vered to such sheriff, and shall authorise him to commit and detain ART. 3. such defendant, until he shall be duly discharged: show cause 2. Upon producing to such officer the certificate of the sheriff, that Order to the defendant has been committed to, and remains in, his custody, by virtue of such order of commitment, acknowledged before such officer by the sheriff, or proved by a subscribing witness thereto, an order shall be granted by such officer, requiring the plaintiff to shew cause before him, at such time and place as he shall appoint, why the bail of such defendant should not be exonerated from their liability: rating bail. 3. Upon producing proof of the due service of such order, on the Order exoneplaintiff or his attorney, such officer shall proceed to hear the allegations and proofs of the parties; and if no good cause to the contrary appear, shall endorse an order on the second certified copy of the bail piece, 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 piece was taken : filed. 4. To such certified copy of the bail piece shall be attached the cer- Papers to be tificate of the sheriff herein before required, with the acknowledgment or proof thereof, the order to show cause, and the proof of the service thereof, which papers shall be immediately filed in the office of a clerk of the court; and until so filed, the liability of such bail shall continue. another county. $ 23. If the defendant in any suit which may be pending in any Surrender in court of common pleas or mayor's court, shall be committed to the jail of any county other than that in which such court is held, he may be surrendered by his bail, or may surrender himself, in their exoneration, to the sheriff of the county in whose custody such defendant may be,78 on. sheriff. $ 24. In such case, the order for the commitment of the defendant, orders therethe order to show cause, and that to discharge the bail, shall be made by a judge of the court in which the action may be pending, and in which the bail was given, or by a supreme court commissioner.79 $25. The sheriff to whom such surrender shall be made, shall be Duty of bound to keep and detain the defendant so surrendered, in the same manner as if the same had been made, in a suit pending in a court of common pleas of the county of which he is sheriff, and shall in like manner be liable for any escape or other neglect or violation of duty.78 $ 26. The discharge of the bail granted when the defendant shall vacating dia be so surrendered in another county, may be vacated by the court in which the action is pending, upon proof that the defendant was committed to the jail of such other county, by collusion between himself and his bail, or between him and any other person, for the purpose of (78) Laws of 1818, p. 156. charge. TITLE 6. being so surrendered, in order to defraud the plaintiff in the action in which such surrender shall have been made.79 Execution after such surrender. Endorsement thereon. Surrender on bail bond. Proceedings for that pur pose. Certain oxecations ueeessary before suits against special bail. Duty of sheriff on tions. $ 27. The plaintiff in the suit in which such surrender shall have been made, after judgment therein, may issue execution against the body of the defendant, to the sheriff of the county to whom such defendant was surrendered, who shall execute the same in like manner as if issued out of the court of common pleas of the county of which he is sheriff, and shall in like manner be liable for any escape, or other neglect or violation of duty.80 $28. Upon every such execution shall be endorsed a statement, signed by the attorney issuing the same, setting forth that the defendant therein named, has been surrendered to the custody of the sheriff to whom such execution is directed. $ 29. Whenever a bail bond shall be taken on the arrest of a defendant, the bail therein may surrender their principal, or he may surrender himself, in exoneration of his bail, in the same manner, except as herein after modified, before the same officers, and with the like effect as herein before provided, with respect to special bail. $30. To effect such surrender, two copies of such bond, proved by the affidavit of the sheriff to whom the same was given, or of a subscribing witness thereto, to be true copies, shall be produced, instead of certified copies of a bail piece; and an order of commitment shall be made on one of such copies, and be delivered to the sheriff, and the other of such copies shall be filed with the order for the discharge of the bail, and with the other papers in such proceeding, with the clerk of the court in which the action may be pending. S31. The plaintiff in the action shall not be entitled to bring any suit on the recognizance of bail, until, 1. An execution against the property of the defendant shall have been issued to the sheriff of the county in which such defendant was originally arrested, and the same shall have been returned by such sheriff unsatisfied, in whole or in part: and, 2. An execution against the body of the defendant, having at least fifteen days between the test and return day thereof, shall have been issued to the same sheriff, and by him returned, that the defendant 'could not be found within his county.8 81 $32. Upon any such execution being issued and delivered to the such execu- sheriff, it shall be his duty to use all reasonable endeavors to execute the same, notwithstanding any directions he may receive from the plaintiff, or his attorney.81 Pleas in bar of suit a gainst bail. § 33. In such action against bail, they may plead that executions against the property and against the body of the defendant in the original suit, were not issued as herein directed; or that they were not (79) Laws of 1818, p. 156. (80) Ib. § 2. (81 )1 R. L. p. 324. § 6; Ib. p. 502, § 7; Ib. p. 144, § 6. issued in sufficient time to enable the sheriff to execute the same; or that directions were given by the plaintiff or his attorney to prevent the service of the said writs, or either of them; or that any other fraudulent or collusive means were used to prevent such service; and if any such defence be established, it shall entitle the bail to a verdict. ART. 4. on death of $34. When the defendant in a suit shall die after the return of the Relief to bail execution against his body, and before the expiration of eight days defendant. from the return of the process served on his bail, the court shall relieve such bail, on the same terms as if they had surrendered their principal at the time of his death. to be person § 35. In all cases in which proceedings shall be had against bail, Scire facias by scire facias, it shall be necessary to serve such writ personally ally served. upon the defendant, and to have the same duly returned that it has been so served; and no further proceedings shall be had, until such writ shall be so returned. ARTICLE FOURTH. Of consolidating and referring Causes. SEC. 36. Certain causes in same court, may be consolidated. 