English mode of procedure by Action, Writ, and Pleadings. 222 From this account of the trial we learn, that it was not questions of fact merely, as is frequently stated, that were tried before the Recuperatores, or delegated judges in civil actions, but questions of law also. A synopsis of this oration may be found in the fourth volume of Olivet's edition, tom. iv. p. 659-661; and in the same edition there are some very valuable explanatory notes, which I have made use of here, and in the text. THE ENGLISH MODE OF PROCEDURE IN CIVIL CASES, BY ACTION, WRIT, AND PLEADINGS. Modern mode of proceeding by Action-Actions personal and real-Real Actions founded on Possession, and those founded on right of Ownership, distinguished-Personal Actions ex contractu and ex delicto-Action of Debt-of Covenant-of Detinue-of Trover-of Trespass-of Replevin-Mixed Actions. The original Writ-Writs de cursu-Return of the Writ-Fines and Fees payable to the Principles of Pleading all Pleadings to conform to the Writ and Count-Departure in ment. Pleadings originally Oral-afterwards in Writing-the Prothonotary. Judgment by Default-the Venue. Action of Ejectment-now a Mixed Action-Uses to which this Action has been applied― Legal Fictions. Pleadings directed to be in English-but entered in Latin. THE form which was adopted on the introduction of the modern mode of procedure in England was by action; and actions were divided into. two classes, personal and real, as with the Romans. The latter were in England designated by some of the old writers (a) as feudal actions; by reason that they were confined to the recovery of real property, namely, land, houses, &c.; and rights connected with land (b), as rents, commons, and the like; as, indeed, was generally the practice amongst the Romans, though slaves were frequently the subject of this description of action. Personal actions are described to be such whereby a man claims a debt, or personal duty, or damages, in lieu thereof; and likewise whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, ex contractu, the latter upon torts or wrongs, ex delicto, or ex maleficio, and they are the same which are described as actiones in *personam in the passages which have been cited in a former Chapter (c). (a) Mirror, c. 2, s. 6; 3 Bla. Comm. 117. (b) 3 Bla. Comm. 118. (c) 3 Bla. Comm. 117. Mr. Justice Blackstone here, as in many other instances, refers expressly to the Institutes of Justinian (iv. 6, s. 1. 15, &c.), as was noticed in a preceding chapter, supra p. 186. In truth, the whole of the doctrines as to personal VOL. I.-17 [*224] actions, were based upon the Institutes, and the Digest, through Bracton, as will be evident from the references already made, and from the extracts set out in the additional note to this Chapter, which might be largely increased: not that the Roman law was made by statute, or otherwise, of binding authority, in this or any other instance 224 Debt-Covenant-Detinue-Trover-Trespass-Replevin. Omitting some actions which have long since gone out of use, the principal kinds of personal actions originally known to the common law, are the following; Debt and Covenant, which arise ex contractu, and Detinue and Trespass, which arise ex delicto (a). The action of debt lies where a person claims the recovery of a debt, that is, a liquidated or certain sum of money alleged to be due to him; it is commonly applied to debts due on bonds, or other documents under seal. The action of covenant lies where a party claims damages for a breach of a promise made by instrument under seal, or, in legal language, by specialty. The action of detinue lies where a party claims the specific recovery of goods and chattels (b); the action of trover is not an original action, but an action on the case founded upon the action of detinue: it will be treated of hereafter. The action of trespass lies where a party claims damages for an injury committed with violence against him, and this violence may be express or implied. An assault and battery is an instance of actual violence; a peaceable but wrongful entry upon the plaintiff's land, of implied violence (c). The action of replevin is the only action by which goods can be specifically recovered. This action, though it is entertained in the Superior Courts, is not commenced there, but by plaint in the County Court or Lord's Court; from thence it is removed into one of the Superior Courts by a writ of recordari facias loquelam from the County, or accedas ad Curiam from the Lord's Court. In form it is an action ex delicto for the recovery of damages for an illegal taking and detaining of