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 the Cornell University Library. 
 
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 http://www.archive.org/details/cu31924020178673 
 
Cornell University Library 
 KF 8840.C87 
 
 Common law practice in civil actions. 
 
 3 1924 020 178 673 
 
COMMON LAW PRACTICE 
 
 IN 
 
 CIVIL ACTIONS. 
 
 BY 
 
 WALTER S. OOX, 
 
 OF THE BAR OF WASHINGTON, D. C, AND INSTEUCTOK IN COLUMBIA» 
 UNIVERSITY LAW SCHOOL. 
 
 WASHINGTON, D. C. : 
 W. H. & O. H. MOERISON, 
 
 LAW PUBLISHEES AND BOOKSELLEES. 
 
 1877. 
 
13 7^3^/ 
 
 Entered according to Act of Congress, in the year 187"7, 
 
 By W. H. & O. H. Morrison, 
 
 In the Office of the Librarian of Congress, at "Washington. 
 
 CAXTON PRESS Of 
 3BESMAN & CO., PHIL ADEI PHIA. 
 
PREFACE. 
 
 This 'C©m>peiidium is not founded m9h eriginal TesearcTiee, 
 and professes to he little tnore tban a •eompilation from 
 standard authors, of acknowledged lauthority- 
 
 Its design may be stated in a few words. 
 
 The author's conaeetion with a law school naturaMy led 
 hira to reflect apon the coarse of legal education generally 
 adopted, and the pessihility of its irHprovement. 
 
 One of its important -defects -eeamed to him to he the lack 
 of systematic instraction in Judicial proeedfure. 
 
 The -gradaate of flie -school, ibowever wdl •versed ihe may 
 be in the tfeeotry of ^is profession, generally has to fbewail 
 his ignorance of practice amd 'his 'Unfitness for that imost 
 important .professional diuty, vi^;: th« ^oodaot of ^ <cause 
 in court. 
 
 It is ■evident that something more is needed, ithan is 
 generally imparted in the schools, to qualify him for the 
 responsible position of a member of the bar. 
 
 The object of this work is, to supply,, in -some degree, this 
 desideratum, and to give t© the student such a familiarity 
 with the forms and proceeding of the courts as will inspire 
 him with confidence in himself and entitle hira to the 
 confidence of his olients, when he enters this important 
 sphere of action. It is, therefore, intended, 'principally, 
 for the use of students, while the hope is (indulged thai 
 
 its usefulness will Hot be confined to thena. 
 
 ,( iii ,) 
 
w prbfa'CE;. 
 
 The Ifead^ng" feature in the plan of tlii& work is- a^ sketch 
 of the practice of the superior courts at "Westminster, or, 
 at least, of that which was conjraon to the King's Bench 
 and Gommon Meas, in actions commenced by original writ. 
 
 With' the- common, law, this practice was derived by the 
 American colonies from the mother country, and, more or 
 less modified, became a part of the procedure of their 
 (3ourts. 
 
 Its adaptation, to the circumstances of this country is 
 next tracedi. ' 
 
 It was, of course, impossible^ in attempting this,, to extend 
 our observation to the different colonies, since become States. 
 We could do no more than select one, for illustration, and 
 while it is aot intended to produce a work on local practice, 
 it was natural that the State of Maryland,, and its offshoot, 
 the District of Columbia, should be selected to illustrate the 
 Americanized common- law practice.. 
 
 We have therefwe shown how the common law practice, 
 simplified, and relieved of much costliness and detail, gov- 
 erned the courts of Maryland,. at the time of her separation 
 fi-.om the mother coH,ntry,.and-at the beginning of the pres- 
 ent century, and how it continued to guide the newly organ 
 rzed courts of the District of Columbia, after its cession to 
 the United States. The moderate and gradual statutory 
 modifications made, from time to- time, in Maryland, during, 
 the last, and in the District of Columbia, during the present, 
 century, in order more com-pletely to adapt this practice to 
 the changing conditions of society,, and remedy defects dis- 
 closed; by experience, are also traced. 
 
 It is likewise shown, how, at an early period, the same 
 practice, in its general outlines and essential features, be- 
 came that of th§ courts of the United States, with certain 
 moderate changes made by statutes.. 
 
PREFACE. V 
 
 In later ttnies, codes of practice have been adopted in 
 many States, and statutes have been passed in England, 
 which make great changes in the forms of procedure. In 
 the light of these, doubt may be felt as to the expediency of 
 bestowing- time wpon the study of the ancient practice. But 
 it cannot be denie<J that the general rules and principles of 
 the common law practice lie at the foundation of even the 
 statutory systems which prevail, and the old system is the 
 point of departure of the novelties which have been intro- 
 duced. A knowledge of this system must conduce to a 
 proper comprehension of the. codes, and is absolutely neces- 
 sary where they are silent, deficient, or obscure. 
 
 Great similarity exists between the English and American 
 innovations in procedure. A short chapter is devoted to an 
 explanation of them, which, it is believed, will tend to show 
 the utility of a study of the law as it existed before they 
 were introduced. 
 
 In works on practice, a large space is ordinarily given to 
 the subjects of Pleading and Evidence. But the copious 
 and excellent works on these subjects, already in use in the 
 schools, dispense the author from the labor of treating them 
 anew. 
 
 In order to a more thorough comprehension of our text, 
 forms of complete records and of interlocutory proceedings 
 are supplied in an Appendix. 
 
 As this work was prepared to meet an exigency, within 
 the space of a few months,, and in the intervals of profes- 
 sional labors, it will not be a surprise to find that it contains 
 errors and defects. The author can only reserve, for the 
 future, the task of amending and enlarging it. 
 
 W. S. C. 
 
TABLE OF CONTENTS. 
 
 PAGB 
 
 Preface, 3 
 
 CHAPTER I. 
 
 CotTBTS, 17 
 
 CHAPTER II. 
 
 PROOEEDINGS BEFORE TRIAL IN ACTIONS BEGUN BY ORIGINAL. 
 
 Section I. Proceedings to defendant's appearance, . . 21 
 
 II. Proceedings after appearance, • . . . .44 
 
 III. Practice in Maryland, 61 
 
 IV. Practice in the District of Columbia, ... 75 
 v. Practice in the Federal courts, .... 80 
 
 CHAPTER III. 
 
 TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 
 
 Section I. Preparation for trial, . • 86 
 
 II. Trial, 95 
 
 III. Verdict, 103 
 
 IV. New trial, Ill 
 
 V. Motion in airrest, 118 
 
 VI. Judgment, 120 
 
 CHAPTER IV. 
 Writ of error, 138 
 
 CHAPTER V. 
 Execution, ^ . . . 163 
 
 ( vii ) 
 
Vlll TABLE OP CONTENTS. 
 
