OF THE PROCEEDINGS ON MESNE PROCESS, ETC.

165 which he was arrested, and allowed to go at large by the sheriff, and that the writ was afterwards altered, by inserting the real name of the defendant, under which he was again arrested, without any fresh affidavit of debt, as required by the statute, the plea was holden to be bad, on special demurrer : as it did not go the merits of the action, and, if true, the defendant should either have pleaded in abatement, or moved to set aside the proceedings for irregularity.(e) It is curious to remark the changes which the law of arrest has undergone at different periods. Anciently, as no capias lay, an arrest was not allowed, except in action of trespass vi et armis: afterwards, an arrest was introduced, with the capias, in other actions: and now, by the operation of the before-mentioned statutes, an arrest cannot be had, in the only action wherein it was formerly allowed.

*These statutes, however, except so far as they prohibit the hold- [ *166] ing to bail for causes of action under twenty pounds, are not directly restrictive of any authority antecedently exercised by the courts, in respect to the holding to bail: but of the act of the plaintiff only.(a) And as the practice of the courts, anterior to the statutes, appears to have been, to receive affidavits sworn out of England, and verified here, for the purpose of making orders thereupon, to hold defendants to special bail:(6) so this practice, not being inconsistent with the letter of the statute 12 Geo. I. c. 29, has prevailed ever since: and accordingly it is now settled, that the defendant may be arrested, under an order of the court or a judge, upon an affidavit made out of England, and verified here, as well where the affidavit is made abroad, out of his majesty's dominions, before some magistrate or person of competent authority there, as where it is made before a judge or other son authorized to take affidavits in Ireland and Scotland.(c) And on similar grounds, though the plaintiff is prohibited by the statutes from arresting the defendant upon his own affidavit only, in an action for general damages, as in assumpsit or covenant to indemnify, &c. or in an action for a tort or trespass, yet the court or a judge is not restrained thereby, but may make a special order upon such affidavit, for holding the defendant to special bail.(d) In trespass for the mesne profits, after a recovery in ejectment, the action is bailable or not, at the discretion of the court or a judge: and when an order for bail is made, the recognizance is usually taken in two years value of the premises; but this is also discretionary.(ee)

per

There are three cases provided for by these statutes; first, where the cause of action does not amount to twenty pounds; secondly, where it amounts to twenty pounds or upwards, and no affidavit is made thereof: thirdly, where it amounts to twenty pounds or upwards, and there is an affidavit made and filed of the cause of action. (f) In the two first cases, the process against the person is not bailable ;(g) and the defendant cannot be arrested thereon, but must be personally served with a copy of it; on which there must be

(a) 8 East, 370.

(e) 5 Moore, 168. (b) 8 Mod. 322. Barnes, 466, but see 2 Str. 1209. 2 Bur. 655. (e) 8 East, 364. And see the statute 55 Geo. III. c. 157, for empowering the courts of law and equity in Ireland, to grant commissions for taking affidavits in all parts of Great Britain; Bovara v. Besesti, M. 24 Geo. III. K. B. Brown v. Phepoe, H. 24 Geo. III. K. B. Voght v. Elgin, H. 38 Geo. III. K. B. 1 Chit. Rep. 463. 4 Barn. & Cres. 886. 7 Dowl. & Ryl. 478, S. C. (ee) Barnes, 85. 1 Sel. Pr. 2 Ed. 36. Ad. Eject. 2 Ed. 329.

(d) Post, 172.

(f) Prac. Reg. 350.

(9) This is frequently called common or serviceable process; though the term common seems more properly confined to the bill of Middlesex or latitat, &c., without the clause of ac

etiam.

written an English notice, of the intent and meaning of such service; (h) which in effect reduces it to a mere summons.(i) This notice (which is

only necessary on the copy of the process served, and need not [*167] be on the writ itself,)(k) is required by the statutes, where the cause of action amounts to twenty pounds or upwards, and no affidavit *is made thereof, as well as where it does not amount to twenty pounds. (a) And it must be directed to the defendant :(6) for if his name be not prefixed thereto, the process is irregular, and may be quashed on motion. The notice should, it seems, be directed to the defendant by his christian, as well as surname ;(c) and require the defendant to appear at the return of the process:(d) and where the process is returnable on a general return day, as in the Common Pleas, (e) or King's Bench by original, (f) or on a quo minus in the Exchequer, (g) it should require him to appear on the return day, though it happen on a Sunday,(hh) and not on the quarto die post of the return of the process. In the King's Bench, a notice requiring the defendant to appear on Friday, instead of Saturday, the sixth of November, is irregular.(ii) And so, in the Common Pleas, where a writ was tested on the twelfth of February, returnable in fifteen days of Easter, being the fifth of April, and in the notice to appear, the return day was stated to be the fifth of February, instead of the fifth of April, the court held this to be irregular, and set aside the proceedings.(kk) But it is not necessary that the year should be stated in the notice, in words at length: it being sufficient to set out in figures. (1) If there be no notice to appear, (m) when necessary, or the notice be not properly directed, (n) &c. the defendant may move the court to set aside the proceedings. But any trifling informality in the notice as setting down the day of the month on which the defendant is to appear, without saying instant, next, or specifying the year, or mentioning an impossible year, will not invalidate it.(o)

