And, Special character of parties. ceptions, it is sufficient, in general, to describe the defendant by his christian and surname, without any further addition. in an action not bailable, if the plaintiff sue qui tama, or as executor or administrator, or assignee of a bankrupt, &c. the process need not state the character in which he sues; nor, in an action against an executor or administrator, &c. the character in which he is sued. In describing the nature of the action, the forms in the schedule to Nature of acthe statute are applicable only to actions of assumpsit and debt: In other cases, it would, it seems, be deemed sufficient to describe the nature of the action generally, as "in an action of covenant, account, annuity, detinue, trespass on the case, or trespass:" But proceedings, we have seen, were set aside, where the writ of summons was in an action of trespass on the case upon promises. tion. When there are several parties. defendants in The form of the writ of summons, and other writs mentioned in the schedule to the act, is adapted to the case of a single plaintiff or defendant onlyf; but when there are several plaintiffs or defendants in a joint action, all their names must be included therein ". In actions not bailable, the plaintiff was formerly allowed to join Joining several four defendants, for separate causes of action, in one writ, and to declare against them severallyh: but, by a general rule of all the courts', 66 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." one writ. Weavers' Company v. Forrest, 2 Str. 1232. Lloyd v. Williams, 2 Blac. Rep. 722. 3 Wils. 141. S. C. Ashworth v. Ryal, 1 Barn. & Ad. 19. and see Ilsley v. Ilsley, 2 Cromp. & J. 330, 31. 2 Tyr. Rep. 214. S. C. * Watson v. Pilling, 6 Moore, 66. 3 Brod. & B. 4. S. C. Ante, 65, 6. King v. Skeffington, 1 Cromp. & M. 363. 1 Dowl. Rep. 686. S. C. f Sched. to stat. 2 W. IV. c. 39. No. 1. 3, 4, 5, 6. Append. to Chap. IV, &c. § 2. 8. 20. to Chap. VII, &c. § 2. to Chap. XV. § 2. 8 See the forms of entering an appearance on serviceable process, (Sched. to stat. 2 W. IV. c. 39. No. 2.) which are adapted to the case of several defendants; and see that statute, § 4. h Anon. Com. Rep. 74. Holland v. Johnson, 4 Durnf. & E. 695. and see Yardley v. Burgess, id. 697. Thompson v. Cotter, 1 Maule & S. 55. i R. M. 3 W. IV. reg. 1. 2 Moore & S. 328. 9 Bing. 443.; and see R. E. 8 Geo. IV. K. B. 6 Barn. & C. 639. 9 Dowl. & R. 677. Tidd Prac. 9 Ed. 148, 9. and 2d Supplement thereto, 12, 13. Case of several defendants, one of whom is served with copy of capias. When one defendant is at large, and another in custody of marshal, &c. Date and teste of writ of summons, &c. Memorandum, and indorse ments on. When there are several defendants, one of whom is not meant to be arrested, the plaintiff, or his attorney, is authorized by the statute, to order the sheriff, or other officer or person to whom the writ of capias shall be directed, to arrest one or more only of the defendants therein named, and to serve a copy thereof on one or more of the others; which order shall be duly obeyed by such sheriff, or other officer or person: and such service shall be of the same force and effect, as the service of the writ of summons therein before mentioned, and no other. And when there are two defendants, one of whom is at large, and the other in custody of the marshal of the King's Bench, or warden of the Fleet prison, it may be necessary to issue two writs; one, of summons or capias, against the defendant who is at large, and the other of detainer, against the defendant who is in custody. The rule, with regard to the date and teste of writs of summons, &c. is, that "every writ, issued by authority of the act, shall bear "date on the day on which the same shall be issued b; and shall "be tested in the name of the Lord Chief Justice, or Lord Chief "Baron, of the court from which the same shall issue; or, in case " of a vacancy of such office, then in the name of a senior puisne "judge of the said court:" which requisite is not satisfied, by a day being indorsed on the writd. There is no particular time appointed for the return of the writ of summons; but the defendant is required thereby, to cause an appearance to be entered for him, in the court out of which the writ issued, within eight days after the service of the writ, inclusive of the day of such service. It may next be proper to notice the memorandum required to be subscribed to, and indorsements made on, the writ of summons, &c. writs. Indorsement on, of name and place of abode of plaintiff, or his attorney, by whom issued. By the statute 2 W. IV. c. 39a, "no writ, issued by authority Duration of "of that act, shall be in force for more than four calendar "months from the day of the date thereof, including the day "of such date:" and accordingly, a memorandum is required to be subscribed to the writs of summons and capias, stating that they are to be served or executed within that period. By a previous statute, it was necessary, that " every writ and process for arresting the body, and every writ of execution, or some label annexed to such writ or process, and every warrant made out thereon, should, before the service or execution thereof, be subscribed or indorsed with the name of the attorney, clerk in court, or solicitor, written in a common legible hand, by whom such writ, &c. respectively were sued forth; and where such attorney, &c., was not the person immediately retained or employed by the plaintiff, then also with the name of the attorney, &c., so immediately retained or employed, to be subscribed or indorsed and written in like manner." By a subsequent statute 4, where bailable process was issued by the plaintiff in his own person, the sheriff was required not to execute the same, unless delivered by an