Finch. L. 345.
Lord Raym.

278.

352.

Writ of distringas.

Finch. L. 352.

10 Geo. 3, c. 50.

Writ of capias ad responden

pone, whereby the sheriff is commanded to attach him, by taking gage, that is, certain of his goods, which he forfeits if he does not appear; or by making him find pledges, who are amerced in case of his non-appearance (c).

This is the first process without any previous summons upon Finch. L. 305. actions of trespass vi et armis, or for other injuries (d). If after attachment the defendant neglects to appear, he is compelled by writ of distringas or distress infinite(e), the goods and profits of his lands taken, thereunder being called issues, which as well as those attached he forfeits if he does not appear. And the issues may be sold to pay the costs. Here by the common law, the process ended in cases of injuries without force; but in cases of injury accompanied with force, the law provided a process against the defendant's person, if he persisted in not appearing, and had no goods to be attached, subjecting his body to imprisonment by the writ of capias ad respondendum. A capias was afterwards allowed to arrest the person in actions of account, though no breach of the peace were suggested, and then in actions of debt and detinue, and afterwards in all actions on the case. Before this it was usual to bring an original writ of trespass quare clausum fregit, for breaking the plaintiff's close vi et armis; which by the old common law subjected the defendant's person to be arrested by writ of capias, and then by connivance of the court the plaintiff proceeded to prosecute for any other injury without force. Afterwards, by several statutes, a capias might be had upon almost every species of complaint (ƒ).

dum.

3 Rep. 12.

(c) This applies to process founded on one of the original writs now no longer in use, except in the actions of ejectment, quare impedit, and writ of right of dower. If the defendant, having been served with the writ of summons, neglects to appear to it, the plaintiff may enter an appearance for him, and proceed therein to judgment and execution. The provisions of the Uniformity of Process Act, 2 Wm. 4, c. 39, and the act 1 & 2 Vict. c. 110, must now be read along with, and applied to the contents of this chapter.

(d) The first process in all personal actions in the superior courts is now the writ of summons, 1 & 2 Vict. c. 110, s. 2.

(e) The writ of distringas now issues in cases where the defendant cannot be personally served with the writ of summons; and if the sheriff returns such writ of distringas non est inventus, or nulla bona, the plaintiff is allowed, on application to the court, to enter an appearance for the defendant, and proceed therein to judgment and execution; 2 Wm. 4, c. 39, s. 3.

(f) By 1 & 2 Vict. c. 110, arrest on mesne process is abolished, except that where the defendant is about to quit England, a judge of a superior court may order him to be arrested for a debt or claim amounting to 201. The order may be made after the commencement of an action at any stage of the proceedings before final judgment; but the

This writ and all others subsequent to the original writ not issuing out of chancery, but from the court into which the original was returnable, are called judicial, not original writs, as they issue under the private seal of the court, and not under the great seal.

When this capias is delivered to the sheriff, he by his Execution of under-sheriff grants a warrant to his officer to execute it on the capias. defendant; and if the sheriff cannot find the defendant in his jurisdiction, he returns non est inventus in his bailiwick; when a testatum capias issues, directed to the sheriff of the county where the defendant is supposed to reside, reciting the former writ, and that it is testified testatum est, that the defendant lurks in his bailiwick, wherefore he is commanded to take him as in the former capias. When the action is brought in one county and the defendant lives in another, a testatum capias issues at first, supposing not only an original, but also a former capias to have been granted, which in fact never was (g).

In cases of outlawry an original writ must issue, and then a Outlawry. capias (h). And if the sheriff returns non est inventus, an alias writ issues, and then a pluries to the same effect as the former. And if a non est inventus is returned on all, a writ of exigent or exigi facias issues (i), which requires the sheriff to cause the defendant to be proclaimed at five successive county courts to render himself; and if he does, then to take him as in a capias; but if not, and is returned quinto exactus, he is then outlawed by the coroners of the county. But by 6 Hen. 8, c. 4, and 31 Eliz. c. 3, whether the defendant dwells in the same county or another than that wherein the exigent is sued out, a writ of proclamation shall issue with the exigent, commanding the sheriff wherein the defendant dwells to make

writ of capias under this act cannot be employed as the means of commencing an action, it being merely auxiliary to the main proceedings in cases only where the defendant is about to quit England."-Archbold's Q. B. Prac. by Chitty, 7th ed. 506.

