Officer's fee

10s.

How to proceed by Original. (a)

Prepare a præcipe for the cursitor of the county (b), who makes out the original, take a memorandum on a 5s. stamp or warrant, and annex thereto, pay fine to the king, and for the original writ, when sealed; take it to the sheriff, who will make out a summons thereon, pay 2s. 6d. deliver it to your officer, who will leave the summons at defendant's house. After he has summoned defendant, get the original summons returned by the officer and delivered into the sheriff's office. Then get sheriff to return the writ, pay 2s. If the defendant does not enter his appearance within four days after the quarto die post of the return with the filacer, he will make out a distringas thereon, and sign same, (or you make it out yourself) pay according to length, seal 7d. get a warrant thereon at sheriff's office, pay 2s. 6d. give it to your officer, who will levy 40s. 4 East, 162. If no appearance be entered on the quarto die post of the return, then get the writ returned by the sheriff, take it to the filacer, and he will make out an alias, on which there must be a motion in court to increase the issues, which may be done on producing the return to the first distringas; fee to counsel 10s. 6d. Draw up the rule with the clerk of the rules, take same to the sheriff's office with the alias, and he will make out a warrant thereon for his bailiff to levy the amount ordered. If you have not obtained to the full amount of the debt and costs (which generally is given on the alias) you may proceed to get a return to the alias as before, and issue a pluries; move the court to increase issues to the full extent of the debt and costs incurred, If no appear which will now be granted: draw up the rule, and deliver it with the pluries distringas to the sheriff: he will make out a warrant to his bailiff to levy the amount. Then if no appearance is entered on the quarto die post of the

ance entered.

(a) If a peer be sued jointly with others by bill of Middlesex, the court will set aside the proceedings as against the peer. Brisco, bart. v. the Earl of Egremont, and others, 3 Maule and Selw. 88.

(b) If the peer does not reside in the county where the venue is laid, you may have à writ of testatum summons into the county where he does reside, by having first obtained a return on the original to whom it is directed of

return, proceed by getting a return thereto; and move the court (in pursuance of the statute 10 Geo. 8. c. 50. s. 3. which enacts, that the court may order the issues levied to be sold, and the monies applied to pay such costs to the plaintiff as the court shall think just, and the surplus be retained until the defendant shall have appeared, or other purpose of the writ be answered: with this proviso, when the purpose is answered, then the issues shall be Sect. 4, returned, or if sold, what shall remain of the money arising by such sale, shall be allowed to the party distrained on,) for a rule to shew cause why the issues returned upon Rule. the several writs of distringas should not be sold, and the monies arising from the sale thereof, should not be forthwith brought into court, and why it should not be referred to the master to tax the plaintiff his costs occasioned by his issuing out the said several writs; and why the costs, when taxed, should not be paid out of the monies so brought into court, and why the surplus of the said money, after payment of the said costs, should not be retained in court, until the purpose of the said writs is answered; fee to counsel, 10s. 6d. This is moved upon an affidavit of the several writs of distringas having issued, and the sheriff's returns thereto, and that defendant hath not appeared: draw up rule, serve copy on sheriff, shew the original rule, move the court of an affidavit of the service and shewing the original rule, and to make it absolute: draw up rule, serve copy on the sheriff, shew the original, and if he does not bring the money into court, he will be liable to an attachment. Make out bill of costs, and tax them with the master. fendant still holds out, and does not appear, you may infinitum. distrain him ad infinitum, until he does enter his appearance, and you may move to sell the issues from time to time, as the act directs.

If de- Distress ad

In Raban v. Plaistow, the court held, that the stat. To what it 10 Geo. 3. extended to all writs of distringas, are not con- extends, fined to such as concern privilege only; and ordered the issues to be sold, and the costs incurred to be taxed, and paid to the plaintiff, out of the money arising thereby, and the residue to be retained, in order to answer the event of the suit. 5 Burr. 2726. This was against the late sheriff.

Middlesex (88) If A. B. makes you secure, &c. then Præcipe for put, &c. John Earl of B. (having privilege of parliament) original. that he be before us on wheresoever, &c. to shew, for that whereas (here set forth the whole count or declaration) to the damage of the said A. B. of 5001. as it is said, &c.

Distringas

on a 5s.

stampt parch

George the third, &c. To the sheriff of Middlesex, thereon. To greeting: we command you, that you distrain John be ingrossed Earl of B. having privilege of parliament, by all his lands and chattels in your bailiwick, so that neither he, nor any one for him, do intermeddle therewith, until you shall have other command in that behalf from us; and that you answer us for the issues of the same, so that he be before us on wheresoever

ment.

Filazer makes

we shall then be in England (a), to answer A. B. in a plea (to the end of the præcipe), to the damage of the said A. of 5001. and to hear his judgment thereupon of many defaults; and have you there this writ. Witness Edward Lord Ellenborough, at Westminster, the

in the 57th year of our reign.

day of

The filazer always makes out the writ of summons, and out summons distringas, stating the cause of action at large, namely, and distringas. thewhole of the præcipe, Trye, 127. and they must be made returnable on a general return day, wheresoever the king shall then be in England. Each succeeding writ must be tested on the quarto die post of the return of the preceding one; and there must be fifteen days at least between the teste and return.

