10. Sheriff's Warrant on Distringas. To B. B. and J. B. my bailiffs. to wit. Distrain C. D. by all his lands and chattels in my bailiwick, so that he appear in the Court of Queen's Bench, [or "C. P." or "Exch. of Pleas,"] at Westminster, on- to answer A. B. in an action on promises [or as the plea is.] P. A. solicitor. Levy forty shillings. Dated the day of S. S. esquire, sheriff. 11. Return of Execution of Distringas, and Service of Notice, where Defendant can be met with. The within-named C. D. is distrained by B. B. and J. B. of the value of 40s. And I further certify and return, that at the time of the execu tion of this writ, I caused the said C. D. to be personally served with a true copy of the within writ, and the notice thereto subscribed and the indorsements thereon. The answer of S. S. sheriff. [See 1 Chit. Ar. Pr. 131.] 12. The like, where Defendant cannot be met with. The within-named C. D. is distrained by B. B. and J. B. of the value of 40s. And I further certify and return, that at the time of the execution of this writ, the said C. D. was not found, nor could be met with in my bailiwick; wherefore I caused a true copy of the within writ, and the notice thereto subscribed, and the indorsements thereon, to be left at his dwelling-house [or "usual place of abode,"] situate at in my county, being the place where this writ was executed. The answer of S. S. sheriff. [See 1 Chit. Ar. Pr. 131.] 13. Memorandum for and Entry of Appearance thereon. [Same as ante, 17.] 14. Return of Nulla Bona and Non est inventus to Distringas. The within-named C. D. hath nothing in my bailiwick by which he can be distrained; nor is he found in the same. The answer of S. S. sheriff. 15. Affidavit of Return of Non est inventus, &c. to Distringas, and that same cannot be executed (a). In the Q. B. [or "C. P." or "Exch. of Pleas."] P. A. of Between A. B. plaintiff and C. D. defendant. attorney for the above-named plaintiff, and B. B. of officer to the sheriff of severally make oath and say; and first this deponent P. A. for himself saith, that by the leave of this honourable court [or "the Honourable Mr. Justice"], a writ of distringas with the proper notice in that behalf, a copy whereof is hereunto annexed [annex it ], was on or about the last issued out (a) Where the writ has been executed, no affidavit is necessary, Page day of v. Hemp, 4 Dowl. 203; 2 C. M. & R. 494; 1 Gale, 186, S.C. of this honourable court at the suit of the above-named plaintiff against the above-named defendant, in order to procure the said defendant's appearance in this court, to answer the said plaintiff in an action of [as the action is], and which said writ and notice, together with a true copy thereof, was on or about the day of last delivered to the said B. B. then acting as an officer to the said sheriff, to be duly executed. And this deponent further saith, that he on last [or "instant"] day of searched at the office of the masters of this honourable court for the return of the said writ of distringas, and there found that the said sheriff had returned to the said writ, that the said defendant was not to be found in the said sheriff's bailiwick, and that he had no goods or chattels therein by which he could be distrained: And this deponent B. B. for himself saith, that he this deponent did on the last [or "instant,"] by virtue of a warrant granted by the said sheriff upon the said writ of distringas, proceed to distrain [&c. you must here state fully and particularly the means that have been taken and used to serve and execute the writ of distringas, so as to satisfy the court or judge that due and proper means were taken and used for that purpose. You should state that the defendant keeps out of the way to avoid the service, as mentioned in the form, ante, 18, No. 3; and some of the statements in that form will assist in the framing of this. The affidavit of the officer may be corroborated by the attorney or other persons.] Sworn [&c. (a).] P. A. B. B. [See 1 Chit. Ar. Pr. 132.] 16. Rule thereon, for entering an Appearance. In the Q. B. [or "C. P." or " Exch. of Pleas."] A. B. V. Upon reading the affidavit of P. A. and B. B. it is ordered that the plaintiff be at liberty to enter an appearance for the defendant C. D. Sin this action, according to the statute in that case made and provided, and to proceed thereon to judgment and execution. Upon the motion of Mr. By the Court. [See 1 Chit. Ar. Pr. 132.] B. V. 17. Judge's Order thereon, in Vacation. Upon reading the affidavit of P. A. and B. B. I do order that [&c. proceed as in the preceding form to the asterisk, and then thus:] D. SDated the day of A.D. [Judge's or Baron's signature.] [See 1 Chit. Ar. Pr. 132.] 18. Memorandum for and Entry of Appearance thereon. [Same as ante, p. 17.] 19. Return of Issues. The manucaptors of the within-named defendant are B. B. and J. B. my bailiffs. Issues forty shillings. The answer of S. S. esquire, sheriff. (a) See Index, title "Jurat." B. V. 20. Rule Nisi for Sale of Issues in Q. B. or Exchequer. On the day of in term, Victoria. Upon reading the writ of distringas issued in this cause, it is ordered, that the defendant, upon notice of this rule to be given to D. Shim, shall, on next, show cause why the issues returned upon the said writ of distringas should not be sold, and the monies arising from the sale thereof should not be forthwith brought into court, and why it should not be referred to one of the masters to tax the plaintiff his costs, occasioned by his issuing out the said writ; and why the costs when taxed should not be paid out of the monies so brought into court, and why the surplus of the said monies, after payment of the said costs, should not be retained in court, until the purpose of the said writ be answered. Upon the motion of Mr. By the Court. [See 1 Chit. Ar Pr. 133.] 