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less provision to the contrary be made in the charter of such corporation, or in some general law of the state, relating to some particular class of corporations; and a certificate of such service by the officer who made the same shall be considered as due proof thereof.
Sec. 39. All writs of scire facias may be served by summons, arrest or attachment, at the election of the plaintiff
, and the form of such writs may be so varied as to adapt them to either manner of service; but no attachment of personal or real estate, or by trustee process, shall be made thereon, except in such cases as is by law provided for such attachment on writs of arrest.
SEC. 40. A summons for a witness shall be served by reading the same to him; and every witness so summoned, and having his lawful fees tendered to him for his travel from his place of abode to the place at which he shall be summoned to attend, and for one day's attendance, shall be obliged to attend accordingly; and if he does not appear according to the tenor of such summons, having no reasonable let or hindrance to the contrary, he shall be liable to the action of the aggrieved party for all damages sustained in consequence of such default ; and the court or justice of the peace shall have power, by writ of attachment, to bring such witness into court and to fine him, not exceeding twenty dollars, and to order him to pay the costs of such attachment, and to be committed to prison until such fine and costs be paid; but a witness summoned in behalf of the state shall have no right to have his fees paid or tendered to him before he shall be bound to obey the same.
SEC. 41. No civil process whatever shall be served on Sunday, but every such service shall be utterly void.
Sec. 42. All the waters of Narragansett bay situated to the northward of Field's Point shall be deemed a part of the county of Providence, and be within the jurisdiction of said county; and all the other waters of the said bay shall not be deemed to make part or be within the sole jurisdiction of any one particular county ; but it shall be lawful for any sheriff or other officer duly authorized, to serve any writ or oiher process, whether of a civil or criminal nature, within any part of the waters of said Narragansett bay.
Sec. 43. Every original writ issued against any female, founded on a contract not under seal, shall be a writ of summons and not a writ of arrest. No execution shall issue against the body of any female, on any judgment founded on contract not under seal, where the debt or damages recovered do not exceed the sum of fifty dollars.
In such cases executions shall issue against the goods and chattels and real estate of the defendants.
An Act prescribing the manner of proceedings in Courts.
SECTION 1. Actions when to be entered, and what gested and administrator to prosecute constitutes an entry.
or defend the same. 2. Defendant's addition to be given in 27. Executors and administrators not to be writs, &c.
arrested or holden to bail, nor property 3. Defendant may file several pleas, and attachable, except in certain cases.
plaintiff several replications. 28. Actions against executors and admin4. In certain cases, tender may be made istrators, when to be brought.
or money brought into court.—Effect 29. Administrators de bonis non may have of tender.
executions on judgments, obtained by 5. Defendant may plead payment in ac- preceding executor or administrator.
tions of debt on judgment, &c., and on 30. Reasons of appeal when to be filed. bond, after day of payment.
31. Appeal how to be tried.-Complaint 6. Plaintiff to annex his account to his for confirmation of judgment, when
declaration, and defendant to his plea. to be filed. 7. Courts to offset judgments between 32. In case of new trial granted, when acsame parties.
tion to be entered. 8. Sheriffs to offset executions.
33. Costs by whom to be paid. Of imma9. In action on a bond, &c. for penalty, terial testimony to be rejected; of
judgment shall be for whole pen- written testimony not to be taxed unalty.
less noted on the same. 10. In a judgment for penalty, execution 34. In certain cases, costs in the discretion
to issue for amount due the plaintiff. of the court. 11. Scire facias may issue on the judgment | 35. Plaintiff not to recover more costs
for penalty, for further breaches. than damages in certain cases. 12. Same subject.
36. By whom courts may be adjourned, 13. Suits may be brought for breach of from day to day.
covenant or agreement, and not for 37. Courts may be adjourned by writ.penalty.
