280 nunciatorius) and by ftatute 31 Eliz. c. 3. the notice must alfo be proclaimed on fome funday before the door of the parish church.

If the defendant difobeys this verbal monition, the next procefs is by writ of attachment, or pone, fo called from the words of the writ', "pone per vadium et falvos plegios, put "by gage and fafe pledges A. B. the defendant, &c." This is a writ, not iffuing out of chancery, but out of the court of common pleas, being grounded on the non-appearance of the defendant at the return of the original writ; and thereby the Theriff is commanded to attach him, by taking gage, that is, certain of his goods, which he fhall forfeit if he doth not appear; or by making him find fafe pledges or fureties who fhall be amerced in cafe of his non-appearance". This is also the first and immediate procefs, without any previous summons, upon actions of trespass vi et armis, or for other injuries, which though not forcible are yet trefpaffes against the peace, as deceit and confpiracy; 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.

If, after attachment, the defendant neglects to appear, he not only forfeits this fecurity, but is moreover to be farther compel led by writ of distringas, or diftrefs, infinite; which is a fubfequent process iffuing from the court of common pleas, com manding the sheriff to distre in the defendant from time to time, and continually afterwards, by taking his goods and the profits of his lands, which are called iffues, and which by the common law he forfeits to the king if he doth not appear 1. But now the issues may be fold, if the court fhall fo direct, in order to defray the reasonable cofts of the plaintiff". In like

e Stiernh. de jure Sueon. I. 1. c. 6. f Append. No III. § 2.

g Finch. L. 345. Lord Raym. 278.

h Dalt. fher. c. 32.

i Finch. L 305 353

j Append N° II. § 1.

k Append N° III. § 2.

1 Finch. L. 352.

m Stat. 1o Gco. II. c 50.

X 2

manner

manner by the civil law, if the defendant abfconds, so that the citation is of no effect, "mittitur adverfarius in poffeffio"nem bonorum ejus"."

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 fubftance, being gradually stripped of it all by repeated diftreffes, till he rendered obedience to the king's writ; and, if he had no fubftance, the law held him incapable of making satisfaction, and therefore looked upon all farther procefs as nugatory. And befides, upon feodal principles, the person of a feudatory was not liable to be attached for injuries merely civil, left thereby his lord should be deprived of his personal services. But, in cafes of injury accompanied with force, the law, to punish the breach of the peace and prevent it's disturbance for the future, provided also a process against the defendant's perfon in cafe he neglected to appear upon the former process of attachment, or had no fubstance whereby to be attached; fabjecting his body to imprisonment by the writ of capias ad refpondendum °. But this immunity of the defendant's perfon, in cafe of peaceable though fraudulent injuries, producing great contempt of the law in indigent wrongdoers, a capias was also allowed, to arreft the perfon, in actions of account, though no breach of the peace be fuggefted, by the ftatutes of Marlbridge, 52 Hen. III. c. 23. and Weftm. 2. 13 Edw. I. c. 11: in actions of debt and detinue, by ftatute 25 Edw. III. c. 17. and in all actions on the cafe, by ftatute 19 Hen. VII. c. 9. Before which last statute a practice had been introduced of commencing the fuit by bringing an original writ of trespass quare claufum fregit, for breaking the plaintiff's close, vi et armis; which by the old common law fubjected the defendant's perfon to be arrested by writ of capiass and then afterwards, by connivance of the court, the plaintiff might proceed to profecute for any other lefs forcible injury. This practice (through cuftom rather than neceffity, and for saving fome trouble and expenfe, in fuing out a special original ! 3 Rep. 12.

n Ff. 2. 4. 19.

14

adapted

adapted to the particular injury) still continues in almost all cafes, 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 fummoned or attached makes default, and neglects to appear; or if the theriff returns a nihil, or that the defendant hath nothing whereby he may be fummoned, attached, or diftreined; the capias now ufually iffues: 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 trespasfs, &c. as the cafe may be. This writ, and all others fubfequent to the original writ, not iffuing out of chancery but from the court into which the original was returnable, and being grounded on what has paffed in that court in confequence of the sheriff's return, are called judicial, not original writs; they iffue under the private feal of that court, and not under the great feal of England; and are tefte'd, not in the king's name, but in that of the chief (or, if there be no chief, of the fenior) juftice only. And these several writs being grounded on the sheriff's return, must respectively bear date the fame day on which the writ immediately preceding was returnable.

THIS is the regular and orderly method of procefs. But it is now ufual in practice, to fue out the capias in the first inftance, upon a fuppofed return of the fheriff; efpecially if it be fufpected that the defendant, upon notice of the action, will abfcond: and afterwards a fictitious original is drawn up, if the party is called upon fo to do, with a proper return thereupon, in order to give the proceedings a colour of regularity. When this capias is delivered to the fheriff, he by his under-fheriff 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 fuppofed to be

committed and the action is laid) cannot find the defendant [283] in his jurifdiction, he returns that he is not found, non eft inventus, in his bailiwick: whereupon another writ iffues, called a teftatum capias, directed to the sheriff of the county where the defendant is fuppofed to refide, as of Berkshire, reciting the former writ, and that it is teftified, testatum eft, that the defendant lurks or wanders in bis bailiwick, wherefore he is commanded to take him, as in the former capias. But here alfo, when the action is brought in one county and the defendant lives in another, it is ufual, for faving trouble, time, and expenfe, to make out a teftatum capias at the first; fuppofing 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 acquiefced in and is now become the settled practice; being one among many inftances to illuftrate that maxim of law, that in fictione juris confiftit aequitas.

BUT where a defendant abfconds, and the plaintiff would proceed to an outlawry against him, an original writ must then be fued 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 eft inventus, there iffues out an alias writ, and after that a pluries, to the fame effect as the former: only after these words "we command you," this claufe is inferted, "as we have formerly," or, " as we have ❝ often, commanded you ;—“ ficut alias," or, "ficut pluries, "praecipimus." And, if a non eft inventus is returned upon all of them, then a writ of exigent or exigi facias may be fued out', which requires the fheriff to caufe the defendant to be proclaimed, required, or exacted, in five county courts fucceffively, 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 fhall then be outlawed by the coroners of the county. Alfo by ftatutes 6 Hen. VIII. c. 4. and 31 Eliz. c, 3. whether the defendant dwells within the fame

Append. N III. § 2,

• Ibid,

$ Ibid.

or

or another county than that wherein the exigent is fued out, a writ of proclamation shall issue out at the same time with [ 284 ] the exigent, commanding the sheriff of the county, wherein the defendant dwells, to make three proclamations thereof in places the most notorious, and moft likely to come to his knowlege, a month before the outlawry fhall 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 fome time after the conqueft, 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. And fince his days, by a variety of statutes (the fame 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", and committed till the outlawry be reversed. Which reverfal may be had by the defendant's appearing perfonally in court or by attorney "; (though in the king's bench he could not appear by attorney*, till permitted by statute 4 & 5 W. & M. c. 18.) and any plaufible caufe, however flight, will in general be fufficient to reverse it, it being confidered only as a process to compel an appearance. But then the defendant muft pay full costs, and put the plaintiff in the fame condition, as if he had ap peared 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 trefpafs, by original writ, with attachment and capias thereony; returnable, not at Westminster, where the common pleas are

f Append. N° III. § 2.

t Co. Litt. 128.

V 1 Sid. 159.

Append. No III, § 2.

w 2 Roll. Rep. 490. Regul. C. B. A. D. 1654. c. 13.

x Cro. Jac. 616. Salk. 496.

y Append. No IL § 1.

X 4

now