: now fixed in confequence of magna carta, but " ubicunque "fuerimus in Anglia," wherefoever the king shall then be in [285] England; the king's bench being removable into any part of England at the pleasure and discretion of the crown. But the more ufual method of proceeding therein is without any original, but by a peculiar fpecies of procefs entitled a bill of Middlefex and therefore fo entitled, because the court now fits in that county; for if it fate in Kent, it would then be a bill of Kent. For though, as the justices of this court have, by it's fundamental conftitution, power to determine all offences and trefpaffes, by the common law and cuftom of the realm, it needed no original writ from the crown to give it cognizance of any mifdemefnor in the county wherein it refides; yet, as by this court's coming into any county, it immediately superfeded the ordinary administration of justice by the general commiffions of eyre and of oyer and terminer, a procefs of it's own became neceffary within the county where it fate, to bring in fuch perfons as were accused of committing any forcible injury. The bill of Middlesex *, (which was formerly always founded on a plaint of trespass quare claufum fregit, entered on the records of the court d) is a kind of capias, directed to the fheriff 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 trefpafs. For this accufation of trespass it is, that gives the court of king's bench jurifdiction in other civil caufes, as was formerly obferved; fince, when once the defendant is taken into cuftody of the marshal, or prifon-keeper of this court, for the supposed trespass, he, being then a prifoner of this court, may here be profecuted for any other fpecies of injury. Yet, in order to found this jurifdiction, it is not neceffary that the defendant be actually the marshal's prifoner; for, as foon as he appears, or puts z Thus, when the court fate at Oxford, by reafon of the plague, Mich. 1665. the process was by bill of Oxfordshire. Trye's Jus Filizar. 101. • Bro. Abr. 1. oyer and determiner. 8. b Bro. Abr. t. jurisdition. 66. 3 Inft. 27. c Append. N° III. § 3. in bail, to the process, he is deemed by so doing to be in such cuftody of the marshal, as will give the court a jurisdiction to proceed". And, upon these accounts, in the bill or process a complaint of trefpafs is always fuggested, whatever else [286] may be the real caufe of action. This bill of Middlesex muft be ferved on the defendant by the sheriff, if he finds him in that county; but, if he returns "non eft inventus," then there iffues out a writ of latitat f, to the fheriff of another county, as Berks: which is fimilar to the teftatum capias in the common pleas, and recites the bill of Middlesex and the proceedings thereon, and that it is teftified that the defendant "latitat et difcurrit," lurks and wanders about in Berks; and therefore commands the fheriff to take him, and have his body in court on the day of the return. But, as in the common pleas the teftatum capias may be fued out upon only a fuppofed, and not an actual, preceding capias; so in the king's bench a latitat is ufually fued out upon only a fuppofed, and not an actual, bill of Middlefex. So that, in fact, a latitat may be called the firft procefs in the court of king's bench, as the teftatum 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 fuffices; fo in the king's bench likewife, if he lives in Middlefex, the process must ftill be by bill of Middlesex only. IN the exchequer the first procefs is by writ of quo minus, in order to give the court a jurifdiction over pleas between party and party. In which write 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 fufficiens exiflit, by which he is the lefs 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 fet out at firft, in the commencement of a fuit, in order to entitle the two courts * 4 Inft. 72. f Append. No III. § 3. 8 Ibid. § 4. of of king's bench and exchequer to hold plea in caufes between subject and subject, which by the original conftitution of Weftminster-hall they were not empowered to do. Afterwards, when the cause is once drawn into the refpective courts, the method of pursuing it is pretty much the fame in all of them. [287] IF the sheriff has found the defendant upon any of the former writs, the capias latitat, &c. he was antiently obliged to take him into cuftody, in order to produce him in court upon the return, however fmall and minute the cause of action might be. For, not having obeyed the original fummons, he had thewn a contempt of the court, and was no longer to be trufted at large. But when the fummons fell into difufe, 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 cafes by the gradual indulgence of the courts (at length authorized by ftatute 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 