EXECUTION.

95, 144.

70. It shall not be necessary, before issuing execu- Ante, pp. 94, tion upon any judgment whatever, to enter the proceedings upon any roll.

The provisions of C. L. P. A. 1852, s. 206, apply only to judgments under the authority of that act; this rule extends to all judgments.

71. No writ of execution shall be issued till the judgment paper, postea, or inquisition, as the case may be, has been seen by the proper officer, nor shall any writ of execution be issued without a præcipe being filed with the proper officer.

72. Every writ of execution shall bear date on the day on which the same shall be issued, and shall be tested in the name of the Lord Chief Justice or of the Lord Chief Baron of the court from which the same shall issue, or in case of a vacancy of such office, then in the name of the senior puisne judge of the said court, and may be made returnable on a day certain in

term.

73. Every writ of execution shall be indorsed with the name and place of abode or office of business of the attorney actually suing out the same, and in case such attorney shall not be an attorney of the court in which the same is sued out, then also with the name and place of abode or office of business of the attorney of such court in whose name such writ shall be taken out; and when the attorney actually suing out any writ shall sue out the same as agent for an attorney in the country, the name and place of abode of such attorney in the country shall also be indorsed upon the said writ; and in case no attorney shall be employed to issue the writ, then it shall be indorsed with a memorandum expressing that the same has been sued out by the plaintiff or defendant in person, as the case may be, mentioning the city, town, or parish, and also the name of the hamlet, street, and number of the house of such plaintiff or defendant's residence, if any such there be.

74. Writs of capias ad satisfaciendum for the purposes of outlawry on final process, or to fix bail, must be made returnable on a day certain in term, and may be so returnable on any day in term, and it shall be suffi

Ante, p. 102.

cient for either purpose that there be eight days between the teste and return.

But see C. L. P. A. 1854, s. 90 (p. 246), ante.

See as to former practice, Kemp v. Hyslop (1 M. & W. 58).

75. A writ of capias ad satisfaciendum to fix bail shall have eight days between the teste and return, and must, in London or Middlesex, be entered four clear days in the public book at the sheriff's office.

76. Every writ of execution shall be indorsed with a direction to the sheriff, or other officer or person to whom the writ is directed, to levy the money really due and payable and sought to be recovered, under the judgment, stating the amount, and also to levy interest thereon, if sought to be recovered, at the rate of four pounds per centum per annum from the time when the judgment was entered up, or if it was entered up before the 1st of October, 1838, then from that day; provided that in cases where there is an agreement between the parties that more than four per cent. interest shall be secured by the judgment, then the indorsement may be accordingly to levy the amount of interest so agreed.

77. In cases of an assessment of further damages, pursuant to the statute of 8 & 9 Will. 3, it shall be stated in the body of the writ of execution that the sheriff, or other officer or person to whom the writ is directed, is to levy interest on the damages assessed and costs taxed in that behalf, at the rate of four pounds per centum per annum, from the day on which execution was awarded, unless execution was awarded before the 1st of October, 1838, and in that case from that day.

REVIVOR AND SCIRE FACIAS.

78. A plaintiff shall not be allowed a rule to quash his own writ of scire facias or revivor, after a defendant has appeared, except on payment of costs.

The rule to quash a sci. fa. is a rule nisi only (Ade v. Stubbs, 4 Dowl. 282).

AUDITA QUERELA.

79. No writ of audita querela shall be allowed unless by rule of court or order of a judge.

The application should be made upon affidavit (Dearie v. Ker, 4 Exch. 82).

Auditá querela is an action within 3 & 4 Will. 4, c. 42, s. 34, in which costs may be recovered, and in which, therefore, security for costs may be ordered (Holmes v. Pemberton, 7 W. R. 160, Q. B.)

ENTRY OF SATISFACTION ON ROLL.

