as in actions for words, ejectment, or trespass, it is very seldom possible for a plaintiff to swear to the amount of his cause of action; and therefore no special bail is taken thereon, unless by a judge's order or the particular directions of the court, in some peculiar species of injuries, as in cases of mayhem or atrocious battery; or upon such special circumstances as make it absolutely necessary that the defendant should be kept within the reach of justice. Also in actions against heirs, executors, and administrators, for debts of the deceased, special bail is not demandable; for the action is not so properly against them in person, as against the effects of the deceased in their possession. But special bail is required even of them, in actions for a devastavit, or wasting the goods of the deceased; that wrong being of their own committing.

Thus much for process; which is only meant to bring the defendant into court, in order to contest the suit, and abide the determination of the law. When he appears either in person as a prisoner, or out upon bail, then follow the pleadings between the parties, which we shall consider at large in the next chapter.

CHAP. XX.

OF PLEADING.

PLEADINGS are the mutual altercations between the plaintiff and defendant; which at present are set down and delivered into the proper office in writing, though formerly they were usually put in by their counsel ore tenus, or viva voce, in court, and then minuted down by the chief clerks, or prothonotaries; whence in our old law French the pleadings are frequently denominated the parol.

a

The first of these is the declaration, narratio, or count, anciently called the tale; in which the plaintiff sets forth his cause of complaint at length: being indeed only an amplification or exposition of the original writ upon

which his action is founded, with the additional circumstances of time and place, when and where the injury was committed. But we may remember," that, in the king's bench, when the defendant is brought into court by bill of Middlesex, upon a supposed trespass, in order to give the court a 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 defendant's 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 defendant is once brought in upon his 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: unless, by holding the defendant to bail on a special ac etiam, he has bound himself to declare accordingly.

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; but in transitory actions, for injuries that might have happened any where, as debt, detinue, slander, 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 Rich. 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 c2 Ventr. 259.

▷ See p. 262. 264.

first. 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 assises 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.

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. 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; 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. By which words, suit or secta, (a sequendo,) were anciently understood the witnesses or followers of the plaintiff. 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

d Rastell t. Dette. 184. b. Fitz. Abr. t. 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. f Seld. on Fortesc. c. 21.

Bract, 400. Flet. l. 2. c.6.

Richard Roe, 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 ver dict or judgment against him. 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 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 prosequitur, is entered; and he is said to be nonpros'd. And for thus deserting his complaint, 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 for ever 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 expence 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

h See pag. 251.

i 3 Bulstr. 275. 4 Inst. 189.

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 defendant 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, and in assises 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 such defence. In writs of entry," 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" the tenant always comes and defends the right of the demandant and his seisin, jus prædicti S. et seisinam ipsius, 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 is otherwise inexplicably difficult.¶

The courts were formerly very nice and curious with

k Rastal. ent. 234.

1 Booth of real actions. 118. m Vol. II. Append. No. V.

§ 2.

n Append. No. I. § 5.

• Co. Entr. 182.

P Nov. Narr. 230, edit. 1534. 4 The true reason of this, says Booth, (on real actions, 94.112.) I could never yet find: so little did he understand of principles!