199 375 B. R. H. 199. 4. MANDAMUS is a prerogative writ iffuing out Bull. N. P. of the court of King's Bench, that court having 3 Bl. Com. a general fuperintendancy over all inferior jurif- 264. dictions and perfons, to enforce obedience to acts of 3. Burr. 1265, parliament, and to the King's charter, in which 4. Com. Dig cafe it is demandable of right; but when the right 205. is of a private nature, as to an office in which the Strange, 1192. public is not concerned, fuch as a deputy, regifter, &c. it is difcretionary in the court to grant or to refuse it therefore, upon every application for a mandamus it must be fhewn to the court what the office is. This writ alfo, by the 9. Ann. c. 20. is made a moft full and effectual remedy for refusing to admit any perfon entitled to an office in a corporation, and for wrongfully removing any perfon who is legally poffeffed. Palm. 523. 1. 2. Crom. Prac 5. PROHIBITION is a writ iffuing properly only 3. Bl. Com, out of the court of King's Bench, being the King's. Peere Wms. prerogative writ; but for the furtherance of juftice, 476. it may now alfo be had, in fome cafes, out of the Hob. 15. court of Chancery, Common Pleas, or Exchequer, 2. Inft. 602. directed to the judge and parties in a fuit in any 1.Ro. Rep.252. inferior court, commanding them to ceafe from Bulft. 120. the profecution thereof, upon a fuggeftion that 259. either the caufe originally, or fome collateral Buller's Nifi matter arifing therein, does not belong to that jurifdiction, but to the cognizance of fome other court. But, if a prohibition be improperly obtained, a confultation, which is a writ authorifing the inferior jurifdiction to proceed, shall be awarded, Prius, 218. Co. Lit. 290. 6. SCIRE FACIAS is a judicial writ founded Crompton's on fome matter of record; as judgments, re- Practice, 70. cognizances, and letters patent; on which it lies F. N. B. 267 to enforce the execution of them, or to vacate and 4. Bac. Abr. fet them afide. This writ, however, though it 409. be judicial or of execution, is fo far in the nature of an original, that a defendant may plead to it; and in that respect it is AN ACTION. A fcire facias lies for many purposes in law, the writ being formed according to the fubject matter; but the principal ufe is to recover against bail after judgment had against the principal on the recognizance forfeited Bb 4 2. Inft 438. 4. Bac. Abr. 413, 414. 2. forfeited; to revive a judgment by and against the fame identical parties to a fuit on which judgment was had; to continue a fuit by or against the repreCo. Lit. 103. fentatives of the parties dying before final judgment, or after judgment and before execution. Co. Lit. 73. 289. Wood's Inft. 555 1. Com. Dig. 605. HAVING enumerated the feveral fpecies of actions by which injuries are redreffed, we fhall proceed, in the remaining part of this fection, to point out THE MODES OF PRACTICE by which an action is carried on, from the first iffuing of the writ until the plaintiff obtains execution. Termes de le 1. A WRIT, breve or brevitate, is, in its most Ley, "Brief." extenfive fignification, a mandatory letter from the King, in parchment, fealed with his GREAT SEAL, commanding fomething to be done, or giving commiffion to have it done. Writs are of various kinds; but those we are at prefent to confider, are grounded on fome caufe of action, and are divided into original and judicial. ORIGINAL WRITS, all of which iffue out of the court of Chancery, are either optional or peremptory; or, in the language of the law, they are either a præcipe, or a i te fecerit fecurum. The præcipe is in the alternative, commanding the defendant to do the thing required, or fhew the reafon wherefore he hath not done it; and is ufed where fomething certain is demanded; as to reftore the poffeffion of land, to pay a certain liquidated debt, or the like. A fi te fecerit fecurun directs the fheriff to caufe the defendant to appear in court, without any option given him, provided the plaintiff make him fecure, to profecute his claim; and the ufe of this writ is where nothing fpecifically is demanded, but only a fatisfaction in general; as are writs of trefpafs, or on the cafe. Both these History and fpecies of writs are tefted, or witneffed, in the King's Court of Com- own name," WITNESS Ourfelf at Westminster," mon Pleas, 2.9. or wherever the Chancery may be held. In the court of Common Pleas all actions are commenced, or fuppofed to be commenced, by original writ iffued out of Chancery, returnable in that court; on which a copias in trefpafs quare claufum fregit Gilbert's Practice of the $20. 160. is made out; and if the party is to be held to bail, an ac etiam is inferted," and alfo in a certain plea of debt, &c." In the King's Bench alfo, actions on the cafe, trefpafs, ejectment, Cromp. Prac, 2. PROCESS is founded on judicial writs, and wood's Inft. 27. 