Explain the methods of Redressing such Injuries as the Crown may receive from the subject. They are redressed -1. By certain common-law actions such as quare impedit or trespass, which are deemed not inconsistent with the Royal prerogative and dignity of the Crown. 2. By inquisition or inquest of office, which is an inquiry made by the Sovereign's officer, or escheator, or by writ sent for that purpose; or by commissioners specially appointed, concerning any matter that entitles the Sovereign to the possession of land or tenements, goods or chattels. This is done by a jury of no determinate number, being either twelve, or less, or more. 3. By writ of scire facias in Chancery, where the Crown has unadvisedly granted any exclusive privilege by letters-patent, which ought not to have been granted; or, where the patentee has done an act that amounts to a forfeiture of the grant. 4. By information on behalf of the Crown, filed in the Exchequer by the Attorney-General—a method of suit for recovering money or other chattels, or for obtaining satisfaction in damages for any personal wrong committed on the lands or other possessions of the Crown. 5. By writ of quo warranto, which is in the nature of a writ of right for the Crown against him who has claimed or usurped any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the right. The more modern method of prosecution now is by information filed in the Court of Queen's Bench by the Attorney-General, in the nature of a writ of quo warranto, which is properly a criminal method of prosecution, as well to punish the usurper by a fine for usurpation of the franchise, as to oust him, or seize it for the Crown. This proceeding is now applied to the decision of corporate disputes between party and party, by filing an information in the nature of quo warranto, against any person usurping or unlawfully holding any franchise or office in any city, borough, or town corporate.* 6. By the prerogative writ of mandamus, which issues out of the Court of Queen's Bench, and is directed to a person, corporation, or court, and in the Sovereign's name commands such person, body * See 7 Wm. IV. & 1 Vict., c. 78; and 6 & 7 Vict., c. 89. corporate, or tribunal to do a certain specified act, as matter of duty, agreeably to right and justice. It is a remedial writ of a very extensive nature, and is chiefly confined to cases where relief is required in respect of the infringement of some public right or duty, and where none can be obtained by an action at law. Whenever the law requires a thing to be done, and the public at large are interested, a mandamus will issue to order it to be done by the person upon whom the obligation of doing it is imposed. A party applying for a mandamus must make out a legal right and a legal obligation; and if he shows such right, it is sufficient. A legal obligation which is the proper foundation for a mandamus can only arise from common law, from statute, or from contract; and if a writ of mandamus commands the defendant to do more than he is under a legal obligation to perform, the writ is invalid; and where a mandamus orders several things to be done and is bad in respect of one of the things commanded, it is bad in toto.* * The provisions of the Common Law Procedure Act, 1852 and 1854, apply to the proceedings and pleadings upon a prerogative writ of mandamus issued by the Court of Queen's Bench. CHAPTER X. PURSUIT OF REMEDIES BY ACTION. Having considered the Injuries cognizable by the Courts of Common Law, let us now investigate the Remedies by Action, and the manner in which those several remedies are pursued and applied, and the course of proceedings in the Courts of Common Law. Give briefly a general account of an "Action at Law," and explain the method of proceeding in, and prosecuting an action upon any of the "personal" writs before mentioned. An Action at Law. An Action at Law is the form prescribed by law for the recovery of one's due; or the lawful demand of one's right. Actions are real, mixed, or personal. REAL ACTIONS were those brought for the recovery of real property only; but now, as before stated,* by action of ejectment; mixed, for the recovery of real property and damages for its being wrongfully withholden; while personal actions extend to all claims for money due on contracts, or for damages for breach of contract, or injury to person or property, and also to the recovery of specific goods and chattels. Personal actions, therefore, embrace a conspicuous range of those civil differences that become the subject of litigation. The forms of the ordinary PERSONAL ACTIONS are assumpsit, debt, covenant, trespass, case, trover, detinuè, and replevin, which have been already explained. The ordinary and regular steps in an "Action at Law" are: * See page 239. I. The Process. The first step to be taken in an action is, by issuing a summons for the party to appear, by himself or attorney, in the Court in which the action is intended to be carried on. This is effected by a writ of summons, which, if for the recovery of an ascertained amount, is indorsed with the statement of the grounds of claim or cause of action, and must be indorsed with the name and place of abode of the attorney actually suing it out; or, the address of the plaintiff, if it be sued out by him in person. It may be issued at the option of the plaintiff out of any one of the superior Courts of common law, viz., the Queen's Bench, the Common Pleas, or the Exchequer, except in cases within the exclusive jurisdiction of the county courts. The service of the writ, whenever it is practicable, must be personal. If the defendant, after reasonable efforts have been made to effect personal service, fails to appear, a judge of the court in which the action is brought may direct that the plaintiff shall be at liberty to enter an appearance for the defendant, and proceed in the action as if personal service had been effected.* II. The Declaration. When the defendant appears to the writ, or an appearance is entered for him, formal pleadings preparatory to the trial commence. The successive steps are :-- The Declaration, which contains the cause of action for which the plaintiff sues. It must omit no allegation that is material to the cause of action, and must also state the venue; that is, the county in which it is intended that the action shall be tried. This is of two kinds: transitory or local. Transitory for injuries that might have happened anywhere, in which case the plaintiff may adopt any county he pleases as a venue; local when the cause of action has arisen in a particular place or county, and then the venue must be laid in that county; but the court may allow a suggestion to be entered on the record for the trial of the cause in another county. * The Common Law Procedure Acts of 1852, 1854, and 1860 render actions in superior courts of Common Law much more simple and speedy than formerly. The remedial provisions of these Acts have practically removed any danger of an action being defeated on grounds purely technical, and they have swept away needless and fictitious averments altogether. See 15 & 16 Vict., c. 76; 17 & 18 Vict., c. 125; 23 & 24 Vict., c. 126, amended by 30 & 31 Vict., c. 142, s. 43. ૨ When the plaintiff has stated his case in the declaration, it is incumbent on the defendant, within the time prescribed, to make his defence, and plead to it. III. The Subsequent Pleadings. If the declaration contains matter insufficient in point of law to support the plaintiff's case, the defendant's course is to file a demurrer, which is argued before the court; if sufficient, he files a plea, which is the defendant's answer to the declaration, and is either a plea in abatement or a plea in bar. A plea in abatement does not contain an answer to the cause of action, but shows some defect or informality, and makes prayer to that effect. This is argued and determined by the court. A plea in bar is a peremptory and substantial answer to the action, which is either a plea in traverse or a plea in confession and avoidance; that is, denying or showing justification or excuse for the matter charged in the declaration. This raises an issue of fact, and is tried by a jury. Pleas that totally deny the cause of complaint are either the general issue or a special plea. The general issue or general plea traverses and denies the whole declaration, and the litigants are then said to be at issue, and being thus apprised of the exact question in dispute, they can now prepare their proofs in support of their respective cases. Pleadings must neither be double, nor repugnant. Duplicity occurs when the narratio, or declaration, alleges several causes of action in support of the same demand. Repugnancy is when the different allegations are inconsistent with each other. Prolixity must be avoided; also verbosity, vagueness, and argumentativeness. The great attributes of pleading are certainty, brevity, and precision. The replication follows the plea, containing the plaintiff's answer to the plea. A rejoinder is the defendant's answer to the replication; there then may be a surrejoinder, and a rebutter. At each of these steps the party replying, rejoining, or framing any other pleading, must either traverse or confess and avoid; that is, must either deny some material part of the adversary's |