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The forms of the ordinary writ of summons, and the specially indorsed writ, and the writs for service out of the jurisdiction, though in other respects they may differ, have this feature in common, that they require the defendant to cause an appearance to be entered for him in the court out of which the writ issues in the action at the suit of the plaintiff within a certain time after service of the writ, and give him notice that in default of his doing so, the plaintiff may proceed to judgment and execution (?). The time within which an appearance is required to be entered is, in the case of the writs for service. within the jurisdiction, a fixed period of eight days after the service of the writ, inclusive of the day of such service; but in writs for service out of the jurisdiction, the time for appearance is regulated by the distance from England of the place where the defendant resides. It may here be observed with regard to proceeding to "judgment and execution," that in the case of a defendant who is out of the jurisdiction, "execution" can only issue against property which he may have in this country.
The original writ of summons is in force for six (m) * months (n) [*315] only from the day of its date. Concurrent writs (0) may, however, be issued, certain prescribed formalities being complied with; these concurrent writs bearing the same date as the original writ, but being only in force for the period during which the original writ is in force. The use of a concurrent writ is to give a better opportunity of serving the defendant or defendants in the action than a simple writ would afford. For instance, the ordinary writ of summons for service within the jurisdiction may be served in any county, but if the defendant be found to be residing abroad (p), a concurrent writ may issue for service out of the jurisdiction for the purpose of reaching him there. The original writ must be served within six months from the date unless it be renewed, as it may be with certain formalities prescribed by the Act (9) before the expiration of the six months, and such renewal may be repeated from time to time. In this way an action may be commenced and kept alive for years, and when service is ultimately effected, be it sooner or later, the commencement of the action against the defendant is the original writ of summons, which remains in force, and is available to prevent the operation of any statute whereby the time for the commencement of the action may be limited, and for all other purposes from the date of the issuing of the original writ of summons. The service of the writ of summons must, whenever it is practicable, be personal (r) (personal service being effected by informing the defendant of the writ, and at the same time delivering a copy of it to him, and showing the * original if demanded (8)), and though provisions are made for pro- [*316] ceeding in the action where personal service cannot be effected, but the defendant knows of the writ and evades the service, yet this is matter of special application to the court or a judge, and it is only on being satisfied by affidavit that reasonable efforts have been made to effect personal service, and
(4) Com. Law Proc. Act, 1852, Sched. (A.).
(0) Com. Law Proc. Act, 1852, ss. 9, 22.
tion may be concurrent with a writ for service
(q) Com. Law Proc. Act, 1852, s. 11.
(8) An indorsement of the day of service must be made on the writ by the person serving it, s. 15.
either that the writ has come to the knowledge of the defendant, or that he wilfully evades the service of the same, and has not appeared thereto, that an order will be granted by the court or a judge, that the plaintiff be at liberty to proceed as if personal service had been effected, subject to such conditions as to the court or judge may seem fit (†).
The foregoing observations indicate the strict course of proceeding at the commencement of an action. It is very usual, however, for the necessity of personal service to be obviated by the defendant's attorney undertaking to appear for him (u). It should also be observed that application for payment of a money demand or for redress of an injury, almost always, except in cases of urgency, precedes the actual issue of the process by which the action is commenced, and that in some cases of an exceptional character a formal step, preliminary to the issue of the writ is necessary, as for instance, where in an action against a person in office, or engaged in the execution of public works, a formal notice of action is by some express statutory enactment rendered necessary before the issuing of the writ.
