2. Six calls to serve a writ on a defendant, and the only answer obtained was, that he was out of town: -Held, not sufficient to get a distringas. Waddington v. Palmer, 7

3. Where the defendant cannot be served personally with the summons or distringas, the Court will not allow an appearance to be entered, unless the affidavit is strictly accurate, and it is shewn that no reasonable means have been left untried to serve the defendant. Scarborough v. Evans, 9

4. To obtain a distringas, the copy must be left at the last time of calling. Hill v. Moule,

10

8. To induce the Court to allow an appearance to be entered for a defendant, the affidavit must shew what means have been taken to execute the distringas. Balgay v. Gardner,

52

9. Where three attempts have been made to serve a distringas, which have been rendered ineffectual by the conduct of the defendant or his agents, the Court will allow an appearance to be entered for him. Tring v. Gooding, 162

10. If, upon calling to serve a writ of summons, the answer given is, that the defendant is out of town, it must be shewn to the Court, that, from inquiries made, there is reason to believe that the answer is false. Smith v. Hill,

225

11. The Court will not grant leave to enter an appearance for the defendant, unless they are satisfied by affidavit that every means to find him or give him notice have been tried. Saunderson v. Bourn,

338

TRUSTEE, 1-VACANT POSSESSION, 1-WRIT OF RIGHT, 1.

1. Where, in a declaration in ejectment, the lessors of the plaintiff are described to be executors, the affidavit of service need not, in stating the name of the cause, notice the character of the lessors stated in the declaration. Doe d. Jenks v. Roe, 55

2. Service of declaration in ejectment is not sufficient on the wife, unless it is stated to have been on the premises, or that she was living with her husband. Doe d. Williams v. Roe, 89

3. Service in ejectment. Doe v.

Roe, 184 4. If a declaration in ejectment is intitled of a term which has not yet arrived, the error is not material. Doe v. Roe, 186

5. If the term in which a declaration in ejectment requires an appearance to be made is suffered to elapse, judgment against the casual ejector may be obtained in the following term on the same service. Roe,

6. Service in ejectment.

Roe,

Doe v.

196

Doe v. 198

S. The capias against the nominal plaintiff in an ejectment need not now be issued previously to moving. for an attachment against the lessor of the plaintiff, for non-payment of costs to the defendant after verdict. Doe d. Fry v. Fry, 265

9. Where the notice at the foot of a declaration in ejectment was to appear in Michaelmas Term, and the motion for judgment was not made till Hilary Term, the Court refused to grant a rule, unless the defendant had an opportunity of shewing cause. Right d. Jeffery v. Wrong,

348

ERROR.

See COSTS, 15.

1. If a defendant brings a writ of error and puts in sham bail, the plaintiff may treat them as a nullity, and issue execution. Sutcliffe v. Eldred,

184

2. If a plaintiff in error does not deliver his paper books in due time, and the defendant in error delivers them all, the latter is entitled to judg ment. Best v. Prior,

189

3. An infant plaintiff suing by prochein amy was nonsuited, and then sued out a writ of error, but allowed the return-day to pass without taking any steps towards the prosecution of it. The defendant then issued execution against him for the costs of the nonsuit:-Held, that the execution was regular, though the writ of error was nonprossed; and that it was the plaintiff's duty to have prosecuted it, and not have allowed it to expire. Quære, whether an infant plaintiff, being nonsuited, is liable to be taken in execution for the costs of the nonsuit? Dow v. Clark, 302

4. Where a defendant gives a cognovit, and expressly agrees not to bring a writ of error, but notwithstanding does do so, the allowance of such writ of error is no supersedeas, and will not prevent the plaintiff from charging him in execution.

Semble, that there is a distinction between a release of errors and an agreement not to bring a writ of error. Best v. Gompertz, 395

5, A notice of the allowance of a writ of error in an action of slander, stating the grounds of error to be, that the declaration and every count thereof is bad, the words not being actionable without special damage, and the innuendoes bad in law, sufficiently complies with 9 Reg. Gen. H. T. 4 Will. 4. Robinson v. Day,

501

See CONCURRENT WRITS, 1-MARSHAL, 1-SHERIFF, 3-TESTE OF WRIT, 1.

1. An action having been commenced against a surety on a promissory note, he agreed, that, if the plaintiff would take proceedings against the principal, he (the surety) would the extra costs occasioned pay thereby; the plaintiff having done so, afterwards issued execution against the surety for the balance due on the note, and also the extra costs: the Court ordered the execution to be reduced to the extent of the costs included in it. Evans v Pugh,

360

2. Where a defendant gives a warrant of attorney to secure the payment of a sum of money by instalments, and default is made, he may be charged in execution for each of those defaults as they are made. Davis v. Gompertz,

407

3. Where a plaintiff, from mistake, has taken out a fi. fa. for less than the sum for which he has obtained judgment, the Court will, on conditions, allow him to take out a fi. fa. for the residue. Hunt

V. Passmore,

414

4. If a defendant, liable in trover for taking goods, pays rent due from the plaintiff on the premises whence they are taken, the execution may be limited to the excess of the verdict in trover beyond the rent paid. Plevin v. Henshall, 743

5. The plaintiff obtained a verdict at the Spring Assizes; the defendant

died on the 18th April; costs were taxed on the 21st, final judgment signed on the 22nd, and a fi. fa. issued on the same day, tested on the first day of the term. The Court refused to set aside the fi. fa. for the irregularity. Watson v. Maskell, 810

EXECUTORS.

See ADMINISTRATORS, 1- AMENDMENT, 2, 7-Costs, 2, 9-EJECTMENT, 1-RELEASE, 1.

1. If an executor pleads a plea of plene administravit, as well as the general issue, the plaintiff may take judgment on the plea of plene administravit, and go to trial on the general issue; and where a defendant, having so pleaded, applied for judg ment as in case of a nonsuit for not

proceeding to trial-The Court allowed the rule to be discharged on a peremptory undertaking as to the general issue, with liberty for the plaintiff to take judgment of assets. quando acciderint on the plea of plene administravit. Lucas v. Jenner, 64

2. Where judgment is obtained against an executor, in an action on the bond of his testator, execution cannot be issued in the first instance against the goods of the executor, although he has been guilty of a devastavit, and has no goods of the testator in his hands; but an action must first be brought suggesting a devastavit. Ward v. Thomas,

87

3. If judgment as in case of a nonsuit is obtained in an action by an executor, he will be liable to the costs occasioned by his wilful negligence, and not to the costs of the cause. 208 Woolley v. Sloper,

4. An executor plaintiff is not liable to costs on a judgment as in case of a nonsuit. Pickup v. Wharton, 388

EXTENT.

1. A plaintiff having recovered da