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IN

Michaelmas Cer

IN THE THIRD YEAR OF THE REIGN OF WILLIAM`IV.

Stillespie

MEMORANDA.

ON the first day of this term John Beames, Robert Mounsey Rolfe, and Clement Tudway Swanston of Lincoln's Inn, Esquires, and Henry Hall Joy, of the Inner Temple, Esquire, having been, during the preceding vacation, appointed His Majesty's counsel, were called within the bar and took their seats accordingly.

Mr. Serjt. Spankie was appointed one of His Majesty's serjeants, and took his seat within the bar accordingly.

On Sunday the 4th day of November, Lord TENTERDEN, C. J., died at his house in Russell Square. He was succeeded by Sir Thomas DENMAN, knight, His Majesty's Attorney-General, who was called to the degree of the coif, and gave rings with the motto "Lex omnibus una," and took his seat as Chief Justice of this Court on Thursday the 8th day of November.

GENERAL RULES

AGREED UPON BY THE JUDGES IN PURSUANCE OF THE STATUTE 2 W. 4. c. 39. IT 18 ORDERED, That every writ of summons, capias, and detainer shall contain the names of all the defendants [if more than one] in the action, and shall not contain the name or names of any defendant or defendants in more actions than one. IT IS FURTHER ORDERED, That the following fees shall be taken:

£ s. d.

For signing all writs for compelling an appearance, whether of summons, distringas, capias, or detainer, and whether the same shall be the first writ, or an alias or pluries writ: and whether the same shall issue into the same county as the preceding writ, or into a different county

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For sealing the same

For entering an appearance for every defendant

Unless an appearance shall be entered for more than one defendant by same attorney, and in that case for every additional defendant

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IT IS FURTHER ORDERED, That the person serving a writ of summons shall, within three days at least after such service, indorse on such writ the day of the week and month of such service, otherwise the plaintiff shall not be at liberty to enter an appearance for the defendant according to the statute; and every affidavit, upon which such an appearance shall be entered, shall mention the day on which such indorsement was made.

IT IS FURTHER ORDERED, That the sheriff or other officer or person to whom any writ of capias shall be directed, or who shall have the execution and return thereof, shall, within six days at the least after the execution thereof, whether by service or arrest, indorse on such writ the true day of the execution thereof; and, in default thereof, shall be liable in a summary way to make such compensation for any damage which may result from his neglect, as the Court or a Judge shall direct

IT IS FURTHER ORDERED, That the second rule of Hilary term 1852, 3 B. & Ad. 390, shall be applicable to all writs of summons, distringas, capias, and detainer issued under the authority of the said act, and to the copy of every such writ.

IT IS FURTHER ORDERED, That any alias or pluries writ of summons may, if the plaintiff shall think it desirable, be issued into another county, and any alias or pluries writ of capias may be directed to the sheriff of any other county, the plaintiff in such cise upon the alias or pluries writ of simmons describing the defendant as late of the place of which he was described in the first writ of summons, and upon the alias or pluries writ of capias referring to the preceding writ or writs as directed to the sheriff to whom they were in fact directed.

It is further orDERED, That the alias or pluries writ of summons into another county shall be in the following form:—

William the Fourth, &c.

To C. D. of

in the county of

late of

in the county of

[original county]. We command you as before, [or, often] we have commanded you, &c. [as in the writ of summons, No. I. in the schedule of the said act.]

And that the alias and pluries writ of capias shall be in the following form:-

William the Fourth, &c.

To the sheriff of

We command you, as heretofore we have commanded the sheriff of

that you omit not, &c. [as in the writ of capias No. 4, in the schedule of the said act].

IT IS FURTHER ORDERED, That in every writ of distringas, issued under the authority of the said act, a non omittas clause may be introduced by the plaintiff, without the payment of any additional fee on that account.

IT IS FURTHER ORDERED, That when the attorney actually suing out any writ shall sue out the same as agent for an attorney in the country, the name and place of abode of such attorney in the country shall also be indorsed upon the said writ.

IT IS FURTHER ORDERED, That if the plaintiff or his attorney shall omit to insert in or indorse on any writ or copy thereof any of the matters required by the said act to be by him inserted therein or indorsed thereon, such writ or copy thereof shall not, on that account, be held void, but may be set aside as irregular, upon application to be made to the Court out of which the same shall issue, or to any Judge.

IT IS FURTHER ORDERED, That upon all writs of capias, where the defendant shall not be in actual custody, the plaintiff at the expiration of eight days after the execution of the writ, inclusive of the day of such execution, shall be at liberty to declare de bene esse, in case special bail *shall not have been perfected; and if there be several defendants, and one or more of them shall have been served only and not arrested, and the defendant or defendants so served shall not have entered a common appearance, the plaintiff shall be at liberty to enter a common appearance for him or them, and declare against him or them in chief, and de bene esse against the defendant or defendants who shall have been arrested and shall not have perfected special bail.

