Original writs are either optional or peremptory; or, in the language of our lawyers, they are either a praecipe, or a si te fece. [274] rit securum. (e) The praccipe is in the alternative, commanding the defendant to do the thing required, or shew the reason wherefore be hath not done it. (f) The use of this writ is where something certain is de. manded by the plaintiff, which it is incumbent on the defendant himself to perform; as, to restore the possession of land, to pay a certain liquidated debt, to perform a specific covenant, to render an account, and the like: in all which cases the writ is drawn up in the form of a praecipe or command, to do thus or shew cause to the contrary; giving the defendant his choice, to redress the injury, or stand the suit. The other species of original write is called a si fecerit te securum, from the words of the writ; which directs the sheriff to cause the defendant to appear in court, without any option given him, provided the plaintiff gives the sheriff security effectually to prose. cute his claim. (g) This writ is in use, where nothing is specifically demanded, but only a satisfaction in general; to obtain which, and minister complete redress, the intervention of some judicature is necessary. Such are writs of trespass, or on the case, wherein no debt or other specific thing is sued for in certain, but only damages to be assessed by a jury. For this end the defendant is immediately called upon to appear in court, provided the plaintiff gives good security of prosecuting his claim. Both species of writs are teste'd, or witnessed in the king's own name; "witness ourselves at Westminster," or wherever the chancery may be held. The security here spoken of, to be given by the plaintiff for prosecuting his claim, is common to both writs, though it gives denomination only to the latter. The whole of it is at present become a mere matter of form: and John Doe and Richard Roe are always returned as the standing pledges for this purpose. The ancient use of them was to an- [275] swer for the plaintiff, who, in case he brought an action without cause, or failed in the prosecution of it when brought, was liable to an amercement from the crown for raising a false accusation and so the form of judgment still is. (h) In like manner, as by the Gothic constitutions no person was permitted to lay a complaint against another, nisi sub scrip"tura aut specificatione trium testium, quod actionem vellet persequi :” (i) and, as by the laws of Sancho I. king of Portugal, damages were given against a plaintiff who prosecuted a groundless action. (k) The day, on which the defendant is ordered to appear in court, and on which the sheriff is to bring in the writ and report how far he has obeyed it, is called the return of the writ; it being then returned by him to the king's e Finch. L. 257. f Append. No. III. § 1. i Stiern. de jure Gothor. l. 3. c. 7. g Append. No. II. § 1. h Finch. L. 189. 252, k Mod. Un. Hist. xxii. 45. This writ does not lie against an attorney or officer of the court, unless sucd with an unprivileged person; neither does it lie against a prisoner in the actual custody of the marshal. It is the only mode of proceeding against peers, 3 M. & S. 88.; corporations or hundredors on the statutes of hue and cry, &c. Tyre, 11. Barnes, 415.; or for the purpose of outlawing the defendant. One advantage of proceeding by this writ is, that if a writ of error be brought for delay, it must be brought direct into parliament, instead of first into the exchequer chamber, and from thence into parliament. 1 Sid. 424. Where the demand exceeds 401. a fine is payable to the king on these writs, by way of com position for the liberty of suing in his court; which fine is estimated according to the amount of the demand, paying 6s. 8d. for every hundred marks, or 10s. for every 100% Tyre, 58. G. R. H. @ W. & M. R. B. Tidd, 8 ed. 101. Archbold (4) The writ must be tested after the cause of action accrned, 2 Burr. 967. except in C. P., at Lancaster by 39 & 40 Geo. III. c. 105. justices at Westminster. And it is always made returnable at the distance of at least fifteen days from the date or teste, that the defendant may have time to come up to Westminster, even from the most remote parts of the kingdom; and upon some day in one of the four terms, in which the court sits for the dispatch of business. These terms are supposed by Mr. Selden (1) to have been instituted by William the Conqueror: but sir Henry Spelman hath clearly and learnedly shewn, that they were gradually formed from the canonical constitutions of the church; being indeed no other than those leisure seasons of the year, which were not occupied by the great festivals or fasts, or which were not liable to the general avocations of rural business. Throughout all christendom, in very early times, the whole year was one continual term for hearing and deciding causes. For the christian magistrates, to dis. tinguish themselves from the heathens, who were extremely superstitious in the observation of their dies fasti et nefasti, went into a contrary [276] extreme, and administered justice upon all days alike. Till at length the church interposed and exempted certain holy seasons from being profaned by the tumult of forensic litigations. As, particularly, the time of advent and Christmas, which gave rise to the winter vacation; the time of Lent and Easter, which created that in the spring: the time of pentecost, which produced the third and the long vacation, between Midsummer and 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 prohi. bition 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 Ed. ward the Confessor, n) that from advent to the octave of the epiphany, from septuagesima 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 of holy church shall 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 plea could be held, nor any man sworn on the evange lists, (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 foedera), (r) that assises and juries might be taken in some of these holy seasons. And soon afterwards a general dispensation (5) Though there be less, yet the defendant's appearing and pleading in chief will cure the defect. 