tody or not, and upon whose application the order is required. In the Exchequer, this is now required by R. Ex. M. 1 W. 4, s. 12, 13.

SECTION IX.

Proceedings against traders subject to the bankrupt laws.

In consequence of imprisonment for debt upon mesne process, being in most cases abolished, as has been already stated, it became necessary to substitute some clause for that section of the bankrupt act (6 G. 4, c. 16, s. 5), by which a trader was deemed to have committed an act of bankruptcy, if he lay in prison for 21 days after an arrest or detainer for debt. It has accordingly been enacted that "if any single creditor, or any two or more creditors being partners, whose debt shall amount to 1007. or upwards, or any two creditors whose debts shall amount to 150l. or upwards, or any three or more creditors whose debts shall amount to 2001. or upwards, of any trader within the meaning of the laws now in force respecting bankrupts, shall file an affidavit or affidavits in Her Majesty's courts of bankruptcy, that such debt or debts is sor are justly due to him or them respectively, and that such debtor, as he or they verily believe, is such trader as aforesaid, and shall cause him to be served personally with a copy of such affidavit or affidavits, and with a notice in writing, requiring the immediate payment of such debt or debts; and if such trader shall not, within 21 days after personal service of such affidavit or affidavits and notice, pay such debt or debts, or secure or compound for the same to the satisfaction of such creditor or creditors, or enter into a bond, in such sum and with such two sufficient sureties as a commissioner of the court of bankruptcy shall approve of, to pay such sum or sums as shall be recovered in any action or actions which shall have been brought or shall thereafter be brought for the recovery of the same, together with such costs as shall be given in the same, or to render himself to the custody of the gaoler of the court in which such action shall have been or may be brought, according to the practice of such court, or within such time and in such manner as the said court or any judge thereof shall direct, after judgment shall have been recovered in such action, every such trader shall be deemed to have committed an act of bankruptcy on the 22d day after service of such affidavit or affidavits and notice, provided a fiat in bankruptcy shall issue against such trader, within two calendar months from the filing of such affidavit or affidavits, but not otherwise. 1 Vict. c. 110, s. 8.

Affidavit.] The act makes no mention of the person, before whom the affidavit is to be sworn; but if it is to be implied

from the words of the act, as above given, that it shall be sworn in the same manner as the affidavit of a petitioning creditor in ordinary cases of bankruptcy, that is to say, before a master in chancery in town, or a master extraordinary in chancery in the country. And indeed it has since been so decided. The following may be the form : A. B. of — street in the city of London, merchant, maketh oath and saith, that G. H. of - street in the said city of London, grocer, is justly and truly indebted unto him this deponent [and to C. D. his partner] in the sum of· pounds and upwards; and the said A. B. saith that he verily believes that the said G. H. is a trader within the meaning of the laws now in force respecting bankrupts.

of

The sum mentioned in this affidavit, should be about the sum actually due, as in ordinary affidavits to hold to bail, and not merely the exact sum required by the statute “and upwards," as in the usual affidavit of a petitioning creditor. If the affidavit be made by two or more creditors, it may be thus: A. B. of merchant, C. D. of - grocer, and E. F. carpenter, severally make oath and say, and first this deponent A. B. for himself saith that G. H. of , grocer, is justly and truly indebted unto him this deponent in the sum of ; and this other deponent C. D. for himself saith that the said G. H. is justly and truly indebted unto him this deponent in the sum of ·; and this other deponent E. F. for himself saith that the said G. H. is justly and truly indebted unto him this deponent in the sum of - ; and these several deponents severally further say, that they verily believe that the said G. H. is a trader within the meaning of the laws now in force respecting bankrupts.

take

Notice.] The notice may be in this form: Mr. notice that I have this day filed in Her Majesty's court of bankruptcy, an affidavit of the debt due from you to me, a copy of which is hereunto annexed, and I hereby require you immediately to pay me the said debt amounting to. Dated, &c.

