CHAPTER III. Bail to the officer. OF BAIL. SECT. 48. Sheriffs, deputy sheriffs, constables, and indifferent persons deputed to serve writs of attachments, shall take sufficient bail, when offered by any person arrested or held in custody by them, on mesne process, in any civil action, which bail shall be one or more substantial inhabitants of this state, of sufficient ability to respond the judgment that may be recovered in the action, who shall become bound to such officer in a sufficient sum, conditioned for the appearance of the person so arrested before the court to which the writ is returnable, and the person arrested shall thereupon be liberated from arrest; and when the person so arrested shall be committed to jail on mesne Bail after com- process, for want of bail, the sheriff having charge of the jail, at any time before the session of the court to which the writ is returnable, shall take good and sufficient bail as aforesaid, when offered, for the appearance of such person before such court; and such bail being given, he shall be released from confinement in jail.* mitment. 1824. Mittimus. Special bail, Bail after the session of the court. Liability of bond. SECT. 49. No person shall be committed to prison on a writ of attachment, without a mittimus, signed by a proper magistrate, declaring the cause and ground of such commitment, and requiring the jailer to receive and keep such person in jail until legally discharged; which mittimus shall be a sufficient authority to the officer to commit such person, and to the jailer to receive and hold him in custody. SECT. 50. No defendant, whose person has been attached and let to bail as aforesaid, shall be admitted to appear and plead, or defend, in such action, until he has in court given special bail, with sufficient surety as aforesaid, for his abiding final judgment in the cause, if the plaintiff require the same.t SECT. 51. When any defendant, committed to jail for want of bail to the officer, shall remain confined therein after the term to which the writ is returnable, or when a defendant, committed to jail for want of special bail, shall remain confined therein after the session of the court, and the action shall be continued, the sheriff, having charge of the jail, shall take bail when offered, with sufficient surety as aforesaid, for his abiding the final judgment that shall be rendered in the cause, and thereupon such defendant shall be released from imprisonment. SECT. 52. In either of the cases aforesaid, every such surety shall surety on bail- be obliged to satisfy the judgment in case of the principal's avoidance, and a return of non est inventus on the execution, unless such surety, on or before the time of entering up final judgment, shall bring the principal into court, and move to be discharged; upon which the * Rights of bail in relation to principal. Pease v. Burt, 3 Day, 485; Parker v. Bidwell, 8 C. R. 84; Read v. Case, 4 C. R. 166. What obligation is assumed by bail to the sheriff. New Haven Bank v. Miles, 5 C. R. 587. What appearance will discharge bail. Gallup v. Dennison, Kirby, 430. Death of plaintiff after judgment and issue of execution does not discharge bail. Parker v. Bidwell, 8 C. R. 84. Parol declaration of plaintiff's attorney does not discharge bail. Same, 84. What will exonerate bail. Butler v. Bissell, 1 Root, 102; Fleming v. Lord, 1 Root, 214; Ainsworth v. Peabody, 1 Root, 469; Ruggles v. Corey, 3 C. R. 419; Lockwood v. Jones, 7 C. R. 431. To whom recognizance of special bail may be taken. Nott v. Wells, Kirby, 12. Effect of permitting defendant to plead without giving special bail. Halsey v. Fanning, 2 Root, 101. Effect of accepting plea after commitment of defendant on mesne process for want of bail. Hubbard v. Shaler, 2 Day, 195. court shall order the keeper of the jail to receive him into custody that his body may be taken on execution.* SECT. 53. No security to prosecute an appeal shall exonerate the Special bail, not special bail in the cause. exonerated. on the bond. SECT. 54. The party in whose favor the judgment is given, may scire facias have a writ of scire facias or other proper action on the bond against may be brought such surety, to recover the sum for which judgment shall be rendered against the principal, with additional cost, but such writ of scire facias or other process on the bond, shall be taken out and served on the surety within twelve months after the rendering of such final judgment; and the surety, against whom such recovery is had, shall have his proper action for indemnity against the principal.