On mefne Procefs. be fubfcribed on the copy of the faid procefs wherewith the party is to be served, to the intent to warn him to appear at the return thereof, to answer the action against him. Thefe ftatutes have, in great measure, occafioned the practice of outlawing defendants to fall into difufe, as a plaintiff may proceed with lefs expence, and more expedi-: tion, in his action, by not taking out process towards outlawry, than by proceeding with an intention to outlaw, fhould the defendant ftand out to be outlawed, the process. thereto being dilatory and expenfive. But ftill a plaintiff in fome cafes, and particularly if his action is against a defendant who it is apprehended will be litigious, or is difficult to be arrested, and has property wherewith to fatisfy the plaintiff's demand, and all the charges and incidental expences of the outlawry, will find an advantage in this method of proceeding. The aforementioned ftatute of Cha. 2. was of equal fervice to plaintiffs as to defendants, for a plaintiff who chofe to proceed by original, could infert any caufe of perfonal action in the claufe of "ac etiam," in the capias, arreft. the party immmediately, and require bail to the amount of double the fum expreffed therein; but ftill the defendant was fuppofed to be arrested for the trefpafs mentioned in the writ, though, in fact, nó fuch charge could be alledged against him; and not for the debt or damages inferted in the "ac etiam" claufe, the intent of that being nothing more than to fhew the fheriff, to what amount he was to infift upon bail if he arrefted the party. This ftatute of Cha. 2. gave a plaintiff who had an action of debt against a defendant, if he fued by original, an opportunity alfo of avoiding the Fine paid to the king upon fuing out his original writ, in debt, because he could infert the amount thereof in the ac etiam claufe of a capias, and, if the defendant was arrefted, require bail in proportion to his demand; which was a cheaper method of proceeding, evidently more expeditious, and equally anfwered the purpose of fuing out an original in debt; and going on regularly towards outlawing the defendant, unless he was a perfon likely to abfcond or avoid being taken, and had property which the plaintiff could come at to fatisfy his debt by proceeding to outlaw him. For which reason we do not often hear, at this day, of a præcipe quod reddat, in debt; or, of a perfon being outlawed in an action of debt, as that action is generally prosecuted in the King's Bench by bill or latitat, On mefne Process. which pre-fuppofes a bill, and in the Common Pleas by a capias, with an ac etiam in it; and a defendant cannot be outlawed by procefs with ac etiams. Since the ftatute alfo of 12 Geo. I. c. 29. before mentioned, we do not often hear of a defendant being outlawed by a common capias quare claufum fregit; becaufe, if the plaintiff's cause of action does not warrant him to arreft and hold the defendant to bail, he is generally ferved with a copy of the process, with a notice fubfcribed, to appear; and upon no. appearance within * eight days after the return of the process, the plaintiff is at liberty, upon an affidavit made of the process having been duly ferved on the defendant, to enter an appearance for him, and proceed as if he had regularly appeared to the action. This method therefore, in cafes not warranting bail, if the defendant can be met with, being more eafy and expeditious, and attended with little or no expence to the fuitor, compared with proceedings towards outlawry, affords one reafon why outlawry is not often heard of now upon common capias's quare claufum fregit. Another reason alfo is, that should a plaintiff proceed with an intention to outlaw the defendant upon common capias's, and the defendant even not come in till after the exigi facias, he may, notwithstanding, reverse the outlawry had against him, without being compelled to put in bail to the action; fo that the plaintiff, instead of gaining any advantage, in proceeding to outlawry upon common capies's, and not purfuing the line chalked out by the ftatute for his own expedition, is not only put to expence, but is himself the occafion of his own delay, and frequently in a worfe fituation towards recovering his demand than he otherwife might have been, if he had proceeded as the ftatute directs him. For the above reafons, a plaintiff feldom proceeds with a view to outlaw the defendant, unless the cause of action is fuch as to warrant holding him to bail, which must be for actions founded on contract, unlefs by fpecial order of a judge in cafes of torts. And, as the action of debt is not often commenced at this day by a præcipe quod reddat, on account of the fine upon fuing it out, the action of affumpfit is that in which plaintiffs ufually proceed, with a view to outlaw the defendant. * Vide 5 Geo, 3. C, 27. On mefne Procefs. In the King's Bench, as a writ of error brought on a judgment by original there, must be returnable in parliament, and not in the Exchequer Chamber, as where the fuit is commenced by bill, a plaintiff having a juft demand against a litigious and wealthy defendant, who is likely to put off the day of payment as long as he can, by bringing writs of error, has a profpect therefore of getting his debt much earlier, by fuing by original, than by bill in B. R. And, in either court, if the plaintiff's demand amounts to a confiderable fum, or the defendant cannot be eafily caught, or has property which the plaintiff can come at, he may, in the end, reap more advantage, perhaps, by taking out procefs towards