In the king': Such is the first process in the court of common pleas bench they may also (and frequently do) proceed in certain causes, particularly in actions of ejectment and trespass, by original writ, with attachmen: and capras thereon (y); returnable, not at Westminster, where the common pleas are now fixed in consequence of magna carta, but “ ubicunque fuerimus in Anglia," wheresoever the king shall then be in Eng- [*285] land; 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 sat in Kent, it would then be a bill of Kent (z). For though, as the justices of this court have, by its fundamental 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of any misdemeanor in the county wherein it resides; yet, as by this court's coming into any county, it immediately superseded the ordinary administration of justice by the general commissions of eyre and of oyer and terminer (b), a process of its own became necessary within the county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 sat, 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 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 [*286] the marshal, as will give the court a jurisdiction 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 vill of Middlesex must be served on the defendant by the sheriff, if he finds Lim in that county; but, if he returns "non est inventus," then there issues out a writ of latitat (f), to the sheriff of another county, as Berks, which is similar to the testatum capias in the common pleas, and recites the bill of Middlesex and the proceedings thereon, and that it is testified that the defendant " latitat et discurrit," lurks 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 (8). But, as in the common pleas the testatum capius (y. Appendix, No. II. § 1. (z) Thus, when the court sat at Oxford, by reason of the plague, Mich. 1665. the process was by ill of Oxfordshire. Trye's Jus Filizar. 101. (a) Bro. Abr. t. oyer & terminer, 8. suit, &c. 2 Vent. 46. 2 Salk. 495. The ⚫bsence of the defendant beyond sea, at the ume the exigent is promulgated is, at common law, ground for a writ of error to reverse the utlawry; but if defendant went abroad (b) Bro. Abr. t. jurisdiction, 66. 3 Inst. 27 (f) Appendix, No. III. ◊ 3. (8) If the latitat prove ineffectual, an alias. and after that a pluries latitat, or, more proper. ly speaking, an alias or pluries capias may be may be sued out upon only a supposed, and not an actual, preceding capi us; so in the king's bench a latitat is usually sued out upon only a suppos ed, 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 (9). In the exchequer the first process is by 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 det wor, 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. [*287] *If the sheriff has found the defendant upon any of the former writs, the capias, latitat, &c. he was anciently obliged to take him 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 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 capias 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 nouce in writing to appear by his attorney in court to defend this action; which in effect reduces it to a mere summons (10). And if the defendant (g) Appendix, No. III. 4 cued out. Tidd, 8 ed. 145. When it is doubtful in what county the defendant is to be found, there may be several wits at the same time into different counties. . 1 Chit. Rep. 544. In any of these writs there may be a clause of non mittas, 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 sides the writ of quo minus is a venire facias and subpoena 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 necessary, 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 Id. 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 set aside the proceedings for regularity: and 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 (11), the plaintiff may enter an appearance to 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 himself. But if the plaintiff will make affidavit, or assert upon oath, that the cause of action amounts to ten pounds or upwards (12), (13), then he inay arrest the defendant, and make him put in substantial sureties for his ap 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 untering 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. (11) 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. As to what cause of action will justify an arrest, it is a rule that where a debt is certain, or damages may be reduced to a certainty, as in assumpsit or covenant for the payment of money, Barnes, 79, 80. 108. the defendant may be arrested as a matter of course, on an affidavit stating the cause of action. Tidd, 170. But where damages are altogether uncertain, as in assumpsit, or covenant, to indemnify, &c. or in actions for a tort or trespass, there can be no arrest without a special order of the court, or a judge, on a full affidavit of the circumstances, Id. 171. and by rule of H. T. 48 Geo. III. a person cannot be held to special bail in trover or detinue without an order. And there are other cases where an arrest is not allowed, even though the action be brought for a sum certain. Thus a defendant cannot be arrested on a penal statute, Yelv. 53. though he may on a remedial one, 7 T. R. 259; or where the act expressly authorizes an arrest. The defendant cannot be arrested on a bail bond, R. M. 8. Ann. or replevin bond, 1 Salk. 99. 