1911 Encyclopædia Britannica/Summons

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4098071911 Encyclopædia Britannica, Volume 26 — SummonsWilliam Feilden Craies

SUMMONS (Fr. semonce, from semonner or semondre, Lat. summonere, summonitio), in English law (1) a command by a superior authority to attend at a given time or place or to do some public duty; (2) a document containing such command, and not infrequently also expressing the consequences entailed by neglect to obey. The oral summons or citation seems to have preceded the written summons in England, just as in Roman law in jus vocatio existed for centuries before the libellus conventionis. The antiquity and importance of the summons as a legal form in England is shown by the presence of the “sompnour,” or summoner of the ecclesiastical court, as one of the characters in the Canterbury Tales, and in The History of Sir John Oldcastle, where the sumner is made to eat a citation issued from the bishop of Rochester’s court. The term is used with reference to a demand for the attendance of a person in the high court of parliament. As regards English courts of justice it is equivalent to what in the civil and canon law and in Scots law, and in English courts deriving their procedure from those sources, is known as “citation.” That term is still preserved in English ecclesiastical courts and in matrimonial causes.

It is an essential principle of justice that a court should not adjudicate upon any question without giving the parties to be affected or bound by the adjudication the opportunity of being heard and of bringing their witnesses before the court. The most usual term in English law for the process by which attendance is commanded or required is the “summons.”

Civil Proceedings. — In the High Court of Justice, civil actions are begun by obtaining from the officers of the court a document known as a “writ of summons.” In this document are stated the names of the parties and the nature of the claim made (which in the case of liquidated sums of money must be precise and particular). It is sealed and issued to the party suing it out, and served on the opposing party, not by an officer of the court but by an agent of the plaintiff. The tenor of the writ is to require the defendant to appear and answer the claim, and to indicate the consequences of non-appearance, viz. adjudication in default.

Many proceedings in the High Court and some in the county court are initiated by forms of summons different from the writ of summons. Of those issued in the High Court three classes merit mention: —

1. For determining interlocutory matters of practice and procedure arising in “a pending cause or matter.” These are now limited as far as possible to a general summons for directions, introduced in 1883 so as to discourage frequent and expensive applications to the masters or judges of the High Court on questions of detail. These summonses are sealed and issued on application at the offices of the High Court. The matters raised are dealt with by a master or judge in chambers summarily. In matters of practice and procedure there is no appeal from a judge at chambers without leave from him or from the court of appeal.

2. For determining certain classes of questions with more despatch and less cost than is entailed by action or petition. This kind of summons is known as an “originating summons,” because under it proceedings may be originated without writ for certain kinds of relief specified in the rules (R. S. C., O. 55, r. 3). The originating summons may be used in all divisions of the High Court, but is chiefly employed in the chancery division, where it to a great extent supersedes actions for the administration of trusts or of the estates of deceased persons;[1] and for the foreclosure of mortgages a similar but not identical procedure was created by the Vendor and Purchaser Act 1874, and the Conveyancing Act 1881, with reference to questions of title, &c., to real property. In the king’s bench and probate divisions the originating summons is used for determining summarily questions as to property between husband and wife, or the right to custody of children, and many other matters (O. 54, rr. 4 B–4 F). The proceedings on an originating summons are conducted summarily at chambers without pleadings, and the evidence is usually written. In the chancery division where the questions raised are important the summons is adjourned into court. An appeal lies to the court of appeal from decisions on originating summonses.

The forms of summonses and the procedure thereon in civil cases in the High Court are regulated by the Rules of the Supreme Court 1883 to 1907.

3. Certain proceedings on the crown side of the king's bench division are begun by summons, e.g. applications for bail; and in vacation writs of habeas corpus, mandamus, prohibition and certiorari are asked for by summons as the full court is not in session. (See Crown Office Rules, 1906).

