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"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 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 proportions of time 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. 2. 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 pleas, called usually bancum, or commune bancum, to distinguish it from bancum regis or the court of king's bench. They are generally at the distance of about a week from each other, and regulated by some festival of the church.

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 is usually called the essoign day of the term. But the 'person summoned has three days of grace, beyond the return of the writ, in which to make his appearance; and if he appears on the fourth day inclusive, quarto die post, it is sufficient. Therefore, at the beginning of each term, the court does not sit for the despatch of business till the fourth 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 sixth day; which is therefore usually called and set down in the almanacks as the first day of the term.

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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 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.

If the defendant disobeys this verbal monition, the next process is by writ of attachment, or pone; in which case 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; or by making him find safe pledges or sureties, who shall be amerced in case of his non-appear

ance.

But, in cases of injury accompanied by 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

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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. 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 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.

The capias now 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 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 consequence of the sheriff's return, are called judicial, not original, writs; they issue under the

in

private seal of that court, and not under the

great seal of England; and are teste'd, not in the king's name, but in that of the chief justice only.

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, 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, called a testatum capias, 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 become the settled practice; being one among many instances to illustrate that maxim of law, that in fictione juris consistit æquitas.

But where a defendant absconds, and the plaintiff

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