prevent its disturbance for the future, provided also a process against the defendant's person in case he neglected to appear upon the former process of attachment, or had no substance whereby to be attached; subjecting his body to imprisonment by the writ of capias ad respondendum. (o) But this immunity of the defendant's person, in case of peaceable though fraudulent injuries, producing great contempt of the law in indigent wrongdoers, a capias was also allowed to arrest the person, in actions of account, though no breach of the peace be suggested, by the statutes of Marlbridge, 52 Hen. III. c. 23. and Westm. 2. 13 Edw. I. c. 11. in actions of debt and detinue, by statute 25 Edw. III. c. 17. and in all actions on the case, by statute 19 Hen. VII. c. 9. Before which last statute a practice had been introduced of commencing the suit by bringing an original writ of trespass quare clausum fregit, for breaking the plaintiff's close vi et armis; which by the old common law subjected the defendant's person to be arrested by writ of capias and then afterwards, by connivance of the court, the plaintiff might proceed to prosecute for any other less forcible injury. This practice (through custom rather than necessity, and for saving some trouble and ex

:

pense, in suing out a special original adapted to the particular injury) [282] still continues in almost all cases, except in actions of debt; though

now, by virtue of the statutes above cited and others, a capias might be had upon almost every species of complaint.

If therefore the defendant being summoned or attached makes default, and neglects to appear; or if the sheriff returns a nihil, or that the defendant hath nothing whereby he may be summoned, attached, or distreined; the capias now usually issues: (p) being a writ commanding the sheriff to take the body of the defendant if he may be found in his bailiwick or county, and him safely to keep, so that he may have him in court on the day of the return, to answer to the plaintiff of a plea of debt or trespass, &c. as the case may be. This writ, and all others subsequent to the original writ, not issuing out of chancery but from the court into which the original was returnable, and being grounded on what has passed in that court in consequence of the sheriff's return, are called judicial, not original writs; they issue under the private seal of that court, and not under the great seal of England: and are teste'd, not in the king's name, but in that of the chief (or, if there be no chief, of the senior) justice only. And these several writs being grounded on the sheriff's return, must respectively bear date the same day on which the writ immediately preceding was returnable."

This is the regular and ordinary method of process. But it is now usual in practice, to sue out the capias in the first instance, upon a supposed return of the sheriff; especially if it be suspected that the defendant, upon notice of the action, will abscond; and afterwards a fictitious original is drawn up, if the party is called upon so to do, with a proper return thereupon, in order to give the proceedings a colour of regularity. When this capias is delivered to the sheriff, he by his under-sheriff grants a warrant to his inferior officers or bailiffs, to execute it on the defendant. And, if the sheriff of Oxfordshire (in which county the injury is supposed

(3) Or rather on the quarto die post, and even then only where the plaintiff means to proceed to outlawry in which case there must be fifteen days at least between the teste and the return of each writ, Trye, 60. 2 Wils. 117.; but the cursitor will expedite the process. Dyer, 175. Tidd, 8 ed. 103. Unless the plaintiff mean to proceed to outlawry, the capias may be tested before the original, and even before the cause of action accrued, provided it be actually taken out afterwards. Sec Tird, 8 ed. 125. S Wils. 454, Chitty.

to be committed and the action is laid) cannot find the defendant in his jurisdiction, he returns that he is not found, non est inventus, [283] in his bailiwick: whereupon another writ issues, called a testatum capias, (9) directed to the sheriff of the county where the defendant is supposed to reside, as of Berkshire, reciting the former writ, and that it is testified, testatum est, that the defendant lurks or wanders in his bailiwick, wherefore he is commanded to take him, as in the former capias. But here also, when the action is brought in one county, and the defendant lives in another, it is usual, for saving trouble, time, and expense, to make out a testatum capias at the first; supposing not only an original, but also a former capias, to have been granted, which in fact never was.1 And this fiction, being beneficial to all parties, is readily acquiesced in, and is now become the settled practice; being one among many instances to illustrate that maxim of law, that in fictione juris consistit aequitas.

