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or subsequent process; and every sheriff shall governhimself accordingly.
XXVIII. In all actions of debt founded on any Bail in debt writing obligatory, bill or note in writing, for the pay
detinue, kt. ment of money or tobacco, all actions of covenant or detinue, in which cases the true species of action shall be endorsed on the writ as before directed, and that ap. pearance-bail is to be required, the sheriff shall return on the writ, the name of the bail by him taken, and a copy of the bail-bond to the clerk's office before the day of appearance; and if the defendant shall fail to appear accerdingly, or shall not give special bail, being ruled thereto by the court, the bail for appearance may defend the suit, and shall be subjert to the same judgment and recovery as the defendant might or would be subject to, if he had appeared and givev special bail; and in actions of detinue the bail-piece shall be so changed, as to subject the bail to the restituion of the thing, whether animate or inanimate, sued for, or the alternative value, as the court may adjudge. And if the sheriff shall not return bail and the copy of the bail. bond, or the bail returned shall be adjudged insufficient by the court, and the defendant shall fail to appear and give special bail, if ruled thereto, in such case the sheriff may have like liberty of defence, and shall be subject to the same recovery, as is provided in the case of apperance-bail. And if the sheriff depart this life before judgment be confirmed against him, in such case the judgment shall be confirmed against his executors or administrators, or if there shall not be a certificate of probate or administration granted, then it may be confirmed against his estate, and a writ of fieri facias may in either case be issued: But the plaintiff shall object to the sufficiency of the bail during the sitting of the court next succeeding that to which the writ is returnable, or in the office on the first or second rule day, and at no time thereafter.
XXIX. And all questions concerning the sufficiency of bail so objected to in the office shall be determined Exceptions by the court at their next succeeding term; and in all to bail. cases where the bail shall be judged insufficient and judgment entered against the sheriff, he shall have the same remedy against the estate of the bail, as against the estate of the defendant: And that every judgment entered in the office against a defendant and bail, or
against a defendant and sheriff, shall be set aside if the defendant at the succeceding court shall be allowed to
appear without bail, put in good bail being ruled so to Office judg. do, or surrender himself in custody, and shall plead to
issue immediately; the court shall regulate all other proceedings in the office during the preceding vaca. tion, and rectify any mistakes, or errors which may have happened therein. in every case where judgment shall be confirmed against any defendant, or delendants and bail, or the sheriff, his executors, administrators, or estate as aforesaid, the court, upon motion of such bail, or of such sheriff, his executors or administrators, or any other person on behalf of his estate, may order an attachment against the estate of such defendant or defendants, returnable to the next succeeding çourt; and upon the execution and return of such altachment, the court shall order the estate seized, or so much thereof as will be sufficient to satisfy the judgment and costs, and all costs accruing under the attachment, to be sold as goods taken in execution upon a fieri facias; and out of the money such judgment and costs shall be satisfied, and the surplus, if any, restored
to the defendant or defendants when required. Special bail. XXX. Any judge of the general court, when the
district court is not sitting, or any justice of the peace, may take recognizance of special bail in any action therein depending, which shall be transmitted by the person taking the same before the next succeeding court, to the clerk of the said court, to be filed with the pape s in such action; and if the plaintiff or bis attorney shall except to the sufliciency of bail so taken, notice of such exception shall be given to the defendant or his attorney, at least ten days previous to the day on which such exception shall be taken: And if such bail sball be judged insufficient by the court, the recognizance thereof shall be discharged, and such proceedings shall
be had as if no such bail had been taken. Surrender of XXXI. Every special bail may surrender the prinprincipal. cipal before the court where the suit hath been or shall
be depending at any time either before or after judg. ment shall be given: Provided, such surrender be made before the appearance day of the first scire facias against the bail, returned executed, or of the second returned nihil, but in either case the special bail shall pay the costs of the said scire facias, and judgment for
the same shall be entered against him accordingly, Upon such su) render, the bail shall be discharged, and the defendant or defendants shall be committed to the custody of the sheriff or jailor attending such court, if the plaintiff or his attorney shall desire the same, or such special bail may discharge himself or herself by surrendering the principal or principals to the sheriff of the county where the original writ was served, and such sheriff shall receive such defendant or defendants, and commit him, her, or them to the jail of his county, and shall give a receipt for the body or bodies of such defendant or defendants, which shall be by the bail transmitted to the clerk of the court where the suit is or was depending. When such tender afier judgment shall be to the sheriff, he shall keep such defendant or defendants in bis custody, in the same manner, and subject to the like rules as are provided for debtors eommitted in execution for the space of twenty days, unless the creditor, his attorney or agent, shall sooner consent to his, her, or their discharge. The bail shall give immediate notice of such render, to the creditor, his attorney or agent, and if within the said twenty days, such creditor, his attorney or agent, shall not in writing charge the debtor, or debtors in execution, he, she, or they shall be forthwith discharged out of custody; but the plaintiff or plaintiffs may nevertheless afterwards sue out any legal execution against such debtor or debtors, without suing out a scire facias. · XXXII. When the sheriff or other proper officer shall return on any original or mesne process, that he Proceedings hath taken the body of any defendant and committed against :
ed fe dant in him to prison for want of appearance-bail, the plaintiff custody. may proceed and the defendant make his defence in like manger as if his appearance-bail had been entered and accepted, but the desendant shall not be discharged out of custody, until he shall put in good bail, or the plaintiff shall be ruled by the court to accept an appearance without bail, and where any defendant after appearance entered, shall be confined to prison, the plaintiff may file his declaration, give a rule to plead, and deliver copies of such declaration and rule to the defendant or his attorney; and if the defendant shall fail to enter his plea within two months after receiving such declaratian and notice, the plaintiff may have his judgment by default as in other cases.
