CHAPTER THE TWENTIETH.

OF

PLEADING.

LEADINGS are the mutual altercations between.

PLEA

the plaintiff and defendant; which at prefent are set down and delivered into the proper office in writing, though formerly they were ufually put in by their counfel ore tenus, or viva voce, in court, and then minuted down by the chief clerks, or prothonotaries; whence in our old law French the pleadings are frequently denominated the parol.

THE firft of thefe is the declaration, narratio or count, antiently called the tale; in which the plaintiff fets forth his caufe of complaint at length: being indeed only an amplification or expofition of the original writ upon which his action is founded, with the additional circumstances of time and place, when and where the injury was committed. But we may remember, that, in the king's bench, when the defendant is brought into court by bill of Middlefex, upon a fuppofed trefpafs, in order to give the court a jurisdiction, the plaintiff may declare in whatever action, or charge him with whatever injury he thinks proper; unless he has held him to bail by a special ac etiam, which the plaintiff is then bound to pursue. And fo alfo, in order to have the benefit of a capias to fecure the defendant's perfon, it was the antient practice and is therefore ftill warrantable in the common. pleas, to fue out a writ of trefpafs quare claufum fregit, for breaking the plaintiff's clofe: and when the defendant is once Append. No II. § 2. N° III. § 6.

b See pag. 285. 288.

brought

brought in upon this writ, the plaintiff declares in whatever action the nature of his true injury may require; as in an action of covenant, or on the cafe for breach of contract, or other lefs forcible tranfgreffion: unlefs, by holding the defendant to bail on a fpecial ac etiam, he has bound himself to declare accordingly.

IN local actions, where poffeffion of land is to be recovered, or damages for an actual trespass, or for wafte, &c. affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county and place that it really did happen; but in tranfitory actions, for injuries that might have happened any where, as debt, detinue, flander, and the like, the plaintiff may declare in what county he pleases, and then the trial must be had in that county in which the declaration is laid. Though if the defendant will make affidavit, that the cause of action, if any, arofe not in that but in another county, the court will direct a change of the venue or vifne, (that is, the vicinia or neighbourhood in which the injury is declared to be done) and will oblige the plaintiff to declare in the other county; unless he will undertake to give material evidence in the firft (1). For the ftatutes 6 Rich. II. c. 2. and 4 Hen. IV. c. 18. having ordered all writs to be laid in their proper counties, this, as the judges conceived, impowered them to change the venue, if required, and not to infift rigidly on abating the writ: which practice began in the reign of James the firft". And this power is difcretionally exercifed, fo as to prevent and not to caufe a defect of juftice. Therefore the court will not change the venue to any of the four northern counties, previous to the spring circuit;

c 2 Ventr. 259.

d Raftellt. Dette. 184. b. Fitz. Abr. t. Briefe. 18. Salk. 670. Trye's Jus

Filiz. 231. Styl. pract. Reg. (edit. 1657-) 331.

(1) But if he fails to produce at the trial material evidence of the cause of action in the county, in which he has laid it, he muft be nonfuited, though he might have recovered a verdict in another county. 2 Bl. Rep. 1031.

[295]

because there the affifes are holden only once a year, at the time of the fummer circuit. And it will fometimes remove the venue from the proper jurifdiction, (especially of a narrow and limited kind) upon a suggestion, duly supported, that a fair and impartial trial cannot be had therein * (2).

с

It is generally usual in actions upon the case to set forth several cafes, by different counts in the fame declaration; fo that if the plaintiff fails in the proof of one, he may fucceed in another. As, in an action on the cafe upon an affumpfit for goods fold and delivered, the plaintiff usually counts or declares, first, upon a settled and agreed price between him and the defendant; as that they bargained for twenty pounds: and left he should fail in the proof of this, he counts likewise upon a quantum valebant; that the defendant bought other goods, and agreed to pay him so much as they were reasonably worth; and then avers that they were worth other twenty pounds : and so on in three or four different shapes; and at last concludes with declaring, that the defendant had refused to fulfil any of thefe agreements, whereby he is endamaged to fuch a value. And if he proves the cafe laid in any one of his counts, though he fails in the reft, he fhall recover proportionable damages. This declaration always concludes with thefe words," and thereupon he brings fuit, &c." " inde pro"ducit fectam, &c." By which words, fuit or fecta (a fequendo) were antiently understood the witneffes or followers of the plaintiff. For in former times the law would not put the de

e Stra. 874.-Mylock v. Saladine. Trin. 4 Geo. III. B. R.

f Seld. on Fortefe. c. 21.