† SECT. 55. The officer shall assign the bail-bond to the plaintiff on Officer shall as his request, and no action shall be maintained against the officer who sign bail-bond. took the bail, unless he shall have taken insufficient bail, or shall refuse to assign the bail-bond to the plaintiff, that he may have a remedy agreeably to this act. pal. SECT. 56. In all cases where any person or persons shall have execu- Surety may arted a bail-bond, or entered into a recognizance for the personal appear- rest the princiance of another, and such bail or surety shall afterwards believe that his principal intends to abscond, and shall apply to a justice of the peace in the county in which such principal resides, produce his bailbond or evidence of his being bail or surety, and verify the reason of his application, by oath or otherwise, such justice shall forthwith grant a mittimus directed to the sheriff, his deputy, a constable, or indifferent person, of the county in which such application shall be made, commanding such officer or indifferent person, forthwith to arrest such principal, and commit him to the common jail in such county, and the keeper of such jail shall receive such principal, and retain him in jail until discharged by due order of law. CHAPTER IV. OF THE PARTIES AND THEIR APPEARANCE IN COURT. 1848. cessors of pub. SECT. 57. Whenever any public officer shall die or be removed Action by sucfrom office, all actions which shall have accrued, or would have ac- lic officers. crued to him in his official capacity, may be brought or continued by his successor. SECT. 58. Towns, and all lawful societies, communities and corpo * What is final judgment within the statute. Harris v. Thomas, Kirby, 257. What is sufficient evidence of the principal's avoidance. Fitch v. Loveland, Kirby, 380; Johnson . Smith, 1 Root, 373; Collins v. Cook, 4 Day, 1; Edwards v. Gunn, 3 C. R. $16: Newell . Hoadley, 8 C. R. 381; Beebe v. Gardner, 11 C. R. 104; Hall v. White, C. R. 438. Liability of bail for a married woman same as that of bail for any other defendant. Hall e. White, 27 C. R. 488. Plaintiffs in several actions cannot join in scire facias on one bail-bond. Gridley v. Starr, 1 Root, 281. 1 Officer not liable, if the bail be sufficient when he takes it, although it afterwards becomes insufficient. Northum v. Phelps, 1 Root, 54. If the bond cannot be enforced, sheriff not liable for not assigning it. Newell v. Hoadley, 8 C. R. 381. Towns, &c., may sue and defend. 1849. communities, ap individuals pearing to defend, to give rations, may commence and prosecute any suits or actions to maintain and recover their rights before any court proper to try the same, and may appear and prosecute by their agents or attorneys, duly appointed, and may in like manner defend in all suits brought against them, and may, in their lawful meetings, appoint agents to appear in their behalf, and employ attorneys, if necessary, to prosecute or defend the suits in which they are parties.* SECT. 59. Whenever, in an action against a community, an indiIn actions against vidual member of such community shall appear to defend against the action, he shall procure bond with surety to the acceptance of the court in which the action is pending, to indemnify and save such bonds for costs. community harmless from all costs which may arise by reason of such appearance; which bond shall be payable to such community, and be lodged with the files of the court in which such action is pending. Defendant, if SECT. 60. Whenever any individual, appearing as aforesaid, shall successful, en give bond in compliance with the preceding section, and shall successfully defend against such action, he shall be entitled to the costs which shall be recovered of the plaintiff, unless the community likewise appeared and defended against such action, and incurred the costs of such defense. titled to costs recovered of plaintiff. 1823. Counties may sue and defend. 1857. Owner of railroad bond may sue in his own name. 1864. chose in action may sue. SECT. 61. Whenever any bond, note, or other security, is taken to the treasurer, or other officer, of any community or corporation in this state, wherein the beneficial interest belongs, or, on the face of such bond, note, or security, appears to belong, to such community or corporation, any action to recover or enforce the same may be maintained by such community or corporation in its own corporate name. SECT. 62. Counties, in the name of their treasurer, may commence and prosecute to final judgment, any suit necessary to enforce, acquire or establish, any right, title, or demand, and may appear by agent or attorney, in any suit in favor of or against them.f SECT. 63. The bona fide owner and holder of a railroad bond may bring any proper action, in his own name, for the recovery of whatever may be due thereon. SECT. 64. The assignee and equitable and bona