No person shall be arrested upon mesne process.]— A person in the custody of the Court cannot be arrested (a). The meaning is, that no person shall be held to bail by any means. Arresting is only a preliminary act.

This section does not make void such writs as might have been issued and not executed, before the commencement of the Act. The Uniformity of Process Act authorizes the service of a capias upon one or more of the defendants, and one of the warnings at the foot is adapted to give the defendant the requisite information. This Act repeals so much of the former as authorizes the arrest; it also enacts that all future actions shall be commenced by writ of summons, but it does not otherwise interfere with existing suits. Hence it is conceived that the capias might be served on all the defendants, and that it will have the same effect as a writ of summons, otherwise there would be no mode of saving the Statute of Limitations, or of securing the costs of that writ.

The Uniformity of Process Act treats the writs of capias and summons as distinct species of process for the commencement of actions. From the language of the 10th section, it seems that an action commenced by the one could not be continued by means of the other; and the forms of alias and pluries writs, and the forms of declaration given by the rules on that statute (b), lead to the same conclusion. Under the old practice, the test was whether all the writs might have been declared on in the same way. Hence an ac etiam latitat was a good continuance of a non-bailable Bill of Middlesex (c), but an attachment of privilege was not (d). It seems, therefore, that if a capias expires after the commencement of the Act, the proceedings can only be continued by an alias capias. For all other pur

(a) See 2 Will. IV. c. 39, ss. 4, 8.

(b) M. T. 3 Will. IV. r. 7, 15.

(c) Plummer v. Woodburne, 4 B. & C. 625. (d) Smith v. Bower, 3 T. R. 662.

poses, the writ of capias must be considered as abolished; consequently proceedings to outlawry must be commenced in all cases by summons. But the Act does not affect the capias utlagatum, nor any other writ founded on a judgment.

In any civil action in any inferior Courts whatsoever.]-Not only cannot an inferior Court issue its own process to hold to bail, but no arrest can be had where the action is brought in an inferior Court, until it be removed by certiorari. The Courts of Lancaster and Durham are ranked amongst the superior Courts, and the power to hold to bail is extended to those Courts by the 21st section, (infra.)

By the 7 & 8 Geo. IV. c. 71, s. 7, it is enacted, "that no sheriff or other officer within the counties

palatine of Lancaster or Durham, shall, upon any mesne process issuing out of any of his Majesty's Courts of Record at Westminster, arrest or hold any person to special bail, unless such process shall be duly marked and indorsed for bail in a sum not less than fifty pounds." This statute is not repealed. Had the Act passed in the shape in which it left the House of Lords, no person could have been arrested in those counties for any amount less than 50%., since it deprived all but the Courts of Westminster of the power to hold to bail, and this was confined, as now, to actions in those Courts. There will still be considerable inconvenience where the debt is under that amount. The order to hold to bail must be obtained in London, except during the assizes, and it cannot be applied for till an action has been brought in the Palatine Court. The writs are issued in the respective counties. A debtor therefore who reaches Liverpool from any other county, will have ample time to escape before a writ can be lodged in the sheriff's hands; and, to arrest him there, the plaintiff must forego the expense of all the proceedings which he has taken, and commence his action anew.

II. And be it enacted, that all personal ac- All actions tions in Her Majesty's superior Courts of Law to be com menced by

B 2

writ of sum- at Westminster, shall be commenced by writ of

This enactment will introduce a variety of alterations in the practice of the Courts, one of the most important of which, to the plaintiff, seems to be, that his proceedings will go on irrespective of the arrest, and without being obstructed by the delay either of the sheriff or the defendant.

