in assumpsit, the court set aside both declaration and writ. And the entry of an appearance by a plaintiff for a defendant, does not operate as a waiver of an objection to the copy of the writ. process. Before the uniformity of process act, the courts would in general Amendment of have amended the process, where there was any thing to amend by: and the process by original might have been amended, as well as the process by bill. But, since the above act, all the judges have come to a resolution not to amend the process, if the forms prescribed by the schedule to the act are not strictly adhered to, except where the statute of limitations would otherwise be a bar to a fresh action. The plaintiff cannot alter his writ after service; and a notice not to appear to the copy of the writ first served, will not cure the defect. But where the action would otherwise be barred by the statute of limitations, the judges have, in several instances, allowed the process to be amended, on payment of costs: Thus, in an action against the inhabitants of a district, for damage done by a mob, on the 7 & 8 Geo. IV. c. 81., the court allowed the proceedings to be amended, by substituting the word "borough" for "hundred," there being no such hundred, and the time for commencing a fresh action having expired 8. So, in an action by executors, where the defendant pleaded in abatement the nonjoinder of one executor, who had not proved, the court allowed the process to be amended, on payment of costs; as the statute of limitations would have been a bar to a fresh action. The court, in these cases, has power to amend the writ, because it is the act of the court, and a record in their own custody1; but it is otherwise when they are called on to amend a copy, which is the act of the party, over which the court has no controul1: and therefore, if the copy of a capias delivered to the defendant, do not exactly correspond with the original, the court will in no case allow it to be amended*. Edwards v. Dignam, 2 Dowl. Rep. 240. 4 Tyr. Rep. 213. 2 Cromp. & M. 346. S. C. per Bayley, B. b Chalkley v. Carter, 4 Dowl. Rep. 480. 1 Tyr. & G. 210. S. C. Tidd Prac. 9 Ed. 161. Id. 130. and the authorities there referred to. Lakin v. Watson, (or Massie,) 2 Dowl. Rep. 633. 4 Tyr. Rep. 839, S. C. Mills v. Gossett, 1 Scott, 313. Partridge v. Wallbank, (or Wellbank,) 1 Meeson & W. 316. 5 Dowl. Rep. 93. 12 Leg. Obs. 101. S. C. Glenn v. Wilks, 4 Dowl. Rep. 322. Horton v. Inhabitants of Stamford, 2 Lakin v. Watson, (or Massie,) 8 Byfield v. Street, 10 Bing, 28. 3 Id. ib. Nicol v. Boyn, 10 Bing. 339. 3 Moore & S. 812. 2 Dowl. Rep. 761. S. C. Entry of process on record, to avoid statute of limitations. A distinction, however, has been made, between the effect of non-compliance with an act of parliament, and a rule of court: and on that ground, though the court will not in general allow the writ to be amended, if it do not follow the form prescribed by the act, yet where the indorsement of the amount of the sum claimed for debt and costs is defective, and does not follow the form directed by the rules of H. 2 W. IV. reg. II. and M. 3 W. IV. reg. 5, the judges have come to a general resolution, to allow the indorsement to be amended, on payment of costs, and proceedings to be stayed until four days after the amendment made, to give the defendant an opportunity of paying the debt and costs. But the court, in one case ", determined, that a judge at chambers cannot amend the indorsement on a writ of summons, by reducing the amount of the claim indorsed upon it, in order to try the cause before the sheriff. In a subsequent case, however, it was holden, that where a cause is proper to be tried by the sheriff, under the writ of trial act, but by mistake a larger sum is indorsed on the writ than the plaintiff claims, and than is allowed by the act, the court will allow the writ to be amended. In order to avoid the statute of limitations, it is, we have seen, necessary, by the uniformity of process act, that the writ of summons or capias, by which the action was commenced, and the return of non est inventus, should be entered of record, within one calendar month next after the expiration thereof, including the day of such expiration, and the roll docketed and filed in the treasury of the court. The writ was formerly entered on a roll of that term wherein it was returnable: and, in the King's Bench, it was entered in hæc verba : after which, the roll proceeded with an entry of the plaintiff's appearance, the sheriff's return of non est inventus, and continuance of the process from term to term, by vicecomes non misit breve, to the term of the declaration. In the Common Pleas, the roll merely contained a recital of the writ, with an entry of the plaintiff's appearance, and sheriff's return, &c.: But now, the process being the same in all the Urquhart v. Dick, K. B. 3 Dowl. Rep. 17. 9 Leg. Obs. 221. S. C. Shirley ". Jacobs, C. P. 3 Dowl. Rep. 101. 1 Scott, 67. 9 Leg. Obs. 76, 7. S. C. Cooper (or Hooper) v. Waller, Excheq. 3 Dowl. Rep. 167. 1 Cromp. M. & R. 437. 9 Leg. Obs. 254. S. C. Ld. Paget v. Stockley, 1 Hodges, 317. b Trotter v. Bass, 3 Dowl. Rep. 407. 1 Bing. N. R. 516. 1 Scott, 403. I Hodges, 23. 9 Leg. Obs. 414. S. C. and see Edge v. Shaw, 4 Dowl. Rep. 189. 2 Cromp. M. & R. 415. S. C. Edge v. Shaw, 4 Dowl. Rep. 189. 2 Cromp. M. & R. 415. S. C. Frodsham v. Round, 4 Dowl. Rep. 569. 1 Har. & W. 667. 11 Leg. Obs. 323, 4. S. C. d Ante, 16, 17. 