Gambar halaman

P. L. 578.

When issued with

P. L. 135.

Courts may pro

(2.) Of the teste and retum of writs. 13 June 1536 & 30. 12. Every writ used for the commencement of an action shall bear date on the

day of the issuing thereof, and shall be made returnable on the first day of the

term next succeeding the time at which it shall be issued. (k) 18 June 1936 $ 31. 13. Provided, That in the case of a writ of summons, if. there shall not be ten

days between the issuing thereof, and the first day of the term as aforesaid, the in ten days of term. writ may be made returnable on the next day preceding the last day of such term,

or upon the first day of the second term next after the issuing of the writ.(1) Ibid. $ 32. 14. In the courts for the city and county of Philadelphia, and county of Alle

gheny, all writs used for the commencement of actions may be made returnable In Philadelphia and Allegheny.

on the first day of the next term aforesaid, or on the first Monday of any inter

mediate month, at the election of the party suing out the writ.(m) 24 May 1678 $ 1. 15. The several courts of common pleas of this commonwealth are hereby author

ized to direct, by rule or standing order, that all writs issued for the commencement

of actions, all writs of scire facias to revive judgment and continue the lien thereof, vide for tho return and all other writs of scire facias, writs and process of every kind, may, at the elecof process.

tion of the party suing out the same, be made returnable on the first Monday of next term, or on the second, third or fourth Monday of any intermediate month.(n)

(3.) of proceedings in default of appearance. 13 June 1536 $ 33.

16. If the defendant in any writ of summons as aforesaid, shall not appear at

the return-day thereof, and the officer to whom such writ was directed, shall When judgment

make return that it was served upon the defendant ten days before the return-day may be taken for aforesaid, it shall be lawful for the plaintiff, having filed his declaration, (o) to take default of appear- judgment thereon for default of appearance, according to the rules established by

the court to regulate the practice in this respect.(p) Ibid. & 34. 17. In case such writ shall not be served(9) ten days before the return-day

thereof, if the defendant therein shall not appear ten days after the day of service,

it shall be lawful for the plaintiff, having filed his declaration, to take judgment days before return- thereon, at any subsequent day in term time, for default of appearance, according day.

to the rules established by the court to regulate the practice in this respect.

(4.) Of the service of writs of scire facias. Ibid. $ 36. 18. In every case in which a writ of scire facias may by law be issued, it shall How scire facias to

be served and returned in the same manner as is herein provided in the case of be served,

a summons in a personal action ;(r) and judgment for default of appearance may be taken at the same time, and in the same manner, as in the case of a summons as aforesaid, unless it be otherwise especially provided.

(5.) Of amicable actions. 21 March 1906 $ 8. 19. It shall be the duty of the prothonotaries, respectively, on the application 4 Sm. 830.

of any persons willing to become parties in an amicable suit, to enter the same, without the agency of an attorney ;(s) and when thereunto required, and on

P. L, 578.

In case summons be not served ten

upon proof that the defendant, in fact, had no notice, the defendant to plead. See Foreman v. McFerrin, has made timely application for relief, and has a de- 13 S. & R. 290. Seidel v. Henley, 1 Wood. 352. fence, will open the judgment. Bencke v. Frick, 1 (p) The proper practice is to enter judgment in the T. & H. Pr. $ 1197.

office of the prothonotary. Sheerer v. Adams, 1 T. & (k) There must be at least ten days from the day H. Pr. $ 276. on which a summons is issued, to that upon which (9) A summons may be issued within ten days it is made returnable. Hatfield v. Swiler, 28 P. S. before the return-day. Fisher v. Potter, 2 M. 147 ; 252.

