William Tidd.

The practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 1) online

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Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 1) → online text (page 26 of 120)
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Hamilton v. Foster, 1 Brevard, 464. Bedell v. Lewis, 4 J. J. Marshall, 452. Nicholson v.
Wilson, 13 Geo. Rep. 467.



appear in that manner, the plaintiff may obtain an order for striking out
the appearance, and that the defendant appear by guardian within a cer-
tain time, being usually four or six days ; or, in default thereof, that the
plaintiff may be at liberty to name a guardian, to appear and defend for
him:(A;/t)[A] And a similar order may be obtained, -where the defendant
neglects to appear at dX\.{lT) If a prochein amy or guardian be changed,
pending an action, the fact ought to be stated by an entry on the
record. (mm)[B]

An infant plaintiff cannot be compelled to give security for costs, on
the ground of the insolvency of his prochein amy :{n) and the latter alone
is liable to the payment of costs ;(o)[c] and if he refuse to pay
[ *101 ] them on demand, *he may be proceeded against by attach-
ment, (a) Yet, where an infant plaintiff was taken in execution
for costs, the court refused to discharge him on motion. (5) And it has
been adjudged, that costs are payable by an infant defejidant. {c)[p]

(kk) Barnes, 413, 418. T Taunt. 488. 1 Moore, 250, S. C, and see 2 Chit. Rep. 22, (a).
3 Bing. 609.

{11} 2 Str. 1076. 2 Wils. 50. [mm) 4 Taunt. 765.

(«) 1 Marsh. 4, and see 2 Chit. Rep. 359.

(o) Cro. Eliz. 33. 1 Str. 548. 2 Str. 708. And the prochein amy is prima facie liable to
the plaintiff's attorney for his costs, as well as to the defendant. 2 Esp. Rep. 473.

(a) Cas. Pr. C. P. 32. Willes, 190. Barnes, 128. Pr. Reg. 102, S. C.

(6) 2 Str. 1217. 13 East, 6, and see Barnes, 183. 1 Bos. & Pul. 480.

(c) Dyer, 104. 1 Bulst. 189. 2 Str. 1217.

[a] See 2 Troub. & Haley's Pract. 513, 3d Ed.

[b] See Shuiilesmiih'y. Hughes, 6 Rich. 329.

[ c] Where an infant suing by his prochein ami recovers a judgment, which is reversed,
the judgment and costs shall be against the prochein ami. Yerger v. Stone, 7 Monr. 119.

[d] An infant may bring an action on a contract, but he must sue by guardian, or next
friend. 3PGiffin v. Stout, Coxe, 92. Doe v. Brown, 8 Blackf. 443, or he will be nonsuited,
at the trial. 3I'Daniel v. Nicholson, 2 Rep. Con. Ct. 344. In Connecticut, in an action by
a minor, an express admission of a prochein ami to prosecute seems to be unnecessary ; the
admission of the p)i'ochein ami named in the writ being implied, until disallowed. Judson v.
Blanchard, 3 Conn. 579. It is not the province of the court to appoint a guardian or next
friend to sue for, but only to defend an infant party. Priest v. Hamilton, 2 Tyler, 49. Nor
can an infant appear or plead by attorney. Jeffrey v. Robideaux, 3 Mis. 33. Clarky. Turner,
1 Root, 200. Mockcy v. Grey, 2 Johns. 192. And as defendant he must appear by guardian.
Knapp V. Crosby, 1 Mass. 479. Miles v. Boyden, 3 Pick. 213. Alderman v. Tirrell, 8 Johns.
418. Bedell v. Leicis, 4 J. J. Marsh. 562. Comstock v. Carr, 6 Wend. 526. Meredith v.
Sanders, 2 Bibb, 101. There should be no judgment by default, unless there is a guardian
ad litem. Chalfant v. 3Ionroe, 3 Dana, 35. Young v. Whitaker, 1 A. K. Marshall, 398. Eow-
land V. Cook, lb. 453. If an infant defendant does not appear upon service of tile summons,
the plaintiff may have a rule to assign a guardian and enter an appearance. Judson v.
Storer, 2 South. 544. The power of a next friend commences with the suit, and he can
therefore maintain a suit for such causes of action only as may be prosecuted without a
previous special demand, unless the defendant has waived the necessity of a demand. Miles
V. Boyden, 3 Pick. 213. Brown v. Hull, 16 Verm. 673. The next friend and guardian will
be admitted by the court without any other record than a recital in the count. Clark v.
Gihnanton, 12 New Hamp. 515. A prochein ami is one admitted by the court to prosecute
for an infant, because otherwise the infant might be prejudiced by the refusal or neglect of
his guardian. He is but a species of attorney, who may prosecute a right for an infant, but
can do nothing to operate to his injury, and therefore cannot release or compromise a suit
prosecuted on behalf of a minor. Isaacs v. Boyd, 5 Port. 388. The suit of an infant may
be dismissed without the consent of the prochei?! ami. The court may control him, as well
as a guardian ad litem, and shcRild permit or direct what is most for the interest of the
infant. Longnecker v. Greenwade, 5 Dana, 516. A judgment irregularly obtained against an
infant, is erroneous, and may be set aside, after he has attained full age, on motion and rule ;
the fact of infancy must be tried in such case per pais, and not by inspection. Haigler v.

