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LAWS OF OHIO.
Published by Authority.
To etabli.h a Coil of Civil Procedure, j
Be it enacted hy the General Ascmbly of lilt
State uf Dili", us follows:
Hec. 1 TtlH Art shall IN klOW a. lll Code
of Ciril Procedure of lb state of tibln.
Sec. H. Tho lule of the common law, ih.it
statutes in derogation thereof, arc to be strictly i
construed, has no spplicslion to tliia code. Its
provisions, and all proceeding ninler it, shall be
liHerslly eOhetrOcO, With a view to promote its ,
object, and assist tin- parties in obtaining justice, '
Form of Civil Actions.
See. 3. The distinction between action at
law and N U in equity, and Hi formaof nil Itioh
aclion and Mite, lierctoforc existing, are abolish
ed; and in their phtc, there ahull be, hereafter,
but one f rin of attioii, which shall be culled a
civil act. on.
Sec. 4. In such action, the party complain- i
inc. shall be known aa the plaintiff, and the ad j
verse party us the defendant.
Sec. 5. There can be no feigned lesuei, but
a question of fact, not pat in issue by the plead j
ing, may be Iriud by u jury, upon an order fori
the trial. Mating , distinctly it plainly, thequoi
lion of fact to be tried, and anch elder lath
only authority necessary for a triul.
Time of commencing Civil Actions.
( no i . h I. Action in general.
!i. Actiona fur the recovery of rcul
3. Actions other than for the recovery
of real property.
4. t.cncrnl lirovisiolis.
Actions in General.
Baa, fj. This title shall not apply to actions
already commenced, or to eaaea where the right j
of action has alreudy accrued; but the statutes I
now In force hIiu.1I be applicable to such cases,
recording to the subject of the action, and w ith
out regard to the form; nor shall this title apply
in the case of a continuing and subsisting trust,
or to an action bv a vendee of real property, in
possession thereof, to obtain a conveyance of it.
Sec. 7. The act entitled, "an act lor the limb
tation of acti .ns," passed I'cbruury eighteenth,
one thousand eight hundred and thirty-one; the
MM hundred and sixtieth section ol "in act to
provide for the settlement of the elates of de
ceased persons," passed March tw enty. third,
one thousand eight hundred und forty; and the
second section of "an act togio additional seen
rity to land titles in this Stale, passed March
twenty-second, one thousand eight hundred und
forty-nine, are hereby repealed.
See, M. Civil actions can only be commenced
within the periods prescribed In this title, utter
the cause of action shall have accrued, but w here,
in special esses, a differ, lit I unit lion is preseri
bed by statute, Uis action may be uoinmenced
Action for the recovery of Real Property.
Voc. 9 An aelinn for the recovery of the
title or possession of lands, ten, no nts, or he
reditaments, ran only be brought within twenty
one years utter the cause of such uclion shall
Sec. 10. If a person entitled to commence
any action for tbe recovery of that title or pos
session of anv lauds, tenements, of hereifita
meats, be ut the tune his right or title ahull first
descend, or accrue, w ithin the ago of tw enty,
one years, a married woman, Insane, or iuipria
oncd, every auoh person may, utter tbe expira
tion of tw enty one years from the time his right
or title first descended, or accrued, bring such
actio. i within tin years alter such disability is
removed, and at no t me thereafter.
See. 11. An uition lor the forcible entry A
detention, or forcible detention only, ol real
property, can onlv be brought w ithiu two years
alter the cause of such uctiou shall havo accrued.
Actions other than for the recovery of Real
Sec. 19, Civil aetlona other than for there,
cevcry ol real property, can only be brought
within the following periods alter the cause ol
action shull liuv accrued.
Sec. IS. W ithiu fifteen yearn
An uclion upon a specialty, 01 any agreement,
contract, or promise in writing.
Sec. I I. Within six years:
An action upon a contract not in writing, ex
press or implied.
An action upon a liability created by statute,
other than u forfeiture or penalty.
Sec. 15. Within fnur years:
An action for trrsp is, upon real properly,
An action for tasting, detaining, or injuring
porsonul property, including actions for the
specific recovery of personal property.
An action for an injury to llm rights of the
plaintiff, not arising on contract, und not bore.
An action lor relief on the ground of fraud)
the eausu of in ti in in such case shall not be
deemed to have accrued, until the discovery ol
Sec. Hi. Within one year:
An action for libel, slander, assault, battery,
malicious poroeecotion, or false imprisonment.
An aelinn upon a statute fur a penalty or for
feiture; but where the statute giving such ac
tion, prescribes a different limitation, the uctiou
may bu brought within the period so limited.
Sec. 17. An action upon the official bond or
underletting of an executor, administrator, guar,
disn, sheriff, or any other officer; or upon the
bond ni undertaking given in attachment, m
junction, arrest, or in any case wbetavi r required
by statute, can only be brought w Ithiu ton years
alter the eiiuso of action shall have accrued
but this section ahull be subject to the qualifica
tion ill section eight.
Sec. I. An action for relief, not hcreiohe
fore provided (or, can only be brough within ten
years after the eausu of action ahull have ac
crued. See. ID. I f 0 person, entltltled to bring any
giao Mentioned In this chapter, except for u
penalty, or forfeiture, he, ut llm time the cause
of action accrued, within llic uge of twcnlv one
yesrs, u married woman, insane, or imprisoned,
every such person shall be entitled to bring such
action within the respective times limited by
this chapter, after such disability shull bo it-
Hr. 'JO. An action IirI no in. mrd com
meiiceiJ Within Ibi MMftiRl ftfthll tille, ai a
cm ii rivfrmUnt, ut Hi. tUtu ot ihfl rammoni
a Imli ! m r v i tl on him, Off (Hi h 0OvJffMUnt,
who itf ft ittfttt oiiilrtii-l'ir, Of ollirrwim; united in
iutrrsal w ilh him: win ro aorvicu Uy publ, option
is imtr, tht ai'tnii. -thall bu di rnn'il t nitnnt n-
n.,i ai i i' "i ihu I tttblvutioa. which
publication mii-A hi n -guUrly in dr.
An ttptt to ((tinim ncu tin tmii t bj
duivd Hivlt nt la the wiumenef men! lh r
of, w ilh in lh MOlNg oi Ihia till- when thr
Sirty faithful. v. pffoptfflj Mid iill.gtii.ily, n
fcftvnr to procure u rvic: but audi alt nipt
iuut be CiiUom d by Hcrvicu wtlhin tlltj dayn.
Bee. '-'I. If, when tau if of lettM ftOOtUN
ftumiiMl a pervun, he be out of the Suir.or I. . v .
KMcondt'di or contenlrd linux It, the m-n limit
ed for the couuiienceintnt if the actum nliull not
beg ia to ran, until cnint into tht- State, (.r
while he ie o abecondrd or cuiiciitlcd; und if af
ter the caueie of action crrue, he di jmrl lr.uu
the .Still", or abnond or tOWMl blMMlf, (lie
time o( bbl lb P tf fttMltllMTTfll rim II not bu
coin ou 1 1 d a any 'rt otih9 period willitn . hu h
the action mul be brought.
Die When the epMM of mlum hat a fin
in another sJtatc r enonlry bfltwOffl nou rcBi
dnU of th.a State, mid by tbfl law of Hit Bttti
j country where the caoao of aotiuo irutt, an
action cannot be maintained tht r. mi hy rcuon
of Ue of time, no action can bo maintained
thereon in tbi Slate.
