A Treatise on the Principles of Pleading in Civil Actions; Comprising a Summary View of the Whole Proceedings in a Suit at Law (Paperback)

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: justice of that court, and not in the name of the King himself. It may also be observed, that in common with all other writs issuing from the court of common law, during the progress of the suit, they are described [ 22 ] as judicial writs, by way of distinction from the original one obtained from the Chancery. (Z) [6] (0 Bract. 413, b.; 3 Bl. Com. 282; Booth, 4?23. [6] [The author thus continues his remarks in his first edition: " On these writs of process it is not necessary here to enlarge; but there is one of them which will require some specific notice. It is that called a capias ad respon- dendum. This writ directs the sheriff to enforce the appearance of the defendant by arrest of his person; and it lies in all the most usual personal actions. It is connected with the following important relaxation of practice relative to the original writ. The capias being only process, is of course regularly is-sua- ble only after an original writ has been first sued out and returned; but to save time and expense, it has become the general practice in all cases where it lies, to resort to it in the first instance, and to suspend the issuing of the original writ, or even to neglect it altogether, unless its omission should afterwards be objected to by the defendant Thus the usual practical mode of commencing1 a personal action by original writ, is to begin, by issuing, not an original, but a capias. It will be convenient, however, to explain more particularly, the manner in which this is done. In the King's Bench, the plaintiff's attorney commences the suit by preparing a draft (called a priecipf'j of the original writ, appropriate to the proposed action, in such form as is thought most proper nnd conformable to precedent. This he brings to the filacer (an officer of the cou...