Michaelmas, which was allowed for the hay-time and harvest. All Sundays also, and some particular festivals, as the days of the Purification, Ascension, and some others, were included in the same prohibition: which was established by a canon of the church, A. D. 517, and was fortified by an imperial constitution of the younger Theodosius, comprised in the Theodosian code. (m)

Afterwards, when our own legal constitution came to be settled, the commencement and duration of our law terms were appointed with an eye to those canonical prohibitions; and it was ordered by the laws of King Edward the Confessor,(n) that from Advent to the octave of the Epiphany, from septuages ima to the octave of Easter, from the Ascension to the octave of Pentecost, and from three in the afternoon of all Saturdays till Monday morning, the peace of God and the holy church be kept throughout all the kingdom. And so extravagant was afterwards the regard that was paid to these holy times, that though the author of the Mirror (o) mentions only one vacation of any considerable length, containing the months of August and September, yet Britton is express, (p) that in the reign of King Edward the First no secular [*277] plea could be held, nor any man sworn on the *evangelists, (q) in the times of Advent, Lent, Pentecost, harvest, and vintage, the days of the great litanies, and all solemn festivals. But he adds, that the bishops did nevertheless grant dispensations (of which many are preserved in Rymer's feodera), (r) that assizes and juries might be taken in some of these holy seasons. And soon afterwards a general dispensation was established by statute Westm. 1, 3 Edw. I, c. 51, which declares, that "by the assent of all the prelates, assizes of novel disseisin, mort d'ancestor, and darrein presentment, shall be taken in Advent, septuagesima, and Lent; and that at the special request of the king to the bishops." The portions of time, that were not included within these prohibited seasons, fell naturally into a fourfold division, and, from some festival day that immediately preceded their commencement, were denominated the terms of St. Hilary, of Easter, of the Holy Trinity, and of St. Michael: which terms have been since regulated and abbreviated by several acts of parliament; particularly Trinity term by statute 32 Hen. VIII, c. 21, and Michaelmas term by statute 16 Car. I, c. 6, and again by statute 24 Geo. II, c. 48.

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 common 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 these days in bank all original writs must be made returnable; and therefore they are generally called the returns of that term: whereof every term has more or less, said by the Mirror (s) to have been originally fixed by King Alfred, but certainly settled as early as the statute of 51 Hen. III, st. 2. But though many of the return days are fixed upon Sundays, yet the court never sits to receive these returns till the Monday after: (t) and therefore no proceedings can be held, or judgment can be given, or supposed to be given, on the Sunday. (u)

*The first return in every term is, properly speaking, the first day in [*278] that term: as, for instance, the octave of St. Hilary, or the eighth day

inclusive after the feast of that saint: which falling on the thirteenth of Januuary, the octave therefore or first day of Hilary term is the twentieth of January. And thereon the court sits to take essoigns, or excuses, for such as do not appear according to the summons of the writ: wherefore this is usually called the essoign day of the term. But on every return-day in the term, the person summoned has three days of 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. For our sturdy ancestors held it beneath the condition of a freeman to appear, or to do any other act, at the precise time

(m) Spelm. of the Terms.

(n) C. 3. de temporibus et diebus pacis. (r) Temp. Hen, III, passim.

(8) C. 5. § 1.

(0) C. 3, § 8. (p) C. 53. (t) Registr. 19. Salk. 627, (u) 1 Jon. 156. Swann & Broome, B. R. Mich. 5 Geo. III, et in Dom. Proc. 1766.

(q) See page 59. 6 Mod. 250.

appointed. The feudal law therefore always allowed three distinct days of citation, before the defendant was adjudged contumacious for not appearing; (v) preserving in this respect the German custom, of which Tacitus thus speaks: (w) "illud ex libertate vitium, quod non simul nec jussi conveniunt; sed et alter et tertius dies cunctatione co-euntium absumitur." And a similar indulgence prevailed in the Gothic constitution: "illud enim nimiæ libertatis indicium, concessa toties impunitas non parendi; nec enim trinis judicii concessibus poenam perditæ causæ contumax meruit." (x) Therefore, at the begin ning of each term, the court does not usually (y) sit for dispatch of business till the fourth or appearance day, as in Hilary term on the twenty-third of January; and in Trinity term, by statute 32 Hen. VIII, c. 21, not till the fifth day, the fourth happening on the great popish festival of Corpus Christi; (z) which days are therefore called and set down in the almanacks as the first days of the term, and the court also sits till the quarto die post or appearance day of the last return, which is therefore the end of each term. (2)

CHAPTER XIX.