80. In order to acknowledge satisfaction of a judg ment it shall be requisite only to produce a satisfaction piece, in form as hereinafter mentioned; and such satisfaction piece shall be signed by the party or parties acknowledging the same, or their personal representatives; and such signature or signatures shall be witnessed by a practising attorney of one of the courts of Westminster expressly named by him or them, and attending at his or their request, to inform him or them of the nature and effect of such satisfaction piece before the same is signed, and which attorney shall declare himself, in the attestation thereto, to be the attorney for the person or persons so signing the same, and state he is witness as such attorney (provided that a judge at chambers may make an order dispensing with such signature under special circumstances, if he thinks fit); and in cases where the satisfaction piece is signed by the personal representative of a deceased, his representative character shall be proved in such manner as the Master may direct.

In the

and

And

for

to wit.-Satisfaction is acknowledged between defendant, in an action do hereby expressly nominate and appoint at-law, to witness and attest

A.D. 185

execution of this acknowledgment

BAILABLE PROCEEDINGS, BAIL, AND BAIL IN ERROR.

81. The sheriff, or other officer or person to whom any writ of capias shall be directed, or who shall have the execution and return thereof, shall, within six days at least after the execution thereof, indorse on such writ the true day of the execution thereof.

82. Where the defendant is described, in the writ of capias or affidavit to hold to bail, by initials, or by a wrong name, or without a Christian name, the defendant shall not be discharged out of custody, or the bail-bond delivered up to be cancelled, on motion for that purpose, if it shall appear to the court that due diligence has been used to obtain knowledge of the proper name.

83. An action may be brought upon a bail-bond by the sheriff himself in any court.

The assignee must still bring his action in that court from which the process issued upon which the bond was taken.

84. In all cases where the bail-bond shall be directed to stand as a security, the plaintiff shall be at liberty to sign judgment upon it.

85. Proceedings on the bail-bond may be stayed on payment of costs in one action, unless sufficient reason be shown for proceeding in more.

Where several actions were proceeded in to verdict, it was held too late to apply to stay the proceedings on payment of the costs of one only (Johnson v. Macdonald, 2 Dowl. 44).

See as to conditional relief of bail "on payment of costs" Jallicks v. Costar (L. J. 28, Ex. 209).

86. When bail to the sheriff become bail to the action, the plaintiff may except to them, though he has taken an assignment of the bail-bond.

87. A plaintiff shall not be at liberty to proceed on the bail-bond pending a rule to bring in the body of the defendant.

Whittle v. Oldaker (7 B. & C. 478).

88. No rule shall be drawn up for setting aside an attachment, regularly obtained against a sheriff, for not bringing in the body, or for staying proceedings regularly commenced on the assignment of any bail-bond,

unless the application for such rule shall, if made on the part of the original defendant, be grounded on an affidavit of merits, or, if made on the part of the sheriff, or bail, or any officer of the sheriff, be grounded on an affidavit showing that such application is really and truly made on the part of the sheriff, or bail, or officer of the sheriff, as the case may be, at his or their own expense, and for his or their indemnity only, and without collusion with the original defendant.

89. Whenever a plaintiff shall rule the sheriff on a return of cepi corpus to bring in the body, the defendant shall be at liberty to put in and perfect bail at any time before the expiration of such rule; and a plaintiff, having so ruled the sheriff shall not proceed on any assignment of the bail-bond, until the time has expired to bring in the body as aforesaid.

90. In case a rule for returning a 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 rule may thereupon issue, requiring the sheriff or other officer, within the like number of days after the service of such rule as by the practice of the court is prescribed 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 rule, an attachment shall issue in the following term for disobedience of such rule, whether the bail shall or shall not have been put in and perfected in the meantime.

91. Notice of more bail than two shall be deemed irregular unless by order of the court or a judge.

92. The bail, of whom notice shall be given, shall not be changed without leave of the court or a judge.

93. No person or persons shall be permitted to justify himself or themselves as good and sufficient bail for any defendant or defendants if such person or persons shall have been indemnified for so doing by the attorney or attorneys concerned for any such defendant or defendants.

94. If any person put in as bail to the action, except