$27. If the defendant against whom an attachment shall have TITLE 13. been issued and returned served, do not appear on the return day Default of thereof, the court may either award another attachment, or may order defendant. the bond taken on the arrest to be prosecuted, or both. $28. Such order shall operate as an assignment of the bond to any Suit on bond. aggrieved party who shall be authorised by the court to prosecute the same, and such party may maintain an action thereon in his own name, as assignee of the sheriff or officer to whom the same was given, in the same manner as in other actions on bonds, with condition to perform covenants other than for the payment of money. therein. $29. The measure of the damages to be assessed in such action, Damage shall be the extent of the loss or injury sustained by such aggrieved party, by reason of the misconduct for which the attachment was issued, and his costs and expenses in prosecuting such attachment. $30. If there be no party aggrieved by the misconduct for which When sued the attachment was issued, the court, in case the defendant shall fail torney to appear according to the condition of the bond taken on the arrest, shall order the same to be prosecuted by the attorney-general or by the district attorney of the county in which the bond was taken, in the name of the officer who took such bond. by district at application $ 31. In such case the whole penalty of the bond shall be forfeited Recovery; and recovered, and from the monies collected thereon, the court shall thereof. order such sum to be paid to the party prosecuting the attachment, as the court ordering the prosecution shall think proper, to satisfy the costs and expenses incurred by him, and to compensate him for any injury he may have sustained by the misconduct for which such attachment was issued; and the residue of such monies shall be paid into the treasury of this state. ficient sure 32. If on the return of executions duly issued upon any judg- Taking insuf ment obtained on such bond, it shall appear that the sureties taken ties. therein were, at the time of taking them, insufficient, and that the officer receiving them had reasonable grounds to doubt their sufficiency, he shall be liable in an action on the case, to the party aggrieved, who may have prosecuted such suit, for the amount of the judgment recovered by him, and for his costs and expenses in such suit; or if such suit was brought by the attorney-general, or a district attorney, an action on the case may in like manner be brought by them, in the name of the people of this state, for the amount of the judgment so recovered; and the same disposition of the monies collected in such action on the case against such officer, shall be made as directed in the last section. at circuit. $33. When any misconduct, which, by the provisions of this Ti- Misconduct tle, may be punished by fine or imprisonment, shall have occurred at any circuit court, or in reference to any process or proceedings pend TITLE 14. ing in or returnable to such court, and which shall not have been punished by such court, the supreme court shall have the same jurisdiction and power to inquire into and punish the same, as if such misconduct had occurred in the supreme court, or in reference to any process or proceedings thereon. Powers of circuit judges Attachments allowed by them. How execut ed. Sickness of defendants, &o. Persons ar rested how to be kept. $34. Whenever any person who shall have been duly subpœnaed to appear at a circuit court, to testify in any cause to be tried therein, shall neglect or refuse to attend, in pursuance of such writ, the justice or judge holding such circuit court, shall have power to award an attachment against such person, and to proceed thereon to punish such misconduct, according to the provisions of this Title, except as herein otherwise provided. $35. Such writs of attachment shall be issued under the seal of the supreme court, shall be tested on some day of the previous term of the said court, in the name of the chief justice of the supreme court, and shall be made returnable in such circuit court, before the judge holding the same, upon any day previous to the adjournment thereof; and the allowance of such writs, shall be endorsed thereon by the judge awarding the same. $36. The officer to whom any such attachment allowed by a judge holding a circuit, is directed and delivered, shall execute the same, by arresting and keeping the defendant in his custody, by bringing him personally before the court on the return day thereof, and by detaining him in such custody until discharged by the order of such court. $37. Whenever by the provisions of this Title, an officer is requir ed to keep any person arrested upon an attachment, in actual custody, and to bring him personally before any court, the inability, from sickness or otherwise, of such person to attend such court personally, shall be a sufficient excuse for not bringing him before such court. Nor shall any such officer be required, in any case, to confine any person arrested upon an attachment to answer for misconduct, in any prison, or otherwise to restrain him of personal liberty, except so far as shall be necessary to secure his personal attendance. TITLE XIV. OF ARBITRATIONS. SEC. 1. Who may submit; what matters; how. 2. Claims to real estate which may and may not be submitted. 5. Oaths to them and witnesses, by whom to be administered. 6. Attendance of witnesses how compelled. 7. All the arbitrators to meet; when majority may award. 8. Award how to be authenticated. SEC. 9. Upon what proof award to be confirmed. 10. Grounds on which parties may move to vacate award. 16. To be filed and docketed; its effect; execution thereon. 22. Powers of chancery and certain actions, not to be affected. 