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with Notes of Reference (1803)
St. George Tucker
Of the Commencement and Process, in Civil Suits at Common Law
HAVING taken a view of the method in which an action is commenced in the courts of Westminster hall, and of the process usually sued out to compel an appearance, where the defendant fails to pay obedience to the original writ, or summons, it is now necessary that we should point out the method of proceeding in similar cases, in the courts of this commonwealth. And here it will be sufficient to remark by the way, that the process of real actions must be commenced by original, or by an. original writ, issuing out of that court to which it is made returnable, and in which the trial is meant to be had, and not out of the chancery, as in England, and that all subsequent proceedings are to be conformable to those in England, in similar cases, except that essoigns, views and vouchers are taken away, as are all other excuses for non-attendance of the defendant (except the want of summons) by the express provision of the act of 1748, c. 1.1 In mixed actions also, such as that of waste, if the plaintiff wishes to avail himself of the treble damages given by our act, in conformity to the statutes of 52 Hen. III, c. 23, and G Ed. I, c. 5, he must commence his suit by original and not by capias, but in actions of trespass quare clausum querentis fregit where damages only, and not the land itself are to be recovered, it is not necessary to begin the suit by original, but it may be commenced by capias, because there the wrong complained of is supposed to have been accompanied with force, which subjects the defendant to fine and imprisonment for the breach of the peace. In actions of ejectment also, which we may remember are merely a fictitious form of action, no original writ is required, but the real defendant comes in voluntarily, and is made a party defendant at his own request. Neither is a capias necessary in this action, for the supposed author of the trespass, having in his letter of notice disclaimed all title, and the object of the suit being merely to try the right of possession, the plaintiff will be entitled to judgment by default against him, unless he, or some other person for him, appears to defend the suit after notice thus acknowledged. But in personal actions, as we had before occasion to remark (3 Com. 274) the original writ is altogether disused in Virginia, and the suit is commenced by writ of capias instead of it.
These few observations being premised, we shall now proceed to consider the manner of commencing and prosecuting personal actions in our courts; and herein we shall begin with,
1. The original writ or first process in the suit.
2. The mesne process, or that by which the defendant may be brought in, when not taken upon the first process.
3. Arrest and bail.
4. Proceedings in case of default by the defendant’s not appearing.
5. Proceedings incase of the defendant’s appearance.
The writ of capias or capias ad respondendum (for there are several other writs of capias, as the writ of capias utlegatum which lies against a person outlaw ed, either in a civil suit or upon an indictment, at the suit of the commonwealth, and the writ of capias ad satisfaciendum which lies after a judgment in any civil action, to take the defendant to satisfy the plaintiff for the same) is a writ issuing in the name of the commonwealth from the clerk’s office of that court in which the plaintiff purposes to prosecute his action, directed to the sheriff of the county in which the defendant resides, or is supposed most likely to be found, commanding him to take the body of A B, the defendant, and him safely to keep, so that he have him, before the court, to answer C D, of a plea of debt, covenant, trespass, or on the case etc. according to the nature of the plaintiff’s action. This writ and all subsequent process, when issued from the county courts, must be executed three days before the return day; and in actions of debt, founded upon a bond or note for the payment of money, or tobacco,2 covenant, and detinue, and in other actions where (for some special reasons, verified by affidavit) the plaintiff shall have obtained a judge’s order to hold to bail the sheriff (if required to take bail) is bound literally to perform the precept thereof, by committing the defendant to close custody, unless he shall give bail or security for his appearance at the time appointed; which bail, if sufficient, the sheriff is bound to take when offered. The manner of doing this is by the defendant and his security entering into a joint bond to the high sheriff by his name of office,3 in a penalty, generally double the debt, with condition for the defendant’s appearance at the time required by law, which is the first day after the end of the next term of the court to which the writ is returnable; and thereupon the defendant is suffered to