The result of the above table is, that a plaintiff cannot get to trial if the defendant be not served four weeks before the assizes, mo!

If the plaintiff be driven so close as not to have a day to spare, his attorney must take care to instruct his agent that he means to go to trial; he must be careful also that his agent has instructions in time to file the declaration on the eighth day, and that the defendant is on the same day served with the notice of declaration, and that the agent is made aware of it immediately, that he may know he is right in entering the rule to plead, which he must do four clear days before the defendant's time for pleading expires. > It is, however, exceedingly injudicious to delay the bringing an action till the latest moment, for, where that is the case, the defendant has it often in his power to throw the cause over the assizes, by taking out a summons for particulars of some kind, or by claiming øyer of a deed, or by purposely pleading some special plea, to which he knows the plaintiff's agent can have no information how to reply; besides this, where a judge sees that a plaintiff might have brought his action much earlier, and that the defendant may have some difficulty in his pleadings or preparations, he will often grant the defendant time to plead, without putting him under terms to take short notice of trial, and that for the purpose of throwing the cause over the assizes; for he will probably think it not quite reasonable that a plaintiff should take perhaps months to consider his case, and by bringing his action so late, only give the defendant eight days to consider his case and prepare his pleadings.

CHAPTER VIII.

DEFENDANT'S PROCEEDINGS FROM SERVICE OR ARREST TILL DECLARATION-PROCEEDINGS BY BAIL.

Taxing Costs indorsed on Writ-Summons to stay Proceedings-its Effect-Instructing Defendant's Agent to Appear -Defendant's Course on being arrested-Paying Debt and Costs-Giving Bail-bond-Making Deposit-Going to Pri son-How to put in Bail-Deposit in court in lieu of Bail -Setting aside Proceedings on Bail-bond-Render to Prison by Defendant-By the Bail-To County Prison-To the King's Bench or Fleet-Judge's Order to render.

IF the defendant, on being served with a writ, (in cases where the amount of debt and costs is required to be indorsed on the writ,) have paid the debt and costs to the plaintiff or his attorney within four days from the service, and he apply to an attorney to get the plaintiff's costs taxed, the defendant's attorney, in instructing his agent, must mention the title of the cause, the Court out of which the writ was issued, the amount of debt and costs paid, the day on which the service took place, the day on which the debt and costs were paid, and the names of the plaintiff's attorney and of his London agent: no affidavit need be sent unless the plaintiff's agent should, when opposing the application before the judge, deny the facts, and in that case the defendant's agent will write for the affidavit.

The four days within which the debt and costs should be paid are exclusive of the day of the service; therefore, if the service be on a Monday, the defendant will be entitled to the benefit of the rule of Court on this subject, if he pay the debt and costs to the plaintiff or his attorney on the following Friday.

Where the sum indorsed on a writ is not grossly

overcharged, a respectable practitioner usually applies to the plaintiff's attorney to refund the overcharge, before putting him to the expense of the application; and only makes the application in case of being met by a refusal, or of disagreeing as to the amount of the costs.

If the four days have been allowed to expire without the amount indorsed on the writ having been paid or tendered to the plaintiff or his attorney, they are no longer bound to receive it if tendered; and if they will not, the defendant is driven to take out a summons to stay proceedings on payment of debt and costs. This step his attorney must request his agent to take, informing him the title of the cause, the Court, the amount of the debt, the day the writ was served, and the name of the plaintiff's London agent. When the agent serves this summons, the plaintiff's agent may take either of three courses; he may allege that he seeks to recover a larger sum than is mentioned in the summons to stay (for if the amount indorsed on the writ for debt be not paid or tendered within the four days, the plaintiff may afterwards set up a larger claim); the defendant's course, where this is done, will be pointed out in the next paragraph but one; or the plaintiff's agent may consent to an order in the terms of the summons, and in that case the defendant's agent must obtain an immediate appointment to tax the costs, and when they are taxed they become payable immediately, and if they are not paid, the plaintiff's agent may immediately go on with the action. In this case it will be observed that the application may turn out altogether useless, unless care has been taken that the defendant's agent is in a situation to pay the debt and costs immediately the latter are taxed. Or, thirdly, the plaintiff's agent may give some time, usually from four to seven days, after the taxation, to enable the defendant's agent to write for the money when the amount is ascertained; but where this is done, the order always contains a

1

stipulation, that if the money is not paid within the time so given, the plaintiff is to be at liberty to sign't final judgment for the amount of the debt; and sin? practice this is the order how most frequently made on a summons to stay proceedings on payment of debt and costs. From what has been said, it may ben seen that when the attorney instructs his agent tod take out a summons to stay proceedings on payment of debt and costs, he should remit so much money as he calculates will be sufficient to pay them, for if [ this be not done, and the plaintiff's agent should › ' adopt the second course above pointed out, the ex-m pense of the proceedings may be incurred to no purpose; it may also be seen that where the summons to stay is taken out, the plaintiff's agent, by adopt ing the third course above pointed out, may insist upon final judgment, if the money be not paid at the time specified in the order, and therefore a summons to stay should never be taken out merely formthet purpose of delay, in cases where it is not intended to be followed up by payment of the money.

i

Where the judge's order is intended to authorize? the plaintiff to sign judgment, the following regula tions on which the judges now act must be attended to; if the defendant has appeared by attorney, the consent to the order must be given by his attorney, or agent; in cases where the defendant has not ap-> peared, or has appeared in person, he must attend the judge and give his consent in person, or else his›› written consent (if he does not appear before the judge in person) must be attested by an attorney acting on his behalf, the attestation may be similar to that of a cognovit ; these precautions as to judges' orders are however unnecessary where the defendant # is a barrister, conveyancer, special pleader, or attorneyut

If it happen that, on the writ being served, the defendant admit something to be due to the plain tiff, but not to the amount indorsed on the writ, or afterwards claimed, and if the defendant berimb ignornace of the particulars of the plaintiff's claim,

เ

the defendant's agent should be instructed to apply for an order for particulars of the plaintiff's demand, so as to obtain them before appearance or bail to the action. When obtained, the defendant can then consider what is really due; he will then either

make up his mind the whole rather than

?

have to defend the action, or he will make up his mind to defend the action as to all beyond the sum he allows to be due. In either of these cases, the proper step to be taken is, to take out a summons to stay proceedings; if the defendant have determined to submit, it will be a summons to stay proceedings on payment of debt and costs generally, on which an order will be made as a matter of. course; and in that case sufficient money should be sent to the agent with the instructions; for, as has been already pointed out, he may be obliged to pay them the very day the costs are taxed, or the plaintiff may go on to incur further expense. If, on the other hand, the defendant determine to defend, the agent must be then instructed to take out a summons to stay proceedings on payment of the sum defendant allows to be due, (mentioning it,) and costs. If the plaintiff, on being served with this summons, consent to accept the sum specified, then it is paid with the taxed costs, as in the other, case; but if, on attending before the judge, he refuse to accept it, and claim more, the judge will indorse the summons to this effect, "No order granted, the plaintiff claiming a larger sum." In that case the plaintiff goes on with his action and declares, and the defendant pleads and pays the sum of money which was specified in the summons into Court. It will often happen, when the defendant pleads and the money is paid into Court, that the plaintiff will, on further consideration, find that he cannot safely go on with his action for more, and he will accept the sum so paid in and it is in that case that the defendant reaps a benefit from taking out the summons, and getting the judge's indorsement on it, for

t