outlawry, than by fuing out a common capias quare claufam fregit, or a capias with a claufe ac etiam" in it. of " As the action of affumpfit, where the demand is fufficient to hold to bail, is the action in which plaintiffs in either court ufually proceed with an intention to outlaw the defendant, I fhall fhew the method of commencing and profecuting fuch action, and of outlawing a defendant therein, and of his reverfing fuch outlawry; at the fame time it must be remembered, that the practice and proceedings in another action requiring bail, towards outlawry, would be exactly the fame. The plaintiff's attorney, or fpecial pleader, when the cause of action is above 10l. draws out a præcipe for a fpecial original, which præcipe contains the whole count or declaration, and ought to be drawn up with great accuracy and precifion, as on it all the fubfequent proceedings are built. The defendant's name, his degree, profeffion, or mifmust be ascertained and fet forth according to the ftatute of additions, together with the town or hamlet, place and county, in which he is or was converfant. tery * The præcipe, in an action on the cafe on affumpfit, is to this effect. Middlefex. If A: B. fhall give you fecurity to profecute his fuit, then put by fureties and fafe pledges C. D. late of Westminster, in the county of Middlefex, upholder, that he be before our lord the king, on the morrow of the Holy Trinity, wherefoever our faid On mefne Procefs. lord the king hall then be in England [or if in C. B. fay, "before our juftices at Westminster, on the morrow of the Holy Trinity"] to fhew wherefore Whereas, [fo fet forth, verbatim, the whole count, or declaration] to the damage of the faid A. B. of one hundred pounds, as he faith, &c. E. F. attorney, 1 May, 1780. Returnable, &c. This præcipe must be carried to the curfitor of the proper county, who will thereupon make out the original writ. But in B. R. the præcipe is ufually carried directly to the filazer, who procures the original from the curfitor, and immediately makes out the capias, &c. The curfitor is paid at the rate of 2 s. 6 d. the firft count, and 6 d. for every other count contained in the præcipe, upon making out the original writ. The filazer, who makes out the capias, &c. from the original writ, is alfo paid after the above rate, befides 4 d. for filing the original. If the præcipe is carried to the curfitor, before the effoign day of a term, he will make the original returnable on any return of the precedent term. The original is returned of course thus: Pledges for profecuting, Richard Roe. It has been often queftioned, whether an affidavit was neceffary to be made of the debt, when a plaintiff fues by fpecial original, previous to the iffuing of the procefs. But it has been determined in lord Hardwicke's time, M. 10 Geo. 2, Fownes and Allen, that process of outlawry is not within the ftat. 12 Geo. I. c. 29. fo there is no need of an affidavit, when the plaintiff fues by special original, especially as the 5 Geo. 2. c. 27. f. 5. enacts, "That no fpecial writ, nor any process specially therein expreffing the caufe of ac"tion, fhall be fued forth or iffued from any fuperior court, "where the cause of action fhall not amount to 10%. or "upwards." Since which ftatute, as no special writ can iffue where the cause of action is not above 10 l. it seems, that, before the iffuing of a fpecial writ, no affidavit is neceffary, because a fheriff, if he apprehends the party either * Very often no original writ is made out at all, upon On mefne Process. upon the special capias, alias, or pluries, before he lets him go out of his cuftody, for his own fafety, fhould take bail; and he can eafily know to what amount to take bail, as the whole caufe of action is fpread and fet forth in the writ. Vide the cafe of Cracraft v. Gledowe, Burr. 4 pt. 1482. In Barnes 322, it was held, that on procefs to outlawry, no affidavit for bail is required by statute, or the course of the court. If the plaintiff means to proceed to outlawry, he has no need to wait till the capias is fpent, then to take out an alias, and endeavour to arrest the defendant, and after that a pluries; but he may, for expedition, get them all of the filazer at once (if there is time fince the caufe of action accrued to allow of the proper tefte and return to each writ,) and return them severally of course after this manner : "The within named C. D. is not found in our baili"wick." The answer of The original writ must have fifteen days, at least, between the tefte and return. The capias alfo must have fifteen days between its tefte and return; and fhould regularly bear tefte on the return day of the original: the alias alfo must have the fame number of days, and fhould bear tefte the returnday of the capias; and the pluries capias must have the fame number of days, and fhould bear tefte the return day of the alias; whereas, if a plaintiff fucs by original, and does not mean to proceed to outlawry, the capias may bear teste before the original, and even before the cause of action accrued, fo long as it is actually taken out afterwards; for you cannot have oyer of the copies, fo as to take advantage of it. Barnes 173. And fo held in B. R. East. 18 Geo. 3. Note The proceedings are exactly the fame towards outlawry upon a common capias quare claufum fregit, as on a Special capias. Upon the return of non eft inventus to the pluries capias, process of outlawry begins, which is the writ of exigi facias. In B R. the filozer acts as the exigenter in G. B. the exigenter is a diftinct officer from the filazer. The |