Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

The goods attached shall remain in the hands of the officer, until such final judgment be entered, and then be sold in the same manner as goods taken upon a fieri facias. And, if the judgment shall not be thereby satisfied, the plaintiff may sue out execution for the residue; and, in case more goods be attached than will satisfy the judgment, the surplus shall be returned to the defendant. March 1657-8, Act 69, 1 Stat. Larg. 466; Dec. 1662, Act 4, 2 Stat. Larg. 166; Feb. 1727, c. 4, 4 Stat. Larg. 185; Oct. 1748, c. 59, 6 Stat. Larg. 204; Ibid. c. 66.

24. § 62. Where any sheriff or other officer shall return, on any original or mesne process to him directed, that he has been kept off by force of arms, it shall and may be lawful for the plaintiff in the action in which the process so returned was issued, either to issue an alias or pluries, as the case may be, or to proceed in the said action against the defendant or defendants, as if such process had been returned executed. Jan. 28, 1800, c. 257, R. C.

25. 63. If any writ or process shall be executed, and, for want of a return thereof to the office from which it is issued, an alias, pluries, attachment or other process be awarded, the sheriff shall not execute such subsequent process, but shall return the first process by him executed, if it be in his possession; but, if it be not in his possession, then he shall return the subsequent process, with an endorsement of the execution of such first process, and the name of the appearance bail, if any was taken; and shall also return a copy of the bail bond, on which there shall be the same proceedings, as if the said first process had been duly returned. 1792, c. 66, R. C.

26. 64. On the return of the pluries, that the defendant is not found, the court instead of the process to outlawry(z) formerly used, may order a proclamation to issue, warning the defendant to appear on a certain day therein named, or that judgment will be rendered against him; which proclamation shall be published on three successive court days, at the door of the courthouse of the county or corporation, to which the last process was directed, and also three times in some public newspaper; and if the defendant fails to appear pursuant to such proclamation, the same proceedings shall be had, and the same judgment shall be given as in other cases of default. Ibid.

27. 65. On writs of scire facias for the renewal of judgments, no judgment shall be rendered on the return of two nihils, unless the defendant resides in the county, or unless he be absent from the commonwealth, and have no known attorney therein. But such scire facias may be directed to the sheriff of any county in the commonwealth, wherein the defendant or his attorney shall reside or be found, which being returned served, the court may proceed to judgment thereupon, as if the defendant had resided in the county. Ibid.

king bail upon a writ of capias ad respondendum. And upon the return of such attachment and bail, the same proceedings in all respects shall be had, as are now authorized by law upon the return of a capias ad respondendum executed, and bail taken."

(z) See the following acts passed in 1838 and 1839, providing:

"That when any person shall hereafter be proceeded against and prosecuted to outlawry in any of the counties or corporations of this commonwealth, judgment of outlawry shall be given and rendered by the circuit superior court of law and chancery of the county or corporation in which such proceedings and prosecution may have been

had, instead of by the coroner or coroners of such county or corporation, any law, usage or custom, to the contrary notwithstanding." Act of March 5, 1838, ch. 98, p. 75.

That all judgments of outlawry which have been rendered since the passage of the act of March 5, 1838, and all such judgments as may be hereafter rendered under the said act, shall be liable to be reviewed, corrected and reversed, upon motion to the court in which the same have been or may be rendered, or by writ of error coram nobis, as fully, and to the same extent, as similar judgments rendered before the passage of that act. Act of March 26, 1839, ch. 73, p. 46.

28.

Act of February 25, 1819—January 1, 1820. R. C. ch. 123.

66. Where the defendant can be found, writs of scire facias from any court, shall hereafter be served in the same manner as writs of capias ad respondendum on which no bail is required. And where the said defendant cannot be found, it shall be considered as a sufficient service of the said writ, for the sheriff or other officer to whom the same is directed, to leave a copy thereof with the wife of the defendant, or some free white person above the age of sixteen years, then and there being one of the family of the defendant, and found at his usual place of abode, or to leave a copy thereof at such place of abode, in the manner prescribed in the next section. Jan. 1798, c. 231, R. C.

29. 67. Notices on replevin bonds, and on all other legal occasions, wherein no particular mode is or shall be prescribed for their service, shall be good, if given to the party in person, or delivered in writing to any free white person above the age of sixteen years, who, being a member of the family(1) of such person, and found at his usual place of abode, shall be informed of the purport of such notice; or left at some public place at the dwelling house, or other known place of residence of such person, he being from home,(2) and no such free white person of his family being found there, willing to receive such notice; and it shall be the duty of the sheriff or serjeant, whenever required, to serve all such notices within his bailiwick, and to make due return thereof: the service thereof, however, shall be good, when made by any other person, and verified by affidavit. Altered from 1792, c. 76, R. C. [Notices on all legal occasions wherein the adverse party does not reside within the commonwealth of Virginia, and has no known agent within the same, upon whom such notice could be served, and wherein no particular mode is or shall be prescribed for their service, shall be good, if published in any public newspaper printed in this commonwealth, once a week for four weeks successively: the printer's fees for which, (if not thought unreasonable by the court,) shall be taxed in the bill of costs, if the party chargeable therewith shall prevail in the suit. Feb. 17, 1823, c. 37, § 3.]