 CHAPTER VI. 
 
 PAGE 
 
 Proceedings against bail, 184 
 
 CHAPTER VII. 
 
 ON SPECIAL ACTIONS AJSTD ACTIONS AGAINST PAETICTJLAR PEKSONS. 
 
 Section I. Ejectment, 190 
 
 II. Replevin, 194 
 
 III. Scire facias, 200 
 
 IV. Certiorari, 204 
 
 V. Habeas corpus, 206 
 
 VI. Mandamus, 210 
 
 VII. Proceedings against corporations, . . . 211 
 
 VIII. Actions by and against executors, etc., . . 212 
 
 IX. Action against heir, 214 
 
 X. Action by and against infant, .... 216 
 
 XI. Husband and wife, 218 
 
 XII. Idiots and lunatics, 219 
 
 XIII. Justices of the peace, 219 
 
 XIV. Actions by paupers, 220 
 
 CHAPTER VIII. 
 
 INCIDENTAL AND COLLATERAL PROCEEDINGS. 
 
 Section I. Motions and rules, 221 
 
 II. Amendments, 227 
 
 III. Entering process to save the statute of limita- 
 
 tions, 235 
 
 IV. Outlawry, 236 
 
 V. Change of venue, 237 
 
 VI. Striking but counts, 239 
 
 VII. Consolidating actions, . . . . . 239 
 
 VIII. Payment of money into court, .... 240 
 
 IX. Staying proceedings, 243 
 
 X. Security for costs, 246 
 
 XL Oyer of deeds, . 248 
 
TABLE OF CONTENTS. 
 
 PAGE 
 
 Section XII. Copies of instruments not under seal, . . 250 
 
 XIII. Particulars of demand, 250 
 
 XIV. Setting aside proceedings, .... 252 
 XV. Discontinuance, 256 
 
 XVI. Putting off the trial, 259 
 
 XVII. Nolle prosequi, 262 
 
 XVIII. Effect of death, bankruptcy, or marriage upon 
 
 the action, 264 
 
 XIX. Arbitration, 271 
 
 XX. Attachment, 281 
 
 XXI. Feigned issues, 285 
 
 XXII. Other incidental proceedings peculiar to Mary- 
 land, 287 
 
 CHAPTER IX. 
 Modern English practice, 290 
 
 APPENDIX. 
 
 PAGE 
 
 English record entries, 299 
 
 Maryland record in assumpsit, • . 313 
 
 Forms of bills of exceptions, 317 
 
 Forms of instructions, 319 
 
 Maryland docket, 322 
 
 " record in replevin, 323 
 
 " " in trover, 327 
 
 " " in ejectment, 329 
 
 Inquiry of damages, 330 
 
 Attachment proceedings, 331 
 
 Affidavit for continuance, 333 
 
 Oaths, 334 
 
 Bond, 335 
 
X TABLE OF CONTENTS. 
 
 PAGE 
 
 Commission to take testimony, . . • , • • • • 336 
 
 Deposition de bene esse, 338 
 
 Suggestions, 340 
 
 Judgments, ' . . • 342 
 
 Attachment for contempt, -^48 
 
 Writ of mandamus, 349 
 
 " habeas corpus, 350 
 
 " certiorari, 350 
 
 " error in United States courts, . .... 351 
 
COMMON LAW PRACTICE. 
 
 CHAPTEK I. 
 
 A BRIEF reference to the English common law courts will 
 be a fitting introduction to the detailed account of their pro- 
 cedure. 
 
 The Court of King's Bench was the Supreme Court King's 
 of common law in England. It consisted of a chief Bench, 
 justice and three puisne justices. 
 
 It was supposed to be held in the presence of the king. 
 Hence, although, in fact, always held in Westminster, it was 
 not fixed there by law, but might follow the king anywhere. 
 Hence, also, process issuing from the court was not made 
 returnable at Westminster, but " ubicunque fuerimus in An- 
 glia." 
 
 This court exercised a supervisory power over inferior 
 jurisdictions, civil corporations, and public officers, ^nd had 
 original jurisdiction in civil and criminal causes, the latter 
 being said to be on the crown side, and the former on the 
 plea side of the court. 
 
 In the distribution of jurisdiction among the several courts 
 Avhich succeeded the Aula Regis, the cognizance of actions 
 for trespass or other injuries committed with force, and of 
 actions for forgery of deeds, maintenance, conspiracy, deceit, 
 and other injuries involving falsity or fraud, was retained by 
 this court, in common, however, with the Court of Commou 
 Pleas, probably because they partook of a criminal character. 
 But purely civil demands, to be redressed by action of debt 
 or detinue, were not, at common law, suable in this court,. 
 
 2 ( 17 > 
 
18 COMMON LAW PRACTICE. 
 
 unless the defendant happened to be an officer of the court 
 or in the custody of its marshal, or prison-keeper, for some 
 offence within the jurisdiction of the court, in which cases 
 he could be sued nowhere else. In the course of time, the 
 court acquired jurisdiction in other cases, by the adoption of 
 a fictitious proceeding. The defendant was supposed to be 
 arrested for a trespass, and then being in custody, could be 
 proceeded against for any other cause of action. 
 
 This court had appellate jurisdiction. Causes were re- 
 movable into it by writ of error, from the Court of Common 
 Pleas and all inferior courts of record. Causes could also 
 be removed by writ of error from this court into the Ex- 
 chequer Chamber or House of Lords, according to the na- 
 ture of the suit. 
 Common The Court of Common Pleas acquired exclusive 
 Pleas, jurisdiction in real actions, and jurisdiction, not ex- 
 clusive, in all personal actions. 
 
 The court consisted of one chief and three puisne justices. 
 The suitor had his choice between these courts in the 
 prosecution of any personal action. The main difference 
 between them was, that in the Common Pleas an action 
 was commenced by original writ, but in the King's Bench 
 it was sometimes begun by a Bill of Middlesex. The orig- 
 inal was sued out of the Court of Chancery, whereas the 
 Bill of Middlesex was a species of capias, issued directly 
 from the Court of King's Bench. It was the mode of pro- 
 ceeding against officers of the court and persons in its cus- 
 tody, and by means of the fiction already referred to it was 
 :applied to other cases also. But in this court, also, suit 
 might be begun by original writ. And inasmuch as this 
 form of proceeding was common to both courts, the action 
 by original will be the subject of the following chapters. 
 
