CHAPTER XVIII.

OF THE PURSUIT OF REMEDIES BY ACTION;
AND FIRST, OF THE ORIGINAL WRIT.

HAVING, under the head of redress by suit in courts, pointed out in the preceding pages, in the first place, the nature and several species of courts of justice, wherein remedies are administered for all sorts of private wrongs; and, in the second place, shewn to which of these courts in particular application must be made for redress, according to the distinction of injuries, or, in other words, what wrongs are cognizable by one court, and what by another; I proceeded, under the title of injuries cognizable by the courts of common law, to define and explain the specifical remedies by action, provided for every possible degree of wrong or injury; as well such remedies as are dormant and out of use, as those which are in every day's practice, apprehending that the reason of the one could never be clearly comprehended without some acquaintance with the other: and, I am now, in the last place, to examine the manner in which these several remedies are pursued and applied, by action in the courts of common law; to which I shall afterwards subjoin a brief account of the proceedings in conrts of equity.

*In treating of remedies by action at common law, I shall con- [*271] fine myself to the modern method of practice in our courts of judicature. For, though I thought it necessary to throw out a few observations on the nature of real actions, however at present disused, in order to demonstrate the coherence and uniformity of our legal constitution, and that there was no injury so obstinate and inveterate, but which might in the end be eradicated by some or other of those remedial writs; yet it would be too irksome a task to perplex both my readers and myself with explaining all the rules of proceeding in those obsolete actions, which are frequently mere positive establishments, the forma et figura judici, and conduce very little to illustrate the reason and fundamental grounds of the law. Wherever I apprehend they may at all conduce to this end, I shall endeavour to hint at them incidentally.

What therefore the student may expect in this and the succeeding chapters, is an account of the method of proceeding in and prosecuting a suit upon any of the personal writs we have before spoken of, in the court of common pleas at Westminster, that being the court originally con stituted for the prosecution of all civil actions. It is true that the courts of king's bench and exchequer, in order, without intrenching upon ancient forms, to extend their remedial influence to the necessities of modern times, have now obtained a concurrent jurisdiction and cognizance of very many civil suits: but, as causes are therein conducted by much the same advocates and attorneys, and the several courts and their judges have al. entire communication with each other, the methods and forms of proceeding are in all material respects the same in all of them. So that, m giving an abstract or history (a) of the progress of a suit through

(a) In deducing this history the student must not xpect authorities to be constantly cited; as prac

tical knowledge is not so much to be learned from any books of law, as from experience ard attend

[272] the coin of common pleas, we shall at the same time give a general account of the proceedings of the other two courts; taking notice, however, of any considerable difference in the local practice of each. And the same abstract will moreover afford us some general idea of the conduct of a cause in the inferior courts of common law, those in cities and boroughs, or in the court-baron, or hundred, or county-court all which conform (as near as may be) to the example of the superior tribunals, to which their causes may probably be, in some stage or other, removed.

The most natural and perspicuous way of considering the subject be fore us will be (I apprehend) to pursue it in the order and method wherein the proceedings themselves follow each other; rather than to distract and subdivide it by any more logical analysis. The general therefore and orderly parts of a suit are these; 1. The original writ: 2. The process: 3. The pleadings: 4. The issue or demurrer 5. The trial: 6. The judgment, and its incidents: 7. The proceedings in nature of appeals: 8. The execution.

