mentioned. It may be necessary to mention that this affidavit cannot be sworn before the plaintiff's attorney or his clerk. R. G. H. 2 W. 4, s. 3.

In the Queen's Bench.

day of

Between John Nokes, Plaintiff,

and

Joseph Styles, Defendant.

John Dunn, clerk to Henry Smith, of Furnival's Inn, Holborn, in the county of Middlesex, gentleman, attorney for the above-named plaintiff, maketh oath and saith, that he did, on the - instant, personally serve Mr. Joseph Styles the above named defendant with a true copy of a writ of summons, which appeared to this deponent to be regularly issued out of this honourable court, at the suit of the above named plaintiff, against the above named defendant, and bearing date the day of last past. And this deponent further saith, that after having so served the said defendant with the said writ as aforesaid, this deponent, on the day of the said month of did indorse on the said writ the day of the week and month of such service; and which said indorsement is in the words and figures following; that is to say [" served the defendant with a copy of this writ, on Friday the 1842, John Dunn,"] or as the indorsement may be. See ante, p. 108.

Sworn, &c.

day of

The indorsement here mentioned, must be made on the summons, within three days at most after the writ has been served, otherwise the plaintiff shall not be at liberty to enter an appearance for the defendant; and the affidavit of service "shall mention the day on which such indorsement was made." R. G. M. 3, W. 4, s. 3. Where the defendant, on being served with a copy of a writ, snatched the writ itself out of the hands of the person who served him, and kept it, so that this indorsement could not be made the court, upon application, granted a rule nisi for him to deliver up the writ, or, in case of his not doing so, that an appearance should be entered for him without such indorsement or affidavit thereof. Brook v. Edridge, 3 Dowl. 647.

It is only in cases where the defendant has been personally served with a summons, that the plaintiff can thus enter an appearance for him. But where there was some difficulty in making an affidavit of personal service, and the plaintiff proceeded to obtain a rule for a distringas, but before that writ issued, the defendant admitted that he had been served with the summons upon application, Coleridge, J. allowed the plaintiff to enter an appearance for the defendant. Saunders v. De Chastelain, 5 Dowl. 154. Where the defendant entered an appearance, but not in time, and the plaintiff on the day after,

not knowing that an appearance had been already entered, entered an appearance for the defendant, and afterwards filed and gave notice of declaration, signed judgment, gave notice of and executed a writ of inquiry, and then took the defendant in execution on a ca. sa: the defendant then applied to be discharged, on the ground of the plaintiff's irregularity in entering an appearance for the defendant, an appearance being already entered; but it was holden that he was too late in his application; on an affidavit of merits, however, the judgment was set aside upon payment of costs. Strange v. Freeman, 5 Dowl. 407, and see Alsager v. Crisp, 9 Dowl. 353.

In the court of Queen's Bench, formerly, the plaintiff must have entered a common appearance or filed common bail for the defendant, either in the term in which the writ was returnable, or in the next following term; after which he was not allowed to enter or file it; Smith v. Painter, 2 T. R. 719. Bugden v. Burr, 10 B. & C. 457; except in the case of a cognovit. Davis v. Hughes, 7 T. R. 206. And the same in the Common Pleas. And the practice is still the same, except that the day of the service of the writ of summons is now deemed equivalent to the return day of the old process; and that where the writ is served in vacation, the plaintiff it should seem would be allowed to enter an appearance at any time within the second term following. In the Exchequer a common appearance may be entered at any time within four terms. Cook v. Allen, 1 Cr. & M. 350.

After a distringas.] If the defendant have not been served personally, but a distringas have been awarded and executed, then, if he do not enter an appearance within eight days inclusive after the return day of the distringas, the plaintiff may enter an appearance for him. 2 W. 4, c. 39, s. 16, & Sch. No. 3. And it is not necessary, it seems, to produce to the officer an affidavit of the execution of the writ by the sheriff's officer; the sheriff's return is sufficient proof of the levy. Page v. Hemp, 2 Cr. M. & R. 494.

But if the sheriff return non est inventus and nulla bona, and the defendant do not appear within eight days after the return day of the writ, then 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 one of the courts of law at Westminster, 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. 8. As this is an ex parte proceeding, the court require that the affidavit should state specifically the means that have been used to serve and execute the writ, in order that they may judge whether they

were due and proper," Copeland v. Nevill, 5 Nev. & M. 172, 1 Har. & W. 374, Belgay v. Gardner, 2 Dowl. 52, and that they may also be satisfied that after a bonâ fide diligent search by the officer, he could not find the person or goods of the defendant. See Scarborough v. Evans, 2 Dowl. 9. Cornish v. King, Id. 18. Saunderson v. Bourn, 2 Cr. & M. 515. See ante p. 114, 115. If the rule be obtained, you produce it to the officer, as his authority to enter the appearance.

SECTION IV.

Outlawry.

In what cases.] If a defendant cannot be found, so as to be served with process, the plaintiff may proceed to outlawry against him. And where an action ex contractu is against two defendants, one of whom is served with process, and enters an appearance for himself, but refuses to do so for the other, and the other cannot be found, so that he may be served there is no mode of proceeding, excepting outlawry, by which the plaintiff can declare alone against the defendant who has appeared. See Goldsmith v. Levy, 4 Taunt. 299. Solly v. Forbes, 2 Moore, 90. Abbott v. Maitland, 8 Taunt. 187. A peer or member of parliament, however, cannot be outlawed. See Cassidy v. Stewart, 10 Law, J., 57 cp., 9 Dowl. 366.

