nominal only. And this method of proceeding is now applied to the decision of corporation disputes between party and party, without any intervention of the prerogative, by virtue of the statute 9 Ann. c. 20; which permits an information in nature of quo warranto to be brought with leave of the court, at the relation of any person desiring to prosecute the same, who is then styled the relator, against any person usurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate; provides for its speedy determination, and directs that, if the defendant be convicted, judgment of ouster, as well as a fine, may be given against him, and that the relator shall pay or receive costs according to the event of the suit.

6. The prerogative writ of mandamus is also an effectual remedy, in the first place, for refusal of admission where a person is entitled to an office or place in any such corporation; and, secondly, for wrongful removal, when a person is legally possessed. These are injuries for which, though redress for the party interested may be had by action, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ issues; commanding, upon good cause shown, the party complaining to be admitted or restored to his office.

We have now gone through the whole circle of civil injuries, and the redress which the law has provided for each. In which the student cannot but observe that the main difficulty attending their discussion arises from their variety, which is apt at first to breed a confusion of ideas, and a kind of distraction in the memory. But this difficulty will shrink to nothing upon a nearer and more frequent approach; and indeed be rather advantageous than of any disservice, by imprinting on the student's mind a clear and distinct notion of the nature of these several remedies.

CHAPTER XI.

THE WRIT OF SUMMONS.

HAVING explained the nature and several species of our courts of justice; and what wrongs are cognizable by one court, and what by another; I endeavoured, under the title of injuries cognizable by the courts of law, to define the remedies which were therein provided for every possible degree of wrong. I then explained in detail in what cases equity afforded relief; and I am now, in the last place, to examine the manner in which these several remedies are pursued and applied.

What, therefore, the student may expect in the succeeding chapters, is a brief account of the method of prosecuting an action in any of the divisions of the High Court of Justice. And the most natural way of considering the subject will be, I apprehend, to pursue it in the order wherein the proceedings themselves follow each other. an action are these: 1. The writ; 2. The pleadings; 3. The issue or demurrer; 4. The trial; 5. The judgment, and its incidents; 6. The proceedings in nature of appeals; 7. The execution.

The general, therefore, and orderly parts of

The original, or original writ, was formerly the foundation of every action. When a person has received an injury, and thinks it worth his while to demand a satisfaction for it, he is to consider what redress the law has given for that injury; and thereupon is to make application to the crown, as the fountain of justice, for that particular remedy. To this end he formerly sued out from the Chancery, or purchased by paying the stated fees, an original, or original writ, which was directed to the sheriff of the county wherin the injury was committed or supposed so to have been, and required him to command the wrongdoer either to do justice to the complainant or else to appear in the Court of Common Pleas, which formerly entertained all suits between subject and subject, and answer the accusation against him. The day on which the defendant was to appear, and on which the sheriff was to bring in the writ and report how far he had obeyed it, was called the return of the writ, it being then

returned by him to the court at Westminster, with a statement of the manner in which he had obeyed it, this being also called his return. And it was always made returnable upon some day in one of the four terms in which the court then sat for the despatch of business.

These terms were gradually formed from the canonical constitutions of the church; being 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. In very early times, the whole year was one continual term for hearing and deciding causes; until the church interposed, and exempted certain holy seasons from being profaned by the tumult of forensic litigation. 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 harvest. All Sundays also, and some particular festivals, as the days of the Purification, Ascension, and some others, were included in the same prohibition.

The portions of time, not included within these prohibited seasons, fell naturally into a fourfold division, and from some festival that immediately preceded their commencement, were denominated the terms of St. Hilary, of Easter, of the Holy Trinity, and of St. Michael. Their commencement and termination were afterwards regulated by several statutes; and they are now superseded by sittings,-the commencement and termination of which are prescribed by Orders of Court.

