defendant, ought to be signed by

azers of this court, before appear

according to the course of this court. R. E. 31 Car. 2. ance, by the

How to proceed.

If the defendant is to be arrested, prepare affidavit of the debt, engross it on a 2s. 6d. stampt paper, and it may be sworn either before a judge of this court or the (a) filazer then.

filacer.

Prepare a præcipe, for the original writ, which is to In common contain the whole count or declaration, in which must be assumpsit.. set forth the defendant's estate, degree, or mystery, and

the town, or hamlet, or place, and county, where he is, or

was conversant.

Middlesex (ss) If A. B. make you secure, &c. then put Præcipe for &c. J. D. late of Westminster in the said county, yeoman, an original in that he be before us on the morrow of All Souls, where- assumpsit. soever, &c. to shew for that whereas (here set forth the whole count or declaration and conclude thus): To the said A. B. his damages of 691. as is said, &c.

This is done on paper without a stamp, and taken to the filazer, who will make out the special capias thereon, to the sheriff of the county where defendant is to be met with. But mostly, for expedition sake, this is done by the attorney himself; pay him 5s. 4d. for the first count, and ls. for every other; sealing 7d.

George the third, &c. To the sheriff of Middlesex, Special capias greeting: We command you, that you take J. D. late of thereon. Westminster, in your county, yeoman, if he be found in

your bailiwick, and him safely keep, so that you have There must his body before us on the morrow of All Souls, where- be a memosoever we shall then be in England, to answer A. B. in randum or a plea, for that whereas, (to the end of the præcipe,) to warrant on a 5s. stamp the said A. B. his damage of 691. as it is said; and have filed with the there this writ. Witness, Edward Lord Ellenborough, filazer.

(a) A special capias issued upon an affidavit sworn at the Bill of Middlesex Office, is irregular; but if the defendant be arrested upon it, and put in special bail, he thereby waives their regularity, Dalton v. Barnes, 1 Maule and Selw. 230.

As to the teste.

As to teste.

takes care

of this.

K. L. attorney.

Bail for 641. by affidavit filed.

Kenyon.

There are many notes in the old books respecting the teste of the original and capias; and there can be no doubt but that they both may be returnable the same day, unless you proceed to an outlawry,) and that the teste of the capias may be the last day of the preceding term, (though the cause of action accrued in the vaca tiou,) otherwise in a short vacation, an original could not be purchased; and every capias, alias, and pluries, must have fifteen days between the teste and return of each; and the morrow of the Ascension shall be a good return, notwithstanding there be not fifteen days between the fourth day of the said return, and the essoign day of the morrow of the Holy Trinity. 16 Car. 1. c. 6. 8. 7.

The original writ may be tested in vacation, as well as in term time. Sty. Rep. 402. But on a Sunday or The cursitor other dies non juridicus, it should, however, be always tested after the cause of action accrued, 2 Burr. 967.; and be made returnable in term time ubicunque, &c. if plaintiff means to proceed to outlawry.-If not, the capias may be tested before the original, and even before the cause of action accrued, provided it be ac tually taken out afterwards, for no error can be assigned mesne process. 3 Wils. 344. The original must have fifteen days between the teste and return. (b)

Fines to the king.

on

Pay on original writs, where the damages exceed 401. a fine to the king, in the following proportions.

From 401. to 661. 13s. 4d. i. e. 100 marks
From 100 marks to 1001.

£ 8. d.

0 6 8

0 10 0

0 13 4

From 1331. 6s. 8d. to 1661. 13s. 4d.

0 16 8

From 1001. to 200 marks

(a) If defendant is not to be arrested but served, the usual notice must be put at the end of the capias to appear, stating the day of the month as in other process.

(b) These writs must be returnable in the same, or the next term, for where a term intervenes between the teste and return of the capias, it is null and void. 2 Black. Rep. 846.

From 1661, 13s. 4d. to 2001.

And for every 661. 13s. 4d. more

And for every 1001. more

0 10 0

Every 1001. pays 10s, fine, R. H. 6 W. & M.

Middlesex (ss) Command A. C. late of Westminster, Præcipe for in the said county, merchant, that justly, &c. he render an original in to J. B. 1001. of lawful money of Great Britain, which debt. he owes to, and unjustly detains from him, as it is said,

&c. and unless, &c.

George the third, &c. to the sheriff of Middlesex, Capias theregreeting: We command you, that you take A. C. late of on. Westminster in your county, merchant, if he be found in your bailiwick, and him safely keep, so that you have his body before us on the morrow of All Souls, where

soever we shall then be in England, to answer J. B. in The penalty a plea, that he render to him 1001. of lawful money of of the bond. Great Britain, which he owes to and unjustly detains from him, as is said; and have there this writ. Witness,

&c. Kenyon.

