return thereof, the Plaintiff may, without previous leave of the Court (q), enter an appearance for him, upon an affidavit of such execution (r): or, it seems, the Sheriff's return of levy would be sufficient to warrant the Plaintiff to enter an appearance, withont an affidavit of execution (s). Appearance tringas cannot 66 66 "If such writ of Distringas shall be returned non est inventus AND nulla bona, and the party issuing out such writ, shall not intend to proceed to outlawry, or waiver, according to the authority thereinafter given (t); and any Defendant against whom such writ of Distringas "issued shall not appear at, or within eight days inclusive after, the return thereof, and it shall be made appear 'by affidavit, to the satisfaction of this Court, or one of the Judges thereof, that due and proper means were taken "and used to serve and execute such writ of Distringas, "it shall be lawful for such Court, or Judge, to authorise "the party suing out such writ, to enter an appearance "for such Defendant, and to proceed thereon to judgment " and execution (u).' 66 The return of non est inventus and nulla bona is not alone sufficient to entitle the Plaintiff to an appearance (v) ; though it will suffice for the pupose of proceeding to outlawry (w). It is difficult to point out a given form of affidavit (x) to satisfy the Court, or Judge, that "due and proper means have been used to execute the writ, as the sufficiency of those means will depend upon the peculiar circumstances of each case. It must, however, clearly appear, by the affidavit, that the Defendant cannot be met with-that he has no goods on which the Distringas can be executed (y), and that every means to find him, or give him notice, have been tried, and what those means are (z). And the Court, Johnson v. Smealey, 1 Dowl. P. C. 526. See form of such affidavit, Tidd (1833), pa. 280; Wordsworth, 125. Chitty's forms, 345. (s) Page v. Hemp, 4 Dowl. P. C 203. (t) See post B. 5 c. 17; as to proceedings to outlawry. (u) 4 & 5 W. 4. c. 62, s. 3. (v) Daniels v. Varity, 3 Dowl. P. C. 26 (w) Jones v. Price, 2 Dowl. P. C. 42. (x) For form of affidavit under supposed circumstances, see Tidd, (1833) pa. 280. Wordsworth, pa. 126, & Chitty's Forms, 346-7. (y) Cornish v. King, 2 Dowl. P. C. 18. 3 Tyr. 575. S. C. (z) Scarborough v. Evans, 2 Dowl. P. C. 9. Id, 338. Balgay v. Gardner, Id. 52, Saunderson v. Bourn, it seems, will look at the steps previously taken by the Plaintiff, in order to entitle him to a Distringas (y). Where, however, three attempts to serve the Distringas had been made, which had been rendered ineffectual by the conduct of the Defendant, or his agents, the Court allowed an appearance to be entered (z). (y) See 1 Dowl. P. C. 555. (2) Tring v. Gooding, 2 Dowl. P. C. 162. i When to be filed. Qualification of Number of sureties. BOOK 2. CHAP. III. OF SPECIAL BAIL. Before the Stat. 4 & 5, W. IV., c. 62, Special Bail must have been filed within eight days next after the return of the writ, otherwise proceedings might have been taken against the Sheriff, or on the Bail-bond (a): but by this statute, the Defendant, in order to prevent such proceedings, should file special bail within eight days after the arrest, the day of arrest being reckoned inclusive (b). Thus, where the arrest is on the 1st, bail should be filed on the 8th, unless it happen to be Christmas-day, Good Friday, or a day appointed for a public fast or thanksgiving, in which case, the following day is allowed (c). Special bail may, however, be filed in any stage of the cause, even after verdict or final judgment, provided the Defendant be not charged in execution (d). The general qualification of special bail in this Court is, that they shall be Housekeepers or Freeholders, within the county; and persons who are incompetent as bail in the Courts at Westminster, are equally so, in this Court, except for the mere purpose of surrender. There must, in general, be two sureties at the least; and "notice of more bail than two, shall be deemed irregular, "unless by order of this Court, or one of the Judges "thereof (e); but which order will be granted, where the Defendant is poor, or the sum considerable (ƒ). (2) The time for filing Bail upon writs returnable on the monthly returns, was regulated by Stat. 22 Geo. 2, c. 46, s. 35; and on writs returnable at an Assizes, by Reg. Gen. (8), Mar. Ass. 2 W. 4. (b) See the form of the Capias, ante pa. 66. (c) See ante pa. 77. (d) Stanton's Bail, 2 Chitt. Rep. 73. Tidd's prac. [9th Ed.], 248. (e) Reg. Gen. [9] Mar. Ass. 2 W. 4. Easter v. Edwards, 1 Dowl. P. C. 39. The recognizance must, in all cases, be taken in double Amount of their recognizance. the sum sworn to by the affidavit of debt, except