Abbildungen der Seite

On failure to give a sufficient bail bond, the sheriff may commit the defendant to prison. 2806. By special bail is understood a recognizance entered in the case,

in which the defendant and his sureties become bound in double the amount of the claim, with a condition that if the plaintiff shall recover in the suit, the defendant shall either pay the judgment and costs, or surrender himself to the sheriff, or that his sureties will do it for him. This is entering bail to the action, and is equivalent to an appearance. It is called special because it particularly states what the sureties are bound to do, and it is called bail above to distinguish it from bail below, or bail to the sheriff.

After special bail has been entered, the plaintiff may object to their sufficiency, when the sureties are required to justify, that is, show that they are of pecuniary ability to pay the plaintiff's demand.

2807. The meaning of the word bail is to deliver, and the defendant is presumed to have been delivered into the custody of the sureties. If the sureties become dissatisfied, they may obtain a certificate from the clerk or prothonotary of the court that they became bail for the defendant, which certificate, called a bail piece, when formally made under the seal of the court, is evidence of that fact, and authorizes the securities, also called the bail, to arrest the defendant and commit him to prison in discharge of their obligation or recognizance, and entitles them to have an exoneratur, or an entry made on the record that the defendant has been so surrendered or committed to prison, which, when lawfully made, discharges them.

2808. The return of the capias must be made according to the facts; if the writ has been served, the defendant has been arrested, the return is simply cepi corpus; if the defendant has been discharged on bail, cepi corpus and bail bond, or C. C. B. B. If the defendant could not be found, non est inventus, and if found and he is sick, cepi corpus et languidu8,36 and if he has been rescued, the sheriff may return that fact.

2809. An attachment, as a civil proceeding, is a writ issued by a court of competent jurisdiction, commanding the sheriff, or other proper officer, to seize any property, credit, or right belonging to the defendant, in whose hands soever the same may be found, to satisfy the demand which the plaintiff has against him.

This writ always issues before judgment, and its object is to compel an appearance of the defendant; in this respect it differs from an execution, and it is unlike it in another respect, that the property attached cannot be sold without

In some of the states this process can be issued only against absconding debtors, or those who conceal themselves, so that a summons or capias cannot reach them ;37 in others it is issued in the first instance, so that the property attached may respond to the exigency of the writ, and satisfy the judgment.38

3See, for a form of this return, 3 Chitty, Gen. Pr. 249, n. 37 Ross v. Clark, 32 Mo. 296. In Iowa against non-residents. Wiltse v. Stearns, 13 Iowa, 282. The plaintiff is generally in these states required to give a bond to pay all damages arising from the attachment if he does not maintain his action.

In New York, by virtue of the new code of procedure, a summons may be issued against a non-resident, which is to be served by a publication in the public newspapers, and by mailing a copy of it, directed to the defendant's place of residence, when known. It issues only when it is made to appear that the defendant is a resident of the state or has property therein. The defendant may come in and make defence at any time before judgment; and if, after judgment, he satisfies the court he had no notice before judgment, he may make a defence at any time within one year after notice of the judgment, or within seven years after its rendition.

** In Minnesota in all actions for the “recovery of money.” Minn. Comp. St. 88 142, 144; Morrison v. Lovejoy, 6 Minn. 183. VOL. II.-0


another process.



When the property attached is a chose in action a new party is introduced ; the person who is indebted is called the garnishee, who is so denominated because he has notice of the attachment. From the time the garnishee has notice of the attachment he is bound to keep the property in his hands, to answer the plaintiff's claim, until the attachment is dissolved, or he is otherwise discharged.39

2810. The attachments assume different forms, according to the provisions of the laws of the different states. In Pennsylvania there are two kinds of attachments, namely, the foreign, which is a proceeding by a creditor against the property of his debtor, when the latter is out of the jurisdiction of the state, and is not an inhabitant of the same. The object of this process is in the first instance to compel an appearance by the debtor, though his property thus attached may be made eventually liable for the plaintiff's claim. This attachment is for the sole benefit of the plaintiff

. The other form is the domestic attachment, which may be issued against any debtor being an inhabitant of the commonwealth when he has absconded from the place of his usual abode. Under this proceeding the goods attached are to be divided among the creditors of the defendant pro rata.

