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offence shall have been committed; all of which said fines shall be to and for the use of the county.
Sec. 12. That the act, entitled "an act defining the duties Acts repealed of sheriffs and coroners in certain cases,” passed the filth day of January, in the year one thousand eight hundred and five; and an act lo amend the last named act, passed the seventh day of January, in the year one thousand eight hundred and nineteen, be, and the same are hereby repealed.
This act shall be in force, from and after the first day of Effect
Speaker of the Senate.
AN ACT concerning mesne process in Civil and Criminal cases.
Officer to return
Sec. 1. Be it enacted by the General Assembly of the State of Ohio, That the first process in personal actions, in cases where First process, the plaintiff is not entitled to special hail, shall he a summons; when a sum
mons and, whether the same be issued in or out of term, a copy there." of shall be personally served on the defendant, or left at bis How served usual place of residence, at any time before its return: and in
'When a capias all actions where the plaintif is entitled to special bail, the first process shall be a capias a i respondendum: Provided, That Proviso the plaintiff, in any case where he mav be entitled to special bail, as of course, mav sue out a summons instead of a capias; and, on the return of such summons, the court, on motion, may order the defendant to give special bail, in the same manner as if a capias ad respondendum had been the first process.
Sec. 2. That it shall be the duty of the sheriff or other offi- offic cer, to whom any summo's, capias al respondendum, or other process process, is directed, to return the same at the time and place therein mentioned, which shall be filed by the clerk of the court; and if the said sheriff or other officer fail to make such return, unless he can make it appear to the satisfaction of the Pailing, to be court that he was prevented by inevitable accident from so anerce doing, he shall be amerced hv the court in any siim rot ex. ceeding the plaintiff's debt or demand, to and for the use of said plaintifs
Sec. 3. That when the sheriff or other officer shall return the summons or other process, "served," the defendant or de served." defenfendants shall be considered as being in court, and may be pro-dant in court ceeded against accordingly.
Sec. 4. That the sheriff or other officer shall execute the Capius, bow exsaid writ of capias ad respondendum, by taking the body or turned
Process returned writ
ecuted and re
an alles or a plu
remove, a testa. lum
bodies of the defendant or defendants; and in such case, shall return thereon, “I have taken the body," as to the defendant, or, “I have taken the bodies," as to the defendants, on whom .
the same hath been served: and shall indorse on the capias ad Copy of bail respondendum the name of the bail by him taken, and shall bond to be re- deliver a copy of the bail bond to the clerk of the court, at or turned with the
before the return day of the same writ; which copy shall be safely kept by the said clerk, in his office.
Sec. 5. That when the sheriff shall return any writ of caWhen sheriff re turne not found, pias ad respondendum, in any civil action, not found," as to or not served,' the defendant or defendants, who is or are not to be found in ries may issue, his county, or any writ of summons, to answer as aforesaid, or if defendant “not served," or not "summoned;" the plaintiff may sue out
a an alias or pluries oapias ad respondendum or summons, upti)
the defendant or defendants shall be arrested or summoned; or testatum capias or summons, where he or they shall have removed into another county subsequently to the commencement of the said suit.
Sec. 6. That if the defendant, at the time of suing out such Proclamation process, have a residence in, or be an inhabitant of, the county may issue
in which such process was sued out, the court may, on motion of the plaintiff, order a proclamation to issue, warning the defendant to appear at a certain day therein named, or that judgment will be rendered against him; which proclamation shall
be published three successive days of the court, fif the court Now published
shall so long remain in session) at the door of the court house of the county to which the last process was returned, and also
three times in some newspaper published in the State: and if Defendant fail. the defendant shall fail to appear, pursuant to such proclamajudgment by de- tion, the same
de: tion, the same proceedings shall be had, and the same judgment given, as in other cases of default.
Sec. 7. That when any writ of capias, summons or other against mesne process, against two or more defendants, shall be directhow served and ed to the sheriff or other officer, it shall be the duty of such indorsed by the officer to serve the same on so many of the defendants as shall
be found in his county, and to indorse on said writ the name or names of such defendants as have been served with the same; and it shall also be the duty of such officer to return on said writ the name or names of such defendants as have not been served with the same, specifying that they are not found in his county.
Sec. 8. That a writ of capias may be issued in term time,
or in vacation of court, on an indictment found in any county; sued to an off and when directed to the sheriff or other officer of the county
coun in which such indictment was found, it shall and may be lawsul ty, his power ind duty for such officer to arrest the accused named in such writ, in
any county where he may reside or be found, and to hold him to bail as hereinaster provided, in the county where such indictment was found, or commit hiin to the jail of the same county.
ing to appear,
tapias on indict. ment, when is.
cer of the coun
zance may be
Sec. 9. That when the party accused shall reside out of the county in which such indictment was found, it shall be lawful to When issued to
an officer of ano issue a capias thereon, directed to the sheriff or other officer of ther county, his the county where the accused shall reside or may be found; and duty it shall be the duty of such officer to arrest the accused and con vey him to the county from which such writ issued, and there hold him to bail as hereinafter provided, or commit him to the jail of the said county, in the same manner as if such writ had been issued in the county where such officer shall reside: for which service, he shall receive the same traveling and other His fées, hov fees, as are allowed in other cases; which fees shall be taxed" by the clerk of the coturt to which such writ was returnable, and shall be paid out of the county treasury, on the order of the auditor of the said county.