The next step for carrying on the action was called the process; which was to compel a compliance with the original writ; the first step of which was to give the party notice to owey it by summons, to appear in court at the return of the original writ. If the defendant disobeyed this verbal monition, the next process was by writ of attachment or pone, whereby the sheriff was commanded either to attach him, by taking gage, that is, certain of his goods, which he should forfeit if he did not appear; or by making him find safe pledges or sureties who should be amerced in case of his non-appearance. If after attachment the defendant neglected to appear, he not only forfeited this security, but was

moreover to be further compelled by writ of distringas, or distress infinite; which was a subsequent process to distrain the defendant from time to time by taking his goods and the profits of his lands, which he forfeited to the crown if he did not appear. The issues might be sold, if the court should so direct, in order to defray the reasonable costs of the plaintiff.

And here by the common law the process ended, the defendant, if he had any substance, being gradually stripped of it all by repeated distresses, till he rendered obedience to the original writ. But, in cases of injury accompanied with force, the law provided also a process against the defendant's person in case he neglected to appear; subjecting his body to imprisonment by the writ of capias ad respondendum. Whence arose a practice of commencing the action by bringing an original writ of trespass quare clausum fregit, for breaking the plaintiff's close vi et armis; which subjected the defendant's person to be arrested by writ of capias; and then afterwards, by connivance of the court, the plaintiff prosecuted him for any other less forcible injury. This practice ultimately became the ordinary mode of commencing an action; and in course of time it became usual in practice, to sue out the capias in the first instance, upon a supposed return of the sheriff; and afterwards a fictitious original was drawn up, in order to give the proceedings a colour of regularity. When this capias was delivered to the sheriff, he by his under-sheriff granted a warrant to his inferior bailiffs, to execute it on the defendant. And if the sheriff of Oxfordshire, in which county the injury, we may suppose, was committed and the action was laid, could not find the defendant in his jurisdiction, he returned that he was not found, non est inventus, in his bailiwick: whereupon another writ issued, called a testatum capius, directed to the sheriff of the county where the defendant was supposed to reside, as of Berkshire, reciting the former writ, and that it was testified, testatum est, that the defendant lurked or wandered in his bailiwick, wherefore he was commanded to take him, as in the former capias. But here also, when the action was brought in one county, and the defendant lived in another, it was 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

had been. And this fiction also soon became the settled practice.

But where a defendant absconded, and the plaintiff would proceed to an outlawry against him, an original writ must then have been sued out regularly, and after that a capias. And if the sheriff could not find the defendant upon the first writ of capias, and returned a non est inventus, there issued out an alias writ, and after that a pluries, to the same effect as the former. And, if a non est inventus was returned upon all of them, then a writ of exigent or exigi facias might be sued out, which required the sheriff to cause the defendant to be proclaimed, required, or exacted, in five county courts successively, to render himself; and if he did, then to take him as in a capias: but if he did not appear, and was returned quinto exactus, he should then be outlawed by the coroners of the county. Outlawry is putting a man out of the protection of the law. Formerly it was attended with a forfeiture of all his goods and chattels to the crown; but it might be reversed as a matter of course, on the defendant's entering an appearance, it being then considered only as a process to compel appearance.

Such was the process in the Common Pleas. In the King's Bench a plaintiff might have proceeded by original writ, but the usual method was by Bill of Middlesex; so entitled, because the court generally sat in that county. This bill was always founded on a plaint of trespass quare clausum fregit, which accusation gave the King's Bench jurisdiction in civil causes, and it must have been served on the defendant, if found by the sheriff; but, if he returned non est inventus, then there issued out a writ of latitat, to the sheriff of another county, as Berks; which recited the bill of Middlesex, and testified that the defendant latitat et descurrit, lurked and wandered about in Berks; and therefore commanded the sheriff to take him, and have his body in court on the day of the return; but in the King's Bench, as in the Common Pleas, it ultimately became the practice to sue out a latitat upon a supposed, and not an actual, bill of Middlesex.

In the Exchequer the first process was by a writ of quo minus, in order to give the court a jurisdiction over pleas between party and party, in which the plaintiff was alleged to be the king's farmer or debtor, and that the defendant had done him