[*317] *The power of proceeding by action in this country against a defendant out of the jurisdiction, was first given by the Procedure Act of 1852 (x). It does not extend to a defendant, being a British subject, residing in Scotland or Ireland, and is limited to those cases where there is a cause of action which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction, and is carefully guarded throughout by provisions directed against any unfair advantage being taken of the defendant by reason of his absence from this country. As well in an action against a British subject residing out of the jurisdiction as in an action against a foreigner so residing, where the defendant has failed to appear within the time limited for that purpose, the plaintiff can only proceed by leave of the court or a judge, who, upon being satisfied by affidavit that there is a cause of action which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction, and that the writ was personally served upon the defendant, or that reasonable efforts were made to effect personal service thereof upon the defendant, and that it came to his knowledge, and either that the defendant wilfully neglects to appear to such writ, or that he is living out of the jurisdiction of the court in order to defeat and delay his creditors, may direct, from time to time, that the plaintiff shall be at liberty to proceed in the action in such manner, and subject to such conditions as to such court or judge may seem fit, having regard to the time allowed for the defendant to appear being reasonable, and to the other circumstances of the case; it being also provided and required of the plaintiff that he prove the amount of the debt or damages claimed by him in such action, either before a jury, upon a writ of inquiry, or before one of the masters of the superior courts, in the manner provided in the Act, according to the nature of
(t) There are special provisions enacted by various statutes for the service of the writ of summons in particular cases, where the defendants are some public body or company. Service on some particular official, or by leaving the writ at a particular office of the public body or company being usually provided for. See, for example, Com. Law
Proc. Act, 1852, s. 16. Comp. Clauses Consolidation Act, 1845, s. 135; and the Companies Act of 1862, s. 64.
(u) An undertaking of this kind is enforceable by attachment. See Reg. Gen. Hil. T. 1853, r. 8.
(x) Com. Law Proc. Act, 1852, ss. 18, 19.
the case, as such court or a judge may direct, and the making such proof is a condition precedent to his obtaining judgment (y). The provisions in the Common Law Procedure Act, 1852, for meeting the case of wilful evasion of the service of the writ of summons, and for service out of the jurisdiction, have taken the place of certain very technical proceedings by distringas to compel an appearance, and outlawry on mesne process, which have been abolished from the time of that Act (z). An absconding debtor may, however, still be arrested under the stats. 1 & 2 Vict. c. 110, and 14 & 15 Vict. c. 52.
The appearance to a writ of summons is made by delivering to the proper officer of the court a memorandum in the form given by s. 31 of the Procedure Act of 1852.
As regards appearance, it is noticeable that special provisions are made by s. 33 of the above Act for proceedings where only some of several defendants appear to a writ specially indorsed. The plaintiff may either sign judgment against the defendants who have not appeared, and issue execution against them, before declaring against the defendants who have appeared, in which case he will be taken to have abandoned his action against the latter, or he may, before issuing execution, declare against those who have appeared, stating, by way of suggestion, the judgment against those defendants who have not appeared, in which case the judgment so obtained against the defendant or defendants who have not appeared will operate and take effect in like manner as a judgment by default obtained against one or more of several defendants in an action of debt before the commencement of the Act. If the plaintiff elect to declare against those who have appeared, it is at the risk of having to prove the contract by all. He must allege, and if it is put in issue must prove (a) * at the trial a joint contract by all the defendants in the action (i. e., both those who have and those who have not appeared), and if he fail to do so, the verdict at the trial will be against him, and he cannot have execution even against those who have let judgment go by default. The foregoing observations are made without reference to the exercise of the power of amendment which may or may not, under the circumstances of the particular case be exercisable for curing a misjoinder of the parties.
With regard to the joinder of parties in actions we may observe as follows: The non-joinder or misjoinder of plaintiffs and the misjoinder of defendants used formerly, before the Common Law Procedure Act of 1852, very frequently to give rise at the trial of a cause to objections which were fatal to proceedings on the part of the plaintiff, so that he entirely lost his action, and had his own and the defendant's costs to pay after all the expenses had been incurred preparatory to the trial, and the main expenses of the trial itself. Though the same principles must in general be applied now as formerly for determining who ought and who ought not to be joined in an action, yet for remedying the mischief above adverted to, powers of amendment (before or at the trial) of non-joinder and misjoinder are provided by ss. 34 & 35 of the Common Law Procedure Act, 1852 (b), accompanied with limitations
(y) See, also, the penal provisions contained in s. 23 of the Com. Law Proc. Act, 1852, against false affidavits of service, or the fraudulent use of them. (2) See sect. 24.