(9) The writ of summons is now, by 1 & 2 Vict. c. 110, s.2, the first process; and see ante, note (ƒ) to this chapter.

(h) Under the Uniformity of Process Act, in cases of outlawry, where the action was commenced by bailable process, the writ of capias was issued in the first instance; but in actions where it was not intended to hold the defendant to special bail, the first process was the writ of summons mentioned in s. 1 & 2 Wm. 4, c. 39, and which is now the first process in every personal action in the superior courts, whether bailable or not, by 1 & 2 Vict. c. 110, s. 2, and see the last note.

(1) After it has been made to appear to the satisfaction of the court that the writ of summons cannot be personally served, and that the defendant has not, according to the exigency thereof, appeared to the action, and cannot be compelled so to do without some more efficacious process, the court may order a writ of distringas to be issued, and upon return of ROR est inventus, and nulla bona thereon, the writs of exigi facias and proclamation then issue.

1 Sid. 159.

2 Roll Rep. 490.

Process in the king's bench.

three proclamations thereof, in places the most notorious (j) and most likely to come to his knowledge a month before the outlawry shall take place (k). If after outlawry the defendant appears he may be arrested by a writ of capias utlagatum, and committed till the outlawry be reversed (7), which reversal may be had by the defendant's appearing personally in court or by attorney, and paying costs, putting the plaintiff in the same condition as if he had appeared before the writ of exigi facias issued (m). Such is the first process in the common pleas.

In the king's bench the usual method of proceeding was (until recently) without any original, by a process called a bill of Middlesex (n) being a kind of capias directed to the sheriff of that county, commanding him to take the defendant and to have him before the king at Westminster, on a day prefixed to answer to the plaintiff of a plea of trespass. For this accusation of trespass, it was that gave the king's bench jurisdiction in civil causes; since when once the defendant was taken into custody of the marshal of this court for the supposed trespass, he might be prosecuted for any other species of injury. And hence a

(j) By 7 Wm. 4, and 1 Vict. c. 45, s. 2, instead of making proclamation at the church door immediately after divine service on a Sunday, as theretofore, written notices are to be affixed to the church doors.

(k) By 2 Wm. 4, c. 39, s. 5, upon the return of non est inventus, as to any defendant against whom such writ of capias (now by 1 & 2 Vict. c. 110, writ of summons) shall have been issued, and also upon the return of non est inventus and nulla bona as to any defendant against whom such writ of distringas shall have been issued, whether such writ of capias (now summons) or distringas shall have issued against such defendant only, or against such defendant; and any other person or persons, it shall be lawful, until otherwise provided for, to proceed to outlaw or waive such defendant by writs of exigi facias and proclamation, and otherwise in the same manner, as might before have been done, upon the return of non est inventus to a pluries writ of capias respondendum issued after an original writ; provided that every such writ of exigent, proclamation, and other writ subsequent to the writ of capias (now summons) or distringas, shall be made returnable on a day certain in term; and every such first writ of exigent and proclamation shall bear teste on the day of the return of the writ of capias (now summons) or distringas, whether such writ be returned in term or in vacation; and every subsequent writ of exigent and proclamation shall bear teste on the day of the return of the next preceding writ; and no such writ capias (now summons) or distringas shall be sufficient for the purpose of outlawry or waiver, if the same be returned within less than fifteen days after the delivery thereof to the sheriff or other officer to whom the same shall be directed. By s. 6, proceedings to outlawry may be had after judgment given under the authority of this act.

(1) See ante, note (f) to this chapter, and 1 & 2 Vict. 110.

(m) By 2 Wm. 4, c. 39, s. 6, every outlawry or waiver, had under the authority of this act, may be vacated or set aside by writ of error or motion, in like manner as outlawry or waiver, founded on an original writ, might before have been vacated or set aside. (n) By 2 Wm. 4 c. 39, s. 1, and 1 & 2 Vict. c. 110, s. 2, the first process in all actions, commenced in either of the courts of Q. B., C. P. and Exch., is now by writ of summons only.