and in such case, judgment by default may be taken (1) This section does not apply to the courts of at the expiration of ten days after the service of the Philadelphia and Allegheny counties. Thompson v. writ, and the usual dies gratiæ, unless an appearance Patterson, 2 M. 146. A summons issued on the return- be entered. Ibid. A judgment without ten days' day cannot be made returnable on the same day. service is erroneous. Fitzsimons v. Salomon, 2 Binn. Dyott v. Pennock, 2 M. 213. But a summons may be 436. Case v. Hufty, 1 Dall. 154. But not void. served on the return-day. Heberton v. Stockton, 2 M. Hersch v. Groff, 2 W. & S. 449. And an appearance 161. Boyd v. Serrill, 2 Clark 327. It seems, that a de bene esse is sufficient to prevent judgment. Blair fi. fa. is good, though a return-day intervene between v. Weaver, 11 S. & R. 84. the teste and return-day thereof. Miner v. Walter, 8 (r) This section has not altered the practice of Phila. 571.

taking judgment on two nihils. Chambers v. Carson, (m) By subsequent acts of assembly, this section 2 Wh. 9, 372. But in such case, to entitle the plaintiff has been extended to various other parts of the state; to judgment on the quarto die post, the second scire but the necessity for such special legislation has been facias must have issued ten days before the returnobviated by the act of 1878, infra 15.

day. Laws v. McDanel, 1 Clark 421. Two returns of (n) So amended by act 11 June 1879, P. L. 125. nihil to monthly return-days of different terms, are

(o) To entitle a plaintiff to judgment by default, sufficient. Mugaw v. Stevenson, 1 Gr. 402. Stevens he must have filed his declaration within the time v. North Pennsylvania Coal Co., 35 P. S. 265. Or to prescribed. Foreman v. Schricon, 8 W. & S. 43; thać monthly return-days of the same term., Hauptv. is, before the return-day of the writ. Dennison v. Davis, 79 P. S. 238. Two returns of nihil to sucLeech, 9 P. S. 164. Black v. Johns, 68 Ibid. 83. cessive writs of scire facias on a mortgage, are equivKohler v. Luckenbaugh, 84 Ibid. 258. Hiester v. alent to a “scire feci,” whether the mortgagor be Muhlenburg, 1 Leg. Chron. 61. If the declaration be living or dead. Taylor v. Young, 71 P. S. 81. not filed in time, and there be no appearance, the (8) Independently of this act, an amicable action practice is, to enter a common appearance, and rule might be entered by attorney. Cook v. Gilbert, 8

21 March 1806.

4 Sm. 330.


confession in writing, executed in the presence of two or more witnesses, (!) expressing the amount due to the plaintiff (which confession shall be filed in his office), (u) he shall enter judgment against the defendant for the amount expressed Judgment to be as aforesaid, with stay of execution as may be agreed upon by the parties; and entered on confesthe prothonotary shall receive fifty cents for every such entry, to be paid by the sion in writing. defendant in the suit; and when any suit is ended, the clerk of the court before which it was pending, shall, on the request of the plaintiff expressed in writing, entered on request enter satisfaction thereon.

of plaintiff. 20. It shall be lawful for any persons, willing to become parties to an amicable 13 June 1836 $ 40. action, to enter into an agreement in writing for that purpose, either in their proper persons, or by their respective agents or attorneys; and on the production of such agreement to the prothonotary of any court having jurisdiction of the entered by agreesubject matter, he shall enter the same on his docket, and from the time of such ment. entry, the action shall be deemed to be depending, in like manner as if the defendant had appeared to a summons issued against him by the plaintiff.

P. L. 579.

Actions may be

P. L. 578.


*, on the

II. Of the commencement of actions by arrest.

(1.) Of the capias ad respondendum. 21. It shall be the duty of the prothonotary of any court having jurisdiction of 18 June 1886 $ 3. the action, on the application of the plaintiff in any personal action, his agent or attorney, instead of the writ of summons as aforesaid, to issue a writ of capias ad When actions may respondendum, in the following form, to wit:

be commenced by

capías. (L. S.] County of .: The Commonwealth of Pennsylvania, To the sherif Form of capias.

county, greeting : We command you, that you take if he shall be found in your bailiwick, and him safely keep, until he shall have given bail, or made deposit according to law, so that he be and appear in our court of day of next, then and there to answer in an action of debt (or as the case may be], in our court of , at the suit of or until the said

shall by other lawful means be discharged from your custody, and have you then there this writ: Witness president of said court (or as the case may be], the day of A. D.

