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agent, or any debt due to the defendant, shall be secured in their hands to pay such judgment as the plaintiff shall recover, and may not otherwise be disposd of.
Such service shall be a sufficient notice to the defendant to enable the plaintiff to bring his action to trial, unless the defendant be an inhabitant of this state, or has some time resided therein; and then a like copy shall be left at his last usual place of abode. The agent may defend his principal in the suit, but if the defendant is not in the state, and does not appear in person during the first term, the court may order the case to be continued to the next term; meantime, notice being given of the pendency of such suit in a newspaper or otherwise, and if he does not then appear, the court may order a further continuance, so that the party may be notified of the pendency of the suit; and then, unless some special matter be alleged for delay, the case shall come on for trial.
But when the action is brought before a justice of the peace, and the de. fendant is not in the state, and no agent or factor appears, the justice of the peace may adjourn the case for a term not less than three, nor more than nine months, and then, unless special reasons are given for the delay, the action shall come on for trial; and if judgment shall be rendered for the plaintiff, all the goods and effects in the hands of such attorney, agent, factor, or trustee, and the debt due from such debtor, shall be liable to pay the same. The plaintiff praying out execution, may direct the officer serving the same, to make demand of such agent, factor, or trustee of the goods and effects of the principal in their hands, who is obliged to expose them to execution, and also to make demand of such debtor of any debt due to the defendant; and if he does not, he will be liable to pay the debt or satisfy such judgment out of his own estate. A scire facias may be taken out from the clerk of the court where such judgment was rendered, requiring him to appear and show cause, if any he have, to the contrary, and the de. fendant may disclose on oath whether he have any of the goods or effects of the absent debtor, or whether he is indebted to him ; and
any per evidence
may be adduced touching these facts. If it is found that the defendant has any of the goods of the absent debtor, or is indebted to him, or if he makes default of appearance, or refuses to disclose on oath, judg. ment shall be rendered against him as for his own debt, to be paid out of his own goods or estate with lawful costs, and execution shall issue there. on. But if it appear that the goods or effects are of less value, or the debt of less amount than the judgment against the absent debtor, then judgment shall be rendered to the value of the goods and the amount of the debt; and if it appear that the defendant has no goods and effects in his hands of such debtor, and is not indebted to him, then he is permitted to recover his law. ful costs.
This scire facias, when it is issued on a judgment rendered by a justice of the peace, must be signed by the said justice rendering the judgment, and where the demand does not exceed thirty-five dollars, it is made re. turnable before a justice of the peace; but if it exceeds that sum, then it is made returnable before the County Court.
The taking of any goods or effects of an absent or absconding debtor, or any debt due to him as aforesaid by process and judgment of law, out of the hands of the agent, attorney, factor, trustee, or debtor, by any of his credi. tors, forever discharges him or them from any suit in demand for the same; and if sued for any thing done in compliance with this act, he or they may
piead the general issue, and give the special matter in evidence. When the debt is not due, execution may be stayed, and when the debt is not payable at the time the demand was made on the execution, the court shall allow the garnishee his reasonable costs for defending against the scire facias, to be deducted out of the debt so due.
When a scire facias is brought to recover goods or effects belonging to an absent or absconding debtor, the person who claims to be the assignee of such goods, having received proper notice, may come and defend against such scire facias ; and unless such claimant shall, within such time as the court before whom the scire facias is pending shall direct, give to the de. fendant security to indemnify him against all costs, he may suffer judgment by default or otherwise to be given against him on such scire facias, which shall be a bar to the claim of the assignee of the debt, or the owner or owners of the goods or effects, and the defendant may give the same in evidence under the general issue in an action brought to recover the debt, or the value of the goods or effects. If the assignees give such security and recover judgment, they shall be entitled to the bill of costs; but if he or they shall fail to make effectual defence, the judgment rendered on the scire facias against the defendant shall be a bar to any claim against him, and he may give it in evidence under the general issue. If, however, the defendant refuses to disclose, he can take no benefit of the act before mentioned. The demand upon the execution must be made upon the garnishee within sixty days after the rendition of the judgment." And no writ of scire facias can be maintained against such attorney, agent, factor, trustee, or debtor, unless the same be brought within one year next after the right of taking out or bringing the same shall have accrued.
