ment. on such execution at any time within said thirty days after the rendition days after judgof judgment or surrender by the bail, as he might have done if such 1837, 198, § 6. bond had not been given. And the commitment of the debtor in such case shall be deemed equivalent to his surrender according to the condition of his bond, and shall discharge the same. SURRENDER OF PRINCIPAL ON RECOGNIZANCES. surrendered on SECT. 45. Whoever recognizes as surety for another as provided in Proceedings this chapter, may at any time before breach of recognizance surrender when principal is his principal and exonerate himself from all further liability, in the man- recognizance, ner provided for the surrender by bail, and all the proceedings on such See Ch. 125. surrender shall be the same as provided in the case of bail. REMEDY ON RECOGNIZANCES AND BONDS, AND FOR ESCAPES. 1857, 141, § 26. nizances and 2 Allen, 75. SECT. 46. When any recognizance or bond taken under this chapter Remedy on recogis broken, the creditor may have a remedy thereon by action of contract, bonds; to be commenced within one year after such breach; and judgment shall 1887, 141; § 28 be entered for the amount of the penalty, but execution shall issue for 10 Gray, 286. so much thereof only as may be justly and equitably due: provided, & Allen, 393. that if the recognizance was taken on an execution, the execution shall 98 Mass. 31. not issue for less than the amount due on the original judgment, with See 1870, 313, § 1. all the lawful costs and charges arising after the issuing of the original execution. SECT. 47. When an escape is made by a prisoner arrested or committed on execution in a civil action, whether the escape be negligent or voluntary on the part of the officer, the creditor may in an action of tort against the officer recover such damages as he has suffered by the escape, and may also have his remedy against the original debtor by scire facias, or an action of contract on the judgment. 1 FEES. a for an escape. R. S. 97, §§ 71, 72. 1852, 312, 2 Gray, 214. 4 Allen, 74. trate; 3 Allen, 245. 6 Allen, 288. 9 Allen, 378. 14 Allen, 513. See 1866, 193, § 1. . 288 SECT. 48. The fees of the magistrate shall be: for hearing an appli- Fees of magiscation for a certificate to arrest, one dollar; for approving sureties and 1855, 249, § 1. taking a recognizance after arrest, one dollar; for an examination, 1857, 141, 29. 1855, 276, § 6. two dollars for each day spent therein. And the plaintiff or creditor 1 Allen, 492. causing an arrest shall pay these fees in advance. If the oath is not Allen, 426. administered, they shall be allowed as part of the service of the writ or execution. If the plaintiff or creditor shall, at any time after request, make default in payment of the fees, or if the plaintiff or creditor, or some one in their behalf, shall not attend the examination, the defendant or debtor shall, without examination and without payment of any fees, be discharged from arrest or imprisonment, and shall be forever exempt from arrest on the same execution or any process founded on the judgment; and a certificate of such discharge under the hand of the magistrate shall be annexed to the writ or execution: provided, that if, after the oath shall have been once refused, the defendant or debtor shall again apply for the benefit of the same, the fees for such subsequent application or examination thereon shall be paid by him. The fee of a magistrate for approving a bond under the provisions of sections forty and forty-three shall be one dollar, to be paid by the applicant. of judge under section thirty SECT. 49. The fee of the judge for receiving a petition, issuing the order of notice, and for the examination and adjudication under the eight; provisions of section thirty-eight, shall be five dollars, to be paid by the petitioner. SECT. 50. The fees of the jailer, under the provisions of sections 81 54米 1848, 320, § 2. of jailer. 642 1837, 198, § 4. forty-one and forty-two, shall be as follows: on a surrender of a debtor, fifty cents; and for a certificate thereof, or of the non-surrender of the debtor, twenty-five cents, to be paid by the officer and charged with the expenses of serving the execution. In other cases where a certificate is required, the jailer shall be entitled to a fee of twenty-five cents, to be paid by the party requiring the same. Defendant arrest ed on mesne pro- 1857, 141, § 22. how taken. R. S. 91, § 1. 12 Mass. 434. Officer may re- 1852, 211. 9 Mass. 479. Bond may be ap- to bind those SECTION 1. A defendant arrested on mesne process shall be released on giving bail; but if he has been sentenced to imprisonment on any charge of fraud under the provisions of chapter one hundred and twenty-four, the giving of bail shall not discharge him therefrom. SECT. 2. Bail in a civil action shall be taken as heretofore practised. by a bond to the sheriff, if the writ is served by him or his deputy, otherwise to the coroner or other officer by whom the writ is served, with condition that the defendant shall appear and answer to the plaintiff, abide the final judgment of the court, and shall not avoid. SECT. 3. An officer shall not be required to accept a bail bond unless with two sureties at least, each of them having sufficient property within the state; and he may examine, on oath to be administered by him, the persons offered as sureties, as to their sufficiency. If he takes a bail bond with one surety only, he shall be liable to the plaintiff for any loss sustained by the insufficiency of the bail, although the surety was actually sufficient when taken. SECT. 4. The bond may be approved by any justice of a court of record or police court, judge of a probate court, master in chancery commissioner of insolvency, trial justice, or by a justice of the peace and of the quorum, and when so approved the sureties shall be deemed sufficient. The magistrate shall be paid by the applicant one dollar for the examination and approval or disapproval of the bond. SECT. 5. A bail bond shall bind the persons who execute it. though either of them have not sufficient property within the state, or when it is not approved as aforesaid. R. S. 91, § 3. 