How to be directed, executed, and returned. VI. And be it further enacted, by the authority afore said, That it shall be lawful for any justice of peace, upon complaint to him made by any person, that his debtor is removing out of the county privately, or absconds and conceals himself, so that the ordinary process of law cannot be served upon him, to grant an attachment against the estate of such debtor, or so Attachment. much thereof as shall be of value sufficient to satisfy the debt and costs of such complainant; which attachment where the debt or demand shall be of the value of twenty five shillings current money, or two hundred pounds of tobacco, or upwards, shall be returnable to the next county court, and directed to, and served by the sheriff, or his under sheriff, unless in cases where the sheriff is a party interested, and then the same shall be directed to and served by a coroner; and it shall be lawful for such sheriff or officer to serve and levy the same, upon the slaves, goods and chattels of the party absconding, wherever the same shall be found, or in the hands of any person or persons indebted to, or having any effects of the party absconding, and to summon such garnishee or garnishees, to appear at the next court to be held for the said county, there to answer upon oath, what he or she is indebted unto such party, and what effects of such party, he or she hath in his or her hands, or had at the time of serving such attachment, which being returned executed, the court may thereupon compel such garnishee to appear, and answer as aforesaid. But bond & by the jus turned to wise the attachment void. VII. Provided always, That every justice of peace, security shall before granting such attachment, shall take bond and be first taken security of the party for whom the same shall be issutice, and re- ed, in double the sum to be attached, payable to the defendant for satisfying and paying all costs which court, other shall be awarded to the said defendant, in case the plaintiff, suing out the attachment therein mentioned, shail be cast in his suit, and also all damages which shall be recovered against the said plaintiff, for his su ing out such attachment; which bond shall be by the same justice returned to the court to which the attachment is returnable, and the party intituled to such costs or damages, may thereupon bring suit and recover; and every attachment issued without such bond taken, or where no bond shall be returned, is hereby declared illegal and void, and shall be dismissed. VIII. Provided also, That all attachments shall be Attachments repleviable by appearance, and putting in good bail, if repleviable by appearby the court ruled so to do, or by giving bond with ance & bail, good security, to the sheriff or other officer serving or security the same, which bond the sheriff or other officer is for appearhereby impowered and required to take, to appear at the court to which such attachment shall be returnable, and to abide by, and perform the order and judgment of such court. ance. taken for ap pearance. IX. And be it further enacted, by the authority afore- Rules, where said, That upon the defendant or defendants replevy-security is ing any attached effects, by giving bond and security to the sheriff, or other officer, as aforesaid, the sheriff shall return the name of the security by him so taken, and if such security shall be adjudged insufficient by the court, and if the defendant shall fail to appear and give special bail, if thereunto ruled by the court, such sheriff and security, shall be subject to the same judgment and recovery, and have the same liberty of defence and relief, as if such security had been taken upon the execution of mesne process. Method of for 51. or 10001. of to X. And be it further enacted, by the authority aforesaid, That it shall be lawful for any creditor, prosecuting where his debt doth not exceed five pounds current attachments money, or one thousand pounds of tobacco, to go before any justice of peace of the county where his debt- bacco, or unor resides, and make oath, how much is justly due der. to him, and that he has grounds to suspect, and verily believes, that such debtor intends to remove his effects; and thereupon such justice shall issue an attachment against the estate of such debtor, returnable to his next county court, directed to all sheriffs and constables within the colony of Virginia; and by virtue thereof, it shall be lawful, as well for the sheriff, or any constable of the county where such attachment shall be obtained, as for the sheriff or any con-stable of other counties, to pursue and seize such effects, and to make return of such attachment to the court where the same shall be returnable, and thereupon such proceedings shall be had, without a petition, as in other cases of attachment. XI. And upon complaint made to a justice of peace, Where un that any person indebted to the complainant, in any der 25s. or less sum than twenty five shillings current money, or two hundred pounds of tobacco, is removing out of the 2001. of to bacco. Where the attachment ment. county privately, or so absconds or conceals himself that a warrant cannot be served upon him, it shall be lawful for such justice, taking bond and security, as in this act is before directed, to grant an attachment against the estate of such debtor, or so much thereof as shall be of value sufficient to satisfy the debt and costs of the party praying such attachment, directed to the sheriff or any constable of his county, and returnable before himself, or any other justice thereof, who shall and may proceed thereupon, as upon an attachment returnable to the county court. XII. And if any attachment, returnable to the is not reple- county court, or before a justice of peace, shall be vied, the returned executed, and the goods or effects attached plaintiff shall shall not be replevied as this act directs, the plaintiff have judg- shall be entitled to a judgment for his whole debt, and may take execution thereupon; and all goods and effects attached, and not replevied as aforesaid, shall be sold and disposed of for and towards satisfaction of the