30. 68. In all actions or suits which may be commenced against the governor of this commonwealth, any member of the privy council, any of the judges of the superior courts, or the sheriff of any county, during his continuance in office, instead of the ordinary process, a summons(3) shall issue, directed to the sheriff or other proper officer, reciting the cause of action, and commanding him to summon such defendant to appear, and answer the same, on the proper return day; and if such defendant, being summoned, or after a copy shall have been left at his usual place of abode, ten days before the return day, shall not appear to answer the same, the court shall proceed against such defendant, in the same manner as if he had been taken upon a capias ad

(1) A notice is sufficient, if delivered to a free white person above sixteen years of age, in whose house the party for whom it is intended is a boarder though not a permanent resident. Segouine v. The Auditor, 4 Munf. 398.

(2) In Brown & Rives v. Ralston & Pleasants, 9 Leigh, 532, it was decided that notice given to the consul of the U. S. at the port of Cadiz, that the master of the vessel was ready to deliver the cargo, was sufficient notice to the consignee, who, before the arrival of the vessel, had left Cadiz, and was at that time absent, and who had appointed the said consul his agent for a part of the cargo, but not for the whole.

(3) Suppose a member of the privy council, or other officer unite in a joint and several bond with an unprivileged citizen-may he not be arrested on a joint capias, issued against both obligors? Does he not by thus uniting, waive his privilege? Or does he, by thus uniting, impart his privilege to his co-obligor? See Bank of U. S. v. The Planters Bank of Georgia, 9 Wheat. 904; Bank of U. S. v. M'Kenzie, 2 Brock. R. 393. It seems he does not communicate his privilege to his co-obligor, but descends to the level of his associate, and takes his character.

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

respondendum: Provided always, That after judgment, and the return of a fieri facias, by the sheriff of that county in which the defendant in any such case resides, that no effects, or not sufficient, are to be found in his bailiwick to satisfy the said judgment, a capias ad satisfaciendum may be issued as in other cases. See Oct. 1705, c. 19, § 13, 3 Stat. Larg. 291; 1792, c. 66, R. C.; 13 Stat. Larg. 437.

31. 69. The rules in the clerk's office of the county and corporation courts, of the superior courts of law, and the general court, shall be holden on the first Monday in every month, and may be continued from day to day, not exceeding six days.(x) Alt. from Ibid. and c. 67, R. C.; 1814, c. 31.

32. 70. Every writ of capias ad respondendum or scire facias, every summons to answer any action, and every subpana in chancery issued from the clerk's office of any such court, shall be returnable at the option of the plaintiff, either to the first(5) day of the next succeeding term, or in the clerk's office to some previous(1) rule day; [so much of this section, as authorizes a capias ad respondendum to be returned to some rule day in the clerk's office of a county or corporation court, was suspended by acts of Feb. 24, 1820, c. 19; Mar. 3, 1821, c. 35; and repealed by act Feb. 23, 1822, c. 18,] and, if it shall be returned not executed, any subsequent proper process may issue thereupon returnable in like manner. All such process may be executed at any time before the return day shall have passed. [See tit. SHeriffs, No. Sept. 1664, act. 4, 2 Stat. Larg. 210; alt. from Feb. 7, 1814, c. 18. 33. 71. Process to bring the representative or representatives of any deceased party into court, may be awarded at the rules in like manner as in open court. Ibid. [See tit. JUDICIARY, County Courts, No. 49.]

32.

34. 72. The plaintiff shall file his declaration in the clerk's office on the rule day at which the writ or other process shall be returned executed; or, the defendant having entered his appearance,(2) may give a rule for the plaintiff to declare; which if he fails or neglects to do, at the succeeding rule day, (v) or shall at any time fail to prosecute his suit,(6) he shall be nonsuited, and pay

(x) See Sup. R. C. c. 103, § 12, p. 132— also, c. 109, § 18, p. 142.

(5) A capias ad resp. is made returnable to the next term generally, instead of to the first day of the term; the writ is executed before the term and returned to the first day; an office judgment is entered at the rules; at the ensuing term, defendant moves to quash the writ and all the proceedings thereon at rules, on the ground that the writ being returnable to the term generally, was naught-motion overruled: Held, rightly. Hare v. Niblo, 4 Leigh, 359.

(1) Where the process was not returnable to the court, or to some previous rule day, the rule day to which it was returnable and the first day of the court being the same, the process was held void. Kyles v. Ford, 2 Rand. 1, 4. A scire facias against special bail, may be returnable at rules in the clerk's office. Branch et al. v. Webb, 7 Leigh, 371.