3. SUMMONS. This Bill of Middlefex must be Cromp. Prac ferved on the defendant by the fheriff, if he finds Prac. Reg. him in that county; but if he returns non eft in-353. ventus," then there iffues out a writ of latitat. Barnes, 222. to the fheriff of the county in which he is fuppofed to lie bid; and in general the latitat is ufually fued cut upon only a fuppofed, and not an actual bill of Middlefex; fo that a latitat may be called the firit procefs in the court of King's Bench, as a teftatum capias is in the Common Pleas; but if the defendant really refides in Middlefex, the procefs must be by Bill of Middlefex only. If the defendant cannot be ferved (a) with thefe writs before (a) See their return, an alias and pluries may iffue; and if 12.Geo.1.c.29. he refides within any particular franchife, there 5.Geo-2.c.27. muft 21.Geo. 2. c.3. 1 ! Cromp Prac. muft be a non omittas fued out. Originally, the defendant might have been arrefted by the writ of latitat, for a fuppofed contempt of court, in not obeying the Bill of Middlefer; but by 12. Geo. 1. c. 29. the fheriff or his officer can only ferve the defendant with a copy of the writ or procefs, and with notice in writing to appear by his attorney in court to defend the action. Wood's Inft. 570. 1. Yent. 306. . Co. 65. 31. Bl. Rep. 192. 4. ARREST. But if the plaintiff will make affidavit that the caufe of action amounts to ten pounds, or upwards, the true caufe of action shall Cromp. Prac. be expreffed in the writ, and the defendant may be arrested and detained until the return of the writ. The expreffing the true caufe of action in the body of the writ, is called inferting the a etiam; the bill being to answer the plaintiff in a plea of trefpafs, and alfo to a bill of debt; the complaint of trefpafs giving cognizance to the court, and that of debt authorifing the arreft. The fum fworn to must be indorsed on the writ, and the theriff or his officer is then obliged to take him, and return the writ with a cepi corpus indorfed thereon. An arrest must be by corporal General Gan-feizing or touching the defendant's body, after Cowp.. which the bailiff may juftify breaking open the houfe where he is to take him; but otherwife he has no fuch power; for every man's houfe is his caftle, See the Cafe of 10 10. Cromp. Prac. 33:49- 5. BAIL BOND. When the defendant is arrested, he muft either go to prifon or put in fpecial bail to the theriff, by entering into a bond with fureties for his appearance on the return of the writ, and this is called the bail bond; but by 12. Geo. 1, c. 29. the theriff can only take bail in the fum fworn to and indorfed on the writ; and if the defendant do not put in fpecial bail, in the manner after defcribed, the plaintiff, by 4. & 5. Ann. c. 16. may take an alignment of the bail bond, and proceed against the furcties; or if he be diffatisfied with the bail, he may elect to rule the fheriff fheriff to return the writ, and bring in the body, and proceed against him by attachment. 6. APPEARANCE. The first act of the parties in court is, that the defendant appears to the process against him, by fhewing himself in court in perfon, or by his attorney, ready to answer to the action. This is performed by filing common bail in the King's Bench, and entering appearance in the Common Pleas, if the defendant has only been ferved with procefs; and by putting in fpecial bail, or bail above, if he has been arrested, and given bond to the fheriff in the manner before defcribed. 7. COMMON BAIL is effected by making an Cromp. Prac affidavit that the defendant, on fuch a day, was 47. perfonally served with a true copy of the Bill of Barnes, 243. Middlefex, latitat, alias, pluries, or whatever the writ may be, and entering on a common bail piece the names of thofe imaginary but useful perfons John Doe and Richard Roe, and fuggefting that the defendant was delivered to them as his bail. By 5. Geo. 2. c. 27. the defendant must caufe common bail to be filed on the return, or within eight days after fuch return, at which time the attorney, by 25. Geo. 3. c. 8o. muft deliver in his warrant to defend; and if this is not done, the plaintiff may file common bail for him, "according to the statute." 8. SPECIAL BAIL, or as it is fometimes called Cromp. Prac BAIL ABOVE, must be filed within four days after 53. 61. the return of the writ; and this is effected by pro-1061. 2. Bl. Rep. curing a fhort copy of the writ, together with the fum fworn to, and entering on a fpecial bail-piece the names of two houfekeepers, who, if their refponsibility should be doubted, may be obliged to JUSTIFY; which is nothing more than fuftaining an examination by Counfel in open court, and fwearing that they are housekeepers, each of them worth double the fum for which he comes to be bail, after all his debts are paid; and if this ceremony be not performed in due time, the το |