ant, with a true copy of a writ of summons, which appeared to this deponent to be, and which he verily believes to have been, regularly issued out of and under the seal of this honourable court, at the suit of the abovenamed plaintiff, against the above-named defendant, and dated the day of ——, A. D. 1839, and to which said copy a memorandum was subscribed, and due indorsements made thereon, pursuant to the statute and the rules of Court in that case made and provided: And this deponent further saith, that he did on the day of last [or "instant"] being within three days after such service of the said writ, indorse on such writ the day of the week and month of such service, being the day and year first aforesaid, according to the statute in that case made and provided. Sworn [&c. (a).] [See 1 Chit. Ar. Pr. 122.] 7. Memorandum for and Entry of Appearance (b). A. B. plaintiff agst. C. D. [or agst. C. D. and another, or agst. C. D. and others.] C. C. The defendant C. D. appears in person [or "D. A. attorney for C. D. appears for him," or "P. A. attorney for the plaintiff, appears for the defendant,"] according to the statute. Entered the day of [See 1 Chit. Ar. Pr. 121.] 1839. 8. Demand on an Attorney for him to state whether the Writ was issued by him. In the Q. B. [or "C. P." or "Exch. of Pleas."] A. B. plaintiff against C. D. defendant. Sir, A writ of summons, dated the day of last [or "instant"], has been issued against the above-mentioned defendant in this cause, and on which writ is indorsed a statement that the same was issued by you as the above-named plaintiff's attorney. This is to require and demand of you to declare to me forthwith whether such writ was issued by you or with your authority or privity. Dated the day of 1839. To Mr. P. A. Yours, &c. D. A. defendant's attorney [or "agent."] [See 1 Chit. Ar. Pr. 51.] (a) See Index, title "Jurat." prescribes this form. It must be strictly (b) The statute 2 Will. 4, c. 39, followed, 1 Chit. Ar. Pr. 118. CHAPTER II. PROCEEDINGS TO COMPEL APPEARANCE BY WRIT OF SUMMONS AND DISTRINGAS, WHERE DEFENDANT CANNOT BE served with THE SUMMONS. 1. Præcipe for the Writ of Summons. [Same as ante, 15.] 2. Writ of Summons. [Same as the forms, ante, 15, 16. See 1 Chit. Ar. Pr. 125.] 3. Affidavit of the Attempts to serve the Summons, in order to obtain Distringas. In the Q. B. [or "C. P." or "Exch. of Pleas."] A. D. 66 Between A. B. plaintiff and C. D. defendant. C. C. clerk to P. A. of -, gentleman, attorney for the above-named plaintiff, maketh oath and saith, that on or about the day of last, this deponent, as clerk to the said P. A., caused to be sued out of this honourable court a writ of summons at the suit of the above-named plaintiff against the above-named defendant, dated the · day of ——— and a true copy whereof is hereunto annexed [annex it, or say a true copy whereof is as follows," and then copy it.] And this deponent further saith, that he has used all the means in his power, and all possible diligence to serve the said defendant personally with a copy of the said writ of summons, and that for the purpose of such service he called and applied at the dwelling-house and place of residence of the said defendant [alter this if not so, saying "as this deponent has been informed and verily believes, from the circumstances of"-showing why you believe it to be his residence,] on the day of instant [or "last,"] and again on the -day of instant [or "last,"] and also again on the day of instant [or "last,"] and on the first and second of those occasions this deponent applied for and inquired after the said de fendant of the wife [or " daughter," or "servant,' or persons who appeared to be of the family and servants"] of the defendant, [if you can name the persons do so,] and whom this deponent informed of the nature of his business, and his wanting to serve the said defendant with a copy of the said writ; but on neither of the said three occasions, or at any other time after the issuing of the said writ, was this deponent able to meet with the said defendant. And this deponent further saith, that he this deponent was told by the wife [or "daughter," &c.] of the said defendant, on the said several respective days, that he the said defendant was from home and could not be seen [here state the answers given on the several occasions according to the fact]. And this deponent further saith, that on the first of those occasions he told the wife [or " daughter," or servant," &c.] of the said defendant that he would call again for the same purpose, and