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TITLE XXI.

which he is a judge, except in those suits in which he shall be a par- CHAPTER 96. ty, or be interested.

judge, &c., not

SEC. 22. No judge, commissioner, or other judicial officer, shall de- In what cases mand or receive any fees or other compensation for giving his advice to receive fees or in any matter or suit pending before such judge or officer, or which compensation. he has reason to believe will be brought before him for decision; or for drafting or preparing any papers or other proceedings relating to any such matter or suit; except in those cases where fees are expressly given by law to such judge or officer, for services performed by him.

day of week. ex

SEC. 23. No court shall be opened or transact any business on the Court not to be first day of the week, unless it be for the purpose of instructing or pentr discharging a jury, or of receiving a verdict; but this section shall not cept for certain prevent the exercise of the jurisdiction of any single magistrate, when purposes. it shall be necessary in criminal cases, to preserve the peace, or to arrest offenders.

language, &c.

SEC. 24. All writs, process, proceedings and records in any court process, &c., to within this state, shall be in the English language, (except that the be in the English proper and known names of process, and technical words, may be expressed in the language heretofore and now commonly used,) and shall be made out on paper or parchmant, in a fair, legible character, in words at length, and not abbreviated; but such abbreviations as are now commonly used in the English language, may be used, and numbers may be expressed by Arabic figures, or Roman numerals, in the customary manner.

SEC. 25. Every person of full age and sound mind, may appear by attorney or solicitor, as the case may require, in every action or plea by or against him, in any court, or may, at his election, prosecute or defend such action or plea, in person; but this provision shall not extend to criminal cases, nor shall any person be permitted to appear on the record in any civil cause in person, whilst he has an attorney or solicitor in such case.

Persons of full age and sound cute or defend

mind may prose

in person or by attorney, &c.

cers of courts

ring sitting of

court.

SEC. 26. All officers of the several courts of record shall be liable Privilege of offito arrest, and may be held to bail in the same manner as other per- from arrest dusons, except during the actual sitting of any court of which they are officers; and when sued with any other person, such officers shall be liable to arrest, and may be held to bail as other persons, during the sitting of the court of which they are officers; but no attorney, solicitor or counsellor shall be exempt from arrest during the sitting of the court of which he is an officer, unless he shall be employed in some cause pending and then to be heard in such court.

attorney, &c. in

SEC. 27. No person shall be employed or allowed to appear as No person allow counsel, solicitor or attorney, before any court, in any suit which shall ed to appear as have been previously determined before himself, as a judge or justice of the peace.

suit previously

determined by him as a magistrate.

TITLE XXII.

CHAPTER 97.

TITLE XXII.

OF PROCEEDINGS IN PERSONAL ACTIONS.

Chapter 97. Of the Commencement of Suits, of Process, and the service and return of Original Writs.

Chapter 98. Of Bail in Civil Actions, and Proceedings connected therewith.

Chapter 99. Of Pleadings and Set-offs.

Chapter 100. Of Consolidating and Referring Causes.

Chapter 101. Of Death, Marriage, or other Disability occurring after the Commencement of the Suit.

Chapter 102. Of Evidence.

Chapter 103. Of the Trial of Issues of Fact.

Chapter 104. Of Amending Pleadings and Proceedings.

Chapter 105. Of the Assessment of Damages.

Chapter 106. Of Judgments and executions.

Chapter 107. Provisions concerning Actions and Proceedings in certain cases.

Process from

its style, test. &c.

CHAPTER 97.

OF THE COMMENCEMENT OF SUITS, OF PROCESS, AND THE SERVICE AND
RETURN OF ORIGINAL WRITS.

SECTION 1. The style of all process from courts of record in this courts of record, state, shall be "In the name of the people of the state of Michigan;" Const. art. 6, § 7. and such process shall be tested in the name of the chief justice, or presiding justice or judge, or one of the judges of the court from which the same shall issue, be sealed with the seal of the court, and before the delivery thereof to any officer to be executed, shall be subscribed or endorsed with the name of the attorney, solicitor, or other officer by whom the same shall be issued,

Actions for debt

SEC. 2. Actions brought for the recovery of any debt, or for damaor damages, how ges only, may be commenced, either, 1. By original writ: or,

commenced.

On proof of ser

2. By filing in the office of one of the clerks of the court, a declaration, entering a rule in the minutes kept by such clerk, requiring the defendant to plead to such declaration within twenty days after service of a copy thereof and notice of such rule, and serving a copy of such declaration and notice of such rule personally on the defendant; which mode of commencing an action may be adopted against any person, whether privileged from arrest or not.