Prothonotary. 22. Whenever the cause of action shall be founded upon an injury done to the Ibid. $ 7. person or property of the plaintiff, by a person whose name is unknown to him, or

When capias may upon a fraud practised by such person to the prejudice of the plaintiff, it shall be issue agalust un. lawful for the plaintiff, whether such person would otherwise be liable to arrest or known defendant. not, on affidavit of the fact, to have a writ of capias, in the form aforesaid, against such person, without naming him; but such writ shall be executed by the sheriff or other officer, only under the direction of the plaintiff and at his risk.

23. Upon the arrest of any person against whom a writ of capias shall be issued Ibid. $ 8. as aforesaid, it shall be the duty of the officer to inquire of him his name, and if

Duty of officer. given, he shall insert the same in such writ, and thereupon the same proceedings shall be had as if such writ had issued in the usual form.

[ocr errors]

P. L. 574.

(2.) of the bail-bond and bail-piece. 24. It shall be the duty of the officer charged with the execution of any writ of 18 June 1836 $ 9. capias ad respondendum, to let to bail any person arrested or detained by him by force thereof, on his giving bond, with reasonable sureties,(v) having sufficient Sheriff to let deestate within the county, in the manner hereinafter provided, under the penalty of tendant to bail. treble damages to the party aggrieved.

25. The bond to be taken by the officer as aforesaid, shall be in the name of the Ibid. $ 10. commonwealth, and in the amount of the bail demanded; and the condition thereof shall be, that if the defendant therein named shall be condemned in the action, at dition of bail-bond. the suit of the plaintiff, he shall satisfy the condemnation-money and costs, or surrender himself into the custody of the sheriff of the county, or in default thereof, that the bail will do so for him ;(w) and such bond shall be for the use of the plaintiff in the action, or of the sheriff or other officer, as the case may be.

26. Upon the execution of a bond in the form aforesaid, it shall be lawful for the Ibid. & 11, bail therein, to have, from the officer by whom it was taken,(x) a bail-piece to be

Bail-piece and made according to the following form:

Form and con

form thereof.

S. & R. 567. An agreement to an amicable action is mont v. Peters, 13 S. & R. 196. And see Gill v. Kuhn, in effect an appearance by the defendant. Crosby v. 6 Ibid. 333. Ely v. k'armany, 23 P. S. 314. Wall's Massey, 1 P. & W. 229. And see Flanigen v. Phila- Administrators v. Fire, 37 Ibid. 391. Association v. delphia, 51 P. S. 491.

Gardiner, 2 W. N. C. 96. (t) This act is affirmative, and does not prohibit (u) See Fraley's Appeal, 76 P. S. 42. the entry of judgments according to the practice then (v) A bond with a single surety is not void. Cumexisting; and therefore, judgment may be entered by minus v. Meeker, 2 M. 83. the prothonotary, upon the defendant's written order, (10) The bail have 14 days after the service of a confessing judgment in an action of debt, and direct- scire facias or summons on them, to surrender their ing judgment to be entered against him, although not principal. Corey v. Henry, 3 Clark 32. executed in the presence of two witnesses. McCal- (x) It is the duty of the prothonotary, and not of the sheriff, to furnish the bail-piece. Walker v. Fol- (b) One in custody on civil process is not privileged som, 2 M. 102.

13 June 1836.

P. L. 574,

for bail.

