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5.2.2

1. Call. 204.

1. The Gabeas Corpus must be delivered to the Court or She-
riff, efte
ineffectual.

24. A writ can not issue from one destrect court into another District alhough against Joint Defts. M. ball vs. Turner. 1. bas

133.

tion be made therein, the forms shall be as nearly as may be, affimilated to those now used in the General Court. a

granted.

Writs of habeas corpus in what manner to be How to be obtained by any commited to a coun ty jail in a civil action.

XXI. ALL writs, fummonfes, and other legal procefs, shall be iffued by the Directions concerning Clerk, bear tefte in his name, and be returnable to the next Court to be holden process. for the District, except in the cafe of fubpanas for witneffes, which may be returnable immediately, if iffued in Term time, or on any day of the Term. a XXII. WRITS of habeas corpus may be granted by the faid Courts, purfuing in all refpects the Act, intituled, " An Act directing the mode of suing out and prosecuting writs of habeas corpus." And where any perfon shall be committed in any civil action to the Jail of any County or Corporation, for any caufe or matter cognizable in the District Courts, it shall be lawful for the Clerk of the Court of the Diftrict wherein fuch commitment shall be, and he is hereby required, upon the application of fuch perfon, and a certificate of his or her being actually in Jail, to iffue a writ of habeas corpus cum causa, to remove the body of fuch prifoner into the District fail, and the caufe of his commitment into fuch Diftrict Court, returnable on the firft day of the fucceeding Court, if iffued in vacation, on the last of the Term, if fued out whilft the Court is fitting. b

XXIII. IN all actions or fuits which may be commenced against the Gover- Procefs in fuits against nor of this Commonwealth, any Member of the Privy Council, any of the the Governor, Council Judges of the Superior Courts, or the Sheriff of any County, during his conti- loss, Judges, & Sheriffs, nuance in office, inftead of the ordinary procefs, a fummons shall iffue to the Sheriff or other proper Officer, reciting the cause of action, and fummoning fuch Defendant to appear and anfwer the fame on the proper return day in the next Diftrict Court; and if fuch Defendant being fummoned, or after a copy shall have been left at his house ten days before the return day, shall not appear to answer the fame, the Court shall proceed against fuch Defendant, in the fame manner as if he had been taken upon a capias ad respondendum. Provided always, that after judgment and the return of a fieri facias by the Sheriff of that County in which the Defendant in any fuch cafe refides, that no effects, or not fufficient are to be found in his bailiwick, to fatisfy the faid judgment, a capias ad fatisfaciendum may be iffued as in other cafes. c

non eft inventus has been

XXIV. NO writ of capias ad refpondendum shall be iffued against any per- No perfon to be fued fon in any other District than that in which he refides, until a non eft inventus has out of the district in been returned in his or her District, upon a capias iffued against fuch Defendant which he refides until a in the fame fait; and every writ iffued contrary thereto, shall be void, and dif- returned on a capias if miffed on the first calling thereof: Provided nevertheless, that where two or more fued against him in perfons are or shall be jointly, or jointly and feverally bound for the perform- such district. ance of any contract, or for the payment of money or tobacco, by bond, covenant or otherwife, it shall be lawful to profecute, fach perfons jointly, in whatever District either of them may refide, and procefs shall be iffued and

ferved accordingly in any County or District wherein the non-refident Defen- In what cafes copies of dant or Defendants may be found; and where the bond or other writing on bonds may be filed and which fuch fuits shall be founded, shall be filed in the General Court, in a defendants in fuits, County or other Inferior Court, in the Court of one District, and Oyer thereof, thereon fhall plead there shall be demanded by the Defendant or Defendants to a fuit in another Dif, to. trict, it shall be fufficient for the Plaintiffs, in the last mentioned fuit, to file a Copy of the bond or writing, attefted by the Clerk of the Court, wherein the fame is filed, and the Defendant or Defendants fhall be obliged to plead thereto in like manner, as if the original bond or writing was filed, and fuch copy fhall be admitted as evidence on the trial. If, however, the Defendant or Defend ants fhall in fach cafe plead that the original bond or writing is not his or their deed, the Clerk of the Court having fuch original paper in his cuftody, fhall, en being fummoned as a withefs, attend with the fame at the trial of the iffue, for the infpection of the Jury. c

XXV. IN all actions to recover the penalty for breach of any Penal Law not particularly directing fpecial bail to be given, in actions of flander, tref pafs, affault and battery, actions on the cafe for trover or other wrongs, and all perfonal actions, except fuch as fhall be herein after particularly mentioned, the Plaintiff or his Attorney fhall, on pain of having his fuit difmiffed with cofts, indorfe on the original writ or fubfequent procefs, the true fpecies of action, that the Sheriff, to whom the fame is directed, may be thereby informed, whether bail is to be demanded on the execution thereof; and in the cafes before men(a) 1783, ch. 67, Sec. 22, 23. (b) Oct. 1777, ch. 17, fec. 53. 1788, ch. 67, fec. 25, 25. (c) Amended fo a: to allow writs from the Court of one diftris be ferved in another diftrict.

