Name of defendant.

Residence of defendant.

Name of plaintiff.

Addition and

respectively by whom like process hath been heretofore issued from such court, or by such other officer as the court shall direct.

The use of the term personal action had the effect of excluding from the operation of this and other sections, actions of right of dower, dower and quare impedit, which are real actions, and had, until recently, to be commenced by original writ issued out of Chancery, and to be carried on in the Court of Common Pleas. Now, by "The Common Law Procedure Act, 1860," ss. 26 and 27 (which see post), no writ of right of dower or writ of dower, and no quare impedit, is henceforth to be issued; but such rights as were hitherto enforceable thereunder are now to be proceeded for by a specially indorsed writ of summons, issued out of the Court of Common Pleas, and subject to the general provisions of this act and of the C. L. P. A. 1854.

As to replevin, see s. 41 (post, p. 47); and C. L. P. A. 1860, ss. 22, n., et seq., post.

The statute prescribes the making of certain indorsements on the writ. These are noticed under ss. 6, 8, and 25 (post, pp. 4, 6 and 31).

The writ of summons must be in the above form, though the omission to insert in, or indorse on it, any of the matters required to be so inserted or indorsed will not make the writ void, but only subject the plaintiff to have it set aside as irregular, or amended at his cost (s. 20, post, p. 28). Under the former practice a writ commanding the defendant to enter an appearance "in our Court of at Westminster" was set aside although it was tested in the name of the Chief Baron (Stephenson v. Thorne, 2 D. & L. 230).

It issues in the name of the sovereign, whose style and title ought to be strictly followed (Hall v. Redington, 5 M. & W. 605), and is directed to the defendant, whose christian and surname ought to be correctly stated, though he may be addressed by the name which he bears by reputation (Williams v. Bryant, 5 M. & W. 447). The 3 & 4 Will. 4, c. 42, s. 12, enables parties sued on bills, notes and written instruments to be described in the writ and subsequent proceedings by the initials or contractions used by them in such instruments. A peer or titled person ought to be described by his proper title (Wells v. Lord Suffield, 5 D. & L. 177). Misnomers may be rectified by an amendment under a judge's order, at the cost of the plaintiff (Rust v. Kennedy, 7 Dowl. 199). A corporation should be sued by its corporate name.

The place and county of the "residence or supposed residence" of the defendant must be stated. Formerly a correct statement of the residence was of consequence; for a writ could only be served in the county named in it, or within 200 yards of its boundary. This gave rise to numerous applications to set aside the service of writs, the only effect of which was to create delay and expense. The writ may now be served in any county (s. 14, post, p. 10); but the omission of the statement of the "place and county" is an irregularity (Ross v. Gandell, 7 C. B. 766); amendable, however, under s. 20.

The name of the plaintiff is also to be stated; but a writ cannot be set aside for a mere misnomer of the plaintiff (Walker v. Parkins, 2 D. & L. 298).

The addition of neither party is required, nor is it necessary to character of state whether the parties sue or are sued in a representative party.

capacity, as executor, administrator or assignee. It is better not to do so ( —, administrator, v. ———, 1 Dowl. 97, n.) It may be desirable sometimes, however, to show to the defendant, by the writ, either that the plaintiff sues or that he is himself sued en autre droit; for instance, to prevent an executor paying another creditor (Rees v. Morgan, 5 B. & Ad. 1035).

The writ is issued by the court, but it is prepared by the plain. tiff or his attorney, who also prepares a præcipe for it.

The indorsements being made on the writ according to the ss. 6, 8 and 25, it must be sealed at the office of the court from which it is issued, and the pracipe left there. Concurrent writs may be issued (s. 9, post, p. 7).

Any alteration in the writ without being resealed before ser- Alteration in vice would render it void (Siggers v. Sansom, 2 Dowl. 745).

Where a writ was issued by mistake against a defendant in a wrong name, it was held that it might, before service, be corrected and resealed without altering the teste (Gibson v. Vorley, 7 E. & B. 49).

writs.

The court has no power to alter the date of a writ of summons wrongly dated by mistake, even to prevent the operation of the Statute of Limitations, unless it be to make the writ accord with the præcipe; and appearance to a writ so altered under the order of a judge at chambers has been held no waiver, upon the ground that the writ so amended was void, and not merely irregular (Clarke v. Smith, 2 H. & N. 753; Kirk v. Dolby, 6 M. & W. 636). The memorandum requires the writ to be served within six Memorancalendar months. If not so served, it must be renewed in the dum. mode pointed out by s. 11 (post, p. 8). A defendant may appear to a writ after the six months have expired (Richardson v. Daley, 7 Dowl. 25), and accept service after that period (Coates v. Sandy, 9 Dowl. 381); or apply to set it aside (Hemp v. Warren, 2 Dowl. N. S. 758). If the writ did not contain the memorandum formerly required, it could be set aside as irregular (Day v. Holly, 2 Dowl. N. S. 974). Omissions and irregularities may now be amended under s. 20 (post, p. 28).