appointed to see the said defendant on the said day of instant [or "last,"] and on the second of those occasions this deponent told the wife [or "daughter," or "servant" &c.] of the said defendant, that he would call again for the same purpose, and appointed to see the said defendant on the said day of instant [or "last."] And this deponent further saith, that on the last of those occasions this deponent left a copy of the said writ of summons with the said defendant's wife [or "daughter," or "servant" &c.] for the said defendant, and told her to give it to him. And this deponent further saith, that, for the reasons aforesaid, he verily believes the said defendant kept and still keeps out of the way, to avoid being served with the said writ of summons; and that the said defendant hath not appeared to the said writ of summons [or❝ had not appeared to the said writ of summons on or before the day of instant (or 'last,') on which day this deponent searched in the proper office of this honourable court, for the purpose of ascertaining whether the said defendant had appeared to the said writ, and this deponent verily believes that he hath not hitherto appeared thereto] (a) and that he cannot be compelled to do so without some more efficacious process than the said writ of summons. Sworn [&c. (b).] C. C. [For the requisites of this Affidavit, see 1 Chit. Ar. Pr. 126, 127.] 4. Rule of Court thereon. the day of, in In the Q. B. [or "C. P." or "Exch. of Pleas."] V. D. term, in the year of the reign of Queen Victoria. B. Upon reading the affidavit of C. C. it is ordered, that a writ of distringas do issue, directed to the sheriff of [or as the case may be,] to compel an appearance by or on behalf of the defendant, [or if the rule be for the purpose of proceeding to outlawry, say, "for the purpose of proceeding to outlaw the defendant"] pursuant to the statute in that case made and provided. On the motion of Mr. B. V. By the Court. 5. Judge's Order for drawing up Rule, in Vacation. Upon reading the affidavit of C. C., I do order that one of the Masters do draw up a rule that a writ of distringas do issue, directed D. to the sheriff of - [or as the case may be,] to compel an appearance by or on behalf of the said defendant, [or if the rule be for the purpose of proceeding to outlawry, say, "for the purpose of proceeding to outlaw the defendant,"] pursuant to the statute in that case made and provided. Dated the day of 1839. [Judge's signature.] 6. Præcipe for Writ of Distringas. [the county to sheriff of which the distringas is directed.] (a) It is no objection to the motion for a distringas, that the search has been made four days before, if the ·time for appearance has elapsed, and Writ the affidavit be otherwise sufficient; Waugh v. Fry, E. 1839, 3 Jurist, 388. (b) See Index, title “Jurat.” of distringas for A. B. against C. D. returnable on promises [or as the action is.] P. A. attorney, [See 1 Chit. Ar. Pr. 128.] 7. Writ of Distringas. in an action on 1839. Victoria, by the grace of God, of the united kingdom of Great Britain and Ireland queen, defender of the faith, to the sheriff of (a), greeting: We command you that you omit not (b) by reason of any liberty in your bailiwick, but that you enter the same and distrain upon the goods and chattels of C. D. for the sum of forty shillings, in order to compel his appearance in our court of Q. B. [or "C. P." or "Exch. of Pleas,"] to answer A. B. in a plea of trespass on the case (c) [or "debt," or as the case may be,] and how you shall execute this our writ you make known to us in our said court on the now next ensuing. Witness (name of chief justice, or in Exchequer, of chief baron,) at Westminster, the year of our reign. day of in the day of (a) This must be the sheriff or returning officer who is to have the execution of the writ. See 1 Chit. Ar. Pr. 129. In Middlesex, although two individuals act as sheriff, yet in law they constitute but one sheriff, and the writ must be directed accordingly " To the sheriff of Middlesex;" though perhaps a direction in the plural number would not invalidate the writ. In each of the following places there are two sheriffs, viz.