Cases to which stat. 2 W. IV. c. 39, does not apply. this statute, being confined to personal actions, did not apply to such as were purely real, as the writ of right, formedon, &c., or to mixed actions, as dower unde nihil habet, quare impedit, ejectment, waste, &c. But, by a subsequent statute a, which has been noticed in a preceding chapter, all real and mixed actions are to be abolished, except the writ of right of dower, writ of dower unde nihil habet, quare impedit, and ejectment. These excepted actions, however, may still be commenced by original writ; and the action of ejectment may be brought, as before the statute, either by original writ, in the King's Bench or Common Pleas, or by bill, in the King's Bench, or Exchequer of Pleas. The action of replevin also, which is a personal action, and other personal actions commenced in inferior courts, and removed from thence into superior ones, do not seem to be within the statute: for besides that these actions are not commenced in any of the superior courts of law at Westminster, there is a clause in the act, that "nothing therein of computing the time allowed for particular purposes in the course of the suit. Original writs, and the process thereon, were formerly made returnable on essoign or general return days, as in eight days of St. Hilary, &c., of which there were four in each term, except Easter, which had five; but process by bill was made returnable on particular return days, as on Monday (or other day of the week) next after eight days of St. Hilary, &c. The essoign or general return days were fixed and regulated by the statutes 11 Geo. IV. & 1 W. IV. c. 70. § 6. and I W. IV. c. 3., for which see 2d Sup. to Tidd Prac. 9 Ed. 7, &c.; and for the essoign or general return days of original writs, &c., as fixed and regulated thereby, see id. 9, 10. But there was no mention made, in either of these statutes, of particular return days, or return days of process by bill: Such process, therefore, might have been made returnable on any day of the term, not being Sunday: and, with regard to the return days of writs in general, it was deemed sufficient in all cases to describe them by the days of the month on which they happened, as on the &c. "contained shall extend to any cause removed into either of the CHAP. IV, "said courts, by writ of pone, certiorari, recordari facias loquelam, “habeas corpus, or otherwise." The King, not being named in this statute, is not bound thereby; and consequently may proceed by scire facias, which is a judicial writ, issuing out of and under the seal of the court of Exchequera, for the recovery of a debt due to him on bond, recognizance, or judgment a, &c., or found by inquisition on an outlawry, or extent; or by an original writ of scire facias, to repeal letters patent d. And a subject is not prohibited by the statute, from suing out a scire facias, which is, for some purposes, considered as a personal action e, to obtain execution on a judgment, or recognizance; or a writ of error, which is an original writ 6, for reversing a judgment. It has also been determined, that the statute applies to the commencement of actions only, and not to the continuance of actions, commenced before it came into operation h; and that it did not, therefore, prevent the signing of a pluries bill of Middlesex, in a suit previously commenced h The writs of summons and capias, it will be observed, are only Primary and primary, or writs taken out in the first instance, to compel the auxiliary writs. defendant to appear, or put in and perfect special bail to the action : But besides these, and consequent upon them, other auxiliary writs are authorized by the statute to be issued, for the same purposes. These writs are, 1. The writ of distringas, which issues where the defendant has not been personally served with the writ of summons, and has not, according to the exigency thereof, appeared to the action, and cannot be compelled so to do, without some more efficacious processi: 2. The writ of alias or pluries summons, or capiask, for continuing the cause, if the defendant has not been served therewith, or arrested thereon: 3. The writs of exigi facias, and proclamation, &c. for outlawing, or waiving, the defendant, upon the return of non est inventus to a writ of capias, or of non est Serviceable or bailable writs. Process in personal actions, how treated of. Writ of summons what, and in what cases it lies. inventus, and nulla bona, to a writ of distringas. When the writ is to be served, it is said to be serviceable; and when the defendant is to be arrested thereon, it is of a bailable nature. In treating of the process in personal actions, as prescribed by the statute 2 W. IV. c. 39. it is proposed to consider, in the present chapter, the writs of summons, and distringas, which are of a serviceable nature, with the service and execution thereof; and, in the next chapter, the writ of capias, which is of a bailable nature, with the execution of it, and process of outlawry. 