as

But where a defendant absconds, and the plaintiff would proceed to an outlawry against him, an original writ must then be sued out regularly, and after that a capias.5 And if the sheriff cannot find the defendant upon the first writ of capias, and returns a non est inventus, there issues out an alias writ, and after that a pluries, to the same effect as the former: (r) only after these words, 66 we command you,' ," this clause is inserted, we have formerly," or, as we have often commanded you :"-" sicut alias," or "sicut pluries, praecipimus." And, if a non est inventus is returned upon all of them, then a writ of exigent or exigi facias may be sued out, (s) which requires the sheriff to cause the defendant to be proclaimed, required, or exacted, in five county courts successively, to render himself; and if he does, then to take him as in a capias: but if he does not appear, and is returned quinto exactus, he shall then be outlawed by the coroners of the county. Also by statutes 6 Hen. VIII. c. 4. and 31 Eliz. c. 3. whether the defendant dwells within the same or another county than that wherein the exigent is sued out, a writ of proclamation (t) shall issue out at the same time with the exigent, commanding the [284] sheriff of the county, wherein the defendant dwells, to make three proclamations thereof in places the most notorious, and most likely to come to his knowledge, a month before the outlawry shall take place. Such outlawry is putting a man out of the protection of the law, so that he is incapable to bring an action for redress of injuries; and it is also attended with a forfeiture of all one's goods and chattels to the king. And therefore, till some time after the conquest, no man could be outlawed but for felony; but in Bracton's time, and somewhat earlier, process of outlawry was ordained to lie in all actions for trespasses vi et armis. (v) And since his days, by a variety of statutes (the same which allow the writ of capias before mentioned), process of outlawry doth lie in divers actions q Append. No. III. § 2. r Append. No. III. § 2. s Ibid. t Ibid.

v Co. Litt. 128.

(4) In all these writs, if the defendant be within a liberty, it is usual to insert a clause of non omittas.

There cannot be a capias into a county palatine; but on an original writ, sued out in another county, a testatum capias may be issued into a county palatine.

(5) And if in a joint action against several defendants, one of them keep out of the way, the plaintiff may have a writ of exigi facias against that defendant, Trye, 155 and must proceed to outlawry against him before he can go on against the others. 1 Stra. 475. 1 Wils. 78. 1 Bla. Rep. 20. Tidd, 8 ed. 126.

If the defendant be a woman, the proceeding is called a waiver. Lit. 186. Co. Lits 122. d. An infant under twelve years cannot be outlawed. Co. Lit. 128. a.

(6) And as to perfecting special bail, in such case, see Tidd. 8 ed. 150, 1.

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that are merely civil; provided they be commenced by original and not by bill. (u) If after outlawry the defendant appears publicly, he may be arrested by a writ of capias utlagatum, (w) and committed till the outlawry be reversed. Which reversal may be had by the defendant's appearing personally in court or by attorney, (w) (though in the king's bench he could not appear by attorney, (r) till permitted by statute 4 & 5 W. & M. c. 18.); and any plausible cause, however slight, will in general be sufficient to reverse it, it being considered only as a process to compel an ap-. pearance. But then the defendant must pay full costs, and put the plaintiff in the same condition, as if he had appeared before the writ of exigi fa. cias was awarded.

8

Such is the first process in the court of common pleas. In the king's bench they may also (and frequently do) proceed in certain causes, particulaily in actions of ejectment and trespass, by original writ, with attachment and capias thereon; (y) returnable, not at Westminster, where the common

pleas are now fixed in consequence of magna carta, but “ ubicunque [285] fuerimus in Anglia," wheresoever the king shall then be in England;

the king's bench being removable into any part of England at the pleasure and discretion of the crown. But the more usual method of proceeding therein is without any original, but by a peculiar species of process entitled a bill of Middlesex and therefore so entitled, because the court now sits in that county; for if it sate in Kent, it would then be a bill of Kent, (2) For though, as the justices of this court have, by its fundamen tal constitution, power to determine all offences and trespasses, by the common law and custom of the realm, (a) it needed no original writ from the crown to give it cognizance of any misdemesnor in the county wherein it resides; yet, as by this court's coming into any county, it immediately superseded the ordinary administration of justice by the general commissions of eyre and of oyer and terminer, (b) a process of its own became necessary within the county where it sate, to bring in such persons as were accused of committing any forcible injury. The bill of Middlesex (c) (which was formerly always founded on a plaint of trespass quare clausum fregit, entered on the records of the court (d) is a kind of capias, directed to the sheriff of that county, and commanding him to take the defendant, and have him before our lord the king at Westminster on a day prefixed, to answer to the plaintiff of a plea of trespass. For this accusation of trespass it is, that gives the court of king's bench jurisdiction in other civil

w 2 Roll. Rep. 490. Regul, C. B. A. D. 1654. c. 18. y Append. No. 1. § 1.

z Thus, when the court sate at Oxford, by reason of the plague, Mich. 1665, the process was by bill of Oxfordshire. Trye's Jus. Filizar. 101.

a Bro. Abr. t. oyer & terminer. 8.
c Append. No. III. § S.

b Bro. Abr. 1. jurisdiction. C6, 9 Inst. 27.
d Trye's Jus Filizar, 98.

