&c. pearance for the defendant, which should be entered accordingly. CHAP. IV, But if the affidavit be insufficient, the plaintiff's only remedy is by suing out a writ of exigi facias, and proceeding thereon to outlaw the defendant, which will be noticed in the next chapter. CHAP. VII, VIII. X, XI. Of the WRIT of CAPIAS, and the EXECUTION thereof; and PROCESS of OUTLAWRY. in what actions it lies. THE writ of capias is founded on the statute 2 W. IV. c. 39. § 4. Writ of capias, by which it is enacted, that "in all personal actions, wherein it is "intended to arrest and hold any person to special bail, who may "not be in the custody of the marshal of the marshalsea of the "court of King's Bench, or of the warden of the Fleet prison, the process shall be by writ of capias, according to the form con"tained in the schedule annexed to that act, and marked No. 4."a This writ lies against all persons who are subject to a capias, and may be arrested and held to special bail; but there is a proviso in the act, that "nothing therein contained shall subject any person to arrest, who, by reason of any privilege, usage, or otherwise, may now by law be exempt therefrom." The persons against whom a writ of capias does not lie are, not to mention the sove 64 Stat. 2 W. IV. c. 39. § 4. Append. to Chap. VII, &c. § 2. And as to the writ of capias ad respondendum by original, in the King's Bench or Common Pleas, before the statute, see Tidd Prac. 9 Ed. 128, &c.; bill of Middlesex and latitat, in the King's Bench, id. 146, 7; capias quare clausum fregit, in the Common Pleas, id. 153; and quo minus, in the Exchequer, id. 157. And for the form of the writ of capias ad respondendum by original, in K. B. and C. P. see Append. to Tidd Prac. 9 Ed. Chap. VII, §1.; of the bill of Middlesex and latitat, in K. B. Id. Chap. VIII. § 6. 11. 21. 28.; of the capias quare clausum fregit, in C. P. id. § 52. 54.; and of the quo minus, in the Exchequer, id. § 111. b Stat. 2 W. IV. c. 39. § 19. Against whom. Persons privileged from arrest. Persons not subject to a capias. &c. Persons not liable to be arrested thereon. CHAP. VII, reign, ambassadors, or other public ministers; peers of the realm of England, and peeresses, whether by birth or marriage, and Scotch or Irish peers and peeresses; members of the House of Commons, or of convocation; members of corporations aggregate ©, or hundredors, for any thing done in their corporate capacity, or on the statute 7 & 8 Geo. IV. c. 31.; and attornies, or other officers of courts of justice. There are also other persons, who, though they were formerly subject to a capias, are not liable to be arrested thereon; as the servants in ordinary of the King, or Queen regent, without notice first given to, and leave obtained from the lord chamberlain of the royal household; executors and administrators, when they merely act en auter droit, and have duly administered the effects of the deceased; heirs and devisees, when sued on the bond or obligation of their ancestors, or devisors e; married women, for debts contracted before or after coverture, unless, in the latter case, they have appeared and acted as femes sole, and obtained credit in that character, under false and fraudulent pretences; seamen, marines, and soldiers, for debts under a certain amounth; bankrupts, in coming to surrender and finish their examination; and, after they have obtained their certificates, for debts contracted prior to their bankruptcy; and insolvent debtors, discharged under the statute 7 Geo. IV. c. 57, for debts due at the time of filing their petitions. It is also observable, that defendants have, in some cases, only a temporary or local privilege from arrest: Thus, the parties to a suit, and their attornies, witnesses, &c., are, for the sake of public justice, privileged from arrest, in coming to, attending upon, and returning from the courts; or, as it is usually termed, Persons having a temporary or local privilege from arrest. &c. eundo, morando, et redeundoa: clergymen also were privileged, in CHAP. VII, going to and returning from church, or performing divine serviceb: and every person is privileged from arrest on Sunday, except in cases of treason, felony, or breach of the peace; and in his own house, provided the outer door be shut; or in the King's presence, or within the verge of his royal palace, except by an order from the board of green cloth, or unless the process issue out of the palace court; or in any place where the King's justices are actually sitting 4. Direction, and form of capias. The writ of capias is a non omittas writ, directed to the sheriff, or other officer or person by whom the same is to be executed, in like manner as the writ of distringase; commanding him, that he omit not by reason of any liberty in his bailiwick, but that he enter the same, and take the defendant, (stating the place and county of his residence, or supposed residence,) if he shall be found in his bailiwick, and him safely keep, until he shall have given the said sheriff, &c. bail', or made deposit with him, according to law, in an action on promises, (or, of debt, &c.,) at the suit of the plaintiff, or until the defendant shall by other lawful means be discharged from his custodyh; and that, on execution thereof, the said sheriff, &c. do deliver a copy thereof to the defendanth: and requiring the de- Notice to defendant to take notice, that within eight days after the execution. thereof on him, inclusive of the day of such execution, he should cause special bail to be put in for him, in the court where the action is brought, to