in substitution for it; but as regards the defendant, the form is observed of his delivering to the proper officer of the court, a memorandum importing either that he appears in person, or that some solicitor, whose name is given, appears on his behalf-a practice that obviously secures the important object, of protecting defendants from the danger of having a judgment obtained against them by surprise. This appearance is previously commanded by a writ, (or mandate from the sovereign,) which is termed, in technical language, the process in the action.

The process in antient times comprised a variety of different writs, of different degrees of stringency, issued consecutively upon each other, where the first for any reason failed to be effectual (u). But it always began with an original writ; which was an instrument issued out of Chancery, in the name of the sovereign, under the Great Seal, (instead of being merely under the seal of the court of common law itself, as was usual with other process,) commanding the sheriff to require the defendant to appear in the court of common law, to answer to some particular cause of action in the writ set forth. This mode of commencing a suit, was antiently in universal use, and is a practice of remote antiquity. We may also take occasion to remark here, that great technical importance used to attach to a writ of this description. For as it had constituted from time immemorial the first step in the action, and always set forth, (in general or special terms according to the nature of the case,) the circumstances upon which it was founded, it had incidentally the effect of defining the scope and number of our legal remedies themselves; it being held that no action would lie unless the case was one for which a precedent could be found, in the Register of Original Writs.

(u) All these writs fell under the common term of the process; and those subsequent to the first or original writ, were also called the mesne

Thus the law of writs,

process, to distinguish them from the original writ, and also from writs of execution, which were termed final process.

(that is, of original writs,) became in effect identical with that of actions; and the same remedy was described indifferently as a writ of trespass, (for example,) or of dower, or an action of trespass, or of dower. In course of time, however, new modes of commencement were devised, by connivance of the judges, in order to avoid the expense of an original writ, (for which a fine or fee, of considerable amount, was in many cases payable to the crown); and with the view, also, of enabling the Queen's Bench and Exchequer to effect that encroachment or usurpation on the jurisdiction of the Common Pleas, to which we have referred in a former part of this volume (r). We shall not encumber our text with any attempt to explain the nature of these devices, or the manner in which they severally operated, which have now become matters of mere curiosity. It will suffice to say that they had the effect of irregularly introducing, into each of the superior courts of common law, the use of a variety of writs of different descriptions by way of alternatives for the antient course of suing out an original writ under the Great Seal; and that the result of this was, at length, to involve the first stages of an action in great and unnecessary complexity. The Commissioners appointed in 1828 for inquiry into the course of proceedings at common law, having been consequently led to recommend the adoption of a simple and more uniform system, an act of parliament (2 Will. IV. c. 39) was passed for the purpose (y).

But this system, though it comprised many capital improvements, was afterwards thought to have been too moderate and cautious in its deviations from the antient course; and was therefore itself amended (at the suggestion of a succeeding commission), by the 15 & 16 Vict. c. 76 (called the Common Law Procedure Act, 1852); and still further alterations were subsequently made by

(x) Vide sup. pp. 333, n. (e), 338, n. (q).

(y) See the First Report of the

Common Law Commissioners appointed in 1828.

17 & 18 Vict. c. 125, (called the Common Law Procedure Act, 1854,) and by 23 & 24 Vict. c. 126-called the Common Law Procedure Act, 1860 (z).

According to the method of proceeding established by these Acts, which in part retained, and in many important respects innovated upon, the antecedent practice, -an action was directed to be commenced by a writ of summons in a prescribed form-viz. by a writ issued in the queen's name, directed to the intended defendant, describing him as of the county and place where he is supposed to reside or be, and commanding him to cause an appearance, (a term already explained,) to be entered for him in court, in an action at the suit of the plaintiff, within a certain period after the writ shall be served upon him, the defendant (a). It is also endorsed with the name and place of abode of the plaintiff's solicitor; and, where he is agent for another solicitor, with the name and place of abode of the latter (b); or if no solicitor is employed,

() The provisions of these Acts may be applied to any court of record in England or Wales, to which the Crown, by order in council, may from time to time, think proper to apply the same; and many of their enactments have accordingly in fact been applied to particular local courts and to the county courts generally. It may be here observed that the "Common Law Procedure Acts" are not by name referred to in any part of the Judicature Act, 1873, or in the rules of procedure thereto annexed. It is apprehended that where consistent with that statute and the rules to be made under it, their provisions will remain in force after the Judicature Act comes into operation. (See 36 & 37 Vict. c. 66, s. 76.) (a) See 15 & 16 Vict. c. 76, s. 2, sched. (A.)

