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OF THE PURSUIT OF REMEDIES BY ACTION; AND
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, 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 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 courts of equity.
[*271] *In treating of remedies by action at common law, I shall confine 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 these 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 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 or history (a) of the progress of a suit through the court of common pleas, we shall at the same time give a general [ *272 ] 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 (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 Lae courts. The compiler must therefore be frequently obliged to rely upon his own observations.—which ia general he hath been studious to avoid where those of any other might be had. To accompany and illus trate 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 re nata as much as is sufficient for his purpose. These books of practice, as they are 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 has suffered most grosely by ignorant or careless transcribers, yet it traced out the reason of many parts of our modern practice, from the feudal institutions and the primitive construction of our courts, in a most clear and ingenious manner.
cause in the inferior courts of common law, those in cities and boroughs, or in the court-baron, or hundred, or county court: all wnica conform (as near as may be) to the example of the superior tribunals to which their causes mav 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 proceeuings 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 the nature of appeals. 8. The execution.
First, then, of the original, or original writ; (1) which is the beginning or foundation of the suit. When a person hath received an injury, and thinks it worth his while to demand satisfaction for it, he is to consider with himself, or take advice, what redress the law has given for that injury; *and there[ *273 ] upon, 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 officing justitia, the shop or mint of justice, wherein all the king's writs are framed. It is a mandatory letter from the king in parchment, sealed with his great seal, (b) 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 proceeding 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 specially referred to their judgment. (c) However, in small actions below the value of forty shillings, which are brought into 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 from the king. Now, indeed, [*274] 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."
Original writs are either optional or peremptory; or, in the language of our lawyers, they are either a præcipe, or a si te fecerit securum. (e) The præcipe is in the alternative, commanding the defendant to do the thing required, or show 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,
(1) This writ is no longer in use; a simpler proceeding by summons from the court in which the suit is to be brought having been substituted.
to pay a certain liquid at debt, to perform a sp cific covenant, to render an account, and the like: in all which cases the writ is drawn up in the form of præcipe or command, to do thus, or show cause to the contrary; giving the defendant his choice, to r dress 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 to cause the defendant 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 tested, or witnessed in the king's own name; "witness ourself at Westminster," or wherever the chancery may be held.
*The security here spoken of, to be given by the plaintiff for prosecut[*275]ing 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. () In like manner, as by the Gothic constitutions no person was permitted to lay a complaint against another, nisi 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. ()
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 return 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, that the defendant may have time to come up to Westminster, even from the most remote part 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 shown, 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.
*Throughout all Christendom, in very early times, the whole year [ *276] 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 rise 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, between midsummer and Michaelmas, which was allowed for 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. 51, and was fortified by an imperial constitution of the younger Theodosius, comprised in the Theodosian code. (m)
() Append. No. II, § 1.
Mod. Un. Ilist, xxii, 45.
(h) Finch. L. 189. 252.
(i) Stiernhook, de jure Goth. l. 3, c. 7
Afterwards, when our own legal constitution came to be settled, the com mencement 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 the 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, (g) in the times of advent, lent, pentecost, harvest, and vintage, the days of the great [ *277] litanies, and all solemn festivals. But he adds, that the bishops did nevertheless grant dispensations (of which many are preserved in Rymer's feodera), (r) that assizes and juries might be taken in some of these holy seasons. And soon afterwards a general dispensation was established by statute Westm. 1, 3 Edw. 1. c. 51, which declares, that "by the assent of all the prelates, assizes of novel disseisin, mort d'ancestor, and darrein presentment, shall 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 included within these prohibited seasons, fell naturally into a fourfold division, and, from some festival day that immediately preceded their commencement, 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. (2)
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. On some one of these days in bank all original writs must be made returnable; and therefore they are generally called the returns of that term: whereof every term has more or less, said by the Mirror (s) to have been originally fixed by King Alfred, but certainly settled as early as the statute of 51 Hen. III, st. 2. But though many of the return days are fixed upon Sundays, yet the court never sits to receive these returns till the Monday after: (1) and therefore no proceedings can be held, or judgment can be given, or supposed to be given, on the Sunday. (u)
*The first return in every term is, properly speaking, the first day in that term: as, for instance, the octave of St. Hilary, or the eighth day [*278] inclusive after the feast of that saint: which falling on the thirteenth of January, the octave therefore or first day of Hilary term is the twentieth of January. And thereon the court sits to take essoigns, or excuses, for such as do not appear according to the summons of the writ: wherefore this is usually called the essoign day of the term. But on every return-day in the term, the person summoned has three days of grace, beyond the day named in the writ, in which to make his appearance; and if he appears on the fourth day inclusive, quarto die post, it is sufficient. For our sturdy ancestors held it beneath the condition of freeman to appear, or to do any other act, at the precise time appointed. The feudal law therefore always allowed three distinct days of citation, before the
(0) C. 3, § 8.
