This rule is a four day rule in London and Middlesex; R. T. 6 G. 3, K. B.; R. H. 7 G. 3, C. P.; an eight day rule in other counties, &c. R. G. M. 7 W. 4.

Rule to return a writ of execution.] At any time whilst the sheriff, to whom a writ of execution has been directed, is in office, or within six months after he goes out of office, he may be ruled or ordered to return the writ, at the instance either of the plaintiff or defendant; but not afterwards, see Yrath v. Hopkins, 2 Cr. M. & R. 250, 1 Gale, 141, 3 Dowl. 711. Thomae v. Newnam, 2 Doul. N.C.33, unless under very particular circumstances. See Wilton v. Chambers, 3 Dowl. 333. And where the rule was served on the under-sheriff of the new sherif within the six months, but not on the under-sheriff of the late sheriff until after the six months had expired, the court held that the plaintiff could not have an attachment against the late sheriff for not returning the writ. Yrath v. Hopkins, 2 Cr. M. & R. 250, 3 Dowl. 711. It has been holden that a defendant may rule the sheriff to return the writ, whether the goods seized were sold to others, or redeemed by himself; or although he paid the debt, &c. after the sheriff had kept possession for a considerable time, at his desire, to enable him to pay, without resorting to a sale; Edmunds v. Watson, 7 Taunt 5, 3 Marsh. 330; but he must in general show some special ground for requiring it. See Williams v. Webb, 12 Law F 137 cp. The court, however, have set aside the rule to retura a writ of fi. fa. which had been sued out after the parties had compromised the action. Alchin v. Wells, 5 T. R. 470. Hodges v. Jordan, 5 Dowl. 6. So where delay had been occasioned by a negotiation between the plaintiff's attorney and the sheriff's officer, in consequence of which the goods were seized under an extent, the court set aside a distringas nuper vicecomitem sued out by the plaintiff. Ruston v. Hatfield, 3 B. & A. 204. So, where the fi. fa. had been executed by a special bailiff appointed by the plaintiff, the court refused a rule upon the sheriff to return the writ, even although required merely for the purpose of enabling the plaintiff to sue out a ca. sa., except upon the terms of paying the sheriff's costs, and undertaking not to bring any action. Harding v. Holden, 10 Law J 229, cp. The party who sued out the writ, may move for a return of it, as a matter of course. But where a mandate on a ca. sa. issued to the bailiff of a liberty to arrest a defendant, and the defendant was afterwards discharged, under the Insolvent Act, out of the custody of the sheriff, and the plaintiff became his assignee: the court held that the plaintiff was estopped from ruling the bailiff to return the mandate. Hepworth v. Sanderson, 8 Bing. 19. So, where a plaintiff ruled the sheriff to return the writ, and the bailiff of a franchise within the county to return the sheriff's mandate, (as is usual in practice), and the sheriff returned cepi corpus, but the

bailiff made no return, the fact being that the sheriff had directed his mandate to the bailiff, who arrested the defendant, and handed him over to the custody of the sheriff: the plaintiff having brought an action against the bailiff for an escape, an application was made to discharge the rule to return the mandate; and Coleridge, J., held that as the sheriff had returned cepi corpus, the plaintiff had no right to call upon the bailiff to return the mandate, and discharged the rule accordingly. Jackson v. Taylor, 2 Har. & W. 135, 5 Dowl. 140. See Platel v. Dowsź, 4 Bing. N. C. 204.

In London and Middlesex, the rule expires in four days. In all other counties, &c., it is an eight day rule. R. G. M. 7 W. 4. If it expire in vacation, "the sheriff shall file the writ at the expiration of the rule, or as soon after as the office shall be open." R. G. H. 2 W. 4, s. 11. See R. v. Sh. of Surrey, 3 Dowl. 82. If it expire on the last day of term, the plaintiff may move for an attachment at the rising of the court on that day, if the writ be not returned. R. v. Sh. of Surrey, 11 East, 591. If from circumstances a further time be requisite, to enable the sheriff to make a return to the writ, the court will in general grant it; see Wells v. Pickman, 7 T. R. 174; provided the case be not such as to enable the sheriff to obtain relief under the Interpleader Act. Vide post.

