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(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 commercial 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 embattled 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 (z), "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.
(2) Hawk. Abr. Co. Litt. pref.
OF THE PURSUIT OF REMEDIES BY ACTION;
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 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 (a) In deducing this history the student must not tical knowledge is not so much to be learned from expect authorities to be constantly cited; as prac- any books of law, as from 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 himself, 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),
ance 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, 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.
(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 all
(3) In New-York original writs issue out of and under the seal of the court in which they are returnable. (2 R. S. 277, § 8.) Plaints seem still to be proper in the Common Pleas Courts, (Id. 651, § 11): though the 2 R. S. 347, directs that actions may be commenced for the recovery of a debt or of damages by capias ad resp. :-or, if against a corporation, by summons; or by service of a declaration. All proceedings in a cause may be on paper or parchment. Writs issue in the name of the people (2 R. S. 275, § 8, 9.), and are tested, generally, in the name of the first judge or chief justice of the court. (Id. 198, § 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 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  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 to cause
(c) Flet. l. 2, c. 34. (d) Mirr. 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 157. 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 more 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; neither does it lie against
(e) Finch, L. 257.
(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. 1 Sid. 424.
Where the demand exceeds 401. a fine is payable to the king on these writs, by way of 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 1007. Trye, 58. G. R. H. 6 W. & M. R. B. Tidd, 8 ed. 101.
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 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, “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 (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 (1) 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. 1. 3, c. 7.
(k) Mod. Un. Hist. xxii. 45.
(1) Jan. Angl. 1. 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.