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upon a supposed trespass, in order to give the court jurisdiction, the plaintiff may declare in whatever action, or charge him with whatever injury, he thinks proper; unless he has held him to bail by a special ac etiam, which the plaintiff is then bound to pursue. And so also, in order to have the benefit of a capias to secure the defendants' person, it was the ancient practice, and is therefore still warrantable in the common *pleas to sue out a writ of trespass

quare clausum fregit, for breaking the plaintiff's close: and when the [*294] defendant is once brought in upon this writ, the plaintiff declares in whatever action the nature of his true injury may require; as in an action of covenant, or on the case for breach of contract, or other less forcible transgression: (c) unless, by holding the defendant to bail on a special ac etiam, he has bound himself to declare accordingly. (2)

In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, &c., affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county and place that it really did happen; (3) but in transitory actions, for injuries that might have happened anywhere, as debt, detinue, sländer, and the like, the plaintiff may declare in what county he pleases, and then the trial must be had in that county in which the declaration is laid. Though, if the defendant will make affidavit that the cause of action, if any, arose not in that but in another county, the court will direct a change of the venue, or visne (that is, the vicinia, or neighbourhood, in which the injury is declared to be done), and will oblige the plaintiff to declare in the other county; unless he will undertake to give material evidence in the first. For the statutes 6 Ric. II, c. 2, and 4 Hen. IV, c. 18, having ordered all writs to be laid in their proper counties, this, as the judges conceived, empowered them to change the venue, if required, and not to insist rigidly on abating the writ: which practice began in the reign of James the First. (d) And this power is discretionally exercised, so as to prevent, and not to cause, a defect of justice. Therefore, the court will not change the venue to any of the four northern counties, previous to the spring circuit; because there the assizes are holden only once a year, at the time of the summer circuit. And it will sometimes remove the venue from the proper jurisdiction (especially of a narrow and limited kind), upon a suggestion, duly supported, that a fair and impartial trial cannot be had therein. (e)

(c) 2 Vestr. 259.

(d) Rastall, tit. Dette, 184, b. Fitz. Abr. tit. Briefe, 18. Salk. 670. Trye's Jus. Filiz, 231. Styl. Pract. Reg. (edit. 1657) 331. (e) Stra. 874, Mylock v. Saladine. Trin. 4 Geo. III, B. R.

(2) [And even then, the plaintiff will only lose the benefit of the bail, and the court will not set aside the proceedings. 7 T. R. 80; 8 id. 27; 5 Moore, 483; 6 T. R. 363.

The declaration should in other respects correspond with the process, as in the names and numbers of the parties, the character or right in which they sue or are sued; but as, according to the present practice of the courts, oyer of the writ cannot be craved, and a variance between the writ and declaration cannot in any case be pleaded in abatement: 1 Saund. 318; 3 B. and P. 395; and as there are several instances in which the court will not set aside the proceeding on account of a variance between the writ and declaration (6 T. R. 364), many of the older decisions are no longer applicable in practice. But if the defect appear on the face of the declaration, the plaintiff may plead in abatement, or demur accordingly. As to these general requisites, see 1 Chit. on Pl. 222 to 229.]

(3) [Actions for every kind of injury to real property are local, as for nuisances, waste, &c., unless there be some contract between the parties, on which to ground the action. 1 Taunt. 379: 11 East, 226. And if the land be out of this kingdom, the plaintiff has no remedy in the English courts, if there be a court of justice to resort to where the land is situate. 4 T. R. 503; 1 Stra. 646; Cowp. 180; 6 East, 598. Where an injury has been caused in one county to land, &c., in another, or when the action is founded upon two or more material facts, which took place in different counties, the venue may be laid in either. 2 Taunt. 252, overruling 2 Campb. 266; 7 Co. 1; 3 Leon. 141; 7 T. R. 583; 1 Chit. on Pl. 242.

In an action upon a lease for the non-payment of rent, or other breach of covenant, when the action is founded on the privity of contract, it is transitory; but not so when the action is founded on the privity of estate. 3 T. R. 394; 3 Co. 23; 1 Saund. 237; Tidd, 431; 1 Chit. 244 to 246.]

The power of changing the venue was extended by statute 3 and 4 Wm. IV, c. 42, § 22, to local actions.