 The Court of Exchequer, consisting of a chief 
 
 Exchequer. ,,, . , ,...,.. ..,, 
 
 ana three puisne barons, had jurisdiction onginallj' 
 i;o recover debts or property belonging to the crown ; but, as 
 in the King's Bench, the officers of this court had the privilege 
 of suing and being sued only in their own court. The king's 
 Kiebtors, farmers, were also privileged to sue in this court. 
 Jlence a fiction, by which the plaintiff suggested that he 
 
king's bench. 19 
 
 was the king's debtor or farmer, and that the defendant had 
 done him the wrong complained of, quo minus sufficiens existit 
 — by which he is less able — to pay the king his debt, and 
 thus the court acquired jurisdiction in all cases. From the 
 language just mentioned, the writ by which an action was 
 begun in this court was called the writ of " quo minus." 
 A writ of error lay from this court to the Exchequer Cham- 
 ber in common law causes. 
 
 The Court of Exchequer Chamber consisted of Exchequer 
 the judges of all three of the superior courts, with, chamber, 
 now and then, the Lord Chancellor also, and had cognizance 
 of causes carried to it by writ of error from the common 
 law side of the Exchequer and certain causes in the King's 
 Bench, and of such as were adjourned to it, to be heard in 
 the first instance, from the other courts, on account of their 
 difficulty and importance. 
 
 From all these superior courts a writ of error House of 
 lay to the House of Lords, to review final judg- ^'''^• 
 ments only. 
 
 The Courts of Assize and N"isi Prius are the courts of Assize 
 only others that require mention. and nisi Prius. 
 
 When an issue of fact was made up on the record at West- 
 minster, it was sent to be tried by a jury in tiie county where 
 the cause of action was laid. Originally, these issues of fact 
 were tried at bar, in the court at Westminster, and the writ 
 still continued to direct the sheriff to summon the jury to 
 be there, but with a clause of nisi prius; i. e., " unless first 
 the judge or judges of assize and nisi prius shall come into 
 the county," etc. At stated times, the judges in question 
 appeared in the county and held a court for the trial of 
 these issues. The judges in question consisted of persons 
 appointed for that purpose, by temporary commission from 
 the crown, among tvhom were usually two of the judges of 
 the superior courts for each of several circuits into which 
 the kingdom was divided. Upon the rendition of a verdict 
 on the issues of fact, the record was returned to- the superior 
 court for further proceedings, as will be more fully explained 
 hereafter. 
 
 There were four terms of the superior courts in Terms. 
 
20 COMMON LAW PEAOTIOE. 
 
 each year, viz., Hilary term, extending from January 23d 
 to February 12th ; Easter term, extending from the Wed- 
 nesday fortnight after Easter Sunday to the Monday before 
 Whitsunday; Trinity term, extending from the next Friday 
 after Trinity Sunday to the Wednesday fortnight after; and 
 Michaelmas term, extending from the 6th to the 2Sth of 
 November. 
 «eturn In cach of thcse terms were certain days called 
 Days, return, days, being those on which writs issued were 
 made returnable. They were generally at the distance of 
 about a week apart. 
 
 The first general return day was called the essoign day, 
 being the day on which the court formerly sat to receive 
 excuses or cssoigns from defendants for not appearing in 
 obedience to writs. But for a long time essoigns have 
 ceased to be allowed in personal actions. 
 Appearance By the indulgence of the courts, parties were 
 ^*y- allowed to appear on the third day after the re- 
 
 turn day. This was called the quarto die post, and came to 
 be the appearance day, although the terms of the writ com- 
 manded an appearance on the return day. 
 
 The principal officers of the King's Bench, who were con- 
 cerned with its civil business, were the Custodes Brevium, 
 Examiner, Filacer, Master, Prothonotaries, Sealer of Writs, 
 and various clerks, among whom the business of the court 
 was distributed. 
 
PROCBEDIN-aS BEFORE TRIAL. 21 
 
 CHAPTER 11. 
 
 PKOOEEDINGS BEFOEE TRIAL, IN ACTIONS BEGUN 
 BY ORIGINAL. 
 
 Section I. 
 
 According to the theory of the common law, the original 
 crown was the fountain of justice. 'No one could ^"'=- 
 prosecute a suit in the king's courts without his special 
 permission. This permission was given in the shape of an 
 original writ, which issued from the Court of Chancery, in 
 the king's name and under his great seal. The writ served 
 a double purpose. It was a command to the sheriff", direct- 
 ing a certain proceeding against. the defendant, and when 
 executed by him and returned to the court in which the 
 defendant was to appear, was a warrant to that court for its 
 further action. 
 
 The forms of these writs were prepared in the Court of 
 Chancery, and some of them were of great antiquity. They 
 were intended to cover all causes of action, and no case was 
 deemed an actionable one to which none of the forms were 
 adapted. These forms gave their names to the different 
 actions, in vogue. 
 
 Thus, for money due on a sealed instrujnent, called an 
 obligation, the action was called debt or covenant. For the re- 
 covery of goods detained, the action was detinue, long since 
 disused; for an injury accompanied by force, it was trespass, 
 vi^hether it concerned real or personal property or was a 
 mere personal injury. 
 
 Replevin was also an ancient action, but it was not com- 
 menced by writ in the superior courts. 
 
 These were personal actions, but there were also real ac- 
 tions, i. e., for the recovery of real property, called the writ 
 of right, formedon, dower and quare impedit, which have 
 long since fallen into disuse. 
 
22 COMMON LAW PRACTICE. 
 
 In the progress of time, new causes of action arose, to 
 which the ancient original writs were not adapted; in view 
 of which, the Statute of Westminster, 2d, 13 Edward I, ch. 
 24, enacted: "That as often as it shall happen in the chan- 
 cery that in one case a writ is found, and in a like case [con- 
 si mill casu], falling under the same right and requiring like 
 remedy, no writ is to be found, the clerks of the chancery 
 shall agree in making a writ, or adjourn the complaint till 
 the next Parliament," etc. 
 
 In pursuance of this authority, numerous new writs were 
 produced, upon the analogy of actions already in use. 
 
 Thus, for injuries to person or property not accompanied 
 witli force, and which therefore were not remediable by the 
 writ of trespass, writs were devised, which were founded on 
 the particular circumstances of each case, and from a sup- 
 posed analogy to the action of trespass were called writs of 
 trespass on the case. The same terms were made to embrace 
 other actions also, such as promises not under seal, in re- 
 gai'd to which writs were also devised, founded upon the 
 particular circumstances of each case. The terms " trespass 
 on the case," therefore, applied to all actions for wrongs with- 
 out force and all actions on contracts not under seal. 
 
 All the forms of writs were registered and preserved in u 
 book called the Register of Writs. 
 
