avoid being served,(6) with his reason for such belief: (c) and the affidavit must set forth the tenor of the summons, (d) and notice subscribed to the process, in hæc verba.(e) This clause of the statute, however, does not extend to the process by attachment on a justicies, in a county palatine ;(ƒ) nor to persons having privilege of parliament, the proceedings against whom will be considered in the following chapter. And the method of proceeding by summons or attachment and distringas, subject to the restrictions of the statute, may still be used against other persons, where they keep out of the way, so that they cannot be arrested, or served with process.

CHAPTER VI.

[ *116 ]

Of the PROCEEDINGS in ACTIONS against PEERS of the REALM, and MEMBERS of the HOUSE of COMMONS; and against CORPORATIONS, and HUNDREDORS.

AT common law, it seems that peers of the realm, and members of the house of commons, not being subject to a capias, could only have been sued by original writ. But now, by statute 12 & 13 W. III. c. 3, § 2,(a)" any person or persons having cause of action against any knight, citizen or burgess of the house of commons, or any other person entitled to privilege of parliament, may prosecute such knight, &c. in his majesty's court of King's Bench, Common Pleas, or Exchequer, by summons and distress infinite, or by original bill and summons, attachment, and distress infinite; which the said respective courts are empowered to issue against them, or any of them, until he or they shall enter a common appearance, or file common bail to the plaintiff's action, according to the course of each respective court."

And, for preventing inconveniences arising from merchants, and other persons within the description of the statutes relating to bankrupts, being entitled to privilege of parliament, and becoming insolvent, it is enacted, by the statute 6 Geo. IV. c. 16,(bb) that "if any trader, liable to become bankrupt, having privilege of parliament, shall commit any of the acts of bankruptcy therein mentioned, a commission of bankrupt may issue against him; and the commissioners, and all other persons acting under such commission, may proceed thereon, in like manner as against other bankrupts; but such person shall not be subject to be arrested or imprisoned, during the time of such privilege, except in cases thereby made felony. And if any creditor or creditors of any such trader, having privilege of parliament, to such amount as is thereinafter declared requisite to support a commission, shall file an affidavit or affidavits, in any court of record at Westminster, that such debt or debts is or are justly due to him or them respectively, and

(b) 4 Taunt. 156, and see 8 Taunt. 57, 171.

(e) 5 Taunt. 520. 1 Marsh. 267, S. C., and see id. 268, (a). 5 Taunt. 853. 8 Taunt. 57, 171. Id. 693. 3 Moore, 23, S. C.

(d) 4 Taunt. 619.

(e) 5 Taunt. 853.

(ƒ) Id. 69.

(a) For the history of this statute, and the alterations it underwent in the House of Lords, see 2 H. Blac. 273, 4, 300, &c.

(bb) 9, and see stat. 4 Geo. III. c. 33. 45 Geo. III. c. 124, § 1.

that such debtor, as he or they verily believe, is such trader as aforesaid, and shall sue out of the same court a summons, or an original bill and summons, against such trader, and serve him with a copy of such summons,

if such trader shall not, within one calendar month after personal [ *117 ] service of such summons, pay, secure, or compound for such debt or debts, to the satisfaction of such creditor or creditors, or enter into a bond with such sum, and with two sufficient sureties, as any of the judges of the court out of which such summons shall issue shall approve of, to pay such sum as shall be recovered in such action or actions, together with such costs as shall be given in the same, and within one calendar month next after personal service of such summons, cause an appearance or appearances to be entered to such action or actions, in the proper court or courts in which the same shall have been brought, every such trader shall be deemed to have committed an act of bankruptcy, from the time of the service of such summons: and any creditor or creditors of such trader, to such amount as aforesaid, may sue out a commission against him, and proceed thereon, in like manner as against other bankrupts."(a) This clause appears to have been taken from a similar one in the statute 4 Geo. III. c. 33; upon which it was holden, that a bond given under the latter statute, is analogous to a recognizance of bail in error: and therefore, where a member of parliament had given a bond, with two sureties conditioned for payment of the sum to be recovered in the action, and before trial became bankrupt, the court refused to order the bond to be delivered up to be cancelled.(b)

By a subsequent clause, in the statute 6 Geo. IV. c. 16,(c) it was enacted, that "if any decree or order shall have been pronounced in any cause depending in any court of equity, or any order made in any matter of bankruptcy, or lunacy, against any such trader having privilege of parliament, ordering such trader to pay any sum of money, and such trader shall disobey, the same having been duly served upon him, the person or persons entitled to receive such sum, under such decree or order, or interested in enforcing the payment thereof, pursuant to such decree or order, may apply to the court by which the same shall have been pronounced, to fix a peremptory day for the payment of such money, which shall accordingly be fixed by an order for that purpose; and if such trader, being personally served with such last mentioned order, eight days before the date therein appointed for payment of such money, shall neglect to pay the same, he shall be deemed to have committed an act of bankruptcy, from the time of the service thereof; and any such creditor or creditors as aforesaid may sue out a commission against him, and proceed thereon, in like manner as against other bankrupts."

