believes, that unless he obtain the security of bail from the said C. D. he the said C. D. will not satisfy to this deponent his debt so due to him on account of the mesne profits of the said premises, [and for the loss sustained by this deponent in replacing the said several injuries and damages,] and for the said costs. (State any other facts which will strengthen the application for the judge's order.) 2. JUDGE'S ORDER TO HOLD DEFENDANT TO BAIL. E. J. S. V. The Order. Upon reading the affidavit of J. J. S., I do order and direct that the plaintiff be at liberty, within [ten] days from the date R. B. hereof, to issue out of her majesty's Court of Exchequer of Pleas one or more writ or writs of capias, into one or more different counties, as the case may require, against R. B. the defendant in this cause, indorsed to hold him to bail for the sum of pounds, pursuant to the statute. Dated the day of [See 1 Chit. Ar. Pr. 497.] [Judge's signature.] 3. DISCHARGE OF DEFENDANT FROM CUSTODY. E. J. S. V. The Summons. Let the plaintiff, his attorney, or agent, attend me at my chambers in Rolls Garden to-morrow, at eleven of the clock in R. B. the forenoon, to show cause why the bail-bond given herein should not be delivered up to be cancelled, [or "why the defendant should not be discharged out of custody as to this action,"] upon entering a common appearance for irregularity specified in the statement annexed. [If the ground relied on be irregularity in the proceedings, &c., annex to the summons and copy served a statement of the irregularities complained of, or state them in the summons.] Dated the day of 1840. [Judge's name.] [See 1 Chit. Ar. Pr. 500.] 4. THE PROCESS. 1. Præcipe for the Writ of Capias. Middlesex (the county, &c. to the sheriff, &c. of which the writ is to be directed.)-Capias for A. B. [or "A. B. and others"] against C. D. [or "C. D. and others"] in an action on promises [or "of debt," or "of covenant," or "of detinue," or "of trespass," or on the case," as the 66 cause of action may be, and as it is to be expressed in the intended writ.] Bail for £, by order of [Mr. Baron Maule.] P. A. attorney, [or, if in person, “A. B. in person."] The [See 1 Chit. Ar. Pr. 520.] day of 1840. 2. The Writ of Capias. 66 Victoria, by the grace of God of the united kingdom of Great Britain and Ireland queen, defender of the faith. To the sheriff (a) of · greeting. We command you that you omit not (b) by reason of any liberty in your bailiwick (c), but that you enter the same and take C. D. (defendant's name (d)), ·; (his residence or supposed residence)(e), (or, if more than one defendant ordered to be held to bail (f) name them and the residence or supposed residence of each accordingly), if he [or "they"] shall be found in your bailiwick, and him [or "them"] safely keep until he [or "they"] shall have given you bail or made deposit with you according to law, in an action on promises [or " of debt," or covenant," or "detinue," or 66 of trespass," or "" on the case, as the cause of action may be] (g), at the suit of Å. B. -(h) (or, if more than one plaintiff, name them all,) or until the said C. D. (name all the defendants ordered to be held to bail) shall, by other lawful means, be discharged from your custody. And we do further command you, that on execution hereof you do deliver a copy hereof to the said C. D. (name all the defendants ordered to be held to bail). And we hereby require the said ̊C. D. (name all the defendants ordered to be held to bail) to take notice, that within eight days after the execution hereof on him [or "them"], inclusive of the day of such execution, he [or "they"] should cause special bail to be put in for him [or "them"] in our court of Queen's Bench [or "C. P." or "Exch. of Pleas,"](i) to the said action, and that in default of so doing, such proceedings may be had and taken as are mentioned in the warning written or indorsed hereon. And we do further command you, that immediately after the execution hereof you do return this writ to our said court of Queen's Bench [or "C. P." or "Exch. of Pleas,"] together with the manner in which you shall have executed the same, and the day of the execution thereof; or if the same shall remain unexecuted, then that you do so return the same at the expiration of one calendar month from the date hereof, or sooner if you shall be thereto required by order of the said court or by any judge thereof. Witness—(if. in Q. B. or C. P. (a) As to the direction of the writ, see ante, 20, n. (a). (b) As