case OGYER against Heywood Cause to quash a writ must be apparent on the face  of it Lord chancellor can quash a original writ after it be return into  another court but may supersede it lib Reg b foe S c hill ms p tot verb atk in  chancery Trin that g Lord Hardwicke c this be a motion to quash or supersede a  original sue out of this court and returnable in the court of common plea as  to the first part of the motion to quash the writ it appear the writ be actual  return in the common plea so that this court have no power over it from that  time and if it have yet as nothing appear erroneous on the face of it this  court can not quash it for what be cause to quash must be apparent on the face  of the writ itself ambler as to the other part of the motion I be of opinion  it ought to be supersede the cause general assign for supersede writ of this  sort be because improvise to flow out the case be this the original writ be  sue out in a popular action test d November and deliver to the sheriff to be  execute who serve a copy of the writ upon the defendant with notice  underwritten to appear by attorney c from a mistake notion that it be within  the late act of parliament which say that where the cause of action in a  superior court do not amount to pound a copy of the process shall be serve on  defendant the plaintiff find out the mistake that the service be not regular  and no summons have be give go to the cursitor and get the writ alter by erase  the word of the return which be eight Hilar and make it returnable eight  purification and get it resealed by which the action appear to have be bring  within six month but in fact be not the argument use at bar on each side be  for the defendant that the stampduty will be defraud by this mean for the writ  be make new and ought to be new stamp but as to that it be right observe by Mr  Wilbraham that in such case the writ will not be void but voidable only as  where a deed be execute without be first stamp it be not therefore void though  it can be read in court till the penalty be satisfy it be also say that as the  party have proceed by summons and pone therefore it be within the stamp act  stamp act W m on the other side it be urge that as a capias may have issue on  this original for that reason it be within the exception of such original on  which a capias issue but I be of opinion the statute mean to take in such  original on which a capias may issue for where there be a election in the  party to proceed by capias or otherwise the officer ought to require a stamp  because it be uncertain which way the party will proceed the reason of that  exception be because otherwise the party will proceed by latitat and so save  the double duty it be say on the part of the plaintiff that this have be the  practice of the cursitors office for many year and ambler a affidavit by Mr  Burton one of the cursitors be read in court to that purpose and it be also  say that the officer of the stamp duty do not expect a new stamp on such  occasion but I can now go into this matter because it be not a application by  the officer nor a motion to the court to censure the attorney or cursitor and  therefore it will be proper for the officer of the stamp duty to apply to the  court if they have any doubt upon the matter to be sure where process have not  be make use of by the party it have not be require to be new stamp which bring  it to the question whether this writ have be execute or not I be of opinion  the word execute mean no more than the word use and though it may be improper  use yet it be execute within the true sense of the statute therefore whether  the practice be right or not suppose the writ have not be use yet in this case  it have and for that reason ought to be supersede with the cost of the motion  because improvident to flow out see the case in note see ex part little atk  king v Burrard p W Barlow Collins ib in note lessee of Lawlor v Murray S Lef  dean c of Dublin v dowgate p W woodcraft v Kynaston atk see king v foul salk  Waub v Schmidt mere roan v galley ken Robinson v Stephenson post on the stat  Geo for a penalty of pound incur for sell print calico contrary to that stat  lib Reg it also appear from l r that the plaintiff attorney ambler er p serve  the copy on the defendant and that the writ be not leave with the sheriff as  it ought to have be to summon the defendant thereon the amend writ be leave  with the sheriff who serve the defendant the defendant thereon move the court  of c p to stay proceed in the action and that court order that the plaintiff  shall have leave to take the original writ off the file and that the defendant  shall be at liberty to move to quash the say writ on which motion neither  party be to insist that such writ have be return to the sheriff it be now move  that the writ may be supersede or quash with cost and it be order that such  writ shall be supersede because it issue improvident and that the plaintiff  shall pay to the defendant his cost to be tax by the master