fheriff or proper officer can now only perfonally ferve the defendant with the copy of the writ or procefs, and with notice in writing to appear by his attorney in court to defend this action; which in effect reduces it to a mere fummons. And if the defendant thinks proper to appear upon this notice, his appearance is recorded, and he puts in fureties for his future attendance and obedience; which fureties are called common bail, being the fame two imaginary persons that were pledges for the plaintiff's profecution, John Doe and Richard Roe. Or, if the defendant does not appear upon the return of the writ, or within four (or in fome cafes, eight) days after (1), the plaintiff may (1) In all cafes where the defendant is ferved 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, exclufive of the return day; and if the last of the eight days is a funday, he has all the next day. Cromp. Prac. 48, 3 Burr. 56. enter 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 affert upon oath, that the cause of action amounts to ten pounds or upwards(2), then he may arreft the defendant, and make him put in fubftantial fureties for his appearance, called Special bail. In order to which, it is required by statute 13 Car. II. ft. 2. c. 2. that the true caufe of action should be expreffed in the body of the writ or procefs: elfe no fecurity can be taken in a greater fum than 40. This ftatute (without any fuch intention in the makers) had like to have oufted the king's bench of all it's jurisdiction over civil injuries without force; for, as [ 288 ] the bill of Middlesex was framed only for actions of trefpafs, a defendant could 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 devifed a method of adding what is called a claufe of ac etiam to the ufual complaint of trefpafs: the bill of Middlefex commanding the defendant to be brought in to answer the plaintiff of a plea of trefpafs, and also to a bill of debt f: the complaint of trefpafs giving cognizance to the court, and that of debt authorizing the arreft. In imitation of which, lord chief juftice North a few years afterwards, in order to fave the fuitors of his court the trouble and expenfe of fuing out special originals, directed that in the common pleas, befides the usual Trye's Jus Filizar. 102. Append. No III. § 3. (2) This affidavit must be certain and pofitive; for an affida. vit made upon belief, or with a reference to fomething else, as where the plaintiff fwears the defendant is indebted to him in ten pounds or upwards, as appears by his books, or by a bill delivered, will not be fufficient, unless the plaintiff is an executor, adminiftrator, or affignee; for then, from the nature of his fituation, he cannot fwear more pofitively than from belief, or from a reference to the accounts of others. 1 Sellon's Prac. 112. complaint complaint of breaking the plaintiff's clofe, a claufe of ac etiam might be alfo added to the writ of capias, containing the true caufe of action; as, "that the faid Charles the de"fendant may answer to the plaintiff of a plea of trespass in "breaking his clofe: and alfo, ac etiam, may anfwer him, "according to the cuftom of the court, in a certain plea of "trefpafs upon the cafe, upon promifes, to the value of "twenty pounds, &c." The fum fworn to by the plaintiff is marked upon the back of the writ; and the fheriff, or his officer the bailiff, is then obliged actually to arrest or take into custody the body of the defendant, and, having fo done, to return the writ with a cepi corpus endorsed thereon. AN arreft must be by corporal feifing or touching the defendant's body; after which the bailiff may justify breaking open the house in which he is, to take him; otherwise he has no fuch power; but must watch his opportunity to arrest him. For every man's houfe is looked upon by the law to be his castle of defence and afylum, wherein he fhould fuffer no violence (3). Which principle is carried fo far in the civil law, that for the most part not so much as a common citation 8 Lilly pract. Reg. t. ac etiam. North's life of lord Guilford. 99. (3) A bailiff before he has made the arreft cannot break open an outer door of a house; but if he enters 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. Coup. 1. But if the whole house be let in lodgings, as each lodging is then confidered a dwelling house, in which burglary may be ftated to have been committed, fo in that cafe I conceive the door of each apartment would be confidered an outer door, which could not be legally broken open to execute an arreft. Corp. 2. It is not neceffary that the arreft should be made by the hand of the bailiff, nor that he should be actually in fight; yet where an arrest is made by his affiftant or follower, the bailiff ought to be fo near as to be confidered as acting in it. Cowp. 65. or |