If, before this Act, the defendant failed to put in bail in due time, or, what was equivalent thereto, to render himself to prison, the plaintiff could not proceed in the action. He might have filed a declaration de bene esse, but this was only in anticipation of bail or render; if he declared absolutely, or demanded or accepted a plea, or did any other act to shew that he deemed the defendant to be in a condition to plead, this was a waiver of bail. The reason was, that the defendant was not fully in Court until he had perfected bail or rendered, these being the proper modes of appearing to bailable process. The writ of summons will now be the commencement of the action, and the capias only an auxiliary proceeding. Now the statute 2 Will. IV. c. 39, c. 2, enacts, "that the mode of appearance to such writ shall be by delivering a memorandum in writing, according to the form contained in the schedule thereto;" and there is nothing in the present Act to vary this mode, consequently an appearance must be entered in all cases. The defendant will then be in Court, and the plaintiff may at once proceed to judgment. There can be no declaration de bene esse. How far such proceedings, after default, will affect his remedy against the sheriff, or on the bail-bond, or whether he will be allowed to proceed against all parties concurrently, are questions which will probably be settled by Rule of Court.

Another question, and one of some difficulty, relates to the time within which the plaintiff must proceed when the defendant is in custody.

new.

The 4th section of the Uniformity of Process Act,
which allows him till the end of the next term after
the arrest or detainer to declare, and the rule of
T. T. 3 Will. IV., which compels him to declare
within that time, do not of course apply to the new
writ of capias. But neither of these provisions was
The statute 4 & 5 W. & M. c. 21, referred
to by the Uniformity of Process Act, enacts,
"that if
any defendant be taken or charged in custody at the
suit of any person upon any writ out of any of the
Courts at Westminster, and imprisoned for want of
sureties for his appearance, the plaintiff in such suit
may, before the end of the next term after such writ is
returnable, declare against such prisoner in the Court
out of which the writ issued, whereupon the said pri-
soner was taken and imprisoned or charged in custody,
and may cause a true copy thereof to be delivered to
such prisoner, or to the gaoler or keeper of the
prison or gaol in whose custody such prisoner shall
be or remain; to which declaration the said prisoner
shall appear and plead; and if such prisoner shall
not appear and plead to the same, the plaintiff in
such case shall have judgment in such manner as if
the prisoner had appeared and refused to answer or
plead to such declaration" (e). And by an old rule
of each Court (ƒ) it was ordered, that if the decla-
ration were not filed within that time, the prisoner
should be discharged. This statute was passed to
prevent the necessity of bringing up the prisoner by
habeas corpus, in order to charge him with a decla-
ration, and is the only authority for declaring against
him in the custody of the sheriff. It made no al-
teration with regard to the time, for when a habeas
corpus was necessary, the prisoner must have been
brought up within two terms (g), and the same
period was subsequently fixed for declaring after a
render (h).

(e) See R. H. 2 Will. IV. r. 36.
(f) E. 5 Will. & Mary, R. 3, s. 6.
(g) Tidd's Prac. 348.

(h) Id. 354, et seq.

The question is then, whether these regulations apply to the proceedings in an action commenced by writ of summons, in which the plaintiff is at liberty and may be compelled to declare, without reference to the state of the proceedings under the arrest, and consequently may be non-prossed before the two terms have expired. The distinction between bailable and non-bailable actions, in point of form, originated with the Uniformity of Process Act, though, whenever an arrest was had, it was before a preliminary, now it is an interlocutory proceeding. This, it is conceived, makes no difference. The defendant will still be in custody at the plaintiff's suit, and this seems to be all that is requisite to bring the case within the reason and language of the rule. And the right to a supersedeas did not terminate, nor depend on the termination of the action, for the defendant might, in many cases, have nonprossed the action, and thus procured his discharge.

The result, therefore, seems to be, that the plaintiff must declare before the end of the term next after the arrest or render, though the defendant take no step, but that the latter will now have it in his power to quicken the proceedings by demanding a declaration at the expiration of the term next after the day on which the appearance was or ought to have been entered. But if he suffer the plaintiff to appear for him sec. stat. he cannot sign judgment of non-pros for not declaring (i).

If these regulations apply as to the time, it seems they must also govern the mode of declaring. But the affidavit must be filed, as well as the declaration served, within the two terms (j).

The rule 2 Will. IV. r. 85, which directs "that the plaintiff shall proceed to trial or final judgment against the prisoner within three terms inclusive after declaration, and shall cause the defendant to be charged in execution within two terms inclusive after such trial or judgment, of which the term in

(i) 13 Car. II. st. 2, c. 2, s. 3. (j) R. H. T. 2 Will. IV. r. 36.