[*295] *It is generally usual, in actions upon the case, to set forth several cases by different counts in the same declaration; so that, if the plaintiff fails in the proof of one, he may succeed in another. (4) As, in an action on the case upon an assumpsit for goods sold and delivered, the plaintiff usually counts or declares, first, upon a settled and agreed price between him and the defendant; as that they bargained for twenty pounds: and lest he should fail in the proof of this, he counts likewise upon a quantum valebant; that the defendant bought other goods, and agreed to pay him so much as they were reasonably worth; and then avers that they were worth other twenty pounds; and so on in three or four different shapes; (5) and at last concludes with declaring, that the defendant had refused to fulfil any of these agreements, whereby he is endamaged to such a value. And if he proves the case laid in any one of his counts, though he fails in the rest, he shall recover proportionable damages. This declaration always concludes with these words: "And thereupon he brings suit," &c., "inde producit sectam," &c. (6) By which words, suit or secta (a sequendo), were anciently understood the witnesses or followers of the plaintiff. (f) For, in former times, the law would not put the defendant to the trouble of answering the charge, till the plaintiff had made out at least a probable case. (g) But the actual production of the suit, the secta, or followers, is now antiquated, and hath been totally disused, at least ever since the reign of Edward the Third, though the form of it still continues.

At the end of the declaration are added also the plaintiff's common pledges of prosecution, John Doe and Richard Roe, (7) which, as we before observed, (h) are now mere names of form; though formerly they were of use to answer to the king for the amercement of the plaintiff, in case he were nonsuited, barred of his action, or had a verdict or judgment against him. (i) For, if the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law in any subsequent [*296] *stage of the action, he is adjudged not to follow or pursue his remedy as he ought to do, and thereupon a nonsuit or non prosequiter, is entered; and he is said to be nonpros'd. (8) And for thus deserting his complaint,

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(4) But several counts for the same cause of action are not now allowed, as a general rule, and the court, on motion, may order them stricken out. Reg. Gen. Trin. T. 1853

(5) [The variations should be substantial; for if the different counts be so similar that the same evidence would support each of them, and be of any considerable length, and vexatiously inserted, the court would, on application, refer it to the master for examination, and to strike out the redundant counts; and in gross cases direct the costs to be paid by the attorney. 1 N. R. 289; Rep. T. Hardw. 129. And as to striking out superfluous counts, see Tidd, 8th ed. 667, 648. In 2 Bing. 412, nine counts were allowed in an action for slander, though the words used were very few. See 1 Chit. on Pl. 350, 351, 352, as to the insertion of several counts. There must be no misjoinder of different counts; and, in order to prevent the confusion which might ensue, if different forms of action, requiring different pleas and different judgments, were allowed to be joined in one action, it is a general rule, that actions in form ex contractu cannot be joined with those in form ex delicto. Thus, assumpsit and debt (2 Smith, 618; 3 id. 114), or assumpsit and an action on the case, as for a tort, cannot be joined: 1 T. R. 276, 277; 1 Vent. 366; Carth. 189; nor assumpsit with trover: 2 Lev. 101; 3 id. 99; 1 Salk. 10; 3 Wils. 354; 6 East, 335; 2 Chitty R. 343; nor trover with detinue. Willes, 118; 1 Chit. on Pl. 182. Debt and detinue may, however, be joined, although the judgments bo different. 2 Saund. 117. And see further, as to what is a misjoinder, 1 Chit. on Pl. 199. Unless the subsequent count expressly refers to the preceding, no defect therein will be aided by such preceding count. Bac. Ab. Pleas and Pleader, 16, 1.]

(6) [It does not so conclude in actions against attorneys and other officers of the court, but thus: "and therefore he prays relief, &c." Andr. 247; Barnes, 3, 167.

In actions at the suit of an executor or administrator, immediately after the conclusion, to the damage, &c., and before the pledges, a profert of the letters testamentary, or letters of administration, should be made. Bac. Ab. Executor, C; Dougl. 5, in notes. But omission is aided, unless defendant demur specially. 4 Ann. c. 16, § 1.]

(7) This form was not essential (3 T. R. 157), and it is now obsolete.