Bond, how discharged.] The bond being in the alternative, to pay or render, the sureties may get rid of their liability by rendering the defendant, in the same manner as bail to the action may do. This render may be either according to the practice of the court in other cases, or within such time, and in such manner, as the court or a judge thereof shall direct, after judgment shall have been recovered in the action. These words "after judgment," &c., refer to the latter mode merely and therefore a render according to the practice of the court, may be before judgment, Owston v. Coates, 10, Ad. & El. 193, 8 Law. J. 201 gb., and the court will allow of it, even although the condition of the bond may not have been in exact conformity with the statute. Saunderson et al. v. Parker.

10 Law, J. 236 qb. Notice of the render must of course be given; but it is not necessary to make an affidavit of the service of it. Id.

So, if the bond be in any other manner satisfied, the court upon application will order it to be delivered up to be cancelled. Wilson v. Firth, 10 Law J. 292 qb. per Coleridge J.

SECTION X.

Removal of causes from inferior courts.

1. Before judgment.

In what cases.] It is not intended here to treat of the removal of a replevin cause from an inferior court; that will be fully considered when we come to treat of the action of replevin. We shall confine our attention here, to the removal of causes by writ of certiorari, into the superior courts, for the purpose of proceeding in them there to judgment and execution. Formerly, a habeas corpus lay, to remove proceedings from an inferior court, where the defendant was actually or virtually in the custody of the court below; see Mitchell v. Mitchison, 1 B. & C. 513. Palmer v. Forsyth, 4 B. & C. 401; but as a defendant cannot now be holden to bail in an inferior court, it follows that the cause can no longer be removed by habeas, but must be removed, if at all, by certiorari. Even ejectment, brought in an inferior court, is properly removable by this writ. Doe v. Dring, 1 B. & C. 253. Patterson v. Eades, 3 B. & C. 550. But the court will not grant it to the courts of the counties palatine, and formerly not to the courts of great session in Wales, unless upon special cause, and under particular circumstances. Zinc v. Langton, 2 Doug. 749. Williams v. Thomas, 2 Doug. 751 n. Pickering v. Bp. of Chester 6 D. & R. 489. Jones v. Davies, 1 B. & C. 143. Paterson v. Reay, 2 D. & R. 177. In all other cases it is grantable as a matter of course, Landens v. Shiel, 3 Dowl. 90, where the inferior court is a court of record. See Edwards v. Bowen, 7 D. & R. 709, 5 B. & C. 206.

In what cases not.] In cases where the certiorari is taken away by the express words of a statute, of course the proceedings cannot be removed. See Fox v. Veale, 8 Mees. & W. 126.

If the steward or judge of the inferior court be a barrister of three years' standing, and the debt or damages laid or thing demanded in the declaration do not amount to 51., the cause shall not be removed. 21 J. 1, c. 23, s. 4, 6. See Franks v. Quinsee, 7 Dowl. 607.

VOL. I.

It cannot be removed after final judgment, except for the purpose of suing out a fi. fa. or ca. sa. out of the jurisdiction of the inferior court, and which we shall consider presently. Walker v. Gann, 7 D. & R. 769; and see Paterson v. Reay, 2 D. & R. 177. By stat. 42 El. c. 5, the writ must be delivered to the court below, before any of the jury are sworn; see Landens v. Sheil, 3 Dowl. 90; and by stat. 21 J. 1, c. 23, s. 2, before issue or demurrer joined, if it be joined within six weeks after the arrest or appearance of the defendant: otherwise the cause shall not be removed. See Laverack v. Bill, 6 Dowl. 111, S. C. nom. Laverack v. Bean, 3 Mees. & W. 62. In one case it is laid down that a cause cannot be removed after judgment by default; Wyatt v. Markham, Barnes, 221; but in two other cases, where the cause was removed even after notice of inquiry, but before inquiry, the court refused to send it back by procedendo. Cox v. Hart, 2 Burr. 758. Godley v. Marsden, 6 Bing. 433. At all events, it is too late to remove it, after a writ of inquiry has been executed. Smith v. Stocking, 1 Har. & W. 194.

