BOOK . which he or his co-defendant succeeds, set off or deducted from the plaintiff's costs (t). PART II. Costs between Proceedings in the Cause. In what Cases dispaupered or compelled It may be added, that if a pauper be admitted to defend a suit in Chancery in formâ pauperis, his solicitor can only recover of him money actually paid out of pocket for the defence of the suit (u). Proceedings in the Cause.] The proceedings in the cause are the same as in ordinary cases. In what Cases dispaupered or compelled to pay Costs.] Though an order has been made for admitting a party to sue in forma to pay Costs. pauperis, yet, if it appear that the plaintiff has no meritorious cause of action, or that he has acted vexatiously or improperly in the conduct of the suit, the court will discharge the order, though a judge's order for that purpose must be made a rule of court before the court will entertain a motion to discharge it(x). Also, by 23 H. 8, c. 15, s. 2, the pauper shall not pay costs, but shall suffer such other punishment as the court shall deem reasonable. The only punishment, however, which the court ever inflict, and this only in cases where the pauper has been guilty of very gross laches or other misbehaviour (y), is to dispauper him; and, when thus dispaupered, he is not liable for costs previously incurred (≈). ́ In a case where a pauper gave notice of trial, and on the second day of the assizes withdrew his record, on the ground of its requiring amendment, the court dispaupered him (a). A plaintiff cannot be dispaupered after judgment as in case of a nonsuit, because the action is then at an end (b). Also, by the R. H., 2 W. 4, r. 10, "where a pauper omits to proceed to trial, pursuant to notice or an undertaking, he may be called upon by a rule to shew cause why he should not pay costs, though he has not been dispaupered." And where the pauper withdrew his record because he was not prepared with a necessary document at the assizes, the court compelled him to pay the costs of the day (c). And the court have stayed proceedings in a second action by a pauper, until the costs of a nonsuit in a former action for the same cause were paid (d); though there are instances in which they have refused even this (e). (t) Gougenheim v. Lane, 4 Dowl. 482, Pait, 1 Sid. 261: Anon., 2 Salk. 506: (2) Sloman v. Amel, Fortesc. 320: Munford v. Pait, 1 Sid. 261. (a) Facer v. French, 5 Dowl. 554. (b) Jenkins v. Hyde, 6 M. & Sel. 228. (c) Doe Lindsay v. Edvards, 2 Dowl. 471: and see Facer v. French, 5 Id. 554. (d) Weston v. Withers, 2 T. R. 511: see Goodtitle v. Mayo, Tidd, 98. (e) Brittain v. Greenville, 2 Str. 1121: Winter v. Slow, Id. 878: and see Butler v. Inneys, Id. 891: Blood v. Lee, 3 Wils. 24. CHAPTER XIV. PROCEEDINGS AGAINST TRADERS SUBJECT TO THE BANKRUPT LAWS. CHAP. XIV. Trader, how compelled to come bank SINCE the abolition of arrest on mesne process by the1&2 V. c. 110, the committal of an act of bankruptcy by lying in prison on arrest for twenty-one days can seldom occur and apparently pay, or secure as a substitute for that mode of making a debtor bankrupt the debt, or be 8th section of the act enacts, "that if any single creditor (f) or rupt. any two or more creditors being partners, whose debt shall amount to 1007. or upwards, or any two creditors whose debts shall amount to 1507, or upwards, or any three or more creditors whose debts shall amount to 2007. 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 or 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 immediate payment of such debt or debts; and if such trader shall not, within twenty-one 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 saine, 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 twenty-second 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." Affidavit. The affidavit under this act must be made by the creditor, Form of and the affidavit of any one on his behalf would not suffice. It may be made by a public officer of a joint-stock banking company. It need not be intitled in any court. It may be sworn before a master extraordinary in Chancery, and filed in the register's office of the Court of Bankruptcy (g). Defendant in It has been held that a defendant who has entered into the Render by security required by the above section is in the same situation Discharge of as if he were at large on bail, and may render even before Bail. judgment according to the practice in case of a defendant on bail (h). (See the form of affidavit, Chit. Forms, 538; and of