Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
THE next step for carrying on the suit, after suing out the original, is called the process; being the means of compelling the defendant to appear in court. This is sometimes called original process, being founded upon the original writ; and also to distinguish it from mesne or intermediate process, which issues, pending the suit, upon some collateral interlocutory matter; as to summon juries, witnesses, and the like.1 Mesne process is also sometimes put in contradistinction to final process, or process of execution; and then it signifies all such process as intervenes between the beginning and end of a suit.
BUT process, as we are now to consider it, is the method taken by the law to compel a compliance with the original writ, of which the primary step is by giving the party notice to obey it. This notice is given upon all real praecipes, and also upon all personal writs for injuries in court at the return of the original writ, given to the defendant by two of the sheriff’s messengers called summoners, either in person or left at his house or land:2 in like manner as in the civil law the first process is by personal citation, in jus vocando.3 This warning on the land is given, in real actions, by erecting a white stick or wand on the defendant’s grounds;4 (which stick or wand among the northern nations is called the baculus nunciatorius5) and by statute 31 Eliz. c. 3. it must also be proclaimed on some Sunday before the door of the parish church.
IF the defendant disobeys this verbal monition, the next process is by writ of attachment, or pone, so called from the words of the writ,6 “pone per vadium et salvos plegios, put by gage and safe pledges A. B. the defendant, etc.” This is a writ, not issuing out of chancery, but out of the court of common pleas, being grounded on the non-appearance of the defendant at the return of the original writ; and thereby the sheriff is commanded to attach him, by taking gage, that is, certain of his goods, which he shall forfeit if he does not appear;7 or by making him find safe pledges or sureties, who shall be amerced in case of his non-appearance.8 This is also the first and immediate process, without any previous summons, upon actions of trespass vi et armis, or for other injuries, which though not forcible are yet trespasses against the peace, as deceit and conspiracy;9 where the violence of the wrong requires a more speedy remedy, and therefore the original writ commands the defendant to be at once attached, without any precedent warning.10
IF, after attachment, the defendant neglects to appear, he not only forfeits this security, but is moreover to be farther compelled by writ of distringas,11 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 afterwards, by taking his goods and the profits of his lands, which he forfeits to the king if he does not appear.12 In like manner as by the civil law, if the defendant absconds, so that the citation is of no effect, “mittitur adversarius in possessionem bonorum ejus“.
AND here by the common, as well as the civil, law the process ended in case of injuries without force; the defendant, if he had any substance, being gradually stripped of it all by repeated distresses, till he rendered obedience to the king’s writ; and, if he had no substance, the law held him incapable of making satisfaction, and therefore looked upon all farther process as nugatory.13 And besides, upon feudal principles, the person of a feudatory was not liable to be attached for injuries merely civil, lest thereby his lord should be deprived of his personal services. But, in cases of injury accompanied with force, the law, to punish the breach of the peace and prevent its disturbance for the future, provided also a process against the defendant’s person, in case he neglected to appear upon the former process of attachment, or had no substance whereby to be attached; subjecting his body to imprisonment by the writ of capias ad respondendum.14 But this immunity of the defendant’s person, in case of peaceable though fraudulent injuries, producing great contempt of the law in indigent wrongdoers, a capias was also allowed, to arrest the person, in actions of account, though no breach of the peace be suggested, by the statutes of Marlbridge, 52 Hen. III. c. 23. and Westm. 2. 13 Edw. I. c. 11. in actions of debt and detinue, by statute 25 Edw. III. c. 17. and in all actions on the case, by statute 19 Hen. VII. 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 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 afterwards, by connivance of the court, the plaintiff might proceed to prosecute for any other less forcible injury. This practice (through custom rather than necessity, and for saving some trouble and expense, in suing out a special original adapted to the particular injury) still continues in almost all cases, except in actions of debt; though now, by virtue of the statutes above cited and others, a capias might be
had upon almost every species of complaint.
IF therefore the defendant being summoned or attached makes default, and neglects to appear; or if the sheriff returns a nihil, or that the defendant has nothing whereby he may be summoned, attached, or distrained; the capias now usually issues,15 being a writ commanding the sheriff to take the body of the defendant if he may be found in his bailiwick or county, and him safely to keep, so that he may have him in court on the day of the return, to answer to the plaintiff of a plea of debt, or trespass, etc, as the case may be. 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, and being grounded on what has passed in that court in consequence of the sheriff’s return, are called judicial, not original, writs; they issue under the private seal of that court, and not under the great seal of England; and are teste‘d, not in the king’s name, but in that of the chief justice only. And these several writs, being grounded on the sheriff’s return, must respectively bear date the same day on which the writ immediately preceding was returnable.
