Page images

On mesne Process.

be subscribed on the copy of the said process 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.

These statutes have, in great measure, occasioned the practice of outlawing desendants to sall into disuse', as a plaintiff may proceed with less expence, and more expedition, in his action, by not taking out process towards outlawry, than by proceeding with an intention to outlaw, should the defendant stand out to be outlawed, the process thereto being dilatory and expensive. But still a plaintiff in some casts, 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 satisfy 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 statute of Cha. 2. was of equal service to plaintiffs as to desendants, for a plaintiff who chose to proceed by original, could insert any cause of personal action in the clause of " ac etiam," in the capias, arrest the party immmediately, and require bail to the amount of double the sum expressed therein; but still the desendant was supposed to be arrested for the trespass mentioned in the writ, though, in sact, no such charge could be alledged against him; and not for the debt or damages inserted in the "ac etiam" clause, the intent of that being nothing more than to shew the sheriff, to what amount he was to insist upon bail if he arrested the party.

This statute of Cha. 2. gave a plaintiff who had an. action of debt against a desendant, if he sued by original, an opportunity also of avoiding the Fine paid to the king upon suing out his original writ, in debt, because he could insert the amount thereof in the ac etiam clause of a capias, and, if the desendant was arrested, require bail in proportion to his demand j which was a cheaper method of pioceeding, evidently more expeditious, and equally answered the purpose of suing out an original in debt; and going on regularly towards outlawing the defendant, unless he was a person likely to abscond or avoid being taken, and had property which the plaintiff could come at to satisfy his debt by proceeding to outlaw him. For which reason we do not often hear, at this day, of a pracipe quod reddat, in debt; or, of a person being outlawed in an action of debt, as that action is generally prosecuted in the King's Bench ty bill or latitat,

... . which

On mesne Process.

.which pre-supposcs a bill, arid in the Common Pleas by a tapias, with an ac etiam in it; and a desendant cannot be outlawed by process with Ac etiams.

Since the statute also of 12 G*t. 1. f. 29. before mentioned, we do not often hear of a desendant being outlawed by a Commonsfl/iMJ quare clausum fregit; because, if the plaintiff's Cause of action does not warrant him to arrest and hold the desendant to bail, he is generally served with a copy of the process, with a notice subscribed, 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 served on the desendant, to enter an appearance for him, and proceed as if he had regularly appeared to the action. This method therefore, in cases not warranting bail, if the desendant can be met with, being more easy and expeditious, and attended with little or no expence to the suitor, compared with proceedings towards outlawry, affords one reason why outlawry is not often heard oi now upon common capias's quare clausum fregit. Another reason also is, that should a plaintiff proceed with an intention to outlaw the desendant upon common capias's, and the desendant 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; so that the plaintiff, instead of gaining any advantage, in proceeding to outlawry upon common capias's, and not pursuing the line ch»lked out by the statute for his own expedition, is not only put to expence, but is himself the occasion of his own delay, and frequently in a worse situation towards recovering his demand than he otherwise might have been, if he had proceeded as the statute directs him.

For the above reasons, a plaintiff seldom proceeds with a view to outlaw the defendant, unless the c-use of action is such as to warrant holding him to bail, which must be for actions founded on contracl, unless by special order cf a judge in cases of torts. And, as the action of debt is not often commenced at this day by a prercipe quod reddiif, on account of the fine upon suing it out, the action of ajfttmpfit is that in which plaintiffs' usually proceed, with a view to outlaw the desendant.

Fide 5 Geo, 2. c. 27,

On mesne Process.

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 suit is commenced by bill, a plaintiff having a just demand against a litigious and wealthy desendant, who is likely to put oft' the day of payment as long as he can, by bringing writs of error, has a prospect therefore of getting his debt much earlier, by suing by original, than by bill in B. R. And, in either court, if the plaintiff's demand amounts to a considerable sum, or the desendant cannot be easily caught, or has property which the plaintiff can come at, he may, in the end, reap more advantage, perhaps, by taking out process towards outlawry, than by suing out a common capias quare clausam sregit, or a capias with a clause of " ac etiam" in it.

As the action of ajfumpsit, where the demand is sufficient to hold to bail, is the action in which plaintiffs in either court usually proceed with an intention to outlaw the desendant, I stall stew the method of commencing and prosecuting such action, and of outlawing a desendant therein, and of his reversing such outlawry; at the same time it must be remembered, that the practice and proceedings in another action requiring bail, towards outlawry, would be exactly the same.

