J. T. clerk to S. R. of

gentleman, attor- Affidavit of

ney for the plaintiff in this cause, maketh oath and saith, service of rule

that he did on the

day of

instant, per

to bring in the body to move for an attachment.

is or acts as the

sonally serve Mr.- a with a true copy of the rule hereunto annexed, and which said Mr.deputyb to the secondaries of the city of London, at their If in Middleoffice, 28, Coleman street, and at the same time shewed sex, say," Mr. him the said original rule; and this deponent further Burchell, or saith, that no bail above has been put in for the said defendant in this cause. Sworn, &c.

Mr.

deputy sheriff of the county

J. T.

of Middlesex.

The attachment is a criminal process directed to the Attach. a cricoroner, when it issues against the present sheriff, or minal process. when against the late sheriff, to his successor; it must be made returnable on a day certain, and may be moved for on the last day of the term. 1 Burr. 651. And until it be granted the proceedings are on the civil side of the court; at the foot of the attachment is placed the names of the plaintiff and defendant; as Dix agst. Rich. But when granted, the proceedings are on the crown side, and from that time the king is to be named as the prosecutor. Wood v. Webb, 3 Term Rep. 133. 7 Term Rep. 439. And affidavits to set aside an attachment (though Affidavits tq not issued) in the course of a civil suit must be intituled, set aside at"The king against the party to be attached, as against intituled. "the sheriff of Middlesex," 7 Term Rep. 439.

In the evening get the rule of the clerk of the rules. for the attachment, carry it to the crown-office; one of the clerks there makes out your attachment; pay 18s. 6d. N. B. No one particular clerk in court does this, therefore the general rule is, to take your own clerk in court. next after of king Geo. 3.

A. B.

V.

}

in the

term, in the

year

tachment how

Upon reading the rule, made in this cause Rule for at

on

term last, C. D. and the affidavit of E. F. it is ordered that a writ of attachment issue against the sheriff of the county of for his contempt, in not bringing into court the body of the defendant, pursuant to this rule, upon the motion of Mr.

By the Court. Geo. 3. &c. To the coroner of the county of greeting. We command that you attach C. D. Esq. sheriff of our said county, so that you may have him before us, on to answer to us, for certain tres

tachment.

Writ of attachment.

Affidavit for attachment

w here bail is put in, but not justified. How to pro

ceed.

May rule the

coroner.

What affidavit

to support rule for at

passes and contempts by him lately done and committed in our court before us; and have there then this writ. Witness, &c.

By rule of court, E. F. Clerk in Court.

Lushington.

And this deponent further saith, that the said defendant did put in bail above in this cause, but hath not jus tified the same.

When you have got attachment from the crown-office, make out bill of costs, adding the fee of 21. 2s. and 2s. 6d. for the warrant, take same to the coroners, if in London, Mr. Shelton, Old Bailey; if in Middlesex, Mr. Unwin of Shadwell, or Mr. T. Stirling, of Clerkenwell, who will grant a warrant thereon.

Upon the return, if he does not pay the money, you may have a rule for him to return the writ of attachment, which get at the crown-office, and serve him with a copy; if he does not return it, make affidavit thereof, and the court on motion will grant an attachment, and order it to be directed to two elisors, being two or more persons named for that purpose by the master.

An affidavit to support a rule for an attachment of contempt, must state personal service, and that the origitachment must nal rule was shewn at same time. The King v. Smithies, 3 Term Rep. 351.

state.

When an at

tachment may

If the rule for the allowance of the bail be not served, be moved for. an attachment may be moved for. Rex v. Sheriff of Middlesex, 4 Term Rep. 493. Vide title Special Bail.

Plaintiff may

abandon the

attachment against sheriff.

When attach

lar.

The plaintiff may abandon an attachment obtained against the sheriff, and take an assignment of the bailbond, and proceed thereon. Pople and another v. Hyatt, 15 East. 215.

An attachment against the sheriff, for not bringment irregu- ing in the body after the defendant has surrendered is irregular, though the surrender be not made until after the rule for bringing in the body has expired. Rex v. the Sheriff of Middlesex, in the case of Henderson v. Van Wride, 2 Maule and Selw. 562.

What court

requires previous to setting aside are gular attach

ment.

The court upon application to set aside a regular attachment against the sheriff for not bringing in the body, will require either an affidavit of merits, or that the application is made on behalf of the sheriff, or the bail, without collusion with, or indemnity from the defendant. Rex v. the Sheriff of Middlesex, in the cause of Gee v. White, 3 Maule and Selw. 299.

Such affidavit being made by the bail, the rule was made absolute.

66

How to proceed against the late Sheriff.

By the stat. 20 Geo. 2. c. 37. 8. 2. "No sheriff shall Sheriff not "be liable to be called upon to make a return of any writ, liable to be called on, afor process, unless he be required so to do, within six ter six months "months after the expiration of his office." The to return his months are lunar months; the day of the sheriff quitting writ. his office is to be reckoned as one, Dougl. 463; and that he cannot be ruled to return the writ, after the six months, though requested before. 2 Term Rep. 1. Rex v. Jones.

A rule was issued three days previous to Michaelmas A rule to reterm, and intituled of that term; the sheriff did not obey turn writ prethe rule; an attachment was granted, and the court set it vious to term aside as irregular and improper. Rex v. Sheriff of Cornwall, 1 Term Rep. 552.

