the magistrate, either party may appeal to the superior court, in like 1857, 141, § 13. manner as from the judgment of a justice of the peace in civil actions. 1859, 196. And the trial in the court appealed to shall be by a jury, unless the court with the consent of both parties hears and determines it without a jury.

1857, 141, § 14.

SECT. 33. If the plaintiff or creditor appeals, he shall before the Proceedings on allowance of the appeal recognize with sufficient surety or sureties to appeal. enter and prosecute his appeal with effect, to produce at the court appealed to a copy of all the proceedings upon said charges, and to pay all costs if judgment is not reversed. If the defendant or debtor appeals, he shall recognize in like manner and with the further condition that if final judgment is against him he will within thirty days thereafter surrender himself to be taken on execution and abide the order of the court, or pay to the plaintiff or creditor the whole amount of the original judgment against him.

SECT. 34. If the defendant or debtor after either of said charges has been made or filed against him voluntarily makes default at any time appointed for the hearing, or if upon a final trial he is found guilty of any of them, he shall have no benefit from the proceedings under this chapter, and may be sentenced, by the magistrate or court before whom the trial is had, to confinement at hard labor in the house of correction for a term not exceeding one year, or to confinement in jail not exceeding six months.

DISCHARGE OF PERSONS IMPRISONED ON WARRANTS OF DISTRESS IN

FAVOR OF THE STATE.

Upon default or
debtor may be
denied oath, &c.
Met. 447.
Gray, 318.

conviction

9

3

1857, 141, § 15.

See Ch. 125, § 1.

when commit

favor of state.

SECT. 35. When a person committed to prison on a warrant of dis- Proceedings tress in favor of the commonwealth is unable to pay the debt for which ted on warrant he is imprisoned, he shall be entitled to his discharge in like manner as poor debtors arrested on execution; and all the proceedings shall conform as nearly as may be to the provisions of law in relation to such debtors, except as hereinafter provided.

of distress in 1855, 276, §§ 1, 2.

Same subject. 1855, 276, §§ 2, 3.

7 Cush. 536.

SECT. 36. If he represents to the jailer that he is desirous to take the oath for the relief of poor debtors, the jailer shall make the same known to some magistrate mentioned in section one. The magistrate shall thereupon appoint a time and place for the examination of the debtor, and shall notify the district-attorney for the district by a notice which shall be served on him by an attested copy thereof in hand, or by leaving the same at his usual place of abode, thirty days at least before the time appointed for the examination. SECT. 37. When the place appointed for the examination is out of Same subject. the city or town where the district-attorney resides, or he from any cause is unable to attend the examination, he may appoint counsel in his stead; and for such attendance by himself or counsel, suitable allowance shall be made by the superior court for the county.

DISCHARGE OR REMOVAL OF INSANE PERSONS IMPRISONED IN CIVIL

CASES.

1855, 276, § 5.

from confine

cution.

SECT. 38. When a person confined in jail on mesne process or Insane debtors, execution is supposed to be insane, and thereby rendered incapable of how released taking the oath for the relief of poor debtors, any person interested for ment on mesne his removal from jail on account of his supposed insanity may apply by process or exepetition to the judge of the probate court for the county in which he 1848, 320, § 1. is imprisoned, setting forth the facts. The judge shall appoint a time and place for a hearing and examination in the premises, and shall order notice thereof to be given to the creditor or his attorney seven days previously to the time appointed. If satisfied upon the exami

Legal rights of creditor not affected.

1848, 320, § 3.

nation that the person is insane, the judge may order his discharge or removal to either of the state lunatic hospitals, or to such other place as is provided by law for insane persons in any city or town in the state. SECT. 39. When a person is so discharged or removed from jail, the legal rights of the creditor shall not be affected thereby, but shall remain as though no commitment had taken place.

Discharge of

persons in jail final judgment

or on bail when

is rendered against them. 1837, 198, § 1. 1857, 141.

Proceedings

when execution issues.

1837, 198, § 3. 1857, 141, § 3.

Same subject.

SPECIAL PROVISIONS FOR PERSONS IN PRISON OR ON BAIL IN CIVIL
ACTIONS WHEN JUDGMENT IS RECOVERED AGAINST THEM.

SECT. 40. Every person held in prison in a civil action at the time when final judgment in such action is rendered against him, shall be discharged upon giving to the creditor a bond with sufficient surety or sureties to be approved by some magistrate named in section one, in a penalty not less than double the amount of the judgment, with condition that he shall surrender himself at the same prison, to the keeper thereof, between the hours of eight and ten o'clock of the forenoon of the thirtieth day next after the rendition of said judgment, or if said thirtieth day falls on Sunday, on the next following day, which day shall be specified in the bond, and there remain until five o'clock of the afternoon of the same day, so that he may be taken on the execution issuing on said judgment.

SECT. 41. If an execution issuing on such judgment amounting to twenty dollars exclusive of costs, and while so much as that amount remains uncollected, is delivered to an officer qualified to serve the same, with the affidavit required for the arrest of a debtor on execution, he may at any time within thirty days after the rendition of the judg ment on which the same is issued leave said execution, or a copy thereof, with the jailer; and in such case the debtor shall upon the surrender of himself as provided in said bond be committed and held by the jailer upon the execution in like manner as if he had been taken and committed thereon by the officer to whom the execution was delivered. The officer shall return the taking and commitment in like manner, and be entitled to the same fees, as if the execution had been served in the common form.