The plaintiff's attorney, or special pleader, when the cause of action is above 10/. draws out a pracipe for a special original, which pracipe contains the whole count or declaration, and ought to be drawn up with great accuracy and precision, as on it all the subsequent proceedings are built. The desendant's name, his degree, prosession, or miftery must be ascertained and set forth according to the statute of * additions, together with the town or hamlet, place •and county, in which he is or was conversant.

The pracipe, in an action on the case on ajfumpsit, is to this efsect.

Middlesex. If A?B. shall give you security to prosecute his suit, then put by sureties and sase pledges C. D. late of Westminster, in the county of Middlesex, upholder, that he be before our lord the king, on the morrow of the Holy Trinity, wheresoever our said

* I Hen. 5, c. 5.


On mesne Process. . ~

lord the king Jhull then be in England [or if in C. B. say, " before our justices at IVeflminjler, on the morrow of the Holy Trinity"] to shew wherefore Whereas, [so set forth, verbatim, the whole count, or declaration] to the damage of the said A. B. of one hundred pounds, as he saith, dsV.

Returnable, &V;

E. F. attorney,

I May, 1780.

This pracipe must be carried to the cursitor of the proper county, who will thereupon make out the * original writ. But in B R. the pracipe is usually carried directly to the filazer, who procures the original from the cursitor, and immediately makes out the capias, is'c.

The cwsitor is paid at the rate of is. 6d. the first count, and bd. for every other count contained in the pracipe, upon making out the original writ. The filazer, who makes out the capias, &c. from the original writ, is also paid after the above rate, besides \d. for fiiing the original.

If the pracipe is carried to the cursitor, before the essoign. 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 prosecuting, { g^^

It has been often questioned, whether an affidavit was necessary to be made of the debt, when a plaintiff sues by special original, previous to the issuing of the process. But it has been determined in lord Hardwicie's time, M. 10 Geo. 2, Fownes and Allen, that process of outlawry is not within the stat. 12 Geo. 1. c. 29. so theie is no need of an affidavits when the plaintiff sues by special original, especially as the 5 Geo. 2. c. 27. s. 5. enacts, " That no special writ, nor "any process specially therein expressing the cause of ac"tion, shall be sued forth or issued from any superior court, "where the cause of action shall not amount to 10/. or "upwards." Since which statute, as no special writ can issue where the cause of action is not above 10/. it seems, that, before the issuing of a special writ, no assidavit is necessary, because a sheriff, if he apprehends the party either

Very often no original iiirit is made out at all.


On mesne Process.

upon the special capias, alias, or pluries, before he lets him go out of his custody, for his own sasety, should take bail j and he can easily know to what amount to take bail, as the whole cause of action is spread and set forth in th*e writ. Vide the case of Cracrast v. Glcdowe, Burr. 4 fit. 1482.

In Barnes 322, it was held, that on procefs to outlawry, no assidavit 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 spent, then to uke out an aliayt and endeavour to arrest the desendant, and after that a pluries; but he may, for expedition, get them all of the Jilazer at once (if there is time since the cause of action accrued to allow of the proper tc/h «nd return to each writ,) and return jhem severally of course after this manner:

"The within named C. D. is not found in our baili"wick." The answer of

Thomas Wright, Esq.!

And > Sheriff.

Evan Pugb, Esq. 3

The original writ must have fifteen days, at least, between the tejle and return. The capias also must have fifteen days between its teste and return ; and should regularly bear teste on the return day of the original: the alias ajfo must have the same number of days, and should bear teste the returnday of the capias; and the pluries capias must have the same number of days, and should bear teste the return day of the alias; whereas, if a plaintiff sues 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, so long as it is actually taken out afterwards; for you cannot have over of the copies, so as to take advantage of it. Ba>nes 173.' And so held in B. R. East. I8 Geo. 3.

Note—The proceedings are exactly the same towards outlawry upon a common capias quare. clausum fregit, as on a jpecinl capias.

Upon the return of non est invent us to the pluries capias, procefs of outlawry begins, which is the writ of exigi facias. In B R. the filazer acts as the exigentcr: in C. B. the exigents is a distinct officer from the filazer.


« PreviousContinue »