Imágenes de páginas
PDF
EPUB

mation filed in the court of king's bench by the attorney-general, in the nature of a writ of quo warranto; wherein the process is speedier, and the judgment not quite so decisive. And this proceeding is now applied to the decision of corporation disputes between party and party, by virtue of the statute 9 Ann. c. 20. which permits an information in nature of quo warranto to be brought with leave of the court, at the relation of any person desiring to prosecute the same, (who is then stiled the relator) against any person usurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate; provides for its speedy determination; and directs that, if the defendant be convicted, judgment of ouster (as well as a fine) may be given against him, and that the relator shall pay or receive costs according to the event of the suit.

6. The writ of mandamus is also made by the same statute 9 Ann. c. 20. a most full and effectual remedy, in the first place, for refusal of admission where a person is entitled to an office or place in any such corporation: and, secondly, for wrongful removal, when a person is legally possessed. These are injuries, for which though redress for the party interested may be had by assize, or other means, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ also issues from the court of king's bench; commanding, upon good cause shewn to the court, the party complaining to be admitted or restored to

his office. And the statute requires, that a return be immediately made to the first writ of mandamus; which return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue, or demur, and the same proceedings may be had, as if an action on the case had been brought, for making a false return : and, after judgment obtained by the prosecutor, he shall have a peremptory writ of mandamus to compel his admission or restitution.

This writ of mandamus may also be issued, in pursuance of the statute 11 Geo. I. c. 4. in case within the regular time no election shall be made of the mayor, or other chief officer of any city, borough, or town corporate, or (being made) it shall afterwards become void; requiring the electors to proceed to election, and proper courts to be held for admitting and swearing in the magistrates so respectively chosen.

We have now gone through the whole circle of civil injuries, and the redress which the laws of England have anxiously provided for each. And I may venture to affirm, that there is hardly a possible injury, that can be offered either to the person or property of another, for which the party injured may not find a remedial writ, conceived in such terins as are properly and singularly adapted to his own particular grievance.

CHAPTER XVIII.

OF THE PUrsuit of REMEDIES BY ACTION ;

And first,

OF THE ORIGINAL WRIT.

I AM now to examine the manner in which these several remedies are pursued and applied, by action in the courts of common law.

In treating of remedies by action at common law, I shall confine myself to the modern method of practice in our courts of judicature, and state an account of the method of proceeding in and prosecuting a suit upon any of the personal writs, 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 intrenching 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 all of them. So that, in giving an abstract or history 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.

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.

[ocr errors]

First, then, of the original, or original writ; 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 within 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. To this end he is to sue out, purchase by paying the stated fees, an original or original writ, from the court of chancery, which is the officina justitiæ, wherein all the king's writs are framed. It is a mandatory letter from the king in parchment, sealed with his great seal, 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 this writ, he must return or certify to the court of common pleas, together with the writ itself;

of

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.

Original writs are either optional or peremptory ; or, in the language of our law, they are either a præcipe, or a si te fecerit securum. The præcipe is in the alternative, commanding the defendant to do the thing required, or shew the reason wherefore he hath not done it. 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. 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 effectually to prosecute his claim. 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 teste'd, or witnessed in the king's own name;

sheriff security This writ is in

« AnteriorContinuar »