SECT. 42. The jailer shall immediately after the expiration of said 1837, 198, §§ 3, 4. term of thirty days certify under his hand, upon the execution or copy so left with him, the fact that such debtor has or has not surrendered himself, according to the truth of the case, and give a similar certificate to the officer on request, to be annexed to his return on the execution; and such certificate shall be deemed sufficient authority to the officer to make his return accordingly. Such return with the certificate annexed shall be deemed prima facie evidence of the fact, as well on the question of breach of condition of the bond as in other cases. If the jailer gives a false certificate, it shall be deemed misconduct in office, for which any party injured shall have a remedy in damages.

Bond may be

surrendered by bail after final judgment.

1837, 198, § 5.

SECT. 43. If a person who has given bail on mesne process in a civil given by person action is surrendered by his bail after final judgment in such action, he shall be enlarged upon giving to the creditor a bond like that before prescribed in section forty, except that the condition thereof shall be for his surrender at the same prison on the thirtieth day next after the surrender by his bail. The particular day on which the same will fall, and where there is more than one prison in the same county the particu lar prison at which the surrender is to be made, shall be specified in the condition of the bond. All the other provisions relating to the bond mentioned in section forty shall apply to the bond prescribed in this section.

Debtor may be committed

SECT. 44. Nothing contained in the four preceding sections shall within thirty prevent an officer from taking the debtor and committing him to prison

on such execution at any time within said thirty days after the rendition days after judg-
of judgment or surrender by the bail, as he might have done if such
bond had not been given. And the commitment of the debtor in such
case shall be deemed equivalent to his surrender according to the condi-
tion of his bond, and shall discharge the same.

SURRENDER OF PRINCIPAL ON RECOGNIZANCES.

1837, 198, § 6.

is surrendered

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 his principal and exonerate himself from all further liability, in the man- on recogniner provided for the surrender by bail, and all the proceedings on such 1857, 141, § 26. surrender shall be the same as provided in the case of bail.

REMEDY ON RECOGNIZANCES AND BONDS, AND FOR ESCAPES.

zance.

See Ch. 125.

SECT. 46. When any recognizance or bond taken under this chapter Remedy on reis broken, the creditor may have a remedy thereon by action of contract, bonds. cognizances and to be commenced within one year after such breach; and judgment shall 1837, 198, § 2. be entered for the amount of the penalty, but execution shall issue for 1857, 141, § 28. so much thereof only as may be justly and equitably due: provided, that if the recognizance was taken on an execution, the execution shall not issue for less than the amount due on the original judgment, with all the lawful costs and charges arising after the issuing of the original execution.

72.

for an escape.

SECT. 47. When an escape is made by a prisoner arrested or committed on execution in a civil action, whether the escape be negligent B. S. 97, §§ 71, or voluntary on the part of the officer, the creditor may in an action of 1852, 312. tort against the officer recover such damages as he has suffered by the 2 Gray, 214. escape, and may also have his remedy against the original debtor by a scire facias, or an action of contract on the judgment.

FEES.

gallen 375

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 trate. 1855, 249, § 1. taking a recognizance after arrest, one dollar; for an examination, 1855, 276, 6. two dollars for each day spent therein. And the plaintiff or creditor 1857, 141, § 29. causing an arrest shall pay these fees in advance. If the oath is not 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 and 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.

SECT. 49. The fee of the judge for receiving a petition, issuing the order of notice, and for the examination and adjudication under the 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

of judge un. thigh 1848, 320, § 2.

thirty-eight.

of jailer.

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 ar

rested on mesne process may give bail, &c.

TAKING BAIL.

SECTION 1. A defendant arrested on mesne process shall be released

on giving bail; but if he has been sentenced to imprisonment on any 1857, 141, $22. charge of fraud under the provisions of chapter one hundred and twen ty-four, the giving of bail shall not discharge him therefrom.

See Ch. 124,

§§ 31-34.

Bail, how taken.

R. S. 91, § 1. 2 Mass. 481. 10 Mass. 20.

12 Mass. 434. 12 Met. 564.

4 Gray, 301.

Officer may re

ties, &c.

R. S. 91, § 2. 1850, 199, § 1. 1852, 211.

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 quire two sure- 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 actu ally sufficient when taken.

9 Mass. 479.

Bond may be approved, &c. Fees.

1857, 141, § 22.

to bind those

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 who execute it, taken with one surety only, or with two or more sureties when they or

though, &c.

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 Pick. 284.

2

Met. 490. turned with

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. writ. SECT. 7. In case of the avoidance of the principal and a return on 17 Mass. 602. the execution that he is not found, his bail shall be obliged to satisfy 9 Met. 564. 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. S. 91, § 5. against him on the writ of scire facias, or by other sufficient defence in 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.

2 Met. 328.

2

2

Suit on bond.
N. H. R. 359.
R. S. 91, § 6.
Mass. 484.
13 Pick. 339.

17 Mass. 602.

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

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 withi 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.

R. S. 91, § 8.
5 Gray, 397.
Answer of de-
fendants.
R. S. 91, §9.
1852, 312, §§ 12,

14.

in court, &c.

SECT. 12. The bail may surrender the principal in the court where Principal may the scire facias is pending at any time before final judgment therein be surrendered against them, and on paying the costs of the scire facias up to that time they shall be discharged.

R. S. 91, § 10.

and commit

ted.

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.

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, 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.

may be surcourt, &c.

rendered out of

R. S. 91, § 12.

to keeper of

the county jail.

R. S. 91, § 13.

R. S. 91, § 14.

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 attested such case. 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.

8 Cush. 137.

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 R91,15. 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.

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 t the prisoner was so committed.