Also, where the cause of action does not amount to 201. exclusive of costs, the cause shall not be removed from an inferior court, unless the defendant with two sufficient sureties enter into a recognizance there in double the amount, conditioned for the payment of the debt or damages and costs, in case judgment shall pass against him. 7 & 8 G. 4, c. 71, s. 6. 19 G. 3, c. 70, s. 6. The sum laid in the declaration as the debt or damages, and not the sum actually due, &c., is deemed the amount of the cause of action within the meaning of this statute. Atlenborough v. Hardy, 2 B. & C. 802. Brady v. Veeres, 5 Dowl. 416. And the statute is not confined to debts, but extends to actions of trover, Furnish v. Swann, 10 B. & C. 458, actions of slander, Lee v. Goodlad, 4 D. & R. 350, and the like, where the damages laid are under 201.

If the cause be removed, when it ought not, the mode of objecting to it is by applying to the court for a rule nisi for a procedendo. And if once properly remitted to the court below, the cause can never afterwards be removed into the court above. 21 J. 1, c. 23, s. 3. See Dixon v. Heslop, 6 T. R. 366, 365. Glynn v. Hutchinson, 3 Dowl. 529. Lewes v. Hutchinson, 1 Cr. M. & R. 766.

Return of the writ.] In obedience to the writ of certiorari, the record itself, and not merely a transcript or copy of it, must be sent to the court above. Palmer v. Forsyth, 4 B. & C. 401.

Appearance.] Formerly, when causes were removable by habeas, the defendant in bailable actions was obliged to put in and perfect bail; and the plaintiff might compel him to do so,

by obtaining and serving a rule for a procedendo. And in like manner now, if the defendant do not enter an appearance, the plaintiff may obtain a similar rule, to compel him.

Declaration.] The plaintiff is not bound to follow the cause into the superior court, nor can he be nonprossed for not declaring there. Clark v. Dickson, 3 M. & S. 93. Clark v. Mayor of Berwick, 4 B. & C. 649. The cause, however, remains in court for one year from the return of the writ, for all purposes; Norrish v. Richards, 5 Nev. & M. 268, Har. & W. 437; and the plaintiff may, if he will, declare at any time within that period, Id., if the defendant do not previously rule him to declare. This rule may be given "within four days after the end of the term in which the writ is returned;" R. G. H. 2 W. 4, s. 37, and see Id. s. 38; and if the plaintiff do not declare then within the second term inclusive after appearance entered, the defendant may afterwards refuse to receive the declaration from him. See Id. and Barnes, 90. Stourbridge v. Walker, 1 Str. 631.

The Uniformity of Process Act (2 W. 4, c. 39) does not extend to causes removed from inferior courts; Id. s. 19; nor do the new rules as to pleading. And therefore it seems that the declaration in this case must still be in the old form. See Dod v. Grant, Har. & W. 711.

The other proceedings in the cause are the same as in ordinary cases.

2. Removal of causes after judgment.

By writ of error, &c.] If the inferior court be a court of record, acting according to the course of the common law, a writ of error lies from it to the court of Queen's Bench; but if it act in a summary way, or proceed in a manner differing from the course of the common law, the record must be brought before a superior court to be rectified, not by writ of error, but by certiorari. 2 Saund. 101, a. If, however, the inferior court be not a court of record, its proceedings may be brought before the court of Common Pleas, not by writ of error or certiorari, but by writ of false judgment.

For the purpose of execution.] Formerly, if judgment were obtained in an inferior court, and the unsuccessful party were not found within the jurisdiction, and had no property within it, the judgment could not be executed, although the party had property, or was openly residing, elsewhere. And it is doubtful whether this is as yet remedied with respect to judgments for defendants. See Batten v. Squires, 4 Dowl. 53. But