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 praecipes, 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 ground, (which stick or wand among the northern nations is called the baculus nonciatorius;) 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 further compelled by writ of distringas or distress infinite; which is a subsequent proc

ess issuing from the court of common pleas, commanding the sheriff to distrain 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 by the common law he forfeits to the king if he doth not appear. But now the issues may be sold, if the court shall so direct, in order to defray the reasonable costs of the plaintiff. In like manner, by the civil law, if the defendant absconds, so that the citation is of no effect, "mittitur adversarius in posses sionem bonorum ejus."

And here, by the common as well as the civil law, the process ended in case of injuries without force; the defendant, if he had any substance, being gradually stripped of it all by repeated distresses, till he rendered obedience to the king's writ; and, if he had no substance, the law held him incapable of making satisfaction, and therefore looked upon all further process as nugatory. And besides, upon feodal principles, the person of a feudatory was not liable to be attached for injuries merely civil, lest thereby his lord should be deprived of his personal services. But, in case of injury accompanied with force, the law, to punish the breach of the peace, and prevent its disturbance for the future, provided also a process against the defendant's person in case he neglected to appear upon the former process of attachment, or had no substance whereby to be attached; subjecting his body to imprisonment by the writ of capias ad respondendum. But this immunity of the defendant's person, in case of peaceable though fraudulent injuries, producing great contempt of the law in indigent wrong-doers, a capias was also allowed to arrest the person, in actions of account, though no breach of the peace be suggested, by the statutes of Marlberge, 52 Hen. III. c. 23, and Westm. 2, 13 Edw. I. c. 11, in actions of debt and detinue, by statute 25 Edw. III. c. 17, and in all actions on the case, by statute 19 Hen. VII. c. 9. Before which last statute a practice had been introduced of commencing the suit by bringing an original writ of trespass quare clausum fregit, for breaking the plaintiff's close vi et armis; which by the old common law subjected the defendant's person to be arrested by writ of capias; and then, afterwards, by connivance of the court, the plaintiff might proceed to prosecute for any other less forcible injury. This practice (through custom rather than necessity, and for saving some trouble and expense, in suing out a special original adapted to the particular injury) still continues in almost all cases, except in actions

of debt; though now, by virtue of the statutes above cited and others, a capias might be had upon almost every species of complaint.

If therefore the defendant being summoned or attached makes default, and neglects to appear; or if the sheriff returns a nihil, or that the defendant hath nothing whereby he may be summoned, attached, or distrained; the capias now usually issues: being a writ commanding the sheriff to take the body of the defendant if he, may be found in his bailiwick or county, and him safely to keep, so that he may have him in court on the day of the return, to answer to the plaintiff of a plea of debtor trespass, etc., as the case may be. This writ, and all others subsequent to the original writ, not issuing out of chancery, but from the court into which the original was returnable, and being grounded on what has passed in that court in consequence of the sheriff's return, are called judicial, not original writs; they issue under the private seal of that court, and not under the great seal of England; and are teste'd, not in the king's name, but in that of the chief (or, if there be no chief, of the senior) justice only. And these several writs, being grounded on the sheriff's return, must respectively bear date the same day on which the writ immediately preceding was returnable.

But where a defendant absconds, and the plaintiff would proceed to an outlawry against him, an original writ must then be sued out regularly, and after that a capias. And if the sheriff cannot find the defendant upon the first writ of capias, and return a non est inventus, there issues out an alias writ, and after that a pluries, to the same effect as the former; only after these words, "we command you," this clause is inserted, "as we have formerly," or "as we have often commanded you:" "sicut alias," or "sicut pluries, praecepimus." And, if a non est inventus is returned upon. all of them, then a writ of erigent or exigi facias may be sued out, which requires the sheriff to cause the defendant to be proclaimed, required, or exacted, in five county courts successively, to render himself; and if he does, then to take him as in a capias; but if he does not appear, and is returned quinto exactus, he shall then be outlawed by the coroners of the county. Also by statute 6 Hen. VIII. c. 4, and 31 Eliz. c. 3, whether the defendant dwells within the same or another county than that wherein the exigent is sued out, a writ of proclamation shall issue out at the same time with the exigent, commanding the sheriff of the county, wherein the defendant dwells, to make three proclamations thereof in places the

