PROCEEDINGS IN THIS COURT.

THERE are two ways to proceed in this court, the one Original writ. by the special original, the other by bill: if the debt be large, and the plaintiff has cause to think the defendant will bring a writ of error after judgment, the best method is to bring the action by original writ, because the defendant will thereby be precluded from bringing a writ of error (except in parliament). This writ issues out of the court of Chancery, and is a mandatory letter from the king, under the great seal, and directed to the sheriff of the county wherein the injury is supposed to be, requiring him to command the defendant either to do justice to the complainant, or else to appear in court, and answer the accusation against him; whatever the sheriff does, he must certify to the court, together with the writ itself.

writ.

These writs are either optional or peremptory; or, in Either opthe language of the law, they are either a præcipe, or a si te fecerit securum. The præcipe is in the alternative, emptory. "commanding the defendant to do the thing required, or "shew the reason why he hath not done it." The use of The use of the this writ is where something certain is demanded by the plaintiff, which is in the power of the defendant himself to perform; "as to restore the possession of land, to pay "a certain liquidated debt, to perform a specific cove"nant, to render an account," and the like; in all which cases the præcipe is drawn up in the form of a command to do thus, or shew cause to the contrary; giving the defendant his choice to redress the injury, or stand the suit. The other is called si te fecerit securum; from the words Si te fecerit of the writ, which direct the sheriff" to cause the defen- securum. "dant to appear in court, without any option given to him,

"provided the plaintiff gives the sheriff security effec

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tually to prosecute his claim." This writ is in use, Where this where nothing is specifically demanded, but only a satis- writ is in use. faction in general, to obtain which, and administer complete redress, the intervention of some judicature is necessary such are writs of trespass, or on the case, wherein no debt or other specific thing is sued for in certain, but only damages to be assessed by a jury. For this end, the defendant is immediately called to appear in court, provided the plaintiff gives good security of prosecuting his claim. Both writs are tested or witnessed in the king's own name: "Witness ourselves at Westminster, or where"ever the Chancery may be held."

Security.

Return-day.

Cannot issue

The security here spoken of, to be given by the plaintiff, is common to both writs, though it gives denomination only to the latter. The whole of it is at present become a mere matter of form; and John Doe and Richard Roe are always returned as pledges for this purpose. The use of them was to answer for the plaintiff, who in case he brought an action without cause, or failed in the prosecution of it when brought, was liable to an amercement from the crown, for raising a false accusation; and so the form of the judgment still is. Finch, 189, 252.

The day on which the defendant is ordered to appear in court, and in which the sheriff is to bring in the writ, is called the return of the writ; it being then returned by him to the King's Bench at Westminster, and made returnable in term, at the distance of at least fifteen days from the date or teste, that the defendant may have time to come up to Westminster, even from the most remote parts of the kingdom.

This writ cannot issue unless the cause of action unless for 101. amounts to ten pounds, or above, on pain of ten pounds, and the proceedings thereon to be void, 5 Geo. 2. c. 27. 21 Geo. 2. c. 3.

If plaintiff proceed by special origi

nal.

Proceeding by bill.

Filing the bill,

And by rule, M. 23 Geo. 3. if the plaintiff proceed by special original, and recover less than 50l. he is only to have the same costs as if he had proceeded by bill: except in such actions in which he could not proceed by bill, or in which any defendant shall be actually outlawed.

A bill, is a shewing in writing of the cause of complaint by the plaintiff against the defendant, wherein the party is supposed to have received some wrong, and it is the ground-work of the cause; it need not be filed in the office (unless the defendant have privilege, or be in actual custody of the marshal or sheriff;) but if he be in actual custody, then it must be filed to warrant the declaration; which is no more than a copy of it, or defendant will be entitled to his discharge.

The filing the bill is the ground-work of the cause ground-work depending, and is as the original in the Common Pleas, which gives the court jurisdiction to hold plea.

of the cause.

Of the bill of
Middlesex.

If the defendant is not in custody, the ordinary course of proceeding is by process, intituled a bill of Middlesex, being so called because the court now sits in that county.

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The bill of Middlesex,(a) (which was formerly founded on a plaint of trespass quare clausum fregit, entered on the records of the court,) is a kind of capias directed to the sheriff of that county," and commanding him to take "the defendant, and have him before the king at Westminster, on a day prefixed, to answer to the plaintiff of "a plea of trespass;" for the accusation of trespass gives the court jurisdiction, whatever else may be the real cause of action. It must be personally served on the defendant, if he can be found in that county; but if not, then there issues out a writ of latitat to the sheriff of another Latitat. county (as Oxon,) which recites the bill of Middlesex and proceedings thereon thus: " And that it is testified that "the defendant," " latitat & discurrit," " lurks and wan"dere about in Oxfordshire; and therefore commands the "sheriff to take him, and have his body in court on the day "of the return." (b) But ifthe defendant lives in any other county, the latitat is the first process which issues. to take him, and may be sued out upon a supposed, and not an actual bill of Middlesex issued prior; a notice in writing being written at the bottom of such writ or process directed to the defendant to appear by his attorney in court, to defend the action, to which the defendant may appear or not; which is recorded. If he ap- Appearance. pears, he finds securities for his future attendance and obedience, called common bail, being the same persons that are pledges for the plaintiff's prosecution, viz. John

fault.

