Sidor som bilder

10 June 1881 § 2. P. L. 102.

To make return thereof.




Writ of error.

Ibid. § 3. Amendment of return.

4 April 1862 § 1. P. L. 235.

13. It shall be the duty of the said assignee or assignees, in all cases when he or they shall receive the receipt of the purchaser as aforesaid, to state the fact in the return as the proceedings of said sale, and attach thereto a list of the liens upon the property sold, which said return shall be read in open court, on some day to be fixed by the order of court, and, if the right of said purchaser or purchasers to the money mentioned in said return shall be questioned or disputed by any person interested, the court may proceed to make distribution, or refer the same for distribution to an auditor, who shall proceed as in case of distribution of the proceeds of sheriff's sales of real estate, or to direct an issue to determine the validity of said lien, and all further proceedings shall be stayed until said issue shall be decided; and in case it shall be determined that the said purchaser or purchasers were not entitled to receive said money, it shall be the duty of the proper court to set aside the sale and direct the real estate to be resold, unless the money is paid to the said assignee or assignees within ten days thereafter: Provided, That before an issue shall be directed upon the distribution of money arising from assignee's sale, the applicant for such issue shall make affidavit that there are material facts in dispute therein and shall set forth the nature and character thereof, upon which affidavit the court shall determine whether such issue shall be granted, subject to a writ of error or appeal by such applicant if the issue be refused in like manner as in other cases in which such writ now lies.

14. In case the said return of said assignee or assignees shall fail to set forth all the facts as provided for in the foregoing section, the court shall, upon the application of any party interested therein, grant a rule on said assignee or assignees, and upon hearing shall compel the said assignee or assignees to amend their said return, so as to comply with the provisions of this act.

15. Whereas, it frequently happens that incorporated companies, by assignment, conveyance, mortgage or other transfer, divest themselves of their real and personal estate, in contravention of the provisions of the resolution of January 21st Proceedings where improvement com- 1843: Therefore, whenever any incorporated company, subject to the provisions of panies make the above resolution, shall divest themselves of their real or personal estate, conassignments, in contravention of trary to the provisions of the said resolution, it shall and may be lawful for any the resolution of contractor, laborer or workman employed in the construction or repair of the 1843. improvements of said company, having obtained judgment against the said company, to issue a scire facias upon said judgment, with notice to any person, or to any incorporated company, claiming to hold or own said real or personal estate, to be served in the same manner as a summons, upon the defendant, if it can be found in the county, and upon the person or persons, or incorporated company claiming to hold or own such real estate; and if the defendant cannot be found, then upon the return of one nihil and service as aforesaid, on the person or persons, or company claiming to hold or own as aforesaid, the case to proceed as in other cases of scire facias on judgment against terre-tenants.

Scire facias to

issue, with notice to the assignees, &c.

24 March 1818 § 5. 7 Sm. 132.

II. Proceedings on assignments.

16. All assignments (p) so as aforesaid to be made and executed,(q) which shall not be recorded in the office for recording of deeds in the county in which such Assignments to be assignor resides, (r) within thirty days after the execution thereof,(s) shall be considered null and void as against any of the creditors of a said assignor.(t)

recorded within

thirty days.

waiver of stay of execution. White v. Crawford, 84 P. S. 433.

(p) A partial assignment is within the act, and must be recorded. Englebert v. Blanjot, 2 Wh. 240. Morris Canal and Banking Co. v. Reeder, 18 L. I. 236. And an assignment of the surplus remaining after such partial assignment. Flanagin v. Wetherill, 5 Wh. 280. So is a power of attorney to collect certain moneys and pay them to certain creditors, in a prescribed order of preference. Watson v. Bagaley, 12 P. S. 164. And also an absolute conveyance, with accompanying declaration of trust. Schuylkill Bank v. Reigart, 4 P. S. 477. Driesbach v. Becker, 34 Ibid. 152. And a lease reserving rent in trust for the benefit of creditors. Lucas v. Sunbury and Erie Railroad Co., 32 P. S. 458. Bittenbender v. Sunbury and Erie Railroad Co., 40 Ibid. 269. But a mortgage in trust to secure creditors is not within the act. Ridgway v. Stewart, 4 W. & S. 383. Nor a judgment. Guy v. McIlree, 26 P. S. 92. Reeves v. Reeves, 1 Chest. Co. R. 97. Ewing's Appeal, Ibid. 34. Nor an assignment made directly to the creditors beneficially interested, either as collateral security, or in satisfaction. Chaffees v. Risk, 24 P. S. 432. Henderson's Appeal, 31 Ibid. 502. And see Blabon v. Lewis, 3 Phila. 454. Griffin v. Rogers, 38 P. S. 382. To bring a case within the act, there must be a cestui que trust, with an adverse interest to that of the assignee. Vallance v. Miners' Life Insurance and Trust Co., 42 P. S. 441.

