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tions 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 defend ant hath nothing whereby he may be summoned, attached, or distrained ; 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 hare him in court on the day of the return, to answer to the plaintiff of a plea of debt or irespass, fc. 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 tested, 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 sherill's return, must respectively bear date the same day on which the writ immediately preceding was returnable (3).
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 du, 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, 10 execute it on the defendant. And, if tlie sheriff of Oxfordshire (in which county the injury is supposed 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, in (*283] 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 granied, which in fact never was. 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.
But where a defendant absconds, and the plaintiff would proceed to an outlawry (4) against him, an original writ must then be sued out regular(p) Appendix, No. III. 4 2.
(3) Or rather on the quarto die post, and may be tested before the original, and even even then only where the plaintiff means to before the cause of action accrued, provided it proceed to outlawry; in which case there be actually taken out afterwards. See Tidd, must be fifteen days at least between the teste & ed. 125. 3 Wils. 454. and the return of each writ, Trye, 60. 2 Wils. (4) In New York process of outlawry, ex117; but the cursitor will expedite the process. cept on conviction of treason, is abolished. (2 Dyer, 175. Tidd, 8 edd. 103. Unless the plain- R.'S. 553, 6 15: 745, $ 20.) tif mean to proceed to outlawry, the capias
ly, and after that a capias (5).
And if the sheriff cannot find the defend upon the first writ of capias, and return 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 “we command you," this clause is inserted,
as we have formerly," or," as we have often commanded you:"-"sicut alias,” or “ sicut pluries, praecipimus." And, if a non est inventus is return- . ed 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 [*284] wherein the exigent is sued out, "a writ of proclamation (1) shall
issue out at the same time with the exigent, commanding the 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 arinis (u). 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 that are merely civil ; provided they be commenced by original and not by bill (v). If after outlawry the defendant appears publicly, he may be arrested by a writ of capias utlagatum (w) (6), and committed till the outlawry be reversed. Which reversal may be had by the defendant's appearing personally in court or by attorney (x), (though in the king's bench he could not appear by attorney (y), 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 appearance. 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 facias was award
(r) Appendix, No. III. $ 2
(2) Appendix, No. III. 6 2 (r) 2 Roll. Rep. 490. Regul. C. B. A. D. 1654, C. 13.
(y) Cro. Jac. 616. Salk. 496.
(5) And if in a joint action against several chattels, and value the lands, &c. of the outdefendants, one of them keep out of the way, law; upon this an inquiry is executed, and the plaintiff may have a writ of exigi facias execution issues. The money raised under against that defendant, Tyre, 155. and must the writ belongs to the crown, though upon proceed to outlawry against him before he can motion in the exchequer the plaintiff may go on against the others. 1 Stra. 473. 1 Wils. have it paid him if it do not exceed 501., or if 78. 1 Bla. Rep. 20. Tidd, 8 ed. 126. it does, then it may be paid him on petition.
If the defendant be a woman, the proceed. For further as to this, see Tidd, 8 ed. 133, 4, ing is called a waiver. Lit. 186. Co. Lit. 122. 5. If the outlawry be reversed, the defendant b. An infant under twelve years cannot be may have this property restored by writ of outlawed. Co. Lit. 128. a.
amoveas manus. Id. 141. (6) By a special writ of capias utlagatum, (7) Unless where the outlawry was obtain. the sheriff is commanded not only to take de ed for the purpose of oppression, as where de fendant, but to summon a jury to appraise the fendant was already in prison at plaintiff's
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, particularly 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 fuerimus in Anglia," wheresoever the king shall then be in Eng- [*285] Jand; 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 (2). 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 bill of Middlesex must be served on the defendant by the sheriff, if he finds him in that county ; but, if he returns“ non est inventus," then there issues out a writ of latilat (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 capias (y) Appendix, No. 11.0 1.
(6) Bro. Abr. t. jurisdiction, 66. 3 Inst. 27. (2) Thus, who
at Oxford, by rea. (c) Appendix, No. III. 93. son of the plague, Mich. 1665. the process was by (d) Trye's Jus Filizar. 98. bill of Oxfordshire. Trye's Jus Filizar. 101. (a) Bro. Abr. t. oyer 4 terminer, 8.
(f) Appendix, No. III. 03. suit, &e. 2 Vent. 46. 2 Salk. 495. The purposely for delay, that fact may effectually absence of the defendant beyond sea, at the be replied. 2 Rol. R. 11. 12 East, 625. time the exigent is promulgated is, at com. (8) If the latitat prove ineffectual, an alias, mon law, ground for a writ of error to reverse and after that a pluries lalitat, or, more properthe outlawry; but if desendant went abroad ly speaking, an alias or pluries capias may be
(e) 4 Inst. 72.
may be sued out upon only a supposed, and not an actual, preceding capras; 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 latilat 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 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. [*287] *If the sheriff has found the defendant upon any of the for
mer 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 notice 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. sued out. Tidd, 8 ed. 145. When it is doubt. sides the writ of quo minus is a venire facias ful in what county the defendant is to be found, and subpæna ad respondendum. For the prothere may be several writs at the same time cess in this court, see Tidd, 8 ed. 154 to 157. into different counties. Id. 1 Chit. Rep. 514. As to the form of the notice, see Tidd, 8 ed. In any of these writs there may be a clause of 166. If there be no notice to appear, when non omillas, commanding the sheriff that he do necessary, or the notice be not properly directnot omit, on account of any liberty in his coun- ed, &c. the defendant may move the court to ty, but that he enter the same, &c. and take set aside the proceedings; but any trifling inthe defendant, &c. which non omittas writ formality in the notice, as setting down the may be issued in the first instance. Tidd, 8 day of the month on which the defendant is to ed. 145, 6.
