Proceedings in Civil Suits.

benefit of his creditors, and are subject to be controlled or removed for proper cause by the Circuit Court of the county in which they reside. It is their duty to take possession of the entire estate of the insolvent, to collect its debts, to convert the realty and personalty as speedily as possible into money, to call in all claims against the insolvent, and adjust the same, either personally with the creditor or by reference to arbitration, and within fifteen months from the time of their appointment to call a general meeting of the creditors, at some time not more distant than three nor less distant than two months, for adjusting all demands against the estate, and declaring the amount of the assets. The assignees, after deducting their necessary disbursements and a commission of five per cent. on the amount of assets, shall discharge all debts entitled to a preference by the laws of the United States, and then pay all debts which may be owing by the debtor as guardian, executor, administrator, or trustee. The residue shall be distributed equally among all those who were creditors at the time of making the assignment, and who have presented their claims as such, and whose debts have been ascertained, in proportion to their respective demands. Where the claim of a creditor is not due, he may receive his proportion of the dividend by deducting a rebate of legal interest. Where the whole estate of the debtor is not distributed upon the first dividend, the assignees shall make a similar dividend from year to year so long as any money remains in their hands. A creditor who has neglected to deliver to the assignees an account of his demand before the first dividend, and who delivers the same before the second dividend, shall receive the proportion to which he would have been entitled in the former dividend, before any distribution is made to the creditors. (a)

9. Proceedings in Civil Suits.

Bail.-Personal actions may be commenced either by a writ of summons, or a capias ad respondendum. In either case, where the plaintiff is a non-resident of the state, the writ must be indorsed by some responsible inhabitant of the state, who thereby

(a) R. S. 607 to 625.

Proceedings in Civil Suits.

becomes liable for costs. In actions upon contracts, express or implied, a capias can only issue where the action is to recover damages for any breach of promise to marry, or for money, collected by any public officer, or for any misconduct or neglect in office, or any professional employment where the plaintiff or some are in his behalf, makes and attaches to the writ an affidavit, stating that he has a claim for damages against the defendant, for the cause of action therein stated, and upon which he believes that he or the plaintiff is entitled to recover a certain sum, being more than one hundred dollars. (a) But a warrant to arrest the defendant may issue in other cases, where the plaintiff establishes by his own affidavit or that of some other person, that there is a debt due to him from the defendant, specifying the nature and amount thereof as near as may be, for which the defendant cannot be imprisoned, and one or more of the following particulars :

1. That the defendant is about to remove any of his property out of the jurisdiction of the court where the suit is brought, with intent to defraud his creditor; or

2. That the defendant has property or rights in action which he fraudulently conceals, or that he has rights in action, or some interest in public or corporate stock, money, or evidence of debt, which he unjustly refuses to apply to the payment of any judg ment or decree which shall have been rendered against him, belonging to the complainant; or

3. That he has assigned, removed, or disposed of, or is about to dispose of any of his property, with the intent to defraud his creditor or creditors; or

4. That the defendant fraudulently contracted the debt or incurred the obligation respecting which suit is brought.

The defendant may controvert the truth of the plaintiff's allegation, before the court or officer having jurisdiction of the cause, and he will be discharged or committed according to the result of the trial. (b)

A defendant arrested upon a capias may release his body by executing a bail bond with sufficient sureties, or he may obtain the liberty of the jail limits, which are coextensive with the county, on giving a bond with sufficient surety that he will not escape.

(a) R. S. 432, 434.

(b) Ib. 604 to 607.

Proceedings in Civil Suits.

Organization of courts.-The jurisdiction over civil actions is mainly distributed between the County Courts and the Circuit Courts. The former are courts of record, held in each county on the first Monday of every month, and having original and exclusive jurisdiction in civil actions, where the damages claimed do not exceed five hundred dollars. No cause can be continued in the County Court for a longer term than three months. Where a judgment has been rendered in the County Court, whether upon confession or on trial, the defendant may at any time within ten days, stay the execution thereon, by filing with the clerk satisfactory security in writing for the payment of the judgment, interest, and costs; and if this obligation is broken, execution may at once issue against the surety as well as the principal. (a)

The Circuit Courts have jurisdiction in all cases where the damages claimed exceed five hundred dollars. They are held at least once a year in every county, and twice a year in the greater number. There is no provision for the stay of execution upon the judgments of this court.

