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foreign or domestic, and in all actions of covenant and account, and actions on verbal contracts or assumpsits in law, in which the plaintiff or other credible person can ascertain the sum due, or damages sustained, and that the same will be in danger of being lost, or that the benefit of whatever judgment may be obtained, will be in danger, unless the defendant or defendants be held to bail ; and shall make affidavit thereof before the clerk of the court from which process issues, or a justice of the peace of this State ; or if the plaintiff reside out of this State, before any judge of a court of record, or notary public, or officer of the State or Kingdom in which he resides, or may be duly authorized to administer an oath; and such affidavit shall be delivered to such clerk, who shall issue a capias and indorse thereon an order or direction to the sheriff or officer to whom such process shall be directed, to hold the defendant or defendants to bail, in the sum so specified in such affidavit; and it shall be the duty of the sheriff or officer serving such process to take bail accordingly. In actions sounding merely in damages, where the same can not be ascertained as aforesaid, the affidavit shall also set forth the nature and cause of the action, with the substantial or chief facts in relation thereto; if, upon examination thereof, the clerk shall be satisfied that sufficient cause is shown to require bail, he shall issue a capias in like manner, and make an order thereon, specifying in what amount the defendant or defendants shall be required to give bail; the officer serving the process shall, in like manner, take bail. The bail taken, as herein directed, may be discharged, or the amount thereof reduced by the court to which the writ is returned, on application during the term to which it is returned, upon satisfactory proof.
Sec. 3. Where any writ shall have been issued from any court of record in this State, whereon bail is required, the sheriff or other officer to whom the same may be directed, shall take a bail bond to himself, with sufficient security, in a penalty of double the sum for which bail is required. And for the purpose of avoiding errors in the taking thereof, the condition shall be substantially in the following form:
“The condition of this obligation is such, that whereas, A. B. has lately sued out of the circuit court of the county of a certain writ of capias ad respondendum, in a certain plea of against C. D. returnable to the next term of the said court, to be holden at
next: Now, if the said C. D. shall be and appear at the said court, to be holden at on the said
day of next; and in case the said E. F. shall not be received as bail in the said action, shall put in good and sufficient bail, which shall be received by the plaintiff, or shall be adjudged sufficient by the court, or the said E. F. being accepted as bail, shall pay and satisfy the costs and condemnation money, which may be rendered against the said C. D. in the plea aforesaid, or surrender the body of the said C. D. in execution, in case the said C.D. shall not pay and satisfy the said costs and condemnation money, or surrender himself in execution, when, by law, such surrender is required, then this obligation to be void; otherwise to remain in full force and effect.” Which bond, so taken, shall be returned with the writ, on or before the first day of the term of the court to which the writ is returnable. In case the sheriff or other officer executing such process, and to whom it shall be directed, shall neglect to take such bond, or the bail be held insufficient, on exception taken and entered of record during the term to which such writ shall. be made returnable, the sheriff or other officer having reasonable notice of taking such exception shall, in either case, be deemed ar.d stand as special bail in the action; and the plaintiff may proceed to judgment against such sheriff or other officer, as in other cases against special bail.
Sec. 4. All bail taken according to the directions of this chapter, shall be deemed and taken as special bail, and may be proceeded against by an action of debt, in the name of the plaintiff in the original action, as in the case of a recognizance of bail, except where the bail shall be adjudged insufficient by the court; then the bond shall in that case stand as a security to the sheriff, who may, upon a forfeiture of the condition to appear and perfect bail, proceed thereon in an action of debt or covenant, to recover the amount of whatever damages he may have sustained by reason of the non-performance of such condition; and shall also have the same right to arrest and detain the principal in custody, in case the bail shall be adjudged insufficient by the court, and the principal shall not perfect bail within the time required by law, as the bail might have had; if he shall elect to arrest and commit the principal to prison, then his remedy on the bond shall cease, and the bond be void. The sufficiency of the bail shall be excepted to, during the term to which the writ is returnable, otherwise the same shall be considered as accepted by the plaintiff. Objections to the sufficiency of bail shall be decided by the court in which the exception is taken, without delay, on such evidence as may be produced, and as it may deem satisfactory; the burthen of proof shall lie on the party affirming the sufficiency, allowing the bail to be examined on oath or affirmation, touching his sufficiency.