First, then, of the original, or original writ (2); which is the beginning or foundation of the suit. When a person hath received an injury, and thinks it worth his while to demand a satisfaction for it, he is to consider with him. self, or take advice, what redress the law has given for that in[*273] jury; *and thereupon is to make application or suit to the crown, the fountain of all justice, for that particular specific remedy which he is determined or advised to pursue. As, for money due on bond, an action of debt; for goods detained without force, an action of detinue or trover; or, if taken with force, an action of trespass vi et armis; or to try the title of lands, a writ of entry or action of trespass in ejectment; or for any consequential injury received, a special action on the case. To this end he is to sue out or purchase by paying the stated fees, an original, or original writ, from the court of chancery, which is the officina justitiae, the shop or mint of justice, wherein all the king's writs are framed (3). It is a mandatory letter from the king in parchment, sealed with his great seal (b),

ince on the courts. The compiler must therefore De frequently obliged to rely upon his own observations; which in general he hath been studious to avoid where those of any other might be had. To accompany and illustrate these remarks, such gentlemen as are designed for the profession will find it necessary to peruse the books of entries, ancient and modern; which are transcripts of proceedings that have been had in some particular actions. A book or two of technical learning will also be found very convenient; from which a man of liberal education and tolerable understanding may glean pro e nata as much as is sufficient for his purpose.

(1) The more recent publications of Mr. Serj. Sellon and Mr. Tidd, and those of Mr. Impey and Mr. Lee, now afford still more explicit information on the subject of Practice.

(2) Before the passing the 6 Geo. IV. c. 96. one great object of proceeding by special original was to compel the defendant to bring a writ of error in parliament, if he intended to delay; but that act having restrained writs of error upon judgments, even before verdict, unless the defendant finds bail in error, proceedings are now more frequently by capias in the court of common pleas, and by latitat in the king's bench.

These books of practice, as they are called, are al pretty much on a level, in point of composition and solid instruction; so that that which bears the latest edition is usually the best. But Gilbert's history and practice of the court of common pleas is a book of a very different stamp: and though (like the rest of his posthumous works) it has suffered most grossly by ignorant or careless transcribers, yet it has traced out the reason of many parts of our modern practice, from the feodal institutions and the primitive construction of our courts, in a most clear and ingenious manner. (1)

and directed to the sheriff of the county wherein the injury is committed or supposed so to be, requiring him to command the wrongdoer or party accused, either to do justice to the complainant, or else to appear in court and answer the accusation against him. Whatever the sheriff does in pursuar.ce of this writ, he must return or certify to the court of common pleas, together with the writ itself: which is the foundation of the jurisdiction of that court, being the king's warrant for the judges to proceed to the determination of the cause. For it was a maxim introduced by the Normans, that there should be no proceedings in common pleas before the King's justices without his origina' writ; because they held it unfit that hose justices, being only the substitutes of the crown, should take cognizance of any thing but what was thus expressly referred to their judgment (c). However, in small actions below the value of forty shillings, which are brought in the court-baron or county-court, no royal writ is necessary; but the foundation of such suits continues to be (as in the times of the Saxons) not by original writ, but by plaint (d); that is, by a private memorial tendered in open court to the judge, wherein the party injured sets forth his cause of action; and the judge is bound of common right to administer justice therein, without any special *mandate [*274] from the king. Now indeed even the royal writs are held to be demandable of common right, on paying the usual fees for any delay in the granting them, or setting an unusual or exorbitant price upon them, would be a breach of magna carta, c. 29, “nulli vendemus nulli negabimus, aut differemus, justitiam vel rectum (4)."

Original writs are either optional or peremptory; or, in the language of our lawyers, they are either a praecipe, or a si te fecerit securum (e). The praecipe is in the alternative, commanding the defendant to do the thing required, or shew the reason wherefore he hath not done it (ƒ). The use

of this writ is where something certain is demanded by the plaintiff, which it is incumbent on the defendant himself to perform; as, to restore the possession of land, to pay a certain liquidated debt, to perform a specific covenant, to render an account, and the like in all which cases the writ is drawn up in the form of a praecipe or command, to do thus or shew cause to the contrary; giving the defendant his choice, to redress the injury, or The other species of original writs is called a si fecerit te securum, from the words of the writ; which directs the sheriff to cause (e) Finch, L. 257.

stand the suit.

(c) Flet. 1. 2, c. 34. (d) Miri. c. 2. § 3.

