the court that the defendant keeps out of the way, for the purpose of avoiding being served with the writ of summons; See Price v. Bower, 2 Dowl. 1. Waddington v. Palmer, Id. 7. Simpson v. Lord Graves, Id. 10. Smith v. Hill, Id. 225. Moon v. Thynne, 3 Dowl. 153. Evans v. Fry, 3 Dowl. 581, 1 Har. & W. 185. Houghton v. Howarth, 4 Dowl. 749; and the deponent must add his belief that he does so, Anon. 1 Dowl. 513, unless indeed it appear sufficiently from the circumstances stated that the defendant does keep out of the way. Channing v. Cross, 9 Dowl. 118. If it appear that he is abroad, Fraser v. Case, 1 Dowl. 725. Grover v. Hindman, 7 Dowl. 607. Beverley v. Christie, 10 Law. J. 128, ex., 9 Dowl. 293, or merely that he is absent from home, unless it show that it was for the purpose of avoiding the service or execution of process, see Archer v. Brindley, 9 Dowl. 38, the court will not award the distringas. If however the circumstances thus stated be very strong and convincing of themselves, the court will not be very particular as to the calls or appointments above mentioned. See Johnson v. Disney, 2 Dowl. 400. Hickman v. Dallimore, 4 Dowl. 278, 1 Har. & W. 524. Also, if the distringas be applied for, not for the purpose of compelling an appearance, but for the purpose of proceeding to outlawry, the court will not be very particular as to the calls or appointments, if it appear that several ineffectual attempts have been made to serve the defendant personally with the writ of summons. Jones v. Price, 2 Doul. 42. Hewitt v. Melton,

1 Cr. & M. 720. Harding v. Manners, 2 Har. & W. 30. The application also, or even the search for the appearance, should not be made until after the expiration, of eight days at least from the time of leaving the copy of the writ; for the defendant, if he be willing to obey the writ, has that time given him to do so; Brian v. Stretton, 1 Cr. & M. 74; and the affidavit must state a search after that time, Waugh v. Pry, 7 Dowl. 376, Spence v. Barker, 8 Dowl. 296, and a positive statement that no appearance has been entered. Hocker v. Townsend, 1 Hodg. 204. This application may be made, however, after the writ of summons has expired, Norman v. I ́inter, 5 Bing. N. C. 279. Bromage v. Ray, 9 Dowl. 559, or upon an alias sued out after the first writ of summons had expired. Pearce v. Swain, 7 Mees. & W. 543.

In term time, this application must be made to the court, and they grant a rule absolute in the first instance; in vacation, an order to the like effect may be obtained upon an ex parte application to a judge at chambers. The court will

not set aside a judge's order for a distringas, merely for an alleged insufficiency of the affidavit on which it was granted. Gale v. Winks, 5 Dowl. 348, but see Esdaile v. Marshall, 3 Bing. N. C. 172. Nor will they set aside the distringas, for any mistake

in the copy of the summons left, Tyser v. Brian, 2 Dowl. 640, or because a copy of the summons was not left, Smith v. Macdonald, 1 Dowl. 688, or because the defendant was abroad at the time it was left. White v. Johnson, 1 Gale, 108.

How sued out.] Having drawn up the rule for the distringas, get a blank copy of the writ on parchment, and another on paper, at the stationer's; fill them up and indorse them correctly, vide infra; write out a præcipe also; take these and the rule to the master's office, and the clerk there will sign the writ and file the præcipe; then get the writ sealed; and deliver it, with the copy, at the office of the sheriff, to whom it is directed, and he will cause it to be executed. See a form of

the writ in the Appendix.

Teste and return of the writ.] The writ shall bear teste "on the day of the issuing thereof, whether in term or vacation; and shall be made returnable on some day in term, not being less than fifteen days after the teste thereof." 2 W. 4, c. 39, s. 3, and see Id. s. 12.

How indorsed.] The writ and copy are indorsed in precisely the same manner as the writ of summons. See R. G. H. 2 W. 4, r. 2: R. G. M. 3 W. 4, s. 5. ante p. 103. Gale v. Winks, 5 Dowl. 348, 3 Bing. N. C. 294. The following may be the form: This writ was issued by John Smith, of No. 3, Elm-court, Temple, attorney for the within-named John Nokes.