The copy of process, to be served on the defendant,[A] must be a copy of such process as he might have been arrested upon, before the statute 12 Geo. I. c. 29; and therefore, where the proceedings are by original he should be served with a copy of the capias, and not of the original writ (h) Append. Chap. IX. ¿ 1, 2, 3. (k) 9 East, 528, 9. (a) 7 Durnf. & East, 337. Barnes, 404. Pr. Reg. 349. Cas. Pr. C. P. 100, 143. 1 Sel. Pr. 2 Ed. 74, 5, but see 1 Wils. 22, contra.

(2) Cowp. 455.

(b) Kelynge, 131. 1 Wils. 104. Doe v. Johnson and another, H. 24 Geo. III. K. B. Barnes, 409. 1 H. Blac. 100. 2 Bos. & Pul. 38, and see 1 Chit. Rep. 500. Id. 501, in notis; but see 2 Chit. Rep. 355, 6.

(c)

v. Snow, E. 57 Geo. III. K. B. 1 Chit. Rep. 398, and see 1 Chit. Rep. 500. Id. 501, in notis; but see 2 Chit. Rep. 355, 6.

(d)

Price, 9.

v. Hanson, T. 42 Geo. III. K. B. Barnes, 293, 4. 2 Bos. & Pul. 340. 2

(e) Barnes, 293. Cas. Pr. C. P. 92, S. C. 2 Bos. & Pul. 340, but see 1 H. Blac. 630, semb.

contra.

(f) 3 Bur. 1600.

(g) 1 Younge & J. 9.

(hh) Cas. Pr. C. P. 92, 97, 8. Pr. Reg. 346, 7. Barnes, 293, 4, S. C. Notice, H. 7 Geo. II C. P. 3 Bur. 1600.

(i) 1 Chit. Rep. 615.

(kk) 2 Moore, 214. 8 Taunt. 253, S. C.

(1) 4 Maule & Sel. 335, per Bayley, J. K. B. 1 Marsh. 550, (a), 577. 6 Taunt. 333, C. P. 1 Chit. Rep. 385, in notis; 2 Chit. Rep. 356, but see id. 238. 1 Maule & Sel. 119. 5 Taunt. 651. 1 Marsh. 272, S. C. 6 Taunt. 6. 1 Marsh. 403, S. C., contra. (m) Cas. Pr. C. P. 100. 2 Str. 1072. 9 East, 528.

(n) Kelynge, 131. 1 Wils. 104. Barnes, 409. 1 H. Blac. 100. 2 Bos. & Pul. 38. 2 Price, 9. 1 Chit. Rep. 500.

(0) 2 Str. 1233. Barnes, 425. Per Cur. E. 21 Geo. III. K. B. 1 Taunt. 424. 2 Barn. &

[A] See 1 Archb. Pract., p. 155, 8 Ed.

of summons or attachment :(p) and a complete copy of the whole process must be served. (aa) But where the defendant is [*168] in a county palatine, he should be served with a copy of the process issuing out of the superior court, and not of the mandate, from the officer to whom it is directed. (b) And, in the Exchequer, a variance in the body of the copy of process, from the writ itself, is fatal, and subversive of the process, and subsequent proceedings. (c) The copy of the process may be served by the sheriff or his officers, (except in particular franchises, having the return of writs,) or by any one else, (d) provided he be able to examine the copy with the original, so as to swear (if necessary,) to the service. In particular franchises and jurisdictions, the proper officer there should execute the process. (e) The court will not allow the copy of a writ to be amended, so as to make the service good.(ƒ)[4]

Formerly, a copy of the process must have been served on the defendant before the return day ;(g) but now it is holden, that service at any time, even after the rising of the court, on the return day, is sufficient.([B] And it may be served at any hour, however late, at night; process not being within the rule of court as to service of notices, &c., before ten o'clock. (2) In the Exchequer, we have seen,(k) service of a writ on Candlemas day, is deemed good service. In the King's Bench, a bill of Middlesex must not be served in London, or elsewhere out of the county of Middlesex ;(1) nor whilst the defendant is attending his cause at the sittings :(m) And a latitat cannot regularly be served in any other county than that to the sheriff of which it is directed.(n) So, in the Common Pleas, a capias directed into one county, cannot be regularly served in another, although it happen that the same officer is filacer for both counties:(0) And a capias directed into Kent, cannot be well served in the Cinque ports,(0) or city of Canterbury.(pp) But where there is any dispute as to the boundaries of the county, the courts will not determine it on motion:(q) And, in order to set aside the service of a writ in a wrong county, there must be a positive affidavit, in the King's Bench, showing that there could be no dispute as to the boundaries.(r) On serv

ing the copy, it is not necessary, though usual, to show the ori- [169]

(p) Barnes, 406, 410.

