 275 ; effect of omit- 
 ting to enter, 275 ; rule for, after default in not putting in baU, 286; of defendant 
 in information, order for, 487, 491 ; publication of order for, 487, 491. 
 
 APPLICATION, for writ of habeas corpus or certiorari, how made, 500, 501. 
 
 APPRAISAL, of property seized on attachment, 63; of property replevied, 71; of 
 property exempted from execution, 206. 
 
 ARGUMENT, of demurrer, 116. 
 
 ARREST, who privileged from, 38 to 41 ; of witnesses, when a contempt of court, 41 ; 
 how made, 42 ; discharge from, on giving bond to sheriff, 42 ; of judgment, mo- 
 tion for, 162, 241; discharge of privileged persons from, 263-4; discharge from, on 
 failure to show cause of action, 276-7 ; of judgment, motions for, 336 ; amending 
 verdict on motion in, 337 ; wiaen motion for to be made, 337 ; form of order, 337. 
 
 ASSESSMENT, of damages, by default, on trial of issue, 115, 144; on default, 298; 
 when to be made by clerk, 299 ; notice of, 299, 301, 304 ; countermand of notice 
 of, 299; preparation for, 300 ; brief for, 300; proof on, 300; clerk's report o^ 300 ; 
 exceptions to clerk's report, 300; judgment on assessment by clerk, 301; by court 
 
INDEX. 627 
 
 ASSESSMENT— coniTOued 
 
 or jury, 301 ; judgment on assessment by court or jury, 301 ; compelling attend- 
 ance of witnesses on, 302 ; motion to set aside for irregularity, 302 ; brief for, 304 ; 
 report of clerk on, 304 ; verdict of jury on, 305 ; on withdrawal of plea, 306 ; of 
 damages on suggestion of relator after judgment on information, 489, 490. 
 
 ASSIGNEE, of bail bond, may prosecute suit in his own name, 212. 
 
 ASSIGNMENT, of baU bond, 2T2. 
 
 ASSUMPSIT, uses of action of, 21; statement of cause of action in, 80; forms of ver- 
 dict in, 149, 150, 154-5 ; forms of judgment in, 171, 174, 185; fi.fa. for plaintiff 
 in, 221; for residue, 226; cognovit in, 311. 
 
 ATTACHMENT, commencement of suit by, 34, 60 ; in what cases, 34, 60-1 ; affidavit 
 for, 60-1; how issued, 61; contents of, 61; form of, 62; how executed, 62, 64; 
 inventory of property seized on, 62-3-4 ; appraisal of property taken on, 63 ; de- 
 positing copy with register of deeds, 64 ; proceedings on return of, 64 ; lien of, 64 ; 
 bond for payment of judgment, or for production of property, 65 ; entry of appear- 
 ance after publication of notice, 66 ; sale of perishable property taken on, 67 ; ap- 
 plication to dissolve, 68 ; citation to show cause, 68 ; dissolution of, 69 ; against 
 person disturbing officer in execution of^. fa., 214; against sherilf refusing to pay 
 over money collected, 216; against officer for not returning process, 265; how 
 directed, 265; order for amount of bail on, 265; service of, 265 ; default of sheriff 
 on return of, 266 ; effect of default and proceedings thereon, 266 ; interrogatories 
 to be filed on return of, 266, 270 ; forms of, 268-9 ; indorsement of, 268 ; affidavit 
 of coroner's default in not returning, 268; allowance of, 269; special rule for against 
 coroner, 269; against sheriff for not putting in special bail, 274; proceedings on, 
 274-6 ; rule for, 274 ; judgment against sheriff on, 274^5 ; interrogatories on, 274-5 ; 
 rule for not putting in bail, 286 ; setting aside, 289 ; against witness for disobeying 
 subpoena, 397 to 399; against sheriff for not returning execution, 437; for not 
 returning habeas corpus or certiorari, 505 ; for not discharging prisoner pursuaut'to 
 order, 515 ; to arrest a party for misconduct, 532; for not returning process, 532 ; 
 application for, 533 ; penalty of bond to be taken on, 533; how served, 534; dis- 
 charge from on giving bond, 534 ; proceedings on neglect of officer to return, 534 ; 
 where and when to be entered, 535 ; interrogatories to be filed on appearance of 
 defendant, 535 ; answer to interrogatories on, 635 ; when to be discharged, 536 ; 
 proceedings on, if defendant adjudged guilty, 536; commitment on conviction, 
 536-7 ; proceedings on bond if defendant fail to appear on, 538 ; responsibility of 
 officer for sufficiency of sureties, 639. 
 
 ATTORNEYS, examination and admission of, 7 to 9 ; when privileged from arrest, 
 10, 40 ; removal and suspension of, 10 to 14 ; appearance by, 14 ; when to produce 
 evidence of authority to sue, 14 ; change of, 260 to 262 ; proceedmgs m case of 
 death or suspension of, 261. 
 
 ATTORNEY-GENERAL, when scire facias may issue on motion of, 450; in what 
 oases may file information without leave, 486 ; in what cases may file information 
 on leave granted, 490 ; allowance of habeas corpus applied for by, 502 ; when to 
 have notice of return of Ao6aas corpus or certiorari, 608; when to prosecute attach- 
 ment bond, 538. 
 
 AUDITORS, in what cases may be appointed, 359 ; hearing before, 359 ; report of, 
 360, 363 ; compensation of, 360. 
 
 Bail, in what actions demandable, 34; when affidavit necessary, 34; when order for 
 necessary, 34; forma of affidavits to hold to, 36; of prisoner on habeas corpus, 
 507; on certiorari, 514-15; on warrant, 517. 
 
 BAILABLE ACTIONS, what, 34. 
 
 BAIL-BOND, what, 42 ; discharge on, 42 ; forms of, 42-3 ; form of assignment, 43 ; 
 bail-piece on giving, 43 ; proceedings on, 49; assignment of, 272 ; when plaintiff 
 cannot take assignment of, 272 ; action on, how commenced, 272 ; entitling 
 papers in action on, 272; when action on may be stayed, 272-3; parties to 
 action on, 273; proceedings on default in suit on, 273; when sheriff may prose- 
 cute suit on, 274. 
 
 BAIL TO SHERIFF. See Bail-Bokd. 
 
 BAIL-PIECE, special, 43 ; common, 278. 
 
 BAIL, SPECIAL, compulsory proceedings to obtain, 49 ; ruling sheriff to put in, 49 ; how 
 put in, 51; recognizance of, 51; bail-piece on putting in, 62; who maybe, 52 f 
 
623 INDEX, 
 
 BAIL, SPECIAL— confeued. 
 
 ■who disqualified, 52; surrender of principal by, 52; notice of putting in, 63; 
 exception to, 53; justification of) 53; -when insufficiency of 'waived, 54; ruling 
 sheriff to put in, 214; mitigation of, 276-'?, exception to, 219; justifying, 280, 
 282 ; qualifications of, 281-2 ; adding, 283. 
 
 BANKRUPT DISCHARGE, how taken advantage of after judgment, 220. 
 
 BAR. See Pleas. 
 
 BILLS OP EXCHANGE, counts on, 91 to 93 ; how proved, 127. 
 
 BILLS OP EXCEPTIONS. See EXOEPIIOM. 
 
 BILLS OP PARTICULARS, of plaintiff 's demand, 343 to 349 ; of defendant's set-off, 348. 
 
 BILLA CASSETUR. See Cassetur Billa. 
 
 BOATS. See Ships, Boats akd Vessels. 
 
 BOND, to sheriff on arrest, 42 ; to coroner, 43 ; assignment of, 43 ; for jaU limits, 44 ; 
 for payment of judgment in attachment suit, 65 ; for production of property, 65-6 
 and warrant of attorney, form of judgment on, 190; for defendant's costs, 291, 
 293 ; suit on, when may be commenced, 292 ; form of, 295. 
 for appearance of defendant in attachment, 533-4; order for prosecution of, 538; 
 by whom to be prosecuted, 538 ; when officer responsible for sufficiency of sure- 
 ties, 539; on appeal in case of forcible entry or detainer, &c., 556, 564; by fraud- 
 ulent debtor to prevent commitment, 570 ; for discharge of warrant for seizure of 
 ships, &o., 580 ; suit on, 680-81. 
 
 BOOKS AND PAPERS, discovery of, 128; compelling production and discovery of, 
 388 to 395 ; application for, when and how made, 389; effect of order for produc- 
 tion of, 390; order for production of, how complied with, 391; effect of neglect 
 or refusal to comply with order, 391 ; form of petition for discovery and produc- 
 tion of, 391 to 394; rule for production and deposit of, 395; judge's order for pro- 
 duction of, 395 ; inspection of public books, 395 to 397 ; demand of from defend- 
 ant in information, 488 ; delivery of, how compelled after judgment upon informa- 
 tion, 488-9; commitment for not delivering, 488; search warrant for, 489. 
 
 BREACH, statement of, in declaration, 86-7. 
 
 BRIEF, for trial, 131 ; on motion for new trial, or in arrest of judgment, 242 ; for assess- 
 ment of damages, 300. 
 
 BUSINESS, general routine of in circuit courts, 15 to 18. 
 
 Calendar, to be provided by clerk, 5; of causes for term, 16; call of, 17. 
 
 CALLING, of causes upon calendar, 17. 
 
 CAPIAS AD RESPONDEND UM, what, 35 ; what actions may be commenced by, 34 ; 
 how issued, 34r-5; form of, 35-6; affidavit for, 34-6; teste and return, 35; to 
 whom directed, 35 ; indorsement of as surety for costs, 35 ; delivering to officer, 
 
 37 ; when amendable, 38 ; waiver of irregularity in, 38 ; privilege from arrest on, 
 
 38 to 41 ; how executed, 42 ; discharge on giving bail to sheriff, 42 ; form of bond, 
 42-3, assignment of bond, 43 ; bail-piece on giving bond, 43 ; bond for jail limits, 
 44 ; commitment to jail, 44 ; escape, 45 ; rescue, 45 ; return of writ, how made, 
 46 ; forms of return, 46-7 ; alias, 48 ; pluries, 48 ; tesiaium, 48 ; simid cum, 48 ; 
 appearance of defendant, 48 ; liability of officer for false return, 48. 
 
 CAPIAS SIMUL CUM, 48. 
 
 CAPIASAS S A TISFACIENDUM, 192; to different counties, 194; in what cases may 
 issue, 216 ; must be issued before suit brought against special bail, 216 ; within 
 what time to issue when defendant in prison on original process, 217 ; amend- 
 ment of, 217; supersedeas, 217; effect of arrest on, 217; how executed, 217; 
 payment to officer, 217; bail for jaU liberties, 217-18; escape, 218; proceedings 
 on escape, 218 ; assignment of hmit bond, 218 ; proceeding by sheriff, 218 ; effect 
 of discharge by plaintiff, 218; effect of bankrupt discharge, 220; return, how 
 made, 219 ; proceedings on return, 219; alias andpluries, 219; testatum, 219; pro- 
 ceedings against special bail, 219; ea. sa. for defendant, 219; terms on setting 
 aside for irregularity, 220 ; proceedings in case of privilege, 220 ; forms of ca. sa. 
 232-3 ; forms of returns to, 236. 
 
 CAPTION OF JOURNAL, 18. 
 
INDEX. 629 
 
 CASE, action oa, 22-3; forms of verdictain, 153, 156; forms of judgments in, 174, 
 111, 185; agreed upon before judgment, 422; made after judgment, 422-3; 
 eettlement of, 423 ; removal of, for review, 424-5 ; entitling, 425 ; wliat to set 
 forth, 425 ; forms o^ 426 to 428 ; on question reserved for opinion of supreme 
 court, 429, 430. 
 
 CASSETUR BILLA, judgment of, 159 ; preparing and serving, 320 ; judgment on for 
 costs, 320; form of, 320. 
 
 CEPI CORPUS, return of to capias ad respondendum, 46, 49. 
 
 CERTIFICATE, of service of declaration, 58 ; to be indorsed on copy of attachment, 
 64; of purchase of public lands, evidence of right of possession, 126 ; of sale of 
 real estate on execution, 208, 236 ; amendment of; 208 ; of ofdcer taking deposi- 
 tions de bene esse, 386 ; of sale of lands to satisfy mechanic's lien, 591. 
 
 CERTIORARI, power of circuit courts to issue, 1 ; forms of judgments on, 191 ; to 
 inquire into cause of detention, 498 ; in what cases not allowed, 499 ; applica- 
 tion for, to whom made, 500 ; by whom application may be made, 500; petition 
 for, what to state, 501 ; to be granted without delay, 501 ; liability for refusal to 
 grant, 502 ; to be under seal, 502 ; test and return of, 502 ; indorsement of aUow- 
 anoe on, 502 ; by whom, and how made, 503 ; return of writ, 503 ; what to 
 be stated in return, 504; attachment for not making return, and commitment 
 thereon, 506; precept for person in whose behalf writ issued, 505; when pris- 
 oner to be discharged, 506 ; when prisoner to be let to bail, 507 ; notice of 
 application for vmt, when required to be given, 508 ; trial of issue upon return 
 to writ, 512 ; evidence on trial of issue, 512-13 ; objections to form of return, 
 513; amendment of return, 613 ; when to issue in case offence be not bailable, 
 514; when order to be made that prisoner be let to bail, 514; letting prisoner to 
 bail in pursuance of order, 515 ; obedience to order for discharge of prisoner, how 
 enforced, 515 ; person discharged on, not to be again imprisoned for same cause, 
 516 ; penalty for recommitting person discharged on, 516 ; form of proceedings 
 on, ei? to 527 ; fraudulent debtor entitled to discharge may bring, 571 ; 
 at common law, when it lies, 494-5; what, 496; aUowanoe o^ 496; affidavit 
 for, 496 ; within what time to be brought, 496 ; issuing writ, 496 ; indorsement 
 of by surety for costs, 496-7 ; how obeyed, 497 ; what it removes, 497 ; 
 when may be quashed, 497 ; costs on, 497 ; when double costs may be allowed 
 on, 497. 
 
 CHALLENGES, different kinds of, 406-7 ; grounds of, 407-8 ; order of making, 
 408 ; how made, 409 ; trial of, 409; usual mode of procedure, 410; peremptory 
 410 ; to the array, 410. 
 
 CHANGE OP ATTORNEY, 260 to 262. 
 
 CHANGING THE TENUE, 118 ; on cause shown, 350 to 352; on account of dis- 
 ability of judge, 362-3 ; rule for, 354. 
 
 CHARGE TO JURY, 138. 
 
 CIRCUIT COURTS, jurisdiction of, 1, 2 ; officers of, 2; terms of, 15; order of business 
 in, 15. 
 
 CIRCUIT COURT COMMISSIONERS, election, powers and duties of, 4. 
 
 CIRCUIT JUDGES, election and duties of, 3. 
 
 CIRCUITS, judicial, number of, 3. 
 
 CITATION to show cause against dissolution of attachment, 68 ; service of, 68. 
 
 CIVIL ACTIONS. See Actions. 
 
 CLERKS OP CIRCUIT COURTS, their duties, 5 ; appointment of deputy by, 5, 6 ; 
 assessment of damages by, 299. 
 
 COGNOVIT, form of judgment on, 190 ; what and how given, 310-11 ; forms of, 
 311-12 ; judgment on, 310. 
 
 COMMBNCEMENT, of actions, 34 to 74 ; by capias ad respondendum, 34 ; by sum- 
 mons, 34, 54 ; by declaration, 56 ; by attachment, 60 ; by writ of replevin, 34, 
 70 ; of declaration, 77 ; of plea in abatement, 97 ; of trial, entry of, 149; of ac- 
 tions on bail bond, 272. 
 
 COMMISSIONS, to take testimony of witnesses, 118; to take testimony of wit- 
 nesses out of state, when may be issued, 366, 372 ; order for, 365 ; affidavit on mo- 
 tion for, what to contain, 365; notice of motion for, 366 ; 372; costs on applica- 
 
630 INDEX. 
 
 OUmsaiO^S— continued. 
 
 tion for, 366; interrogatoriea to be annexed to, 366-'7; eieoutioa and return of, 
 367 to 3'70 ; depositions taken under, may be used in evidence, 370 ; second 
 commission, 311 ; form of affidavit to move for, 3T2 ; form of notice of motion for, 
 312; form of rule for, 3'73; form of commission, 3T3; of return o^ 376 ; of de- 
 position taken on, 376. 
 