(7) By a special writ of capias utlagatum, the sheriff is commanded not only to take defendant, but to summon a jury to appraise the chattels, and value the lands, &c. of the outlaw; upon this an inquiry is executed, and execution issues. The money raised under the writ belongs to the crown, though upon motion in the exchequer the plaintiff may have it paid him if it do not exceed 501, or if it does, then it may be paid him on petition. For further as to this, see Tidd, 8 cd, 163, 4, 5. If the outlawry be reversed, the defendant may have this property restored by writ of amoveas manus. Id. 141. Chilly. (8) As to the grounds for and mode of reversing an outlawry, see Tidd, 8 ed. 136 to 140. Lee's Dict. tit. Outlawry.

(9) Unless where the outlawry was obtained for the purpose of oppression, as where defendant was already in prison at plaintiff's suit, &c 2 Vent. 46. 2 Salk. 495. The absence of the de

fendant beyond sea, at the time the exigent is promulgated is, at common law, ground for a writ of error to reverse the onlawry; but if defendant went abroad purposely for delay, that fact may effectually be replied. 2 Rol. R. 11. 12 East, 625.

causes, as was formerly observed; since. when once the defendant is taken into custody of the marshal, or prison-keeper of this court, for the supposed trespass. he being then a prisoner of this court, may here be prosecuted for any other species of injury. Yet, in order to found this jurisdiction, it is not necessary that the defendant be actually the marshal's prisoner; for, as soon as he appears, or puts in bail, to the process, he is deemed by so doing to be in such custody of the marshal, as will give the court a ju- [286] risdiction to proceed. (e) And, upon these accounts, in the bill or process a complaint of trespass is always suggested, whatever else may be the real cause of action. This bill of Middlesex must be served on the de. fendant by the sheriff, if he finds him in that county; but, if he returns "non est inventus," then there issues out a writ of latitat, (ƒ) to the sheriff of another county, as Berks; which is similar to the testatum capios in the common pleas, and recites the bill of Middlesex and the proceedings thereon, and that it is testified that the defendant "latitat et discurri," Jurks and wanders about in Berks; and therefore commands the sheriff to take him, and have his body in court on the day of the return.1o But, as in the common pleas the testatum capias may be sued out upon only a sup posed, and not an actual, preceding capias; so in the king's bench a latitat is usually sued out upon only a supposed, and not an actual bill of Middlesex. So that, in fact, a latitat may be called the first process in the court of king's bench, as the testatum capias is in the common pleas. Yet, as in the common pleas, if the defendant lives in the county wherein the action is laid, a common capias suffices; so in the king's bench, likewise, if he lives in Middlesex, the process must still be by bill of Middlesex only."

In the exchequer the first process is by a writ of quo minus, in order to give the court a jurisdiction over pleas between party and party. In which writ (g) the plaintiff is alleged to be the king's farmer or debtor, and that the defendant hath done him the injury complained of; quo minus sufficiens existit, by which he is the less able to pay the king his rent, or debt. And upon this the defendant may be arrested as upon a capias from the common pleas.

Thus differently do the three courts set out at first, in the commencement of a suit, in order to entitle the two courts of king's bench and exchequer to hold plea in causes between subject and subject, which by the original constitution of Westminster-hall they were not empowered to do Afterwards, when the cause is once drawn into the respective courts, the method of pursuing it is pretty much the same in all of them.

If the sheriff has found the defendant upon any of the former writs, the capias, latitat, &c. he was anciently obliged to take him [287] into custody, in order to produce him in court upon the return, however small and minute the cause of action might be. For, not having

e 4 Inst. 72.

f Append. No. III. § 3.

g Append. No. III. § 4.

(10) If the latitat prove ineffectual, an alias, and after that a pluries latital, or, more properly speaking, an alias or pluries capias may be sued out. Tidd, 8 ed. 145. When it is doubtful in what county the defendant is to be found, there inay be several writs at the same time into different counties. Id. 1 Chit. Rep. 544. In any of these writs there may be a clause of non omittas, commanding the sheriff that he do not omit, on account of any liberty in his county, but that he enter the same, &c. and take the defendant, &c. which non omittas writ may be issued in the first instance. Tidd, 8 ed. 145, 6.