Sec. 5. It shall be lawful for the defendant in any action in any court of record, when bail shall have been given as aforesaid, to surrender himself, or for his bail to surrender him at any time before the return day of the process,
which been sued out against him as bail, to the court in which the suit may be pending, during the sitting thereof, or in vacation, to the sheriff of the county in which process was served. In case the surrender shall be made during the sitting of the court, an entry shall be made on the records of the court, stating the surrender and commitment of the defendant to the custody of the sheriff: if the surrender be made in vacation, the bail or principal shall obtain a certified copy of the bail bond from the sheriff or clerk of the court, in whosesoever possession the same may be, and shall deliver himself, or be delivered by his bail to such sheriff, who shall thereupon indorse on such copy of the bail bond, an acknowledgment of the surrender of the body of the defendant to his custody, and thereupon the said copy of the bond with such acknowledgment shall be filed in the office of the clerk of the court in which the action is pending. Upon giving notice of the surrender, whether made in term time or vacation, to the plaintiff or his attorney, and paying the costs of the action against the bail, if any have accrued, the bail shall be discharged from all liability ; the desendant shall be committed to the jail of the county, there to remain until discharged by due course of law. If the surrender be after judgment, and the plaintiff shall not charge the defendant in execution within fifteen days after notice thereof, he shall be discharged out of custody; the plaintiff may, notwithstanding such discharge, have execution against the real and personal estate of the defendant.
Sec. 6. Any defendant surrendered into custody or committed by his bail, in manner aforesaid, may at any time before final judgment shall have been rendered in the action, discharge himself from custody by giving other good and sufficient special bail; the sheriff or other officer authorized to take bail, shall take new bail to the same effect as is herein before provided.
Sec. 7. In all cases of bail under this chapter, it shall and may be lawful for the bail to arrest and secure the body of the principal, until a surrender can be made to the sheriff of the county where the suit may be pending, or to the court to which the process was returnable.
Sec. 8. Hereafter, no suit shall be commenced upon any bail bond or recognizance of bail, in any civil action, until a writ of capis od satisfaciendum, shall have issued against the defendant in the original action, directed to the sheriff of the county in which such defendant was arrested, and such sheriff shall have returned that the said defendant was not found in his county ; if any action shall hereafter be commenced upon such bond or recognizance, and it shall not appear upon the trial thereof that a writ of capias ad satis fuciendum was issued and returned in the manner herein before mentioned, a verdict shall be found for the defendant. It shall be also necessary to charge the bail, that such writ of capias ad satisfaciendum should be issued and delivered, at least ten days before the return day thereof, to the sheriff of the county, or officer to whom it may be directed; such sheriff or other officer shall endeavor to serve such writ upon the defendant, any directions which he may receive from the plaintiff or his attorney, to the contrary notwithstanding.
Sec. 9. In all cases where judgment shall hereafter be entered up in any court of record in this State, against any person or persons as bail for another, and the amount of such judgment or any part thereof, has been paid, or discharged by such bail, his, her or their executors, administrators or heirs, it shall and may be lawful for such bail, his, her or their heirs, executors or administrators to obtain judgment by motion against the person or persons for whom he, she or they were bound for the full amount of what shall have been paid by the said bail, his, her or their heirs, executors or administrators, in such court where judgment shall have been entered up against such bail, before judgment shall be entered up against the principal, ten days previous notice of such motion shall have been given to him, if a resident of this State, and if a non-resident, then notice of such motion, shall have been published, for four weeks successively, in some newspaper printed in this State,
Sec. 10. In all actions against bail, it shall be lawful for the bail to plead in bar of such actions, the death of the principal before the return day of the process against the bail; if on the trial of any such issue, the death of the principal be found to have happened before such return day, judgment shall be given in favor of the defendant; he shall notwithstanding, be liable to judgment and execution for the costs of suit, unless such death shall be found to have taken place before the commencement of the action.
Sec. 11. If any defendant having given special bail in any action, shall afterwards be legally arrested and delivered over to the executive authority of the United States, or of any State or territory thereof, upon a charge of having committed a crime out of the jurisdiction of this State, and shall be thereupon carried beyond the limits thereof, such bail shall be discharged from all liability incurred as bail, if the defendant has not returned to this State discharged from such arrest, before he shall be liable to be charged as bail for such defendant.
Sec. 12. When any defendant in any civil action, shall have been discharged as an insolvent debtor, agreeably to the laws of this State respecting insolvent debtors, and a certificate from the authority lawfully granting the same, shall be produced to the court, the bail of such defendant, shall in all cases, be entitled to have an eroneretur entered upon the records of the court, which shall thereupon operate as a discharge from his bond or recognizance, in the same manner as if he had surrendered his principal in court, or to the sheriff as herein before directed : Provided, That judgment shall not have been recovered against him as the bail of such defendant.
Sec. 13. Hereafter, proceedings by scire facias,against bail, in civil cases, shall not be allowed in any court of record in this State.
