TITLE XXIX.

OF PROCEEDINGS IN PERSONAL ACTIONS.

CHAPTER CXXII. Of the Commencement of Suits; of Process, and the Service and Return of Original Writs.

CHAPTER CXXIII. Of Bail in Civil Actions, and the Proceedings connected there with.

CHAPTER CXXIV. Of Pleadings and Set-offs.

CHAPTER CXXV. Of Consolidating and Referring Causes.

CHAPTER CXXVI. Of Death, Marriage, or other disability occurring after the commencement of Suits.

CHAPTER CXXVII. Of Evidence.

CHAPTER CXXVIII. Of the Trial of Issues of Fact.

CHAPTER CXXIX. Of Amending Pleadings and Proceedings.

CHAPTER CXXX. Of the Assessment of Damages.

CHAPTER CXXXI. Of Judgments and Executions.

CHAPTER CXXXII. Of the Homestead Exemption.

CHAPTER CXXXIII. Provisions concerning Actions and Proceedings in certain cases.

CHAPTER CXXII.

COMMENCEMENT OF SUITS; OF PROCESS, AND THE
SERVICE AND RETURN OF ORIGINAL WRITS.

Process from

Courts of Record,

etc.

Chapter Ninety-Seven of Revised Statutes of 1846.

(4107.) SECTION 1. The style of all process from Courts of

its style, test, Record in this State shall be, "In the name of the People of Const. Art. 6, the State of Michigan ;" and such process shall be tested in

Sec 35.

Actions for debt or damages, how commenced.

On proof of service of copy of

same proceedings

defendant had

the name of the Chief Justice or presiding Justice or Judge, or one of the Judges of the Court from which the same shall issue, be sealed with the seal of the Court, and before the delivery thereof to any officer to be executed, shall be subscribed or endorsed with the name of the Attorney, Solicitor, or other officer by whom the same shall be issued.

(4108.) SEC. 2. Actions brought for the recovery of any debt, or for damages only, may be commenced, either:

1. By original writ; or:

2. By filing in the office of one of the Clerks of the Court a declaration, entering a rule in the minutes kept by such Clerk, requiring the defendant to plead to such declaration within twenty days after service of a copy thereof and notice of such rule, and serving a copy of such declaration, and notice of such rule personally on the defendant; which mode of commencing an action may be adopted against any person, whether privileged from arrest or not.

(4109.) SEC. 3. Upon due proof of the service of a copy of declaration, etc., a declaration, and notice of rule to plead personally on the may be had as if defendant, his appearance shall be entered in the same manner appeared. as if process had been duly served and returned; and his default may be entered for not pleading, and the same proceedings may be had against such defendant, in all respects, as if he had appeared.

Duty of Sheriff to

serve and return declaration.

(4110.) SEC. 4. When a copy of a declaration and notice of rule to plead shall be delivered to any Sheriff to serve, it shall be the duty of such Sheriff to serve the same, with all convenient speed, and to return the same with his certificate endorsed thereon, of the time and manner of such service, either to the office of the proper Clerk of the Court in which such

suit may be pending, or to the Attorney whose name shall be endorsed on the declaration.

cate evidence of

may be enforced.

(4111.) SEC. 5. Such certificate of service, signed by the Sheriff's certifi Sheriff or his deputy, shall be as effectual to authorize the service; return entry of the defendant's default for not pleading, as if the same had been sworn to by such officer; and the return of any delaration delivered to a Sheriff, may be enforced by rule and attachment, in the same manner as the return of a capias. (4112.) SEC. 6. The original writ in personal actions, shall Original Writs. be a summons or a capias ad respondendum, in the form heretofore in use in this State, unless the form thereof shall be altered by rule of Court.

Writs, etc., in

dent plaintiff.

56.

13 do., 344.

(4113.) SEC. 7. All original writs, and all declarations in Indorsement of cases where suit shall be commenced by declaration, in which case of non resi the plaintiff is not an inhabitant of this State, shall, before 1 Doug. Mich., the service thereof, be indorsed by some sufficient person, who 12 Ill. Rep., 154. is an inhabitant of this State; and if any plaintiff, after the 9 Wendell, 462. commencement of his suit, shall remove out of the State, he shall, on motion of the defendant, be required to procure such indorser, but no indorsement shall be required when any one of the several plaintiffs is an inhabitant of the State.

dorser.