fide owner of any How assignee of chose in action, not by law negotiable, may bring his action thereon in any court in his own name; but he shall, in his declaration, allege, that he is the actual bona fide owner of the chose in action mentioned therein, and shall set forth when and how he acquired title thereto. SECT. 65. Any number of persons associated together as a volunassociation may tary association, not having corporate powers, but having some distinguishing name, may be sued and impleaded by the name by which such voluntary association is known and called. How voluntary be sued. 1837. SECT. 66. All suits for or against a copartnership, may be comSuits may be menced by the company name of the plaintiffs or defendants; and brought in copartnership the plaintiffs shall have the right, within the first three days of the name of plaintiff or defendant. What is a corporation within the statute. Tilden v. Metcalf, 2 Day, 259. Town may sue by the description of A. B. and the rest of the inhabitants. Barkhamsted v. Parsons, 8 C. R. 1. Corporation created by private act must count upon the act, in order to sustain suit. Central Manufacturing Company v. Hartshorn, 8 C. R. 199. School district, liable to be sued. McLoud v. Selby, 10 C. R. 390. Selectmen may, without special authority from town, prosecute and defend suits in name of town. Union v. Crawford, 19 C. R. 331. Any inhabitant of town has right to appear and defend suit against it. Same. No action at law will lie against a county. Ward v. County of Hartford, 12 C. R. 404. court to which the writ is returnable, to amend the same, without cost, by inserting the names of the several persons composing such copartnership; and writs returnable before a justice of the peace may be amended in the same manner at any time before the pleadings are closed.* SECT. 67. If the plaintiff, in any action returned to any court, and when plaintiff entered in the docket, shall not, on or before the opening of the court must appear. on the second day thereof, appear, either by himself or attorney, to prosecute the action, he shall be nonsuited; and if the defendant shall appear, he shall recover cost against the plaintiff; and the plaintiff in any action may withdraw the same, or become nonsuit before the jury have given in their verdict, in which case he shall pay cost to the defendant, if the defendant shall appear, and may bring a new suit, such withdrawal or nonsuit having been first recorded.f SECT. 68. The plaintiff in any civil action, returnable to the superior court, and returned to said court, or to the office of the clerk Withdrawal of thereof, may withdraw the same in vacation, by filing in the office tion. of such clerk, a written notice of the withdrawal, signed by himself or by his attorney, and specifying the action withdrawn, and the time of withdrawal. 1848. actions in vaca the docket. SECT. 69. The clerk of the court shall enter the action so with- Entry of withdrawn, upon the docket of the court, at its next term, in the same drawal, upon manner as though it had not been withdrawn, with a note of the withdrawal, and of the time it was withdrawn. same. accru SECT. 70. If the defendant shall, within the first three days of Plaintiff liable said term, enter his claim for costs upon said docket, the plaintiffing before entry shall be liable to pay the legal costs which shall have accrued at the of claim for time of such entry, in the same manner as though the action had been withdrawn in open court; but no costs shall be allowed for evidence, officer's fees, or witness' fees accruing after the plaintiff shall have given the defendant or his attorney actual notice of the withdrawal, in writing, unless good reason therefor shall be shown, to the satisfaction of the court. 1858. When plaintiff withdrawing liable for cost. SECT. 71. Whenever the plaintiff in any action pending before the superior court, shall withdraw the same, within the last three days of any term, without actual notice to the defendant, or his attorney, without notice the defendant in such action, may enter his claim for costs within the first three days of the next succeeding term, and the plaintiff shall be liable to pay the legal costs, which shall have accrued at the time of the withdrawal of such action. state, attorney's SECT. 72. In all actions brought to any court in this state by any If plaintiff not an person who is not an inhabitant, the clerk of the court shall enter in inhabitant of this the record of the cause, the name of the attorney by whom such name to be enplaintiff appeared, which record shall be evidence that such attorney was the lawful attorney of the plaintiff. tered. 