21. The like in C. P. [Same as in the preceding form, but the rule is] "to show cause why it should not be referred to one of the masters, to tax the plaintiff's costs of and occasioned by the writ of distringas, issued in this cause to the sheriff of, and also the costs of this application to the court; and why the said sheriff should not be directed to sell so much of the issues levied by him, by virtue of the said writ, as will be sufficient to answer the said costs when taxed: and why the said sheriff should not, with the monies arising from such sale, pay to the plaintiff or his attorney such costs, and return the residue of the said issues to the defendant, pursuant to the statute in that behalf made and provided." 22. Authority to restore Issues, on Appearance (a). To the sheriff of Sir, A. B. plaintiff against C. D. defendant. The defendant having appeared, you are hereby authorized and required to restore to him the issues levied by you, on process issued in this cause, between the said parties: for which this shall be your warrant. Dated the day of 1839. P. A. attorney for the said plaintiff. (a) Quare, whether the goods must not be returned without such authority being given, on an appearance being entered? See Smith v. M'Donald, Dowl. 688. CHAPTER III. PROCEEDINGS FROM THE DECLARATION TO THE ENTERING OF THE CAUSE FOR TRIAL, INCLUSIVE. SECTION I.-THE DECLARATION. 1. Demand of Declaration. In the Q. B. [or “ C. P." or " Exch. of Pleas."] The defendant demands a declaration in this cause, otherwise judgment of non pros. Dated this - 1839. To Mr. P. A., plaintiff's attorney, [or "agent."] A. B. v. C. D. Yours, &c. D. A., defendant's attorney, [See 1 Chit. Ar. Pr. 139.] B. V. 2. Rule for Time to declare. It is ordered that the time"] to declare [or On the day of A. D. 1839. plaintiff have [a month's] time [or "further until the first day inclusive of the next D. term," or "last day inclusive of the present term"] if the defend ant is not in custody. By the Court. Side Bar, [or in C. P. here say, "In the Treasury Chamber, at the plaintiff's instance."] [See 1 Chit. Ar. Pr. 138.] 3. Rule to declare peremptorily. In the Q. B. [or "Com. Pleas." or " Exch. of Pleas."] that the plaintiff, upon notice of this rule to be given to his attorney, D.shall peremptorily declare in this cause on or before that a non pros may be entered. Upon the motion of Mr. [It is not within the province of this work to contain forms of special pleadings; and only such forms are given as are most simple and in common use, and which an attorney may be reasonably expected to prepare. In other cases the attorney should get the declaration drawn by counsel or special pleader.] 5. Beginning and Conclusion of a Declaration after a Writ of In the Q. B. [or " C. P." or " Exch. of Pleas."] On the day of in the year of our Lord 1839. (venue) to wit: A. B. by P. A. his attorney [or "in his own proper person"], complains of C. D. who has been summoned to answer the said A. B. (b) in an action on promises, [or "of covenant," or "on the case," or "of trespass," or if in debt, say, "of debt, and he demands of him the sum of £- (the aggregate amount of the sums demanded in the subsequent part of the declaration,) which he owes to and unjustly detains from him" (c).] For that whereas [&c. here state the subject-matter of the declaration, (if in trespass omit the word "whereas," and state the trespass to have been committed" with force and arms, &c.") and conclude thus:] To the damage of the plaintiff of £, and therefore he brings suit, &c. [Or in trespass conclude thus, " And other wrongs to the plaintiff then did, against the peace of our lady the queen, and to the plaintiff's damage of £- and therefore he brings suit, &c."] [If the action is by or against a party in a representative character, as in the case of executors, &c., this form must be altered accordingly; see forms, post, Book S, Part 2.] 6. The like, after a Writ of Capias. [The writ of capias prescribed by 1 & 2 Vict. c. 110, Sched., and the proceedings under it, are merely collateral to the action. A writ of summons must it seems (d) be sued out before the capias can be issued, and the main proceedings in the action are founded on the writ of summons, and not on the writ of capias. Neither the form nor the time of declaring, therefore, can be affected by the circumstance of a writ of capias having been sued out under 1 & 2 Vict. c. 110, s. 3. There is one case indeed in which (see Turner v. Darnell, 7 Dowl. 346,) the writ of capias under 2 W. 4, c. 39, may still be issued, viz., that of an insolvent liable to be detained or arrested under the 85th section of 1 & 2 Vict. c. 110. In that case, however, it is very unlikely that the plaintiff will proceed further than arresting or detaining the insolvent, for any further proceedings might be rendered fruitless by plea or auditá querela, at the end of the prescribed period of imprisonment, and in such a case the plaintiff is not obliged to declare within two terms, and it is doubtful whether he is bound to declare at all. (See Buzzard v. Bousfield, 7 Dowl. 1.) For these reasons the forms connected with the old writ of capias are omitted in this edition.] 7. The like, where the Cause is removed from an inferior Court. (a) This form is for the most part mencement stopped here. (c) It would suffice, it seems, merely to say "in an action of debt," without stating what the plaintiff demands. (d) It has been the practice to require an affidavit of this; see per Alderson, B. Turnor v. Darnell, 7 Dowl. 346; but in Holborn v. Tucker, at Chambers, September, 1839, Maule, B. intimated that the point had undergone reconsideration. |