INTRODUCTION lxxxiii
XL CIVIL PROCEDURE

In Maryland during the 1696-99 period there was no comprehensive regulation
by statute of procedure in civil actions. However, as will appear, there were a
number of acts of Assembly covering various phases of civil procedure. In the main
the procedure found in the Liber followed the outlines of English practice. The
absence of file papers for Prince Georges County for the period makes difficult any
definitive judgment as to how closely procedure in civil actions adhered to the
standards of English practice and procedure in areas not specifically regulated
by the laws of the province.

The commissioners were authorized by statute to make and ordain such rules
and orders for the well governing and better regulating of county courts, the officers
thereof and the suitors therein as in their discretion seemed requisite. To enforce
such rules and orders the justices were authorized to inflict fines, not exceeding 100
pounds of tobacco for each offense, for the use of the poor of the respective county.
These rules and orders were to be fairly transcribed by the several county clerks
and at every county court set up at the court house door that persons might view
them and regulate themselves accordingly.1 In some counties, such as Charles and
Baltimore, the county courts, pursuant to the statutory authorization, promulgated
comprehensive rules and orders for the civil side. 2 However, no such compilation
has been found in Prince Georges.

Process

The original writs of English practice issuing out of Chancery were not used in
Maryland at this time—except perhaps to a limited extent in the Provincial Court.
The first step in the commencement of a civil action in the county court was to
obtain the issuance by the clerk of the court of a writ referred to in the Liber
merely as a "capias"—the writ known in English practice as a capias ad responden-
dum. It is at times referred to as the "original writ" in an action. Although the
form was not prescribed by the laws of the province and none of such writs issued
by the court during the period has been found, it is believed they adhered in sub-
stance to the form of the English prototype. In effect the sheriff was commanded
to take the defendant, if found in his bailiwick, and have his body before the county
court at a specified date to answer plaintiff in a specified plea. 3 Whether in prac-
tice the plaintiff or his attorney, under his or their hands, was required to give the
clerk of the court a "titling" setting forth the nature and form of the writ is not
apparent from the Liber. 4 No rule has been found, comparable to that in Charles

1. 13 MA 521; 22 id. 463.

2. CCCR, Liber S, No. 1, 61-64; BCCP, Liber G, No. 1, 287, 417, 551-59. See also the less de-
tailed rules adopted by Kent County Court on March 23, 1695/6. KCP, Liber I, 580-82.

3. For the form of capias in use in St. Marys County Court in 1694 see PMCA 46. See the comment
of Kilty that 25 Ed. III, St. 5, c. 17 "is considered to have been in force as far as it gave the writ
of capias in debt and detinue..." Op. cit. supra 220. Presumably capias in actions of trespass on
the case was allowed by virtue of the extension of 19 Hen. VII, c. 9 to the province. Kilty, op. cit.
supra 229.

4. The Baltimore County Court rules and orders contained the following: "Ordered that the
Clerk of this Court doe not at any time Issue forth any Writt or Summons at request of any person
or persons before such person or persons shall by themselves or Attorney give from under his or
their hands a Titling for such Writt or Summons as aforesaid Therein Setting forth the Nature
and forme of such writt which Titling the said Clerk Shall precisely follow on penalty and for-
feiture of Answering to the Party greived all Cost and Damage he or they shall Sustain by meanes
of any Error or Mistake in the forme of such Processe as aforesaid." BCCP, Liber G, No. 1, 552. In