In certain fuits plaintiff writ the true fpecies of

muft indorfe on the

action.

an attorney to appear

for the defendant.

Defendant not to be

When the sheriff may tioned, the Sheriff may take the engagement of an Attorney pratifing in the take the engagement of District Court, indorfed on the writ, that he will appear for the Defendant or Defendants, and fuch appearance fhall be entered with the Clerk in the office, on the first day after the end of the Court to which fuch procefs is returnable, Committed for want of which is hereby declared to be the appearance day in all process returnable to aSailin certain fuits. ny day of the Court next preceding. And although no fuch engagement of Attorney fhall be offered to the Sheriff, he fhall nevertheless be reftrained from committing the Defendant to prifon, or detaining him in his cuftody for want of appearance bail, but the Sheriff in fuch cafe fhall return the writ executed, and if the Defendant fhall fail to appear thereto, there shall be the like proceeding against him only, as is herein after directed against Defendants and their ap pearance bail, where fuch is taken. Provided always, that any Judge of the General Court in actions of trefpafs, affault and battery, trover and converfion, and in actions on the cafe where, upon proper affidavit or affirmation it shall appear to him proper that the Defendant or Defendants should give appearance bail, may, and he is hereby authorifed to direct fuch bail to be taken by indorfement on the original writ, or fubfequent procefs; and every Sheriff fhall govern himself accordingly. a

In certain cafes a judge may direct an appear

ance bail.

Directions to the fheriff

XXVI. IN all actions of debt, founded upon any writing obligatory, bil where bail is required. or note in writing for the payment of money or tobacco, all actions of covenant and detinue, in which cafes the true fpecies of action fhall be indorfed on the writ as before directed, and that appearance bail is to be required, the Sheriff fhall 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 fhall fail to appear accordingly, or thall not give fpecial bail, being When the bail may de- ruled thereto by the Court, the bail for appearance may defend the fuit, and fhall be fubject to the fame judgment and recovery as the Defendant might or would be fubject to, if he had appeared and given special bail; and in actions o How bail shall be given detinue, the bail piece fhall be fo changed, as to fubject the bail to the reftitution of the thing, whether animate or inanimate, fued for, or the alternative value, as the Court may adjudge. b

fend the fuit.

in detibue.

Remedy against sherif

£cient bail.

to be made, and determined.

XXVII. AND if the Sheriff fhall not return bail, and the copy of the bail neglecting to take fuf- bond, or the bail returned fhall be adjudged infufficient by the Court, and the Defendant shall fail to appear and give fpecial bail, if ruled thereto, in fuch cafe the Sheriff may have like liberty of defence, and fhall be fubject to the fame recovery as is provided in the cafe of appearance bail. And if the Sheriff depart this life, before judgment be confirmed against him, in fuch cafe the judgment hall be confirmed against his Executors or Adminiftrators, or if there shall not be a certificate of probat or adminiftration granted, then it may be confirmed Exception to bail, when against his eftate, and a writ of fieri facias may in either cafe be iffued. But the Plaintif fhall object to the fufficiency of the bail during the fitting of the Court next fucceeding that to which the writ is returnable, or in the office, on the firft or fecond rule day, and at no time thereafter. And all questions concerning the fufficiency of bail fo objected to in the office, fhall be determined by the Court at their next fucceeding Term; and in all cafes where the bail fhall be adjudg ed infufficient, and judgment entered against the Sheriff, he shall have the fame remedy against the eftate of the bail as against the eftate of the Defendant. ¿ XXVIII. AND every judgment entered in the office against a Defendant and bail, or against a Defendant and Sheriff, fhall be fet afide, if the Defendant at the fucceeding Court fhall be allowed to appear without bail, put in good buil being ruled fo to do, or furrender himfelf in cuftody, and fhall plead to iffue immediately. The Court hall regulate all other proceedings in the office during the preceding vacation, and rectify any mistakes or errors which may have hap pened therein. &

Sheriffs remedy against
Tail adjudged infuffici

ent.

Office judgments, when tet afide.

Errors in the office, how rectified,

Remedy of the bail and

XXIX. IN every cafe where judgment fhall be confirmed against any Deiff against the defendant or Defendants and bail, or the Sheriff, his Executors, Adminiftrators, fendant's elbire. or eftate, as aforefaid, the Court upon motion of fuch bail, or of fuch Sheriff, his Executors or Adminiftrators, or any other perfon on behalf of his eftate, may order an attachment against the citate of fuch Defendant or Defendants, returnable to the next fucceeding Court, and upon the execution and return of fuch attachment, the Court fhall order the eftate feized, or fo much thereof a will be fufficient to fatisfy the judgment and coits, and all cofts accruing under the attachment, to be fold as goods taken in execution upon a fieri facias, an (a) 1788, ch. 67, fec. 27. (b) Ib. fec. 28, 29.

Bonds with Collatual Conditions out intendede hew. Die

suite instituted upon them Appearance Bail not requisite. 2. Mark Ruffin ball. 181.

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