BOOK 3, CHAPTER 18 Of The Pursuit of Remedies by Action; and, First, of the Original Writ

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HAVING, under the head of redress by suit in courts, pointed out in the preceding pages, in the first place, the nature and several species of courts of justice, wherein remedies are administered for all sorts of private wrongs; and, in the second place, shown to which of these courts in particular application must be made for redress, according to the distinction of justice, 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 specific remedies by action, provided for every possible degree of wrong or injury; as well such remedies as are dormant and out of use, as those which are in every day’s practice, apprehending that the reason of the one could never be clearly comprehended, without some acquaintance with the other: and, I am now, in the last 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 shall 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 necessary to throw out a few observations on the nature of real actions, however at present disused, in order to demonstrate the coherence and uniformity of our legal constitution, and that there was no injury so obstinate and inveterate, but which might in the end be eradicated by some 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 positive establishments, the forma et figura judicii [form and appearance of judgment], and conduce very little to illustrate the reason and fundamental grounds of the law. Wherever I apprehend they may at all conduce to this end, I shall endeavor to hint at them incidentally.

WHAT therefore the student may expect in this and the succeeding chapters, is an account of the method of proceeding in and prosecuting a suit upon any of the personal writs we have before spoken of, in the court of common pleas at Westminster; that being the court originally constituted for the prosecution of all civil actions. It is true that the courts of king’s bench and exchequer, in order, without entrenching upon ancient forms, to extend their remedial influence to the necessities of modern times, have now obtained a concurrent jurisdiction and cognizance of civil suits: but, as causes are therein conducted by much the same advocates and attorneys, and the several courts and their judges have an entire communication with each other, the methods and forms of proceeding are in all material respects the same in al of them. So that, in giving an abstract or history1 of the progress of a suit through the court of common pleas, we shall at the same time give a general account of the proceedings of the other two courts; taking notice however of any considerable difference in the local practice of each. And the same abstract will moreover afford us some general idea of the conduct of a cause in the inferior courts of common law, those 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 superior tribunals, to which their causes may probably be, in some stage or other, removed.

THE most natural and perspicuous way of considering the subject before us, will be (I apprehend) to pursue it is the order and method wherein the proceedings themselves follow each other; rather than to distract and subdivide it by any more logical analysis. The general therefore and orderly parts of a suit are these; 1. The original writ: 2. The process: 3. The pleadings: 4. The issue or demurrer: 5. The trial: 6. The judgment, and its 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 suit. When a person has received an injury, and thinks it worth his while to demand a satisfaction for it, he is to consider with himself, or take advice, what redress the law has given for that injury; and thereupon is to make application or suit to the crown, the fountain of all justice, for that particular specific remedy which he is determined or advised to pursue. 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, a writ of entry or action of trespass in ejectment; or, for any consequential injury received, a special action on the case. To this end he is to sue out, or purchase by paying he stated fees, an original or original writ, from the court of chancery, which is the officina justitiae, 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 seal,2 and directed to the sheriff of the county wherein the injury is committed or supposed so to be, requiring him to command the wrongdoer or party accused, either to do justice to the complainant, or else to appear in court, and answer the accusation against him. Whatever the sheriff does in pursuance 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 cause. For it was a maxim introduced by the Normans, that there should be no proceedings in common pleas before the king’s justices without his original writ; because they held it unfit that those justices, being only the substitutes of the crown, should take cognizance of any thing but what was thus expressly referred to their judgment.3 However, in small actions, below the value of forty shillings, which are brought in the court-baron or county court, no royal writ is necessary: but the foundation of such suits continues to be (as in the times of the Saxons) not by original writ, but by plaint;4 that is, by a private memorial tendered in open court to the judge, wherein the party injured sets 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 unusual or exorbitant price upon them, would be a breach of Magna Carta, c. 29. “nulli vendemus, nulli negabimus, aut differemus justitiam vel rectum.” [“To none will we sell, to none deny, to none delay either right or justice.”]

ORIGINAL writs are either optional or peremptory; or, in the language of our law, they are either a praecipe, or a si te fecerit securum [if he give you security].5 The praecipe is in the alternative, commanding the defendant to do the thing required, or show the reason wherefore he has not done it.6 The use of this writ is where something certain is demanded by the plaintiff, which is in the power of the defendant himself to perform; as, to restore the possession of land, to pay a certain liquidated debt, to perform a specific covenant, to render an account, and the like: in all which cases the writ is drawn up in the form of a praecipe or command, to do thus or show cause to the contrary; giving the defendant his choice, to redress the injury or stand the suit. The other species of original writs is called a si fecerit te securum, from the words of the writ, which directs the sheriff to cause the defendant to appear in court, without any option given him, provided the plaintiff gives the sheriff security effectually to prosecute his claim.7 This writ is in use, where nothing is specifically demanded, but only a satisfaction in general; to obtain which and minister complete redress, the intervention of some judicature is necessary. Such are writ of trespass, or on the case, wherein no debt or other specific thing is sued for in certain, but only damages to be assessed by a jury. For this end the defendant is immediately called upon to appear in court, provided the plaintiff gives good security of prosecuting his claim. Both species of writs are teste‘d, or witnessed, in the king’s own name; “witness ourself at Westminster,” or wherever the chancery may be held.