IT IS FURTHER ORDERED, That in case the time for pleading to any declaration, or for answering any pleading. shall not have expired before the 10th day of August in any year, the party called upon to plead, reply, &c., shall have the same number of days for that purpose, after the 24th day of October, as if the declaration or preceding pleading had been delivered or filed on the 24th day of October; but in such cases it shall not be necessary to have a second rule to plead, reply, &c.

IT IS FURTHER ORDERED, That in case a Judge shall have made an order in vacation for the return of any writ issued by authority of the said act, or any writ of capias ad satisfaciendum, fieri facias, or elegit on any day in vacation, and such order shall have been duly served, but obedience shall not have been paid thereto, and the same shall have been made a rule of Court in the term then next following, it shall not be necessary to serve such rule of Court or make any fresh demand of performance thereon, but an attachment

shall issue forthwith for disobedience of such order, whether the thing required by such order shall or shall not have been done in the mean time.

IT IS FURTHER ORDERED, That if any attorney shall, as required by the said act, declare that any writ of summons or writ of capias upon which his name is indorsed was not issued by him, or with his authority or privity, all proceedings upon the same shall be stayed until further order.

IT IS FURTHER ORDERED, That every declaration shall in future be entitled in the proper Court, and of the day of the month and year on which it is filed or delivered, and shal commence as follows:

DECLARATION after summons.

Venue. A. B., by E. F. his attorney, [or in his own proper person,] complains of C. D. who has been summoned to answer the said A. B., &c.

DECLARATION after arrest, where the party is not in custody.

Venue. A. B., by E. F. his attorney, [or in his own proper person,] complains of C. D who has been arrested at the suit of the said A. B., &c.

DECLARATION Where the party is in custody.

Venue. A. B., by E. F. his attorney, [or in his own proper person,] complains of C. D. being detained at the suit of the said A. B. in the custody of the sheriff [or of the Marshal of the Marshalsea of the Court of King's Bench, or of the Warden of the Fleet.]

DECLARATION after the arrest of one or more defendant or defendants, and where one or more other defendant or defendants shall have been served only and not arrested. Venue. A. B., by E. F. his attorney, [or in his own proper person,] complains of C. D.

who has been arrested at the suit of the said A. B. [or being detained at the suit of the said A. B. as before] and of G. H., who has been served with a writ of capias to answer the said A. B. &c.

And that the entry of pledges to prosecute at the conclusion of the declaration shall in future be discontinued.

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IT IS ORDERED, That the writ of capias and distringas which shall hereafter be issued out of the superior Courts of law at Westminster into the counties palatine of Lancaster or Durham, shall be directed to the Chancellor of the county palatine of Lancaster, or his deputy there, or to the Bishop of Durham, or his Chancellor there, and shall be in the following form:

William the Fourth, &c.

WRIT OF DISTRINGAS.

To the Chancellor of our county palatine of Lancaster, or his deputy there; or
To the Reverend Father in God

by Divine Providence Lord Bishop of Durham, or to his Chancellor there, greeting. We command you that by our writ under the seal of our said county palatine to be duly made and directed to the sheriff of our said county palatine, you command the said sheriff [or, if in Durham, that by our writ under the seal of your Bishoprick, to be duly made and directed to the sheriff of the county of Durham, you cause the said sheriff to be commanded] that he omit not by reason of any liberty in his bailiwick, but that he enter the same and distrain upon the goods and chattels of C. D. for the sum of forty shillings, in order to compel his appearance in our Court of to answer A. B. in a plea of trespass on the case, [or debt, as the case may be,] and how he shall execute that our writ he make known to us in our said Court on the next ensuing.

day of

now

at Westminster, the
year of our reign.

NOTICE to be subscribed to the foregoing writ.

Witness

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Mr. C. D.

day of

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TAKE NOTICE, That I have this day distrained upon your goods and chattels in the sum of forty shillings in consequence of your not having appeared in the said Court to answer to the said A. B. according to the exigency of a writ of summons bearing teste on the and that in default of your appearance to the present writ within eight days inclusive after the return hereof, the said A. B. will cause an appearance to be entered for you, and proceed thereon to judgment and execution, or [if the defendant be subject to outlawry] will cause proceedings to be taken to outlaw you.

William the Fourth, &c.

WRIT OF CAPIAS.

To the Chancellor of our county palatine of Lancaster, or his deputy there; or To the Reverend Father in God by Divine Providence Lord Bishop of Durham, or to his Chancellor there, greeting. We command you, that by our writ under the seal of our said county palatine to be duly made and directed to the sheriff of our said county palatine, you command the said sheriff [or, if in Durham, that by our writ under the seal of your Bishoprick to be duly made and directed to the sheriff of the county of Durham, you cause the said sheriff to be commanded] that he omit not by reason of any liberty in his bailiwick, but that he enter the same, and take C. D. of if he shall be found in his bailiwick, and him safely keep until he shall have given him bail or make deposit with him according to law in an action on promises [or of debt, &c.] at the suit of A. B., or until the said C. D. shall by other lawful means be discharged from his custody, and that he further command him, that on execution thereof he do deliver a copy thereof to the said C. D., and that the said writ do require the said C. D. to take notice, that within eight days after execution thereof on him, inclusive of the day of such execution, he should cause special bail to be put in for him in our Court of

to the said action; and that in default of his so doing, such proceedings may be had and taken as are mentioned in the warning thereunder written or indorsed thereon. And that he further command the said sheriff, that immediately after the execution thereof, he do return that writ to our said Court, together with the manner in which he shall have executed the same, and the day of the execution thereof; or that if the same shall remain unexecuted, then that he do so return the same at the expiration of four calendar months from the date thereof, or sooner if he shall be thereto required, by order of the said Court or by any Judge thereof.