8t. 3 If an action be cmnini iu'fd w tluu
due lime. A, adjudgment tbareiii lr the plaintiff
he rrut rved. or il the pUinUffTfall in -m h action
vtborwlae than WpMI l moriU, and tba iiuie
ioildorlbeaaiujall have expired, the (.l nu
tiff, oi U di anatta cuue ofaotion Niirnve,
hie repaenUl.vu iwfv comun noea newatiion,
within one ar alier Nurh reveraal or failunv
Bn- 24 U " c fua'J'- 014 ffaafW
vhrnnny nrt of the principal nr inturent shull o
iavr been paid, nr tin nnknowiedpTrmcnt nf an j:
listing liability, dfhl.nr claim, or any prnniinc t
,n puy the Manic, ahull have been made, an action
utiy hr brrtagh. on 109b caao within the period f
pffCOOflbod foff the flame, nlirr Aurh puyiiH iit, a- u
Minwit'i'rrf nn nt Off protflttO , but mich achnowi-
Btfp moot of protrtlte moot bo in writing, iignod
ti y ihn ptfft t j bo ohftffgfd thereby. r
Parties to Cicil Actions.
nco aO I. V- ry in iion mm u : proamia m
tin u vine of Itifj renl party in IfltOffMli DlOOpt a '
uthorwlafl proldod'fn aeotlon twenty-even. '
Hoc. l!ti. In the OtOO of an asuijninenl of a
thing in action, the action by the taOlngOi lhff.ll 1
bo w ithout pffojadte6 la uny ototf or OtllOf I
defence now allow ed: but tfili ICC t loft lmll ff!01
apply 0 fltgOtUblo bond.-, promissory B0iti nr f
bllW of OXoffwUgOi transferred in gOOO taith unl
upon (nod OOntldeffttiOfflf before ffJOO,
See '-i7. An XOoUtOffe dmlnlltritnff. g04ff '
dltlti truatei fit in oxproffo Iffuati a pOfffOtl with !
hotfl, nr in Vffhovt nuine, a BOOtffOOl in mttdfl foff 1
Lhoboncflt of another, or a MffafOfj Spfftaal" 1
authorised by stutut', may brii j an action 1
w flout joining with 1 1 i in the poffaon fof vrhooo 1
benefit it is proaeouted, Ufllotri m iy sue and 1
he sued in nm h name un ia iOthofflai'd by law,
and ofticial b unla may bo lUOd upon in 111 c Manic j 1
Si r, 98, Where a IMfliod woman ii a party, ,
her hoabtfld must he joined with her; rxeejtt, ,
w hen the art ion OOffJOOffni her HOpttffotO property, I
she may sue without htr luustKind, hy her next I
When tlif action in between her Oct find her ,
huabottda nIic may siie nr In: ued alone; hut in
every Ijoll ftctlOII other than for a divorce or 1
alimony, sho ahull prosecute and tit; Und by her I
See. 29. Ifa hu band nrd wife be sued to- j
gOthVfftthi wife miy del end for her own right; (
and if the huHhand Mglflot to defend, hc may
dcfeiid for bll right aUo.
See. 3l. The uctiou ol an infant 01 tint be
brought bv bin guard It tl or next friend. When
the action is brought hy Inn next friend, the
court has power to dismiss it, if it i not for tho
bonoflt Ol tin infant, nr to Itlbotltuto 'be guar
dian o the infant Or any peraon, tl the next
8cn. 31. The guardian or next friend i liable
for tbe eosH of tin? action brought by him, und,
I when he in insolvent, the court may require
security for them. Hither may be a h i Incus in
an actum brought hy him.
Sec. .2. Tho defence Of an InftfllJfflUit bfl by a
IgatffditO for the unit, who may bo uppoiutc d
by tho court, in which the action is prosecuted,
or by n judge thoreofg i r by a probate judge.
Thfl Mpi'oinlme ut cannot, be inadu until alter
ortiee ol tho luminoni in the action, as directed
ill this code.
See. 'Mi. The oppointmnt nniy be made
upon the application ot the Infant it he be uf tho
age ol fourteen years, and apply w ithin twenty
it j y a uftcr the return of the summons. If he ho
under the u go of four teen, or neglect so to a pty,
the appointment may he made upon the applica
tion ol ttny friend of the infant, nr ou thut of the
plaintiff in the action.
Sue. 34. All persons having an interest in
it. c subject ol the action and in obtaining the
relief demanded, may bu joined it plain lilTl,
except ii h otherwise provided in thli title.
Sec, 33. Any perron may be made a dofond
ant, who haa or elainia an Interest in (ho eon
trtivcrsy, udverse to the plaintiff, nr who in a
necessary party 10 a complete determination or
settlement of the. qaeatlon involved therein.
See UB, Of the partial to tho action, those
w ho are united In interest mmt ho joined, as
plain tilts or defecdantsi but if the consent of
one who should have been joined us pltiinlih",
cannot he obtained, lie may he made a defendant,
the ration being stated In the petition.
Sec. 37s When the ouettfon is one of a
common or general interest of many pofftontj or
W hen the parties are very numerous, und it iimv
he Impracticable to bring them all before the
eourtj one or more may huo or defend fur tho
hem tit of all.
Bee, 38. Persona severally liable upon the
Maine obligation or instrument, Including the
parties to hills of exHiiogu and promioiy
notes, may, nil or any of them, be ineludi d in
the Ituie action, at the opiiuu of tha Wioti.V,
See. 39, An uclion does not abate by tho
death marriage or other disability of a party,
or by the transfer uf any Interest therein,
during its pendent y if tin; cause of Action
survive or continue- In Base of the mtffffl igC of
a female party, the fact being suggested on the
record, the husband may he made a party with
bit wife; ami ill tho Otse of the death or other
disability of a party, the comt may allow the
aetim. to continue bv i r agalnsl bit represonta
live or successor in Interest Incase of any
other transfer nf interest, tho action may he con
tinned in the mime of the original part, ; or tht
court may allow the person to w hum the transfer
ia made, to be substituted in tint aetiuii.
Sec. It). Tho court may determine uny
OontffOVorsy botWtt n pari Its before it, w hen it can
tie done without prejudice to the rights of
others or by saving their rights) hut w hen a
tfi terminal mn uf the controversy cannot he had
without the presence ot other partita tho court
must order them to be drought in.
I Beo. il- When, in Bll sottnn for the recovery - f
i real nr personal property, uny person having an
Interest in the property, applies to he nudo a
i party i tht oourt may order it to bt done.
See. 49 Upon bAS davit oft defendant before
lanaweffi In any action upon contract, or for the
recovery of person. 1 1 properly, that some third
party. Without oollutlon with him. has or
I makes u claim to tho subject nf the action, and I
thai bo i ready to pay or dispose of the same,
as the court may direct, the court may make an
ordt i lor tho safe keeping, or for the payment, 1
or dt posit in court, or delivery ol the lubftot of
the action i to such person as it may direct, und
an order rooulrlng such third party to tppaar in
a reasonable time ami maintainor relinquish his I
claim against the defendant, If Much third i
party being nerved with a copy of the order, by
tho shcntV, off auoh tthoff peraon as the court
' may direct fail to appear, the court imiydec'are,
him barred ot all claim in fftspttt to the subject
ol the action , against the defendant therein,
If SUch thud party appear, he shell be ullnu ed
to make hi into It defendant in tin' uctiou, in
lieu of tho original defendant who shall be
diaohtrged from nil liability to either of the other
' purlieu in r tt pOOt to tht subject of the uctiou,
upon his eompli I UOt w ith the order of the court
for tho payment, deposit, or delivery there
of. Sec. 43. The prov talons of the last section
. shall he applicable to an action brought tgafnal
s xhcrirV, or other officer, foff tho recovery ol
ptrtOOal property taken by bun under execution
; or for the proceeds of mjcii property so taken
i and Bold by him. And the defendant in any
such action shall he entitled to the benefit ol
I those provisions against the party, in whose
1 favor the execution Itttttdi upon exhibiting to
tboJeoUft tho proecHS under w hich he ueletl.
with bis affidavit that the property, for the ro
' OOfOffy nf whoit, or its prm-eeils, the action is
brought. hi. taken under such process.
