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grounded on the non-appearance of the defendant at the return of the original writ; and thereby the sheriff is commanded to attach him, by taking gage, that 1s, certain of his goods, which he shall forfeit if he doth not appear; (g) or by making him find safe pledges or sureties who shall be amerced in case of his nonappearance. (7) This is also the first and immediate process, without any previous summons, upon actions of trespass vi et armis, or for other injuries, which though not forcible are yet trespasses against the peace, as deceit and conspiracy; (i) where the violence of the wrong requires a more speedy remedy, and therefore the original writ commands the defendant to be at once attached, without any precedent warning. (j) (1)
If after attachment, the defendaut neglects to appear, he not only forfeits this security, but is moreover to be farther compelled by writ of distringas, (k) or distress infinite; which is a subsequent process issuing from the court of common pleas, commanding the sheriff to distrain the defendant from time to time, and continually afterwards, by taking his goods and the profits of his lands, which are called issues, and which by the common law he forfeits to the king if he doth not appear. (1) But now the issues may be sold, if the court shall so direct, in order to defray the reasonable costs of the plaintiff. (m) (2) In like *manner by the civil law, if the defendant absconds, so that the citation [*281] is of no effect," mittitur adversarius in possessionem bonorum ejus.” (n)
And here by the common, as well as the civil law, the process ended in case of injuries without force: the defendant, if he had any substance, being gradually stripped of it all by repeated distresses, till he rendered obedience to the king's writ; and, if he had no substance, the law held him incapable of making satisfaction, and therefore looked upon all further process as nugatory. And besides, upon feudal principles, the person of a feudatory was not liable to be attached for injuries merely civil, lest thereby his lord should be deprived of his personal
(h) Dalt. of Sher. c. 32.
(g) Finch. L. 315. Lord Raym. 278.
(i) Finch, L. 305, 352. (1) Finch, L. 352.
(1) [A considerable change was made by statute 2 Wm. IV, c. 39, in the mode of commenc ing personal actions. In these the use of the original writ was abolished, and the process in all such actions, in cases where it was not intended to hold the defendent to bail, or to proceed against a member of parliament, according to the provisions of the bankrupt laws, it was enacted should be according to the form contained in the schedule to the act, and which process was thenceforth to issue from either of the superior courts, and to be called a writ of summons. In every such writ and copy thereof the place and county of the residence, or supposed residence, of the party defendant was to be mentioned, and every such writ was to be served in the manner heretofore and in the county therein mentioned; and the person serving the same was required to endorse on the writ the day of the month and week of the service thereof. The provisions as to writs of summons of the statute 2 Win. IV, c. 39, were extended by statute 1 and 2 Vie. c. 110, to all personal actions in her majesty's superior courts of law at Westminster; but the process or writ of summons in personal actions is now regulated by the common law procedure act, 1852, which provides a form of writ similar to that given by the statute 2 Wm. IV, c. 49, except that no county need be mentioned therein, while it is specially provided that the defendant may be served in any county. This writ is directed to the defendant, whom it commands that, within eight days after the service of the writ on him, inclusive of the day of such service, he do cause an appearance to be entered for him in the court in which the action is brought, in an action at the suit of the plaintiff, and requires the defendant to take notice that in default of his doing so the plaintiff may proceed to judgment and exeention. The writ is tested, i. e., witnessed in the name of the chief justice or chief baron, or, in case of vacancy, of a senior puisne judge of the court out of which it issues, and dated on the day on which it issued. A nemorandum is subscribed to it, directing its execution within six months from the day of its date, after which period it ceases to be of force unless renewed. The defendant may apply to set it aside, if served after the six months; if it cannot be served within that period, the plaintiff may have it renewed from time to time, until service be effected.] (2) [The proceeding by distringas and outlawry is abolished by the "common law procedure act, 1852," and now if the defendant keeps out of the way, or personal service of the writ cannot be effected, the plaintiff must still use reasonable efforts to serve the defendant; and upon an affidavit showing such efforts to have been made, and either that the writ has come to the defendant's knowledge, or that he wilfully evades service of it, and that he has not appeared to the writ, the plaintiff can obtain an order from the court or a judge authorizing him to proceed as if personal service had been effected.]
services. But, in case of injury accompanied with force, the law, to punish the breach of the peace, and 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. (0) But this immunity of the defendant's person, in case of peaceable though fraudu lent 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 expense, in suing out a special original *adapted [*282] to the particular injury) still continues in almost all cases, except in actions of debt; though now, by virtue of the statutes above cited and others, a capas 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 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 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 other 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 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 to 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 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, (q) 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 saying trouble, time and expense, to make out a teslatum capias at the first; supposing not only an original, but also a former capias, to have been granted which in fact never was. And this fiction being beneficial to all parties, is readily acquiesced in and is now becoming the settled practice; being one among
many instances to illustrate that maxim of law, that in fictione juris consistit æquitas. (3)
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. 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: (7) 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, præcipimus." 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 [ *284] 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 protection of the law so that he is incapable of bringing 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 sometime 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. (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) and committed till the outlawry be reversed. Which reversal may be had by the defendant's appearing personally in court or by attorney, (a) (though in the king's bench he could not appear by attorney, (y) till permitted by statute 4 and 5 W. and 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 awarded. 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; (z) 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 England; the king's bench being removable into any part of England at the pleasure and discretion of the [*285) 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. (a) 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.(b) it needed no original
(y) Cro, Jac, 616. Salk. 496.
(a) 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.
(b) Bro. Abr. tit. Oyer and Terminer, 8.
(3) Arrest upon mesne process was almost entirely abolished by statute 1 and 2 Vic. c. 110 See also statutes 14 and 15 Vic. c. 52, 32 and 33 Vic. c. 62, and note (3) p. 289, post.
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, (c) 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 (d) (which was formerly always founded on a plaint of trespass quare clausum fregit, entered on the records of the court) (e) 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; [*286] 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 jurisdiction to proceed. (f) 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 latitat, (g) 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. But, as in the common pleas the testatum capias may be sued out upon only a supposed, 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 writ of quo minus, in order to give the court a jurisdiction over pleas between party and party. In which writ (7) 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 [*287] 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 shown 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
(c) Bro. Abr. tit. Jurisdiction. 66. 3 Inst. 27.
(d) Appendix, No. III, § 3.
(e) Trye's Jus Filizar.
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. 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 himself.
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 the defendant, and make him put in substantial sureties for his appearance, called special bail. In order to which, it is required by statute 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 than 401. This statute (without any such intention in the 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 [*288] not be arrested and held to bail thereupon 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: (i) 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 originals, 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. (j) 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.
An arrest must be by corporal seizing or touching the defendant's body; (4) after which the bailiff may justify breaking open the house in which he is (5) 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
(i) Trye's Jus Füizar. 102. Appendix. No. III. 2 3.
(3) Lilly's Pract. Reg. tit ac etiam. Norths Life of Lord Guilford, 99. This work is strongly recommended to the student's perusal.
(4) [But this does not seem to be absolutely necessary, for if a bailiff come into a room and tell the defendant he arrests him, and lock the door, it is sufficient. C. T. Hardw. 301; 2 New, Rep. 211, Bull. N. P. 82. Bare words, however, will not constitute an arrest. 1 Ry. and M. 25. It is sufficient that the officer have the authority, be 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. R. 135), or after it is returnable (2 H. Bia. 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. and A. 743; 1 Chit. Rep. 579, S. C.]
(5) [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 be in the house of another, the bailiff or sheriff 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.]