CHAP. XIII. Of PROCEEDINGS against the SHERIFF, to compel him to RETURN the WRIT, and bring in the BODY. whom to be returned. mons, &c. by THE writ of summons, we have seen, must be returned by the Writ of sumplaintiff or his attorney; but the writ of distringas and capias are to be returned by the sheriff, or other officer to whom they are directed; and the writ of detainer, by the marshal of the King's Bench, or warden of the Fleet prison. 66 The writ of distringas should regularly be returned by the sheriff, on the day on which it is made returnable; and the writ of capias, immediately after the execution thereof; or, if the same shall remain unexecuted, then at the expiration of four calendar months from the date thereof, or sooner, if the sheriff, &c. shall be thereto required by order of the court, or a judge. But there is a proviso in the statute 2 W. IV. c. 39. 4 that "no writ of "capias or distringas shall be sufficient, for the purpose of out'lawry 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:" and " no first writ shall "be available, to prevent the operation of the statute of limitations, "unless such writ, and every writ, if any, issued in continuation of a preceding writ, shall be returned non est inventus, and entered "of record, within one calendar month next after the expiration thereof, including the day of such expiration; such return to be "made, in bailable process, by the sheriff or other officer to whom "the writ shall be directed, or his successor in office; and, in pro 66 66 66 a Ante, 51. 77. Sched, to stat. 2 W. IV. c. 39. No. 3. Append. to Chap. IV, &c. § 20. Ante, 81. 83. 4. Append. to Chap. VII, &c. § 2. § 5. Ante, 99. eStat. 2 W. IV. c. 39. § 10. Ante, 51. Writ of distringas, &c. when to be re turned. CHAP. XIII. "cess not bailable, by the plaintiff or his attorney suing out the Mode of pro ceeding against sheriff, &c. By rule of court in term time, or judge's order in vacation. Rule to return writ, what. How obtained. May be had on last day of term. When it expires. Time allowed for return, when rule expires in vacation. If a defendant, having given bail to the sheriff, on an arrest, shall omit to put in special bail, as required by the writ of capias, the plaintiff may proceed against the sheriff, to compel him to return the writ, and bring in the body of the defendant; or he may take an assignment of the bail bond, and proceed thereon against the defendant, and his bail to the sheriff. The mode of proceeding against the sheriff, to compel him to return the writ and bring in the body, is by rule of court in term time; or by judge's order in vacation, on the statute 2 W. IV. c. 39. § 15. The rule to return the writ is a side bar or treasury ruled; which may be obtained, in term time, from the clerk of the rules in the King's Bench, or from the filazer in the Common Pleas and Exchequera: and, by a late rule of all the courts, it may be obtained on the last, as well as on any other days in term. This rule expires in four days after service, in London or Middlesex; and in six days, in any other city or county. The writ should regularly be returned by the sheriff, on the day on which the rule for returning it expires, if in term; but when the rule expired in vacation, the sheriff, in the King's Bench, need not formerly have returned it till the first day of the ensuing term, and had the whole of that day to file his return. In the Common Pleas, the sheriff, in such case, must have filed his return in vacation, and could not have waited till the ensuing term; the Common Pleas a Stat. 2 W. IV. c. 39. § 10. Ante, 51.77. b For the mode of proceeding against the sheriff, to compel him to return the writ, and bring in the body, see Tidd Prac. 9 Ed. 306, &c., and 2d Supplement thereto, 33, 4; and as to the mode of setting aside the proceedings for irregularity, or upon terms, see id. 316, &c. Sched. to stat. 2 W. IV. c. 39. No. 4. Append. to Chap. VII, &c. § 5. For the form of an assignment of the bail-bond, see Append. to Chap. XIII. §1; and for proceedings thereon against bail to the sheriff, see Tidd Prac. 9 Ed. 297, &c.; and as to the mode of setting aside the same for irregularity, id. 300; or staying them, when regular, upon terms, id. 302. and 2d Supplement thereto, 32, 3. d Tidd Prac. 9 Ed. 484. And for the form of the rule to return the writ, see Append. to Chap. XIII. § 2. eR. H. 2 W. IV. reg. 1. § 96. 8 Bing. 303.; and see 2d Supplement to Tidd Prac. 9 Ed. 53. f Tidd Prac. 9 Ed. 307. Rex v. Sheriff of Berks, 5 East, 386. 