Sec. -It. In an action against a sherill', nr
other ofltOffi for the reco t ry of properly taken
under an execution, and rcplcv.cd by the
, pUiutill' in anch actum, the court m -y, upon
application uf the defendant, und of tliu party
' in wbott tavor the execution itsued, permit the
latttff to he sute-tituli d as the detciidaiit, BtQUI ity
lur ihc cohI In hi l' iivcn.
The County in which Actions are to be
Hcc Ci. Actions fof the IblloWlBff imiiscs, must
l,c tircuglit in the count) in which tin subjeol ni
thu tCtiM is sitliatSjd, except aa proviilcil in
' s ci I u m forty-six :
I. r'or tho recovery of ic.il prepert, or of an
usiato or later es tbtrelw
a For lh urtilini, ol rati iriin-rly:
3. For the sule uf n .i uroperly mnler s
i.i- 1 1 ' .; . lien, or other incuinbrjuca or
See. tf. If the rrul roierty, the sul.j-et of
llm aetioii, bo an satire trset ui.d siluntcd in two
or more counties, or if it aoavslH of ssjpts
tracts, situated in tw o or ajn counties, the
sell ii. umy b- brought in uny county in which
uny tract or part thcrool, is situated, unless it he
all action to recover tba possession thereof.
An if the properly be an entire tract, situutcd
hi twoor more counties, an actum to 1801 the
possession theunf, may be brought in cthtrof
Midi counties; but if it consists ol separulc tracts
la dinVreAl eauntl, tho possession of such
Irscts MS)sl b recovered by ssparaln SOtiaas
brought l the cojnlies w lie re they n re aitllalOo!
Aii lOttM 'o aaaMai U saecj4e MffoMiMkM
f n eoutrsct of sule of real estate, may bebrought
ii the county where tl.c defendants, or any of
Sec. 47. Actions for the following causes,
inst be brought in tho county w here tile cause,
rsoinc part thereof, arnsj:
I An action for the recovery of a fine,
irfeiturc, or penalty, imposed hy a stutule;
teept thai, whm II la Impueed for an eflinee
etnsnille OH river or other stream of wutcr, or
old, winch lathe bottndarf of two or more
oaittles, Ihe lotion may b brmirht in any
lotintv bordering on such rlfcr water course,
IT road, and opposite to tho place where the
l1cucc vvus eoniinilled:
ii. An Action uuiust a public oflicer, for an
cl done by him in virtue or under color of bis
illice, or fur a neglect of his official duty:
.'1. Aneetlnn on theoHicitil bond or unditeklnf,
il a p'lhlic ulliccr
Sec. 4S. An aclion other than ono of those
nentloned in the first three sections of this
liupti r, tfalnsl a corporation created by ttie
a w a of thla State, may be brought in the eininty
n vvhicli il is situated, or has its principal
jffico or pis 00 ol business; hut if such corporation
t j an insurance company, Iho action limy be
brooghtin the county where the cause of action,
jr some purl thereof, arose.
Sec. 19. An action against a ruitroad
sampan, or an owner ofa line of mall stupes or
Sthal coaches, for an injury to person or properly
upon the road or line, or upon a liability as u
carrier, may he hrouubt in uny county, through
or into which said road or line passes.
See. .51). An uction other than one of tliosi
mentioned in the first three sections of thii
eheptefa utrninst u turnpike road couipiiny, ma)
lie brought in any county In which any prlo
the road lies.
Hce. si. The provision of tht chapter, ehal
not npply in the euseofmiy corporation crimtci
by a law ol this State, w hose charter prescribol
the place, where ulonc s suit ugainst sueb cor
poration may bo brought.
Sec- 52. An uctiou oilier than one of those
mentioned in the first three sections of til i
chapter- egolnet a non-resident of thli State o
foreign corporation, ma)' be brought in an;
county in which there me be property of, o
debts, owing tosald defendant, or w here sai
defendant may be found; but If said defendun
be u foreign Insurance company, the uctiou ma
be brought in uny county, whero the cause e
snine part thereof, urose.
Sec. .V). Kvery other action must he brougli
In the county in which tho defendant or sum
one of the defendants, resides, or umy b
Bee. 54, In all eneot. In w hich it shall b
made to appeal to the court, that a luir an
Impartial trial cannot be had in the county wher
the suil is pending, the court muy change lh
plucc ol trial to some udjoiniug county.
Commencement of Civil Action.
Ci'At' i Ka 1 Manner of commencing civil actions.
ii. Service of Summon,
Manner of commencing Civil Actions.
Sec. 55. A eivil action must be commenced
by tiling in the nflicc III the clerk of the proper
Oourt, a petition, uud causing a summons to bo
Sec. .Hi The plaintiff shall, u Iho, file with the
clerk of the oourt, a precipe, stating the names
of the parties to the action, und demanding that
a summons issue thereon.
See. 57. The summons shall he issued hy the
clerk, shall bo under liio seal ol the court, from
w hiell the same shall issue, urn) shall be signed
by the clerk. Its style shall be, " Tho State of
Ohio, county," and it ihsll be dated the
iday it is issued. It shall he directed to the
I sheriff of the county, und command him to
notify iho defendant, or defendants,, named
therein, that he or Ihey have been sued, und
must answer the petition tiled by the plaintiff1,
giving his name, at u time stated therein, or the
petition will betaken us true, und judgement
rendered accordingly and hero tho action is
for llm recovery of money only , there shall be
endorsed on Ihe wri the amount tube furnished
in the precipe, lor which, with interest judgment
stll be taken, if the defendant fail to answer.
1 llic ilereilllarlt jbtl lon.,rar, jwaejiwilt atinlt
not be rendered lor u larger amount uml the
See. .In. V here tho action la rightly brought
Inanyoounty, according to the provisions of
title four, a summons shall ho issued to any
other county, egainat any one, or moe, of the
dofendanta, at the plaint ill's request.
I Sec 51). Where the time for bringing parties
into court is not Axed by statute, the summons
shah be returnable on theaeeond .Momhiv alter
the day of Its date; but where it la lasued to any
nhtcr than the county, in which the action is
brought, it muy bo made returnable, at the
option ol the paily Saving il issued, ou the third
lor fourth Monday after its dale. It shall slate
, the day of the month no which it is returnable,
See. Oil. When a writ is returned "not sum
t n ed," other w nts may be issued, until the de
fendant, or defendants, shall he summoned! und
when defendants roelde in different counties,
, al the aame time.
Service of Summons.
j Sec. 61. The summons shall be served by the
- oflicer to whom it is directed, w ho shall endorse
ou tho original writ, the time und manner of
service. It may, also, be served hy an person
not ii party to tho uctiou, appointed by the
officer to whom it is directed. Tho euthority of
such person shull he endorsed on the writ. When
the writ is served by a person appointed hy the
office! In whom il is directed, or when the
service is made out of this Slate, the return nhull
bo verified by oath or ullirmiition.
See. ti-'. Tho service shall be by delivering
a copy of the eomntone to the defendant pereo-
nully, or by leaving one nt his usual place of
residence, ut any time before the return day.
Sec. ti.'). In all cases, the return must state
the time and manner ol service.
See. 04. The officer to w hom llie summons
is directed, must return thu sums at tho time
See. (i5. An acknowledgment on Ihe buck of
the summons, nr the voluntary apearanoa of a
defendant, is equivalent to service.