(11) And a latitat cannot be served out of the proper county, though, when a person has been served on the confines of a county, though out of it, the court will not, in general, set aside the service. 4 M. & S. 412. 1 Chitty's B. 15. and see Id. 283.

obeyed the original summons, he had shewn a contempt of the court, and was no longer to be trusted at large. But when the summons fell into disuse, and the capins became in fact the first process, it was thought hard to imprison a man for a contempt which was only supposed and therefore in common cases by the gradual indulgence of the courts (at length authorized by statute 12 Geo. I. c. 29. which was amended by 5 Geo. II. c. 27. made perpetual by 21 Geo. II. c. 3. and extended to all inferior courts by 19 Geo. III. c. 70.) the sheriff or proper officer can now only personally serve the defendant with the copy of the writ or process, and with notice in writing to appear by his attorney in court to defend this action; which in effect reduces it to a mere summons."2 And if the defendant thinks proper to appear upon this notice, his appearance is recorded, and he puts in sureties for his future attendance and obedience; which sureties are called common bail, being the same two imaginary persons that were pledges for the plaintiff's prosecution, John Doe and Richard Roe. Or, if the defendant does not appear upon the return of the writ, or within four (or, in some cases, eight) days after, the plaintiff may enter an appearance for him, as if he had really appeared and may file common bail in the defendant's name, and proceed thereupon as if the defendant had done it him. self.

13

But if the plaintiff will make affidavit, or assert upon oath, that the cause of action amounts to ten pounds or upwards," then he may arrest

(12) But in this court the defendant cannot be outlawed, as the plaintiff cannot proceed therein by original writ. 1 Price, 309. Besides the writ of quo minus is a venire facias and subpœna ad respondendum. For the process in this court, see Tidd, 8 ed. 154 to 157.

As to the form of the notice, see Tidd, 8 ed. 166. If there be no notice to appear, when ne cessary, or the notice be not properly directed, &c. the defendant may move the court to set aside the proceedings; but any trifling informality in the notice, as setting down the day of the month on which the defendant is to appear, without saying instant, next, or specifying the year, or mentioning an impossible day, will not invalidate it. Tidd, 8 ed. 167. As to the service of the process, see ld 167 to 169.

If there be no process, or if it be defective in point of form, or in its direction, teste, or return, or the attorney's name be not indorsed upon it, the defendant may move the court to set aside the proceedings for irregularity; and a writ having a wrong return, will not be aided by a correct day being mentioned in the notice to appear. But he cannot take advantage of any error or defect in the process after he has appeared to it, or taken the declaration out of the office'; for it is the universal practice of the courts, that the application to set aside proceedings for irregularity should be made as early as possible, or, as it is commonly said, in the first instance; and where there has been an irregularity, if the party overlook it, and take subsequent steps in the cause, he cannot afterwards revert back and object to it. In the common pleas the court will not quash a writ on the ground of its having been served in a wrong county. And it is said, that a mistake in the process is cured by the plaintiff's entering an appearance for the defendant, which has been always looked upon as effectual for that purpose as if he had done it himself but it is otherwise where the defendant has not been served with a copy of the process, or the notice subscribed thereto is defective. It is also said, that no advantage can be taken of the irregularity of process without having it returned, and before the court; and where the irregularity complained of is not in the process, but in the notice to appear thereto, or in the service of it, the rule should be to set aside such service, and not the process itself. See Tidd, 8 ed. 159. and the various cases there collected.

The process may in general be amended where there is any thing to amend by; and it has been amended in the name of the defendant where he was a prisoner in custody under it. But the court of king's bench would not grant a rule for amending the writ, under which the defendant had been arrested by a wrong name, after actions of false imprisonment had been brought for such arrest ; so an amendment cannot be made of mesne process by adding the name of another person as plaintiff a writ returnable on a dies non is altogether void, and cannot be amended by the court, and the courts, we have seen, will not in general allow a writ to be amended to the prejudice of the bail. Tidd, 8 ed. 160. and cases there collected.

(13) In all cases where the defendant is served with a copy of the process, he has eight days to file common bail in the king's bench, or to enter a common appearance in the common pleas, exclusive of the return day; and if the last of the eight days be a Sunday, he has all the next day. 1 Cromp. Prac. 48. 1 Burr. 56.

(14) Increased to 15l. by 51 Geo. III. c. 124. (continued by 57 Geo. III. c. 101.) except where