Process in United Kingdom

Concept of Process

The following is an old definition of Process [1], a term which has several meanings:1. Something issuing out of a court or from a judge; a writ of any nature. At common law, the means of compelling the defendant to appear in court. In criminal practice, its office is to bring the defendant into court to answer the charge or information against him; the “information” being the foundation upon which it issues. In a large sense, comprehends the whole proceeding after the original writ and before judgment, but generally refers to the writs which issue out of any court to bring the party to answer, or for execution. It proceeds or goes out upon former matter, either original or judicial. A sunuuons or notice to a defendant, for the commencement of a suit, is a process, as much so as a capias or a subpoena to appear and answer. “Mode of process” means mode of proceeding.0 Compulsory process. For a witness, a process that will compel his attendance – bring him into court if he refuses to come without it.1 Legal process. A process issued by virtue of and pursuant to law. 2 Process issued by a court of justice.3 In a technical sense, usually only a writ, an execution, an attachment, or the like, running in the name of the people, and addressed to the sheriff or like officer. In bankrupt law, the writ, mandate, or order of a court taking hold of property and withdrawing it from the possession and control of the debtor, and from the ordinary reach of creditors for the payment of what is due. Original, mesne, and final process. The means of compelling the defendant to appear is sometimes called “original process,” being founded upon the original writ (see, in this resource, the term), and also to distinguish it from ” mesne (intermediate) process,” which issues, pending the suit, upon some collateral interlocutory matter, as, to summon juries, witnesses, and the like. Mesne process is also some- times put in contradistinction to ” final process” or process of execution; and it then signifies such process as intervenes between the beginning and the end of the suit. ” Mesne process ” ordinarily signifies any writ issued between the original writ and the execution. By ” original process,” the first writ at common law, is not now meant the first process: such original process is not used here. All of our writs preceding the execution are mesne process. ” Mesne process ” describes any except the final process. The equitable powers of coiuis of equity and of law over their own process to prevent abuse, oppression, and injustice, are inherent, and equally extensive and efficient. A “malicious abuse of process” occurs when a, party employs legal process for some unlawful object, not the purpose it is intended by law to effect; that is, when he perverts the process. In an action for such abuse, it is not necessary to prove that the action has been determined, or to aver that it was sued out without probable cause. It is immaterial whether the proceeding was baseless or not. Legal process may be ” maliciously used ” so as to give a cause of action where no object but its proper effect and execution is contemplated. In such case both malice and want of probable cause must be averred and proved, and the proceeding must be determined before an action can be maintained. See Prosecution, Malicious; Onstruct, 3; Issue; Regular, Irregular. Due process of law. A course of legal proceedings according to those rules and principles which have been established by our jurispnidence for the protection and enforcement of private rights. “Nor shall any person . . be deprived of life, liberty, or property, without due process of law.” ” Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The first of the foregoing provisions is found in perhaps identical language in the constitution of each one of the States. An equivalent phrase, according to Lord Coke,3 is “law of the land,” used in the Great Charter in connection with the writ of habeas corpus, the trial by jury, and other guaranties against oppression by the Crown, and meaning the ancient and customary laws of the English people, or the laws enacted by the Parliament of which the barons were a controlling element; not protection against the enactment of laws by Parliament, The meaning of the phrase remains without that satisfactory precision of definition which judicial decisions have given to nearly all the other guaranties of personal rights found in the constitutions. There is wisdom in ascertaining the intent and application of the phrase by the process of judicial inclusion and exclusion, as the cases presented require. Whenever, by the laws of a State, a tax, an assessment, a servitude or other burden is imposed upon property for the public use, and those laws provide for a mode of confirming or contesting the charge, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property, as is appropriate to the nature of the case, the judgment cannot be said to deprive the owner of his property without due process of law. Generally implies an actor, reus, judex, regular allegation, opportunity to answer, and a trial according to some settled course of judicial proceeding. Yet this is not universally true; as, where process, in its nature final, under oath, issues against the body, lands, and goods of public debtors. The necessities of government, the nature of the duties to be performed, and usage, have established a procedure for the levy and collection of taxes which differs from proceedings in courts of justice, but which is still due process of law. The revenue laws of a State need not provide that a person shall have an opportunity to be present when a tax is assessed against him, or that the tax shall be collected by suit. See Summary; Tax. A trial in which the rights of the party shall be decided by a tribunal appointed bylaw and governed by the rules of law previously established, is what is meant. In this there is a strong implication against punishment for contempt by order of a legislative body. Opportimity to be heard is absolutely essential. The expression means due process according to the law of the land. This process in the States is regulated by the law of each State. The power of the Supreme Court over that law is to determine whether it is in conflict with the supreme law of the land. The State courts may decide whether a proceeding is in accordance with the law of the State; the Supreme Court, whether it is in accordance with the Constitution, acts of Congress, and treaties of the United States. That kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts. “Perhaps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College Case: ‘ By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immimities, under the protection of the general rules which govern society.’ ” By “due process” is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. In England, the requirement was originally designed to secure the subject against the arbitrary action of the Crown, and to place him under the protection of the law. The words, as stated, were held to be the equivalent of “law of the land.” A similar purpose must be ascribed to them when applied to a legislative body in this country; that is, that they are intended, in addition to other guaranties ot private rights, to give increased security against the arbitrary deprivation ot life or liberty, and the arbitrary spoliation of property. See Law, Of the land; Notice, Judicial; Res, In rem; Take, 8. 2. In patent law. A ” process,” eo nomine, is not made the subject of a patent. It is included under the general term “useful art.” An art may require one or more processes or machines in order to produce a certain result or manufacture. . . Where the result or effect is produced by chemical action, by the operation or application of some element or power of nature, or of one substance to another, such modes, methods, or operations are called “processes.” It is for the discovery or invention of some practical method or means of producing a, beneficial result or effect, that a patent is granted, and not for the result or effect itself. It is when the “process” represents the means or method of producing a result that it is patentable, and it will include all methods or means which are not effected by mechanism or mechanical combinations. A new ” process ” is usually the result of a discovery; a ” machine,” of an invention. The arts of tanning, dyeing, making water-proof cloth, vulcanizing India rubber, and smelting ores are usually carried on by processes, as distinct from machines. One may discover a new and useful improvement in the process of tanning, dyeing, etc., irrespective o. my particular form of machinery or mechanical device. And another may invent a labor-saving machine by which this operation or process may be performed, and each may be entitled to a patent. The term is often used in a vague sense, in which it cannot be the subject of a patent. Thus, we say that a board is imdergoing the process of being planed, grain of being ground, iron of being hammered or rolled. Here the term is used subjectively or passively as applied to the material operated on, and not to the method or mode of producing that operation, which is by mechanical means, or the use of a machine, as distinguished from a process. In this use of the word it represents the function of a machine, or the effect produced by it on the material subjected to the action of the machine. A man cannot have a patent for the function or abstract effect of a machine; only for the machine which produces it.” A process is a mode of treatment of certain mate- rials to produce a certain result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thins. If new and useful, it is as patentable as a piece of machinery. In the language ot the patent law, it is an ” art. ” The machinery pomted out as suitable to perform the process may or may not be new or patent able; while the process itself may be altogether new, and produce an entirely different result. The process requires that certain things should be done with certain substances, and in a certain order; but the tools to be used in doing this may be of secondary consequence. A “machine ” is a thing. A “process ” is an act, or a mode of acting. The one is visible to the eye. The other is a conception of the mind, seen only by its effects when being executed or performed. Either may be the means of producing a useful result. When a new process produces a new substance, the invention of the process is the same as the invention of the substance, and a patent for the one may be re- issued so as to include both, as in the case of Good- year’s vulcanized-rubber patent. But a process and a machine for applying the process are not necessarily one and the same invention. They are generally distinct and different. A process producing a new product, like that of celluloid, differing from any known before, not merely in degree of usefulness and excellence, but in kind, having new properties and uses, is the proper subject of a patent, although some or all of the parts of the apparatus used are not new. The mixing of certain substances together, or the heating of a substance to a certain temperature, is a process. If the mode of doing it, or the apparatus in or by which it may be done, is sufficiently obvious to suggest itself to a person skilled in the particular art, it is enough, in the patent, to point out the process to be performed, without giving supererogatory directions as to the apparatus or method to be employed. If the mode is not obvious, then a description of a particular mode by which it may be applied is sufficient. There is, then, a description of the process and of one practical mode in which it may be applied. Perhaps the process is susceptible of being applied in many modes, and by the use of many forms of apparatus. The inventor is not bound to describe them all, in order to secure to himself the exclusive right to the process, if ho is really its inventor or discoverer. But he must describe some particular mode, or some apparatus, by which the process can be applied with at least some beneficial result, to show that it is capable of being exhibited and performed in actual experience. See Art; Patent.

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Notes and References

1. Meaning of Process provided by the Anderson Dictionary of Law (1889)

English Law: Process in the Past

In the English law, process in civil causes is called original process, when it is founded upon the original writ; and also to distinguish it from mesne or intermediate process, wliich issues pending the suit, upon some collateral interlocutory matter, as, to summon juries, witnesses, and the like; mesne process is also sometimes put in contradistinction to final process or process of execution; and then it signifies all process which intervenes between the beginning and end of a suit. 3 Bl. Com. 279. [1][rtbs name=”history-of-english-law”]

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Notes and References

1. Partialy, this information about process is based on the Bouvier´s Law Dictionary, 1848 edition. There is a list of terms of the Bouvier´s Law Dictionary, including process.

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