go at large. But in actions of trespass, and on the case, and all other personal actions, except those before-mentioned, unless there be a special order of the judge of the court to hold the defendant to bail, the sheriff cannot take bail, nor commit the defendant to custody for want of it: bat he may return his precept executed without doing either, provided he shall have given the defendant personal notice of the writ, the process in such cases being in fact no more than a summons; or he may take the engagement of an attorney practicing in the court endorsed upon the writ, to appear for the defendant, and if the attorney fails to appear accordingly, he forfeits eight dollars, (formerly to the plaintiff, because I apprehend he put him to the trouble of suing out a further process to compel the defendant who had not yet received personal notice of the writ to appear thereto, but noiv, for what reason it is hard to say) to the defendant. If the suit be instituted in an inferior court, the plaintiff must be careful to endorse upon the writ that “no bail is required” whenever the defendant is a resident of any other county unless a non est inventus has been returned in the county or corporation in which he resides, or unless the cause of action arose within the jurisdiction of the court to which the process is returnable; otherwise the writ may be avoided by a plea in abatement, which, as we shall hereafter see, must be put in before issue is joined, or judgment by default, etc. for so careful is the law of the personal liberty of the citizen, that it will not permit him to be arrested and held to bail or committed to prison for want of it, at a distance from his neighbors and friends who may be willing to become bound for his appearance; unless his own act or indiscretion shall have deprived him of all claim to such indulgence, by incurring the debt, or committing the trespass for which he is sued, within the jurisdiction of that tribunal before which he is to defend himself; and where it is presumable the witnesses to the transaction can most conveniently attend the trial. And if the defendant be not an inhabitant of the county to which the writ is directed and be not found therein, the sheriff instead of returning a non est inventus, or that die defendant is not found in his county, is bound to return the truth of the case4 and where he returns that the defendant is “no inhabitant of the county” if the writ issues from the county court, it abates by the return, and the plaintiff can proceed no farther, but if he chooses to incur the expense, he may, I apprehend, sue out another capias in the nature of an original or new suit, until the defendant by coming into the county shall subject himself to be taken therein; but every such writ must be considered as the institution of a new action and not as a continuation of the first writ, in the ordinary forms of an alias, or fluries capias. But in this case if the suit be brought in the district court, the plaintiff may sue out a testatum
capias to any other county within the same district to which the defendant shall have removed: and even if the defendant be an inhabitant of any other district a testatum capias, I apprehend, may issue to any county therein, provided the defendant residing therein shall, have been jointly, or jointly and severally bound with any other defendant residing within the jurisdiction of that district court to which the writ is returnable in any bond, covenant, or other special contract. For in this case to avoid circuity of action or multiplicity of suits the law permits the plaintiff to pursue his remedy completely in the court of any district where either of the defendants may reside.5 So also in suits in equity brought in the county courts. If one or more of the defendants resides within the county (which gives the court jurisdiction of the cause) and others reside in another, or several other counties, the law now permits the plaintiff to pursue his suit against them all in one and the same court, and for that purpose will aid him with process directed to the sheriff of any other county in which such defendants may reside or be found, 1797, c. 8. But this is not permitted in actions at common law brought in the county courts, as has been already mentioned. And since the late division and new organization of the high court of chancery, where several defendants reside in different districts, the plaintiff may institute his suit in either district, and process may issue from the court thereof to the sheriff of any county in another district where any of the defendants reside. The sheriff cannot legally return a “non est inventus” upon any writ, unless he shall have actually been at the house or usual place of abode of the defendant, and shall have there left an attested copy of the writ; and if prevented from executing the same by any circumstance whatsoever, he must return the truth of the case.
