corrections, called out again into common use; but also [*269] because, as a sensible writer has well observed (~), "whoever considers how great a coherence there is be"tween the several parts of the law, and how much the 66 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 assise and writs of entry, and only laid before him the modern method of prosecuting a writ of ejectment. (2) Hawk. Abr. Co. Litt. pref. CHAPTER XVIII. OF THE PURSUIT OF REMEDIES BY AC- HAVING, under the head of redress by suits 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, shown 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 Author proposes one could never be clearly comprehended, without some acquaintance with the other; and I am now, in the last the several replace, 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 courts of equity. *In treating of remedies by action at common law, I Confines himshall confine myself to the modern method of practice in self to the moour courts of judicature. For, though I thought it neces- practice, and sary 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 constitu to examine the manner in which medies for wrong are ap plied in the courts of law and equity. dern method of why. [*271 ] The subjects specified, viz. forms of pro chequer, the same in all. tion, 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 these 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 Com- ceeding in and prosecuting a suit upon any of the permon Pleas, Bench, and Ex-sonal 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 causes 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 of history (a) of the progress of a suit through the court of In the abstract of the history and progress of a suit in Common Pleas, (a) In deducing this history the student must not expect authorities to be constantly cited; as practical knowledge is not so much to be learned from any books of law, as from experience and attendance on the courts. The compiler must therefore be 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, antient 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 a liberal education and tolerable understanding may glean pro re nata as much as is sufficient for his purpose. These books of practice, as they are * King's Bench Common Pleas, we shall at the same time give a general [*272 ] account of the proceedings of the other two courts; taking the author pronotice, however, of any considerable difference in the local poses to give an account of propractice of each (1). And the same abstract will more- ceedings in over afford us some general idea of the conduct of a cause and Scacc. and in the inferior courts of common law, those in cities and at same time to advert to proboroughs, or in the court-baron, or hundred, or county ceedings in the court; all which conform (as near as may be) to the ex- inferior courts. ample of the superior tribunals, to which their causes may probably be, in some stage or other, removed. called, are all 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 (1) The assimilation of the practice of these courts and of that of exchequer with each other, engaged, at no distant time, it is said, the attention of those yet high in authority, and who, from their very superior knowledge and experience, were best, and perhaps only, competent to effect so important a measure; but their labours are suspended, it has been said, if they may not be superseded, by the existing commission probably resulting from Mr. Brougham's late memorable motion. But whilst imprisonment for debt, whether it be upon mesne or final process, shall continue to blur the practice of the courts, any general rules by which the process for effecting or facilitating that end shall in future be regulated, will be found subjected to evasion or abuse. It is known that a person may be seized and confined, who never had the has suffered most grossly by ignorant slightest knowledge of the alleged cre- It is not too much to say, that the Parts of a suit enumerated. 1. The original writ, what. Instances. 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 proccedings 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; 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 himself, [*273 ] or take advice, what redress the law has given for that Application, in injury; *and thereupon is to make application or suit to case of injury, the crown, the fountain of all justice, for that particular spespecific remedy. cific 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 justitiæ, the shop or mint of justice, wherein all the king's writs are framed (2). It is a mandatory letter from the king, in parchment, sealed with his great The original writ is sued as from Chancery. (2) See vol. i. p. 141, n. (33). A singular anomaly attends this same purchase; namely, a large payment made for a proceeding which is rarely wanted, and, if wanted, not to be obtained save by a payment of additional fees. In the short note of fees attached by the deputy filacer, or officer of the King's Bench who issues the capias, the original is always charged. The duty of this officer seems to be limited to the copying the parties' names and cause of action into a great book, and taking out of the suitors' pockets a large sum of money, under the semblance of fees due, and of right payable, for business that, if done, would be often done supervacaneously. But it |