sermon there be, and, if no sermon there be, then forthwith after divine service, at or near to the most usual door of the churches or chapel of that town or parish, where the land whereupon the summons was made doth lie, and proclamation so made as aforesaid shall be returned, together with the names of the summoners; and if such summons shall not be proclaimed according to the tenor and meaning of this act, then no grand cape to be awarded, but alias and pluries summons, as the case shall require, until a summons and proclamation shall be duly made and returned according to the meaning of this act.

If there be no church in the parish, it is said that the summons at common law is sufficient; and so also when there is no sermon or prayers between the delivery of the writ to the sheriff and the return(a); and if the parish extend into two counties, and the land lies in one county and the church in the other, the proclamation should be made in that church by the sheriff of the county in which the land lies. (b) It must appear on the return, that the land lies in the parish in which the proclamation of the summons has been made, and that the proclamation was made after the summons. (c) If the lands lie in several parishes or townships, it seems that a proclamation made at the door of the church or chapel of one parish or township is sufficient within the act. (d) A return that the sheriff has proclaimed "the contents of the writ" is insufficient, because he must proclaim that he made summons of the land. (e) According to modern practice it seems sufficient to return that the sheriff has made proclamation of the said summons, according to the form of the statute. (f) If the sheriff returns the tenant summoned at the church door, when in fact he was not so summoned, it is not error. (g) The

mode of taking advantage of such an irregularity, is by moving

to set aside the grand cape or the judgment by default.

When the summons has been served, which, as above stated, Sheriff's Return. must be at least fifteen days before the return of the writ, the sheriff returns the writ with the names of the pledges and summoners endorsed; and that he has made proclamation of the

Alias Summons.

summons, according to the form of the statute. (a) The sheriff, by alleging some special cause, may excuse himself for not having summoned the tenant, as formerly, on account of the plaintiff not having given pledges (b); or he may return tarde, that is to say, that the writ was delivered to him so late, that he could not serve it according to the exigency (c); or that no one came to shew the land to him. (d) It is not a good return to say that the tenant has yielded the lands. (e)

If for any of these causes the summons has not been served, or if it appear on the return, that proclamation has not been made, according to the statute 31 Eliz. c. 3, the demandant may sue out an alias summons (ƒ); and if the tenant be not summoned on the alias, he may wage his law of non-summons (g), and if he has been essoigned on the first summons, which was returned tarde, he may still be essoigned on the alias, for the first essoign was void. (h)

(a) 2 Saund. 43, a, note.

(b) Booth, 6. Off. Br. $57.

(c) Dalt. Sh. 107, a. Off. Br. 358,

361.

(d) Off. Br. 358, 9.

(e) Dalt. Sh. 100, b. Br. Ab. Retorn.

84. Ante, p. 47, note.

(f) Booth, 6. Off. Br. 357, 361. (g) Br. Ab. Ley Gayger, 103. (h) Com. Dig. Exoine (D), and see post in "Essoign."

Of Attachment.

In many writs, in the realty, which are not properly for demand of land, as in waste, quod permittat, secta ad molendinum, &c. (a) the process is by summons, attachment, and distress infinite. (b)

If the defendant in such writs make default at the return of the summons, then, in order to compel an appearance, a writ of attachment issues, by which the sheriff is commanded to put by gages and safe pledges the defendant, that he be before the justices, &c. on such a day, to answer the plaintiff of such a plea.

If the defendant appears at the return of the summons, and casts an essoign, an attachment may issue, if he fails to appear on the day to which the essoign is adjourned, and the writ then runs "to answer, &c." and also, "to shew wherefore he has not kept the day given him by the essoign, &c." (c)

Formerly, the practice was for the sheriff on the receipt of the writ to proceed, and attach the defendant, which he ought either to do by attaching his goods (d), or by compelling him to find pledges for his appearance (e); or, as it seems by merely summoning him to appear, without attaching him either by pledges or goods.(f) If the sheriff attached goods, he did not return pledges.(g)