How directed and served. 14. Courts may assess damages in certain 38. Courts failing to meet, business to be cases without a jury.
continued. 15. View may be had in cases affecting 39, Foreman of grand jury may swear the realty.
witnesses before a grand jury. 16. Parties to a suit may enter a rule, and 40. Oath of grand and petit jurors.
so may other persons.—Terms of rule. 41. Inhabitants of towns to be witnesses
- Proceedings before and powers of in cases in which towns are interested. referee.
42. No judge to sit in the trial of a case on 17. Same subject.
appeal who gave judgment in chief in 18. Any person may enter a rule in clerk's the court appealed from.
office in vacation, by petition.-Pro- 43. Judgments how to be recorded; receedings in such cases.
cords may be amended. 19. No process to be quashed for want of 44. Executions when to be issued, and
form.-Amendments may be made- when returned.
45. Representatives of one jointly bound 20. Partner omitted may be made defen- liable after surviving debtor has been dant.—How proceeded against.
pursued to execution. 21. Courts may appoint auditors in suits 46. Judgment against part of joint contracbetween partners and others.
tors, no bar to action against others. 22. If several defendants in trespass, 47. In appeals from judgments on notes, those acquitted to recover costs.
&c. appellee to recover double inter23. Plaintiff in supreme court not to dis- est and double costs, in certain cases.
continue after cause is submitted to 48. Where plaintiff is not an inhabitant of the jury.
this state, he must procure an inhabi24. Surviving plaintiff may proceed against tant to endorse his writ; and court
surviving defendant, if action survive. may require plaintiff to give defendant 25. Actions which survive.
security for costs in all cases. 26. Party to a suit dying, death to be sug- 149. Every endorser of a writ liable to pay
SECTION defendant, costs he may recover of 54. Clerks to note on margin of executions plaintiff.
when judgments were rendered, and 50. Actions in what county to be com- kind of action. menced.
55. Officers bound to collect and pay over 51. Same subject.
interest on executions. 52. Plaintiff and appellant to pay jury fee | 56. Judgments when to be entered up.
of $5 before verdict shall be recorded, 57. Executions may be issued at any time and half jury fee if case be opened within six years after judgment,
and disposed of without a verdict. 58. Fees of surveyors and other officers 53. Judgments over $20 to draw interest appointed by a court, may be apporon the debt till paid.
tioned between parties to a suit.
It is enacted by the General Assembly, as follows :
SECTION 1. All actions and appeals in the supreme court and in the several courts of common pleas, shall be entered on the first or second days of the term, and not afterwards, without special leave of the court; which they are hereby empowered to grant, in their discretion, in case the party who brought the action to the same court, and whose duty it was to enter it, was prevented from so doing by mistake, 'inevitable accident or misfortune. But no action shall be considered as entered until the necessary papers are filed with the clerk, and the legal entry paid.
Sec. 2. In every indictment, and in every warrant or other process to arrest the body of any person in a criminal suit, and in every writ of arrest or original summons in a civil action, there shall be added to the name of the person against whom the same shall be issued, the place to which he shall, at the time of finding such indictment or issuing such writ, summons, warrant or other process, belong, or the place in which he is, or of late was, commorant, and also his degree or mystery; and in case such additions shall be omitted in
such indictment, writ, summons, warrant or other process, the same, upon exception being taken thereto, by the person with respect to whom such omission shall be made, shall be quashed or abated : provided, that nothing herein contained shall prevent the amendment of any process in the manner by law prescribed.
Sec. 3. It shall and may be lawful for any defendant in any action or suit, and for any plaintiff in replevin, in any court or before any justice of the peace, with leave of such court or justice, to plead as many several matters thereto as he shall think necessary to his defence; and, with like leave, any plaintiff may reply as many several matters to the defendant's plea or pleas as he shall think necessary.