N. B. I do not see the necessity of stating the whole cause of action at large in a summons, or distringas, as the sheriff's warrant is very shortly stated. The old entries are short; and the filazer may still charge the legal fee for signing the writs. The distringas being a process of contempt, I do not see any reason why that writ should not be made returnable on a day certain in court, instead of a general return, and the teste of it any day in the term preceding the issuing it. Its being made returnable on a general return day, and fifteen days between the teste and return, is a great delay to the plaintiff in his suit. In the Common Pleas the distringasses are made on a day certain, and need not have fifteen days between the teste and return; the writ is only a compulsive process to compel the defendant to appear.

(a) And if the sheriff return on the summons nihil, you may have a testatum distringas into another county without any new writ of summons in such county. 4 East, 162. See Com. Dig. Process, Distringas, D. 7.

Appearance.

The defendant is to appear in four days after the quar- When the deto die post of the first distringas, if it is returnable the fendant is to first return of the term, and to an alias or other distringas

on the quarto die post.

appear.

With whom

He enters it with the filazer, by delivering it on paper to enter it. thus:

66

Appearance.
The return

"Middlesex, appearance for John Earl of B. at the suit "of A. B. to a writ of distringas, returnable on-where- day. soever, &c. (or alias, or pluries.) J. K. attorney." Pay for entering 2s. 6d. and deliver a memorandum or warrant to defend, on a 5s. stamp, and if the 40s. have been levied, call on the officer for it, and he must return same, or get a certificate from the filacer of defendant's appearance, produce it to the officer; if he will not pay, the judge will compel him by order upon a summons for that purpose.

The plaintiff in an action against a member, had proceed- If the defened agreeable to 10 Geo. 3. and obtained rules for selling dant appear the issues levied upon a distringas, alias, and pluries; and after levy on also for a rule for an attachment against the sheriff, but distringas, he shall pay the no issues had been actually levied; at length defendant costs before appeared; whereupon it was moved that these rules he has the should be discharged; for as no issues had been levied money rethey could not be sold, and as the defendant in the ac- turned. tion had now appeared, the end and purpose of the writs were answered. On the other side, the plaintiff insisted on the costs of issuing the writs, before the rules should be discharged. And the court thought that reasonable, and directed that on payment of costs the rules should be discharged. They were of opinion that these costs were not to attend the event of the suit, but were to be paid to the plaintiff at all events, whether he should finally succeed or not. 5 Burr. 2725. Martin v. Townsend & an.

tion.

Middlesex (88) John Earl of B. was summoned, to an- The declaraswer A. B. in a plea of trespass on the case, and thereupon the said A B. by J. B. his attorney, complains that whereas, (to the end of the recipe, but both in the præcipe and declaration leave out these words) "but contriv "ing, &c. to deceive and defraud the said A. B. in this "behall;" for the lords have adjudged it a very high contempt and misdemeanor, in any person, to charge them with any species of fraud or deceit. 2 Cromp. 149.

When to plead.

When a peer

is not entitled to an imparlance on an

essoign cast.

Summons.

Testatum summons.

If the declaration be delivered four days before the end of the term, the peer must plead if he lives within twenty miles of London, in four days: country, eight days. And, if he be in contempt, and afterwards enter his appearance, he is not entitled to an imparlance.

The plaintiff sued out a writ against a peer in a personal action, returnable the second return of Easter term. At the return, the defendant cast an essoign, which was not adjourned to any particular day; and on the first day of Trinity term, the plaintiff delivered his declaration. Motion for an imparlance.-Buller, J. It was held, that a corporation was not entitled to an essoign, and that there could be no essoign in a personal action. When an essoign is cast, the parties should adjourn to a particular day; but as that was not done here, and as no motion was made to quash the essoign, the declaration could not be delivered till the first day of the term. But the defendant is not entitled to an imparlance, where the plaintiff is prevented from declaring before the essoign day, by an essoign cast. And the court will be glad to use any means to prevent such a delay by the defendant. Rule discharged. Rooke v. Earl of Leicester, 2 Term Rep. 16. 2 Wils. 164. Vide 2 Str. 1194.

All the subsequent proceedings are the same as in other cases, only he cannot be taken in exeeution.

George the third, &c. to the sheriff of greeting: we command you that you cause to be summoned John Earl of B. (having privilege of parliament) that he be be fore us on wheresoever we shall then be in England, to answer A. B. of a For that whereas (to the end of the præcipe) to the damage of the said A. B. of 1. as he shall be able reasonably to shew that thereof he ought to answer, and have there this writ. Witness Edward Lord Ellenborough, at Westminster, the day of in the 57th year of our reign.

If it be a testatum summons, go as far as the word (answer) then as follows:

And whereupon our sheriff of at a certain day now past, returned to us at Westminster, that the said Joha Earl of B. had nothing in his bailiwick, by which he could be summoned: whereas it is testified in our said court before us, that the said John Earl of B. summoned in your bailiwick: and have there then this writ. Witness, &c.

may

be