Sec. Gti. A summons ugaiusl u corporation,
may be served upon the president, mayor, chuir
man of Ihu board nf direeors or trustees, or other
chief officer, or, if its chief officer is not found in
the Bounty, upon its cashier, treasurer, secretary
clerk, or managing agent! or il none of the
aforesaid officer can be found, by a copy left ut
the office, or usual place of business of such
corporation, with Iho person having charge
Sec. 117. When, the dofendunt is an in
corporated Inauranoeoompany, and the action is
brought in a county, in which there is an agency
thereof, tho service may bj upon Ihe chief
officer of such agency.
See. lis. Where the defendant is r foreign
corporation, having a managing iigcnt in Ihis
Slate, the service muy be upon such agent.
See. Ii!) When the defendant is a minor
under tho ugo of fourteen years, tho service
must ho upon him und upon Ins guardian, or
fattier; or, if neithpr of tin su can ho found, then
upon his mother, or the person having the cure
or control of the itifsul, or with w Iiiiiii he lives.
If neither of the c can be found, or, if the minor
ho more than fourteen years of ago, service on
klnt alone, shall be sufficient; 'I he manner ol
sci vice may bo the sumo us in Iho case of
See. Tl. Sen ice muy be made by publiculiun
in cither of the following cases:
In aotlOQi hrought under the forty-fifth slid
forty-sixth sections of this code, where any or
ull the defendant reside out oi Iho State:
In actions brought to establish or sit sside u
will, where any or all the dckiidauls reside out
of the Slute:
In actum, bruifht against a non-resident nf
this Siute, or a foreign corporation, having in
this Stale properly or debts owing to them,
sought to bo taken by any of the prov isional
remedies, or to he appropri. tod in any way:
In actions w Inch relate to, or the sobjeet of
w hich is, real or personal property in ihisijuir,
where any defendant has or claims a lion or in
terest, actual i r cunt i gcnl, iMfeio, or Ihe rrliif
demanded consists wholly or partly in eacluc'ing
him from any interest therein, and such defrn
daut is a mm resident of the State or a foreign
And in all actions, where the defendant bring
a resident of the Stale, hasde, ;rted Iherofroni,
or from the county of his residence, with intent
to dolny or defraud his creditors, or lo avoid the
service of a summons, or keeps himself concealed
therein w ith the like intent.
Sec. 71, lh fore servico can be merle by pub
lication, an nlfidavit must be fil'd, that service
nf a summons ea n ot be inadu w llllln this State,
I on tbe defendant or dcrondunts to be served by
. publication, and thut thu cuse is one ot those
mentioned in Ihe precceding section. When
I such affidavit is filed, the party may proceed to
1 make service by DttblleatloS
See. 1. The publication must bo made six
consecutive weeks, in soma newspaper printed
I in Ihe count v where the petition is filed, If there
'by any printed in such county; snd if there be
not, in some nc.vspapor printed in this Slate of
general circulation In thai county. It must con
tain a summary salcmcut uf the object und prayer
nf tho petition, mention Ihc court wherein it is
tiled, und notify the person or persons tin a to be
served, when they sre required lo answer.
See. 71. Service by public ul ion shull bo
deemed complete, w hen it shall have been made
in the manner und for the time prescribed in Ihc
preceding section; and such service shull be
proved by the affidavit of the printer, or his
foreman, or principal clerk, or other person know
ing the snine.
Sec. 74. In all coses where service may be
made by publication, personal service of a
copy of the summons (c complaint muy bo made
I out of ihe State.
Sec. 78. A party ngainst whom a judgment
or order bus been rendered Without other service
I I then uy publication in u newspaper, may. ut any
i j lime w ithin five years after the dale ol iho judg-
j mont or order, have llic same opened, and be Icl
I in to defend. Hefore the judgment nr order shu II
be npencd, tbe applicant shall givo notice to the
adverse party of his intentions to make such mi
application, and shnl! file a full answer to the pc-
I tltion, puv ull costs, if llic court require them
. lo be psid, uud make it app ar lo the satisfaction
of the court, hy affidavit, that daring tho pen.
i dency of the action, he had no actual notice
s there of, in time to appear in court and make his
r defence: hut Ihe title to uny property, the sub
f ; ject of the judgment or order sought to be open
r 1 ed, which, by it or in conseuuenee of it, shall
J I have passed In a purchaser in good faith, shall
I I not be effected by any proceedings under this
y 'section, nor uhall they affect title of any prop
I erty sold before iiidgrnent underan at tuchment.
The adverse parly, on the hearing oi an applies-
t lion to open judgment, or order, as provided
c by this section, shall bo allowed to present
e counter sllid iv ils to show that during the pen
dency of the action the applicunt, hud notict
e thereof, in time to appear in court, und mukc
d his defence.
o Sec. 7(i. In actions where il shall be necessary
o lo make Ihe heirs or devisees of any decesser
person, defendants, and it shall appear by tbe al
fiduvit of the plaintiff annexed in his petition
that the OS me of such beirsor devisees, or an)
of them, und their residence, are unknown ti
tr.c piamiin, proceedings may oc nuu aguinsi
sueb unknown heirs or devisees, without nuiuint
them, and the court, shall mukc such order res
peeling service, aa muy bo deemed proper: il
service by publication be urticrcd, the publicu
tinn shall not he less than six weeks.
Sec. 77. w here the action is ngainst two oi
more defend uts, and one or more shall have bcci
served, hut not all of the ill, the plaintiff WJ
proceed us follows:
1.' If the action be aguinsi defendants joirtl)
indebted upon contract, he muy proceed again
the defendants served unless the court olherwisi
it. If the action he against defendants several
ly liable, ho may, without prejudice to his righli
against those not served, proceed against the do
fondant served in the same luannir as if the)
were the only defendants.
Sec. 78. When tho summons hae been served
or publication made, the action is ponding, so al
j to charge third persons with notice of its pen
dency, and vv bile pending, no interest can be lie
quired by third persons in Iho subject mallei
thereof, as against the plainlitl"s title.
Sec. 79. When uny pari of real property, thi
subject matter of en action, il situutcd in any
other county or counties than the one in w hicl
the uclion is brought, a certified copy of tin
! judgment in such action must he recorded in tin
recorder's office ol such other county or count le
I before il shall operetf therein ns notice, so as ii
1 charge third persons, as provided iii the precoed
ling section. It shall operate us such notice
w Ithout record, in the county where it is render
led; but title section shull not upply to aetioneo
proceedings under any statute now in force
; w hich does not reuuire such record.
Joinder of Actions.
Sec. BU, ihe plain! in tuny nnitn hcvc ral cutis
i ei of action in the same petition, whether thej
lie such is hevc heretofore been denominated le
I gul or eojulteble or bniii, In n they are tnolodct
. in either one nf the following classes.
1. The same transaction; or transaction!
j connected u ith the same subjeet of uction:
J. Contracts express or implied.
3, Injuries with or without foree. to perot
uiitj property, or either,
I, Injuriis to oberaeten
.'. Claims torecuver .he pospcsiiion of person
ill property with or w.tbout damages for tin
d. Claims to recover real property, with o
without damages for the withholding tbereol
and the rentn and profits "f the BuniC
7. Claims against u trustee, by virtue oft
contract or oy operation uf Uw.
Sec. M. The causes oi netion so uiiitct!
must affect all the parties to tii- uclion, und not
j require diii'emtt plaoea of trial.
Pleadings in Civil Actions.
Cii vrrKii 1. I'lca. turns in general.
'J. The Petition,
b. General Rulee of rlendlnf,
i. Mistaaeeio "leading und Amend
Pleadings in General.
Sec. Ha. I he pleadings are the written state
mente by the parties of tho facts, eoustitulini
their respelivo claims and defences.
See. Kl, The rules of pleading, heretofore
Misting in eivil actions, are abolised: and hereaf
ter the forms of pleading in civil actions in courts
of record, and the rules hy which theirsullicicncv
I may be determined, are these prescribed bv Ihi't
fee. 81. The only pleadings ulluwtd, uro,
I. Tho petition by the plaint.!!,
il. The answer or demurrer by the defendant!
