CHAP. XII. Appearance, what. How it differed from bail. Time formerly allowed for entering, in actions by original, in K. B. In C. P. By R. H. 2 W. IV. reg. 1. $ 31. Time allowed for filing common bail, in actions by bill, in K. B. Appearance, or common bail, by plaintiff, on stat. 12 Geo. I. c. 29. Of APPEARANCE, and SPECIAL BAIL. 66 APPEARANCE is the first act of the defendant in court; and differed from putting in bail, which was the act of the court itself", as is evident from the language of the bail-piece in the King's Bench, wherein the defendant was stated to be delivered to bail, &c. In actions by original, in the King's Bench, the defendant must formerly have entered his appearance, upon a summons, attachment, or distringas, on or before the quarto die post of the return of the writ d. So, in the Common Pleas, the appearance must have been entered within four days after the return, which were reckoned inclusive both of the return day and the quarto die poste. But, by a late rule of all the courts, a defendant who had been served with process by original, must have entered an appearance within four days of the appearance day, if the action were brought in London or Middlesex, or within eight days of the appearance day, in other cases; otherwise the plaintiff might have entered an appearance for him, according to the statute; and any attorney who undertook to appear, must have entered an appearance accordingly." In actions by bill, in the King's Bench, where the defendant had been served with a copy of a bill of Middlesex, &c. he must formerly have filed common bail at the return of it, or within eight days after such return, which were reckoned exclusively; and Sunday was not accounted as one of them, if it happened to be the last b. Before the statute 12 Geo. I. c. 29, common bail could only have been filed, or a common appearance entered, by the defend a Com. Dig. tit. Pleader, B. 1. Stroud v. Lady Gerrard, 1 Salk. 8. and see Tidd Prac. 9 Ed. 238. d Trye, jus fil. 67, 8. e Fano v. Coken, 1 H. Blac. 9. f R. H. 2 W. IV. reg. 1. § 31. 8 Bing. 292. and see 2d Sup. to Tidd Prac. 9 Ed. 19. Stat. 5 Geo. II. c. 27. § 1. Shadwell v. Angel, 1 Bur. 56. and see Tidd Prac. 9 Ed. 240, 66 IV. c. 39, &c. ant, or his attorney: But, by that statute, as altered by the 5 CHAP. XII. Geo. II. c. 27, "if the defendant having been served with pro66 cess, did not appear at the return thereof, or within eight days "after such return, the plaintiff, upon affidavit of the service of "such process, made before a judge, or commissioner of the court "for taking affidavits, or before the proper officer for entering common appearances, or his deputy, might have entered a common appearance, or filed common bail for the defendant, and proceeded thereon, as if such defendant had entered his appearance, or filed common bail." Original writs, however, having been Time and mode of appearance abolished by the statute 2 W. IV. c. 39., and there being no now regulated longer any distinction between proceedings by original writ and by stat. 2 W. by bill, the time and mode of appearance to serviceable process are now regulated by that statute, and the forms of writs of summons and distringas, &c. in the schedule annexed thereto : and they are entered, either by the defendant or his attorney, or, in their default, by the plaintiff or his attorney. When the defendant, in ordinary cases, has been personally On service of served with the writ of summons, he is commanded thereby, within eight days inclusive after such service, to cause an appearance to be entered for him, in the court out of which the writ issued; or, in default of his so doing, the plaintiff may, by the terms of the writ, cause an appearance to be entered for him, and proceed therein to judgment and execution. For this purpose, an affidavit should be Affidavit of sermade of the service of the writ, though it is not expressly required by the statute. And when the plaintiff proceeds by writ of summons against a member of parliament, to enforce the provisions of the statute 6 Geo. IV. c. 16. § 10. the defendant is commanded by the writ, that within one calendar month next after personal service thereof on him, he do cause an appearance to be entered for him, in the court wherein he is suede. On the execution of the writ of distringas, the defendant should, within eight days inclusive after the return thereof, cause an ap writ of summons, appear ance to be en tered by defend ant. Or, in default thereof, by plain tiff. vice of writ. In action against member of parliament. On execution of distringas, ap pearance to be entered by defendant. Or, in default thereof, by plaintiff. May be entered by plaintiff,without leave of court. Proceedings on return of non est inventus, and nulla bona. Affidavit for authorizing plaintiff to enter appearance. Entering ap pearance, when one of several pearance to be entered for him, in the court out of which the writ issued; or, in default thereof, the plaintiff may, by the terms of the notice subscribed to the writ a, cause an appearance to be entered for him, and proceed thereon to judgment and execution, in like manner as when the writ of summons has been personally served on the defendant; or (if the defendant be subject to outlawry,) may cause proceedings to be taken to outlaw him c. And where a sheriff has distrained on a defendant's goods, and the defendant does not appear according to the exigency of the writ, the plaintiff, we have seen, on an affidavit of the due execution of the writ, may enter an appearance for him, without