notice, Id. See Ex parte Hall, 3 Deac. Rep. 405. (h) Owston v. Coates, Q. B. E., 1839; 3 Jurist, 433. BOOK IV. PART I. PROCEEDINGS INCIDENTAL AND COLLATERAL BOOK IV. Statute 2 W. and Decisions as to. CHAPTER I. ENTRY OF PROCESS ON ROLL TO SAVE THE STATUTE OF LIMITATIONS. THE 2 W. 4, c. 39, s. 10, enacts, "that every writ of summons and capias(a) may be continued by alias and pluries, as the case may require, if any defendant therein named may not 4, c. 32, s. 10, have been arrested thereon, or served therewith; provided that no first writ shall be available to prevent the operation of any statute, whereby the time for the commencement of the action may be limited, unless the defendant shall be arrested thereon or served therewith, or proceedings to or towards outlawry shall be had thereupon, or unless such writ, and every writ (if any) issued in continuation of a preceding writ, shall be returned non est inventus, and entered of record within one calendar month next after the expiration thereof, including the day of such expiration; and unless every writ issued in continuation of a preceding writ shall be issued within one such calendar month after the expiration of the preceding writ, and shall contain a memorandum indorsed thereon, or subscribed thereto, specifying the day of the date of the first writ; such (b) return to be made, in bailable process, by the sheriff or other officer to whom the writ shall be directed, or his successor in office; and in process not bailable, by the plaintiff or his attorney suing out the same, as the case may be." This enactment materially alters the former practice, under which it was not necessary to enter any continuances of the second or subsequent writs until the plaintiff replied to the plea of the Statute of Limitations (c). And if the plaintiff (a) Since 1st October, 1838, all personal actions in the superior courts of law must be commenced by writ of summons. (1 & 2 V. c. 110, s. 2). (b) In the printed copy of the act, instead of the word "such," the conjunc tion "and" is erroneously inserted. (c) See Harris v. Woolford, 6 T. R. 617; Doe Mears v. Dolman, 7 1d. 618: Gregory v. Hurrill, 1 Bing. 324; 8 Moore, 189, S. C.: Beardmore v. Rattenbury, 5 B & Ald. 452; 1 D. & R. 27, S. C. declared within a year after suing out the first process (pro- CHAP. I. vided he had not been nonprossed before that time) continuances were not necessary, and even the first process need not have been returned or filed; though otherwise it must have been so(d). The enactment is confined in its operation to cases where it is intended to save the Statute of Limitations: and therefore, where a capias was issued against two defendants, one of whom was arrested and put in bail before the expiration of the four months which the writ had to run, and the other defendant could not be arrested during that period; the proceedings were holden to be regular, although the first writ had not been returned, nor any continuance entered; and the second writ was not issued within one calendar month after the first had expired (e). Where a writ of summons tested in time to save the Statute of Limitations was re-sealed in consequence of an alteration in the description of the defendant and the county in which he resided, and was not served until after the six years had expired, the court held, that the re-sealing did not amount to a re-issuing of the writ, and that it was not necessary for the plaintiff to show when the re-sealing took place (ƒ). But a re-sealed writ must, it seems, be dated of the day on which it is re-sealed (g). 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 above provision; namely, either to outlaw the defendant, or else to get the writ returned non est inventus, and entered of record within one calendar, &c. (h). It seems that, although a writ of summons has been allowed to expire, yet the plaintiff may continue it by alias and pluries, &c., by leave of the court or a judge (i). And a pluries summons may be thus taken out pending a writ of distringas not acted upon (j). If you proceed by writ of summons, (which, since the act Practical D1for abolishing arrest on mesne process (1 & 2 V. c. 110) is the rections as to proceeding by only process by which a personal action can be commenced in Writ of Sumthe superior courts, except in proceeding against insolvents mons. under the 85th section of that act) (k), sue out the writ against the defendant as in ordinary cases (1), within the time limited for bringing the action. If the