There is another mode of commencing a suit where a debtor attempts to remove himself privately out of the county or corporation, or absconds or conceals himself so that the ordinary process of law cannot be sued out against him, which is by suing out a warrant of attachment. This is done upon complaint made to a justice of the peace, who is in such case authorized to grant such warrant; and being a special remedy adapted to the emergency of the case, it may be issued and even executed on a Sunday, provided the debtor be actually moving or absconding on that day; which is a proceeding not authorized in any other civil case, except upon escapes out of prison, or custody. This warrant may be levied upon any personal property of the party absconding, wherever found; or it may be served upon any person indebted to, or having any effects of, the party absconding in his possession, who is then called a garnishee, and is thereupon compellable to appear at the-next court, and answer upon oath what he is indebted to, or what effects he has in his hands of the party absconding. And if the party absconding shall not replevy the attachment, which he may do by giving sufficient security to the sheriff for his appearance, or by putting in bail to the action, if ruled thereto by the court, the plaintiff shall have judgment for the whole debt, and the goods attached shall be sold; and in case there be a garnishee, and judgment be rendered against him, the plaintiff shall have execution against him for the amount thereof; and in both cases he may have execution against the defendant’s estate, or his person, if he can be found, for any balance that may remain due. But before any person can be entitled to this extraordinary course of proceeding, he must enter into bond with security in double the sum to be attached, payable to the defendant, with condition to satisfy all costs, and also all damages which may be recovered against him for suing out the attachment, in case he shall be cast in his suit. This bond is to be taken by the justice issuing the attachment, and is to be returned to the next court of the county or corporation, otherwise the attachment is void;6 and the defendant will be entitled to such damages, as he can prove that he has sustained by the plaintiff’s vexatious proceeding.
The proceedings in this last case are evidently borrowed from those upon foreign attachments, which, by the custom of London and some other ‘places, may be sued out by a creditor and levied in the hands of a third person who is indebted to his debtor. A similar remedy, through the intervention of our chancery courts, is given against all persons absent from the state, who may have any effects in the hands of any person within the commonwealth. Of this we shall make mention more at large hereafter in speaking of the mode of proceeding in these courts. If the sheriff return that the defendant is not found, the plaintiff may sue out an alias capias, or pluries capias, the nature of which have been sufficiently explained elsewhere, until the defendant shall be arrested; or if he still .continues to avoid the service of the process upon him personally, the plaintiff at his election may sue out an attachment against the estate of the defendant, upon which the sheriff ought to take sufficient of the defendant’s property into his hands, to satisfy the plaintiff his debt- and costs; but the practice seems to be, (though very unwarrantable I apprehend) to levy the attachment upon some trifling article, as a knife, a spoon, or some other portable thing, without regard to the amount of the debt, or the comparative value of the property taken to satisfy it. But the plaintiff by this conduct is liable to loose his debt, if his debtor thinks it not worth while; as it frequently happens, to replevy the goods attached by giving bail to the action, and in the mean time disposes of his effects, or removes himself with them to some other place. The sheriff indeed by such conduct makes himself liable, I presume, for the amount of the debt, if the plaintiff can “prove that other property could have been had, whereupon he might have levied the attachment, and that the sheriff wilfully neglected to do it; but this is often difficult, though according with the truth of the case. The process of attachment is therefore rarely to be resorted to, except where the defendant is well Known to be a man of considerable substance. Whenever the writ of attachment is returned executed, whether it be levied on goods to the value of the debt, or to the value of six pence only, if the defendant does not appear and give bail, if ruled so to do, the plaintiff may proceed to file his declaration, and to enter judgment against him for his default; the goods attached remaining in the sheriff’s hands until final judgment be entered, and then being sold as if taken in execution; and if there be not enough to satisfy the judgment, the plaintiff may sue out an execution for the remainder.
But if the defendant be not taken upon the first, or second, or third writ, the alias, or pluries capias the plaintiff upon the return of the latter, instead of the process of outlawry, (the last resort in England,) may apply to the court to order a proclamation to issue, warning the defendant to appear at a certain day, or that judgment will then be rendered against him: this proclamation must be published on three successive court days, at the door of the court-house, of the county to which the pluries was directed, and three times in the Virginia gazette, and then if the defendant fails to appear, the plaintiff may proceed to judgment as in other cases of default.7 Such are the different modes in which personal actions are usually commenced in our courts of law, and the ordinary, and extraordinary methods which our law furnishes to compel the defendant to appear, and answer the complaint of his adversary.
We must now say a few words, concerning, 3. Arrest and bail.