THE security here spoken of, to be given by the plaintiff for prosecuting his claim, is common to both writs, though it gives denomination only to the latter. The whole of it is at present become a mere matter of form; and John Doe and Richard Roe are always returned as the standing pledges for this purpose. The ancient use of them was to answer for the plaintiff; who in case he brought an action without cause, or failed in the prosecution of it when brought, was liable to an amercement from the crown for raising a false accusation; and so the form of the judgment still is.8 In like manner as by the Gothic constitutions no person was permitted to lay a complaint against another, “nisi sub scriptura aut specificatione trium testium, quod actionem vellet persequi” [“unless under writing, or the specification of three witnesses, that he will prosecute the action”]:9 and, as by the laws of Sancho I, king of Portugal, damages were given against a plaintiff who prosecuted a groundless action.10

THE day, on which the defendant is ordered to appear in court, and on which the sheriff 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 justices at Westminster. And it is always made returnable at the distance of at least fifteen days from the date or teste, that the defendant may have time to come up to Westminster, even from the most remote parts of the kingdom; and upon some day in one of the four terms, in which the court sits for the dispatch of business.

THESE terms are supposed by Mr. Selden11 to have been instituted by William the conqueror: but Sir Henry Spelman has clearly and learnedly shown, that they were gradually formed from the canonical constitutions of the church; being indeed no other than those leisure seasons of the year, which were not occupied by the great festivals or fasts, or which were not liable to the general avocations of rural business. Throughout all Christendom, in very early times, the whole year was one continual term for hearing and deciding causes. For the Christian magistrates, to distinguish themselves from the heathens, who were extremely superstitious in the observation of their dies fasti et nefasti [lawful and unlawful days], went into a contrary extreme, and administered justice upon all days alike. Till at length the church interposed and exempted certain holy seasons from being profaned by the tumult of forensic litigations. As, particularly, the time of advent and Christmas, which gave rise to the winter vacation; the time of lent and Easter, which created that in the spring; the time of Pentecost, which produced the third; and the long vacation, between midsummer and Michaelmas, which was allowed for the hay time and harvest. All Sundays also, and some peculiar festivals, as the days of the purification, ascension and some others, were included in the same prohibition; which was established by a canon of the church, A. D. 517. and was fortified by an imperial constitution of the younger Theodosius, comprised in the Theodosian code.12

AFTERWARDS, when our own legal constitution came to be settled, the commencement and duration of our law terms were appointed with an eye to those canonical prohibitions; and it was ordered by the laws of king Edward the confessor,13 that from advent to the octave of the epiphany, from septuagesima [seventieth] to the octave of Easter, from the ascension to the octave of Pentecost, and from three in the afternoon of all Saturdays till Monday morning, the peace of God and of holy church shall be kept throughout all the kingdom. And so extravagant was afterwards the regard that was paid to these holy times, that though the author of the mirror14 mentions only one vacation of any considerable length, containing the months of August and September, yet Britton is express,15 that in the reign of king Edward the first no secular plea could be held, nor any man sworn on the evangelists,16 in the times of advent, lent, Pentecost, harvest and vintage, the days of the great litanies, and all solemn festivals. But he adds, that the bishops and prelates did nevertheless grant dispensations, (of which many are preserved in Rymer’s foedera of the time of king Henry the third) that assizes and juries might be taken in some of these holy seasons upon reasonable occasions. And soon afterwards a general dispensation was established in parliament, by statute Westm. 1. 3 Edw. I. c. 51. which declares, that “forasmuch as it is great charity to do right unto all men at all times when need shall be, by the assent of all the prelates it was provided, that assizes of novel disseizin, mort d’ ancestor [death of ancestor], and darrein presentment [last presentation] should be taken in advent, septuagesima, and lent, even as well as inquests may be taken; and that at the special request of the king to the bishops.” The portions of time that were not included within these prohibited seasons, fell naturally into a fourfold division: and, from some festival or saint’s day that immediately preceded their commencement, were denominated the terms of St. Hilary, of Easter, of the holy Trinity, and of St. Michael: which terms have been since regulated and abbreviated by several acts of parliament; particularly trinity term by statute 32 Hen. VIII. c. 2. and Michaelmas term b statute 16 Car. I. c. 6. and again by statute 24 Geo. II. c. 48.