 Jb The writs were said to be of two general kinds, optional 
 and peremptory. Where it was sought to recover land or 
 [_a liquidated debt, or to compel performance of a specific 
 covenant, the writ directed the sheriff' to command the de- 
 fendant to do the thing required, or show cause to the con- 
 trary, on a day named, in the court in which the suit was to 
 be prosecuted. When unliquidated damages were claimed, 
 the writ directed the sheriff" peremptorily to cause the de- 
 fendant to appear in court, provided the plaintiff" gave secur- 
 ity to prosecute his suit.' 
 
 The former was called a prcecipe, and the latter a pone, or 
 si ie fecerii securum. The diffierence will be seen in the fol- 
 lowing forms of writs, in both real and personal actibns, 
 used in the Court of King's Bench or Common Pleas. In 
 the latter, the writs, as will be seen, were returnable before 
 
PROCEEDINGS BEFORE TRIAL. 23 
 
 our Justices at Westminster, the Common Pleas being fixed 
 there by law. 
 
 WRIT OF RIGHT. 
 
 George the First, by the grace of God of the United 
 Kingdom of Great Britain and Ireland King, Defender of 
 the Faith, and so forth, to the sherifl' of , greeting: 
 
 Command C. D. that justly and without delay he render 
 unto A. B. four messuages, four gardens, and four acres of 
 
 land, with the appurtenances, in the parish of , in the 
 
 county of , which he claims to be his right and inherit- 
 ance, and whereof he complains that the aforesaid C. D. un- 
 justly deforces him. And unless he shall so do, and if the 
 said A. B. shall give you security of prosecuting his claim, 
 then summon, by good summoners, the said C. D., that he be 
 before our justices at Westminster, in eight days of Saint Hilary, 
 to show wherefore he hath not done it; and have you there 
 the summoners and this writ. 
 
 Witness ourself at Westminster, on the day of , 
 
 in the year of our reign.' 
 
 WRIT OF DOWER. 
 
 George the First, etc., to the sherift' of , greeting : 
 
 Command C. D. that justly and without delay he render 
 to A. B., widow, who was the wife of E. B., now deceased, 
 the reasonable dower which falleth to her of the freehold 
 which was of the said E. B., her late husband, in the parish 
 
 of , whereof she has nothing, as she says, and whereof 
 
 she complains that the said C. D. deforces her. And unless 
 he shall so do, and if the said A. B. siiall give j'ou security 
 of prosecuting her claim, then summon, by good summoners,/ 
 the said C. D., that he be before our justices of the bench at West- 
 minster, in eight days of Saint Hilary, to show wherefore he 
 hath not done it; and have you there the summoners and 
 this writ. 
 
 Witness ourself at Westminster, the day of , in 
 
 the year of our reign. 
 
24 COMMON LAW PRACTICE. 
 
 WRIT OF DEBT. 
 
 George the First, etc., to the sheriff of , greeting: 
 
 Cpmmand C. D., late of , gentleman, that justly and 
 
 without delay he render to A. B. the sum of pounds, 
 
 of good and lawful money of Great Britain, which he owes 
 to and unjustly detains from him, as it is said. And unless 
 he shall do so, and if the said A. B. shall make you secure 
 of prosecuting his claim, then summon, by good sumrn oners, the 
 said C. D., that he be before us, in eight days of Saint Hilary, 
 wheresoever we shall then be in England, to show wherefore he 
 hath not done it; and have you there the names of the sum- 
 moners and this writ. 
 
 Witness ourself at Westminster, the day of , in 
 
 the year of our reign. 
 
 WRIT OP COVENANT. 
 
 George the First, etc., to the sheriff of , greeting: 
 
 Command C. D., late of , gentleman, that justly and 
 
 without delay he keep with A*. B. the covenant made by the 
 said C. D. with the said A. B., according to the force, form, 
 and effect of a certain indenture in that behalf made be- 
 tween them, as it is said. And unless he shall so do, and 
 if the said A. B. shall make you secure of prosecuting his 
 claim, then summon, by good summoners, the said C. D., (hat he 
 be before us, in eight days of Saint Hilary, wheresoever we shall 
 then be in England, to show wherefore he hath not done it; 
 and have you there the names of the summoners and this 
 writ. 
 
 Witness ourselves at Westminster, the day of , 
 
 in the year of our reign. 
 
 WRIT OF DETINUE. 
 
 George the First, etc., to the sheriff' of , greeting: 
 
 Command C. D., late of , yeoman, that justly and 
 
 without delay he render to A. B. certain goods and chattels 
 
 of the value of pounds, of lawful money of Great 
 
 Britain, which he unjustly detains from him, as it is said. 
 
PROCEEDINGS BEFORE TRIAL. 25 
 
 And unless he shall do so, and if the said A. B. shall make 
 you secure of prosecuting his claim, then summon, by good 
 summoners, the said C. D., that he be before us, in eight , 
 days of Saint Hilary, wheresoever -we shall then be in Eng- 
 land, to show wherefore he has not done it; and have you 
 there the names of the summoners and this writ. 
 
 Witness ourself at Westminster, the day of , in 
 
 the year of our reign. 
 
 WRIT OF TRESPASS. 
 
 For Assault and Battery. 
 
 George the First, etc., to the sheriff of , greeting: 
 
 If A. B. shall make you secure of prosecuting his claim, 
 
 then put by gages and safe pledges C. B., late of , yeoman, 
 
 that he be before us on the morrow of All Souls, wheresoever we 
 shall then be in England, to show wherefore, with force and 
 
 arms, at aforesaid, he made an assault upon the said 
 
 A. B., and beat, wounded, and ill-treated him, so that his 
 life was despaired of, and other vprongs to him there did, to 
 the damage of the said A. B. and against our peace; and 
 have you there the names of the pledges and this writ. 
 
 Witness ourself at Westminster, the day of , in 
 
 the j-ear of our reign. 
 
 WRIT OF TRESPASS. 
 
 Quare clausum f regit. 
 
 George the First, etc., to the sheriti" of , greeting: 
 
 If A. B. shall make you secure of prosecuting his claim, 
 
 then put by gages and safe pledges C. D., late of , yeoman, 
 
 that he be before us on the morrow of All Souls, wheresoever we 
 shall then be in Migland, to show wherefore, with force and 
 arms, he broke and entered the close of the said A. B., 
 
 situate and being in the parish of , in the county of 
 
 , and with his feet, in walking, trod down, trampled 
 
 upon, consumed, and spoiled the grass and herbage of the 
 said A. B., there growing and being of great value, and 
 other wrongs to the said A. B. there did, to the damage of 
 
26 COMMON LAW PRACTICE. 
 
 the said A. B. and against our peace; and have you there 
 the names of the pledges and this writ. 
 
