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13 June 1836 § 30. P. L. 578.

13 June 1936 § 31.

(2.) Of the teste and return of writs.

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)

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.(/)

When issued with

Ibid. § 32.

In Philadelphia

and Allegheny.

24 May 1878 § 1. P. L. 135.

Courts may pro

14. In the courts for the city and county of Philadelphia, and county of Allegheny, all writs used for the commencement of actions may be made returnable on the first day of the next term aforesaid, or on the first Monday of any intermediate month, at the election of the party suing out the writ.(m)

15. The several courts of common pleas of this commonwealth are hereby authorized 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 the return and all other writs of scire facias, writs and process of every kind, may, at the election 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)

of process.

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(3.) Of proceedings in default of appearance.

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 make return that it was served upon the defendant ten days before the return-day aforesaid, it shall be lawful for the plaintiff, having filed his declaration, (o) to take judgment thereon for default of appearance, according to the rules established by the court to regulate the practice in this respect. (p)

17. In case such writ shall not be served (q) 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 thereon, at any subsequent day in term time, for default of appearance, according to the rules established by the court to regulate the practice in this respect.

(4.) Of the service of writs of scire facias.

18. In every case in which a writ of scire facias may by law be issued, it shall be served and returned in the same manner as is herein provided in the case of 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.

19. It shall be the duty of the prothonotaries, respectively, on the application 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

upon proof that the defendant, in fact, had no notice, has made timely application for relief, and has a defence, will open the judgment. Bencke v. Frick, 1 T. & H. Pr. § 1197.

(k) There must be at least ten days from the day on which a summons is issued, to that upon which it is made returnable. Hatfield v. Swiler, 28 P. S.

252.

(1) This section does not apply to the courts of Philadelphia and Allegheny counties. Thompson v. Patterson, 2 M. 146. A summons issued on the returnday cannot be made returnable on the same day. Dyott v. Pennock, 2 M. 213. But a summons may be served on the return-day. Heberton v. Stockton, 2 M. 164. Boyd v. Serrill, 2 Clark 327. It seems, that a fi. fa. is good, though a return-day intervene between the teste and return-day thereof. Miner v. Walter, 8 Phila. 571.

(m) By subsequent acts of assembly, this section has been extended to various other parts of the state; but the necessity for such special legislation has been obviated by the act of 1878, infra 15.

(n) So amended by act 11 June 1879, P. L. 125. (0) To entitle a plaintiff to judgment by default, he must have filed his declaration within the time prescribed. Foreman v. Schricon, 8 W. & S. 43; that is, before the return-day of the writ. Dennison v. Leech, 9 P. S. 164. Black v. Johns, 68 Ibid. 83. Kohler v. Luckenbaugh, 84 Ibid. 258. Hiester v. Muhlenburg, 1 Leg. Chron. 61. If the declaration be not filed in time, and there be no appearance, the practice is, to enter a common appearance, and rule

the defendant to plead. See Foreman v. McFerrin,
13 S. & R. 290. Seidel v. Henley, 1 Wood. 352.
(p) The proper practice is to enter judgment in the
office of the prothonotary. Sheerer v. Adams, 1 T. &
H. Pr. § 276.

(q) A summons may be issued within ten days before the return-day. Fisher v. Potter, 2 M. 147; and in such case, judgment by default may be taken at the expiration of ten days after the service of the writ, and the usual dies gratiæ, unless an appearance be entered. Ibid. A judgment without ten days' service is erroneous. Fitzsimons v. Salomon, 2 Binn. 436. Case v. Hufty, 1 Dall. 154. But not void. Hersch v. Groff, 2 W. & S. 449. And an appearance de bene esse is sufficient to prevent judgment. Blair v. Weaver, 11 S. & R. 84.

