IN THE SEVENTEENTH YEAR OF THE COMMONWEALTH. 79 out of the money fuch judgment and cofts fhall be fatisfied, and the furplus, if any, reftored to the Defendant or Defendants when required; a

1792.

XXX. ANY Judge of the General Court, when the District Court is not How fpecial bail may be fitting, or any Juftice of the Peace, may take recognizance of special bail in any taken in the country & action therein depending, which fhall be tranfmitted by the perfon taking the excepted to, fame, before the next fucceeding Court, to the Clerk of the faid Court, to be fled with the papers in fuch action, and if the Plaintiff or his Attorney fhall except to the fufficiency of the bail fo taken, notice of fuch exception fhall be given to the Defendant or his Attorney, at least ten days previous to the day on which fuch exception shall be taken, and if fuch bail fhall be adjudged infuffici ent by the Court, the recognizance thereof shall be difcharged, and fuch proceedings thall be had, as if no fuch bail had been taken. a

XXXI. EVERY fpecial bail may furrender the principal before the Court Surrender of principal where the fuit hath been or shall be depending, at any time either before or af- and proceedings theref ter judgment shall be giver; provided fuch turrender be made before the ap- upon pearance day of the first fire facias againit the bail returned executed, or of the fecond returned nibil, but in either cafe the fpecial bail fhall pay the cofts of the faid feire facias, and judgment for the fame thail be entered against him accordingly. Upon fuch furrender, the bail fhall be difcharged, and the Defendant or Defendants fhall be committed to the custody of the Sheriff or Jailor attending fuch Court, if the Plaintiff or his Attorney hall defire the fame, or fuch fpecial bail may discharge himself or hericlf by furrendering the principal or principals to the Sheriff of the County where the original writ was ferved, and fach Sheriff thall receive fuck Defendant or Defendants, and commit him, her, or them, to the Jail of his County, and thali give a receipt for the body or bodies of fuch Defendant or Defendants, which shall be by the bail tranfmitted to the Clerk of the Court where the fuit is or was depending. When fuch furrender after judgment fhall be to the Sheriff, he fhall keep fuch Defendant or Defendants in his cuftody, in the fame manner, and fubject to the like rules, as are provided for debtors committed in execution, for the fpace of twenty days, unless the Creditor, his Attorney, or Agent, fhall fooner confent to his, her, or their difcharge. The bail fhall give immediate notice of fuch render to the Creditor, his Attorney, or Agent, and if within the faid twenty days, fuch Creditor, his Attorney, or Agent, fhall not in writing charge the Debtor or Debtors in execution, he, fhe, or they shall be forthwith difcharged out of cuftody, but the Plaintiff or Plaintiffs may nevertheless afterwards fue out any legal execution against fuch Debtor or Debtors, without fuing out a fcire facias. a

XXXII. WHEN the Sheriff or other proper officer, thall return on any ori- Method of proceeding ginal or mefne procefs, that he hath taken the body of any Defendant and com- against a defendant in mitted him to prifon for want of appearance bail, the Plaintiff may proceed, and custody.

the Defendant make his defence, in like manner as if his appearance bail had been entered and accepted, but the Defendant fhall not be discharged out of cuftody until he shall put in good bail, or the Plaintiff fhall be ruled by the Court to accept an appearance without bail, and where any Defendant after appearance entered, fhall be confined to prifon, the Plaintiff may file his declaration, give a rule to plead, and deliver copies of fuch declaration and rule to the Defendant or his Attorney, and if the Defendant fhall fail to enter his plea, within two months after receiving fuch declaration and notice, the Plaintiff may have his judgment by default, as in other cafes. a

XXXII. WHERE the Sheriff or other proper officer, fhall return on any writ of capias to anfwer in any civil action, that the Defendant is not found within his bailiwick, the Plaintiff may either fue out an alias or a pluries capias, until the Defendant thall be arrested, or a tritatum capias, where he fhall be removed into another county, or may, at his election, fue out an attachment against the ellate of the Defendant to force an appearance; and if the Sheriff or other officer thall return that he hath attached any goods, and the Defendant fhall not appear and replevy the fame, by entering his appearance and giving Ipecial bail, in cafe he thall be ruled fo to do, the Plaintiff fhall file his declaration, and be entitled to a judgment for his debt or damages and softs, which judgment thall be final in all actions-of debt founded on any fpecialty, bill or note in writing, afeertaining the demand, unless the Plaintiff thall choofe in any fuch cafe to have a writ of enquiry of damages, and in other cafes the damages ll be fettled by a Jury fworn to enquire thereof. The goods attached thali remain in the hands of the officer until fuch final judgment be entered, and

(a) 1789, ch. 67, fer. 20, 30, 31, 37,

What further preéeff when a capias is return ed "not found." Proceedings on attach

ment returned" exe cuted."