This section does not apply if the defendant is resident in Scotland or Ireland (Flower v. Allan, 2 H. & C. 688; L. J 33, Ex. 83; Thompson v. North British Railway Company, 42 Law Times, p. 95, Ex., M. T. 1866, on which case, see note at p. 15, post), and vide s. 18, and note (post, p. 16 et seq.).

cause of

3. It shall not be necessary to mention any form or No form or cause of action in any writ of summons, or in any action to be notice of writ of summons, issued under the authority mentioned in of this act.

writ.

names of all

4. Every writ of summons shall contain the names Writ to state of all the defendants, and shall not contain the name defendants, or names of any defendant or defendants in more and for only actions than one.

If persons are joined as defendants who are not liable as such, the misjoinder may be rectified, under s. 37 ( post, p. 43), at any time before, and even at the trial; but it is different if too few defendants are sued, for s. 38 ( post, p. 44) only enables the plaintiff to amend the writ and subsequent proceedings after a plea in abatement for non-joinder; and the courts have decided that they

one action.

Writ to be dated of day of issuing. and tested in

name of chief or senior

judge.

Writ to be indorsed with name

and abode of

attorney, or a memo

randum that

writ has been sued by plaintiff in person.

Address of attorney.

cannot amend a writ by adding the name of a defendant (Good child v. Leadham, 1 Exch. 707); but under s. 20 (post, p. 28), it may be amended by the plaintiff, without any order of the court, if the defendants who have been sued give notice of objection or plead in abatement (ss. 35, 36, post, pp. 41-43).

The latter portion of this section does not apply to writs of summons issued under "The Summary Procedure on Bills of Exchange Act, 1855" (post).

5. Every writ of summons 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 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 a* senior puisne judge of the said court.

If dated on a different day from that on which it was issued, the writ may be set aside as irregular; but it may be amended in this respect so as to correspond in date with the præcipe (Kirk v. Dolby, 6 M. & W. 636). If it bears no date at all, it is, if not a nullity, at least irregular (Ball v. Hamlet, 3 Dowl. 188; Wells v. Dawson, 2 Dowl. N. S. 468). But if dated on a Sunday it is a nullity (Hanson v. Shackleton, 4 Dowl. 48). The date may be stated in words at length, or in figures (Eyre v. Walsh, 6 Taunt. 333).

Hill, J., at chambers, refused to set aside a writ whereon the christian name of the Chief Justice was mis-stated (Folkard v. Fitzstubbs, 1 F. & F. 376).

6. Every writ of summons shall be indorsed with the name and place of abode 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 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 in person, mentioning the city, town or parish, and also the name of the hamlet, street and number of the house of such plaintiff's residence, if any such there be.

A defendant is entitled to full information as to the person to whom he may address himself for a settlement of the action against him. The information, when the writ is issued out by an attorney, is not required to be so particular as when it is sued out by a plaintiff in person, as an attorney may be more easily found "Gray's-Inn, London," has been held sufficient designa

out.

* Qy. "the."

tion of an attorney; "Southampton-buildings," insufficient. Where the writ is sued out by a firm of attorneys, the name of the firm ought to be indorsed (Engleheart v. Eyre, 2 Dowl. 145; Hartley v. Rodenhurst, 4 Dowl. 748).

Where the writ is sued out by the plaintiff in person, the Address of directions of the above section ought to be most strictly fol- plaintiff. lowed. "No. 1, Clifford's-Inn-passage, Fleet-street, in the city of London," has been held a sufficient address (Arden v. Jones, 4 Dowl. 120), the words city, town, parish, being used disjunctively; but "W. L., 32, Great J. Street, Bedford-row, agent for the plaintiff in person, who resides at Barmouth," has been considered an insufficient statement (Lloyd v. Jones, 1 M. & W. 549). The amending of this statement is within s. 20 (post, p. 28).

