fixed, by the death of the principal, at any time during the pendency of a writ of scire facias, and they always are exposed to so great a risk, that it is highly expedient, whenever it be practicable, to procure their release, by surrender or otherwise, before scire facias is issued.

Bail are also exonerated by the bankruptcy or insolvency of the principal; intending by the use of these terms such proceedings that the principal has obtained the release of his body from arrest in the particular action. Champion v. Noyes, 2 M. R. 481; 1 Tidd,

290.

The principal is presumed to be always in the custody of the bail, and it follows, therefore, that when one has been arrested in a county other than that in which he has his domicil, the execution may be delivered to the same or to any other officer of that county, and his return of non est inventus will authorize a scire facias. Brown v. Wallace, 7 M. R. 208; Crane v. Shaw, 13 Ib. 213.

The rights of bail over their principal are somewhat extraordinary. They may arrest him at all times and in all places, on Sunday as well as on another day, or during his attendance upon Court as a party or a witness, in any State of the Union, or in any foreign country; they may break open outer doors, and bring him within the county where he was arrested, and commit him to jail; and this authority may be delegated to an agent. Commonwealth v. Rickett, 8 Pick. 138; Bean v. Parker, 17 M. R. 591; Crane v. Shaw, 13 lb. 213; Brown v. Wallace, 7 Ib. 208; Bigelow v. Johnson, 16 Ib. 218; 1 Tidd, Prac. 285.

The only remedy against bail is a writ of scire facias; an action of debt will not lie, (Niles v. Drake,

17 Pick. 516); and it may be brought by the creditor, in his own name. Rev. Stat. c. 91, § 6. 91, § 6. In England, the practice is to make an assignment of the bail bond, but here it is not necessary.

The proceedings against bail, in actions before Justices of the Peace, are substantially the same as above stated. It is necessary, however, where bail propose to surrender their principal during the pendency of the action, to procure the attendance of an officer, (c. 91, § 21); and a Justice may, in scire facias, issue an execution for a greater sum than twenty dollars, § 20.

CHAPTER XII.

ENTRY OF ACTIONS AND APPEARANCE.

WHEN a writ has been duly served, it is the duty of the attorney, unless it have been settled or otherwise disposed of, to enter it at the term of the Court to which it is returnable, on the first day of the term. The rules of the Courts, upon this subject, may be found in the Appendix. An action will not be entered, unless the writ be produced, except for good cause shown.

If a Court be not held at its stated term, processes returnable to it may be entered at the next subsequent term, (c. 89, § 1); but if the Court be held and the action be not entered, it cannot be entered afterwards, but the party must commence a new action, though he may have been prevented from doing so by inevitable accident or by fraud. Howe, Prac. 202.

When an action is removed from the Common Pleas to the Supreme Court, at the first term, on the affidavit of the defendant, he must enter it; if it be removed at a subsequent term, by the consent of both parties, it is made the duty of the plaintiff to enter the action at the next term of the Supreme Court. If it be not entered by the defendant in the first case above named, it may be entered by the other party.

If a party have been regularly served with process, and the action be not entered, within a reasonable time after the sitting of the Court, to which it is returnable, a complaint may be made for costs, and costs

will be allowed, though notice has been given to such person, that the action will not be entered. Gilbreth v. Brown, 15 M R. 178.

The appearance of the plaintiff is made by the entry of the action; that of the defendant by entering the name of the attorney upon the clerk's docket, under the action. In the county of Suffolk, where the number of actions is much greater than in any other county of the Commonwealth, the convenient practice has been adopted, of placing the new entries upon a separate docket, and leaving it in some convenient place for the inspection of the bar, and to enable them to enter their appearance. In the other counties, no such facility is generally afforded, and many attorneys do not enter their appearance until the case is called in Court. The former is the better practice.

A defendant may appear, at any time, during the first term, before the jury is dismissed, even after default, and cause the default to be taken off, by leave of the Court, on such terms as the Court shall think reasonable. Rev. Stat. c. 92, § 2. It is not usual to impose terms in such cases, unless there have been some extraordinary negligence, or it is made apparent that the delay to enter an appearance was for the purpose of obtaining some unfair advantage. In consequence of this right, it is the uniform practice of the Court not to allow special judgment to be entered, in any new case, at the first term, until the day of adjournment.

The clerk's docket is a matter of so much consequence to the members of the bar, they are obliged so frequently to consult it, that some suggestions as to the best mode of keeping and making it up, by one who has seen all the dockets in the Commonwealth,

may possibly be of some service. In some instances, the clerk contents himself with merely recording the names of the parties and their counsel, without bringing forward any previous entries respecting the case. Nothing can be attended with greater inconvenience. It often becomes indispensable, when a cause is on trial, to ascertain what orders had been previously made in the cause; and much time is lost in searching back through successive dockets, perhaps for years, to see what the orders were, or when they were made; and in some counties, where the Courts are held in different places, cases have been suspended for days, and until the previous dockets could be procured. It is the excellent practice of many of the clerks, however, to bring forward all previous memoranda in pending cases, and thus present a compendious history of each case from the beginning, at a single glance. One of them goes so far as to enter upon his docket the time when any paper pertaining to the case is filed. The following extracts are made from one of the dockets.

193. Oliver Estey v. Franklin Sanders & Trustees.

Whitney.

Torrey & Wood, for
J. M. Whitman and
M. Wetherby.

44, S. 3. S. D. by M. V. D. 30. 45, M. 11. J. 2. S. 10. D. 7. Plff dead. 46, M. 2. C. Blair & J. C. B. Davis, adm'rs of Plff appear, &c. J. 2.

46. M. 4 discon. as to Jos.

Whitman-F. Sanders Pr.

and I. Hall Tr. deft'd. J. 2. answers of J. M. Whitman & M. Wetherbee filed. 3. Notice to I. Hall to appear and prove his claim to property disclosed in answers of trustees issued. Discontinued as to 1. Hall, and his default stricken off.