where the sum amounts to £1000. or upwards; and then, in £1000. beyond the sum sworn to (g). The nature of the recognizance is, that the bail jointly Nature of their and severally acknowledge to owe to the Plaintiff, the sum recognizance. in which they are bound, on condition that if the Defendant be condemned in the action, they shall pay the condemnation money, or render his body to prison. liability. The bail, however, are only liable to the sum sworn to Extent of the ir "by the affidavit of debt, and the costs of suit; not ex"ceeding in the whole, the amount of their recognizance " (h); and the words "amount of their recognizance," in this rule, have been held to mean, the amount of each of their recognizances, and not of the two separate recognizances added together (i). The form of recognizance is given below, as are also Form of recogforms of the affidavits of caption and justification (j). It (g) Reg. Gen. (12) Mar. Ass. 2 W. 4. (h) Reg. Gen. (13) Mar. Ass., 2 W. 4. (i) Vansandau & an. v. Nash, 2 Dowl. P. C. 767. 3 M. & Scott, 834, S. C. (j) Clarendon. J. K. Form of the Recognizance. August Assizes, 6th William 4th. C. D. late of in the said County, and G. H., of [to be signed here] G. H. At the suit of A. B, Taken and acknowledged a Commissioner. The Bail in £100 severally. [This is supposing the affi- [Form of Affidavit of Justification as prescribed by Rule (9) of Mar. Ass. 5 W. 4.] E. F., In the Common Pleas at Lancaster. Between A. B. C. D. and ..Plaintiff, ..Defendant. no blank * one of the Bail for the above-named defendant, maketh * The addition of the bail should be stated, though there for it in the form; see Treasure's bail, 2 Dowl. P. C 670, & see Reg. Gen. (3) Mar, Ass. 2 W. 4. nizance. is not necessary for the Defendant to be a party to the recognizance; but he is sometimes made a party, and oath and saith, † that he is a housekeeper, ‡ [or “freeholder,” as the case may be], residing at [[describing particularly the street or place, and number if any] that he is worth the sum of [the amount required by the practice of the Court], ¶ over and above all his just debts, [if bail in any other action add "and every other sum for which he is now bail"]; that he is not bail for any defendant except in this action, [or if bail in any other action or actions, add "except for C. D., at the suit of E. G., in the Court of in the sum of in the sum of for G. H., at the suit of J. K., in the Court of specifying the several actions with the Courts in which they are brought, and the sums in which the deponent is bail]; that the deponent's property to the amount of the said sum of [and ifbail in any other action or actions, "of all other sums for which he is now bail as aforesaid"], consists of [here specify the nature and value of the property in respect of which the bail proposes to justify as follows: ** "Stock-in-trade in his business "of carried on by him at of the value of of good "book debts owing to him, to the amount of of furniture in his "house at of a freehold or leasehold farm of occupied by or of a situate at occupied by "the value of of the value of situate at "dwelling-house of the value of resided at or of other property particularising each description of property, with the value thereof]; and that the deponent hath for †† the last six months [describing the place or places of such residence]. Sworn, &c., [Before me, a Commissioner for taking Special Bail in the said Court]. The affidavit may be joint, though the form is several. Anon. 1 Dowl. P. C. 115. "Householder" is not sufficient. Anon. 1 Dowl. P. C. 127, and if described as "housekeeper" when he is not so, though he turns out to be a freeholder, the affidavit is insufficient under the Rule. Wilson's Bail, 2 Dowl. P. C. 431. To state that the bail is a "housekeeper at" &c., and not that he resides there, is not sufficient to entitle the defendant to the costs of justification, Heald's bail, 3 Dowl. P. C. 423; and the actual, and not the mere constructive residence must be stated. Thomson v. Smith, 1 Dowl. P. C. 340. #Where the number was omitted, but the bail had been found and no other ground of opposition was made, they were allowed to justify on paying the costs of opposition. Muir v. Smith, 2 Tyr. 742. § "Possessed" instead of "worth" is insufficient; and the affidavit will not be allowed to be amended in this particular Naylor's bail, 3 Dowl. P. C. 452. See ante pa. 89. ** It must be stated where the property is. Cooper's bail, 3 Dowl. P. C. 692. †† "Within” the last six months is not sufficient. Johnson's bail, 1 Dowl. P. C. 438. Ward's bail, Id. 596. dences, one only need be mentioned. Fortescue's bail, 2 Id, 541. If the bail have had two resiAnon. 1 Dowl. P. C. 159, and |