11 Geo. II. c. 17. to compel a discovery whether any grant or conveyance, said to be made of such advowson, were made bond fide to a Protestant purchaser, for the benefit of Protestants, and for a full consideration; without which requisites every such grant and conveyance of any advowson or avoidance is absolutely

null and void.

When a clerk is once in possession of his benefice, the law gives him the same possessory remedies to recover his glebe, his rents, his tithes, and other ecclesiastical dues, by writ of entry, assize, ejectment, debt, or trespass, (as the case may happen) which it furnishes to the owners of lay property.

CHAPTER XVIII.

Of the Original Writ.

HAVING gone through the several species, of civil injuries, or private wrongs, committed against the persons and property of individuals, and pointed out the different remedies for them; we shall now shew the manner in which those remedies are pursued in the courts of law and equity; and shall then give some account of the courts themselves, in which their different authorities and jurisdictions will be pointed out.

In treating of remedies by action at common law, we shall confine ourselves to the modern practice; and, as the most natural and perspicuous way of considering the subject, shall pursue it in the order and method wherein the proceedings themselves follow each other. The general and orderly parts of a suit are these: 1. The original writ; 2. The process; 3. The pleadings; 4. The issue, or demurrer; 5. The trial; 6. The judgment, and its incidents; 7. The proceedings in nature of appeals; 8. The execution.

First, then of the ORIGINAL WRIT, which is the beginning or foundation of an action. When a person hath received an injury, he is to consider what redress the law has given for it; and there upon is to make application or suit to the crown, for that particular specific remedy which he is determined to pursue. As, for money due on bond, an action of debt; for goods detained without force, an action of detinue or trover; or, if taken by force, an action of trespass vi et armis; or, to try the title of lands, a writ of entry, or action of trespass in ejectment; or, for any consequential injury received, a special action on the case. To this end he is to sue out an original writ from the Court of Chancery; which is a mandatory letter from the king, in parchment, sealed with the great seal, and directed to the sheriff of the county

wherein the injury is committed, requiring him to command the party accused, either to do justice to the complainant, or else 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 this court, being the king's warrant for the judges to proceed to the determination of the cause.

Original writs are either optional or peremptory; or, they are either a præcipe, or a si fecerit te securum.

The præcipe is the alternative, commanding the defendant to do the thing required, or shew the reason wherefore he hath not done it. The use of this writ is where something certain is demanded 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 præcipe, 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 writ 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 prosecute his claim. 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 ourself 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 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 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.

There are in each of these terms stated days called days in bank,

that is, days of appearance in the court of Common' Bench. They are generally at the distance of about a week from each other. 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.

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 13th of January, the octave therefore, or first day of Hilary term, is the 20th 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 appear on the fourth day inclusive, it is sufficient. And therefore, at the beginning of each term, the court does not usually sit for the dispatch of business till the fourth, or appearance day; as, in Hilary term, on the 23d of January; and in Trinity term, not till the fifth day, the fourth happening on the great Popish festival of Corpus Christi ; which days are therefore called and set down in the almanacks as the first days in 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,

CHAPTER XIX.

Of Process.

THE next step for carrying on the suit 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 in 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.

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.

If the defendant disobey this verbal monition, the next process is by writ of attachment. This is a writ issuing not out of Chancery, but out of the Court of Common Pleas, being grounded on the nonappearance 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 do not appear; or by making him find safe pledges, or sureties, who shall be amerced in case of his non-appearance.

If, after attachment, the defendant neglect to appear, he not only forfeits his security, but is moreover to be farther compelled by writ of distringas, or distress infinite; which is a subsequent process, commanding the sheriff to restrain 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 do 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,

If therefore the defendant, being summoned or attached, make default, and neglect to appear; or if the sheriff return 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 within his bailiwick or county, and him safely to keep, so that he may have him in court on the day of return, to answer to the plaintiff of a plea of debt, or trespass, &c. as the case may be.

This is the regular and orderly 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 of 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 undersheriff grants a warrant to his inferior officers, or bailiffs, to execute it on the defendant. And if the sheriff of the county in which 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, 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 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; 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 be 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 do, then to take him, as in a capias; but if he do not appear, and is returned quinto exactus, he shall then be outlawed by the coroners of the county.

Also, by 6 Hen. VIII. c. 4. and 31 Eliz. c. 3. whether the defendant dwell within the same or another county than that wherein the exigent is sued out, writ of proclamation shall issue out 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 the protection of the law, so that he is incapable of bringing an action for redress of injuries; and it is also attended with a forfeiture of all his goods and chattels to the king.

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 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 Angliá," wheresoever the king shall then be in England; the King's Bench being removable into any part of England at the pleasure of the crown.

But the more usual method of proceeding in the King's Bench 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 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. For this accusation of trespass it is that gives the Court of King's Bench jurisdiction in other civil causes; since, when once the defendant is taken into custody of the marshal or prison-keeper 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 marshal's prisoner; for, as soon as he appears, or puts in bail to the process, he is deemed by so doing to be in such custody of the marshal as will give the court a jurisdiction to proceed.