On an attachment of privilege, it shall be entered in the remembrance roll of the prothonotary out of whose office it issued. Ibid. By the st. 5 & 6 W. & M. 21. s. 37. (and 9 & 10 W. 3. c. 25. s. 33.) the defendant shall cause an appearance or common bail to be entered or filed in eight days after the return of the process, on pain of 57. to the plaintiff, for which judgment shall be awarded immediately, and execution taken out. By the st. 4 & 5 Ann. 16. the attorney for the plaintiff or demandant, shall file his warrant of attorney the same term he declares; and the attorney for the defendant or tenant the same term he pleads. (B 3.) How it shall be enforced. As to what process shall be served; wherein of detainers.—Service of special original is not sufficient, it must be of process against the person; or plaintiff may have pone and distress on his original. Barnes, 407. 410. Original once used (though improperly, as by serving copy) cannot be afterwards used. Barnes, 417. To charge a defendant already in custody with a new suit in vacation-time, plaintiff must file a bill as of the preceding term, and then deliver or leave a copy of declaration as of preceding term, and make affidavit of it; there is no occasion for habeas corpus ad respondendum. Hills v. Kenrick. T. 33 & 34 G. 2. 2 B. M. 1048. If defendant is regularly entitled to be superseded, (the order for his being superseded having become absolute two days before the end of a preceding ferm) yet is not actually superseded, but remains in custody of the marshal, and on the 5th day of next term, a declaration is delivered to him at the suit of another plaintiff, he is well charged. Hutchins v. Kenrick. T. 33 & 34 G. 2. 2 B. M. 1048. But if defendant in custody at the suit of plaintiff only, has a supersedeas, plaintiff cannot charge him with a new declaration. Barnes, 363. If defendant is in custody at suit of several plaintiffs, one may discontinue, pay costs, and serve defendant in custody with common capias, and notice to appear, and for want, appear, and sign judgment for want of plea. Barnes, 392. A prisoner, on a charge of felony, may be charged with a latital. Daintree v. Justice, H. 9 G. 2. B. R. H. 190. So, a convict on an act working nó forfeiture, ordered to be pardoned on condition he transports himself, may on motion be charged in custody, in a civil action, but not held to bail, nor have execution against his person; for that would prevent his performing the condition of his pardon. Coffin v. Gunner. T. 4 G. 2. 873. Ld. Raym. 1572. Fost. 61. 1 Wils. 217. 4 T. R. 316. Str. But the court will not take notice of the king's intention to pardon, though signified by the attorney-general. Macdonald's case, 1747. Foster, 61. [*]So, a prisoner, upon conviction for a libel, being in contempt upon an injunction of chancery, may be charged with an attachment; attorney-general consenting. Basket v. Rayner, M. 9 G. 2. B. R. 170. As to the form of the process.-The court will not set aside proceedings and order the bail-bond to be delivered up, because a defendant has been arrested on a special capias, in which as well as in the affidavit to hold to bail, the initials only of bis Christian name were inserted. Howell v. Coleman, 2 Bos. & Pull. 466. But if the latitat be sued out against the defendant by one Christian name, and the alias by another, and the plaintiff afterwards proceeds, the court will set aside the proceedings for irregularity. 3 T. R. 660. If the date is omitted, if it is to appear before the king's justice, (instead of justices,) or not fifteen days between leste and return, proceedings shall be staid. Barnes, 420. 426, 427. The court refused to set aside a bill of Middlesex, which was to answer plaintiff in a plea of debt instead of trespass. 2 T. R. 513. And an ac etiam to answer in a plea of trover, and for converting the goods of VOL. VI. 2 [6] plaintiff; the cause of action is here sufficiently expressed, to hold to bail under 13 C. 2. c. 2. Callaghan v. Harris, H. 9 G. 3. 2 Wils. 392. So, if the writ is not directed to the sheriff of any county, (yet advantage may be otherwise taken. Semb.) Barnes, 404. By 2 Geo. 2. c. 23. s. 22. every copy of any writ or process, that shall be served on any defendant, shall, before the service thereof, be subscribed or indorsed with the name of the attorney or solicitor, who shall be retained or employed by the plaintiff in such writ or process. Hence, attorney's name not being to copy of process, proceedings staid. Barnes, 415. But this does not extend to the case of an attorney suing by attachment of privilege. Attorney's name need not be annexed to the sheriff's warrant. Barnes, 407. 