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DEALE v. ESTEP 435
summon, or to have the defendant before the court to answer the
complaint of the plaintiff; but it is always addressed, personally,
to the defendant himself, commanding him to appear
It does not appear, that this first process in equity was ever re-
quired in England to be executed by a sheriff, who is the officer
of the court, or by the messenger, as its immediate officer; (b) but
it might be executed by any one, so that the court was satisfied
by proof of its having been duly served, (e] If, after a subpaena
has been served the defendant fails to appear, then the next pro-
cess is an attachment; which is a writ directed to the sheriff,
commanding him to attach the defendant so as to hare him before
the court. And if the defendant still persists in his contumacy,
the several subsequent writs, which may be issued to compel an
appearance, are all, in like manner, directed to the sheriff. (d)
But as a sheriff is a mere local officer, having no authority beyond
the bounds of his county, he cannot bring a defendant, who he has
so taken into his custody, into the court while it is sitting in a re-
mote or different county. And therefore upon his return of the feet
of the defendant having been attached, the court, on application,
will order him to be brought before it by a special messenger. (c)
In England when a commission issued to take testimony, as
the commissioners were specially directed to call the witnesses
before them, they might and most usually did so, by a process
signed by two or more of them. But it was thought to be more
regular and effectual to issue a subpaena ad testificandum, from the
court itself, commanding the witnesses to attend upon the com-
missioners. This subpaena, as well as the subpaena duces tecum,
which seems to be now little used in England, (f) like the lead-
ing process of the court, was not addressed to the sheriff, but to
the witness himself, and might be served by any one. But if a
witness failed or refused to attend, or to testify; and the court was
satisfied by a certificate of the commissioners, and an affidavit of
the fact, that the writ had been served, an attachment might be
issued, directed to the sheriff, commanding him to attach the wit-
ness, who, on being taken by the sheriff, might, as on an attach-
ment consequent upon a subpaena ad respondendum, be brought
before the court by a special messenger, (g)
(b) Forum Rom. 35 - (c) Forum Rom. 37, 41.—(d) 1 Harr. Pra., Chan 229.-
(e) Forum Rom. 79. 1 Harr, Pra, Chan. 234(f) Prac. Reg. 346.—(g) Forum
Rom. 118; 1 Harr. Pra. Chan. 445; 2 Fowl. Exch. Pra. 89; Wardel v. Dent, 1
Dick. 334; Hennegal v. Evance, 12 Ves, 101,
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