« PreviousContinue »
ever at present disused, in order to demonstrate the coherence and uniformity of our legal conftitution, 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 these 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 conftituted 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 same advocatesand 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 fane in all of them. So that, in giving an abstract of history a of the progress of a suit through the court of common pleas, we shall at the sanie 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 fome 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.
a In deducing his history the student for the prof-fion will find it neceffary to must not expect authorities to be con- peruse the books of entries, antient and
Atantly cited ; as practical knowledge is modern; which are transcripts of pro. I not lo much to be learned from any books ccedings thathave been had in some parti.
of law, as from experience and attend. cular actions. A book or two of technical ance on the courts. The compiler must learning will also be found very convenitherefore be frequently obliged to rely ent; from which a man of a liberal edu. upon his own observations; which in cati'n and tolerable understanding may & neral he harb been studious to avoid glean pro re nata as much as is sufficient where those of any other might be had. for his purpose. These books of proftice, To accompany and illustrate these re- as they are called, are all pretty much marks, such gentiemen as are deligned 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 ; 1. The original writ: 2. The process: 3. The pleadings: 4. The issue 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 hath received an injury, and thinks it worth his while to de. mand 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 traj. bears the latest edition is usually the bet. fcribers, yet it has traced out the reason ButGilberi's biftoryand tractice of obecourt of many parts of our modern practice, of common pleas is a book of a very differ froin the feodal institutions and the pri. ent itamp; and though (like the reft mitive construction of our courts, in a of his posthumous works) it has suffered most clear and ingenious manner.
a writ of entry or action of trespass in ejectment; or, for any consequential injury received, a special action omthe 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. It is a mandatory
letter from the king in parchment, sealed with his great feal , 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. 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 plaintd; 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 negabimns, aut "differemus juftitiam vel rectum." b Finch. L. 237;
d Mirr. c. 2. $ 3. c Flet. I. 2. C. 34.
ORIGINAL writs are either optional or peremptory; or, in the language of our lawyers, they are either a praecipe, or a Ji 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 precipe 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 fi fecerit te fecurum, from the words of the writ; which directs the sheriff to cause the defendant to appear in court, without any option given him, provided the plaintiff gives the sheriff security effectually to prosecute his claims. 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 clain. Both fpecies of writs are tefte'd, or witneffed, in the king's own name; “ witness ourself at Weit66 minster," or wherever the chancery may be held.
The security here spoken of, to be given by the plaintift for profecuting 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 antient use of them was to answer for e Finch. L. 257.
8 Append. No. II. $. f Append. No. III. $ 3.
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 falfe accusation; and so the form of the judgment still is 6. In like manner, as by the Gothic constitutions no person was permitted to lay a complaint against another, “ nisi sub fcrip“ tura aut specificatione trium teftium, quod actionem vellet per“ fequil; and, as by the laws of Sancho I. king of Portugal, damages were given against a plaintiff who profecuted a groundless actionk.
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 return of the writ; it being then returned by him to the king's justices at Westminster. And it is always made returnable at the diftance of at least fifteen days from the date or teste, 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' to have been instituted by William the conqueror : but fir 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 feasons 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 fafti et mefafti, went into a contrary exá treme, and administered justice upon all days alike. Till at
A Finch. L. 189.252.
k Mod. Un. Hift. xxii. 45.