(aa) Pr. Reg. 354. Barnes, 405, S. C.

(bb) 2 Barnard, K. B. 318, 327, 337, 398. Pr. Reg. 344. Barnes, 406.

(e) 1 Price, 245, but see 7 Moore, 359. 1 Bing. 65, S. C.

(d) Pr. Reg. 345. Cas. Pr. C. P. 34, S. C.

(e) Stat. 5 Geo. II. c. 27, 3, but see Cas. Pr. C. P. 96. Pr. Reg. 345. Barnes, 404, S. C. (f) Sutherland v. Tubbs, M. 55 Geo. III. K. B. 1 Chit. Rep. 320, (a).

(g) Barnes, 415, 424.

(h) 2 Bur. 812. 1 Durnf. & East, 192. Pr. Reg. 352. 2 Wils. 372. 1 H. Blac. 222. 3 Taunt. 404. 8 Taunt. 127. 1 Moore, 573, S. C. 1 Dowl. & Ryl. 172.

(i) 2 Chit. Rep. 357. 1 Dowl. & Ryl. 172, K. B. 7 Moore, 358. (k) Ante, 56.

1 Bing. 66, S. C. C. P.

(m) 2 Str. 1094.

(1) Doug. 384. 1 Durnf. & East, 187. 1 Esp. Rep. 42. (n) 4 Maule & Sel. 412. 1 Chit. Rep. 15, (c), 333, (a), but see Doug. 384. 1 Durnf. & East, 187. 6 Durnf. & East, 74. 8 Durnf. & East, 235, semb. contra.

(0) 7 Taunt. 233. Marsh. 550, and see 2 New Rep. C. P. 167. 1 Marsh. 9. 1 Moore, 299. 1 Chit. Rep. 15, (c).

(pp) 11 Price, 122.

(q) 1 Wils. 77. Doug. 384. 1 Durnf. & East, 187. 4 Maule & Sel. 412, and see 11 Price, 122. (r) 1 Chit. Rep. 14, and see id. 333. 3 Barn. & Cres. 158. 4 Dowl. & Ryl. 739, S. C.

[4] See 1 Troub. & Hal. Pract. 230, 3d Ed.

[B] See Heberton v. Stockton, 2 Miles, 164. Casher v. Wisnor, 2 Browne, 245. Boyd v. Serrill, 4 Penn. Law Jour. 114.

ginal process, (aa) unless demanded:(66) But if a defendant, at the time he is served with a copy of process, in the King's Bench, demand to see the original, and is refused, the service is irregular.(cc) And where the defendant was served with a copy of a capias, and, a quarter of an hour afterwards, demanded to see the original, which was refused by the officer, the court of Common Pleas set aside the service and subsequent proceedings.(dd) If the defendant refuse to accept a copy of process, it may be left in his house ;(ee) or, if he lock himself in, it may be put through the crevice of his door;(ff) or, in the Common Pleas, it seems that if he keep out of the way, to avoid being served, it may be sent him in a letter by the post :(g) But sending process by the post, in a letter which the defendant refuses to receive, is not good service; although the refusal may have been wilful, and accompanied with a long avoidance of service. (h) And where the defendant, on being served with a copy of process by the name of John, observed his name was Nicholas, upon which the person who served it was about to alter the name, when the defendant said, "never mind; I am the person, and will take care of it;" the court notwithstanding held, that the service was irregular, and set it aside, but without costs. (i) If a latitat has been served by mistake on a wrong person, the right person may afterwards be served with an alias capias issued thereon.(k)

In a joint action against two or more defendants, each of them must be served with a copy of the process. (1) But, in an action against husband and wife, it is deemed sufficient to serve the husband only.(m) Whenever the defendant would take advantage of a mistake in the copy of process, or notice to appear thereto, he must produce the copy served, and swear that he was served with no other. (n) And where there is no irregularity in the notice to appear to, or service of process, the rule, we have seen,(0) should be to set aside such service, and not the process itself.

If, upon the service, the defendant speak contemptuous words of the court, or its process, he is liable to an attachment. And where the words are spoken of the court, the attachment issues in the first instance ;( p) for it would be to no purpose to grant a rule to show cause, which would probably expose the court to further insult. (q) But the court will not grant an attachment, for violent or contemptuous behaviour, after service of the process. (r) It has been doubted, whether, when contemptuous words are

sworn to by one person only, the rule should be absolute, or only [*170] to show *cause; (a) the rule in Chancery requiring two affidavits, to deprive the party of the benefit of showing cause; and in the King's Bench, the rule is only to show cause, when the words are spoken of its process.(b)

(aa) 2 Str. 877. Barnes, 302, 422.

