CHAPTER X. TO COMPEL THE APPEARANCE OF A DEFENDANT. By attachment, 136. If subpoena served more than twelve months, attachment irregular, 136. Or tested before bill filed, 136. When ordered on subpoena not regularly served, 137. Attachment how executed and returned, 138. How Sheriff's return obtained, 138. If returned, non est inventus, 139. If cepi corpus, 140. Motion for a messenger, 140. Appearance entered for defendant brought up by messenger, 140. If Sheriff returns that defendant in gaol, how appearance entered, 141. Consequence of plaintiff neglecting to enter appearance for defendant in custody, 142. To compel appearance of Peers and others, 142. Of a corporation, 144. Of a wife, 145. Of an infant, 146. Of the Attorney General, 146. Of a person of unsound mind not found so by inquisition, 147. Of a defendant out of the jurisdiction under 2 Will. 4, c. 33-147, and 4 & 5 Will. 4, c. 82-149. Ir a defendant, after having been duly served with a subpoena, neglect to appear within the time therein limited, the plaintiff's solicitor procures an affidavit of the service of the subpoena, from the person who served the defendant. The plaintiff's solicitor does not file this affidavit, but leaves the original affidavit with his clerk in court.(1) This affidavit and the name of the county where the defendant resides or then happens to be, are all the instructions required by the clerk in court, to enable him to make out an attachment against the defendant. It is to be observed, that an attachment cannot be made out for want of appearance to a subpoena which has been served more than twelve months, nor if the subpoena was tested before the bill was filed,[a] unless it prayed an injunction against [*137] the defendant in default, *in which case it is sufficient if the bill was filed before the return of the subpoena. Lord Clarendon's 13th Order requires the affidavit to be positive and certain of the day and place of the service of the subpoena and the time of the return thereof, that the clerk in court may know that a sufficient time had elapsed between the service and the attachment.(2) The plaintiff's clerk in court, before he makes out the (1) 1 M. & C. 448. (2) Beam. Ord. 169.-Where the subpoena is served personally, it is not usual to insert the place of service in the affidavit. [a] See ante, 110, note. No. 1, p. 136. Vol. I.] 3 Under acts of 2 Wm 4, 1. Defendant in On return that Habeas Corpus. When brought fendant. p. 180. Appearance. A TABLE SHOWING THE MANNER OF PROCEEDING IN DEFAULT OF A DEFENDANT'S APPEARANCE. *If this affidavit can be made, at any stage of the cause, the plaintiff may abandon his process of contempt (if he has issued any,) and move as above directed.-p. 141. If a defendant is brought up by the Messenger, Serjeant-at-arms, Habeas Corpus, or Commissioners of Rebel lion, and does not pay the costs of his contempt, in addition to the motion that a clerk in court may appear for bim, the plaintiff may ask that he may be turned over to the Fleet for non-payment of costs. If Sergeant at-arms finds a defendant in custody, proceed by Habeas, as after commission of rebellion re turned non est inventus. attachment, carefully examines the affidavit of service to see that the subpoena has been properly served, and that the defendant's time for appearance has expired. He also files the affidavit of service on or before the day on which the attachment is tested; for if filed after the day on which the writ is tested, although even before the attachment is parted with by him, it is irregular, and subject to be discharged with costs, together with any subsequent process founded upon it.(1) Under special circumstances where the service of the subpoena has not been strictly regular, the Court has ordered the attachment to issue, thus: An attachment was ordered on a subpoena served in Paris, the defendant's solicitor having admitted in answer to the plaintiff's solicitor's letter, requesting him to appear," that he had the subpoena in his possession, and that if the defendants were regularly served, he would appear;"(2) but in a subsequent case, the Court decided that an attachment issued for non-appearance to a subpoena served in Guernsey was irregular ;(3) although in Scott v. Hough, it is said an attachment *was ordered to be issued [ *138 ] where a subpoena had been served abroad;(4) although it does not appear that any order was drawn up.[a] THE MODE OF EXECUTING THE ATTACHMENT AND PROCEEDING UPON IT WHEN RETurned. The attachment when sealed, is delivered out by the clerk in court to the plaintiff's solicitor, and by the latter is sent to the under-sheriff of the county into which it is issued, for the purpose of being executed against the defendant. The sheriff or his deputy is bound to use his utmost endeavours to procure the attachment to be executed, and to return the same with due diligence, so that the party prosecuting the contempt may proceed therewith. It is generally understood that the sheriff has until (1) Beam. Ord. 142. Broomhead v. Smith, 8 Ves. 357. Gardner v. Rowe, 4 Russ. 578. (3) Fernandez v. Corbin,c 2 Sim. 544. (2) Nicol v. Gwyn," 1 Sim. 389. (4) 4 Bro. C. C. 213. the time when the writ is returnable to make his return, and I am not aware of any case where the plaintiff has compelled the sheriff to return the writ before such period. It however seems clear, that if the sheriff takes a party into actual custody, and by delaying to return the writ, allows the time limited by the Act of 1 Will. 4, c. 36, for bringing up the defendant to elapse, that he would be responsible for the consequences.(1) If the writ is returnable on a given day, the plaintiff may after that day compel the sheriff to return it. If the writ is "returnable immediately," the party may call for the return on the fifth day after the writ was put into the sheriff's hands. To [ *139 ] compel the sheriff to *return the attachment, the plaintiff obtains an order of course, that he do forthwith. return the same. If he refuse, upon an affidavit of the service of the order, the plaintiff applies specially upon a notice of motion, to make the sheriff personally responsible for the consequences, and that he may pay the costs of the application. The books lay down that the application should be, that the sheriff may be amerced, but it is conceived that it must be varied according to the circumstances of the case.[a] The return is endorsed on the writ, and signed by the sheriff. There are three ways in which the sheriff may return the attachment:-1st, If he is unable to find the defendant, he returns non est inventus. 2dly, If he takes him but accepts bail, he returns-"I have attached the within. named A. B. as within I am commanded, whose body I have ready." 3dly, If he arrests him and sends him to prison, or finding him already in custody for other suits, detains him, he returns-"I have attached the within named A. B. as within I am commanded, whose body remains in His Majesty's gaol, for my county of -, under my custody." The subsequent proceedings founded on the sheriff's return, are different in each of the above cases. If the sheriff returns non est inventus, the plaintiff may (1) As the 1 Will. 4, c. 36, has rendered it of vital importance that the wrlt should be returned as soon as conveniently may be after the defendant is taken into actual custody, no doubt the Court would order the return forthwith, upon evidence of the defendant being in actual custody. [a] If the sheriff neglect to return an attachment by the return day thereof, an attachment may issue against him. The People v. Elmer, 3 Paige, 85. |