Page:United States Reports, Volume 1.djvu/522

Rh  it muft be fhewn in has verba upon demurrer.

Whenever a writ iffues fairly, if delivered firft, it fhall take preference.

The proceedings on a ''Hab. Corp. are de novo ; but on a Certiorari''  the Court proceed on the ftate returned.

''Fi. ƒa'' iffued n a Judgment in the Bail Bond fuit ; proceedings were ftayed on affidavit of a defence, pleading iffueably in the original action, and confending that the judgment on the Bail Bond fhould remain as a fecurity.

To entitle the Plaintiff to judgment by default, the fervice of a fummons on the pe ʃon of the Defendant, as well as if left at his houfe, muft be ten days before the return.

On affidavit that material witneffes for the Defendant (who was in confinement) were about to leave the ftate, the Court granted  a rule to take their Depofition, though the writ was not returnable till next term.

An Attorney's agreement to refer binds his client

The Defendant, by miftake of his attorney, had notice of trial for the 17th inftead of the 13th, judgment was entered by non ʃum inƒormutus : but afterwards, on proof of the miftake, the judgment was opened.

Although the words that “ the Defendant has not been reʃident in the ftate for twelve months before the writ iffued,” are inferted in an affidavit to found a Capias  againft a Free-holder, yet the Court will enquire into the circumftances of the cafe, and relieve him from arreft, if they think he was intended by the act to be exempted.

A third perfon fully acquainted with the circumftances, is admiffible to make the affidavit of a defence, when the party himfelf, from extreme ficknefs, is incapable of making it.

Auditors fhall be appointed only where there is a difpute about the depreciation.

The Plaintiff, after ftating the want of a material witnefs, who had been ʃubpœna'd put off the trial ; but the Court, notwithftanding, granted the Defendant a rule for trial next term or Non Pros.

It is an invariable rule not to appoint referees, but in the prefence of both parties.

The Court will grant a rule to take the Depofitions of going witneffes, de bono eʃʃe, believe the return of the writ.

A cafe in Term Reports, being a determination upon general mercantile law, is of authority here.

After Judgment has been regularly entered in a Foreign Attachment, it is too late to move to quafh it.

On an appeal from the determination of the Regulators of Party Walls, &c. a feigned iffue can only decide, whether the Regulators have done right or note ; it cannot decide the title and finally fettle the matter ; and, therefore, it is propert to try the queftion by Ejectment.

The privilege of a Freeholder to be fued by fummons, extends to actions of Trefpafe vi et armis.

The rule is, that unlefs exceptions to the Report of Raferees are filed within four days, the judgment niʃs becomes abfolute.

A Diʃtringas will ly againft a Sheriff while in oƒƒice, upon a return of levied to the value, &c. but, under particular circumftances, it would be hard to iffue it, without moving the Court.

The Venire was laid in Philadelphia  county, and jdugments being there obtained, execution was immediately iffued into Bucks ;  but upon motion the writ was quafhed, the Court being of opinion, that the Plaintiff ought to have proceeded by Teʃtatum.

On a rule for trial non pros, the non pros muft be moved for in Court ; it cannot be figned in the Prothonotary's office.

A Capias will not ly againft a Freeholder, although the attorney directs his appearance to be accepted.

Rule to refer and report to next term ; after the next term, the Referees were changed by confent, and report returnable into oƒƒice : Determined that the rule to report to next term was expired by its own limitation.

On motion, and pofitive affidavit of the debt at the firft term, a fhallop attached under a Foreign Attachment, was ordered to be fold, as a perifhable commodity.