3. Tbe demurrer or reply by the plaintiff.
See. B5. The petition must mutiiin,
1. The name of ihe court and Ihe county in
which the aclion is brought, and the names o!
the part es, plaintiff und de'endant, folluwcd by
the word "I'elilion:"
A statement of the facts constituting tht
rause ol action, in ordinary and concise language
ami without repetition!
3. A demand uf Iho relief to which the party
supposes himself entitled. If tho recoverv oi
money be demanded, tbe amount thereof shal
be atatcil;aiul if Internet thereon bo claimed, thr
lime Iroin wlich interest is lo be computed, shal
be also staled.
Seo. rili. Where the petition contains mor
then one eeuee of aetloa, each ebU be eeparate
lv staled and nuinhcred.
I BOO, fi. 1 lie dclcndaiit may demur to the pe
titiou only when it appears ou its lace, either
I 1. That Ul eourl lias no jurisdiction , f thi
i person of the defendant, or tbe subject of the se
a. That the plaintiff has not legal capacity
3. That there ia annther action pending be
twang, the same parlies for the seme cause:
4. That there is a defect of parlies, plaintiff!
5. That several causes of action sre improp
b. That the petition does not state facts suf
ficient to constitute a cause uf action.
Seo. 0. Tbe demurrer shall specify distinct
ly the grounds of objection to the petition. Vn
less it do so, it shall be regarded as object a
only, that Iho petition docs not stale facts ul-
Itioient to constitute a cause of action
Sic. b'.'. When any of ibv defects enumera
ted in section eighty seven, do not appear upon ,
Die faco of the petition, the objection may be ,
taken Of answer; and if no objee'.ion be luken i
oilher by demurrer or answer, the defends dt i
shall ho deemed to have waived Ihc same, e.veepl I
only the objection to the jurisdiction of the ci.url
vV that the petition does not stale laets sufficient '
lo constitute n cause uf action.
Sec. BU, Whcti a demurer is sustained on
the ground of misjoinder of several causes of '
action, Iho court, on motion of Ihc plaintiff, shall i
allow him, w ilh or without costs in i:s discretion, i
to Ale several petitions, each including such ot ,'
said causes of action r.s inigh' have been joined;
und an action shall be docketed for each of said
petitions, and the same shall bo proceeded in
without further eon ice.
Sec. 1)1. Tho defendant may demur to one
nr more of Ihe several causes uf action staled in
the petition, snd answ er us to Iho residue.
Sec St. Tin" inewer shall eontela
I. A general or specific dental of each male- '
rial allegation of llic petition controverted by the ;
I 2. A statement ofany new matter conetitn.
I ting a defenoe, connterolelm 'or set off, in ordt
liary und coin Ise language and without repetition.
Sec.!):). The defendant may ret fori h in his!
. unewer ns many grounds of defence, counter l
claim n id set-oil, as he may hnve, whether
they be inch as hnve been heretofore rienonii-
noted h'gnl or equitable, or both. k)ach must he!
separately smicd nnu numbered, us they mail re-
fer in an iuleliigibic manner to the causes of ue- i
lieu vvhicli they arc inlet. tied to answer.
B. 94, Tbe counterclaim, mentioned In the '
last section, must be one existing in fuvor of u de- ,
feodum, und against n plaintiff, bel ween whom a
several judgment iriiglil bo had in the action, uud
1 arising uiit ol the contract or tiunsnciiou set lorlh
in the petition us the foundaliuii of the ptatnttfS '
claim, or conuecled With ihe subject of the uc
Sec. !).r. If the defendant omit to set up the
counterclaim or ieloff, he cannot recover costs
gainst the plaintiff ill any uboeqfteBt uclion
thereon but this section shall nol apply to cau
ses ol uclion which are stricken out ol or with
drawn from the answer, I, provided in sections
niliety-six, and one hundred and nineteen.
Sec. Vu. W hen il appears thai u new party is
neeeeaury to a fund decision upon the counter
claim, the court may either permit the new par
' . ty to bo made by a summons, to reply to
t j tli untefbllim, or may direel the counterclaim
10 be str'eken out of the answ er, ond made the
subject ol a si paiate action
, Stc '.'7 A sct-olf cull only be pleaded in tin iic
I tloulounded on contract, und must be a cause of
I action ariiiiig upon contract or ascertained
. by the decision of the court.
I Sec. 98. When it uppeurs that a nrw party Is
t i neOeesery to a final 'decision upon the set-off. the
. oourt snail permit the new parly to bu made il"
il also appear, that owing lo the insolvency or
' j nonrelwehce of ihe pluintitf. or olher cause, the
I defendant will be in danger of lo.ing till claim,
j unless permitted to use it ns t IQtoff,
Sec !)D. When cross demands have existed be
tween persons under such circumstances, thai il
.one had brought uu action agninsl I lie other, a
' counterclaim or eetoff could have been set Up,
' neither can be deprived of the benefit thereof by
; flic eeignrU"UI or death of the other, hut the two
! demands must be deemed tonipeusutcd, so lur u
'. they equal each olher.
'I Sec. 100. The guardian ofim infant or person
I of an rnsoiind mind, or attorney for n person in
' prison, shall deny in the answer all llic mulct iul
' allegation of the petition prejudicial to such de
Sec. 1 0 1 . There uhall be no reply, except upon
! ! the allegation ofa counterclaim or .set-off in the
Sec. 103, When the unxwercoutuins new mnt-
r tor constituting, a counterclaim or set-off, the
j plaintiff may reply to such new matter, denying
, ! gem rally or specifically each allegation coutro
, ' vet ted bv him; und ho may allege, in ordinary
! i uud concise language und without repetition, uny
.new matter not iuconsiatenl with the petition,
. I constituting a defence- to such new matter in
i tho answer, or he may d'-inur to the same for In
Jinffiuiency, stating in his demurrer iho grounds
. I vt,.....,fi uud in. may demur to one or. morw of
I such deli nrcs set up ill ihe answer, una reply to
General rules of Pleading.
Sic. 03, The answer or demurrer by llm de
ft nil ml shall be filed on or before ihe third Saturday,
iintl the reply or demurrer by ihe plaintiff, on or lie
lore the fifth Saturday, alter the return day of the
summons or serv ice by publication.
Sec 104. The court, or the judge thereof in vnca
i lion, for good cause shown, may extend the time
1 lor fill i g mi answer or reply upon such terms as may
I Sec. 103, Hverv pleading in n court of record,
niii-l be siibsctili' il by the parly or his attorney.
Bee. lnti. rery pleading of fact mast be verified
by the affidavit ot the party, bis agent or attorney,
A plodding verified aa herein required, shull not be
i used against a parly in any criminal prosecution, or
action, orproceedlng for a penalty or lorfeiture. as
j proof ol u fact admitted or allegi-d in such pleading;
I and such verification shall not make olher or great
it proof necessary en the side of the adverse puny.
I Sec. Hi. The verification mentioned in tbe lust
section, shall not he required to answi r of a guardian
defending lor an infant or person of'unaound mind.
j or a person imniiaonodl nor in uny ease, vvheru Ihe
admission ol the irulh of n fact Mali d in the plead
I ing, might subject the party to a criminal or penal
I Se,c. lUr1. If thercbe soverul persons united In
interest and pleading together, the ull'uluvit may bc
made by any one of Mich parties.
