son, 1 Cr. M. & R. 438. Where there was a mistake in the direction, "Middesex" for "Middlesex," Parke, B. seemed to think it immaterial, as it could not mislead; Colston v. Berens, 3 Dowl. 253; but in a previous case, where the same mistake occurred in the copy of a capias which was served upon an arrest, the court of Queen's Bench discharged the defendant, upon entering a common appearance. Hodgkinson v. Hodgkinson, 2 Dowl. 535, 3 Nev. & M. 564. There are some districts in England, which, although parcel of one county, are situated within and surrounded by some other county; a writ intended to be executed in such a place, may be directed to the sheriff of either county. 2 W. 4, c. 39, s. 20.

London has two sheriffs, and a capias to them must be directed accordingly; where it was directed to the sheriff of London, the court set it aside for irregularity, and discharged the defendant out of custody. Barker v. Weedon, 2 Dowl. 707. Nichol v. Boyne, id. 761. And see Irving v. Heaton, 4 Dowl. Clutterbuck v. Wiseman, 2 Cromp. & J. 213.

638.

The cities of Bristol, Coventry, Gloucester, Lincoln, Norwich, and York, and the town of Nottingham, formerly had two sheriffs each; the cities of Canterbury, Exeter, and Worcester, the city of Lichfield, and county of the same city, the town and county of Kingston-upon-Hull, the town and county of Newcastle-upon-Tyne, the town and county of Poole, and the town and county of Southampton, had but one each. But by the Municipal Reform Act, 5 & 6 W. 4, c. 76, s. 61, it is enacted, "that in the city of Oxford, in the town of Berwickupon-Tweed, and in the counties of the cities of Bristol, Canterbury, Chester, Coventry, Exeter, Gloucester, Lichfield, Lincoln, Norwich, Worcester, and York, and in the counties of the towns of Carmarthen, Haverfordwest, Kingston-upon-Hull, Newcastle-upon-Tyne, Nottingham, Poole, and Southampton, the council shall, on the first day of November in every year, appoint a fit person to execute the office of sheriff, with the like duties and powers as the sheriff or the person filling the office of sheriff in the said town and counties respectively would have had if this act had not passed." In the city of Oxford, before this act, the office of sheriff was executed by two bailiffs, but they had not the return of writs issued from the courts at Westminster, those writs being always directed to the sheriff of the county; and since the act, it has been holden, upon the latter words of the above section, that writs, intended to be executed in the city of Oxford, must still be directed to the sheriff of the county, although a sheriff is now appointed for the city. Grainger v. Taunton, 3 Bing. N. C.64. So, if the writ is to be executed within a liberty or franchise, it must be directed to the sheriff of the county in which such liberty, &c. is situate. And therefore a writ, to be executed in the borough of Southwark, must be directed to the sheriff

of Surrey; Bowring v. Pritchard, 14 East, 289; a writ, to be executed in the Isle of Ely, must be directed to the sheriff of Cambridgeshire. Grant v. Bagge, 3 East, 128.

A capias to the county Palatine of Lancaster, is directed "to the chancellor of our county Palatine of Lancaster or his deputy there ;" and requires him by writ under the seal of the county Palatine, to command the sheriff to take the defendant, &c. See the form, R. G. M. 3 W. 4, r. 2. To the county Palatine of Durham, the writ is directed "to the Reverend father in God, by divine providence, lord bishop of Durham, or to his chancellor there," and commands that by writ under the seal of the bishopric, directed to the sheriff of the county, he cause the sheriff to be commanded to take, &c. See the form in the Appendix; and see Bracebridge v. Johnson, 1 Brod. & B. 12. And it may now issue for any sum amounting to 201. or upwards, although formerly an arrest in a county Palatine, under mesne process from the courts at Westminster, for a debt under 50l., was prohibited by stat. 7 & 8 G. 4, c. 71, s. 7, Brown v. M'Millan, 7 Mees. & W. 196.

If one of two sheriffs be interested in the matter of suit, the writ must be directed to the other; Letsom v. Birkley, 5 M. & S. 144; but if both, or where there is but one, if that one be interested, the writ must be directed "to the coroners of our county of -;" and if the coroners also be interested, then to Elisors. See the Mayor of Norwich v. Gill, 8 Bing. 27. Where a writ is thus directed to the coroner, &c., it is not necessary that it should state upon the face of it the reason for its being so directed. Bastard v. Gutch, 1 Har. & W. 321.

