CHAP. XXXV.

PROCEEDINGS IN AN ACTION.

[See 3 Black. Com. chaps. 18-26; 3 Steph. Com. Bk. V., ch. 10.] We now proceed to give an outline of the various ordinary proceedings in a personal action at law.

Attorneys.-Debts under £20.]-It should here be stated that all the subsequent proceedings are supposed to be in one of the superior courts of law at Westminster, that is, either in the Queen's Bench, Common Pleas, or Exchequer of Pleas. The proceedings may be taken by the plaintiff or defendant in person, but they cannot employ any other than a duly admitted attorney or solicitor if they wish (as is the almost invariable practice) to have the proceedings conducted by another person on their behalf.

In general the debt or other claim should be 40s. at the least, and indeed, in the case of a debt it should be upwards of £20, as the new county courts have jurisdiction under that amount, and the plaintiff would not get any costs; but still if the plaintiff dwells more than twenty miles from the defendant, or the cause of action did not arise wholly or in some material point within the jurisdiction of the county court, &c., he may sue in the superior courts, though the debt be less than £20. În the case of a tort the amount is £5 (a)

Writ of summons.]-The first step which a plaintiff takes in an action is suing out a writ against the defendant. Formerly there were different kinds of writs, some of which were original writs and others not so. Now, however, by virtue of the 2 Will. 4, c. 39, and 1 & 2 Vict. c. 110, s. 2, there is but one sort of writ by which every personal action is commenced, and that is called a writ of summons. This is a judicial writ, i. e. a writ issuing out of the court in which the defendant is to be sued; it is directed to the defendant, whom it commands that, within eight days after the service of the writ on him inclusive of the day of such service, he do cause an appearance to be entered for him in the court in which the action is brought, in an action on promises, or debt, or as the case may be, at the suit of the plaintiff, and requires the defendant to take notice, that in default of his so doing, the plaintiff may cause an appearance to be entered for him, and proceed to judgment and execution. In the writ itself, and in every copy thereof, the place and county of the residence, or supposed residence, of the defendant, or wherein he is, or shall be supposed to be, must be mentioned. Where several persons sue, or are sued, jointly, the names of all must be stated in the writ served upon each. The writ is tested, i. e., witnessed, in the name of the chief judge of the court out of which it issues, and dated on the day on which it issued; a memorandum is subscribed to it, directing its execution within four calendar months from the day of its date, inclusive of the day of such date, after which period it ceases to be of force; and it must be indorsed with the name and place of abode of the attorney suing it out, but if no attorney be employed for that purpose, then with a memorandum expressing that the same was sued out by the plaintiff in person. When the

attorney actually suing out the writ sues out the same as agent for another attorney in the country, the name and place of abode of the attorney in the country must also be indorsed upon the writ. That the defendant may have an early opportunity of putting an end to the suit, by satisfying the demand against him, it is directed that upon every bailable writ and warrant, and on the copy of all process served for the payment of any debt, the amount of the debt and costs shall be stated, and that on payment thereof, within four days, proceedings will be stayed; but the defendant will be at liberty, notwithstanding such payment, to have the costs taxed. Within the time limited in the writ it should be served, if possible, on the defendant. The service must take place in the county mentioned in the writ, or within two hundred yards thereof. The person who serves the writ is to indorse on it the day of the month and week of such service, and if he do not this within three days, the plaintiff will not be at liberty to enter an appearance for the defendant, although the latter should neglect to do so. If a personal service of the writ be not effected, the plaintiff may either proceed to issue alias and pluries writs of summons, or may apply to the court, or a judge, for leave to issue a writ of distringas.

Distringas.]-A distringas is a writ obtained, not as a matter of course, but on the application of the plaintiff, made to the court out of which the writ of summons issued or some judge of that court. This application must be founded on an affidavit, in which facts must be stated sufficient to make it appear that the defendant has not been personally served with a writ of summons, has not appeared to defend the action, and cannot be com

pelled so to do without some more efficacious process. If, indeed, the defendant cannot be served on account of his being out of the kingdom, then, as it would be impossible to compel him to appear by any process issuing out of our courts, the plaintiff ought to resort to a proceeding called outlawry, the nature of which will presently be explained. The distringas is directed, not like the summons, to the defendant, but to the sheriff of the county in which the defendant is supposed to be, whom it commands not to omit, by reason of any liberty in the county, but that he enter the same, and distrain on the defendant to the amount of forty shillings, in order to compel his appearance; and that he make known to the court how he shall execute the writ on a certain day called the return day. It is tested and dated like the writ of summons, but must be returned by the sheriff or other officer to whom it is directed, upon the day therein mentioned, which must be in term, and at least fifteen days from the date. A notice is subscribed to it, apprising the defendant that the sheriff has distrained on him in consequence of his non-appearance, and that, in default of his appearance to this writ within eight days the plaintiff will cause an appearance to be entered for him, and proceed to judgment and execution, or (if he be subject to outlawry, and the plaintiff intend so to proceed) will proceed to outlaw him.

It must be indorsed with the name and abode of the plaintiff, or of his attorney, and with the amount of the debt and costs; and a true copy of the writ, &c., must be delivered, along with the original, to the sheriff, who must cause distress to the amount of forty shillings to be made on the defendant's goods; and also serve him with the writ or copy, if he can be found; but, if it be impossible to find him, then it must be left for him. If

the defendant do not appear within the time specified in the writ, the plaintiff, if a personal service of it on the defendant or an actual distress upon his goods have been effected, may appear for him. But if the distringas cannot be personally served, and no goods can be found whereon to make the distress, the sheriff must, when the return day arrives, make a return of non est inventus and nulla bona; and then, if the plaintiff do not intend to proceed to outlawry, and if the defendant do not appear within eight days after the return day, the court, being first satisfied by affidavit that proper means were used to execute it, will grant the plaintiff leave to enter an appearance for the defendant (b).

Outlawry.]-When the plaintiff has commenced his action by a writ of summons, he must, if he desires to outlaw the defendant, apply for a distringas, the notice at the foot of which differs from the usual one by stating that, in default of appearance, proceedings will be taken to outlaw him. The sheriff must return this non est inventus and nulla bona, and there must not be less than fifteen days between its return and the day of its delivery to the sheriff. The next step is to sue out a writ of exigi facias, directed to the sheriff, to whom the distringas issued, commanding him to have the defendant required at five successive county courts, or, in London, at five successive courts of hustings, till he be either outlawed, if he do not appear, or taken, if he do. The county court is held once a month, the court of hustings once a fortnight. It is therefore better and more usual to issue process of outlawry into London. As there are seldom so many as five courts of hustings between the teste and return of the exigi facias, another writ issues called an allocatur exigent, which is exactly like the