leave of the courte. But "if such writ of distringas shall be returned non est “inventus and nulla bona, and the party suing out such writ shall "not intend to proceed to outlawry or waiver, according to the "authority thereinafter given, and any defendant against whom "such writ of distringas issued, shall not appear at or within eight days inclusive after the return thereof, and it shall be made appear by affidavits, to the satisfaction of the court out of which "such writ of distringas issued, or, in vacation, of any judge of "either of the said courts, that due and proper means were taken " and used to serve and execute such writ of distringas, it shall "be lawful for such court, or judge, to authorize the party suing "out such writ, to enter an appearance for such defendant, and to "proceed thereon to judgment and execution.” 66 When there are several defendants, and one of them only has been served with a copy of the capias, and not arrested thereon, if defendants only the latter defendant does not enter a common appearance within eight days after such service, the plaintiff, on an affidavit of such service, may enter a common appearance for him, and proceed thereon to judgment and execution. And when the attorney, has been served with capias. a Sched. to stat. 2 W. IV. c. 39. No. 3. Append. to Chap. IV, &c. § 29. b Ante, 76. Ante, 85. Append. to Chap. XII. § 2. an appearance in term time, id. § 4. and judge's order in vacation, id. § 5. h Stat. 2 W. IV. c. 39. § 3. And for the time and mode of appearance by the plaintiff, on stat. 7 & 8 Geo. IV. c. 71. * Johnson v. Smealey, 1 Dowl. Rep, § 5. see Tidd Prac. 9 Ed. 113, 14. 243. When defendant is discharged, on declaration of attorney, that writ was not &c. riff's hands. whose name is indorsed on the writ, as having sued out the same, declares that it was not issued by him, or with his authority, the court or a judge, we have seen, may, if it shall appear reasonable so to do, make an order for the immediate discharge of the defend- issued by him, ant, who may have been arrested thereon, on entering a common appearance. By the statute 43 Geo. III. c. 46, when the de- After depositing fendant, on being arrested, is discharged out of custody, on de- money in shepositing money in the sheriff's hands, in lieu of finding sureties for his appearance at the return of the writ, the plaintiff is authorized, in case the defendant shall not put in and perfect special bail in the action, to enter a common appearance for the defendant, if the plaintiff shall so think fit. And, by the statute 7 & 8 Geo. IV. c. 71.d when the defendant, instead of putting in and perfecting special bail, deposits and pays into court the sum indorsed upon the writ, together with an additional sum, as a security for costs, to abide the event of the suit, he is required to enter a common appearance, within such time as he would have been required to have put in and perfected special bail in the action, according to the course of the court; or, in default thereof, the plaintiff is empowered to enter such common appearance for the defendant, and the cause may proceed, as if the defendant had put in and perfected special bail. After paying court, in lieu of money into special bail. ance. The mode of appearance to the writ of summons &c., is pointed Mode of appearout by the statute 2 W. IV. c. 39; and declared to be, "by de"livering a memorandum in writing, according to the form con"tained in the schedule annexed thereto, marked No. 2f; such me"morandum to be delivered to such officer or person as the court "out of which the process issued shall direct, and to be dated on "the day of the delivery thereof." For entering an appearance, Fees for enter 10. And see further, as to the time ing appearance. CHAP. XII. a fee of one shilling is allowed, by rule of court, for every defendant, unless an appearance shall be entered for more than one defendant, by the same attorney; and in that case, a fee of four pence for every additional defendant. Proceedings on arrest. Time for putting in special bail. The defendant, we have seen, being arrested on the writ of capias, is either discharged out of custody, on giving bail to the sheriff, or an attorney's undertaking for his appearance, according to the exigency of the writ, or on depositing in the sheriff's hands, the sum indorsed thereon, together with 10%. in addition, to answer costs, &c. on the statute 43 Geo. III. c. 46. § 2; or he remains in custody, or escapes, or is rescued, &c. If the defendant be discharged out of custody, on giving bail to the sheriff, he should, within eight days after the execution of the writ on him, inclusive of the day of such execution, cause special bail to be put in for him to the action, in the court in which it is brought; or, in default of his so doing, such proceedings may be had and taken as are mentioned in the warning thereunder written, or indorsed thereon c. 29. id. 240; and by the plaintiff or his 119; with the clerk of the common bails, by bill against members of the House of Commons, id. 120; or, on common process against the person, in the King's Bench, id. 240; and, in the Exchequer, in the appearance book, in the office of pleas, id. 120. In the latter court, it is now entered with the filazer. a R. M. 3 W. IV. reg. 2. 2 Moore & S. 329. 9 Bing. 443. b Ante, 97. Sched. to stat. 2 W. IV. c. 39. No. 4. And for the nature of special bail, and by whom, when, and how put in and perfected, see Tidd Prac. 9 Ed. 244, &c.; and for the late rules respecting such bail, see 2d Supplement thereto, p. 20, &c. |