Page ERRATA. 119, marginal note, lines 19, 20 and 21, for "Accountant General of the Exchequer" read 119, marginal note, line 40, for "Accountant General" read " Attorney General." 120, line 1, for "Accountant General of the Exchequer" read " Attorney General.” 629, reference (b), for " Ib. p. 290" read "4 Bing. N. C. 290." 716, line 8, for "complete" read “complex.” 740, line 22, for "real" read "read." 740, line 35, for "contended" read "competent." 772, line 10 from the bottom, after the word "is" insert "pleaded to." 904, line 4 from bottom of marginal note, for "arrest," read “imprisonment.” REPORTS OF CASES DETERMINED ON POINTS OF PRACTICE. COURT OF QUEEN'S BENCH. Trinity Term. IN THE FIFTH YEAR OF THE REIGN OF VICTORIA. Doe dem. DOLBY V. HITCHCOCK. 1842. claration in V. LEE moved for judgment against the casual ejector. An affidavit of The facts of the case were, that the premises had been service of a deoriginally let to a person named Green, who demised them ejectment must state positively to a person named Hitchcock. Both Green and Hitch- and not infercock had become bankrupts. A person, named Henry service to have entially, the Harmer, who, it was believed, was a messenger under the been effected second commission, was on the premises. He, however, in possession. refused to state who he was, or in what character he was there. He had been served, and the affidavit of service stated, that the deponent had served the tenant in possession, by serving one Henry Harmer who was on the premises. WIGHTMAN, J.-That is not sufficient. In order to VOL. II.-N. S. B D. P. C. on the tenant 1842. Doe dem. entitle you to sign judgment against the casual ejector, it must be sworn that a service has been effected "on the tenant in possession." Either there is a tenant in posHITCHCOCK. Session or there is not. If there is, a service on him must be sworn to. If there is not, then you must proceed as on a vacant possession. v. That is not done here. Rule refused. On an application to set aside a ca. sa., proceedings to outlawry, on the ground that the writ had been made returnable imme the provisions of the 3 & 4 making it re SANDFORD v. WYATT. JERVIS shewed cause against a rule nisi, obtained by Sir John Bayley, for setting aside a writ of capias ad satisand subsequent faciendum, and subsequent proceedings to outlawry, on the ground that the former had been made returnable immediately after its execution, in conformity with the provisions of the 3 & 4 Wm. 4, c. 67, s. 2, instead of being made rediately, in con- turnable on a day certain, allowing fifteen days between formity with the teste of the writ and its return. The constant practice Wm. 4, c. 67, had been since the passing of the above statute, to make s. 2, instead of writs of ca. sa., issued for the purpose of outlawry returnable immediately, and the words of the statute, which were general, supported such a practice. The case of Kemp v. Hyslop (a), in which a recommendation was given by the Court, that when a ca. sa. was issued with the intention of fixing bail, it should be in the old form, and returnable in Term, was no authority against the practice and this construction. That recommendation could only be considered as a mere obiter dictum, under any circumstances; but it could not apply to the present case, which was a case of outlawry, and not one of bail. Proceedings to outlawry were different from those adopted for the purpose of fixing bail. In the latter case, the writ had to lie in the office a turnable on a day certain with fifteen days between the teste and the return, the Court refused to decide the objection on motion, but left the party to bring his writ of error. (a) Ante, vol. 4, p. 687, O. S. certain number of days, for the purpose of fixing the bail, but, in the present case, that was not necessary. Another objection was, that an unnecessary direction to the sheriff, to inform the Court of Exchequer what had been done on the writ, after it had been returned into the Queen's Bench, was introduced on the face of the writ of ca. sa. This was, however, mere surplusage. On both grounds, the present rule ought to be discharged. Sir John Bayley supported the rule, and contended, that the direction to inform the Court of Exchequer what had been done on the writ, was, in fact, making, a Queen's Bench writ returnable in another Court. The writ, consequently was a nullity. Then, with respect to the time of making the writ of ca. sa. returnable, it was clear that the 3 & 4 Wm. 4, c. 67, s. 2, did not apply to such a writ as the present, but merely to ordinary writs of execution, on which it was not intended to take the ulterior proceedings of outlawry. The case of Kemp v. Hyslop, was a direct authority in favour of this construction. 1842. SANDFORD v. WYATT. Cur. adv. vult. WIGHTMAN, J.-This was an application to set aside a ca. sa., and subsequent proceedings to outlawry, on the ground that the former was returnable immediately after the execution, but that it ought to have been returnable on a day certain, with fifteen days between the teste and the return. The case of Kemp v. Hyslop (a), was relied upon in support of the objection. That case was decided very much, if not entirely, upon the incompatibility of the rules in favour of bail, with a process returnable at any time for an indefinite period; and, in practice, I am informed, that it is very common to make writs of ca. sa., issued with a view to outlawry, returnable immediately (a) Ante, vol. 4, p. 687, O. S.; 1 M. & W. 58, S. C. |