ings; the issue or demurrer; the trial; the judgment and its incidents; the proceedings in nature of appeals; and the

execution.

The original or original writ is the beginning or foundation The original of the suit (b). The crown, as the foundation of all justice, writ. grants the specific remedy in each case. As for money due on bond, an action of debt; for goods detained without force, an action of detinue or trover; or if taken with force, an action of trespass vi et armis; or to try the title of lands, an action of trespass in ejectment; or for any consequential injury received a special action on the case (c). To this end an ori

(b) But see now the next note.

(c) The original writs are now no longer in use, except in the actions of ejectnent, quare impedit, and writ of right of dower, yet a knowledge of the principles on which these ancient formula were constituted will essentially aid, if it be not indispensable to a proper comprehension of the existing process and pleadings. Lord Coke (Co. Litt. 73 b.) gives Bracton's description of a writ thus :-" Breve quidem, cum sit formatum ad similitudinem regulæ juris; quia breviter et paucis verbis intentionem proferentis exponit, et explanat, sicut regula juris rem quæ est, breviter enarrat. Non lamen ita breve esse debeat quin rationem et vim intentionis contineat." And proceeds:-" Of writs, some are original, brevia originalia, and some judicial, brevia judicalia. Also of originals, quædam sunt formata sub suis casibus et de cursu, et de communi consilio totius regni concessa et approbata, quæ quidem nullatenus mutari poterint absque consensu et voluntate eorum; et quidem suntmagistralia, et sæpe variuntur secundum varietatem casuum, factorum et quærelarum; as, for example, actions on the case, which vary according to the variety of every man's case, and the like; and these being not of course, the masters being learned men, did make: Item brevium originalium alia sunt realia, alia personalia, alia mixta: Item brevium originalium alia sunt patentia sive aperta, et alia clausa." A concise and clear history of original writs is given by Mr. Sergeant Stephen, in his valuable work on the principles of pleading, 4th edit., pp. 6 and 7, thus :-"The most ancient writs had provided for the most obvious kinds of wrong; but in the progress of society cases of injury arose new in their circumstances so as not to be reached by any of the writs then known in practice; and it seems that either the clerks of the chancery (whose duty it was to prepare the original writ for the suitor) had no authority to devise new forms to meet the exigency of such new cases, or their authority was doubtful, or they were remiss in its exercise. Therefore by the Statute of Westminster 2, 13 Edw. 1, c. 24, it was provided, "that as often as it shall happen in the chancery that in one case a writ is found, and in a like case (in consimili casu) falling under the same right, and requiring like remedy, no writ is to be found, the clerks of the chancery shall agree in making a writ, or adjourn the complaint till the next parliament, and write the cases in which they cannot agree, and refer them to the next parliament, &c." This statute, while it gives to the officers of the chancery the power of framing new writs in consimili casu, with those that formerly existed, and enjoins the exercise of that power, does not give or recognize any right to frame such instruments for cases entirely new. It seems, therefore, that for any case of that description no writ could be lawfully issued, except by authority of parliament. But on the other hand new writs were copiously

Finch. L. 237. ginal, or original writ is sued out of chancery, which is a mandatory letter under the great seal, directed to the sheriff

produced according to the principle sactioned by this act, i. e. in consimili casu, or upon the analogy of actions previously existing; and other writs also being added fron time to time by express authority of the legislature, large accessions were thus on tle whole made to the ancient stock of brevia originalia.” And again, in page 8; original writ was formerly essential in every case to the due institution of the suit. These instruments have consequently had the effect of limiting and defining the rght of action itself; and no cases are even now considered as within the scope of judicial remedy in the English law, but those to which some known original writ (when these instruments were in universal use) would have applied, or for which some new onginal writ, framed on the analogy of those already existing, might, under the provisions of the statute of Westminster 2, have been lawfully devised. The enumeration of writs, and that of actions, have become in this manner identical."

