plaintiff is alleged to be the king's farmer or debtor, Process, and that the defendant hath done him the injury complained of, quo minus sufficiens existit, by which he is the less able to pay the king his rent or debt. And upon this the defendant may be arrested as upon a capias from the common pleas.

Thus differently do the three courts set out at first, in the commencement of a suit, in order to entitle the two courts of king's bench and exchequer to hold plea in subjects causes, which by the original constitution of Westminster-hall they were not empowered to do. Afterwards, when the cause is once drawn into the respective courts, the method of pursuing it is pretty much the same in all of them.

If the sheriff had found the defendant upon any of the former writs, the capias latitat, &c. he was anciently obliged to take him into custody, in order to produce him in court upon the return, however small and minute the cause of action might be. For, not having obeyed the original summons, he had shown a contempt of the court, and was no longer to be trusted at large. But when the summons fell into disuse, and the capias became in fact the first process, it was thought hard to imprison a man for a contempt which was only supposed: and therefore, in common cases, by the gradual indulgence of the courts (at length authorised by statute 12 Geo. I. c. 29. which was amended by statute 5 Geo. II. c. 27. and made perpetual by statute 21 Geo. II. c. 3.) the sheriff or his officer can now only personally serve the defendant with the copy of the writ or process, and with notice in writing to appear by his attorney in court to defend this action; which in effect reduces it to a mere summons. And if the defendant think proper to appear upon this notice, his appearance is recorded, and he puts in sureties for his future attendance and obedience; which sureties are called common bail, being the same two imaginary persons that were pledges for the plaintiff's prosecution, John Doe and Richard Roe. Or, if the defendant does not appear upon the return of the writ, or within four (or in some cases eight) days after, the plaintiff may enter an appearance for him, as if he had really appeared; and may file common bail in the defendant's name, and proceed thereupon as if the defendant had done it himself.

Process. the common pleas are now fixed in consequence of magnacharta, but ubicunque fuerimus in Anglia, wheresoever the king shall then be in England; the king's bench being removeable into any part of England at the pleasure and discretion of the crown. But the more usual method of proceeding therein 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. For though, as the justices of this court have, by its fundamental constitution, power to determine all offences and trespasses, by the common law and custom of the realm, it needed no original writ from the crown to give it cognizance of any misdemesnor in the county wherein it resides; yet as, by this court's coming into any county, it immediately superseded the ordinary administration of justice by the general commissioners of eyre and of oyer and terminer, a process of its own became necessary, within the county where it sat, to bring in such persons as were accused of committing any forcible injury. The bill of Middlesex (which was formerly always founded on a plaint of trespass quare clausum fregit, 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. And, upon these accounts, in the bill or process, a complaint of trespass is always suggested, whatever else may be the real cause of action. This bill of Middlesex must be served on the defendant by the sheriff, if he finds him in that county: but if he returns, non est inventus, then there issues out a writ of latitat, to the sheriff of another county, as Berks which is similar to the testatum capias in the common pleas, and recites the bill of Middlesex and the proceedings thereon, and that it is testified that the defendant latitat et discurrit, Jurks and wanders about in Berks; and therefore commands the sheriff to take him, and have his body in court on the day of the return. But as in the common pleas the testatum capias may be sued out upon only a supposed, and not an actual preceding, capias; so in the king's bench a latitat is usually sued out upon only a supposed, and not an actual, bill of Middlesex. So that, infact, a latitat may be called the first process in the court of king's bench, as the testatum capias is in the common pleas. Yet, as in the common pleas, if the defendant lives in the county wherein the action is laid, a common capias suffices; so in the king's bench likewise, if he lives in Middlesex, the process must still be by bill of Middlesex only.