Way, 2 Rich. 324. It seems, however, that the court is not bound to set aside the judgment,
after the infant has attained full age, but may consider lapse of time, the conduct of the



Of the Original Writ ; and Process thereon, previous to the Capias,
in the King's Bench and Common Pleas.

An original writ is a mandatory letter from the king in Chancery, sealed
with his great seal \{aa) and, in the King's Bench, may be the means of
commencing all personal actions, against every person not being an attor-
ney or officer of the court, or a prisoner in the actual custody of the mar-
shal. Formerly, indeed, it was not usual to proceed in the King's Bench,
by original writ, in dehty detinue, or other action of a mere civil na-
ture :[hh) but the modern practice is different ',[cc) and, in Lord MansfieUV s
time, where the defendant pleaded to the jurisdiction, in an action of debt
commenced by original writ, the court gave judgment on demurrer for the
plaintiff: and declared, that if such a plea should come before them again,
they would inquire by whom it was signed.(c:?) On the other hand, an
original writ seems to have been formerly the only way of proceeding
against peers, and members of the house of commons ;(c') as it is still,
against the former,(/) and also against corporations, or hundredors,{g)
on the statute 7 & 8 Geo. IV. c. 31 ; or where, by reason of the defend-
ant's being abroad, or keeping out of the way, he cannot be arrested or
served with process.

Another benefit attending this mode of proceeding in the King's Bench
is, that after judgment in an action by original, a writ of error will not lie in
the Exchequer chamber, where it is often brought for the mere purpose of
delay, but only in parliament. (7i) The reason is, that at common law, no
writ of error lay, except in Parliament, from the judgment of this court;
and the statute(/) which gave a writ of error in the Exchequer chamber,
only extends to such actions as are first commenced in the King's Bench :
therefore, though a writ of error will lie in the Exchequer chamber, on a
judgment by bill, which originates in the King's Bench, yet it is otherwise
where the judgment is upon an original v^v'ii, which issues out of Chancery,
where the action in that case is first commenced.(A;)

*But, in order to save the great and unnecessary expense of
suing forth s/jeceaZ writs in small and trifling suits, it was enacted [*103 ]

{aa) Finch, L. 237. 3 Blac. Com. 273. Steph. PI. 5.

{bb) 4 Inst. 76. Trye, 55, 77, and see Lord Uale's Treatise, in 1 Harg. Law tracts, 360,
362, 364. 2 Blac. Rep. 850. 3 Blac. Com. 42.

{cc) Cas. temp. Hardw. 317.

{d) See also the statute 13 Car. II. stat. 2, c. 2, § 6, which speaks of actions of debt, &c.,
depending by original writ in the King's Bench, as well as in the Common Picas.

