Mode of re-imbursing high constable, for his &c. trict, nor on such high constable; but the sheriff, upon the receipt of "the writ of execution, shall (on payment of the fee of five shillings, and no more,) make his warrant to the treasurer of the county, riding or "division, in which such hundred or other like district shall be situate, "commanding him to pay to the plaintiff, the sum by the said writ directed "to be levied; and such treasurer is thereby required to pay the same, 66 as also any other sum ordered to be paid by him by virtue of that act, "out of which shall then be in his hands, or shall come public money any "into his hands before the next general or quarter sessions of the peace "for the said county, riding or division; and if there be not sufficient 66 money for that purpose, before such sessions, he shall give notice thereof "to the justices of the peace at such sessions, who shall proceed in the 66 manner thereinafter mentioned a." For the purpose of indemnifying the high constable, and county treasurer, it is enacted, that "if such high constable of the hundred, or other expences, in de- " district sued, shall produce and prove before any two justices of the fending action, "peace of the county, riding or division, residing in or acting for such "hundred or district, an account of the just and necessary expences, " which he shall have incurred in consequence of any such action as aforesaid, such justices shall make an order for the payment thereof, upon the "treasurer of the county, riding or division, in which such hundred or "district shall be situate; and if, in any such action, judgment shall be given against the plaintiff, the high constable shall, in like manner, be "reimbursed for the just and necessary expences by him incurred in con66 sequence of such action, over and above the taxed costs to be paid by "the plaintiff in such case; and if it shall be proved to any two such justices, that the plaintiff in the action is insolvent, so that the high “constable can have no relief as to such taxed costs, such justices shall "make an order upon the treasurer of the county, riding or division, as Reimbursing county treasu rer. Summary mode of proceeding, in cases where the 66 66 aforesaid, for the payment of the amount of such taxed costs: And the justices of the peace, at the next general or quarter sessions of the peace "to be holden for any such county, riding or division, or any adjournment "thereof, shall direct such sum or sums of money as shall have been paid, "or ordered to be paid, by the treasurer, by virtue of any such warrant or "order as thereinbefore mentioned, to be raised on the hundred, or other "like district, against the inhabitants of which any such action shall have "been brought, over and above the general rate to be paid by such hun❝dred or district, in common with the rest of the county, riding or divi"sion, under the acts relating to county rates; and such sum or sums “shall be raised, in the manner directed by those acts, and shall be forth"with paid over to the treasurer b.” It being deemed expedient to provide a summary mode of proceeding, where the damage is of small amount; the costs of an action in such case a § 6. b § 7. And for the mode of reimbursement, in liberties, &c. not within any hundred, but contributing to the county rate, and in counties of cities, and liberties, &c. not contributing thereto, see § 14, 15. 66 greatly exceeding, in many instances, the amount of the damage; it is after such appointment, give notice in writing to the claimant, of the day and hour, and place appointed for holding such petty session, and "shall, within ten days, give the like notice to all the justices acting for "such hundred or district; and the claimant is thereby required to cause 66 damage does not exceed 301. a notice in writing, in the form in the schedule thereunto annexed, to "be placed on the church or chapel door, or other conspicuous part of the parish, township or place, in which such damage shall have been sus"tained, on two Sundays preceding the day of holding such petty session. "And it shall be lawful for the justices, not being less than two, at such "petty session, or any adjournment thereof, to hear and examine, upon " oath or affirmation, the claimant, and any of the inhabitants of the hun"dred, or other like district, and their several witnesses, concerning any "such offence, and the damage sustained thereby; and thereupon the said justices, or the major part of them, if they shall find that the claimant “has sustained any damage, by means of any such offence, shall make an "order for payment of the amount of such damage to him, together with "his reasonable costs and charges, and also an order for payment of the "costs and charges, if any, of the high constable, or inhabitants; and "shall direct such order or orders to the treasurer of the county, riding ❝or division, in which such hundred or district shall be situate, who shall "pay the same to the party or parties therein named, and shall be reim"bursed for the same, in the manner thereinbefore directed. And if any high constable shall refuse or neglect to exhibit or give such notice as is required in any of the cases aforesaid, it shall be lawful for the party 66 Penalty on high constable, for neglect of duty. Mode of proceeding, where the damage is committed in the county of a city, or in any liberty, &c. which is not within any hundred, or does not contribute to the county rate. Execution, on