By the Uniformity of Process Act, 2 Wm. 4, c. 39, after reciting that the process for the commencement of personal actions in the courts of law at Westminster was, by reason of its great variety and multiplicity, very inconvenient in practice. It is enacted, that the process in all such actions commenced in either of the said courts, (except in the cases therein named, and in which cases the writ of summons must now be the first process, by 1 & 2 Vict. c. 110, s. 2,) whether the action be brought by or against any person entitled to the privilege of peerage or of parliament, or of the court wherein such action shall be brought, or of any other court, or to any other pri vilege, or by or against any other person, shall be by writ of summons according to the form in the act; and in every such writ and copy thereof, the place and county of the residence, or supposed residence of the defendant, shall be mentioned, and such writ shall be issued by the officer of the said courts by whom process, serviceable in the county therein mentioned, was before issued. And every such writ shall be served as before the act was usual in the county therein mentioned, or within two hundred yards of the border thereof, and not elsewhere, and the person serving the same shall indorse on the writ the day of the month and week of the service. By s. 2, the mode of appearance is prescribed by delivering a memorandum in writing, according to the form in the act to the officer of the court, to be dated on the day of delivery. By s. 3, appearance may be enforced by writ of distringas in case a defendant cannot be personally served with the writ of summons, and if the writ of distringas shall be returned non est inventus and nulla bona, the plaintiff is empowered, after making affidavit, that due and proper means have been taken and used to serve and execute such writ of distringas, to enter an appearance for the defendant, and to proceed thereon to judgment and execution. By s. 4, in bailable process for the commencement of personal actions so many copies of process, with every memorandum or notice subscribed thereto, and all indorsements thereon as there may be persons intended to be arrested, or served therewith, shall be delivered to the sheriff or officer executing the same, who is to deliver one copy to each person so arrested or served, and indorse on the writ the day of the execution; and if any defendant be imprisoned for want of sureties on such process, the plaintiff may declare as before, under 4 & 5 W. & M. c. 21; and the plaintiff may direct the sheriff to arrest one or more of the defendants, and to serve the others with copies of process only. By ss. 5 and 6, the proceedings to outlawry are prescribed. By s. 10, no writ is to be in force for more than four months from its date. It may be continued by alias and pluries; but the provisions of the Statute of Limitations are not to be affected or prejudiced thereby. By s. 11, proceedings to judgment and execution may be had at

of the county wherein the injury is committed, or supposed so to be, requiring him to command the wrong doer or party accused, either to do justice to the complainant or to appear in court and answer the accusation against him. Whatever the sheriff does in pursuance of this writ, he must return or certify to the court of common pleas, together with the writ itself, which is the foundation of the jurisdiction of that court, being the king's warrant for the judges to proceed to the determination of the cause (d). In small actions below 40s., however, the foundation of such suits continues to be (as in the Saxon times) not by original writ, but by plaint.

writ.

Original writs are either optional or peremptory. They Finch L. 257. are either a præcipe or a si te fecerit securum. The præcipe The præcipe or optional is in the alternative, commanding the defendant to do the thing required, or to shew why he has not done it. The use of it is, where something certain is demanded, which it is incumbent on the defendant himself to perform; as to restore the possession of land, giving the defendant his choice to redress the injury or stand the suit. The other species is called The si te fecerit secua si te fecerit securum, from the words of the writ, which directs the sheriff to cause the defendant to appear in court, without peremptory any option given him, provided the plaintiff gives the sheriff security to prosecute his claim. This writ is in use where nothing is specifically demanded, but only a satisfaction.

rum, or

writ.

The security here spoken of is mere matter of form, and Pledges to John Doe and Richard Roe are the nominal pledges.

prosecute.
The return of

The day on which the defendant is ordered to appear in the writ.

the end of eight days from the service or execution of the writ, whether served or executed in term or vacation; and a provision is made in cases where the last of such eight days shall fall on a Sunday, Christmas-day, or public fast day. By s. 12, every writ must bear date on the day on which it is issued, and be indorsed with the name and place of abode of the attorney suing it out. By s. 13, provision is made for service of writs on corporations, and on inhabitants of hundreds and towns. By ss. 14 and 15, general rules for the effectual execution of the act are to be made from time to time by the judges, and for return of writs. By s. 17, every attorney is, on demand in writing, to be made by or on behalf of any defendant, to declare whether the writ has been issued with his authority; and if not so issued, the defendant may be discharged. By s. 19, the act does not extend to any cause removed into either of the said courts by writ of pone, certiorari, recordari facias loquelam, habeas corpus, or otherwise. By s. 21, the writs authorized by this act are to be the only writs for commencement of personal actions, in the cases to which such writs are applicable. But by 1 & 2 Vict. c. 110, s. 2, all personal actions in the superior courts of law at Westminster must now be commenced by writ of summons.

(d) See now the last note.

The terms.

Of days in bank.

court, and on which the sheriff is to bring in the writ, is called the return of the writ(e).

The terms were gradually formed from the canonical constitutions of the church, being those seasons of the year not occupied by the great festivals or fasts, or the avocations of rural business. The portions not included in these seasons fell into a four-fold division, and from some festival day that immediately preceded their commencement, were called the terms of St. Hilary, Easter, the Holy Trinity, and St. Michael (ƒ).

