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.

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 L d the kind at Westmi r, on day prefixed to answer to the pltf if a plea of trespass. For this accusation of trespass it is, that gives the c t of K.B. jurisdict n 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 c t, for the supposed trespass, he, being then a prisoner of this c t, may here be prosecuted for any other species of injury. Yet in order to found this jurisdict n, 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 c t a jurisdict n 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 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.

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 c t to defend this act n; which in effect reduces it to a mere summons. And if the deft thinks proper to appear upon this 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

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 c t, & 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.