to the effect of the non omittas clause, see 1 Chit. Ar. Pr. 508. (c) See as to districts, parcel of one county but surrounded by another, ante, 148, n. (c). (d) As to the statement of defendant's name, see 1 Chit. Ar. Pr. 510. (e) As to the description of defendant's residence, see 1 Chit. Ar. Pr. 514. (f) As to describing all the defendants, see 1 Chit. Ar. Pr. 514. (g) As to the statement of the form of action, see 1 Chit. Ar. Pr. 516. (h) As to the statement of the plain tiff's name, and the number of the plaintiffs, see 1 Chit. Ar. Pr. 510, 514, When suing in autre-droit, you need not, it seems, in Q. B. or Exchequer, describe him as such. Id. But the court of C. P. having in some cases decided differently, it would be safest to describe him; and see the forms, post, Book 3, Part 2, Chap. 5. (i) Where the court was wrongly stated, an omission to put in bail was held to be no ground for an attachment against the sheriff for not bringing in the body. Mayhew v. Hoadley, 6 Dowl. 629. here insert the name of the chief justice, or if in the Exchequer, the name of the chief baron. If the office of chief justice or chief baron be vacant, then insert the name of the senior puisne judge of the court), at Westminster, [or as the case may be,] the in the year of day of our Lord -(a) (the day of issuing the writ.) [The following Memoranda must be subscribed to the Writ :] (b)— This writ is to be executed within one calendar month from the date thereof, including the day of such date, and not afterwards. A Warning to the Defendant (b). 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. L [The following Indorsement must also be made on the Writ:]-Bail for by order of (naming the judge making the order,) dated this day of —, 1840] (c). This writ was issued by P. A. (plaintiff's attorney's name in full), of (place of abode in full), attorney for the plaintiff [or plaintiffs] within named (d). [Or if the writ was sued out by an attorney as agent for another attorney in the country, say, "This writ was issued by P. A. (the agent's name), of as agent for P. P. of -, attorney for the plaintiff [or plaintiffs] within-named"] (e). [Or, if the writ was sued out by the plaintiff in person, say, "This writ was issued in person by the plaintiff (or, if more than one, name them all accordingly) within named, who resides at" (mention the city, town, or purish, and also the name of the hamlet, street, and number of the house of the plaintiff's residence, if any such there be] (ƒ). There is also another indorsement to be made by the officer executing the writ, of the day of executing it, which see post, 233. But this of course cannot be made until the writ is executed. 3. Writ of Capias into a County Palatine (g). Victoria, by the grace of God of the united kingdom of Great Britain and Ireland queen, defender of the faith. To the chancellor of our county palatine of Lancaster [or "Durham"] (h), or his deputy 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 that he omit not, by reason of any liberty in his bailiwick, but that he enter the same, and take C. D. if he shall be found in his bailiwick, and him safely keep until he shall have given him bail, or made deposit with him according to law, in an action on promises [or "of debt," &c. see ante, 228] at the suit of A. B., (a) As to this date and the teste, see 1 Chit. Ar. Pr. 517. (b) As to these memoranda and warnings, and the consequences of the omission or any defect therein, see 1 Chit. Ar. Pr. 518. (c) As to this indorsement for bail, see 1 Chit. Ar. Pr. 518. (d) As to the indorsement of the attorney's name and residence, see 1 Chit. Ar. Pr. 518, 519. (e) R. M. 3 Will. 4, r.9. (f) As to this indorsement, see 1 Chit. Ar. Pr. 518, 519. (g) Observe the notes to the preceding form. See 1 Chit. Ar. Pr. 508, 509. (h) See as to Durham, ante, 21, n. (b); and 1 & 2 Vic. c. 110, s. 3. or until the said C. D. shall by other lawful means be discharged from his custody: And that you 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 Queen's Bench [or "C. P." or "Exch. of Pleas ̈] to the said action; and that in default of so doing, such proceedings may be had and taken as are mentioned in the warning written or indorsed hereon; and that you 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 one calendar month from the date thereof, or sooner, if he shall be thereto required by order of the said court, or by any judge thereof. Witness (see the preceding form, ante, 228), at W estminster, the day of in the year of our Lord 1840. (Add the memoranda, and also the indorsements, as directed in the preceding form, p. 229.) [See 1 Chit. Ar. Pr. 508, 509.] 