There are in each of these terms stated, days called days in bank, dies in banco; that is, days of appearance in the court of king's bench. They are generally at the distance of about a week from each other, and have reference to some festival of the church. On some one of them all writs must be made returnable (g); and, therefore, they are called the returns of that term. The first return in every term is, properly speaking, the first day in that term; and therein the court sits to take essoigns, or excuses for such as do not appear according to the summons of the writ; wherefore it is usually called the essoign day of the term. But on every return day in the term, the person summoned has three days' grace beyond the day named in the writ, in which to make his appearance, and if he appears on the fourth day inclusive, quarto die post, it is sufficient.

(e) Before the Uniformity of Process Act, 2 Wm. 4, c. 39, the writ must always have been tested in term, and if issued in vacation, as of some day in the previous term; but now, by such act, s. 12 (see ante, p. 408), it must bear date on the day on which it is issued, whether in term or vacation. And by s. 11 of the same act, if any writ of summons shall be served or executed on any day, whether in term or vacation, all necessary proceedings to judgment and execution may be had thereon at the end of eight days from the service or execution thereof, whether in term or vacation; but if the last of such eight days shall happen on a Sunday, Christmas-day, or public fast or thanksgiving day, the following day shall be considered as the last of such eight days. If such writ shall be served or executed on any day between the 10th of August and 24th of October, special bail may be put in by the defendant in bailable process, or appearance entered either by the defendant or plaintiff on process not bailable at the end of such eight days; but no declaration, or pleading after declaration, shall be filed or delivered between the 10th of August and 24th of October.

(ƒ) Byll Geo. 4 and 1 Wm. 4, the terms were altered; Hilary term now begins 11th, and ends 31st January; Easter term begins 15th April, and ends 8th May; Trinity term begins 22d May, and ends 12th June; and Michaelmas term begins 2d, and ends 25th November. By 1 & 2 Vict. c. 32, the courts at Westminster are enabled to hold sittings in banc in time of vacation. Such sittings to be holden by rule or order of the said courts published as therein directed. Judgments to have the same effect as if in

term time.

(g) See ante, note (e) to this chapter.

CHAPTER XIX.

OF PROCESS.

THE next step for carrying on the suit after suing out the Process, orioriginal, is called the process (a); being the means of compelling ginal, mesne, the defendant to appear in court.

This is sometimes called original process, being forwarded

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 and witnesses.

Mesne process is also sometimes put in contradistinction to final Finch. L. 436. 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 Original prothe law to compel a compliance with the original writ, of which cess. the primary step is by giving the party notice to obey it (b).

This notice is given upon all personal writs for injuries not Writ of sumagainst the peace, by summons, which is a warning given to the mons. defendant to appear in court at the return of the original writ; Finch. L. 344. and if he disobeys this, the next process is by attachment or

(a) By the Uniformity of Process Act, 2 Wm. 4, c. 39, s. 31, the process for commencing personal actions in any of the superior courts at Westminster, was, 1st, a writ of summons, in cases where it was not intended to hold the defendant to bail, or proceed against a member of parliament according to the bankrupt act (6 Geo. 4, c. 16, s. 10), and a writ of distringas to enforce the defendant's appearance to such writ of summons in case he cannot be served with it; and where he has not appeared to the action, and cannot be compelled to do so without some more efficacious process; or 2ndly, a writ of capias, in cases where being in the custody of the marshal of the Marshalsea or warden of the Fleet; or, 3dly, a writ of detainer, in cases where it was intended to detain a person in the custody of the marshal or warden; or, 4thly, another kind of writ of summons, in cases where it was intended to proceed against a member of parliament according to the provisions of the bankrupt act. But now, since 1 & 2 Vict. c. 110, s. 2, all personal actions in the superior courts must be commenced by writ of summons; Archbold's Prac. Q. B. by Chitty, 7th ed. 2. In the action of ejectment, the old mode of commencing it by serving a declaration founded in the Q. B. and C. P. on a supposed original writ issued (which is most usual), or founded in the Q. B. or Exchequer on a supposed bill filed, still prevails. In replevin also, and other suits removed from the inferior courts into the superior ones, the old mode of commencing them, and for the most part of proceeding in them, still prevails.-Id.

(b) The first step in all personal actions in the superior courts of law at Westminster is now the writ of summons, and which is the only writ for the commencement of such actions.