Jare their fe Memes, and a hun deed to that me of property which fuc a mure Greedy decision of anton. Yet they wifely I page revolution in the old TATE HIERTIES Live than the most penemazing pia 201 :ärke, be kå dem as they were, to anyak a bakery me relivion, and endeavoured by a femax of more coiances to accommodate fuch personal account, as were then in cik, to all the most useful purposes ef remena juftice: and where, through the dread of innowet on, they bolitated at going fo far as perhaps their good fende would have prompted them, they left an opening for the more liberal and enterprizing judges, who have fate in our our courts of equity, to fhew them their error by fupplying the omiffions of the courts of law. And, fince the new ex pedients 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 arifes from their fictions and circuities: but, when once we have discovered the proper clew, that labyrinth is eafily pervaded. Our system of remedial law resembles an old Gothic caftle, 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 ufe, are cheerful and commodious, though their approaches may be winding and difficult. In this part of our difquifitions I however thought it my duty to unfold, as far as intelligibly I could, the nature of these real actions, as well as of perfonal remedies. And this not only because they are ftill in force, ftill the law of the land, though obfolete and difufed; and may perhaps, in their turn, be hereafter with fome neceffary corrections called out again into common ufe; but also because, as a fenfible writer has well obferved, "whoever confiders how great a [ 269 ] "coherence there is between the feveral parts of the law, " and how much the reason of one cafe opens and depends upon that of another, will I prefume be far from thinking "any of the old learning ufclefs, which will fo much con"duce to the perfect understanding of the modern." And befides I should have done great injuftice to the founders of our legal constitution, had I led the ftudent to imagine, that the remedial inftruments of our law were originally contrived in fo complicated a form, as we now prefent them to his view: had I, for instance, entirely paffed over the direct and obvious remedies by affifes and writs of entry, and only laid before him the modern method of profecuting a writ of ejectment, z Hawk. Abr. Co. Litt. pre Book III. a gradual change of manners have destroyed the original ideas, on which the laws were devifed and established, the prince by his edict may promulge a new code, more fuited to the present emergencies. But when laws are to be framed by popular affemblies, even of the reprefentative kind, it is too Herculean a task to begin the work of legislation afresh, and extract a new fyftem from the difcordant opinions of more than five hundred counfellors. A fingle legiflator or an enterprizing fovereign, a Solon or Lycurgus, a Juftinian or a Frederick, may at any time form a concife, and perhaps an uniform, plan of juftice: and evil betide that prefumptuous fubject who queftions it's wifdom or utility. But who, that is acquainted with the difficulty of new-modelling any branch of our ftatute laws (though relating but to roads or to parish fettlements) will conceive it ever feasible to alter any fundamental point of the common law, with all it's appendages and confequents, and fet up another rule in it's ftead? 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 effoins, vouchers, aid-prayers, and a hundred other formidable intrenchments) were ill fuited to that [268] more fimple and commercial mode of property which fucceeded the former, and required a more speedy decifion of right, to facilitate exchange and alienation. Yet they wifely avoided foliciting any great legislative revolution in the old eftablished forms, which might have been productive of confequences more numerous and extensive than the most penetrating genius could forefee; but left them as they were, to languish in obfcurity and oblivion, and endeavoured by a feries of minute contrivances to accommodate fuch perfonal actions, as were then in ufe, to all the most useful purposes of remedial juftice: and where, through the dread of innovation, they hcfitated at going fo far as perhaps their good fenfe would have prompted them, they left an opening for the more liberal and enterprizing judges, who have fate in our our courts of equity, to fhew them their error by fupplying the omiffions of the courts of law. And, fince 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 juftice, much better than could now be effected by any great fundamental alterations. The only difficulty that attends them arifes from their fictions and circuities: but, when once we have discovered the proper clew, that labyrinth is eafily 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 ufe, 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 perfonal remedies. And this not only because they are ftill in force, ftill the law of the land, though obsolete and disused; and may perhaps, in their turn, be hereafter with fome neceffary corrections called out again into common ufe; but also because, as a fenfible writer has well obferved, "whoever confiders how great a [269] "coherence there is between the feveral parts of the law, "and how much the reafon of one cafe opens and depends "upon that of another, will I presume be far from thinking "any of the old learning ufclefs, which will fo much con. "duce to the perfect understanding of the modern." And besides I should have done great injuftice to the founders of our legal constitution, had I led the ftudent to imagine, that the remedial inftruments of our law were originally contrived in fo complicated a form, as we now present them to his view: had I, for instance, entirely paffed over the direct and obvious remedies by affifes and writs of entry, and only laid before him the modern method of profecuting a writ of ejectment, z Hawk. Abr. Co. Litt. pte. CHAPTER THE EIGHTEENTH. OF THE PURSUIT OF REMEDIES BY ACTION; AND FIRST, OF THE ORIGINAL WRIT. AVING, under the head of redrefs by fuits in courts, pointed out in the preceding pages, in the first place, the nature and several species of courts of juftice, wherein remedies are administered for all forts of private wrongs; and, in the second place, fhewn to which of these courts in particular application must be made for redrefs, 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 poffible degree of wrong or injury; as well fuch remedies as are dormant and out of ufe, as thofe which are in every day's practice, apprehending that the reafon of the one could never be clearly comprehended, without fome acquaintance with the other: and, I am now, in the laft place, to examine the manner in which these several remedies are purfued and applied, by action in the courts of common law; to which I fhall afterwards fubjoin a brief account of the proceedings in courts of equity. In treating of remedies by action at common law, I shall confine myfelf to the modern method of practice in our courts of judicature. For, though I thought it necessary to throw out a few obfervations on the nature of real actions, how |