(b) Under the Judicature Act, 1873, district registries are to be established in the country, in such places and districts as shall be defined by order in council, from which may be issued writs of summons, and other proceedings taken, such as shall be prescribed by rules of court or special order, down to and including entry for trial, or (in case of non-appearance by defendant) down to and including entry of final judgment. The proceedings, however, on the application of any of the parties may be directed by the High Court or a judge at chambers to be removed from the district registry to the proper office of the High Court; and, on the other hand, accounts and inquiries may be referred to the district registrar. (See 36 & 37 Vict. c. 66, ss. 60-66.)

then with a memorandum that it has been sued out by the plaintiff in person, mentioning particularly his place of residence (c). Under the Judicature Act, 1873, it is also required to be endorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action, and specifying the division of the High Court to which it is intended by the plaintiff that the action shall be assigned (d). Moreover, if it be for payment of any debt, the amount of the debt and costs claimed is to be endorsed thereon, with a notice that if the amount be paid to the plaintiff or his solicitor within a certain time from the service, further proceedings will be stayed (e). And it is in the option also of the plaintiff in any case where his claim is merely for a debt, or liquidated demand in money (with or without interest) arising upon a contract express or implied, to make a special indorsement of the particulars of the claim, after giving credit for any payment or set-off (ƒ).

(c) 15 & 16 Vict. c. 76, s. 6. (d) 36 & 37 Vict. c. 66, sched. r. 2. The plaintiff is enabled to assign his cause or matter to any one of the divisions of the High Court, or (not being the probate, divorce and admiralty division) as he may think fit; but, if he assigns it improperly, according to the rules of court and the provisions of that Act, it may at any stage be ordered to be transferred to the proper division, and this either on or without the application of the parties. (Sect. 35.)

(e) 15 & 16 Vict. c. 76, s. S. The defendant is at liberty, however, notwithstanding such payment, to have the costs taxed; and if more than one-sixth is disallowed, the plaintiff's solicitor will have to pay the costs of taxation. (Ibid.) With respect to the endorsements men

tioned in the text, it is to be observed that their omission does not render the writ void. It is only an irregularity, rendering the writ liable to be set aside or amended. (Sect. 20.)

(f) 15 & 16 Vict. c. 76, s. 25; 36 & 37 Vict. c. 66, sched. r. 7. The cases in which this special indorsement may be made, are thus exemplified in this last enactment: "a bill of exchange, promissory note, cheque, or other simplé contract debt, or on a bond or contract under seal for payment of a liquidated amount of money, or on a statute where the sum sought to be recovered is a fixed sum of money, or in the nature of a debt, or on a guarantee, (whether under seal, or not,) where the claim against the principal is in respect of such debt or liquidated demand, bill, cheque or note, or on a trust." (Ibid.)

In suing out the writ, care of course should be taken that it is between the proper parties; in other words, that it should purport to be a writ between such persons as ought to be respectively plaintiff or plaintiffs, defendant or defendants; as to which the rule has hitherto been, that all such persons, and on the other hand no other such person, must be joined. A mistake, however, in this matter, though it may cause expense to the plaintiff, will not, for the future, defeat the action (g); for it forms. one of the rules of procedure under the Judicature Act, 1873, that no action shall be defeated by reason of the misjoinder of parties, but the court may deal with the matter in controversy, so far as regard the rights and interests of the parties actually before it; and may at any stage of the proceedings order any parties either to be struck out as plaintiffs or defendants, or may add any parties who ought to have been joined or whose presence may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the action (h).

This writ of summons remains in force for a certain fixed period; at any time before the expiration of which, supposing the writ not to have been yet served, it may be renewed (in order to keep the suit alive) for a similar period; and such renewal may be repeated as often as there may be occasion, all renewals being effected by the simple method of procuring a stamp to be impressed upon

See as to the construction of the former provision (which was nearly in the same words), Rogers v. Hunt, 10 Exch. 474; Rodway v. Lucas, ibid. 665.

(g) A wrong joinder of parties, was at one period often a ground for fatal objection. But it was provided by 23 & 24 Vict. c. 126, s. 19, that the joinder of too many plaintiff's should not be fatal, but

judgment should be given in favour of one or more of them,-the defendant being entitled, though unsuccessful, to his costs occasioned by such joinder. (As to the construction of this enactment, see Bellingham v. Clark, 1 B. & Smith, 332.)

(h) See 36 & 37 Vict. c. 66, sched. rr. 9-17.