THIS is the regular and orderly method of process. But it is now usual in practice, to sue out the capias in the first instance, upon a supposed return of the sheriff; especially if it be suspected that the defendant, upon notice of the action, will abscond: and afterwards a fictitious original is drawn up, with a proper return thereupon, in order to give the proceedings a color of regularity. When this capias is delivered to the sheriff, he by his under-sheriff grants a warrant to his inferior officers, or bailiffs, to execute it on the defendant. And, if the sheriff of Oxfordshire (in which county 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,16 directed to the sheriff of the county where the defendant is supposed to reside, as of Berkshire, 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. But here also, when the action is brought in one county and the defendant lives in another, it is usual, for saving trouble, time, and expense, to make out a testatum capias at the first; supposing not only an original, but also a former capias, to have been granted, which in fact never was. And this fiction, being beneficial to all parties, is readily acquiesced in and is now become the settled practice; being one among may instances to illustrate that maxim of law, that in fictione juris consistit aequitas.
BUT where a defendant absconds, and the plaintiff would proceed to an outlawry against him, an original writ must then be sued out regularly, and after that a capias. And if the sheriff cannot find the defendant upon the first writ of capias, and returns a non est inventus, there issues out an alias writ, and after that a pluries, to the same effect as the former:17 only after these words “we command you,” this clause is inserted, “as we have formerly,” or, “as we have often commanded you; “sicut alias,” or, “sicut pluries praecepimus.” And, if a non est inventus is returned upon all of them, then a writ of exigent or exigi facias may be sued out,18 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 statutes 6 Hen. VIII. c. 4. and 31 Eliz. c. 3. whether the defendant dwells within the same or another county than that wherein the exigent is sued out, a writ of proclamation19 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. Such outlawry is putting a man out of the protection of the law, so that he is incapable to bring any action for redress of injuries; and it is also attended with a forfeiture of all one’s goods and chattels to the king. And therefore, till some time after the conquest, no man could be outlawed but for felony; but in Bracton’s time, and somewhat earlier, process of outlawry was ordained to lie in all actions for trespasses vi et armis.20 And since, by a variety of statutes (the same which allow the writ of capias before-mentioned) process of outlawry does lie in
diverse actions that are merely civil; provided they be commenced by original and not by bill.21 If after outlawry the defendant appears publicly, he may be arrested by a writ of capias utlagatum,22 and committed till the outlawry be reversed. Which reversal may be had by the defendant’s appearing personally in court (and in the king’s bench without any personal appearance, so that he appears by attorney, according to statute 4 & 5 W. & M. c. 18.) and any plausible cause, however slight, will in general be sufficient to reverse it, it being considered only as a process to compel an appearance. But then the defendant must pay full costs, and put the plaintiff in the same condition, as if he had appeared before the writ of exigi facias was awarded.
SUCH is the first process in the court of common pleas. In the king’s bench they may also (and frequently do) proceed in certain causes, particularly in actions of ejectment and trespass, by original writ, with attachment and capias thereon;23 returnable, not as Westminster, where the common pleas are now fixed in consequence of Magna Carta, but “ubicunque fuerimus in Anglia,” wheresoever the king shall then be in England; the king’s bench being removable into any part of England at the pleasure and discretion of the crown. But the more usual method of proceeding therein is without any original, but by a peculiar species of process entitled a bill of Middlesex; and therefore so entitled, because the court now sits in that county; for if it sat in Kent, it would then be a bill of Kent. For though, as the justices of this court have, by its fundamental constitution, power to determine all offenses and trespasses, by the common law and custom of the realm,24 it needed no original writ from the crown to give it cognizance of any misdemeanor in the county wherein it resides; yet as, by this court’s coming into any county, it immediately superseded the ordinary administration of justice by the general commissions of eyre and of oyer and terminer,25 a process of its own became necessary, within the county where it sat, to bring in such persons as were accused of committing any forcible injury. The bill of Middlesex26 is a kind of capias, directed to the sheriff of that county, and commanding him to take the defendant, and have him before our lord the king at Westminster on a day prefixed, to answer to the plaintiff of a plea of trespass. For this accusation of trespass it is, that gives the court of king’s bench jurisdiction in other civil causes, as was formerly observed; since, when once the defendant is taken into custody of the marshal, or prison-keeper of this court, may here be prosecuted for any other species of injury. Yet, in order to found this jurisdiction, it is not necessary that the defendant
