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unavoidably be in all sciences; the easy conception and thorough comprehension of which must depend upon frequent and familiar use ; and the more subdivided any branch of science is, the more terms must be used to express the nature of these several subdivisions, and mark out with sufficient precision the ideas they are meant to convey. But I trust that this difficulty, however great it may appear at first view, will shrink to nothing upon a nearer and more frequent approach ; and indeed be rather advantageous than of any disservice, by imprinting on the student's mind a clear and distinct notion of the nature of these several remedies. And, such as it is, it arises principally from the excellence of our English laws; which adapt their redress exactly to the circumstances of the injury, and do not furnish one and the same action for different wrongs, which are impossible to be brought within one and the same description : whereby every man knows what satisfaction he is entitled to expect from the courts of justice, and as little as possible is left in the breast of the judges, whom the law appoints to administer, and not to prescribe the remedy. And I may venture to affirm that there is hardly a possible injury, that can be offered either to the person or property of another, for which the party injured may not find a remedial writ
, conceived in such terms as are properly and singularly adapted to his own particular grievance.
In the several personal actions which we have cursorily explained, as debt, trespass, detinue, action on the case, and the like, it is easy to observe how plain, perspicuous, and simple the remedy is, as chalked out by the ancient common law. In the methods prescribed for the recovery of landed and other permanent property, as the right is more intricate, the feodal or rather Norman remedy by real actions is somewhat more complex and difficult, and attended with some delays.57 And since, in order to obviate those difficulties, and retrench those *delays, we [*267) have permitted the rights of real property to be drawn into ques. tion in mixed or personal suits, we are (it must be owned) obliged to have recourse to such arbitrary fictions and expedients, that unless we had developed their principles, and traced out their progress and history, our present system of remedial jurisprudence (in respect of landed property) would appear the most intricate and unnatural that ever was adopted by a free and enlightened people.
But this intricacy of our legal process will be found, when attentively considered, to be one of those troublesome, but not dangerous, evils, which have their root in the frame of our constitution, and which therefore can never be cured, without hazarding every thing that is dear to us. In absolute governments, when new arrangements of property and a gradual change of manners have destroyed the original ideas, on which the laws were devised and established, the prince by his edict may promulge a new code, more suited to the present emergencies. But when laws are to be framed by popular assemblies, even of the representative kind, it is too Herculean a task to begin the work of legislation afresh, and extract a new system from the discordant opinions of more than five hundred counsellors. A single legislator or an enterprizing sovereign, a Solon or Lycurgus, a Justinian or a Frederick, may at any time form a concise, and perhaps an uniform, plan of justice: and evil betide that presumptuous subject who questions its wisdom or utility. But who, that is acquainted with the difficulty of new-modelling any branch of our statute laws
Vol. II. (57) See Hov. D. (57) at the end of the Vol. B. III.
(though relating but to roads or to parish settlements), will conceive it ever feasible to alter any fundamental point of the common law, with all its appendages and consequents, and set up another rule in its stead? When therefore, by the gradual influence of foreign trade and domestic tranquillity, the spirit of our military tenures began to decay, and at length the whole structure was removed, the judges quickly perceived that the forms and delays of the old feodal actions (guarded with their several outworks
of essoins, vouchers, aid-prayers, and a hundred other formidable [*268] intrenchments) were ill-suited to that *more simple and commer
cial mode of property which succeeded the former, and required a more speedy decision of right, to facilitate exchange and alienation. Yet they wisely avoided soliciting any great legislative revolution in the old established forms, which might have been productive of consequences more numerous and extensive than the most penetrating genius could foresee ; but left them as they were, to languish in obscurity and oblivion, and endeavoured by a series of minute contrivances to accommodate such personal actions, as were then in use, to all the most useful purposes of remedial justice: and where, through the dread of innovation, they hesitated at going so far as perhaps their good sense would have prompted them, they left an opening for the more liberal and enterprizing judges, who have sat in our courts of equity, to shew them their error by supplying the omissions of the courts of law. And, since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood, they in general answer the purpose of doing speedy and substantial justice, much better than could now be effected by any great fundamental alterations. The only difficulty that attends them arises from their fictions and circuities : but, when once we have discovered the proper clew, that labyrinth is easily pervaded. Our system of remedial law resembles an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embatiled towers, and the trophied halls, are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their approaches may be winding and difficult.
In this part of our disquisitions I however thought it my duty to unfold, as far as intelligibly I could, the nature of these real actions, as well as of personal remedies. And this not only because they are still in force, still the law of the land, though obsolete and disused ; and may perhaps,
in their turn, be hereafter with some necessary corrections called [*269) out again into common use ; but also because, as a sensible *wri
ter has well observed (2), “ whoever considers how great a coherence there is between the several parts of the law, and how much the reason of one case opens and depends upon that of another, will I presume be far from thinking any of the old learning useless, which will so much conduce to the perfect understanding of the modern." And besides I should have done great injustice to the founders of our legal constitution, had I led, the student to imagine, that the remedial instruments of our law were originally contrived in so complicated a form, as we now present them to his view : had I, for instance, entirely passed over the direct and obvious remedies by assises and writs of entry, and only laid before him the modern method of prosecuting a writ of ejectment.