(2) This act, (1819,) does not, in terms, appoint any appearance day; but, it may be inferred from various provisions of the statute, and indeed results from the terms of the writ, in the absence of any express provision on the subject, that the appearance day is the return day of the writ, if, accord

ing to law, an appearance can then be entered; or if not, then the first day thereaf ter on which an appearance can be entered. Thus, when the writ is returnable to the rules, the return day is the appearance day, as an appearance can be then entered at the rules. If the writ be returnable to the first day of the court, and the same day be the rule day, it is also the appearance daysince an appearance may then be entered, at the rules. But if it be not also a rule day, then the next rule day succeeding, is the appearance day; for that is the earliest day at which an appearance can be entered, and a rule given or received by the defendant. Per Green, J. in Kyles v. Ford, 2 Rand. 2, 3. See Branch et al. v. Webb, 7 Leigh, 371.

() The reinstatement of a cause, (dismissed at the rules for want of a declaration,) at the next court may be generally regarded as a matter of course. Tucker, J. in Lipscomb's adm'r v. Littlepage's adm'r, 1 H. & M. 463.

(6) If the plaintiff enters a retraxit, or fails to give security for costs-in consequence of which his suit is dismissedjudgment for $5 should not be given. But on every office dismission, produced by a

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

to the defendant or tenant, besides his costs, five dollars. act 26, 2 Stat. Larg. 27; alt. from 1792, c. 66, R. C.

See Oct. 1660-1,

35.73. When the plaintiff hath filed his declaration, (w) he may give a rule to plead with the clerk; and if the defendant(4) shall not plead accordingly, at the expiration of such rule,(x) the plaintiff may enter judgment for his debt or damages and costs, and have a writ of enquiry awarded where one shall be necessary.(y) Ibid.

36. § 74. All rules to declare, plead, reply, rejoin, or for other proceedings, shall be given regularly from month to month, shall be entered in a book to be kept for that purpose, and shall expire on the succeeding rule day. 1792, c. 66, R. C.

37. 75. No discontinuance of any cause shall take place for failure to take any rule therein, during any vacancy in the office of the clerk of the court in which such cause may be depending; but all causes on the rule docket shall stand continued until the rule day after the vacancy shall be filled; and all process issued before, but not returnable till after such vacancy happened, shall be returnable to the same rule day. Dec. 27, 1814, c. 31.

38. 76. Before every term of the general court, or a superior court of law, and before every quarterly term of a county or corporation court, the clerk shall enter, in a particular docket, separate and distinct from the rule docket, and, in the county court, separate and distinct from the chancery docket, all those causes, and those only, in which there is an issue to be tried, or an enquiry of damages to be made, or an office judgment which may be set aside, or a special verdict, case agreed, demurrer, or other matter of law, or other question before the court, is to be argued or decided. He shall docket the causes in the order in which they are put to issue, or writs of enquiry are awarded, or office judgments rendered in them; and no cause shall be removed from its place on the docket, unless when, being called for trial, it shall be continued at the plaintiff's motion, in which case it shall be put at the end of the docket, unless the defendant consent that it shall retain its place. The clerk, under the control of the court, shall apportion the causes on the docket, to so many days, and in such numbers to each day, as may be deemed most expedient; and he shall issue subpœnas for witnesses to attend on the day to which the causes stand for trial. Mar. 1661-2, act 20, 2 Stat. Larg. 60; 1792, c. 66, R. C.; and Jan. 1805, c. 61, ed. 1808.

39. 77. Every judgment entered in the office against any defendant, or against any defendant and bail, or against any defendant and sheriff, shall be set aside, (2) if the defendant, at the succeeding term of the general court, or a superior court of law, or at the succeeding(aa) quarterly term of a county or corporation court, shall be allowed to appear without bail, (bb) put in good voluntary abandonment of the cause by the plaintiff, and which should be entered as a nonsuit, $5 ought to be awarded. And so, if plaintiff dismiss or discontinue his suit, after the appearance of the defendant, judgment of nonsuit ought to be entered and $5 awarded. Pinner et al. v. Edwards, Price's adm'r, G. C. Nov. T. 1828, 6 Rand. 675.

The dismission of a suit agreed, does not amount to a retraxit, and is no bar to a future suit for the same cause of action. Hoffman v. Porter, 2 Brock. R. 156, 158.

See

Welch v. Manderille, 1 Wheat. 233, 236.
(w) This rule cannot be given before de-
claration filed. Waugh v. Carter, 2 Munf.
333; Payne et al. v. Ladd, 4 Munf. 483.
(4) Scott v. Dunlaps, 2 Munf. 349.

returnable to April rules-declaration filed and common order, on return day-the next rule day was the first Monday in May following, which was the first day of sup. court. The case could not be docketed, as an office judgment of May T. the order not being confirmable until the first Monday in May. But if the term had commenced the day succeeding the rule day, it might have been docketed. White v. Archer, G. C. June T. 1820. Since reported, 2 Virg. Cas. 201.

(y) See note (c): and Early v. Moore, 4 Munf. 262; Dunbar v. Lindenbergers, 3 Munf. 169; Sheehy v. Mandeville, 7 Cranch, 208; Hunt et al. v. M'Rea, 6 Munf. 456.

(z) (aa) (bb) After the first term, next fol(x) A capias ad respondendum in debt, lowing an office judgment, it is a matter of

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

bail, being ruled so to do, or surrender himself in custody,(1) and shall plead to issue(cc) immediately: Provided however, That no such office judgment