The plaintiff in a suit by foreign attachment may, at his discretion, insert in the writ a direction to the attorney, agent, factor, trustee, or debtor of the defendant, to appear before the court before which the same is returnable, to disclose on oath whether he has any effects of the creditor in his hands; and if he has not, and is not indebted to him, the defendant shall recover his costs. But if it shall be found that he is indebted to the creditor, then the court shall issue judgment for that amount against the garnishee. But if the garnishee refuses to appear, or on appearance, refuses to disclose, he shall be liable for costs, although he did not possess the goods at the time; or, if the plaintiff withdraws the suit, he is liable for costs. By the statute all debtors who are discharged from imprisonment are deemed absconding debtors; and no debt under ten dollars, which accrued by reason of the personal labor of another, is subject to foreign attachment.
BILLS OF EXCHANGE.
All promissory notes, duly executed, to the amount of thirty-five dollars, for the payment of money only, and made payable to any person or per. sons, or his, her, or their order, or to the bearer, shall be assignable and negotiable, according to the customs of merchants and the laws relating to inland bills of exchange. But whenever any bill of exchange, negotiated within this state and drawn upon any person in any other state, shall be returned unpaid, and shall have been duly protested for non-payment, as is usual in cases of foreign bills of exchange, the persons to whom the bill is made payable shall be entitled to recover and receive of and from the drawer or
drawers, or the endorser or endorsers of such bill of exchange, the damages hereafter specified, over and above the principal sum for which such bill of exchange shall have been drawn; together with lawful interest on the aggregate amount of such principal sum, and damages from the time at which notice of such protest shall have been given ; together with lawful interest on the aggregate amount of such principal sum, and damages from the time of the notice of the protest, and the payment of the principal sum and damages demanded. The subjoined are the rates of damages. If the bill is drawn upon any person in the city of New York, two per cent upon the principal sum specified in such bill. If upon any persons in the states of New Hampshire, Vermont, Maine, Massachusetts, Rhode Island, New York, (excepting the city,) New Jersey, Pennsylvania, Delaware, Mary. land, or Virginia, or in the District of Columbia, three
such principal sum. If upon any person or persons of or in the states of North Carolina, South Carolina, Ohio, or Georgia, five per cent upon such principal sum ; or, if upon any person in any other of the states and territories, eight per cent upon such principal sum. These damages are received in lieu of interest and all other charges, to the time at which the notice of such protest and demand of payment shall have been made and given as aforesaid. The amount of the bill and the damages payable thereon, as above specified, is determined without any reference to the rate of exchange existing at the time of notice and demand of payment, as aforesaid. It is also provided that protests of inland bills of exchange and promissory notes, protested out of this state, are to be used as prima facie evidence of the facts contained in them.
It is provided by the statute law of this state that if any person shall wilfully and designedly, by color of any false token, pretence, or device whatever, obtain from any individual, persons, or corporation, any money, goods, chattels, or other valuable thing, with an intent to cheat or defraud any such person, persons, or corporation, every such person being thereof duly convicted, shall be punished by fine not exceeding five hundred dollars nor less than fifty dollars ; or, by an imprisonment in a common jail not exceeding one year, nor less than two months ; or, by such fine and im. prisonment both, at the discretion of the court having cognizance of the offence.
DEEDS OF CONVEYANCE OF REAL ESTATE.
All grants, bargains, and mortgages of land are required to be in writing, subscribed by the grantor with his own hand or mark, to which mark his name must be annexed, and also attested by two witnesses with their own hands or marks, unto which marks their names must be annexed; or, the name of the grantor must be subscribed to such grant by his lawful attor. ney, authorized by a written power for that special purpose, duly executed and acknowledged in such manner as is prescribed in case of deeds, and such subscribing of the name of the grantor must be attested by two wil. nesses. Such deeds must be duly acknowledged to be the free will and act of the grantor, before a justice of the peace, a judge of the Supreme or District Court of the United States, or of the Supreme or Superior Court,
or of the Court of Common Pleas or County Court, or before a commis. sioner or other officer having the power to take the acknowledgment of deeds. All grants, deeds of bargain and sale, and mortgages of houses and lands, shall be recorded at length by the register or town clerk, where such lands and houses lie, and no deed of this character is good so as to hold such houses and lands against any one but the grantor or grantors, and their heirs only, unless recorded as aforesaid. The register or town clerk is bound to note the day, month, and year when the deed is received for record, and the record must bear the same date. It is moreover provided that where deeds are executed by a power of attorney, the power of attorney shall be recorded with the deed. No lease of any house or lands exceeding the term of one year is valid unless it is in writing, and subscribed by the lessor and two witnesses, acknowledged and recorded at length in the records of the town where such estate lies.