c. 34. § 6. «damnified to sue him for the amount of the damage sustained, such "amount to be recovered by an action on the case, together with full "costs of suit." Where any of the offences, for which compensation is granted by virtue of that act, are committed in the county of a city or town, or in any such liberty, franchise, city, town or place, as either does not contribute at all to the payment of any county rate, or contributes thereto, but not as being part of any hundred, or other like district; it is enacted, that "the inha"bitants thereof shall be liable to yield compensation, in the same manner, " and under the same conditions and restrictions in all respects, as the "inhabitants of the hundred; and every thing in that act in any wise "relating to a hundred, or to the inhabitants thereof, shall equally apply "to every county of a city or town, and to every such liberty, franchise, city, town and place, and to the inhabitants thereof; and where the jus"tices of the peace of the county, riding or division, are excluded from "holding jurisdiction in any such liberty, franchise, city, town or place, "in every such case, all the powers, authorities and duties, by that act "given to or imposed on such justices, shall be exercised and performed "by the justices of the peace of the liberty, franchise, city, town or place, "in which such offence shall be committed; and where the offence shall "be committed in a county of a city or town, all the like powers, autho"rities and duties, shall be exercised and performed by the justices of the I peace of such county of a city or town: And in every action to be "brought, or summary claim to be preferred, under that act, against the "inhabitants of a county of a city or town, or of any such liberty, fran"chise, city, town or place, the process for appearance in the action, and "the notice required in the case of the claim, shall be served upon some "one peace officer of such county, liberty, franchise, city, town or place: "And all matters which by that act the high constable of a hundred is "authorized or required to do, in either of such cases, shall be done by "the peace officer so served, who shall have the same powers, rights and "remedies, as such high constable has, by virtue of that act, and shall be "subject to the same liabilities; and shall, notwithstanding the expiration "of his office, continue to act, for all the purposes of that act, until the "termination of all proceedings in, and consequent upon such action or "claim; but if he shall die before such termination, his successor shall "act in his stead a." In following up a writ of execution to its consummation, under the stastat. 19 Geo. II. tute of hue and cry, 8 Geo. II. c. 16. which the subsequent statute of 19 Geo. II. c. 34. § 6. refers to, and adopts as the mode of proceeding in case of a penalty recovered by the executor of a revenue officer killed in pursuit of smugglers, against the inhabitants of the hundred, (or of a Lathe, in Kent), and which latter statute is not repealed by 7 & 8 Geo. IV. c. 27. it is sufficient for the sheriff, to whom the writ had been delivered, to return, even after the expiration of sixty days given him by the * § 12. act to return the writ, that he had delivered it to the justices of the peace of the hundred, &c. who are charged with the duty of directing the levy on the inhabitants, and that they had done nothing upon it; and the court of King's Bench will not thereupon attach the sheriff, for not returning the writ, but the next proceeding is against the magistrates, to oblige them to do their duty", 13 East, 544. CHAP. VII. Capias, origin of. When it lies. What, and by whom issued. Direction, and form of. Of the CAPIAS by ORIGINAL, and PROCESS of OUTLAWRY, in the KING'S BENCH, and COMMON PLEAS. Ат In ordinary cases therefore, if the sheriff return, on the original writ, or process of attachment, that the defendant has nothing by which he can be summoned or attached, a capias may be sued out, in order to arrest his person c. And where a capias lies, it is now generally issued in the first instance, without previously suing out the original; in like manner as in Chancery, it was usual to issue the subpana, without first bringing in the bill. The capias is a judicial writ, issued by the filacer, and directed to the sheriff or sheriffs of the same county as the original; commanding them to take the defendant, if he be found in their bailiwick, and safely keep him, so that they may have his body in court, at the return of the writ, to answer the plaintiff in the action: and it is usually called a special capias ad respondendum. If the sheriffs return to this writ, that the defendant is not found in their bailiwick, the plaintiff may have an alias or pluries capias, directed to the same sheriffs, commanding them, as before, or as oftentimes they have been commanded, to take the defendant, &c.: Testatum capias. or he may have a testatum capias, directed to the sheriffs of a different county, (and afterwards, if necessary, an alias or pluries testatum capias,) suggesting that the defendant lurks and wanders in that county h. In any of these writs, if the defendant be within a liberty, it is usual to insert a clause of non omittas ; which clause may be inserted in the first process: So that, under particular circumstances, it may be, necesssary for the plaintiff to have recourse to an alias or pluries testatum, non omittas, Alias, or pluries, capias. Non omittas capias. |