6 T. R. 336. 8 T. R. 450. or on a recogni zance of bail, Tidd, 8 ed. 172; nor for goods bargained and sold, or sold without stating a delivery, 12 East, 398. 1 Bingh. 357; nor on a policy of insurance without an adjustment, or an express promise to pay the amount, 5 Taunt. 201. 1 Marsh. 19. S. C.; but he may be on a guarantee. 9 Price, 155. So defend ant cannot be arrested for more than is equit ably due. Thus he cannot be arrested on the penalty of a bond, 6 T. R. 217. 2 East, 409, but he may if the sum is agreed to be for li quidated damages. Tidd, 8 ed. 173. He cannot be arrested for more than the balance due, where there is a set-off. 3 B. & C. 139. 5 B & A. 513. 1 D. & R. 67. S. C. (12) As to the law of arrest in New-York, see the Act to abolish imprisonment for debt, passed 1831: to take effect in March, 1832. (13) Now by stat. 7 & 8 Geo. IV. c. 71, the debt must amount to 201., and in Wales and the counties palatine to 501. Intermediate statutes, viz. 51 Geo. III. c. 124, and 27 Geo. III. c. 101, extended the sum from 10l. to 151. except upon bills of exchange and promissory notes. The statute of the present king con tains no such exemption : pearance, called special be??. In order to which, it is required by sta.ute 13 Car. II. st. 2. c. 2. that the true cause of action should be expressed in the body of the writ or process: else no security can be taken in a greater sum then 401. This statute (without any such intention in the [*288] makers) had like to have ousted the king's bench of *all its jurisdiction over civil injuries without force; for, as the bill of Middlesex was framed only for actions of trespass, a defendant could not be arrested and held to bail there apo for breaches of civil contracts. But to remedy this inconvenience, the officers of the king's bench devised a method of adding what is called a clause of ac etiam to the usual complaint of trespass the bill of Middlesex commanding the defendant to be brought in to answer the plaintiff of a plea of trespass, and also to a bill of debt (f): the complaint of trespass giving cognizance to the court, and that of debt authorizing the arrest. In imitation of which, lord chief justice North a few years afterwards, in order to save the suitors of his court the trouble and expense of suing out special originais, directed that in the common pleas, besides the usual complaint of breaking the plaintiff's close. a clause of ac etiam might be also added to the writ of capias, containing the true cause of action; as, that the said Charles the defendant may answer to the plaintiff of a plea of trespass in breaking his close: and also, ac etiam, may answer him, according to the custom of the court, in a certain plea of trespass upon the case, upon promises, to the value of twenty pounds, &c. (g)." The sum sworn to by the plaintiff is marked upon the back of the writ; and the sheriff, or his officer the bailiff, is then obliged actually to arrest or take into custody the body of the defendant, and, having so done, to return the writ with a cepi corpus endorsed thereon (14). An arrest must be by corporal seizing or touching the defendant's boly (15); after which the bailiff may justify breaking open the house in which he is (16) to take him: otherwise he has no such power; but must watch his opportunity to arrest him. For every man's house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence (17). Which principle is carried so far in the civil law (f) Trye's Jus Filizar. 102. Appendix, No. III. $3. (g) Lilly Pract. Reg. t. ac etiam. North's life of (14) See 3 R. S. 348, §. 11. Bare (15) But this does not en to be absolutely necessary, for if a bailiff come into a room and tell the defendant he arre ts him, and lock the door, it is sufficient. C. T. Hardw. 301. 2 New. Rep. 211. Bull. N. P. 82. words, however, will not constitute an arrest. 1 Ry. & M. C. N. P. 26. It is sufficient that the officer have the authority, e near, and acting in the arrest, without being the person who actually arrests. Cowp. 65. If the defendant be wrongfully taken without process, 2 Anst. 461. 1 N. K. 135. or after it is returnable, 2 H. Bla. 29. he cannot be lawfully detained in custody under subsequent process at the suit of the same plaintiff, though he may at the suit of third persons. 2 B. & 4. 743. 1 Chit. Rep. 579. S. C. (16) This appears to be stated too extensively; it is the defendant's own dwelling which by law is said to be his castle; for if he he in the house of another, the bailiff or sheriff Lord Guildford, 99. This work is strongly recom mended to the student's perusal. may break and enter it to effect his purpose, but he ought to be very certain that the defendant be, at the time of such forcible entry, in the house. See Johnson v. Leigh, 6 Taunt. 246. (17) A bailiff before he has made the arrest cannot break open an outer door of a house; but if he enter the outer door peaceably, he may then break open the inner door, though it be the apartment of a lodger, if the owner himself occupies part of the house. Cowp. 1. 2 Moore, 207. 8 Taunt. 