be reached by writ of attachment, and that he is about to abscond, with intent to defraud his creditors, as deponent verily believes.

SEC. 2. A capias may also issue in actions of tres- Actions of trespass for taking personal property, and in actions for pass. trespass upon lands.

SEC. 3. But in such case an affidavit of the plain- Trespass and tiff, or some credible person, must have been filed as damages to be aforesaid, stating positively the fact of the trespass stated in the having been committed, and specifying, as nearly as practicable, the amount of damages thereby sustained by the plaintiff in action.

affidavit.

SEC. 4. In all other actions, ex delicti, a capias shall Other actions. not issue without the order of a judge of the supreme Order of judge

court.

of sup. court.

SEC. 5. The application for such order must be Affidavit to founded on an affidavit, stating the nature of the state the nature injury for which reparation is sought, and also the of the injury, other circumstances which are relied upon for obtaining such order.

&c.

SEC. 6. Except for intentional injuries, no such Order not to be order shall be made, nor then unless it shall be ren- made except dered probable that the plaintiff will be otherwise for intentional without adequate remedy.

injuries.

SEC. 7. The judge granting such order shall insert Amount of bail therein the amount in which the defendant shall be to be inserted held to bail, and the clerk issuing the capias shall in the order, endorse thereon the same amount.

and endorsed on capias.

SEC. 8. In other cases he shall thus endorse upon In other cases the capias double the amount stated in the affidavit what shall be on which the writ is founded as aforesaid, but this endorsed. in no case need be the same as the amount of debt or damages inserted in the body of the writ.

SEC. 9. Where the name of the defendant shall be In what case unknown to the plaintiff, none of the proceedings in proceedings the case shall be deemed defective on account shall not be thereof, provided said defendant be therein de- tive. scribed with such accuracy as to leave no probable grounds for mistake.

deemed defec

SEC. 10. A capias shall be served by arresting the How capias to defendant, and keeping him in custody until dis- be served. charged according to law.

to sheriff.

SEC. 11. Every defendant so arrested shall be dis- Defendant to charged upon executing to the sheriff of the county be discharged a bond, with sufficient security, in a penal sum equal on giving bond to the amount numbered in the writ as aforesaid, conditioned that the said defendant will appear at the return day of said writ, and not depart without

If def't be com.

permission of the court, which bond shall be filed with the clerk who issued the writ.

SEC. 12. Whenever a defendant is committed to mitted, the fact prison for want of bail, that fact shall be specially to be stated in stated in the return of the writ.

the return.

Def't may be discharged, and securities released, upon

filing special bail.

What persons shall not be

special bail.

SEC. 13. When the action shall have been commenced by capias, if the defendant appear agreeably to the conditions of the bail bond, he may at any time thereafter, on motion, be discharged from custody, and the securities in his bail bond released from liability, upon the filing of special bail in the manner hereinafter mentioned, either by the defendant, the sheriff, or the securities in the said bail bond.

SEC. 4. No person shall be permitted to be special bail as aforesaid, unless he be a householder, permitted to be and resident within this Territory, or unless he possesses real estate of sufficient value within the same, and no counsellor or attorney at law, sheriff, or other person concerned in the execution of process, shall be permitted to be special bail in any action.

Bail to be by

SEC. 15. Such bail shall be by recognizance, in a recognizance, penalty equal to the amount endorsed on the capias as aforesaid, conditioned that, if judgment in the action be rendered against said defendant, he shall pay the amount thereof, or surrender himself on the issuing of a writ of execution against his body.

In open court,

tice of the

peace.

SEC. 16. Such recognizance may be entered into or before a jus in open court in the usual manner, or it may be taken by any justice of the peace of the county, in which case it shall be made in writing, signed by the parties to be thereby charged, and filed with the clerk of the court in which the cause is pending.

Course to be

be excepted to as insufficient.

SEC. 17. If such bail be excepted to as insufficient, pursued if bail before the third day of the term to which the writ was returnable, they shall either justify, or new bail shall be put in and justify, before the defendant shall be discharged, or the securities in his bail bond released from their liability. And in all cases where the recognizance of bail shall be entered into before a justice of the peace as aforesaid, such bail shall justify in the first instance.

SEC. 18. The justification of bail shall consist in stating on oath, or affirmation, that over and above all just demands against them, they are severally worth an amount equal to that stated in the recognizance as aforesaid.

and security

SEC. 19. Where such justification shall not take If not in open place in open court, it shall be made by affidavit, court, justifiwhich shall be filed with the clerk of the court cation to be made by affiaforesaid. davit. SEC. 20. If the defendant do not appear as afore- Def't failing to said, the cause notwithstanding may progress in the appear, sheriff ordinary manner, the sheriff and the security in the bail bond (if one shall have been taken) may be admitted to defend the action; and if judgment Judgment. therein be rendered for the plaintiff, it shall be jointly against the defendant, the sheriff, and the security aforesaid, or merely against the defendant and sheriff, if no bail bond shall have been taken.

may defend.

SEC. 21. In such case the sheriff, on motion, may Remedy to have judgment for the same amount against the sheriff defendant, or (if a bail bond shall have been given) against the defendant and the security therein jointly. In the latter event, such security may also,

on motion, have judgment for the like amount To security. against the said defendant.

issue.