SEC. 3. Upon due proof of the service of a copy of a declaration, vice of copy of and notice of rule to plead personally on the defendant, his appear

declaration, &c.

ance shall be entered in the same manner as if process had been duly served and returned; and his default may be entered for not pleading, and the same proceedings may be had against such defendant, in all respects, as if he had appeared.

TITLE XXII.

CHAPTER 97.

same proceedings may be had as if defendant

had appeared.

to serve and return declaration

SEC. 4. When a copy of a declaration and notice of rule to plead shall be delivered to any sheriff to serve, it shall be the duty of such Duty of sheriff sheriff to serve the same, with all convenient speed, and to return the same with his certificate endorsed thereon, of the time and manner of such service, either to the office of the proper clerk of the court in which such suit may be pending, or to the attorney whose name shall be endorsed on the declaration.

service. Return

SEC. 5. Such certificate of service, signed by the sheriff or his dep- Sheriff's certifi uty, shall be as effectual to authorize the entry of the defendant's de- cate evidence of fault for not pleading, as if the same had been sworn to by such offi- may be enforced. cer; and the return of any declaration delivered to a sheriff, may be enforced by rule and attachment, in the same manner as the return of a capias.

SEC. 6. The original writ in personal actions, shall be a summons Original writs. or a capias ad respondendum, in the form heretofore in use in this state, unless the form thereof shall be altered by rule of court.

case of non-resi

SEC. 7. All original writs, and all declarations in cases where suit Indorsement of shall be commenced by declaration, in which the plaintiff is not an writs, &c., in inhabitant of this state, shall, before the service thereof, be indorsed by dent plaintiff." some sufficient person, who is an inhabitant of this state; and if any plaintiff, after the commencement of his suit, shall remove out of the state, he shall, on motion of the defendant, be required to procure such indorser, but no indorsement shall be required when any one of the several plaintiffs is an inhabitant of the state.

SEC. 8. Every such indorser shall be liable to pay all such costs as Liability of inshall be awarded against the plaintiff, provided the suit therefor be dorser. brought against the indorser within one year after final judgment in the original suit.

for costs in all

require new se

SEC. 9. The court in which any civil action shall be pending, may, Court may rein all cases, when it shall appear reasonable and proper, require the qure security plaintiff to give sufficient security for all such costs as may be award- cases. ed against him therein. SEC. 10. If any indorser of a writ or declaration shall remove out of When court may the state, or be deemed by the court insufficient, such court may require the plaintiff to give new security to the satisfaction of the court, for the payment of all such costs as may be awarded against him in the suit; and every person becoming such surety, shall be liable for all costs from the commencement of the suit, in like manner as if he had been the original indorser.

curity.

mous how served.

how served.

SEC. 11. Writs of summons shall be served by showing the original Writs of sumwrit to the defendant, and delivering to him a copy and on thereof; the return of the writ personally served, the defendant shall be considered in court, and may be proceeded against accordingly. SEC. 12. Writs of capias ad respondendum shall be served by the Writs of capais, sheriff, or other officer, by arresting the body of the defendant, and keeping him in his custody until discharged according to law. SEC. 13. Personal actions arising upon contract, express or implied, in what cases camay be commenced by capias ad respendum (respondendum) only to pias may issue recover damages for any breach of promise to marry, or for moneys 1839, p. 76, § 2. collected by any public officer, or for any misconduct or neglect in

on affidavit.

CHAPTER 97.

TITLE XXII. office, or in any professional employment, when the plaintiff, or some one in his behalf, shall make and attach to such writ an affidavit, stating therein that the plaintiff has a claim for damages against the defendant for the cause of action stated in the writ, and upon which he believes that the plaintiff is entitled to recover a certain sum, being more than one hundred dollars.

Service of capias on defendant in

custody.

In what cases ca

pias may issue

SEC. 14 If the defendant in any action commenced by capias ad respondendum, shall be in custody, such writ may be served upon him in like manner, and with the same effect, as if he were at large. SEC. 15. Personal actions may be commenced by capias ad responon order of judge, dendum, in cases of claims for damages other than those arising upon contract express or implied, where an order for bail shall be endorsed on the writ by a judge of the court from which the writ issues, or a circuit court commissioner, directing the amount in which bail is to be taken.

&c.

Order to be made only on amidavit, &c.

Defendant to be discharged from arrest on execu

ting bond.

Bail piece to be delivered to sureties.