As writs of execution may now be tested in vacation, and returnable immediatè, a judge's order may now be obtained in vacation, requiring the sheriff to return them, and an attachment may be obtained for disobedience of such order, see Howitt v. Rickaby, 9 Mees. & W. 52, in precisely the same manner as with respect to a writ of capias, as mentioned ante, p. 29, the stat. 2 W. 4, c. 59, s. 15, and R. G. M. 3 W. 4, s. 13, there stated, extending as well to the writs of ca. sa., fi. fa., and elegit, as to the ordinary writ of capias. See R. v. Sheriff of Surrey, 3 Dowl. 82. They have also been holden to extend to the writ of venditioni exponas. R. v. Sh. of Berkshire, 8 Dowl. 97. Hughes v. Rees, 7 Id. 56. But they do not extend to cases, where the order, if obtained, must require the return to be made in term time, but the party in such cases must proceed by ruling the sheriff, as in ordinary cases. Williamson v. Harrison, 9 Mees. & WV. 225.

The court, where it is necessary, will enlarge the time given by the rule to return a writ of execution. Where, for instance, the defendant was arrested and in custody under a ca. sa., but was too ill to be removed, and the plaintiff ruled the sheriff to return the writ: the court, on the application of the sheriff, enlarged the time for making the return, but refused to make the plaintiff pay the extra cost of keeping the defendant in custody until he could be removed. Jones v. Robinson, 12 Law J. 415 ex., 2 Dowl. N. C. 1044.

The sheriff's return to a fi. fa. is general, that he has seized goods to a certain amount, without specifying what goods, or

that the defendant has no goods within his bailiwick; see Munk v. Cass, 9 Dowl. 332; and where a defendant moved that the sheriff should amend his return by specifying the particular articles seized and sold, the court refused to order it, nothing criminal being imputed to the sheriff or his officer. Willett v. Sparrow, 6 Taunt. 576.

Attachment for not returning a writ or not bringing in the body.] The sheriff shall return a writ, on the day on which the rule for returning the same shall expire; otherwise the plaintiff shall be at liberty to move for an attachment on the next day. R. M. 32 G. 3, K. B. So, if a judge's order to return the writ have been served in vacation, and the sheriff have not obeyed it, you may, in the term next after the time given by the order, move to make the order a rule of court, and for an attachment; and it will be no answer to say that the sheriff has returned the writ, after the expiration of the order and before the attachment was moved for, See R. G. M. 3 W. 4, s. 13, ante, pp. 29, 30. Vide infra, or that the plaintiff, instead of forthwith applying for the attachment, desired the sheriff to proceed with the execution. Howitt v. Rickaby, 9 Mees. & W. 52.

If the rule to return the writ expire in vacation, the sheriff must file the writ "at the expiration of the rule, or as soon after as the office shall be open," R. G. H, 2 W. 4, s, 11, and he has not, as formerly, until the first day of the following term to do so. If he fail to obey the rule, the court, it should seem, would grant an attachment against him on the first day of the next term, even although they may have returned the writ in the mean time and before the attachment is moved for, particularly if it appear that the plaintiff has been delayed or prejudiced in his proceedings by the sheriff's laches.

As to the attachment for not bringing in the body: if at the expiration of the rule, bail have not been perfected, and the rule of allowance actually served, R. v. Sheriff of Middlesex, 4 T. R. 493, and if the defendant have not been rendered, the plaintiff may move for an attachment on the next day. When the rule expires on the last day of term, you may move for the attachment at the rising of the court on that day. R. T. 38 G. 3, r. 2, R. v. Sh. of Surrey, 11 East, 591, but see R. v. Sh. of Middlesex, 8 T. R. 464. So, where a further time is given to justify, if the bail do not justify on the morning of the day given, the plaintiff, if the body rule have expired, may move for an attachment on the same day. Thompson's bail, 1 Chit. 356, and see R. v. Sh. of Middlesex, 8 D. & R. 137. R. v. Sh. of London, 1 Chit. 567. R. v. Sh. of Middlesex, 6 Dowl. 164, 3 Mees. & W. 64. And care must be taken to move for it, sue it out, and prosecute it, without delay. Where the body rule expired in Michaelmas term, and the attachment was not moved for until Easter, the court on ap

plication set aside the attachment. 3 B. & P. 151. So, where the rule for the attachment was obtained on the 11th of February, but the plaintiff did not issue it until the 3rd of May, and in the intermediate time the defendant became bankrupt, the court on application set aside the attachment. R. v. Sh. of Surrey, 9 East, 467. In all cases, however, (except where a judge's order to bring in the body is made in vacation,) if bail be justified, and the rule of allowance served, or if the defendant be rendered and notice of render given, at any time before the attachment is moved for, the attachment cannot afterwards issue. Thorold v. Fisher, 1 H. Bl. 9; R. v. Sh. of Middlesex, 2 M. & S. 562. Weddell v. Berger, 1 B. & P. 325. R. v. Sh. of Middlesex, 2 D. & R. 225. R. v. Sh. of Middlesex, Smith, 243. Morley v. Cole,

1 Price, 103. See Vanderhaden v. Britten, 4 D. & R. 155. But if the plaintiff have been at expense in giving instructions to move for the attachment, the court will order those costs to be paid. Jarrett v. Cressy, 3 B. & P. 603. R. v. Sh. of Middlesex, 1 Taunt. 56. Where bail justified on the same morning the attachment was moved for, the court set it aside on payment of costs. Turner v. Bristow, 2 B. & P. 38. It may be necessary to mention that the court will grant the attachment, although the sheriff at the time be out of office. Meekins v. Smith, 1 H. Bl. 629.