4. Demand on an Attorney to state whether the Writ was issued by him. [See a form, ante, 17.] B. V. 5. Order of Judge upon Plaintiff's Attorney to state Plaintiff's Abode, &c. Upon hearing the attornies or agents on both sides, I do order and direct that Mr. P. A. (the plaintiff's attorney) shall within D.) days from the service of this order declare in writing to Mr. D. A., the defendant's attorney, the profession, occupation, or quality and place of abode of the plaintiff herein, on pain of being guilty of a contempt of this honourable court. Dated the day of 1840. (Judge's signature.) [N.B. A summons for this purpose may be readily framed from this order.] 6. Statement thereunder, of Abode, &c. of Plaintiff. In the Q. B. [or “C. P.” or “ Exch. of Pleas."] A. B. plaintiff against C. D. defendant. The above-named plaintiff is a and his place of abode is No. in street, in the parish of, in the county of - (taking care to give such a description as will not mislead the defendant.) Dated the day of —, 1840. Yours, &c. P. A. plaintiff's attorney [or "agent."] To Mr. D. A. defendant's attorney [or "agent."] 7. Affidavit to obtain Defendant's Discharge out of Custody, on the ground of the Writ not having been issued with Authority of Attorney whose Name is indorsed on it. In the Q. B. [or " C. P." or " Exch. of Pleas."] C. D. of A. B. plaintiff against C. D. defendant. the above-named defendant, and D. A. of his attorney [or "clerk to," &c.] severally make oath and say; and first this deponent C. D. for himself saith, that he was on the instant [or "last"] arrested upon a writ of capias, issuing out of this honourable court, and a true copy thereof, as served upon him, is hereunto annexed (annex it:) And this deponent D. A. for himself saith, that he did, as the attorney for and on behalf of the above-named C. D., on the instant, demand in writing of P. A., the attorney whose name is indorsed on the said writ, for him to declare forthwith whether such writ was issued. by him or with his authority or privity: And thereupon the said P. A. did then [or on the day of declare to this deponent that the said writ was not issued by him the said P. A., or with his authority or privity. And these deponents further say, that neither of them are acquainted with the place of abode of the above-named A. B. (if this be the fact), and that [&c. here state such other facts as may induce the court or judge to grant the order:] And these deponents further say (if the fact) that no bail has yet been put in in this action, and that the said C. D. is now in custody in the gaol of -[or "of the sheriff' of colour and by virtue of the said writ of capias. Sworn [&c. ante, 207.] [See 1 Chit. Ar. Pr. 56, 51.] -"], under C. D. D. A. 8. Order of Judge thereon, for Defendant's Discharge out of Custody. B. Upon reading the affidavit of the defendant and Mr. D. A., and V. it appearing to me that the writ issued in this cause, and whereon D. the defendant was arrested, was not issued by Mr. P. A. attorney, whose name is indorsed thereon, or with his authority or privity, I do order that a rule be drawn up for the immediate discharge of the defendant out of the custody of the sheriffs of London [or "sheriff of Middlesex," or "marshal of the Marshalsea," or "warden of the Fleet,"] as to this action, [or, if the defendant is in custody of any other sheriff but those of London or Middlesex, then say, "out of the custody of the as to this action, by writ of supersedeas,"] on the defendant's entering a common appearance thereto. Dated the sheriff of of 1840. day (Judge's signature.) 9. Rule thereon. B. V. On Upon reading the order of the Honourable dated [&c.], and it thereby appearing D. that the writ issued in this cause, and whereon the defenda prisoner. ant was arrested, was not issued by Mr. P. A. attorney, whose name is indorsed thereon, or with his authority or privity, and the said C. D. having entered a common appearance in the said action; it is ordered that the defendant be discharged out of the custody of the sheriffs of London [or "sheriff of Middlesex," or " warden of the Fleet,"] as to this action, [or, if the defendant is in custody of any other sheriff but those of London or Middlesex, then say, "out of the custody of the sheriff of as to this action, by writ of supersedeas."] [See 1 Chit. Ar. Pr. 51, 519.] By the Court. |