(8) [But unless the defendant take advantage of the plaintiff's neglect, by signing such judg ment, the plaintiff may deliver his declaration at any time within a year next after the return

after making a false claim or complaint (pro falso clamore suo), he shall not only pay costs to the defendant, but is liable to be amerced to the king. A retraxit differs from a nonsuit, in that the one is negative, and the other positive: the nonsuit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again, upon payment of costs; but a retraxit is an open and voluntary renunciation of his suit in court, and by this he forever loses his action. A discontinuance is somewhat similar to a nonsuit; for when a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend: but the plaintiff must begin again, by suing out a new original, usually paying costs to his antagonist. Anciently, by the demise of the king, all suits depending in his courts were at once discontinued, and the plaintiff was obliged to renew the process, by suing out a fresh writ from the successor; the virtue of the former writ being totally gone, and the defendant no longer bound to attend in consequence thereof; but, to prevent the expense as well as delay attending this rule of law, the statute 1 Edw. VI, c. 7, enacts, that by the death of the king no action shall be discontinued; but all proceedings shall stand good as if the same king had been living.

When the plaintiff hath stated his case in the declaration, it is incumbent on the defendant within a reasonable time to make his defence, and to put in a plea; else the plaintiff will at once recover judgment by default, or nihil dicit of the defendant.

Defence, in its true legal sense, signifies not a justification, protection, or guard, which is now its popular signification; but merely an opposing or denial (from the French verb defender) of the truth or validity of the complaint. It is the contestatio litis of the civilians: a general assertion that the plaintiff hath no ground of action, which assertion is afterwards extended *and maintained in his plea. For it would be ridiculous to suppose that the defend- [*297] ant comes and defends (or, in the vulgar acceptation, justifies) the force and injury, in one line, and pleads that he is not guilty of the trespass complained of, in the next. And therefore, in actions of dower, where the demandant doth not count of any injury done, but merely demands her endowment, (k) and in assizes of land, where also there is no injury alleged, but merely a question of right stated for the determination of the recognitors or jury, the tenant makes no defence. (1) In writs of entry, (m) where no injury is stated in the count, but merely the right of the demandant and the defective title of the tenant, the tenant comes and defends or denies his right, jus suum; that is (as I understand it, though with a small grammatical inaccuracy), the right of the demandant, the only one expressly mentioned in the pleadings, or else denies his own right to be such, as is suggested by the count of the demandant. And in writs of right, (n) the tenant always comes and defends the right of the demandant and his seisin, jus prædicti Š. et seisinam ipsius (0) (or else the seisin of his ancestor, upon which he counts, as the case may be), and the demandant may reply, that the tenant unjustly defends his, the demandant's, right, and the seisin on which he counts. (p) All which is extremely clear, if we understand by defence an opposition or denial, but it is otherwise inexplicably difficult. (7)

The courts were formerly very nice and curious with respect to the nature of the defence, so that if no defence was made, though a sufficient plea was pleaded, the plaintiff should recover judgment: (r) and therefore the book entitled nove narrationes or the new talys, (s) at the end of almost every count, narra(m) Book II. Appendix, No. V, § 2. (p) Nov. Nar. 230, edit 1534.

(k) Rastal, Ent. 231.

(n Appendix, No. I, § 5.

(7) Booth of Real Actions, 118.
(0) Co. Entr. 182.

The true reason of this, says Booth (on Real Actions, 94, 112), I could never yet find; so little did ho understand of principles!

(r) Co. Litt. 127.

(8) Edit. 1534.

of the writ. 3 T. R. 123; 5 id. 35; 7 id. 7; sed vide 2 N. R. 404. As to when the defendant is entitled to, and how he should sign, a judgment of, and costs on non pros., see Tidd, 8th ed.. index, tit. Non Pros.]

tio, or tale, subjoins such defence as is proper for the defendant to make. For a general defence or denial was not prudent in every situation, since thereby the propriety of the writ, the competency of the plaintiff, and the cognizance of the court were allowed. By defending the force and injury, the defendant [*298] waived all pleas of misnomer; () and by defending the damages, all exceptions to the person of the plaintiff; and by defending either the one or the other when and where it should behove him, he acknowledged the jurisdiction of court. (u) But of late years these niceties have been very deservedly discounte nanced: (w) though they still seem to be law, if insisted on. (x)