Or if by an agent: "This writ was issued by John Smith, of No. 3, Elm-court, Temple, attorney, agent for James Walker, of Beverley, in the East Riding of the county of York, attorney for the within-named John Nokes.

Or if by the plaintiff in person: "This writ was issued in person by John Nokes, who resides at," [mention the city, town or parish, and also the name of the hamlet, street, and number of the house of the plaintiff's residence, if any such.]

"The

Further indorsement required on the copy of the writ, by R. G. H. 2 W. 4, r. 2, where the action is for a debt:] plaintiff claims [£30. 10s.] for debt, and [£5. 4s.] for costs; and if the amount thereof be paid to the plaintiff [or his attorney] within four days from the service hereof, further proceedings will be stayed.”

Defects in the writ.] By R. G. M. 3 W. 4, s. 10, "if the plaintiff or his attorney shail omit to insert in, or indorse on any writ or copy thereof, any of the matters required by stat. 2 W. 4, c. 39, to be by him inserted therein or indorsed thereon, such writ or copy shall not on that account be held void, but may be set aside as irregular, upon application to be made to the court out of which the same shall issue, or to any judge." See ante, p. 109. Where there was no indorse

ment of the claim for debt and costs on the distringas or copy, the court set them aside for irregularity, although such indorsement was regularly made upon the writ of summons. Gale v. Winks, 5 Dowl. 348, 3 Bing. N. C. 294. Where the writ was executed on the 30th March, and an application to set it aside for an omission in the indorsement was not made until the 17th April, the court held it to be too late. Wright v. Warren, 2 Dowl. 724. Where a motion to set aside a distringas, for a variance in the name of the defendant between it and the writ of summons, was not made until after eight days from the return of the distringas, the court held that it was too late; as the variance was an irregularity only, and did not render the writ void. Swift v. Wright, 5 Mees. & W. 618, 9 Law, J. 6 ex.

How executed, and proceedings thereon.] The sheriff, in execution of this writ, distrains goods of the defendant to the value of 40s. Besides which, "the writ of distringas and notice, or a copy thereof, shall be served on the defendant, if he can be met with; or if not, shall be left at the place where such distringas shall be executed." 2 W. 4, c. 39, s. 3. Where the copy left contained no date to the teste, Patteson, J. refused to set aside the writ, the latter having been executed on the 28th August, and the application not made until the 10th Nov.; he said that the omission was an irregularity only, and the application therefore too late; if indeed the omission had been in the writ itself, it might have been different. Quilters v. Neely, 9 Dowl. 139.

On or after the return day of the distringas, get the sheriff to return the writ. If he return that he has distrained and levied issues, then, after the expiration of eight days inclusive from the return of the writ, as mentioned in the notice at the foot of the distringas, the plaintiff may enter an appearance for the defendant: and in such a case, it is not necessary to have an affidavit, Page v. Hemp, 4 Dowl. 203, or to obtain the leave of the court, Johnson v. Smealy, 1 Dowl. 526. Tucker v. Brand, 4 Dowl. 411, unless perhaps where less than 40s. have been levied. Jones v. Dyer, 2 Dowl. 445.

But if the sheriff return non est inventus and nulla bona, and the defendant do not appear at or within eight days inclusive after the return of the writ, the plaintiff, if he do not wish to proceed to outlawry, "upon making it appear by affidavit, to the satisfaction of the court out of which the distringas issued, or, in vacation, of any judge of either of the said courts, that due and proper means were taken and used, to serve and execute such writ of distringas, may have leave to enter an appearance for the defendant, and to proceed thereon to judgment and execution." 2 W. 4, c. 39, s. 3. The sheriff's officer, who had the execution of the writ, must make affidavit there

