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2. Are the methods and forms of proceeding the same in the courts of the king's bench and exchequer as in the common pleas – 271.
They are, in all material respects.
3. What is an original, or original writ?—272.
It is the beginning or foundation of the suit ; and is a mandatory letter from the king, on parchment, sealed with the great seal, and directed to the sheriff of the county wherein the injury is committed, or supposed so to be, requiring him to command the wrong-doer, or party accused, either to do justice to the complainant, or else to appear in court and answer the accusation against him.
4. From whence is it obtained ?–273.
From the court of chancery, which is the officina justitiæ, the shop or mint of justice, wherein all the king's writs are framed.
5. Are the original writs demandable of common right ?–273.
6. Of what kinds are original writs !-274.
They are either optional or peremptory; or, in the language of the law, they are either a præcipe, or a si te fecerit securum.
7. What is the form of a procipe?—274.
It is in the alternative, commanding the defendant to do the thing required, or show the reason wherefore he hath not done it.
8. Why is the si te fecerit securum so called ?—274.
It is so called from the words of the writ, which direct the sheriff to cause the defendant to appear in court, without any option given him, provided the plaintiff gives the sheriff security effectually to prosecute his claim. This writ is in use where nothing is specifically demanded, but only a satisfaction in general ; to obtain which, and minister complete redress, the intervention of some judicature is necessary.
9. What is the security here spoken of ?—274.
It is common to both writs, though it gives denomination only to the si te fecerit securum; but the whole of it is now a were matter of form, and John Doe and Richard Roe are always returned as the standing pledges for this purpose.
10. What was the ancient use of such pledges ?—275, 276.
To answer for the plaintiff, who, in case he brought an action without cause, or failed in the prosecution of it when brought, was liable to an amercement from the crown for raising a false accusation ; and so the form of the judgment still is. 11. What is the return ?—275.
The day on which the defendant is ordered to appear in court, and on which the sheriff is to bring in the writ and report how far he has obeyed it.
1. What is process ?-279.
It is, or includes, the means of compelling the defendant to appear in court.
2. What is meant by original process ?—279.
Process is sometimes called original process, being founded on the original writ; and also to distinguish it from mesne, or intermediate, process.
3. What is understood by mesne process ?—279.
It issues pending the suit, upon some collateral interlocutory matter; as to summon juries, witnesses, and the like.
4. What is final process ?—279.
Process of execution.
5. What is the summons ?—279.
A verbal warning to appear in court at the return of the original writ.
6. What is the writ of attachment, or pone ?-—280.
It issues out of the court of common pleas, and is grounded on the non-appearance of the defendant at the return of the original writ; and thereby the sheriff is commanded to attach bim, by taking gage, this is, certain of his goods, which he shall forfeit if he doth not appear; or by making him find safe pledges or securities, who shall be amerced in case of his non-appearance.
7. What is the writ of distringas ?—280.
If, after attachment, the defendant neglects to appear, he not only forfeits his security, but is moreover to be further compelled by writ of distringas, or distress infinite ; which is a subsequent process, issuing from the court of common pleas, commanding the sheriff to distrain the defendant from time to time, and continually afterward, by taking his goods and the issues of his lands, which, by the common law, he forfeits to the king if he doth not appear.
8. When is a writ of capias ad respondendum now used?—281, 282.
If the defendant, being summoned or attached, makes default, and neglects to appear; or if the sheriff returns a nihil; the capias ad respondendum now usually issues, commanding the sheriff to take the body of the defendant.
9. Why does the practice, in almost all actions excepting actions of debt, of suing out an original writ of quare clausum fregit, continue ?—281, 282.
Through custom rather than necessity, and for saving some trouble and expense in suing out a special original adapted to the particular injury.
10. What are the capias, and all other writs subsequent to the original writ, called ; and whence do they issue 2–282.
They are called judicial writs, and issue from the court into
which the original was returnable, under the private seal of that court.
11. What is now usual, as to the capias, in practice ?—282.
To sue out the capias in the first instance, upon a supposeu return of the sheriff.
12. When the plaintiff would proceed to an outlarory, can the capias be sued out without an original ?—283.
No; where the defendant absconds, and the plaintiff would proceed to an outlawry against him, an original writ must then he sued out regularly, and after that a capias.
13. When does a writ of testatum capias issue ?—283.
When the sheriff of the county in which the injury is supposed to be committed, and the action is laid, cannot find the defendant in his jurisdiction, he returns that he is not found, non est inventus, in his bailiwick; whereupon another writ issues, called a testatum capias, 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 or wanders in his bailiwick, wherefore he is commanded to take him as in the former capias.
14. What are the proceedings to outlawry?—283, 284.
When the sheriff returns a non est inventus upon the first writ of capias, there issues out an alias writ, and after that a pluries, to the same effect as the former, only after these words, "we command you,” this clause is inserted, “ as we have formerly,” or “as we have often commanded you.” And if non est inventus be returned upon all of them, then a writ of exigent or exegi facias may be sued out, which requires the sheriff to cause the defendant to be proclaimed, required, or exacted, in five county courts successively, to render himself; and if he does, then to take him as in a capias; but if he does not appear, and is returned quinto exactus, he shall then be outlawed by the coroners of the county. Also, by statute, whether the defendant dwells within the same or another county than that wherein the exigent is sued out, a writ of proclamation shall issue out, at the same time with the exigent, commanding the sheriff of the county, wherein the defendant dwells, to make three proclamations thereof in places the most notorious, and most likely to come to his knowledge, a month before the outlawry shall take place.
15. What is the effect of outlawry, and horo may it be removed ? –284.
Such outlawry is putting a man out of the protection of the law, so that he is incapable to bring an action for redress of injuries; and it is also attended with a forfeiture of all one's goods and chattels to the king. If, after outlawry, the defendant appears publicly, he may be arrested by a writ of capias utlagatum, and committed till the outlawry be reversed. Which reversal may be had by the defendant's appearing personally in court, or by attorney.
16. What is the usual method of proceeding in the court of king's bench ?—285.
By bill of Middlesex, without any original.
17. When may the bailiff justify breaking open the house in which the defendant is, to take him ?–288.
After an arrest, which must be by corporeal seizing or touching the body of the defendant, and not before.
18. Who are privileged from arrest ?—289.
Peers of the realm, members of parliament, and corporations ; clerks, attorneys, and all other persons attending the courts of justice; clergymen performing divine service ; suitors, witnesses, and other persons necessarily attending any courts of record upon business, which includes their necessary coming and returning
19. For what may an arrest be made, or process served, upon a Sunday ?—290.
Only for treason, felony, or breach of the peace.
20. When the defendant is regularly arrested, what must he do ? -290.
Either go to prison for safe custody, or put in special bail to