1850, 199, § 1. 2 9 Met. 490. Bond to be re R. S. 91, § 4. SECT. 6. The bond shall be returned and filed with the writ, and the clerk shall note on the writ that a bond is so filed. Upon an appeal, the bond shall be sent with the other papers to the court appealed to. SECT. 7. In case of the avoidance of the principal and a return on Met. 564. the execution that he is not found, his bail shall be obliged to satisfy 103 Mass. 398. the judgment, with interest thereon from the time it was rendered, unless obligations of he discharges himself by surrendering the principal before final judgment R. 8. 91, § 5. against him on the writ of scire facias, or by other sufficient defence in 11 Cush. 15. that suit. SECT. 8. The bail bond shall be considered so far a matter of record and of the nature of a recognizance, that the creditor may take out a writ of scire facias thereon in his own name against the bail, in which it shall be sufficient to allege, substantially, that the defendants became bail, without setting forth the bond. bail. 2 Met 328. 2 Met. 587. same subject; SECT. 9. The scire facias shall be issued from the court in which the judgment against the principal is rendered, and may be taken out of the R. S. 91, § 7. clerk's office in vacation as well as term time. to be brought within one year. SECT. 10. No such action shall be maintained against any person as bail, unless the writ of scire facias is served on him within one year R. S. 91, $8. after the rendition of final judgment against the principal. SECT. 11. The defendants in such action may appear and answer either jointly or severally to the plaintiff's allegations. SURRENDER OF PRINCIPAL, &c. 5 Gray, 397. R. S. 91, § 9. court, &c.: SECT. 12. The bail may surrender the principal in the court where Principal may be the scire facias is pending at any time before final judgment therein surrendered in against them, and on paying the costs of the scire facias up to that time R. S. 91, § 10. they shall be discharged. and commit ted: 117M. 281 SECT. 13. The principal so surrendered shall be committed to the jail, there to remain thirty days in order to his being taken on execu- R. s. 91, § 11. tion, unless he is discharged as provided in chapter one hundred and twenty-four. may be sur rendered out of R. S. 91, § 12. court. &c.: SECT. 14. The bail may at any time before final judgment against him on a writ of scire facias, exonerate himself from further responsibility, by surrendering his principal as provided in the five following sections. SECT. 15. Such surrender may be made to the keeper of the jail, to keeper of the either in the county in which the principal was arrested or in that to which the original writ against the principal was returnable, and the jailer shall receive the prisoner and hold him in custody in like manner as if he had been committed by the officer who arrested him on the original writ. such case. SECT. 16. The jailer shall not be obliged to receive a person so sur- Proceedings in rendered, unless the bail delivers to him a copy of the bail bond attest- R. S. 91, § 14. ed by the officer who took it or the clerk in whose custody it may be. The delivery of such copy shall be a sufficient warrant for the jailer, although the surrender and commitment prove to be unlawful on the part of the bail. SECT. 17. The bail shall within fourteen days after such surrender Same subject. deliver to the jailer a copy of the original writ or process whereby the prisoner was arrested, with a copy of the return indorsed thereon, attested by the officer who served the writ or the clerk into whose office it is returned. tiff. SECT. 18. He shall also within the same time give notice in writing Notice to plainto the plaintiff or his attorney, of the time when and the place where R. S. 91, § 16. the prisoner was so committed. 11 Allen, 394. Bail to pay costs on scire facias when, &c. R. S. 91, § 17. 11 Cush. 16. Treatment of principal after surrender. R S. 91, § 18. Principal may be surrendered on R. S. 91, § 19. SECT. 19. If the surrender is made after a writ of scire facias is taken out against the bail, he shall within fourteen days after the surrender pay the costs of suit on the scire facias to the creditor or his attorney, or to the jailer for his use: provided, that if the writ of scire facias has not been served on the bail, he shall not be required to pay the costs thereof until twenty-four hours after he has notice of the issuing of the writ, and after a demand of the costs made on him by the creditor. SECT. 20. Every person surrendered and committed shall be received by the jailer, and held in custody. He may be forthwith bailed, whether notice of the surrender has or has not been given to the plaintiff, and shall in all respects have the same rights and privileges as if committed upon the original arrest. SECT. 21. Nothing contained in the preceding sections shall impair the original suit. the right of bail, in all cases, to surrender their principal in the court in which the original suit is pending, at any time before final judgment; or, after judgment, to surrender him to the officer holding the execu tion, at any time before the return thereof. Proceedings on bail bond before a justice of the peace or police court. R. S. 91, § 20. Surrender of principal in such case R. S. 91, § 21. Officer to attend, if requested. R. S. 91, § 22. Proceedings upon surrender. R. S. 91, § 23. Same subject. 