but delivering a copy of the writ at the counting house of the defendant, is not sufficient, (ee) unless it be given to a partner, or some accredited person there. (f) To ground a motion for a distringas, on the above statute, an affidavit must be made in this court, similar to that in the King's Bench and Common Pleas ; (g) and the subsequent proceedings are the same as in

those courts.

The subpoena ad respondendum is a process directed to the defendant; commanding him to appear before the barons of the Exchequer at Westminster, immediately after service thereof in term, or, if sued out in vacation, on a day in the next term, to answer the king under the penalty of 1007., concerning certain articles then and there, on his majesty's behalf, to be objected against him.(h) This process, we have seen, (2) is analagous to the subpoena in Chancery, or on the equity side of the Exchequer and may be issued out of the office of Pleas; and it is not necessary that such process should be signed by the chief secondary, or a sworn clerk in the office of the king's remembrancer.(k) A copy of the writ, or label,(l) specifying the day of appearance, is made out thereon, and served on the defendant. But it is not the practice, as in Chancery, to serve a subpœna, by leaving the body of the writ with the defendant, where there is but one: It is sufficient, if a copy or label be left, and the original produced, and shown to him. (m) If the defendant do not appear within four days after the return of it, an affidavit(n) is made of the service; upon which there issues an attachment, (o) and afterwards, if necessary, a distringas, on the statute 7 & 8 Geo. IV. c. 71, § 5. Previously to that statute there issued, on the defendant's non-appearance to the attachment, an alias or pluries attachment, with a clause of proclamation;(a) [*157 ] and, on the return of non est inventus, (b) if he still made default,

a commission of rebellion,(c) for taking him into custody by a serjeant at arms: but now, as the statute 7 & 8 Geo. IV. c. 71, § 5, extends to process by subpoena and attachment, the mode of proceeding to compel an appearance, is regulated by that statute. (d) And, by a late rule of court, (ee) "præcipes for all subpoenas and attachments that are issued in the office of pleas, with the names of the parties therein, the returns of such writs, the dates when they are issued, and the names of the attorneys or side clerks issuing the same, shall be given to the officer who signs such writs as require the name of the clerk of the pleas to be set thereto, on issuing such subpoenas and attachments, (f) and on the issuing of all attachments for want of appearance, the affidavits of service(gg) of the subpoenas upon which such attachments are issued, shall be filed on a file to be kept for that purpose in the said office."

(ee) 2 Price, 9.

(9) Ante, 115; and see Man. Ex. Append. p. 15. (A) Append. Chap. VIII. 2 94.

(f) 3 Price, 266.

(i) Ante, 92.

(k) 9 Price, 385; but see R. H. 19 Jac. I. R. M. 36 Car. II. Exeheq. contra; which rules were considered in the above case as obsolete.

(1) Append. Chap. VIII. ¿ 96.

(m) 6 Price, 34. And as to the service of a subpoena, on the Equity side of the court of Exchequer, see 1 Youn. & J. 570.

(n) Append. Chap. VIII. 97, 8.

(a) Append. Chap. VIII. & 104.

(0) Id. 8 100, &c.

(b) Id. & 105.

(e) Id. 107. And for the form of the returns thereto, see id. ĝ 108, 9.

(d) Ante, 113, &c.

(ee) R. E. 45 Geo. III. in Scac. Man. Ex. Append. 225. 8 Price, 506.

(f) Append. Chap. VIII. 93, 99, 103, 106.

(99) Id. 97, 8.

VOL. I.-11

The quo minus capias, which answers to the bill of Middlesex or latitat in the King's Bench, and capias quare, clausum fregit in the Common Pleas, (hh) is a process directed to the sheriff; commanding him to take the defendant, and safely keep him, so that he may have his body before the barons of the Exchequer at Westminster, on a day in term, to answer the plaintiff of a plea of traspass, whereby he is the less able, &c.(ii) This process, as well as the venire facias and distringas, is issued, on a proper præcipe,(k) and always contains a clause of non omittas;(1) and it must be tested in term-time, in the name of the chief baron or senior baron of the court, if there be no chief baron. If sued out in term-time, it is usually tested as in the other courts, on the first day of that term; or, if sued out in vacation, on the last day of the preceding one: and it may be made returnable on any day in term, not being a Sunday, or other dies non juridicus, as the feast of the Purification, &c. If, as is commonly the case, the writ be made returnable on a general return, it is described accordingly, as in process by original writ; or, if on any other day, it is usual to state the day of the month, as "on the day of instant, (or next coming:") and it may be made returnable, by the day of the month, on any day except a dies non juridicus.(m) Writs of venire facias, distringas, and quo minus, &c. are signed with the name of the clerk of the pleas; but subpoenas, and process of contempt thereon, are not signable, but issued under the seal of the court, and subscribed, "By the Barons."(n)