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In the exchequer the first process is by writ of quo minus, in order to give the court jurisdiction over pleas between party and party. In which writ the

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But if the plaintiff will make affidavit, or assert upon oath, that the cause of action amounts to ten pounds or upwards, then in order to arrest the defendant, and make him put in substantial sureties for his appearance, called special bail, it is required by statute 13 Car. II. stat. 2. c. 2. that the true cause of action should be expressed in the body of the writ or process; else no security can be taken in a greater sum than 401. This statute (without any such intention in the makers) had like to have ousted the king's bench of all its jurisdiction over civil injuries without force; for as the bill of Middlesex was framed only for actions of trespass, a defendant could not be arrested and held to bail thereupon for breaches of civil contracts. But to remedy this inconvenience, the officers of the king's bench devised a method of adding what is called a clause of ac etiam to the usual complaint of trespass; the bill of Middlesex commanding the defendant to be brought in to answer the plaintiff of a plea of trespass, and also to a bill of debt: the complaint or trespass giving cognizance to the court, and that of debt authorising the ar

rest.

Process. rest. In imitation of which, lord chief justice North, a few years afterwards, in order to save the suitors of his court the trouble and expence of suing out special originals, directed, that in the common pleas, besides the usual complaint of breaking the plaintiff's close, a clause of ac etiam might be also added to the writ of "that capias, containing the true cause of action; as, the said Charles the defendant may answer to the plaintiff of a plea of trespass in breaking his close: and also, ac etiam may answer him, according to the custom of the court, in a certain plea of trespass upon the case, upon promises, to the value of 20l. &c." The sum sworn to by the plaintiff is marked upon the back of the writ; and the sheriff, or his officer the bailiff, is then obliged actually to arrest or take into custody the body of the defendant, and, having so done, to return the writ with a cepi corpus indorsed thereon. See ARREST.

When the defendant is regularly arrested, he must either go to prison, for safe custody; or put in special bail to the sheriff. For, the intent of the arrest being only to compel an appearance in court at the return of the writ, that purpose is equally answered, whether the sheriff detains his person, or takes sufficient security for his appearance, called bail (from the French word bailer," to deliver)," because the defendant is bailed, or delivered, to his sureties, upon their giving security for his appearance; and is supposed to continue in their friendly custody instead of going to gaol. See BAIL. The method of putting in bail to the sheriff is, by entering into a bond or obligation, with one or more sureties, (not fictitions persons, as in the former case of common bail, but real, substantial, responsible bondsmen), to insure the defendant's appearance at the return of the writ; which obligation is called the bail-bond. The sheriff, if he pleases, may let the defendant go without any sureties; but that is at his own peril: for, after once taking him, the sheriff is bound to keep him safely, so as to be forthcoming in court; otherwise an action lies against him for an escape. But on the other hand, he is obliged, by statute 23 Hen. VI. c. 10. to take (if it be tendered) a sufficient bail-bond; and, by statute 12 Geo. I. c. 29. the sheriff shall take bail for no other sum than such as is sworn to by the plaintiff, and indorsed on the back of the writ.

Upon the return of the writ, or within four days after, the defendant must appear according to the exigency of the writ. This appearance is effected by putting in and justifying bail to the action; which is commonly called putting in bail above. If this be not done, and the bail that were taken by the sheriff below are responsible persons, the plaintiff may take an assignment from the sheriff of the bail-bond (under the statute 4 and 5 Ann. c. 16.) and bring an action thereupon against the sheriff's bail. But if the bail so accepted by the sheriff be insolvent persons, the plaintiff may proceed against the sheriff himself, by calling upon him, first to return the writ (if not already done), and afterwards to bring in the body of the defendant. And if the sheriff does not then cause sufficient bail to be put in above, he will himself be responsible to the plaintiff.

The bail above, or bail to the action, must be put in either in open court, or before one of the judges thereof; or else, in the country, before a commissioner appointed for that purpose by virtue of the statute 4 W. and M. c. 4. which must be transmitted to the court.

