If the defendant does not appear by guardian in the If infant does time allowed by the rules of the court, the plaintiff must not appear by guardian, procure an affidavit of the service of the process, and how plaintiff that the defendant is an infant, and that he hath not ap- is to proceed. peared; upon which the judge, without taking out a summons, will make an order, "that unless the infant "appears by guardian within so many days after per"sonal service of the order, plaintiff may assign John "Doe for guardian, and enter appearance for defendant;" and upon affidavit of the service of this order, the judge will make the order absolute, and then an admission is drawn up and filed as aforesaid. Vide Str. 1076. Stone v. Atwell.

Infant plain

tiff not liable to costs, but

It is said the infant plaintiff, who sues by prochein amy, is not liable to costs, because he cannot, while under age, disavow the suit; but the prochein amy is prochein amy, liable, 2 Str. 548. (a) James v. Hatfield, Barnes, 128. &c. Cro. El. 33. 2 Str. 708. Cro. Jac. 640.; and if it ap- Infant defenpears to the court that he is not of sufficient ability to dant is liable, pay the costs, the court will order another who is. But although he where an infant plaintiff who had sued without prochein names a guardian. amy or guardian was in execution for costs, the court refused to relieve him. 13 East, 6. And an infant defendant (although he names as guardian) is liable to costs, if the verdict be against him. Dy. 104. 1 Bulstr. 189, Str. 708.

If in execu

tion for costs,

The costs must be demanded of plaintiff's next friend, Costs to be demanded, and on refusal, you may move for an attachment on an affidavit of the facts. Cro. Eliz. 33. 1 Str. 548. Willis 190.

If the plaintiff reply to a plea of infancy, that the de- Confirmation fendant after he had attained twenty-one confirmed the of a promise, promise, and the defendant rejoin that he did not, the plaintiff need only prove a promise, and the defendant must shew that he was under age at the time, 1 Term Rep. 648. Borthwick v. Carruthers.

(a) Yet it appears, that an infant plaintiff was taken in execution for the costs, aud court refused to discharge him on motion. 2 Str. 1217. Gardiner v. Holt. Per Cur. If costs cannot be given, it will be matter of error to be insisted on.

When the

STATUTE OF LIMITATIONS.

To save the statute of limitations, it is proper for the plaintiff to commence a suit, by actually suing out process against the defendant; and such process must be sued out before the time expires; it will not do by relation, for the defendant may in his rejoinder, set out the true time on which it is issued. 1 Black. Rep. 215. Ld. Ray. 432.

(a) If the plaintiff is a foreigner, and doth not come to statute begins. England in fifty years, he has still six years after his to run against coming into England, to bring his action; and if he a foreigner. never comes to England himself, he has always a right of action while he lives abroad, and so have his executors or administrators after his death. Strithorst v. Græme, 3 Wils. 145.

If one plaintiff be abroad

and the other in England.

If in England at the time

If one plaintiff be abroad, and the other in England, the action must be brought within six years after the cause of action arises. Perry v. Jackson and others, 4 Term Rep. 516.

If plaintiff be in England at the time the cause of cause of action action accrues, the time of limitation begins to run, so that if he, or in case he die abroad his executors, do not sue within six years they are barred by the statute. Smith v. Hill, 1 Wils. 134.

accrues.

A bill of Middlesex or latitat may be sued.

A bill of Middlesex or latitat, in the first instance, may be sued out in order to save the statute of limitations, which being done, take same to the sheriff for a return of non est inventus, then enter the same on a roll, as of the term in which the writ is returnable, thus:

As yet of the term of St. Michael, 57th Geo, the 3d. 1817. Witness Edward Lord Ellenborough.

Entry of a bill Middlesex, of Middlesex.

The sheriff is commanded to take C. D. to wit. and John Doe, if they may be found in his bailiwick, and them safely keep, so that he may have

(a) An attachment of privilege, 2 Black. Rep. 1131, though informal as made on a general return day, will be a good commencement of an action to avoid the statute; but it is not a continuance of a bill of Middlesex, so as to avoid the statute. 3 Term Rep. 662. Smith, one, &c. v. Bower.

their bodies before the lord the king at Westminster, on
Friday next after the morrow of All Souls, to answer A.
B. in a plea of trespass, and that he then have there this
precept. By bill.
Law and Markham.

At which day before our lord the king at Westminster, Appearance of came the said A. B. in his proper person, and offered the plaintiff, himself against the said C. D. in the plea aforesaid, and return there

the sheriff, to wit,

esq. and

and sheriff's

esq. on.

sheriff of the said county, returned that the said C. D. was not found in his bailiwick.

it.

(a) Take the roll and writ to the clerk of the judg- How to enter ments, who will enter the same, and mark the writ, pay 2s. carry in the roll, and file the writ in the treasury.

