Page images

Before making the order of arrest, the Judge must require a written undertaking on the part of the plaintiff, with sureties in an amount to be fixed by the Judge, which must be at least five hundred dollars, to the effect that the plaintiff will pay all costs which may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause, not exceeding the sum specified in the undertaking.

In the Justices' Court the defendant may be arrested in a civil action, in the following cases :

1. In an action for the recovery of money or damages, on à cause of action arising upon contract, express or implied, when the defendant is about to depart from the State, with intent to defraud his creditors.

2. In an action for a fine or penalty, or for money or property embezzled or fraudulently misapplied, or converted to his own use, by one who received it in a fiduciary capacity.

3. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action was brought.

4. When the defendant has removed, concealed, or disposed of his property, or is about to do so, with intent to defraud his creditors.

No female can be arrested in an action in the Justices' Court. Before an order of arrest can be made, the party applying must prove to the satisfaction of the Justice, by the affidavit of himself, or some other person, the facts upon which the application is founded, and the plaintiff must execute and deliver to the Justice a written undertaking in the sum of three hundred dollars, with sufficient sureties, to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause, not exceeding the sum specified in the undertaking.



An injunction is a writ or order requiring a person to refrain from a particular act. It may be granted in the following cases :

1. When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any proof thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.

2. When it appears by the complaint or affidavit, that the commission or continuance of some act during the litigation would produce waste, great or irrepairable injury to the plaintiff.

3. When it appears, during the litigation, that the defendant is doing or threatens, or is about to do, or is procuring or is suffering to be done, some act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual.



A judgment is the final determination of the rights of the parties in an action or proceeding.

A judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves.

In an action against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.

The relief granted to the plaintiff, if there be no answer, can not exceed that which he shall have demanded in his complaint; but in any other case, the Court may grant him any relief consistent with the case made by the complaint and embraced within the issue.

An action may be dismissed, or a judgment of non-suit entered, in the following cases :

1. By the plaintiff himself, at any time before trial, upon the payment of costs, if a counter-claim has not been made or affirmative relief sought by the cross-complaint or answer of defendant.

2. By either party, upon the written consent of the other.

3. By the Court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal.

4. By the Court, when, upon the trial, and before the final submission of the case, the plaintiff abandons it.

5. By the Court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for

the jury.

In all other cases, judgment must be rendered on the merits.

Judgment upon Failure to Answer.

Judgment may be had if the defendant fail to answer or demur to the complaint within the time specified in the summons, or within such further time as may have been granted, as follows:

1. In an action arising upon contract for the recovery of money or damages only, the Clerk, upon application of the plaintiff, must enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons, including the costs, against the defendant; or against one or more of several defendants, when the action is against two or more defendants, jointly or severally liable on a contract, and the summons is served on one or more, and not on all of them ; in which case the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants.

2. In other actions, the Clerk must enter the default of the defendant; and, thereafter, the plaintiff inay apply. at the first or any subsequent term of the Court for the relief demanded in the complaint. If the taking of an account, or the proof of any fact, is necessary to enable the Court to give judgment, or to carry the judgment into effect, the Court may take the account or hear the proof; or may, in its discretion, order a reference for that purpose. And when the action is for damages, in whole or in part, the Court may order the damages to be assessed by a jury; or if, to determine the amount of damages, the examination of a long account be involved, by a reference as above provided.

3. In an action where the service of summons was by publication, the plaintiff, upon the expiration of the time for answering, may, upon proof of the publication, and that no answer has been filed, apply for judgment; and the Court must thereupon require proof to be made of the demand mentioned in the complaint; and if the defendant be not a resident of the State, must require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover.

Judgment by Confession.

A judgment by confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both. A statement in writing must be made, signed by the defendant and verified by his oath, to the following effect :

1. It must authorize the entry of judgment for a specified


2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and show that the sum confessed therefore is justly due, or to become due.

3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and show that the sum confessed therefor does not exceed the same.

Judgment on Proceedings, Without Action, by

Submission of a Controversy.

Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any Court which would have jurisdiction if an action had been brought; but it must appear by affidavit that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The Court must, thereupon, hear and determine the case, and render judgment thereon as if an action were pending.

Judgment after Verdict.

When trial by jury has been had, judgment must be entered by the Clerk in conformity to the verdict, within twentyfour hours after the rendition of the verdict, unless the Court order the case to be reserved for argument for further consideration, or grant a stay of proceedings.

Upon the trial of a question of fact by the Court, its decision must be given in writing, and filed with the Clerk, within thirty days after the cause is submitted for decision.

Judgment upon .the decision must be entered accordingly.

On a judgment for the plaintiff upon an issue of law, he may proceed as in the case of judgment upon failure to an

« PreviousContinue »