In suing out process, in the Exchequer of Pleas, the attorneys and side clerks, by whom the business of the court is transacted,(o) act [*158] either as "principals, immediately employed by the parties, or as agents to attorneys so employed, and admitted in either of the other courts at Westminster, who as such are solicitors on the plea side of this court. When an attorney of the Exchequer acts as principal, his name only is written, opposite to that of the clerk of the pleas, at the foot of a signable process, as attorney for the plaintiff; but when he is only an agent, the name of the solicitor for whom he acts is first written thus, "E. F. Solicitor," and then his own name, and afterwards that of the clerk of the pleas. When a clerk in court acts as principal, his name is written thus, "G. H. Clerk in Court," and then the initial of the name of the attorney in whose division he is: but when he is only an agent, the name of the solicitor is first written, and then his own name, without stating him to be a clerk in court; afterwards, the initial of the attorney's name; and lastly, the name of the clerk of the pleas. If the process be not signable, the attorneys name or initial is indorsed thereon, instead of being written at the foot of it.(a)

(hh) Ante, 82.

(k) Id. 76, 83, 110.

(1) Id. 77, 84, 111.

(ii) Append. Chap. VIII. § 111.

(m) 1 M'Clel. & Y. 483, 495, 6. (0) Ante, 58.

(n) Append. Chap. VIII. 94, 102, 104, 107. (a) Append. Chap. VIII. 95, 101; and see 2 Chit. Rep. 84. For writs and process in general, in the court of Exchequer of Pleas, see Man. Ex. Pr. Chap. III.; for the venire facias ad respondendum, and subsequent process of distringas, Id. Chap. IV. Append. Chap. VIII. 77, &c. 84, &c.; for the subpoena ad respondendum, and subsequent process, Man. Ex. Pr. Chap. VI. Append. Chap. VIII. 2 94, &c.; and for the quo minus, &c. Man. Ex. Pr. Chap. VIII. IX. X. Append. Chap. VIII. § 111, &c.

It will here be proper to take notice of some things that are required by act of parliament, to be set down, subscribed to, or indorsed upon the process, in the different courts. And first, by the statutes 5 & 6 W. & M. c. 21, § 4, and 9 & 10 W. III. c. 25, § 42, made for preventing abuses committed by arresting persons, without any writ or legal process to justify the same, and by that means evading the stamp duties thereon; the officer, who shall sign any writ or process, to arrest any person or persons before judgment, shall, at the signing thereof, set down upon such writ or process, the day and year of his signing the same."(b) And by a subsequent statute, (c) made for the like purposes, "every warrant, issuing upon any such writ or writs, shall have the same day and year plainly and distinctly set down thereon, as shall be so set down on the writ itself." The indorsement of the date, however, is said to be no part of the writ: and therefore, if the teste be right, the courts will not set aside the proceedings, for a mistake of the indorsement. (d) But where, in an action against an attorney for negligence, in not proceeding to judgment and execution in due time, the bill of Middlesex against the original defendant (having no teste,) was stated, under a videlicet, to have issued on the 24th of January 1785, returnable on Monday [*159 ] next after fifteen days of St. Hilary in the same year, which was really the fact, but by a mistake of the indorsement, it appeared in evidence to have issued on the 24th of January 1784, the plaintiff was nonsuited; and on a motion for a new trial, the court were of opinion, that the time of proceeding against the original defendant depending on the return of the writ, the return became material, and therefore the variance was fatal. (a)

By the statute 12 Geo. I. c. 29, § 2, the sum specified in the affidavit of the cause of action, is required to be indorsed on the back of the writ or process for holding the defendant to special bail. This part of the statute, however, is merely directory to the sheriff; and does not avoid the process, when the sum sworn to is not indorsed upon it.(bb) And where the demand is made up of several items, it is sufficient to indorse the total of them on the writ.(cc)

A further regulation was made by the statute 2 Geo. II. c. 23, § 22, which enacts, that "every writ and process, for arresting the body, and every writ of execution, or some label annexed to such writ or process, and every warrant that shall be made out thereon, shall, before the service or execution thereof, be subscribed or indorsed with the name of the attorney, clerk in court, or solicitor, written in a common legible hand, by whom such writ, &c. respectively shall be sued forth;(dd) and where such attorney, &c. shall not be the person immediately retained or employed by the plaintiff, then also with the name of the attorney, &c. so immediately retained or employed, to be subscribed or indorsed and written in like manner. And that every copy of any writ or process, that shall be served upon any defendant, shall, before the service thereof, be in like manner subscribed or indorsed,

(b) Append. Chap. VII. 2. Chap. VIII. 8 7, 22, 29, 55, 95, 101. (c) 6 Geo. I. c. 21,

54.