Fallon's Appeal, Ibid. 235. McBroom's Appeal, 44 Ibid. 92. There must also be a transfer of the property; more than a mere transmission of its custody or management. Beans v. Bullitt, 57 P. S. 221.

(q) It is not essential to the immediate operation of the assignment, that it be put directly into the hands of the assignee, but it is indispensable to its effect, that the assignor should part with it, by putting it into a course of transmission or delivery. The deposit of it in the post-office, directed to the assignee, is a sufficient delivery. McKinney v. Rhoads, 5 W. 343. See Smith v. Bank of Washington, 5 S. & R. 318. Marks's Appeal, 85 P. S. 231.

Law v.

(r) The assignment must be recorded in the proper county, although the personal property be situate in another state. Weber v. Samuel, 7 P. S. 499. The act does not apply to an assignment by a resident of another state. Speed v. May, 17 P. S. 91. Mills, 18 Ibid. 185. Sparks v. Heald, 1 Phila. 29. But see infra 14. And where an assignment includes as well real as personal estate, it must be recorded, notonly in the county where the assignor resides, but also in the county where the land is situate, or it is not valid as against a subsequent purchaser from the assignor, without notice. Dougherty v. Darrach, 15 P. S. 399. But if it be duly recorded in the proper county, it may be shown that purchasers of land in another county had notice of the assignment. Follweiler v. Lutz, 102 Ibid. 585.

8 May 1855 § 1.

P. L. 415.

17. Whenever any person making an assignment of his or her estate situate within this commonwealth, for the benefit of creditors, shall be resident out of this state, such assignment may be recorded within any county where such estate, real Where assignor personal, may be, and take effect from its date :(u) Provided, That no bonâ fide ments by nonpurchaser, mortgagee or creditor having a lien thereon before the recording in the residents to be same county, and not having had previous actual notice thereof, shall be affected or prejudiced; (v) and the courts of common pleas may dismiss or appoint trustees under such assignment, as in other cases. (w)


P. L. 680.

18. In every case in which any person shall make a voluntary assignment of his 14 June 1886 § 1. estate, real or personal, or of any part thereof, to any other person or persons, in trust for his creditors, or some of them, it shall be the duty of the assignee or Assignees to file an assignees, within thirty days after the execution thereof, to file in the office of the inventory. prothonotary of the court of common pleas of the county in which the assignor shall reside, an inventory or schedule of the estate or effects so assigned, accompanied with an affidavit by such assignees, that the same is a full and complete inventory of all such estate and effects, so far as the same has come to their knowledge.(x)

Ibid. § 2.

19. It shall be lawful for the court of common pleas of such county, or for any judge thereof, in vacation, to appoint two or more disinterested and competent Appraisers to be persons, to appraise the estate and effects so assigned.

20. The appraisers so appointed, or any two of them, having first taken an oath or affirmation, before some person having authority to administer oaths, to discharge their duties with fidelity, shall forthwith proceed to make an appraisement of the estates and effects assigned, according to the best of their judgment, and having completed the same, shall return the inventory and appraisement to the court, where it shall be filed of record.

21. The appraisers aforesaid shall receive the same compensation as is now allowed by law to appraisers of the estate of a decedent. (y)


Ibid. § 3.

Their duties.

Ibid. § 4.

Ibid. § 5.