If a judge's order to bring in the body be served in vacation, as mentioned ante p. 29, and bail be not perfected, (whether excepted to or not, R. v. Sh. of Middlesex, 4 Mees. & W. 529,) or the defendant rendered, on or before the day mentioned in the order, you may, on any day in the term next after the time given by the order, move the court to make the order a rule of court and for an attachment; R. G. H. 3 II. 4, ante, p. 30; and it will be no answer to say that the body rule has since, and before moving for the attachment, been complied with. In the Exchequer, in such a case, the order is made a rule of court, and the attachment granted, upon one motion. Howell v. Bulteel, 2 Cr. & M. 339. Foster v. Kirkwall, 4 Dowl. 370. In the Common Pleas there must be separate motions for each, one to make the order a rule of court, and then a separate motion for the attachment. Pilcher v. Woods, 4 Dovl. 329. In the Queen's Bench, Littledale J., in one case held that there should be separate motions; Stainland v. Ogle, 3 Dowl. 99; but Coleridge J., afterwards allowed one motion for both, as in the Exchequer. Hinchliffe v. Jones, 4 Dowl. 86.

It is a remarkable circumstance, that there is no provision in the new statutes or rules, respecting a rule to bring in the body expiring in vacation. An attachment cannot of course be moved for any disobedience of it, until the following term; and it is doubtful whether a justification of bail or render in the meantime would not be an answer to an application for it.

It may be prudent, therefore, until there shall be some decision upon the subject, not to rule the sheriff to bring in the body so late in the term, that the rule must expire in the vacation; but it is better to wait until the vacation, and then obtain a judge's order to return the writ and bring in the body, as directed ante, pp. 29, 32.

And lastly, as to an attachment for not returning a writ of execution if when ruled to return the writ, the sheriff fail to do so within the time limited for that purpose, the court will grant an attachment against him. And the plaintiff does not waive his right to the attachment, by afterwards directing the sheriff to proceed with the execution. Howitt v. Rickaby,

9 Mees. & W. 52, 1 Dowl. N. C. 389. Or if he make a bad return, the court will quash it, and grant an attachment; but upon an application for this latter purpose, the return must be brought before the court in a manner properly authenticated, as by an office copy, or examined copy verified by affidavit. Wilton v. Chambers, 1 Har. & W. 582, 5 Nev. & M. 431. In what cases the court will allow the return to be amended, see post, title "Amendment." Where a plaintiff's attorney, after levying an execution on the goods of the defendant at the plaintiff's suit, ceased to act for him, and became the attorney for the defendant-he then procured the under-sheriff to return a larger sum as levied under the fi. fu. and paid over to the plaintiff, than was the fact the court ordered the writ to be taken off the file, and the return to be amended according to the truth. Green v. Glasbrook, 2 Bing. N. C. 143. 1 Hodg. 193.

The affidavit, on which you move for the attachment, must state a service of the rule or order annexed, upon the undersheriff or sheriff's deputy, either personally, or upon one of his clerks in his office, see Harmer v. Tilt, 2 Marsh. 251, and that the original rule or order was at the same time shown to him. Barnard v. Berger, 1 New Rep. 121. Where the attachment is for not returning the wait, the affidavit then proceeds to state a search for the writ and that it has not been returned; if for not bringing in the body, it states either that no bail above have been put in for the defendant, or that bail have been put in, but the same have not been perfected. See the forms in the Appendix.

Draw up the rule for the attachment. In the Common Pleas and Exchequer, get a blank form of the urit on parchment, and fill it up; if it be against the present sheriff, direct it to the Coroners; or if the coroner be the adverse party, then to elisors; (R. v. Sheriff of Glamorganshire, 1 Dowl. N. C. 308;) if against the late sheriff, direct it to the present sheriff; get it signed and sealed, for which the rule will be the officer's Then leave it, together with your bill of costs, at the office of the coroner or sheriff to whom it is directed, to be exe

warrant.