(r) This section has not altered the practice of taking judgment on two nihils. Chambers v. Carson, 2 Wh. 9, 372. But in such case, to entitle the plaintiff to judgment on the quarto die post, the second scire facias must have issued ten days before the returnday. Laws v. McDanel, 1 Clark 421. Two returns of nihil to monthly return-days of different terms, are sufficient. Magaw v. Stevenson, 1 Gr. 402. Stevens v. North Pennsylvania Coal Co., 35 P. S. 265. Or to monthly return-days of the same term. Haupt v. Davis, 79 P. S. 238. Two returns of nihil to successive writs of scire facias on a mortgage, are equivalent to a "scire feci," whether the mortgagor be living or dead. Taylor v. Young, 71 P. S. 81.

(8) Independently of this act, an amicable action might be entered by attorney. Cook v. Gilbert, 8

21 March 1806.

4 Sm. 830.

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 Satisfaction to be which it was pending, shall, on the request of the plaintiff expressed in writing, entered on request enter satisfaction thereon. of plaintiff.

Fees.

20. It shall be lawful for any persons, willing to become parties to an amicable 18 June 1836 § 40. action, to enter into an agreement in writing for that purpose, either in their P. L. 579. proper persons, or by their respective agents or attorneys; and on the production Actions may be 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.

II. Of the commencement of actions by arrest.

(1.) Of the capias ad respondendum.

P. L. 573.

21. It shall be the duty of the prothonotary of any court having jurisdiction of 18 June 1836 § 8. 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 capias.

[L. S.] County of : The Commonwealth of Pennsylvania, To the sheriff Form of capias. county, greeting: We command you, that you take

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if he shall be

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found in your bailiwick, and him safely keep, until he shall have given bail, or made
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next, then and there to answer may be], in our court of - at the suit of 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

, on the
in an action of debt [or as the case
or until the said

shall by

day of

A. D.

Prothonotary.

Ibid. § 7.

When capias may

22. Whenever the cause of action shall be founded upon an injury done to the person or property of the plaintiff, by a person whose name is unknown to him, or upon a fraud practised by such person to the prejudice of the plaintiff, it shall be issue against unlawful 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 as aforesaid, it shall be the duty of the officer to inquire of him his name, and if 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.

(2.) Of the bail-bond and bail-piece.

Ibid. § 8.

Duty of officer.

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 P. L. 574. 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 fendant to bail. treble damages to the party aggrieved.

Ibid. § 10.

25. The bond to be taken by the officer as aforesaid, shall be in the name of the commonwealth, and in the amount of the bail demanded; and the condition thereof Form and conshall 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 bail therein, to have, from the officer by whom it was taken, (x) a bail-piece to be made according to the following form:

S. & R. 567. An agreement to an amicable action is in effect an appearance by the defendant. Crosby v. Massey, 1 P. & W. 229. And see Flanigen v. Philadelphia, 51 P. S. 491.

(t) This act is affirmative, and does not prohibit the entry of judgments according to the practice then existing; and therefore, judgment may be entered by the prothonotary, upon the defendant's written order, confessing judgment in an action of debt, and directing judgment to be entered against him, although not executed in the presence of two witnesses. McCal

Ibid. § 11.

Bail-piece and form thereof.

mont v. Peters, 13 S. & R. 196. And see Gill v. Kuhn, 6 Ibid. 333. Ely v. Karmany, 23 P. S. 314. Wall's Administrators v. Fife, 37 Ibid. 394. Association v. Gardiner, 2 W. N. C. 96.

(u) See Fraley's Appeal, 76 P. S. 42.

(e) A bond with a single surety is not void. Cummings v. Meeker, 2 M. 83.

(w) The bail have 14 days after the service of a scire facias or summons on them, to surrender their principal. Carey v. Henry, 3 Clark 32.

(2) It is the duty of the prothonotary, and not of

13 June 1836. P. L. 574.

Ibid. § 12.

Of the return of the capias.

Ibid. § 13.

Ibid. § 14. Exception to bail.

Ibid. § 15.

Ibid. § 16. Sheriff's liability for bail.

13 June 1836 § 17. P. L. 575.

Cepi corpus.