 COMMISSIONEES, to admeasure (Ibwer after recovery in ejectment, 613 : oath of, 614, 
 615; report of, 614, 616. 
 
 COMMITMENT, for not delivering books and papers belonging to an officer, 488 ; for 
 non-payment of money, 532 : on conviction of misconduct, 636-7, 541 : of fraudu- 
 lent debtor, 569-70. 
 
 COMMITTIIUR, on surrender of principal by baU, 287, 289. 
 
 COMMON BAIL, 277-8. 
 
 COMMON COUNTS, what, 84; forms of, 94. 
 
 COMMON MOTIONS, vrhat, and how made, 239. 
 
 COMMON RULE BOOK, to be furnished by clerk, 6 ; what rules to be entered in, 239. 
 
 COMPELLING PRODUCTION OP PAPERS, Ac. See BOOKS and Papers. 
 
 COMPLAINT, for forcible entry into land, 549, 557 ; for forcible detainer, 549, 557 ; 
 for holding over premises after right to hold has ceased, 553. 
 
 CONCLUSION, of declaration, 87 ; of plea in abatement, 97, 98. 
 
 CONFESSION, forms of judgments on, 190. 
 
 CONSOLIDATING ACTIONS, in what cases may be ordered, 328, 330 ; motion for, 
 329, 330 ; affidavit on motion for, 329, 332 ; rule for, 333. 
 
 CONTEMPT, in disobeying subpoena, 397 ; proceedings as for, to enforce civil reme- 
 dies, &e., 530 ; what acts punishable as, 630, 531 ; when committed in the imme- 
 diate view and presence of tho court, how punished, 531; when proof required, 
 and time for defence to be given, 531-2 ; order to show cause, 632, 539 ; attach- 
 ment for disobeying rule to return process, 532 ; when habeas corpus to issue for 
 person charged, 532; application for attachment or rule to show cause, 633 ; when 
 copy of rule and of affidavit to be served, 533, 540 ; affidavits for motion, how en- 
 titled, 533; orderdirectingpenalty of bondforappearanoe, 533 ; service of attach- 
 ment, 534 ; return of attachment, 535 ; interrogatories to be filed on appearance of 
 defendant, 635 ; answer to interrogatories, 635 ; proceedings if party refuse to an- 
 swer, 535 ; exceptions to interrogatories, 635-6 ; amendment of interrogatories, 
 535-6 ; when attachment to be discharged, 535-6 ; when party to be fined or im- 
 prisoned, 535-5 ; sum to be paid when loss has been produced, 635-6 ; imprison- 
 ment for neglect of duty, 536; imprisonment in other oases, 537 ; process of com- 
 mitment, 537 ; prosecution of bond taken on arrest, 538; measure of damages in 
 suit by aggrieved party, 538 ; recovery on bond by attorney-general or prosecut- 
 ing attorney, 538 ; disposition of moneys recovered on bond, 537-8 ; reference to 
 take proof in relation to misconduct, 540 ; reference to ascertain amount of loss or 
 injury, 540 ; punishment when party acted in good faith, 541 ; when party acted 
 under advice of counsel, 641 ; how prisoner to be kept after conviction, 541 ; effect 
 of contempt upon the guilty party, 542-3 ; entitling of affidavits in proceedings as 
 for contempts, 543 ; forma of proceedings, 543 to 647. 
 See Cbiminal Contempts. 
 
 CONTINUANCE, of cause, 132 ; affidavit for, 133 ; causes for, 133 ; costs on, 134; 
 order for, 147 ; motion for, 404 ; ground of motion for, 405. 
 
 CONTRIBUTION, 196, 213. 
 
 CORONERS, election of, 7 ; when to execute process, 7 ; when capias to be directed 
 to, 35. 
 
 CORPORATIONS, stock in, how taken on execution, 201 ; property and franchises o^ 
 when may be taken and sold on execution, 201 ; proceedings against by informa- 
 tion, 489, 490 ; scire facias to annul act creating, 450. 
 See RELiaions COBPOBATIONa. 
 
 COSTS, when capias to be indorsed by surety for, 36; on withdrawal of plea, 117 > 
 taxation of 162 ; taxed bill of, to be filed, 162 ; included in execution, 162 ; by 
 whom taxed, 162; notice of taxation, 162; bill o^ what to specify, 163; afBdavit 
 
INDEX. 631 
 
 C0B1&— continued. 
 
 of disbursments, 163 ; how taxed, 163 ; retaxation o^ 163 ; when recoverable by 
 plamtiff, 164; when to recover no more than damages, 1 64 ; when there are several 
 issues, 164 ; in oases appealed from justice's court, 165 ; in suits in the name of 
 the people, on the relation of a citizen, 165 ; in suits settled, 165 ; when recover- 
 able by defendant, 165 ; when one defendant is acquitted, 165-6 ; double costs, 
 166 ; when people liable for, 167 ; person interested in recovery, when liabla 
 for, 16'7 ; double or treble, how obtained, 161 ; fi. fa. on judgment for defendant 
 for, 223; on special motions, 246; when payable, 246; demand of, how made, 
 247; when defendant may require security for, 290; order to file security for, 
 591-2-3; application for order, how made, 291; how security for given, 291; 
 exception to securities for, 291; effects of failure to file se«urity for, 292; pro- 
 ceedings on bond for, 292 ; bond for, 293 ; when court may order security for, 
 294 ; on payment of money into court, 315-16 ; on discontinuance, 317 ; on nolle 
 prosequi to declaration, 318-19; on nol. pros, as to one defendant, 319 ; on cassetur 
 MUa, 320 ; on making a tender, 321 ; on stay of proceedings, 322 to 325, 327 ; on 
 setting aside proceedings for irregularity, 441 ; on allowing amendment, 444 ; on 
 scire facias, 453 ; on tnandamus, 479-80 ; judgments for on information, 488-91 ; 
 on suggestion of damages by relator, 490 ; on common law certiorari, 497 ; com- 
 pelling payment of by conmiitment, 532 ; in actions for forcible entry or deten- 
 tion, 552 ; in summary proceedings to recover possession of land, 633 ; when 
 complainant liable for, in proceedings against fraudulent debtors, 569. 
 
 COUNTS, form of on notes and biUs, 90 to 93 ; common, 94. 
 
 COUNTER AFFIDAVITS, on special motions, 243. 
 
 COUNTERMAND, of notice, 252; of assessment, 299. 
 
 COUET, plea in abatement to jurisdiction of, 96. 
 
 COVENANT, uses of action of, 22 ; forms of verdicts in, 151, 165; fi. fa. for plaintiff 
 in, 222. 
 
 CREDITOR, when may redeem real estate sold on execution, 210-11; proceedingg 
 by against fraudulent debtor, 566 to 576. 
 
 CRIMINAL CONTEMPTS, what, 527 ; punishment for, 528 ; when may be punished 
 summarily, 628; when party to be notified of accusation, 528; order to show 
 cause, 528 ; service of order to show cause, 528 ; hearing of accusation, 528 ; 
 person convicted o? may be liable to indictment or information, 529 ; prosecution 
 to be conducted by prosecuting attorney, 529 ; form of proceedings, 529-30. 
 
 J>ainages, general or special, 87; how stated in declaration, 87-8; when to be 
 ascertained on trial, 140-41 ; measure of, 142 ; interest as, 142-3 ; when to be 
 doubled or trebled by court, 144 ; when not to be severed, 144 ; remittitur of, 
 144; assessment of, on default, 144; aaseaament of; after interlocutory judgment, 
 298 ; in what oases clerk may assess, 299; notice of assessment by clerk, when 
 necessary, 299; preparation for assessment of, 300; assessment by clerk, how 
 made, 301 ; vacating assessment of, 301 ; assessment of, by court or jury, 301; on 
 recovery by relator upon a mamdamus, 479; of relator on information, how re- 
 covered, 489; suggestion of, and proceedings thereon, 489; assessment of on 
 suggestion, 489, 490 ; to be assessed in favor of aggrieved party in suit on attach- 
 ment bond, 638; reeovery of treble, after obtaining restitution of premises, 556. 
 
 DATS, certain to be treated as Sunday, 37. 
 
 DEATH OF PARTIES, survivor of actions on, 27. 
 
 DEATH OR REMOVAL of attorney, proceeiHngs on, 261, 
 
 SEBEl^ESSE, taking testimony, 118, 376 to 348. 
 
 DEBT, uses of action of, 21 ; when profert is necessary in, 80 ; forms of verdicts in, 150, 
 151, 155 ; forms of judgments in, 171, 174r-5, 185 ; ^. fa. for plaintiff in, 222 ; cog- 
 novit in, 311. 
 
 DEBTORS, fraudulent, punishment o^ 565 to 576. 
 See Fbaudulbnt Debtoe*. 
 
 DECLARATION, commencement of suits by, 34, 56 ; form of commencement of, 57 ; 
 entitling, 57 ; rule to plead to, 57 ; notice of rule to plead to, 57 ; service oi; 57, 
 58 i shfirifTa certificate of service ot, 68; filing and service of, in ejectment, 68^ 
 
632 INDEX. 
 
 DECLARATION— eowiirauei. 
 
 59 ; when may be filed in suits commenced by writ, 75 ; when defendant im- 
 prisoned for want of bail, 15 ; when defendant has appeared, 16-G ■ serving copy 
 of, le, 88, 89 ; general requisites, 88-9 ; formal parts of, 88-9 ; title, 89 ; venue, 89 ; 
 commencement, '7'?-8; ofBce of, T9; statement of cause of action, 19, 80 to 83 ; 
 manner of stating cause of action in, 83 ; several counts in, 83 ; common counts, 
 84-6 ; breach, 86 ; conclusion, 8*1 ; signature and indorsement, 88 ; amendment 
 of, 89, 90 ; forms of counts on bilk of exchange and promissory notes, 90 to 93 ; 
 forms of common counts, 94; amendment of, 295 ; on bond for disoharge of ship, 
 boat, or vessel, 581. 
 
 DEED, to purchaser of real estate on execution, 208, 212, 238 ; how compelled, 213 ; 
 evidence per se of title, 213 ; when it takes effect, 213. 
 
 DEEDS, 126-t, proving execution of) 609 ; in what oases may be proved in circuit 
 court, 609 ; summons to grantor to appear and hear testimony, 609 ; affidavit on 
 application for summons, 609-10; compelling attendance df witness, 609-10; 
 liability of witness for refusal to appear or to answer on oath, 610 ; oath to wit- 
 ness, 611; order on proof of execution, 611-12. 
 
 DEFAULT, in not pleading, when entered, 90 ; of plaintiff at trial, non-suit on, 14S ; 
 forms of judgment on, 184, 189; of sheriff to return process, 266 ; form of rule 
 for, 291 ; setting aside for irregularity, 306 ; when motion to set aside to be mads, 
 307 ; setting aside when regular, SOT ; setting aside judgment by, 301 ; terms of 
 setting aside, 308 ; judgment for defendant on, 308 ; affidavit to set aside, 308-9 ; 
 rule to set aside for irregularity, 308-9 ; rule to set aside when regular, 308-9 ; 
 rule for, in not joining in demurrer, 309; rule for making absolute, 308, 310. 
 in not pleading, entry of, 296-1 ; effect of, 291 ; making absolute, 297 ; waiver 
 of, 297 ; judgment by, in debt, 298 ; judgment by, in actions sounding in dama- 
 ges, 298 ; assessment of damages on, 298 to 302 ; in not pleading to information, 
 487. 
 
 DEFENCE, when to be made, 95-6 ; how made, 96 ; grounds of, in actions on con- 
 tract, 105 ; in actions for vjronga, 106 ; under general issue in assumpsit, 106 ; 
 in covenant, 106 ; in debt, 107 ; in trespass, 107-8 ; in case, 108. 
 
 DEPENDANT, when not to be held to bail a second tune, 38 ; not to be arrested on 
 Sunday, 42; when protected from arrest in his own house, 42 ; plea in abatement 
 to person of, 96 ; forms of verdicts for, 164 to 156. 
 
 DEFENDANTS, who to be made, 28-9 ; pleas in abatement by several, 98. 
 
 DELIVEET, of capias to be served, 37 ; on habeas corpus, return of to capias, 47 ; 
 of books and papers pertaining to an office, how CMnpelled, 488-9. 
 
 DEMAND, of costs, 247 ; of oyer, 340 to 843. 
 
 DEMURRER, what, 75 ; to plea in abatement, 100 ; jcMnder in, 101 ; to declaration, 
 101; general or special, 102; judgment on, 102; form of, 102; extent of, 103; 
 to one of several counts, 104r-5; signing, filing, indorsing and serving, 103; join- 
 der in, 103-4; preparation of, for argument, 115 ; argument, 116; decision of, 
 116 ; amendment on decision o^ 117 ; withdrawal of plea on decision of| 117 ; 
 judgments on, 159-60; withdrawal of, 160; amendment of pleading on sustaming 
 160; formsofjudgmenton, 171tol74; toanswer to TOontiamttS, 477 to 479; judg- 
 ment for relator on, 479. 
 
 DEPOSITIONS, commissions for taking, 365 to 376 ; of witnesses examined de Ime 
 esse, 383-4 ; to perpetuate testimony, 385. 
 
 DEPUTY CLERK, appointment and duties of, 6. 
 
 DETAINER. See Foboible Detainer. 
 
 DILATORY PLEAS, what, 96. 
 
 DISCHARGE, of defendant on supersedeas, return of to capias, 47 ; of privileged per- 
 sons from arrest, 263-4; from arrest on capias, apphoation for, how made, 276; 
 when order for, will be granted, 276-7 ; order for on indorsing _appearance, 278; 
 of prisoner on return oS habeas corpusor certiorari, 506, 514^15 ' on warrant, 617; 
 of defendant in attachment on giving bond, 534 ; of attachment on purging con- 
 tempt, 536. 
 
 DISCONTINUANCE, forms of judgment on, 186-7 ; of suit, how entered, 316 ; costs 
 on, 316-17 ; rules for, 317 ; as to one of several defendants, 317. 
 
INDEX, 633 
 
 DISOOVEET, of books and papers. 388 to 396. 
 
 DISPOSITION, of goods after levy, 201. 
 
 DISSOLUTION, of attachment, application for, 68 ; citation to show cause against, 68; 
 proofs on hearing of application, 68 ; appearance may be required as a prerequisite 
 to, 69 ; order for, 69; restoration of property on, 70. 
 
 DISTBIBUTION, of proceeds of sale of ship, Ac, for payment of liens, 582-4; of pro- 
 ceeds of sale of lands for satisfaction of mechanic's lien, 591. 
 
 DISTRICT COURT, 5; judge of, 3. 
 
 DORMANT EXECUTION, 196. 
 
 DOUBLE DAMAGES, 144. 
 
 DOUBLE COSTS, 166-'? ; how obtained, 16t. 
 
 DOWER, admeasurement of, upon recovery in ejactment, 612 ; appointment of com- 
 missioners to admeasure, 613 ; when court may adjudge a sum of money in lieu of, 
 or assign a portion of rants and profits, 613 ; how assigned in case of a mortgage 
 upon the land, 613 ; in case of lands aliened by husband, and enhanced in yelue, 
 613; description of land set off, 614; commissioners may employ surveyor, &c., 
 when necessary, 614 ; report of commissioners, 614, 616 ; confirmation of report, 
 614, 617 ; writ of possession on confirmation of report, 614. 
 
 DRAFTING PAPERS, 254 to 256. 
 
 DRAWING JURY, 131. 
 
 DUPLICITY, when declaration bad for, 83. 
 
 Ejectment, object of action o^ 20 ; how commenced, 58 ; authority of attorney to 
 commence, 59; plea or demurrer to declaration in, 59; appearance in, 60; when 
 landlord may appear and defend, 60 ; reversioner or remainderman may be received 
 to plead to action, 60 ; statement of cause of action in declaration, 82 ; forms of 
 verdicts in, 153, 154, 155 ; forms of judgments in, 179, 189 ; admoasursment of 
 dower after recovery in, 612 to 618. 
 
