CHAP. IV, &c. To whom directed. In counties palatine. a rule, that "a non omittas clause may be introduced by the plaintiff, without the payment of any additional fee on that account." This writ should, in general, be directed to the sheriff of the county wherein the dwelling house or place of abode of the defendant is situate, or to the sheriff of any other county, or to any other officer to be named by the court, or a judge. And, if there are more sheriffs than one, the writs of distringas and capias should be directed accordingly; and if they are to a sheriff, or sheriffs, of a city or town and county of itself, they should be so described; or, if one of the sheriffs is a party, the writs should be directed to the other; or, if both the sheriffs are parties, to the coronerf; and, if he also be a party, to elisors named by the master in the King's Benchs, or prothonotaries in the Common Pleas 1. The authority and jurisdiction of the Chamberlain, and Vice chamberlain of the county palatine of Chester, being abolished by the statute 11 Geo. IV. & 1 W. IV. c. 70. § 13', the process of distringas and capias, &c. should be directed to the sheriff of that county. But there is a proviso in the statute 2 W. IV. c. 39k, that "nothing therein contained shall abridge, alter, or affect the fran"chises and jurisdictions of either of the counties palatine of Lancaster, or Durham, or of any officer or minister thereof." If the defendant, therefore, reside in the county palatine of Lancaster, the writ should be directed to the Chancellor, or his deputy1; or, if in Durham, to the Bishop, or his Chancellor: and the mandatory part In cinque ports. of the writ is framed accordingly". In the cinque ports, the process 66 ■ R. M. 3 W. IV. reg. 8. 2 Moore & S. 335. 9 Bing. 445. b Stat. 2 W. IV. c. 39. § 3. and see Sched. thereto, No. 3. Append. to Chap. IV, &c. §§ 22, &c. and see Wright v. Warren, 3 Moore & S. 164. per Alderson, J. Ante, 65. 71. Stat. 2 W. IV. c. 39. § 3. d Append. to Chap. IV, &c. § 22, 3. e Letsom v. Bickley, 5 Maule & S. 144. f Weston v. Coulson, 1 Blac. Rep. 506. -v. Phillips, E. 42 Geo. III. K. B. Append. to Chap. IV, &c. § 24. Grant v. Bagge, 3 East, 141. Append. to Chap. IV, &c. § 25. Tweed. is directed to the Constable of Dover castle, his deputy or lieutenant; In Berwick upon and in Berwick upon Tweed, to the mayor and bailiffs of Berwick. In the Isle of Ely, the process out of the courts at Westminster goes In Isle of Ely, in the first instance to the sheriff of Cambridgeshire, who there- &c. upon issues his mandate to the bailiff of the franchise: And, in like manner, where the defendant resides in the borough of Southwark, the process is directed to the sheriff of the county of Surrey, who issues his mandate thereupon to the bailiff of the borough, and not to the bailiff in the first instanced. When any district or place, being parcel of one county, is wholly situate within and surrounded by another, the writ of distringas, or capias, may be directed to the sheriff of either county, to serve or execute the same within such districte. When parcel of one county is surrounded by another. Teste of dis tringas. The writ of distringas must be tested in the name of the chief justice of the King's Bench or Common Pleas, or chief baron of the Exchequer; or, in case of a vacancy of such office, then in the name of a senior puisne judge of the court from which it issues: And When return"every such writ shall be made returnable on some day in term, not "being less than fifteen days after the teste thereof, and shall bear 66 66 able. 'teste on the day of the issuing thereof, whether in term or in vaca"tion."g But 66 no such writ shall be sufficient for the purpose of For proceeding to outlawry. 'outlawry, or waiver, if the same be returned within less than "fifteen days after the delivery thereof to the sheriff, or other "officer to whom the same shall be directed."h subscribed to. A notice is required to be subscribed to the writ of distringasi, Notice to be which is addressed to the defendant, requiring him to take notice, that the sheriff has distrained upon his goods and chattels for the sum of forty shillings, in consequence of his not having appeared in court, to answer to the plaintiff, according to the exigency of the writ of summons; and that in default of his appearance to the Stat. 2 W. IV. c. 39. § 3. And for h Stat. 2 W. IV. c. 39. § 5. i Sched. to Stat. 2 W. IV. c. 39. No. 1. Append. to Chap. IV, &c. § 29. &c. Indorsements CHAP. IV, writ of distringas, within eight days inclusive after the return thereof, the plaintiff will cause an appearance to be entered for him, and proceed thereon to judgment and execution; or (if the defendant be subject to outlawry,) will cause proceedings to be taken to outlaw him. And the writ of distringas is to be indorsed with the name of the plaintiff, or his attorney, in like manner as the writ of summons; and the amount of the debt and costs claimed by the plaintiff, when the action is brought for the recovery of a debt, should, it seems, be indorsed thereon. on. Issuing, signing, and sealing. notice to be delivered therewith to sheriff, &c. A The writ of distringas is issued on a proper præcipe, and signed, and sealed, in like manner as the writ of summons. Copy of writ and true copy of every such writ, and notice, is required to be delivered therewith to the sheriff, or other officer, to whom such writ shall be directed; and he will grant a warrant thereon, for the execution of it; but, in a county palatine, a mandate must be previously obtained from the chancellor of the Duchy of Lancaster, or his deputy, or from the Bishop of Durham or his chancellor, commanding the sheriff, &c., to execute the writ. Warrant to distrain, &c. Sheriffs to name deputies, resident in London, for receiving writs and granting warrants, &c. By the statute 23 Hen. VI. c. 9. sheriffs are