County, ss. In the court of C. D. of the county aforesaid, delivered to bail upon a bond taken by me J. S., sheriff [or_other officer, as the case may be] of said county, the day of to È. F. of the township of in said county, [yeoman,) and G. H. of the township of in said county, [merchant,]

at the suit of A, B., in a plea of [describing the action as described in the bond]. Ibid. $ 12. 27. It shall be the duty of the officer taking such bond, to make return of the

same, at or before the return-day of the writ, together with the capias ad responOf the return of the capias.

dendum, to the office of the prothonotary issuing the capias, who shall file the same,

and enter upon his docket the names of the bail. Ibid. $ 18. 28. It shall be the duty of every sheriff, taking bond as aforesaid, to give notice

in writing of the names and places of residence of the bail, to the plaintiff in the

action, his agent or attorney.(y) Ibid. $ 14. 29. The bail taken by the sheriff as aforesaid, may be excepted to by the plain

tiff, his agent or attorney, at any time within twenty days after the return-day of Exception to bail.

the writ, and notice given to him by the sheriff as aforesaid, and the bail so entered may justify, or new bail be added or substituted, and justify, within ten days after notice of the exception as aforesaid, according to the practice hitherto allowed with

respect to special bail.(2) Ibid. $ 15. 30. Provided nevertheless, That it shall be lawful for any court to make such rules respecting the time and manner of giving notice of bail

, excepting to bail, and justify bail as aforesaid, taken upon process out of such court, as the conven

ient administration of justice in such court may require. Ibid. & 16. 31. The sheriff taking any bond as aforesaid, shall be responsible to the plainSheriff's liability

tiff for the sufficiency of the bail therein; but such responsibility shall cease and determine :— 1st, If the plaintiff shall not except to the bail within the time allowed for that purpose; or 2d, If, upon exception made, the bail shall justify, to the satisfaction of the court, or of the commissioner authorized for the purpose; or 3d, If, upon such exception, other bail shall be added or substituted, and justify as aforesaid.

(3.) of the arrest and deposit in lieu of bail. 13 June 1836 $ 17. 32. If a defendant, arrested or detained on a capias ad respondendum às aforesaid,

shall not give bail as aforesaid, it shall be the duty of the sheriff to state the fact Cepi corpus.

in his return, according to the practice now prevailing and allowed. Ibid. $ 18.

33. If the officer charged with the execution of such writ, shall make return

that he has taken the body of the defendant in such writ, or that such defendant Production of the body.

has surrendered himself to his custody, he shall be chargeable to have the body of such defendant at the day of the return of such writ, in the manner heretofore

practised. Ibid. $ 36.

34. Whenever any writ of capias as aforesaid, shall be issued against any perService of capias

son who may be confined in the jail of the county, (a) a copy thereof shall be delivon prisoner. ered to the defendant, by the officer holding the same, and another copy thereof

shall be left by such otficer with the jailer, and thereupon such writ shall operate to detain such person, after the other cause or causes of his confinement shall have ceased, in like manner as if he had been arrested and imprisoned by virtue of such

writ.(6) Ibid. $ 19.

35. It shall be lawful for any defendant committed to prison by virtue of any

capias ad respondendum, or surrendered by his bail as aforesaid, to enter special Special bail.

bail to the action, in the manner now practised and allowed, at any time before

final judgment obtained against him. Ibid. & 20. 36.' It shall be lawful for the defendant in any writ of capias ad respondendum, Deposits may be

either before or after arrest, or after bail given, and before the return of the writ, made in lieu of bail. to deposit in the hands of the sheriff, in lieu of all bail, the sum in which bail is

demanded, to abide the event of the suit, for which he shall be entitled to demand of such officer a receipt, and upon making such deposit, he shall be forthwith discharged from arrest in the action in which such deposit shall be made, and the

liability of the bail, if any have been given, shall cease and determine. Ibid. $ 21. 37. It shall be the duty of the officer receiving such deposit, to make return of

the fact, and to pay the sum deposited with him thereon into court; and if the

P. L. 575.

from the service of a summons. Stryker v. Patter(y) See Murtland v. Wright, 7 W. N. C. 388. son, 1 T. & H. Pr. § 237. So, one in custody on crimi