Sec. 4. The defendant in every action of debt, action of covenant, and in every action on the case grounded on an express or implied contract, in every action of trespass for breaking and entering the plaintiff's close, wherein the defendant shall, in his plea, disclaim all right, title and interest in and to the said close, and in every action of trespass or trespass on the case for any injury done to personal property, or for trover, that may be pending before any court or before any justice of the peace, shall have right to make and plead a tender; or may have leave to bring into court the money which he shall acknowledge to be due on such contract or sufficient amends for such trespass or injury, together with the plaintiff's lawful costs expended up to the time of the tender made or pleaded, or the bringing of the money
into court; and the plaintiff shall have a right to take the same in full or in part satisfaction of the demand made in such suit; but if he shall receive the same in part satisfaction only, and shall proceed further in the same suit, and the court or jury or justice of the peace, who shall finally assess the damages in such case, shall determine that no more was due on the demand made in such suit than was tendered or brought into court as aforesaid, at the time the same was tendered or brought in, the plaintiff shall not recover costs, but shall be obliged to pay the defendant his costs, after said tender or after the money was brought into court as aforesaid, as the case may be.
Sec. 5. When any action of debt shall be brought upon any bond without condition, or when an 'action of debt or writ of scire facias shall be brought on any judgment, if the defendant hath paid the money due upon such bond or judgment, such payment shall and may be pleaded in bar of such action or suit; and when an action of debt is brought upon any bond which hath a condition or defeasance to make void the same upon the payment of a less sum at a day or place certain, if the obligor, his heirs, executors or administrators, have, before the action brought, paid to the obligee, his executors or administrators, the principal and interest due by the defeasance or condition of such bond, though such payment was not made strictly according to the condition or defeasance, yet it shall and may, nevertheless, be pleaded in bar of such action; and shall be as effectual a bar thereof as if the money had been paid at the day and place, according to the condition or defeasance, and had been so pleaded.
Sec. 6. When an action shall be brought to recover a debt due on any book account, the plaintiff shall annex to his declaration on filing the same, an account of particulars; and the defendant in such case, and also in all actions on an account stated by the parties, a quantum meruit, quantum valebat, or for goods sold, or for services done at an agreed price,
may plead the general issue and may file any account he hath with his said plea; and the court or jury who shall assess the damages in such case shall determine the balance due to either party; and the party in whose favor the balance shall be found shall recover judgment therefor, together with his costs, and shall have execution accordingly; and whenever any defendant shall have any demand on the plaintiff for any sum liquidated, or for one which may be ascertained by calculation, and which is founded on a judgment, or upon a contract, whether express or implied, and whether with or without a seal, and which existed at the time of the commencement of the action and then belonged to the defendant, in his own right, and for which he might maintain a suit in his own name, he may set off the same in any action founded upon any demand which could itself be set off: to entitle the defendant to a set off, he shall file a statement of his demands in court, or in the clerk's office, at the term in which the action is entered, on or before the second day of said term, or within such further time as the court shall allow : in such statement the defendant shall set forth his demands with as much certainty as would be required in a declaration : and the court in which the action may be pending may render judgment for the defendant for the balance due to him, with costs.
SEC. 7. Whenever any court shall, at the same term, render final judgment for debts or damages, in two or more personal actions, in which the parties shall be reversed, and shall sue and be sued in the same right and capacity, such court shall set off the debts or damages recovered in the said judgment, and issue execution for the balance only, in favor of the party to whom it shall be due, with costs if costs were recovered, and a separate execution in favor of the other party for costs if costs were recovered by him.
Sec. 8. If any officer shall, at the same time, have two or more executions delivered to him to serve, in which the parties shall be reversed, and shall sue and be sued in the same right and capacity, he shall set off the debts or damages in the same, and levy and collect the balance only that will remain due thereon, with the costs on all said executions.
Sec. 9. In all actions brought for the breach of the condition of a bond, or to recover a penalty for the non-performance of any covenant, contract or agreement, when it shall appear by verdict, default, submisssion or otherwise, that the condition is broken or the penalty forfeited, judgment shall be entered in the common form for the penal sum, but no