fore of the means he took and used to serve and execute the same. Waite v. Cook, 9 Dowl. 139. Merely, stating, generally, that due diligence had been used to execute the writ, but that no residence or property of the defendant could be found, Saunderson v. Bourn, 2 Dowl. 338, or that he was informed that the defendant had assigned his property, Balgay v. Gardner, 2 Dowl. 52, or that he was told that the defendant lived in furnished lodgings, and that there was nothing there of his to take, Cornish v. King, 2 Doul. 18, but see Thompson v. Furney, Doul. 344, without stating specifically the particular means used by him to effect the execution of the writ or service, have been holden insufficient; the means must be stated, before the court can be satisfied that they were due and proper. See Copeland v. Nevill, 4 Dowl. 51. And where the officer who had the execution of the writ died, and the motion was made upon an affidavit of what he had stated as to his endeavours to execute the writ, Littledale, J. refused to receive it, saying that he could not act upon hearsay evidence. Daniels v. Varity, 3 Dowl. 26. Where the affidavit stated three attempts to execute the writ at the defendant's "present or late place of abode," without negativing deponent's knowledge of any other place of abode, it was holden insufficient. Scarborough v. Evans, 2 Dowl. 9. But where the officer swore that at three different times when he went to the defendant's house to execute the writ, the doors were barricaded against him, and on one occasion a servant from a window told him he knew the object of his coming; and the officer, not being able to obtain entrance, fixed a copy of the writ on the door: this was holden sufficient. Tring v. Gooding, 2 Dowl. 162, see Whishaw v. Brown, 9 Dowl. 123 S. P. So, where the defendant was a lunatic, and his keeper refused to allow him to be seen, so that he could not be served with a copy of the distringas: the court allowed the plaintiff to enter an appearance for him. Starkie v. Skilback, 6 Dowl. 52.

SECTION III.

Appearance.

An appearance is entered, by taking to the proper officer in the master's office a memorandum on plain paper, in one of the following forms; See 2 W. 4, c. 39, sch. No. 2.; which memorandum must be dated on the day it is delivered. 2 W. 4, c. 39, s. 2.

Where the defendant appears in person :

John Nokes, plaintiff,

against

The defendant, Joseph Styles,

appears in

Joseph Styles, [and others.]

person.

Where the defendant appears by attorney :

John Nokes, plaintiff,

{

E. F. attorney for Joseph Styles,

appears for him.

Where the plaintiff appears for the defendant.

Joseph Nokes, plaintiff,

G. H. attorney for the plaintiff, appears for the defendant, Joseph Styles, according to the

statute.

If the appearance be not in one or other of the first two of these forms, the plaintiff may treat it as a nullity, and enter an appearance for the defendant. Warren v. Love, 7

Dowl. 602.

If there be any defect in this memorandum, when filed, the party should move to amend it; if instead of doing so, he enter a fresh appearance, it will be irregular. Bate v. Bolton, 2 C. M. & R. 365.

If an attorney undertake to appear for the defendant, the court will compel him to do so, R. M. 1654, s. 10, whether the undertaking be merely verbal, Anon. 2 Chit. 36, or in writing. See Anon. 1 Chit. 201 (a). Morris v. James, 6 Dowl. 514. And he must enter it within the time limited for that R. G. T. 2, W. 4, s. 31, vide infra.

purpose.

By defendant.] If the defendant be served personally with the copy of a writ of summons, he must enter an appearance within 8 days after service, inclusive of the day of the service; otherwise the plaintiff may enter an appearance for him, and proceed in the action. 2 W. 4, c. 39, s. 16, & sch. No. 1. See Willett v. Wilson, 2 Cromp. & J. 356. And his appearance will be good, although the writ of summons may have then expired. Richardson v. Daley et al., 7 Dowl. 25. If he enter the appearance within the time above limited, the plaintiff is not obliged to wait until the 8 days have expired, to declare against him, but he may declare immediately. Morris v. Smith, 1 Gale, 187.

By appearing, the defendant waives all irregularity in the process. Humble v. Bland, 6 T. R. 255. Anon. 1 Chit. 129 (a).

By plaintiff for defendant.] If the defendant have been personally served, and do not enter an appearance within the time limited for that purpose, as above mentioned, the plaintiff may enter it for him. Vide supra. For this purpose, an affidavit of the service of the writ, in the form following, must be made, and filed with the officer, at the same time you deliver to him a memorandum of the appearance, as above