Process.] Formerly, in order to outlaw a defendant in a civil action, the action must have been commenced by original writ, and followed up by a capias, alias and pluries; and as these writs did not lie in the Exchequer, it was holden that there could be no proceeding to outlawry in that court. Horton V. Peake, 1 Price, 306. See Jones v. Price, 2 Dowl. 42. But now it is not necessary to commence the action in any other than the ordinary manner, by summons, in order to proceed to outlawry; for by the stat. 2 W. 4, c. 39, s. 5, "upon the return of non est inventus and nulla bona as to any defendant, against whom a writ of distringas shall have issued (see ante, p. 114), whether such writ of distringas shall have issued against such defendant only, or against such defendant and any other person or persons, it shall be lawful, until otherwise provided for, to proceed to outlaw or waive such defendant by writs of exigi facias and proclamation, and otherwise, in such and the same manner as may now be lawfully done upon the return of non est inventus to a pluries capias ad respondendum issued after an original writ;" provided that "no such writ of distringas shall be sufficient for the purpose of outlawry or waiver, if the same be returned within less than fifteen days

after the delivery thereof to the sheriff or other officer, to whom the same shall be directed." Care must be taken, therefore, not to rule or call upon the sheriff to return the distringas, until fifteen days at least shall have elapsed from the time the writ was delivered to him; or if there be any likelihood of his voluntarily returning the writ before that time, you should give him notice of your intention to proceed to outlawry, and require him not to do so.

In order to proceed to outlawry, therefore, sue out a writ of summons, as in ordinary cases; and much less endeavours to find the defendant, for the purpose of serving him with it, will be a sufficient ground for application for a distringas in order to proceed to outlawry, than is required in ordinary cases where it is designed to enter an appearance for the defendant. See ante, p. 112; and see Jones v. Price, 2 Dowl. 42. Harding v. Manners, 2 Har. & W. 80. Hewitt v. Milton, 1 Cr. & M. 720. And where a writ of summons alias and pluries had been sued out, returned and entered of record, for the purpose of saving the statute of limitations, it was holden that there was no objection to continuing these writs by a writ of distringas with a view to outlawry. Reay v. Youde, 2 Mees. & W. 188. But where in executing the distringas a notice was left for the defendant that he was distrained upon, in consequence of his not having appeared to the writ of summons, and that in default of his appearance, an appearance would be entered for him: the court held, that after this, the plaintiff could not treat the distringas as a preliminary to outlawry. Vere v. Gowar, 3 Bing. N. C. 503. If, however, there be any mere irregularity in the writ or its indorsements, that will be no ground for setting aside the subsequent outlawry. Lewis v. Davison, 3 Dowl. 272.

Exigi facias.] Upon the distringas returned non est inventus and nulla bona, you may sue out the writ of exigent; see the form in the Appendix. By this writ the sheriff is required to demand the defendant from county court to county court, until he shall be outlawed, if he do not appear, or to take him if he do appear; and in obedience to the writ, the sheriff must exact him at five successive county courts, if so many occur between the time of the delivery of the writ and the return of it. If there be not five courts within that time, the plaintiff must rule the sheriff to return the exigent, and must then sue out an allocatur exigent, which is in the nature of an alias writ, and upon this the sheriff will exact the defendant the number of times that remained deficient under the former writ. See the form of the allocatur exigent, in the Appendix.

By stat. 2 W. 4, c. 39, s. 5, every writ of "exigent, proclamation, and other writ subsequent to the distringas, shall be made returnable upon a day certain in term; and every such first writ of exigent and proclamation shall bear teste on the

day of the return of the distringas, whether such writ be returned in term or vacation; and every subsequent writ of exigent and proclamation, shall bear teste on the day of the return of the next preceding writ." Although the writ of exigent, however, must bear teste on the day of the return of the distringas, it is not necessary that it should be actually sued out on that day; Lewis v. Davison, 2 Dowl. 272, 275; and the like as to the other writs. Where a writ of capias was issued against two defendants, upon which one was arrested, and put in bail; writs of exigent and proclamations were then sued out against both, and a writ of supersedeas was delivered to the sheriff as to the one who had appeared; and the sheriff thereupon proceeded to outlaw the other: the court held this proceeding to be regular. Gent v. Abbott, 2 Moore, 87. See Haigh v. Conway, 15 East, 1.

Under this writ, the sheriff is bound to exact or demand the defendant at five consecutive county courts, if so many occur during the time the writ is in force; see Taylor v. Waters, 3 B. & C. 353; and the writ must be actually in his hands, at the time the defendant is demanded. Volet v. Waters, 3 D. & R. 55. But if five county courts do not occur pending the writ, the sheriff must exact the defendant the remaining times, under the allocatur exigent, as above mentioned. And the quinto exactus must be at least one month after the third proclamation, as hereinafter mentioned, otherwise the outlawry will be altogether void. Taylor v. Waters, supra.

Writ of proclamations.] A writ of proclamations must also issue at the same time as the exigent, whereby, after reciting the writ of exigent, the sheriff is commanded to proclaim the defendant on three several days according to the form of the statute, that he may render himself, &c.; see the form in the Appendix; and by the statute 31 El. c. 3, s. 1, one of these proclamations must be at the county court or hustings, one at the general quarter sessions, and one other of these proclamations shall be made one month at least before the quinto exactus, on a Sunday, by affixing the same, in writing, [“on or near to the doors of all the churches and chapels," 1 Vict. c. 45, s. 2,] of the parish where the defendant was dwelling at the time of the awarding of the exigent. Although in strictness, therefore, the writ of proclamations should be directed to the sheriff of the county where the defendant was then residing, and if not done so, it is a nullity, Rayer v. Cooke, 3 B. & C. 529, yet in practice it is usually directed to the same sheriff to whom the exigent is directed, who then executes and returns both. It is tested and returnable in the same manner as the exigent. Vide supra, & 31 El. c. 3, s. 1. If there be