 BLBOTION OE ACTIONS, 31-2. 
 
 ELECTORS, privileged from arrest, 41. 
 
 ELIZORS, when capias to be directed to, 35 ; when attachment against coroner to be 
 directed to, 265. 
 
 ENTITLING, of papers generally, 254-5 ; of papers in proceedings against sheriff by 
 attachment, 264-5; of papers in suit on bail bond, 272; of papers in proceedings 
 as for contempts, 633, 543. 
 
 EQUITY, proceedings in, against corporations, 491. 
 
 ESCAPE, on mpias ad respondendum, 45 ; when officer liable for, 45. 
 
 ESTOPPEL, replication of, fco plea in abatement, 100 ; notice o^ in defence, 113. 
 
 EVIDENCE, as preliminary to commencement of action, 25-6; procuring, for trial, 
 122 ; written or parol, 122 ; acts of legislature, how proved, 122 ; records of courts 
 of this state, 123 ; acts of legislatures of other states, 123 ; records of courts of 
 other states, 124 ; of letters patent, 124; of matters 2«a«i of record, 124; proceed- 
 ings in justices' courts, 124; case signed by counsel on both sides, 124; proceed- 
 ings before justices of the peace of other states, 124 ; records and proceedings of 
 courts of foreign countries, 125 ; written lawof foreign countries, 125 ; of&cial acts 
 of notary public, 125; certificate of county surveyor, 126; sheriff's sale of real 
 estate on execution, 126 ; published notices and advertisements, 126 ; marriages, 
 126 ; affidavits made in other states or countries, 126 ; certificates of purchase of 
 public lands, 126; written instruments of a private nature, how proved, 126; 
 deeds, 126-7; wills, 127; other written instruments, 127; promissory notes and 
 bills of exchange, 127 ; parol, what, 128. 
 
 EVICTION, of purchaser under execution, consequence of, 213. 
 
 EXCEPTING, to bail, 53; notice of; 53, 280; how taken, 279; waiver of right of, 280; 
 when may be treated as a nullity, 280; form of notice o^ 286; to sureties for 
 costs, 291, 294; to report of assessment of damages, 300. 
 
634 
 
 INDEX. 
 
 EXCEPTIONS, bill of, to opinion, &e., of court, in what case may be taken, 411t when 
 bill of, will not lie, 411 ; how taken, 412 ; settlement of) 412-13 ; when it becomes 
 part of record, 413 ; motion to set bill aside, 418; when cause is tried by court 
 without a jury, 414 ; forms of bills of, 414 to 418. 
 
 EX CONTRACTU, actions, 19 ; uses of, 21-2 ; parties to, 26, 28. 
 
 E^ DELICTO, actions, 19, 20; uses of, 22-3; parties to, 21, 29. 
 
 EXECUTIONS, what, 192; division of, 192; by whom issued, 192; alias, 192; within 
 what time to issue, ] 93 ; staymg by writ of error, 193 ; may issue to sheriffs of 
 different counties, 194; when to be directed to person designated by order, 194; 
 when another execution may issue after body has been taken, 194 ; indorsement 
 of, by sheriff, 194; from what time property bound, 194; by whom executed in 
 case of death, Ac, of officer, 195 ; how set aside when irregular, 195 ; who may 
 move to set aside, 195 ; waiver of irregularity in, 195 ; when void, 195 ; amend- 
 ments of, 195 ; when perpetual stay of will be granted, 196 ; new, when execu- 
 tion lost, 196; contribution, 196; restitution, 196; how issued against survivor, 
 196; fieri facial, 191; capias ad satisfaciendum, 216; forms of, 221 to 238; re- 
 ttirns to, 234 to 236; set-off of, 204; in actions of replevin, when property was 
 not dehvered, powers of officer on, 214; in ejectment, how executed, 214; dis- 
 turbance of officer in execution of writ, 214; when venditioni eocponas to issue, 
 215 ; on. judgment against sheriff for not putting in bail, 275 ; supersedeas for not 
 charging defendant m, 3S8-9 ; return of, how compelled, 437 ; when scire facias 
 necessary to obtain, 449; for costs in action for forcible entry or detainer, 552 ; in 
 summary proceedings to recover possession of land, 553, 665. 
 
 BXECUTOB,^./o. for in judgment recovered by testator, 225 ; fl.fa. on judgment in 
 favor of; 226; fi.fa. against for costs de bonis propriis, 226. 
 
 EXEMPTION, of personal property from execution, 204 ; of homestead, 206. 
 
 EXONERETmt, 288, 290. 
 
 False iinprisoument, action for, 22. 
 
 FALSE EETUIfflJ', sheriff liable for, 48. 
 
 PEES, when to be paid on serving writ of ftoSeo* corpus or certiorari, 502-3. 
 
 See Costs. 
 FEMALES, privileged from arrest, 38. 
 
 FEME CO VEST, when may bring action in her own name, 27 ; when to join with her 
 husband, 27. 
 
 FICTITIOUS NAME, when plaintiff may declare against defendant by, 78. 
 
 FIEBI FACIAS, what, 197; forms o^ 221 to 229; indorsements, when execution 
 quahfled, 197 ; in case of joint debtors, 197 ; against sheriff and his sureties, 198; 
 in case of judgment on bond, 198; priority, 198; how executed, 199; property 
 subject to, 199 ; levy, when to be maide, 200; interest of stockholder, how taken 
 on, 201 ; against corporate property, 201 ; disposition of goods seized on, 201 ; 
 effect of levy, 202 ; property seized on, how sold, 202-3 ; notice of SEJe, 203 ; 
 Betting aside sale and re-aale, 20S ; set-off, 204; personal property exempted from, 
 204^5 ; selection of exempted articles, 205; what real estate subject to, and what 
 exempt, 206; notice of sale of real estate, 206; sale of real estate, when and how 
 made, 207 ; who cannot purchase at sale, 207 ; sale of real estate on two execu- 
 tions, 207 ; rights of purchaser, 208; certificate of sale, 208, 236 ; amendment of 
 certificate, 208 ; re-sale in certain cases, 208-9 ; redemption of real estate by debtor, 
 or person claiming under him, 209; acquisition of title by creditors, 210; pur- 
 chase of creditor's title by other creditors, 210; rights of plaintiff in execution, 
 210; redemption, how made, 211; evidence of right to redeem, 211; title not 
 divested by sale, Jll ; effect of redemption, 212 ; re-sale after redemption by 
 debtor, 212; sheriff's deed, 212, 237; execution of deed, how compelled, 213; 
 from what time deed takes effect, 213 ; deed evidence of title, 213 ; setting aside 
 deed for fraud, 213; contribution, 213 ; return of ofacer, how made, 215 ; different 
 species of returns, 216; fieri feci, 215; unsold for want of buyers, 215; nulla 
 bona, 215; proceedings on return, 216-16; alias fi. fa., 216; pluries, 216; testa- 
 tum, 216, 227-8; fi.fa. for defendant, 219, 223 to 225. 
 
 FIERI FECI, 215, 234-6. 
 
 FINDING OF THE COURT, 141, 157 ; amendment of, 414. 
 
 FOEOIBLE DETAINEE, of land, complaint for, 548-9, 557 ; warrant or summons on 
 complaint, 649, 558 ; plea to complaint, 550; trial of issue, 560 ; proof to be made 
 by complainant, 651-2; judgment, 652; precept for possession, 552; execution 
 for cost, 562. 
 
INDEX. 635 
 
 FORCIBLE ENTRY, into lands, &c., forbidden, S4T-8 ; what constitutes, 648 ; who 
 may prosecute proceedings for, 648 ; complaint for, 549, 567 ; warrant or summons 
 on complaint for, 549, 558; plea to complaint, 550; trial of issue, 550; proceed- 
 ings if jury demanded, 550, 551 ; adjournment of hearing, 551 ; proof to be made 
 by complainant, 551 ; judgment on conviction of defendant, 562 ; precept to re- 
 store possession, 552 ; execution for costs, 652. 
 
 FORM, of appointment of deputy clerk, 6 ; approval of, by court, 6 ; of appointment of 
 under-sheriff, 7 ; of petition for license to practice as attorney, 8 ; of certificate of 
 moral character, 8 ; of entry on admission of attorney, 9 ; of clerk's certificate of 
 admission of attorney, 9 ; of charges against an attorney, 12 ; of order of court 
 on presentation of charges, 13; of order for taking proofs, 13 ; of order of removal 
 of an attorney, 13; of caption of journal, 18; of entry of adjournment, 19; of capiaa 
 ad reapondendum, 35 ; of affidavits to hold to bail, 36 ; of bail-bpnd to sheriff, 42 ; 
 of assignment of bail-bond, 43; of bail-bond to coroner, 43; of bail-piece, 43, 52 ; 
 of bond for limits, 44 ; of returns to capias, 47 ; of notice of retainer, 50 ; of re- 
 cognizance of special bail, 51 ; of notice of special bail, 53 ; of summons, 54 ; of 
 returns to summons, 66 ; of acceptance of service, 56 ; of rule to plead, 57 ; of 
 commencement of declaration, 57 ; of notice of rule to plead, S7 ; of certificate of 
 service of declaration, 58; of writ of attachment, 62 ; of sheriff's certificate an- 
 nexed to copy of attachment, 62 ; of inventory of property attached, 63 ; of oath 
 to appraisers, 63 ; of appraisement of property attached, 63 ; of certificate upon 
 copy of attachment to be deposited with register, 64; of notice of attachmMit, 65; 
 of bond for payment of judgment, 65 ; of entry of appearance after pubUcation of 
 notice, 66 ; of judge's order for sale of property attached, 67 ; of citation to show 
 cause why attachment should not be dissolved, 68 ; of order dissolving attach- 
 ment, 69 ; of writ of replevin, 70 ; of affidavit to be annexed to writ of replevin, 
 71 ; of replevin bond, 72 ; of counts on promissory notes, 90, 91 ; of counts on 
 inland bUlfe of exchange, 91 to 93 ; of common counts, 94 ; of demurrer to declar- 
 ation, 102 ; of joinder in demurrer, 104 ; of plea of general issue, and notice of 
 special matter of defence, 112 ; of notice of set-off, 113 ; of notice of trial, 120; 
 of notice of trial and aasessment, 120 ; of note of issue for clerk, 121 ; of coun- 
 termand of notice of trial, 122 ; of non-suit upon plaintifiC's defeult in not proceed- 
 ing to trial, 146 ; of order for summoning petit jurors, 147 ; of order for a contin- 
 uance, 147 ; of oath to jury, 147 ; of affirmation to juror, 147 ; of oath to witness, 
 147 ; of affirmation to witness, 148 ; of mire dire, 148 ; of interpreter's oath, 148; 
 of oath on application of juror to be excused, 148 ; of oath of a party of the loss 
 or destruction of a paper, 148 ; of oath of triers upon a challenge for favor, 148 ; 
 of witness on a challenge, 148 ; of officer attending jury, 149 ; of a party touch- 
 ing his ability to procure the attendance of a subscribing witness, 149 ; of entry 
 on commencement of trial by jury, 149 ; of entry on subsequent day, trial not 
 concluded, 149 ; of trial by jury, and verdict for plaintiff in assumpsit, 149 ; of 
 trial of issue as against one defendant, and verdict for plaintiff, and assessment of 
 damages against another by default, 150 ; of verdict for plaintiff on one count, 
 and for defendant on another, 150 ; verdict for plaintiff against executor or ad- 
 ministrator, in assumpsit, 150; of verdict for plaintiff in debt, 150; of verdict for 
 plaintiff in debt, when breaches are assigned, 151 ; of verdict for plaintiff in cov- 
 enant, 151; of verdict for plaintiff in replevin, where property has been replevied, 
 151 ; of verdict for plaintiff in replevin, when property has not been replevied, 
 152; of verdict for plaintiff in trespass, 152 ; of verdict for plaintiff in trespass, 
 when one defendant is found guilty and another acquitted, 152 ; of verdict for 
 plaintiff in trespass, when several damages are assessed, 152 ; of verdict for plain- 
 tiff in case or trover, 153 ; of verdict for plaintiff in ejectment, 153 ; of verdict 
 for plaintiff in ejectment for an undivided share, 153 ; of verdict in ejectment for 
 one plaintiff, and for defendant against other plaintiffs, 153 ; of verdict in eject- 
 ment, of part for plaintiff, and part for defendant, 154; of verdict for plaintiff in 
 ejectment, his title having expired before trial, 154; of verdict for defendant ia 
 assumpsit, 154 ; of verdict for defendant in assumpsit, when another defend- 
 ant let judgment go by default, 155 ; of verdict for defendant in debt, 155 ; 
 of verdict for defendant for balance of set-off, 155 ; of verdict for defendant as ex- 
 ecutor or administrator in assumpsit, 155 ; of verdict for defendant in covenant, 
 155 ; of verdict for defendant in replevin, and assessment of his damages, 156 ; of 
 verdict for defendant in replevin, he having a special property in the goods, 156; 
 of verdict for defendant in trespass, 156 ; of verdict for defendant in case, 156 ; of 
 verdict for defendant in ejectment, 156 ; of finding of the court upon a trial with- 
 out jury, 157 ; of judgment of respondeat ouster, on demurrer to plea in abatement, 
 171 ; for plaintiff in debt, on demurrer to declaration, 171 ; for plaintiff in assump- 
 
636 INDEX, 
 
 FORM— «m<«j««d[. 
 
