TITLE 8. 2. That such party has used his utmost endeavors to procure Order of court thero on. Orders of courts, evi denc Costa. Restoration of estates in cortain case. Remedy for rents and profits. the person upon whose life such estate depends, to appear before such commissioners, according to the exigency of the order by which they were appointed: and, 3. That he could not procure or compel such person so to appear. $16. If such court be satisfied of the truth of such allegations, it shall cause an entry of such proof to be made in its minutes, and shall thereupon declare that there is no reason to presume the death of the person upon whose life such particular estate shall depend; and all further proceedings on such application shall cease.59 $17. A copy of any entry made in the minutes of the court of chancery, pursuant to the provisions of this Title, duly certified, shall be evidence, in all courts within this state, of the facts therein stated. $ 18. When provision is not herein otherwise made for the payment of the costs of the proceedings, the same shall be paid by such party as the court shall direct. $ 19. Any estate which shall have been recovered upon the presumption of the death of any person, shall be restored to him who shall have been evicted, if in any subsequent action, the person presumed to be dead, shall be proved to have been living, at the time of the commencement of such action.60 $20. Every person so evicted, his executors or administrators, shall recover, in any action to be brought by him or them, the full profits of the estate, during the time he shall have been deprived thereof, and during the life time of the person on whose life such estate depended, against such as occupied the same, his or their executors or administrators.61 CHAP. VI. Of Proceedings in Personal Actions brought for the Recovery of any Debt, or for Damages only. TITLE 1. Of the commencement of suits and the proceedings therein, until the forming of an issue of fact. TITLE 5. Of executions, and the duties of officers thereon. TITLE 6.-Provisions concerning certain proceedings in the progress an action at law. (59) 1 R. L. p. 104, § 6. (60) Ib. § 5. (61) lb. § 2 & 5. of TITLE I. OF THE COMMENCEMENT OF SUITS AND THE PROCEEDINGS THERE- SEC. 1. Actions for debt or damages, how commenced. 2. Proceedings when declaration served personally. 3. When capias may be issued against a fictitious name. 6. True cause of action to be stated, in order to hold to bail. 9. Heirs, executors, &c. not to be held to bail, except, &c. 10. Sheriff how to execute writ requiring bail. 11. Defendant to be discharged on executing a bond; its contents. 12. When bond to be assigned, proceedings thereon. 13. When defendant's appearance may be entered by plaintiff. 14. Rule on sheriff for special bail, when entered. 15. Attachment for not putting in, how issued. 16. Sheriff may put in bail, his remedy therefor. 17. Proceedings against sheriff brought up on attachment. 18. Court to ascertain amount due to plaintiff. 19. Proceedings to be stayed, on sheriff's confessing judgment. 21. Execution when to issue; remedy on bond of sheriff. 22. Commitment of defendant on writ to be specially returned. 23. In such case declaration when and how to be served, &c. 24. When to declare where defendant has appeared, &c. 25. Consequence of neglect. 26. Warrants of attorney and entries thereof abolished. TITLE 1. SECTION 1. Actions brought for the recovery of any debt, or for Personal aedamages only, may be commenced, either, 1. By the issuing and service of a capias ad respondendum against persons not privileged from arrest: 2. By summons against corporations: or, 3. By filing in the office of one of the clerks of the supreme court, or with the clerk of the court of common pleas of the county in which the defendant resides, a declaration; entering a rule in the minutes kept by such clerk, requiring the defendant to plead to such declaration according to the practice of the court; and serving a copy of such declaration and notice of such rule personally on the defendant; which mode of commencing an action may be adopted against any person, whether privileged from arrest or not. tions how commenced. on service of $ 2. Upon due proof of the service of a declaration personally on Proceedings all the defendants in the cause, their appearance shall be entered by daration. the clerk of the court, in the same manner as if they had endorsed their appearance on a capias; and their default may be entered for not pleading, and the same proceedings may be had against them, in all respects, as if they had appeared. $3. When the name of any defendant shall not be known to the plaintiff, a capias ad respondendum may be issued against such son by a fictitious name. per When name of defendant unknown. 54. Upon the service of a capias ad respondendum upon any when bail is person, which does not require the defendant to be held to bail, he not required. TITLE 1. may endorse his appearance on such writ, or if he refuse to do So, the sheriff may return the writ personally served.1 Entering ap pearance of $5. Upon such writ being returned with the appearance of a dedefendant. fendant endorsed, or as having been personally served, the clerk of the court shall enter the appearance of the defendant upon whom the same was served; and thereafter, proceedings may be had against such defendant, as if he had actually appeared. When de $6. No person shall be held to bail on a capias ad respondenheld to buil. dum, unless the true cause of action be particularly expressed there fendant to be Cases whero bail may be in.1 $7. In the following cases, the defendant may be held to bail, of required, of course, and without any special order for that purpose: course. Order for bail Certain per obs not to be held to bail. Service of writ requir ing bail. Bail bond; its contents. 1. In all actions of debt, except such as shall be brought upon a judgment rendered in a suit wherein the defendant was held to bail; and except such as shall be brought upon any bail bond or recognizance of bail, or upon any replevin or other bond in which any surety shall have joined, taken in the course of judicial proceedings, or by virtue of any statute: 2. In all actions upon contracts for the payment of any money, the performance of any service, or the delivery of any property, where the demand or damages shall be certain, or can be reduced to certainty: 3. In actions of trover, and in actions of trespass for taking personal property, and in actions of replevin, in the cases provided by law: 4. In actions for trespass upon land.2 $8. In all cases other than such as are herein provided for holding a defendant to bail, an order requiring such bail may be granted by a judge of the court in which the writ is issued in the cases and according to the practice established in the supreme court. $9. Persons prosecuted in their representative character as