Sec. 10. That it shall be lawfal for any sheriff or other offiser, executing a capias issued on any indictment, for an offence, What recognithe punishment whereof is fine, or fine and imprisonment in taken by the of the jail only, to take the recognizanee of the person 60 arrested, cer making an together with good and sufficient sureties, resident or freehol nor offence
varrest for a mj. ders in the county from which such writ issued, in a sum of not less than Bfts, nor more than two hundred dollars, conditioned for the appearance of such person on the first day of the next term of the court from which said writ issued.
Sec. 11. That it shall be the duty of such sheriff or other officer, to return the said writ according to the command there to be returnect
Recognizance of, with the name or names of the surety or suretics indorsed with the writ thereon, together with such recognizance taken by him as afore. said.
Sec. 12. That the recoguizance so taken and returned as Respon aforesaid, shall be filed and recorded by the clerk of the court be recorded and to which the same was returned, and may thenceforth be pro- proceeded on as ceeded on and carried into judgment and execution, in the same manner as if such recognizance had been taken in any court of record.
Sec. 13. That when any person shall have been iudicted for on in a crime punishable by imprisonment in the penitentiary; and for crimes pun. the person so indicted, shall not have been arrested or recog-sh
cog, ishable in the pized to appear before the court, or in case he shall not have court may order been arraigned during the term at which such indictment was the amount of
the recognizance found, the court may, at their discretion, make an entry of the cause, on their journal; and may order the amount in which the party accused, may be recognized for his appearance, by any officer charged with the duty of arresting him.
Sec. 14. That the clerk issuing a capias on such indictment, shall indorse thereon, the sum in which the recognizance of the indorsed on ca: accused was ordered, as aforesaid, to be taken..
taken.. Sec. 15. That the sheriff or other officer, charged with, the duty of executing the said writ of capias, shall take the re-cer executing cogaizance of the accused, in the sum ordered, as aforesaid, to-such writ gether with good and sufficienţ surety or syreties, conditioned
The sun shal ve
Duty of the ofti
for the appearance of the accused, at the return of the writ, betore the court out of which the same issued; and such officer shall return such recognizance to the said court, to be procee. ded on in the manner pointed out by this act.
Sec. 16. That the following form of a recognizance, under Form of the re. the provisions of this act, shall be observed by sheriffs or other
officers taking the same, namely:
" County, ss.
day of in the year of our Lord
, personally came belore me, G. K., sheriff, (or other officer, as the case may be,) of the county of
, A. B. C. D., &c., and severally acknowledged to owe the State of Ohio, the sum of
doilars each; to be levied of their goods and chattels, lands and tenements, if default be made in the condition following, to wit: The condition of this recognizance is such, that whereas the above bounden A. B., has been arrested by me, on a writ of capias issued out of the court of common pieas, in and for the county of
, on a certain indict. ment presented in the said court, against the said A. B., for the offence charged in the said indictment:
Now, therefore, if the said A. B., so arrested as aforesaid, shall personally appear before the judges of the court of common pleas of the county last aforesaid, on the first day of the next term thereof, (or during the present term thereof, as the case may be,) then and there to plead to the same indictment, and abide the judgment or the court thereon, and not depart the court, without leave, then this recognizance shall be void and of no effect; otherwise to be and remain in full force and virtue in law.
Which said recognizance shall he signed and sealed by the parties, and attested by the officer taking the same.
Sec. 17. That the act, entitled "An act providing for the service and returu of process, in certain cases,” passed January 22d, 1824; and the act ane ding the last named act, passed January 30th, 1927; and all other acts and parts of acts, coming within the purview of this act, be, and the same are here
by repealed: Provided, That any rights acquired, or duties or Proviso saving rights acquired, obligations incurred, under the provisions of either of the said
acts, shall not be affected, lessened or impaired by the repeal of the same acts; but such rights, duties or obligations, shall be enforced, according to the provisions of the existing law in such cases.
This act shall take effect and be in force from and after the first day of June next.
JAMES M. BELL,
SAMUEL R. MILLER,
Speaker of the Senate. February 10, 1831.
SET OFF AND TENDER.
AN ACT allowing mutual debts and demands to be set off, and concerning tenders.
issue, with no
Sec. 1. Be it enacted by the General Assembly of the State of
Tender may be the defendant, on a plea of tender, shall prove that he did ten-ed der payment of the money due on such writing obligatory, pro- • mise or contract, at the time and place when by such writing obligatory, promise or contract, he was holden to pay the same, or at any time before the commencement of such action or suit thereon, and sball bring into court the money so tendered, the plaintiff shall not have judgment for more than the money so due and tendered, without costs; and shall pay the defendant his costs: and in any action or suit brought on any writing obligatory, promise or contract for the payment of any article or thing,
"S' or things Other other than money, or for the performance of any work or labor, than'm if the defendant shall plead that he did tender payment or performance of such writing obligatory, promise or contract, at such time and place, and in such article or articles, work or labor, as by such writing obligatory, promise or contract, he was bound to pay or perform, and if the court or jury shall find that the defendant did tender as alledged in his plea, they shall at the same time assess the value of the property or labor so tendered; and thereupon judgment shall be rendered in favor of the plaintiff, for the sum so found, without interest or cost, un. less the defendant shall forthwith perform his contract, or give to the plaintiff such assurance as the court may approve, that he will perform the same within such time as the court shall direct; in which case judgment shall be rendered for the deferidant: and in case any article so tendered, be of a perishable nature, it sball, from the time of such tender, be kept at the risk and expense of the plaintiff, provided the defendant take rea. sonable care of the same.
Sec. 3. That when any plaintiff or plaintiffs, shall be indebted to any defendant or defendants, in any debt, contract,