 sit, on demurrer to declaration, 111 ; order on overruling demurrer to declaration, 
 allowing defendant to withdraw demurrer and plead oyer, 112 ; order allowing 
 amendment of declaration on sustaining demurrer, 112 ; judgment for plaintiff on 
 demurrer to declaration, in replevin, when goods have been replevied, 112; the 
 like when goods were not replevied, 112 ; judgment for plaintiff on demurrer, 
 after an issue of fiiot tried, 173 ; judgment for defendant on demurrer to declar- 
 ation, lt3; judgment for defendant on demurrer to plea in abatement, 174; 
 judgment on verdict for plaintiff in assumpsit, 174 ; judgment on verdict for plain- 
 tiff in debt, 174; the like when breaches have been assigned, and damages as- 
 sessed thereon, 175 ; judgment for plaintiff when an issue has been tried against 
 one defendant, and damages assessed against another by default, 175 ; judgment 
 for plaintiff on one count, and defendant on another, 175 ; judgment when one de- 
 fendant is convicted and one acquitted, 176; judgment on verdict for plaintiff in 
 replevin, when the property was replevied, 176; the like when property was not 
 replevied, 177 ; judgment on verdict for defendant, on a plea of misnomer, 177 ; 
 judgment for defendant in all actions except replevin, 177 ; judgment on verdict 
 for defendant in replevin, when goods have been replevied, 177 ; judgment on 
 verdict for defendant, when goods were not replevied, 178 ; judgment on verdict 
 in replevin, when plaintiff has only a special property in goods, and they were not 
 replevied, 178 ; of judgment on verdict for defendant in replevin, when he has only 
 a special property in goods and they were replevied, 178 ; judgment on verdict for 
 plaintiff in ejectment, 179 ; judgment on verdiotwhen plaintiff's title expired before 
 trial, 179 ; judgment on verdict for plaintiff against executor or administrator, 
 180 ; judgment on verdict for plaintiff when several damages are assessed, 180 ; 
 judgment on verdict when plaintiff elects meliora damna, 181 ; judgment for 
 plaintiff in slander, assault, &c., where he recovers less than fifty dollars, 181; 
 judgment for plaintiff in cause appealed from a justice's court, and costs awarded 
 to defendant, 181; judgment when plaintiff does not recover sufficient to entitle 
 him to costs, 182 ; judgment on verdict for defendant for balance of set-off, 182 ; 
 judgment for plaintiff in action for waste, 182; judgment for plaintiff in action 
 for nuisance, 183 ; judgment for plaintiffs on conviction for violating liquor law, 
 183 ; judgment on finding of the court, 183 ; judgment ot non-pros, for not declar- 
 ing, 184 ; judgment of non-pros, in replevin, 184 ; judgment for plaintiff in assump- 
 sit, case, or trespass, on default in not pleading, 185 ; judgment for plaintiff in 
 debt on default in not pleading, 18S ; judgment on default of one of several par- 
 ties to a bill or note, sued jointly under the statute, 185; judgment for plmntiff 
 on default in replevin, 186 ; judgment for defendant on default in not joining in 
 demurrer to declaration, 186; judgment for defendant on discontinuance, 186; 
 judgment on non-suit in replevin, 186 ; on discontinuance in replevin, when the 
 plaintiffs sureties have neglected to justify after exception, 187 ; judgment on 
 nolle prosequi to action, 187 ; judgment for plaintiff on nol. pros, to an issue of fact, 
 after deeision of an issue of law, 188 ; judgment of non-suit on plaintiff's default 
 in not bringing cause to trial, 188 ; judgment on voluntary non-suit at the trial, 
 188 ; judgment as in case of non-suit when cause has been referred, 189 ; judg- 
 ment for plaintiff on default in not pleading over after judgment on demurrer to 
 plea in abatement, 189 ; judgment for plaintiff on default in not pleading in eject- 
 ment, 189 ; judgment in debt on bond and warrant of attorney, 190 ; judgment 
 in assumpsit on note and warrant of attorney, 190 ; judgment on cognovit in as- 
 sumpsit, 190 ; judgment on withdrawal of plea, 190 ; judgment of afBrmance on 
 certiorari, 191 ; judgment of reversal on certiorari, 191. 
 oi fieri fcicias, 197 ; for plaintiff, in assumpsit, 221 ; in debt, 222 ; in covenant, 222 ; 
 in trespass, assault, case, slander, and trover, 222; in replevin, 223; in replevin, 
 when goods not replevied, 223 ; for executor or administrator on judgment recov- 
 ered by testator or intestate, 225 ; on judgment in favor of executor or adminis- 
 trator, 226 ; against joint debtors, when all have not been served with process, 
 226; for residue in assumpsit, 226 ; testatmn, fi. fa., 221 ; testoijtm for residue, 228 ; 
 on judgment in attachment suit, and no service or appearance, 228 ; on judgment 
 upon an official bond, 229 ; on judgment for moneys secured by mortgage, 229 ; on 
 judgment in case for nuisance, 229 ; for costs, with writ of possession in ejectment, 
 330 ; for defendant, for costs, 223 ; in replevin for damages and costs, 223 ; on judg- 
 ment of non-pros, for not declaring, 224; on judgment oi non-pros, for not replying 
 or surrejoining, 224 ; on judgment by default for not joining in demurrer, 224 ; on 
 judgment of non-suit, 224; on judgment for balance of set-off, 225; against an 
 executor or administrator for costs de ionis propriis, 226 ; in replevin for damages 
 on non-pros, for want of declaration, with reiorna habenda, 231 ; for value of pro- 
 perty in replevin, 231 ; of venditioni exponas, 232. 
 
INDEX. 637 
 
 FORM — continued. 
 
 of return to fi. fa,, nulla bona, 234 ; fieri feci, 234 ; satisfied, 235 ; fieri feci as to part 
 and nulla bona as to residue, 235 ; property unsold for want of tuyere, 235 ; spe- 
 cial return, 235 ; of return to ca sa., cepi corpus in cusiodia, 236 ; non est inventus, 
 236 ; satisfied, 236 ; of bond to indemnify sheriff for levying on goods, 238 ; of 
 sheriff's certiflcateof sale of land, 236; of deed of real estate sold on execution,23'7. 
 
 of capias ad satisfaciendum for plaintiff in assumpsit, 232 ; for plaintiff in replevin, 
 trespass, case, &c., 233 ; for defendant in replevin, 233. 
 
 of special rules, 244-5 ; general rule as to, 255 ; of consent to substitution of attor- 
 ney, 262; of rule for substitution of attorney by consent, 262; of notice of substi- 
 tution of attorney, 262 ; of order to show cause why a defendant should not be 
 discharged on the ground of privilege, 264; of rule that sheriff return process, 
 266 ; notice of rule that sheriff return writ, 26V ; of affidavit of delivery of writ, 
 and notice of rule to return, 267 ; of rule for sheriff's default in not returning writ, 
 267; of attachment against sheriff for not returning writ, 268; of affidavit of coro- 
 ner's default in not returning attachment against sheriff, 268 ; of attachment 
 against coroner for not returning attachment, 269 ; of allowance of attachment 
 egainst coroner, 269; of rule for attachment against coroner for not returning 
 attachment against sheriff, 269 ; of special rule on the appearance of coroner on 
 attachment, 270; of rule on default of sheriff to appear on attachment, 270; of rule 
 on appearance of sheriff on attacliment, 270; of interrogatories on attachment 
 against sheriff, for not returning capias, 270; of rule for discharging attachment 
 against sheriff, 271 ; of rule imposing fine on sheriff, 271 ; of rule by consent impo- 
 sing fins on sheriff, 271; of order to show cause of action, 277; of order to discharge 
 defendant on iadorsing appearance, 278; of order to discharge defendant on com- 
 mon bail, 278 ; of order for mitigation of bail, 278 ; to show cause of action, and 
 why supersedeas should not issue, &o., 278 ; of order for supersedeas, 278; of com- 
 mon bail-piece, 278 ; of notice of common bail, 278; ol supersedeas to discharge a 
 defendant from custody on a capias, 279; of supersedeas on putting in bail, 279; of 
 notice of bail, justification and apphcation for supersedeas, 279 ; of notice of justifi- 
 cation of bail, 284; of notice of adding bail and of justification, 284; of notice of 
 adding and justifying different baU, 284; of notice that bail have justified, 285 ; of 
 affidavit on proceediags against sheriff to compel appearance, 285 ; of rule that 
 sheriff put in special bail, 285; of notice of rule that sheriff put in special bail, 285; 
 of affidavit of service of notice of rule to put in special baU, 286 ; of rule for attach- 
 ment for not putting in special bail, 286 ; of rule for defendant's appearance, 286; 
 of notice of exception to bail, 286; of affidavit to oppose bail, 286; of order for a 
 commiitiiur on surrender by bail, 289 ; of certificate of sheriff on committHur, 289 ; 
 Rolsnowledgment of certificate, 289; of proof of execution of certificate, 289; of 
 order to show cause why an exoneretnr should not be entered, 290 ; of order exon- 
 erating bail, 290. 
 
 of alternative order for security for costs, 292 ; of peremptory order for security for 
 costs, 292 ; of peremptory order on motion to the court, 293 ; of bond for defend- 
 ant's costs, 293 ; of notice of filing security for costs, 293 ; of notice of exception 
 to sureties, 294; of notice of justification of sureties, 294; of security for costs by 
 simple agreement, 295. 
 
 of rule for appearance and default in not pleading when suit is commenced by dec- 
 laration, .303 ; of rule for default in not pleading when suit was commenced by 
 •writ, and defendant has appeared, 303 ; of rule for making default absolute, and for 
 final judgment in debt on bond, 303 ; of rule for interlocutory judgment on default 
 in not pleading, and for reference to assess damages, 304; of notice of assessment 
 of damages by clerk, 304; of notice of assessment in circuit court, 304; of brief 
 for assessment by clerk, 304 ; of report of clerk on assessment, 304 ; of verdict of 
 jury on assessment of damages, 305. 
 
 of withdrawal of plea, 305 ; of notice of withdrawal of plea, 306 ; of rule for inter- 
 locutory judgment on withdrawal of plea, 306 ; of rule for judgment in debt on 
 bond, or on judgment upon withdrawal of plea, 306 ; of verdict on assessment of 
 damages on withdrawal of plea, 306 ; of affidavit to set aside regular default, 308 ; 
 of affidavit of merits, 309 ; of rule to set aside default for irregularity, 309 ; of rule 
 to set aside a regular default, 309 ; of rule for default in not joining in demurrer, 
 309; of rule making default absolute, and for interlocutory or final judgment for 
 not joining in demurrer, 310. 
 
 of cognovit in assumpsit, 311 ; of cognovit as to part of cause of action, 311 ; of 
 cognovit with a condition, 311 ; of cognovit in debt, 311. 
 
 of rule on paying money into court, 316; of notice of paying money into court, 316; 
 of rule to discontinue on payment of costs, 317; of rule by consent to discontinue 
 without costs, 317. 
 
 KiinolU prosequi Xoy(ho\& action, 319; of noKeprowjui of some to several counts, 320; 
 
638 
 
 INDEX. 
 
 JORM — tonimied. 
 
 of nolle prosequi as to some of several defendants, 320 ; of noUe prosequi to an issus 
 of fact after decision of an issue of law, 320. 
 
 of cassetur Mlla, 320. 
 
 of rule to stay proceedings on payment of debt and costs, 328 ; of rule for perpetual 
 stay of proceedings, 828. 
 
 of affidavit to move for consolidation of actions when defence is intended, 332 ; the 
 like when no defence is intended, 332 ; of rule to consolidate in ordinary cases, 
 333 ; of rule to consolidate actions on policy of insurance, 333. 
 
 of notice of special matter in bar, puis darrein continucmce, 336. 
 
 of order arresting judgment on verdict, and judgment for defendant, 33"?. 
 
 oi supersedeas for not charging defendant in execution, 339. 
 
 of demand of oyer by defendant, 343; of notice to plaintiff to furnish bill of particu- 
 lars, 349 ; of bill of particulars of plaintiffs demand, 349 ; of order to show cause 
 why particulars should not be amended, 349 ; of rule that plaintiff be non-suited 
 for not furnishing bill of particulars, 349. 
 
 of order to stay proceedings for the purpose of moving to change the venue, 353 ; of 
 revocation of order, 354 ; of rule to change the venue, 354 ; of rule denying mo- 
 tion to change the venue, 354; of order of commissioner on appUcation to transfer 
 cause, 354; of order to transfer cause, 355. 
 
 of consent that cause be referred, 360 ; of rule appointing referees, 360 ; of oath of 
 referees, 361 ; of rule to compel report of referees, 361 ; of report of refereei in 
 favor of plaintiff, 361 ; of report of referees in favor of defendant, 361 ; of special 
 report of referees, 361 ; of rule to set aside report of referees, 362 ; of rule deny- 
 ing motion to set aside report of referees, 362; of rule for appointment of auditors, 
 362; of report of auditors, 363. 
 
 of rule for a special jury, 364; of notice of striking a jury, 364; of certified list of 
 special jurors, 364. 
 
 of affidavit to mo ve for a commission, 372; of notice of motion for a commission, 372; 
 of rule for a commission, 313 ; of commission to examine witnesses, 373 ; interrog- 
 atories to be annexed to commission, 373; of cross-interrogatories, 373; of notice of 
 attending judge to settle interrogatories, 373 ; of stipulation as to mode of return- 
 ing commission, 375 ; of affidavit of agent who delivers commission, 375 ; of affida- 
 vit of person who receives commission from agent and delivers the same, 375 ; of 
 return of commission, 375 ; of deposition of witness taken under commission, 376. 
 
 of affidavit by plaintiff to obtain order to examine witness de iene esse, 379 ; the 
 like by defendant, 380 ; of order to examine witness de iene esse, 380 ; of sum- 
 mons for witness de iene esse, 380 ; of warrant to apprehend witness for examina- 
 tion de iene esse, 381 ; warrant to commit witness for refusing to be examined, 
 381 ; of notice of taking testimony within this state, 385 ; of affidavit of service of 
 notice of taking depositions, 386; of certificate of officer taking depositions, 386. 
 
 of petition to compel a discovery and production of papers, &o., to enable plaintiff to 
 declare, 391 ; petition by defendant for discovery of papers to enable him to 
 answer declaration, 392 ; of petition by either party for discovery of papers in 
 order to prepare for trial, 393 ; of petition for production and deposit of books, 
 394; of rule for production and deposit of books, &,c., 395 ; of judge's order for 
 production and deposit of books, 395 ; of judge's order for production and dis- 
 covery of papers, &e., 395; of affidavit to move for leave to inspect public books, 
 396 ; of rule for leave to inspect public books, 397. 
 
 of affidavit to move for attachment against witness, 399 ; of rule for attachment 
 against witness, 399; of attachment against witness, 399; of interrogatories on 
 attachment against witness, 400 ; of rule discharging attachment against witness, 
 401 ; of rule imposing a fine on witness, 401. 
 
 of petition for habeas corpus ad testificandum, 403 ; affidavit verifying petition, 403 ; 
 oi habeas corpus ad testifica/ndum, 404; of return of sheriff to writ, 404. 
 
 of challenge to array of jurors, 410. 
 
 of biE of exceptions on the part of defendant, to judge's charge to jury, 414 ; the 
 like on the part of plaintiff, 416 ; of bUl of exceptions to judge's decision rejecting 
 evidence, 416 ; of bill of exceptions to judge's decision admitting evidence, 417 ; 
 of bUl of exceptions on the part of defendant in a cause tried by the court, 418 ; of 
 proposed amendment to bill of exceptions, 419. 
 
 of special verdict, as prepared for settlement, 421 ; of case agreed upon by parties 
 without bringing suit, 426; of affidavit to accompany case agreed upon, 427; ofcase 
 agreed upon by parties after suit brought, 427 ; of case made after judgment, when 
 the facts are agreed upon, 428 ; of case made after judgment for review upon the 
 evidence, 492. 
 
 of scire facias to have execution for further breaches, 456 ; of scire facias against 
 
INDEX. 639 
 
 FOKM — continued. 
 
 husband and wife, upon a judgment against the wife when sole, 457 ; of scire 
 facias upon judgment against joint debtors, when process or declaration was served 
 only on one, 458 ; of return to scire facias served, 459 ; of return to scire facias 
 when the defendant cannot be found, and has no dwelling house within the 
 county, 459 ; of rule for appearance of defendant not served, 460 ; of rule for de- 
 fendant's appearance on return of scire facias served, and to plead thereto, 460 ; 
 of notice of rule to plead, 460 ; of rule for defendant's default for want of plea, 
 460 ; of rule making default absolute, Ac, 461 ; of rule for final judgment by de- 
 fault, 461 ; of soire facias by executor on the death of a sole plamtifT, after final 
 judgment in assumpsit, 462 ; of scire facias in Uke case by administrator, 463. 
 
 of rule to show cause why mandamius diould not issue, 481 ; of rule for alternative 
 manda/mus, 481 ; of an alternative mandamus, 481 ; of a peremptory mandamus, 
 482 ; of answer to alternative mcmdamus, 483. 
 
 of verdict in favor of relator, and judgment thereon, 483 ; of information in the nature 
 of a quo warranto against an individual, 492 ; of information against a corporation, 
 493 ; of indorsement of leave to file information, 493 ; of summons upon informa- 
 tioUi 493 ; of suggestion of damages on judgment for usurping an office, 494. 
 
 of certiorari to review the judgment of a justice of the peace on complaint of a com- 
 missioner of highways, 498. 
 
 of petition for habeas corpus or ceriiora/ri, 511 ; of writ of habeas corpus, 518 ; of allow- 
 ance of writ, 519; of writ of cerijorarj, 519; of petition shovring that party may be 
 carried out of state or suffer irreparable injury, &c., 619 ; of affidavit in support of 
 petition for warrant, 520 ; of warrant for prisoner in danger of being carried out of 
 the state, ic, 520 ; of attachment for disobedience to a writ oihabeas corpus, 521; 
 of attachment for disobeying writ of certiorari, 521 ; of commitment for disobedience 
 to writ ot habeas corpus or certiorari, 521 ; precept for party for whose benefit a 
 writ of habeas corpus or certiorari was issued, 522 ; of return to habeas corpus, party 
 produced, 522 ; of return to writ, party not in custody, 523 ; of notice of issuing writ 
 to party interested, 523 ; of notice of issuing writ to prosecuting attorney, 523; of 
 order for discharge of prisoner, 524 ; of order for remanding prisoner, 524 ; of trav- 
 erse of return to habeas corpus or certiorari, 524; of recognizance of bail of person 
 brought up on habeas forpus, 525 ; of order on return of certiorari that prisoner be 
 let to bail, 525 ; of recognizance of bail taken by circuit court commissioner pursu- 
 ant to order, 626 ; of commissioner's certificate of compliance with order to let to 
 bail, 527. 
 