(a) See an instance, Robeson v. Ganderton, 9 C. & P. 476.
(b) And see the further provisions of the Com. Law Proc. Act, 1860, s. 19, for bringing actions in the names of all the persons in
and conditions guarding against injustice being done to any party by reason of their exercise.
Before entering further on the course of proceeding in an action, the different forms of personal actions may be shortly noticed. We have seen that it is no longer necessary to mention any form of action in the writ of * summons, and in the statements of causes of action given by sched[*320] ule (B.) of the Act of 1852 as examples of the mode of preparing such statements no mention whatever is made of any form of action, and this harmonises with those provisions of the Act which allow of different causes of action being joined in the same suit (c) without reference to the forms of action to which they belong. Formerly it was matter of great importance, and sometimes of great nicety, to select the form of action applicable to the particular cause of action sued on, and not to include in the same action causes of action belonging to different forms; and an error in that respect might have proved fatal to the proceedings on grounds quite beside the real merits of the case. The remedial provisions of the Common Law Procedure Act, 1852, have on that head practically removed any danger of an action [*321] being defeated on grounds purely technical. But though forms of action are no longer a part of the visible machinery in the writ and pleadings, and are no longer allowed to intervene as an element of mischief in the proceedings in an action, they are still retained so far as they are beneficial, and are frequently referred to in arguments relating to legal wrongs as throwing light upon the question whether on a given state of facts there is any remedy or right of action at law. (577)
whom the legal right may be supposed to exist; and for judgment being given for one or more of the plaintiffs by whom the action is brought; the defendant, though unsuc cessful, being entitled to his costs occasioned by joining any person or persons in whose favour judgment is not given, unless otherwise ordered by the court or a judge.
(c) By the C. L. Proc. Act, 1852, s. 41, "Causes of action, of whatever kind, provided they be by and against the same parties and in the same rights, may be joined in the same suit; but this shall not extend to replevin or ejectment; and where two or more of the causes of action so joined are local, and arise in different counties, the venue may be laid in either of such counties; but the court or a judge shall have power to prevent the trial of different causes of action together, if such trial would be inexpedient, and in such case such court or judge may order separate records to be made up, and separate trials to be had."
The above provision that the cause of action must be against the same parties and
in the same rights goes to the character in which the plaintiff or defendant sues or is sued-not to the form of action-for instance, an executor or administrator cannot sue in the same action for a claim in his representative capacity jointly with one which is quite irrespective of it, and which he makes in his own right, ex. gr., he cannot join a claim for the price of goods sold by the testator or intestate with a claim for the price of his own goods sold by himself, neither can he be sued in the same action for money lent to the testator or intestate and for money lent to himself. There is, in the same act, a special clause (s. 40) as to joinder of claims by husband and wife with claims in right of husband for injury done to the latter. Where the injury which the wife complained of was some bodily injury, and a bill was incurred for medical attendance, the husband had to sue separately for the expenses incurred, but now he need no longer do so.
As to an action by husband and wife jointly, ante, p. 150; vol. i., chap. xv.
(577) In many of the States the procedure in an action at law is now substantially the same as that described in the text. New York was the first of the States to abolish the forms of actions and pleadings at common law; and to substitute there for a code of practice which, in a modified form, has since been adopted in several of the other States. In the state of its origin the provisions of this Code took effect July 1st, 1848. The 69th section provides that "the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and there shall be in this State, hereafter, but one form of action for the enforcement or protection of private rights, and the
The forms of the ordinary personal actions are assumpsit, debt, covenant, trespass, case, trover, detinue, and replevin.