Alias capias. XXXIII, Where the sheriff or other proper officer
shall return on any writ of capias, to answer in any civil action, that the defendant is not found within his bailiwick, the plaintiff may either sue out an alias or a pluries capias until the defendant shall be arrested, or a testatum copias where he shall be removed into another county, or may at his election sue out an attachment against the estate of the defendant to force an appearance; and if the sheriff or other officer shall return that he hath attached any goods, and the defendant shall not appear and replevy the same, by entering his appearance and giving special bail, in case he shall be ruled so to do, the plaintiff shall file his declaration, and be entitled to a judgment for his debt or damages and costs, which judgment shall be final in all actions of debt founded on any specialty, bill, or no te in writing, ascertaining the demand; unless the plaintiff shall chuse in any such case to bave a writ of enquiry of damages; and in other cases the da. mages, shall be settled by a jury sworn to inquire thereof. The goods attached shall remain in the hands of the officer till such final judgment be entered, and then be sold in the same manuer as goods taken upon a fieri facias; and if the judgment shall not be thereby satisfied, the plaintiff may sue out execution for the residue; and in case more goods be attached than will satisfy ihe judgment, the surplus shall be re
turned to the defendat. Writs execu. XXXIV. If any writ or process shall be executed, ted but not and for want of a return thereof to the office from returned.
which it issued an alias, pluries, attachment, or other process be awarded, the sheriff shall not execute such subsequent process, but shall return the first process by him executed, if it be in his possession, but if it be not in his possession, then he shall return the subsequent process, with an endorsement of the execution of such first process, and the name of the appearancebail, if any was taken, and shall also return a copy of the bail bond; on which there shall be the same proceedings as if the said first process had been duly re
turned. · Rules in
XXXV. Rules shall be monthly held in the clerk's
TYYV Rulos choll h clerk's office.
office of each district court, beginning the day after the rising of such court.
XXXVI. The plaintiff shall file his declaration in Practice'. the clerk's office, at the next succeeding role day after the defendant shall have entered his appearance, or the defendant may then enter a rule for the plaintiff to de. clare, which if he fail or neglect to do at ihe succeeding rule day, or shall at at any time fail to prosecute his suit, he shall be non-suited, and pay to the defendant or tenant, besides his costs, one hundred and fifty pounds of tobacco, where his place of abode is at the distance oftwenty five miles or under, from the place of holding the said district court, and where it is more, five pounds, of tobacco for every mile above twenty.
XXXVII. One month after the plaintiff hath filed his declaration, he may give a rule to plead with the clerk, and if the defendant shall not plead accordingly at the expiration of such rule, the plaintiff may eater judgment for his debt or damages, and costs.
XXXVIII. All rules to declare, plead, reply, rejoin, or for other proceedings, shall be given regularly from month to month, shall be entered in a book to be kept for that purpose, and shall expire on the succeeding rule day.
XXXIX. No plea in abatement shall be admitted or Pleasin abate received, unless the party offering the same, shall prove ment. the truth thereof by oath or affirmation, as the case may require: And no plea of non est factum offered by the person charged as the obligor or grantor of a deed, shail he admitted or received, unless the truth thereof shall in like manner be proved by oath or affirmation: And where any person other than the obligors, shall be defendant, such defendant shall prove by oath or affirmation, that he or she, verily believes, that the deed on which the action is founded, is not the deed of the person charged as the obligor or grantor thereof; in which last mentioned case, the plea of non est factum shall not be admitted or received without such oath or affirmation. And where a plea in abatement shall upon argument be judged insufficient, the plaintiff shall recover full costs to the time of over-ruling such plea, a lawyer's fee only excepted.
ÅL. The plaintiff in replevin, and the defendant in all other actions, may plead as many several matters, Several pleas whether of law or fact, as he shall think necessary for his defence. VOL. XII.