412. 414. If an action be against an officer of a court, he ought to appear of necessity, otherwise he shall be condemned; for he is always present in court. Rol. 580. 1. 22. 8 H. 6. 16. a. As, an attorney; for being upon record, he is always present in court. fault, 36. 8 H. 6. 16. Bro. De 1 Rol. 580. 1. 29. Otherwise, if he be a prisoner in another court. And therefore, if such a one be brought in by habeas corpus, there is no occasion for an appearance. Bro. Default, 33. 36. By the st. 13 Car. 2. 2. sess. 2. any, having cause of personal action against a prisoner in the Fleet, may sue forth his original and have a habeas corpus directed to the warden to bring up the prisoner at a certain day in term before the just. of C. B., and put in a declaration on such original against the prisoner present at bar, who shall be bound to appear in person or by attorney; and if he does not plead on a rule given to be out in eight days after appearance, judgment by nihil dicit shall be entered against him. By the st. 4 & 5 W. & M. 21. if any be arrested on any writ out of the courts at Westminster, and detained for want of sureties for his appearance, the plaintiff, before the end of the next term, after such process shall be returnable, may declare and cause a copy of a declaration [*]to be delivered to the prisoner or gaoler in whose custody he is; and if the prisoner does not appear and plead, the plaintiff shall have judgment, as if he had appeared and refused to plead. If a man arrested upon process is bailable and can find surety, the sheriff dismisses him, if common bail is sufficient on the undertaking of some attorney of the same court to appear for him; if special bail is required, the sheriff takes a boud with surety for his appearance at the return of the pro cess. By the stat. 13 Car. 2. 2. sess. 2. the sheriff shall not require a bond above the penalty of 401. for appearance upon an arrest or process out of B. R. or C. B., unless the cause of action be specially expressed in the writ. After which statute the clause of (ac etiam billa) was inserted in process out of B. R. And afterwards, by rule of court before North Ch. J., it was inserted in process out of C. B. Comp. Sol. 67. Wolfe y In relation to the sheriff.-The sheriff' takes bail at his peril; and on the common rule, he must either bring in the body, or justify good bail in court. Collingwood, H. 23 Geo. 2. 1 Wils. 262. If the sheriff brings defendant in person into court, they commit him charged with the cap. ad. respond. Barnes, 392. By the stat. 12 Geo. 29., amended by 5 Geo. 2. c. 27., made perpetual by 21 Geo. 2. c. 3., if the cause of action amounts not to 107., or in inferior courts to 40s. ; and now, by 19 Geo. 3. c. 70. to 107., the same as in superior courts; the plaintiff shall not arrest, but shall personally serve the defendant with a copy of the process, and if an appearance be not entered in four days after the return of the process, on an affidavit of service filed, shall enter a common appearance, and proceed as if the defendant had appeared. By the stat. 5 Geo. 2. 27. if not entered in eight days. As to the notice to appear.-Notice to appear must be given with all process served. Barnes, 404. And though considered that, in debt, if it is above 10l. there is no occa sion to put the notice to appear at the bottom of the process, under the stat, Geo. 2. 1 Wils. 22. Yet the rule now is, that the English notice to appear, must be added to all common process where the defendant is not held to bail, whether the cause of action do or do not amount to 107. 7 T. R. 337. And though, if there is no notice subscribed to the copy of the process served, it is irregular; yet if defendant's attorney takes the declaration out of the office, and pays for it, it is a waiver of the irregularity. Morgan v. Luckup, P. 9 Geo. 2. B. R. H. 242. If there is variance between the name in process and in notice, proceedings shall be staid. Barnes, 298. 2 B. & P. 38. So, if the notice is directed to plaintiff, instead of defendant, it is faulty; or if the word next is omitted, or next inserted instead of instant. Barnes, 306. 308. 310. 409. 411. 419. But this list is exploded; and notice is good without instant, next, or year, Barnes, 425. So, if the defendant's name is not put to the notice at the bottom of latitat, it is bad, and shall be quashed. Behema v. James, T. 18 Geo. 2. 