ance, to proceed under this act; and every affidavit of service of such writ shall mention the day on which such indorsement was made."

Though these words are general, they must be restricted to cases of personal service. Probably if the defendant improperly obtained possession of the writ and prevented the indorsement being made, it might be dispensed with (Brook v. Edridge, 2 Dowl. 647; Burrows v. Gabriel, 4 D. & L. 107), otherwise he would be allowed to profit by his own wrong, which would also be a kind of contempt of the court. But if the plaintiff himself sent the writ to the defendant, although at his request, it could not be dispensed with. (Atkinson v. Howell, 7 M. & W. 213; Russell v. Lowe, 2 D. N. S. 233.) It may be made by another person, and attested by the mark of the person who served it, for it then becomes his indorsement. (Baker v. Coghlan, 7 C. B. 131.) The affidavit of service will be requisite in case of non-appearance, see sects. 27, 28.

The indorsement may be thus: -
"This writ was served by me, E. F., on C. D. personally, on
the day of 185. Dated this

185

day of

The insertion of the date of making this indorsement is not prescribed by the statute, but is useful in practice.

(2.) Writ with Special Indorsement.

The second class of cases to which the writ of summons is applicable is where a special indorsement is adopted. This form only applies where the defendant resides within the jurisdiction, and is given by section

dorsement of particulars

demands.

"25. In all cases where the defendant resides within Special inthe jurisdiction of the court, and the claim is for "a debt or liquidated demand in money-with or with- of debts or out interest arising upon a contract, express or im- liquidated plied; as, for instance, on a bill of exchange-promissory note or cheque-or other simple contract debtor on a bond or contract under seal for payment of a liquidated amount of money-or on a statute where the sum sought to be recovered is a fixed sum of money-or in the nature of a debt-or on a guarantee, whether under seal or not, where the claim against the principal is in respect of such debt or liquidated demand, bill, cheque or note

"the plaintiff shall be at liberty to make upon the writ of summons and copy thereof a special indorsement of the particulars of his claim, in the form contained in the Schedule (A.) to this act annexed, marked No. 4, or to the like effect; and

"when a writ of summons has been indorsed in the

special form herein before mentioned, the indorsement shall be considered as particulars of demand, and no further or other particulars of demand need be delivered, unless ordered by the court or a judge.”

The writ and the indorsements will be the same as that already given (see supra, 11), but in all cases in which this special indorsement is to be used, it is to be preceded by the indorsement of debt, under sect. 8 (see supra, 13). The following examples are given in the Schedule (A.), No. 4,

Special Indorsement.

[After the indorsement required by the 8th section of this act, this special indorsement may be inserted.]

The following are the particulars of plaintiff's claim :

1849, June 20. Half-year's rent to this day of

£ s. d.

To butcher's meat supplied between the 1st of January,

1849, aud the 1st of January, 1850

Paid

Balance

£52 20

£32

[If any account has been delivered, it may be referred to, with its date, or the plaintiff may give such a description of his claim as in a particular of demand, so as to prevent the necessity of an application for further particulars.]

of

Or,

£50 principal and interest due on a bond dated the conditioned for the payment of £100.

Or,

day

£90 principal and interest due on a covenant contained in a deed dated the

day of

to pay £100 and interest.

Or,

A penalty of £100, under the statute 55 Geo. III. c. 137.

Or,

£85 on a bill of exchange for £100, dated the 2nd February, 1849, accepted, or drawn or indorsed by the defendant.

Or,

£50 on a guarantee dated the 1st of January, 1850, whereby the defendant guaranteed the due payment by E. F. of goods supplied or to be supplied to him.

[To any of the above may be added, in cases where in

terest is payable, "the plaintiff also claims interest on £ of the above sum from the date of the writ until judgment.” N. B.-Take notice, that if a defendant served with this writ within the jurisdiction of the court do not appear according to the exigency thereof, the plaintiff will be at liberty to sign final judgment for any sum not exceeding the sum above claimed [with interest at the rate specified], and the sum of £ for costs, and issue execution at the expiration of eight days from the last day for appearance.

The nature of the claims to be enforced under this writ are well defined by the words "debt or liquidated demand in money," and the examples given. As the indorsement of debt under section 8 is required, the decisions under the Writ of Trial Act may be referred to, which uses the words, "debt or demand," and applies to all claims or demands ejusdem generis with debts, and the amount of which the plaintiff is bound to indorse upon the writ (see Walker v. Needham, 3 M. & G. 557; 1 Dowl. N. S. 220), in which case detinue was held to be within the Writ of Trial Act, because it was to recover a sum "at which the chattel is valued, comprised and limited to a certain amount, which may be indorsed on the writ."

