Front Page Titles (by Subject) CHAPTER XVIII.: OF THE PURSUIT OF REMEDIES BY ACTION; AND FIRST OF THE ORIGINAL WRIT. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER XVIII.: OF THE PURSUIT OF REMEDIES BY ACTION; AND FIRST OF THE ORIGINAL WRIT. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF THE PURSUIT OF REMEDIES BY ACTION; AND FIRST OF THE ORIGINAL WRIT.
**270]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 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 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 **271]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 those obsolete actions, which are frequently mere positive establishments, forma et figura judicii, 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 endeavour 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 antient forms, to extend their remedial influence to the necessities of modern times, have now obtained a concurrent jurisdiction and cognizance of very many 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 all of them. So that in giving an abstract or history(a) of the progress of a suit through the court of common pleas, we *[*272shall 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 in 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 proceeding in nature of appeals; 8. The execution.
First, then, of the original, or original writ;2 which is the beginning or foundation of the suit. When a person hath 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 *[*273et 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 the stated fees, an original, or original writ, from the court of chancery, which is the officina justitiæ, the shop or mint of justice, wherein all the king’s writs are framed.3 It is a mandatory letter from the king, in parchment, sealed with his great seal,(b) and directed to the sheriff of the county wherein the injury is committed, or supposed so to be, requiring him to command the wrong-doer 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.(c) 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;(d) 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.”4
**274]Original writs are either optional or peremptory; or, in the language of our lawyers, they are either a præcipe, or a si te fecerit securum.(e) The præcipe is in the alternative, commanding the defendant to do the thing required, or show the reason wherefore he hath not done it.(f) The use of this writ is where something certain is demanded by the plaintiff, which it is incumbent on 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 præcipe 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.(g) 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 writs 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 tested, or witnessed in the king’s own name; “witness ourselves 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 antient use of them was to answer for the *[*275plaintiff, 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 judgment still is.(h) 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;”(i) and as by the laws of Sancho I., king of Portugal, damages were given against a plaintiff who prosecuted a groundless action.(k)
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 king’s 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 despatch of business.
These terms are supposed by Mr. Selden(l) to have been instituted by William the Conqueror; but Sir Henry Spelman hath 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, went into a contrary extreme, and administered justice upon all days alike. *[*276Till 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 particular 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, ad 517, and was fortified by an imperial constitution of the younge. Theodosius, comprised in the Theodosian code.(m)
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,(n) that from advent to the octave of the epiphany, from septuagesima 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 Mirror(o) mentions only one vacation of any considerable length, containing the months of August and September, yet Britton is express,(p) that in the reign of king Edward the First no secular plea could be held, nor any man sworn on the evangelists,(q) 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 did nevertheless grant dispensations, (of which many are preserved in Rymer’s Fœdera,)(r) that assizes and juries might be taken in some of these holy seasons. And soon afterwards a general **277]dispensation was established by statute Westm. 1, 3 Edw. I. c. 51, which declares, that “by the assent of all the prelates, assizes of novel disseisin, mort d’ancestor, and darrein presentment shall be taken in advent, septuagesima, and Lent; 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 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. 21, and Michaelmas term by statute 16 Car. I. c. 6, and again by statute 24 Geo. II. c. 48.5
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 bench. They are generally at the distance of about a week from each other, and have reference to some festival of the church.6 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 Mirror(s) 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:(t) and therefore no proceedings can be held, or judgment can be given, or supposed to be given, on the Sunday.(u)
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 **278]do not appear according to the summons of the writ: wherefore this is usually called the essoign day of the term.7 But on every return-day in the term, the person summoned has three days of grace, beyond the day named in the writ, in which to make his appearance; and if he appears on the fourth day inclusive, quartodie post, it is sufficient.8 For our sturdy ancestors held it beneath the condition of a freeman to appear, or to do any other act, at the precise time appointed. The feodal law therefore always allowed three distinct days of citation, before the defendant was adjudged contumacious for not appearing;(v) preserving in this respect the German custom, of which Tacitus thus speaks:(w) “illud ex libertate vitium, quod non simul nec jussi conveniunt; sed et alter et tertius dies cunctatione coeuntium absumitur.” And a similar indulgence prevailed in the Gothic Constitution: “illud enim nimiæ libertatis indicium, concessa toties impunitas non parendi; nec enim trinis judicii concessibus pœnam perditæ causæ contumax meruit.”(x) Therefore, at the beginning of each term, the court does not usually(y) sit for despatch of business till the fourth or appearance day, as in Hilary term on the twenty-third of January;9 and in Trinity term, by statute 32 Hen. VIII. c. 21, not till the fifth day, the fourth happening on the great popish festival of Corpus Christi;(z) which days are therefore called and set down in the almanacs as the first days of the term, and the court also sits till the quarto die post or appearanceday of the last return, which is therefore the end, of each of them.10
[(a) ] 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 hath 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 profession 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 liberal education and tolerable understanding may glean pro re nata 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 feodal institutions and the primitive construction of our courts, in a most clear and ingenious manner.1
[1 ] The more recent publications of Mr. Serjt. Sellon and Mr. Tidd, and those of Mr. Impey and Mr. Lee, now afford still more explicit information on the subject of Practice.—Chitty.