1 Smith R. 427. S. C. 66 66 Filing Writ. for return of writs, by court in term time, or by judge in va cation. office being supposed to be always open: and this was also the CHAP. XIII. practice in the Exchequer b: But, by a late rule of all the courts, "when the rule to return the writ expires in vacation, the sheriff shall file the writ at the expiration of the rule, or as soon after as the office shall open:" and, by another rule", "the officer with whom it is filed, shall indorse the day and hour when it was filed.” At length, as proceedings may now be had, except at certain times, Rules and orders in term or vacation, it was enacted by the statute 2 W. IV. c. 39. that "it shall be lawful, in term time, for the court out of which any writ issued by authority of that act, or any writ of capias ad "satisfaciendum, fieri facias, or elegit, shall have issued, to make rules, and also for any judge of either of the said courts, in vaca"tion, to make orders, for the return of any such writ; and every "such order shall be of the same force and effect, as a rule of "court made for the like purpose: Provided always, that no at"tachment shall issue for disobedience thereof, until the same "shall have been made a rule of court." And, by a general rule of all the courts f, "in case a judge shall have made an order in vacation, for the return of any writ issued by authority of the said act, or any writ of capias ad satisfaciendum, fieri facias, or elegit, on any day in vacation, and such order shall have been duly served, but obedience shall not have been paid thereto, and the same shall have been made a rule of court in the term then next following, it shall not be necessary to serve such rule of court, or make any fresh demand of performance thereon; but an attachment shall issue forthwith, for disobedience of such order, whether the thing required by such order shall or shall not have been done in the mean time." An affidavit of facts must be made, on the Affidavit for obtaining judge's above rule, and submitted to the judge, for the purpose of order. obtaining an order to return the writ in vacation ; which order must be duly served on the undersheriffh. And where a judge's Proceedings order to return the writ is made in vacation, if the sheriff do not make the return by the time limited, an attachment may be 1 a Rex v. Sheriff of Middlesex, in Thompson v. Powell, 5 Taunt. 647. Marsh. 270. S. C. Smith v. Blyth, 9 Price, 255. R. H. 2 W. IV. reg. 1. § 11. 8 Bing. 289, 90. Id. § 12. 8 Bing. 290. e § 15. and see Tidd Prac. 9 Ed. 306, &c. f R. M. 3 W. IV. reg. 13. 2 Moore & S. 336. 9 Bing. 446, 7. Append. to Chap. XIII. § 3. h Chapm. K. B. 2 Addend. 70. and see Chit. Archb. Pr. 133. Attachment for disobedience of judge's order, when made in vacation. thereon. CHAP. XIII. obtained against him, on the first day of the next term, on the usual affidavit of service of the rule a, or order, and that the writ was not filed by the time therein limited; but the order must first be made a rule of court, though such rule need not be served; and the return of the writ, after the time limited by the order, will not clear the sheriff's contempt, or prevent the attachment from issuing c. Returns to writ of distringas. To writ of capias. Rule, or order, to bring in body. Judge's order in vacation. The returns commonly made by the sheriff to the writ of distringas, are either that he has distrained upon the goods and chattels of the defendant, for the sum of 40s. in order to compel his appearance in court, to answer the plaintiff, &c., and that he did, at the time of executing the writ, personally serve the defendant with a true copy thereof, and the notice subscribed thereto, and indorsements thereon; or that the defendant is not found in his bailiwick, and hath no goods or chattels therein, by which he can be distrained; and, upon the capias, the common returns are either cepi corpus, or non est inventus ; or, on a writ of capias against several defendants, the sheriff may return cepi corpus as to one defendant, and non est inventush, or service of the copy of a writ1, as to another. Upon the sheriff's return of cepi corpus, to a writ of capias, if bail above be not duly put in, or, if put in and excepted to, they do not justify in due time, the plaintiff may proceed against the sheriff, by rule of court in term time, or by judge's order in vacation, to bring in the bodyk: And, by a late rule of all the courts', "in case a rule of court, or judges' order, for returning a bailable writ of capias, shall expire in vacation, and the sheriff or other officer, having the return of such writ, shall return cepi corpus thereon, a judge's orderm may thereupon issue, requiring the sheriff, or other officer, within the like number of days after the service of such order, as by the practice of the courts is prescribed CHAP. XIII. with respect to rules to bring in the body issued in term, to bring the defendant into court, by forthwith putting in and perfecting bail above to the action: and if the sheriff, or other officer, shall not duly obey such order, and the same shall have been made a rule of court in the term next following, it shall not be necessary to serve such rule of court, or to make any fresh demand thereon; a Affidavit for obtaining judge's order, &c. but an attachment shall issue forthwith, for disobedience of such Attachment for disobedience of. order, whether the bail shall or shall not have been put in and perfected in the meantime. An affidavit of facts is necessary, on the latter rule, for obtaining a judge's order to bring in the body in vacation; and the proceedings thereon are similar to those which have been already stated, on a judge's order to return the writ in vacation. But if special bail be put in and perfected, within the time allowed by the rules, or orders, to return the writ and bring in the body, the plaintiff declares, and the cause proceeds in the ordinary way. For the form of an affidavit, in support of the rule for an attachment for not bringing in the body, see Append. to Chap. XIII. § 21; and for the rule for Further proceedings. |