Underhill v Devereux
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 698
COURT OF KING'S BENCH
[68] 10. underhill versus devereux. Easter, 21st King Charles II. Roll 558. Our lord the King hath sent to the Sheriff of Warwickshire his writ close in these words, to wit: Charles the Second, by the grace of God, of England, Scotland, Prance, and Ireland, King, defender of the faith, &c. to the Sheriff of Warwickshire, greeting: whereas Walter Devereux, Esq. lately in our Court, before us at Westminster, by bill without our writ, and by the judgment of the said Court, recovered against Sir William Underbill, Knight, 15581. for his damages which he sustained as well on occasion of certain trespasses and assaults lately committed by the said Sir William on the said Walter, as for his costs and charges by him about his suit in that behalf expended, whereof he is convicted, as appears to us of record : and whereas the said Walter afterward, to wit, on the 30th day of May in the 14th year of our reign, came into our Court before us at Westminster, and chose(l) to be delivered to him all the (1) At common law, the conusee of a recognisance,(a) or a plaintiff who had recovered judgment for debt or damages, was entitled only to two writs of execution, which he was bound to sue out within a year after the recognisance or judgment; one, a writ of levari facias, by which the sheriff might levy the corn, and other present profit which grew upon the land, and the rents payable by the tenants, and the beasts levant and couchant upon the land, because in all cases of levari facias the land is considered as the debtor; Plowd. 441, Davy v. Pepys. Skin. 619, Breton v. Cole. See ante, p. 6, Jeffreson v. Morton, note (1); and the other a writ of fieri facias, byjwhich the sheriff was to seize the goods and chattels in execution. Indeed, in all actions of trespass vi et armis, because the act was.committed with force, the law allowed the defendant to be arrested on mesne process by a writ^of capias ad respondendum; and if the plaintiff recovered judgment, he might sue out a writ of capias ad tsatisfaciendum against him ; it being a rule that where a capias lies in process (b), a capias ad satixfaciendum will lie after (a) A recognisance is an acknowledgment or obligation of record, but it is not perfect until it is enrolled ; therefore the word " recognisance " does not of itself import a record ; and in pleading a recognisance, the enrolment mast be averred, or the opposite party is not bound to treat it as a record, but may reply nil debet. 1 B. & A. 153, Glynn v. Tfwi-pe. (b) [Since the stat. 1 & 2 Viet. c. 110, a capias in mesne process cannot be issued against any person at large, except by a Judge's special order, to be obtained at some time after the commencement of the suit and before final judgment, upon satisfying him, by affidavit, that the cause of action amounts to 201. and upwards, and that the debtor is about to quit England, unless forthwith apprehended.-The application for the order must be made to a Judge, and not to the Court. 7 M. & W. 146, Bentley v. Berrey. 1 Dovvl. N. S. 774, Bamett v. Craw. The affidavit, in order to obtain the order, may be sworn before the suing out of the writ of summons by which the action is commenced, though there was some doubt on the matter at first, because of the word "plaintiff" in the statute; but the point came under the consideration of the Judges, and they came to the conclusion that it ought to have the same meaning as in the stat. 12 Geo. 1, c. 29, where the same word is used to signify a party who intends to become plaintiff, and with that view makes an affidavit to hold to bail. 7 M. & W. 389, SrJiletter v. Cohen. Such an affidavit need not be entitled in the cause; but it is otherwise where a writ has been issued, because then there is a cause in Court. Ibid. A writ of summons must be sued out before the capias can be applied for; but the defendant need not be actually served with a copy thereof before he is arrested. 8 Dowl. 370, Brooke v. Snell. However, he is certainly entitled to have a 2 WMS. SAUND. 8. HIL. 21 AND 22 CAR. II. REGIS 699 goods and chattels of the said Sir William, except the oxen and beasts of his plough, and also a moiety of all the lands and tenements of the said Sir William, in your county, to hold to him and his assigns by a reasonable price and extent, according to the form of the statute thereof lately made and provided, until the damages aforesaid judgment. 3 Rep. 11 b. 12 a. Sir William Harbert's case, 2 lust. 394. The first time that land was subjected to the execution of a judgment or recognisance, was by the Statute of Westminster 2 (13 Edw. 1), c. 18, which enacts, that "when debt is recovered or acknowledged in the King's Court, or damages awarded, it shall be copy of the writ of summons served on him; for, until then, he cannot tell what he is to answer. Accordingly, in one case the Court granted a rule to discharge the defendant out of custody, unless within four clays the plaintiff served him with a copy of the writ of summons. Ibid. It has been laid down that the affidavit ought regularly to shew the belief of the deponent that the defendant is about to quit England unless forthwith apprehended, and the facts on which such belief is grounded. 