courts at Halifax, and his deputies perform the same duties respectively in each of the other counties of the province. The supreme court has also a crier to make proclamation in open court, and to call the witnesses, &c. The sheriff of the county attends its sittings to preserve order among the bystanders, and to return or receive writs and orders, and the constables also attend to aid him in keeping silence and decorum.

CHAPTER VI.

OF THE WRITS BY WHICH AN ACTION MAY BE COMMENCED.

The general rule of the supreme court, Michaelmas term, 7th year, Geo. 3d, directed, "that all original "actions and proceedings thereon in this court, may be "as near as may be agreeable to the laws of this province, "and conformable to the courts of Westminster hall, in "England." 1767. The forms used in this province, before and since the rule was made, have necessarily been much varied from those in practice in England. In considering the writs and proceedings by which a suit is begun, it is obvious, that there is much greater simplicity and less expense or delay in the colonial practice, than in that followed in the mother country. The writs issued at a heavy expense under the great seal (called original writs,) which are in certain actions necessary in England, and by which every action there must commence, by the legal fiction which assumes them to have been issued in all cases, and the various and fantastical forms of mesne process called bills of Middlesex, latitats, testatum capias,-quo minus, ac etiam, &c. all con

taining legal fictions, and fraught with heavy expenses, are unknown in our law proceedings. "All original "process and even writs of dedimus potestatem to commis❝sioners to take renunciations of dower are issued by the "court of common law itself, and tested in the name of "the chief justice, and the chancery issues no writ in the "form of a praecipe or si te fecerit securum, or any other

process whereon to found the proceedings of the courts "of common law, except writs of audita querela, which "must necessarily be issued by the chancellor, and instan"ces of the issuing of such writs of audita querela I have "known in different colonies; but I remember no case "wherein the chancellor issued any other writ to enable "the courts of common law to hold plea; and by reason "that which in Westminster Hall is mesne process, viz.: the

summons in dower, the capias in trespass, &c. are the "original process in the colonies."-Stokes on colonial law, 257—8. We have derived from our early intercourse with Massachusetts, (anterior to the revolution in America)—a more simple formula of law proceedings, as well as most of the improvements on the law of real estate noticed in the last volume. The mode of proceeding at the commencement of a personal action is threefold.-1. By summons. 2. By arrest, or-3. By attachment of property.

Where the plaintiff and defendant do not reside in one county the writ (in the supreme court) may be issued from Halifax, and made returnable there, by rule of the supreme court-Mich. T. 7 G. 3. If they both reside in one county the writ must be issued from the prothonotary's office of the county, and be returnable at the next supreme court held there. The writ in every case is directed to the sheriff' of the county where the defendant is to be found (or in case of attachment against an absent debtor, where the property is to be discovered.) I will show first, the forms of proceeding in actions where the claims for debt or damages is above £20. as suits under that amount are conducted

in a different manner, forming, what is called the summary jurisdiction of the supreme, inferior, and other courts. which requires a separate section.*

Of summons.

The provincial act of 1795, 35 G. 3 c. 1. sec. 7, 1 P. L. 346, directs that "all writs of summons, to be issued "from any court of record, within this province shall be "directed to the sheriff of the county within which such "writ is to be served." It goes on to give the form of the writ, and further enacts that a copy of the summons "shall in all cases be served by the sheriff, upon the "defendant or defendants." This writ is dated in the body of it, on some day in term time, whether issued in the term or in the vacation following. The real date of its' issuing is put on it, by the deputy prothonotary, when he affixes to it his signature and the seal of the court. It is witnessed (or tested) in the name of the chief justice of the court from which it issues. These remarks apply as well to attachments and capiases as summons, and also to all the other writs or process used in a civil cause. They are all also, by the practice of the court, to be signed by the party, or the attorney of the party at whose instance they issue. Those writs are made returnable on a certain day in the term next, after that from which they bear date, which is either (in the supreme court,) the first or the second tuesday of the term. The summons notifies the defendant to appear at that day in court, and specifies the form of action, and also the extent to which the plaintiff claims damages.

Of arrests.

The form of writ of capias, used in the practice of our supreme courts, and courts of common pleas, was ori

* £50, is substituted for £20, by the temporary act of 1832. 2. W. 4, c. 53. Mr. Roach's bill.

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ginally adopted under some laws of the province, since expired or repealed, or acts of council, but it is of less moment to trace its origin, as it is confirmed by long use in its present form, and derives its legality chiefly from the provincial act of 1778, 18, G. 3 c. 6. sec. 1 & 2, 1 P. L. 211. "Be it enacted by the "Lieutenant-Governor, Council and Assembly, that in "all causes where the sum in demand shall exceed three pounds, the provost marshal (or sheriff,) or his deputy, "may arrest, imprison or hold to bail, any debtor or "debtors, or attach the goods, chattels or estate of such "debtor or debtors, upon the plaintiff in such actions, his at"torney or agent, making and subscribing an affidavit in "writing, before a judge of the court, from whence such writ “shall issue, or in the absence of such judges, before any 66 one of his Majesty's justices of the peace, that the defen"dant is justly indebted to the plaintiff in any sum excee"ding three pounds, which affidavit shall be filed in the of"fice of the clerk of the court, from whence the writ shall “issue, and the sum specified in such affidavit, shall be in"dorsed on the back of the said writ in the form following,

by oath for (in words at length) for which sum so in"dorsed, the provost marshal, sheriff, coroner, or their deputies, shall take bail, or make attachment as aforesaid, "and for no more; any law, usage or custom to the con(( trary notwithstanding."

Sec. 2." And be it further enacted, that if such action "shall be brought by any agent, factor or attorney, in the "name of his principal, if absent, upon producing an affi"davit of the debt of his principal duly authenticated, ac"cording to the laws of England, or the usage and prac"tice of the plantations in such cases, and upon the said "' affidavits being respectively filed as aforesaid, then the "said judge shall indorse the sum so sworn to, and bail "shall be required, or an attachment be made accordingly.". The affidavit (in the supreme court) may be made

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