1 Wils. 104. The day inserted in the notice to appear to a common capias, must be the returnday of the writ. 2 B. & P. 340. Notice on the copy of process must be to appear on the essoin day, though a Sunday. Barnes, 293, 294, 295. [*]Notice to appear on the quarto die post, is good. 1 H. B. 630. It must be given before nine at night. Barnes, 310. As to the mode of service. It is not necessary to show defendant the original writ, but only to deliver him a copy. Per curiam. Worley v. Glover, M. 4 Geo, 2. Str. 877. Barnes, 302. 422. Yet, if defendant served with copy of process, demand to see the original process, and is refused it, it is not good service. Semb. B. R. H. 138. Service of copy of writ, except what relates to other defendants, not good. Barnes, 405. Copy of process tendered to defendant at his house, and left there, is good service. Barnes, 278. So, copy of process put through keyhole to defendant, who knows the contents, good service. Barnes, 405. So, copy sent by letter, if defendant takes it out and reads it, is good service, Barnes, 422. As to the time of service.-Service of mesne process on the return-day, is good in C. B. as in B. R. General rule, P. S Geo. 3. 2 Wils. 372. Though after the court is risen. Hall v. Gatton, H. 2 Geo. 2. Moss v. Powel, T. 11 & 12 Geo. 2. Weyburn v. Neale, M. 19 Geo. 2, 32 & 33 Geo. 2. 2 B. M. 812. Maud v. Barnard, T. But, if process is dated subsequent to service, it is irregular. Barnes, 408. Service of a latitat at eight o'clock in the evening of the return-day, is good, though the declaration be left in the office in the course of the same day. 1 T. R. 191. And the rule is, that all notices, rules, or orders, in any cause depending in B. R. shall be served, and all proceedings and pleadings shall be delivered, and served by or before ten of the clock at night and every service and delivery after such hour shall be void. Reg. Gale, B. R. M. 41 Geo. 3. 1 East, 132. A defendant, however, must not be served with process while he is attending his cause at any of the courts at Westminster. Str. 1094. As to the place of service.-A bill of Middlesex should not be served out of the county of Middlesex. Dougl. 384. 1 T. R. 187. Vide 6 T. R. 74. But a latitat may be served in any county. 1 T. R. 187.; 8 T. R. 235. Service is good, though in a liberty, and not by proper officer; but the party injured may bring action. Barnes, 404. But process directed to the sheriff of Kent served in the Cinque ports is bad; it should be testat. cap. to the constable of Dover castle. Barnes, 422. If it is doubtful, whether the place where defendant was served be in the county where process issued, or not, it shall be deemed good service, especially if defendant promised to appear to any process. Drew v. Marriott, T. 17 Geo. 2. 1 Wils. 77. As to an appearance under the statute.—The plaintiff cannot file common bail according to the statute after the succeeding term after the writ is returnable. T. R. 719. 2 Affidavit of service must be made, or proceedings will be staid. Barnes, 412. If the defendant had been right named, both in the writ of capias ad respondendum, and in the declaration delivered de bene esse, and in the affidavit of service of the writ, but not in the appearance entered by the plaintiff according to the statute, this may, on application to the court, be amended. 3 Wils. 49. As to the time of appearance.-If on defendant's not appearing to a writ of Easter term, plaintiff' files common bail as of Trinity term, the cause is out of court, and judgment must be set aside. Edgar v. Farmer, T. 8 Geo. 2. B. R. H. 138. [*]If an attorney of B. R. or C. B. accepts a warrant (or undertakes to appear, Mod. Ca. 86.) or subscribes a process or warrant to make an appearance, and does not enter an appearance accordingly, he shall be subject to an attachment, or to be erased out of the roll, and the party cannot countermand appearance after retainer. Ord. Compl. Att. 292, 293. If the party afterwards countermands the warrant, the attorney shall be compellable to enter an appearance. Pr. R. 38. But if there are several defendants, the attorney is bound only to appear for such of them as give him authority. Pr. R. 39. 