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 That the act, entitled "an act defining the duties Acts repealed of sheriffs and coroners in certain cases," passed the fifth day of January, in the year one thousand eight hundred and five; and an act to amend the last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passed the seventh day of January, in the year one thousand eight hundred and nineteen, be, and the same are hereby repealed.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 June next. JOSEPH RICHARDSON, ALLEN TRIMBLE, February 25, 1824. Speaker of the Senate. AN ACT concerning mesne process in Civil and Criminal cases. 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 the plaintiff is not entitled to special bail, shall be a summons; when a and, whether the same be issued in or out of term, a copy there mons process, sum of shall be personally served on the defendant, or left at his 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 1 respondendum: Provided, That Proviso Officer to return process Sec. 2. That it shall be the duty of the sheriff or other officer, to whom any summons, capias al respondendum, or other 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 Failing, to be Court that he was prevented by inevitable accident from so doing, he shall be amerced by the court in any sum rot exceeding the plaintiff's debt or demand, to and for the use of said plaintiff Sec. 3. That when the sheriff or other officer shall return the summons or other process, “served," the defendant or defendants shall be considered as being in court, and ceeded against accordingly. may be pro ainerced Process returned "served." "defendant in court ecuted and re Sec. 4. That the sheriff or other officer shall execute the Capias, how exsaid writ of capias ad respondendum, by taking the body or turned 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 before the return day of the same writ; which copy shall be safely kept by the said clerk, in his office. turned with the writ When sheriff re ries may issue, Sec. 5. That when the sheriff shall return any writ of caturns 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 anama, his county, or any writ of summons, to answer as aforesaid, or if defendant "not served," or not "summoned;" the plaintiff may sue out an alias or pluries capias ad respondendum or summons, until 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. remove, a testafum Proclamation may issue Sec. 6. That if the defendant, at the time of suing out such process, have a residence in, or be an inhabitant of, the county 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, [if the court 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 proceedings shall be had, and the same judgment given, as in other cases of default. How published ing to appear, fault two or more, Sec. 7. That when any writ of capias, summons or other Process 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 officer ment, when, is ty, his power and duty 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, Capias on indict. 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 cer of the coun in which such indictment was found, it shall and may be lawful 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 hereinafter provided, in the county where such indictment was found, or commit him to the jail of the same county. an officer of ano 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 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 convey 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 fees, hov fees, as are allowed in other cases; which fees shall be taxed by the clerk of the court 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. taxed and paid zance may be arrest for a nj Sec. 10. That it shall be lawful for any sheriff or other offieer, executing a capias issued on any indictment, for an offence, What recogni the punishment whereof is fine, or fine and imprisonment in taken by the offi the jail only, to take the recognizance of the person so arrested, cer making an together with good and sufficient sureties, resident or freehol nor offence ders in the county from which such writ issued, in a sum of not less than fifty, 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 Recognizance officer, to return the said writ according to the command there to be returned of, with the name or names of the surety or sureties indorsed with the writ thereon, together with such recognizance taken by him as aforesaid. Recognizance to taken in cour proceeded on as Sec. 12. That the recognizance so taken and returned as 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 proceeded on and carried into judgment and execution, in the same manner as if such recognizance had been taken in any court of record. ishable in the the amount of Sec. 13. That when any person shall have been indicted for on indictment a crime punishable by imprisonment in the penitentiary; and for crimes punthe person so indicted, shall not have been arrested or recog-penitentiary, nized 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 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, The sum shall be shall indorse thereon, the sum in which the recognizance of the indorsed on ca accused was ordered, as aforesaid, to be taken. pias Sec. 15. That the sheriff or other officer, charged with Duty of the ofli the duty of executing the said writ of capias, shall take the re- cer executing cognizance of the accused, in the sum ordered, as aforesaid, to- such writ gether with good and sufficient surety or sureties, conditioned for the appearance of the accused, at the return of the writ, before the court out of which the same issued; and such officer shall return such recognizance to the said court, to be proceeded 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: cognizance Acts repealed STATE OF OHIO, Be it remembered, that on in the year of our Lord , A. B. COUNTY, SS: day of , personally came before me, G. K., sheriff, (or other officer, as the case may 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 of 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 be 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 return of process, in certain cases," passed January 22d, 1824; and the act amending 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 hereby repealed: Provided, That any rights acquired, or duties or 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 Proviso saving &c. cases. This act shall take effect and be in force from and after the first day of June next. JAMES M. BELL, Speaker of the House of Representatives. February 10, 1831. Speaker of the Senate. AN ACT allowing mutual debts and demands to be set off, and concerning tenders. Sec. 1. Be it enacted by the General Assembly of the State of What demands Ohio, That in all actions and suits brought on any specialty, may be set off contract, bill, note, promise or account, in any court in this under general State, it shall be lawful for the defendant to plead the general issue, with noissue, and at the same time to give notice in writing, to the plaintiff or his attorney, of any debt, contract, book account, or other liquidated demands against the plaintiff, which he may be desirous to have set off and allowed to him, in such action or suit, or of any payment or payments he may have made on such specialty, contract, bill, note, promise or account; and the court shall render judgment for the party, whether plaintiff or defendant, in whose favor the balance may be found for the amount of such balance and costs: Provided always, That no Proviso ag to bond, bill, note or other writing assigned over to the defendant, bonds, &c. as. after the suit is commenced against him, shall be allowed to be signed after suit brought in by way of set off to such suit. brought made and pleat Sec. 2. That in any action or suit brought on any writing obligatory, promise or contract, for the payment of money, if 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, promise 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 shall 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, of things other other than money, or for the performance of any work or labor, than meney 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, unless 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 defendant: and in case any article so tendered, be of a perishable nature, it shall, from the time of such tender, be kept at the risk and expense of the plaintiff, provided the defendant take reasonable care of the same. Sec. 3. That when any plaintiff or plaintiffs, shall be indebted to any defendant or defendants, in any debt, contract, Q |