2811. By the code of practice of Louisiana an attachment in the hands of third persons is declared to be a mandate which a creditor obtains from a competent officer, commanding the seizure of any property, credit, or right belonging to his debtor, in whatever hands it may be found, to satisfy the demand which he intends to bring against him. A creditor may obtain such attachment of the property of his debtor in the following cases :

When such debtor is about leaving permanently the state, without there being a possibility, in the ordinary course of judicial proceedings, of obtaining any judgment against him previous to his departure, or even when such debtor has already left the state never again to return.

When such debtor resides out of the state.

When he conceals himself to avoid being cited and forced to answer to the suit intended to be brought against him.40

2812. By the local laws of some of the New England states, particularly of the states of Massachusetts, New Hampshire, and Maine, personal property and real estate may be attached upon original process to respond to the exigency of the writ and satisfy the judgment." In such case it is a common practice for

[ocr errors]


30 The garnishee process arises from the custom of London, and is known in New England as the trustee process. It may be used against a resident or non-resident defendant. The attaching plaintiff acquires no greater rights against the garnishee than the defendant had. But one who holds personal property conveyed to him

in fraud of creditors, he being a party to the fraud, has been held as trustee. Blodgett v. Chaplin, 48 Me. 322. This decision is somewhat at variance with the general current of authorities, which hold that the demand must be a clear legal demand for which the defendant might maintain an action at law against the garnishee. Baltimore R. R. v. Wheeler, 18 Md. 372; Burton v. Warren, 11 Iowa, 166.

The liability of the garnishee is established by his answer under oath or by other proof. In some states his answers to interrogatories are conclusive. Chase v. North, 4 Minn. 381; Meeker v. Sanders, 6 Iowa, 61. Executors may be garnisheed for legacies. Lorenz v. King, 38 Penn. St. 93, but not for debts due from the testator, nor can persons deriving their authority from the law and obliged to execute it according to the law. Taylor v. Gillean, 23 Tex. 308. Service of process on the garnishee is a valid attachment of the property in his hands, and constitutes a lien on it until properly dissolved. It continues in general until judgment, and after judgment against the defendant, satisfaction can be made out of the property so attached. Such satisfaction is a defence to any future action of the defendant against the garnishee. Webster v. Lowell, 2 All. Mass. 123; Gunn v. Howell, 35 Ala. X. 8. 144.

40 La. Code, art. 239, 240. See Harris v. Dennie, 3 Pet. 292; Blanchard v. Cole, 8 La. 153. 11 The process of attachment at common law was only to compel the appearance of the

the officer to bail the goods attached to some person, who is usually a friend to the debtor, upon an express or implied agreement on his part to have them forthcoming on demand, of in time to respond to the judgment when the execution thereon shall be issued.

2813. In most of the states where the writ of attachment to compel an appearance is in use, the defendant may at any time before judgment dissolve the attachment by entering special bail to the action; in which case the property attached is released from the operation of the writ, and the suit goes on as if a capias had been issued and special bail had been entered. 43

2814. The object of all the writs issued in commencing an action is to compel the appearance of the defendant.

of the defendant. At the same time the plaintiff also appears, and then the pleadings commence.

In former times in England, from which country we have derived so much of our law, the parties actually appeared in court in term time, on the return day of the writ, for all the pleadings and proceedings took place in court in term, and never in vacation. This appearance in court was either by the defendant himself, or by his attorney, but always in open court.

The parties being both in court personally, or represented by their attorneys, then made their several allegations before the judges, and the court received information as to the nature of the plaintiff's claim and the defendant's defence, which was then called the loquela, and these allegations, on either side, have since acquired the denomination of pleading or pleadings.

In modern practice the appearance of the parties is no longer by actual presence in court, either by themselves or their attorneys; but still such an appearance is supposed, and exists in contemplation of law. When the defendant has not been arrested, an appearance is effected on the part of the defendant by making certain formal entries in the proper office of the court, expressing his appearance, as by the attorney's writing his name on the margin of the docket opposite that of the defendant. When the defendant has been arrested under a capias, the entry of special bail to the action is considered an appearance. No



defendant, and when he had appeared the attachment was dissolved. There was no lien on the goods to secure the debt. But the attachment in New England is now for the sole purpose of securing the payment of the debt. The defendant, having been served with process, may appear or not; if he does not, he is defaulted. But the attachment constitutes a lien on the goods for the payment of the claim sued on, which may be enforced by execution.