In a case where an attorney sued in person, it was held that he was properly described under this section as of the place where he carried on his business (Ablett v. Basham, 5 E. & B. 1019). See also decisions on meaning of words "residence," "place of abode," and "dwelling," collected in Attenborough v. Thompson (2 H. & N. 559); and in Kerr v. Haynes (L. J. 29, Q. B. 70).

See, as to place of dwelling of a corporation (Corbett v. General Steam Navigation Company, 4 H. & N. 452; L. J. 28, Ex. 214; Brown v. L. & N. W. Railway Company, 4 B. & S. 326; L. J. 32, Q. B. 318; Keynsham Blue Lias Lime Company v. Baker, 2 H. & C. 729; L. J. 33, Ex. 41; Aberystwith Promenade Pier Company v. Cooper, L. J. 35, Q. B. 44).

See, as to entry of address by plaintiff or defendant suing or defending in person, R. G., H. T. 1853, r. 166, post.

de

Attorney on

demand to

whether writ authority, and to de

issued by his

clare name

his client, if

ordered.

7. Every attorney whose name shall be indorsed on any writ issued by authority of this act shall, on de- declare mand in writing, made by or on behalf of any fendant, declare forthwith whether such writ has been issued by him or with his authority or privity; and if he shall answer in the affirmative, then he shall and abode of also, in case the court or a judge shall so order and direct, declare in writing, within a time to be allowed by such court or judge, the profession, occupation or quality, and place of abode of the plaintiff, on pain of being guilty of a contempt of the court from which such writ shall appear to have been issued; and if If writ issued such attorney shall declare that the writ was not thority of issued by him, or with his authority or privity, all attorney proceedings upon the same shall be stayed, and no to be stayed. further proceedings shall be taken thereupon without leave of the court or a judge.*

This demand ought to be made in an early stage of the proceedings.

A judge will not in general refuse to order the information to be given although it be sought for a collateral purpose (Cox v. Bockett, 18 C. B., N. S. 239; L. J. 34, C. P. 125).

An attorney suing for a corporation must be retained under its common seal (Arnold v. Poole, 2 Dowl. N. S. 574); otherwise he cannot recover his bill of costs.

without au

proceedings

Indorsement of debt and

costs on writ

writ for a

debt, with notice that proceedings

If the plaintiff's attorney answer in the affirmative, and the defendant desire to know the plaintiff's abode, profession, &c., he should take out a summons at judge's chambers for such particulars.

The information ought to be sufficient, and not illusory. "Peele's Coffee House, Fleet Street," has been held not a sufficient statement of a plaintiff's residence (Hodgson v. Gamble, 3 Dowl. 174). If the information is insufficient, and its sufficiency must depend on the circumstances of each case, a summons should be taken out for better particulars. It will be for the court or a judge to decide whether the particulars furnished are sufficient, or whether the defendant should apply for an attachment for contempt (Smith v. Bond, 11 M. & W. 326). Where an attorney refused to comply with a judge's order, the court allowed the defendant to non pros. the plaintiff in the action, and ordered the attorney to pay the costs (Gynn v. Kirby, 1 Str. 402). Where an order omitted to specify the time within which the declaration was to be made; but provided for a stay of proceedings after the lapse of a certain number of days from the making of the order until the declaration should be made, it was held a bad order under this section; but it was suggested that if it had been made a rule of court it might have been proceeded upon under the general jurisdiction of the court (Malpas v. Mudd, 3 H. & N. 246; sed quære).

If the attorney declares the writ not to have been issued by him, or with his authority or privity, all proceedings upon the same may be stayed. The defendant, upon making an affidavit of the facts, can obtain an order to stay proceedings.

8. Upon the writ and copy of any writ served for the payment of any debt the amount of the debt shall and copy of be stated, and the amount of what the plaintiff's attorney claims for the costs of such writ, copy and service, and attendance to receive debt and costs, and it shall be further stated that upon payment thereof within four days to the plaintiff or his attorney, further proceedings will be stayed; which indorsement shall be written or printed in the following form or to the like effect:

will be stayed on payment

within four days.

"The plaintiff claims £ for debt, and £

for costs, and if the amount thereof be paid to the plaintiff or to his attorney within four days from the service hereof further proceedings will be stayed."

But the defendant shall be at liberty, notwithstanding such payment, to have the costs taxed, and if more than one-sixth shall be disallowed, the plaintiff's attorney shall pay the costs of taxation.

The object in requiring this indorsement is, that the defendant may stay the proceedings by paying the amount claimed within four days. It does not limit the plaintiff except for that purpose (Jacquot v. Bourra, 5 M. & W. 156).

Payment after the four days, to the attorney's clerk who kept