the said action h; and that, in default of his so doing, such proceedings may be had and taken, as are mentioned in the warning thereunder written, or indorsed thereonh: And When to be refurther commanding the said sheriff, &c. that immediately after the execution thereof, he do return the writ to the said court, a Tidd Prac. 9 Ed. 195. b Id. 219. с Id. 218. dId. 219. с Ante, 78. For the form of the bail bond, see Append. to Chap. VII, &c. § 11. And as to bail to the sheriff, and his duty to take the same, see Tidd Prac. 9 Ed. 221.223.; and as to the bail-bond, in what sum it should be taken, the form of it, and the consequences of its varying As to the defendant's depositing fendant. turned. &c. CHAP. VII, together with the manner in which he shall have executed the same, and the day of the execution thereof; or that, if the same shall remain unexecuted, then that he do so return the same, at the expiration of four calendar months from the date thereof, or sooner, if he should be thereto required, by order of the said court, or by any judge thereofa. tine. Writ of capias, The writ of capias, as well as the distringas, into the counties to county pala- palatine of Lancaster and Durham, is required, by a general rule of all the courts, to be directed to the chancellor of the county palatine of Lancaster, or his deputy, or to the bishop of Durham, or his chancellor; and commands the former, that by his writ, under the seal of the said county palatine, to be duly made, and directed to the sheriff of the said county palatine, he command the said sheriff, (or, if in Durham, that the bishop, by his writ, under the seal of his bishoprick to be duly made, and directed to the sheriff of the county of Durham, cause the said sheriff to be commanded,) that he omit not by reason of any liberty in his bailiwick, but that he enter the same, and take the defendant, &c. (as in common cases): And that he further command him, that on execution thereof, he do deliver a copy thereof to the said defendant; and that the said writ do require the said defendant to take notice, &c.; and that he further command the said sheriff, that immediately after the execution thereof, he do return that writ, &c. (as in the ordinary capias, with the like memorandum, warning, and indorsements.) Defendant's names should be inserted in writ. Initials of his By R. H. 2 W. C The christian and surnames of the defendant, if known, should be inserted in the writ: And where he was described in the process, and affidavit to hold to bail, by the initials of his christian name only, the courts would formerly have ordered the bail bond to be delivered up to be cancelled, and the defendant discharged, upon entering a common appearance. But, by a late rule of all the courts, "where the defendant is described in the process, or affidavit to hold to bail, by initials, or by a wrong name, or without a christian name, the defendant shall not be discharged out of custody, or the a Sched. to stat. 2 W. IV. c. 39. No. 4. Append. to Chap. VII, &c. § 2. b R. M. 3 W. IV. reg. 16. 2 Moore & S. 338. 9 Bing. 450, 51. Ante, 81. Append. to Chap. VII, &c. § 3. C d Reynolds v. Hankin, 4 Barn. & Ald. 536. and see Parker v. Bent, 2 Dowl. & R. 73. M'Beath v. Chatterley, id. 237. K. B. Taylor v. Rutherman, 6 Moore, 264. C. P. eR. H. 2 W. IV. reg. 1. § 32. 8 Bing. 292. 2 Sup. to Tidd Prac. 9 Ed. 12. CHAP. VII, &c. bail bond delivered up to be cancelled, on motion for that purpose, if it shall appear to the court, that due diligence has been used to obtain knowledge of the proper name." In the construction of this rule, due diligence was holden to have been used, in inquiring the name of a defendant, although no inquiries had been made of him, or his immediate friends, or at his house, or place of business; the debt being large, and the affidavits shewing that there was ground to fear he might abscond, if he knew that proceedings were about to be instituted. And now, by the late act for the By stat. 3 & 4 further amendment of the law", &c. in "all actions upon bills of ex"change or promissory notes, or other written instruments, any of "the parties to which are designated by the initial letter or letters, "or some contraction of the christian or first name or names, it "shall be sufficient, in every affidavit to hold to bail, and in the process or declaration, to designate such person by the same "initial letter or letters, or contraction of the christian or first name or names, instead of stating the christian or first name or names in full." 66 The defendant's residence or place of abode should also be inserted in the writ of capias: And there is a rule of the court of King's Bench, that "the attorney concerned for the plaintiff in the cause, or his agent, shall, upon all bailable mesne process, and every writ of attachment, and fieri facias, and capias ad satisfaciendum, indorse the place of abode and addition of the party against whom the writ is issued, or such other description of him as such attorney or agent may be able to give." On this rule it has been determined, that a sheriff is not bound to execute bailable process, in which the place of abode and addition of the defendant are not indorsed, although, at the time of receiving the capias, he made no objection to the want of such indorsement. W. IV. c. 42. Defendant's residence, or place of abode. of writ. The writ of capias must bear date on the day on which it is Date and teste issued; which requisite, we have seen 5, is not satisfied by a day being indorsed on the writh; and it must be tested in the name of |