the above Proceffes, i. e. the Capias, Alias, and Pluries, were grounded on the Defendant's Contempt in not obeying the Summons, and appearing accordingly; and which iffued to compel his Appearance, and not to imprison the Body for the Debt only.

If the Defendant caft an Effoin, he had of courfe Time given him to the next Term. In fome Cafes the Defendant had two Effoins allowed him, until the Delays thereby grew fo great an Hindrance to Justice, that in many Cafes they were difallowed. See Stat. Weft. 2. and 12 E. 2. But it is difficult to fhew when it became the Practice for the Sheriff, in order to take away Effoins, to return the Original Writ of Course by Nil habet, that the Capias might iffue thereon, and the Defendant to be arrefted without being first summoned: Though we can't obferve the Inconveniences previous to it, yet we may judge of the Severities that enfued.

For, if the Defendant was taken by the Capias, Alias, or Pluries, the Sheriff was not obliged to take Bail for his Appearance, unless the Defendant fued out a Writ of † Mainprize,

Before the Stat. of Westminster 2. c. 10. All Attornies, it is faid, were made by Letters Patent under the Broad Seal, and thefe Patents were inrolled by the Clerk of the Warrants; but this Statute gives Liberty to all Perfons of appearing by, and appointing an Attorney ; and then the Clerk of the Warrants received each Perfon's Warrant of Attorney, after which Effoins were caft, and Appearances were by Attornies, and not in Perfon fo frequently as ufed to be before.

+ See Natura Brev. for this Writ.

becaufe

because the Writ commanded him to take him, fo that he might have his Body, &c. though he might take Bail for him of his own Accord. Therefore, by the 23 H. 6. c. 10. the Sheriff is obliged to take Bail, otherwise an Action lies against him; and the Plaintiff is at Liberty to take an Affignment of the Bail Bond, or, upon his Return of Cepi Corpus, amerce the Sheriff for not bringing in the Body.

From hence it is concluded, that after it became the Practice for the Sheriff to return the Original by Nil habet of course, every Defendant used to be arrested on the Capias, as on the Bill of Middlefex; and upon fuch Arrest was obliged to give Bail to the Sheriff to appear; or elfe (where the Action was for fomething of fmaller Concern) fend to an Attorney to undertake to appear for him; which was done, if the Sheriff thought proper to accept of it, by his indorfing on the Back of the Writ, or Warrant, fuch his undertaking to appear for the Defendant; and there are fome Inftances where Attornies have been fined, or ordered to pay Cofts, c. for refufing to appear according to his Undertaking.

If the Defendant was arrefted for 207. or. above, the Plaintiff's Attorney, by entering a Ne recipiatur with the Filazer, did crave fpecial Bail to the Action; for this Ne re

**

cipiatur

*The giving Bail to the Action came in on returning the Capias by Cepi C. D. cujus Corpus, &c. for before then, if the Defendant did not appear on the Summons, the Sheriff might attach him by his Goods,

༡

or

cipiatur was, that no Warrant of Attorney, or Appearance fhould be received until Bail was filed with the Judge; and therefore it was irregular for the Defendant to file a Warrant of Attorney, before Bail was put in. And this Rule was taken from the Practice of the King's Bench, where they discharged no Perfon out of Custody, without fpecial Bail, if the Debt was 20 l. But here, as well as in that Court, in Lord Wentworth's Time, it funk down to 10%.

The Hardship in this Cafe was, that the Defendant's Bail were obliged to travel to Town, live where they would, to put in Special Bail; for the Judges were not impowered to appoint Commiffioners in the Country to take Recognizances of Bail until the 4th of W. &.

*

M. c. 4.

or by Pledges; if by his Goods, and he did not appear, they were forfeited; if by Pledges, and he did not appear, the Pledges were amerced. And this Bail, as Pledges are difufed, fupply their Place.

The Commiffioners appointed are Juftices of Peace, or Barristers at Law, who refide in the Country, and are fo few therein, that it now frequently happens, (efpecially where the Arreft is upon a fhort Return) that after a Man and his Bail have been riding from Town to Town after a Commiffioner, to take the Recognizance, they can't meet with one, and are obliged at last to come to London, to put in Bail before a Judge, to prevent an Affignment of the Bail-bond; and what adds to this Mifchief, is, that if Bail is put-in in Town, fuch Bail must justify in Town; confequently a Man and his Bail may be kept a Week in Town from their Bufinefs; for, if they go down, they must come up again to justify. This is a Hardship that may be eafily remedied.

But

But as it was become the general Practice, in both Courts, for a Man to be arrested upon a general Writ of Capias Claufum fregit, Bill of Middlefex, Latitat, &c. for 40s. and lefs, and even where, as in Trefpafs, nothing was due, and where only Common Bail, or a Common Appearance could be required, without ever expreffing the Cause of Action, many litigious and vexatious Proceedings arofe, and extraordinary Bail was exacted by the Sheriff's Officers, &c. as are complained of by the Statute. Therefore, to restrain these Abuses, the 13 Car. 2. was made, whereby the Sheriff is reftrained from taking any greater Security than 401. unless the true Caufe of Action was expreffed in the Writ. And this, as before obferved, gave Rife to the inferting the Ac etiam in the. Proceffes of each Court, thereby to fet forth the Caufe of Action; but yet, as no Proof was required to be made of the Debt, or Cause of Action, previous to the fuing out the Writ, Ac etiams were nevertheless (where Ill-nature and Malice prevailed) inferted therein, and thofe litigious and vexatious Proceedings still continued, to the great Injury, Oppreffion, and Expence of the Defendant.

For when a Man was arrested on such a Procefs, and could not find Bail to the Sheriff, he had no way left to obtain his Discharge, but by Jummoning the Plaintiff before a Judge, to fhew his Caufe of Action, which was generally done by the Plaintiff's fwearing to his Debt; if not, the Defendant was difcharged by the Judge's Order. But all this while the Defendant continued in Custody on the Arreft, and though the Defendant could give Bail to the Sheriff,

yet

yet Summons's were no lefs as frequently taken out, to fhew Caufe why Common Bail, or a Common Appearance should not be accepted, to avoid putting in Bail to the Action. Here was rare Work for the Attornies! It is more eafy to conceive, than exprefs, the litigious and vexatious Mischiefs in the Practice, while these Proceedings continued; and yet it was not remedied until the 12 G. 1.

By this Statute the Plaintiff is obliged to make an Affidavit of his Debt or Cause of Action, and that the Sum due is 10. or upwards, previous to fuing out the Procefs, to hold the Defendant to Bail; for if the Sum is not 10 l. the Defendant is not to be arrested, but is to be ferved with a Copy of the Procefs only, with an English Notice thereto, (for the Process still continued in * Latin) to fhew the Intent of fuch Service. This was an excellent Law indeed! and worthy of being made perpetual! for it introduced a new and eafy Method of fummoning the Defendant to appear; and through this, as obferved, the Common Bail-Piece was altered in it's Form.

As to the Defendant's Appearance in this Court, where fpecial Bail was not required, it was made by a fhort Note of the Attorney, and is now thus:

William the Firft brought in the Norman Language, but the Proceedings were recorded in Latin, being a dead Language, and not fubject to Variation. The French continued till Hill. 36 Ed. 3. when it was abolished, though Notes were much longer continued to be taken in French; and Proceedings continued to be recorded in Latis until 4 Geo. 2.

B