(e) Trye, y, 13. Lil. Ent. 21. 2 H. Blac. 267, 299.

(/) 3 Maule & Sel. 88. {g) Trye, 11. Barnes, 415.

\h) 1 Sid. 424. Trye, 6. 2 H. Blac. 304. {i) 27'Kliz. c. 8.

{k) Run. Eject. 205, 6. Gilb. K. B. 319.

defendant, and other circumstances as confirm'.ng the judgment, or rendering the inter-
ference of the court improper, lb. The proper practice, in such cases, appears to be, on
affidavit of the defendant's infancy, to order a rule to show cause, on the return of which the
judgmeut may be set aside, or an issue made up to try the fact of infancy, or such other
material fact as the case may present, lb.


bj the Statute 5 Geo. II. c. 27, § 5, that " no special writ or process
should be issued out of any superior court, where the cause of action
should not amount to the sum of ten pounds or upwards."(a) And,
by the statute 7 & 8 Geo. IV. c. 71,(5) " where the cause of action in any
court shall not amount to the sum of tioenty pounds, exclusive of any costs,
charges and expenses, that may have been incurred, recovered or become
chargeable, in or about the suing for or recovering the same, or any part
thereof, no special writ or writs, nor any process specially therein express-
ing the cause or causes of action, shall be sued forth or issued from any
court, in order to compel any person or persons to appear thereon in such
court; and all proceedings and judgments that shall be had on any such
writ or process, shall be, and are thereby declared to be void and of no
effect :" But a bailable writ is not necessarily a special writ, within the
meaning of the above statutes.((?) It is also a rule of the Court of King's
Bench,(c?) that " in all actions in which the plaintiff shall proceed against
the defendant by special original writ, and shall recover less than the sum
0^ fifty pounds, he shall not, on taxing costs, be allowed any more or other
costs, than he would have been entitled to, in case he had proceeded by
hill ; except in such actions, in which he could not proceed by bill, or in
which any defendant shall be actually outlawed." But the costs of a
special original were allowed, in an action brought on a bond, the penalty
of which was more than fifty pounds, though the sum found due was only
twenty pounds. (g)

Original writs are calculated for the eomynencement or removal of
actions. (/) And they are either de cursu, or magistralia :{g) the former
were framed in the king's court, before the division of it by magna
charta,{h) Sind are to be found in the register of original writs :(^) the
latter were made out by the masters in chancery, pursuant to the statute
of Westm. 2, (13 Edw. I.) c. 24, by which it is enacted, that "whenever
it shall happen in Chancery, that in one case a writ is found, and not in a
similar case, falling under the same law, and requiring the like remedy,
the clerks of the Chancery shall agree in making a writ, or refer' the
plaintiffs to the next parliament." Of the register of original writs, upon
which Fitzherbert's natura brevium is a comment, it has been said,(M)
that every man who is injured will be sure to find in it a method of relief,
exactly adapted to his own case, described in the compass of a few lines,
and yet without the omission of any material circumstance. So that the
wise and equitable provision of the statute Westm. 2, for framing new
writs when wanted, is almost rendered useless by the very great
[ *104 ] perfection *of the ancient forms. And indeed, says the learned
commentator,(a) " I know not whether it is a greater credit to
our laws, to have such a provision contained in them, or not to have occa-
sion, or at least very rarely, to use it."

{a) 3 Bur. 1484.

(6) I 1, and see stat. 51 Geo. III. c. 124, g 1, continued by 57 Geo. III. c. 101.
(c) 1 Barn. & Aid. 393. (f/) R. M. 23 Geo. III. K. B.

\e) 2 Chit. Rep. 148. (/) Trye, 1, 12, 93.

(£r) Gilb. K. B. 312. 1 Inst. 54, b. 73, b. 2 Inst. 407, 670. 7 Co. 4, a. 8 Co. 48, 9.
(/i) Chap. 11.

{i) 1 Inst. 16, b. 54, b. 73, b. Gilb. C. P. 4, 5. 3 Blac. Com. 183.
[kk) 3 Blac. Com. 183, 4.