APPROVED: March 3, 1845. (AMENDED :~See Appendix, Act No. 2.]
States, of less denomination than five dollars. 2. Obligations given for loan of such notes, void;
fact to be pleaded in bar.
sons passing them punished as swindlers.
Section 1. No person or persons shall be permitted to utter or pass in this State, as or in lieu of money, any bank bill or note, made or issued by any banking institution, or purporting to have been made or issued by any banking institution, of a less denomination, or for a less sum than five dollars; and each and every person or persons offending herein, shall forfeit and pay the sum of five dollars for every offence; which may be recovered, with costs of suit, by action of debt or assumpsit before any justice of the peace, by any person who will sue for the same: Provided, The provisions of this chapter shall not apply to the uttering or passing of any bank bill or note issued by any banking institution in this State authorized by its charter to make, utter or issue, bills or notes of a less denomination than five dollars.
Sec. 2. Any person or persons who shall use or lend any bill or note of any bank within the provisions of the first section of this chapter, for a less denomination than five dollars, and who shall take obligations in writing, or verbal promise, for the re-payment thereof, of any note or bill of the character and description aforesaid, loaned as aforesaid, shall not be permitted to collect the same; and it shall be competent for the defendant, in any suit brought for the collection thereof, to plead that the obligation in writing, or verbal promise, was made and executed or given for and in consideration of notes and bills of a less denomination than five dollars, made, uttered, and issued by incorporated companies, or by banking institutions, other than those excepted in the proviso to the first section of this chapter, which plea, when so made, shall be deemed good in law; and the plea so pleaded shall be deemed a bar to the action.
Sec. 3. If any person or persons shall utter or pass, as or in lieu of money, any note or bill issued and published by any joint stock or other company not incorporated, or purporting to have been so issued or published, such person or persons shall not be permitted to collect any demands arising therefrom ; and the plea allowed in the second section of this chapter shall be taken and allowed a good and sufficient plea, in bar of any such demand; and such person or persons so uttering or passing notes or bills issued and published as aforesaid, shall be deemed and considered swindlers, and shall be liable to indictment as such: and, upon conviction, shall be fined, in any sum not less than one hundred dollars, nor more than one thousand dollars for each offence.
APPROVED: March 3, 1845.
child, justice shall cause father to be brought
may be committed.
tent. 5. If issue be found against defendant, he shall be
adjudged to support child; payments, how made,
and to whom; punishment for refusal; father may take charge of child after it is three years of age; if child die, bond to be void; when
money paid to guardian. 6. If issue be found for defendant, mother of child
to pay the costs. 7. If parents intermarry, child to be deemed legiti
mate, and bond void. 8. Prosecution barred after two years, except in
case of absence from the State.
Section 1. When any unmarried woman, who shall be pregnant or delivered of a child, which by law would be deemed a bastard, shall make complaint to any one or more of the justices of the peace of the county where she may pregnant or delivered, and shall accuse, under oath or affirmation, any person with being the father of such child, it shall be the duty of such justice or justices to issue a warrant, directed to the sheriff or any constable of such county, against the person so accused, and cause him to be brought forthwith before him or them. Upon his appearance, it shall be the duty of said justice or justices, to examine the said woman, upon oath or affirmation, in the presence of the man alleged to be tie father of the child, touching the charge against him. If the said justice or justices shall be of opinion that sufficient cause appears, it shall be his or their duty to bind the person so accused, in bond, with sufficient and good security, to appear at the next circuit court to be holden for said county, to answer to such charge; to which such court said warrant and bond shall be returned. On neglect or resusal to give such bond and security, the justice or justices shall cause such person to be committed to the jail of the county, there to be held to answer such complaint.
Sec. 2. The circuit court of such county, at their said next term, shall have full cognizance and jurisdiction of the said charge of bastardy, and shall cause an issue to be made up, whether the person charged as aforesaid, is the real father of the child or not, which issue shall be tried by a jury. Such inquiry shall not be er parte, when the person charged shall appear and deny the charge; but he shall have a right to appear and defend himself by counsel, and controvert, by all legal evidence, the truth of such charge.
Sec. 3. If at the time of such court, the woman be not delivered, or be unable to attend, the court shall order a recognizance to be taken of the person charged as aforesaid, in such an amount, and with such sureties as the court may deem just for the appearance of such person at the next court, after the birth of her child; and should such mother not be able to attend at the next term after the birth of her child, the recognizance shall be continued until she is able.
Sec. 4. On the trial of every issue of bastardy, the mother shall be admitted as a competent witness, and her credibility shall be left to the jury. She shall not be