Every person of the age of twenty-one years, and of sound mind, may make a will of his real estate, and all persons of the age of seventeen years, and of sound mind, may make a will which shall devise their personal es. tate. Married women have the power of devising their estate, real and personal, the same as other persons. Wills must be in writing, subscribed by the testator, and attested by three subscribing witnesses, who shall subscribe the will in the presence of the testator. All devises to a subscribing witness are void, provided that such devise, legacy, or interest, be not made to an heir at law. If the devisee die before the testator, the estate goes to his heirs at law, or if a child is born after the execution of the will, and no provision is made in the will for this event, the birth of this child operates as a revocation of the will. No will can be revoked but by burning, cancelling, tearing, or obliterating the same by the testator himself, or by his consent and in his presence, or by some other will or codicil in writing, declaring the same, signed by the testator in the presence of three or more witnesses, and by them attested in his presence. All the executors of wills have power to take the proof out of court to have the witnesses of such wills examined and sworn in the usual form, before a justice of the peace, who shall enter the oath of the witnesses on the back of the will, and attest the same; and the oath of the witnesses so taken shall be ac. cepted by the Court of Probate as if they had been taken before the said court. The executor must prove the will within thirty days after the de. cease of the testator, and cause such will to be proved and recorded in the office of the Court of Probate of the district where the deceased person last dwelt, or present said will and declare his or her refusal of the acceptance of the executorship. Any negligence in this respect is punished with a fine of seventeen dollars per month, from the expiration of the thirty days, until he shall cause probate of such will, or present the same. On the refusal of the executor, an administrator may be appointed by the Court of Probate, who shall give bond for the faithful discharge of his duty, make inventory of the estate, and cause public notice to be given to all the creditors of such estate to bring in their claims, and the estate shall thus be distributed according to the terms of the will or the laws of descent. VOL. III.-NO. II.
STATUTE OF LIMITATIONS.
No person can enter upon any lands but within fifteen years after his right or title shall first descend or accrue, unless he shall have been, at the time of the first descending or accruing of the said right or title, within the age of twenty-one years, feme-covert, of unsound mind, or imprisoned ; unless, after the time of fifteen years, and within five years after, he shall be qualified by discoverture, coming of sound mind, enlargement out of prison; or, his heirs, after the death of such person, bring such action or make such entry, and take the benefit of the same.
No action can be brought on any bond, or writing obligatory, contract under seal, or promissory note not negotiable, but within seventeen years next after an action on the same shall accrue. Provided, however, that a person legally incapable to bring an action on such bond or writing at the accruing of the right of action thereon, may bring the same at any time within four years after he shall become legally capable to bring such action.
No action of account, book debt, on simple contract, or of assumpsit, founded upon implied contract, or upon any contract in writing, not under seal, except promissory notes not negotiable, shall be brought but within six years next after the right of action shall accrue. Provided, however, that persons legally incapable to bring such action at the accruing of the right of action, may bring such action at any time within three years after they shall become legally capable to bring such action.
No action of trespass on the case can be brought but within six years next after the right of action shall accrue.
No action founded on express contract or agreement, excepting actions on book debt on proper subjects thereof, not reduced to writing, or some note or memorandum thereof made in writing, and signed by the party charged therewith, or some person by him lawfully authorized." No action of trespass, and no action upon the case for words, shall be brought but within three years next after the right of action shall accrue.
No suit or action for any forfeiture on a penal statute can be brought but within one year next after the offence shall have been committed.
No suit or action at law or equity can be brought against any sheriff, sheriff's deputy, or constable, for any neglect or default in his office or duty, but within two years next after the right of action shall accrue. If, in any of the said suits or actions, judgment be given for the plaintiff, and the same be reversed by error, or a verdict be given to the plaintiff, and on matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his writ, declaration, or bill, the party, plaintiff, his heirs, executors, or administrators, may commence a new suit or action within a year after such judgment is reversed; and, in computing the time limited in the several cases aforesaid, the time of the absence of the defendant from the state shall be excluded from the computation.
No writ of error can be brought but within three years from the time in which the judgment sought to be reversed shall have been rendered.
No petition for a new trial can be brought but within three years after the decree or judgment complained of shall have been passed.
No person shall be indicted for treason or for any offence the punishment of which is Newgate Prison, unless the indictment, presentment, or complaint is made and exhibited within three years next after the offence shall have been committed. No person can be informed against for any