1902 Encyclopedia > Summons


SUMMONS (summonitio) is a legal form demanding the attendance of a person in parliament (see PEERAGE, vol. xviii. p. 462) or before a court of justice. The term as it applies to courts of justice is used both in civil and in criminal procedure, but is not applied universally to all cases of demanding attendance. Thus in the Probate, Divorce, and Admiralty Division the summons is usually, following the civil law, called a "citation," while a summons to a witness (at least in the superior courts) bears the name of "subpoena," taken from the initial words of the penal clause in its Latin form. Whatever be the name, the principle of law is invariable, that a court before proceeding to adjudicate should bring before itself by some formal legal process all persons interested in the decision or able to influence the decision by giving evidence as material witnesses. The oral summons, like the oral pleading, seems to have been earlier in time than the written form. In Roman law the oral in jus vocatio existed centuries before the written 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 by the comparative frequency of "Sumner" as a surname. In civil procedure a summons may be issued either in the High Court or in an inferior court, such as a county court. In the High Court all actions are commenced by writ of summons. In the High Court the summons (in this case not in the form of a writ) is also a convenient mode of determining interlocutory matters by a judge or some other officer of the court—o such as a master in the Queen's Bench Division or a chief clerk in the Chancery Division—without the necessity of bringing the case into court.

The tendency of recent legislation is towards the increased use of the summons as a mode of presenting a case for decision. For instance, under the Vendor and Purchaser Act, 1874, and the Conveyancing Act, 1881, many important questions, even of title to real property, may be raised on summons. It thus approaches very nearly to PLEADING (q.v.); in fact, the definition of pleading in the Judicature Act, 1873, s. 100, includes summons. The Rules of the Supreme Court, 1883, introduced two new forms of summons,— (1) the general summons for directions, by which several matters may be included in a single summons which before the rules must have been the subject of separate applications ; (2) the originating summons in the Chancery Division, by which proceedings may be commenced without writ for certain kinds of relief specified in the rules (see Ord. lv. r. 3). The originating summons to a great extent supersedes the action for administration of a trust or of the estate of a deceased person. An ordinary summons must be served two, an originating summons seven, clear days before its return. A decision on a summons is generally subject to appeal. In the Chancery Division it is customary to adjourn into court the con-sideration of a summons of more than ordinary importance. The appendix to the Rules of 1883 contains forms of every kind of summons in the High Court. In the county courts an action is commenced by plaint and summons. Two kinds of summons are in use,—the ordinary and the default summons. The latter is an optional remedy of the plaintiff in actions for debts or liqui-dated 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 not 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, 1886. These include certain special forms used in Admiralty and interpleader actions and in proceedings under the Charitable Trusts Acts, the Friendly Societies Act, 1875, and the Married Women's Property Act, 1882. In criminal law a summons is the mode of securing the attendance of the defendant before a court of summary jurisdiction, whether it be sought to obtain a conviction or an order against him. Forms of summons to a defendant, a witness, or a surety will be found in the schedule to the Summary Jurisdiction Act, 1848, and in the rules issued in accordance with the Summary Jurisdiction Act, 1879 (see the article SUMMARY JURISDICTION, supra). Forgery of a summons or use of any document falsely purporting to be a summons or professing to act under such a document is punishable as felony under the County Courts Act, 1846, and the Forgery Act of 1861.

Scotland.—Summons is a term confined in strictness to the commencement of an action in the Court of Session. Formerly it was the mode of commencing an action in the sheriff court, but such an action is now commenced by PETITION (q. v.). In some Acts of Parliament, however—e.g., the Citation Amendment Acts—the term '' summons " is certainly used to denote part of the process of an in-ferior court. 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 calls upon the defender to appear on the proper inducise. A privileged summons is one where the inducts} are shortened to six days against defenders within Scot-land (6 Geo. IV. c. 120, 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 13 and 14 Vict. c. 36, 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. In cases in a court of summary jurisdiction the English summons is represented by the warrant of citation.

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