Ibid. § 18.

Production of the body.

Ibid. § 36.

Service of capias on prisoner.

Ibid. § 19. Special bail.

Ibid. § 20. Deposits may be made in lieu of bail.

Ibid. § 21.

County, ss.

In the court of

day 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 to E. 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]. 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 respondendum, to the office of the prothonotary issuing the capias, who shall file the same, and enter upon his docket the names of the bail.

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)

29. The bail taken by the sheriff as aforesaid, may be excepted to by the plaintiff, his agent or attorney, at any time within twenty days after the return-day of 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.(z)

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 convenient administration of justice in such court may require.

31. The sheriff taking any bond as aforesaid, shall be responsible to the plaintiff 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.

32. If a defendant, arrested or detained on a capias ad respondendum as aforesaid, shall not give bail as aforesaid, it shall be the duty of the sheriff to state the fact in his return, according to the practice now prevailing and allowed.

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 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.

34. Whenever any writ of capias as aforesaid, shall be issued against any person who may be confined in the jail of the county, (a) a copy thereof shall be delivered to the defendant, by the officer holding the same, and another copy thereof shall be left by such officer 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. (b)

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 bail to the action, in the manner now practised and allowed, at any time before final judgment obtained against him.

36. It shall be lawful for the defendant in any writ of capias ad respondendum, either before or after arrest, or after bail given, and before the return of the writ, 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.

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

the sheriff, to furnish the bail-piece. Walker v. Folsom, 2 M. 102.

(y) See Murtland v. Wright, 7 W. N. C. 388. (2) Where bail are excepted to, and do not justify, the proper course is, to rule the sheriff to bring in the body, and compel him to put in unexceptional bail, or pay the sum sworn to into court. Fitler v. Bryson, 6 W. & S. 566. And the court will enforce obedience to the rule by attachment. White v. Fitler, 7 P. S. 533. By proceeding at once against the original defendant, or the bail excepted to, the plaintiff waives his exception. Fitler v. Bryson, 6 W. &. S. 566. Cummings v. Meeker, 2 M. 83. White v. Fitler, 7

P. S. 533.

(a) See title, "Convicts," and Key v. Jetto, 1 Pitts. 117.

(b) One in custody on civil process is not privileged from the service of a summons. Stryker v. Putterson, 1 T. & H. Pr. § 237. So, one in custody on criminal process is not privileged; nor one attending a criminal court; unless it appear that the criminal prosecution was a contrivance to get the defendant within reach of process. Commonwealth v. Daniel, 4 Clark 49. Addicks v. Bush, 1 Phila. 237. He is privileged, however, as against all who were parties to the prosecution. Foreman v. Morrow, 1 T. & H. Pr. § 237. One charged with a crime before a committing magistrate, and discharged on his recognizance for a further hearing, is not privileged from arrest by civil process, in returning from the magistrate's office. Key v. Jetto, 1 Pitts. 117.

plaintiff in such writ shall fail in his action, the money so deposited shall be forth- 18 June 1836 § 21. with returned to the defendant, upon application made to the court for that purpose.

38. If judgment be rendered against the defendant in such action, the money 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 money paid into court by a defendant in other cases.

P. L. 575.
Deposits to be paid
into court.
Ibid. § 22.

To be applied in

satisfaction of the judgment. Ibid. § 32.

made after return

39. It shall also be lawful for any defendant, after the return of the writ, by 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 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.

Ibid. § 35.

To be deemed an appearance.

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 affida- P. L. 576. vit.(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 lawful 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

of- A. D..

day

Prothonotary.

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

Ibid § 25.

Ibid. § 26.

43. Whenever any person, who shall have become bail of the defendant in any action, shall, pending the same, assign his effects for the benefit of creditors, or Proceedings where make application for the benefit of the insolvent laws of this commonwealth, or bail becomes ingive 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 or removes from 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.

given to defendant.