(d) 1 Wils. 91. And the indorsement by the officer, on the back of a writ of summons of four knights, to make election of the grand assize, on a writ of right, that "the four knights were duly sworn," which was not true, was holden to be no part of the return, so as to make the sheriff answerable for the contents of such indorsement, in an action for a false return. 3 Moore, 249. 1 Brod. & Bing. 17, S. C.

(2) 1 Durnf. & East, 656.

(b) 1 Bur. 330. Barnes, 414. 1 H. Blac. 76. 4 Bing. 63; but see 2 New Rep. C. P. 202. semb. contra.

(cc) 4 Bing. 63.

(dd) Append. Chap. VIII. 22, 29, 55.

with the name of the attorney or solicitor who shall be immediately retained or employed by the plaintiff." And, by a late rule of the court of King's Bench,(e) "the attorney concerned for the plaintiff in the cause, or his agent, shall, upon all bailable mesne process, and every writ of attachment, indorse the place of abode and addition of the party against whom the writ issued, or such other description of him, as such attorney or agent may be able to give."

But, by the statute 12 Geo. II. c. 13, § 4, "the not subscribing or indorsing the name of the attorney, &c. on any warrant that shall be made out upon any writ, &c. shall not vitiate the same; but such writ, &c. and all proceedings thereon, shall be as valid and effectual, notwithstanding such omission, as if the preceding act had not been made; provided the writ, whereon such warrant is made out, be regularly subscribed or indorsed, according [*160] to the act."(f) Since the making of this statute, *though the omission of the attorney's name upon the warrant, which is the act of the sheriff, will not vitiate the proceedings,(a) yet if it be not subscribed to or indorsed on the writ, or copy(b) they may be set aside for irregularity.

Lastly, by the statute 7 & 8 Geo. IV. c. 71, § 8, reciting that arrests of the person had in many instances been made under writs sued out by persons not being attorneys or solicitors, and whose places of residence were unknown, which practice had been found to be productive of oppression and vexation; it is enacted, that "no sheriff, under-sheriff, or other officer, having the execution of process, shall grant any warrant for the arrest of, or shall arrest the person of any defendant, upon any writ or process issued by any plaintiff in his own person, unless the same writ shall, at or before the time of granting such warrant, or of making such arrest, be delivered to such sheriff, under-sheriff, or other officer having the execution of process, by some attorney of one of the courts of record at Westminster, or of the courts of Great Sessions in Wales, or of the courts of the counties palatine of Lancaster or Durham, or of the court out of which the said writ shall have issued, or by the clerk of such attorney, or an agent authorized by such attorney in writing; and unless the said writ shall be indorsed by such attorney or his clerk, or such agent as aforesaid, in the presence of such sheriff, under-sheriff, or other officer having the execution of process, with the name and place of abode of such attorney." And, by § 9, "all warrants granted, and all arrests of the person made, contrary to the provisions of that act, shall be altogether illegal and void. Provided always, that nothing therein contained, shall extend to any writ or process sued out by any attorney, solicitor, clerk of court, or other officer of any conrt, having authority to sue out process in his own name."

If there be no process, (c) or if it be defective in point of form, (d) or in its direction, (e) teste, (f) or return,(g) or the attorney's name be not indorsed

(e) R. H. 2 & 3 Geo. IV. K. B. 5 Barn. & Ald. 560. 2 Chit. Rep. 377. 1 Dowl. & Ryl. 471. (f) See R. T. 1 Geo. II. (b). K. B. 1 Chit. Rep. 611, (a).

(a) Pr. Reg. 441, 2. Barnes, 414, S. C.