If the defendant in any action of debt (except actions of debt upon penal statutes, or, upon bonds with collateral conditions,) covenant or detinue, wherein bail is required by law, and regularly demanded by endorsing the true species of action, and that bail is to be required, upon the writ; or in any other case, where there is the order of a judge of the court from which the process issues, to take bail, be arrested, the sheriff at his peril must take bail, (the nature and manner of doing which, has been already explained) for the appearance of the defendant to answer the plaintiff’s action; and he is moreover to return a copy of the bail-bond, with the names of the bail which he has taken, endorsed upon the writ: and if he fails in either of these particulars, the plaintiff may proceed against him for his neglect. This is done not by commencing a special action on the case against him, (as is the course in England) but by making him a. party to the suit, with the other defendant, in case the latter do not appear, and enter his appearance in the clerk’s office, on the first rule day; that is, on the next day after the end of the term, to which the writ is returnable, and put in special bail if the same be required. So also, if the bail which the sheriff may have taken for the defendant’s appearance, shall appear to the plaintiff or his attorney to be insufficient, he may except thereto, either on the first or second rule day, or at the next court after that to which the writ is returnable, and may proceed against the sheriff as in the former case, and if bail be adjudged insufficient by the court, the sheriff will be liable in the same manner as if he had not taken bail, or had failed to return a copy of the bail-bond; that is, he may be made a party to the suit; since the office-judgment entered on the part of the plaintiff against the defendant, for want of appearance should at the same time be entered against him also, for his neglect; by which means he is rendered finally liable to the same judgment as the defendant himself.
On the other hand he is admitted to defend the suit, in the same manner as the defendant himself, if he had appeared and put in bail, might have done. And if at any time before final judgment, the defendant is permitted to appear without bail, or puts in bail to the action, the proceedings against the sheriff are immediately set aside. If judgment be finally rendered against him, he may apply to the court to award an attachment, in the. nature of an execution, against the defendant’s estate, which shall thereupon be seized, by the coroner, or succeeding sheriff, and sold in the same manner as goods taken upon scire facias; but if he neglects to make this application he seems liable to the same execution as the defendant himself. If the sheriff takes bail and complies with the other directions of the law, by returning the names of the bail endorsed on the writ, and a copy of the bail-bond; and no exception is made either to the bail bond, or to the sufficiency of the bail, by the plaintiff; if the defendant does not appear and put in bail to the action, or special bail, as it is called with us, (the nature of which has been explained already) the plaintiff, instead of taking an assignment of the bail-bond and bringing an action upon it, as in England, may at once, (as in the former case against the sheriff) make the appearance-bail a party to the suit, and if the defendant neglects to put in bail to the action, until final judgment, the bail for his appearance will be liable to the same judgment and execution as the defendant himself. But here again, the law permits the same indulgence to the bail, as, in the former instance to the sheriff, by authorizing the court, on motion of the bail, to award an attachment against the defendant’s estate as in the case of the sheriff: but if this precaution be neglected, one and the same execution will issue against the defendant and bail, in the same manner as if they had been originally parties to the suit.8 But in that case also, the law affords the bail a summary remedy by judgment, on ten days previous notice, against the principal, his heirs or executors, for the full amount of whatever he may have paid, on account of such judgment.9
These summary proceedings against the sheriff,10 on the one hand, and against the bail for the defendant’s appearance on the other, have been found to answer the purpose of justice much better in this country, than that circuity of action which the laws of England required. It must be confessed however, that the plaintiff is often very greatly delayed by these proceedings, for as the sheriff or the bail have the same liberty of defense, as the defendant himself would have had, if he had appeared to defend the suit, it generally happens that, either to give him an opportunity of coming in and exonerating the sheriff, or the appearance bail, at some future stage of the proceedings, by putting in special bail before final judgment, or for the sake of procrastination, the suit is spun out in the same manner as if the defendant had some solid defense to make.
