writ, "pone pone per vadium et salvos plegios"-" put by gage and safe pledges, A. B., the defendant, &c."-If he neglect to appear after attachment, he is farther compelled by writ of distringas, commanding the sheriff to distrain the defendant of his goods if he do not appear. And if he have no goods, then a writ of capias is issued, empowering the sheriff to take the defendant's body and bring him into court, on the day of the return to answer the plaintiff's plea. If after repeated writs of capias and proclamation made, the defendant do not appear and cannot be found, an outlawry takes place. Such outlawry is putting the man out of the protection of the law, and is attended by a forfeiture of all his goods and chattels to the king. But the common practice is to issue the writ of capias in the first instance; and the sheriff can only serve the defendant with a copy of the writ, and a written notice to appear by his attorney in court to defend the action. But if the plaintiff make affidavit, that the cause of action amounts to £10 and upwards, then he may arrest the defendant. An arrest must be by corporeal seizing or touching the defendant's body; but the bailiff cannot enter his house by violence, but must watch his opportunity to take him. When the defendant is regularly arrested, he must either go to prison or safe custody, or put in special bail to the sheriff as security for his appearance. This appearance is effected by putting in bail to the action. These bails, who must be at least two in number, must enter into a recognizance in a sum equal, or sometimes double, to that to which the plaintiff has sworn: whereby they 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. Such then is the process or mode which the law appoints for bringing the defendant into court, to try the suit and abide the issue.

After the process follows the pleadings; that is, the plaintiff states a declaration of his case, to which the defendant must in a reasonable time make his defence or put in a plea, otherwise the plaintiff will at once recover judgment by default, unless he and the plaintiff can agree to make up the matter.

Pleas are of two sorts; dilatory pleas, and pleas to the action.

The fourth stage of the action is the issue, which is the end of all the proceedings; and is either on a matter of law or matter of fact. The former is called a demurrer; which confesses the facts to be true, but denies that any injury is thereby done to the plaintiff. The latter, or an issue of fact, is when the fact only is disputed. When he who denies the fact has tendered the issue, both parties are said to join issue, having agreed to rest the fate of the cause upon the decision of a jury of the country; and this brings us to the trial in open court.

A trial, then, or probation, is the mode which the law of the land has settled for a criterion of truth and falsehood.

In civil cases the law acknowledges seven special trials; viz. 1. by record; 2. by inspection; 3. by certificate; 4. by witnesses; 5. by wager of battel; 6. by wager of law; and 7. by jury.

1. A trial by record, is when a matter of record is pleaded in any action; and the defendant pleads that there is no such record existing. Upon this, issue is joined, and the plaintiff is allowed time to produce the said record, and on his failure the defendant shall have judgment to recover. The cases usually tried by record are titles of nobility. Thus, whether such a one be earl or no earl, whether baron or no baron, shall be tried by the king's patent only, which is matter of record.

2. Trial by inspection, is when the point or issue is the object of sense; so that the judges upon the testimony of their own senses may decide the question; as in cases of nonage, idiotism, and the like. So also the issue respecting any circumstance relative to a particular day past, may be tried by inspection of the almanac by the court. Thus, an appeal upon a writ of error was once made from an inferior court, at Lynn Regis, assigning the error to be, that the judgment was given on a Sunday: it appearing to have been the 26th February, in the 26th year of the reign of queen Elizabeth. Upon inspecting the almanacs of that year the fact was found to be so; and the judgment was reversed accordingly.

3. The trial by certificate is allowed in such cases when the evidence of the person certifying is the only proper criterion of the point in dispute. As if A. B. asserts that he was at Jamaica at such a time, the court may determine the fact upon a certificate under the hand and seal of the governor of that island.

4. The trial by witnesses, without the intervention of a jury, is the only method of trial known to the civil law, in which the judge is left to form his sentence in his own breast upon the credit of the witnesses examined. But it is very rarely used in the law of England, which prefers the trial by jury before it in all cases.

5, 6. The trial by wager of battel, and by wager of law, are both now quite out of use, and therefore need only be mentioned.

7. Trial by jury having been already detailed, page 51, need not be here repeated, but merely to supply what was then omitted. The evidence having been gone through on both sides, the judge proceeds to sum up the whole to the jury, in presence of the parties, their counsel, and all others, in open court. In doing which his lordship observes wherein the main question or principal issue lies; states what evidence has been adduced in it, and gives his opinion to the jury, in matters of law, arising upon that evidence. If the case be not very clear, the jury then retire from the bar to consider of their verdict. They must be kept entirely by themselves, and not suffered to speak to either of the parties, or

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their agents; nor to receive any fresh evidence in private, nor cast lots for whom they shall decide; as any of these circumstances would invalidate their verdict. And to avoid intemperance, or unnecessary delay, they are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed. If they should not be agreed before the judges are about to leave the town, they are to be threatened or imprisoned; yet the judges are not bound to wait for their decision, but may take them from town to town, through the circuit, in a cart, until they can make up their minds.

When the jury are agreed, they return back to the bar; and before the verdict is delivered, the plaintiff is bound to appear in court by himself, or his attorney, or counsel, in order to answer the amercement to which he is liable if he fail in his suit. If the plaintiff do not appear, he is said to be non-suit, and no verdict can be given; and therefore it is usual for him, when he or his counsel perceive that he has not sufficient evidence to maintain his issue, to be voluntarily non-suited. Whereupon the action is ended, and the defendant shall recover his costs. The reason of this practice is, because after a non-suit, the plaintiff may commence an action again; but after a verdict and judgment against him, he cannot attack the defendant again upon the same grounds.