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day of

MEMORANDUM to be subscribed to the writ.

N. B. This writ is to be executed within four calendar months from the date thereof, including the day of such date, and not afterwards.

A WARNING TO THE DEFENDANT.

1. If a defendant being in custody shall be detained on this writ, or if a defendant being arrested thereon shall go to prison for want of bail, the plaintiff may declare against such defendant before the end of the term next after such detainer or arrest, and proceed thereon to judgment and execution.

2. If a defendant being arrested on this writ shall have made a deposit of money according to the statute 7 & 8 G. 4, c. 71, and shall omit to enter a common appearance to the action, the plaintiff will be at liberty to enter a common appearance for the defendant, and proceed thereon to judgment and execution.

3. If a defendant having given bail on the arrest, shall omit to put in special bail as required, the plaintiff may proceed against the sheriff, or on the bail bond.

4. If a defendant, having been served only with this writ and not arrested thereon, shall not enter a common appearance within eight days after such service, the plaintiff may enter a common appearance for such defendant, and proceed thereon to judgment and execution.

Bail for £

Bail for £

the

INDORSEMENTS to be made on the writ of Capias.

day of

by affidavit,

or

by order of [naming the Judge making the order], dated

This writ was issued by E. F. of plaintiff's] within named,

or

, attorney for the plaintiff [or

This writ was issued in person by the plaintiff within named, [mention the city, town, or

parish, and also the name of the hamlet, street, and number of the house of the plaintiff's residence, if any such there be.]

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The following rule was agreed upon by the Judges of the Court of King's Bench, in pursuance of the statute 2 W. 4, c. 39, s. 18, and took effect on the first day of Michaelmas term, 1832.

IT IS ORDERED, That all writs of summons, distringas, capias, and detainer issued in the county of Middlesex, shall be issued, signed and sealed, by the signer of the bills of Middlesex; and that all such writs issued in any other county, shall be issued and signed by the signer of the writs in the King's Bench office, and sealed by the sealer of the writs

until further order.

*9]

*The KING v. JOHN PATTESON.(a)

By the statute 12 Geo. 2, c. 29, s. 6, it is enacted that the respective high constables shall pay the sums of money received by them in respect of the county rate, to such person whom the justices shall at their quarter sessions appoint to be the treasurer, (which treasurer they are thereby authorized to appoint,) he first giving sufficient security in such sums as shall be approved by the justices at sessions, to be accountable for the money which shall be paid to him in pursuance of that act, and for which by s. 7, he is made accountable to the justices: Held, that this section of the statute does not make the giving of the security a condition precedent to a person's becoming treasurer, or being responsible or accountable to the justices, but that the appointment is complete without such security being given.

In quo warranto for usurping the office of alderman and justice of the peace of the city of Norwich, the plea set out a charter of Car. 2., granting among other things, that all the aldermen of the city who had borne the office of mayor, so long as they should continue in their public offices, should be justices of the peace of the same city; that the defendant was duly elected an alderman, and still was alderman; and that he became mayor, and thereby afterwards became justice. Replication, that the defendant being such alderman and justice, was duly appointed to be treasurer of the county of the city of N., and gave such security to the mayor and recorder, being justice of peace for the said city as in that behalf required, and accepted and took on himself the office of treasurer, and entered on the discharge of the duty of his office, which offices of alderman and justice, and of treasurer, were incompatible with each other, whereby the defendant vacated the offices of justice and alderman, &c. Rejoinder that the defendant did not give such security; Held, on demurrer, that the rejoinder was bad, as tendering an immaterial issue:

Held, secondly, that the replication was bad, because the acceptance by a person holding a corporate office, of another incompatible office not corporate, did not operate as an absolute avoidance of the corporate office, though it might be ground of a motion; and that acceptance of an incompatible office does not operate as an absolute avoidance of a former office in any case where the party could not divest himself of that office by his own act and without the concurrence of another authority to his resignation or amotion unless such authority be privy and consenting to the second appointment. Held also, that the defendant, as long as he was an alderman and justice of peace of the city of N., was not a person capable of being appointed county treasurer.

QUO WARRANTO. The first count of the information charged the defendant with usurping the office of alderman of the city of Norwich; the second, the office of justice of peace within the city; and the third count, the offices of alderman and justice of peace. The plea to the first count set out a charter of

(a) Littledale, J. sat in the bail court this term.

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