 Witness ourself at Westminster, the — day of , in 
 
 the year of our reign. 
 
 WRIT OF TRESPASS ON THE CASE. 
 
 In Assumpsit — -for Goods Sold and Delivered. 
 
 George the First, etc., to the sheriff of , greeting: 
 
 If A. B. shall make you secure of prosecuting his claim, 
 
 then put by gages and safe pledges C. D., late of , geyitle- 
 
 man, that he be before us, in eight days of Saint Hilary, whereso- 
 ever we shall then be in England, to show for that, whereas the 
 
 said C. D. heretofore, to wit, on the day of , in the 
 
 year of our Lord , at , in the county of , was 
 
 indebted to the said A. B. in the sum of pounds, of 
 
 lawful money of Great Britain, for divers goods, wares, and 
 merchandises, by the said A. B. before that time sold and de- 
 livered to the said C. D. at his special instance and request; 
 and being so indebted, he, the said C. D., in consideration 
 thereof, afterwards, to wit, on the day and year aforesaid, 
 
 at aforesaid, in the county aforesaid, undertook and 
 
 faithfullj^ promised the said A. B. to pay him the said sura 
 of money when he, the said C. D., should be thereto after- 
 wards requested; yet the said C. D., not regarding his said 
 promise and undertaking, but contriving and fraudulently 
 intending, craftily and subtilely, to deceive and defraud the 
 said A. B. in this behalf, hath not yet paid the said sum of 
 money, or any part thereof, to the said A. B. (although 
 oftentimes thereafter requested); but the said C. D., to pay 
 the same, or any part thereof, hath hitherto wholly refused, 
 
 and still refuses, to the damage of the said A. B. of 
 
 pounds, as it is said; and have you there the names of the 
 pledges and this writ. 
 
 Witness ourself at Westminster, the day of , in 
 
 the year of our reign. 
 
PKOCEEDINGS BEFORE TRIAL. 27 
 
 WRIT OF TRESPASS ON THE CASE. 
 
 In Trover. 
 
 George the First, etc., to the sheriff of , greeting: 
 
 If A. B. shall make you secure of pros.ecuting his cUiim, 
 then put by gages and safe pledges C. D., late of , gentle- 
 man, thai he be before us, in eight days of Saint Hilary, whereso- 
 ever we shall then be in England, to show for that, whereas the 
 
 said A. B. heretofore, to wit, on the day of , in the 
 
 year of our Lord , at , in the county of , was 
 
 lawfully possessed, as of his own property, of certain goods 
 and chattels, to wit, twenty tables and twenty chairs of great 
 
 value, to wit, of the value of pounds, of lawful money 
 
 of Great Britain; and being so possessed thereof, he, the 
 said A. B., afterwards, to wit, on the day and j'ear aforesaid, 
 
 at aforesaid, in the county aforesaid, casually lost the 
 
 same and the same afterwards came to the possession of the 
 said C. D. by finding; yet the said C. D., well knowing the 
 said goods and chattels to be the property of the said A. B., 
 and of right to belong and appertain to him, but contriv- 
 ing and fraudulently intending, craftily and subtilely, to 
 deceive and defraud the said A. B. in this behalf, hath not, 
 as yet, delivered the said goods and chattels, or any part 
 thereof, to the said A. B. (although often requested so to 
 do), but so to do hath'hitherto wholly refused, and still re- 
 fuses; and afterwards, to wit, on the day of , in 
 
 the year , at aforesaid, in the county aforesaid, 
 
 converted and disposed of the said goods and chattels to 
 his, the said C. D.'s, own use, to the damage of the said 
 
 A. B. of pounds, as it is said; and have you there the 
 
 names of the pledges and this writ. 
 
 Witness ourself at Westminster, the day of , iu 
 
 the year of our reign. 
 
 The mode of executing these writs was twofold. Procesa. 
 The praecipe was executed by the sheriff, by causing the 
 defendant to be summoned to appear in court, to answer the 
 
28 COMMON L^W PRACTICE. 
 
 exigency of the writ. And if lie failed to appear, iu obe- 
 TBience to the summons, an altachment was issued, com- 
 manding the sheriff to take the goods of the defendant, to 
 be forfeited in case of liis uon-appearauce, or make him find 
 sureties for his appearance, who should be amerced in case 
 of his default. This writ issued out of the court to which 
 the original was returnable, and was tested, or witnessed, by 
 the chief justice of that court. The summons and other 
 proceedings following, being the means of compelling obe- 
 dience to the original writ, were called »rocess. 
 
 The original writ, in the sv te fecerit securum form was, 
 itself, an attachjaagntj and issued in cases where damages 
 were claimed for trespasses with force and in actions for 
 other torts. The security alluded to in this form, though 
 common to both, was the giving of sureties who were to 
 respond for the plaintift''s false clamor, as it was called, in 
 ease of his failure in the action. The judgment, in such 
 case included an amercement or fine of the plaintifi^!, and 
 such continued to be its form long after the sureties came 
 to be merely nominal and were entered as John Doe and 
 Richard Roe. 
 
 If the attachment failed to cause the defendant's appear- 
 ance, the result was a forfeiture of the pje^^^ taken under 
 it, and a writ of distringas, or distress infinite, issued from the 
 same court, commanding the sheriff to distrain the defend- 
 ant, from time to time, and coi\tinuallyjhy holding his goods 
 and the profits of his lands, called issues. These were origi- 
 nally forfeited to the crown, in case of his continued failure 
 to appear, but afterwards, by Stat. 10 Geo. III. might be 
 sold, by order of the court, and applied to payment of the 
 plain tiff"'s costs. 
 
 This, according to Blackston'e, was the end of process in 
 case of injuries without force, the defendant being supposed 
 to be deprived, by repeated distresses, of the means of 
 answering the plaintiff's demand, and not being, according 
 to feudal principles, liable to arrest for merely civil injuries. 
 
 But in case of such injuries accompanied with force, as 
 assault, etc., another writ might now be issued from the 
 same court, called a capias ad respondendum. 
 
PROCEEDINGS BEFORE TRIAL. 29 
 
 Tlie capias was allowed in these cases, because the wrong- 
 doer was in some degree a criminal, liable to answer to the 
 king as well as the individual, and it was supposed that he 
 might escape justice unless his forthcoming was secured; 
 Avhereas iu case of debt, nn the creditor had voluntarily 
 given his confidence, there was not the same reason for 
 enabling him to arrest and imprison. his debtor. 
 
 By virtue of several statutes, this writ was given in i 
 almost all cases, whether the injury complained of was 
 accompanied with force or not. 
 