22. The assignee or assignees as aforesaid, shall, as soon(2) as such inventory and appraisement shall have been filed, gave a bond or bonds, with at least two Assignees to give sufficient sureties, (a) to be approved of by one of the judges of the said court, in bond. double the amount of the appraised value of the estate so assigned.(b)

23. In lieu of the bonds now required by law to be given by assignees for the 4 June 1883 § 1. benefit of creditors, upon filing inventory of assigned estate, and subsequently

P. L. 73.

apon the authorization of sale of assigned real estate by order of the court of Form of bond. common pleas, one bond shall be sufficient to be given upon filing the inventory of the assigned estate as aforesaid, in double the aggregate thereof, both real and personal, with two or more sufficient sureties, to be approved by the court of common pleas, or any judge thereof at chambers, to be given in the name of the commonwealth, with condition as follows; namely,

The condition of this obligation is such, that if the above-bounden A. B. and C. D., assignees of E. F., shall in all things comply with the provisions of the acts of assembly, in such case made and provided, and upon sale of such assigned estate, either real or personal, or any part thereof, with or without any order of the court of common pleas, as to such assigned real estate, shall faithfully account for all proceeds arising therefrom, according to law, and shall in all things faithfully execute the trust confided to them, then this obligation to be void, otherwise to be and remain in full force and virtue.(c)

(3) The thirty days begin to run from the time of executing the instrument, not from its delivery to the assignee. Johnson v. Herring, 46 P. S. 415.

(7) Where an assignment is made, in trust for the benefit of creditors, which is not recorded, and by an arrangement between the parties, a sheriff's sale is had, at which the assignees become the purchasers, they agreeing to hold the property in trust for the purposes of the assignment, such assignment is void, and the title of the assignees is not aided by the sheriff's sale. Mitchell v. Gendell, 7 Phila. 107. An unrecorded assignment is valid as to a subsequent voluntary assignee. Seal v. Duffy, 4 P. S. 274. And see Stewart v. McMinn, 5 W. & S. 100. Burke's Extate, 1 Pars. 472. Weber v. Samuel, 7 P. S. 499. An assignment stipulating for a release, and excepting the household property of the assignors and property exempt from execution, is voidable by creditors. Johns v. Bolton, 12 P. S. 339. But a reservation of property to the amount of $300, such as is exempt by law, will not avoid the deed. Mulford v. Shirk, 26 P. S. 473. Heckman v. Messinger, 49 Ibid. 465. Hildebrand v. Bowman, 100 Ibid. 580. Nor will the exception from it of certain specific property. Knight v. Waterman, 36 P. S. 258. See Boker v. Crookshank, 1 Phila. 193. Morrett's Appeal, 1 Pitts. 154. Blackburne's Appeal, 39 P. S. 160. Gallagher's Estate, 5 Phila. 83. Shaeffer's Appeal, 101 P. S. 45.

(u) If this be not done, a foreign attachment will

bind the property. Philson v. Barnes, 50 P. S. 230. See Marks's Appeal, 85 Ibid. 231.

(v) Smith's Executors' Appeal, 104 P. S. 381. (w) By act 23 April 1857, § 2, this is extended to prior assignments. P. L. 298. See Evans v. Dunkelberger, 3 Gr. 134. Weiskettle's Appeal, 14 W. N. C. 55.

(x) See act 21 March 1831, P. L. 192. See also Reigart's Appeal, 4 P. S. 479. Baldwin v. Patton, 10 W. 60.

(y) This, by act 24 February 1834, § 10, is a sum not exceeding one dollar for every day diligently employed by them therein. See "Decedents' Estates," 60.

(z) The assignee may act before giving bond. Dallam v. Fitler, 6 W. & S. 326. If he neglect to file an inventory, or give bond, the remedy is to cite him before the court, to show cause why he should not be dismissed. Ibid. The assignment passes the title, though the bond be not duly filed and approved. Heckman v. Messinger, 49 P. S. 465.

(a) A bond with a single surety is not void. Mears v. Commonwealth, 8 W. 223.

(b) If security be not given, the act 21 March 1831 empowers the court to dismiss the assignees and appoint others. P. L. 193. The act 27 March 1869 provides for the recording of such bonds, in Perry county. P. L. 488.

(c) As to the responsibilities of the sureties, see Little v. Commonwealth, 48 P. S. 338. Patterson's

13 June 1840 § 9. P. L. 691.

Assignees may ap

peal from award or bring writ of error.

Ibid. § 10. Without paying costs or giving security.