 of order for summary punishment of contempt committed in the immediate view and 
 presence of the court, 529 ; of rule to show cause why party should not be pun- 
 ished as for a criminal contempt, 529 ; of order adjudging party guilty of contempt, 
 after hearing, 530. 
 
 of affidavit of service of order to pay money, and of demand of payment, 543 ; of 
 order for precept to commit for non-payment of money, 544 ; of precept to com- 
 mit for non-payment of money, 544; of order to show cause why party should not 
 be punished for alleged misconduct, 545 ; of order that an attachment issue, 545 ; 
 of attachment, 546 ; of order adjudging accused guilty, and directing payment of 
 loss sustained by relator, &c , 546. 
 
 of complaint for forcible entry, 557; of complaint for a forcible detainer, 557; of 
 warrant for arrest of person complained of for a forcible entry, 558 ; of warrant 
 for- arrest of person for a forcible 'detainer, 558 ; of summons on complaint for a 
 forcible detainer, 558; of return to warrant, 659 ; of return to summons, 669 ; of 
 venire for a jury, 669 ; of subpoena for witnesses, 560 ; of oath to jurors, S60; 
 of oath to witness, 560 ; of oath to officer attending jury, 660 ; of verdict of jury, 
 661 ; of complaint for unlawfully holding over after right to hold has ceased, 661 ; 
 of summons on complaint for holding over, 661; of conviction on trial without 
 jury, and judgment thereupon, 561 ; of trial by jury, conviction and judgment, 562; 
 of precept to restore premises to complainant, with execution for costs, &c., 562 ; 
 of affidavit for appeal, 563 ; of recognizance on appeal, 563 ; of bond to be given 
 by defendant on appeal, 564 ; of trial in circuit court by jury, and verdict and 
 judgment for complainant, 565. 
 
 of affidavit to obtain warrant against fraudulent debtor, 671; of warrant to arrest 
 defendant, 513; of recognizance on adjournment, 573; of commitment of defend- 
 ant, 574 ; of discharge of defendant, 676 ; of bond to secure payment of claim, 575 ; 
 of bond to apply for assignment of property, 576. 
 
 of application for warrant to seize a boat or vessel, 585 ; of warrant for seizure of 
 vessel, 586; of return of proceedings under warrant, 587; of inventory of prop- 
 erty seized by virtue of warrant, 587 ; of notice to claimants on return of pro- 
 ceedings under warrant, 588 ; of bond to obtain discharge of warrant, 588 ; of 
 order discharging warrant on giving bond, 589 ; of order for sale of vessel, &e., 
 
640 INDEX. 
 
 FORM — continiied. 
 
 590; of notice to attend distribution of proceeds of sale, 590; of objection of 
 owner, &c., to the claim of a creditor, 591 ; of order for distribution of proceeds 
 of aale, and for payment to creditors, 591 ; of report of proceedings to be filed 
 ■with clerk, 593. 
 
 of affidavit on application to prove a deed, 610 ; of summons to grantor to hear 
 proof of deed, 610 ; of oath to witness, 611 ; of order on proof of deed where the 
 grantor is dead, or has removed from, or resides out of the state, 611 ; of order on 
 proving deed where the grantor resides in the state, 612. 
 
 of rule appointing commissioners to admeasure dower after recovery in ejectment, 
 614 ; the like when amount is reduced by payment of a mortgage, 614 ; oath of 
 commissioners to admeasure dower, 616; of report of commissioners, 616; of rule 
 to confirm report of commissioners, 617 ; of order awarding a sum of money in 
 lieu of dower, 617 ; of order assigning dower of rents, &c., as tenant in common 
 with other owners, 618. 
 
 of judge's order for drawing and summoning a grand jury, 618 ; of entry on grand 
 jury being called and sworn, 618 ; of oath to first two on list of grand jurors, 619 ; 
 of oath to other grand jurors, 619 ; of oath to witness before grand jury, 619 ; of 
 entry upon grand jury coming into court and making presentments, 620 ; of in- 
 dorsement to be made on indictment by clerk, 620 ; of entry upon arraignment of 
 prisoner, 620 ; of trial and conviction, 620; of trial and verdict of acquittal, 620; 
 of oath of petit jury on trial of a criminal cause, 620 ; of oath of witness on the trial 
 of a criminal cause, 621 ; of judgment on conviction of a criminal offence, 621 ; of 
 judgment on conviction of juvemle offender, 621 ; of warrant for removal of pris- 
 oner to state prison, 621 ; of recognizance of prisoner against whom an indict- 
 ment or information has been presented, 622 ; of recognizance for attendance of 
 ■witness, 622 ; of trial, conviction, and judgment under hquor law, 622. 
 
 FEAUDTTLENT DEBTOBS, punishment of, 555; application for warrant to.arrest, to 
 whom made, 566; evidence to be adduced on apphoation, 567; preliminaries to 
 appUoation, 567 ; affidavit, what to state, 567 ; warrant for arrest of, 568 ; war- 
 rant to be accompanied by certified copy of affidavits, 568 ; how warrant executed, 
 568 ; proceedings on party being arrested and brought before officer, 568 ; proofs 
 on hearing, 668 ; recognizance on adjournment of hearing, 568 ; attendance of 
 witness, how enforced, 569 ; when commitment to issue, 569 ; when complaint to 
 be dismissed and defendant discharged, 569 ; when complainant liable for costs, 
 569 ; how commitment prevented, 569, 570 ; how defendant may obtain discharge 
 after commitment, 570 ; defendant may apply for assignment of his property, 570 ; 
 recovery if bond forfeited, 570 ; fraudulent removal of property, Ac, a misde- 
 meanor, 571 ; when party entitled to a discbarge may bring a writ of haieas cor- 
 pus or certiorari, 571. 
 
 Oeneral DemMrrer. See Deitukreb. 
 GBNBBAL ISSUE. See Pmas. 
 
 IIaI>ea§ corpus ad respoudendum, 632-3. 
 
 HABEAS CORPUS AD TESTIFIOANI)V'M,vrheTi and how obtained, 130-31; when 
 to issue, 401 ; application for, 401-2 ; service and return of, 402, 404 ; petition 
 for, 403 ; form of, 404. 
 
 HABEAS CORPUS, power of circuit courts to issue writs of, 1 ; when to issue for 
 witness, 130, 401 ; to inquire into cause of detention, 498 ; in what cases not 
 allowed, 499 ; application for, how and to whom made, 500 ; by whom application 
 for may be made, 500 ; petition for, what to state, 501 ; when writ to be granted 
 without delay, 501 ; liability for a refusal to grant, 601-2 ; when not to be dis- 
 obeyed for defect of form, 502; sealing, teste, and return of writ, 502; indorse- 
 ment of allowance on, 502 ; indorsement to state when allowed on application of 
 attorney-general or prosecuting attorney, 502 ; when charges for bringing up pris- 
 oner on may be ordered paid, 502 ; by whom to be served, 503 ; when fees to be 
 tendered to eomplete service, 603 ; how to be served, 503 ; return to writ, 504 ; 
 what to be stated in return to, 504 ; attachment for not malang return, and com- 
 mitment thereon, 505 ; precept for person in whose behalf writ issued, 605 ; power 
 of county in aid of officer executing attachment or precept, 505 ; examination on 
 return of writ, 505 ; when prisoner to be discharged, 506 ; when prisoner to be 
 remanded, 506; extent of inquiry on return of writ, 508 to 512 ; when prisoner to 
 be let to bail, 507 ; notice of time and place of return, when and to whom to be 
 
INDEX. 641 
 
 HABEAS COSPUS— continued. 
 
 given, 508 ; trial of issue upon return to writ, 512; objections to form of return, 
 513 ; when to issue after return of certiorari, 515 ; when persona discharged on 
 not to be again imprisoned, 616; penalty for recommitting after discharge on, 516 ; 
 penalty for transferring or concealing prisoner to elude service of, 516 ; forms of 
 proceedings on, 517 to 52T ; for prisoner to answer for misconduct, 532-3. 
 
 HEARING-, of special motions, order of, 242 ; on return of habeas corpus or certiorari, 
 609, 512 ; on accusation of a criminal contempt, 528. 
 
 HUSBAND AND WIFE, when to join in action, 27. 
 
 Imparlance, IS. 
 
 IMPRISONMENT. See FEAUDniBifT Debtors. 
 
 INDEBITATUS ASSUMPSIT, count, 84. 
 
 INDORSEMENT, of writ by surety for coats, 36, 37, 55, 61 ; of acceptance of service 
 of writ, 56; of executions, 197-8, 226, 228-9; of penalty of bond on attaotiment, 
 533; of leave to file information, 490. 
 
 INFORMATION, in the nature of a quo warranto, nature and objects of, 485-6 ; in 
 what cases may be filed without leave, 486; to try title to an office, 486 ; sub- 
 stance 0^ 486 ; summons to issue on filing, 486 ; service and return of summons 
 on, 486; entry of rille to plead to, 487 ; default of defendant for not pleading to, 
 487 ; defendant may plead or demur to, 487 ; trial or argument of issue, 487 .' 
 publication of rule to plead to, 487 ; judgment, 488 ; compelling delivery of books 
 and papers after judgment for relator, 488 ; recovery of damages, 489 ; suggestion 
 of damages, and proceedings thereon, 489 ; assessment of damages on suggestion^ 
 489 ; in what cases may be filed on leave granted, 490 ; by whom to be filed, 490 j 
 by whom leave to file may be granted, 490 ; notice of appUcation for leave to file, 
 490; summons for corporation on, 491 ; rule that defendants appear and plead, 491; 
 entry of appearance on return of summons served, 491 ; when order for appearance 
 to be published, 491 ; plea of defendants, what to state, 491 ; judgment of ouster 
 and for costs against corporation, 491 ; court may impose fine if defendants are 
 found guilty, 491; execution or attachment for costs, 491; proceedings in chan- 
 cery after judgment, 491 ; when filed to try title to office or franchise, 492 ; to 
 recover property forfeited to the state, 492; forms of, 492-3. 
 
 INSIMUL COMPUTASSENT, count, 85. 
 
 INSPECTION, of pubho books, 395 to 397. 
 
 INTEREST, rate of, 143; assessment as damages, 142-3. 
 
 INTERLOCUTORY JUDGMENT, 298; rule for, 3,04, 306. 
 
 INTERPRETER, oath of, 148. 
 
 INTBRROG-ATORIES, on attachment against sheriff for not returning process, 266, 
 270; to be annexed to commission, settling and aUowanoe of, 366-7 ; form of, 374 • 
 notice of attending to settle, 374; on attachment against witness, 398, 400; on 
 attachment against sheriff for not returning an execution, 437 ; to be filed on ap- 
 peranoe of party attached, 535 ; how answered, 535 ; proceedings if defendant fail 
 to answer, 535; amendment of, 536; proofs on hearing, 536. 
 
 INVENTORY, of property attached, 62-3 ; of property seized on warrant agaikst 
 vessel, &o., 578. 
 
 IRREG-ULARITY, in writ, when waived by appearance, 38 ; in execution, when and 
 how taken advantage of, 195 ; when title of purchaser not affected by, 208 ; in 
 proceedings against special bail, 287 ; in proceedings against sheriff, 289 ; setting 
 aside assessment of damages for, 302 ; setting aside default for, 306, 309 ; what, 
 438 ; motion to set aside proceedings for, 439 ; waiver of, 439 ; within what time 
 motion to be made, 440 ; costs on setting aside proceedings for, 441 ; terms of 
 granting motion, 441 ; setting aside scire facias for, 453. 
 
 ISSUE, on demurrer to plea in abatement, 101 ; on replication to plea in abatement 
 101 ; on demurrer to declaration, 104 ; on plea in bar, 112 ; how disposed o^ 114 • 
 of fact, how tried, 132 ; of law and of fact on same record, 160 ; how disposed of! 
 160. 
 
 41 
 
642 INDEX. 
 
 Jail liiberties, extent of, 44; when defendant entitled to, 44; bond for, 44; 
 
 escape from, 45. 
 JOINDER, of parties, 28 to 31; of different causes of action, 32-3. 
 
 JOINT DEBTORS, judgment against, 167; execution against, 191; scire facias on 
 
 Judgment against, 449, 458. 
 JOINT PROPERTY, wlien may be taken on execution, 191. 
 JOURNAL, for entry of proceedings to be ftirnislied by clerk, 5 ; caption of, 18. 
 
 JUDGES, circuit, how elected, 3 ; orders, when and how obtained, 252-3 ; effect of, 
 253; service of, 253 ; revocation of, 254. 
 
 JUDGMENT, what, 157 ; interlocutory, what, 157 ; final, 158 ; record of, 159 ; on de- 
 murrer, nature and form of, 169 ; for plaintiff, respondeat ouster, 158-9 ; quod re- 
 cuperet, 159; for defendant, to7 capiat, 158, 160; cassetur biUa, 159; where there 
 are issues of law and of fact, 160 ; on issue of fact, 161 ; nature and form of, 161 ; 
 for plaintiff in actions sounding in damages, 161 ; in ejectment, 161 ; in replevin, 
 161 ; for defendant, 161 ; when may be entered, 162 ; motion in arrest of 162 ; 
 costs to be included in, 162 ; against joint debtors, when aU not served with pro- 
 cess, 167 ; in actions against several parties to a biU or note, 168 ; against execu- 
 tors or administrators, 168 ; amendments of, 168-9 ; to be rendered on matter 
 found by verdict, 169 ; motion to set aside for irregularity, not to be made after 
 two years, 169 ; for balance, after setting off costs in appealed cases, 169; on de- 
 fault, 170; for defendant on discontinuance, nolle prosequi, or cassetw Hlla, 170; 
 for plaintiff, on default or confession, 170 ; for defendant, on default or withdrawal 
 of plaintiff, 170; forms of, 171 to 191; in action on bail-bond, 273 ; on attachment 
 agamst sheriff for not putting in bail, 274 ; by confession against sheriff, when bail 
 not put in, 275 ; execution on, against sheriff, 275 ; in original action, when special 
 bail has not been put in, 275 ; on default, when final, 298 ; when interlocutory, 298 ; 
 on assessment of damages by clerk, 301; on assessment of damages by court or jury, 
 301 ; as in oases of non-suit, 333-4 ; for plaintiff on replication or demurrer to plea 
 puis darrein continuance, 335-6 ; motion in arrest of, 336 ; on scire facias, 453 ; on 
 information, 488, 491 ; in favor of person entitled to office, and proceedings thereon, 
 488-9 ; on suggestion of damages by relator, 490 ; in action for forcible entry or 
 detainer, 552 ; in summary proceedings to recover possession of land, 553 ; on ap- 
 peal in the circuit court, 557. 
 
 JUDICIAL CIRCUITS, 3. 
 
 JUDICIAL POWER of the state, in what courts vested, 1. 
 
 JURAT, to affidavit, 37. 
 
 JURISDICTION, of the circuit courts, 1, 2 ; of probate courts, 2 ; of justices' courts, 
 2 ; plea to, 96. 
 
 JURORS, application of, to be excused from serving, 17 ; drawing and summoning, 
 131; demand of, 132; drawing for trial, 135; order for summoning, 135; when 
 talesmen may be summoned, 135 ; order for summoning petit, 147 ; oath of, 147 ; 
 affirmation of, 147 ; oath on application to be excused, 148 ; challenges to array 
 of, 406, 409 ; to polls of, 406, 409 ; principal challenge to, 406; challenge of, to 
 the favor, 406 ; grounds of challenge, 407-8 ; challenge of, how tried, 409. 
 
 JURY, special, 363-4; may be demanded in case of forcible entry or detainer, 550; 
 
 how selected and summoned, 550. 
 JUSTICES OP THE PEACE, jurisdiction of, 2. 
 
 JUSTIFICATION, of bail, 63; notice of, 279, 284-5; time for, 280; how made, 280-1 
 further time for, 283 ; of new or added bail, 283-4; of sureties for costs, 291. 
 
 Liandlord, may be made defendant with tenant in ejectment, 60. 
 
 LAJNDS, summary proceedings to recover possession of, 547 to 565. See Pobcible 
 Entry, PoEoiBiiE Detainee, Possession of Land. 
 
 JiEATB to sue out execution, 193. 
 
