When a defend- A Defendant who has made such deposit, and payment ant may receive into Court, may, on putting in and perfecting bail, and upon the deposit out of Court. payment of such costs as the Court may direct, receive the money out of Court, by an order for that purpose, at any time" before issue joined, in law or fact, or final or "interlocutory judgment signed" (r). The application for this purpose, must be made before issue joined, in cases where issue is joined at all; and the words "before final "or interlocutory judgment signed" apply only to cases of judgment by default or on confession (s).

The Court will not allow money paid into Court, under statute 7 and 8 Geo. IV., c. 71, to be transferred to the account of a payment into Court, on a plea of tender (t) : nor will the Defendant be allowed to plead payment into Court of a less sum, without paying in the money (u).

7 & 8 Geo. 4, c. 71, s. 3.

Hanwell v. Mure, 2 Dowl. P. C. 155; and see Ferrall v. Alexander & an. 1 Id. 132

(t) Stultz v. Heneage, 10 Bing. 561. 4 M. & Scott, 472, S. C.

(u) Ball v. Stafford, 4 Dowl. P. C. 327; but see Hubbard v. Wilkinson, 8 B. & C. 496.

BOOK 2. CHAP. II.

OF APPEARANCE; AND THE PROCESS OF DISTRINGAS FOR
COMPELLING IT.

66

It is provided by statute 4 and 5, W. IV., c. 62, s. 9, that "when any writ of Summons, Capias, or Detainer, "issued by authority of that Act, shall be served or exe"cuted, all necessary proceedings to judgment and execution may be had thereon, without delay, at the expiration of eight days from the service or execution thereof; provided always, that if the last of such eight days shall, in any case, "happen to fall on a Sunday, Christmas-day, Good Friday, "or any day appointed for a public fast or thanksgiving, in any of such cases, the following day shall be considered as "the last of such eight days." And it is also provided, by the 12th section, that "all such proceedings as are men"tioned in any writ, notice, or warning, to be issued as "aforesaid, under the Act, shall and may be had and taken "in default of a Defendant's appearance, or putting in "special bail, as the case may be.' The Plaintiff cannot, Appearance or however, proceed to judgment until the Defendant (if not bail, necessary in custody) is in Court either by an appearance being plaintiff to proentered, or special bail filed and it is proposed, in the ceed to judgpresent chapter, to consider the former of these modes of ment. bringing a Defendant into Court; and, as incidental thereto, the proceeding by distringas, to compel an appearance.

to enable the

SECT. 1.

The Defendant may appear immediately after the exe- Appearance, cution of serviceable process; and he must do so, within when to be ena certain time afterwards, or the Plaintiff may appear for tered. him, according to the statute (a).

(a) See post pa. 79.

To a summons.

Distringas or
Capias.

der 43 Geo. 3.

The writ of Summons commands the Defendant to appear thereto, "within eight days after service" thereof: " inclusive of the day of such service"-thus, if served on the 1st, he should appear, at the latest, on the 8th, unless that happen to be Christmas day, Good Friday, or a day appointed for a public fast or thanksgiving, in which case, he has the following day to appear in (b).

The notice subscribed to the writ of Distringas directs an appearance to be entered "within eight days inclusive after the return" of such writ (c); and the writ of Capias, when used against some of the Defendants as serviceable process, requires by its warning, the Defendant so served, to appear “within "eight days after such service" (d): this warning, however, does not state that the day of service is to be reckoned inclusively; but by a rule of this Court (e), it is ordered, that "in all cases in which any particular number of days, "not expressed to be clear days, is prescribed by the rules or practice of this Court, the same shall be reckoned ex"clusively of the first day, and inclusively of the last day, "unless the last day shall happen to fall on a Sunday, Christmas-day, Good Friday, or a day appointed for a public fast or thanksgiving, in which case, the time shall "be reckoned exclusively of that day also."

After a deposit Where a Defendant on being arrested, instead of giving of money with a bail-bond, deposits with the Sheriff, the sum indorsed the Sheriff un- on the writ, with £10. to answer the costs, pursuant to the c. 46. or statute 43, Geo. III., c. 46, s. 2, and special bail is not duly put in, the Plaintiff may, on a proper application (f), obtain the money out of Court, and (if he think After payment fit) enter a common appearance, and so proceed in the in Court, under action and where money is paid into Court in lieu of special bail, pursuant to statute 7 and 8, Geo. IV., c. 71, the Defendant must enter a common appearance within the time allowed for perfecting special bail (g), or in default thereof, the Plaintiff may appear for him.