be actually the marshal’s prisoner; for, as soon as he appears, or puts in bail, to the process, he is deemed by so doing to be in such custody of the marshal, as will give the court a jurisdiction to proceed.27 And, upon these accounts, in the bill or process a complaint of trespass is always suggested, whatever else may be the real cause of action. This bill of Middlesex must be served on the defendant by the sheriff, if he finds him in that county: but, if he returns “non est inventus,” then there issues out a writ of latitat,28 to the sheriff of another county, as Berks; which is similar to the testatum capias in the common pleas, and recites the bill of Middlesex and the proceedings thereon, and that it is testified that the defendant “latitat et discurrit” lurks and wanders about in Berks; and therefore commands the sheriff to take him, and have his body in court on the day of the return. But, as in the common pleas the testatum capias may be sued out upon only a supposed, and not an actual, preceding capias; so in the king’s bench a latitat is usually sued out upon only a supposed, and not an actual, bill of Middlesex. So that, in fact, a latitat may be called the first process in the court of king’s bench, as the testatum capias is in the common pleas. Yet, as in the common pleas, if the defendant lives in the county wherein the action is laid, a common capias suffices; so in the king’s bench likewise, if he lives in Middlesex, the process must still be by bill of Middlesex only.
IN the exchequer the first process is by writ of quo minus, in order to give the court a jurisdiction over pleas between party and party. In which writ29 the plaintiff is alleged to be the king’s farmer, or debtor, and that the defendant has done him the injury complained of, quo minus sufficiens existit, by which he is the less able, to pay the king his rent, or debt. And upon this the defendant may be arrested as upon a capias from the common pleas.
THUS differently do the three courts set out at first, in the commencement of a suit; for which the reason is obvious: since by this means the two courts of king’s bench and exchequer entitle themselves to hold plea in subjects causes, which by the original constitution of Westminster-hall they were not empowered to do. Afterwards, when the cause is once drawn into the respective courts, the method of pursuing it is pretty much the same in all of them.
IF the sheriff has found the defendant upon any of the former writs, the capias, latitat, etc, he was anciently obliged to take him into custody, in order to produce him in court upon the return, however small and minute the cause of action might be. For, not having obeyed the original summons, he had shown a contempt of the court, and was no longer to be trusted at large. But when the summons fell into disuse, and the capias became in fact the first process, it was thought hard to imprison a man for a contempt which was only supposed: and therefore in common cases by the gradual indulgence of the courts (at length authorized by statute 12 Geo. I. c. 29. which was amended by statute 5 Geo. II. c. 27. and made perpetual by statute 21 Geo. II. c. 3.) the sheriff or his officer can now only personally serve the defendant with a copy of the writ or process, and with notice in writing to appear by his attorney in court to defend this action; which in effect reduces it to a mere summons. And if the defendant thinks proper to appear upon this notice, his appearance is recorded, and he puts in sureties for his future attendance and obedience; which sureties are called common bail, being the same two imaginary persons that were pledges for the plaintiff’s prosecution, John Doe and Richard Roe. Or, if the defendant does not appear upon the return of the writ, or within four (or, in some cases, eight) days after, 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.
BUT if the plaintiff will make affidavit, or assert upon oath, that the cause of action amounts to ten pounds or upwards, then in order to arrest the defendant, and make him put in substantial sureties for his appearance, called special bail, it is required by statute 13 Car. II. St. 2. c. 2. that the true cause of action should be expressed in the body of the writ or process. This statute (without any such intention in the makers) had like to have ousted the king’s bench of all its jurisdiction over civil injuries without force: for, as the bill of Middlesex was framed only for actions of trespass, a defendant could not be arrested and held to bail thereupon for breaches of civil contracts. But to remedy this inconvenience, the officers of the king’s bench devised a method of adding what is called a clause of ac etiam to the usual complaint of trespass; the bill of Middlesex commanding the defendant to be brought in to answer the plaintiff of a plea of trespass, and also to a bill of debt:30 the complaint of trespass giving cognizance to the court, and 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 expense of suing out special originals, directed that in the common pleas, besides the usual complaint of breaking the plaintiff’s close, a clause of ac etiam might be also added to the writ of capias, containing the true cause of action; as, “that the said Charles the defendant may answer to the plaintiff of a plea of trespass in breaking his close: and also, ac etiam, may answer him, according to the custom of the court, in a certain plea of trespass upon the case, upon promises, to the value of twenty pounds, etc.”31 The sum sworn to by the plaintiff is marked upon the back of the writ; and the sheriff, or his officer the bailiff, is then obliged actually to arrest or take into custody the body of the defendant, and, having so done, to return the writ with a cepi corpus endorsed thereon.