Middlesex (ss) Entry of a bill of Middlesex between Docket.
A. B. plaintiff, and C. D. defendant returnable on, &c.
Roll. 56.

This entry will serve for the latitat, enter the writ verbatim, George the third, &c. to the end, Law and Markham. It will also serve for an attachment of privilege.

if once taken

For it may be continued

By taking out the bill of Middlesex, &c. in this man- No necessity ner before the end of the six years, there is no necessity to do it again, for doing it again, nor is there any occasion to declare out. thereon pursuant to the rules of court, at the end of two terms. 2 Vern. 192. For when you come to arrest defendant, and he pleads the statute, it may be continued when you sue till the suing out of the new process, which must be again. shewn in the replication; averring at the end thereof, Averment in that the first process sued out and returned, was sued out the replication, with a view to exhibit his bill, or declare for the same identical cause of action; and that the same was sued out within the time limited by the statute,

In actions against peers of the realm, Scotland and Peers. Ireland, corporations or hundredors onthe statutes of hue and cry, &c. an original must be sued out, for avoiding the statute, and returned by the sheriff. And where a member of the house of commons is defendant, the plaintiff must sue out aur original writ, and get it returned by

(a) If the writ be produced, to shew it was sued out to save the statute, the plaintiff must also shew it has been returned by the sheriff. Harris v. Woolford, 6 Term Rep. 617. So if an alias be produced, the first writ must be returned and shewn. Vide 2 Ld. Ray. 883.› 7 Mod. 3. Willes, 255. 1 Lutto. 260. 2 Bos, and P. 157.

Officers of

the sheriff nihil. 2 Ld. Ray. 1113. 1 Lev. 111. or file a bill and issue a writ of summons thereon, which is to be returned by the sheriff. As against an officer of the court, court or pri- or a prisoner in actual custody of the marshal, a bill must be filed with the clerk of the declarations, which may be done in vacation to save the statute. Doug. 313. 5 Term Rep. 173. 325.

soner.

If attorney

sues.

If an attorney sue in his own name a common person, he must sue an attachment of privilege, and get it returned by the sheriff, to save the statute; enter it on the roll and file the writ.

The judgment

roll must be

be done.

ENTRY OF SATISFACTION.

SATISFACTION being obtained of any judgment, an entry on the record ought regularly to be made to filed, or cannot discharge the same, or the judgment apparently continues in force against the party convicted thereon. And for this purpose, the party making satisfaction may demand of the other a warrant of attorney from him, directed to some attorney of the court wherein the judgment is recovered, authorising such attorney to enter up satisfaction; the warrant may be had ready printed at the stationers, the form of which is as follows:

Twenty shil

ling stamp.

Warrant of attorney to

To E. F. G. H. and J. K. attornies of the court of King's Bench at Westminster, jointly and severally, or

acknowledge to any other attorney of the same court.

satisfaction.

and £

Whereas I, A. B. of, &c. heretofore, to wit, in or about the term of last past, obtained final judgment, in his majesty's court of King's Bench, against C. D. of, &c. for £ costs (or for " £ damages and costs,") as by the record thereof may appear. And whereas I, A. B. have received satisfaction for the same. These are therefore to desire and authorize you the attornies above-named, or any one of you, or any attorney of the same court, to acknowledge, and enter satisfaction upon the record of the same judgment, and for so doing, this shall be your sufficient warrant and discharge in this behalf. In witness I have hereunto set my hand and seal the

in the year of our Lord 18

day of

Sealed and delivered, (being first duly stamped) in the presence of

N. O.

M. P.

A. B.

Write the satisfaction-piece on a slip of unstamped parchment thus:

Take this and the warrant of attorney executed to the clerk of the judgments, who will make an entry thereof, in his book of remembrances, and deliver it over to the clerk of the treasury, who enters the same on the roll, pay him 3s. for the entry, if in term: in vacation 5s.; 10d. more for the keys of the treasury, and 3s. 4d. attendance.

Afterwards, to wit on

next after

in

term, in the 57th year of the reign of the lord the king, before the said lord the king at Westminster, comes the said A. B. by his attorney aforesaid, and acknowledges himself to be satisfied by the said C. D. of the damages, costs, and charges aforesaid (or if in debt "of the debt and damages aforesaid.") Therefore let the said C. D. be there acquitted, &c.

The defendant has been allowed to enter satisfaction on the roll, upon a judgment obtained against him in the King's Bench, on his acknowledging satisfaction for the amount, upon a judgment obtained by him, in the Common Pleas, against the plaintiff for a larger amount, although he had the plaintiff in custody in execution on that judgment. Simpson v. Hanley and another, 1 Maule and Selw. 696.

A partnership or joint debt may be satisfied or discharged by the acceptance of a security, distinct from that of the partnership, or debtors. Evans v. Drummond, A Esp. N. P. Rep. 91. Reid v. White, 5 Esp. N. P. Rep. 122.

Entry of satis faction.