The sheriff being ruled to return the writ either does or does not return it. If there be no return, it is a contempt of the court; for which the constant course of proceeding is by attachment, whether against the present or late sheriff. For as to the late sheriff, he ought in strictness to have returned the writ, before he went out of office, and therefore the contempt was actually committed whilst he was a servant of the court. Dougl. 464. The King v. Adderley.

As the sheriff is not bound to return his writ after he has been six months out of office, therefore if he is out of office, before you call on him for a return of the writ, you may within six months get a rule upon him (naming him as the late sheriff) to return the writ, which is to be served at the same office as before mentioned if in London or Middlesex, in the country his under-sheriff; and if he returns cepi corpus, then in order to compel him to bring in the body, you may have a rule for that purpose.

is bad.

How to proceed if sheriff out of office.

It is ordered, that from and after the last day of this Rule that late sheriff shall term, where any sheriff before his going out of office shall arrest any defendant, and cepi corpus shall be re- body by a bring in the turned, he shall and may within the time allowed by law, rule. be called upon to bring in the body, by a rule for that

If bail not justified in due time, or render.

Where a rule

to return a fi. fa. expires in vacation, to sheriff has till

the first day of the next

purpose, notwithstanding he may be out of office before such rule shall be granted. R. T. 31 Geo. 3. (a)

If the bail be not justified in due time, and the defendant be not rendered in their discharge, make affidavit of the service as before, and obtain an attachment, which is to be directed to the coroners of the county where the writ issued, or if in London, to the coroner.

Notes of Cases.

The sheriff was ruled on Saturday the 12th of May, 1804, two days before the end of Easter term, to return fi. fa.; no return was made, till the first day of Trin. term, on which day an attachment was obtained. Motion to set it aside. The court on inspection of the rule, were of opinion that it could only apply to writs returnable in term to file it. term; because it says at the conclusion of it," in default "thereof the plaintiff shall be at liberty to move for an attachment the next day," which can only be moved for in term time. The master then put into the hands of the court a note taken, Trin. 30 Geo.3. by Master Benton, as follows. Where a rule to return a writ is served only three days before the end of a term, the sheriff has until the first day of the next term, and all that day Sedente curiæ. to file the return. Rule abs. 5 East. 386. Rex v. Sheriff of Berks.

If rule expires

66

If the rule to return the writ expires on the last day of last day of the term, the sheriff is attachable at the rising of the court on that day, if no return be made before. 11 East. 591.

term.

Sheriff not

liable to be called on to

unless within six lunar months.

The defendant, who was sheriff of Warwickshire, went out of office 12th Feb. 1780, at four in the afternoon, and was not served with the rule to return the writ until the return process 30th of July following. Rule was made for an attachment for not returning the writ. The sheriff moved for a rule why a supersedeas should not issue for not obeying the first rule; February in this year consisted of 28 days, and therefore if the day on which the office expired was to be reckoned in, to make up the six months allowed by stat. 20 Geo. 2. c. 37. s. 2. the rule was served a day too late, and the defendant was entitled to the protection of the statute. Lord Mansfield. The old sheriff on the 12th

(a) Before this rule was made, the mode was by distringas against the sheriff.

SHERIFF.

of February, turned over by indenture to his successor, all unexecuted process. The act purports to be made for the ease of sheriffs with regard to the return of process. The act of quitting the office by turning over the writs, &c. to the new sheriff, was done by the defendant on the 12th February. This being a penal proceeding against the defendant, who is entitled to the most favourable construction of a statute expressly made for the ease of sheriffs, we think the day of his leaving the office is to be computed as a part of the six months, and therefore the rule to return the writ came too late. Rule for supersedeas made absolute. The King v. Adderley, Doug.

Rep. 463.

209

corpus in Hil.

ceeded no far

Latitat sued 29th of Nov. 1796, returnable 23d Jan. Sheriff having returned cepi 1797, on which defendant was arrested, and gave a bailbond. On 24th same January the late sheriff was served Term in 1797, with rule to return the writ, which he returned cepi cor- on which pus the 30th; after that, no proceedings were had until plaintiff prothis term, being Mich. 1797, when the late sheriff was ther till Mich. ruled to bring in the body, and an attachment was 1797, court issued against him. Motion to set it aside. It appeared held it unreathat both the bail were insolvent, and defendant ab- sonable that sconded. Court thought it was highly unreasonable, that he should be the sheriff should be called upon at this distance of time, insolvenc of when the bail and the defendant were become insolvent, principal and and made rule abs. Rex v. Sheriff of Surrey, 7 Term bail to bring Rep. 452.

called on after

in the body, and attach

Plaintiff having obtained a rule for an attachment ment set aside, against the sheriff, took no step thereon for a length of time until defendant became a bankrupt, the attachment was set aside for the laches. 9 East. 467. Rex v. The Sheriff of Surrey.

an undertak

An arrest was made 21st Nov. 1796, and officer took If officer take an undertaking of an attorney for appearance. No bail ing to put in having been put in, or bond taken, the plaintiff brought bail, and not an action against the sheriff for an escape. On 7th Jan. put in, and 1797, defendant became a bankrupt, and on the 26th of action for an same month, notice of bail was given, and a motion was escape, court will not permade to justify, the sheriff offering to pay the costs of mit the sheriff the action brought against him for the escape. The court to justify bail held, they ought not to be permitted to justify. And on payment of were of opinion, that neither the sheriff or his officers costs of such ought to shew favour to any person arrested; they should action. on all occasions discharge their duty, and their forbear

ance in general is not an act of humanity, but of avarice, 7 Term Rep. 109. Fuller v. Prest.

P