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a gradual change of manners have destroyed the original ideas, on which the laws were devised and established, the prince by his edict may promulge a new code, more suited to the present emergencies. But when laws are to be framed by popular assemblies, even of the representative kind, it is too Herculean a talk to begin the work of legislation afresh, and extract a new system from the discordant opinions of more than five hundred counsellors. A single legislator or an enterprizing sovereign, a Solon or Lycurgus, a Justinian or a Frederick, may at any time form a concise, and perhaps an uniform, plan of justice: and evil betide that presumptuous subject who questions it's wisdom or utility. But who, that is acquainted with the difficulty of new-modelling any branch of our statute laws (though relating but to roads or so parisli settlements) will conceive it ever feasible to alter any fundamental point of the common law, with all it's appendages and consequents, and set up another rule in it's 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 intrenchments) were ill suited to that C 268 ] more simple and commercial mode of property which sucr ceeded the former, and required a more speedy decision of right, to facilitate exchange and alienation. Yet they wifely avoided soliciting any gTeat legislative revolution in the old established forms, which might have been productive of consequences more numerous and extensive than the mostpener trating genius could foresee; but left them as they were, to languisli 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 fense would have prompted them, they left an opening for the more liberal and enterprizing judges, who have fate 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 peryaded. Our- system of remedial law resembles au old Gothic castle, erected in the days of chivalry, but fitted up /or 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 out again into common use; but also because, as a sensible writer has well observed2, "whoever considers how great a £ 269 ] "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 con"duce 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 pf ejectment.
* Hawk. Abr. Co. Litt. pie".
CHAPTER THE EIGHTEENTH.
PF The PURSUIT Of REMEDIES
BY ACTION; AND FIRST, OF THE
HAVING, under the head of redress by suits 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 forts 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 (he 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 courts of equity.
In treating of remedies by action at common law, I (hall confine myself to the modern method of practice in our courts of judicature. For, though I thought it necessary to throw put a few observations on the nature of real actions, however ever 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 oilier os 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 these obsolete actions, which are frequently mere positive establishments, the forma et figura jvdLii, 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 sliall endeavour to hint at them incidentally.
What therefore the student may expect in this afioVthe 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 os, 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 antient 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 fame advocatesand attorneys, and the several courts and their judges have an entire communication with each other, the methods and forms of proceeding arc in all material respects the fame in all of them. So that, in giving an abstract or history" of the progress of a suit through the court of common pleas, tre shall at the same time give a general account ps the proceedings of the other two courts ; taking notice, however, of any considerable difference in the local practice of tzeh. And the fame 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.
* In deducingthishistorythe student for the pros-flion will find it necessary tu jtiust not expect authorities to be con- peruse the btn;k> ot entries, antient and st.u-.tly cited j as practical knowledge is m dern . which are transcripts of pro. mt ic> much to t-e learned from any books ccedingsthathave been had in some partios law, as from experience and attend- cular actions. A book or twoof technical ance on the courts. The compiler must learning will also be sound very convenitherefore be frequently obliged to rely ent; from which .1 irui os a libeni edu. upon hit own observations; which in cati n and tolerable understanding may £ neral he hath been studious to aroid glean fro re naia as much a? is sufficient where those of any other misfit be had. lor his purpose. These booki of fwftict, To accompany and illustrate these re- as they are called, are all petty much marks, such (_enticii.cn as are designed on a level, in point of composition and
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; i. The original writ: 2. The pro* cess: 3. The pleadings: 4. The iflue or demurrer: 5. The trial: 6. The judgment, and it's incidents: 7. The proceedings in nature of appeals: 8. The execution.
First, then, of the original, or original writ; which is the beginning or foundation of the suit. When a person bath 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 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,
solid instruction; so that that which most grossly by ignorant or careless tran
bears the latest edition is usually the be.!, scribers, yet it has traced out the reason
^VitCilbcrsibiJitryandfractlcecsibtccurt of many parts of our modern practice,
esccmmsrtpica* is a book us a very differ- frein the feodal institutiuns and the pri
ent stamp; andthough (like the reft initive construction of our courts, in a
of hit posthumous works) it ha: suffered most clear ani ingenious manner.
. a writ