(4114.) SEC. 8. Every such indorser shall be liable to pay Liability of inall such costs as shall be awarded against the plaintiff: Provided, the suit therefor be brought against the indorser within one year after final judgment in the original suit.

re

quire security

(4115.) SEC. 9. The Court in which any civil action shall be Court may pending, may, in all cases, when it shall appear reasonable for costs in all and proper, require the plaintiff to give sufficient security for all such costs as may be awarded against him therein.

cases.

require new se

(4116.) SEC. 10. If any indorser of a writ or declaration When Court may shall remove out of the State, or be deemed by the Court curity. insufficient, such Court may require the plaintiff to give new security to the satisfaction of the Court, for the payment of all such costs as may be awarded against him in the suit; and every person becoming such surety, shall be liable for all costs from the commencement of the suit, in like manner as if he had been the original endorser.

mons, how serv

(4117.) SEC. 11. Writs of summons shall be served by show-Writs of Sum ing the original writ to the defendant, and delivering to him ed. a copy thereof; and on the return of the writ personally served, the defendant shall be considered in Court, and may be proceeded against accordingly.

Writs of capias, how served.

In what cases capias may issue on affidavit.

2.

(4118.) SEC. 12. Writs of capias ad respondendum shall be served by the Sheriff, or other officer, by arresting the body of the defendant, and keeping him in his custody until discharged according to law.

(4119.) SEC. 13. Personal actions arising upon contract, 1839, p. 76, Sec. express or implied, may be commenced by capias ad respondendum only to recover damages for any breach of promise to marry, or for moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment, when the plaintiff, or some one in his behalf, shall make and attach to such writ an affidavit, stating therein that the plaintiff has a claim for damages against the defendant for the cause of action stated in the writ, and upon which he believes that the plaintiff is entitled to recover a certain sum, being more than one hundred dollars.

Service of capias on defendant in custody.

In what cases

capias may issue

Judge, etc.

(4120.) SEC. 14. If the defendant in any action commenced by capias ad respondendum, shall be in custody, such writ may be served upon him in like manner, and with the same effect, as if he were at large.

(4121.) SEC. 15. Personal actions may be commenced by on order of capias ad respondendum, in cases of claims for damages other than those arising upon contract express or implied, where an order for bail shall be endorsed on the writ by a Judge of the Court from which the writ issues, or a Circuit Court Commissioner, directing the amount in which bail is to be taken.

Order to be made

only on affidavit, etc.

Defendant to be

discharged from

ting Bond.

(4122.) SEC. 16. Such order shall be made only upon the affidavit of the plaintiff, or some person in his behalf, showing the nature of the plaintiff's claim, and such affidavit shall be annexed to, and returned and filed with the writ, and the defendant shall be held to bail in the amount specified in such order; and the Court into which such writ is returnable may, on motion of either party, diminish or increase the amount for which bail shall be so ordered.

(4123.) SEC. 17. Every defendant arrested upon a capias ad arre t on execu- respondendum, shall be entitled to be discharged from such arrest, upon executing to the officer making the same, with the addition of his name of office, a bond, in a penalty equal to the amount specified in the order for bail, or in double the amount specified in the affidavit attached to the writ, as the case may be, with two sufficient sureties, conditioned that such defendant will appear in the action commenced by such writ, by putting in special bail within twenty days after the

return day specified in such writ, and by perfecting such bail, if required, according to the rules and practice of the Court.

(4124.) SEC. 18. The officer taking such bail, shall give to Bail piece to be the sureties a bail piece in substance as follows:

County, ss. On this

day of

pass (or as the case may be), which bail piece shall be signed by such officer.

delivered to sureties.

may be sued by

(4125.) SEC. 19. When the name of any defendant shall not when defendant be known to the plaintiff, the writ may be issued against him fictitious name. by a fictitious name, and if duly served, it shall not be abated for that cause, but may be amended on such terms as the Court shall think reasonable.

and privileges of

1841, p. 137, See.

(4126.) SEC. 20. All Indians shall be capable of suing and Judicial rights being sued, in any of the Courts of this State, in like manner, Indians. and with the same effect, as other inhabitants thereof, and 1. shall be entitled to the same judicial rights and privileges. (4127.) SEC. 21. If a defendant arrested on process on which when defendant he is required to be held to bail, shall be committed to prison for want of bail, for the want of such bail, the Sheriff or other officer making turned. the arrest shall specially return upon such process, the fact that the defendant is imprisoned for want of bail.

to be imprisoned

fact to be re

plaintiff to defendant appears.

(4128.) SEC. 22. Upon such return being made, the plaintiff Within what time shall declare against the defendant before the end of the term clare when denext after such process was returnable, and shall deliver a copy of the said declaration to such prisoner, or to the Sheriff or keeper of the jail in whose custody such prisoner shall be; and if such declaration be not served as herein prescribed, the defendant shall be discharged from his imprisonment, and shall be entitled to judgment of discontinuance against the plaintiff.

(4129.) SEC. 23. When a defendant shall have appeared in Ibid. any cause, by causing his appearance to be entered, or by putting in and perfecting special bail, where such bail is required; the plaintiff shall declare against such defendant, by the end of the next term after the return of the writ by which such suit was commenced.

(4130.) SEC. 24. If a plaintiff fail to declare, as in the last If plaintiff fail to declare, judgsection prescribed, judgment of discontinuance may be ment of discon