1822.

HUGGETT V. PARKIN.

Thursday, Nov. 14th.

fendant obtain

on the ground

MR. Serjeant Vaughan, on a former day in this Term, Where the dehad obtained a rule nisi, that the capias ad respondendum which had been issued in this cause, might be quashed, and the subsequent proceedings thereon set aside, and that the plaintiff might pay the defendant the costs of this application; on the ground that the name of the plaintiff's attorney was not indorsed on the back of the copy of the writ which had been served on the defend

ant.

Mr. Serjeant Hullock now shewed cause, and submitted that although there might be an irregularity in the copy, still the writ itself could not be set aside, as it was not bad on the face of it; and the motion, therefore, should have been confined to the service alone. That the words of the statute 2 Geo. 2, c. 23, s. 22, which requires the name of the plaintiff's attorney to be indorsed on the writ and copy, are merely directory, and that the omis sion of such name on the copy served, has only the effect of avoiding the service. In Blackhall v. Gould (a), where an application was made to stay proceedings because the attorney's name was not indorsed on the copy of the process served on the defendant, as required by that statute, the Court refused the motion, because it did not concern the parties so as to make the process void; but said that the attorney who sued it out, might be censured for not pursuing the direction of the act. In Grojan v. Lee (b), it was moved to set aside a writ of capias for irregularity in the notice, because the year was not

ed a rule to quash a writ, that the name of the plaintiff's attorney was not indorsed on on him; Held,

the

copy served

that the terms of

such rule were
too extensive,
as the writ itself
was good; and
as it was neces-

sary for the
plaintiff to ap-
pear and oppose

the rule in sup

port of his writ,

dered the ser

the Court or

vice only to be set aside, on

payment of defendant.

costs by the

1822.

HUGGETT

V.

PARKIN.

written in words at length; and Lord Chief Justice Gibbs there observed, that "upon the reason of the thing, as well as upon authority, the service of the writ, not the writ itself, (for the writ was right, and the English notice only was wrong), was bad; and that the rule must be altered accordingly and as the rule was drawn up for setting aside the writ, it became necessary for the plaintiff to appear and defend his writ, which was not vicious; and therefore that the defendant was not entitled to his costs." That distinction is precisely in point; and here the writ itself is equally right and regular, as in Grojan v. Lee.

Mr. Serjeant Vaughan, in support of the rule, submitted, that the writ was vicious in itself, and must be considered as a nullity, as the terms of the statute 2 Geo. 2, c. 23, had not been complied with; that the indorsement of the name of the attorney was absolutely required by that statute, as it afforded the party, on whom a copy of a writ was served, an opportunity of saving any further expense, as he might immediately apply to the plaintiff's attorney and settle the action, so as to render further proceedings unnecessary; and it was impossible he could know the form of the writ, but by the copy served on him.

for

But the Court observed, that the writ itself was good, and that the service only was wrong; and that the mere neglecting to subscribe the name of the plaintiff's attorney on the copy of the writ, did not vitiate the writ itself; and as it was sought to be set aside, it was necessary the plaintiff to appear and oppose the motion in support of his writ. But that if it had been merely made to set aside the service, it would not have been necessary for him to do so. As, therefore, the defendant had required too

much, the Court made the rule absolute to set aside the service of the writ and subsequent proceedings thereon, on payment of costs by the defendant (a).

Rule absolute accordingly.

(a) See 1 Tidd's Practice, 7th edit. 181.

DE MONTELLANO (Duke) v. GARCIAS.

MR. Serjeant Lens, on a former day in this Term, obtained a rule nisi, that the proceedings in this cause might be staid, until the plaintiff should give security for costs, he being a foreigner, and residing out of the jurisdiction of the Court.