Before defence made, if at all cognizance of the suit must be claimed or demanded; when any person or body corporate hath the franchise, not only of holding pleas within a particular limited jurisdiction, but also of the cognizance of pleas: and that, either without any words exclusive of other courts, which entitles the lord of the franchise, whenever any suit that belongs to his jurisdiction is commenced in the courts at Westminster, to demand the cognizance there of: or with such exclusive words, which also entitle the defendant to plead to the jurisdiction of the court. (y) Upon this claim of cognizance, if allowed, all proceedings shall cease in the superior court, and the plaintiff is left at liberty to pursue his remedy in the special jurisdiction. As, when a scholar, or other privileged person, of the universities of Oxford or Cambridge, is impleaded in the courts at Westminster, for any cause of action whatsoever, unless upon a question of freehold. (2) In these cases, by the charters of those learned bodies, confirmed by act of parliament, the chancellor or vice-chancellor may put in a claim of cognizance; which, if made in due time and form, and with due proof of the facts alleged, is regularly allowed by the courts. (a) It must be demanded before full defence is made (b) or imparlance prayed; for these are a submission to the jurisdiction of the superior court, and the delay is a laches in the lord of the franchise and it will not be allowed, if it occasion a failure of justice, (c) or if an action be brought against the person himself, who claims the franchise, unless he hath also a power in such case of making another judge. (d) (9)

*After defence made, the defendant must put in his plea. But, before [*299] he defends, if the suit is commenced by capias or latitat, without any special original, he is entitled to demand one imparlance, (e) or licentia loquendi; and may, before he pleads, have more time granted by consent of the court; to see if he can end the matter amicably without farther suit, by talking with the plaintiff: a practice which is (f) supposed to have arisen from a principle of

(t) Theloal. dig. l. 14. c. 1. p, 357.

(u) En la defence sont iij choses entandantz; per tant quil defende tort et force home doyt entendre quil se excuse de torta luy surmys per counte. et fait se partie al ple ; et per tant quil defende les damages, il affirm le partie able destre respondu et per tant quil defende ou et quant il devera, il accepte la poiar de court de conustre ou trier lour ple. Mod, tenend, cur. 408, edit. 1531. See also Co. Litt. 127.

Lord Raym. 217.

(2) Carth. 230.
(z) See page 83.

(e) 2 Ventr. 363.

(w) Salk. 217. Lord Raym. 282.
(y) Lord Raym. 835. 10 Mol. 126.
(b) Rust 125, &c.

(a) Hardr. 505.

(d) Hob. 87. Year-book, M. 8 Hen. VI, 20. In this latter case the chancellor of Oxford claimed cognizance of an action of trespass brought against himself, which was disallowe 1, because he should not be judge in his own cause :-The argument us by Serjea it Rolf's on behalf of the cognizance is curious and worth transcribing:-Jeo bous dirai un fable. En ascun temps fuit un pipe et aroit fait un grand offence, et le cardinals vindrent a luy et disoyent a luy peccasti :" et il dit, “ judica me;" et ils disoyent, “non possumus, quia caput es ecclesiæ: judica teipsum :" et l'apostol dit, “judico me crem tri ;" et fuit combustus ; et apres fuit un sainct. Et in ceo cas il fuit son juge demene, et issint n'est p is inconvenient que un home soit juge demene. (e) Appendix. No. III, § 6.

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(ƒ) Gilb. Hist. Com. Pl. 35.

(9) [But a party may waive, and preclude himself from taking any objection to a decision on this account: for if a defendant agree to refer the matter to the plaintiff. he cannot object to the award that the plaintiff was judge in his own cause. Thus in Matthew v. Ollerton, 4 Mod. 226; Comb. 218; Hard. 44, which was an action of debt upon an award, and a verdict for the plaintiff; and, upon its being moved in arrest of judgment, the exception taken was that the matter in difference was referred to the plaintiff himself, who made an award. Sed non allocatur. And the case of Serjeant Hards was remembered by Dolben, justice, viz. the serjeant took a horse from my lord of Canterbury's bailiff, for a deodand, and the archbishop brought his action; and it coming to a trial at the assize in Kent, the serjeant, by rule of court, referred it to the archbishop to set the price of the horse, which was done accordingly; and the serjeant afterwards moved the court to set aside the award for the reason now offered, but it was denied by Lord Hale and per totam curiam.]