5 Bing. N. C. 49, Bateman v. Dunn. 6 Scott, 739, S. C. But an order may be made on an affidavit of the plaintiff, that he has been informed and believes that the defendant is about to leave England, provided it state the name and description of the person from whom he has received such information. 11 M. & W. 173, Gibbons v. Spalding. And it has been held that the affidavit need not state that the deponent has probable cause for believing that the defendant is about to quit England ; it is sufficient if the facts stated enable the Judge to form that belief. 8 M. & W. 147, Willis v. Snook. See 7 Dowl. 725, Harvey v. O'Meara. Where an application is made to set aside the order for the capias on the ground of irregularity, it must be made promptly, and, as it seems, within the time allowed for putting in bail. 5 M. & W. 30, Sugar* v. Concannen But it is otherwise where it is founded on the ground of a substantial objection to the arrest. 9 Dowl. 131, Walker v. Lumb. The application for the defendant's discharge, on the ground that the order was obtained on insufficient affidavits, should be by motion to set aside the Judge's order, not the capias. 5 M. & W. 423, Hopkins v. Salernbien: On such an application, fresh affidavits may be used on both sides; 1L M. & W. 173 ; but the former affidavits ought also to be brought before the Court. 11 M. & W. 669, Heath v. Nesbit. 4 Scott, N. R. 773, Needham v. Bristow. 4 Mann. & Gr. 262, S. C. However, a motion may be made under the sixth section of the statute, to discharge the defendant from custody, or to cancel the bail-bond, without impeaching either the capias or the Judge's order; and in such a case the affidavits used on the application to the Judge need not be brought before the Court, 4 Scott, N. R. 773. 4 Mann. & Gr. 262. Where the defendant is about to leave the kingdom for a temporary purpose only, and it appears that he is intending to return, as in the instance of a captain of a steamer trading between Hull and Hamburgh, and about to depart on one of his regular voyages, the order for a capias ought not to be made. 1 Dowl. N. S. 849, Atkinson v. Blake. But it may be obtained, if it appears that the defendant is about to leave the country for such a time that he is not likely to be forthcoming to satisfy the plaintiffs execution at the period when he will be entitled to it in the ordinary course of law proceedings; as in the instance of an officer in the Army about to join his regiment stationed abroad. 4 M. & W. 351, Larchin v. Willan. It is not requisite that the party to be arrested should be domiciled, or have his usual place of abode, in England. 3 G. & D. 256, Lamond v. Eiff'e. The capias may be issued against an attorney. 1 Dowl. N. S. 283, Thomson v. Moore,, coram Pateson J. S. P. Flight v. Cook, Bail Court, Nov. 1843, cwam Wightman J. And it may be issued into a County Palatine, to be executed in that county, although it be indorsed for a less sum than 501. 7 M. & W. 196, Brown v. McMillan. The capias may be ordered at any stage of the cause before final judgment; for the action is in all cases commenced by the writ of summons, and the capias is a writ of mesne process in the sense only of being a proceeding to be taken between the commencement of the suit and final judgment, and it is issued for the collateral purpose of obtaining security for the amount of the plaintiff's claim, if recovered in the suit, and not for the advancement of the suit itself. 7 M. & W. 200. See, also, 2 Q. B. 113, Beits v. Smith. 1 G. & D. 284, S. C. 11 M. & W. 61, Ede v. Collingridge. Ante, Vol. II. p. 61 700 UNDERBILL V. DEVEREUX 2 WHS. SAUND. 68. should be thereof fully levied; whereupon by our writ, we commanded the Sheriff of the said county of Warwick, that he should cause to be delivered to the said Walter, by a reasonable price and extent, all the goods and chattels of the said Sir William in his bailiwick, except the oxen atid beasts of his plough, and also a moiety of all from henceforth in the election of him that sueth for such debt or damages, to have a writ of fieri facias unto the sheriff to levy the debt of the lands and goods; or that the sheriff shall deliver to him all the chattels (saving only his oxen and beasts of his plough), and the one half(c) of his land, until the debt be levied, upon a reasonable price or extent. And if he be put out of that tenement, he shall recover by a writ of novel disseisin, or after, by a writ of redimeisin, if need be." This writ ig called an elegit, because the plaintiff or conusee has made his election to sue out execution of the land itself which is given by this statute, instead of the common law execution of the...
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