PRIVATE WRONGS.
BOOK III.

CHAPTER THE EIGHTEENTH.

OF THE PURSUIT OF REMEDIES BY ACTION;
AND, FIRFT, OF THE ORIGINAL WRIT.

HAVING, under the head of redrefs by fuit in courts, pointed out in the preceding pages, in the firft place, the nature and feveral fpecies of courts of juftice, wherein remedies are adminiftred for all forts of private wrongs; and, in the fecond place, fhewn to which of thefe courts in particular application muft be made for redrefs, according to the diftinction of juftice, or, in other words, what wrongs are cognizable by one court, and what by another; I proceeded, under the title of injuries cognizable by the courts of common law, to define and explain the fpecifical remedies by action, provided for every poffible degree of wrong or injury; as well fuch remedies as are dormant and out of ufe, as thofe which are in every day's practice, apprehending that the reafon of the one could never be clearly comprehended, without fome acquaintance with the other: and, I am now, in the laft place, to examine the manner in which thefe feveral remedies are purfued and applied, by action in the courts of common law; to which I fhall afterwards fubjoin a brief account of the proceedings in courts of equity.
IN
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IN treating of remedies by action at common law, I fhall confine myfelf to the modern method of practice in our courts of judicature. For, though I thought it neceffary to throw out a few obfervations on the nature of real actions, however 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 thofe remedial writs; yet it would be too irkfome a tafk to perplex both my readers and myfelf with explaining all the rules of proceeding in thefe obfolete actions; which are frequently mere pofitive eftablifhments, 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 perfonal writs we have before fpoken of, in the court of common pleas at Weftminfter; 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 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 al of them. So that, in giving an abftract or hiftory ^a of the progrefs of a fuit through the court of common pleas, we

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^a In deducing this hiftory the ftudent muft not expect authorities to be conftantly cited; as practical knowlege is not fo 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
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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 abftract 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 moft natural and perfpicuous way of confidering the fubject before us, will be (I apprehend) to purfue it is the order and method wherein the proceedings themfelves follow each other; rather than to diftract 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 iffue 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 himfelf, or take advice, what redrefs the law has given for that injury; and thereupon is to

ftudious to avoid, where thofe of any other might be had. To accompany and illuftrate thefe remarks, fuch gentlemen as are defigned for the poffeffion will find it neceffary to perufe the books of entries, antient and modern; which are tranfcripts of proceedings that have been had in fome particular actions. A book or two of technical learning will alfo be found very convenient; from which a man of a liberal education and tolerable underftanding may glean pro re nata as much as is fufficient for his purpofe. Thefe books of practice, as they are called, are all pretty much on a level, in point of compofition and folid inftruction; fo that that which bears the lateft edition is ufually the beft. But Gilbert's hiftory and practice of the court of common pleas is a book of a very different ftamp: and though (like the reft of his pofthumous works) it has fuffered moft grofsly by ignorant or carelefs tranfcribers, yet it has traced out the reafon of many parts of our modern practice, from the feodal inftitutions and the primitive conftruction of our courts, in a moft clear and ingenious manner.
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make
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make application or fuit to the crown, the fountain of all juftice, for that particular fpecific remedy which he is determined or advifed 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 trefpafs vi et armis; or, to try the title of lands, a writ of entry or action of trefpafs in ejectment; or, for any confequential injury received, a fpecial action on the cafe. To this end he is to fue out, or purchafe by paying he ftated fees, an original or original writ, from the court of chancery, which is the officina juftitiae, the fhop or mint of juftice, wherein all the king's writs are framed. It is a mandatory letter from the king in parchment, fealed with his great feal ^b, and directed to the fheriff of the county wherein the injury is committed or fuppofed fo to be, requiring him to command the wrongdoer or party accufed, either to do juftice to the complainant, or elfe to appear in court, and anfwer the accufation againft him. Whatever the fheriff does in purfuance of this writ, he muft return or certify to the court of common pleas, together with the writ itfelf: 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 juftices without his original writ; becaufe they held it unfit that thofe juftices, being only the fubftitutes of the crown, fhould take cognizance of any thing but what was thus expreffly referred to their judgment ^c. However, in fmall 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 fuch fuits continues to be (as in the times of the Saxons) not by original writ, but by plaint ^d; that is, by a private memorial tendered in open court to the judge, wherein the party injured fets forth his caufe of action, and the judge is bound of common right to adminifter juftice therein, without any fpecial mandate from the king. Now indeed even

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^b Finch. L. 237.
^c Flet. l. 2. c. 34.
^d Mirr. c. 2. §. 5.
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VOL. III.