25. No other than the damages specified to be recovered. TITLE 14. ters, how and submitted. $ 1. All persons, except infants and married women, and persons What mat of unsound mind, may, by an instrument in writing, submit to the by whom, decision of one or more arbitrators, any controversy existing between them, which might be the subject of an action at law, or of a suit in equity, except as herein otherwise provided; and may, in such submission, agree that a judgment of any court of law and of record, to be designated in such instrument, shall be rendered upon the award made pursuant to such submission." real estate. $2. No such submission shall be made, respecting the claim of Claims to any person to any estate, in fee or for life, to real estate; but any claim to an interest for a term of years, or for one year or less, in real estate, and controversies respecting the partition of lands between joint tenants, or tenants in common, or concerning the boundaries of lands, or concerning the admeasurement of dower, may be so submitted to arbitration. hearing. $ 3. The arbitrators thus selected, shall appoint a time and place Time, &c. of for the hearing, and shall adjourn the same from time to time, as may be necessary; and on the application of either party, and for good cause, they may postpone such hearing, to a time not extending beyond the day fixed in such submission for rendering their award. trators. $ 4. Before proceeding to hear any testimony, the arbitrators shall Oath of arbibe sworn faithfully and fairly to hear and examine the matters in controversy, and to make a just award, according to the best of their understanding. minister $5. Such oath, and the oaths to witnesses examined before such Who to adarbitrators, may be administered by any judge of any court of record, oaths. or by any justice of the peace." $6. Witnesses may be compelled to appear before such arbitra- Witnesses. tors, by subpoenas, to be issued by any justice of the peace, in the same manner and with the like effect, and subject to the same penalties for disobedience, as in cases of trials before justices of the peace. (5) 1 R. L. p. 125, § 1. (6) Laws of 1816, p. 142. Ib. of correcting award. Motions to awards. $7. All the arbitrators must meet together, and hear all the proofs and allegations of the parties; but an award by a majority of them, shall be valid, unless the concurrence of all the arbitrators be expressly required in the submission. S8. To entitle any award to be enforced according to the provisions of this Title, it must be in writing, subscribed by the arbitrators making the same, and attested by a subscribing witness. S9. Upon such submission being proved by the affidavit of a subscribing witness thereto, and upon the award made in pursuance thereof being proved in like manner, or by the affidavit of the arbitrators, within one year after the making of the same, the court designated in such submission shall, by rule, in open court, confirm such award, unless the same be vacated or modified, or a decision thereon be postponed, as herein provided. $10. Any party complaining of such award, may move the court designated in such submission, to vacate the same, upon either of the following grounds: 1. That such award was procured by corruption, fraud or other undue means: 2. That there was evident partiality or corruption in the arbitrators, or either of them: 3. That the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear any evidence, pertinent and material to the controversy, or any other misbehavior, by which the rights of any party shall have been prejudiced : 4. That the arbitrators exceeded their powers; or that they so imperfectly executed them, that a mutual, final and definite award on the subject matter submitted, was not made. $ 11. Any party to such submission, may also move the court designated therein, to modify or correct such award, in the following cases: 1. Where there is an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property, referred to in such award: 2. Where the arbitrators shall have awarded upon some matter not submitted to them, not affecting the merits of the decision upon the matters submitted: 3. Where the award shall be imperfect in some matter of form, not affecting the merits of the controversy; and where, if it had been a verdict, such defect could have been amended or disregarded by the court, according to the provisions of law. $12. Every such application to vacate or modify an award, shall be made to the court designated in the submission, at the next term after the publication of such award, upon the same notice to the ad verse party, as in other cases of special motions, if there be time for TITLE 14. that purpose; and if there be not time, such court, or any judge thereof, may, upon good cause shown, order a stay of proceedings on such award, either absolutely, or upon such terms as shall appear just, until the term of the court next after such first term. by court. $ 13. On such application, the court may vacate such award in Proceedings any of the cases herein before specified; and if the time within which such award shall have been required to be made, by the submission, has not expired, may, in their discretion, direct a rehearing by the arbitrators; and in the cases herein specified, the court may modify and correct such award, so as to effect the intent thereof, and to promote justice between the parties. S 14. Upon such award being confirmed or modified, the court Judgment; shall render judgment in favor of the party to whom any sum of mo- costs. ney or damages shall have been awarded, that he recover the same; and if the award shall have ordered any act to be done by either party, judgment shall be entered that such act be done according to such order. The costs of the proceedings shall be taxed as in suits; and if · no provision for the fees and expenses of the arbitrators shall have been made in the award, the court shall make the same allowance as provided by law for references; but no costs shall be taxed for any other services or expenses prior to such application. $ 15. A record of such judgment shall be made, commencing with Record of a memorandum reciting the submission; then stating the hearing be- judgment. fore the arbitrators; their award; the proceedings of the court thereupon, in modifying or confirming such award; and the judgment of the court for the recovery of the debt or damages awarded, and that the parties perform the acts ordered by the award, and for the recoveof the costs allowed. ry execution. S16. Such record shall be filed and docketed, as records of judg- Effect of ments in other cases; shall have the same force and effect in all re-judgment; spects; be subject to all the provisions of law in relation to judgments in actions, and may in like manner be removed and reversed by writ of error; and execution shall issue thereupon against the property or person of any party against whom a recovery shall be had, in all respects as upon other judgments. $ 17. When any writ of error shall be brought on such judgment, writ of error certified copies of the original affidavits upon which any application on judgment, in relation to such award was founded, and of all other affidavits and papers relating to such application, shall be annexed to, form a part of, and be returned with, the record of the judgment; and the court to which such writ shall be returned, shall reverse, modify or amend, or affirm such judgment, or any part thereof, according to justice. |