Since the making of the statute 12 & 13 W. III. c. 3, § 2, members of the house of commons may be sued by bill and summons, &c., as well as by original writ.(d) And if a person having privilege of parliament be in the King's Bench prison, a declaration may be filed against him, as being in the custody of the marshal; and no summons need be issued.(e) [*118] There are also two cases, in which it has been determined, that (a) ? 10.

(b) 3 Barn. & Ald. 273. 1 Chit. Rep. 731, S. C., and see 5 Barn. & Ald. 250.

(c) 11, and see stat. 47 Geo. III. sess. 2, c. 40.

(d) 2 Ld. Raym. 1442. 2 Str. 734, S. C. But this mode of proceeding is not allowed, as against unprivileged persons. Whitworth v. Richardson, E. 23 Geo. III. K. B.

(e) 5 Durnf. & East, 361.

a peer of the realm may be sued in the King's Bench, by bill and summons, (a) &c. But in a subsequent case, (b) it was the opinion of the judges, on a question referred to them in the house of lords, that these cases were not to be considered as decisive authorities on the subject; though, after pleading in chief, it was too late for the defendant to object to the jurisdiction of the court. (c) It seems therefore that, notwithstanding the above statute, the only regular mode of proceeding against a peer, is by original writ. (d) And if a peer be sued jointly with others, by bill of Middlesex, the court will set aside the proceedings, as against the peer.(e) But the motion for this purpose must be made as soon as may be, and before interlocutory judgment.(f) And if an Irish peer be sued by bill, the court of Common Pleas will not set aside the proceedings on motion; but leave him to plead his privilege in abatement.(g) It was formerly doubted, whether a member of the house of commons was entitled to his privilege, when sued with a common person; (h) but it is now settled, that his privilege shall be allowed him.(2) And where an action is brought against a peer or member of the house of commons, jointly with other persons, the original writ or bill should be against all the defendants; upon which the peer or member should be summoned, and a capias issued against the others.

The original writ against a peer, or member of the house of commons, is the same as against other persons; (k) only that when it is issued against a peer, the sheriff is commanded to summon him by good summoners; and after describing the defendant by his proper title, these words are added, "having privilege of peerage," or, against a member of the house of commons, "having privilege of parliament." And it is said, that a peer or peeress cannot be attached, but should be brought in by summons :(1) Yet, where a declaration in case against an earl, stated him to have been summoned to answer, instead of attached, it was holden to be bad, on special demurrer.(m) In proceeding by original writ, (n) against a peer or member of the house of commons, the original should issue into that county where the defendant lives; and a summons is made out thereon by the plaintiff's attorney, and delivered to the sheriff, who serves it on the defendant personally, or by leaving it at his dwelling house, or last place of abode.(0) And where, upon process, by original writ, against a member of the house of commons, the summons omitted to describe him as having privilege of parliament, and the notice at the foot stated, that in default of his appearance, on the return day of the writ, the plaintiff would cause an appearance to be entered for him; the court held, that [ *119 ] the summons was sufficient. (aa) Before or on the quarto die post

of the return of the original, the defendant either appears or makes default; for he cannot cast an essoin. (bb) If he make default, the plaintiff may sue

(a) Say. Rep. 63, 4. Cowp. 844.

(b) 2 H. Blac. 267, 299, and see 3 Bos. & Pul. 7, 9, (b). 12, (a).

(e) See also Bro. Abr. tit. Bill, pl. 6, and Responder, pl. 30.

(d) 2 H. Blac. 267, 299. Lil. Ent. 21.

(f) Lady Napier's case, T. 21 Geo. III. K. B.

(9) 7 Taunt. 679. 1 Moore, 410, S. C.

(i) 4 Maule & Sel. 585.

(7) 1 Str. 225.

(e) 3 Maule & Sel. 88.

(h) 1 Taunt. 256.

(k) Append. Chap. V. 1, &c. (m) 2 Chit. Rep. 638, 9.

(n) For the form of a præcipe for an original writ in debt, or case, against a peer, or member of the house of commons, see Append. Chap. VI. § 1, 2, 3.

(0) 2 Cromp. 3 Ed. 138.

(aa) 5 Maule & Sel. 221.

(bb) Ante, 109.

out a testatum summons, (ce) or (which is more usual,) a distringas, (dd) and after that, (if necessary,) an alias or pluries distringas ;(e) upon which he may move to increase and sell the issues, as was formerly usual in other cases (f) Or, upon an affidavit of the personal service of the summons, he may proceed against members of the house of commons, by entering an appearance, in the manner pointed out by the statute 45 Geo. III. c. 124, § 3.(g) If the sheriff return upon the distringas, &c., that the defendant hath nothing by which he can be distrained, the plaintiff may have a testatum distringas into another county.(h) And after a summons and distringas had issued against a privileged defendant, in the county where the action was brought, but in which he did not reside, and of which process he had no notice, and returns were made of non est inventus and nulla bona, it was holden, that a testatum distringas might regularly issue into the county in which he resided and had property, without any new summons in such county.(?)