38. When plaintiff may consolidate several suits. 39. Cases in which court may refer causes. 40. Proceedings for the appointment of referees. 41. When circuit judge may order reference. 42. Referees to proceed and hear dispute. 43. Appointment of time and place of hearing; adjournments. 44. Oath of referees; by whom to be administered. 45. Attendance of witnesses, how compelled. 46. Powers of referees; all to meet; who may report. 47. Reports, &c. of referees, may be compelled. 48. Entries on record; judgment on report. 49. Actions of account when to be referred. 50. Powers and duties of referees thereon. 51. To notify parties; and report account. 52. Proceedings against party refusing to account, &c. 53. Judgment on report of referees. ing causes in $ 36. Whenever several suits shall be pending in the same court, Consolidat by the same plaintiff against the same defendant, for causes of action same court. which may be joined, the court in which the same shall be prosecuted may, in its discretion, if it shall appear expedient, order the several suits to be consolidated into one action.82 different $37. If one or more of such suits be pending in the supreme court, When in and others be pending in any other court, the supreme court may or- courts. der the suits in other courts, to be consolidated with that in the supreme court. 83 tiff. $38. When several suits shall be commenced against joint and sev- Ib. by plaineral debtors, in the same court, the plaintiff may, in any stage of the proceedings consolidate them into one action.83 (82) Laws of 1818, p. 280, § 7. (83) 1 R. L. p. 521, § 14. TITLE 3. When caus- court. Appointment of referces. When refe. rence by cir $39. Whenever a cause shall be at issue in any court of record, and it shall appear that the trial of the same will require the examination of a long account, on either side, such court may, on the application of either party, or without such application, order such cause to be referred to three impartial and competent persons.84 40. If the parties agree on three persons as referees, such persons shall be appointed by the court; if they disagree, each party shall be entitled to name one, and the court shall appoint the persons so nominated, if they are free from all exceptions, and such other person as the court shall designate.84 S41. When a cause shall be noticed for trial at any circuit court, cuit judge. and it shall appear that the trial of the same will require the examination of a long account, on either side, the judge holding such court, may, by rule, order such cause to be referred, with the like effect as if made by the supreme court. Referees to hear cause. Time. &c. of $42. The referees appointed pursuant to the foregoing provisions, shall proceed with diligence to hear and determine the matters in controversy. $43. They shall appoint a time and place for the hearing, and shall adjournments adjourn the same from time to time as may be necessary: and on the application of either party, and for good cause, they may postpone such 12 hearing to a time not extending beyond the next term of the court in Oath of referees, &c. Subpœnas for Powers of referees, &c. Compelling reports, &c. which the suit is pending. S44. Before proceeding to hear any testimony in the cause, the referees shall 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 person authorised to take affidavits to be read in the court in which the suit is pending, or by any justice of the peace. 85 $45. 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.8 85 $46. Any one of the referees may administer the necessary oath to the witnesses produced before them for examination. All the referees must meet together and hear all the proofs and allegations of the parties, but a report by any two of them shall be valid. $47. The referees may be compelled, by the order of the court in which the cause is pending, to proceed to the hearing thereof, and to make report of the amount they find due to either party; 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 an (84) 1R. L. p. 516. § 2. (85) Ib. p. 517, § 4. swer thereto, and all other proceedings by them, together with the ART. 4. testimony before them, and their reasons for allowing or disallowing any claim of either party. $48. An entry of such reference shall be made upon the record, Entrios. and day shall be given to the parties from time to time, until the referees report, or they be thereof discharged. If the report of the refe- Judgment on rees be confirmed by the court, judgment shall be entered thereon, in the same manner, and with the like effect, as upon the verdict of a jury.86 report. actions of account. $49. When any action of account shall be brought by one or more Reference in partners against another partner, or by any joint tenant, or tenant in common, or against any guardian, bailiff, receiver or otherwise, and judgment shall be rendered that the parties account, or that the defendant account to the plaintiff, the cause shall be referred to referees in the same manner, and subject to the same provisions, as herein prescribed in the case of a long account.87 dutics of re $50. Such referees shall proceed in the manner required by law Powers and in other cases of reference, with the like powers, and subject to the forees. same provisions in all respects. And they shall have power to examine the parties on oath, to be administered by the referees, or either of them; and to require the production of all books of accounts, papers and documents, in the custody or under the control of either party.87 parties; $51. The referees shall notify the party or parties required to ac- To notify count before them, of the time and place at which they will take such account; and shall take, audit, and settle such account, and report to report. thereon to the court.87 against party $ 52. If any party shall neglect or refuse to account according to Proceedings the judgment of the court, pursuant to such notification; or to pro- refusing to duce any books, papers or documents, required by the referees; the account, &c. referees shall report the same to the court, who shall proceed thereon against such party, for his disobedience, in the manner prescribed in the thirteenth Title of the eighth Chapter of this act; and shall imprison such party, until he submit to account, or produce such books, papers and documents; or until he satisfy the plaintiff his demand with costs.8 87 report $53. If the referees report a balance in favor of either party, and Judgment on such report be confirmed, judgment shall be rendered thereon as in other cases of reference; and if they report that no balance is due either party, judgment shall be rendered against the plaintiff, with the like effect as upon a verdict.87 |