Teste and duration of the writ.] The capias must "bear date on the day on which the same shall be issued," 2 & 3 Vict. c. 110, s. 3, and "shall be tested in the name of the lord chief justice or lord chief baron of the court from which the same shall issue, or in case of a vacancy of such office, then in the name of a senior puisne judge of the said court." 2 W. 4, c. 39, s. 12. See Anon. 1 Dowl. 654. Wakeling v. Watson, 1 Cromp. & J. 467.

The writ is in force for one calendar month only, after the date of it, not including the day of the date; 2 & 3 Vict. c. 110, s. 4; at least, the statute requires the arrest to be within that time. Id. Vide post.

Parties.] Care must be taken that the writ correspond with the affidavit to hold to bail, in the names and numbers of the parties, plaintiffs and defendants: for if there be any material variance in this respect, so that the affidavit will not warrant the writ, the court upon application will discharge the defen

dant, or order the bail-bond to be delivered up to be cancelled, on entering a cominon appearance. So the writ must include all those as defendants, and only those against whom you intend to declare: you cannot have a writ against two, and declare against one; Holland v. Johnson, 4 T. R. 695. Carson v. Dowling, 1 Har. & W. 507, 4 Dowl. 297; nor one writ against some of the defendants, and another against the others; R. G. M. 3 W. 4, r. 1; otherwise the court will set aside the declaration for irregularity, there being no process to warrant it.

Care must be taken, in inserting the defendant's name, to state it correctly. If the christian name be omitted, Tomlin v. Preston, 1 Chit. 397, or if the defendant have two christian names, and one of them be omitted, Arbouin v. Willoughby, 1 Marsh. 477, the court will set aside the writ for irregularity, and order the defendant to be discharged, or the bail bond delivered up to be cancelled, unless the irregularity have been waived by some act of the defendant. See Kingston v. Llewellyn, 1 Brod. & B. 529. Walker v. Willoughby, 6 Taunt. 530. So, if merely the initial of the christian name be inserted, the court will interfere in the same manner; ante, p. 142; unless the action be upon a bill of exchange, promissory note, or other written instrument, in which the christian or first name of the defendant is designated by an initial or contraction, in which case the same designation will be sufficient in the process. 3 & 4 W. 4, c. 42, s. 12, ante, p. 142. So if the christian name be mistaken, the court will discharge the defendant, or order the bail-bond to be delivered up to be cancelled; Ladbrook v. Phillips, 1 Har. & W. 109, ante, p. 142; and the same, it should seem, if there be a mistake in the surname; see Finch v. Cocken, 1 Gale, 130; unless it appear that he at the same time passed by the name in which he is sued. See Walker v. Willoughby, 6 Taunt. 530. Price v. Harwood, 3 Camp. 108. But by R. G. H. 2 W. 4, s. 32, in all cases "where the defendant is described in the process or affidavit to hold to bail, by initials, or by a wrong name, or without a christian name, the defendant shall not be discharged out of custody, or the bail bond delivered up to be cancelled, on motion for the purpose, if it shall appear to the court that due diligence has been used to obtain knowledge of the proper name.' e." See ante, p. 143. Also if the name used be idem sonans with the real name, the court will not interfere. Webb v. Lawrence, 2 Dowl. 81. In moving for a rule in any of these cases, the affidavit must be intituled in the right name, as John Fox, sued by the name of James Fox,John Robinson, sued by the name of J. Robinson,-James Cocken, sued by the name of James Cocker,-or the like. Shaw v. Robinson, 8 D. & R. 423. Finch v. Cocker, 2 Dowl.

But a misnomer of the plaintiff cannot be taken advantage of in this way; Morley v. Law, 2 Brod. & B. 34; nor is it matter of objection at the trial. Broughton v. Frere, 3 Camp. 29. Formerly, besides the name, some description must have been given of the defendant or his place of abode, in order to assist the sheriff or his officer in finding him. In the form of the capias given in stat. 2 W. 4, c. 39, the defendant is described as Joseph Styles of· ," evidently intimating But in the form given

that some description must be given. in the schedule to the present statute (2 & 3 Vict. c. 110,) "of -" is omitted, and the defendant described as C. D. only; and therefore it should seem that any addition would now be unnecessary.