Sec. in1.). The affidavit shall be aufficient, il it
State I hat ihe affiant believes the facts elated in the
pleading to he true,
j Sec. 110, In all eases whore the parly pleading
I Is a nonteldenl uf the county in which iho aclion
I is brought, or il he shall be absent from ibn county
where ihe pleading is filed, an affidavit made hefore
filing the pi. ading. staling ihc substance of the facts
ai.i rwards inserted in llie pleading, shall lie it sui
fieii ni verification. Such affidavit shall be tiled with
uu pleading intended to bo verified thereby.
Sic hi. The affidavit verifying nleadlnga, may
I he msdc before uuy pel son be lore whom a deposl
) lion might be llkl n, uml musi be signed by the party
making the same; and the officer heiore whom thai
same was taken, shall certify ttat il was sworn to
qr effirmct beiore him, and signed in his presence,
The certificate ot auch officer, signed officially by
i him, shall bo evidence that lb" affidavit was duly
made, that tbe name of the officer was written by
himself, and thai he waa such oflicer.
j Sec. Mi. Ttie Verification of the pleading dues!
I not apply lo llw amount claimed, except in action
i foutrad on contracts, express or Implied, lor the
. payment of money only.
( nee. Hi. When the affidavit Is made by the,
.i Itlomay. it must set forth the reason w hy
I it is not ii, .ni, by the puny himself. It can be made
by the agontor attorney, only,
1. When the laets ore wtlhin the personal knowl
edge of the agent or attorney:
J When the plaintiff is an intent, or of unsound
mind, or imprisoned:
3. When Ihe pleading to tie verilied is found flip
on n written instrument lor ihc payment ol money ,
only, and Mich instrument is in the pos.eston ol the ,
agent or attorney:
J. When the party is not a resident of, or is '
absent from the county,
Si c. 1 1 1. In the constnieti.nl ol any pleading,
lor the purpose of determining ns effect, us ullega
lions shall lie liberally eonsiiucd, will, a view to i
I sulvstaiiiialjiistiec between the ponies,
Bee, 119. All aotlone in pieadlug nre irsMfehodt
Bee. lid. The lulu ot a cause shall nut be Chang ;
cd in uny ot its stages.
See. 117. II iho action, counterclaim, or set-oil j
Is toimdi d on uu uccounl or ou a note, bill, or oilier
I written instrument, as evidence of indebtedness, a
copy thereof must bo attached to and tiled with the
I pleading, il uoi so attached snd filed, the reason
tbereol must be shown in ihc pleading,
Sec lit. It redundant or irrelevant mutter be
inserted in unysleoding, it may be sirikon out, on
motion ol the party prejudiced thereby. And w hen
all, gniinns of a pleading me so indefinite and un
certain, that tbe precise nature ol tho eburge or do
lenee is not upparent. the Qottrt may require the
pleading lube made definite uud certain by unit ud
Sec. 110. The court, ut any time lielore lh
final submission ot the cause, on motion of the de
fondent, may allow a counterclaim or set-off, set up
in the answer lo be Withdrawn, and ihe same may
become the Hihjccl of another aclion. tin motion
of either parly, to be made al thu time such count
erclaim or set-orl is withdrawn, an action on the i
same shall be docketed and proceeded in as in like
east s after process served: und the court shall direel
lh.' lime and nianiiei of pleading therein. Il en ac
tion be not so docketed, tl may Bttcrvards. bo com
MCatoad in the ordinary way.
Se c. IgO. In pleading a judgment or other dt tt r
iniiislioii of a eourl or uHicer ot special jurisdiction,
il shall le sufficient to slate ;hat such judgment or
deleriniiiation was duly given or made. It such al
legatiou be oontrovoraw, the party pleading must
establish, ou the trial, (tie facie conteiriu jurisdic
I Ii 01
dec Cl. In ploadw llie p rfum.mce of condi
ions precedent in n contract, it si, nil bo sufficient lo d
itste, llinl llic parly duly performed all tbeoondilloni s
law, parti and If anch allegation le cnnKoverted, c
lie puny pleading must establish, on thu triul, the t
acls slmw iug siicli perfotinnnee
Sec I.'J. In mi aclion, eounleroletm, or set-off i
minded upon an SCOOUnt, pruinisrory note, bill ol I
itenenge or other IrsWrurnent for the unconditional ,
i ayiiii in of money only, it shall be inffivleni lor n
virty to give a copy ol the uccounl or instrument. ,
iib all credits end the indorsements linreoo, and i
0 Male that there isduo to hi n, on such account or i
nstfumefit, from the advene puny, spcctHed sum.
which he claimi with interest. When other than I (
he makers ul u promissory note, or the necepiors ol ,
1 bill ol exchange, nre parlies in the aclion, it shall
" in or v to state, also, the kind of liahilty ol
he several parties, and the fuels, us they may be.
which lit tin ir liability.
Sec. 1123, Iii pleading n private stutule, or n right
Icrived therelrom, it ahull be luffleient lo refer to
nich statute hy its title, and the day (of ils pussns, I
intl the court shall thereupon luko judicial notice
Bee. 1-1. In an aclion for nlibcl or slander, it!
-hall be sufficient to state generally, that the do I
lamatory mutter was published or spoken of the
plaintin, and if the allegation Is: denied, ihe plain
tiff must prove ou the trial, the laets, show ing thai
the defamatory matter wee poMiehed, or spoken of
Sec. 195, In the actions mentioned in tho Inst
section, the defendant may allege the truth of the ,
matter charged ai oofamatory, and .uny prove the
same, and snv mitigating circumstances to reduce
the amount of damage. Of be may prove either. i
See 12ti. In nn action lor the recovery of real
properly, it shall be described with such convenient
certainty, aa will enable an officer holding un exe
cution, to Identify it
Sec. 17. Every material nilegntion of the peti
tion not controverted by the answer, and every
material allegation of new matter in tho answer,
constituting n counter claim, or Nt off not con
troverted by iho reply, shall, lor Ihe purposes of the
uclion, bu taken us true, but the allegation of new
matter in the answer not relating to u counter claim
or set-off, or of new matter In the reply, shall be
deemed to bo Controverted hy the adverse purty, as
Uion a direct denial ur avoidance, as llie case may
require. Allegations of value, or 01 amount of
damage, lhall not be considered us true, by failure
to controvert them.
Sic. 188. A material allegation in a pleading, is
one essential to the claim or dafenc, which could
nut lie striken from the pleading, Without leaving it
Sec. 199, Neither presumptions of law, nor mat
ers of which judicial notice is taken, need bo staled
in llie plending.
Sec. 130. If un original pleading he I ist, or With
held by any person, the court may allow a copy
thereof lo lie substituted.
Mistakes in pleading, and Amendments.
Si i 131, No varlltnoe between the allegation in
n pleading und the proof, is to he deemed inulerial,
unless ii have actually misled the adverse parry to
I M prejudice, in maintaining W action or defence
upon tiie merits. Whenever it is alleged, thut n
party has been so misled, that fail mull be proved lo
the satisfaction ol the court, and it must also be
sboWll in what respect lie has been misled; and
thereupon the court may order the pleading to be
amended, upon such terms as may be just.
See. 133. When the Variance is not material, ns
provided in the laat eectlon, the eourl may direct the
rfacl to be found, according to the evidence, and may
order un Immediate amendment without cost.
Sec. l.3. When, however, the allegation uf tho
claim or defence, to which tho proof U directed, it
unproved, not in some particular, or particulars only
bui in its general scope and moaning, it is not to be
' deemed a case of variance within the laat two sec-
I lions, but u failure of proof.
Sec. 131. The plaintill may amend his petition
, without leave at any lime before the answer is filed,
witlmut prejudice to the proooedingi but n nice o
inch nun inline nt shall be served upon the defendant
or his attorney, and the defendant thall havo lilt
same time tounswerordemur thereto, us to iho or
I ginal petition.