These bail, who must at least be two in number, must Process. enter into a recognizance in court, or before the judge or commissioner, whereby they do jointly and severally undertake, that if the defendant be condemned in the action, he shall pay the costs and condemnation, or render himself a prisoner, or that they will pay it for him: which recognizance is transmitted to the court in a slip of parchment, intitled a bail-piece. And, if required, the bail must justify themselves in court, or before the commissioner in the country, by swearing themselves housekeepers, and each of them to be worth double the sum for which they are bail, after payment of all their debts. This answers in some measure to the stipulatio or satisdatio of the Roman laws, which is mutually given by each litigant party to the other: by the plaintiff that he will prosecute his suit, and pay the costs if he loses his cause; in like manner as our law still requires nominal pledges of prosecution from the plaintiff: by the defendant, that he shall continue in court, and abide the sentence of the judge, much like our special bail; but with this difference, that the fidejussores were there absolutely bound judicatum solvere, to see the costs and condemnation paid at all events: whereas our special bail may be discharged, by surrendering the defendant into custody within the time allowed by law; for which purpose they are at all times entitled to a warrant to apprehend him.

Special bail is required (as of course) only upon actions of debt, or actions on the case in trover, or for money due, where the plaintiff can swear that the cause of action amounts to ten pounds: but in actions where the damages are precarious, being to be assessed ad libitum by a jury, as in actions for words, ejectment, or trespass, it is very seldom possible for a plaintiff to swear to the amount of his cause of action; and therefore no special bail is taken thereon, unless by a judge's order, or the particular directions of the court, in some particular species of injuries, as in cases of mayhem or atrocious battery; or upon such special circumstances as make it absolutely necessary that the defendant should be kept within the reach of justice. Also in actions against heirs, executors, and administrators, for debts of the deceased, special bail is not demandable; for the action is not so properly against them in person, as against the effects of the deceased in their possession. But special bail is required even of them, in actions for a devastavit, or wasting the goods of the deceased; that wrong being of their own committing.

Thus much for process; which is only meant to bring the defendant into court, in order to contest the suit, and abide the determination of the law. When he appears either in person as a prisoner, or out upon bail, then follow the pleadings between the parties. See PLEADINGS.

PROCESS upon an Indictment. See PROSECUTION. The proper process on an indictment for any petty misdemeanor, or on a penal statute, is a writ of venire fascias, which is in the nature of a summons to cause the party to appear. And if by the return to such venire

it

appears that the party hath lands in the county whereby he may be distrained, then a distress infinite shall be issued from time to time till he appears. But if the sheriff returns, that he hath no lands in his bailiwick, then (upon his non-appearance) a writ of capias shall issue, which commands the sheriff to take his body, and

have

have him at the next assizes; and if he cannot be taken upon the first capias, a second and a third shall issue, called an alias and a pluries capias. But, on indictments for treason or felony, a capias is the first process: and, for treason or homicide, only one shall be allowed to issue, or two in the case of other felonies, by statute 25 Edw. III. c. 14. though the usage is to issue only one in any felony; the provisions of this statute being in most cases found impracticable. And so in the case of misdemeanors, it is now the usual practice for any judge of the court of king's bench, upon certificate of an indictment found, to award a writ of capias immediately, in order to bring in the defendant. But if he absconds, and it is thought proper to pursue him to an outlawry, then a greater exactness is necessary. For, in such case, after the several writs have issued in a regular number, according to the nature of the respective crimes, without any effect, the offender shall be put in the exigent in order to his outlawry: that is, he shall be exacted, proclaimed, or required, to surrender at five county-courts; and if he be returned quinto exactus, and does not appear at the fifth exaction or requisition, then he is adjudged to be outlawed, or put out of the protection of the law; so that he is incapable of taking the benefit of it in any respect, either by bringing actions or otherwise. The punishment for outlawries upon indictments for misdemesnors, is the same as for outlawries upon civil actions; viz. forfeiture of goods and chattels. But an outlawry in treason or felony amounts to a conviction and attainder of the offence charged in the indictment, as much as if the offender had been found guilty by his country. His life is, however, still under the protection of the law, as hath elsewhere been observed; (see HoMICIDE): that though anciently an outlawed felon was said to have caput lupinum, and might be knocked on the head like a wolf, by any one that should meet him; because, having renounced all law, he was to be dealt with as in a state of nature, when every one that should find him might slay him: yet now, to avoid such inhumanity, it is holden that no man is intitled to kill him wantonly or wilfully; but in so doing is guilty of murder, unless it happens in the endeavour to apprehend him. For any person may arrest an outlaw on a criminal prosecution, either of his own head, or by writ or warrant of capias utlagatum, in order to bring him to execution. But such outlawry may be frequently reversed by writ of error, the proceedings therein being (as it is fit they should be) exceedingly nice and circumstantial; and if any single minute point be omitted or misconducted, the whole outlawry is illegal, and may be reversed; upon which reversal the party accused is admitted to plead to, and defend himself against, the indictment.