Doe and Richard Roe. If the defendant does not appear Plaintiff may upon the return, or in eight days after, the plaintiff may appear in deenter an appearance for him, and proceed thereupon, as if the defendant had done it himself. 12 Geo. 1. c. 29. 21 Geo. 2. c. 23.

But if the defendant is held to bail, there must be

If defendant

be held to bail.

filed.

(a) Formerly this process issued upon the bill being Formerly profiled with the name of the chief clerk, and was called a cess issued on bill of that county wherein the court then resided, be- bill being cause the marshall being an officer of the king's household (in whose custody the defendant was supposed to be,) was then in that county. It is called a bill of Middlesex to distinguish it from the original bill, or declara

tion.

(b) This writ was called a testatum, but gained afterwards the name of latitat, from that word therein cum testatum est quod latitat, &c. and is in nature of a testatum

When de

rested.

added in these writs 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 in a plea of trespass, "and also to a bill to be exhibited "against him for one hundred pounds debt," or upon "promises," as the case is, the complaint of trespass giving cognizance to the court, and that of debt authorizing the arrest. Stat. 13 Car. 2. stat. 2. c. 2.

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When the defendant is regularly arrested, he must fendant is ar- either go to prison for safe custody, or put in special bail to the sheriff; the intent of the arrest being only to compel an appearance in court at the return of the writ: that purpose is equally answered, whether the sheriff detains his person, or takes sufficient security for his appearance, called bail; and he is supposed to continue in the custody of the bail, instead of going to gaol.

Deposit.

Bail.

In London and Middlesex, but if in any other county, six days.

If the bail to

But now, by stat. 43 Geo. 3. c. 2. instead of giving bail, he may deposit with the sheriff or his officer, the sum indorsed on the writ, with 101. in addition, to answer the costs, and such further sum, if any, as shall have been paid for the king's fine on any original writ, and thereupon he shall be discharged, which the sheriff is to pay into court, and if the defendant perfect his bail in due time, the sum shall be by the court ordered to be repaid, on motion. Sect. 2.

Upon the return of the writ, or within four days after, the defendant must appear according to the exigency of the writ.h This appearance is effected by putting in, and justifying bail, to the action. If this be not done, and the bail that were taken by the sheriff below, are responsible persons, the plaintiff may take an assignment from the sheriff of the bail-bond (under the stat. 4th and 5th Ann. c. 16.), and bring an action thereupon against the the sheriff be sheriff's bail; but if the bail, so accepted by the sheriff, be insolvent persons, the plaintiff may proceed against the sheriff himself; by calling upon him first, to return the writ, (if not already done,) and afterwards to bring in the body of the defendant. And, if the sheriff does not then cause sufficient bail to be perfected, (or surrender him on the fourth or sixth day mentioned in the latter rule,) he will himself be responsible to the plaintiff, by an attachment, for not obeying it.

insolvent.

The bail-must be put in either in open court, or before one of the judges thereof, or else in the country before a commissioner appointed by stat. 4 & 5 W. & M. c. 4. and must be transmitted to the court and filed. These bail,

who must at least be two in number, if the action be by bill, must enter into a recognizance before such judge or commissioner to this effect," that if the defendant be "condemned in the action, he shall pay the costs and con"demnation, or render himself a prisoner to the cus"tody of the marshal, or that they will do it for him:" which recognizance is transmitted to the court on a slip of parchment, intituled a bail-piece: if by original, the If by original. recognizance is in a certain sum, being double(a) the debt sworn to: and, if required, the bail must justify themselves in court, (or before the commissioner in the country, by affidavit,)" by swearing themselves house-keepers, and "each of them to be worth double the sum for which they "are bail, after payment of all their debts."

They may now discharge themselves by surrender May discharge without justifying, after exception, or before the expira- themselves. tion of the rule to bring in the body, or after the bond is assigned, or on the return-day of the first sci. fa. if returned scire feci, or on the return-day of the second sci. fa. if the first be returned nihil. But such render is not complete till an exoneretur is entered on the bail-piece; see title Surrender. In an action on the recognizance, plaintiff is to surrender in eight days in full term next after the return of the writ of latitat, &c.

When the defendant has filed common bail, or put in Declaration. special bail, as the case requires, the next proceeding on the part of the plaintiff is, to declare against him (if he has not done it previous, by filing the declaration de bene esse, on the return-day, which he may do by R. T. 22 Geo. 3) by delivering a declaration, which is the complaint, being an amplification or exposition of the original writ (if the plaintiff proceeds by original) upon which his action is founded; but the declaration upon the bill is a mere copy of it: when the defendant is brought into court, if the action is by bill, the plaintiff may declare in whatever action, or charge him with whatever injury he thinks proper (unless he has held him to bail by a special ac-etiam, which the plaintiff is then bound to pursue.)

This declaration concludes with these words " and Conclusion of "therefore he brings his suit, &c." by which word suit was declaration. anciently understood the witnesses or followers of the

(a) But by rule, M. 51 Geo. 3. in bailable causes for any sum exceeding 10001. it is sufficient for the bail above to justify in 10001. beyond the sum sworn to.