 LEGAL NOTICES, how proved, 126. 
 
 LEGISLATURE, acts of, how proved, 124. 
 
 LETTERS PATENT, scire facias to repeal, 449, 450. 
 
 IjEYY, on fieri facias, when and how made, 200-1; effect of, 202. 
 
INDEX. 643 
 
 LIBEL, action on the case for, 23. 
 
 LIEN, upon ships, boats, and vessels, 516-1 ; how enforced, 518 to 594. See Ships, 
 Boats, and Vessels. 
 of mechanics and others upon land for erection or repair of buildings, 594 ; contract 
 to be in writing, acknowledged and recorded, 594 ; to what extent it attaches, 595 ; 
 ■when attaching creditor has preference, 595 ; within what time proceedings to be 
 commenced, 595 ; petition for order of sale, 595-6 ; notice of order, with copy of 
 petition, how served, 596; when and how notice to be published, 596; proof of 
 claims by other creditors, 596 ; contesting claims, 596 ; examination and determi- 
 nation of claims, 596 ; notice of sale, 596 ; certificate of purchase, 596 ; redemption 
 of estate sold, 596; distribution of proceeds of sale, 596; surplus to be paid to 
 owner, 598 ; proceeding to ascertain value of premises in case of prior attachment, 
 598; order of distribution, 598; against whom suit maybe prosecuted, 598-9; when 
 suit may be prosecuted by other creditor, 599 ; when reference may be made to 
 talte proofs, 600; preparation of proceedings, 600; forms of proceedings, 600 to 604. 
 
 LIABILITY, for tortious acts, 29 ; of officers for false return to capias, 48 ; how bail 
 may relieve themselves from, 52. 
 
 LIBERTIES, of jail, 44. 
 
 LIMITATIONS, statute o^ 25. 
 
 LIMIT BOND, 44. 
 
 LIQUIDATED DAMAGES, 142. 
 
 LOCAL ACTIONS, 33. 
 
 mail, service by, 252. 
 
 MALICIOUS PROSECUTION, action on the case for, 23. ■ 
 
 MANDAM US, power of circuit courts to issue, 1 ; what, 463-4 ; when a proper remedy, 
 464 to 410 ; when it does not lie, 465 ; discretionary power of court in issuing or 
 withholding, 410; who may prosecute writ in matter of public right, 411; within 
 what time to be prosecuted, 411-2 ; application for, how made, 472-3 ; affidavit 
 on application for, 412; order to show cause, 412-3; alternative writ of^473; 
 peremptory writ of, 473 ; service of affidavits on motion for, 473 ; notice of motion 
 for, 473 ; hearing of 'motion, 473 ; entitling of rule for, 473 ; to whom writ to be 
 directed, 474; what alternative writ to set forth, 474-5; service of writ, 475; 
 amendment of writ, 475; motion to quash writ, 475-6; return to alternative writ, 
 476-7 ; pleading or demurring to return, 477 ; joinder in demurrer or answer to 
 plea, 478 ; motion for supplementary return, 478 ; argument of demurrer to return, 
 479 ; trial of issue of fact, 479 ; damages and costs on recovery by relator, 479 ; 
 execution to coUect costs, &c., 479 ; form of peremptory writ, 480, 482 ; when fine 
 may be imposed for neglect of duty, 480. 
 
 MARRIAGES, how proved, 126. 
 
 MARRIED WOMEN, when may sue in their own name, 27 ; when to be joined with 
 
 husband, 27. 
 MELIOBA DAMNA, form of judgment where plaintiff elects, 181. 
 MEMBERS OF CONGRESS, privileged from arrest, 40. 
 MECHANICS' LIENS. See Liens of Mechanics. 
 MERITS, affidavit of, 309. 
 
 MISCONDUCT, what constitutes a criminal contempt, 527; what punishable when 
 the rights, &c., of a party may be impaired, impeded, or prejudiced thereby, 530, 
 531. See Contempts. 
 
 MISDEMEANOR, removal, &o , of properly to defraud creditors, 571; answer given 
 on complaint not to be used on trial, 571. 
 
 MISJOINDER OP PARTIES, 28 to 31. 
 
 MISNOMER, may be pleaded in abatement, 77 ; form of judgment on plea of, 177. 
 
 MITIGATING BAIL, 276-7-8. 
 
 MONET, counts, what, 85 ; use of, 85-6 ; payment of, into court, 312 to 316. 
 
 MORTGAGED CHATTELS, interest in, may be sold on eseoution, JS9, 
 
644 I K D E X . 
 
 MOTIONS, in general, what to be entered in special motion book, 5 ; division of, 
 239 ; common, what, 239 ; special, 239, 240 ; common, how entered, 239 ; special, 
 how entered, 240 ; for new trials, when and how entered, 241 ; in arrest of judg- 
 ment, 241 ; diligence in making motions, 241 ; stay of proceedings to enable party 
 to make, 242 ; hearing of, 242 ; counter-affidavits on, 243 ; withdrawal of, 243 ; 
 notices of, 244 ; costs on, 246 ; costs, when payable, 246 ; affidavits on, in general, 
 247 to 250. 
 
 MOTION, for continuance, when to be made, 16; to correct the calendar, 16; in ar- 
 rest of judgment, 162 ; to set aside' default, 30T-8 ; to set aside report of refer- 
 ees, 358 ; for commission to take testimony, 365 ; for leave to proceed to trial not- 
 withstanding commission, 371 ; for attachment against witness, 397 ; to set aside 
 proceedings for irregularity, when to be made, 439, 440 ; for mandamus or order to 
 show cause, 472-3; to quash alternative manda/mus, 475-6; for allowance of 
 common law certiorari, 496 ; affidavit on, 496 ; to quash certiorari, 497. 
 
 Narr'. See Declaration. 
 
 NEW COUNTS, may be added by way of amendment, 89. 
 
 NEW EXECUTION, when aUowed, 196. 
 
 NEW TRIAL, motion for, when and how made, 241 ; for what causes granted, 431 to 
 435; for irregularity, 431 ; on the merits, 432; on the ground of surprise, 432; 
 on the ground of newly discovered evidence, 433 ; when verdict is against law or 
 evidence, 433 ; for misdirection of the judge, Ac, 434 ; granting, matter of discre- 
 tion, 435. 
 
 NIL CAPIAT, judgment of, 158. 
 
 NIL DEBET, when a proper plea at common law, 106. 
 
 NOLLE PROSEQ UI, as to count demurred to, 104 ; when jury improperly sever dam- 
 ages, 144; as to issue of fact, after decision of issue of law, 160; form of judg- 
 ment on, 187-8; to whole declaration, 317, 319; costs on, 318, 319 ; to some of 
 several counts, 318, 320; effect of, 318; as to some of several defendants, 318, 
 319, 320; rules for, 319, 320. 
 
 NON-BAILABLE ACTIONS, how commenced, 34. 
 
 NON EST FACTUM, when a proper plea at common law, 106. 
 
 NON EST INVENTUS, return of; to capias, 46 ; return o^ to ca. sa., 219, 236. 
 
 NON-JOINDER, of parties, 28 to 31. 
 
 NON-PROS., form of judgment of, 184. 
 
 NON-SUIT, at trial, cannot be compelled, 30 ; plaintiff may submit to, 134 ; on de- 
 fault, 146; form of, 146; form of entry of, 146; judgment on, 170, 186, 188; 
 judgment as in case of, 189, 333-4 ; on failure to furnish bill of particulars, 345, 
 349 ; on neglect or refusal to produce books and papers, 391. 
 
 NOTARY PUBLIC, when to perform duties of circuit court commissioner, 4, 5 ; offi- 
 cial acts of, how proved, 125. 
 
 NOTARY'S CERTIFICATE, 125 ; when evidence, 125. 
 
 NOTE OP ISSUE, for clerk, 120-21. 
 
 NOT POUND, return of, to capias, 46; return of, to ca. sa., 219, 236. 
 
 NOTICES IN GENERAL, 250-51. 
 
 NOTICE, of retainer, 50; of special bail, 53; of rule to plead, 57; of issuing attach- 
 ment, 64^5 ; of exception to sureties in replevin, 73 ; of entry of appearance by 
 defendant, 75; of special mutter of defence, when necessary, 108; object of, 109; 
 what to contain, 110; requisites of, 111; form of, 112; of set-off, 112; form of, 
 113; of recoupement, 113-14; effect of, 114; of trial may be given by either 
 party, 117; when to be served, 119; requisites of, 119; form oi^ 120; counter- 
 mand of, 121-2 ; of assessment of damages in replevin, 119-20; to produce papers 
 on trial, 128 ; of special matter of defence, not part of record, 146; of taxation 
 of costs, 162 ; of application for leave to issue execution, 193 ; of trial, 251, 257 ; 
 of assessment, 252; in appealed cases, 252, 257; countermand of, 252; of sub- 
 stitution of attorney, 262; of rule that sheriff return writ, 267 ; of common bail, 
 278; of puttmg in special bail, &c., 279, 286; of justification of bail, 282-3-4; 
 
INDEX, 645 
 
 ISOTIOE— continued. 
 
 of adding bail and justification, 283-4 ; of adding and justifying different bail, 284 ; 
 that bail have justified, 285 ; of rule that sheriff put in special bail, 285 ; of filing 
 security for costs, 291, 293; of exception to sureties for costs, 294; of justifica- 
 tion of sureties, 294; of assessment of damages by clerk, 299, 304; of assessment 
 of damages by court or jury, 301, 304; of withdrawal of plea, 306 ; of payment 
 of money into court, 313, 316 ; of special matter in bar, puis darrein continuance, 
 336; toplaintiflf to furnish bill of particulars, 349 ; of appointment" of referees, 356; 
 of hearing before referees, 356 ; of striking a jury, 363-4; of motion for commis- 
 sion, 366, 372 ; of presentation of interrogatories for allowance, 361, 314; of re- 
 ception of commission, '369; of examination of witness conditionally, 317, 379, 
 382-3; of examination of witness to perpetuate testimony, 384-5; to produce 
 paper on trial, 386 to 388 ; of settling bill of exceptions, 412 ; of settling case, 
 423; of rule to plead to scvre facias, 452,460 ; of special matter of defence to scire 
 facias, 453; of time and place of return of habeas corpus or certiorari, 508, 513 ; 
 of issuing warrant for seizure of ship, boat, or vessel, &c., 579 to 588; to attend 
 distribution of proceeds of sale of ship, boat, or vessel, 582, 590 ; of order to ap- 
 pear and answer in proceeding to enforce mechanic's lien, 596, 601-2; of appli- 
 cation for order to sell real estate of religious corporation, 605, 607. 
 
 NUISANCE, action on the case for, 21 ; when plaintiff to have judgment for removal 
 of, 21. 
 
 NULLA BONA, return of, 216, 234-5. 
 
 NUL TIEL RECORD, plea of, when proper at common law, 107. 
 
 Oatll, of appraisers of property attached, 63 ; to jury on trial of issue, 147 ; to 
 witness on trial, 147 ; to' interpreter, 148 ; on application of juror to be excused, 
 148; of party to loss of paper, 148 ; of triers upon a challenge for favor, 148 ; of 
 witness on a challenge, 148 ; of party touching his ability to procure attendance 
 of subscribing witness, 149 ; of officer attending jury, 149 ; of referees, 361 ; to 
 witness on proving execution of deed, 611; of commissioners to admeasure dower, 
 614, 616. 
 
 OFFICERS, suits against, 33; of courts, when privileged from arrest, 40; attending 
 jury, oath of, 149; what may tax costs, 162. 
 
 OFFICERS OF THE CIRCUIT COURTS, 2. 
 
 OPENING RULE, 245. 
 
 OPPOSING JUSTIFICATION OF BAIL, 281; affidavit for, 286. 
 
 ORDERS, of course and by consent, to be entered in common rule book, 5. 
 
 ORDER, for sale of perishable property attached, 67; dissolving attachment, 69; to 
 show cause of action, 277 ; to discharge defendant on indorsing appearance, 278; 
 to discharge defendant on common baU, 278 ; for mitigation of bail, 278 ; to show 
 cause of action, and why supersedeas should not issue, 278; for supersedeas, 278 ; 
 for commiitiiur on surrender by bail, 289 ; to show cause why exoneretur should 
 not be entered, 290; exonerating bail, 290; for security for costs, 291 to 294; 
 extending time to declare or plead, 295 ; to show cause why particulars should 
 not be amended, 349 ; to stay proceedings for the purpose of moving to change the 
 venue, 353 ; of commissioner on appUcation to transfer a cause, 354; to transfer 
 cause, 355; to attend examination of witne-ss conditionally, 377, 380; for pro- 
 duction of books and papers, 390, 395 ; to show cause why mandamus should 
 not issue, 472, 473, 481 ; hearing on return of, 473 ; for letting prisoner to bail on 
 certiorari, 514; for discharge of prisoner, 524; for remanding prisoner, 524; that 
 prisoner be let to bail, 525 ; for sale of ship, boat, or vessel, to satisfy liens, 581, 
 682 ; for distribution of proceeds of sale, 584, 591 ; for sale of lands to satisfy 
 mechanic's lien, 597 ; for sale of real estate of rehgious corporations, 605, 608. 
 
 ORIGINAL WRIT, what, 34. 
 
 OUSTER, judgment of, on information, 488, 491. 
 
 OUTER DOOR, of dwelUng house, when not to be broken in serving process, 199. 
 
 OYER, demand of, 95 ; time to plead after demand of, 96 ; in what cases demandable, 
 
 340 ; when and how demanded, 341 to 343 ; effect of variance between oyer and 
 
 deed, 343 ; form of demand, 343. 
 
646 INDEX. 
 
 Papers, to be furnished on argument of demurrer, 115 ; notice to produce on 
 trial, 128, 386 to 388 ; discovery of, 128 ; in hands of witnesses, how obtained, 130 ; 
 preparation of, 254 ; entitling, 255 ; compelling discovery and production of, 388 
 to 396. 
 
 PAROL EVIDENCE : See Evidence. 
 
 PARTICULARS, of plaintiffs demand, when may be required, 343-4 ; when demand 
 of may be made, 344-5 ; notice requiring particulars, 345, 349 ; effect of neglect to 
 furnish, 345 ; requisites of, 345-6-7 ; application for leave to amend, 346 ; variance 
 between particulars and proof, 341-8 ; form of, 349j of defendant's set-off, how 
 obtained, 348; non-suit of plaintiff for not furnishing bill, 349. 
 
 PARTIES, to actions ex contractu, 28-9 ; to actions ex delicto, 29 ; misjoinder or non- 
 joinder of, 28-9; when privileged from arrest, 40 ; how compelled to testify, 130; 
 oath of, as to loss or destruction of paper, 148 ; oath of, aa to ability to procure 
 attendance of Bubscribing witness, 149. 
 
 PAYMENT, of money into court, 94 ; of surplus moneys on sale of real estate under 
 execution, 212; on redemption of real estate, 211 ; of money into court, in what 
 cases allowed, 312 ; mode of proceeding on, 313 ; effect of, 313-14-15 ; coats on, 
 315-16; rule for, 316; notice of, 316. 
 
 PEREMPTORY MANDAMUS. See Mandamus. 
 
 PERISHABLE PROPERTY, attached, may be sold, Gt ; application for sale of, 67 ; 
 judge's order for sale of, 67 ; salo of, how made, 67. 
 
 PERPETUAL STAY, of execution, 196, 220. 
 
 PERSONAL PROPERTY, subject to execution, 199, 200 ; levy and sale of, on execu- 
 tion, 200 to 203 ; exemption of, 204^5. 
 
 PERSONALLY SERVED, return of, to summons, 55. 
 
 PETITION, for discovery and production of books and papers, 389, 391 to 394 ; for 
 habeas corpus ad testificandum, 401-2 ; forms of, 403 ; affidavit verifying, 401, 403 ; 
 for habeas corpm or certiorari to inquire into cause of detention, 500 ; by whom 
 to be signed, 500 ; to whom to be addressed, 500 ; by whom to be made, 500 ; 
 what to state, 501 ; form of, 527 ; for sale of land subject to mechanic's lien, 597, 
 600 ; what to contain, 596, 600 ; when to be indorsed for surety of costs, 596 ; order 
 to appear and answer on filing, 596; for order of sale of real estate of rehgious 
 corporations, 606. 
 