Assumpsit lies for the breach of a contract not under seal; it sounds in damages, that is, it is essentially an action for damages, but these may include a liquidated as well as an unliquidated demand. Thus assumpsit might be brought simply for the price of goods sold, in which case the price to be paid measures the damages to be recovered; or it might be brought for breach of a warranty where the damages are necessarily left at large, and must be assessed on evidence of circumstances which show the loss sustained.
Debt is an action to recover a liquidated or certain sum of money owing from one man to another whether on a specialty (c), or by simple contract (d), or statute (e), or record (f), and lies wherever there is a direct and [*322] immediate liability to pay. The action of debt does not sound in damages, the recovery of the debt, qua debt, being the main object of the action, though nominal damages may be given for its detention-and sometimes damages more than nominal may in respect of such detention be recovered; for example, in those cases where interest, though not reserved in the contract out of which the debt arose, is by law allowed. It has been observed that in debt the liability to pay must be immediate and direct, and on this head nice distinctions prevailed. It was held, for example, that debt would not lie on a collateral covenant to pay a sum of money on default of another person, but
(c) A debt by specialty, or special contract, is where a sum of money becomes, or is acknowledged to be, due, by deed or instrument under seal. Such as, by covenant, by deed of sale, by lease reserving rent, by bond or obligation: which last (as shown in vol. ii.), is a creation or acknowledgment of a debt from the obligor to the obligee, unless the obligor performs a condition thereunto usually annexed, as the payment of rent or money borrowed, the observance of a covenant, and the like; on failure of which the bond becomes forfeited and the debt becomes due in law.
(d) A debt by simple contract is where the contract upon which the obligation arises is neither ascertained by matter of record, nor yet by deed or special instrument, but by mere oral evidence, the most simple of any; or by writing unsealed, which is capable of a more easy proof, and therefore better, than a mere verbal promise.
(e) Where a penalty is recoverable by statute, debt may be made applicable either for the party aggrieved, or for the plaintiff in the action, or for the crown and the plaintiff. Further, an action for damages may some
times lie against the hundred or other district in which an offence occurred, with a view to enforcing compensation to the plaintiff who has been damnified thereby. See, ex. gr., 7 & 8 Geo. 4, c. 31, ss. 2, 3; 2 & 3 Will. 4, c. 72; 9 & 10 Vict. c. 99, s. 44.
(f) A debt of record is a sum of money which appears to be due by the evidence of a court of record. Thus, when any specific sum is adjudged to be due from the defendant to the plaintiff in an action or suit at law; this is a contract of the highest nature, being established by the sentence of a court of judicature. A debt upon recognisance is also a sum of money, recognised or acknowledged to be due to the crown or a subject, in the presence of some court or magistrate, with a condition that such acknowledgment shall be void upon the appearance of the party, his good behaviour, or the like: and this, like the old statute-merchant and statute-staple, &c., if forfeited by non-performance of the condition, is also ranked among the first and principal class of debts, viz., debts of record; since the contract on which it is founded is witnessed by the highest kind of evidence, viz., by matter of record.
redress of private wrongs, which shall be denominated a civil action." N. Y. Code of Procedure, § 69. But notwithstanding this sweeping provision it has been well settled, that the legislature could only affect the mere forms of action, and that no law could abolish or change the intrinsic difference between the varying natures of actions themselves; and that the fundamental prerogative of the court of equity to use a discretionary power to adapt its judgments for relief to the particular circumstances of each case remained unchanged. Paul v. Parshall, 14 Abb. N. S. 138; Vermilyea v. Palmer, 52 N. Y. (7 Sick.) 471; Lattin v. McCarty, 41 N. Y. (2 Hand) 107; Hubbell v. Sibley, 50 N. Y. (5 Sick.) 468; Goulet v. Asseler, 22 N. Y. (8 Smith) 225. See, generally, as to the commencement of actions under the system of practice inaugurated by the Code, 1 Wait's Pr. 467 et seq.