4 May 1864 § 1. P. L. 762.

ture, &c., not exceeding $300 in value to be set

24. When the defendant or defendants in any suit now pending, or hereafter to be brought, have assigned for the benefit of creditors, before or after such suit brought, or hereafter may assign for the benefit of creditors, the land or other property, which is the subject of, or affected by such suit, the assignee or assignees may appeal from any award made in such suit against the defendant or defendants, under a rule of reference, entered under the 8th section of the act of the 16th June 1836, entitled "An act relative to reference and arbitration; " and also (to) bring a writ of error upon any judgment, which may be rendered in any such suit. 25. The provisions of the 31st section of the said act of the 16th of June 1836, relative to reference and arbitration, (d) and the 1st proviso of the 8th section of the act of the 16th of June 1836, entitled "An act relating to executions," (e) be and the same are hereby extended to the assignee of voluntary assignments, for the benefit of creditors, whenever such assignee shall enter an appeal, or sue out a writ of error, under the provision of the 9th section of the present act.(g)

26. Any assignor, under whose assignment in trust for the benefit of creditors, either by general words or particular description, there have been transferred any Household furni- articles of household furniture or things of domestic use, may, after the appraisement thereof, apply to the court of common pleas of the proper county, to have set aside for the use of the said assignor and family, any of the said articles and things, not exceeding in value, at the appraisement thereof, three hundred dollars; and the court may, if no cause be shown to the contrary, after due notice to creditors, order that the same be released from the assigned estate and handed to the assignor.(h)

aside for the assignor's family.

Ibid. § 2.

When a reconveysigned estate may

ance of the as

be decreed.

Ibid. § 3. Security, how given.

27. Whenever it shall be made to appear, to the satisfaction of the court having jurisdiction of the accounts of an assignor under any assignment in trust for creditors, either upon the report of an auditor or otherwise, after notice by advertisement, for such length of time as may be ordered by the court, that all the undisputed claims upon the assigned fund or estate have been paid or released, and security, to the satisfaction of said court, as hereinafter set forth, shall be given for the payment of any and all claims in dispute, the said court may order and direct the assignee to reconvey to the assignor, all the assigned estate remaining in his hands and possession, and all outstanding interest in the assigned estate; and the deed of reconveyance shall be acknowledged in opencourt, and entered among the records thereof; and thereupon, the said estate shall be holden free and discharged from any and all of the trusts of said assignment.(i) 28. The security required by this act, shall be by deposit of money, or of sufficient and available securities for money, under the direction of the court, or by mortgage on real estate, which shall inure to the benefit of the parties interested, who may sue for the same in the name of the commonwealth, in like manner as official bonds are sued.



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(e) This provides that they shall not be required to give bail in error. See "Errors and Appeals," 20-1. (g) An assignee for the benefit of creditors, though not a party to the record, may appeal from the judgment of a justice, in an attachment execution issued against the assignor. Bletz v. Haldeman, 26 P. S. 403. (h) See Peterman's Appeal, 76 P. S. 116. Where the assignor reserves his exemption in the deed, the assignee should set it apart under the exemption act of 9 April 1849; otherwise, the goods should be appraised and set apart under this act of 4 May 1864. Delliker's Estate, 3 Del. 357. Where the exemption

is reserved, the assignor can claim it out of implements of husbandry, machinery and wagons, or horses and cows; but where it is not reserved, the exemption is confined, under this act, to household furniture and things of domestic use. Strohm's Estate, 1 C. C. 533. Where the assignment contains a reservation in either real or personal property, a claim cannot be made upon the proceeds of real estate without a previous demand for an appraisement and an election of property by the assignor. Afflerbach's Estate, 7 C. C. 157. See Larkin's Estate, 132 P. S. 554. Kreider's Estate, 26 W. N. C. 313. Hawbecker's Estate, 6 C. C. 570. Muhr v. Pinover, 10 Atlan. 290.

(i) Unclaimed dividends in the hands of assignees, after a lapse of many years, will go to the legal representatives of the assignor. Potter's Estate, 6 Phila. 149.



1. Vessels to be subject to lien for work and materials.

2. Duration of the lien.

3. Who entitled to lien.

4. Extended to steam-engine and boiler makers. 5. Venders of copper sheathing.

6. And manufacturers of iron.


7. Libel to be filed.

8. Several claimants may join in one libel.
9. And other claimants may be made parties.
10. Suits to be consolidated.


11. Attachment to be issued. Form of attachment. 12. Vessels seized by process from the federal courts not to be attached.