L l

the

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the royal writs are held to be demandable of common right, on paying the ufual 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.”

ORIGINAL writs are either optional or peremptory; or, in the language of our law, they are either a praecipe, or a fi te fecerit fecurum ^e. The praecipe is in the alternative, commanding the defendant to do the thing required, or fhew the reafon wherefore he hath not done it ^f. The ufe of this writ is where fomething certain is demanded by the plaintiff, which is in the power of the defendant himfelf to perform; as, to reftore the poffeffion of land, to pay a certain liquidated debt, to perform a fpecific covenant, to render an account, and the like: in all which cafes the writ is drawn up in the form of a praecipe or command, to do thus or fhew caufe to the contrary; giving the defendant his choice, to redrefs the injury or ftand the fuit. The other fpecies of original writs is called a fi fecerit te fecurum, from the words of the writ, which directs the fheriff to caufe the defenant to appear in court, without any option given him, provided the plaintiff gives the fheriff fecurity effectually to profecute his claim ^g. This writ is in ufe, where nothing is fpecifically demanded, but only a fatisfaction in general; to obtain which and minifter complete redrefs, the intervention of fome judicature is neceffary. Such are writ of trefpafs, or on the cafe, wherein no debt or other fpecific 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; “witnefs ourfelf at Weftminfter,” or wherever the chancery may be held.

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^e Finch. L. 257.
^f Append. No. III. §. 1.
^g Append. No. II. §. 1.
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THE fecurity here fpoken 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 ftanding pledges for this purpofe. The antient ufe of them was to anfwer for the plaintiff; who in cafe he brought an action without caufe, or failed in the profecution of it when brought, was liable to an amercement from the crown for raifing a falfe accufation; and fo the form of the judgment ftill is ^h. In like manner as by the Gothic conftitutions no perfon was permitted to lay a complaint againft another, “nifi fub “fcriptura aut fpecificatione trium teftium, quod actionem vellet perfequi i:” and, as by the laws of Sancho I, king of Portugal, damages were given againft a plaintiff who profecuted a groundlefs action ^k.

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 kings juftices at Weftminfter. And it is always made returnable at the diftance of at leaft fifteen days from the date or tefte, that the defendant may have time to come up to Weftminfter, even from the moft 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 ^l 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 thofe 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 bufinefs. Throughout all chrif-

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^h Finch. L. 189. 252.
ⁱ Stiernh. de jure Gothor. l. 3. c. 7.
^k Mod. Un. Hift. xxii. 45.
^l Jan. Angl. l. 2. §. 9.
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tendom,
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tendom, in very early times, the whole year was one continual term for hearing and deciding caufes. For the chriftian magiftrates, to diftinguifh themfelves from the heathens, who were extremely fuperftitious in the obfervation of their dies fafti et nefafti, went into a contrary extreme, and adminiftred juftice upon all days alike. Till at length the church interpofed and exempted certain holy feafons from being profaned by the tumult of forenfic litigations. As, particularly, the time of advent and chriftmas, which gave rife to the winter vacation; the time of lent and eafter, which created that in the fpring; the time of pentecoft, which produced the third; and the long vacation, between midfummer and michaelmas, which was allowed for the hay time and harveft. All fundays alfo, and fome peculiar feftivals, as the days of the purification, afcenfion and fome others, were included in the fame prohibition; which was eftablifhed by a canon of the church, A. D. 517. and was fortified by an imperial conftitution of the younger Theodofius, comprized in the Theodofian code ^m.

