clamation, and other writ, subsequent to the writ of distringas, shall be made returnable on a day certain in Term, &c.

It appears, therefore, from this act, that the distringas issues for one of two purposes, either to compel an immediate appearance, or to compel an appearance, by a more circuitous mode, namely, by process of outlawry (a), and the notice affixed to the writ should state which of these proceedings the plaintiff means to take; for an order for the distringas will not be granted in the alternative, to compel an appearance or to proceed to outlawry (b).

If a defendant be abroad, it has been held to be nugatory to issue a common distringas, to compel his appearance, and therefore, in such case, outlawry will be the only process (c). Therefore, in an action against partners, where one partner is abroad, and the others refuse to enter an appearance for him, and the plaintiff is desirous to compel his appearance, he should issue a distringas, with a view to his outlawry, and if the sheriff return non est inventus and nulla bona as to him, the plaintiff may proceed in the outlawry, and, indeed, must do so; for it seems that till the outlawry is completed, he cannot pursue his action (d). But unless the plaintiff is desirous to compel the appearance of the partner resident abroad, it should seem that he may proceed solely against those who are resident in England. For by the stat. 3 & 4 Will. 4, c. 42, s. 8, the defendant to an action cannot plead the nonjoinder of a co-defendant in abatement, unless it is stated in the plea that the defendant whose name is omitted is resident within the jurisdiction, and an affidavit be filed verifying the plea, and stating with convenient certainty the place of residence.

If the defendant is not abroad, although not forthcoming, a distringas for outlawry will not be allowed (e).

The separate property of one partner cannot be distrained to compel the appearance of the other. And where an action had been commenced against two partners, one of whom resided abroad, and the other, who was resident here, appeared for himself only, the Court of Common Pleas set aside a distringas

(a) See per Lord Alvanley, Morley v. Strombom, 3 Bos. & Pull. 254. (b) Fraser v. Case, 9 Bing. 464, 2 Moore & Scott, 720.

(c) Sampson v. Lord Graves, 2

Dowl. Pr. C. 10; Partridge v. Wallbank, 2 Mee. & Wels. 893.

(d) 1 Tidd, Prac. 424; Sheppard v. Baillie, 6 T. R. 327.

(e) Fraser v. Case, 9 Bing. 464.

and subsequent proceedings thereon against the latter defendant, and ordered the issues levied upon his separate property to be restored.

II. As to bailable process, it has been already stated that all personal actions must now be commenced by a writ of summons. The writ of capias, therefore, as a means of commencing the action, is now abolished (a), and no person can be arrested on mesne process in any inferior Court, or in any superior Court, except in the manner provided for by the 3rd section of the stat. 1 & 2 Vict. c. 110. By that enactment, however, a new writ of capias is provided under certain circumstances, and by virtue of such writ the defendant may be arrested and held to bail, at any time after the commencement of the suit, and before final judgment (b).

The 3rd section of the stat. 1 & 2 Vict. c. 110, enacts, that if a plaintiff in any action in any of Her Majesty's superior Courts of law at Westminster, in which the defendant is now liable to arrest, whether upon the order of a Judge, or without such order (c), shall, by the affidavit of himself, or of some other person, shew to the satisfaction of a Judge of one of the said superior Courts, that such plaintiff has a cause of action against the defendant or defendants, to the amount of £20, or upwards, or has sustained damage to that amount, and that there is probable cause for believing that the defendant or any one or more of the defendants is or are about to quit England unless he or they be forthwith apprehended, it shall be lawful for such Judge, by a special order, to direct that such defendant or defendants so about to quit England, shall

(a) Except in cases under the 85th section of the stat. 1 & 2 Vict. c. 110. See Chit. Archb. vol. 1, p. 461.

(b) Sect. 5.

(c) As to the cause of action for which an arrest is allowed in general, see Tidd. Prac. c. 10. Before the stat. 1 Vict. 110, where there was a certain debt to the amount of £20, or damages to that amount, which might be reduced to a certainty, as in assumpsit or covenant

for the payment of money, the de-
fendant might be arrested as a mat-
ter of course, on an affidavit shortly
stating the cause of action. Tidd,
171; 3 Black. Com. 292. But
where the damages were uncertain,
as in assumpsit or covenant to in-
demnify, &c., or in actions for a
tort or trespass, trover or detinue,
there could be no arrest without
a special order of the Court or a
Judge. Ib.

1

be held to bail for such sum as such Judge shall think fit, not exceeding the amount of the debt or damages; and thereupon it shall be lawful for such plaintiff within the time which shall be expressed in such order, but not afterwards, to sue out one or more writ or writs of capias into one or more different counties, as the case may require, against any such defendant so directed to be held to bail, which writ of capias shall be in the form contained in the schedule to this act annexed, and shall bear date on the day on which the same shall be issued.