(4) But to entitle a party to proceed by original, the debt must amount to 101. 5 Geo. II. c. 27. s. 5, since extended to 151. by 51 Geo. III. c. 124. s. 1. 57 Geo. III. c. 101. These latter acts have indeed both expired; but it is presumed, they will be revived in the present year. It is also a rule in the king's bench, if the plaintiff, proceeding by original, recover less than 501. he will be entitled to no inore costs than if he had proceeded by bill, except in cases where he could not proceed by bill, as for outlawry, &c. R. M. 23 Geo. III. But though in an action on a bond, with a penalty above 501. the plaintiff recover 20., yet he will be entitled to costs of suit by original 2 Chit. R. 148.

This writ does not lie against an attorney or officer of the court, unless sued with an unprivileged person: teither does it lie against

(f) Appendix, No. III. 1.

a prisoner in the actual custody of the marshal. It is the only mode of proceeding against peers. 3 M. & S. 88; corporations or hundredors on the statutes of hue and cry, &c. Tyre, 11. Barnes, 415; or for the purpose of outlawing the defendant.

One advantage of proceeding by this writ is, that if a writ of error be brought for delay, it must be brought direct into parliament, instead of first into the exchequer chamber, and from thence into parliament. I Sid. 424.

Where the demand exceeds 401. a fine is payable to the king on these writs, by way o composition for the liberty of suing in his court: which fine is estimated according to the amount of the demand, paying 6s. 8d. for every hundred marks, or 10s. for every 100 Trye, 58. G. R. H. 6 W. & M. R. B. Tidd 8 ed. 101.

he de enda to appear in court, without any option given him, provided the plaintiff gives the sheriff security effectually to prosecute his claim (g). This writ is in use, where nothing is specifically demanded, but only a satisfaction in general: to obtain which, and minister complete redress, the intervention of some judicature is necessary. Such are writs of trespass, or on the case, wherein no debt or other specific thing is sued for in certain, but only damages to be assessed by a jury. For this end the defendant is immediately called upon to appear in court, provided the plaintiff gives good security of prosecuting his claim. Both species of writs are test'd, or witnessed in the king's own name; "witness ourselves at Westminster," or wherever the chancery may be held.

[*275]

*The security here spoken of, to be given by the plaintiff for prosecuting his claim, is common to both writs, though it gives denomination only to the latter. The whole of it is at present become a mere matter of form and John Doe and Richard Roe are always returned as the standing pledges for this purpose. The ancient use of them was to answer for the plaintiff, who in case he brought an action without cause, or failed in the prosecution of it when brought, was liable to an amercement from the crown for raising a false accusation; and so the form of judgment still is (h). In like manner, as by the Gothic constitutions no person was permitted to lay a complaint against another, sub scriptura aut specificatione trium testium, quod actionem vellet persequi (i);" and, as by the laws of Sancho I. king of Portugal, damages were given against a plaintiff who prosecuted a groundless action (k).

The day, on which the defendant is ordered to appear in court, and on which the sheriff is to bring in the writ and report how far he has obeyed it, is called the return58 of the writ: it being then returned by him to the king's justices at Westminster. And it is always made returnable at the distance of at least fifteen days from the date or teste (5), that the defendant may have time to come up to Westminster, even from the most remote parts of the kingdom; and upon some day in one of the four terms, in which the court sits for the dispatch of business.

These terms are supposed by Mr. Selden (7) to have been instituted by William the Conqueror but sir Henry Spelman hath clearly and learnedly shewn, that they were gradually formed from the canonical constitutions of the church; being indeed no other than those leisure seasons of the year, which were not occupied by the great festivals or fasts, or

which were not liable to the general avocations of rural business. [*276] *Throughout all christendom, in very early times, the whole year

was one continual term for hearing and deciding causes. For the christian magistrates, to distinguish themselves from the heathens, who were extremely superstitious in the observation of their dies fasti et nefasti, went into a contrary extreme, and administered justice upon all days alike Till at length the church interposed and exempted certain holy seasons from being profaned by the tumult of forensic litigations. As, particularly, the time of Advent and Christmas, which gave raise to the winter vacation the time of Lent and Easter, which created that in the spring; the time of Pentecost, which produced the third; and the long vacation, be

(g) Appendix, No. II. § 1

h) Finch, L. 189. 252.