42 Story, Bailm. 124. The person receiving the goods is known as the receiptor, and his possession is regarded as the possession of

the officer, and does not discharge the lien of the attachment. In many states, the defendant may retain the property upon executing a bond that the property shall be “ forthcoming” when called for. In this case also the lien of the attachment still continues. Bill v. Western River Co., 3 Metc. Ky. 558; Rutledge v. Corbin, 10 Ohio, St. 478; Paul v. Arnold, 12 Ind. 197; Hyman v. Seaman, 33 Miss. 185; contra Austin v. Burgett, 10 Iowa, 302.

13 A bond to dissolve an attachment under this provision discharges the lien on the property. Schuyler v. Sylvester, 4 Dutch. N. J. 487.

# At common law if the defendant did not appear, the plaintiff could proceed no further in the action, as in criminal cases no trial could be had if the prisoner refused to plead. He might resort to successive attachments or arrests until he overcame the defendant's contumacy, but he could not get judgment without an appearance. By statute 5 Geo. II, c. 27, if the defendant fails to appear, the plaintiff upon affidavit of service of process may enter a common appearance and proceed with the trial. An appearance may be general or special.. A special appearance is made for certain special purposes, as for the purpose of pleading to the jurisdiction, misnomer, want of service of process, or in abatement generally. A general appearance is a waiver of such objections. Lawrence v. Bassett, 5 All. Mass. 140; Brady v. Richardson, 18 Ind. 1; Lowe v. Stringham, 14 Wisc. 222; Frink v. Whicher, 4 Greene, Iowa, 382; Payne v. Farmers' Bank, 29 Conn. 415; Abbott v. Semple, 25 III. 107; Schenley v. Commonwealth, 36 Penn. St. 29. * Filing an answer is an appearance. Hayes v. Shattuck, 21 Cal. 51; or moving for a

[ocr errors]


formality is requisite on the part of the plaintiff to express his appearance ; upon the appearance of the defendant, as above described, both parties are considered as in court. All

persons may appear in person, and there are some classes who cannot appear by attorney, but must appear in person. These are persons who are not sui juris, and therefore have no capacity to appoint an attorney; as, infants, who must appear personally or by guardian ; married women, when sued alone, must appear in person, when sued with their husbands, the husband appoints the attorney for both ; and idiots, who having no capacity to appoint an attorney must

; appear in person, unless they have been placed under the care of a committee; in this last case, the committee may appear for the idiot.

When the defendant appears by attorney, there ought regularly, and there is always supposed to be, a warrant in writing executed by the defendant for that purpose.

The neglect to enter an appearance within four days after the return day, which time is called the quarto die post, will entitle the plaintiff to take a judgment for want of an appearance, unless the rules or the practice of the court have provided some other course.


continuance; Stockdale v. Buckingham, 11 Iowa, 45; filing a demurrer; Knight v. Low, 15 Ind. 374; making a motion in the cause; Tallman v. McCarty, 11 Wisc. 401; but there must be some entry of record; Scott v. Hull, 14 Ind. 136. 46 See before, 2424.


[ocr errors]



2815. General nature of pleadings.
2817. The regular pleadings.
2818. The irregular pleadings.

2819. The declaration.
2820–2827. The general requisites of a declaration.

2821. The declaration must correspond with the writ.

2822. The statement of all the essential facts. 2823–2827. The certainty and truth required.

2824. Certainty as to parties.
2825. Certainty as to time.
2826. Certainty as to place.

2827. Certainty as to the subject matter. 2828–2889. The form and parts of a declaration.

2829. The title of the court and the term.
2830. The venue.

2831. The commencement of the declaration. 2832–2876. The statement of the cause of action. 2833–2860. Statement of the cause of action in assumpsit. 2834-2850. Special counts in assumpsit.

2835. The inducement.
2836. The consideration.

2837. The statement of the contract. 2839-2847. Averments.

2840. General and particular averments.
2842. Material and immaterial averments.

2843. The form of averments. 2844-2847. Averments, when required.

2845. Averment of performance.
2846. Averment of notice.
2847. Averment of a request.
2848. The breach of the contract.

2850. The damages. 2851-2860. The common counts.

2852. The indebitatus assumpsit.
2854. The quantum meruit.
2855. The quantum valebant.
2856. The account stated.
2857. Breach of the common counts.
2858. Money lent.
2859. Money paid..

2860. Money had and received. 2861-2869. The statement of the cause of action in debt. 2862-2868. Form of the statement.

2864. In debt on a simple contract.
2865. In debt on a specialty.
2867. In debt on a record.

« ZurückWeiter »