CHAP. IV. Of the MEANS of COMMENCING PERSONAL ACTIONS in the SUPERIOR COURTS of LAW at WESTMINSter, &c.; and the PROCESS in general, for bringing the DEFENDANT into COURT: and of the PROSECUTION and DEFENCE of ACTIONS, &c. by or against INFANTS, and PAUPERS. used, for commencing per K. B. BEFORE the statute 2 W. IV. c. 39. the means of commencing Means formerly personal actions in the court of King's Bench, conformable to its jurisdiction, were first, by original writ, which was threefold: 1. sonal actions, in against common persons a; 2. against peers of the realm, and members of the House of Commons b; 3. against corporations, and hundredors d secondly, by bill of Middlesex, or latitate: thirdly, by attachment of privilege, at the suit of attornies, and officers of the court; and fourthly, by bill; which was of three kinds: 1. against members of the House of Commons 8; 2. against attornies, and officers of the courth; 3. against prisoners in custody of the sheriff', &c., or marshal of the King's Bench prison k. In the Common Pleas, the means of commencing personal actions In C. P. were first, by original writ, issuing out of Chancery; which was either a special original, adapted to the nature of the action, or a common original, in trespass quare clausum fregit1. The former, though it might have been had in any case, was only necessary, in the first instance, against peers, corporations, and hundredors1; the latter not requiring personal service, was sometimes used, when the defendant kept out of the way, so that he could not be arrested, or personally served with process': secondly, by capias quare clausum fregit, founded on a supposed original, which was the common mode of In Exchequer. Abolished by c. 39. commencing actions in that court, and answered to the bill of Middlesex or latitat in the King's Bencha: thirdly, by attachment of privilege, at the suit of attornies, and officers of the court b: fourthly, by bill, which was two-fold; first, against attornies, and officers; and secondly, against members of the House of Commons d. If a man were in the Fleet, it seems that a plaintiff might formerly have had a bill of debt against him, in the same manner as in the King's Bench, against a man in custody of the marshal. In practice, actions against prisoners in custody of the warden of the Fleet, were commenced in the same manner as those against other persons, by original writ f. In the Exchequer of Pleas, the means of commencing personal actions were, first, by subpœna ad respondendum, which was a process directed to the defendant, analogous to the subpoena in Chancery, or on the equity side of the Exchequer : secondly, by venire facias ad respondendum, which was in the nature of an original writ, and was the process used at common law, against persons having privilege of parliament: thirdly, by quo minus capias, which answered to the bill of Middlesex or latitat in the King's Bench, and capias quare clausum fregit in the Common Pleas1: fourthly, by venire facias, or capias of privilege, at the suit of attornies, and officers of the court; and lastly, by bill, which was three-fold; first, against attornies, and officers 1; secondly, against members of the House of Commons, on the statute 12 & 13 W. III. c. 3. § 2m; and thirdly, against prisoners, in custody of the sheriff, &c. ", or warden of the Fleet o. The process formerly used for the commencement of personal stat. 2 W. IV. actions, in the superior courts of law at Westminster, having been found, by reason of its great variety and multiplicity, very inconvenient in practice P, was abolished, and other writs substituted in lieu thereof, by the statute 2 W.IV. c. 39. intituled “ An Act for Uniformity of Process, in personal Actions, in his Majesty's Courts of law at Tidd Prac. 9 Ed. 91. 153. b Id. 320. c Id. 323. d Id. 116, &c. * Id. 91, 2. f Id. 353, &c. & Id. 156, 7. h Id. 155, 6. i Id. 157. * Id. 92. 321. 1 Id. 92. 825. 66 m Id. 116, &c. n Id. 341, &c. • Id. 92. 353, &c. P Preamble to stat. 2 W. IV. c. 39. And for the variety and multiplicity of process in personal actions, previous to that statute, and the inconveniences attending the same, see the first Report of the Common Law Commissioners, pp. 70 to 101. 121, &c. 132, &c. Westminster." The writs authorized by that statute, and which are now used for the commencement of personal actions, in any of the said courts, in the cases to which such writs are applicable, are I. A writ of summons, which is of two kinds : 1. In ordinary cases, where the action is not of a bailable nature, or it is not intended to hold the defendant to special bail: 2. Against members of parliament, to enforce the provisions of the statute 6 Geo. IV. c. 16. § 10. II. A writ of capias, when the defendant is at large, or in custody of the sheriff, &c. and it is intended to hold him to special bail. III. A writ of detainer, when the defendant is in custody of the marshal of the King's Bench, or warden of the Fleet prison, and it is intended to detain him in such custody. The foregoing being declared by the statute, to be the only writs for the commencement of personal actions, in any of the courts aforesaid, in the cases to which such writs are applicable, original writs are consequently abolished, in personal actions against peers, corporations, and hundredors, as well as against common persons; together with the mode of commencing such actions by bill, against members of the House of Commons, attornies, and officers of the courts, and prisoners in custody of the marshal, or sheriff, &c. and by attachment, or capias, of privilege, at the suit of attornies and officers of the courts, in cases to which the writs authorized by the statute are applicable b; and there is of course an end, in such cases, to the distinction