1 Lord Raym. 671 1 Salk. 63 S C.; and by 24 Geo. II. c. 48. s. 5. all writs having day from the quarto die post of the morrow of the ascension, to the morrow of the holy Trinity, will be good, though there be not fifteen days between teste and return. In proceeding to outlawry, the cursitor will expedite the proceedings. See Tidd. 8 ed. 103 (6) See further as to the terms and return days, 1 Sellon's Prac. 1 to 13. Com. Dig Temps, C. was established by statute Westm. 1. 3 Edw. I. c. 51. which de. [277] clares, that" by the assent of all the prelates, assises of novel dis seisin, 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. 48.7 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 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 January, 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 [278] is usually called the essoign day of the term. But on every returnday 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 appointed. The feodal law therefore always allowed three distinct days of citation, before the defendant was ad judged contumacious for not appearing ; (v) preserving in this respect the German custom, of which Tacitus thus speaks: (w) "illud ex libertate vi“tium, quod non simul nec jussi conveniunt; sed et alter et tertius dies " cunctatione coëuntium absumitur." And a similar indulgence prevailed s c. 5. § 108. t Registr. 19. Salk. 627. 6 Mod. 250. u 1 Jon. 156. Swann & Broome, B. R. Mich. 5 Geo. III. et in Dom. Proc. 1766. (7) Michaelmas and Hilary are fixed terms, and invariably begin on the same day every year; but Easter and Trinity are moveable, their commencement being regulated by the feast of Easter. See post, 278. note (11.) Hilary and Trinity are called issuable terms, being the terms after which the judges go their circuits, for the trial of causes wherein issues have been previously joined Christian. (8) Easter term has five return days, the rest four. These are called general or common return days, all the others are particular or special return days (9) At the present day, no essoign is allowed in any personal action whatever, even though the defendant be a peer or member of parliament. See 2 Term R. 16. 16 East, 7. (a). (10) But the appearance need not be entered until eight days after the quarto die post. 8 Ba & Cres. 110. in the Gothic constitution : " illud enim nimiae libertatis indicium, conces"sa toties impunitas non parendi: nec enim trinis judicii concessibus poe" nam perditae causae contumax meruit.” (x) Therefore, at the beginning 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 of them. CHAP. 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 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; (b) in like manner as in the civil 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 [280] wand among the northern nations is called the baculus nunciato 1 Stiern. de jure Goth. l. 1. c. 6. y See 1 Bulstr. 35, z See Spelman on the terms, ch. 17. Note, that if the feast of saint John the baptist, or midsummerday, falls on the morrow of Corpus Christí day (as it did A. D. 1614, 1698, and 1709, and will again A. D. 1791), Trinity full terms then commences, and the courts sit on that day, though in other years it is no juridical day. Yet in 1702, 1718, and 1724, 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. Bunb. 176.) a Finch. L. 436. b lbid. 344. 352. d Dalt. of sher. c. 31. © Ff. 2. 4. 1. (11) Michaelmas term always begins on the 8th of November, and ends on the 28th of the same month; Hilary term always begins on the 23d of January, and ends on the 12th of February; unless either of those four days falls on a Sunday, and then the term begins or ends on the day following. Easter term begins always on the Wednesday fortnight after Easter Sunday, and ends on the Monday three weeks afterwards. Trinity term begins always on the Friday after Trinity Sunday, and ends on the Wednesday fortnight after it begins. 1 Cromp. Prac. 1 Tidd, A ed. 101, 9. Chitty rius) (e) 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, (f) "pone per "vadium et salvos plegios, put by gage and safe pledges A. B. the defend"ant, &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 pledges 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 distrein 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. (1) But now the issues may be sold, if the court shall so direct, in order to defray the reasonable costs of the plaintiff. (m) In like manner by the civil law, if the [281] defendant absconds, so that the citation is of no effect, "miltitur "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 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 cases of injury accompanied with force, the law, to punish the breach of the peace, and e Stiern. de jure Sucon 1. 1. c. 6. g Finch. L. 345. Lord Raym. 278. i Finch L. 305, 352. 1 Finch. L. 325. j Append. No. 11. § 1. m Stat. 10 Geo. III. c. 50. f Append. No. III. § 2. h Dalt, sher. c. 32. (1) Upon this writ the sheriff cannot justify entering the defendant's house, and continuing there till the defendant pay him a sum of money for surety for his appearance. 6 T. R. 137. (2) Now by 51 Geo. III. c. 124. s. 2. continued by 57 Geo. III. c. 101. a distringas cannot be issued but at the foot of the summous or attachment, notice as therein directed, is to be given to defendant to appear, or in default of an appearance, that plaintiff will enter one for him, and proceed thereon as if he had appeared. If, however, the summous or attachment cannot be personally served on defendant, and it be left for him at his house or place of abode, the court or a judge in vacation may grant leave to sue out a distringas, with a notice thereon as pointed out in the act, and plaintiff may levy 40s., and if defendant still make default in appearing, an appearance may be entered for him, and plaintiff may proceed as usual. These acts have expired, but see ante, 273. n. 3. These provisións seem to extend to the process by distringas in the exchequer, 5 Taunt. 71. (a); but see 3 Price, 263 266. 5 Price, 522. 639. They do not extend to persons having privilege of parliament, nor to the process by attachment on a justicies in a county palatine. Taunt. 69. Chitty VOL. II. 28 |