attorney, &c., and indorsed with his name and place of abode. And now, by the statute 2 W. IV. c. 39. " every writ issued by authority of that act, shall be indorsed "with the name and place of abode of the attorney actually suing out the same; and in case such attorney shall not be an attorney "of the court in which the same is sued out, then also with the 66 66 66 66 name and place of abode of the attorney of such court, in whose name such writ shall be taken out; but in case no attorney shall "be employed for that purpose, then with a memorandum, expressing that the same has been sued out by the plaintiff in person, mentioning the city, town, or parish, and also the name " of the hamlet, street, and number of the house, of such plaintiff's "residence, if any such there be." And, by a general rule of all the courts, "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 e d Stat. 7 & 8 Geo. IV. c. 71. § 8. f R. M. 3 W. IV. reg. 9. 2 Moore of country attorney's name, &c. on writ sued out by agent. CHAP. IV, &c. Attorney to declare whether writ is issued by his authority, &c. If not so issued, defendant may be discharged; and all proceedings stayed, until further order. Indorsement of and costs. indorsed upon the said writ." On a motion to set aside a writ of summons, it appeared that the name of the firm to which the attorney on the record belonged, was indorsed on the writ, instead of the attorney himself merely; and that the residence of the attorney was stated to be " Gray's Inn, London," although no part of Gray's Inn was in London; which the judge held to be sufficient *. It is also enacted, that "every attorney whose name shall be ❝indorsed on any writ issued by authority of that act, shall, on de"mand in writing made by or on behalf of any defendant, declare "forthwith, whether such writ has been issued by him, or with his 66 66 authority or privity; and if he shall answer in the affirmative, "then he shall also, in case the court, or any judge of the same, or "of any other court, shall so order and direct, declare in writing, "within a time to be allowed by such court or judge, the pro❝fession, occupation, or quality and place of abode of the plaintiff'; on pain of being guilty of a contempt of the court from which " such writ shall appear to have been issued: and if such attorney "shall declare that the writ was not issued by him, or with his authority or privity, the said court, or any judge of either of the "said courts, shall and may, if it shall appear reasonable so to do, "make an order for the immediate discharge of any defendant or "defendants, who may have been arrested on any such writ, on entering a common appearance.' And, by a general rule of all the courts, "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." 66 "b To ascertain the amount of the debt and costs claimed by the amount of debt plaintiff, and to give the defendant an opportunity of paying them in the first instance, it is ordered, by a late rule of all the courts a, that " upon every bailable writ and warrant, and upon the copy of any process served for the payment of any debt, the amount of the debt shall be stated, and the amount of what the plaintiff's attorney claims for the costs of such writ or process, arrest, or copy and a Engleheart v. Edwards, 6 Leg. Obs. 138. per Patteson, J., but see Constable v. Johnson, I Cromp. & M. 88. 3 Tyr. Rep. 231. S. C. b Stat. 2 W. IV. c. 39. § 17. с R. M. 3 W. IV. reg. 14. 2 Moore & S. 336. 9 Bing. 447. 4 R. H. 2 W. IV. reg. II. 8 Bing. 305, 6. 2 Sup. to Tidd Prac. 9 Ed. 15. CHAP. IV, &c. Consequence of omitting indorsements, &c. service, and attendance to receive debt and costs; and that upon payment thereof, within four days, to the plaintiff or his attorney, further proceedings will be stayed; but the defendant shall be at liberty, notwithstanding such payment, to have the costs taxed; and if more than one sixth shall be disallowed, the plaintiff's attorney shall pay the costs of taxation:"b which rule is declared, by a subsequent one," to 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." But the court will not set aside process, on account of the debt and costs not being indorsed upon it, according to the above rules, unless it appear by affidavit, that the cause of action was a debt: And, by a general rule of all the courts, "if the plaintiff, or his attorney, shall omit to insert in, or indorse on any writ, or copy thereof, any of the on writ, or copy. 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." This rule has been holden to be compulsory on the plaintiffs; and it applies to process issued under the 2 W. IV. c. 39. against attornies &. It has also been determined, on this rule, that a motion to set aside the service of a writ of distringas, on the ground of an irregularity in the indorsements thereon, &c. must be made within a reasonable time after the service thereof; and that eighteen days is an unreasonable delay in this respect, provided the defendant might have come earlier h. The writ of summons may issue from either of the superior courts of law at Westminster; and is required, by the act1, to be issued by the officer of the courts respectively, by whom process serviceable in the county therein mentioned hath been heretofore issued from Append. to Chap. IV, &c. § 5. 30. to Chap. VII, &c. §§ 7. 19. And for bills of costs, as allowed on taxation in all the courts, on the above rule, see Bills of Costs, K. B., published by Maxwell, in 1832. 2 Sup. to Tidd Prac. 9 Ed. 15. & S. 330. 9 Bing. 444. Curwin v. Moseley, I Dowl. Rep. 432. 4 Leg. Obs. 301. S. C. per Pat- e R. M. 3 W. IV. reg. 10. 2 Moore f 2 W. IV. c. 39. Tomkins v. Chilcote, 6 Leg. Obs. 333. per Taunton, J. h Wright v. Warren, 3 Moore & S. 163. iStat. 2 W. IV. c. 39. § 1. From what court, and by what officer, writ is issued. |