between the proceedings by original writ and by bill. It should be observed, how Writs authorized by that statute, for commencement of personal actions. Original writs, and mode of proceeding by bill, &c. in what cases abolished. a 2 W. IV. c. 39. § 21. Darling v. Gurney, 2 Dowl. Rep. 101. and see Darlington v. Gurney, 7 Leg. Obs. 302. Creed v. Coles, Id. 525. Excheq. This distinction chiefly depended on the manner in which original writs and theprocess thereon, and process by bill, were made returnable; and on the mode of computing the time allowed for particular purposes, in the course of the suit. Original writs, and the process thereon, were formerly made returnable on essoign or general return days, as in eight days of St. Hilary, &c., of which there were four in each term, except Easter, which had five; but process by bill was made returnable on particular return days, as on Monday (or other day of the week) next after eight days of St. Hilary, &c. The essoign or general return days were fixed and regulated by of day instant, (or next). In computing the time allowed by the practice of the courts for appearing and pleading, &c. the number of days, when not otherwise ex Cases to which stat. 2 W. IV. ever, that this statute, being confined to personal actions, does not c. 39, does not apply to such as are purely real, as the writ of right, formedon, &c., apply. or to mixed actions, as dower unde nihil habet, quare impedit, ejectment, waste, &c. But, by a subsequent statute b, real and mixed actions are abolished, except the writ of right of dower, writ of dower unde nihil habet, quare impedit, and ejectment. These excepted actions, however, may still be commenced by original writ; and the action of ejectment may be brought, as before the 2 W.IV. c. 39. either by original writ, in the King's Bench or Common Pleas a, or by bill, in the King's Bench, or Exchequer of Please. The action of replevin also, which is a personal action, and other personal actions commenced in inferior courts, and removed from thence into superior ones, are not within the statuted; for besides that these actions are not commenced in any of the superior courts of law at Westminster, there is a clause in the act ®, that "nothing therein contained shall extend to any cause removed "into either of the said courts, by writ of pone, certiorari, recordari "facias loquelam, habeas corpus, or otherwise." The King, not being named in this statute, is not bound thereby; and consequently may proceed by scire facias; which is a judicial writ, issuing out of and under the seal of the court of Exchequer, for the recovery of a debt due to him on bond, recognizance, or judgment, &c. or found by inquisition on an outlawry 8, or extenth; or by an original writ of scire pressed, was in general reckoned exclu- v. Goodenough, 2 Ad. & E. 463. Rex v. Justices of Cumberland, 4 Nev. & M. 378. 1 Har. & W. 16. S. C. Buxton v. Spires, 1 Tyr. & G. 74. 2 Cromp. M. & R. 601. 1 Gale, 322. Buxton (or Brixton) v. Squires, 4 Dowl. Rep. 365. 11 Leg. Obs. 136, 7. S. C. a Doe d. Gillett v. Roe, 1 Cromp. M. & R. 19. 4 Tyr. Rep. 649. 2 Dowl. Rep. 690. S. C. and see Doe d. Haines v. Roe, 2 Moore & S. 619. Roe, 3 Moore & S. 370. Doe d. Fry v. Doe d. Ash 1 Bing. N.R. man v. Roe, 1 Scott, 166. facias, to repeal letters patenta: And a subject is not prohibited by the statute, from suing out a scire facias, which is for some purposes considered as a personal action b, to obtain execution on a judgment, or recognizance; or a writ of error, or false judgment, which are original writs, for reversing a judgment. It has also been determined, that the statute applies to the commencement of actions only, and not to the continuance of actions, commenced before it came into operation; and that it did not, therefore, prevent the signing of a pluries bill of Middlesex, in a suit previously commenced". The writs of summons and capias, it will be observed, are only pri- Primary and auxiliary writs. mary, or writs taken out in the first instance, to compel the defendant to appear, or put in and perfect special bail to the action: But besides these, and consequent upon them, other auxiliary writs are authorized by the statute to be issued, for the same purposes. These writs are, 1. The writ of distringas, which issues where the defendant has not been personally served with the writ of summons, and has not, according to the exigency thereof, appeared to the action, and cannot be compelled so to do, without some more efficacious process f: 2. The writ of alias or pluries summons, or capias 8, for continuing the cause, if the defendant has not been served therewith, or arrested thereon: 3. The writs of exigi facias, and proclamation, &c. for outlawing, or waiving, the defendant, upon the return of non est inventus to a writ of capias, or of non est inventus, and nulla bona, to a writ of distringas1. When the writ is to be served, it is said to be serviceable; and when the defendant is to be arrested thereon, it is of a bailable nature. Serviceable and bailable writs. An infant, or person under the age of twenty-one years, not being capable of appointing an attorney, must sue by his prochein amy, or guardian, unless where he sues as co-executor with others, in which 3 Tidd Prac. 9 Ed. 1091. 1094. Co. Lit. 290. b. 291. a. Grey v. Jones, 2 Wils. 251. Pulteney v. Townson, 2 Blac. Rep. 1227. Winter v. Kretch. man, 2 Durnf. & E. 46. Tidd Prac. 9 Ed. 1096, &c. and see d Tidd Prac. 9 Ed. 1134. 1141. 1 Dowl. Rep. 516. S. C. and see Finney 40. S. C. Dickenson v. Teague, 1 Cromp. f Stat. 2 W. IV. c. 39. § 3. h Houlditch v. Swinfen, 3 Scott, 170. i 2 W. IV. c. 39. § 5. * Co. Lit. 135. b. 2 Inst. 261. 390. F.N.B. 27. H. 2 Wms. Saund. 5 Ed. 117. f. (1.) Infant must sue by prochein amy, or guar dian. |