our courts of equity, to fhew them their error by fupplying the omiffions of the courts of law. And, fince the new expedients have been refined by the practice of more than a century, and are fufficiently known and understood, they in general anfwer the purpose of doing speedy and substantial juftice, much better than could now be effected by any great fundamental alterations. The only difficulty that attends them arises from their fictions and circuities; but, when once we have discovered the proper clew, that labyrinth is easily pervaded. Our fyftem of remedial law resembles an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their approaches may be winding and difficult. In this part of our difquifitions I however thought it my duty to unfold, as far as intelligibly I could, the nature of thefe real actions, as well as of perfonal remedies. And this not only because they are still in force, ftill the law of the land, though obfolete and difufed; and may perhaps, in their turn, be hereafter with fome neceffary corrections called out again into common ufe; but also because, as a fenfible writer has well obferved, "whoever confiders how great a [269] "coherence there is between the feveral parts of the law, "and how much the reafon of one cafe opens and depends "upon, that of another, will I prefume be far from thinking any of the old learning ufelefs, which will fo much con"duce to the perfect understanding of the modern." And befides I fhould have done great injuftice to the founders of our legal constitution, had I led the ftudent to imagine, that the remedial instruments of our law were originally contrived in fo complicated a form, as we now prefent them to his view: had I, for instance, entirely paffed over the direct and obvious remedies by affifes and writs of entry, and only laid before him the modern method of profecuting a writ of ejectment. ! Hawk, Abr. Co. Litt. pref. CHAPTER THE EIGHTEENTH, OF THE PURSUIT OF REMEDIES BY ACTION; AND FIRST, OF THE ORIGINAL WRIT. HA 'AVING, under the head of redress by fuits in courts, pointed out in the preceding pages, in the first place, the nature and several species of courts of justice, wherein remedies are adminiftered for all forts of private wrongs; and, in the second place, fhewn to which of these courts in particular application must be made for redress, according to the diftinction of injuries, 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 specifical remedies by action provided for every poffible degree of wrong or injury; as well fuch remedies as are dormant and out of use, as those 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 these several remedies are pursued and applied, by action in the courts of common law; to which I fhall afterwards subjoin a brief account of the proceedings in courts of equity. In treating of remedies by action at common law, I shall confine myself 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, how ever at present 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 those remedial writs: yet it would be too irksome a task to perplex both my readers and myself with explaining all the rules of proceeding in these obsolete actions, which are frequently mere pofitive establishments, 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 spoken of, in the court of common pleas at Westminster; that being the court originally constituted 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 neceflities of modern times, have now obtained a concurrent jurisdiction and cognizance of very many 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 respects the fame in all of them. So that, in giving an abstract or history of the progress of a fuit through the court of common pleas, we for the profeffion will find it necessary to perufe the books of entries, antient and modern; which are tranfcripts of proceedings that have been had in fomeparticular actions. A book or two of technical learning will also be found very convenient; from which a man of a liberal edu cation and tolerable understanding may glean pro re nata as much as is fufficient for his purpose. These books of practice, as they are called, are all pretty much on a level, in point of compofition and In deducing this history the ftudent must not expect authorities to be conftantly cited; as practical knowledge is not fo much to be learned from any books of law, as from experience and attendance on the courts. The compiler must therefore be frequently obliged to rely upon his own obfervations; which in general he hath been studious to avoid where thofe of any other might be had. To accompany and illuftrate these remarks, fuch gentlemen as are defigned a BOOK III. fhall at the fame time give a general account of the proceed. ings of the other two courts; taking notice, however, of any confiderable difference in the local practice of each. And the fame abstract 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 stage or other, removed. THE most natural and perfpicuous way of confidering the fubject before us will be (I apprehend) to pursue it in the order and method wherein the proceedings themselves 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 person hath received an injury, and thinks it worth his while to demand a fatisfaction for it, he is to confider with himself, or take advice, what redrefs the law has given for that injury ; and thereupon is to make application or fuit to the crown, the fountain of all juftice, for that particular specific 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 trespass vi et armis; or to try the title of lands, solid instruction; so that that which bears the latest edition is ufually the beft. ButGilbert's biftoryand practice of the court of common pleas is a book of a very differ ent ftamp; and though (like the rest of his pofthumous works) it has fuffered moft grofsly by ignorant or careless tranfcribers, yet it has traced out the reason 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. a writ of entry or action of trefpafs in ejectment; or, for any consequential injury received, a special action on the cafe. To this end he is to fue out, or purchase by paying the stated fees, an original, or original writ, from the court of chancery, which is the officina jufticiae, the shop or mint of justice, wherein all the king's writs are framed. It is a mandatory letter from the king in parchment, sealed with his great feal", 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 accused, either to do juftice to the complainant, or elfe to appear in court, and answer the accufation against him. Whatever the sheriff does in purfuance of this writ, he must return or certify to the court of common pleas, together with the writ itself: which is the foundation of the jurisdiction 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 thould be no proceedings in common pleas before the king's juftices without his original writ; because they held it unfit that those justices, being only the fubftitutes of the crown, fhould take cognizance of any thing but what was thus exprefsly referred to their judgment. However, in fmall actions below the value of forty fhillings, which are brought in the court-baron or county-court, no royal writ is necessary; but the foundation of fuch fuits continues to be (as in the times of the Saxons) not by original writ, but by plaint; that is, by a private memorial tendered in open court to the judge, wherein the party injured fets forth his cause of action: and the judge is bound of common right to administer justice therein, without any special mandate from the king. Now indeed even the royal writs are held to be demandable of common right, on paying the usual fees for any delay in the granting them, or setting 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." : b Finch. L. 237. Mirr. c. 2. § 3. ORIGINAL |