1860. SECT. 73. Whenever, in any action pending in any court, the Parties failing to court shall find, on motion of either party, that the security for give Such amendment may be made after expiration of the three days, when. Phelps Manufacturing Co. v. Enz, 19 C. R. 58. Whether a cause nonsuited can be revived. Babcock v. James, Kirby, 361. When judgment of nonsuit shall be entered. Rules, 18 C. R. 561. Entry for cost must be made during the term. Richards v. Way, Kirby, 269. Petition in chancery cannot be withdrawn after a report of a committee. McCurdy v. Mather, Kirby, 273. How one of several plaintiffs in error may withdraw. Hyde v. Tracy, 2 Day, 491. How withdrawal may be proved. Union Manufacturing Company v. Pitkin, 14 C. R. 174. Attachment lien, destroyed by the withdrawal, although the suit be afterwards revived. Same. 1 When too late to challenge the power of an attorney to appear. Cockran v. Leister, 2 Root. 848. sufficient suited or defaulted. bond to be non-costs, required by bonds for prosecution and on appeal, is insufficient, or that the party, subject to bonds in such cases, is not able to pay the costs the bond was designed to secure, the court shall order a sufficient bond to be given before proceeding to try said action, unless a delay in the trial will be necessarily caused thereby; and, unless said order shall be complied with, the party in fault may be nonsuited or defaulted at the discretion of the court.* Defendant not defaulted. SECT. 74. When any process is duly served on any defendant, appearing, to be and returned to the court to which it is made returnable, and he does not appear, his default shall be recorded, and judgment may be rendered against him, unless he shall come into court on or before the second day of its session, and move for a trial, in which case he shall be admitted thereto.t 1846. 1848. of defendant SECT. 75. Any person claiming to be a creditor of the defendant When creditor in any action where property has been attached, may file his affidamay appear, &c. vit in the court in which such action is pending, alleging that he is such creditor, and that he has good reason to believe, and does believe, that the amount, which the plaintiff in such action claims, was not justly due at the commencement of the suit, and that he is in danger of being defrauded of his just rights by a recovery by the plaintiff; and thereupon he shall have the right to appear by himself or attorney, to defend such action in the name of the defendant, on giving bond, with surety, to the plaintiff, in such amount as the court shall approve, for the payment of such cost as the plaintiff may thereafter recover; and if the plaintiff shall recover his whole claim, cost shall be taxed against the defendant to the time of the appearance of such creditor; and for the residue of the cost, such creditor shall be liable upon his bond; if only a part of the plaintiff's claim shall be recovered, the whole cost shall be taxed against the defendant, and the creditor shall not be liable for the same; if judgment shall be rendered in favor of the defendant, cost shall be taxed in his favor against the plaintiff, but the court may order that the judgment and execution therefor shall belong to and may be collected by such creditor. What defense the creditor is not permitted to make. When defendant is out of the continued. SECT. 76. On the trial of any cause, according to the provisions of the preceding section, in which a creditor shall appear and defend, such creditor shall not be permitted to plead in abatement, nor to plead or give in evidence the statute of limitations, nor usury, nor that the contract was not in writing, according to the requirements of the statute, nor any other statutory defense which is consistent with the justice of the plaintiff's claim. SECT. 77. When the defendant, being an inhabitant of this state, state, cause to be is absent from the same, at the time of the commencement of the suit, and does not return before the first day of the sitting of the court, such suit shall be continued to the next term; and if the defendant does not return or appear by attorney, and is so remote that notice of the suit could not have been conveyed to him, such suit may be continued to the next term; and if he does not then appear, judgment may be rendered against him on default of appear Or if defendant ance; but if the defendant is not an inhabitant or resident of this state at the commencement of the suit, and does not appear and a non-resident *Motion for bond too late, when. Phelps v. Phelps, Kirby, 844; Rules, 18 C. R. 645. + Effect of judgment by default. Champlin v. Tilley, 3 Day, 303; Bradford v. Bradford, 5 C. R. 127; Fox. Hoyt, 12 C. R. 491. When judgment for default shall be entered. Rules, 18 C. R. 561. |