named in the summons, to answer the complaint or petition of the plaintiff. The number of days within which the defendant is summoned to appear shall in no case be less than ten exclusive of the day of service.

Co-de, s. 279.

713. Return of summons. The officer to whom the summons is addressed shall note on it the day of its delivery to him; if required by the plaintiff, he shall execute the same immediately. When executed, he shall immediately return the summons with the date and manner of its execution, by mail or otherwise, to the clerk of the court issuing it.

Code, s. 280; C. C. P., s. 75.

714. Complaint filed, when. It shall be sufficient for the plaintiff to file his complaint or petition with the clerk of the court, to which the summons is returnable, at the time of issuing the summons, or within ten days thereafter.

Code, s. 281; C. C. P., s. 76; 1876-7, c. 241, s. 4.

715. Nonsuit for failure to file in time. If the plaintiff shall fail to file his complaint or petition within the time limited by the summons for the appearance and answer of the defendant, the defendant shall be entitled to demand judgment of nonsuit against the plaintiff.

Code, s. 282; C. C. P., s. 78.

716. Time enlarged. The time for filing the complaint, petition, or any pleading whatever, may be enlarged by the court for good cause shown by affidavit, but it shall not be enlarged by more than ten additional days, nor more than once, unless the default shall have been occasioned by accident over which the party applying had no control, or by the fraud of the opposing party.

Code, s. 283; C. C. P., s. 79.

717. Equitable defenses pleaded; transferred to civil issue docket; amendments. In special proceedings which have been, or may hereafter be begun, it shall be competent for any defendant or other party thereto to plead any equitable or other defense, or ask any equitable or other relief in the pleadings which it would be competent to ask in a civil action; and when such pleas are filed the clerk shall transfer the cause to the civil issue docket for trial during term upon all issues raised by the pleadings. It shall be competent for the trial judge to allow amendments to the pleadings and interpleas in behalf of any person claiming an interest in the property with a view to substantial justice between the parties.

1903, c. 566.

718. Ex parte; begun by petition. If all the parties in interest join in the proceeding and ask the same relief, the commencement of the proceedings shall be by petition, setting forth the facts entitling the petitioners to relief, and the nature of the relief demanded.

Code, s. 284; 1868-9, c. 93.

719. Clerk hears summarily; attorney must file authority from nonresident. In such cases, if all persons to be affected by the decree, or their attorney, shall have signed the petition, and they be of full age, the clerk of the superior court shall have power to hear the petition summarily, and to decide the same. If either or any of the petitioners shall be residing out of the state, an authority from him or them, to the attorney, in writing, must be filed with the clerk, before he shall make any order or decree to prejudice their rights.

Code, s. 285; 1868-9, c. 93, s. 2.

720. Judge approves when infants are petitioners. If any of the petitioners be an infant, or the guardian of an infant, acting for him, no final order or judgment of the clerk, affecting the merits of the case, and capable of being prejudicial to the infant, shall be valid, unless submitted to and approved by the judge resident in the district or the judge holding court therein.

Code, s. 286; 1887, c. 61; C. C. P., s. 420; 1868-9, c. 93, s. 3.
Note.

For what judge to approve, see s. 571.

721. Ex parte proceedings validated. Any approval made prior to the tenth day of February, one thousand eight hundred and eighty-seven, of any sale of the land of any infant in any ex parte proceeding, wherein such infant has appeared by his or her guardian, by a judge of the district or a judge holding court therein, is hereby confirmed, as far as regards the jurisdiction of the judge approving such proceedings.

1887, c. 61, s. 2.

722. Orders signed by judge. Every order or judgment in a special proceeding, which is required to be made by a judge of the superior court, either in or out of term, shall be authenticated by his signature.

Code, s. 288; 1868-9, c. 93, s. 5; 1872-3, c. 100.

723. Reports of commissioners and jurors; confirmed, when. Every order or judgment in a special proceeding imposing any duty on commissioners or jurors shall prescribe the time within which such duty shall be performed, except in cases where the time is prescribed by statute. The commissioners or jurors shall within twenty

days after the performance of such duty file their report with the clerk of the superior court; and if no exception is filed to such report within twenty days, the court may proceed to confirm the same on motion of any party and without special notice to the other parties. 1893, c. 209.

724. No report set aside for trivial defect. No report or return made by any commissioners shall be set aside and sent back to them or others for a new report by reason of any defect or omission not affecting the substantial rights of the parties, but such defect or omission may be amended by the court, or by the commissioners, by permission of the court.