Mr. Serjeant Taddy now shewed cause, on an affidavit, which stated that the plaintiff was the late Ambassador from the court of Spain. That the action had been commenced in January, 1817; and that in Easter Term in that year, the defendant had obtained a Judge's order for time to plead, on the usual terms of pleading issuably, and taking short notice of trial. That the plaintiff sued in the character of executor; and that the cause had been delayed from his having been unable to obtain the probate of the will under which he was appointed, until January last, when notice of trial was given, and the plaintiff was entitled to sign judgment in the Easter Terin following. Under these circumstances, the learned Serjeant submitted, on the authority of Muller v. Gernon (a), and Steel v. Lacy (b), that the defendant could not compel the plaintiff to give the security required,

1822.

Duke de MONTELLANO

GARCIAS.

after he had himself undertaken to accept short notice of trial.

The Court being of opinion that these cases were precisely in point, ordered the rule to be

Discharged (a).

(a) See The Duke de Montellano v. Christin, 5 Maul. & Selw. 503, where the Court of King's Bench would not compel the plaintiff, a foreign Ambassador, to give such security.

Friday, Nov. 15th.

Where the

action against five defendants, sucd out bailable process against one alone, under which he was arrested and put in bail, and afterwards

CHRISTIE V. WALKER and four others (a).

MR. Serjeant Hullock moved that an exoneretur might plaintiff, having be entered on the bail-piece in this cause; on an affidavit, a joint cause of which stated that a bailable capias ad respondendum was issued against the defendant Walker alone, on which he was arrested at the suit of the plaintiff, and that bail above were duly put in and perfected; that a declaration was afterwards delivered as against him together with the four other defendants, against whom serviceable process only had been issued; and that the plaintiff was proceeding to judgment in a joint action against them all. It also appeared, that the affidavit to hold to bail was against the defendant Walker and the four others jointly, affidavit to hold and that he only was named in the bail-piece. Under declaration was these circumstances, the learned Serjeant contended, that

sued out serviceable pro

cess against the

other four, and

all the five de

fendants were named in the

to bail; and a

delivered, in

which they were all included; but the bail-piece was taken in the name of the defendant only, against whom bailable process had issued; the Court refused to enter an exoneretur on the bail-piece, as there was no variance between the process and declaration; on the grounds that the plaintiff might sue out bailable process against one defendant, and serviceable against others that four only could be included in one writ; that the bail-piece must agree with the writ under which the one defendant was arrested; and that the affidavit of debt corresponded with the declaration which had been delivered as against all.

(a) See S. C. ante, page 301.

as the plaintiff had declared and proceeded against the five defendants jointly, it was a different cause of action from that expressed in the writ under which the defendant Walker was arrested, as he was there named alone; and consequently, that the bail which had been put in for him, were altogether discharged. In De La Cour v. Read (a), where the affidavit of debt stated, that the defendant was indebted to the plaintiff as acceptor of three several bills of exchange, and the plaintiff declared against him in covenant; he was discharged on entering a common appearance, on the ground of a variance between the declaration, writ, and affidavit. In Kerr v. Sheriff (b) the defendant was discharged on entering a common appearance, as the writ was, that he should answer" in a certain plea of trespass on the case on promises," and the declaration was framed in debt. And in Spalding v. Mure (c), where the defendant was held to bail on an affidavit of a debt due from three defendants, as surviving partners, and the declaration being for a debt due from the three defendants alone; he was discharged on filing common bail. In Tetherington v. Golding (d), the bail were discharged, where the affidavit of debt was in assumpsit, and the declaration in trover; and in Wilks v. Adcock (e), where an affidavit to hold to bail. stated that the debt arose" on a bill of exchange," and the instrument declared on appearing not to be a bill, the Court ordered the bail-bond to be given up to be cancelled, on the defendant's filing common bail. So here, there was a variance between the writ and affidavit to hold to bail, and declaration; as by the former, the action was commenced against the defendant Walker alone, and the plaintiff afterwards proceeded as in a joint action against him, together with the four others.

1822.

CHRISTIE

v.

WALKER.