(z) Where bail are excepted to, and do not justify, nal process is not privileged; nor one attending a the proper course is, to rule the sheriff to bring in the criminal court; unless it appear that the criminal body, and compel him to put in unexceptional bail, or prosecution was a contrivance to get the defendant pay the sum sworn to into court. Fitler v. Bryson, within reach of process. Commonwealth v. Daniel, 6 W. & S. 566. And the court will enforce obedience 4 Clark 49. Addicks v. Bush, 1 Phila. 237. He is to the rule by attachment. White v. Fitler, 7 P. S. privileged, however, as against all who were parties 533. By proceeding at once against the original de- to the prosecution. Foreman v. Morrow, 1 T. &H. Pr. fendant, or the bail excepted to, the plaintiff waives $ 237. *One charged with a crime before a commithis exception. Fitler v. Bryson, 6 W. &. S. 566. ting magistrate, and discharged on his recognizance Cummings v. Meeker, 2 M. 83. White v. Fitler, 7 for a further hearing, is not privileged from arrest by P. S. 533.

civil process, in returning from the magistrate's (a) See title, “Convicts," and Key v. Jetto, 1 office. Key y. Jetto, 1 Pitts. 117. Pitts. 117.

P. L. 575.

into court.

satisfaction of the

To be deemed an appearance.

P. L. 576.

plaintiff in such writ shall fail in his action, the money so deposited shall be forth- 13 June 1836 $ 21, with returned to the defendant, upon application made to the court for that purpose.

Deposits to be paid 38. If judgment be rendered against the defendant in such action, the money

Ibid. & 22. deposited as aforesaid, or so much thereof as may be necessary, shall be applied by order of the court towards the satisfaction of such judgment, in like manner as To be applied in money paid into court by a defendant in other cases.

judgment. 39. It shall also be lawful for any defendant, after the return of the writ, by Ibid. $ 32. the leave of the court, to deposit and pay into court the sum in which bail may be demanded as aforesaid, to abide the event of the suit, and to be disposed of in Deposits may be manner aforesaid, and thereupon it shall be lawful for the said court to make an of writ. order for the discharge of the defendant from imprisonment, or of his bail, as the case may be, from liability.

40. If the defendant shall have deposited in the hands of the officer a sum of Ibid. & 85. money in lieu of bail as aforesaid, he shall be deemed to have appeared in court at the return-day, in like manner as if he had entered special bail to the action.

(4.) of the special capias. 41. In any personal action, (c) commenced by summons as aforesaid, if the plain- 13 June 1836 § 24. tiff, his agent or attorney, shall, during the pendency of such action, make affidavit,(d) to be filed of record, of his cause of action as aforesaid, and that the when capias may defendant is about to quit the commonwealth, as the deponent verily believes, be issued after without leaving sufficient real or personal estate therein to satisfy the demand, he summons. may have a special capias ad respondendum against the defendant,(e) in the following form :

County, ss. The Commonwealth of Pennsylvania, To the Sheriff of Form of special county, greeting: Whereas, an action of debt (or as the case may be] has been com- capias. menced in our court of and is depending between A. B. and C. D., and the said A. B. (or as the case may be] has made affidavit that the said C. D. is justly and truly indebted to him, (or as the case may be, reciting the cause of action,) and that the said C. D. is about to quit the commonwealth, as he verily believes, without leaving sufficient real or personal estate therein to satisfy the demand, therefore, we command you that you take the said C. D., and him safely keep until he shall have given bail, or made deposit according to law, in the said action, or until the said shall by other lauful means be discharged from your custody; and you are to make return of this writ within ten days after the execution thereof, together with the manner in which you shall have executed the same, and the day of the execution thereof:

Witness , President of the said court, (or as the case may be,] the day of A.D.

-Prothonotary. 42. The proceedings upon such special capias ad respondendum shall be the Ibid $ 25. same as are hereinbefore provided in the case where the action is commenced by a capias.