 PLAINTIFF, plea in abatement to person of, 96 ; forms of verdict for, 149 to 154. 
 
 PLEA, withdrawal of, 305; to answer to mandamus, 477 to 479 ; verdict for relator 
 on, 479 ; to information, 487 ; to suggestion of damages after judgment upon in- 
 formation, 489; of corporation to information, 491 ; to complaint for forcible entry 
 or detainer, 550 ; to complaint for unlawfully holding over, 553 ; to declaration 
 on bond for discharge of ship, &c., 581. 
 
 PLEADING, what, 74; order of, 75, 96 ; time for, 95-6 ; at common law, 106 to 109; 
 when copy of to be served, 74. 
 
 PLEADINGS, of what they may consist, 74; serving copies of, 74; on writ of scire 
 facias, 453 ; on mandamus, 479. 
 
 PLEAS, division of, 96 ; in abatement, what, 96 ; when may be interposed, 96 ; order 
 of pleading, 96; parts of, 97; title, 97 ; commencement, 97; body, 97-8; conclu- 
 sion, 97-8, 101 ; qualities of, 98; pleas by several defendants, 98 ; verification of, 
 99 ; service of, 99 ; issue on, 101 ; in bar, what, 105 ; at-,common law, 106 to 108 ; 
 special, not allowed, 108 ; effect of general plea under the statute, 108 ; notice of 
 special matter under, 108 ; object of notice, 109 ; when notice of defence neces- 
 sary, 110-11^ notice of matter of estoppel, 112 ; form of notice of special matter of 
 defence under, 112. 
 
 PLUEIES CAPIAS, 48; summons, 55 ; writ of replevin, 74; fi.fa., 216. 
 
 POSSESSION 6P LANDS, summary proceedings to recover, 652 ; in what cases 
 authorized, 552-3; who may make complaint, 553; form of complaint, 553, 561; 
 summons on complaint, 553, 561 ; how summons served, 553; plea to complaint, 
 553; trial of issue on complaint, 553-4; proofs on trial, 554; when privity must 
 exist to entitle complainant to recover, 554-5 ; what possession will prevent a 
 recovery, 555 ; adjournment of hearing, 555 ; proceeding on failure of defendant 
 
INDEX. 647 
 
 POSSESSION OP LAlSTlS— continued. 
 
 to appear, 555 ; writ of restitution, when to issue, 555 ; appeal to circuit court, 
 556 ; trial in circuit court, 557. 
 
 POSTPONEMENT OP TRIAl, 132, 404 to 406 ; affidavit for, 133 ; affidavit on se- 
 cond application, 133 ; causes for, 133 ; costs on, 134. 
 
 PRECEPT, to commit for non-payment of money, 532, 544 ; to restore possession in 
 action for forcible entry or detainer, 552, 557. 
 
 PREFERENCE, of executions, 194^5. 
 
 PRELIMINARY CONSIDERATIONS, to commencement of actions, 24. 
 
 PREPARATION, for trial, 117 to 131 ; of papers, 256; for assessment of damages on 
 default, 300. 
 
 PRIORITY, of executions, 194-5. 
 
 PRISONER, when entitled to habeas corpus or certiorari, 499, 500. See Habeas 
 Corpus and Ceetiobabi. 
 
 PRIVILEGE, from arrest, of ambassadors, &o., 38; of females, 39 ; of defendants once 
 held to bail, 39 ; of representatives in congress, 40; members of state legislature, 
 40 ; attorneys, solicitors and counsellors, 40 ; of other officers of courts, 40 ; par- 
 ties to suits, 40 ; witnesses, 41 ; electors, 41 ; persons entitled to, how discharged, 
 263-4. 
 
 PROBATE COURTS, 1, 2. 
 
 PROCESS, by whom to bo served, 7 ; when coroner to execute, 7 ; compeUing return 
 of, 264 to 271, 532. 
 
 PROCLAMATION, on opening of court, 16; of recesses and adjournments, 18. 
 
 PRODUCTION, of papers at trial, notice for, 386 to 388 ; of books and papers, 388 to 
 395. 
 
 PROPERT, when to be made in declaration, 80. 
 
 PROHIBITION, writ of, 484. 
 
 PROOF, of written instrument, when not required, 112; of service of papers, 269; on 
 assessment of damages by clerk, 300 ; on assessment by court or jury, 302 ; of 
 execution of deeds, 609, 610. 
 See Etidenoe. 
 
 PROMISSORY NOTES, counts on, 90, 91; how proved, 127. 
 
 PROSECUTING ATTORNEY, when to have notice of return of habeas corpus or cer- 
 
 iiora/ri, 508; when to prosecute attachment bond, 538. 
 PUBLICATION, of notice of attachment, 64 ; of rule for appearance of defendant in 
 
 scire facias, 452 ; of rule to appear and plead to information, 487, 491. 
 PUBLIC BOOKS, when leave to inspect may be granted, 395, 398 ; affidavit to move 
 
 for leave to inspect, 396 ; rule for leave to inspect, 397. 
 PUBLIC OFFICERS, suits against, where brought, 33. 
 PUIS DABEEIN CONTINUANCE plea, when pleadable, 334 ; effect of, 334^5 ; 
 
 amendment of, 335; notice of special matter in bar, 336; Judgment for plaintiff on 
 
 replication or demurrer to, 335-6. 
 PUNISHMENT, of witness for disobeying subpoena, 398-9 ; for contempts, 628 ; 
 
 for misconduct which may impair or prejudice the rights of a party, 530, 536 ; of 
 
 fraudulent debtors, 565 to 576. 
 PUTTING OFF TRIAL. See OoNTDinANCE. 
 
 Qualifications, of bail, 281- 
 
 QUALITIES, of the declaration, 76 ; of a plea in abatement, 98. 
 QUANTUM MERUIT, count, 84. 
 QUANTUM VALEBANT, count, 85. 
 QUESTION, reserved for opinion of supreme court, 429, 430. 
 QUOD RECUPERET, judgment of, 158, 159. 
 
 QUO WARRANTO, power of circuit courts to issua, 1. See Infokmation m the 
 Natdeb of a Quo Wabeanio. 
 
648 INDEX. 
 
 Real Actions, 19, 20, 21. 
 
 REAL ESTATE, actions relating to, 19, 20, 21 ; what subject to execution, 206 ; 
 sale of; on execution, 206 ; re-sale of, on execution, 208 ; redemption of, from sale 
 on execution, 209 to 212 ; of religious corporations, 604 to 608. 
 
 EEBUTTEE, 74. 
 
 EECEIPTOE, of property taken on execution, 201, 202. 
 
 RECORD, of judgment, 158-9. 
 
 RECORDS, how proved, 122 ; of courts of this state, 123 ; of courts of other states, 
 123; of courts of foreign countries, 125. 
 
 EEGOUPEMENT, notice of, 113; judgment in case of, 114. 
 
 REDEMPTION, of land sold under execution, 209 to 212 ; of lands sold for satisfac- 
 tion of mechanic's lien, 597. 
 
 REFEREES, when and how appointed, 355 ; notice of appointment of, 356 ; notice of 
 hearing before, 356 ; hearing before, 356 ; adjournment of hearing by, 356-7 ; 
 report of, 357, 361; objections to report of, 358 ; motion to set aside report of, 
 358; setting aside report, 358; confirmation of report, 359; compensation of, 360. 
 
 REFERENCE, of cause to referees, 117 ; to auditors, 117-18; on defendant's default 
 to assess damages, 297, 301, 304; of cause to referees, in what cases and how 
 made, 355 ; hearing on, 356 ; notice of hearing on, 356 ; adjournment of hearing on, 
 357 ; report of referees, 357, 361 ; objections to report, 358 ; setting aside report, 
 358, 362 ; confirmation of report, 359, 362 ; to take proofs in regard to alleged 
 misconduct, 540 ; to ascertain loss occasioned by misconduct, 540. 
 
 REJOINDER, 74. 
 
 RELIGIOUS CORPORATIONS, sale of real estate of, 604; order for, on application 
 of corporation, 605, 608 ; notice of application, 605, 607 ; by whom application to be 
 made, 606; contents of petition for, 606; form of petition, 607. 
 
 REMAINDERMAN, may be admitted to plead to action of ejectment against ten- 
 ant, 60. 
 
 REMITTITUR, as to lesser damages, 144. 
 
 RENEWING MOTION, 243. 
 
 REPLEADER, 436-7. 
 
 REPLEVIN, uses of action of, 22 ; writ of, 70 ; affidavit to be annexed to writ, 71 ; 
 execution of writ, 71; appraisal of property taken, 71; bond to defendant, 71-2; 
 when property to be restored to defendant in, 72 ; defendant in, to be summoned, 
 72; return to writ, 72; excepjiou^to sureties, 72-3; justification by sureties, 73; 
 judgment of discontinuance on failure of sureties to justify, 73 ; new bond may be 
 allowed, 73; appearance in action,. 73; proceedings when only part of property 
 found, 73-4; verdiotof juryin, 141; forms of verdict in, 151-2, 156 ; forms of judg- 
 ment in, 172, 176-7-8, 184, 186-7; execution on judgment for plaintiff in, when 
 property was not replevied, 214; forms of executions in, 231, 233. 
 
 REPLICATION, 74. 
 
 REPORT, of assessment of damages by clerk, 300 ; exceptions to, 300 ; form of, 304 ; 
 of referees, 357 ; setting aside, 358 ; confirmation of, 359 ; form of, 361 ; of audi- 
 tors, 360, 363; of proceedings for collection of demand against ship, boat, or vessel, 
 584, 593 ; of commissioners to admeasure dower, 614, 615 ; confirmation of, 614, 
 617. 
 
 REPRESENTATIVES, in congress, privilege of, from arrest, 40 ; in state legislature, 
 privileged from arrest, 40. 
 
 RESALE, of personal property on execution, 203 ; of real estate on execution, 208. 
 RESCUE, return of, to capias ad respondendum., 46. 
 RESERVATION, of question for opinion of supreme court, 429, 430. 
 RESPONDEAT OUSTER, judgment of, 158-9 ; form o^ 171. 
 RESTITUTION, 196 ; writ of, in ejectment, 230. 
 RETAINER, notice of, 50. 
 RET A NATION OF COSTS, 163. 
 
INDEX. 649 
 
 EETORNO EABENDO, writ of, in replevin, 231. 
 RETRAXIT, judgment upon, \10. 
 
 BETUEN, to capias ad respondendmn, ie~1 ; officer liable for false, 48 ; io fieri facias, 
 how made, 216 ; different species of, 215; form of, 234-5 ; of process, how com- 
 peUed, 264 to 271, 632 ; attachment against officer for not making, 266 : of com- 
 mission to take testimony, 368 to 310, 375 ; of habeas corpus ad testifiamdium, 402-4 ; 
 to alternative writ of mandamus, 476-7, 483 ; to common law ceriiora/ri, how 
 made, 497 ; to writ of Aofteas corpus or certiorari, 504-5 ; how compelled, 505 ; 
 forms of, 522-3 ; to warrant for seizure of ship, boat, or vessel, 678 ; of inventory 
 taken by officer executing warrant, how compelled, 684. 
 
 REVERSIONER, may be admitted to plead to action of ejectment against tenant, 60. 
 
 REVOCATION, of judge's order, 254; effect of, 254. 
 
 RULE, to plead, 57 ; notice of, 57 ; requiring sheriff to return writ, 264, 266; notice of, 
 267 ; for sheriff's default in not returning writ, 267 ; for attachment against coro- 
 ner, 269 ; on appearance of coroner on attachment, 270 ; on default of sheriff to 
 appear on return of attachment, 270; on appearance of sheriff on attachment, 270; 
 for discharging attachment against sheriff, 271 ; imposing fine on sheriff, 271 ; by 
 consent imposing fine on sheriff, 271; that sheriff put in special bail, 285 ; notice 
 of, 285 ; for attachment for not putting in bail, 286 ; for appearance after default 
 in not putting in bail, 286 ; for default in not pleading, 296, 303 ; making default 
 absolute, 297, 303; for interlocutory judgment and reference, 298, 304; for in- 
 terlocutory judgment on withdrawal of plea, 306 ; for judgment in debt on bond 
 or on judgment on withdrawal of plea, 306 ; to set aside default, 309 ; for default 
 in not joining in demurrer, 309 ; to set aside default for irregularity, 309; to set 
 aside regular default, 309 ; for default in not joining in demurrer, 309 ; for mak- 
 ing default absolute and for judgment, 310 ; on paying money into court, 313,316; 
 to discontinue, 316-17 ; to consolidate actions, 333 ; that plaintiff be non-suited for 
 not furnishing bill of particulars, 349 ; appointing referees, 360 ; to compel report 
 of referees, 361; to set aside report of referees, 362 ; confirming report of referees, 
 362 ; for appointment of auditors, 362 ; for a special jury, 364 ; for production of 
 books and papers, 390, 395; for attachment against witness, 397, 399; discharging 
 attachment against witness, 401 ; imposing, a fine on witness, 401 ; to show cause 
 why mamdamus should not issue, 472-3, 481; hearing on return of, 473 ; entit- 
 ling, 473; for alternative mandamus, 481; to plead to information, 487, 491; for 
 appearance of defendant, 487, 491 ; to plead to suggestion of damages, after judg- 
 ment upon information, 489 ; to show cause why party accused should not be pun- 
 ished for contempt, 628 ; prescribing punishment for contempt on conviction, 
 528 ; for return of process, 532 ; to show cause why attachment should not issue, 
 533 ; service of, 533. 
 
 RULES, division of, 239 ; common, what, 239 ; special, what, 240, 244; forms of, 244-5 ; 
 service of, 246 ; when may be opened, 245. 
 
 Sale, ef personal property on execution, 202-3; setting aside, and re-sale, 203; of 
 real estate on execution, 206-7 ; setting aside, and re-sale, 207-8-9 ; redemption 
 of real estate from, 209 to 211 ; sheriff's certificate of sale, 208, 236 ; sheriff's 
 deed, 212, 213, 237 ; of ship, boat, or vessel, to satisfy liens, 582; of land to sat- 
 isfy mechanic's Hen, 597 ; distribution of proceeds of sale, 597. 
 of real estate of religious corporations, 604 to 608. 
 See Relisious Coepoeations. 
 
 SCIRE FACIAS, what, 449 ; nature of, 449 ; in what cases it lies, 449, 450, 461; 
 issue, teste, and return of, 450; what to set forth, 451 ; service of; 451-2 ; return 
 of scire feci to, 451, 459 ; rule for appearance of defendant, 452, 460 ; proceed- 
 ings on publication of rule for appearance, 452 ; rule to plead to, 452 ; judgment 
 by default, 452-3 ; amendment of, 452-3 ; setting aside for irregularity, 453 ; 
 pleading to, 453 ; assessment of damages on, 453 ; costs on, 453 ; execution on 
 judgment, 453-4; forms of writs of, 464 to 458 ; forms of return to, 459. 
 
 SEALED VERDICT, 139. 
 
 SEARCH "WARRANT, when to issue for books and papers pertaining to an ofSce, 
 489. 
 
 SECURITY, for costs, when demandable, 290; when court may order, 294; how- 
 given, 291 to 294. 
 
650 INDEX. 
 
 SENATORS IN CONGBBSS, privaege of, from arrest, 40. 
 
 SERVICE, of papers in general, 256-1 ; of capias, 42 ; of summons, 55 ; acceptance 
 of, 56 ; of declaration and notice of rule to plead, 5T-8 ; sheriff's certificate of, 
 68 ; of attachment, 62 ; of citation to show cause against dissolution of attach- 
 ment, 68 ; of order dissolving attachment, 70 ; of writ of replevin, 71-2 ■ of dec- 
 laration when suit is commenced by writ, 88-9 ; of demurrer, 103 ; of notice of 
 motion for leave to issue execution, 193 ; of/?, fa , 199, 200 ; of special rules, 245 ; 
 of judges' orders, 253 ; by maU, how made, 257 ; by posting in clerk's ofSce, 257, 
 258; proof of, 259; admission of, 259; of order to show cause why defendant 
 should not be discharged, or bail mitigated, 276; of order for discharge, 276-7; 
 of habeas corpus ad testificandum, 402 ; of habeas corpus or certiorari, by whom 
 and how made, 503; of scire facias, 451; of mandamus, 475; of rule to show 
 cause why attachment should not issue, 533, 640 ; of warrant on complaint for 
 forcible entry or detainer, 549, 550 ; of venire for jury in case of forcible entry or 
 detainer, 550 ; of summons on complaint for unlawfully holding over, 553. 
 