1

complaint of trespass was always suggested, whatever else may be the real cause of action. The bill of Middlesex must have been served on the defendant if found in that county; but if the sheriff returned non est inventus, then a writ of latitat issued to the sheriff of another county, which was similar to the testatum capias in the common pleas. But as in the common pleas the testatum capias might be sued out upon only a supposed and not an actual preceding capias; so in the king's bench a latitat was sued out on a supposed and not an actuall bill of Middlesex. A latitat might indeed be called the first process in the king's bench, as the testatum capias was in the common pleas. Yet, as in the common pleas, if the defendant lived in the county wherein the action was laid, a common capias sufficed; so in the king's bench, if he lived in Middlesex, the process was by bill of Middlesex only (0).

In the exchequer, the first process was by writ of quo minus, before explained (p), upon which the defendant might be arrested, as upon a capias from the common pleas.

When the cause is once drawn into the respective courts, the method of pursuing it is much the same in all of them.

Process in the exchequer.

and common

Anciently, the defendant was arrested upon the capias latitat, &c., however small the cause of action; but now the defendant is merely served with a copy of the writ, or process, and with notice in writing, to appear by his attorney, which in effect, reduces it to a mere summons. If the defendant appears upon this notice, his appearance is recorded, and he puts in sureties for his future attendance, which are called common bail, being the same imaginary persons that were Appearance pledges for the plaintiff's prosecution, John Doe, and Richard bail. Roe; or if the defendant does not appear in due course, the plaintiff may 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 (q). But if the plaintiff will make affidavit that the cause of action amounts to 10%. (r), or upwards, then he may arrest the defendant, and make him put in substantial sureties for his appearance, called special bail (s). In order to which,

(2) See the last note.

(p) The process in the exchequer, as well as in Q. B. and C. P. is now in all actions by 2 Wm. 4, c. 39, s. 21, and 1 & 2 Vict. c. 110, s. 2, the writ of summons.

(9) See ante, note (c) to this chapter, p. 412.

(r) Now 201. by 7 & 8 Geo. 4, c. 71, and 1 & 2 Vict. c. 110.

(s) But see now 1 & 2 Vict. c. 110, ante, note (f) to this chapter, p. 42. Arrest on mesne process is abolished, except in the case provided for by the act.

Trye's Jus. Filazar, 102. Lilly. Prac. Reg. tit. ac etiam.

North's Life

of Lord Guildford, 99.

Arrest.

OF PROCESS.

by 13 Car. 2, stat. 2, c. 2, the true cause of action must be expressed in the body of the writ or process, else no security can be taken for more than 40%. This statute was near destroying the jurisdiction of the court of king's bench over civil injuries without force, the bill of Middlesex being framed only for actions of trespass; but to remedy this, a clause of ac etiam was added to the usual complaint of trespass; the bill of Middlesex, commanding the defendant to answer to a plea of trespass, and also to a bill of debt. In imitation of which, the common pleas added to the usual complaint, of breaking the defendant's close a clause of ac etiam to the writ of capias, containing the true cause of action. The sum sworn to by the plaintiff, is worded on the back of the writ; and the sheriff, or his officer, is then obliged to arrest or take into custody, the body of the defendant, and to return the writ with a cepi corpus indorsed (t).

An arrest must be by corporal seizing, or touching the body; after which, the bailiff may justify breaking open the house in which he is to take him; otherwise he has no such power, but must watch his opportunity to arrest him. Peers of the realm, members of parliament, and corporations are privileged from arrests, and of course from outlawries. And against them, the process to enforce an appearance, must be by summons and distress infinite, instead of a capias (u). Also clerks' attornies, and all other persons attending the courts of justice, are not liable to be arrested by the ordinary process of the court, but must be sued by bill, (called a bill of privilege) as being personally present in court (v). Clergymen performing divine service, are also privileged, and members of convocation attending thereon. Suitors, witnesses, and other persons necessarily attending any courts of record upon business, are not to be arrested during their attendance, which includes their coming and returning. No arrest can be made

(t) By 2 Wm. 4, c. 39, s. 4, if any such defendant be taken and charged in custody, upon any such process, and imprisoned for want of such sureties, the plaintiff may file his declaration and proceed according to the provisions of 4 & 5 W. & M. c. 21.

(u) By 2 Wm. 4, c. 39, proceedings against members of parliament are to be taken in all cases by writ of summons, as in ordinary cases. By 1 & 2 Vict. c. 110, the writ of summons is the only process for the commencement of all personal actions in the superior court.

(v) Before the Uniformity of Process Act, 2 Wm. 4, c. 39, an attorney could be sued by bill only; now he may be sued by writ of summons like any other person.