250. S. C. But if the whole house be let in lodgings, as each lodging is then considered a dwelling-house, in which burglary may be stated to have been committed, it has been supposed that the door of each apartment would be considered an outer door, which could not be legally broken open to execute an arrest. Cowp. 2. But to justify breaking open an inner door belonging to a lodger, admittance must be first demand ed, unless defendant is in the room. 3 B. & that for the most part not so much as a common citation or summons, much less an arrest, can be executed upon a man within his own walls (h). Peers of the realm, members of parliament, and [*289 corporations, are privileged from arrests; and of course from outlawries (i). And against them the process to enforce an appearance mus be by summons and distress infinite (j), instead of a capias. Also clerks. attorneys, and all other persons attending the courts of justice (for attor neys, being officers of the court, are always supposed to be there attending), are not liable to be arrested by the ordinary process of the court, but must be sued by bill (called usually a bill of privilege) as being personally Fresent in court (k) (18), (19). Clergymen performing divine service, and not merely staying in the church with a fraudulent design, are for the time privileged from arrests, by stat. 50 Edw. III. c. 5. and 1 Ric. II. c. 16. as likewise members of convocation actually attending thereon, by statute 8 Hen. VI. c. 1. Suitors, witnesses, and other persons, necessarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their necessary coming and return. ing (20). And no arrest can be made in the king's presence, nor within (j) See page 280. (h) Ff. 2. 4. 18-21. (1) Whitelock of Parl. 206, 207. P. 223. 4 Taunt. 619. And the breaking upon an inner door of a stranger cannot be justified on a suspicion that defendant is in the room. 5 Taunt. 765. 6 ed. 246. (18) These privileges are allowed not so much for the benefit of attornies as their clients, 2 Wils. 44. Burr. 211. 3 Doug. 381. and are therefore confined to attornies who practise, 2 Wils. 232. 4 Burr. 2113. 2 Bla. Rep. 1086. 1 Bos. & Pul. 4. (2 Lutw. 1667. contra), or at least have practised within a year; for it is a rule that such attornies as have not been attending their employment in the king's bench for the space of a year, unless hindered by sickness, be not allowed their privilege of attornies. R. M. 1654. S. 1. K. B. & C. P. 2 M. & S. 605. (19) In New-York, attornies, counsellors, and solicitors are exempted from arrest only when employed in a cause pending in a court and to be then heard. (2 R. S. 290, § 86). Other officers of the court may be arrested at any time, except during the sitting of the court. (Id.) Clergymen have no exemption. (20) See further as to the privileges from arrest, Tidd, 8 ed. 192 to 214. Lee's Dict. tit. Arrest, 90. 92. In addition to those named in the text are the following, viz. Administrator, as such, Yelv. 53; but not if he has personally promised to pay. T. R. 716. Aliens for debt beyond seas. 38 Geo. III. c. 50. s. 9. Ambassadors and servants. 7 Ann. c. 12. I B. & C. 554. 3 D. & R. 833. 25. Bail, being about to justify, or otherwise attending court as bail. 1 H. Bla. 636. 1 M. & S. 638. Bankrupt for forty-two days, unless before in prison, and after forty-two days if the time for surrender be enlarged, 8 T. R. 475; also if summoned before the commissioners relative to his estate, though several years after his ast examination. Id. 534. See the 6 Geo. 'V. c. 16. ss. 117, 118. Barristers attending court or on circuit. 1 H. Bla 636. Bishops VOL. II (k) Bro. Abr. t. bille. 29. 12 Mod. 163. Consul-general. 9 East, 447. sed vid. 1 Taunt 106. 3 M. & S. 284. Executor, as such Feme-covert, 1 T. R. 486. 2 H. B. 17; but if she obtain credit, pretending to be single, she may be arrested, I N. R. 54. and see 1 Bing. 344. 2 Marsh. 40. 7 Taunt. 55. Tidd, 8 ed. 197; though if a foreigner, and her hus band be abroad, she is liable for her debts, though neither separated by deed nor having a separate maintenance, 2 N. R. 380; but if plaintiff knew her to be married, she will be discharged, 6 T. R. 451. 1 East, 17. n. 1 East, 582; and in such case, plaintiff will be ruled to pay costs of motion, 3 Taunt. 307, but if she cohabit with another man, and trade on her own account, she will not be discharg. ed, 1 B. & P. 8; if she by mistake represent her husband to be dead, she will be discharg ed. 1 East, 16. Heir, sued as such. Hun dredors, as such. Insolvent debtor discharged, 3 M. & S. 595. unless on a subsequent ex press promise. 6 Taunt. 563. sed vide 1 Chit. R. 274. n. Irish peer, whether a representa. tive or not. 39 & 40 Geo. III. c. 67. art. 4. Marshal of king's bench. Officers, non-com missioned. 4 Taunt. 557; but volunteer drill sergeants are not exempt. 8 T. R. 105. Plaintiff attending execution of inquiry, &c. 4 Moore, 34. Sailors, under 201. st. 2. c. 14. s. 15. 32 Geo III. c. Serjeants at law. 6 T. R. 686. tending court, 11 East, 439. and court is such a court. 2 Marsh. 57. 6 Taunt 356. Warden of the Fleet. Witnesses sub pœnaed, or summoned before commissioner. under great seal, or attending an arbitrato appointed by the court. 1 Chit. Rep. 679. 3 B. & A. 252. S. C. 3 Anst. 941. 3 East. 189. A creditor attending commissioners o: bankrupt to prove a debt. 7 Ves. 312. 1 Ves & B. 316. 2 Rose, 24. By mutiny act w nesses attending court-martial are privileged. But witnesses are not privileged if they delay 31 I Geo. II. 33. s. 22. Suitors atinsolvent |