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. (a) 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: (b) in like manner as in the eivil law the first process is by personal citation, in jus vocando. (c) This warning on the land is given, in real actions, by erecting a white stick or wand on the defendant's grounds, (d) (which stick or wand among the northern nations is called the baculus *nunciatorius); (e) and by statute 31 [*280] 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, (ƒ) “pone per

(r) Feud. 1. 2, t. 22. (y) See 1 Bulstr. 35.

(w) De Mor. Germ. c. 11.

(x) Stiernhook de jure Goth. l. 1, c. 6.

(z) See Spelinan, on the Terms, ch. 17. Note, that if the feast of St. John the Baptist, or midsummerdav, falls on the morrow of Corpus Christi day, (as it did A. D. 1614, 1698, and 1709, and will again A. D. 1791) Trinity full term then commences, and the courts sit on that day, though in other years it is no juridical day. Yet, in 1702, 1713 and 1721, when midsummer-day fell upon what was regularly the last day of the term, the courts did not then sit, but it was regarded like a Sunday, and the term was prolonged to the twenty-fifth of June. Rot. C. B. Bumb. 176. (a) Finch. L. 436. (b) Ibid. 344, 352. (e) Stiernh. de jure Sueon. l. 1, c. 6.

(c) Ff. 2, 4, 1.
(f) Appendix, No. III, § 2.

(d) Dalt, of Sher. c. 31.

(2) The whole practice of the courts is now changed and is much simplified.
153

VOL. II.-20

vadium et salvos plegios, put by gage and safe pledges A B the defendant, &c. 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; (g) or by making him find safe pleges or sureties who shall be amerced in case of his non-appearance. (h) 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; (i) 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. (j) (1)

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, (k) or distress infinite; which is a subsequent process 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. (m) (2) In like manner by the civil law, if the defendant absconds, so that the [*281] citation is of no effect, "mittitur adversarius in possessionem bonorum ejus. (n)

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 farther process as nugatory. And, besides, upon feudal 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 cases 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. (o) But this immunity of the defendant's person, in case of peaceable though fraudulent injuries, producing great contempt of the law in indigent wrongdoers, 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 Marlbridge, 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 [*282] suing out a special original *adapted to the particular injury) still continues in almost all cases, except in actions of debt; though now, by (g) Finch. L. 345. Lord Raym. 278. (1) Finch, L. 305, 352. (j) Appendix, No. II, § 1. (1) Finch. L. 352.

(m) Stat. 10 Geo. III, c. 50.

(h) Dalt. of Sher. c. 32.
(k) Appendix, No. III, § 2.
(n) Ff. 2, 4, 6. (0) 3 Rep. 12.

(1) The original writ is now abolished, and the proceedings simplified.

(2) Distringas and outlawry proceedings were abolished by the common law Procedure Act of 1852. If, after due effort, the defendant cannot be found, the court may order his appearance to be entered, and the case will proceed against him.

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: (p) 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 debt or trespass, &c., as the case may be. This writ, and all other 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 tested, 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 returned.

This is the regular and ordinary method of process. But it is now usual in practice to sue out the capias in the first instance, upon a supposed return of the sheriff; especially if it be suspected that the defendant, upon notice to the action, will abscond; and afterwards a fictitious original is drawn up, if the party is called upon so to do, with a proper return thereupon, in order to give the proceedings a colour of regularity. When this capias is delivered to the sheriff, he by his under-sheriff grants a warrant to his inferior officers or bailiffs, to execute it on the defendant. And, if the sheriff of Oxfordshire (in which county the injury is supposed to be committed and the action is laid) cannot find the defendant in his jurisdiction, *he returns that he is not found, non est inventus, in his bailiwick: whereupon another writ issues, [*283] called a testatum capias, (q) directed to the sheriff of the county where the defendant is supposed to reside, as of Berkshire, reciting the former writ, and that it is testified, testatum est, that the defendant lurks or wanders in his bailiwick, wherefore he is commanded to take him, as in the former capias. But here, also, when the action is brought in one county, and the defendant lives in another, it is usual, for saving trouble, time and expense, to make out a testatum capias at the first; supposing not only an original, but also a former capias, to have been granted which in fact never was. And this fiction being beneficial to all parties, is readily acquiesced in and is now becoming the settled practice; being one among many instances to illustrate that maxim of law, that in fictione juris consistit æquitas. (3)

