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. Mesne process is also sometimes put into contradistinction to final process, or process of execution; and then it signifies all such process as intervenes between the beginning and the end of a suit.

Original Process-Summons.

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. Attachment.

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. 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 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.

Distringas.

If, after attachment, the defendant neglects to appear, he not only forfeits this security, but is moreover to be further compelled by a writ of distringas 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.

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.

Capias ad Respondendum.

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 Marlbridge. 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 debt or 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 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 returnable.

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 the supposed return of the sheriff. And, if the sheriff cannot find the defendant in his jurisdiction, he returns that he is not found, non est inventus, in his bailiwick; whereupon another writ issues, called a testatum capias, directed to the sheriff of the county where the defendant is supposed to reside, 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 become the settled practice.

Alias, Pluries, etc.

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. And, if a non est inventus is returned upon all of them then a writ of exigent, 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 erigent, 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. If after outlawry the defendant appears publicly, he may be arrested by a writ of capias utlagatum, and committed until the outlawry be reversed.

Such is the first process in the court of common pleas. Process of the King's Bench.

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; returnable not at Westminster, where the common pleas are now fixed in consequence of magna charta, but "ubicunque fuerimus in Anglia," wheresoever the king shall then be in England; the king's bench being 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 sat in Kent, it would then be a bill of Kent. The bill of Middlesex (which was formerly always founded on a plaint of trespass quare clausum fregit, entered on the records of the court) 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.

Process in the Exchequer.

In the exchequer the first process is by writ of quo minus, in order to give the court a jurisdiction over pleas between party and party. In which writ the plaintiff is alleged to be the king's farmer or debtor, and that the defendant hath done him the injury complained of quo minus sufficiens existit, by which he is the less able to pay the king his rent, or debt. And upon this the defendant may be arrested as upon a capias from the common pleas. Common and Special Bail.

If the sheriff has found the defendant upon any of the former writs, the capias, latitat, etc., he was anciently obliged to take him into custody, in order to produce him in court upon the return, however small and minute the cause of action might be. But when the summons fell into disuse, and the capias became in fact the first process, it was thought hard to imprison a man for a contempt which was only supposed: and therefore in common cases, by the gradual indulgence of the courts, the sheriff or proper officer can now only personally serve the defendant with a copy of the writ or process, and with notice in writing to appear by his attorney in court to defend this action; which in effect reduces it to a mere summons. And if the defendant thinks proper to appear upon this notice, his appearance is recorded, and he puts in sureties for his future attendance and obedience; which sureties are called common bail, being the same two imaginary persons that were pledges for the plaintiff's prosecution, John Doe and Richard Roe. Or, if the defendant does not appear upon the return of the writ, or within four (or, in some cases, eight) days after. the plaintiff may enter an appearance for him, as if he had really appeared; and may file common bail in the defendant's name, and proceed thereupon as if the defendant had done it himself.

But if the plaintiff will make affidavit, or assert upon oath, that the cause of action amounts to ten pounds or upwards, then he may arrest the defendant and make him put in substantial sureties for his appearance, called special bail.

Arrest.

An arrest must be by corporal seizing or touching the defendant's body, after which the bailiff may justify breaking open the house in which he is to take him; otherwise he has no such power, but must watch his opportunity to arrest him; for every man's house is looked upon by the law to be his castle of defense and asylum, wherein he should suffer no violence. Peers of the realm, members of parliament, and corporations, are privileged from arrest; and of course from outlawries. And against them the process to enforce an appearance must be by summons and distress infinite, instead of a capias. Also clerks, attorneys, and all other persons attending the courts of justice (for attorneys, being officers of the court, are always supposed to be there attending), are not liable to be arrested by the ordinary process of the court, but must be sued by bill (called usually a bill of privilege), as being personally present in the court. Suitors, witnesses, and other persons, necessarily attending any courts of record on business, are not to be arrested during their actual attendance, which includes their necessary coming and returning. And no arrest can be made in the king's presence, nor within the verge of his royal palace, nor in any place where the king's justices are actually sitting.

Bail Bond.

When the defendant is regularly arrested he must either go to prison for safe custody, or put in special bail to the sheriff. The method of putting in bail to the sheriff is by entering into a bond or obligation, with one or more sureties, not fictitious persons, as in the former case of common bail, but real, substantial, responsible bondsmen, to insure the defendant's appearance at the return of the writ; which obligation is called the bail bond. The sheriff, if he pleases, may let the defendant go without any sureties; but that is at his own peril: for after once taking him, the sheriff is bound to keep him safely, so as to be forthcoming in court; otherwise an action lies against him for an escape. But, on the other hand, he is obliged, by statute 23 Hen. VI. c. 10, to take (if it be tendered) a sufficient bail bond; and by statute 12 Geo. I. c. 29, the sheriff shall take bail for no other sum than such as is sworn to by the plaintiff and endorsed on the back of the writ.

Appearance-Bail to the Action.

Upon the return of the writ, or within four days after, the defendant must appear according to the exigency of the writ. This appearance is effected by putting in and justifying bail to the action; which is commonly called putting in bail above. If this be not done, and the bail that were taken by the sheriff below are