The proceedings against the sheriff, or the bail, as the case may happen, are regularly set aside if the defendant appears, and surrenders himself in custody, or puts in special bail, or is admitted to appear, without bail at any time before final judgment: it is therefore not unusual for the appearance bail or sheriff, against whom a plaintiff has proceeded in the manner here spoken of, to enter himself special bail, or bail to the action; the nature of whose undertaking for the defendant we may remember is, that the defendant shall satisfy the judgment of the court, by paying the debt, or render his body in execution, or that the bail will do it for him. The judgment, therefore, is now to be rendered against the defendant alone, and not against him and the sheriff, or the bail for his appearance, as in the former case. And, before the special bail can be charged with the debt, the plaintiff must first sue out a capias ad satisfaciendum against the body of the defendant, upon which, if he be taken, the special bail is thereby discharged; but, if the writ be returned with a non est inventus, (or that the body of the defendant is not found) the plaintiff may now proceed to charge the bail, by suing out a scire facias, or warning him to show cause, if any he can, why he should not pay the debt according to the stipulations of his recognizance, the defendant having now failed to satisfy the debt, or to render his body in execution. And, if the defendant be not surrendered either to the sheriff or before the court, before the appearance day of the first scire facias which shall be returned executed, or of the second on which the return of nihil shall be made, the bail can never afterwards discharge himself but by paying the debt. Where the surrender is made to the sheriff, the bail must give notice thereof to the creditor, that, if he chooses it, he may charge the defendant in custody, otherwise he seems, by such neglect, to be liable to a special action on the case, at the suit of the plaintiff, who will be thereby entitled to recover such damages as he can prove he has sustained from the want of notice.11 Although the law permits the bail to discharge himself by the actual surrender of the defendant, at any time before the appearance day of the first writ of scire facias executed, or the second returned nihil, yet it is by no means adviseable for the bail to postpone the surrender a moment after the return of a non est inventus upon a writ of capias ad satisfaciendum, for it has been solemnly adjudged, that if the principal die after the capias ad satisfaciendum is so returned, and before the return of the scire facias, the bail shall nevertheless be charged; for, after such a return made, the bail can only discharge himself by an actual surrender of the body.12
4. Where the defendant fails to appear, which he is bound to do at the rules in the clerk’s office, on the first day after the end of the term to which the writ is returnable, that being the day of appearance, it is usual for the plaintiff to enter a rule commonly called a conditional order, or conditional judgment against him for his default, which is done in the rule book kept by the clerk of the court for that purpose. The terms of this conditional order are, that unless he, the defendant, shall appear at the rules in the clerk’s office on the next rule day, (which in the district courts is always one month after,) and put in special bail, if required so to do, judgment will then be entered up against him for want of an appearance. And it is at this time that the before-mentioned proceedings against the bail, or against the sheriff, as the case may be, ought to take place, in case the defendant does not appear.13 Yet, if the plaintiff be not then prepared with his exceptions to the sufficiency of the bail, he is allowed to object thereto at the second rule day, or at the succeeding term of the court, but at no time after. This conditional order, or judgment by default, if not complied with at the next rule day, (and the judgment set aside by the defendant’s appearing and putting in sufficient bail to the action, if bail be required,) is then confirmed; and thereupon judgment is to be entered up for the debt, or other specific thing demanded, unless the plaintiff chooses to have a writ of inquiry to ascertain such damages as he may conceive himself to be moreover entitled to. Or, if the action sounds merely in damages, or the demand be for an uncertain sum, a writ of inquiry is awarded the plaintiff, as of course.