-the cities of Bristol, Chester, Coventry, Gloucester, Lincoln, London, Norwich and York, and the town of Nottingham. In the first eight of these cities the writ should be directed " To the sheriffs of the city of --." In the town of Nottingham the direction is "To the sheriffs of the town and county of Nottingham;" though, perhaps, a direction in the singular number would not invalidate the writ. The following is the direction of the writ in other places:-" To the sheriff of the city of Canterbury," ""To the sheriff of the city of Exeter," 39.86 To the sheriff of the city of Litchfield and the county of the same city," "To the sheriff of the city of Worcester," "To the sheriff of the town and county of Kingston-upon-Hull," "To the sheriff of the town and county of Newcastleupon-Tyne," "To the sheriff of the town and county of Poole," " To the sheriff of the town and county of Southampton," ""To the sheriff of the town and county of Carmarthen," "To the sheriff of the town and county of Haverfordwest." To the county palatine of Lancaster or the county palatine of Durham writs are directed as in the form, post, 21. To the county of Chester, the writ is now directed to the sheriff. To the cinque ports, the writ is directed thus:-"To the constable of Dover Castle." In the Isle of Ely, the writ is directed "To the sheriff of Cambridgeshire." In the borough of Southwark, the writ is directed" To the sheriff of Surrey." To a corporate town of exclusive jurisdiction, where there are no sheriffs, the writ must be directed to the corporation by the corporate name, as thus: "To the mayor and bailiffs of Berwick-upon-Tweed." See 1 Chit. Ar. Pr. 129. A writ to be executed in the city of Oxford is nevertheless to be directed to the sheriff of the county. To the coroners of a county, &c. the writ is directed thus: "To the coroners of our county of ог "of our city of See 1 Chit. Ar. Pr. Book 1, Part 2, Ch. 1, s. 7. (b) As to this non-omittas, see id. (c) Sic in 2 Will. 4, c. 39, sched. The following Notice must be subscribed thereto. In the Court of (a) Q. B. [or “ C. P." or "Exch. of Pleas."] Between A. B. plaintiff and C. D. defendant. Mr. C. D. Take notice, that I have this day distrained upon your goods and chattels in the sum of forty shillings, in consequence of your not having appeared in the said court to answer to the said A. B. according to the exigency of a writ of summons bearing teste on the day ofand that in default of your appearance to the present writ within eight days inclusive after the return hereof, the said A. B. will cause an appearance to be entered for you, and proceed thereon to judgment and execution [or if you purpose proceeding to outlawry, "will cause proceedings to be taken to outlaw you."] [If the action be for the recovery of a debt, indorse the writ also with the indorsement of debt and costs, as ante, 16.] [See 1 Chit. Ar. Pr. 128.] 8. Writ of Distringas into a County Palatine. Victoria [&c. as above,] to the chancellor of our county palatine of Lancaster [or "Durham"] (b), or his deputy there, greeting. We command you, that by our writ, under the seal of our said county palatine, to be duly made and directed to the sheriff of our said county palatine, you command the said sheriff that he omit not by reason of any liberty in his bailiwick, but that he enter the same and distrain upon the goods and chattels of C. D. for the sum of forty shillings, in order to compel his appearance in our Court of Q. B. [or "C. P." or "Exch. of Pleas,"] to answer A. B. in a plea of trespass on the case (c) [or "debt," or as the case may be,] and how he shall have executed that our writ he make known to us in our said court, on the day of now next ensuing. Witness (name of chief justice, or, in Exchequer, of chief baron,) at Westminster, day of in the year of our reign. the The following Notice must be subscribed to this Writ. In the Court of Q. B. [or "C. P." or "Exch. of Pleas."] Mr. C. D. Between A. B. plaintiff and C. D. defendant. Take notice [&c. proceed as in the above notice, and indorse it as above directed in the preceding form, No. 7.] 9. Mandate to the Sheriff of a County Palatine, in pursuance of the above Writ. Victoria [&c. as above.] To the sheriff of Lancashire [or " Durham"] (b), greeting. We command you that you omit not by reason of any liberty in your bailiwick, [&c. as in the above writ of distringas to the teste, commanding the sheriff in the second person to do what is required by the writ.] Witness ourself at Lancaster [or "Durham"], the day of. - in the year of our reign. [Subscribe the notice to it, and indorse it as directed in the preceding form, No. 8.] (a) Sic in 2 Will. 4, e. 39, sched. (b) The palatine jurisdiction of the Bishop of Durham was transferred to the crown (as a separate franchise and royalty), by 6 & 7 Will. 4, c. 19. Writs should therefore now be directed as above, and not to the bishop. (c) Sic in rule of M. T. 3 Will. 4. |