AN arrest must be by corporal seizing or touching the defendant’s 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. For every man’s house is looked upon by the law to be his castle of defense and asylum, wherein he should suffer no violence. Which principle is carried so far in the civil law, that for the most part not so much as a common citation or summons, much less an arrest, can be executed upon a man within his own walls.32 Peers of the realm, members of parliament, and corporations, are privileged from arrests; and of course from outlawries.33 And against them the process to enforce an appearance must be by summons and distress infinite, instead of a capias. Also clerks, attorneys, and all other persons attending the courts of justice (for attorneys, being officers of the court, are always supposed to be there attending) are not liable to be arrested by the ordinary process of the court, but must be sued by bill (called usually a bill of privilege) as being personally present in court.34 Clergymen performing divine service, and not merely staying in the church with a fraudulent design, are for the time privileged from arrests, by statute 50 Edw. III. c. 5. and 1 Ric. II. c. 16. as likewise members of convocation actually attending thereon, by statute 8 Hen. VI. c. 1. Suitors, witnesses, and other persons, necessarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes their necessary coming and returning. And no arrest can be made in the king’s presence, nor within the verge of his royal palace, nor in any place where the king’s justices are actually sitting. The king has moreover a special prerogative, (which indeed is very seldom exerted35) that he may by his writ of protection privilege a defendant from all personal, and many real, suits for one year at a time, and no longer; in respect of his being engaged in his service out of the
realm.36 And the king also by the common law might take his creditor into his protection, so that no one might sue or arrest him till the king’s debt were paid:37 but b the statute 25 Edw. III. St. 5. c. 19. notwithstanding such protection, another creditor may proceed t judgment against him, with a stay of execution, till the king’s debt be paid; unless such creditor will undertake for the king’s debt, and then he shall have execution for both. And, lastly, by statute 29 Car. II. c. 7. no arrest can be made, nor process served upon a Sunday, except for treason, felony, or breach of the peace.
When the defendant is regularly arrested, he must either go to prison, for safe custody; or put in special bail to the sheriff. For, the intent of the arrest being only to compel an appearance in court at the return of the writ, that purpose is equally answered, whether the sheriff detains his person, or takes sufficient security for his appearance, called bail (from the French word, bailer, to deliver) because the defendant is bailed, or delivered, to his sureties, upon their giving security for his appearance; and is supposed to continue in their friendly custody instead of going to jail. The method of putting in bail to the sheriff is by entering into a bond or obligation, with one or more sureties (not fictitious persons, as in the former case of common bail, but real, substantial, responsible bondsmen) to insure the defendant’s appearance at the return of the writ; which obligation is called the bail bond.38 The sheriff, if he pleases, may let the defendant go without any sureties; but that is at his own peril: for, after once taking him, the sheriff is bound to keep him safely, so as to be forthcoming in court; otherwise an action lies against him for an escape. But, on the other hand, he is obliged, by statute 23 Hen. VI. C. 10. to take (if it be tendered) a sufficient bailbond: and, by statute 12 Geo. I. C. 29. the sheriff shall take bail for no other sum than such as is sworn to by the plaintiff, and endorsed on the back of the writ.
Upon the return of the writ, or within four days after, the defendant must appear according to the exigency of the writ. This appearance is effected by putting in and justifying bail to the action; which is commonly called putting in bail above. If this be not done, and the bail that were taken by the sheriff below are responsible persons, the plaintiff may take an assignment from the sheriff of the bail-bond (under the statute 4 & 5 Ann. c. 16.) and bring an action thereupon against the sheriff’s bail. But if the bail, so accepted by the sheriff, be insolvent persons, the plaintiff may proceed against the sheriff himself, by calling upon him, first, to return the writ (if not already done) and afterwards to bring in the body of the defendant. And, if the sheriff does not then cause sufficient bail to be put in above, he will himself be responsible to the plaintiff.
