Abbildungen der Seite

proceedings may be had in the county court, it shall be
the duty of the superior court to remand the same to the
county court, in which such erroneous judgment was
rendered, who shall proceed therein in the same manner
as in other cases of the like kind, brought originally to
said county court.
sect. 71. The courts having cognizance of writs of
error, upon the affirmance of any judgment or decree,
or upon a nonsuit or withdraw, by the plaintiff in error,
may, according to their discretion, adjudge and decree
to the defendant in error, besides his cost, the interest of
the money delayed by such writ of error, and grant ex-
ecution accordingly.
sect. 72. Writs of error shall be allowed and signed,
by the judges of the court, to which they are returnable;
and the judge signing the writ shall take good and suffi-
cient bond, with surety, that the plaintiff in error shall
prosecute his suit to effect, and answer all damages, if he
fail to make his plea good. And writs of error shall be
served by the officer's leaving a true and attested copy
thereof with the defendant in error, or at his usual place
of abode ; or if he be not a resident of this state, then
with the attorney who appeared in the original cause.
And whenever a writ of error is to be served on the pe-
titioners for a highway, it shall be legal service for the writ
to be read in the hearing of any of the three first sign-
ing petitioners, or an attested copy thereof left at the
usual place of abode of either of the said three first sign-
ing petitioners, twelve days inclusive before the day of
the court's sitting. -
sect. 73. All executions, issued by the clerks of the
superior court, or of the county courts, or by justices of
the peace, may be directed to any officers proper to serve
the same, in any of the counties in the state; and the of.
ficers to whom the same are directed and delivered, shall
duly and faithfully serve and return the same, according
to the directions therein given; which being returned,
shall be kept on file in the office out of which they issued.
And all writs of execution shall be made returnable with-
in sixty days, or to the next court, (in case sixty days are
remaining between the next court and the date of the
execution,) at the election of him who prays out the
same : and all executions granted by justices of the peace,
shall be made returnable in sixty days : and all sheriffs
and constables shall have power to execute any writ of
execution to them directed within their own precincts.
sect. 74. Executions shall be granted against the
goods, chattels, lands and body of the debtor: and when
any execution is taken out and delivered to the sheriff

Interest on judgments not reversed.


Bond for prosecution.


Writ of error, against petitioners for highway, on whom, and how, to be served.

Executions, how directed, and when to be returned.

Executions, how served,

Property exempt from execution.

or constable, to whom it is directed to serve, he shall

repair to the debtor's usual place of abode, if within

his precincts, unless he finds him at some other place, and

make demand of the debt, or sum due on such execution,

with his lawful fees, and upon refusal or neglect of pay

ment of the same, such officer shall indorse on the execu

tion when and where he made demand of the debt and

sum due thereon, and shall levy the same on the personal

estate of the debtor, except such estate as is hereinafter
exempted from execution or warrant; and on such es-

tate also, if the same shall be presented by the debtor.

And the officer shall advertise and post such estate, with

a particular account thereof, on the sign-post in the soci-
ety where taken, to be there sold at public vendue, at
the end of twenty days, specifying the day of the month
when the sale is to take place. And in such societies as
are made out of two or more towns, the constables of such
towns shall have the same power and authority, where

the sign-post shall be without the limits of the society to
which they belong, as other constables by law have within
their respective districts. And in case the debtor shall
not, within said twenty days, pay the debt, and all the
cost and charges, that have arisen, the officer shall sell,
at beat of drum, to the highest bidder, such goods, or so
many of them, as may be necessary to pay the execution,
and the lawful fees and expenses, and the overplus (if any
there be) he shall return to the owner. Provided, that
necessary apparel, bedding, and household furniture,
necessary for supporting life : arms ; military equip-
ments ; implements of the debtor's trade; one cow ; any
number of sheep not exceeding ten ; and two swine;
being the property of one person: that any quantity of
wood not exceeding two cords; any quantity of hay not
exceeding two tons; any quantity of beef or pork not
exceeding two hundred pounds weight; any quantity of
fish not exceeding two hundred pounds weight; any quan-
tity of potatoes or turnips not exceeding five bushels of
each ; any quantity of Indian corn or rye not exceeding
ten bushels of each, and the meal or flour manufactured
therefrom ; any quantity of wool or flax not exceeding
twenty pounds weight of each, or the yarn or cloth made
therefrom ; one stove, and the pipe belonging thereto :
being the property of any one person having a wife or
family: and that the horse, saddle and bridle of any prac-
tising physician or surgeon, of a value not exceeding one
hundred dollars; shall be exempted, and not be liable
to be taken, by warrant or execution, for any debt or tax

[ocr errors]

sect. 75. In case personal estate of the debtor, sufficient to satisfy the debt and charges, cannot be found, and the creditor shall not agree to accept or take the debtor's lands, the officer shall levy the execution on the body of the debtor, and him commit to the common gaol in the county in which the execution is levied, where he shall remain till he pay the debt, and the lawful fees and charges. And every officer, who shall commit any Person to prison, by virtue of distress or execution, shall deliver a copy of the writ or execution, signed by such officer, to the keeper of the gaol, which shall be a sufficient warrant to him to hold such person in safe custody, till he be delivered in due course of law.

sect. 76. When personal estate, sufficient to pay the sum mentioned in the execution, and the lawful fees and charges, cannot be found, by the officer, or shall not be tendered by the debtor, or his attorney, to be taken on such execution, then such officer, by the direction of the creditor, or his attorney, may levy the same on the lands, tenements or real estate of the debtor, holden in his own right, and the same shall be appraised, by three indifferent freeholders of the town where the lands lie, or if that town be a party, then of the next adjoini town, one of whom shall be appointed by the creditor, and another by the debtor, and if they do not agree in appointing a third, or if either party neglect to appoint, the officer may apply to any justice of the peace in the town, (who by law may judge between them in civil causes,) who shall appoint one or more appraisers, as the case may require : which appraisers, being sworn according to law, shall make an estimate of such land or real estate, according to its true value, in writing under their hands, or either two of them, and the same deliver to such officer: who shall thereupon set out to the creditor, by metes and bounds, so much of the lands as may be sufficient, at the appraisal, to pay the debt on the execution, and the lawful charges, if sufficient, if not, so much as there may be, to be indorsed in part payment of the execution, according to its value, at the appraisal. (9)

When to be levied on the body.