66 The writ of summons is a judicial writ, founded on the above statute, by which it is enacted, that "the process in all personal "actions, commenced in either of the said courts, in cases where it " is not intended to hold the defendant to special bail, or to pro"ceed against a member of parliament, according to the provisions "contained in the statute passed in the sixth year of the reign of "his late Majesty King George the Fourth, intituled An Act to "amend the Laws relating to Bankrupts, shall, whether the action "be brought by or against any person entitled to the privilege of peerage, or of parliament, or of the court wherein such action "shall be brought, or of any other court, or to any other privilege, or by or against any other person, be according to the form con"tained in the schedule to that act, (2 W. IV. c. 39.) annexed, "marked No. 1.; and which process may issue from either of the How considered. "said courts, and shall be called a writ of summons.”d writ is considered as the commencement of the action, for all purposes; and may, it seems, be issued against prisoners in custody of the sheriff, &c., or of the marshal of the King's Bench, or warden of the Fleet prison, as well as against defendants who are not in custody. May be issued against prisoners, in custody of sheriff, &c. . Privileges of attornies on. This The privileges of an attorney to sue, in his own court, by attachment of privilege, in the King's Bench and Common Pleas, or by capias of privilege in the Exchequer, and to be sued by bills in all the courts, CHAP. IV, &c. are taken away by this statute. But he still retains his privilege of freedom from arrest; it being declared by the act, that "nothing therein contained shall subject any person to arrest, who by reason of any privilege, usage, or otherwise, may now by law be exempt therefrom." An attorney, therefore, can only be sued by serviceable process, viz. by writ of summons: It is supposed, however, that he still retains the privilege of being sued in the court of which he is an attorney ; and that there is nothing in the act, to take away his privilege of laying the venue in Middlesex, when he is plaintiff. The writ of summons is directed to the defendant; commanding Direction, and form of writ. him, 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, &c. as the case may be,) at the suit of the plaintiff; and requiring 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 therein to judgment and execution d. In this writ, and 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, are required to be mentioned. And it is a rule, that the form prescribed by the act shall be strictly Form to be strictly adhered adhered to: Therefore, where the name of the plaintiff was not to. stated in the writ of summons, as the person who would enter an appearance for the defendant, if he did not comply with the exigency of the writ, the court set it aside for irregularity: And a § 19. and see Beck v. Lewin, T. 56 Geo. III. K. B. Pearson v. Henson, 4 Dowl. & R. 73. Anon. I Dowl. Rep. 3. 1 Leg. Obs. 44. S. C. K. B. Adams v. Bugby, 12 Moore, 255. C. P. b Chapm. K. B. 2 Addend. 75. * Id. 76. and see Dax Excheq. 2 Ed. 15, 16. Sed quære? and see Welland v. Frument, Barnes, 479. Cas. Pr. C. P. 132. Pr. Reg. 419. S. C. Girdler . Wathews, Barnes, 484. Cas. Pr. C. P. 145. Pr. Reg. 420. S. C. Mounsey v. Watson, 7 Barn. & C. 683. wherein it was holden, that if the plaintiff, though privileged, sue as a common person, by original or otherwise, he loses his privilege of retaining the venue in d Sched. to stat. 2 W. IV. c. 39. No. e Stat. 2 W. IV. c. 39. § 1. and see Wright v. Warren, 3 Moore & S. 164. per Alderson, J. f Smith v. Crump, 1 Dowl. Rep. 519. 5 Leg. Obs. 384, 5. S. C. per Parke, J. The cases referred to in the Legal Observer were, for the most part, decided by a single judge, or baron, in the courts of King's Bench, and Exchequer; and are many of them reported by Mr. Dowling, F CHAP. IV, &c. Names of parties. Misnomer in, not pleadable in abatement. Description of defendant. proceedings were set aside, where the writ of summons was in an action of trespass on the case upon promises. But where, in an action against several defendants, the writ stated that, in default of their entering an appearance themselves, the plaintiff "may cause an appearance to be entered for you," without adding " and each of you," the judge held, that the words "for you" must be taken distributively, as applying to each of the defendants, and therefore that the notice was sufficient b: And where the name of the chief clerk had been omitted on the writ, the judge refused to set it aside for irregularity; it being quite sufficient for a person suing out writs of summons to adopt the form given in the schedule to the act c. 66 The writ of summons should regularly contain the christian and surnames of the parties: But a misnomer, or mistake in their names, cannot now be pleaded in abatement; it being enacted, by the statute 3 & 4 W. IV. c 42a, that "no plea in abatement for a misnomer shall be allowed in any personal action; but that in all cases in which a misnomer would, but for that act, have been by "law pleadable in abatement in such actions, the defendant shall "be at liberty to cause the declaration to be amended, at the costs "of the plaintiff, by inserting the right name, upon a judge's 66 66 summons, founded on an affidavit of the right name; and in case "such summons shall be discharged, the costs of such application "shall be paid by the party applying, if the judge shall think fit." In describing the defendant, if he has a name of dignity, it must be stated in the writ, or he may plead in abatement: but it is not necessary, in an action against a peer, or member of the House of Commons, to describe him as having privilege of peerage, or parliamente. In actions against corporations aggregate, they must be sued by their corporate name f; and when hundredors are sued on the statute 7 & 8 Geo. IV. c. 31., they must be described as "men inhabiting within the hundred ", &c.": but, with these ex 3 King v. Skeffington, 1 Cromp. & C Wilson v. Joy, id. 413, 14. per d § 11. and see same statute, § 12., as to the initials of christian names, in bailable process. e Cantwell v. Earl of Stirling, 1 Moore & S. 297. 8 Bing. 174. S. C. f 2 Inst. 666. Com. Dig. tit. Pleader, 2 B. 1. Tidd Prac. Append. 9 Ed. 36. |