(3) Hawk. Abr. Co. Litt. pref.
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 conrls 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 judicii, 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 constituted 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 ses are therein conducted by much the same advocates and attorneys, and the several courts and their judges have an entire communication with each other, the methods and forms of proceeding are in all material respects the same in all of them. So that, in giving an abstract or history (e) of the progress of a suit through
(a) In deduring this history the student must not tical knowledge is not so much to be learned from expect authorities to be constantly ciied; as prac. any books of law, as irom experience and attend.
[*272] the court 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 before 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 wbich 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 ejectinent; 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 (8), ance on the courts. The compiler must therefore These books of practice, as they are called, are all be frequently obliged to rely upon his own obser- pretty much on a level, in point of composition and vations; which in general he hath been studious to solid instruction; so that that which bears the latest avoid where those of any other might be had. To edition is usually the best. But Gilbert's history accompany and illustrate these remarks, such gen- and practice of the court of common pleas is a book tlemen as are designed for the profession will find of a very different stamp: and though (like the rest it necessary to peruse the books of entries, ancient of his posthumous works) it has suffered most grossand modern; which are transcripts of proceedings ly by ignorant or careless transcribers, yet it has that have been had in some particular actions. A traced out the reason of many parts of our modern book or two of technical learning will also be found practice, from the feodal institutions and the primi. very convenient; from which a man of liberal edu- tive construction of our courts, in a most clear and cation and tolerable understanding may glean pro ingenious manner. (1) re nata as much as is sufficient for his purpose.
(b) Finch. L. 237.
(1) The more recent publications of Mr. (3) In New York original writs issue out of Serj. Sellon and Mr. Tidd, and those of Mr. and under the seal of the court in which they Impey and Mr. Lee, now afford still more ex- are returnable. (2 R. S. 277, 98.) Plaints plicit information on the subject of Practice. seem still to be proper in the Common Pleas
(2) Before the passing the 6 Geo. IV. c. 96. Courts, (Id. 651, $ 11): though the 2 R. S. one great object of proceeding by special ori- 347, directs that actions may be commenced for ginal was to compel the defendant to bring a the recovery of a debt or of damages by capias writ of error in parliament, if he intended to ad resp. :-or, if against a corporation, hy sumdelay; but that act having restrained writs mons; or by service of a declaration. All of error upon judgments, even before verdict, proceedings in a cause may be on paper or unless the defendant finds bail in error, pro: parchmeni. Writs issue in the name of the ceedings are now more frequently by capias people (2 R. S. 275, § 8, 9.), and are tested, in the court of common pleas, and by latitat in generally, in the name of the first judge or the king's bench.
chief justice of the court. (ld. 198, s 10.)
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 pursuance 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 original writ; because they held it unfit that those justices, being only the substitutes of the crown, should take cognizance of any thing but what was thus expressly referred to their judg. ment (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 (f). 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 stand the suit. The other species of original writs is called a si fecerit te securum, from the words of the writ; which directs the sheriff io cause (c) Flet. 1. 2, c. 34.
(e) Finch, L. 257. (d) Mirr. c. 2, $3.
(1) Appendix, No. III. 0 1. (4) But to entitle a party to proceed by ori- a prisoner in the actual custody of the marshal. gioal, the debt must amount to 101. 5 Geo. It is the only mode of proceeding against II. c. 27. s. 5, since extended to 151. by 51 peers. 3 M. & S. 88; corporations or hunGeo. III. c. 124. s. l. 57 Geo. III. c. 101. dredors on the statules of hue and cry, &c. These latter acts have indeed both expired; Tyre, 11. Barnes, 415; or for the purpose of but it is presumed, they will be revived in the outlawing the defendant. present year. It is also a rule in the king's One advantage of proceeding by this writ is, bench, if the plaintiff, proceeding by original, that if a writ of error be bronghi for delay, it recover less than 501. he will be entitled to no must be brought direct into parliament, instead more costs than if he had proceeded by bill, of first into the exchequer chamber, and from except in cases where he could not proceed thence into parliament. Sid. 424. by bill, as for outlawry, &c. R. M. 23 Geo. III. Where the demand exceeds 401. a fine is But though in an action on a bond, with a payable to the king on these writs, by way of penalty above 501. the plaintiff recover 201., composition for the liberty of suing in his yet he will be entitled to costs of suit by ori- court : which fine is estimated according to ginal. 2 Chit. R. 148.
the amount of the demand, paying 6s. 8d. for This writ does not lie against an attorney every hundred marks, or 10s. for every 1001. or officer of the court, unloss sued with an un. Trye, 58. G. R. H. 6 W. & M. R. B. "Tidu, privileged person ; neither does it lie against 8 ed. 101.