And the 4th section enacts, that the sheriff or other officer to whom any such writ of capias shall be directed, shall, within one calendar month after the date thereof, including the day of such date, but not afterwards, proceed to arrest the defendant thereupon; and such defendant, when so arrested, shall remain in custody until he shall have given a bail bond to the sheriff, or shall have made a deposit of the sum indorsed on such writ of capias, together with £10 for costs, according to the present practice of the said superior Courts, and all subsequent proceedings as to the putting in and perfecting special bail, or of making deposit and payment of money into Court instead of putting in and perfecting special bail, shall be according to the like practice of the said superior Courts, or as near thereto as the circumstances of the case will admit.

It would be foreign to the object of this treatise to enter minutely into the various points of practice which bear upon the subject now adverted to; but it may be remarked, that many of the decisions in reference to bailable process before the statute of 1 Vict. c. 110, will still be applicable to cases arising under that statute. The following observations are therefore made on this hypothesis.

The affidavit of debt on which the process is founded, should correspond with the declaration, both in the statement of the number of plaintiffs and defendants (a), and of the nature of the debt (6). Where one of three defendants was held to bail on an affidavit of a debt due from the three defendants, as surviving partners of G., and the declaration was for a debt due

(a) Turner v. Portall, 2 N. R. 231; Forbes v. Phillips, Id. 98.

(b) Ch. Arch. Vol. 1, p. 495. Affidavit to hold to bail for money lent by the plaintiff and his late co

partners, C. and D., held insufficient, inasmuch as it did not state that they were dead. Morrall v. Parker, 3 Mees. & W. 65.

from the three defendants in their own right, without saying that they were the surviving partners of G., the rule for entering an exoneretur on the bail-piece was made absolute, though the Court refused to set aside the proceedings for irregularity (a).

It will be perceived, that the Judge's order to hold to bail may be made against as many of the defendants as he thinks fit; but there is nothing in the form of the writ of capias, to shew that the defendants who are not to be arrested are to be mentioned in it. It is suggested, however, by the writer of an excellent work on Practice, that it is safer to mention them for the purpose of identifying the bailable proceedings with those in the action, and to prevent the discharge of bail by a variance in the description of the action in which they become bound for the defendant (b).

The Christian name of the defendant ought generally to be stated in the writ (c), otherwise the proceedings may, on motion, be set aside for irregularity. But in actions on bills of exchange and other written instruments, the initials of the Christian names of the parties may be used in all the proceedings, if the initials are used in the instruments themselves (d). So also in some cases, it is sufficient to shew that due diligence has been used to obtain the true name of the defendant (e). And a misnomer may be cured by altering the writ, and getting it resealed before the return; and where process is sued out against four defendants, one of whom is misnamed, it may be served upon the three whose names are right; and if the name of the other be afterwards altered, and the writ resealed, it is good against all (f). Moreover, the defendants themselves may, by their own acts, waive the irregularity arising from the omission of their Christian names in the writ; as, for instance, by afterwards signing a regular bail bond (g).

In cases of contract, if the plaintiff hold two defendants to bail on a joint writ, and declare against them severally, the

Court will set aside the declaration and subsequent proceedings for irregularity (a). But it has been held, that in non-bailable process on writ against two, a declaration against one only is good (b).

In tort, a party suing out bailable process jointly against several, may separately declare against one of them (c), provided he drops his proceedings altogether against the others (d).

Where the process is bailable, and all are arrested under it, if the defendants do not appear according to the exigency of the writ, after bail to the sheriff has been given, the plaintiff may either take an assignment of the bail bond, and proceed thereon against the defendants and their bail to the sheriff, or he may proceed against the sheriff himself, to compel him to return the writ, and bring the bodies of the defendants (e). If the bail below be sufficient, it is usual for the plaintiff to take an assignment of the bail bond (f).

In an action on the bail bond by the assignee, the declaration must shew clearly the assignee's title to sue; it must therefore state the writ in the original action, the arrest, the bail bond with the condition to appear, the breach of condition, and the assignment to the plaintiff (g). The writ, in the original action, should be stated accurately; but it seems, that a variance between the actual writ and that stated in the declaration will not be fatal, if either are sufficient to warrant the arrest (h).

(a) Tidd, Prac. 149; Chapman v. Eland, 2 N. R. 82; Woodcock v. Kilby, 1 M. & W. 41; Bellotti v. Barella, 4 Dowl. Pr. C. 719.

(b) Evans v. Whitehead, 2 Man. & Ryl. 367. At least, this distinction existed before the late statutes. Whether it still exists may not be quite certain.

(c) Wilson v. Edwards, 3 Barn.

& Cres. 734; 5 Dowl. & Ryl. 622.
(d) Caldwell v. Blake, 3 Dowl.
Pr. C. 656.

(e) Tidd, Prac. 297.
(ƒ) Ibid.

(g) See "Forms," 2 Chit. 452, &c.

(h) Hendray v. Spencer, 1 T. R.

238.