required to make yearly a deputy, in the king's courts of his Chancery, the King's Bench, Common Pleas, and Exchequer, of record, before they shall return any writs, to receive all manner of writs and warrants to be delivered to them; which statute was enforced by subsequent rules of court in the King's Bench, and Common Pleas1: and accordingly, by the late act for the further amendment of the law, &c., it is enacted, that" from and after the 1st day of June 1833', "the sheriff of each county in England and Wales shall severally name a sufficient deputy, who shall be resident, or have an office, "within one mile from the Inner Temple Hall, for the receipt of "writs, granting warrants thereon, making returns thereto, and 66 66 accepting of all rules and orders, to be made on or touching the "execution of any process or writ, to be directed to such sheriff." CHAP. IV, &c. The sheriff having received the writ, and granted a warrant Duty of sheriff, thereon, it is his duty, before the return thereof, to distrain upon tringas. in executing disthe goods of the defendant, if he has any, for the sum of 40s., in order to compel his appearance; and also to serve the writ and notice, or a copy thereof, on the defendant, if he can be met with; or if not, to leave it for him, at the place where such distringas shall be executed a. execution of. On the execution of the writ of distringas, the defendant should, Proceedings on within eight days inclusive after the return thereof, cause an appearance to be entered for him, in the court out of which the writ issued; or, in default thereof, the plaintiff may, by the terms of the notice subscribed to the writ, cause an appearance to be entered for him, and proceed thereon to judgment and execution, (in like manner as when the writ of summons has been personally served on the defendant,) or (if the defendant be subject to outlawry,) may cause proceedings to be taken to outlaw him. And where a sheriff has distrained on a defendant's goods, and the defendant does not appear, according to the exigency of the writ, the plaintiff, on an affidavit of the due execution thereof, may enter an appearance for him, without leave of the court e. But "if Proceedings on "such writ of distringas shall be returned non est inventus and “nulla bona1, and the party suing out such writ shall not intend nulla bona. "to proceed to outlawry or waiver, according to the authority "thereinafter given, and any defendant, against whom such writ of 66 distringas issued, shall not appear at or within eight days inclu"sive after the return thereof, and it shall be made appear by af"fidavit, to the satisfaction of the court out of which such writ “of distringas issued, or, in vacation, of any judge of either of "the said courts, that due and proper means were taken and used 2 Stat. 2 W. IV. c. 39. § 3. and see Tidd Prac. 9 Ed. 114. as to the mode of serving the writ of distringas, on stat. 7 & 8 Geo. IV. c. 71. § 5. b Sched. to stat. 2 W. IV. c. 39. No. 3. Append. to Chap. IV, &c. § 29. C Ante, 76. 8 Append. Chap. XII. § 2. e Johnson v. Smealey, 1 Dowl. Rep. 526.555. f Append. to Chap. IV, &c. § 34. Append. to Chap. XII. § 3.; and for the rule of court thereon, for entering appearance, in term time, id. § 4. and judge's order in vacation, id. § 5. Appearance may be entered by plaintiff, without leave of court. return of non CHAP. IV, &c. Affidavit for authorizing plaintiff to enter ap fendant. "to serve and execute such writ of distringas, it shall be lawful "for such court, or judge, to authorize the party suing out such "writ, to enter an appearance for such defendant, and to proceed "thereon to judgment and execution."a In order to obtain a rule of court, or order of a judge, for the plaintiff to be at liberty to enter an appearance for the defendant, pearance for de- an affidavit must be made, shewing that proper means were taken and used to serve and execute the writ of distringas; and that, from the facts stated therein, there is reason to believe that the defendant keeps out of the way, to avoid being served with process: And it seems that the court, or a judge, may look at the previous steps taken by the plaintiff, in order to entitle himself to a distringas. On a motion for leave to enter an appearance for the defendant, under the above clause, after return by the sheriff to the distringas, of nulla bona and non est inventus, it appeared by the affidavit, that the person endeavouring to serve the distringas had called several times at the residence of the defendant, who was a lodger, and had left a copy of the writ each time; and that he was told, the defendant was not within, and that there was nothing belonging to the defendant there, as his lodgings were let to him ready furnished; Bayley, B. was of opinion, that the affidavit ought to go on to state that the defendants had no effects elsewhere; and when that deficiency was supplied, the plaintiff would be at liberty to enter an appearance for the defendant d. But where the affidavit stated that three attempts had been made to execute the distringas, at the defendant's then present or late place of abode; Lord Lyndhurst, C. B. ruled that it was insufficient, in not stating that endeavours had been made to serve the defendant, at his then present place of abode; and that it ought to have stated the grounds for believing that he could not be found. Rule or order thereon. If the court, or a judge, be satisfied with the affidavit, they will make a rule, or order, authorizing the plaintiff to enter an ap a Stat. 2 W. IV. c. 39. § 3. And for the time and mode of appearance by the plaintiff, on stat. 7 & 8 Geo. IV. c. 71. $5. see Tidd Prac. 9 Ed. 113, 14. 243. Post, Chap. XII. Append. to Chap. IV, &c. § 36. e 1 Dowl. Rep. 555. d Cornish v. King, 6 Leg. Obs. 110. per Bayley, B. e Scarborough v. Evans, 6 Leg. Obs. 362. Excheq. f Append. to Chap. XII. § 4. |