goods and chattels (d). The only mixed action that it is necessary to mention, which, indeed, was originally merely a personal action, is the action of eject[*225] ment; it will be decsribed in a future page. * The characteristics of actions to try the right of property, as distinguished from those in which the right to possession only was the subject, (the former being prosecuted by writs of right (e), the latter by writs of entry, or by way of assize of novel disseisin,) and the various points of similarity between the English and Roman mode of procedure in real actions (or, as they are called in the Mirror, "feodal actions”) (ƒ), have been referred to generally in the preceding Chapter. The distinction between real actions, that is, those relating to freehold founded on possession or seisin, and those founded on the absolute right, may be stated thus: when the possession (which was always primâ where it was adopted; it had its force solely from usage and common consent, for "Sola Anglia usa est in suis finibus, jure non scripto et consuetudine, in ea quidem ex non scripto jus venit quod usus comprobavit." Bracton, fo. 1, a. The evidence of that consent was the decisions of the judges in the king's courts, and the treatises of Glanville, Bracton, &c. (a) Tidd's Pr. i. p. 1. 5. (b) In detinue the value is always ascer tained by the verdict, and judgment is given for the value if the things cannot be had, and also damages for the detention, Warren, p. 481. (c) Steph. on Plead. 5 ed. 14-18; and as to Detinue, see 3 Bla. Comm. 152. (d) Steph. on Plead. 19, 20. (e) "Super ipsa proprietate per breve de recto," Bract. 105 b. (f) c. ii. § 6. 3 Bla. Comm. 117. Distinction between real Actions founded on Possession, and on Right. 225 facie evidence of ownership), had only been recently lost, the former might be resorted to; but when by negligence or accident the disseisor, or intruder, or his descendants or alienees, had been so long in the possession and enjoyment of the estate as to give them the prima facie title, then the more solemn proceeding of a writ of right, in which the absolute right of ownership was the only question tried, was required to be resorted to. This distinction was founded on a rule of policy which was intended to promote that settled state of possessions, which in later times statutes of limitation have better secured (a) in the reign of Hen. VIII. the time within which actions, whether founded on possession (b), or on the right of property (c), could be brought, was limited by statute. I have not followed out the resemblance between the Roman and English real actions, as it would not be of any practical utility, scarcely of any interest, all real actions except two (d), which are not much in use, having, as has already been mentioned, been abolished by the recent statute 3 & 4 Will. IV. c. 27, s. 36. In what follows I shall confine myself to personal actions, and the mixed action of ejectment. No action in the King's Courts could be commenced without a writ. *This writ was in the form of a precept or mandate from the [226] King, under the great seal, addressed to the sheriff of the county in which the cause of action arose, or where the defendant resided, commanding him to cause the party complained of to appear in the King's Court at a certain day, to answer the complaint (e). Every writ was founded on some principle of law-regula juris-which gave the right on which the action was founded; and the facts were stated with so much of detail only as to bring the case within such principle of law (f). There were some writs framed to meet cases of ordinary occurrence, which might be obtained, as of course, de cursu; these could not be changed (g). As new circumstances arose, new writs were framed to (a) See 3 Bla. Comm. 185. 190. and Hayes, Introduction, 1. 227. The right to prosecute an action founded on possession or seizin, began where the right to enter ceased, the right to prosecute an action founded on the right of ownership, commenced when the right to bring an action founded on possession or seizin only, had ceased. Possession acquired in an action founded on seizin, might be displaced in a subsequent action founded on the mere right, 3 Bla. Comm. 194. (b) 3 Bla. Comm. 189. (c) 3 Bla. Comm. 193-196. By 32 Hen. VIII. c. 2, sixty years was the time limited for a writ of right. As to the statutes in force for the Limitation of Actions, v. infra. Chap. x. (d) Writs of Dower and quare impedit. The action of ejectment could not be ac commodated so as to try the peculiar rights which were the subjects of these actions. There are two distinct writs of Dower. (e) "Quia non potest quis sine brevi agere," Bract. 