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 returns a non est inventus, there issues out an alias writ, and after that a pluries, to the same effect as the former: (r) 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 præcipimus." And, if a non est inventus is returned upon all of them, then a writ of exigent or exigi facias may be sued out, (s) 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 statutes 6 Hen. VIII, c. 4, and 31 Eliz.

(p) Appendix, No. III, § 2.

(9) Ibid.

(r) Ibid.

(8) Ibid.

(8) Arrest upon mesne process has been almost entirely abolished by statute 1 and 2 Vic., c. 110, and later statutes.

c. 3, whether the defendant dwells within the same or another county than that wherein the exigent is sued out, *a writ of proclamation (t) shall issue out [*284] 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 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 sometime 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.(u) 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. (v) If after outlawry the defendant appears publicly, he may be arrested by a writ of capias utlagatum, (w) and committed till the outlawry be reversed. Which reversal may be had by the defendant's appearing personally in court or by attorney, (x) (though in the king's bench he could not appear by attorney, (/) till permitted by statute 4 and 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 exigi facias was awarded.

Such is the first process in the court of common pleas. In the king's bench they may also (and frequently do) proceed in certain causes, particularly in actions of ejectment and trespass, by original writ, with attachment and capias thereon; (2) returnable, not at Westminster, where the common pleas are now fixed, in consequence of magna carta, but "ubicunque fuerimus in Anglia," wheresoever the king shall then be in *England; the king's bench being [*285] removable into any part of England at the pleasure and discretion of the crown. But the more usual method of proceeding therein is without any original, but by a peculiar species of process entitled a bill of Middlesex: and therefore so entitled, because the court now sits in that county; for if it sate in Kent, it would then be a bill of Kent. (a) For though, as the justices of this court have, by its fundamental constitution, power to determine all offences and trespasses, by the common law and custom of the realm, (b) it needed no original writ from the crown to give it cognizance of any misdemeanor in the county wherein it resides; yet, as by this court's coming into any county, it immediately superseded the ordinary administration of justice by the general commissions of eyre and of oyer and terminer, (c) a process of its own became necessary within the county where it sate, to bring in such persons as were accused of committing any forcible injury. The bill of Middlesex (d) (which was formerly always founded on a plaint of trespass quare clausum fregit, entered on the records of the court) (e) is a kind of capias, directed to the sheriff of that county, and commanding him to take the defendant, and have him before our lord the king at Westminster on a day prefixed, to answer to the plaintiff of a plea of trespass. For this accusation of trespass it is, that gives the court of king's bench jurisdiction in other civil causes, as was formerly observed; since when once the defendant is taken into custody of the marshal, or prisonkeeper of this court, for the supposed trespass, he being then a prisoner of this court, may here be prosecuted for any other species of injury. Yet, in order to found this jurisdiction, it is not necessary that the defendant be actually the

(t) Appendix No. III. § 2.

(w) Appendix. No. III. § 2. (y) Cro. Jac. 616. Salk. 496.

(x) 2 Roll. Rep. 490. Regul. C. B., A. D. 1654, c. 13. (z) Appendix, No. II, § 1.

(a) Thus, when the court sate at Oxford by reason of the plague, Mich. 1665, the process was by bill of Oxfordshire. Trye's Jus. Filizar. 101. (b) Bro. Abr. tit. Oyer and Terminer, 8. (c) Bro. Abr. tit. Jurisdiction, 66. 3 Inst. 27.

(d) Appendix, No. III, § 8.

(e) Trye's Jus Filizar.