7 & 8 Geo. 4, c. 71

:

(b) See ante pa. 77.

(c) See post pa. 82.

(d) See form of the writ of Capias ante pa. 66.

(e) Reg. Gen. (65), Mar. Ass 2 W. 4. extended to proceedings under 4 & 5 W. 4. c. 62, by Reg. Gen. (1) Mar. Ass. 5 W. 4.

(f) See ante pa. 73.

(9) See ante pa. 74.

As to the time for appearing to actions of ejectment, Appearance in and replevin; and to causes removed from inferior Courts, particular acsee the respective titles.

tions.

Το appear for an Infant, a rule to defend by guardian For Infants. must be obtained, which is granted by the Prothonotary, on producing the infant's petition, and guardian's consent, both of which must be drawn up, and verified by affidavit, as is required by the practice of the Common Pleas at Westminster: but " a special admission of prochein amy, or "guardian, to prosecute or defend for an infant, shall not "be deemed an authority to prosecute or defend in any "but the particular action or actions specified (h)." The rule for admitting the guardian to defend, is absolute in the first instance. It is not served on the opposite party, being merely entered in the Imparlance-book, kept by the Prothonotary.

If the Defendant do not appear within the periods be- And by Plainfore mentioned, the Plaintiff may appear for him, according tiffs, sec. stat. to the statute; after which, the Defendant's appearance is of no avail (i). The Defendant may, however, appear after the time limited, before an appearance by the Plaintiff is actually entered: but an appearance by either party should be entered within a year after service of the process (j).

The statute which authorises the Plaintiff to appear in this Court, is the 22nd, Geo. II., c. 46, s. 35, which is yet in force, so far as it requires an affidavit of personal service of the process to be filed with the Prothonotary, on the entry of such appearance, but with respect to the kind of process to which such appearance may be entered, and the time of entering it, an alteration has been made by statute 4 and 5, W. IV., c. 62; and though an appearance by the Plaintiff, may now be said to be entered according to both these statutes, yet, the old mode of expression "according to the statute," is still adhered to (k).

(h) Reg. Gen. (2) Mar. Ass. 2 W. 4.

(2) Davis v. Cooper, 2 Dowl. P. C. 135.

(j) Cook v. Allen, 1 Dowl. P. C. 676, see also Reg. Gen. (21) Mar. Ass. 2, W. 4, and see post, B. 5, ch. 7.

(k) See the memorandum of appearance as prescribed by the lastmentioned Act, post pa. 81.

Affidavit of serIvice of writ of Summons.

Mode of enter

The affidavit of service (i) of the writ of Summons, the form of which is given below (j), must show that the person who served the writ, did within three days after service, indorse thereon, the day of the week and month of such service, otherwise the Plaintiff will not be allowed to enter an appearance pursuant to the statute; and every affidavit upon which such an appearance shall be entered, must mention the day on which such indorsement was made (k). But where the Defendant improperly gets possession of the writ of Summons, the Court will allow an appearance to be entered without such indorsement, and order the Defendant to pay the costs (l).

An affidavit is not necessary to enable a Plaintiff to appear for a Defendant, who has neglected to do so, after a payment of money into Court in lieu of bail, under the 7 and 8, Geo. IV., c. 71, s. 2 (m): nor, it would seem, when the Defendant has neglected to file special bail, after depositing money on arrest in the Sheriff's hands, pursuant to 43, Geo. III., c. 46.

The mode of entering an appearance to a writ of Suming an appear- mons, or under the authority of statute 4 and 5, W. IV.,

ance.

..Defendant,

G. H. of clerk to E. F., Gentleman, Attorney for the above-named Plain-
tiff, maketh oath and saith, that he this deponent, did on the day of
instant, (or last) personally serve the above-named defendant with a true
copy of a writ of Summons, and of the memorandum subscribed thereto,
and indorsements made thereon, and which writ of Summons appeared to
this deponent to have been regularly issued out of, and under the seal of
this honourable Court, against the said defendant, at the suit of the said
plaintiff, on the day of
instant, (or last); And this deponent
further saith, that he did on the day of
instant, (or last),
indorse on the said writ the day of the week and month of such service.