 If the sheriff could find no property upon which to exe- 
 cute the writ of attachment and dislrwga.s, he made return 
 accordingly by indorsing the word "nihil" on the writ. In 
 this case and in the case of the defendant's default after the 
 execution of those writs, as before mentioned, the writ of 
 capias ad respondendum issued, in the following form, viz. • 
 
 George the First, etc., to the sheriff of , greeting: 
 
 We command you that you take A. B. of , if he may 
 
 be found in your bailiwick, and him safely keep, so that you 
 may have his body before our justices at Westminster, from the 
 day of Easter in five weeks, to answer unto C. D. of a plea, 
 that he render to him one hundred pounds, which he owes 
 him and unjustly detains, as it is said; and have you then 
 and there this writ. 
 
 Witness, E. F., chief justice, etc., the day of , 
 
 A. D. . 
 
 All the writs which follow the original were caWed judicial, 
 were issued under the seal of the court, instead of the great 
 seal, and tested in the name of the c^ji^juatice oj^jhe^^uut- 
 from which they issued. 
 
 In cases in which"' a capias could not b^ used, as in actions 
 against peers, who were exempted from arrest, or against 
 corporations, or where the defendant absconded and it was 
 desired to proceed to outlawry ag5,iDst him, it was always 
 necessary to issue the original writ. 
 
 But it came to be the practice, in other cases, to omit all 
 
30 COMMON LAW PRACTICE. 
 
 actual use of the original or other writs, before the capias, 
 and to begin the action with that, as upon a supposed return 
 of the other writs by the sheriff; especially, where it was 
 supposed that 'the defendant might evade further process, 
 upon being summoned, under the original. 
 
 ■^ In order to begin an action by the original writ, the plain- 
 
 ' tiff's attorney filled up a prcecipe, as it was called, which was 
 simply the language of the original to be issued, viz. : "com- 
 mand A. B." etc., and upon payment of a fine to the king, 
 the writ was issued by the cursitor, an officer of the Court of 
 Chancery. 
 
 Where the suit was to be begun by a capias, the same 
 praecipe, with a memorandum of the attorney's warrant tO 
 sue, was left with the filacer, an ofiicer of the King's Bench, 
 when the suit was to be prosecuted in that court, who there- 
 
 ' upon issued the capias in the first instance. The praecipe 
 was retained by him, as instructions for the original, which 
 might still become necessary in certain cases, as, where a 
 writ of error was prosecuted from a judgment by default, 
 when it could be procured from the chancery, returned and 
 entered nuvc pro tunc. 
 
 O If the defendant was not found in the county to which the 
 writ was first directed, and he was supposed to be in some 
 other county, a writ of testatum capias issued to the latter, so 
 called from its recital, that "it is testified" that the defendant 
 
 is in that county. 
 
 Where the defendant had absconded and the plaintiff 
 would proceed to outlawry against him, it was necessary to 
 sue out an original, and, after the return of the first capias, 
 a second and a third, called, respectively, an alias and a plu- 
 ries, and after them, a writ of exigi facias, which commanded 
 the sheriff to make proclamation for the defendant to render 
 himself. If he still failed to appear, judgment of outlawry 
 would go against him. 
 
 The capias must have been tested on some day in the 
 
 regular term of the court, not being Sunday. It might 
 
 be sued out either iu vacation or during the term. In the 
 
PROCEEDINGS BEFORE TRIAL. 31 
 
 former case it must, and in the latter it might have been, 
 tested, as of the previous term. 1 Arch. Pr., 66. 
 
 All writs were made returnable on some day in 
 
 1 J 1 1 1 /. 1 • 1 Return. 
 
 the term, known as a general return day, or which 
 there were several in each term. An original writ might not' 
 be returnable for several terms after it was issued, but all sub-, 
 sequent writs must have been returnable in the same term 
 in which issued or in the next subsequent term; otherwise, 
 they were totally void. Id. 66. 
 
 It will be observed, that every writ directed the sheriff to 
 have the writ with him on the day of its return. On it he was 
 to indorse his report of what had been done in pursuance of 
 it, which was his return. The returns were generally ab- 
 breviated into a few Latin words, such as, "nihil," i.e., 
 "the defendant has nothing in my bailiwick whereby he 
 may be distrained;" "non est inventus," i. e., "the defend- 
 ant is not found in my bailiwick;" "cepi corpus," i. e., "I 
 have taken the body of the defendant," etc. 
 
 On the return day the writ expired. It could not be exe- ' 
 cuted afterwards. Every new proceeding in a cause was 
 founded, with a kind of logical sequence, on what had pre- 
 ceded. Each writ, except the original, was founded on the 
 return of its predecessor, and could only issue after that 
 return was made. It must, consequently, have been tested 
 on or after that day. 
 
 In order to ascertain in what manner the writ of 
 
 Bail. 
 
 capias was to be executed, it will be necessary to con- 
 sider the subject of bail. 
 
 At common law, in cases of civil injury accompanied with i 
 force, and in actions for debt, etc., after a capias was given 
 by statutes, an arrest of the person might be had in all 
 actions, however trifling, except where the defendant was 
 privileged against, or incapable of, being arrested, as in the 
 case of peers, commoners, ambassadors, corporations, etc. 
 
 To remedy the hardship of this, several statutes were 
 passed in the reigns of the Georges, the substance of which 
 
32 COMMON LAW PRACTICE. 
 
 was, that where the cause of action did not amount to ,£15 
 or upwards, or, in the case of a promissory note or bill of 
 exehange, £10 or upwards, the defendant should not be 
 arrested, but be served personally with a copy of the pro- 
 cess, i, e., of the capias, upon which should be written, in 
 English, a notice to the defendant of the intent and mean- 
 ing of the service; and where the cause of action amounted 
 to more than the sum in question, there must have been 
 made and filed, an affidavit of the cause of action, and the 
 amount of it was to be indorsed on the writ, in order to jus- 
 tify an arrest; otherwise, the service of the writ was to be 
 the same as where the cause of action fell below the amount 
 named. 1 Tidd, ch. 8. 
 
 In the construction of these statutes, the courts held, that 
 where the cause of action was a money demand, as a debt 
 or a claim for damages which could be reduced to a certainty, 
 'as on a bond conditioned for the payment of money, of the 
 requisite amount, bail was demandable, as of course; but 
 that where it sounded in damages merely, and these dam- 
 ages were unliquidated and could not be reduced to certainty 
 without the intervention of a jury, as in actions of covenant, 
 assumpsit on special contract, and actions on tlie case, bail 
 could not be demanded of the defendant, unless a judge's 
 order was obtained for the purpose, which was only given in 
 an aggravated case. 1 Arch. Pr., 48. This gave rise to a 
 division of actions into non-bailahle and bailable. 
 ^ By the old common law, until the defendant appeared in 
 the action there could be no judgment against him, except 
 that of outlawry. Though he were summoned, attached, 
 and distrained, his default did not warrant a proceeding in 
 the cause, in his absence. The statutes before referred to. 
 some of which were too recent to be operative in this country, 
 made important changes in this respect. 
 