plaintiff's judgment, in the same manner as goods taken in execution upon a writ of fieri facias: And where an attachment shall be returned, served in the hands of any garnishee, it shall be lawful, upon his or her appearance and examination, in the manner by this act before directed, to enter up judgment, and award execution against every such garnishee, and garnishees, for all sums of money or tobacco, due from him, her, or them, to the person absconding, or in his, her, or their custody or possession, for the use of such person, or so much thereof as shall be of value sufficient to satisfy the debt and costs of the complainant: And all goods and effects whatsoever, in the hands of any garnishee or garnishees, belonging to such absconding person, shall be liable to satisfy such judgment. Judgment against garnishee. Method of is- XIII. And be it further enacted, by the authority asuing, execu- foresaid, That all original process, by writ, summons, ting, and re- petition, or any other manner or means, and all subturning pro- sequent process thereupon, to bring any person or per cess. sons to answer, in any action, real, personal, or mixed, suit, information, bill, or plaint, in any county court, and all attachments awarded by the said courts, at the common law, and all subpoenas, attachments, and other process in chancery, shall be issued and bear teste, by the clerk of every county court respectively, returnable to the next succeeding court, and shall be executed three days at least, before the day therein mentioned for the return thereof; and if any process shall be delivered to the sheriff or officer, so late that he cannot execute the same three days before the return day, such process shall not be executed, but the officer shall return the truth of the case; and if any original process be taken out within three days before the next court day, such process shall be returnable to the next court after the said three days, and not otherwise; and all process issued or returnable in other manner, than is herein before directed, shall be null and void. XIV. Provided nevertheless, That any justice or Criminal cajustices of the peace, by his or their warrant, may sesexcepted. cause any traitor, felon, pirate, rioter, breaker of the peace, or other criminal offender to be apprehended and bronght before the same, or some other justice or justices, or before the next county court, altho' there be not three days between the execution of such warrant, and the return thereof. XV. And be it further enacted, by the authority a- Process aforesaid, That process against any member of his gainst acounmajesty's council, or the sheriff of any county, with- cillor orsheriff, as in gen in this colony; and the proceedings thereupon, shall eral court. be after the same manner in the county court as in the general court. XVI. And be it further enacted, by the authority a- Bail. foresaid, That upon executing any process, whereupon bail shall be requirable, the sheriff shall return therewith the names of the bail by him taken; and if he shall not return bail, or the bail returned shall be judged insufficient by the court, or the defendant shall fail to appear, or to give special bail, when ruled thereto by the court, such sheriff or bail shall be subject to the same judgment and recovery, and shall have the same liberty of defence, relief and remedy, as in like cases is by law provided in suits depending in the general court. XVII. And that upon appearance of the defendant in any personal action, where the plaintiff shall move, that the defendant may be held to special bail, the court may, if they see cause, rule him to give bail accordingly, or commit him in custody of the sheriff till such bail be given; and the person and persons, be Special bail. No bail in laws. Process coming special bail, shall be liable to the judgment and recovery against such defendant, unless he render his body in execution in discharge of his bail. Provided always, That no special bail shall be prosecutions requirable in any suit brought upon a penal law, upon penal unless by such law, bail shall be expressly directed. XVIII. And for the better ascertaining what process may be sued out where the sheriff returns, that where the defendant is the defendant is not to be found in his bailiwick, It is not found. hereby further enacted by the authority aforesaid, That where any sheriff shall make such return, the plaintiff or plaintiffs, in any civil action, shall, and may sue out an attachment against the estate of such defendant, returnable as herein before is directed for the returns of original and other subsequent process, thereupon to force an appearance, or an alias, or pluries capias, at the election of the plaintiff or plaintiffs, and if the sheriff shall return any goods by him attached, the plaintiff shall file his declaration, and be intituled to a judgment for his whole debt, and the goods so attached shall remain in custody of the sheriff 'til such judgment obtained, and then be sold and disposed of in the same manner as goods taken in execution upon a writ of fieri facias; and if the judgment shall not be satisfied by the goods attached, the plaintiff may have an execution for the residue. Provided always, That all goods so attached shall and may be replevied by the defendants giving bond and security, to the sheriff or other officer, attaching the same, in like manner as by law is directed on the execution of mesne process, or by the defendants appearance, and putting in good bail, if ruled by the court to give special bail. XIX. And for the regular prosecution and determination of suits, entering up the judgments, and preservation of the records, It is hereby further enacted, That the following rules and methods shall be observed, to Rules in pro- wit, that the plaintiff or demandant in any suit shall ceedings at file his declaration before or at the first calling of the cause in court, and that no incipitur shall be filed or received in lieu of a declaration the common law. Non-suit. That if the plaintiff or demandant fails to file his declaration, or to appear and prosecute his suit, he shall be non-suit. |