43. Whenever any person, who shall have become bail of the defendant in any Ibid. § 26. action, shall, pending the same, assign his effects for the benefit of creditors, or make application for the benefit of the insolvent laws of this commonwealth, or buil becomes in. give bond for such purpose, or shall remove from this commonwealth, or signify solvent. an intention so to do, it shall be lawful for the plaintiff in such action to require such defendant, by a rule to be entered by the prothonotary, as of course, in term the state. time or vacation, to find additional bail, and in case of his default, to issue a special writ of capias against him, reciting briefly the circumstances, and detain him thereon until he shall comply with such requisition.

44. Every such rule shall be entered, after an affidavit of the fact upon which Afidavit to be it is grounded; it shall stipulate that three days' notice thereof be given by the made, and notice

given to . plaintiff to the defendant, unless other notice shall be directed by a rule of court, and shall otherwise be subject, in all respects, to such restrictions and regulations as the court shall make in that behalf.

(5.) Of the indorsement of bail, and rule to show cause of action. 45. It shall be the duty of every prothonotary issuing a capias ad respondendum 13 June 1836 $ 28. as aforesaid, whether original or special, to indorse thereon the amount of bail required by the plaintiff in the action.

16. The court from which any original or special writ of capias ad respondendum Ibid. & 29. shall issue, shall have the like power and authority to inquire into the cause of action,(9) to quash the writ, with or without costs, to reduce the amount of bail on writs of capias.

Or removes from

P. L. 577.

Powers of courts

(C) Such writ cannot now issue, in an action ex personal estate therein to satisfy the demand, a capius contractú. Blanco v. Lauradon, ií Phila, 368; s. c. may be issued against both. Ex parte Overick, 3 Wh. 3 W. N. C. 171. Nebenzahl v. Saberlowitz, 1 Luz. L. 175. Reg. 595.

(g) The garnishee in foreign attachment may rule (d) See form of affidavit, Graydon's Forms 35. the plaintiff to show cause of action. Erb v. Landis,

(e) If one of two joint defendants is about to quit 3 Clark 226. the commonwealth, without leaving sufficient real or

P. L. 579.

13 June 1836 F 29. required, or to discharge without bail, as are now possessed and exercised by the

several courts of this commonwealth ; and if any deposit shall have been made as aforesaid, and the court shall decide that the plaintiff was not entitled to bail, or shall reduce the amount for which bail was demanded, the defendant shall be entitled to the repayment of the money deposited, or so much thereof as shall remain beyond the amount of bail authorized by the court.

1 Sm. 164.


In what cases free


(6.) Of the privilege and exemption from arrest. 20 March 1725 $ 1. 47. No freeholder,(h) inhabiting any part of this province,(i) who hath resided

therein for the space of two years, and has fifty acres of land, or more in fee-simple Freeholders to be well seated, and twelve acres thereof, or more, well cleared or improved, or hath a privileged from

dwelling-house worth fifty pounds, current money of America, in some city or township within this province, clear estate, or hath unimproved land to the value of

fifty pounds like money, shall be arrested or detained in prison by any writ of Exceptions. arrest or capias ad respondendum, in any civil action, unless it be in the king's

case, or where a fine is or shall be due to the king, his heirs or successors ;(k) or

unless they be such freeholders as by this act are made liable to be arrested.(1) Ibid. § 2. 48. Provided always, That nothing herein contained shall exempt any person

from being arrested, or shall debar any person from taking out writs of arrest, holders may be

if the plaintiff in every such writ, or somebody for him, doth make appear by affidavit, upon oath or affirmation, which the justice that grants such writ, is hereby empowered and required to administer, testifying, that the defendant in the same writ named has signified his intentions of going to sea, or of removing out of this province, or lurks in secret places, or conceals himself in his own or other's house; or that the defendant in such writ hath refused or neglected, upon demand,(m) to give either real or personal security for the debt, or refused, without process, to appear and put in special bail to the plaintiff's action for the debt or cause for which he complains; or that the defendant suffered himself to be arrested, or judgment to be entered against him; or made over his lands or chattels to others, or suffered them to be attached, and made no proper defence to such proceedings; or where the plaintiff can make appear from records, or otherwise, that so much of the defendant's estate is mortgaged, aliened, entailed, or liable to one or more judgments,(n) suffered or ordered to be entered against such defendant, so that the value of his fee-simple estate, in possession, clear of those and all other incumbrances, will not, as the deponent believes, be sufficient to satisfy the debt demanded; or that the defendant in such writ hath not been a resident in this province for the space of two years next before the date of the same writ: in all which cases writs of arrest shall be granted, and the defendant held to special bail, if the case requires it: and the justices that grant the same shall cause all the affidavits they take, as above required, to be filed by the clerk of the court where such writs are return