[2 ] Before the passing the 6 Geo. IV. c. 96, one great object of proceeding by special original was to compel the defendant to bring a writ of error in parliament, if he intended to delay; but that act having restrained writs of error upon judgments, even before verdict, unless the defendant finds bail in error, proceedings are now more frequently by capias in the court of Common Pleas and by latitat in the King’s Bench.—Chitty.
[3 ] But in personal actions the use of the original writ is abolished, by the statute 2 W. IV. c. 39, although, as it is still necessary in real actions, some account of it may be useful. In the old action of ejectment, which has been before described, but which is now also abolished, although its existence was supposed, it was in fact never sued out.—Stewart.
[(b) ] Finch, L. 237.
[(c) ] Flet. l. 2, c. 34.
[(d) ] Miri. c. 2, 3.
[4 ] But to entitle a party to proceed by original the debt must amount to 10l. 5 Geo. II. c. 27, s. 5,—since extended to 15l. by 51 Geo. III. c. 124, s. 1. 57 Geo. III. c. 101. These latter acts have indeed both expired; but it is presumed they will be revived in the present year. It is also a rule in the King’s Bench, if the plaintiff, proceeding by original, recover less than 50l., he will be entitled to no more costs than if he had proceeded by bill, except in cases where he could not proceed by bill, as for outlawry, &c. R. M. 23 Geo. III. But though in an action on a bond, with a penalty above 50l., the plaintiff recover 20l., yet he will be entitled to costs of suit by original. 2 Chit. R. 148.
This writ does not lie against an attorney or officer of the court unless sued with an unprivileged person; neither does it lie against a prisoner in the actual custody of the marshal. It is the only mode of proceeding against peers, (3 M. & S. 88,) corporations or hundredors on the statutes of hue and cry, &c., (Tyre, 11. Barnes, 415,) or for the purpose of outlawing the defendant.
One advantage of proceeding by this writ is, that if a writ of error be brought for delay, it must be brought direct into parliament, instead of first into the exchequer-chamber and from thence into parliament. 1 Sid. 424.
Where the demand exceeds 40l. a fine is payable to the king on these writs by way of composition for the liberty of suing in his court, which fine is estimated according to the amount of the demand, paying 6s. 8d. for every hundred marks, or 10s. for every 100l. Tyre, 58, G. R. H. 6 W. & M. R. B. Tidd, 8th ed. 101.—Chitty.
[(e) ] Finch, L. 257.
[(f) ] Append. No. III. 1.
[(g) ] Append. No. II. 1.
[(h) ] Finch, L. 189, 252.
[(i) ] Stiernbook de juri Goth. l. 3, c. 7.
[(k) ] Mod. Un. Hist. xxii. 45.
[(l) ]Jan. Angl. l. 2, 9.
[(m) ] Spelman of the Terms.
[(n) ] C. 3, de temporibus et diebus pacis.
[(o) ] C. 3, 8.
[(p) ] C. 53.
[(q) ] See page 59.
