, 1854-07-15

cccdS Of sale shall be more than sufficient
to pav the amount due and costs, the sur
plus shall he paid to the mortgage debtor,
his heirs and assigns.
Sec. All. Whenever an execution shall
issue npOn Judgment recovered for debt
secured by mortgage Of real property, the
plaintiff she'll endorse thereon a brief des-
cription of the mortgaged premises, and II
sale Of the mortgaged premises upon such
execution shall foreclose the equity Of re-
demption.
NE ExEAT.
/ Sec. 4ls. Actions may be commenced
upon any agreement in writing before the
/ time for the performance Of the contract
expires, when The plaintiff or his agent
shall make and file an affidavit with the
clerk of the proper court, that the defend
ant is about to leave the territory,
without performing or making provisions
for the performance Of the contract, taking
with him, property, moneys, credits or ci-
icctS, subject to execution, with intent to
dcfrand the plaintiff
Sec 4I9 Upon such affidavit being
iled, the clerk shall issue an order OF ar
rest and bail, directed to the sheriff, which
shGll he issued, served and returned, in all
respects as such orders in other cases be-
fore such order shall issue, the plaintiff
shall file in the Office Of the clerk, bond
with sufficient surety, to be- approved by
the clerk--conditionCd that the plaintiff
will pay the defendant such damages and
costs as hes shall wronGfllly sustain by oc-
casion Of the suit which suretles shall jus
tiGy as bail upon an arrest.
Sec. 42O. The sheriff shall require the
defendant to enter into recogniLance of
special bail with sufficient surety, personal
~ 10 appear on the first day Of the court,
at its next term, and ebide the order of the
court, aud in default thereof, the defendant
shall be commit ed to prison until discharged
in due course Of law such special bail shall
lie liable for the principal and shall have q
right to arrest aud deliver him up, as in
other cases, and the defendant may give
other bail.
Sec. 42l. Instead Of giving special
bail as above provided, the defendent shall
be entitled to his discharge from custody
if he will secure the performance Of the
contract, to the satisfaction of the plaintiff.
Sec. 422. This proceeding may be had
in favor OF any surety, or other person,
jointly bound with the defendant. II may
also be prosecuted by the person in whose
favor the contract exists against, any one
or more Of the persons bound thereby, up
on filing such affidavit, when the-cO-cOn-
tractors are nonresident or probably in
solvent, or at the request of any one of
them, when they are residents and solvent
Sec. 423. The defendant may have the
Same remedy by writ of babeas corpus, as
in other cases Of arrest and bail.
Sec. 424. The proceedings may be had
before justices Of the peace, in all cases
within their jurisdiction.
Sec. 425. The affidavit and bond may
be filed and proceedings had in any county
where the defendants may be found.
REMEDIES OF sUmriEs AGAINST THEIR PRIS-
cIPALs.
Sec. 426. Any person, bound as surety
upon any contract in writing for the pay
mcnt of money or the performance Of any
act when the right Of action has accrued
may require by notice in writing the cred.
itor or obligee forthwith to institute an ac-
tion upon the contract. ' '.' I
Sec. 427. If the creditor, or obligee
shall not proceed within reasonable time
to bring his action upon such contract and
prosecute the same to judgment and exc
cution, the surety shall be discharged from
all liability thereon.
Sec. 42S. When any action is brought
against two or more defendants upon a
contract, any one or more of the defend
ants being surety for the others, the surety
may, upon a written complaint TO the court
cause the question Of securityShip TO be
tried and determined upon the issues made
by the parties at the trial Of the cause, or
at any time before or after the trial or at
a subsequent term but such proceedings
shall not affect the proceedings of the
plaintiff
Sec. 429. If the finding upon such issue
be in favor Of the surety, the court shall
make an order directing the sheriff to levy
the execution upon and first exhaust the
property of the principal before levy
shall be made upon the property of the
surety and the clerk shall endorse a memo
randum of the order upon the execution.
Sec. 4SO. When any defendant surety
in Judgment or special bail or rcpeyin
bail, or surety in a delivery bond or reple-
win bond, or any person being surety in any
bond whatever, has been or shall be com
pelied to pay any judgment or any part
thereof, or shall make any payment which
is applied upon such Judgment by reason
of such suretyshp, or when any sheriff or
other officer or other surety upon his official
bond shall lP, compelled to pay any judg-
ment or any part thereof by reason OF any
default OF such officer except for failing to
pay over money collected, or for wasting
property levied upon, the judgment shall
shall not be discharged by such payment,