Thus much for process to bring in the ofender after indictment found; during which stage of the prosecution it is that writs of certiorari facias are usually had, though they may be had at any time before trial, to certify and remove the indictment, with all the proceedings thereon, from any inferior court of criminal jurisdiction into the court of king's bench; which is the sovereign ordinary court of justice in causes criminal. And this is frequently done for one of these four purposes; either, 1. To consider and determine the validity of appeals or indictments and the proceedings thereon; and to quash or confirm them as there is cause; or, 2. Where it is 5

Lion.

surmised that a partial or insufficient trial will probably Process be had in the court below, the indictment is removed, in order to have the prisoner or defendant tried at the Proelama. bar of the court of king's bench, or before the justices of nisi prius: or, 3. It is so removed, in order to plead the king's pardon there: or, 4. To issue process of outlawry against the offender, in those counties or places where the process of the inferior judges will not reach him. Such writ of certiorari, when issued and delivered to the inferior court for removing any record or other proceeding, as well upon indictment as otherwise, supersedes the jurisdiction of such inferior court, and makes all subsequent proceedings therein entirely erroneous and illegal; unless the court of king's bench remands the record to the court below, to be there tried and determined, A certiorari may be granted at the instance of either the prosecutor or the defendant: the former as a matter of right, the latter as a matter of discretion; and therefore it is seldom granted to remove indictments from the justices of gaol-delivery, or after issue joined, or confession of the fact in any of the courts below.

At this stage of prosecution also it is, that indictments found by the grand jury against a peer, must in consequence of a writ of certiorari, be certified and transmitted into the court of parliament, or into that of the lord high steward of Great Britain; and that, in places of exclusive jurisdiction, as the two universities, indictments must be delivered (upon challenge and claim of cognizance) to the courts therein established by charter, and confirmed by act of parliament, to be there respectively tried and determined. See PLEA.

PROCESS, in Chemistry, the whole course of an experiment or series of operations, tending to produce something new.

PROCESS, in Anatomy, denotes any protuberance or eminence in a bone.

PROCESSION, a ceremony in the Romish church, consisting of a formal march of the clergy and people, putting up prayers, &c. and in this manner visiting some church, &c. They have also processions of the host or sacrament, &c. See HOST.

PROCHEIN AMY, in Law, the person next a-kin to a child in non-age, and who, in that respect, is allowed to act for him, and be his guardian, &c. if he hold land in soccage.

To sue, an infant is not allowed to make an attorney; but the court will admit his next friend as plaintiff, or his guardiau as defendant.

PROCKIA, a genus of plants belonging to the polyandria class; and in the natural method ranking with those of which the order is doubtful. See BOTANY Index.

PROCLAMATION, a public notice given of any thing of which the king thinks proper to advertise his subjects.

Proclamations are a branch of the king's prerogative*; and have then a binding force, when (as Sir See PreEdward Coke observes) they are grounded upon and enforce the laws of the realm. For though the making of laws is entirely the work of a distinct part, the legislative branch of the sovereign power, yet the manner, time, and circumstances of putting those laws in execution, must frequently be left to the discretion of the executive magistrate. And therefore his constitutions or edicts, concerning those points which we call Proclamations,