(ff) 3 Blac. Com. 184, and see 1 Madd. Chan. 5, &c. as to the Chancellor's common law
authority in ordering original writs to be made out by the cursitors.


In actions of account, covenant, debt, annuity, and detinue, tlie original
writ is called a prsecipe ;(h) by which the defendant has an option given
him, either to do what he is required, or show cause to the contrary : but
in assumpsit, and actions for wrongs, it is called a pone, or si te fecerit
securum ;{c) by which the defendant is pcremptorihj required to show cause
in the first instance. In point of form, the original writ is special or
general, nominatum vel innominatum :{d) The former contains the time,
place, and other circumstances of the demand, very particularly; the
latter, only a general complaint, without expressing the particulars, as
the writ of trespass quarc clausum f regit, &c.

In the Common Pleas, we have seen,(e) an original writ is either a
special original, adapted to the nature of the action, or a common original
in trespass quare clausum /regit ;{f) and there is a rule in that court,(^)
that " no attorney shall deliver or receive any declaration, without an
original, proper to the cause of action, being first sued forth to warrant
the same :" which rule is now disused. A special original, however, is,
in that court, seldom issued in the first instance, except in cases where it
is absolutely necessary, as in proceeding against p>eers, corporations, and
hundredors, who are not subject to a capias ; but the usual mode of com-
mencing actions in this court, is by issuing out a writ of cajnas quare
clausum f regit, which is founded on a supposed original, and answers to
the bill of Middlesex or latitat in the King's Bench. (A) Before the statute
19 Hen. VII. c. 9, a practice had been introduced, of commencing an
action in the Common Pleas, by bringing an original writ of trespass
quare clausum f regit, for breaking the plaintiff's close, vi et armis ; which,
by the old common law, subjected the defendant's person to be arrested
by writ of capias ; and then afterwards, by connivance of the court, the
plaintiff might proceed to prosecute for any other less forcible injury.(e)
This practice appears to have been formerly discountenanced by the
court ',[k) but was afterwards revived, and may still in strictness be resorted
to, in cases where the defendant keeps out of the way, so that he cannot
be arrested upon, or served with process against his person.

The original writ(?) is issued by the tursitor, who is so called from the
writs de cursu ; and where no capias lies, as against peers or members of
the house of commons, or against corporations, or hundredors on
the statute *7 & 8 Geo. IV. c. 31, it is necessarily the first pro- [ *105 ]
ceeding in the cause. And where a copzas lies, but the defendant
absconds or keeps out of the way, so that he cannot be arrested or served
with process against his person, it is usual to sue out an original writ, in
order to proceed to outlaivry. But in all other cases, the practice is for
the plaintiff's attorney to make out a. jjrsecipe{a) for an original writ, and
deliver it to the filacer, who thereupon issues the capias in the first
instance, keeping the praecipe as instructions for the original, which is not
in fact issued, unless it become necessary, in consequence of a writ of error
after a judgment by default. (6) There being no cursitor for, an original

(b) Append. Chap. V. ? 2, 4. (c) Id. § 10, and see Finch, L. 257.

(d) 1 Bac. Abr. 29. Gilb. C. P. 3. (e) Ante, 91.

( f) Append. Chap. V. g 12. {g) R. M. 30 Car. II. C. P. and see R. T. 1649, C. P.

(h) Ante, 91. [i) 3 Bhic. Cora. 281.

h) R. H. 2 Car. I. § 1. C. P. {/)

(a) Append. Chap. V. g 1, 3, 9, 11.

(b) And see further, as to the prcecipe for an original writ, 1 Chit. PI. 4 Ed. 220. Steph.
PI. 26, 7.