13. Notice of attachment to be published.
14. Vessel to be released, on security being given.

15. Proceedings to be carried on as in admiralty


16. Questions of fact to be tried by a jury.

17. Court to pronounce sentence and enforce the same as a court of admiralty.

18. When sale may be decreed. Form of writ of sale. 19. Proceeds to be distributed pro rata among the creditors.


20. Liens against vessels on the western rivers. For wages and services. For materials and labor. For bills, notes, &c., given for wages, materials or labor. For wharfage or anchorage. For damages, in certain cases.

21. Priority of claims.

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I. Lien for work and materials.

P. L. 616.

1. Ships and vessels of all kinds, (k) built, repaired or fitted within this common- 18 June 1836 § 1. See amendmen wealth, shall be subject to a lien for all debts contracted by the masters or owners 24 June 1895, thereof, (1) for work done, or materials found or provided in the building, repairing, Vessels to be sub-P. L. 251, fitting, furnishing or equipping of the same, in preference to any other debt due ject to lien for worlSupp. 2516. from the owners thereof. See amendmen Ibid. § 2. 24 June 1895,

and materials.

2. The lien aforesaid shall continue during the time that shall intervene between the contracting of such debts, and the time when such ship or vessel shall proceed Duration of the P. L. 251, on her voyage, next after the work done, or the materials furnished, as aforesaid, lien. and no longer.(m)

Ibid. § 3.

3. The lien for work done and materials furnished as aforesaid shall exist in favor of the following classes of tradesmen and mechanics, and no others, to wit, Who entitled to carpenters, blacksmiths, mastmakers, boatbuilders, blockmakers, ropemakers, sail- lien. makers, riggers, joiners, carvers, plumbers, painters, ship-chandlers, coppersmiths, brassfounders, coopers, venders of sail-cloth and lumber merchants.(n)

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Supp. 2516.

4. All the provisions contained in the act passed the 13th day of June, Anno 31 March 1837 § 1. Domini 1836, entitled "An act relative to the attachment of vessels," are extended Extended to steamto steam-engine and boiler makers, in all cases in which engines or boilers shall be furnished by such makers to such ship or vessel. 5. All the provisions contained in the act passed the 13th day of June 1836, entitled "An act relating to the attachment of vessels," are hereby extended to venders of copper sheathing.(0)

16 April 1838 § 33.

P. L. 634. Venders of copper sheathing.

6. All the provisions contained in the act, passed the 13th day of June 1836, 22 March 1861 § 1. entitled "An act relating to the attachment of vessels," are hereby extended to all P. L. 182. manufacturers of iron; and the lien provided by said act shall exist in their favor, And manufacturwith like effect as though originally named therein.

ers of iron.

See amendmer
24 June 1895,
P. L. 251,
Supp. 2516.

II. Of the libel.

P. L. 617.

7. If any of the said persons, having done work or provided materials, may file a 13 June 1886 § 4. libel in the office of the prothonotary of the district court, or court of common pleas(p) of the proper county wherein the cause of action shall arise, or in any

(k) This includes canal boats. The Fashion, 3 Gr. 40. Vease's Appeal, Ibid. 110. But not coal barges. The Coal Barges, 3 Wall. Jr. C. C. 53. And see Parkinson v. Manny, 2 Gr. 521.

v. New Brig, Gilp. 536. The party claiming a lien for
materials must show that the contract under which
they were furnished had reference to some particular
vessel, for the construction or repair whereof they
were to be used. The Young Sam, 20 Law Rep. 608.

(1) The builder is primâ facie the owner. Estate of the Reany Engineers and Ship-Building Works, 9 Taking the note of the owner is not a relinquishment Phila. 620.

(m) See Shoemaker v. Norris, 3 Y. 392.

(n) One who contracts to furnish material and build a steamboat for another is not entitled to a lien under this act. Walker v. Anshutz, 6 W. & S. 519. And where the work or materials are furnished under a contract with an intermediate agent, who is not the owner or master, neither the workmen and materialmen, nor such intermediate person, has a lien. Harper

of the lien. Drew v. Hull of a New Ship, 17 Leg. Int.
405. The Albatross, 2 Wall. Jr. C. C. 327.