SEC. 22. The judgments aforesaid, in favor of the For what am't sheriff and security on the bail bond, being merely execution shall intended for their indemnification, execution shall only be issued thereon for the amount collected of such parties respectively on the antecedent judgment as aforesaid; which amount shall appear from the return of the officer in whose hands the execution on such antecedent judgment shall have been placed.

SEC. 23. Where judgment shall have been rendered To be levied jointly against the defendant, the sheriff, and the on defendant's security, the officer, to whom the fieri facias thereon property, if shall have been directed, shall levy in the first instance on the property of the defendant, if any such be found.

any.

sheriff and security.

SEC. 24. If such property be sufficient to satisfy Arrest or surthe said judgment and costs, or if, before a levy render of def't upon the property of the said sheriff or security, the to discharge said defendant be arrested by, or surrendered to, said sheriff, both the sheriff and the security aforesaid shall be released from all liability by reason of said judgment.

sheriff.

SEC. 25. The defendant in such case shall be con- To remain in sidered as having been arrested by execution against custody of his body (where indeed such was not the fact) and shall remain in the custody of the sheriff until the payment of the judgment, or until he be discharged by due course of law.

Bail may sur

pal, or def't

SEC. 26. The bail of any defendant (whether bound render princi- by bail bond, or by recognizance as aforesaid) may surrender their principal, or such defendant may surrender himself in exoneration of his bail; which surrender must be to the sheriff, either in open court, or in vacation.

may surrender himself.

Surrender to be

certified, and bail discharg

ed.

SEC. 27. Where such surrender shall be made to the sheriff in vacation, he shall thereupon certify the fact, in writing, that the defendant is in his custody. Upon such certificate being filed with the clerk of the court, he shall enter on the record of the court an order of course that the bail be discharged, and shall also, on demand, deliver up the bail bond, or the written recognizance (if such shall have been filed with him as aforesaid) to be cancelled. SEC. 28. Where such surrender shall have been made previous to the time for filing special bail as filing special aforesaid, the sheriff shall again release the defendant upon the same terms and conditions as after the original arrest; and if such surrender shall be made after the filing of special bail as aforesaid, the defendant may give such bail anew in the same manner and with like effect as hereinbefore provided.

Surrender

made before

bail.

After.

Order for dis

and affidavit.

SEC. 29. In all cases where a recognizance and charge of def't affidavit of justification, as aforesaid, shall be filed on filing recog with the clerk, he shall enter on the records of the court an order of course that the defendant be discharged from custody, and shall, on demand, furnish the agent or attorney of the defendant an exemplified copy thereof.

Copy of order

sheriff.

Bail may arrest defendant.

SEC. 30. The sheriff, upon being served with said to be served on copy, shall forthwith discharge the said defendant. SEC. 31. Any one of the bail aforesaid, upon application to the said clerk of the court, may obtain a capias to him, directing and authorizing him to arrest the defendant wherever he may be found in this Territory, and bring him forthwith to be surrendered to the sheriff of the proper county.

Copy of bail bond must ac

company capias, to render it

valid in other

counties.

Defendant

ed by bail in

SEC. 32. Such capias, to be valid in any other county than that in which it shall have been issued, must be accompanied by a copy of the bail bond or recognizance aforesaid, certified by the clerk under the seal of the court.

SEC. 33. Subject to the qualification contained in may be arrest the last preceding section, said bail, by virtue of the capias aforesaid, shall in any county in this Territory possess all the powers of the sheriff of such county to arrest the defendant, and may use all needful

any part of the Territory.

means to secure said defendant for a reasonable time until he can be surrendered to the sheriff of the proper county.

SEC. 34. All costs and expenses incident to the Costs on sursurrendering of the defendant, and giving new bail render and as aforesaid, shall be paid eventually by the defend- new bail.

ant.

SEC. 35. The plaintiff in the action shall not be When plaintiff entitled to bring any suit on the recognizance of entitled to bail until,

1st, An execution against the property of the defendant shall have been issued to the sheriff of the proper county, and the same returned unsatisfied in whole or in part. And,

2d, An execution against the body of the defendant, at least fifteen days between the test and the return day thereof, shall have been issued to said sheriff, and by him returned that the defendant could not be found in his county.

bring suit on recog, of bail.

such action.

SEC. 36. In such action against bail, they may plead What the bail that the plaintiff has not pursued the above direc- may plead in tions, or that any collusive or fraudulent means were used to prevent the service of either of said writs; and if any such defense be established, it shall entitle the said bail to a verdict.

SEC. 37. Where the defendant in a suit shall die Death or surbefore the rendering of judgment against his bail, render of def't before judgor where, being alive, he shall have been surrendered ment against previous to such judgment, such bail shall be released bail, to release from further liability upon paying the costs of the them from liaproceedings against them, if any shall have been bility.

had.

SEC. 38. Where judgment shall be obtained against the special bail in an action, such bail may, on motion, Special bail have judgment for like amount against the said may have judgdefendant, but execution thereon shall only issue ment against for such amount as by the sheriff's return shall appear to have been collected from such bail on the original judgment.

APPROVED, January 25, 1839.

defendant.

BANKING ASSOCIATIONS.

AN ACT to restrain unincorporated Banking Associations.

SEC. 1. Be it enacted by the Council and House of Representatives of the Territory of Iowa, That no per