The judgment thus entered at the rules in the office, if not set aside at the next term, is final where no writ of inquiry is necessary. It may however be set aside at the next term after it is entered, on motion of the defendant himself, ‘on his appearing in court, and surrendering himself in custody, if required so to do by the plaintiff, or on giving bail to the action, if ruled thereto by the court: or by his appearance only, either in person or by his attorney, in ase the plaintiff is not entitled to demand bail: in all which cases he must immediately plead some issuable plea, (by which is meant a plea in bar of the plaintiff’s action, and not a plea in abatement, or other dilatory plea)14 otherwise the judgment will not be set aside for want of such plea.15 But if this be neglected by the defendant, still the bail for his appearance, or the sheriff against whom the judgment has been entered in the office, may at the same term, on motion, be permitted to enter his appearance, and set aside the judgment against himself, and defend the suit in the same manner as the defendant himself might have done, after which the judgment against the defendant seems to be suspended, until the event of the suit between the plaintiff and the bail, or the sheriff, as the case may be, shall be known. The plea thus put in by the bail or sheriff, seems to be considered as the plea of the defendant himself, and the setting aside the judgment against the former, has been so far considered as a complete suspension of the judgment against the latter, that it has been held that, where judgment has been confirmed against the defendant and bail in the clerk’s office, and the bail has afterwards been admitted to defend the suit, and then the bail dies, still the suit shall proceed upon the plea put in on his behalf, notwithstanding the abatement of the suit as to him.16 And, in another case, the defendant against whom a judgment was confirmed in the office, was, after the death of the bail who had defended the suit, admitted to appear and plead thereto.17 Whenever the defendant himself is admitted to set aside the office judgment, the bail, or sheriff against whom it was rendered, is thereby discharged. But when the judgment is set aside on the motion of the bail or sheriff who come in to defend the suit, they are still liable to the final judgment, unless bail to the action be given, or the defendant at some future stage of the proceedings, is permitted to appear without bail, which rarely happens, unless where the debt is of small amount, or the defendant is willing to confess the plaintiff’s action, on condition that his bail or the sheriff may be exonerated.
In actions where no bail is required, it is the practice to permit the defendant to set aside the office judgment, and plead at any time before the jury are sworn on the writ of inquiry, where the plaintiff has found it necessary to have recourse to one, in order to ascertain the amount of the damages which he is entitled to recover.
The proceedings, in case the defendant appears on the first, or any succeeding rule day, will be considered in a subsequent note.18
1. 1794, c. 76. Sec. 25.
2. Appearance bail is not required by law in actions of debt or bonds, with collateral conditions, and not for the payment of money, or tobacco….. 2 Wash. Rep. 183.
And even in suits where bail may be required, if the true species of action be not endorsed on the writ, and the appearance bail is required, the sheriff is not bound to take bail, and he is not liable for neglect, if he omit taking bail. 1 Wash. Hep. 153, 1J4.
3. 2 Stamp, 3.W. L. V. 1734, c. 80, Sec. 11.
4. 1794, c. 67. Sec. 23. c. 80. Sec. 15.
5. I am well aware that there are highly respectable authorities against what is here advanced, that a testatum capias may issue to a
county in a different district, from that in which a suit is brought against two or more joint obligors, etc, residing in different districts. But in the case of McCall against Turner, 1 Call’s Hep. 133, in which this point was stirred in the court of appeals, no advantage had been taken by the defendant, who was arrested, of the irregular entry of an abatement of the suit as to Spiller, the other defendant, who was returned “no inhabitant.” But notwithstanding what was said in that case by judges whose opinions I hold in great respect, yet, as the question was not brought regularly before the court, I shall presume to give my own reasons in support of the opinion which I have advanced.