1792.

cuted but not returned.

80 IN THE SEVENTEENTH YEAR OF THE COMMONWEALTH,

then be fold in the fame manner as goods taken upon a fieri facias, and if the judgment fhall not be thereby fatisfied, the Plaintiff may fue out execution for the refidue; and in cafe more goods be attached than will fatisfy the judgment, the furplus fhall be returned to the Defendant, a

XXXIV. IF any writ or procefs fhall be executed, and for want of a return Where procefs is exe thereof to the office from which it issued, an alias, pluries, attachment, or other procefs be awarded, the Sheriff thall not execute fuch fubfequent process, but Thall return the first process by him executed, if it be in his poffeffion, but if it be not in his poffeffion, then he fhall return the fubfequent proceis, with an indorsement of the execution of fuch first process; and the name of the appearance bail, if any was taken, and shall alfo return a copy of the bail bond, on which there fhall be the fame proceedings, as if the faid first procefs had been duly re, turned. b

Rules to be obferved in the profecution of fuits.

Proceedings on a pluries returned "not to be

found."

Judgments by default, non-fuits, &c. when to

be entered.

by default may have a writ of enquiry.

XXXV. RULES fhall be monthly held in the Clerk's office of each Diftric Court, beginning the day after the rifing of fuch Court. The Plaintiff fhall file his declaration in the Clerk's office at the next fucceeding rule day, after the Defendant fhall have entered his appearance, or the Defendant may then en ter a rule for the Plaintiff to declare, which if he fails or neglects to do, at the fucceeding rule day, or fhall at any time fail to profecute his fuit, he fhall be nonfuited, and pay to the Defendant or Tenant besides his cofts, three dollars, where his place of abode is at the distance of twenty-five miles or under, from the place of holding the faid District Court, and where it is more, ten cents for every mile above twenty b

XXXVI. ONE month after the Plaintiff hath filed his declaration, he may give a rule to plead with the Clerk, and if the Defendant fhall not plead accordingly at the expiration of fuch rule, the Plaintiff may enter judgment for his debt, or damages and costs. b

XXXVII. ALL rules to declare, plead, reply, rejoin, or for other proceed ings, fhall be given regularly from month to month, thall be entered in a book to be kept for that purpose, and shall expire on the fucceeding rule day. b

XXXVIII. NO plea in abatement fhall be admitted or received, unless the party offering the fame, fhall prove the truth thereof, by oath or affirmation, as the cafe may require. And no plea of non eft factum offered by the perion charged as the obliger or grantor of a deed, fhall be admitted or received, unlefs the truth thereof fhall in like manner be proved by oath or affirmation. b

XXXIX. AND where any perfon other than the obligor fhall be Defendants fuch Defendant fhall prove by oath or affirmation, that he or the verily believes, that the deed on which the action is founded, is not the deed of the perion charged as the obligor or grantor thereof; in which laft mentioned cafe, the plea of non eft factum fhall not be admitted or received without fuch oath or af firmation. And where a plea in abatement fhall upon argument be adjudged infufficient, the Plaintiff fhall recover full cofts, to the time of over-ruling fuch plea, a lawyer's fee only excepted. b

XL. THE Plaintiff in replevin, and the Defendant in all other actions, may plead as many feveral matters, whether of Law or fact, as he shall think neceffa ry for his defence. b

XLI. ON the return of the pluries, that the Defendant is not to be found, the Court inftead of the procefs to outlawry formerly used, may order a procla mation to iffue, warning the Defendant to appear at a certain day therein nam ed, or that judgment will be rendered againit him, which proclamation hall be published at three fucceffive Court days, at the door of the Court-houfe of the County to which the laft procefs was directed, and alfo three times in the Fir ginia Gazette; and if the Defendant fails to appear pursuant to fuch proclamation, the fame proceedings thall be had, and the fame judgment given, as in o

ther cafes of default. b

XLII. All judgments by default for want of an appearance or fpecial bail, or pleas as aforefaid, and non-fuits or difmiflions obtained in the office, and not fet afide on fome day of the next fucceeding District Court, fhall be entered by Plaintiff in judgment the Clerk as of the last day of the Term, which judgment fhall be final in acti ons of debt, founded on any specialty, bill or note in writing, afcertaining the demand unless the Plaintiff fhall choofe in any fuck cafe to have a writ of en quiry of damages, and in all other cafes the damages fall, be afcertained by a (a) 1780, ch. 67, fec. 33. When sheriff is kept off by force, a return to that effect will authorize plaintiff to proceed as if it had been executed, or may awar é an al. or pl. caps. (See acts of 1799, ch. 8.)

(6) 1788, ch. 67, c. 34, 35, 36, 37, 38, 99, 40, 41.