 In non-bailable actions against persons not privileged, if 
 the defendant was personally served with a summons or the 
 attachment, as the process upon the original writ, with notice 
 to appear thereunder written, and made default, then, by 
 force of the statute 51 George III, ch. 124, the plaintiff 
 might enter the defendant's appearance and proceed as if he 
 
PROCEEDINGS BEFORE TRIAL. 33 
 
 had voluntarily' appeared. Or, if he could not be person-<^ 
 allj' served, and the summons or attachment, left at his house, 
 failed to produce his appearance, a distringas might be issued, 
 and if this proved fruitless, the plaintiff might enter defend- 
 ant's appearance, as aforesaid. 1 Arch Pr., 298. This was 
 the practice when it was uncertain, in advance, whether the 
 defendant could be personally served. 
 
 Or, where personal service was easy, the praecipe for the 
 original might be filed with the filacer, as before mentioned, 
 and the capias issued immediately, which was executed by 
 serving a copy of it ou the defendant, with a notice, as pro- 
 vided by the statutes aforesaid; and if the defendant failed < 
 to appear within eight days after the return day of the ea-> 
 pias, the plaintiff, on affidavit of service, might enter the 
 defendant's appearance by virtue of the statute 5 George II, 
 27; Id. p. 303. 
 
 Bailable actions were those in which the plaintifl' might 
 insist upon the arrest of the defendant, and the detention* 
 and production, in court, of his person, unless he discharged 
 himself by giving bail for his appearance. 
 
 As will be further seen, the object of compelling his actual 
 appearance was, not merely to obtain a judgment against 
 him, which could be effected after merely entering his ap- 
 pearance in the manner already shown, since the statutes' 
 aforesaid were passed, but to have him committed to prison^ 
 to abide the judgment of the court, unless he would give 
 further bail to rernkr himself into custody after judgment against 
 him, or to pay the judgmmt. 
 
 In bailable actions, then, the plaintiff's object was to 
 
 .Arrsst. 
 
 have the defendant arrested, and the first requisite 
 was to make the affidavit to hold to bail. 
 
 Great particularity was required in framing the aflidavit.^ 
 It was not to be entitled in any cause ; the afliant was re- 
 quired to state correctly his place of abode, to describe the 
 cause of action with certainty, and to swear so positively 
 that, if false, his swearing would. amount to perjury, for 
 
 3 
 
34 COMMON LAW PRACTICE. 
 
 which reason it must have been made before a judge or com- 
 missioner of the court. 
 
 tja It was required to be certain to every intent, and to con- 
 tain such averments and certainty as would be necessary on 
 a special demurrer to a declaration. For instance, an affi- 
 davit to hold husband and wife to bail must liave shown a 
 debt contracted by her befoi-e marriage, and an affidavit in 
 suit by husband and wife, that the debt accrued io her before 
 marriage. If an affidavit to hold to bail for several causes 
 of action was bad as to one, it was bad in toto. 
 
 </ If it was defective in any of these particulars, the defend- 
 ant would be discharged from arrest on common bail, as it 
 was called, which will be explained hereafter; or, if he had 
 given a bail-bond to the sheriff for his appearance, it would 
 be delivered up to him. Defects would be waived by put- 
 ting in special bail, but could not be corrected by supple- 
 mentary affidavits. 
 
 j^ There were certain persons permanently, and others tem- 
 porarily, privileged from arrest. The royal family, ambas- 
 sadors, and peers, were of the former class. The same was 
 true of executors and administrators, in matters affecting 
 the estate represented by them, but it was otherwise where 
 they became personally liable, as by promise to pay the debt 
 of the deceased, or by a decastavit. So, on process against 
 husband and wife, the latter was not liable to arrest. A 
 married woman was exempt generally, unless she fraudu- 
 lently imposed herself on the plaiutiff as a feme sole, in 
 order to obtain credit. So, in actions on bail-bonds, replevin 
 bonds, recognizances, the defendant could not be arrested, 
 nor could he be arrested a second time, at suit of the same 
 plaintifl", for the same cause of action. And in a suit on 
 judgment, where he had been arrested in the original action, 
 he was exempt. Parties and witnesses, while in attendance 
 on court, and for a I'easonable time before and after, in 
 going and returning, were temporarily exempt. 1 Arch. 
 Pr., 38; 1 Tidd, ch. 9; 1 Chitty's Pr., ch. 8. 
 
 There was also an exemption as to place. An officer could 
 -not break open the outer door of defendant's house to arrest 
 
PROCEEDINGS BEFORE TRIAL. 35 
 
 him, but if he had obtained peaceable admission through 
 the outer door, he might break open the inner door. And 
 if he had once arrested the defendant, her might force his 
 outer door to recapture him, in case of escape. If he were 
 in the house of another, after demand of admission and re- 
 fusal, the officer might enter by force. 
 
 One wrongfully arrested could be discharged, on applica-< 
 tion to the court or a judge at chambers. < 
 
 The arrest was made by one or more bailiffs, under war- 
 rant from the sheriff", and could be made at any time before 
 or on the return day of the writ. 
 
 The arrest was made by actual seizure of the person, for 
 which purpose any touching was sufficient; or by some- 
 thing equivalent to it, as where an officer entered a room 
 where defendant was and locked the door, telling him that 
 he was arrested; or by the officer's merely declaring his 
 purpose, when the defendant submitted and conducted him- 
 self as if in custody. 
 
 When the defendant, without even seeing the officer, i 
 sent him a bail-bond with sureties, although the obligors 
 could not deny the arrest in a suit on the bail-bond, yet 
 there was not sufficient evidence of arrest to support an 
 action for a malicious arrest. 1 Arch. Pr., 72 ; 3 Tidd's Pr., 
 ch. 8. 
 
 It was formerly held that the defendant might require theC 
 production of the original writ, until it became the practice^ 
 to file that in the sheriff's office and serve the defendant 
 with a copy. Even then he was considered entitled to in- 
 spect it at the office. The warrant of arrest he was entitled 
 to have produced. Id. 
 