(n) C. 3. de temporibus et diebus pacis.
(2) Now Hilary term begins the 11th and ends the 31st day of January; Easter term begins the 15th day of April and ends the 8th day of May; Trinity term begins the 22d day of May and ends the 12th day of June; and Michaelmans term begins the 2d and ends the 25th day of November. See statutes 11 Geo. IV and 1 Wm. IV, c. 70; and 1 Wm. IV sess. 2, c. 3, s. 2. 169
defendant was adjudged contumacious for not appearing; (v) preserving in this respect the German custom, of which Tacitus thus speaks: (w)" illud ex libertate vitium, quod non simul nec jussi conveniunt; sed et alter et tertius dies cunctatione co-euntium absumitur." And a similar indulgence prevailed in the Gothic constitution: "illud enim nimiæ liber tatis indicium, concessa toties impunitas non parendi; nec enim trinis judicii concessibus pœnam perditæ causæ contumax meruit (x) Therefore, at the beginning of each term, the court does not usually (y) sit for dispatch of business till the fourth or appearance day, as in Hilary term on the twenty-third of January; and in Trinity term, by statute 32 Hen. VIII, c. 21, not till the fifth day, the fourth happening on the great popish festival of Corpus Christi; (2) which days are therefore called and set down in the almanacks as the first days of the term, and the court also sits till the quarto die post or appearance day of the last return, which is therefore the end, of each of them. (3)
THE next step for carrying on the suit, after suing out the original, is called the process; being the means of compelling the defendant to appear in court. This is sometimes called original process, being founded upon the original writ; and also to distinguish it from mesne or intermediate process, which issues, pending the suit, upon some collateral interlocutory matter; as to summon juries, witnesses, and the like. (a) Mesne process is also sometimes put in contradis tinction to final process, or process of execution; and then it signifies all such process as intervenes between the beginning and end of a suit.
But process, as we are now to consider it, is the method taken by the law to compel a compliance with the original writ, of which the primary step is by giving the party notice to obey it. This notice is given upon all real præcipes, and also upon all personal writs for injuries not against the peace, by summons; which is a warning to appear in court at the return of the original writ, given to the defendant by two of the sheriff's messengers called summoners, either in person or left at his house or land: (b) in like manner as in the civil law the
process is by personal citation, in jus vocando. (c) This warning on the land is given, in real actions, by erecting a white stick or wand on the defendant's grounds (d) (which stick or wand among the northern nations is called the baculus *nunciatorius); (e) and by statute 31 Eliz. c. 3, the notice must [*280] also be proclaimed on some Sunday before the door of the parish church. If the defendant disobeys this verbal monition, the next process is by writ of attachment or pone, so called from the words of the writ, (f) "pone per valium et salvos plegios, put by gage and safe pledges A B the defendant," &c. This is a writ not issuing out of chancery, but out of the court of common pleas, being
(v) Fend. 1 2, t. 22. (y) See 1 Bulstr. 35.
(w) De Mor. Germ. c. 11.
(x) Stiernhook de jure Goth. l. 1, c. 6.
(2) See Spelman, on the Terms, ch. 17. Note, that if the feast of St. John the Baptist, or midsummerday, falls on the morrow of Corpus Christi day, (as it did A. D. 1614, 1698. and 1709, and will again A. D. 1791,) Trinity full term then commences, and the courts sit on that day, though in other years it is no juridical day. Yet, in 1702 1713 and 1724, when midsummer-day fell upon what was regularly the last day of the term, the courts did not then sit, but it was regarded like a Sunday, and the term was prolonged to the twenty-fifth of June. Rot. C. B. Bumb. 176.
(a) Finch. L. 436. (b) Ibid. 344, 352. (e) Stiernh. de jure Sueon. l. 1, c. 6.
(c) Ff. 2, 4, 1. (d) Dalt. of Sher. c. 31. (f) Appendix, No. III, 2.
(3) The whole practice of the superior courts has since been greatly simplified and improved by statute and rules of court. The statutes on which the practice now mainly depends are the common law procedure acts of 1852, and 1854 and 1860, and the summary procedure on hills of exchange act, 1555. See note, p. 20, infra.