413 b. § 2-" Ne mutari possit petentis intentio, vel modus petendi," ibid. 112 a. This was expressly enacted as regards questions relating to freehold, by Stat. 52, Hen. III. c. 52. See 2 Inst. 142. (f)" Breve quidem, cum sit formatum ad similitudinem regulæ juris, quia breviter et paucis verbis intentionem proferentis exponit, et explanat, sicut regula juris; rem quæ est breviter narrat-non tamen ita breve esse debeat, quia rationem et vim intentionis contineat," Bract. 413 b. "Intentio" is here used in the technical sense, in which it is used by Gaius in describing formulæ, v. supra, p. 211. (g) "Et sunt quædam brevia formata super certis casibus de cursu, et de communi consilio totius regni concessa et approbata, quæ quidem nullatenus mutari poterint absque consensu et voluntate eorum," Bract. 413 b. What is meant by commune consilium will be explained in a 226 Original Writs-Writs de Cursu-Register of Writs. meet them, by the King with the consent of his Council; indeed, if a writ were issued from the Chancery, where all writs were framed, by the King's authority only, and was not objected to by the Council, it became a sufficient precedent (a). These writs were returnable, that is, the sheriff was required to make a return of what he had done in obedience to them, in the King's Court; namely, as regards all real, and all personal actions not savoring of a criminal nature, in the Court of Common Pleas ; in actions for trespasses, and other injuries committed vi et armis, forgery and all other cases which were of a criminal nature, in the Court of King's Bench (b); and as the King's Courts had, as already observed, become for almost all purposes the only courts for the determination of civil suits, the King became, in fact as well as in name, the fountain of justice (c). This *by many of the early kings, even after the right had been dis[*227] avowed by the repeated confirmations of Magna Charta (d), was turned to a source of profit to the King by the exaction of fees or fines (e) from the plaintiff, particularly upon writs founded on Common pleas, as distinguished from those which concerned the King as the head of the state, and which latter were cognizable in the Court of King's Bench (f).—Originally, the applicant had to find pledges to prosecute his suit, and had to swear to the truth of his allegations (g). A register of these writs was framed, and kept in the Chancery (h), and they were regarded as one main foundation of the Common Law in subsequent chapter. According to Lord Coke, in the reign of Edward I. the consilium for matters of law, was the judges, Co. Litt. 304 a. (a) "Si autem prætor jus fuerit [breve] impetratum, dum tamen fuerit rationi consonum, et non juri contrarium, erit sustinendum; dum tamen a rege concessum et a consilio suo approbatum: nec refert utrum magnates expressè non præbuerint assensum, dum tamen expressè non dissentiverint nec ostensa ratione sufficienti, quare valere non debeat. Pertinet enim ad Regem, ad quamlibet injuriam compescendam, remedium competens adhibere. Brevia tamen communia inter omnes pro jure generaliter debent observari, cum sint originalia et actionibus originem præstant," Bracton, 414 b. Fulbeck in his parallel,-the compiler of Bacon's Abridgment,-Sir Wm. Blackstone, iii. p. 116,-indeed almost all the elementary writers on the law, give the same reasons for the introduction of proceedings by action and writ as the Roman Jurists. Sir Wm. Blackstone expressly quotes the passage in Cicero pro Qu. Roscio, § 8. et v. de Offic. iii. § 4. (b) These writs were never returnable in the Exchequer, 1 Rep. C. L. Com. p. 79. (c) Britton, cap. 1. "As it was for the king to determine," say the Common Law Commissioners in their first report, "upon what kind of complaints he would administer justice in his own court, and what species of redress he would afford there, the mandate contained a specification of the plaintiff's demand, and indicated the nature of the remedy," 1 Rep. of Common Law Com. p. 79. (d) "Nulli vendemus, nulli negabimus aut differemus rectum vel justitiam," Magna Charta of John. "Le Roy," says C. J. Dyer, "seant personally en la Chancery dit, nulli vendemus," &c. Dyer, Rep. 104 b. (e) To purchase a writ was a common expression in the time of Edw. I. Britton, c. 84; though it seems that in the time of Edw. III. writs of course issued without fine, Parke's Hist. of C. of Chan. p. 37. It was partly to afford the means of escaping from the payment of these fines that the Court of King's Bench invented the proceeding