1 Sal. 87. If upon an arrest, the sheriff takes surety for appearance, and the party does not appear, the sheriff may be amerced, on a rule being given to bring in the body; and so toties quoties. Comp. Att. 311. But the usual way is to assign the bail-bond to the party. Vide Bail, (K. 5.) And now, by the stat. 4 & 5 Ann. 16. if, on an arrest by process from the courts at Westminster, the sheriff, &c. takes bail, he, at the request and costs of the plaintiff, shall assign to him the bail-bond, &c. by indorsing it under his hand and seal in the presence of two witnesses, which may be done without stamp, if stampt before put in suit; and if such bond be forfeited, the plaintiff may sue it in his own name, and the court may, by rule or rules of court, give such relief to the plaintiff or defendant in the original action, or to the bail, as is reasonable; which rule shall be in the nature of a defeasance to the bail-bond. But an action upon the case does not lie against the sheriff for a false return; for he is compellable to accept bail by the stat. 23 H. 6. 10. R. 2. Sand. 60. 1 Sid. 23. 439. R. 1 Rol. 92. 1. 50. 807. l. 50. R. Noy. 39. If the plaintiff does not take an assignment of the bail-bond, but proceeds, by amerciament of the sheriff, to enforce the appearance of the defendant, he ought to give 4d. to the sheriff to make a return of the writ, and if he returns cepi corpus, or reddidit se, he shall give a rule to the sheriff to have his body on pain of 40s.; and if he has it not, he may have an habeas corpus, upon which the sheriff can return nothing, (if he has not the body,) but languidus in prisona, and then shall issue a duces tecum licet languidus; if the sheriff does not return the habeas corpus, he shall be amerced; and so toties quoties, and the amerciaments may be estreated into the crown office, and from thence into the exchequer. Compl. Att. 311. Vide Bail, (K 5.) But after the estreat of the amerciaments, they may be compounded or discharged, upon motion in the exchequer, and a certificate of the plaintiff's attorney that the debt is satisfied. 1 Sal. 54. Effect of a rule to stay proceedings.-Where a rule to set aside proceedings for irregularity, and to stay proceedings in the mean time, is obtained; the proceedings are suspended for all purposes till the rule is discharged. 4 T. R. 176. Waiver of irregularities.-If a defendant is served with process by a wrong christian name, and afterwards the plaintiff enter an appearance for him, and serve him with notice of declaration by his right name, and proceed to judgment and execution, the court will not set aside the proceedings for irregularity, on the ground that the defendant never appeared, [*]because he ought to have pleaded such misnomer in abatement. 3 East, 167.: leave however was given to defend, on payment of costs, the party swearing to a mistake of the practice and to merits. Ibid. So, if the copy of latitat served is only to answer A. without saying in a plea of trespass, or showing any cause of action, and defendant takes the declaration out of the office, it amounts to an appearance, which is a waiver of the defect in the process. Caswall v. Martin, P. 10 Geo. 2. B. R. H. 369. But if the plaintiff's name is omitted in the writ, defendant may at any time apply to set aside proceedings, for it is no process at all; otherwise, if service of writ is irregular only, for there he must apply as soon as possible after notice. Thomson v. Browne, T. 10 & 11 Geo. 2. Andr. 16. Appearance entered by plaintiff, does not cure process being served on a wrong person. Barnes, 406. The loss of a bill may be supplied.—It appearing that the bill in a penal action had been taken off the file, the court permitted it to be supplied from a copy taken by the plaintiff himself. 3 T. R. 476. Other matters. For the better distinguishing by whom common bail shall have been filed, it is ordered, that "in all cases where common bail shall be filed by the plaintiff for the defendant by virtue "of the act, these words shall be written on the bail piece, viz. 'filed according to the statute,' or words to the like effect." Tidd, 268.; 2 Str. 1027.; C. T. 207. And where the plaintiff files common bail for the defendant, on any day between the second and sixth of November, and he is in other respects entitled to sign judgment, it is signed as on the day preceding the essoin day of Michaelmas term. Tidd, 268. 5 T. R. 65. It should also be remembered, that by the statute 51 Geo. 3. c. 124. s. 2. (continued by the 57 Geo. 3. c. 101.) if the defendant, on being personally served with the summons or attachment by original, do not appear at the return of such writ or of the distringas, as the case may be, or within eight days after the return thereof, the plaintiff, upon affidavit being made and filed in the proper court, of the personal service of such summons or attachment, or of the due execution of such distringas, |