(2) The court will not change the venue in an action brought upon a specialty, a promiffory note, or a bill of exchange; yet in one cafe where the action was upon a bond, and the witneffes of both parties lived in the county to which the defendant prayed the venue might be changed, the court ordered it to be changed upon condition that the defendant fhould bring no writ of error, and fhould give judgment of the term preceding the trial. 1 T. R. 781.

fendant

295 fendant to the trouble of answering the charge, till the plaintiff had made out at least a probable cafe e. But the actual production of the suit, the feta, or followers, is now antiquated; and hath been totally disused, at least ever fince the reign of Edward the third, though the form of it ftill continues.

At the end of the declaration are added also the plaintiff's common pledges of profecution, John Doe and Richard Roe, which, as we before observed", are now mere names of form; though formerly they were of ufe to answer to the king for the amercement of the plaintiff, in case he were nonfuited, barred of his action, or had a verdict or judgment against him. For, if the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law in any subsequent stage of the action, he is adjudged not to follow or pursue his [ 296 ] remedy as he ought to do, and thereupon a nonfuit, or non profequitur, is entered; and he is said to be nonpros'd. And for thus deferting his complaint, after making a falfe claim or complaint (pro falfo clamore fuo) he shall not only pay cofts to the defendant, but is liable to be amerced to the king. A retraxit differs from a nonfuit, in that the one is negative, and the other pofitive: the nonfuit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his fuit again, upon payment of costs; but a retraxit is an open and voluntary renunciation of his fuit, in court, and by this he for ever loses his action. A difcontinuance is somewhat fimilar to a nonfuit: for when a plaintiff leaves a chaẩm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought to do, the fuit is difcontinued, and the defendant is no longer bound to attend; but the plaintiff must begin again, by fuing out a new original, usually paying costs to his antagonist. Antiently, by the demife of the king, all fuits depending in his courts were at once discontinued, and the plaintiff was obliged to renew the procefs, by fuing out a fresh writ from the fucceffor: the virtue i3 Bulftr. 275. 4 Inft. 189.

Bract. 400. Flet. . 2. c. 6. h See pag. 274.

of the former writ being totally gone, and the defendant no longer bound to attend in confequence thereof: but, to prevent the expence as well as delay attending this rule of law, the ftatute Edw. VI. c. 7. enaces, that by the death of the king no action fhall be discontinued; but all proceedings fhall ftand good as if the fame king had been living.

WHEN the plaintiff hath stated his cafe in the declaration, it is incumbent on the defendant within a reasonable time to make his defence, and to put in a plea; elfe the plaintiff will at once recover judgment by default, or nihil dicit of the defendant.

DEFENCE, in it's true legal fenfe, fignifies not a justification, protection, or guard, which is now it's popular fignification; but merely an oppofing or denial (from the French verb defender"} of the truth or validity of the complaint. It is the conteftatio litis of the civilians: a general affertion that the plaintiff hath no ground of action, which affertion is afterwards extended [297] and maintained in his plea. For it would be ridiculous to fuppofe that the defendant comes and defends (or, in the vulgar acceptation, juftifies) the force and injury, in one line, and pleads that he is not guilty of the trefpafs complained of, in the next. And therefore in actions of dower, where the demandant doth not count of any injury done, but merely demands her endowment, and in affifes of land, where also there is no injury alleged, but merely a question of right stated for the determination of the recognitors or jury, the tenant makes no fuch defence'. In writs of entry", where no injury is ftated in the count, but merely the right of the demandant and the defective title of the tenant, the tenant comes and defends or denies his right, jus fuum; that is (as I understand it, though with a small grammatical inaccuracy) the right of the demandant, the only one expressly mentioned in the pleadings: or elfe denies his own right to be fuch, as is suggested by the count of the demandant. And in writs of right" the tenant always comes and defends the right of the demandant

k Raftal. entr. 234.

Booth of real actions. 118.

m Vol. II. Append. No V. § 2.

n Append. N ́ I. § 5.