Vol. l— 8



Avrit cannot be issued into a county palatine ; but when the cause of action,
beino- of a transitory nature, arises therein, an original writ may be issued
into another county ; and the defendant, if he reside in a county palatine,
may be brought into court on a testatum capias; and if he afterwards
move to change the venue into the county palatine, the court will make him
undertake not to assign for error the want of an original, (c) It is also a
rule, in the common pleas, that when a judge's order is granted for time to
plead, in an action laid in a county palatine, the defendant shall be bound
not to assign the want of an original as error. (c?) On suing out the original
writ or capias, where the plaintiff's demand exceeds /orf^ pounds, Q.jine
is payable to the king, by way of composition for the liberty of suing in his
court ;[e) which fine is estimate<l according to the amount of the demand,
being six sillings and eight pence for every hundred marks, or ten shillings
for every hundred pounds. (/) The original writ should be directed to the
sheriff, or sheriffs, of the county where the action is brought, and intended
to be tried ; and it should be tested or witnessed in the king's name, at
Westminster, or wherever else the chancery is holden;(^) and as that
court is supposed to be always open, it may be tested in vacation, as well as
in term-time :(7i) but a private seal is frequently necessary for passing it
in vacation.

The terms are those times or seasons of the year, which are set apart for
the dispatch of business, in the superior courts of common law. The his-
tory of these terms is given by '^'w Henry Spelman,{i) who has clearly and
learnedly shown, that they were gradually formed from the canonical con-
stitutions 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. There
[ *106 ] *Sive four term in the year; which are called, from some festival
or saint's day preceding their commencement, the terms of Saint
Hilary, of Easter, of the Holy Trinity, and of Saint Michael. Hilary
term begins on the octave of Saint Hilary, or the eighth day inclusive after
the feast day of that saint, which falling on the 13th of January, the octave
therefore, or first day of Hilary term is the 20th of January ; and it ends on
the 12th of February following, unless it happen on a Sunday, and then on
the 13th of February.(aa) Easter term begins in fifteen days of Easter,
being the Sunday fortnight after that festival , and ends on Monday before
Whitsunday. Trinity term, which was abridged by the statute 32 Hen.
YIII. c. 21, begins on the morrow of the Holy Trinity, being the Monday
next after Trinity Sunday ; and ends on the Wednesday three weeks after,
unless it happen on the 24th of June, and then on the day following.

(c) 1 Sel. Pr. 2 Ed. 251. Marsden v. Bell, H. 28 Geo. III. C. P. Imp. C. P. 7 Ed. 218. 1
Taunt. 120. 13 Price, 52.

{d) 1 Moore, 311, 12. (c) Gilb. C. P. 7.

(/) Trye, 58, 9, R. H. 6 W. & M. K. B. Append. Chap. V. § 13. A fee of Gs. 8d. is also
payable to the king, on every writ of recordari, pone, accedas ad curiam, (except of cattle and
chattels,) attaint, conspiracy, false judgment, and dedimus potestatem. Same rule, [a).

(ff) Finch. L. 237. 3 Blac. Com. 274.

(h) Trye, 59, 60. Sty. Rep. 402. 3 Keb. 214. And see further, as to the tetie of original
writs, 1 Madd. Chan. 15.

(i) Jan. Ang. I. 2, § 9, and see 3 Blac. Com. 275.

{aa) In Hilary term, the first day of full term, is the 23d of January, if not Sunday; and if
Sunday, the next day after : and this term always begins that day eiyht weeks, on which
Michaelmas term ended, and ends fourteen weeks after Michaelmas term began. Man. Excheq.
Append. 2.


Michaelmas term, which was abridged by the statute IG Car. I. c. 6, and
still further by the 24 Geo. II. c. 4.S, begins (five weeks after Micliaelmas
day,) on the morrow of All Souls, being the 3d of November, and ends on
the 28th of November following, if not a Sundajj, otherwise on the 20th.
Of these terms it may bo observed, that Michaebnas and Ililary ^xq fixed
terms, and invariably begin on the same date of the year ; but Easter and
Trinity terms are moveable, their commenceraent being regulated by the
feast of Easter. After Jlilary and Trinity terms, the judges go \\\Q\r cir-
cuits^ for the trial of causes wherein issues have been previously joined ;
and hence they are called issuable terms.