defendant has not been served therewith within four calendar months from its date inclusive, (there is no absolute necessity for any attempt to serve him (m)), then you must, within a calendar month after the expiration (n) of the writ, inclusive of the day of such expiration, return on the writ "non est inventus" (o); and, within the same time, get (d) Worley v. Lee, 2 T. R. 112: Penny v. Harvey, 3 ld. 123: Parsons v. King, 7 Id. 6: Stanway v. Perry, 2 B. & P. 157. As to the mode of saving the statute in ejectment, see ante, 732: Farrelain v. Shackleton, 5 Burr. 2604. (e) Nicholson v. Rowe & Leman, 2 C. & M. 469: 2 Dowl. 296; 4 Tyr. R. 308, S. C. (f) Braithwaite v. Lord Montford, 2 C. & M. 408; 4 Tyr. R. 276, S. C. (g) Knight v. Warren, 7 Dowl. 663. Bing. N. C. 279, S. C. (k) See Turner v. Darnell, 7 Dowl. 346. (m) Williams v, Roberts, 3 Dowl. 512; 1 (2) The writ expires in four calendar months after its date, inclusive of such date. (0) See form, Chit. Forms, 539. BOOK IV. a roll from the person appointed to deliver out the rolls of the court, or it may be had at any stationer's. Engross the writ on this roll, and also enter the writ and return, with the award of an alias writ of summons (p). In making the engrossment, leave a margin of an inch at least, and a space at bottom to prevent the writing being rubbed out, writing upon both sides, if necessary. Make out a docket-paper (p). Take the writ, roll, and docketpaper to one of the masters, and docket the entry, and he will mark the writ. Then, carry in the roll to the treasury of the court, and file the writ with the master. After this, and within one calendar month after the expiration of the first writ of summons, inclusive of the day of such expiration, sue out an alias writ of summons against the defendant, as in ordinary cases (q). Indorse on or subscribe to this alias writ, a memorandum specifying the day of the date of the first writ (r). If the defendant has not been served with this alias writ within four calendar months from its date inclusive, then you must, within a calendar month after the expiration of the alias writ, inclusive of the day of such expiration, return on such writ "non est inventus;" and within the same time, enter on the roll, containing the entry of the first writ, this alias writ and return thereon, together with the award of a pluries. Take the draft of the entry to one of the masters, who will make the entry on the roll; pay him for the entry. File the writ with him. After this, and within one calendar month after the expiration of the alias writ of summons, inclusive of the day of such expiration, sue out a pluries writ of summons against the defendant, as in ordinary cases (s). Indorse on, or subscribe to this pluries writ a memorandum specifying the day of the date of the first writ. If the defendant has not been served with this pluries writ within four calendar months from its date inclusive, then you must, within a calendar month after the expiration of the pluries writ, inclusive of the day of such expiration, return on such writ “non est inventus;' and within the same time, enter on the roll, containing the entry of the first writ, this pluries writ and return thereon, together with the award of a pluries (t). Take the draft of the entry to one of the masters, who will make the entry on the roll; pay him for the entry. File the pluries writ with the master. After this, proceed by other pluries writs of summons, and get them issued, returned, and filed in the same manner, until the defendant has been served therewith, or until you have obtained his appearance under a writ of distringas, or have outlawed him. It would seem, that the writ issued in the continuation of a preceding writ, must not be issued until the preceding writ be returned and filed; for no writ can be continued unless it be first returned and filed, the court, until that time, having no conusance of the action, so as to enable them to award an alias, &c. (u). Care must be taken that the writ upon which the defendant is ultimately brought before the court, be of the same species with that originally sued out and entered on the roll, as above mentioned, and that the continuances correspond (9) See form. Chit. Forms, 540. (r) See form, Chit. Forms, 540. (t) See the form, Chit. Forms, 340. 193: Welden v. Greg, 1 Tidd, 60: Vincent's case, Comb. 346: Attwood v. Burr, 7 Mod. 5: and in Norman v. Winter, 7 Dowl. 304; 5 Bing. N. C. 279, S. C., where the question was raised, but not adjudicated upon. |