25, BAIL IN ACTIONS BEFORE JUSTICES OF THE PEACE, &c. SECT. 22. When bail is taken in an action before a justice of the peace or police court, the justice or court may issue a scire facias against the bail, although the amount of the debt and costs on the original judgment exceeds the amount to which his jurisdiction is otherwise limited; and the rights and obligations of the bail, and all proceedings as to the surrender of the principal and the action against the bail, shall be substantially the same as are provided with regard to bail when taken in suits in other courts. SECT. 23. When the bail in a suit before a justice of the peace or police court proposes to surrender his principal in court, either during the pendency of the original suit or the scire facias, he shall procure the attendance of some officer qualified to serve legal process in the case, to whom the principal may be committed. SECT. 24. Every such officer who is seasonably notified and requested to attend for the purpose aforesaid, shall attend, and receive and take charge of the principal if committed to his custody by the justice. SECT. 25. When the principal is surrendered in such suit, an entry thereof shall be made on the record, and he shall be forthwith committed to the officer in attendance, to be conveyed to jail or otherwise disposed of according to law. SECT. 26. If the principal is surrendered before final judgment in R. 8. 91, §§ 24, the original suit, the bail shall deliver to the officer a copy of the origi nal writ, with the return indorsed thereon, attested by the justice. If the surrender is after final judgment in the original suit, the bail shall deliver to the officer a copy of the entry of the surrender, attested in like manner. The officer shall deliver the copy to the jailer, on com mitting the prisoner to his custody; and such copy shall be a sufficient warrant to the officer and the jailer, for receiving, committing, and holding the prisoner according to law. Fees of officer. R. S. 91, § 26. When debtor is surrendered by bail and claims support as pauper, &c. R. S. 97, § 54. SECT. 27. The officer shall be allowed the same fees, to be paid by the bail, as are provided for arresting and committing a defendant on mesne process. SUPPORT OF PRINCIPAL. SECT. 28. When a principal, surrendered by his bail and committed to jail, claims support as a pauper, the jailer may require the plaintiff, or his attorney in the suit, to give security or advance the money for the support of the defendant in like manner as if the commitment had been made by an officer. If the plaintiff neglects so to do for twentyfour hours after being so required, the jailer may discharge the defendant. surrendered by per, &c. SECT. 29. The jailer in such case may at the time of the surrender When debtor is demand of the bail the advance of money for the support of the prin- bail, and claims cipal or security therefor, instead of demanding the same of the plain- support as pautiff; and if the bail neglects, for twenty-four hours after such demand, R. s. 97, § 55. to give such security or advance the money for the support of the principal, the jailer may discharge him; and the bail and the principal shall thereupon continue liable to the plaintiff in all respects as if the surrender had not been made. for support of SECT. 30. The bail, if such demand is made of him, shall be liable when bail liable for the support of the principal until the expiration of seven days after prisoner. he has given notice of the surrender to the plaintiff or his attorney in R. S. 97, § 56. the suit. creditor commences. SECT. 31. The plaintiff shall be liable for the support of the defend- When liability of ant after the expiration of said seven days; and if he neglects to advance the money or give security therefor as before provided at or before R. S. 97, § 57. the expiration of said time, the jailer may discharge the defendant. 1. Actions against persons out of the state. 2. Plaintiff out of state liable to cross-action, &c. 3. Each of several defendants may have crossaction. 4. Writ, how served in such case. 5. Proceedings in such actions. Following provisions not to apply. 6. Notice to be given to defendant out of state, or whose residence is unknown, &c. 7. If defendant does not appear, &c., after notice, judgment to be rendered, &c. 8 Bond, when to be given by plaintiff, upon default of absent defendant. SECTION the state. R. S. 90, $44. SECTION 1. No personal action shall be maintained against a person Actions against who is out of the state at the time of the service of the summons, unless persons out of he had before that time been an inhabitant of the state, or unless an effectual attachment of his goods, estate, or effects, is made on the original writ, except in cases in which it is otherwise specially provided. 13 Gray, 271. 5 Allen, 140. 11 Allen, 134. 105 Mass. 506. 3 Mass. 420. 5 Met. 400. 5 Cush. 52. 6 Cush. 354. cross-action, &c. 10 Cush. 183. 3 Gray, 508. SECT. 2. When an action is brought by a person who is not an in- Plaintiff out of habitant of this state or who cannot be found therein to be served with state liable to process, he shall be held to answer to any action brought against him R. S. 90, § 49. here by the defendant in the first action, if the demands in the two cases are of such a nature that the judgment or execution in the one case can be set off against the judgment or execution in the other. SECT. 3. If there are several defendants in the original action, each Each of several of them may bring such cross-action against the original plaintiff, and have a crossmay be allowed to set off his judgment against that which may action. be reR. S. 90, $50. covered against himself and his co-defendants in like manner as if the 4T R. 123. latter judgment had been against himself alone. 16 Mass. 478. 1 Met. 80. SECT. 4. The writ in such cross-action may be served on the person Writ, how defendants may 7 Mass. 140. |