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24 Aug 1804.
Immunity of the deft's
person, in the case of peaceable,
tho' fraudulent injuries,
producing great
contempt of the law in
indigent wrong-doers, a
capias was allowed to
arrest the person, in
actions of account, tho' no
breach of the peace be
suggested, by the Statutes
of Marlbridge 52 Hen 3.
ch. 23 & Westm. 2. 13 Ed. 1.
c.11 in actions of debt
& determine, by statute 25
Edw. III. c.17. & in all
actions on the case, by
statute 19 Hen. 7. c. 9.
Before which last statute
a practice had been introduced
of commencing
the suit by bringing an
original writ of trespass
quare clausum fregit,
for breaking the pltf's
close, vi et armis; which
by the old common law
subjected the deft's person
to be arrested by writ
of capias: & then afterwards,
by connivance
of the Court, the pltf
might proceed to prosecute
for any other less
forcible injury. This
practice... still continues
in almost all
cases, except in actions
of debt; though now,
by virtue of the statutes
above cited & others; a
capias might be had
upon almost every
species of complaint.
III 281-282
For reversal [of outlawry]
any plausible cause,
however slight, will
in general be sufficient
to reverse it, it being
considered only as a
process to compel an
appearance.
III 284.
---page break---
The bill of Middlesex
is a kind of capias,
directed to the sheriff of
county, & commands
him to take the deft, &
have him before our Ld
the kind at Westmir, on
day prefixed to answer
to the pltf if a plea of
trespass. For this accusation
of trespass it is,
that gives the ct of K.B.
jurisdictn in other civil
causes, as was formerly
observed; since, when
once the debt is taken
into the custody of the
marshall, or prison keeper
of this ct, for the
supposed trespass, he, being
then a prisoner of this
ct, may here be prosecuted
for any other species of
injury. Yet in order to
found this jurisdictn, it
is not necessary that the
deft be actually the marshall's
prisoner; for, as
soon as he appears & or
puts in bail, to the process,
he is deemed by
so doing it be in such
custody of the marshall
as will give the ct a
jurisdictn to proceed.
And, upon their account,
in the bill or process a
complaint of trespass
is always suggested,
whatever else may be
the real cause of action.
III 285.
As in the common pleas
the <hi rend="underline">testatum capias may
be sued out upon only
a supposed, & not an
actual preceding capias,
so in the King's Bench
a laitat is usually
issued out upon only a
supposed, and not an
actual, bill of Middlesex.
III 286.
---page break---
When the summons fell
into disuse, & the capias
became in fact the
first process, it was thought
hard to imprison a man
for a contempt which was
only supposed; & therefore
in common cases...
the sheriff or his officer
can now only personally
serve the deft with a copy
of the writ or process,
& with notice in writing
to appear by his ally
in ct to defend this actn;
which in effect reduces
it to a mere summons.
And if the deft thinks
proper to appear upon
this process notice, his
appearance is recorded,
& he puts in securities
for his future attendance
& obedience; ... being
the same two imaginary
persons that were pledges
for the pltf's prosecution,
John Doe & Rich'd Roe. Or
if the deft does not
appear upon the return
of the writ, or wither
four (or in some cases,
eight) days after, the
pltfs may enter an appearance
for him, as
if he had really appeared;
& may file common
bail in the deft's name,
& proceed thereupon as
if the deft had done
it himself.
III 287.
It is required by
statute 13 Car. II. St.9.r.2
that the true cause of
action should be expressed
in the body of the writ
or process. This statute...
had like to have instead
the King's Bench of all its
jurisdiction over civil injuries
without force...
To remedy this inconvenience,
the officers of the K.B.
derived a method of
adding what is called
---page break---
a clause of ac etiam
to the usual complaint
of trespass; the bill of
Middlesex commanding
the deft to be brought
in to answer the pltf of
a plea of trespass, & also
to a bill of debt: the
complaint of trespass
giving cognizance to the
ct, & that of debt authorizing
the arrest. In
return for which, Lord
Chief Justice North a
few years afterwards
in order to save the suitors
of his court the trouble
and expence of issuing
out special originals,
directed that in the common
pleas, besides the
usual complaint of breaking
the pltf's close, a
clause of ac etiam might
be also added to the
writ of capias containing
the true cause of action.
III pp.287, 288.
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