A verdict means to speak truly, by which the jury openly declare to have found for the plaintiff or defendant. A special verdict is when the jury simply state the naked facts as they find them to be proved, and pray the advice of the court thereon, concluding conditionally, that if upon the whole of the matter, the court shall be of opinion that they find for him; if otherwise, then they find for the defendant. A special case is another species of verdict, when the jury find generally for the plaintiff, subject to the opinion of the judge or court above, on a special case, stated by the counsel on both sides, with regard to a matter of law ;-when the verdict is given and recorded in court, the trial is finished, and the jury is to be discharged.

The judgment of the court follows the verdict of the jury, but it may be suspended and finally arrested, for it cannot be entered till the next term after trial had, and that upon notice to the other party; so that if any defect of justice happened at the trial through surprise, inadvertency, or misconduct, the party may have sufficient relief in the court above, by obtaining a new trial; which is always granted, when the reasons for applying for one are sufficiently weighty.

Arrests of judgment arise from intrinsic causes appearing on the face of the record. Of this kind are, first, when the declaration varies totally from the original writ; secondly, when the verdict differs materially from the pleadings or issue thereon; or, thirdly, if the case laid in the declaration, be not sufficient in point of law on which to found an action.

If, by some of these means, judgment is not arrested within the first four days of the next term after the trial, it is then to be entered on the roll or record. But when judgment is arrested, each party pays his own costs.

Judgments are not the judge's determinations, but the sentence of the law, and are of four sorts; first, when the facts are confessed by the parties themselves, and the law is determined by the court: as in the case of judgment on demurrer; secondly, when the law is admitted by the parties, but the facts disputed as in the case of judgment on a verdict; thirdly, when both the law and the facts arising thereon are admitted by the defendant : which is the case of judgment by confession or default; or, lastly, when the plaintiff is convinced that either fact or law, or both, are insufficient to support his action, and therefore abandons or withdraws his prosecution; which is the case in judgments on a non-suit, or retraxit.

The consequence of judgment is execution, which will follow immediately, unless the party condemned thinks himself unjustly aggrieved by any of these proceedings; and then he has his remedy to reverse them by several writs in the nature of appeals.

The principal method of redress in wrong judgment, by way of appeal, is by a writ of error to some superior court. A writ of error for some supposed material mistake, assigned in the proceedings of a court of record, lies, in the last resort, to the house of Lords, whose decision cannot be reversed, or even reviewed. When judgment has not been suspended, superseded, nor reversed, execution follows, or the law is put in force, according to the nature of the action. The different writs of execution must be sued out within a year and a day after judgment is entered: otherwise the court concludes that the judgment is satisfied and extinct; yet the defendant may be compelled to show cause why the judgment should not be revived, &c.

II. COURTS OF EQUITY.-Although there is some difference with regard to the forms of practice adopted in the court of Chancery, and the equity court of Exchequer, yet the same system of redress is pursued in each.

Equity, in its true and genuine import, is the soul and spirit of all law. Positive law is construed, and rational law is made by it. Nothing more is intended by equity than the sound interpretation of the law: the words of the law itself may, and often are too general, too special, or otherwise defective. In such cases, it is the province of equity to expound their true meaning. However the courts of law and of equity may differ in their outward forms, they rest upon the same substantial foundation. Their proceedings are dissimilar in their mode of proof, the mode of trial, and the mode of relief. But the essential difference between them consists in the different modes of administering justice in each.

With respect to the mode of proof: where facts, or their leading circumstances, depend only on the knowledge of the party, a court of equity ap

plies itself to his conscience; and purges him upon oath with regard to the transaction. The truth being hereby once discovered, the judgment is the same in equity as it would have been had the same facts appeared in a court of law. The mode of trial in courts of equity is by interrogatories, administered to the witnesses; upon which their depositions are taken in writing, wherever they happen to reside. If, therefore, the cause arise in a foreign country, and the witnesses live on the spot; if in cases arising in England the witnesses are abroad, or soon to leave the kingdom; or if witnesses residing at home are aged and infirm: a court of equity may and will grant a commission to examine them.

As to the mode of relief: the want of a more specific remedy than can be obtained in the courts of law, gives a concurrent jurisdiction to a court of equity in a great many instances, as in executing agreements, which a court of equity will cause to be carried into strict execution, instead of giving damages for their non-performance. And in other instances, a more extensive and specific relief may be had in courts of equity than can be obtained in courts of law.

A suit in Chancery commences by preferring a bill to the lord chancellor in the style of a petition, "humbly complaining, showeth to your lordship, your orator A. B. that," &c. setting forth the circumstances of the case at length, as some fraud, trust, or hardship; "in tender consideration whereof, and for that your orator is wholly without remedy at the common law ;" relief is therefore prayed for at the chancellor's hand, and also a process of subpoena against the defendant to compel him to answer upon oath, to all matter charged in the bill, &c. The bill preferred must be signed by counsel as a certificate of decency and propriety. When the bill is filed, process of subpœna is taken out, commanding the defendant to appear and answer to the bill on pain of the forfeiture of £100; and if he do not appear within the time limited by the rules of the court, he is then said to be in contempt: the consequence of which is an attachment. This is a writ in the name of a capias directed to the sheriff, commanding him to attach or take up the defendant, and bring him into court. If the sheriff should return that the defendant non est inventus, that is, was not found, then an attachment with proclamations issues,—which enjoins the sheriff to cause proclamations to be made throughout the county, to summon the defendant upon his allegiance, personally to appear and answer. If this writ should also be returned with a non est inventus, a commission of rebellion is awarded against him for not obeying the king's proclamations, according to his allegiance; and four commissioners, therein named, or any of these, are ordered to attach him wherever they find him, as a rebel to the king's government. If, notwithstanding, a non est inventus be still returned, the court sends a sergeant at arms in quest of him. And if he elude the search of the sergeant also, then a sequestration issues to seize