by a judicial writ (v. Bracton, 413 a.), called a Bill of Middlesex, the county in which that Court usually sat; and the Court of Common Pleas invented the writ of capias quare clausum fregit, also a judicial writ, founded on a supposed original. See Crabbe's Hist. of the C. Law, p. 546. These contrivances, as before mentioned, supra, p. 114, are now at an end. "Pro (f) Rep. Comm. L. Com. 79. celeriori justitia habenda," Fleta, ii. c. 13. (g) Sir F. Palgrave on the Council, p. 15. (h) The Stat. of Wales, 12 Edw. I. c. 7. Stat. of the R. 1. p. 60-66, contains a full account of the nature of the writs then in use, indeed of the whole course of procedure in civil actions. Writ the Foundation of Jurisdiction-Pleadings-Declaration. 227 civil cases (a). No cases are even now considered as within the scope of judicial remedy by the English law, but those to which some known original writ (when those instruments were in universal use) would have applied, or for which some new original writ, framed by analogy to those already existing, might, under the provisions of the Statute of Westminster the Second (which will presently be noticed), have been lawfully devised: the enumeration of writs, and that of actions, have become in this manner identical (b). But the writ and right of action were not identical; a man might lose his writ, and retain his right of action (c). The writ, like the Roman formula, alone gave jurisdiction to the justices, and equally defined its limits (d). The defendant, on being served with the writ, was bound to appear; on *default he was liable to be taken by the sheriff, and brought [228] up to answer the plaintiff (e); now the plaintiff enters an appearance for him. The next step in the progress of a suit was a declaration or count, made by the party verbally as it is supposed according to the ancient practice, but delivered in writing according to the later practice. The declaration was an exposition of the writ, and added time, place, and circumstances (f). As the writ must be conformable to the right of action, so it was necessary that the declaration should precisely follow the writ (g). Now the declaration follows the writ of summons. In early times the plaintiff, on delivering his declaration, had to produce a sufficient number of witnesses to give credibility to his demand: this was called his secta, or suit (h). These persons were originally examined by the court, and if they established a prima facie case, the defendant in some cases-that is, where the action was brought upon such matters as might be supposed to have been privately transacted between the parties to the transaction, and there was no authentic evidence of the demand, as where it arose on a contract without deed-was permitted to wage his law; which meant, that he might meet the demand by himself, swearing that the debt was not due, confirming his (a) "The common law is curious in observing the forms in the Register," 8 Co. Rep. 592; et v. ib. 158-9, where the old doctrine as to amendments under Stat. 8 Hen. VI. c. 12 is stated. The Register was first published in the reign of Henry VIII. (b) Stephen on Pleading, p. 9, (who refers to the table of actions in Comyn's Digest, Action, D. 2,) and see p. 12. (c) Bracton, 104 a. § 8, &c. Fleta, vi. 50, 5. There was the same distinction between the formula and the Action, Vinn. in Just. Inst. p. 775. (d) "Habet etiam curiam suam et justiciarios suos residentes, qui potestatem habent de omnibus placitis et actionibus realibas et personalibus et mixtis; dum tamen warrantum per breve Regis habuerint cognoscendi; nam sine warranto, jurisdictionem non habent neque cohertionem," Fleta, ii. c. 34. de Just. de Banco. But, as will be mentioned in the next Chapter, a form of action came into use called the action of assumpsit, in which great latitude was allowed to the judges. (e) 3 Bla. Comm. 282, by Steph. 575. The English system at Common Law, and in the Court of Chancery, departs from that of the Romans, in regard to compelling appearance. The actor himself had to compel the appearance of the reus or defendant (in jus vocare). See Tigerström de Judicibus, p. 24, and the authorities. (f) Co. Litt. 304 a; Stephen on Plead. (1843), p. 29, 30. (g) Bracton, 413 a, 415 a. "Aut cadit breve." By 1 & 2 Vic. 110, a writ of summons has been substituted for the old original writs. (h) Fleta, ii. 63. § 10; 3 Bl. Comm. 295. 344. The secta had become merely formal in the reign of Edw. III., Selden's notes on Fortescue, c. xxi. p. 22; but even now the formal words "and therefore he brings his suit, &c.," are inserted in declarations. |