religion, in obedience to that precept of the gospel, "agree with thine adversary quickly, whilst thou art in the way with him." (g) And it may be observed that this gospel precept has a plain reference to the Roman law of the twelve tables, which expressly directed the plaintiff and defendant to make up the matter, while they were in the way, or going to the prætor,-in via, rem uti pacunt orato. There are also many other previous steps which may be taken by a defendant before he puts in his plea. He may, in real actions, demand a view of the thing in question, in order to ascertain its identity and other circumstances. He may crave oyer (h) of the writ, or of the bond, or other specialty upon which the action is brought: that is, to hear it read to him; the generality of defendants in the times of ancient simplicity being supposed incapable to read it themselves, whereupon the whole is entered verbatim upon the record, and the defendant may take advantage of any condition or other part of it, not stated in the plaintiff's declaration. (10) *In real actions also the tenant may pray in aid, or call for assistance of another, to help him plead, [ *300] because of the feebleness or imbecility of his own estate. Thas a tenant for life may pray in aid of him that hath the inheritance in remainder or reversion; and an incumbent may pray in aid of the patron and ordinary: that is, that they shall be joined in the action, and help to defend the title. Voucher also is the calling in of some person to answer the action, that hath warranted the title to the tenant or defendant. This we still make use of in the form of common recoveries, (i) which are grounded on a writ of entry; a species of action that we may remember relies chiefly on the weakness of the tenant's title, who therefore vouches another person to warrant it. If the vouchee appears, he is made defendant instead of the voucher: but, if he afterward makes default, recovery shall be had against the original defendant; and he shall recover over an equivalent in value against the deficient vouchee. In assizes, indeed, where the principal question is, whether the demandant or his ancestors were or were not in possession till the ouster happened, and the title of the tenant is little. (if at all) discussed, there no voucher is allowed; but the tenant may bring a writ of warrantia chartæ against the warrantor, to compel him to assist him with a good plea or defence, or else to render damages and the value of the land, if recovered against the tenant. (j) In many real actions also, (h) brought by or against an infant under the age of twenty-one years, and also in actions of debt brought against him, as heir to any deceased ancestor, either party may suggest the nonage of the infant, and pray that the proceedings may be deferred till his full age; or (in our legal phrase) that the infant may have his age, and that the parol may demur, (11) that is, that the pleadings may be stayed; and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced therchy. (1) But, by the statutes of Westm. 1, 3 Edw. I, c. 46, and of Gloucester, 6 Edw. I, c. 2, in writs of entry sur disscisin in some particular cases, and in actions ancestral brought by an infant, the parol

shall not demur: otherwise he might be deforced of his whole property, [*301]

and even want of maintenance till he came of age. So likewise in a writ of dower the heir shall not have his age; for it is necessary that the widow's claim be immediately determined, else she may want a present subsistence. (m) Nor shall an infant patron have it in a quare impedit, (n) since the law holds it necessary and expedient that the church be immediately filled.

When these proceedings are over, the defendant must then put in his excuse or plea. Pleas are of two sorts; dilatory pleas, and pleas to the action. Dilatory

(g) Matt. v. 25. (k) Dyer, 137.

(h) Appendix. No. III, § 6. (i) Book II, Appendix, No V, § 2.
(1) Finch, L. 360. (m) 1 Roll. Abr. 137. (n) Ibid. 139

(j) F. N. B. 135.

(10) [But now a defendant is not allowed oyer of the writ. 1 B. and P. 646; 3 id. 395; 7 East, 383. As to the demand and giving of over, and the manner of setting out deeds, &c., therein, see 1 Saund, 9. (1), 289, (2); 2 id. 9. (12, 13), 46, (7). 366. (1). 405. (1). 410 (2); Tidd, 8th ed. 635 to 638, and index. tit. Oyer; 1 Chit. on Pl. 369 to 375.]

(11) But now the parol may not demur in actions, suits or other proceedings against infants. 185

VOL. II.-24

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