able. Ibid. $ 3. 49. But if any freeholder, exempted from arrests by virtue of this act, shall hapPenalty for arrest. pen to be taken by any writ of arrest, the court where such writ is depending shall ing privileged free- forthwith,(0) upon the defendant's motion, stay all further proceedings against

him, till they examine his circumstances ;(p) and if they find he is such as by this act is intended to be exempted, the court shall, of their own accord, abate the writ, and allow the defendant thirty shillings costs, to be paid by him or them that procured such writ, and for non-payment thereof, the court shall grant an attachment, as in other cases where a rule of court is not complied with.


(h) This provision was revived by act 14 April even though the plaintiff direct the sheriff to accept 1838, § 2. Lynd v. Biggs, 1 Clark 18. If the defend- his appearance. Barnard v. Field, 1 Dall. 348. But ant possess an unencumbered freehold of the value of if a freeholder be joined as a defendant with an £50, he is privileged from arrest, though the plain- unprivileged person, the writ will be abated as to the tiff's demand greatly exceed that amount. Filler v. former only. Buckman v. Jones, 3 W. N. C. 302. La Breure, 1 S. & R. 363. The defendant need not McGuigan v. McCarthy, 6 Ibid. 253. show title, as in ejectment; possession, under color (m) The demand need not be in writing. Filler v. of title, is, in general, all that has been required. Harman, 2 Y. 290. And the refusal will subject a Bidichimer v. Sterne, 1 T. & H. Pr. § 235. If the freeholder to arrest in all cases, without exception. freehold be within the jurisdiction of the court, the Jack v. Shoemaker, 3 Binn. 280. But when a freedefendant need only show its existence and value, it holder receives notice to enter bail, he may cite the then rests on the plaintiff, if he object, to show an plaintiff to show his cause of bail, and if the judge be incombrance; but if the freehold be in another of opinion that the defendant ought not to be held to county, the defendant must not only show its exists bail, he may order that his appearance be accepted. ence and value, but must produce evidence, by the Ibid. 283. usual certificates of search, of its being clear from (n) A judgment before a justice of the peace is incumbrances. Ibid. Hill v. Ramsey, 2 M. 342. sufficient to defeat the privilege of a freeholder. (i) See Penman v. Wayne, 1 Dall. 348.

Quesnel v. Mussi, 1 Dall. 436. So is an award from (k) This only refers to suits on recognizances, or which an appeal has been taken. Toy v. Simpson, Sup. for a fine actually due the state; and does not extend Court, 8 April 1820. to actions of trespass vi et armis, although a tine be (0) See Ingersoll v. Campbell, 10 W. N. C. 553. due to the commonwealth therein, upon the judgment (p) The court will inquire into the fact of the decapiatur pro fine. Hudson v. Hozoell, i Dall. 310; fendant's residence; Penman v. Wayne, 1 Dall. 241; 8. P. Corcoran v. Kegrize, 29 Leg. Int. 324. Buckman and relieve him from arrest, Ibid. 348. Jack v. Shoev. Jones, 3 W. N. Č. 302. McGuigan y. McCarthy, maker, 3 Binn. 280. Fitler v. La Breure, 1 S. & R. 6 Ibid. 253.

363. But they will not hear evidence to contradict (l) A copias cannot issue against a freeholder, the plaintiff's affidavit. Filler v. Harman, 2 Y. 280.

« SebelumnyaLanjutkan »