In each of these terms, there are stated days, called general or common
return days ; of these there arefoicr in each term, except Easter, which has
fire. In Ililary term, the general or common return days are, in eight days
of Saint Ililary, in fifteen days of Saint Ililary, on the morrow of the Puri-
fication, and in eight days of the Purification. In Easter term, they are, in
fifteendaysof Easter, in three weeks after Easter, in one month after Easter,
in five weeks from Easter day, and on the morrow of the Ascension. In
Trinity term, they are, on the morrow of the Holy Trinity, in eight days
of the Holy Trinity, in fifteen days of the Holy Trinity, and in three weeks
after the Holy Trinity. And in 3Iichaclmas term, they are, on the mor-
row of All Souls, on the morrow of St. Martin, in eight days of St. Martin,
and in fifteen days of St. Martin. (5) Some of these return days happen on
a Sunday: and anciently, when writs were formed, courts of justice did
actually sit on that day ; but that practice having been long disused, it is not
holden that an appearance cannot be entered, nor any judicial act done, or
supposed to be done by the court, till the 3Ionday.[c)

*Ononeorother of these return days, all orz'^maZ writs, and pro- [ *107 ]
cess thereon, must be made returnable; in the King's Bench, ubi-
cunque, &c., or wheresoever the king shall then be in England,{a) or, in
the Common Pleas, before the king's justices at Westminster. The first
general return day of the term is usually called the essoin day of that
term ; and formerly, when essoins were allowed in personal actions, if
the defendant did not appear, or cast an essoin on that day, the plain-
tifi", on the next day, might have entered an exception, and obtained an
order that his ession should not be received ;(5^) and from this excep-
tion, so taken and entered, the second day after the return of the writ
was called the day of exception. The third day, the sheriiT returned
his writs into court, which were delivered to the custos brevium and
thence this day was called the day of retorno brevium; and then it
was that the court was seised of the cause, by possession of the
writ. The fourth day was called the appeara7ice day, or dies amo-
ri8,{cc) which was the day given, ex gratid curicc, for the defendant's
appearance : and this, which is denominated the quarto die post, is now the
first day mfull term, on which the court sits for the dispatch of business,
except in Trinity term, when the court, by act of parliament, docs not sit
till the fifth day. The first and last days of every term are days of ap-

The original writ should always be tested after the cause of action ac-

[b) For a table of the Terms and Returns, see Append. Chap. V. § 32.

(c) Regist. 19. "W. Jon. 156. 2 Salk. G27. 6 Mod. 250. 3 I3ur. 1596. 1 Blac. Rep. 49G,
526, S. U.

(a) Trye, 2, and see 1 Chit. Rep. 323. {bb) Gilb. C. P. 13. (cc) Co, Lit. 135, a.



crucd ;((Z) except in the court of Common Pleas at Lancaster, where by
Stat. 39 & 40 Geo. III. c. 105, the parties are allowed to declare upon,
plead and give evidence of any cause of action, or any matter or thing in
bar or preclusion of any personal suit or action, or any other matters or
thin<TS, provided the same shall have accrued or happened prior to the
day of the actual signing and issuing of the writ of capias ad responden-
dum or other process first actually issued forth in such suit or action ; not-
withstanding the same shall not have accrued prior to the teste and return
of the original writ, whereupon such suit or action shall either really or by
fiction of law be grounded. And there must, in general, he fifteen days at
least between the teste and return of the original writ;(e) the law requiring
that distance of time between the service and return : though if there be
less, it will be aided by the defendant's appearing, and pleading in chief :(/)
and, by the statute 24 Geo. II. c. 48, § 5, "all writs and process, having
day from the quarto die p>ost of the morrow of the Ascension, to the mor-
row of the holy Trinity ^ shall be good and eflFectual in law, notwithstanding
there be wot fifteen days between the teste and return of the said writs. "(^)
In proceeding to outlawry, if the instructions be carried to the cursitor
within the first week of a term, (A) or even after that time, and the cause
of action arose early enough, he will, for the sake of expedition, make the

Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 1) → online text (page 26 of 120)