lxxxvi PRINCE GEORGES COUNTY

In addition, it should be noted that a 1696 act (An Act Relating to Bayle to be
taken by the Sheriffs in actions of Trespass upon the Case) made it advisable to
serve the declaration with the capias in actions of trespass on the case if sub-
stantial bail below was desired. This act provided that in all actions of trespass on
the case where damages were laid in excess of four thousand pounds of tobacco
a copy of the declaration expressing the true cause of action was to be sent with
the writ and left with defendant so that friends of the party arrested who were
willing to be bail for him might know the basis of the action. If such copy was not
so delivered and left with defendant, the sheriff or any other officer having au-
thority to serve such writ was not to require a bail bond of defendant above the
sum of eight thousand pounds of tobacco, although damages were laid in the
writ for a greater sum. From the recital in this act it appears that many litigious
persons, commencing actions of trespass on the case out of spite and malice, rather
than for just cause, did not set out the cause of the action in the "original writ" and
yet laid damages to a vast sum in order to deter defendant's friends from becoming
his bail—the cause of action not appearing.15

In a scattering of cases the defendant, at the "Appearance Court," instead of
entering an appearance and imparling, appeared in person and in effect confessed
judgment for the amount sued for.

Attachment

The manner of proceeding upon attachments during the period was regulated by
a 1692 act entitled "An Act limitting the Extent of Attachments and providing
what shall be levyed on Attachments and Executions." 16 The statute did not limit
the use of attachment to any particular form of action and in practice it was used
in both actions of debt and trespass on the case. Under this law, a statutory form
of foreign attachment, no attachment was to issue out of any court before a writ or
summons was made out. If the defendant was an inhabitant or resided within the
province, and the sheriff returned such writ or summons non est inventus, a second
writ or summons had to issue and be so returned before any attachment might
issue. In the case of a person absent from the province, before any attachment might
issue, it was necessary that a writ or summons be returned non est inventus by the
sheriff; that a copy of the declaration or a short note expressing the true cause
of action be left by plaintiff with defendant's attorney, or, if he had left none, at
the house where defendant last resided or dwelt; and that plaintiff make such proof
of his action as the respective courts should think fit. If these conditions were satis-
fied, it was lawful for the justices of the respective courts to award an attachment
against the goods, chattels and credits of the absent defendant in the possession
of any person or persons, including plaintiff.

The statute further provided that any attachment awarded contain a command
to the sheriff, at the time of executing the attachment, to notify each person or
persons in whose possession the goods, chattels and credits were attached to appear
the day of the return of the attachment to show cause, if any, why such goods,
chattels and credits should not be condemned and execution had thereupon as in
other cases of recoveries or judgments given in courts of record. If upon the return
day, the defendant or the garnishee in whose hands the goods, chattels and credits
were attached did not appear to show cause to the contrary, the respective courts
were to condemn the goods, chattels and credits so attached and award execution
thereon to be had and made either by capias ad satisfaciendum, scire facias, or

15. 38 MA 94. This law was repealed in July 1699. 22 id. 558.

16. 13 id. 522.