Page images
PDF
EPUB

nunciatorius () and by statute 31 Eliz. c. 3, the notice must also be proclaimed on some sunday before the door of the parish church.

If the defendant disobeys Niis verbal monition, the next process is by writ of attachment, or pone, so called from the words of the writ", “ pone per vadium et falvos plegios, put “ by gage and safe pledges A. B. the defendant, &c.” This is a writ, not issuing 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 sheriff is commanded to attach him, by taking gage, that is, certain of his goods, which he shall forfeit if he doth not appear ? ; or by making him find safe pledges or sureties who shall be amerced in case of his non-appearance h. 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'; 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 onlyforfeits this security, but is moreover to be farther compelled by writ of diftringas k, or distress, infinites which is a subsequent process issuing from the court of common pleas, com manding the sheriff to distrein the defendant from timeto 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!. But now the issues may be sold, if the court shall so direct, in order to defray the reasonable costs of the plaintiffm, In like

c Stiernh. de jure Suecn. 1. 1.6.6. j Append N° 11. $ 1. | Append. N. III. $ 2.

* Append. N° DI. $ 2. # Finch, L. 345. Lord Raym, 278. i Finch. L. 352. Dale. Ther. c. 32.

m Stat. :o Cco. II. C 50. i Finch. I. 305, 352.:,

Xa

manner

manner by the civil law, if the defendant absconds, so that the citation is of no effect, “ mittitur adversarius in pollefionem 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 farther process as nugatory. And besides, upon feodal 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 services. But, in cases 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 case he neglected to appear upon the former process of attachment, or had no substance whereby to be attached; sabjecting his body to imprisonment by the writ of capias ad refpondendum. 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 Marl. bridge, 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 fuit by bringing an original writ of trespass quare claufum fregit, for breaking the plaintiff's close, vi et prmis; which by the old common law fubjected the defend. ant's person to be arrested by writ of capiøs : 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 saying some trouble and expense, in suing out a special original A Ff. 2. 4. 19.

! 3 Rep. 12. 14

adapted

adapted 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 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 Theriff 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 pri. vate seal of that court, and not under the great feal 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 orderly 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 abfcond: 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 regui. larity. When this capias is delivered to the sheriff, he by his under-lheriff 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

p Append. NO III. $ 2.
X 3

committed

committed and the action is laid) cannot find the defendant [ 283 , in his jurisdiction, he returns that he is not found, non eft in

ventus, in his bailiwick : whereupon another writ iffues, called a testatum capias”, 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, teltatum eft, that the defendant lurks or wanders in bis 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 teftatum ca. pias at the first; fupposing not only an original, but also a former capins, to have been granted, 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 confiftit aequitas.

. 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 for-
mers: only after these words “ we command you,” this
clause is inserted, “as we have formerly," or, “ as we have
often, commanded you ;~' ficut alias,” or, ficut pluries,
praecipimus." And, if a non est inventus is returned upon all
of them, then a writ of exigent or exigi facias may be filed
out', which requires the sheriff to cause the defendant to be
proclaimed, required, or exacted, in five county courts suc-
ceffively, to render himself; and if he does, then to take
him, as in a capias : but if he does not appear, and is re-
turned quinto exactus, he shall then be outlawed by the coro-
ners of the county. Also by statutes 6 Hen. VIII. C. 4. and
31 Eliz. c. 3. whether the defendant dwells within the fame
... Append. N° III. $?. Ibide

Ibid.

or another county than that wherein the exigent is sued out, a writ of proclamation shall issue out at the same time with [ 284 1 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 knowlege, 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'. 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", 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 attorneys, till permitted by statute 4 & 5 W. & M. C. 18.) and any plausiblc cause, however Night, 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 mny also (and frequently do ) proceed in certain causes, particularly in actions of ejectment and trefpass, by original writ, with attachment and capias thereon y; returnable, not at Westminster, where the common pleas are

r Append. No III. $ 2. i Co. Litt. 128. vi Sid. 159. V Append. NO III, § 2,

W 2 Roll. Rep. 490. Regul, C. B.
A. D. 1654. C. 13.

* Cro. Jac. 616. Salk. 496.

Y Append. No II şi,
X 4

now

« PreviousContinue »