See. 13j. At nny time within ten days after r
demurrer is filed, the adverse party nny amend, ol
j course, on payment of costs since filing the detective
'pleading. .Notieo of filing mi amended pleading
shall he forthwith served upon the olher parly, wile
shall have the same lime thereafter Ut niiovvcr, Ol
1 reply thereto, as to an original pleading
I Sec. 136. Upon a demurrer being overruled, tin
party who demurred, may answer or reply, if th
Court be satisfied that he has a meritorious claim
or defence, and did not demur lor delay.
1 Sec. 137. The court may. before, or after judg
ment, in furtherance of justice, and on such terms
j as may be proper, amend any plea ling, process or
proceeding, by adding or striking out too nan) of
i ony party, or by correcting a mistake in thi name
of a party, or a mistake in any other respect, or by
inserting other allegations material to the case, or
when the amendment duos not change aubslaHti illy
the claim or defence, by confirming tbe pleading oi
proceeding to the facts proved. And whenever uny
proceeding '.aken by n party fails to conform ill nn
respect, to the provisions of this code, the court may
permit the. same to be made conformable thereto, by
Bee, 13S, The court, in every stage of an'actian
must disregard any error or delect in the pleading!
or proceedings vvhicli doeahol affect the substantia!
rights of the adverse parly; und no judgment shal
lie reversed, or affected, by reason of such error, oi
Sec. lal). If the demurrer bo sustained, the nil
i verse parly may amend, il the delect can bo re
I medied, bv way of amendment, with, or without
costs, os the eourl in ins discretion shall direct.
Sec 1 III. When either party shall nmend nny
pleading, or proceeding, and ihe court shall bt
katisfied by affidavit, or otherwise, that ihe advent
party could not be ready for trial in ooneequenct
thereof, a continuance may be grunted to same da)
in term, or to another term of the court.
See. 141. When the plaintiff shall be Ignorant ol
the name of a defendant, such defendant may U
deeighated in any pleading or proceeding by unj
name and deecrlption.nnd wbentiis true name Isdia
Covered, the pleading, or proceeding may bo amend'
ed accordingly. The plaintiff in such case, urns:
state, in the verification ol his petition, that BeoOUll
not discover the true name, ti:id lie: summons musi
contain the words, "real name unknown," and n
copy thereof must be served personally upon the do'
I See. 143. Kilber party may be allowed on notice,
; and ou such terms us to COOtO, us the court may pre
j scribe, to file a lOpplemi lltal petition, answer, oi
reply, allogiug facts material to lb 000, occurring
. after die former petition, answer, or reply,
! Bee. 143. Whenever two or more actions are
1 pending in the same court, which might havo been
joined, the defellaanl may, on motion and notice te
tho adverse party, require him to show cause why
, the same shall not bo consolidated, und if no sueli
cause I . shown, the said several actions shall bu
Sec. lit: The order for conaolidation may he
made by the court, or by 0 judge- thereof in vucu-
CaUmi I- Arrest and bail.
2. Iteplevin of pioperiy.
u. ucceivcrs an ouier provisional re-
Arrest and bail.
i Sec. 115. A defendant m n civil action, can Ik
.arrested before, end alter judgment, in the manner
precrlbed by tbi code, and not otherwise; hut this
' provision titles not upply to proceedings for contempt;
nor does il upply lo actions or judgments prosecuted
in tbe name ol the Slate of Ohio, lo recover lines or
penalties lor crimes, misdemeanors, or olfences.
Sec. 46, An order lor the arrest ol Uie defend
: unt, shall l- made by the clerk of the court in which
the action is brought, when there is tiled in his of
I bee un affidavit ol the plaintiff, his authorized agent,
or attorney, made before any judge ol any court ol
the Stale, or clerk thereof, or iuelioe ol tbe peace,
I slating Ihe nature of the plaintiff's cluim, lhai il is
just, snd the amount thereof, us nearly us may be,
ami establishing one or more ol thu tdtowJOg par
ticulars: I 1. That the defendant has removed, or begun to
remove uny of his properly out ol the jurisdiction ol
tin court, with intent lo defraud his creditors:
2. Thut he hue begun lo convert his properly, or
a part thereuf. into money, lor llie purpose of pluc
illg it beyond the reach ol bis creditor-:
3. That be has property, or rights of uction, which
he freuduleuily conceals:
4. Thai be bus assigned, removed, or disposed of,
or has begun to dispose of his property, or a part
thereof, with intent to defraud his creditors:
5. That hu Iruuduleiilly txuiiracted tho debt, or
incurred ihe obligation, for which suit id about to be,
or has licen brought:
The utlidavil shall also contain astatenu -it of tht
furls chinned tojueliijf the bell I In ihe existence of
one or more of tlio above particulars.
See. 147. The Older ol urresl shull not ho issued
by the clerk, until there hss been executed, hy on.
: or more sufficient sureties of the plaintiff, a written
undertaking, lo the elfecl. that the plaintiff shall pay
I lo the dt ten. lam ull damages, which he may sustain,
by reason of the urn st, it llie order ho wrongfully
otiiuiiitd, not exceeding .double the amount ul llie
plainlifl a claim staled in the aliidavit.
S c. 1 IB, The ordei may be made to accompany
the common, or at any lime ul inwards, Ulore
Bee. 149. The order of arrest shall he addressed,
and dtlivtied, with 0 copy of lb aliidavit, to she
slit rill', 't he order shall stmc the mimes ol the
parties, the court ill which the I Ition is brought, and
the amount of ihe nlailitilt 's cla:m ipecMiad in Iho
affidavit, and sbullrcqune the sheriff lu attest the
efendant, and hold him to ball in double tho sum
tnied in the aliidavit, mid lo make return of tho
rocf Mi day M be named therein, with tlio under-
akiug of thu bad, il any be given.
See. IIW, Th return day ol the order nf arrest,
vben i.-tsitcd al ihe commencement ul tho suit, shall
latheeantoni that ol the summonai when issued
tfterwerdi, it shall be Afteeq days utter it issued.
Sec. I'll. The f heiilf shall execute th nrder hy
irreeting die delandanl nn I delivering lo hint a copy
le n of. and of the nlli Civil . If ihe defendant can -lot
be found before the return day, Ihe plaintiff shall
ic intltleo tn further orders, without other alii Invit,
ir undertaking, until the defendant is arrested; hut
inters of irre.t shall not be liwod to any other than
the county, in which iheacti mis brought.
Sec. 15:1, The defendant, whennrroeted, shall ho
committed by tin sheriff to the j.iit of the coumy,
and kepi In custody, until discharged bylaw.
See. 153, The deiondant may before or after
giving bail, deposit In the hands ol the sheriff, or on
court, the amount of money mentioned in tlio order
of urresl; wht r u ion he shall lie discharged, or his
boil.il any Is- given, shall be relets, a.
Sec. I'll. The sheriff shall ; ar int.) ciurt tho
money received by bimin lien othuil; if received in
vacation, he slinll pay it on the first day of tho mint
term, il received during a term, he shall pay it in in;
lnediutcly. See. I .e'i. The court shall make proper ordrrs for
the safe keeping of money deposited in lieu of bail.
It may direel the sheriff to keep the nionoy, and
uficr final judgment in the action, shall order il to
be paid 10 the party entitled thereto; according to Iho
Sec. l'ifi. M' ney so deposited with the sheriff, In
lien of bail, or directed by the court to he kept by
htm, shall beheld upon his official responsibility; &
he and his sureties shall he liable, and may bo pro
ceeded against, lor any default in relation thereto,
as in other eases of delinquency.
Sec. 1ST. Hail may be given by the defendant on
his arrest, or at any lime afterwords, before judg
mi nt. It shall bedohe by causing oneur more suf
ficient bail to execute a written undertaking to the
plaintiff. In the preeenee of the sheriff, to the effect
1 that, if Judgment shall bj rendered in the action a
1 gainst the defendant, he will render himself nmon
, able to ihe process of the court thereupon. The un-
delinking, w hen accepted, shall be relurned to the
clerk's office, und the defendant discharged.