most notorious, and most likely to come to his knowledge, a month before the outlawry shall take place. Such outlawry is putting a man out of the protection of the law, so that he is incapable to bring an action for redress of injuries; and it is also attended with a forfeiture of all one's goods and chattels to the king. And therefore, till some time after the conquest, no man could be outlawed but for felony; but in Bracton's time, and somewhat earlier, process of outlawry was ordained to lie in all actions for trespasses vi et armis. And since his days, by a variety of statutes, (the same which allow the writ of capias before mentioned,) process of outlawry doth lie in divers actions that are merely civil; provided they be commenced by original and not by bill. If after outlawry the defendant appears publicly, he may be arrested by a writ of capias utlagatum, and committed till the outlawry be reversed. Which reversal may be had by the defendant's appearing personally in court or by attorney, (though in the king's bench he could not appear by attorney, till permitted by statute 4 & 5 W. and M. c. 18;) and any plausible cause, however slight, will in general be sufficient to reverse it, it being considered only as a process to compel an appearance. But then the defendant must pay full costs, and put the plaintiff in the same condition as if he had appeared before the writ of erigi facias was awarded.

Extracts from SMITH, ELEMENTARY VIEW OF THE PROCEEDINGS IN AN ACTION AT LAW.

We have now arrived at the commencement of the action itself, the first step in which is the process.

Process, is the means employed for the purpose of obliging the defendant to appear in Court, to answer to the action. It also serves the purpose of giving him timely notice of the nature of the claim against him, so that he may, if he please, satisfy it, and thus save himself from the necessity of answering the action at all. And for this purpose, the process always informs him who the plaintiff is, and what is the nature of the intended action; and, where the cause of action is a debt, the process must, according to a very salutary rule of Hilary, 1832, have an indorsement, stating the precise amount of the plaintiff's demand.

The process of the Superior Courts of law consists of writs. Writs are letters missive from the sovereign, commanding the doing or forbearing of some act. Thus, a writ of mandamus issues, as its name imports, to command a performance, a writ of prohibition,

as its name imports, to command the forbearance of some act. Writs are always directed to the person on whom the command is imposed; they are always witnessed or tested, as it is called, in the name of some person appointed for that purpose of law, and they are always returnable in some Court or other, that is, there is always some person who is, by law compellable to bring them into that Court, and certify to it what has been done in pursuance of them. These observations apply to all writs whatever. A return of a writ is the sheriff's answer or certificate to the Court, touching that which he is commanded to do by any writ directed to him.

The writ of summons is a judicial writ, i. e., a writ issuing out of the Court in which the defendant is to be sued; and as it is now the commencement of the action it cannot be issued before the cause of action is complete, it is directed to the defendant, whom it commands that, within eight days after the service of the writ on him inclusive of the day of such service, he do cause an appearance to be entered for him in the Court in which the action is brought, in an action on promises, or debt, or as the case may be, at the suit of the plaintiff, and requires the defendant to take notice, that in default of his so doing, the plaintiff may cause an appearance to be entered for him, and proceed to judgment and execution.

An Alias Writ of Summons, and a Pluries, continue the first writ, and differ only from it, the former, by mentioning that it commands the defendant, "as before he was commanded," and the latter by its mentioning that it commands him, "as often he was commanded." Each has a memorandum and indorsements, similar to those on the first Writ of Summons.

As soon as the defendant has appeared, the pleadings commence. These are the altercations which take place between the plaintiff and defendant, for the purpose of ascertaining the nature of the complaint, the grounds of defence, and the points in controversy between the parties. These pleadings were, in the early ages of the common law, delivered viva voce by the counsel. The writ by which the action was commenced, used to be brought into Court with the sheriff's return upon it, and the plaintiff's counsel, after it had been read, proceeded to expand the charge contained in it. into a connected story, by adding time, place, and other circumstances. Thus, if the writ mentioned the cause of action to be tres