[(r) ]Temp. Hen. III. passim.
[5 ] Michaelmas and Hilary are fixed terms, and invariably begin on the same day every year; but Easter and Trinity are movable, their commencement being regulated by the Feast of Easter. Hilary and Trinity are called issuable terms, being the terms after which the judges go their circuits for the trial of causes wherein issues have been previously joined.—Chitty.
[6 ] Easter term has five return-days, the rest four. These are called general or common return-days; all the others are particular or special return-days.—Chitty.
[(s) ] C. 5. 108.
[(t) ] Registr. 19. Salk. 627. 6 Mod. 250.
[(u) ] 1 Jon. 156. Swann & Broome, B. R. Mich. 5 Geo. III. et in Dom. Proc. 1766.
[7 ] At the present day, no essoign is allowed in any personal action whatever, even though the defendant be a peer or member of parliament. See 2 Term R. 16. 16 East [Editor: illegible character] (a.)—Chitty.
[8 ] But the appearance need not be entered until eight days after the quarto die post. 3 Bar. & Cres. 110.—Chitty.
[(v) ] Feud. l. 2, t. 22.
[(w) ]De Mor. Germ. c. 11.
[(x) ] Stiernhook de jure Goth. l. 1, c. 6.
[(y) ] See 1 Bulstr. 35.
[9 ] Michaelmas Term always begins on the 6th of November and ends on the 28th of the same month. Hilary Term always begins on the 23d of January and ends on the 12th of February,—unless either of those four days falls on a Sunday, and then the term begins or ends on the day following. Easter Term begins always on the Wednesday fortnight after Easter Sunday, and ends on the Monday three weeks afterwards. Trinity Term begins always on the Friday after Trinity Sunday, and ends on the Wednesday fortnight after it begins. 1 Cromp. Prac. 1. Tidd, 8th ed. 101, 102.—Christian.
By the 11 Geo. IV. and 1 W. IV. c. 70, s. 6, amended by 1 W. IV. sess. 2, c. 3, s. 2, it is enacted that Hilary Term shall begin on the 11th and end on the 31st day of January; Easter Term shall begin on the 15th day of April and end on the 8th day of May; Trinity Term shall begin on the 22d day of May and end on the 12th day of June; and Michaelmas Term shall begin on the 2d and end on the 25th day of November; so that there is now no uncertainty in this matter.—Stewart.
[(z) ] See Spelman on the Terms, ch. 17. Note, that if the Feast of St John the Baptist, or midsummer-day, falls on the morrow of Corpus Christi day, (as it did ad 1614, 1608, and 1709, and will again ad 1791,) Trinity full term then commences, and the courts sit on that day, though in other years it is no juridical day. Yet in 1702, 1713, and 1724, when midsummer-day fell upon what was regularly the last day of the term, the courts did not then sit, but it was regarded like a Sunday, and the term was prolonged to the twenty-fifth of June, Rot. C. B. Bunb. 176.
[10 ] But these rules are now altered, and the whole law on this subject much simplified, by the statute 11 Geo. IV., and 1 W. IV. c. 70, s. 6, by which it is enacted that the first essoign or general return-day, for every term, shall be the fourth day before the day of the commencement of the term, both days being included in the computation; the second essoign day shall be the fifth day of the term; the third shall be the fifteenth day of the term,—the first day of the term being already included in the computation.
Until lately, matters of law were disposed of in the courts during term,—only the judges, indeed, in their chambers exercise an ancillary jurisdiction; but their orders are not acts of the court, and if disobeyed can only be enforced by turning them into rules of court, and then obtaining an attachment, which can only be had during term. It is true that great part of the vacation is occupied in the trial of causes at the sittings and assizes; but these trials are not supposed to take place before the court, but before the individual judge who tries them. In consequence, however, of the press of business during term, the courts have now received the power of appointing sittings in banc, to be held during the vacation. 1 & 2 Vict. c. 32.—Stewart.
But essoigns have been practically abolished, (Price is. Hayes, 1 Dowl. 448;) and the sittings of the courts are now exclusively on the days of the term, or on such days after term as may be fixed for sittings in banco.—Kerr.