(i) Stiern. de jure Gothor. l. 3, c. 7.

(k) Mod. Un. Hist. xxii. 45.

(1) Jan. Angl. l. 2, ◊ 9

5) No certain number of days now necessary in New-York. (2 R. S. 555, § 31.)

58) See Hov. n. (58) at the end of the Vol. B. III.

tween Midsummer and Michaelmas, which was allowed or the hay-time and harvest. All Sundays also, and some particular festivals, as the days of the purification, ascension, and some others, were included in the same prohibition which was established by a canon of the church, A. D. 517 and was fortified by an imperial constitution of the younger Theodosius, comprised in the Theodosian code (m) (6).

Afterwards, when our own legal constitution came to be settled, the commencement and duration of our law terms were appointed with an eye to those canonical prohibitions; and it was ordered by the laws of king Edward the Confessor (n), that from advent to the octave of the epiphany. from septuagesima to the octave of Easter, from the ascension to the octave of pentecost, and from three in the afternoon of all Saturdays till Monday morning, the peace of God and of holy church shall be kept throughout all the kingdom. And so extravagant was afterwards the regard that was paid to these holy times, that though the author of the mirror (0) mentions only one vacation of any considerable length, containing the months of August and September, yet Britton is express (p), that in the reign of king Edward the First no secular plea could be held, nor any man sworn on the *evangelists (q), in the times of advent, [*277] lent, pentecost, harvest, and vintage, the days of the great litanies, and all solemn festivals. But he adds, that the bishops did nevertheless grant dispensations (of which many are preserved in Rymer's foedera) (r), that assises and juries might be taken in some of these holy seasons. soon afterwards a general dispensation was established by statute Westm 1.3 Edw. I. c. 51. which declares, that "by the assent of all the prelates, assises of novel disseisin,mort d'ancestor, and darrein presentment, shal' be taken in advent, septuagesima, and lent; and that at the special request of the king to the bishops." The portions of time, that were not in. cluded within these prohibited seasons, fell naturally into a fourfold division, and, from some festival day that immediately preceded their com mencement, were denominated the terms of St. Hilary, of Easter, of the holy Trinity, and of St. Michael: which terms have been since regulated and abbreviated by several acts of parliament; particularly Trinity term by statute 32 Hen. VIII. c. 21, and Michaelmas term by statute 16 Car. I. c. 6, and again by statute 24 Geo. II. c. 48 (7).

And

There are in each of these terms stated days called days in bank, dies in banco: that is, days of appearance in the court of common bench. They are generally at the distance of about a week from each other, and have reference to some festival of the church (8). On some one of these days in bank all original writ must be made returnable; and therefore the are generally called the returns of that term whereof every term has mo.2 or

(m) Spelman of the terms.

(n) c. 3. de temporibus et diebus pacis (0) c. 3, ◊ 8.

(6) In New-York the terms of the Supreme Court are, the first Mondays of January, May, and July, and the third Monday of October: the first and last are held at Albany; the second in the city of New-York; and the third in Utica. (2 R. S. 196, § 2, &c.)

(7) Michaelmas and Hilary are fixed terms, and invariably begin on the same day every year; ut Easter and Trinity are moveable, teur commenccured being regulated by the

(p) c. 53.

(g) See page 59.

(r) temp. Hen. III. passim.

east of Easter. See post, 278. note (11, Hilary and Trinity are called issuable terms, being the terms after which the judges go thei circuits, for the trial of causes wherein issues have been previously joined.

(8) Easter term has five return days, the rest four. These are called general or common return days, all the others are particular os special return days.