AFTERWARDS, when our own legal conftitution came to be fettled, the commencement and duration of our law terms were appointed with an eye to thofe canonical prohibitions; and it was ordered by the laws of king Edward the confeffor ⁿ, that from advent to the octave of the epiphany, from feptuagefima to the octave of eafter, from the afcenfion to the octave of pentecoft, and from three in the afternoon of all faturdays till monday morning, the peace of God and of holy church fhall be kept throughout all the kingdom. And fo extravagant was afterwards the regard that was paid to thefe holy times, that though the author of the mirror ^o mentions only one vacation of any confiderable length, containing the months of Auguft and September, yet Britton is exprefs ^p, that in the reign of king Edward the firft no fecular plea could be held, nor any man fworn on the

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^m Spelman of the terms.
ⁿ c. 3. de temporibus et diebus pacis.
^o c. 3. §. 8.
^p c. 53.
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evange-
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evangelifts ^q, in the times of advent, lent, pentecoft, harveft and vintage, the days of the great litanies, and all folemn feftivals. But he adds, that the bifhops and prelates did neverthelefs grant difpenfations, (of which many are preferved in Rymer's foedera of the time of king Henry the third) that affifes and juries might be taken in fome of thefe holy feafons upon reafonable occafions. And foon afterwards a general difpenfation was eftablifhed in parliament, by ftatute Weftm. 1. 3 Edw. I. c. 51. which declares, that “forafmuch as it is great charity to do right unto “all men at all times when need fhall be, by the affent of all “the prelates it was provided, that affifes of novel diffeifin, mort “d' anceftor, and darrein prefentment fhould be taken in advent, “feptuagefima, and lent, even as well as inquefts may be taken; “and that at the fpecial requeft of the king to the bifhops.” The portions of time that were not included within thefe prohibited feafons, fell naturally into a fourfold divifion: and, from fome feftival or faint's day that immediately preceded their commencement, were denominated the terms of St. Hilary, of Eafter, of the holy Trinity, and of St. Michael: which terms have been fince regulated and abbreviated by feveral acts of parliament; particularly trinity term by ftatute 32 Hen. VIII. c. 2. and michaelmas term b ftatute 16 Car. I. c. 6. and again by ftatute 24 Geo. II. c. 48.

THERE are in each of thefe terms ftated days called days in bank, dies in banco; that is, days of appearance in the court of common pleas, called ufually bancum, or commune bancum, to diftinguifh it from bancum regis or the court of king's bench. They are generally at the diftance of about a week from each other, and regulated by fome feftival of the church. on fome one of thefe days in bank all original writs muft be made returnable; and therefore they are generally called the returns of that term; whereof every term has more or lefs, faid by the mirror ^r to have been originally fixed by king Alfred, but certainly fettled as early as the ftatute of 51 Hen. III. ft. 2. But though many of the

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^q See pag. 58.
^r c. 5. §. 108.
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return days are fixed upon fundays, yet the court never fits to receive thefe returns till the monday after ^s: and therefore no proceedings can be had, or judgment can be given, or fuppofed to be given, on the funday ^t.

THE firft return in every term is, properly fpeaking, the firft day in that term; as, for inftance, the octave of St. Hilary, or the eighth day inclufive after the feaft of that faint; which falling on the thirteenth of January, the octave therefore or firft day of Hilary term is the twentieth of January. And thereon the court fits to take effoigns, or excufes for fuch as do not appear according to the fummons of the writ: wherefore this is ufually called the effoign day of the term. But the perfon fummoned has three days of grace, beyond the return of the writ, in which to make his appearance; and if he appears on the fourth day inclufive, the quarto die poft, it is fufficient. For our fturdy anceftors held it beneath the condition of a freeman to be obliged to appear, or to do any other act, at the precife time appointed or required. The feodal law therefore always allowed three diftinct days of citation, before the defendant was adjudged contumacious for not appearing ^u: preferving in this refpect the German cuftom, of which Tacitus thus fpeaks ^w, “illud ex libertate “vitium, quod non fimul nec juffi convenient; fed et alter et tertius “dies cunctatione coeuntium abfumitur.” And a fimilar indulgence prevailed in the Gothic conftitution: “illud enim nimiae libertatis “indicium, conceffa toties impunitas non parendi; nec enim trinis jusdicii confeffibus peonam perditae caufae contumax meruit ^x. Therefore at the beginning of each term, the court does not fit for difpatch of bufinefs till the fourth day, as in Hilary term on the twenty third of January; and in Trinity term, by ftatute 32 Hen. VIII. c. 21. not till the fixth day; which is therefore ufually called and fet down in the almanacs as the firft day of the term.

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^s Regiftr. 19. Salk. 627. 6 Mod. 250.
^t 1 Jon. 156. Swann & Broome. B. R. Mich. 5. Geo. III. et in Dom. Proc. 1766.
^u Feud. l. 2. t. 22.
^w de mor. Germ. c. 11.
^x Stiernh. de jure Goth. l. 1. c. 6.
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