 SET-OFF, notice of, 112 ; form of notice, 113 ; form of verdict for balance due on, 
 155 ; of execution, 204 ; fi. fa. on judgment for defendant for balance of, 225 ; par- 
 ticulars of, when and how demandable, 348. 
 
 SETTLEMENT, of interrogatories, 366-7 ; of bills of exceptions, 412-13 ; of special 
 verdict, 419, 420 ; of special case, 423. 
 
 SEVERAL COUNTS in declaration, 83-4. 
 
 SEVERANCE OF ACTION, when may take place, 134. 
 
 SHERIFF, election of, 6 ; appointment of under-sheriff and deputies by, 6, 7 ; not to 
 appear as attorney, kc, 7 ; to serve process, 7 ; delivery of capias to, 37 ; service 
 of capias by, 42 ; bail-bond to, 42 ; bond to, for jail liberties, 44 ; liability of, for 
 escape, 45 ; returns to capias by, 46-7 ; Hable for false returns, 48 ; proceedings 
 against, to compel return of process, 264 to 271 ; action by, on bail-bond, 274; 
 proceedings against, to compel appearance, 274 ; attachment against, for not put- 
 ting in special bail, 274; rule that sheriff put in special bail, 285 ; rule for attach- 
 ment against, for not putting in baU, 286 ; judgment against, on attachment, 274; 
 setting aside proceedings for irregularity, 288 ; certificate of a commiitiiur of de- 
 fendant, 289 ; how compelled to return execution, 437. 
 
 SHERIFF'S SALES on execution, how proved, 126. 
 
 SHIPS, BOATS, AND VESSELS, in what cases subject to a lien, 676-7 ; appUcation 
 for warrant to enforce lien, how and to whom made, 578 ; how warrant executed, 
 578; no other warrant to issue, 579; notice of issuing warrant, &c., 579; how hen 
 may be lost, 579 ; delivery of account of claims by other creditors, 580; order for 
 discharge of warrant on bond being given, 580; suit on bond, 580; declaration 
 and plea in suit on bond, 581 ; order to sheriff to sell, 581 ; when part of property 
 only to be sold, 581-2 ; sale, how made, 582 ; costs of proceedings, 582 ; notice to 
 attend distribution of proceeds of sale, 582 ; hearing of proofs and allegations, 
 and distribution of proceeds, 582-3-4; how claims contested, 584; trial of con- 
 tested claims, 584; appeal to the circuit comi;, 684; report of proceedings to be 
 filed with clerk of circuit court, 584; effect of report as evidence, 584; power of 
 circuit court to correct or amend report, 584 ; compelling officer to return inven- 
 tory and pay over moneys, 584 ; fine may be imposed on juror or witness for failure 
 to attend, &c., 684^-5 ; execution for collection of fine, 585 ; transfer of proceeding 
 in case of removal, &e., of officer, 585; form of proceedings, 585 to 594. 
 
 SHOWING CAUSE OF ACTION, 276; order for, 277. 
 
 SIGNATURE, to written instrument, proof of, 127. 
 
 SIMUL GUM, capias, 48; summons, 56. 
 
 SLANDER, action on the case for, 23. 
 
 SOLICITORS, when privileged from arrest, 40. 
 
 SON ASSAULT DEMESNE, 108. 
 
 SPECIAL BAIL, within what time to justify, 280; notice of justification, 280, 284; 
 proceedings if baU fail to justify, 280-1 ; qualifications of, 281 ; who not compe- 
 tent, 282 ; allowance of, 282 ; examination as to their qualifications, 282-3 ; fur- 
 ther time to justify, 283 ; adding new, 283 ; acknowledgment and justification of 
 added bail, 283 ; notice of adding and justification of, 283-4; notice of justifying 
 different, 284 ; notice that bail have justified, 285 ; rule that sheriff put in, 285 ; 
 
INDEX. 651 
 
 SPECIAL BAlL—contiuaed. 
 
 notice of rule that sheriff put in, 285; afSdavit of service of notice of rule to put 
 in, 286 ; rule for attachment for not putting in, 286 ; notice of exception to, 286 ; 
 afBdavit to oppose, 286; may take advantage of irregularity, 281; surrender of 
 principal by, 28'?-8 ; time for sheriff to put in 288 ; exomreiur on surrender by, 
 290. 
 
 SPECIAL CASES, kinds of, 422 ; agreed upon by parties before judgment, 422 ; made 
 after judgment, 422-3 ; settlement of, 423 ; removal of, for revie-w, 424-5 ; entitling 
 of, 425 ; what to set forth, 425 ; form of, 426 to 429. 
 
 SPECIAL JURY, 118 ; when ordered, 363 ; motion for, how made, 363 ; mode of 
 striking, 363; certifying and summoning, 364; rule for, 364; notice of striking, 
 364. 
 
 SPECIAL MOTIONS, book to be provided by clerk, 5 ; what, 239, 240 ; entry of, 
 240-1 ; within what time to he entered, 241 ; order to stay proceedings to enable 
 party to make, 242 ; hearing o^ 242 ; counter affidavits on, 243 ; withdrawal of, 
 243 ; notices of, 244; costs on, 246-'7 ; afidavlts for, in general, 24t to 250. 
 
 SPECIAL PLEAS, in bar, when necessary at common law, 106 to 108 ; aboUshed by 
 statute, 108 ; special notice substituted for, 108-9. 
 
 SPECIAL VEEDICT, minute of, at trial, 419 ; settlement of, 419, 420 ; what it must 
 state, 420 ; amendment of, 421 ; form of, 421. 
 
 STATE LEaiSLATUBE, members of, privileged from arrest, 40. 
 
 STATUTES, of this state may be read in evidence, 122 ; of other states, how made evi- 
 dence, 123. 
 
 STAT OF EXECUTION, 196 ; when writ of error operates as, 193. 
 
 STAT OE PROCEEDINGS, return of, to capias, il ; to obtain time to make motion, 
 242 ; effect of order for, 242 ; in action on bail-bond, 2V2-3 ; on order to file secu- 
 rity for costs, 291, 294; on payment of debt and costs, 322; in what cases allowed, 
 322 to 328; rules for, 328; on order for discovery, &c., of books and papers, 390. 
 
 STIPULATING. See Agreements. 
 
 STOCK, in corporation, how taken on execution, 201. 
 
 STTLB OP PROCESS, 35. 
 
 SUBMITTING CAUSES, on a case made, 422. 
 
 SUBPOENA, what, 129 ; how served, 129 ; duces iectrni, when to issue, 130. 
 
 SUBSTITUTING BAIL, 283-4. 
 
 SUBSTITUTION OP ATTORNET, 260 to 262. 
 
 SUGGESTION, of damages by relator after recovery of an office, 489 ; entry of rule 
 to plead to, 489 : service of notice of rule, and copy of suggestion, 489 ; plea of de- 
 fendant to, 489 ; trial of issue on, 489 ; assessment of damages on, 489. 
 
 SUITS, where to he brought, 33. 
 
 SUMMING UP, on trial, 137-8. 
 
 SUMMONS, commencement of suit by, 34; what, 54; form of, 54; when to be in- 
 dorsed by surety for costs, 55 ; how served, 55 ; returns to, 55 ; aXias and pluries 
 writs of, 55; simul cum, 55; aoceptaitoe of service of, 56; appearance on, 56; for 
 witness to be examined conditionally, 311, 380; on filing information, 486, 491; 
 how served and returned, 486, 491 ; publication of rule for appearanafi on return 
 of writ served, 487 ; form of, 493 ; on complaint for forcible entry or detainer, 549, 
 558 ; on complaint for unlawfully holding over, 553, 561 ; service of, 553 ; to grant- 
 or to hear proof of execution of deed, 609-10 ; affidavit on application for, 610. 
 
 SUNDAT issue or delivery of writ on, void, 37 ; certain days to be treated as, 37. 
 
 SUPERSEDEAS, return of discharge on, to capias, 47 ; in case of neglect of plaintiff 
 to charge defendant in execution, 217, 338 ; to discharge from custody on a capias, 
 277 279; affidavit for, 338 ; proceedings to obtain, 338 ; form of, 339. 
 
 SUPREME COURT, 1. 
 
 SUKETT FOR COSTS, indorsement of, on capias, 35-6-7 ; indorsement of summons 
 by, 55 ; indorsement of attachment by, 61. 
 
652 INDEX. 
 
 SUREERUTTEE, 74. 
 
 SUEREJOINDEB, 1i. 
 
 SURRENDER, by special bail, 62 ; of principal 'by bail, 281-8 ; order for a commiitUw 
 on, 289. 
 
 SURVIVOR, of actions, 21 ; how execution issued against, 196. 
 
 Tales jurors, 136. 
 
 TAXATION OP COSTS, 162 ; by what ofBcers, 162 ; notice o^ 162 ; appeal from, 1 63. 
 
 TENDER, in what cases may be made, 95, 321 ; acceptance of, 321. 
 
 TERMS OF COURT, 16. 
 
 TESTATUM, capias, AS; fi.fa., 216, 221-8. 
 
 TESTE, of capias ad respondendwm, 35. 
 
 TESTIMONY, taken conditionally, 118, 316 to 384 ; when and how taken on a com- 
 mission, 365 to 312 ; perpetuating, 384r-5; of prisoner, how obtained, 401, 408. 
 
 TIME, of declaring, 15-6; for pleading, 95-6; how computed, 95 ; for joining in de- 
 murrer, 103 ; for complying with rules, how computed, 240, 258 ; to be noted in 
 entry of common rule, 239 ; for making motions, 241 ; to declare or plead, how 
 obtained, 295; order for, 295; for prosecution of mandoTOMS, 411-2. 
 
 TITLE, of declaration, 16 ; of plea in abatement, 91. 
 
 TRANSFER, of cause for trial on account of disqualification of judge, 352 to 355. 
 
 TRANSITORY ACTIONS, 33. 
 
 TRAVERSE, 100. 
 
 TREATING plea as a nullity, 99. 
 
 TREBLE DAMAGES, 143-4. 
 
 TRESPASS, kinds of, 22 ; on the case, when it lies, 22; quare clausum fregii, object 
 of, 20 ; forms of verdicts in, 152 to 156. 
 
 TRIAL, of issue of fact, preparation for. 111 to 131 ; notice of, 119, 120 ; note of 
 issue, 120, 121 ; countermand of notice of, 121-2 ; notice to produce papers on, 
 128; postponement of, 132; mode of, 132; how conducted, 135 to 140; by the 
 court, 141 ; entry of, 149; postponement of, on motion, 404 to 406 ; terms of post- 
 ponement of, 405-6 ; of challenge to jurors, 409 ; new trial, 431 to 435 ; of issue 
 on return of habeas corpus or certiorari, 512 ; of issue in case of forcible entry or 
 detainer, 550, 551 ;, in case of unlawful holding over, 655. 
 
 TRIERS, of chaUenge to jury, 409. 
 
 TROVER, when it lies, 23. 
 
 Unsold, for want of buyers, return of, 216, 236. 
 USES OE ACTIONS, 20 to 23. 
 
 Tariance, between deed and oyer, 343 ; when irmnaterial, 343, 348. 
 
 VENDITIONI EXPONAS, when to issue, 215 ; form of, 232. 
 
 VENIRE, for jury in case of forcible entry or detainer, 550. 
 
 VENUE, in declaration, 16 ; change of, 118 ; change of, on cause shown, 350 to 352 ; 
 by whom and how obtained, 350 ; stay of proceedings for the purpose of motion, 
 350, 353 ; change of, in case of disability of judge, 352-3 ; rule for change of, 354. 
 
 VERDICT, 139, 140 ; sealed, 139 ; irregular if determmed by lot, 139 ; when to state 
 amount allowed each defendant as a set-off, 145 ; amendment of, 145 ; special, 
 145 ; form of, 146-6 ; forms of, 149 to 156 ; special, see Speoiai Verdict. 
 
 VESSELS. See Ships, Boats and Vessels. 
 
 VOIRE DIRE, 148. 
 
 VOLUNTARY NON-SUIT, 134. 
 
INDEX. 653 
 
 Waiver, of irregularity in writ, 38; of default, 297-8; of irregularity in proceed- 
 ings, 439. 
 
 WARRANT, of attorney, form of judgment on, 190; to apprehend a witness to be ex- 
 amined de iene esse, 378, 381 ; to commit witness for refusing to be examined, 
 381; on complaint for forcible entry or detainer, 549, 558; service of, 549; 
 against fraudulent debtor, when to issue, 55'7-8 ; preliminary requisites to appli- 
 cation for, 567 ; affidavit for, what to state, 667 ; certified copies of affidavits to be 
 served with, 568 ; notice of, 568 ; how executed, 568 ; proceedings on return of, 
 for seizure of ship, boat, or vessel, 579 ; who may apply for, 578 ; application for, 
 678; issuing, service, and return of, 578 ; when to be discharged, 680. 
 
 ■WASTE, object of action on the case for, 20. 
 
 "WILLS, when may be read in evidence, 127. 
 
 WITHr)RA"WAL OF PLEA, form of judgment on, 190 ; of motion, 243 ; of plea, 305; 
 notice of, 306; rule for interlocutory judgment on, 306; rule for judgment on, 
 306 ; assessment of damages on, 306. 
 
 "WITNESSES, when privileged from arrest, 41 ; mode of procuring attendance of at 
 trial, 129; subpcena for; how served, 129; fees to be paid to, 129; how com- 
 pelled to produce papers on trial, 130; subpoena diice* feCM?ra for, 130; when ad- 
 verse party may be called, 130 ; habeas corpus ad testificandwm for, when in jail, 
 130-1; attachment for, 131; oath of, on trial, 147; affirmation of, on trial, 148; 
 oath of, on challenge, 148; how discharged from arrest when privileged, 263-4; 
 attendance of before referees, how compelled, 356 ; attendance before auditors, 
 how compelled, 359, 360 ; testimony of, when and how taken under a oomrais- 
 sion, 365 to 376 ; in what cases testimony of may be taken de iene esse, 376, 382 ; 
 application for examination of, de bene esse, 382 ; order to appear and attend ex- 
 amination, 377, 380; summons for witness, 377, 380; examination of and taking 
 deposition of, de bene esse, 380 ; when warrant may issue for, 378 ; when deposi- 
 tion of may be used in evidence, 378-9 ; effect of depositions taken de iene esse, 
 379; affidavit to obtain order to examine de bene esse, 376, 379, 380; warrant-to 
 apprehend for examination rfe 6ene esse, 381; warrant to commit for refusing to 
 be examined, 381 ; taking testimony of, de iene esse, 376 to 384; taking testimony 
 of, to be perpetuated, 384^5; proceeding against, for disobeying subpcena, 397; 
 attachment against, for contempt, 397-8-9; interrogatories on attachment against, 
 398, 400; punishment of, 898; affidavit to move for attachment against, 399; rule 
 for attachment against, 399; rule discharging attachment against, 401; rule im- 
 posing a fine on, 401 ; habeas corpus ad testificandum for, 401 ; putting off trial on 
 account of absence of, 405 ; attendance of, how compelled in case of forcible entry 
 or detainer, 550 ; fine for not appearing, &c., 555-6 ; compelling attendance of, to 
 prove execution of deed, 609, 610. 
 
 WRITS, what are original, 34. 
 
 WRIT, of capias ad respondendum, 34 ; of summons, 34, 54 ; of attachment, 34, 60 ; of 
 replevin, 70; plea in abatement to, 96; of possession in ejectment, 230; oiretorno 
 ftaftejjrfo in replevin, 231; ot venditioni exponas, 232. 
 
 See Execution, Mandamus, Scire Facias, Summons. 
 
 WRITTEN EVIDENCE, 122. 
 
Illil;: