ever at prefent difufed, in order to demonftrate the coherence and uniformity of our legal conftitution, and that there was no injury fo obftinate and inveterate, but which might in the end be eradicated by fome 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 thefe obfolete actions, which are frequently mere politive establishments, the forma et figura judicii, and conduce very little to illuftrate the reafon and fundamental grounds of the law. Wherever I apprehend they may at all conduce to this end, I fhall endeavour to hint at them incidentally. WHAT therefore the ftudent may expect in this and the fucceeding chapters, is an account of the method of proceeding in and profecuting a fuit upon any of the personal writs we have before fpoken of, in the court of common pleas at Westminster; that being the court originally conftituted for the profecution 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 neceffities of modern times, have now obtained a concurrent jurifdiction and cognizance of very many civil fuits: but, as caufes are therein conducted by much the fame advocates and attorneys, and the feveral courts and their judges have an entire communication with each other, the methods and forms of proceeding are in all material refpects the fame in all of them. So that, in giving an abstract of history of the progrefs of a fuit through the court of common pleas, we In deducing this history the student muft not expect authorities to be conftantly cited; as practical knowledge is notio much to be learned from any books of law, as from experience and attendance on the courts. The compiler muft therefore be frequently obliged to rely upon his own obfervations; which in general he hath been ftudious to avoid where thofe of any other might be had. To accompany and illuftrate thefe remarks, fuch gentlemen as are defigned for the prof-ffion will find it neceffary to perufe the books of entries, antient and modern; which are tranfcripts of pro. ccedings that have been had in fome particular actions. A book or two of technical learning will also be found very convenient; from which a man of a liberal educatin and tolerable understanding may glean pro re nata as much as is fufficient for his purpose. These books of practice, as they are called, are all pretty much on a level, in point of compofition and Book III. fhall at the fame time give a general account of the proceedings of the other two courts; taking notice, however, of any confiderable difference in the local practice of each. And the fame abstract will moreover afford us fome general idea. of the conduct of a caufe in the inferior courts of common law, thofe, 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 fuperior tribunals, to which their caufes may probably be, in fome ftage or other, removed. THE most natural and perfpicuous way of confidering the fubject 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 fubdivide it by any more logical analyfis. The general therefore and orderly parts of a fuit are thefe; 1. The original writ: 2. The procefs: 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 fuit. When a perfon hath received an injury, and thinks it worth his while to demand a fatisfaction for it, he is to confider with himself, or take advice, what redrefs the law has given for that injury; and thereupon is to make application or fuit to the crown, the fountain of all justice, for that particular specific remedy which he is determined or advised to purfue. 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, folid instruction; fo that that which bears the latest edition is ufually the best. ButGilbert'shifteryand practice of thecourt of common pleas is a book of a very differ ent itamp; and though (like the reft of his pofthumous works) it has fuffered moft grofsly by ignorant or careless tranfcribers, yet it has traced out the reafon of many parts of our modern practice, from the feodal inftitutions and the pri mitive construction of our courts, in a moft clear and ingenious manner. a writ of entry or action of trespass in ejectment; or, for any consequential injury received, a special action on the cafe. To this end he is to fue out, or purchase by paying the stated fees, an original, or original writ, from the court of chancery, which is the officina juftitiae, the fhop or mint of justice, wherein all the king's writs are framed. It is a mandatory letter from the king in parchment, fealed with his great feal", and directed to the sheriff of the county wherein the injury is committed or fuppofed so to be, requiring him to command the wrongdoer or party accufed, either to do justice to the complainant, or elfe to appear in court, and answer the accufation against him. Whatever the fheriff 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 jurifdiction of that court, being the king's warrant for the judges to proceed to the determination of the caufe. For it was a maxim introduced by the Normans, that there fhould be no proceedings in common pleas before the king's justices without his original writ; because they held it unfit that thofe juftices, being only the substitutes of the crown, should take cognizance of any thing but what was thus exprefsly referred to their judgment. However, in small actions below the value of forty fhillings, which are brought in the court-baron or county court, no royal writ is neceffary; but the foundation of such suits continues to be (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 fets forth his cause of action: and the judge is bound of common right to adminifter juftice 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 fetting an unufual or exorbitant price upon them, would be a breach of magna carta. c. 29. "nulli vendemus, nulli negabimus, aut differemus juftitiam vel rectum.” b Finch. L. 237. c Flet. 1. 2. c. 34. d Mirr. c. 2. §3. ORIGINAL ORIGINAL writs are either optional or peremptory; or, in the language of our lawyers, they are either a praccipe, or a fite fecerit fecurum. The praecipe is in the alternative, commanding the defendant to do the thing required, or shew the reafon wherefore he hath not done it f. The ufe of this writ is where fomething certain is demanded by the plaintiff, which it is incumbent on the defendant himself to perform; as, to restore the poffeffion of land, to pay a certain liquidated debt, to perform a specific covenant, to render an account, and the like: in all which cafes the writ is drawn up in the form of a precipe or command, to do thus or fhew caufe to the contrary; giving the defendant his choice, to redress the injury or ftand the fuit. The other species of original writs is called a fi fecerit te fecurum, from the words of the writ; which directs the fheriff to cause the defendant to appear in court, without any option given him, provided the plaintiff gives the fheriff fecurity effectually to profecute his claim. This writ is in ufe, where nothing is fpecifically demanded, but only a fatisfaction in general; to obtain which, and minifter complete redress, the intervention of fome judicature is neceffary. Such are writs of trespass, or on the cafe, wherein no debt or other specific thing is fued for in certain, but only damages to be affeffed by a jury. For this end the defendant is immediately called upon to appear in court, provided the plaintiff gives good fecurity of profecuting his claim. Both fpecies of writs are tefte'd, or witneffed, in the king's own name; "witness ourself at West"minfter," or wherever the chancery may be held. THE fecurity here spoken of, to be given by the plaintiff for profecuting his claim, is common to both writs, though it gives denomination only to the latter. The whole of it is at prefent become a mere matter of form; and John Doe and Richard Roe are always returned as the standing pledges for this purpose. The antient ufe of them was to answer for e Finch. L. 257. Append. No. II. § 1. the the plaintiff, who in cafe 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 accufation; and fo the form of the judgment ftill is". In like manner, as by the Gothic conftitutions no perfon was permitted to lay a complaint against another, "nifi fub fcrip"tura aut specificatione trium teftium, quod actionem vellet perfequi; and, as by the laws of Sancho I. king of Portugal, damages were given against a plaintiff who profecuted a groundless action *. THE day, on which the defendant is ordered to appear in court, and on which the fheriff 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 tefte, that the defendant may have time to come up to Westminster, even from the most remote parts of the kingdom; and upon fome day in one of the four terms, in which the court fits for the difpatch of bufinefs. THESE terms are fuppofed by Mr. Selden' to have been inftituted by William the conqueror: but fir Henry Spelman hath clearly and learnedly fhewn, that they were gradually formed from the canonical conftitutions of the church; being indeed no other than those leifure feafons of the year, which were not occupied by the great feftivals or fafts, 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 magiftrates, to diftinguifh themselves from the heathens, who were extremely fuperftitious in the obfervation of their dies fafti et nefafti, went into a contrary extreme, and administered juftice upon all days alike. Till at Finch. L. 189. 252. 1 Stiern. de jure Gothor. 1. 3. c. 7. k Mod. Un. Hift. xxii. 45. Jan. Angl. I. 2. § 9. length |