THERE are in each of these terms stated days called days in bank, dies in banco; that is, days of appearance in the court of common pleas, called usually bancum, or commune bancum [common bank], to distinguish it from bancum regis [royal bank] or the court of king’s bench. They are generally at the distance of about a week from each other, and regulated by some festival of the church. on some one of these days in bank all original writs must be made returnable; and therefore they are generally called the returns of that term; whereof every term has more or less, said by the mirror17 to have been originally fixed by king Alfred, but certainly settled as early as the statute of 51 Hen. III. St. 2. But though many of the return days are fixed upon Sundays, yet the court never sits to receive these returns till the Monday after:18 and therefore no proceedings can be had, or judgment can be given, or supposed to be given, on the Sunday.19

THE first return in every term is, properly speaking, the first day in that term; as, for instance, the octave of St. Hilary, or the eighth day inclusive after the feast of that saint; which falling on the thirteenth of January, the octave therefore or first day of Hilary term is the twentieth of January. And thereon the court sits to take essoigns, or excuses for such as do not appear according to the summons of the writ: wherefore this is usually called the essoign day of the term. But the person summoned 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 inclusive, the quarto die post [after four days], it is sufficient. For our sturdy ancestors held it beneath the condition of a freeman to be obliged to appear, or to do any other act, at the precise time appointed or required. The feudal law therefore always allowed three distinct days of citation, before the defendant was adjudged contumacious for not appearing:20 preserving in this respect the German custom, of which Tacitus thus speaks,21 “illud ex libertate vitium, quod non simul nec jussi conveniunt; sed et alter et tertius dies cunctatione co‰ntium absumitur.” [“There is this fault resulting from their liberty, that they come not together at the time appointed, but a second and a third day are lost by the delay of those who are to assemble.”] And a similar indulgence prevailed in the Gothic constitution: “illud enim nimiae libertatis indicium, concessa toties impunitas non parendi; nec enim trinis judicii consessibus peonam perditae causae contumax meruit.”22 [“For the impunity with which they so often neglected to appear was a sign of their excessive liberty; nor were the contumacious punished by losing their cause, as three days grace was allowed.”] Therefore at the beginning of each term, the court does not sit for dispatch of business till the fourth day, as in Hilary term on the twenty-third of January; and in Trinity term, by statute 32 Hen. VIII. c. 21. not till the sixth day; which is therefore usually called and set down in the almanacs as the first day of the term.

NOTES

     1.    In deducing this history the student must not expect authorities to be constantly cited; as practical knowledge is not so 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 observations; which in general he has been studious to avoid, where those of any other might be had. To accompany and illustrate these remarks, such gentlemen as are designed for the possession will find it necessary to peruse the books of entries, ancient and modern; which are transcripts of proceedings that have been had in some particular actions. A book or two of technical learning will also be found very convenient; from which a man of a liberal education and tolerable understanding may glean pro re nata [for that occasion] as much as is sufficient for his purpose. These books of practice, as they are called, are all pretty much on a level, in point of composition and solid instruction; so that that which bears the latest edition is usually the best. But Gilbert’s history and practice of the court of common pleas is a book of a very different stamp: and though (like the rest of his posthumous works) it has suffered most grossly by ignorant or careless transcribers, yet it has traced out the reason of many parts of our modern practice, from the feudal institutions and the primitive construction of our courts, in a most clear and ingenious manner.

     2.    Finch. L. 237.

     3.    Flet. l. 2. c. 34.

     4.    Mirr. c. 2. § 5.

     5.    Finch. L. 257.

     6.    Append. No. III. § 1.

     7.    Append. No. II. § 1.

     8.    Finch. L. 189. 252.

     9.    Stiernh. de jure Gothor. l. 3. c. 7.

   10.    Mod. Un. Hist. xxii. 45.

   11.    Jan. Angl. l. 2. § 9.

   12.    Spelman of the terms.

   13.    c. 3. de temporibus et diebus pacis [concerning the times and days of peace].

   14.    c. 3. § 8.

   15.    c. 53.

   16.    See pag. 58.

   17.    c. 5. § 108.

   18.    Registr. 19. Salk. 627. 6 Mod. 250.

   19.    1 Jon. 156. Swann & Broome. B. R. Mich. 5. Geo. III. et in Dom. Proc. 1766.

   20.    Feud. l. 2. t. 22.

   21.    de mor. Germ. c. 11.

   22.    Stiernh. de jure Goth. l. 1. c. 6.

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