The bail above, or bail to the action, must be put in either in open court, or before one of the judges thereof; or else, in the country, before a commissioner appointed for that purpose by virtue of the statue 3 W. & M. c. 4. which must be transmitted to the court. These bail, who must at least be two in number, must enter into a recognizance39 in court or before the judge or commissioner, whereby they do jointly and severally undertake, that if the defendant be condemned in the action h e shall pay the costs and condemnation, or render himself a prisoner, or that they will pay it for him: which recognizance is transmitted to the court in a slip of parchment entitled a bail piece.40 And, if required, the bail must justify themselves in court, or before the commissioner in the country, by swearing themselves house-keepers, and each of them to be worth double the sum for which they are bail, after payment of all their debts. This answers in some measure to the stipulatio or satisdatio of the Roman laws,41 which is mutually given by each litigant party to the other: by the plaintiff, that he will prosecute his suit, and pay the costs if he loses his cause; in like manner as our law still requires nominal pledges of prosecution from the plaintiff: by the defendant, that he shall continue in court, and abide the sentence of the judge, much like our special bail; but with this difference, that the fidejussores were there absolutely bound judicatum solvere, to see the costs and condemnation paid at all events: whereas our special bail may be discharged, by surrendering the defendant into custody, within the time allowed by law; for which purpose they are at all times entitled to a warrant to apprehend him.42
Special bail is required (as of course) only upon actions of debt, or actions on the case in trover or for money due, where the plaintiff can swear that the cause of action amounts to ten pounds: but in actions where the damages are precarious, being to be assessed ad libitum by a jury, as in actions for words, ejectment, or trespass, it is very seldom possible for a plaintiff to swear to the amount of his cause of action; and therefore no special bail is taken thereon, unless by a judge’s order or the particular directions of the court, in some peculiar species of injuries, as in cases of mayhem or atrocious battery; or upon such special circumstances, as make it absolutely necessary that the defendant should be kept within the reach of justice. Also in actions against heirs, executors, and administrators, for debts of the deceased, special bail is not demandable: for the action is not so properly against them in person, as against the effects of the deceased in their possession. But special bail is required even of them, in actions for a devastavit, or wasting the goods of the deceased; that wrong being of their own committing.
Thus much for process; which is only meant to bring the defendant into court, in order to contest the suit, and abide the determination of the law. When he appears either in person as a prisoner, or out upon bail, then follow the pleadings between the parties, which we shall consider at large in the next chapter.
1. Finch. L. 436.
2. Ibid. 344. 352.
3. Ff. 2. 4. 1.
4. Dalt. of sher. c. 31.
5. Stiernh. de jure Sueon. l. 1. c. 6.
6. Append. No. III. § 2.
7. Finch. L. 345.
8. Dalt. sher. c. 32.
9. Finch. L. 305. 352.
10. Append. No. II. § 1.
11. Append. No. III. § 2.
12. Finch. L. 352.
13. Ff. 2. 4. 19.
14. 3 Rep. 12.
15. Append. No. III. § 2.
16. Append. No. III. § 2.
19. Append. No. III. § 2.
20. Co. Litt. 128.
21. 1 Sid. 159.
22. Append. No. III. § 2.
23. Ibid. No. II. § 1.
24. Bro. Abr. t. oyer & determiner. 8.
25. Bro. Abr. t. jurisdiction, 66. 3. Inst. 27.
26. Append. No. III. § 3.
27. 4 Inst. 72.
28. Append. No. III. § 3.
29. Ibid. § 4.
30. Append. No. III. § 3.
31. Lilly pract. Reg. t. ac etiam. North’s life of lord Guilford. 99.
32. Ff. 2. 4. 18 21.
33. Whitelock of parl. 206, 207.
34. Bro. Abr. t. bille. 29. 12 Mod. 163.
35. Sir. Edward Coke informs us, (1 Inst. 131.) that herein “he could say nothing of his own experience; for albeit queen Elizabeth maintained many wars, yet she granted few or no protections: and her reason was, that he was no fit subject to be employed in her service, that was subject to other mens actions; lest she might be thought to delay justice.” But king William, in 1692, granted one to lord Cutts, to protect him from being outlawed by his tailor: (3 Lev. 332.) which is the last that appears upon our books.
36. Finch. L. 454. 3 Lev. 332.
37. F. N. B. 28. Co. Litt. 131.
38. Append. No. III. § 5.
39. Append. No. III. § 5.
41. Inst. L. 4. t. 11. Ff. l. 2. t. 8
42. 2 Show. 202. 6 Mod. 231.