Judgment and execution. (b)—The entire estate of a debtor, both real and personal, including estates in remainder and reversion, and equities of redemption, may be sold upon an execution on a judgment at law or decree in Chancery. The lien, however, of a judgment only attaches from the time of actually levying the writ of execution. Execution may issue as of right, at any time within two years from the rendition of the judgment. Where several executions have issued against the same defendant, that which was first delivered to the officer shall have priority, although a subsequent execution may have been previously levied, provided no sale has taken place under such levy.

The writ of capias ad satisfaciendum, may issue upon a judg ment in any of the cases already specified, where the party may be arrested on mesne process, and is subject to the same conditions and restrictions. No female, however, can be imprisoned upon any process in any civil action.

A debtor who has been imprisoned on execution for a certain length of time, as for example nine months where the debt exceeds five hundred dollars, six months where it exceeds one but (b) Ib. 474 to 480.

(a) R. S. 378 to 382.

Proceedings in Civil Suits.

not five hundred dollars, may be discharged from confinement on his giving notice of his inability to pay the debt, and his desire to take the benefit of the law for the relief of poor debtors, and making oath, and establishing to the satisfaction of the officer, that he has no estate except such as is exempt from execution, to the value of twenty dollars, and that he has no estate then concealed or conveyed, with design to secure the same to his own use, or that of his family, or to defraud his creditors. The law then provides that the debtor shall not only be exempt from future imprisonment for such debt, but that he shall be discharged from the same. There are many cases in which this clause would impair the obligation of contracts, and as to them it is of course null and void. (a) See farther the provisions for insolvent debtors under the title, "Insolvent Law."

Upon the writ of fieri facias, not only the goods and chattels, but in case of their insufficiency, the real estate of the defendant may be sold. Money, bills, or evidences of debt issued by any moneyed corporation and circulated as money, the interest of a stockholder in any joint stock company, the interest of a bailor in goods or chattels pledged by way of mortgage or security for the performance of any contract, and all other goods liable to execution at common law, unless specially exempted, may be taken and sold. The amount of property exempt from execution is very considerable.

Remedy against sheriffs and attorneys.-Any attorney, sheriff, justice of the peace, or other officer, having collected money belonging to another, and refusing to pay it over within a reasonable time after a demand thereof, shall be deemed guilty of a misdemeanor, and on conviction may be punished by imprisonment in the county jail, for not more than one year, or by a fine not exceeding four times the amount thus received, or by both, at the discretion of the officer. (b) Where any officer unreasonably neglects to pay over money collected by him on execution, when demanded by the creditor, he is liable for five times the lawful interest in addition to the principal, from the time of the demand until payment. (c)

(a) R. S. 624. Acts of 1847, 172.

(b) R. S. 666.

(c) Ib. 479.

Administration of Estates of Deceased Persons.

10. Administration of the Estates of Deceased Persons.

Letters testamentary or of administration are granted to the proper person by Courts of Probate. It is the duty of executors or administrators to make and return to the Probate Court, within three months from their qualification, a complete inventory of the estate of the deceased, to administer the same according to law and the will of the testator, to pay debts and legacies, and to render an account of his administration to the Probate Court within one year, and at any other time which may be required. The widow of a deceased person, besides her wearing apparel and ornaments, may take any quantity of the household furniture not exceeding in value two hundred and fifty dollars, and any other personal property not exceeding in value two hundred dollars. The widow and children are allowed such provision from the personal estate as the Court of Probate may think sufficient for their maintenance during the settlement of the estate, which, in case of an insolvent estate, is not to continue for a longer period than one year from the time of granting administration, nor for any time after the assignment to the widow of her dower and personalty. Where the deceased person leaves children under seven years of age, having no mother, or where the mother dies before they reach such age, it is the duty of the Probate Court to make an allowance for their maintenance, until they arrive at such age, out of the personal estate and the income of the real estate which would have been assigned to the mother, if living. The personal estate is the primary fund for the payment of debts, but in case of its insufficiency, the real estate (saving the widow's dower) may be sold under a license to be obtained from the Court of Probate, on a petition filed by the executor or administrator, setting forth the necessary facts, and affording an opportunity for all persons interested to controvert the same. The proceeds of the sale are deemed assets in the hands of executors or administrators, and their sureties are responsible for the proper application of the same. Where there are any debts existing against a deceased person, it is the duty of the Probate Court, after granting letters testamentary or of administration, to appoint