Code, s. 289; 1868-9, c. 93, s. 7.

725. Commissioners to sell to settle in sixty days. In all actions or special proceedings when any person shall be appointed commissioner to sell any real or personal property, he shall, within sixty days after the maturity of the note or bond for the balance of the purchase money of said real or personal property, or the payment of the amount of the bid, when the sale is for cash, file with the clerk of the superior court a final account of his receipts and disbursements on account of said sale; and the clerk shall audit said account and record it in the book in which the final settlements of executors and administrators are recorded.

1901, c. 614, ss. 1, 2.

XXXIII.

ARREST AND Bail.

726. Arrested only as herein prescribed. No person shall be arrested in a civil action, except as prescribed by this chapter; but this provision shall not apply to proceedings for contempt.

Code, s. 290; C. C. P., s. 148.

727. In what cases. The defendant may be arrested, as hercinafter prescribed, in the following cases:

1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of the state, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining or converting property real or personal.

2. In an action for a fine or penalty, or for seduction, or for money received, or for property embezzled or fraudulently misapplied by a public officer, or by an attorney, solicitor or counsellor, or by an officer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker or other

person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment.

3. In an action to recover the possession of personal property, unjustly detained, where the property, or any part thereof, has been concealed, removed or disposed of, so that it can not be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof.

4. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property for the taking, detention or conversion of which the action is brought, or when the action is brought to recover damages for fraud or deceit.

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

But no woman shall be arrested in any action, except for a wilful injury to person, character or property; and no person shall be arrested on Sunday.

Code, s. 291; C. C. P., s. 149; 1869-70, c. 79; R. C., c. 31, s. 54; 1777, c. 118, s. 6; 1891, c. 541.

Note. For arrest and bail in usurping an office, see s. 831.

728. Who issues order. An order for the arrest of the defendant must be obtained from the court in which the action is brought or from a judge thereof.

Code, s. 292; C. C. P., s. 150.

729. Order obtained on affidavit. The order may be made where it shall appear to the court or judge thereof, by the affidavit of the plaintiff or of any other person that a sufficient cause of action exists, and that the case is one of those provided for in this subchapter.

Code, s. 293; C. C. P., s. 151.

730. Undertaking before order. Before making the order the court or judge shall require a written undertaking on the part of the plaintiff, with sufficient surety payable to the defendant, to the effect that if the defendant recover judgment, the plaintiff will pay all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least one hundred dollars.

Code, s. 294; C. C. P., s. 152; 1868-9, c. 277, s. 7.
Note.

For surety companies as surety, see ss. 272-277.

731. Time when order may issue; form. The order may be made to accompany the summons, or to issue at any time afterwards,

before judgment. It shall require the sheriff of the county where the defendant may be found forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a place and time therein mentioned to the clerk of the court in which the action is brought, and notice of such return shall be served on the plaintiff or his attorney as prescribed by law for the service of other notices. Code, s. 295; C. C. P., s. 153.

732. Copy of affidavit and order to defendant. The affidavit and order of arrest shall be delivered to the sheriff, who, upon arresting the defendant, shall deliver him a copy thereof.

Code, s. 296; C. C. P., s. 154.

733. Order, how executed. The sheriff shall execute the order by arresting the defendant and keeping him in custody until discharged by law; and may call the power of the county to his aid in the execution of the arrest.

Code, s. 297; C. C. P., s. 155.

734. Vacated unless served before judgment; time to move to vacate. The order of arrest shall be of no avail, and shall be vacated or set aside on motion, unless the same is served upon the defendant, as provided by law, before the docketing of any judgment in the action.

Code, s. 295; C. C. P., s. 153.

735. Motion by defendant to vacate order; jury trial, when. A defendant arrested may at any time before judgment apply on motion to vacate the order of arrest or to reduce the amount of bail. And he may deny upon oath the facts alleged in the affidavit of the plaintiff on which the order of arrest was granted, and demand that the issue so raised by the plaintiff's affidavit and the defendant's denial be submitted to the jury and tried in the same manner as other issues are tried by a jury; and if the issues are found by the jury in favor of the defendant, judgment shall be rendered discharging the defendant from arrest and vacating the order of arrest, and the defendant shall recover of the plaintiff all costs of the proceeding in such arrest as he shall have incurred in defending the said action.

Code, s. 316; 1889, c. 497; C. C. P., s. 174.

736. Counter affidavits by plaintiff, when. If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits, or other proof, in addition to those on which the order of arrest was made.

Code, s. 317; C. C. P., s. 175.