If it be at the suit of an executor or administrator, leave out the words, owes to," and say,

detains."

unjustly

If the defendant cannot be taken on the capias, plain- Alias and tiff may sue out an alias, and after that a pluries; only pluries. adding to the alias" as formerly we have commanded

"you;" to the pluries "as oftentimes we have commanded

66

you."

If the defendant cannot be found in the county where Testatum. the first writ was issued, or where you intend trying the cause, then sue out a testatum capias against him into Testatum that county where he is to be met with, directed to that part. sheriff, and after the words, " to the said A. B. his da

mage of 1001. as is said," add these, " And our sheriff “of Middlesex, at a certain day now past, returned to us, "that the said C. was not found in his bailiwick, whereas "it is testified in our same court before us, that the said "C. lurks and wanders up and down in your county; "and have there this writ. Witness, &c."

The teste of the alias is on the quarto die post of the Teste of the return of the capias, and the teste of the pluries, is on the alias and pluquarto die post of the alias.

ries,

And N. B. the testatum may be had in the first instance, Testatum in without really suing out the capias, but you pay the fila- the first inzer for it, who ought to make it out, to warrant the tes- stance. tatum.

These writs, when sealed, are taken to the sheriffs' office (if bailable) for warrants thereon, for which pay 2s. 6d. officer for arrest, 10s. 6d. in town, country 11. Is.

How to appear (if no bail required.)

The appearance is to be entered in eight days after the quarto die post of the return, and filed with the filazer, for which pay 3s. 6d. and a memorandum or warrant on a 5s. stamp, is to be filed at the same time. (a)

Middlesex (88) Appearance for A. C. at the suit of J. B. to a capias, returnable, &c.

J. B. attorney.

If the defendant be served with an alias or pluries, then he is to enter his appearance in eight days next after the quarto die post of the return; if not, the plaintiff may then enter an appearance according to the statute, on an affidavit of the service; stating that the defendant was personally served on such a day with a true copy of a writ of special to leave it with the sheriff for a return. As soon as the capias, or alias or pluries, special capias, (as the case may be,) issued out of and under the seal of this honourable court, returnable on, &c. wheresoever the king should then be in England, under which copy was written an English note to the defendant, of the intent of such service, pursuant to the statute in that case made and provided.

How to appear if Special Bail required.

If the action requires special bail, and the defendant be arrested in London or Middlesex, the defendant must put in his bail before a judge within four days after the quarto die post of the return; if he is arrested in any other county, then within six days after the quarto die post of

the return.

If either the fourth or sixth day fall on a Sunday, the defendant has all the Monday following to put in bail. N. on R. M. 8 Ann. Reg. 1.

If the writ be returnable on any other return than the

(a) An additional 6d. is paid for every other defendant

to the filazer.

first, the defendant has, in town causes, four days after the quarto die post of that return, exclusive of the one day to put in his bail; if the arrest be in any other county, six days after the quarto die post of that return.

Bail were not put in till two days after the quarto die If action by post of the second return of the term; plaintiff assigned original, dethe bond. Motion to set aside the proceedings, on the fendant has ground that he had four days after the quarto die post to four days af ter the quarto put in bail. The court held, that by original, the defen- die post to put dant had eight days from the return of the writ, (which in bail. is four days from the quarto die post,) and a case was cited by the master, of Brownell v. Taylor, M. 6 Geo. 3. Rule absolute. Frampton v. Barber, 4 Term Rep. 377.

Bail by original is to be put in, in the county where How to put in the capias issues; for which purpose apply to the filazer bail, for a short copy of the capias, and sum sworn to, then make a note of the names of plaintiff and defendant, and also the names and additions of the bail, on a slip of paper thus:

(to wit) Special capias into S. against C D. Special bailats. A. B. returnable on, &c. damages

The bail are

M. N. attorney (or agent.)

1.

I. K. of, &c.
and

G. H. of, &c.

Each of the bail in 1.

Take the bail with the filazer (a) to a judge's chambers, (in term time he attends there regularly,) who will take their recognizance in double the sum sworn to, and pay him 17s. If sent from the country with affidavit of the due taking and the affidavit of justification take the bail-piece to the judge's chamber, to be allowed, pay 2s. and then take same and warrant annexed to the filazer, aud file same with him; pay 17s.

piece,

A memo randum or warrant is to be delivered on a 5s. stamp for defendant,

Give notice to the plaintiff's attorney, the same as in Notice of bail, common cases, only say, put in with the filazer, before the

Honourable Mr. Justice

at his chambers in Serjeant's Inn, Chancery Lane, London, and the names are,

&c.

Where the defendant was arrested on a testatum capias

(a) The filazer for Essex and Monmouthshire, Andrew Edge, esq. All other counties, the Hon. George Kenyon.