When defendant

SEC. 16. Such order shall be made only upon the affidavit of the plaintiff or some person in his behalf, showing the nature of the plaintiff's claim, and such affidavit shall be annexed to, and returned and filed with the writ, and the defendant shall be held to bail in the amount specified in such order; and the court into which such writ is returnable may, on motion of either party, diminish or increase the amount for which bail shall be so ordered.

SEC. 17. Every defendant arrested upon a capias ad respondendum, shall be entitled to be discharged from such arrest, upon executing to the officer making the same, with the addition of his name of office, a bond, in a penalty equal to the amount specified in the order for bail, or in double the amount specified in the affidavit attached to the writ, as the case may be, with two sufficient sureties, conditioned that such defendant will appear in the action commenced by such writ, by putting in special bail within twenty days after the return day specified in such writ, and by perfecting such bail, if required, according to the rules and practice of the court.

SEC. 18. The officer taking such bail, shall give to the sureties a bail piece in substance as follows: County, ss. On this

day of one thousand eight hundred and A. B. is bailed by C. D. and E. F. of the county of , upon a capias ad respondendum, returnable in

the

court, on the

day of

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at the suit of in a plea of trespass, (or as the case may be,) which bail piece shall be signed by such officer.

SEC. 19. When the name of any defendant shall not be known to fictitious name. the plaintiff, the writ may be issued against him by a fictitious name, and if duly served, it shall not be abated for that cause, but may be amended on such terms as the court shall think reasonable.

Judicial rights

and privileges of Indians.

1841, p. 137, § 1.

When defendant imprisoned for

want of bail, fact to be returned.

SEC. 20. All Indians shall be capable of suing and being sued, in any of the courts of this state, in like manner, and with the same effect, as other inhabitants thereof, and shall be entitled to the same judicial rights and privileges.

SEC. 21. If a defendant arrested on process on which he is requir ed to be held to bail, shall be committed to prison for the want of such bail, the sheriff or other officer making the arrest shall specially return upon such process, the fact that the defendant is imprisoned for want of bail..

SEC. 22. Upon such return being made, the plaintiff shall declare

CHAPTER 98,

against the defendant before the end of the term next after such TITLE XXII. process was returnable, and shall deliver a copy of the said declaration to such prisoner, or to the sheriff or keeper of the jail in whose Within what time custody such prisoner shall be; and if such declaration be not served plaintiff to deas herein prescribed, the defendant shall be discharged from his im- fendant appears. prisonment, and shall be entitled to judgment of discontinuance

against the plaintiff.

clare when de

declare,judgment

SEC. 23. When a defendant shall have appeared in any cause, by If plaintiff fail to causing his appearance to be entered, or by putting in and perfecting of discontinuance special bail, where such bail is required; the plaintiff shall declare may be entered. against such defendant, by the end of the next term after the return of the writ by which such suit was commenced.

SEC. 24. If a plaintiff fail to declare, as in the last section prescribed, judgment of discontinuance may be entered against him, according to the course and practice of the court.

ney not necessa

ed by law.

SEC. 25. It shall not be necessary to file any warrant of attorney Warrant of attor to authorize any attorney to appear in any court, for either party to ry, except when an action brought therein, except in cases where it shall be specially specially requir required by law: nor shall any entry of any warrant of attorney in any record or other proceeding, be necessary; but the plaintiff in his declaration, and the defendant in his plea, shall state the name of the attorney or attorneys by whom they respectively appear.

to excuse sheriff,

SEC. 26. No return of any such process made to any other office Other returns not than that required in the last preceding section, shall excuse any she- &c. riff or other officer from the liabilities, fines or proceedings prescribed by law, or by the rules and practice of the supreme court, for a neglect to make a return according to law.

CHAPTER 98.

special bail, be

fore whom may

be taken.

OF BAIL IN CIVIL ACTIONS, AND PROCEEDINGS CONNECTED THERE WITH. SECTION 1. In all cases where special bail shall be required to be Recognizance of put in, a recognizance thereof may be taken before any justice of the supreme court, circuit court commissioner, county judge, clerk of any court of record, notary public, or justice of the peace, and shall be filed in the office of a clerk of the court in which the action is pending.

SEC. 2. The recognizance of special bail shall be, in substance, in Form of recognithe following form, to wit:

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in the year eighteen hundred and E. F. and G. H., of the county of

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personally appeared before J. K., (describing the officer,) and severally acknowledged themselves to owe A. B., the above named plaintiff, the sum of (the sum for which bail is required) each, to be levied upon their several goods and chattels, lands and tenements, upon con

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