The 24th section of the act reducing into one the several acts concerning district courts, Edi. 1794, c. 66, varies very considerably from the clause in the act of 1788, c. 67, which had been differently construed by the judges of the general court, some of whom supposed, that where there were two or more joint obligors, process might issue to any county in any other district, in the same manner as if they had resided in the same district; and of this opinion was the late judge Tazewell, who awarded a writ of testatum capias, from the district court of Accomack, to Powhatan county to arrest a defendant there, who was a co-obligor with one in Northampton county. When the committee of revisor was appointed (Edi. 1794, c. 67- Sec. 52.), one or more members of that committee, differing in opinion from judge Tazewell who was also a member thereof, it was agreed to submit the following note upon that clause to the legislature. “This clause having received various interpretations in the district courts, on the subject of joint, and joint and several obligations, and covenants, where the co-obligors reside in different districts, the committee submit to the general assembly the propriety of rendering the same more explicit, so as to remove all doubts whether a writ of capias ad respomicn-tian may, in such case, issue from the court of one district, to the court of a county in any other district or not.” In consequence of which the clause was amended as it now stands, thus, provided nevertheless, that where
two or more persons are or shall be jointly, or jointly and severally bound for the performance of any contract or for the payment of money or tobacco, a bond, covenant, or otherwise, it shall be lawful to prosecute such persons jointly, in whatever district either of them may reside, and process shall be issued and served accordingly, in any court, or district wherein the non-resident defendant or defendants may be found.” The words in italics were added at this time, and appear to me to justify the interpretation that I have given them, in the fullest extent. The act of
assembly which declares that where a defendant is returned “no inhabitant” the suit shall abate, relates altogether to the proceedings in the county courts, nor could such justification now operate to charge the bail, in such a case, for the judgment is already final against the defendant. On the other hand it was thought, that if the office-judgment were taken against the defendant and bail, only, this might be construed to admit his sufficiency, unless at the same time it were objected to, and a rule taken also against the sheriff; who would be discharged of course, if the sufficiency of the bail were established by the court; or otherwise, made liable to the same judgment as the defendant himself; to <lo which it was conceived to be most safe, as well as most regular, to proceed step by step, against the defendant, his bail and the sheriff, together. This practice he has been informed, is not general; yet he feels himself at a loss to recommend any substitute for it, where the sufficiency of the appearance-bail is doubtful.
6. 1794, c. 78.
7. 1794, c. 66, Sec. 41.
8. It was the practice in some courts in which the writer of these pages formerly practised to enter the conditional order, where the sufficiency of the appearance-bail, was doubtful, not only against the defendant and sheriff but against the appearance-bail also. For if the office judgment were confirmed against the defendant and the sheriff only, without taking any step, at the same time, against the bail, it was thought it might operate a discontinuance as to bail; and that although the bail should afterwards justify, such justification might operate only to exonerate the sheriff; but would not cure the discontinuance (if it were one) as to the bail, against whom no step had been taken in the office.
9. 1794. c. 14S. Sec. 4.
10. It has been solemnly decided in the court of appeals that the proceedings against the sheriff in the cases before mentioned, must be against the high sheriff, and not against his deputy, by whom the writ was served. Armistead vs. Marks and Saunders. 1 Wash. Rep. 325. and White vs. Johnson. Ib. 159.
11. 1 Wash. Rep. 318. L. V. 1794, c. 67. Sec. 31. 2 Wash. 213.
12. 1 Strange 511. 2 Strange 717. 2 Loid Raym. 1452. 2 Wils. 65. See also 1 Burr, 317, 322.
13. L. V. Edi. 1794, c. 67. Sec. C6, 27.
14. It is a rule in the courts of Westminster Hall, that no plea in abatement, or other dilatory plea, can be pleaded after a general imparlance, a fortiori, I conceive, not after a judgment by default, nor even after a conditional order, as a preparative step to such a judgment. The late case of Hunt vs. Wilkinson, 2 Call 49, may seem to the contrary. But in that case, one judge, only, thought the plea admissible as a plea in abatement; another thought it inadmissible, upon the ground which I have taken j the other three considered it as a plea fuis darsein continuance, and admissible upon that ground. So that I do not consider the English authorities as at all shaken by that case.
15. It sometimes happens that the bail for the defendant’s appearance comes into court, and enters himself special bail for the defendant, but does not put in any plea in this case, the ordinary course of proceeding, I apprehend, is to set aside the office judgment as to the bail only, leaving it to stand against the defendant himself. Perhaps the more regular course might be, to set aside the office judgment, (which is in it’s nature a joint judgment), as to both, and then enter a judgment against the defendant only, for want of a plea.
16. Anonymous case, Jun 21st, 1793. In the general court.
17. Prentis w. Brareton, Nov. 18,1794. In the general court.
18. The practical observations contained in this, and the succeeding note, are in general founded upon the purview of the acts of 1794, c. 66.
Sec. 21, C)’c. and c. 67. Sec. 9, &c. for which the student must consult these acts respectively.