NOTE OF THE AMERICAN EDITOR TO CHAPTER XVIII.

(50) No proceedings in common pleas before the king's justices without his original writ, page 273.

The original writ is shown here to be peculiar to the common pleas, though no account is given of its introduction to the practice of the other courts. In recent books this distinction is not made, but it is spoken of as if common to all the courts. (See Stephen on Pleading, App. No. 2.)

It may be inferred that the original writ gave to the common bench jurisdiction of each case separately, but was not needed in the King's Bench when the king sat in person at first actually and always on theory. Another clear trace of such a distinction between the two courts may be found in the Diversity of Courts (p. 292 of the edition annexed to the Mirror), where it is said that if the King's Bench award process in a formedom, writ of right, etc. (i. e., if they encroach on the jurisdiction of the common bench), still the sheriff ought to execute the writs. But if the common bench grant process of treason, etc. (encroaching on the criminal jurisdiction of the King's Bench), the sheriff ought not to execute the process. In other words, there is a presumption in favor of any jurisdiction assumed by the King's Bench, but any such assumption by the common bench outside of their peculiar province is merely void. Or as Blackstone says (supra): "They held it unfit that those justices, being only the substitutes of the crown, should take cognizance of anything but what was thus expressly referred to their judgment." In the King's Bench, where he was supposed to sit in person, no such authority to the court was requisite.

This view of the writ as an express authority to the judges of the common pleas to hear and determine the cases before them, brings out in a clear light the reasons why it exercised so great influence on the action

in all its stages. The judges could not allow of amendments, or pardon mistakes; they could not permit a party to change his cause of action, or to recover more than his writ called for; because any such departure from the original would have been a transgression of their own instructions. (See 3 Coin. 393.) The judges were not commissioned simply to judge between the parties on such evidence as might be produced, and render an equitable decision thereon; they were authorized only to render a certain judgment if they found the party entitled to it. Perhaps the nearest survival of their position in this respect may be found in a modern case of mandamus with its strict conformity between the alternative and the peremptory writ, though the limit is here self-imposed. In the early procedure the original was the exact analogue of the former, while the judgment or writ of execution may be lik ened to the latter. Viewed in this light, the technical strictness of the early common-law judges is reasonable, and not the motiveless quibbling about trifles that it is often represented to be. It may even be doubted whether this rigid adherence to form and literal interpretation was not altogether in the interests of justice to the suitors, rather than the blind sacrifice of equity to precedent that it so often is represented. It was the indispensable condition of rigid responsibility of judges; not by any means a superfluous restraint, judging from much we read of the men who sat on the bench on that day.

It is to be regretted that this has been concealed from modern students by the mistaken identification of the original writ without modern summons or other origi nal process to bring the defendant in. These correspond to the judicial writs or summons. The difference between the original writ and the later process by which the defendant is served as the first step of an action is seen in Year Book, Hen. VI. 43, quoted F. N.

B. 95, note a. A brought disceit against B for suing him in C's name without C's assent, whereby he was vexed. The vexatious suit was in debt by original and three capias's. Defendant pleaded separately to the original and the capias's. Moved that the last plea go to the whole, for A was not damaged by suing of the original, so no action lies for that. Yet by the better opinion, seeing that was the beginning of the wrong, he shall answer it.

Or briefly: the original writ is a part of the wrongful action, and may be alleged and pleaded to; but it does not of itself work any damage to the defendant, as the capias does

3 BLACKST.-31.

CHAPTER THE NINETEENTH.

OF PROCESS.

The next step for carrying on the suit, after suing out the original, is called the process; *being the means of compelling the defendant to appear in court.* This is sometimes called original process, being founded upon the original writ; and also to distinguish it from mesne or intermediate process, which issues, pending the suit, upon some collateral interlocutory matter; as to summon juries, witnesses, and the like. Mesne process is also sometimes put in contradistinction to final process, or process of execution; and then it signifies all such process as intervenes between the beginning and end of a suit.†

But process, as we are now to consider it, is the method taken by the law to compel a compliance with the original writ, of which the primary step is by giving the party notice to obey it. This notice is given upon all real præcipes, and also upon all personal writs for injuries not against the peace, by summons; which is a warning to appear in court at the return of the original writ, given to the defendant by two of the sheriff's messengers called summoners, either in person or left at his house or land: in like manner as in the civil law the first process is by personal citation, in jus vocando. This warning on the land is given, in real actions, by erecting a white stick or wand on the defendant's grounds (which stick or wand among the northern nations is called the baculus [280] nunciato

a Finch. L. 436.

b Ibid. 344, 352.

c Ff. 2. 4. 1.

d

Dalt. of sher. c. 31.

**Quoted, 25 Ind. 398. Cited, 10 Minn. 384; 12 Minn. 86.

+ Quoted and held that in Rhode Island any process except final process is "mesne process," 13 R. I. 547. Cited, 3 Tenn. Ch. 531. + Cited, 94 Mass. 218.

rius); and by statute 31 Eliz. c. 3. the notice must also be proclaimed on some Sunday before the door of the parish church.

*If the defendant disobeys this verbal monition, the next process is by writ of attachment or pone, so called from the words of the writ, "pone per vadium et salvos plegios, put by gage and safe pledges A. B. the defendant, etc." This is a writ, not issuing out of chancery, but out of the court of common pleas, being grounded on the non-appearance of the defendant at the return of the original writ; and thereby the sheriff is commanded to attach him, by taking gage, that is, certain of his goods, which he shall forfeit if he doth not appear; or by making him find safe pledges or sureties, who shall be amerced in case of his non-appearance. This is also the first and immediate process,* without any previous summons, upon actions of trespass vi et armis, or for other injuries, which though not forcible are yet trespasses against the peace, as deceit and conspiracy; where the violence of the wrong requires a more speedy remedy, and therefore the original writ commands the defendant to be at once attached, without any precedent warning.

If, after attachment, the defendant neglects to appear, he not only forfeits this security, but is moreover to be farther compelled by writ of distringas, or distress, infinite; which is a subsequent process issuing from the court of common pleas, commanding the sheriff to distroin the defendant from time to time, and continually afterwards, by taking his goods and the profits of his lands, which are called issues, and which he forfeits to the king if he doth not appear,

e Stiernh. de jure Sueon. l. 1. c. 6.

g Finch. L. 345. Lord Raym. 278. h Dalt. sher. c. 32.

i Finch. L. 305, 352. 1 Finch. L. 352.

**Quoted with omissions, 3 McCord, 359, Cited, 47 Conn. 414.