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CHAPTER XX.

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, 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 specific remedies 'which have hitherto been provided therein' for every possible degree of wrong or injury, as well such remedies as are out of use 'or abolished,' 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. I then explained in detail in what cases the courts of equity afforded relief; and I am now, in the last place, to examine the manner in which these several remedies are pursued and applied.

What, therefore, the student may expect in this and succeeding chapters, is an account of the method of proceeding in and prosecuting an action in any of the divisions of the High Court of Justice. He will remember that' the court of Common Pleas at Westminster was the court originally constituted for the prosecution of all civil actions; ' that' the courts of King's Bench and Exchequer soon obtained cognizance of civil suits; and that these three courts had long possessed a concurrent jurisdiction in all personal actions and in ejectment," before they were merged in the

a In the conduct of a cause in the courts of common law of the Counties Palatine, and in the inferior courts of common law in cities and boroughs, these courts conformed (as near as might be) to the example of these superior

tribunals, to which their causes might probably in some stage or other be removed. "These palatine courts have been merged in the High Court. The inferior courts of common law are governed by the several rules of law

High Court of Justice. He will also have noted, wherein the redress afforded by the courts of equity varied from that obtainable in the courts of law; and that in the procedure to obtain that redress, in the mode of proof, and in the mode of trial, these courts of equity acted upon the rules of the civil and canon laws, in preference to those of the common law of England. There is now, however, in all suits between subject and subject, one method of proceeding of universal application, an action; and it is to the various steps therein, that we are now to direct our attention.'

b

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 an action are these: 1. The writ; 2. The pleadings; 3. The issue or demurrer; 4. The trial; 5. The judgment and its incidents; 6. The proceedings in nature of appeals; 7. The execution.

'But before I proceed to describe the Writ of Summons, it will be desirable to notice the ancient process by which the defendant was compelled to answer the plaintiff's claim, some acquaintance therewith being certainly necessary to a proper comprehension of our modern procedure.'

The original, or original writ, was formerly the beginning or foundation of every suit. When a person has 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 injury; 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 wrongfully detained from him, an action of detinue or trover; 'for an assault on his person,' an action of trespass. To this end he was formerly obliged' 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 sovereign's writs were originally framed. This original

enacted by the Judicature Act, 1873, sec. 91; and the appeal from them may, under an order in council, be to a divi

sional court. The Judicature Act, 1875, s. 15.'

b The Judicature Act, 1875, sched. I.

writ was a mandatory letter from the sovereign in parchment, sealed with his great seal, and directed to the sheriff of the county wherein the injury was committed or supposed so to have been, 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 any writ, he must return or certify to the court in which the writ is made returnable,' together with the writ itself; 'for this writ was formerly considered to be' the foundation of the jurisdiction of that court, being the sovereign's warrant for the judges to proceed to the determination of the cause. This was the result of a maxim introduced by the Normans, that there should be no proceedings 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 anything but what was thus expressly referred to their judgment. 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 Charta, c. 29, "nulli vendemus, nulli negabimus, aut differemus, justitiam "vel rectum."

Original writs were either optional or peremptory; or, in the language of our lawyers, they were either a præcipe, or a si te fecerit securum. The præcipe was in the alternative, commanding the defendant to do the thing required, or show the reason wherefore he had not done it. The use of this writ was where something certain was demanded by the plaintiff, which it was 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 was drawn up in the form of a præcipe or command, to do thus or show cause to the contrary, giving the defendant his choice, to redress the injury or stand the suit. The other species

In small actions below the value of forty shillings, which were brought in the court-baron or county court, no royal writ was necessary; but the foundation of such suits was, as in the times of the Saxons, not by original writ, but by plaint: that is, by a private memorial

tendered in open court to the judge, wherein the party injured set forth his course of action; and the judge was bound of common right to administer justice therein, without any special mandate from the king. Bl. Com. v. iii. p. 273.

of original writ was called a si fecerit te securum, from the words of the writ, which directed the sheriff to cause the defendant to appear in court, without any option given him, provided the plaintiff gave the sheriff security effectually to prosecute his claim. This writ was in use where nothing was specifically demanded, but only a satisfaction in general; to obtain which, and minister complete redress, the intervention of some judicature was necessary. Such were writs of trespass, wherein no debt or other specific thing was sued for, but only damages to be assessed by a jury. For this end the defendant was immediately called upon to appear in court, provided the plaintiff gave good security of prosecuting his claim. Both species of writs were teste'd, or witnessed in the name of the sovereign; "witness Ourself at Westminster," or wherever the chancery might be held.

The security just spoken of to be given by the plaintiff for prosecuting his claim, was common to both writs, though it gave denomination only to the latter. The whole of it soon became a mere matter of form: and John Doe and Richard Roe were 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. In like manner, as by the Gothic constitutions no person was permitted to lay a complaint against another, "nisi sub scripturâ aut specificatione trium testium quod "actionem vellet persequi ;" 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 was ordered to appear in court, and on which the sheriff was to bring in the writ and report how far he had obeyed it, was called the return of the writ, it being then returned by him to the justices at Westminster. And it was always returnable at the distance of at least fifteen days from the date or teste, that the defendant might 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 formerly sat' for the dispatch of business.

d

These terms are supposed by Selden to have been instituted by William the Conqueror; but Spelman has clearly and learnedly

d Jan. Angl. 1. 2, § 9.

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 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 litigation. 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. 517, and was fortified by an Imperial Constitution of the younger Theodosius, comprised in the Theodosian Code.

Afterwards, when our own legal constitution came to be settled, the commencement 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, 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 of holy church should 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 mentions only one vacation of any considerable length, containing the months of August and September, yet Britton is express, that in the reign of King Edward the First no secular plea could be held, nor any man sworn on the Evangelists, in the times of Advent, Lent, Pentecost, harvest, and vintage, the days of the great litanies, and all solemn festivals. But he adds, that the bishops did nevertheless grant dispensations, of which many are Spelman, of the Terms.