In the county courts an action is begun by plaint and summons. Two kinds of summons are in use — the ordinary summons used for very form of county court action, and the default summons, which is an optional remedy of the plaintiff in actions for debts or liquidated demands exceeding £5, and in all actions for the price or hire of goods sold or let to the defendant to be used in the way of his calling. It may also issue by leave of the judge or registrar in other cases, with the single exception that no leave can be given in claims under £5 where the claim is not for the price or hire of goods sold or let as above, if the affidavit of debt discloses that the defendant is a servant or person engaged in manual labour. The advantage of a default summons is that judgment is entered for the plaintiff without hearing unless the defendant gives notice of defence within a limited time. A default summons must as a rule be served personally on the defendant; an ordinary summons need nor be served personally, but may in most cases be delivered to a person at the defendant’s house or place of business. A summons is also issued to a witness in the county court. Forms of summons are given in the County Court Rules 1903. These include certain special forms used in admiralty and interpleader actions and in proceedings under the Friendly Societies Acts and the Married Women’s Property Acts. Summonses issued from county courts are usually served by a bailiff of the court and not by the party suing them out.

Justices of the peace have power to issue summonses to persons accused of indictable offences, or of offences summarily punishable, for their attendance, for preliminary inquiry or summary trial according to the nature of the charge, and also to persons against whom a complaint of a civil nature within the justices' jurisdiction is made. On failure to attend on summons, attendance may be enforced by warrant; and in the case of indictable offences this is the course always adopted. The forms in use for indictable offences are scheduled to the Indictable Offences Act 1848, and those for other purposes to the Summary Jurisdiction Rules 1886 (see Summary Jurisdiction). The attendance of witnesses before justices of the peace may be required by witness summons, enforced in the event of disobedience by arrest under warrant (see Witness).

The attendance of jurors in civil or criminal trials is required by jury summons sent by registered post.

In courts for the trial of indictable offences the attendance of the accused and of the witnesses is not secured by summons. Both ordinarily attend in obedience to recognizances entered into before justices for their attendance. In the absence of recognizances the attendance of the accused is enforced by bench warrant of the court of trial, or by justices’ warrant, and that of the witnesses by writ of subpoend issued from the crown office of the High Court. Disobedience to the writ is punished as contempt of court.

Scotland.—Summons is a term confined in strictness to the beginning of an action in the Court of Session. The summons is a writ in the sovereign’s name, signed by a writer to the signet, citing the defender to appear and answer the claim. The “will of the summons” is the conclusion of a writ containing the will of the sovereign or judge, charging the executive officer to cite the party whose attendance is required. It is regulated by several acts, e.g. The Debtors (Scotland) Act 1838 (1 & 2 Vict. c. 114) and the Court of Session (Scotland) Act 1868 (31 & 32 Vict. c. 100). A privileged summoiis is one where the induciae are shortened to six days against defenders within Scotland (Court of Session [Scotland] Act 1825, s. 53). Defects in the summons are cured by amendment or by a supplementary summons. The summons goes more into detail than the English writ of summons, though it no longer states, as it once did, the grounds of action, now stated in the condescendence and pursuer’s pleas in law annexed to the summons. The form of the summons is regulated by the Court of Session (Scotland) Act 1850, s. 1 and schedule A. After the action has been set on foot by summons, the attendance of the parties and witnesses is obtained by citation. The Citation Amendment Acts 1871 and 1882 give additional facilities for the execution of citations in civil cases by means of registered letters, instead of by the old process known as “lock hole citation.” In the act of 1871 the term “summons” is used to denote part of the process of inferior civil courts.

In the sheriff court an action is now begun by writ (Sheriff Courts [Scotland] Act 1907), and not as formerly by petition or summons.

In criminal cases the summons of the accused, or of witnesses, is by warrant of citation, and of jurors by citation sent by registered post (1868, c. 95, s. 10).

Ireland.—In Ireland summonses are used substantially for the same purposes and in the same manner as in England, but generally speaking under statutes and rules applying only to the Irish courts.  (W. F. C.) 

  1. A similar practice existed before 1883 under the powers given by 15 & 16 Vict. c. 86, but was very limited in its operation, as it applied simply to the personal estate of a deceased person.