Page:The New International Encyclopædia 1st ed. v. 16.djvu/492

* PROCEDURE. 424 PROCEDURE. been established during tlie reign of Henry I. (1100-1135). The common-law procedure was early marked by extreme formality, and ultimate- ly it became necessary to simplify the system by means of legislation, which has given to us the various forms of reformed common-law procedure in modern use and in many States of the United States. See CouE; Law; Equity. The first step in an action at common law was the issuing of the original writ on application of the plaintiff, which commanded the sheriff to summon the defendant to give to the plaintiff the relief demanded by him or to appear before the next term of court and show cause why such relief should not be granted. The effect of the original writ was twofold. It gave the court jurisdiction over the subject-matter by authoriz- ing it to proceed with all subsequent steps in the litigation. It also gave the court jurisdiction over the person of the defendant when the sheriff had executed the writ by serving it personally upon him. It could then issue its process or mandate compelling the attendance of the parties and witnesses, direct the filing of pleadings, sum- mon and impanel a jury, and after trial and ver- dict enter judgment for the successfil party and issue its execution or other mandate to the sheriff for the purpose of satisfying the judgment. His- torically the original writ is also important, as from it the action took its form, since the plain- tiff's pleading was required to conform to the allegations and demand for relief contained in the original writ. See Fobm,s of Action. The original writ having been issued and served upon the defendant, it then became liis duty to appear in the proceeding and plead, and if neces- sary the court could compel his appearance by issuance of its process (q.v. ) known as a judicial writ as distinguished from the original writ. The method of pleading and of trying the issues raised by the pleadings is fully considered under such titles as Pleading; Evidence; Trial; Jury; etc., to which reference should be made in connection with this subject. During the course of the proceeding and after verdict, the parties to the action might apply to the court for various forms of relief incidental to the proper conduct of the proceeding. Thus upon application the court might use the sub- poena to command the attendance of witnesses, and punish for contempt; and after verdict the un- successful party might make motions for a di- rection of the court in effect reversing or setting aside the verdict of the jury. Thus the unsuc- cessful party might move: (a) for a new trial on the ground that the judge had not properly instructed the jury or that he had admitted or excluded evidence contrary' to law or because of newly discovered evidence; or (b) he might move in arrest of judgment on the ground that some error on the face of the record vitiated all the proceedings; or (c) if the verdict was for the defendant, the plaintiff might move for judgment non obstante rerdicto — without regard to the verdict — on the ground that he was entitled to judgment on the face of the pleadings ; or ( d ) for a repleader, i.e. allowing the parties to plead anew because they had framed issues upon some immaterial matter; or (e) for a venire facias de novo, that is, a judicial writ summoning a new jury because the jury at the trial in the action was guilty of some misconduct invalidating its verdict. Upon denial of these motions judgment was then entered by the court, usually by signing of the judgment by a proper oIKcer of the court, for the plaintiff (quod recuperet) or for the defendant {nil capiat) in accordance with the verdict. The successful party was then entitled to enforce the judgment by the writ of execution. (See Execution; Judgment; Attachment; Ah- re.st; Debtor; etc.) If, however, the unsuccess- ful party deemed the judgment erroneous in law, he was at liberty to remove the entire record of the case to a higher court for review upon suing out a writ of error, which, like the original writ, was issued out of Chancery. See Error, Writ of. Such in its barest outline was the method of procedure developed by the common-law courts. The material elements of the system, except pos- sibly those of the system of pleading, remain unchanged, although there has been great modi- fication of the minor details, chiefly in the direc- tion of greater simplicity. The first of these changes was in the use of the original writ. By the use of a series of fictions the common-law courts came ultimately to dispense with the original writ as a means of acquiring jurisdic- tion, and the action was regularly begun by the is- suance by the courts of law of their judicial pro- cess, the summons directly, instead of the original writ. In each of the United States there are now courts established by statute having general ju- risdiction over actions and authorized to acquire jurisdiction over the person of litigants upon service of its summons or writ. The summons is still issued in the name of the court, but usual- ly attorneys as officers of the court are author- ized to issue the summons directly without appli- cation to the court. This is true also of many other forms of process, as, for example, subpoenas to appear and testify, and the writ of execution. The various changes in the system of pleading, which are more substantial than any which have taken place in procedure proper, have been noted under that title, but the system of pleading has been indirectly modified by changes in procedure. Thus the remedy for formal defects, which was formerly by demurrer, is now by statute generally a motion to strike out immaterial matter or to make the pleading more definite and certain. A party may be required to define and limit the scope of his pleading by a motion for an order directing him to give a bill of particulars (q.v.) of his claim. There are also various forms of relief incidental to the proceeding which have been created anew or adopted from the equity practice by statute; as, for example, the examination of witnesses before trial or by commission, the practice of referring some part or all of the controversy to a referee having substantially the power of court, and the granting of various provisional remedies, such as attachment and arrest. The extent to which execution against the person re- quiring the arrest of a defendant for non-payment of a judgment may be used has been much limited by modern statute, but in many States the plain- tiff is given a statutory right to examine the judgment debtor as to his resources and give an appropriate remedy by receiver or otherwise by which the application of moneys due to the judg- ment debtors to payment of the judg- ment may be compelled. The practice on appeal has also been simplified, mere notice of the ap- peal served upon the appellant's opponent being