Copy of execution to be left with gaolet.

When to be levied on land, and how to proceed.

(9) In consequence of the extreme scarcity of specie in a newly settled country, it became necessary to provide some other mode for the satisfaction of executions. Accordingly, a law was made in 1641, enacting, that a judgment-creditor, when execution was levied upon the goods of a debtor, should take them at appraisal. In 1685, the sheriff was authorised to sell the goods taken on exe

cution, for the specific property originally contracted to be paid, and the debtor had liberty to redeem it within sixty days. In the revision of 1702, the law directs the sale of the goods an at outcry for money, and gives the debtor a right to redeem within twenty days, by paying the debt. In 1711, a statute was made, containing, in substance, the provisions of the present law.

To be recorded.


When county court may direct execution to indifferent persons.

When execution must be levied on body of debtor committed to prison.

Levy of execution on stock of incorporated. companies.

sect. 77. It shall be the duty of the officer to cause such execution, with his proper indorsement thereon, of such appraisal, and his proceedings, to be recorded at length, in the records of the town-clerk, where the lands or real estate lie; and he shall have thirty-four cents for causing the same to be recorded, with additional fees for his travel : and he shall then return such execution into the office of the clerk of the court from whence it issued, there to be kept on file. And all executions served, returned, and recorded as aforesaid, shall vest all the title of the debtor, in the creditor, his heirs and assigns. sect. 78. When the sheriff of any county shall receive executions from the treasurer of the state, against the inhabitants of any town or towns, for the arrears of public taxes, and shall levy the same on the estate of such inhabitants, or any part of them, and take their receipts for such estate, to be delivered at the place of sale, according to law, and on the failure of the delivery of such estate, shall obtain judgment and execution thereon, against the inhabitants of such towns, or any part of them, the judges of the county court, in the county where the parties belong, may, at the request of the sheriff, depute and empower some suitable and indifferent person, to serve and return such executions: which persons, deputed as aforesaid, shall have the same power and authority, in serving such executions, as sheriffs by law have. And such sheriff shall be responsible for any neglect or default of every person, deputed at his request as aforesaid, in the same manner as for his deputies. sect. 79. When the body of any person is attached, and for want of bail, is committed to prison, the person so committed shall not be holden in prison, by virtue of such commitment, for a longer time than five days after the rising of the court in which final judgment shall be rendered ; and in case no execution shall be taken out, and levied upon the person of such imprisoned debtor, within five days as aforesaid, the keeper of the gaol, upon his fees being paid, may not hold such prisoner any longer, by virtue of such commitment. sect. 80. The levy of executions on the rights or shares, which any person owns in the stock of any bank, insurance company, turnpike company, or other corporation, together with the interest, rent and profits due and growing due thereon, shall be, by leaving a true and attested copy thereof with the cashier, secretary or clerk, with an attested certificate, by the officer making such levy, that he levies upon and takes such rights or shares, to satisfy such execution; and thereupon such officer shall post the same according to law, and, as in other cases, shall, at vendue, sell the same, together with such interests, rents and profits, or so many thereof, as shall be sufficient to satisfy such execution, or so much thereof as such rights or shares may produce; and such officer shall thereupon give to the purchaser, an instrument in writing, conveying to him such rights or shares ; and shall also leave with such cashier, secretary or clerk, a true and attested copy of the execution, and of his return thereon ; and the purchaser shall thereupon be entitled to all dividends and stock, and to the same privileges, as a member of such company or corporation, as such debtor was entitled to. And whenever any proper officer shall, with a writ of attachment or execution, apply to such cashier, secretary or clerk, for the purpose of so attaching or levying upon such rights or shares, the cashier, secretary or clerk shall furnish him with a certificate, underhis hand, in his official capacity, ascertaining the number of rights or shares the defendant holds in the stock of such bank, company or corporation, with the incumbrances thereon, if any there be, and the amount of the dividends thereon due.

TITLE 3. Jīrbitration.

An Act authorising submissions to Arbitration to be made rules of court.

E it enacted by the Senate and House of Representatives, in General. Assembly convened, That all persons desiring to end any dispute or controversy, by arbitration, may agree, that their submission to arbitrators shall be made a rule of the superior court, or of any of the county courts, or city courts, and may insert their agreement in the submission, or in the condition of the bond or promise ; and on producing an affidavit of such agreement, and filing it in court, the same shall be entered of record ; and a rule of court shall thereupon be made, that the parties shall submit to, and be finally concluded by, such arbitration: or such persons, desiring to end a controversy as aforesaid, may personally appear before the superior court, or any county court, or city court, and acknowledge, that they have mutually agreed to refer all their matters of difference, or any particular dispute, to the arbitrament of certain persons by them agreed on, and named; and on their desiring such submission to be made a rule of court, the same may be entered of record, and a rule of court shall thereupon be made, that the parties shall submit to, and finally be con

Shares to be sold at auction.

Officer to transfer shares, and leave copy of execution, &c. with cashier, &c.

Cashier, &c. on application of officer, to furnish a certificate of defendant’s shares, &c.

sect. 1.

Submission made a rule of court.

« ZurückWeiter »