(b) Barnes, 415. Wright & another v. Willes, M. 21 Geo. III. K. B. Per Cur. T. 29 Geo. III. K. B., but see Pr. Reg. 440, 41. Cas. Pr. C. P. 102. Barnes, 407, S. C.

upon it, (h) the defendant may move the court to set aside the proceedings for irregularity. And a writ, having a wrong return, will not be aided, by a correct day being mentioned in the notice to appear.(i) But he cannot take advantage of any error or defect in the process, after he has appeared to it,(k) or taken the declaration out of the office,(7) or obtained time to put in bail to the action ;(m) for it is the universal practice of the courts, that the application to set aside proceedings for irregularity [*161] should be made as early as possible, or, as it is commonly said,

in the first instance ;(a) and where there has been an irregularity, if the party overlook it, and take subsequent steps in the cause, he cannot afterwards revert back and object to it.(b) In the Common Pleas, the court will not quash a writ, on the ground of its having been served in a wrong county.(c) And it is said, that a mistake in the process is cured by the plaintiff's entering an appearance, which has always been looked upon as effectual for that purpose, as if the defendant had entered the appearance; (d) but the plaintiff cannot, by entering an appearance, cure the want of service of a copy of the process, (e) or a defect in the notice subscribed thereto.(f) It is also said, that no advantage can be taken of the irregularity of process, without having it returned, and before the court.(g) And where the irregularity complained of is not in the process, but in the notice to appear thereto, (hh) or in the service of it, (ii) the rule should be to set aside such service, and not the process itself.(kk)[a]

The courts will in general amend the process, where there is any thing to amend by :()[B] and it has been amended in the name of the defend

(h) Wright and another v. Willes, M. 21 Geo. III. K. B. Per Cur. T. 29 Geo. III. K. B. Barnes, 415.

(i) 2 Chit. Rep. 356. and see 4 Barn. & Ald. 288.

(k) 1 Str. 155. Barnes, 163, 167, 415. 1 Bos. & Pul. 250, 344.

(1) Cas. temp. Hardw. 242. 2 Str. 1072, 3. Wright & another v. Willes, M. 21 Geo. III. K. B. Barnes, 416. 1 H. Blac. 222, 3 C. P.

(m) 6 Barn. & Cres. 76. 9 Dowl. & Ryl. 124, S. C.

(a) 3 Durnf. & East, 7. 1 East, 334, 5.

8 Dowl. & Ryl. 450.

Price, 637.

(b) 1 East, 77, and see 3 Durnf. & East, 10. 5 Durnf. & East, 254, 464. 1 East, 330. 2 Smith, R. 391. 1 Chit. Rep. 333. 2 Chit. Rep. 236. 8 Dowl. & Ryl. 450, K. B. 1 H. Blac. 251. 1 Bos. & Pul. 250, 344. 1 Taunt. 59. 2 Taunt. 244. 4 Taunt. 545. 6 Taunt. 6. 1 Marsh. 403, S. C. 6 Taunt. 185. 1 Moore, 299, C. P. 9 Price, 637, Excheq. (c) 1 Marsh. 9.

(d) Prac. Reg. 347, 8. Sed quære? as from later decisions it seems, that in the Common Pleas, the defendant is not bound to apply to the court, for an irregularity in process, until the plaintiff has taken some step, by which he shows that he means to proceed upon it. Taunt. 5. 1 Marsh. 403, S. C., and see 5 Taunt. 664. 6 Taunt. 191, 2. 1 Marsh. 551, S. C. 2 Chit. Rep. 236. 7 Moore, 461. 1 Bing. 122, S. C.

(e) Barnes, 406.

(f) Prac. Reg. 347. 2 Price, 9.

(g) 3 Wils. 58, but see 5 Taunt. 854, where it was said by Mr. Sergeant Best, arguendo that the practice was uniform, to make these motions before the writ was returned. (hh) 9 East, 528. 5 Taunt. 652, (a). 1 Chit. Rep. 384.

() 5 Taunt. 644. 1 Bing. 65.

(U) 1 Durnf. & East, 782.

(kk) 1 Chit. Rep. 616, (a).

[A] Where the delay or irregularity in the cause has proceeded from the gross negligence or ignorance of the solicitor, the court will, in its discretion, relieve the client against the consequences of the delay or irregularity. Pratt v. Adams, 7 Paige, C. R. 615. The costs of an irregularity arising from the gross ignorance or negligence of the solicitor, will be charged upon the solicitor personally. (Walworth, Ch.) Kane v. Van Vranken, 5 Paige, C.

R. 62.

[B] In this country amendments have been much regulated by statutes, and great liberality has been allowed. Thus in Pennsylvania, the pleadings may be amended at any stage of the proceedings before or on the trial; and mistakes in the names of the parties may be corrected even after judgment by confession. Purd. Dig. p. 38, Brightly's Ed. 1853. In