Election Cases. It may be issued, where within the regular time, no election has taken place, or it shall afterwards become void; requiring the electors to proceed to election, and courts to be held for admitting and swearing magistrates chosen.

Summary. We have gone through the whole circle of civil injuries, and the modes of redress provided. The difficulties which attend their discussion arise from their great variety, their very unmethodical arrangement, and the numerous terms of art employed.

Remedy for every Injury. The English laws adapt their redress exactly to the circumstances of the injury, and do not furnish one and the same action for different wrongs, which are impossible to be brought within one and the same description. There is hardly a possible injury to person or property, for which the party injured may not find a remedial writ, in terms adapted to his particular grievance.

Fictions and Expedients. In personal actions, the remedy is plain and simple. In the methods prescribed for the recovery of landed and other permanent property, as the right is more intricate, the feudal remedy by real actions is somewhat more difficult and attended with delays. To obviate these difficulties and retrench those delays, the rights of real property are now obtained in mixed or personal suits, in which we have recourse to arbitrary fictions and expedients.

Modern Alterations. Great fundamental alterations in the old forms of jurisprudence cannot be made abruptly, and our system 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.

CHAPTER XVIII. THE ORIGINAL WRIT.

Resumé. Under the head of redress by suit, we have pointed out the nature and several species of courts of justice, wherein remedies are administered for all sorts of private

wrongs. We then showed, to which of these courts application in particular cases may be made for redress, according to the distinction of injuries; what wrongs are cognizable by one court, and what by another. Under the title of injuries, cognizable by the courts of common law, we explained the specific remedies by action provided for every possible wrong or injury.

Preamble. We will now proceed to examine the manner in which these several remedies are pursued and applied by action in the courts of common law, to which will be subjoined a brief account of the proceedings in courts of equity. We will confine ourselves to the modern method of practice; the mode of prosecuting a suit upon any of the personal writs herein before referred to in the court of common pleas at Westminster, the court originally constituted for the prosecution of all civil actions. It is true, that the courts of king's bench and exchequer have now attained a concurrent jurisdiction of very many civil suits, and the forms of proceeding are in all material respects the same in all of these courts. Hence, by giving an abstract 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 in the other two courts, taking notice of any marked difference in the local practice of each.

DIVISIONS OF A SUIT.

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.

THE ORIGINAL WRIT.

Different Actions. This is the beginning or foundation of the suit. A party injured and demanding satisfaction first asks, what redress the law has given for that injury, and thereupon makes application or suit for the particular specific remedy, which he is advised to pursue. If it be for money due on bond, he must bring an action of debt; if for goods detained without force, an action of detinue or trover; if taken with force, an action of trespass vi et armis; if 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.

The Writ Itself. To this end he is to sue out an original writ from the court of chancery, which is the mint of justice, wherein all the king's writs are framed. This is a mandatory letter under the great seal. It is directed to the sheriff of the county, wherein the injury is committed, 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. These writs are demandable of common right, on payment of the usual costs.1

The Return. 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 for the jurisdiction of the court, being the king's warrant for the judges to proceed to the determination of the cause.

Kinds of Writs. They are either optional or peremptory. Optional. The former is in the alternative, commanding the defendant to do the thing required, or show a reason to the contrary. This is used, when 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, or to render an account; 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 the choice, to redress the injury or stand the suit.

Peremptory. This writ 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. This writ is in use, where nothing is specifically demanded, but only a satisfaction in general; to obtain which, the intervention of a court is requisite. Such are writs of trespass or on the case, wherein no debt or specific thing is sued for, but only damages. For this end, the defendant is immediately called upon to appear in court, provided the plaintiff enters good security to prosecute his claim. Both writs are tested or witnessed.

Security. The security given by the plaintiff for prosecuting his claim is common to both writs, and is at present a mere

1 In small actions below forty shillings, which are brought in the county court, no royal writ is necessary. In lieu of it, the foundation is by plaint, which is a private memorial in open court to the judge.

matter of form. John Doe and Richard Roe are always returned as the pledges. The ancient use of them was to answer for the plaintiff, if he failed in the prosecution of his claim, and was amerced by the crown, for raising a false accusation. Under the laws of Portugal, damages were given against a plaintiff, who prosecuted a groundless action.

Return Day. 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 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 from the most remote part of the kingdom, and upon a day in one of the four terms, in which the court sits.

Terms of Court. Terms were gradually formed from the canonical constitutions of the church, being the leisure seasons of the year, not occupied by the great festivals or fasts. In early times, the whole year was one continual term for hearing and deciding causes. At length the church interposed, and exempted certain holy seasons from being profaned by forensic litigation. The time of advent and christmas gave rise to the winter vacation; the time of lent and easter to the spring vacation, the time of pentecost to the third, and the long vacation between midsummer and michaelmas was allowed for hay-time and harvest. All Sundays and some particular festivals were included in the same. prohibition, which was established by a canon of the church, A. D., 517, and was ratified by the Theodosian code.

Appearance Days. There are in each of these terms, stated days, called days in bank, dies in banco, days of appearance in the Court of Common Bench. They are generally about a week distant from each other, and have reference to some festival of the church. On some one of these days all original writs must be made returnable, and they are called the returns of that term. If the return days are fixed on Sunday, the court never sits to receive them until the Monday after, and therefore no proceedings can be held, or judgments given on Sunday. The first return in every term is, properly speaking, the first day in that term. But on every return day, the person summoned has three days of grace, beyond the day named in the writ, for his appearance, and if he appears on the fourth day inclusive, quarto die post, it is sufficient.

CHAPTER XIX.-PROCESS.

Defined. Process is the means of compelling the defendant to appear in court. Original process is founded upon the original writ. Mesne process issues, pending the suit, upon some collateral, interlocutory matter, as to summon juries, witnesses, and the like. Mesne process is distinguished from final process or process of execution, in that it signifies all such process as intervenes between the beginning and end of a suit. Process is the method taken by the law to compel a compliance with the original writ, of which the primary step is by giving the party notice to obey it..

Notice. This notice is given upon all real praecipes, and also upon all personal writs for injuries not against the peace, by summons, which is a warning to appear in court at the return of the original writ, given to the defendant by the sheriff's deputy, either in person or left at his house or land. The warning on his land is given by notice raised on the grounds.

ATTACHMENT.

Mode of Attaching. If a defendant disobey this monition, the next notice is by attachment. This writ does not issue out of chancery, but out of the court of Common Pleas, being grounded on the non-appearance of the defendant at the return of the original writ, and thereby the sheriff is commanded to attach him, by taking gage, that is certain of his goods, which he shall forfeit if he does not appear; or making him find securities, who shall be amerced in case of his non-appearance.

When an Original Process. This is the first process, without any previous summons, upon actions of trespass vi et armis, or for other injuries, which though not forcible, are yet trespasses against the peace, as deceit and conspiracy, where the violence of the wrong requires a more speedy remedy, and therefore the original writ commands the defendant to be at once. attached, without any precedent warning.

Disobedience. If, after attachment, the defendant neglects to appear, he not only forfeits this security, but is moreover further compellable by writ of distringas or distress infinite, which is a subsequent process from the common pleas.1

Result.

1 Obsolete.

Here by the common, as well as the civil law, the