Sec. 158. The plaintiff, or hit attorney, may ob
ject to the hail for insufficiency, nt nuy time within
i ten dues after the undertaking of the bail has been
i given; within auoh time ho shall servo upon the
sheriff a written notice that ne docs not accept tho
I bail, or he shall be deemed to ha vc accepted it, and
the sheriff shall bi exonerate I from liability,
When the undertaking is given alter the reiurn of
tbe order of arrest, the plaintiff shall have nulico
See. 159. On the receipt of such notice, tho
sh. riff, or defendant may, within tcnonys thereafter,
give to the plaintiff, or ma attorney, notice in writ
ing of the justification ol tho aame, or other bail,
before n judge, or clerk of the court, in which the sc-
, lion is brought, a probate judge, or justice of the
pence, at a specified time and place: llie lime to bo
i not less thali five, nor more than ten days thereafter.
! In case other bail be given, there musi lie a new un
dertaking. Sec. lot). For the purpose of Justification, each
I ol the bail must attend before the proper ollicer ni
! the lime and place mentioned, and may lie examin
ed on onth or affirmation touching his sufficiency, in
such manner ns the ulliccr may think proper.
Sec. 161, If. the officer find the bail sullicient, ho
shall endorse his allowance on the imderiaking, und
cause Ihe same to he filed W illi the clerk; nnd tlio
sheriff shall thereupon be discharged from liability.
Sec. lti-2. If alter being arrested, the delendont
escape or be rescued, or ball bb not taken or bo ad
judged insufficient, or n deposit be not made, tho
sheriff ihall be liable as bail. Put be may discharge
himself from liability by putting In sufficient bail ul
any tine: before judgment.
Sec. Ki3. The return of "nn found," upon nu
execution ngainst the ho ly of the defendant, shall
. be necessary to fix the liability of the sherilf as bail,
1 w hich liability shall be tlio amount of the judgment,
1 Interest and costs, This liability can bo cntijrcctl
onlv In a separate action against him oragaiust him
and his sureties ou his official bond, as in uther cases
Sec. 164. The bail adjudged insufficient, shall be
liable to the slit riff for the damages. ho may 3 ustain
by reason oi' such Insufficiency,
' Sec. lb.'. The liability of the bait ahall be fixed
in the manner piovided in section ono hundred and
sixty-three, for fixing the liability of the sheriff as
bail, and the bail cun bo proceeded ngainst in an ac
! lion only.
Sec. 168, A surrender of the defendant to tlio
sheriff of the county Q Which he Was arrested,
with a delivery of u ccnified copy of the under
lining of the bail whether such surrender bo
made by the defendant himself or by Ilia bail,
shall discharge the bail; such surrender may be
mods at any time before the return day of tho
summons in an action uguinst the bail. Thu
' sheriff shall givo to Iho buil a written acknowl
edgement of the surrender, and hold the defen
dant in his custody upon said copy of the under
taking of the bail, us upon un order of urrcst.
On the production of the sheriffs acknowledge
ment of the surrender to the clerk of the court,
an exoneration of the ball shall be cntored on his
107. For the purpose of surrendering tbo
defendant, the bail, at any time or place, before
he is finally charged, iiiuyhimsolf arrest him, or
by a written authority endorsed on a certified
copy of the undertaking, may empower any per
son of suit i hie age and discretion to do so.
Sec. lorf. The bail will be exonerated by tlio
douth of the defendant, or his imprisonment in a
state prison, or by his legal discharge from the
obligation to render himself amenable to the pro
i cess of the court, or by bis surrender to tlio
; sheriff of the county in which he was urroetcd
in execution thereof, within the time fixed ill
section one hundred and sixty-six, or within
, j such further time as the con el in which the act on
, j is pending, may allow.
Sec. tb'J. If money be deposited by the defen
dant in his discharge, bail may be given und jus
tified Upon notice M prescribed ill section ono
hundred and filly nino, at nny time befurcjudgc
mont und thereupon the court in which llic uc-
lion is brought, on being satisfied that tho bail
j has been given and adjudged sullicient, shall di
. rcct that the money deposited be refunded to the
defendant, and it must he refunded accordingly.
I Sec. 171). If, ut any lime before or alter judgc
i merit uguinst the bail, proceedings in error uro
j commenced, on the judgement against the prin
leipal in the suit, in whieh their undertaking vva
' taken, the court may on motion, stay proceeding
ugainst such buii for a reasonable time, on their
j paying ull the costs thut liavo accrued against
: them: und if, on tuch procecdings.tho judgement
against thu principal shull be reversed, and tho
I principal discharged from said suit, the bail shall
: be dischaived from the undertaking,
i Sou. 171. A defendant arraetad, may at any
time before the justification of llie bail, apply ou
l motion, lo the court in which the suit is brought,
! if in session, nnd in vacation, lo a judge thereof,
I or to ony judge ofa court uf record of tho
I Stale, to vacate the order of arrest, or to reduce
the amount of the hail. Rcusonuble nulico of
such motion mutt be given to the pluintiff.
Sec. 17-2. If tlio motion bo made upon affida
vits on the part of the defendant, but nuv othcr
I wise, the plaintiff nuy oppose the same by uffida
vits or other evidence, in addition to that on
vv hiuh tho order of arrest w us made.
Sec. 173. Any person causing unother to be
committed to jail under the provisions of this
chapter, shall be liable, in tho first instance, for
the jail fees, and shall, if required by tbe jailor,
: psy such fees Weekly in advance; and such fees,
' so paid, shull he a I art uf the costs of the ee
Replevin of Property.
; See. 171. The plaintiff in an action to recover
the piss ssion ol specific personal properly, may at
Ihe commencement of the suit or at uny lime belbru
uuawur, claim lb Immediate delivery ol such ruTCD
t erly, us provided in this chapter.
HOC, 17 . An order lor lb delivery of property to
the plaintiff, shall be made by the clork of the court
In which tlic uclion U brought, when there is filed in
his ofhee, nu aliidavit of the plaintiff, his (gent, or
uttorney, uh iwing,
I. A description of the property claimed:
. That the plaintiff is the uwherjoi tho property
or lias a special ownerslup or interest therein, stat
ing the acts m rehuion iliereto, and that bo is enti
tled to ihe immediate possession ol ihe property:
I 3. That the property is wrongfully detained bv
the defendant: '
4. That it was not taken in execution on anyor-
, der or judgment against aaid plaintiff or Ibr the pay
ment ul any lax. line, or umereemeiit assessed against
turn, or by virtue ol uu order ol delivery i-jsueduuder
' ibis chapter, or any other mesne or final process is-
' sued against said plaintiff.
I Sec I7ti. The order lor the delivery of the proo
erty to the jilainlill shall he addressed and delivered
to the sheitff. It shall stale the names of the par-
Isae, tba raart iu which the sotioa is brought, ami
pCCBiaaqd ihe sheiill to take the property, describing
; n, anil deliver il to the plaintiff, anil to muko return
j ol ihe order on a day 10 lie Rami d therein.
St c. 177. I he Mum day ol ihe order uf delivery
whan leaned at the oommenoemeni of the suit, shaii'
Ik' IM same a thai ol the summons; when issued af
t. rwards, it shall be twenty day a tier it issued
Sec. 17. 4. The sherilf shaH execute the order bv
I taking Ihe property lie rem in. aligned, lie shall af-
so deliver u copy ol the order to iho person chamed.
with the unlawful detainer of ihe property, or Icavo
i sue b copy at his usual place of residence.
I In lH The iheciff or other officer, eaeil a