(cc) 2 Barn. & Cres. 761. 4 Dowl. & Ryl. 317, S. C.

(bb) Cas. temp. Hardw. 138. (dd) 5 Moore, 162.

(ee) Barnes, 278. Bates, qui tam, v. Maddison, M. 23 Geo. III. K. B., and see 7 Dowl. &

Ryl. 233.

(f) Cas. Pr. C. P. 103. Pr. Reg. 354. Barnes, 405, S. C., and see Barnes, 42.

(9) 5 Taunt. 186. 1 Marsh, 8, S. C.

(i) 1 Chit. Rep. 319.

(k) 2 Barn. & Cres. 95. 3 Dowl. & Ryl. 254, S. C.

(m) Barnes, 406, 412. Pr. Reg. 351, S. C.

(0) Ante, 161.

(h) 3 Bing. 443.

(a) 2 Str. 1068.

(p) 6 Mod. 43. 1 Salk. 84. 1 Str. 185. Say. Rep. 47, R. T. 17 Geo. III. K. B.

(7) 1 Salk. 84.

(r) 1 Brod. & Bing. 24. 4 Moore, 147.

(b) Say. Rep. 114. In the case of Adamson v. Gibson, H. 27 Geo. III. K. B., an attachment Ald. 642. 1 Chit. Rep. 384, S. C. Id. 615, (a).

*CHAPTER X.

Of the ARREST, upon BAILABLE process.

In treating of the law of arrest, it is proposed to consider, first, for what cause of action it is allowed; 2dly, the affidavit to hold to bail; 3dly, what persons may, or may not be arrested; and lastly, by whom; and under what authority, when, where, and in what manner the arrest may be made.

When the cause of action amounts to twenty pounds or upwards, and an affidavit thereof is made and filed according to the statutes, the process is bailable; and the defendant may in general be arrested, and holden to special bail. But where the plaintiff, having a debt due to him under an arrestable sum, procured a promissory note to be indorsed to him by another creditor, for the purpose of holding the defendant to special bail, the court, considering this as a practice to evade the statute, discharged the defendant out of custody, on filing common bail. (a) And, by the statute 7 & 8 Geo. IV. c. 71,(6) "no sheriff or other officer, within the principality of Wales, or the counties palatine of Chester, Lancaster or Durham, shall, upon any mesne process issuing out of his majesty's courts of record at Westminster, arrest or hold any person to special bail, unless such process shall be duly marked and indorsed for bail, in a sum not less than fifty pounds."

With respect to the cause of action, it is a rule, that where there is a certain debt to the amount of twenty pounds, or damages to that amount which may be reduced to a certainty, as in assumpsit or covenant for the payment of money, (c) the defendant may be arrested, as a matter of course, on an affidavit shortly stating the cause of action. And he might formerly have been arrested in like manner, in an action of trover(d) or detinue; for these were considered as being more properly actions of property, than of tort. But where the defendant, being a custom-house officer, was arrested in an action of trover, brought against him for seizing goods, and it appeared by affidavit that there was a reasonable foundation for the seizure, that the goods were deposited in the king's warehouse, and that the *defendant had used due diligence in pro- [*172] ceeding towards a condemnation in the Exchequer, the court ordered common bail to be accepted.(aa) And by a late rule,(bb) in all the courts, "no person can be held to special bail, in an action of trover

was moved for against the defendant's wife and daughter, for treating the process of the court with contempt, by throwing it into the street, &c., and the court said, that on a return by the sheriff, the rule for an attachment was absolute in the first instance; but on affidavits, the party must have an opportunity of answering. (a) 1 Ken. 371.

(b) 7, and see stat. 11, 12 W. III. c. 9, 2. 2 Str. 1102. (c) Barnes, 79, 80, 108. But one who became surety for the defendant, before his discharge under an insolvent debtor's act, and was afterwards obliged to give a new security by bond and warrant of attorney, &c., for the old debt, cannot hold the defendant to bail thereon by affidavit, as for so much money paid for his use. 3 East, 169.

(d) 6 Mod. 14. Barnes, 80. 2 Str. 1192. 1 Wils. 23, S. C. 1 Wils. 335. Say. Rep. 53, S. C., and see Cowp. 529. Append. Chap. X. 82, &c.

(aa) 2 Blac. Rep. 1018. 1 Wils. 335. Say. Rep. 53, S. C., semb. contra.

(bb) R. H. 48 Geo. III. K. B. C. P., and Excheq. 9 East, 325. 1 Taunt. 203. Man. Ex. Append. 225. 8 Price, 507. Append. Chap. X. 3 85.