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Process (Law)

1911 Encyclopedia Britannica

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In law, in the widest sense of the word, any means by which a court of justice gives effect to its authority. In the old practice of the English common law courts process was either original or judicial. Original process was a means of compelling a defendant to compliance with an original writ (see Writ). Judicial process was any compulsory proceeding rendered necessary after the appearance of the defendant. Process was also divided in civil matters into original, mesne and final. Original process in this sense was any means taken to compel the appearance of the defendant. A writ of summons is now the universal means in the High Court of Justice. Mesne process was either any proceeding against the defendant taken between the beginning and the end of the action, such as to compel him to give bail, or was directed to persons not parties to the action, such as jurors or witnesses. Arrest on mesne process was abolished in England by the Debtors Act 1869. Final process is practically coexistent with execution. In criminal matters process only applies where the defendant does not appear upon summons or otherwise. A warrant is now the usual form of such process.

Stet processus - was a technical term used in old common law practice. It consisted of an entry on the record by consent of the parties for a stay of proceedings. Since the Judicature Acts there has been no record, and the stet processus has disappeared with it.

In Scots law process is used in a much wider sense, almost equivalent to practice or procedure in English law. Where papers forming steps of a process are borrowed and not returned, the return of the borrowed process may be enforced by caption (attachment). The Scottish process is very much akin to the French dossier. In the United States process is governed by numerous statutes, both of Congress and of the state legislatures. The law is founded upon the English common law.