nizance(a), before any of the judges out of court, upon notice of the names of the persons and their places of abode being given, that the same may be excepted to; and the plaintiff has fourteen days for that purpose (b). In case of exception, the bail must justify, on oath, in court, or before a judge, within four days after notice (c) of such exception; which is entered in the secretary's book, with the names of the bail given. If bail is put in after process, and before judgment on the bail-bond, it will not be discharged without payment of costs; provided, however, if more actions than one are brought thereon, the costs of one action only will be allowed, except in cases where the whole cannot be included in one. Bail may surrender their principal at any time before judgment is obtained on the bail-bond. This is done by delivering the defendant to the marshal at his office; and, on an affidavit (d) of the surrender being made, and filed with the secretary, who makes an entry thereof in his book, the bail are discharged (e). This surrender may be made

on a Sunday (f).

No process can issue on the recognizance of

(a) App. No. VIII.

(c) App. Nos. V. VII. (f) Sect. 80.

(b) Sect. 8, 9.

(d) App. No. IX. (e) Sect. 10.

bail, until an execution is returned against the defendant that he is not found (a).

If the defendant remains in the actual custody of the marshal, a declaration must be filed within four days after the return of the writ; and the cause stands for trial at the next court after the arrest, unless sufficient grounds are shown to the court for postponing it (b). Where a party is arrested after a court-day, but before an entering-day, and gives bail to the marshal, conditioned for his appearance on the court-day, it is advisable to file a declaration on the entering-day, conditionally until special bail be put in, as a month's time is thereby saved.

(a) Sect. 9. Same rule, Tidd, 1109. Form of Scire Facias. Tidd's Forms, 411. Declaration in debt on the recognizance, 2 Chitty, 177. This action may be commenced on the return-day. 8 T. R. 628.

(b) R. 30,

SECTION III.

On the Proceedings on Attachment.

WHEN the plaintiff has issued a summons or a capias, and delivered it to the marshal, or filed a declaration in the secretary's office, he may attach debts due to any defendant, except executors and administrators, in the hands of any debtor, by making an affidavit (a) of the sum due to him before a judge, filing it in the secretary's office, and serving an office copy on the debtor, with a notice signed by counsel, attaching all monies then due, not exceeding the sum sworn to, with interest, and 251. for costs, if the sum be upwards of 100l., or 50l. for 500l., and 1007. for 1000l.; but a plaintiff cannot attach his debt in the hands of more than three debtors, nor for more than double the sum sworn to(b). On the attachment being served, the debtor is bound to retain in his hands the sum attached, until the determination of the action; and if he pay it to the defendant, he becomes individually responsible for the amount. It is likewise a bar to the creditor suing for his (b) App. No. XI.

(a) V. 2. p. 22. sect. 38.

debt as long as the action is depending (a). It is settled by a subsequent act, that the person obtaining the first final judgment against the defendant, shall have the priority of payment, and not the person serving the first notice of attachment (b), provided such judgment be not obtained under warrant of attorney after attachment served (c).

As soon as judgment is obtained, a summons (d) to the debtor is granted by a judge; which, with a copy of interrogatories (e) touching his debt due to the defendant, and signed by counsel, is served on him four days before his examination before the judge, when his debt is ascertained. In settling which, mutual credit is to be allowed between the debtor and the defendant; whereupon the judge makes an order (ƒ) for the payment of the balance to the plaintiff, within forty days after it is so found due, the copy of the judgment or execution. against the defendant being first produced to

(a) Sect. 41.

(6) This is contrary to the maxim of vigilantibus non dormientibus leges inserviunt: it must be deemed a hard case when an active creditor, after incurring the labour and expense of an attachment, finds a prior judgment creditor entitled to the effects of his industry.

(c) Vol. ii. p. 77. (d) App. No. XII.
(f) App. No. XIV.

(e) App. No. XIII.

him. And, in case it be not paid, an execution, reciting the substance of the former execution, may be issued against the debtor, his goods, chattels, slaves, lands, tenements, hereditaments, rent-charges, and annuities; but not against the debtor's debts, to be proceeded in as in other cases (a). If the debtor refuse to attend, upon due proof of the service of the notice, he may be committed for contempt, and be detained until he conform and be examined, or confess there is sufficient owing by him to satisfy the judgment, or state upon oath how much he actually did owe at the time of the notice. Also a copy of the same notice is served on the defendant four days before the examination of the debtor; when he is required to attend, and deliver to the judge any specialty, bill, note, or order, whereby the debtor is indebted to the defendant, which the judge lodges in the secretary's office with all convenient speed (b), that the plaintiff may have access thereto. If the debt be a book-debt, the defendant is required to answer interrogatories touching the same, and to deliver an account, with the names of his witnesses, to prove the same to the judge; who, at the plaintiff's request, will deliver the same to him for the pur(b) Sect. 42. App. No. XIV.

(a) Sect. 39, 40, 41.