Under the writ of attachment, the sheriff could only take the moveable goods of the defendant, and not a chattel real, or a thing fixed to the freehold, nor the horse upon which he was riding, nor the apparel with which he was clothed. (h) And the sheriff ought to have returned the particular goods seized, and not "chattels to the value of 107.;" for if the defendant does not

appear, the goods attached are forfeited (a); and he ought not to have taken goods of great value, but a single thing sufficient to make the defendant appear. (b) A clerk was to be attached by his person or his lands, if he had a lay fee, and not by his goods. (c)

If the defendant was attached by pledges, and did not appear, a distringas issued, and the pledges were amerced. When the pledges became merely nominal, the amercement was entered of course. (d)

There are some actions in the realty, in which attachment is the first proceeding, as in an assise of novel disseisin or nuisance (e), and in a writ of deceit. (ƒ)

In general there must be fifteen days between the teste and the return of the attachment: except in assise in the King's Bench, Common Pleas, or before justices in eyre, but it is otherwise in an assise before justices of assise (g); and also, except in some particular jurisdictions, where the process by custom or by act of parliament is returnable de die in diem. If there had not been fifteen days between the teste and return of the writ, the defendant in assise, before justices of assise, might have pleaded not attached by fifteen days, which was equivalent to waging law of non-summons in other actions, and was tried by examination of the bailiff or officer who made the return. (h)

By statute 51 G. 3, c. 124, (continued by 57 G. 3, c. 101,) the method of procuring an appearance in actions, in which the process is summons, attachment, and distress, is much facilitated; and now in all cases where the plaintiff or plaintiffs shall proceed by original or other writ, and summons or attachment thereupon, in any action against any person or persons not having privilege of parliament, no writ of distringas shall issue for default of appearance; but the defendant or defendants shall be served personally with the summons or attachment, at the foot of which

(a) Lawrence v. Netherall, Cro. Eliz. 13. Dyer, 199, a. S. C. Wells v. Wigon, Carter, 224, and see Kitch. on Courts, 157.

(b) 2 Lutw. 1457.

(c) Fitz. Ab. Retorn, 23. Com. Dig.

Process, (D. 6).

(d) Booth, 10.

(e) Com. Dig. Process, (D. 6).

(f) F.N. B. 100 D. but in deceit for

non-summons, the process appears to be a venire facias, in nature of a summons, Booth, 25%. Hale's note, F.N.B. 97 C. (b).

(g) St. Art. sup. Ch. c. 15. 2 Inst. 568. Co. Litt. 134, b.

(h) Br. Ab. Attach. in Ass. 1. &c. Vin. Ab. Assise, (W). Booth, 9. Case of Abbot of Strata Marcella, 9 Rep. 31, b.

shall be written a notice, informing the defendant or defendants of the intent and meaning of such service. (a)

But in case it shall be made to appear to the satisfaction of the court, or in the vacation, of any judge of the court from which such process shall issue, or into which the same shall be returnable, that the defendant or defendants could not be personally served with such summons or attachment, and that such process had been duly executed at the dwelling-house or place of abode of such defendant or defendants, that then it shall and may be lawful for the plaintiff or plaintiffs, by leave of the court, or order of such judge as aforesaid, to sue out a writ of distringas, to compel the appearance of such defendant or defendants, and that at the time of the execution of such writ of distringas, there shall be served on the defendant or defendants, by the officer executing such writ, if he, she, or they can then be met with, or if he, she, or they cannot then be met with, there shall be left at his, her, or their dwelling house, or other place where such distringas shall be executed, a written notice (informing the defendant of the meaning of the service.) (b)

And if such defendant or defendants shall not appear at the return of such original or other writ, or of such distringas as the case may be, or within eight days after the return thereof, in such case it shall and may be lawful to and for the plaintiff or plaintiffs, upon affidavit being made, and filed in the proper court, of the personal service of such summons or attachment, and notice written at the foot thereof as aforesaid, or of the due execution of such distringas, and of the service of such notice as is thereby directed on the execution of such distringas, as the case may be, to enter a common appearance for the defendant or defendants, and to proceed thereon, as if such defendant or defendants had entered his, her, or their appearance. (c)