Where sheriff goes out of office.

False return.

these prisons, as he is required to do by the process, confines him in the county prison, and then makes the return, quod est languidus in prisona domini regis.35 But here the courts have no prisons peculiar to them, and the defendant is always committed to a county prison; it is immaterial, therefore, whether he is sick or well. Where a sheriff returned, "I have taken, &c. who remains in my custody, so ill and weak," &c., the court held, that it was a return of cepi corpus, and not of languidus or cepi corpus in custodia, the sheriff's meaning being evident; and that the words "so ill," &c. might be rejected as surplusage.36

Where the sheriff has arrested any person on a capias, by virtue of which such person is confined either in jail, or on the liberties thereof, if such sheriff go out of office before the writ is returnable, he must at the time of assigning and delivering the jail, deliver such capias to the new sheriff; and the new sheriff must return the writ at the return day, with his own 'proceedings and those of the former sheriff endorsed thereon.

If the sheriff's return be false, an action lies against him: and it seems that the court under special circumstances will order a sheriff to amend his return conformably to the truth of the case, 38

35 2 Cowen. Rep. 472.

86 Ib.

37 R. St. P. 3. Ch. 7. T. 6. s. 72.

Vol. 2. p. 439. et vide 7 Johns.
Rep. 137.

38 1 Caines' Rep. 57. R. St. P. 3. Ch. 7. T. 6. s. 77.

CHAPTER III.

OF THE DEFENDANT'S APPEARANCE.

what.

Appearance is the first act of the defendant in court; and Appearance, until in some mode or other, he be in court, the plaintiff cannot have any judgment either interlocutory or final against him.

The defendant may be in court, either

manner.

1. By having his appearance entered by the clerk, on the In what writ being returned personally served, or with his appearance endorsed, by filing common bail, or by the plaintiff's entering an appearance for him under the statute; an appearance in either of these modes, may be termed a common appearance; or, 2. By putting in, and if excepted to, justifying, special bail; in which case he gives a real security, of responsible persons, either to pay the debt and damages if judgment pass against him, or to surrender himself to the custody of the sheriff on execution against his person; or,

3. By being in the custody of the sheriff at the return of the writ.

It is absolutely necessary that in some one of these ways, the defendant should be in court; a notice of retainer from an attorney is not an appearance.3

We shall treat in this chapter, first, of common appearances, where no special bail is filed or required; and secondly, of putting in, excepting to and justifying special bail.

Before proceeding, however, to the consideration of these

subjects, it is proper to notice certain statutory provisions, allowing proceedings to be taken against defendants in certain cases, although they have not been brought into court.

It is provided that," in actions against two or more persons jointly indebted, upon any joint obligation, contract or liability, if the process issued against all the defendants, shall have been duly served upon either of them, the defendant so served shall answer to the plaintiff; and in such case the judgment, if rendered in favour of the plaintiff, shall be against all the defendants, in the same manner as if all had been served with process." The effect of the judgment in such case, and the form of the execution and the proceedings thereon, will be noticed hereafter in their proper place.5

In relation to executors and administrators, it is provided, that, they shall all be considered as one person representing their testator or intestate; " and such of them as shall be first served with process, or as shall first appear in the action, shall answer the plaintiff. Judgment shall be rendered and in the cases where execution may be issued, against the property of the testator or intestate, it shall be awarded against such as shall have appeared and the others named in the first process, in the same manner as if they had all appeared."101 The plaintiff may likewise have the usual remedies to bring into court all the executors or administrators against whom the action is brought; and no judgment rendered in an action against executors or administrators, by default or otherwise, is to be deemed evidence of any admission of assets in the hands of any executor or administrator, who was not served with process in such action or did not actually appear therein."

SECTION I.

OF COMMON APPEARANCES AND NOTICE OF RETAINER

Clerk's entering appearance.] It has been before mentioned that upon the service of a capias ad respondendum, upon any person which does not require the defendant to be held to bail, he may endorse his appearance on the writ; or if he refuse to do so, the sheriff may return the writ personally served. When the writ is thus returned with the appearance of a defendant endorsed, or as having been personally served, it is the duty of the clerk of the court to enter the defendant's appearance; and thereupon proceedings may be had against such defendant, as if he had actually appeared.9

8

The omission of the clerk to enter the appearance will not prejudice the plaintiff; but it will be allowed to be entered at any time, even after judgment signed.1o

site.

Defendant's filing common bail.] The defendant may, in all cases where special bail is not required, or the defendant is not by law entitled thereto, appear by filing common bail.11 But as where the process is not bailable, his appearance may when requi” be entered by the clerk in the manner we have mentioned, this is now unnecessary, except where he has been actually held to bail by the sheriff. In such case, upon the application and in the manner we have described in treating of "bail to the sheriff," he is entitled to his discharge, upon filing common bail.12 Common bail are merely fictitious persons, as John Doe and

When plain

tiff cannot

Richard Roe, to whose keeping it is supposed that the defendant is delivered. The bail piece is filled up and filed, and the plaintiff may then proceed as in other cases.

Plaintiff's entering common appearance.] It is provided by statute, that "in cases where special bail shall be required, if the same be not given within double the time herein prescribed for that purpose, the plaintiff may enter the defendant's appearance, and proceed to judgment in like manner as if special bail had been given."13 The former statute is slightly modified in the revised act; the section in the " act relative to the acknowledgment, &c. of bail," from which this provision is taken, authorised the plaintiff to file common bail, instead of entering an appearance, the mode prescribed in the present statute. As the bond to the sheriff requires that special bail shall be filed within twenty days after the return day of the writ," an appearance may be entered within forty days thereafter.

It would seem, that if the defendant be sued by a wrong proceed un- name, and do not appear, the plaintiff cannot rectify the mistute. take by entering an appearance for him in his right name, ac

der the sta

cording to the statute;15 nor can he appear for him in the name in which he is sued, and afterwards declare against him in his right name.16 Where bail are excepted to, and neglect to justify, they are as no bail, and the plaintiff may enter an appearance, and proceed under the statute.17 Where a plaintiff' takes a judgment by default, and inadvertently omits to enter an appearance, the court will, on motion, permit him to make his proceedings good, on payment of costs, by doing so nunc pro tunc ;18 or if the omission be occasioned by the defendant's

13 R. St. p. 3. Ch. 6. T. 1. s. 13. Vol. 2. p. 349.

14 Et vide Rule 13.

153 Term. Rep. 611. 2 New Rep. 132.

171 Cowen. Rep. 54. Ib. 60. 1 Wils. 337. 7 East. 580. 4 Johns. Rep. 185.

18 4 Cowen's Rep. 61. 2 Cowen's Rep. 43. 6 Cowen's Rep.

10 10 East. 328. 11 East. 225. 599.