appear, without saying instant, next, or speci(9) And a latitat cannot be served out of the fying the year, or mentioning an impossible proper county, though, when a person has been day, will not invalidate it. Tidd, 8 ed. 167. served on the confines of a county, though out As to the service of the process, see Id. 167 to of it, the court will not, in general, set aside 169. the service. 4 M. & S. 412. 1 Chitty's R. If there be no process, or if it be defective 15. and see Id. 233.
in point of form, or in its direction, teste, or (10) But in this court the defendant cannot return, or the attorney's name be not indorsed be outlawed, as the plaintiff cannot proceed upon it, the defendant may move the court to therein by original writ. 1 Price, 309. Be- set aside the proceedings for irregularity; 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 inay 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 may arrest the defendant, and make him put in substantial sureties for his ap
a writ having a wrong return, will not be aided and if the last of the eight days be a Sunday, by a correct day being mentioned in the notice he has all the next day. 1 Cromp. Prac. 48. to appear. But he cannot take advantage of i Burr. 56. any error or defect in the process after he has As to what cause of action will justify an arappeared to it, or taken the declaration out of rest, it is a rule that where a debt is certain, the office ; for it is the universal practice of or damages may be reduced to a certainty, as the courts, that the application to set aside in assumpsit or covenant for the payment of proceedings for irregularity should be made as money, Barnes, 79, 80. 108. the defendant may early as possible, or, as it is commonly said, be arrested as a matter of course, on an affidain the first instance; and where there has vit stating the cause of action. Tidd, 170. been an irregularity, if the party overlook it But where damages are altogether uncertain, and take subsequent steps in the cause, he as in assumpsit, or covenant, to indemnify, cannot afterwards revert back and object to it. &c. or in actions for a tort or trespass, there In the common pleas the court will not quash can be no arrest without a special order of the a writ on the ground of its having been served court, or a judge, on a full affidavit of the cir. in a wrong county. And it is said, that a mis- cumstances, Id. 171. and by rule of H. T. 48 take in the process is cured by the plaintiff's Gen. III. a person cannot be held to special untering an appearance for the defendant, bail in trover or detinue without an order. which has been always looked upon as ef. And there are other cases where an arrest is fectual for that purpose as if he had done it not allowed, even though the action be brought himself; but it is otherwise where the defend for a sum certain. Thus a defendant cannot ant has not been served with a copy of the be arrested on a penal statute, Yelv. 53. though process, or the notice subscribed thereto is de- he may on a remedial one, 7 T. R. 259; or fective. It is also said, that no advantage can where the act expressly authorizes an arrest. be taken of the irregularity of process without the defendant cannot be arrested on a bail having it returned, and before the court; and bond, R. M. 8. Ann. or replevin bond, 1 Salk. where the irregularity complained of is not in 99. 6 T. R. 336. 8T.R. 450. or on a recognithe process, but in the notice to appear thereto, zance of bail, Tidd, 8 ed. 172 ; nor for goods or in the service of it, the rule should be to set bargained and sold, or sold without stating a aside such service, and not the process itself. delivery, 12 East, 398. 1 Bingh. 357; nor on See Tidd, 8 ed. 159. and the various cases a policy of insurance without an adjustment, there collected.
or an express promise to pay the amount, The process muy in general be amended Taunt. 201. i 'Marsh. 19. $. C. ; but he may where there is any thing to amend by; and be on a guarantee. 9 Price, 155. So defendit has been amended in the name of the de. ant cannot be arrested foro.nore than is equitfendant where he was a prisoner in custody ably due. Thus he cannot be arrested on the uoder it. But the court of king's bench would penalty of a bond, 6 T. R. 217. 2 East, 409, not grant a rule for amending the writ, under but he may is the sum is agreed to be for liwhich the defendant had been arrested by a quidated damages. Tidd, 8 ed. 173. He canwrong name, after actions of false imprison. not be arrested for more than the balance due, ment had been brought for such arrest; so an where there is a set-off. 3 B. & C. 139. 5 B. amendment cannot be made of mesne process & A. 513. 1 D. & R. 67. S. C. by adding the name of another person as plain. (12) As to the law of arrest in New York, till: a writ returnable on a dics non is alto see the Act to abolish imprisonment for debt, gether void, and cannot be amended by the passed 1831 : to take effect in March, 1832. court, and the courts, we have seen, will not (13) Now by stat. 7 & 8 Geo. IV. c. 71, the in general allow a writ to be amended to the debt must amount to 201., and in Wales and prejudice of the bail. Tidd, 8 ed. 160. and the counties palatine to 501. Intermediate cases there collected.
stalutes, viz. 51 Geo. III. c. 124, and 27 Geo. (11) In all cases where the defendant is III. c. 101, extended the sum from 101. to 151., served with a copy of the process, be has except upon bills of exchange and promissory eight days 10 file common bail in the king's notes. The statute of the present king con bench, or to enter a common appearance in tains no such exemption. the common pleas, exclusive of the return day;