2 W. IV. c. 39. § 10. and see Tidd Prac. 9 Ed. 162. courts, by the uniformity of process acta, by which proceedings may be had in term or vacation, and continuances by vicecomes non misit breve being abolished, by a rule made on the law amendment act, the entry of the writ of summons, or capias, on the record, is dated on the day of the month and year on which it is made; and after setting out the writ in hæc verba, as was formerly done in the King's Bench, it proceeds to state the return of non est inventus, by the plaintiff, or his attorney, to the writ of summons, or by the sheriff to the writ of capias, within one calendar month next after the expiration of the writ, and that the defendant has not appeared to the action, according to the exigency thereof; and that the plaintiff thereupon prayed another writ to be issued, in continuation of the former one, which was granted to him, and issued by the court (setting it out in hæc verba); which last mentioned writ contained a memorandum indorsed thereon, or subscribed thereto, stating the day of the date of the first mentioned writd. a 2 W. IV. c. 39. b Post, 132, 3. e R. Pl. Gen. H. 4 W. IV. reg. 2. 5 Barn. & Ad. Append. ii. 10 Bing. 464. d Append. to Tidd Sup. 1833. p. 252, &c. CHAP. IX. Of the SERVICE of the WRIT of SUMMONS; and How treated of. HAVING stated, in former Chapters, the process by writs of summons and distringas, in ordinary cases, as well as against peers of the realm, and members of the House of Commons, and against corporations, and hundredors, and the writ of capias, and process of outlawry, with the memoranda and indorsements on the different writs, it is intended to treat, in the present Chapter, of the service of the writ of summons, and execution of the writ of distringas; and in the next, of the law of arrest, affidavit to hold to bail, and execution of the writ of capias. Service of writ of summons. By whom. Where. Within the time limited for the service of the writ of summons, it should be personally served, if possible, on the defendant; and it may be served by the plaintiff or his attorney, who are authorized by the uniformity of process act, to return the same, or by any one else, who is competent to swear to the service: And every such writ may be served, in the manner heretofore used 8, in the county there * Ante, 65, &c. Ante, 81, &c. Ante, 83. Ante, 84, &c. 93, &c. • Ante, 96, &c. f 2 W. IV. c. 39. § 10. For the manner of summoning the defendant, before the statute, in personal actions commenced by special original writ, in the King's Bench or Common Pleas, see Tidd Prac. 9 Ed. 109.; by capias quare clausum fregit, in the latter court, id. 111.; by venire facias, in the Exchequer of Pleas, id. 155; on stat. 7 & 8 Geo. IV. c. 71. 5. id. 113, 14. 155; and in actions against peers, id. 118, 19, members of the House of Commons, id. 120, corporations, id. 121, hundredors, id. 123, and inhabitants of a county of a city, or liberty, &c. id. 126: And as to the service of common process against the person, and by whom, when, where, and how it should be served, (which is probably the manner of service intended by the statute,) see id. 167, 8, 9. When the defendant resided in a county palatine, it was formerly holden, that he should be served with a copy of the process issuing out of the superior court, and not of the mandate from the officer to whom it was directed. Griffith v. Allcock, 2 Barnard. K. B. 327. 337. 398. Byers v. Whitaker, Pr. Reg. 344. Barnes, 406. S. C. Griffin v. Higgin, 1 Dowl. Rep. 45. 2 Leg. Obs. 125, 6. S. C. per Taunton, J. Tidd Prac. 9 Ed. 168. But it was afterwards decided, in the Common Pleas, that service of a writ directed to the chamberlain of the county palatine of Ches a in mentioned, or within two hundred yards of the border thereof, and not elsewhere." And where a district or place, being parcel of one county, is wholly situate within and surrounded by another, every such district and place shall and may, for the purpose of the service of such writ, be deemed and taken to be part as well of the county wherein it is so situate, as of the county whereof the same is parcel. But the court will not allow process to be served at the house of the agent of a defendant out of the jurisdiction, in order to save the statute of limitations; but the plaintiff must proceed according to the provisions of the above statute®. When the writ of summons is issued against a corporation aggregate, How. " it may be served on the mayor, or other head officer, or on the town " clerk, clerk, treasurer, or secretary of such corporation; and every “such writ issued against the inhabitants of a hundred, or other like "district, may be served on the high constable thereof, or any one of "the high constables thereof; and every such writ, issued against "the inhabitants of any county of any city or town, or the inhabitants "of any franchise, liberty, eity, town, or place, not being part of a "hundred or other like district, on some peace officer thereof." In an action against two or more defendants, each of them must be served with a copy of the process: But, in an action against husband and wife, it is deemed sufficient to serve the husband only. The Indorsement on person serving the writ of summons is required by the acts, to indorse writ, of day of on the writ, the day of the month and week of the service thereof: And, in order to give effect to this enactment, it is ordered, by a general rule of all the courts, that "the person serving a writ of summons shall, within three days at least after such service, indorse ter, was irregular, without his mandate being issued to the sheriff. Earl of Shrewsbury v. Haycroft, 6 Bing, 194 3 Moore & P. 471. S. C. And, in a subsequent case, it was determined by the court of King's Bench, that where a non-bailable writ of latitat issued into the county palatine of Lancaster, and a mandate thereupon was obtained from the Chancellor to the sheriff, service of either on the defendant was sufficient. Ashbrook v. Townley, 2 Barn. & Ad. 416. Stat. 2 W. IV. c. 39. § 1. b Id. § 20. Frith v. Ld. Donegal, 2 Dowl. Rep. 527. 8 Leg. Obs. 462. S. C. service. When to be made, and consequence of omission. |