The distringas and other subsequent process upon the original, state the cause of action at large(k) and must be made returnable, in the King's Bench, on a general return-day, ubicunque, or wheresoever the king shall then be in England; or, in the Common Pleas, before the king's justices at Westminster. 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.(1)

If the defendant appear upon any of these writs, he should enter his appearance with the filacer; and when the purpose of the writ is thus answered, the issues, (if any have been levied,) are directed to be returned; or if sold, what shall remain of the money arising by such sale is to be repaid to the party distrained upon.(m) But the plaintiff in such case is entitled to his costs: And where he had obtained rules for selling the issues levied upon a distringas, alias, and pluries, and also a rule for an attachment against the sheriff, but the defendant appeared before any issues had been actually levied, the court ordered, that upon payment of the costs of issuing the writs, the rules should be discharged; being of opinion, that these costs were not to abide the event of the suit, but were to be paid to the plaintiff immediately and at all events, whether he should finally succeed in the suit or not.(n)

[ *120 ]

*The bill against a member of the house of commons, is a complaint in writing, describing the defendant as having privilege of parliament;(a) and concludes with a prayer by the plaintiff, or process to be made to him, according to the form of the statute, &c. This bill is filed, in the King's Bench, with the clerk of the declarations, in the King's Bench office: And if the bill be filed in vacation, for a cause of action

(cc) Append. Chap. VI. 20.

(dd) Trye, 9. Append. Chap. VI. 8 4.

(e) Append. Chap. VI. 2 5.

(f) Ante, 110, 11. Append. Chap. VI. 3 7, 8, 9.
(h) Trye, 10, 127. Append. Chap. VI. 8 6.
(k) Trye, 127. Append. Chap. VI. 2 4, &c.
(1) But see the statutes 16 Car. I. c. 6, 8 7.
(m) Stat. 10 Geo. III. c. 50, % 4.

(g) Post, 120, 21.
(i) 4 East, 162.

24 Geo. II. c. 48, 5. Ante, 107.
(n) 5 Bur. 2725.
Ante, 118.

(a) Say. Rep. 64, and see Append. Chap. VI. ¿ 12, 13, 14, 15.

arising after the term, there should be a special memorandum, stating the day of bringing the bill into the office of the clerk of the declarations. In the Common Pleas, the bill is filed with the filacer of the county where the venue is laid: In the Exchequer, it is filed with the master. And the first process thereon, in all the courts, is a writ of summons; (b) which is a judicial writ, issuing out of the King's Bench or filacer's office, or office of pleas in the Exchequer, on a proper præcipe, (c) and directed to the sheriff of the county where the venue is laid, commanding him to summon the defendant: Or, if the defendant reside in a different county, the plaintiff may sue out a writ of testatum summons into that county.(d) Upon one or other of these writs the defendant should be summoned, in like manner as upon an original; and if he do not appear, within four days after the return of it, is subject to the process of attachment and distringas, (e) &c. If he appear, his appearance should be entered, in the King's Bench, with the clerk of the common bails; in the Common Pleas, with the filacer of the county into which the summons issued; or, in the Exchequer, in the appearance book in the office of pleas.

The writ of summons, and other subsequent process upon the bill, differ from the process by original, in the following particulars: first, that they do not state the cause of action at large, but only require the defendant to answer the plaintiff generally, in a plea of trespass on the case, (according to the plea,) to his damage of, &c., as he can reasonably show that thereof he ought to answer;(f) secondly, that they are tested on the very return, and not on the quarto die post of the return of each other; thirdly, that they are made returnable on days certain, and not on general return days; and fourthly, that there need not be fifteen days between the teste and return of them.

The mode of proceeding by distringas, against members of the house of commons, being found extremely dilatory and expensive, it was enacted by the statute 45 Geo. III. c. 124, § 3, that "when any summons, or original bill and summons, shall be sued out against any person having privilege of parliament, and no such affidavit shall be made and filed as therein is mentioned, if the defendant or defendants shall not appear at the return of the summons, or within eight days after such return, the plaintiff or plaintiffs, upon affidavit being made and filed in the proper court, of the personal service of such summons, which affidavit shall be *filed gratis, may enter an appearance or appearances for the defend- [*121 ] ant or defendants, and proceed thereon, as if such defendant or defendants had entered his or their appearance."

The defendant having appeared, or the plaintiff appeared for him according to the above statute, the plaintiff proceeds to declare against him.(a) The time allowed for declaring against a peer of the realm, or member of the house of commons, is the same as in other cases. But in assigning the breach in assumpsit, against a peer of the realm, the plaintiff must not charge the defendant with contriving and fraudulently intending, craftily

(3) Imp. K. B. 10 Ed. 515, 16. 8 Mod. 228, and see Append. Chap. VI. § 17, 18, 19. (c) Append. Chap. VI. & 16, 21. (d) Id. 20, and see 4 East, 162. (e) Id. ? 22, &c. (f) 2 Cromp. 3 Ed. 138. Trye, 127. (a) For the form of a note of appearance for, and beginning of a declaration by original against a peer, or member of the house of commons, see Append. Chap. VI. & 10, 11, and for the beginning of a declaration by bill, against a member of the house of commons, after appearance, in C. P. see id. 27, and for the entry of a bill and process against a member, to save the statute, in K. B. see id. § 28.