(0) See The Odorilla, 5 W. N. C. 288.
(p) Courts of admiralty have no jurisdiction, where
a lien is claimed by the builders of a vessel for work
done and materials provided in its construction. Peo-
ple's Ferry Co. v. Beers, 20 How. 393. It is not a
maritime contract, and the federal courts will not
take jurisdiction, under the state laws giving a lien

18 June 1836 § 4. county where the said ship may be found, against such ship or vessel, her tackle, furniture and apparel.(9)

P. L. 617.

Ibid. § 5.

8. All or any of the said persons may join in one libel for the recovery of all Several claimants their claims, in the same manner as mariners are permitted, by the usages of courts of admiralty, to join one suit for the recovery of their wages.

may join in one


Ibid. § 6.

And other claim

9. Whenever a libel shall be filed by any person as aforesaid, it shall be lawful for any other person or persons having a claim as aforesaid, to apply to the court, ants may be made by a petition, at any time during the pendency of the action, to become a party libellant, and upon due proof of his claim, as aforesaid, he shall be received and permitted to prosecute his claim jointly with the other persons who commenced the action.


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Form of attachment.

Ibid. § 9.

Vessels seized by

process from the federal courts not

to be attached.

Ibid. § 10.

Notice of the

10. If more than one suit shall be brought as aforesaid, against the same ship or vessel, by all or any of the said person or persons, the court shall cause the said actions to be consolidated into one [and give one](r) definite sentence or decree, comprehending all such debts as shall be duly supported..

III. Of the attachment.

11. Upon the filing of a libel as aforesaid, supported by the oath or affirmation of the libellant, it shall be lawful for him to have a writ of attachment, to be made according to the following form, to wit:(s)

[L. S.]

to be holden at

County, ss. The Commonwealth of Pennsylvania: To the sheriff of said county, greeting: We command you that you arrest, attach and safely keep the schooner of tons burthen, or thereabouts, lying at , of which A. B., late ofis master (or otherwise sufficiently describing the vessel to be attached) her tackle, apparel and furniture, and that you summon A. B. (the master or owner who contracted the debt for which the vessel is attached), if he may be found within your bailiwick, to appear before our court ofin and for said county, on the day of —, then and there to answer the libel of C. D., who demands against the said schooner and the said A. B., the owner (or the master thereof), the sum of dollars, for materials found (or as the case may be, for work done, &c.) for the building of the said schooner, to wit: For (two thousand feet of plank, &c., setting forth the claim briefly, as in the libel) which said sum the said C. D. averreth is wholly due; and how you shall have executed this writ, make known to our said judges, at the day and place aforesaid, and have you then there this writ; Witness, &c.

12. But no writ of attachment shall be issued against any vessel as aforesaid, which shall have been seized by process of any court of the United States, having admiralty jurisdiction, while the same shall be actually held by virtue thereof, nor against any vessel which shall have been sold by order of such court, for any debt contracted as aforesaid, previously to the time of such sale: Provided, nevertheless, That if the payment of such debts shall be decreed by the said court, the lien shall continue until the payment thereof shall be enforced by the process of such court.

13. Immediately after the execution of any writ of attachment as aforesaid, the officer executing the same shall cause notice thereof to be given in one newspaper attachment to be published within the city and county, once a week during six successive weeks, published. and every such notice shall contain:

Ibid. § 11.

Vessel to be re

I. The name of the ship or vessel attached, the name of the port or place to which she belongs, and the name of her last commander.

II. That such ship or vessel will be sold for the payment of the debts contracted for work done, or for materials provided in the building, repairing, fitting, furnishing or equipping of the same (as the case may be), unless the owner, consignee, commander or some person in their behalf, shall appear and pay the same, or otherwise obtain the discharge.of such ship or vessel, within three months from the first publication of such notice.

III. In every such notice, he shall require all persons having a lien for any debts contracted as aforesaid, to file the same within three months from the first publication of such notice, or be debarred from prosecuting their claims, under such writ of attachment.

14. If the owner or master of any ship or vessel attached as aforesaid, or his or their agent, shall enter into a bond to the commonwealth, with sufficient sureties, leased on security to be approved of by the court from which the process issued, or by a judge thereof, with condition, to answer all the demands aforesaid, which shall be at that time

being given.

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