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

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

(c) Such writ cannot now issue, in an action ex contractú. Blanco v. Lauradon, 11 Phila. 368; s. c. 3 W. N. C. 171. Nebenzahl v. Saberlowitz, 1 Luz. L. Reg. 595.

(d) See form of affidavit, Graydon's Forms 35. (e) If one of two joint defendants is about to quit the commonwealth, without leaving sufficient real or

P. L. 577.

Ibid. § 29.

Powers of courts on writs of capias.

personal estate therein to satisfy the demand, a capias may be issued against both. Ex parte Overick, 3 Wh. 175.

(g) The garnishee in foreign attachment may rule the plaintiff to show cause of action. Erb v. Landis, 3 Clark 226.

P. L. 579.

13 June 1836 § 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.

20 March 1725 § 1. 1 8m. 164.

arrest.

(6.) of the privilege and exemption from arrest.

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 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)

Exceptions.

Ibid. § 2.

In what cases freeholders may be

arrested.

Ibid. § 3.

Penalty for arrest

holder.

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, 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 returnable.

49. But if any freeholder, exempted from arrests by virtue of this act, shall hap pen to be taken by any writ of arrest, the court where such writ is depending shall ing privileged free- forthwith, (o) 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 1838, § 2. Lynd v. Biggs, 1 Clark 18. If the defendant possess an unencumbered freehold of the value of £50, he is privileged from arrest, though the plaintiff's demand greatly exceed that amount. Fitler v. La Breure, 1 S. & R. 363. The defendant need not show title, as in ejectment; possession, under color of title, is, in general, all that has been required. Bidichimer v. Sterne, 1 T. & H. Pr. § 235. If the freehold be within the jurisdiction of the court, the defendant need only show its existence and value, it then rests on the plaintiff, if he object, to show an incumbrance; but if the freehold be in another county, the defendant must not only show its existence and value, but must produce evidence, by the usual certificates of search, of its being clear from incumbrances. Ibid. Hill v. Ramsey, 2 M. 342.

(i) See Penman v. Wayne, 1 Dall. 348.

(k) This only refers to suits on recognizances, or for a fine actually due the state; and does not extend to actions of trespass vi et armis, although a fine be due to the commonwealth therein, upon the judgment capiatur pro fine. Hudson v. Howell, 1 Dall. 310; S. P. Corcoran v. Kegrize, 29 Leg. Int. 324. Buckman v. Jones, 3 W. N. C. 302. McGuigan v. McCarthy,

6 Ibid. 253.

(1) A capias cannot issue against a freeholder,

even though the plaintiff direct the sheriff to accept his appearance. Barnard v. Field, 1 Dall. 348. But if a freeholder be joined as a defendant with an unprivileged person, the writ will be abated as to the former only. Buckman v. Jones, 3 W. N. C. 302. McGuigan v. McCarthy, 6 Ibid. 253.

(m) The demand need not be in writing. Filler v. Harman, 2 Y. 290. And the refusal will subject a freeholder to arrest in all cases, without exception. Jack v. Shoemaker, 3 Binn. 280. But when a freeholder receives notice to enter bail, he may cite the plaintiff to show his cause of bail, and if the judge be of opinion that the defendant ought not to be held to bail, he may order that his appearance be accepted. Ibid. 283.

(n) A judgment before a justice of the peace is sufficient to defeat the privilege of a freeholder. Quesnel v. Mussi, 1 Dall. 436. So is an award from which an appeal has been taken. Toy v. Simpson, Sup. Court, 8 April 1820.

(0) See Ingersoll v. Campbell, 10 W. N. C. 553.

(p) The court will inquire into the fact of the defendant's residence; Penman v. Wayne, 1 Dall. 241; and relieve him from arrest, Ibid. 348. Jack v. Shoemaker, 3 Binn. 280. Fitler v. La Breure, 1 S. & R. But they will not hear evidence to contradict the plaintiff's affidavit. Filler v. Harman, 2 Y. 280.

363.

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