struck off the rolls of the other courts; and upon the reasons being afterwards stated, and the matter fully argued, his lordship refused the application, and lately the same attorney has been restored to the roll of the Court of King's Bench (y). (y) M. T. 3 Will. IV. K. B. BOOK III. WRITS. 66 in use. Summons, Detainer. Writs THE only writs now in use in this court in personal Writs now actions are those prescribed by the act of 2 Will. IV. c. 39, entituled, “ An Act for Uniformity of Process in Personal Actions in His Majesty's Courts of Law at Westminster;" viz. the writ of summons, and distringas writ of thereon, the writ of capias, and the writ of detainer Distringas, (the forms of which, as directed by that act, are set out Forms of. in the Appendix): all other writs being by that act All other abolished. The writs of summons, capias, and detainer, abolished. are the proper commencement of such actions; the pro- Only proper ceedings by bill being superseded by that act. It should ment of however be observed that this statute is not binding upon stat. 2 Will. His Majesty, who may therefore still proceed by scire facias for the recovery of debts due to him on bond, recognizance, or judgment, &c., or found by inquisition upon an outlawry, or extent, or by original writ of scire facias to repeal letters patent, &c. commence Actions. IV. c. 39, not binding on His Majesty. WRIT OF SUMMONS. Summons. old writ of The writ of summons is very similar to the writ of Writ of venire facias ad respondendum heretofore used in this similar to court, and more particularly described in the first edition venire facias. of this work; and the practice in respect thereof is nearly same. Practice the Proper Writ the same. when Defen This is the proper writ in ordinary cases dant not held where it is not intended to hold the defendant to bail. to bail. Date. No return day It must bear date on the day on which it is issued whether in term or vacation, and must be tested in the name of the Lord Chief Baron, or in case of a vacancy of that office in the name of the senior puisne baron. There is no particular day appointed for the return of In force four the writ, but it remains in force four months from and inNot directed cluding the date thereof. It is not directed into any county, or to any sheriff, but it is directed to the defendant, or mentioned. months. to any Coun ty or Sheriff. Directed to the Defendant. Must be served in defendants: and his or their place or places of residence must be mentioned therein. It must however be served in the County the county in which the defendant's residence is described dant resides. in the writ to be, or within two hundred yards of the same and if the writ is to be executed in a district or where Defen Or within two hundred yards thereof. Parcel of a Must be endorsed with Attorney. Also by Agent and place being parcel of one county, but situate within and surrounded by another county, such place may be considered and taken to be part, either of the county wherein it is situate, or of the county of which it is a parcel. The writ must be endorsed, when issued, with the name &c. of name and place of abode of the attorney issuing the same; and in case such attorney shall not be an attorney of this court, then it must also be endorsed with the name and place of abode of the attorney, in whose name the writ is taken out. And if it is issued by an agent for an attorney in the country the name and place of abode of such attorney must be added (a): or if the writ be issued by any plaintiff in person there must be a memorandum to that effect endorsed, and mentioning the city, town, or parish, also the name of the hamlet, street, and number of the house, where the plaintiff resides, if any such there be (b). And by Plaintiff in person. (a) R. G., M. T. 3 W. IV. (b) 2 W. IV. c. 39, s. 12. omitted. void. may be set aside. If the plaintiff, or his attorney, omit to insert, or in- If same dorse on the writ, or copy, any of the matters required by the act to be inserted therein, or indorsed thereon, such writ is not to be held void on that account, but the Writ not same may be set aside as irregular, on application to the But service court, or a baron, for that purpose (c). It is also necessary to endorse on the writ, the amount Amount of of the debt for which the action is brought; as also the Costs to be amount of costs claimed by the attorney for the writ : which costs are, however, liable to taxation: and if more Taxation of than one-sixth be disallowed on taxation, the plaintiff's Writ. attorney must pay the costs thereof (d), otherwise they must be paid by the defendant. Debts and indorsed. the Costs of not necessary be for debt. No indorsement however in this respect is necessary, Indorsement unless the action be brought to recover a debt; nor will except action the court set aside the proceedings for irregularity, unless it appear, on affidavit, that the action was brought to recover a debt. of contain more fendants in one Action. Addition of parties need All the defendants (if more than one) must be named Must not in the writ; but it must not contain the name or names than the Deany defendant, or defendants, in more than one action. The character in which a plaintiff may sue (e), or defendant be sued (f), such as executor, or administrator, or assignee, &c., need not be stated, though such description, if correct, is not objectionable. a not be made. described declare in a different If, however, either party is described in the writ, as If parties suing, or being sued in a particular character, the plaintiff cannot cannot afterwards declare in his own right, or in any character. other character, or in any other form of action, than the one mentioned in the writ; nor can he declare against (c) R. G. M. T., 3 Will. IV. (d) Ib. (e) 2 Str. 1232. (f) 6 Moore, 66. 3 Brod. & Bing. 4, s. c. D Cause of ac tion to be stated. Writ to be served personally if possible. If not possi ble a distrin obtained. the defendant in in the writ. (g). any other character than that mentioned The nature of the action must be stated in the writ, but the forms in the schedule to the act, in describing the same, only apply to such actions as are therein described in other cases it appears to be sufficient to state the nature of the action generally; such as, " In an Action of Trespass," or, "of Trespass on the Case," or, of "Covenant," &c. as the case may be (*). : A copy of the writ, and endorsements, should be served personally, when it can be done; but if the defendant keeps out of the way to avoid service the court gas may be will grant a writ of distringas, as hereinafter mentioned. A præcipe must be filed in the office, and the writ being sealed by the Chancellor of the Exchequer (h), must afterwards be signed by the master; but blank Blank forms forms of writs, ready sealed by the Chancellor of the Exchequer, may be obtained of the bag bearer at the Exchequer Office. Præcipe to be filed. To be sealed. ready sealed. If personally served plain If a copy of the writ be personally served, or if it can tiff may de- be shown to have come to the hands of the defendant (i), clare. fendant does so as to constitute personal service, the plaintiff may de- And if de- plaintiff may appear, sec. the stat. Writ to be produced on service, if required. copy The person serving of the writ must produce and show the original to the defendant, if required so to do; otherwise the (9) Arch. Pr. 67. (*) King v. Skeffington, Bt. M. S. Exch. H. T. 3 Will. IV., which described the action as 66 Trespass on the Case," the declaration was "In Case on Promises," the court held proceedings were irregular, and the set them aside. (h) The office is in Scotland Yard, Whitehall. (i) Rhodes v. Innes, 5 M. & P. 153. |