Cause of action, &c.] The form of the capias given in the statute, describes the cause of action, as "In an action on promises, or of debt, &c." And the court require the action to be described as here mentioned: where it was "an action of trespass on the case upon promises," the court held it irregular; but as the application to set it aside was not made in time, they refused to interfere. Gurney v. Hopkinson, 3 Dowl. 189, and see King v. Skeffington, 1 Dowl. 686.

Care must be taken that in the description of the action also, the writ correspond with the affidavit to hold to bail; otherwise, the court, upon application, will discharge the defendant out of custody, or order the bail bond to be delivered up to be cancelled, upon entering a common appearance. Also, care should be taken that the form of action mentioned in the writ, be that for which you intend to declare for although a variance between the declaration and writ in this respect will not affect the writ, or discharge the bail, it being an irregularity in the declaration only, Ward v. Tummon, 4 Nev. & M. 876. See Addis v. Jones, 3 Dowl. 164. Edwards v. Dignam, 2 Dowl. 240, yet the court will set aside the declaration. Ward v. Tummon, supra.

Trifling omissions, &c., in the body of the writ, however, which do not alter the sense, have usually been holden to be immaterial. See Sutton v. Burgess, 3 Dowl. 489, 1 Gale, 17. Pocock v. Mason, 1 Bing. N. C. 245, 3 Dowl. 104. Bridgman V. Curgenven, 3 Dowl. 1.

How indorsed.] There are three several indorsements required upon a capias: 1st, as to the sum sworn to; 2d, as to the name and address of the attorney or person issuing it; 3dly, as to the amount of the plaintiff's claim for debt and costs as in the forms, in italics, infra.

"Bail for pounds, by order of · -"[naming the judge making the order] "dated this day of -" This indorsement is required by stat. 2 & 3 Vict. c. 110. sch. No. 1.

"This writ was issued by E. F. of· attorney for the plaintiff [or plaintiffs] within named." Or, "This writ was issued in person by the plaintiff within named, 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 there be]. The form of this indorsement is given by stat. 2 & 3 Vict. c. 110, sch. No. 1. Where two or more attornies are in partnership, it is sufficient to indorse the name of the firm, without giving the christian names; Pickman v. Collis, 3 Dowl. 429; even where an attorney carried on business in the name of a firm, it was holden sufficient for him to indorse the name of the firm. Hartley v. Rodenhurst, 4 Dowl. 748. As to the residence: "Gray's Inn square, London," has been holden sufficient, even although Gray's Inn be not in London; King v. Monkhouse, 2 Dowl. 221; so, "Gray's Inn, London," has been deemed sufficient. Engleheart v. Eyre, 2 Dowl. 145. But "Southampton Buildings," without more, has been holden insufficient. Rust v. Chine, 3 Dowl. 565. And where the indorsement on the writ was "Old Jewry, London," but on the copy "London" was omitted, it was holden bad. Smith v. Pennell, 2 Dowl. 654.

If the writ be sued out by a London agent for a country attorney, "the name and place of abode of such country attorney shall also be indorsed upon the writ." R. G. M. 3 W. 4, s. 9. The indorsement then may be thus: This writ was issued by John Smith, of No. 3, Elm Court, Temple, agent for James Walker, of Beverley in the East Riding of the county f York, attorney for the plaintiff within named. But if the plaintiff be an attorney, and the writ be in fact sued out by his agent, the indorsement must not describe the latter as agent, but as attorney, for the plaintiff; where it described him as agent, the court upon motion set aside the capias for irregularity. Lloyd v. Jones, 1 Mees. & W. 549.

If there be no indorsement of the name, &c., of the attorney, on the writ or copy, the court will set it aside for irregularity, and discharge the defendant, or order the bail bond to be delivered up to be cancelled. Where the name of an attorney, who was not an attorney of the court, was indorsed, the court stayed the proceedings until the name of some other attorney should be substituted, and ordered the attorney whose name was indorsed to pay the costs of the application. Constable v. Johnson, 1 Cromp. & M. 38.

By stat. 2 W. 4, c. 39, s. 17, upon demand in writing, the attorney whose name shall be so indorsed on the writ, shall declare whether it was done with his authority or privity; see ante, tit. Attorney ;" and by R. G. M. 3 W. 4, s. 14, if he declare that the writ was not issued by him, or with his authority or privity, "all proceedings upon the same shall