heirs, executors, administrators, assignees or trustees, under the provisions of any statute, or otherwise, cannot be held to bail, unless they shall have incurred a personal obligation to pay the debt or demand claimed. $ 10. The sheriff or other officer to whom any writ shall be delivered, requiring the defendant to be held to bail, as herein provided, shall execute the same by arresting the body of the defendant, and keeping him in his custody until dischargd according to law.3 $ 11. Every defendant so arrested shall be entitled to be discharg ed therefrom, upon executing to the officer making such arrest, with the addition of his name of office, a bond, in a penalty equal to the sum endorsed on the writ, with two sufficient sureties, conditioned that such defendant will appear in the action commenced by such writ, by (1) 1 R. L. p. 424, § 14. (2) Ib. p. 324, § 4. (3) Ib. p. 423, § 13. applied only to mous, ismé putting in special bail within twenty days after the return day speci- TITLE 1. fied in such writ, and by perfecting such bail, if required, according to the rules and practice of the court.4 of bond; § 12. If default be made in the condition of such bond, the sheriff Assignment taking the same, shall assign such bond to the plaintiff in the action, proceedings. at his request, who may prosecute the same in his own name; and such proceedings shall be had in such action, for the recovery of the plaintiff's demand, and for the relief of the bail thereon, as in this act herein after prescribed. 5 fendant's ap $ 13. In cases where special bail shall be required, if the same be Entering denot given within double the time herein prescribed for that purpose, the pearance. plaintiff may enter the defendant's appearance, and proceed to judgment, in like manner as if special bail had been given." cial bail. $14. If special bail shall not be put in and perfected within twenty Rule for spedays after the return day of the writ on which the arrest was made, upon filing an affidavit that such bail is not put in and perfected, and that such writ has been returned served, a rule may be entered with the clerk of the court, in vacation or in term, requiring the sheriff or other officer making such arrest, to put in special bail, within twenty days after service of notice of such rule. for neglect. $15. If such bail be not put in and perfected within the time spe- Attachment cified in such rule, upon filing an affidavit of the service of notice thereof, a rule may be entered in vacation or in term, that an attachment issue against the sheriff or other officer who may have made the arrest, and such attachment may be issued accordingly. put in bail; ces. $16. The sheriff or other officer who shall have made an arrest, Sheriff may may, for his own indemnity, put in special bail to the action, as now consequenpractised in the courts of common law, when such bail shall have been required as herein directed, and the putting the same in, shall have been neglected by the defendant, so as to subject such sheriff to an attachment; and the putting in such bail, by such officer, shall not be deemed a performance of the condition of the bond taken on the arrest; but such officer may, notwithstanding, prosecute such bond, and recover the amount of all damages he may have sustained by the neglect of the defendant to put in such bail. on attach § 17. Upon a sheriff being brought into court on such attachment, Proceedings the same proceedings shall be had as are now practised upon a sheriff's ment. disobedience of a rule to bring in the body of the defendant, and such sheriff shall be liable in the same manner and to the same extent, and the court shall have the like power in all respects. to be ascer $ 18. When a sheriff shall be brought into court upon an attach- Amount due, ment for not putting in bail to the action, the court may, by summary tained. proceedings, ascertain the amount due to the plaintiff in the action, in (4) 1 R. L: p. 423, § 13. (5) Ib. p. 519, § 8. (6) Ib. p. 324, § 5. TITLE. the same manner as if interlocutory judgment had been entered against the defendant. Proceedings Ib.. Execution; action on sheriff's bond. Special ra turn. $ 19. If the court shall determine that the amount so ascertained ought to be paid by the sheriff, and if the sheriff shall confess a judg ment to the plaintiff for the amount so ascertained, with the costs of the suit and of the proceedings, the court shall thereupon stay all other proceedings against him, until he shall have had a reasonable time to obtain judgment on the bond taken on the arrest of the defendant, and to collect the amount so ascertained to be due to the plaintiff. $ 20. The sheriff, upon being served with such attachment, may, at his option, confess a judgment to the plaintiff for the amount due him, with the costs of the suit and of the proceedings, and shall thereupon be discharged from arrest on such attachment; and proceedings on such judgment shall be stayed, as in the last section prescribed, and no execution shall be issued thereon, without the leave of the court. S 21. If in any such action, after a reasonable time allowed, the sheriff shall not satisfy the plaintiff in the action, the amount due him, with costs and interest, the court shall award execution on the judgment confessed by such sheriff, as herein provided; and if such execution be returned unsatisfied, in part or in whole, the same proceedings shall be had on the official bond of such sheriff, to collect such deficiency as are provided in other cases of delinquency. S22. If a defendant arrested on process in which he is required to 12 W.210 be held to bail, shall be committed to prison for the want of such bail, Declaring soner. the sheriff shall specially return upon such process, the fact that the defendant is so imprisoned for want of bail. $23. Upon such return being made, the plaintiff shall declare against pri- against such defendant, before the end of the term next after such pro22cess was returnable, and shall deliver a copy of the said declaration to such prisoner, or to the sheriff or keeper of the jail, in whose custody such prisoner shall be. If such declaration be not served as herein prescribed, the defendant shall be discharged from his imprisonment, and shall be entitled to judgment of discontinuance against the plaintiff.7 Ib, when defendant has $24. When a defendant shall have appeared in any suit, by causappeared, &c. ing his appearance to be entered, or by putting in and perfecting special bail, where such bail is required; the plaintiff shall declare against such defendant, by the end of the next term after the return of the writ by which such suit was commenced.8 Effect of neglect. S 25. If a plaintiff fail to declare, as in the last section prescribed, judgment of discontinuance may be entered against him, according to the course and practice of the court.8 (7) 1 R. L. p. 353, § 11. (8) Ib. p. 345, § 11. |