Thus an action for discharging the plaintiff from service without notice (Jacquot v. Boura, 5 M. & W. 155); or for not continuing the plaintiff in the service of the defendant for three months, pursuant to an agreement (Lismore v. Beadle, 1 D. N. S. 366); or an action for not using premises in a tenantlike manner (Roffey v. Shoobridge, 9 D. P. C. 957); or for not using certain hay upon the farm, according to agreement (Lawrence v. Wilcock, 11 Ad. & E. 241); or for the non-repair of a chattel hired (Collis v. Groom, 1 D. N. S. 496), are not debts or demands. Actions on the warranty of a horse, which has been returned because unsound (Allen v. Pink, 4 M. & W. 140), and for the price of a horse sent to defendant under a representation that he had authority to bespeak it for another (Price v. Morgan, 2 M. & W. 53), have been held to be demands within the Writ of Trial Act, as being in substance for the price of the horse. The contract being proved, the damages would be fixed and ascertained. Perhaps it may be said that it is not a debt or liquidated demand where the data that form the basis of the calculation may be denied or disputed, and are rather the subject of opinion than absolute facts, and therefore the intervention of a jury would be requisite. (See Green v. Bicknell, 8 Ad. & E. 701.) This indorsement must be made on the concurrent writs. The same rules as to service and subsequent indorsement will apply as to the firstmentioned writ. (See supra, 15—21.)

Besides the proceedings in lieu of the distringas to compel appearance, provision is made for enforcing claims against

Distringas to compel appearance or

to proceed to

outlawry abolished.

persons abroad in lieu of the anomalous process of outlawry, which could practically only be instituted in cases where the result was sure to be erroneous. It is therefore abolished by section

24. "From the time when this act shall commence and take effect, so much of the said act of his late majesty King William the Fourth as relates to the writ of distringas, and the proceeding thereon, whether for the purpose of compelling appearance or for proceedings to outlawry, shall be repealed, except so far as may be necessary for the purpose of giving effect to proceedings already taken, or to be taken after the commencement of this act, under or by reason of any writ of distringas issued before the commencement of this act, or under any rule or order authorizing the issuing of such writ, and made before the commencemeat of this act."

This therefore repeals 2 Will. III. c. 39, ss. 3, 5, 7. It has been objected, that although "waiver," which is the legal description of outlawry against a woman, is specifically mentioned in the former statute, it is not mentioned here, and that therefore proceedings to waiver might still take place. But although upon writ of error it has been held a variance to describe a judgment of waiver as a judgment of outlawry (Burnett v. Phillips, 20 L. J. 337, Ex.), yet it is still outlawry. Thus in Co. Litt. 122 b," the outlawry of a woman is legally called waiviaria mulieris." It seems, however, that this section does not abolish outlawry upon final judgment, because a writ of distringas is not requisite for that purpose. Where the distringas for outlawry has actually issued, or has been authorized to be issued, before the 24th of October, the outlawry may be completed, but the efficacy of the process has been much diminished by the recent decision in Commerall v. Beauclerk, 21 L. J. 137, Q. B.; 16 Jur. 65, that upon a writ of error on the ground of the absence of the defendant beyond seas, the outlawry cannot be reversed unless the defendant appears in person, or puts in bail upon the reversal. Whether this decision would apply to outlawry upon final judgment has not been decided. It was pending in a recent case (Swan v. Emery), but the outlawry was reversed upon terms agreed on between the parties.

(3.) Writ against a British Subject resident out of the
Jurisdiction.

The third class of cases to which the writ of summons applies is where the defendant, being a British subject, resides out of the jurisdiction of the Court, and this is altogether new to our law. It will be seen, however, that it is by no means coextensive with the ordinary writ of summons; nor can a special indorsement under sect. 25 be adopted (supra, 21). The form and limitations of this writ are defined by section

tish subjects

diction of

18. "In case any defendant, being a British subject, As to actions is residing out of the jurisdiction of the said superior against Bricourts, in any place except in Scotland or Ireland, it residing out shall be lawful for the plaintiff to issue a writ of summons of the jurisin the form contained in the schedule (A.) to this act ansuperior nexed, marked No. 2, which writ shall bear the indorse- courts. ment contained in the said form, purporting that such writ is for service out of the jurisdiction of the said superior courts; and the time for appearance by the defendant to such writ shall be regulated by the distance from England of the place where the defendant is residing; and it shall be lawful for the court or judge, upon being satisfied by affidavit

"that there is a cause of action, which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction, and

"that the writ was personally served upon the defendant, or that reasonable efforts were made to effect personal service thereof upon the defendant, and that it came to his knowledge, and

"either that the defendant wilfully neglects to appear to such writ, or that he is living out of the jurisdiction of the said courts, in order to defeat and delay his creditors,

"to direct from time to time that the plaintiff shall be at liberty to proceed in the action in such manner and subject to such conditions as to such court or judge may seem fit, having regard to the time allowed for the defendant to appear being reasonable, and to the other circumstances of the case:

"Provided always, that the plaintiff shall and he is hereby required to prove the amount of the debt or damages claimed by him in such action, either before a jury upon a writ of inquiry, or before one of the masters of the said superior courts in the manner hereinafter provided, according to the nature of the case, as such court or judge may direct; and the making such proof shall be a condition precedent to his obtaining judgment."

No. 2.

Writ where the Defendant, being a British Subject, resides out of the Jurisdiction.

Victoria, by the Grace of God, &c.

To C. D., of

We command you,

that within [here insert a sufficient number of days within which the defendant might appear, with refer

W.