 The defendant, on being arrested, might demand a copy 
 of the writ and an inspection of the warrant, and insist on 
 being taken to a private house for twenty-four hours. If 
 the process was regular, or irregular but not void, an escape 
 or rescue was indictable. But if the writ or warrant was so 
 defective as to be absolutely void, the defendant, in. strict- 
 ness, might resist or escape. But he had no right to use a 
 dangerous weapon or inflict personal injury, or use any force 
 
36 COMMON LAW PKACTICE. 
 
 beyond a mere struggle to escape. Killing an officer under 
 such circumstances was held manslaughter. The safest 
 course was to submit, under protest, and apply to the court 
 for a discharge. Id. 
 Bail- The defendant might either give bail to the sheriff, 
 boDd. for his appearance in court, or give to the plaintiff an 
 attorney's undertaking for his appearance, or deposit, with 
 the sheriff, the sum indorsed on the writ, and £10 for costs, 
 or go to prison. 
 
 To give bail was to execute a bond to the sheriff himself, 
 in his official name, with sufficient sureties, upon condition 
 written, that the defendant should appear at the return of the 
 writ, at the place required by it. 
 
 If the bond was in any different form, it was void, and 
 the sureties could not be sued upon it. So also, if it was 
 executed after the return day. It might, however, be de- 
 fective in some respects without being void, as where, by 
 mistake, it was for a larger amount than was indorsed on the 
 writ, or it misdescribed the cause of action. 
 ^yj^The sheriff might insist on two sureties or might ac- 
 cept one, but if a sufficient bond was tendered, he could 
 not refuse to receive it and release the defendant, unless 
 other bailable writs had meanwhile been lodged at the 
 office. 
 
 iK^The bail thus given was called bail below, while the bail 
 given in court, to abide the judgment rendered, was called 
 bail to the action, and when special, bail above. 
 
 The plaintiff might accept any contract for the defendant' s 
 appearance . It was usual to take an attorney's undertaking 
 to this effect, which, if made directly to the plaintiff or his 
 attorney, the court would enforce by attachment. 
 
 At_common law , the sheriff could not discharg e tjie de^ 
 fendant, even upon receiving frorn him the amount of the 
 debt sworn to and costs. But the statute 43 George III, 
 eh. 46, allowed the amount to be deposited with the sheriff" 
 in place of a bail-boud. Id. 75, 76. 
 
PROCEEDINGS BEFORE TRIAL. 37 
 
 The s heriff 's duty was to produce the body of the defend- 
 ant on the return day of the writ. If he discliarged the 
 defendant meanwhile without bail, he might still perform 
 his duty by retaking him before the return. Ar.d if he 
 made a return of ce-pi corpus and produced the defendant 
 at any time before expiration of the rule on him to bring 
 in the bodj', or even afterwards, before an attachment was 
 moved for, for not obeying the rule, he was not liable to 
 action for an escape or false return. Putting in and per- 
 fecting bail above for the defendant, which will be further 
 explained, had the same effect as the production of the 
 person. 
 
 But if the sheriff , after an arres t, failed to produce 
 
 , , „ , * ., •""'. '^ . - ' ' ■ —' ; , Escape. 
 
 the deiendant at the time required, or to put in and 
 perfect bail above, he^wj^ liable to an action for an ejcage. 
 On payment, however, of what was ascertained by a master 
 to be due to the plaintiff, he might obtain a stay of proceed- 
 ings. If the sheriff" was compelled to pay the plaintiff the 
 amount of his debt, in consequence of having discharged 
 the defendant without a bail-bond, he could not maintain 
 an action against the defendant for the money so paid, in- 
 asmuch as the claim grew out of his own breach of duty. 
 
 An escape was said to be voluntary or negligent ; the 
 former being when the sheriff permitted the defendant to 
 go at large, and the latter where the defendant escaped with- 
 out the officer's consent. After a negligent escape of one 
 held under mesne process, the sheriff' might retake him at 
 any time, even on a Sunday. After a voluntary escape, the 
 party might be retaken at any time before the return of the 
 writ, but not afterwards. After a voluntary escape of one 
 held under execution or final process, the party could never 
 be retaken. 
 
 If the de fenda nt, after he is arrested, but before 
 
 ; . , ,. 1 ■ r«» Beseue. 
 
 being lodged m prison, was rescued from the sheriff, 
 the latter might return that fact, and was excused from the 
 production of the body, but not if the rescue took place after 
 the party was committed to prison. The sheriff's return 
 
So COMMON LAW PRACTICE. 
 
 was a conviction of the party implicated in the rescue, which 
 he could not traverse, and an attachment might immediately 
 issue against him, on application, and the court would pro- 
 ceed to punish him. The ofl'ending party was likewise liable 
 to indictment and to be sued in a special action on the case, 
 by the plaintiff. 1 Arch. Pr,, 78; 1 Tidd, ch. 10, 
 
 The remedy of the party charged with the rescue, if the 
 return was false, was an action against the sheriff for a false 
 return. 
 
 The defendant's first duty, after service of the 
 
 Appearance. 
 
 process, was to enter his appearance in court on 
 or before the fourth day after — quarto die post — the return 
 da}' of the writ. 
 
 The appearance was voluntary or compulsory . In non- 
 bailable actions, as we have seen, if the defendant failed to 
 enter his appearance, the plaintiff could do it for him. 
 
 The appearance w as common or special, which distinction 
 corresponded with that between common and special bail. 
 This latter, again, conformed to the distinction between non- 
 bailable and bailable actions. Wherever the defendant was not 
 liable to arrest he might enter, or the plaintiff", after due aer- 
 , vice of process, might enter for him, a common appearance, 
 or an appearance on common bail, which meant simply nom- 
 inal bail to the action, being the traditional John Doe and 
 Richard Roe. 
 
 Special Wherever, on the other hand, the defendant had 
 B^"- been arrested and was afterwards at large , he must 
 have entered a special appearance and given special bail, or 
 bail above, as they are called. 
 
 S pecial bail w ere persons who undertook, that if the de- 
 fendant should be condemned in the action, he would satisfy 
 the judgment or render himself to the custody of the sheriff, 
 or that they would do it for him. 
 
 The appearance was entered by a simple ordey to the 
 clerk to enter it, and bail was given by the appearance of 
 the bail in person at a judge's chamber, and their recogni- 
 zance or acknowledgment, that they "were indebted to the 
 
PROCEEDINGS BEFORE TRIAL. 39 
 
 crown in a sum named, to be levied of their persons, goods, 
 and chattels, etc., if the defendant should not appear," etc., 
 was taken by the judge's clerk on a bail-piece, which was a 
 slip of parchment containing the titling of the cause, the 
 name of the county, the same as in the writ, term of court, 
 names of parties and bail, and the sum sworn to. 
 
 Bail was usually put in by the defen d ant or bis attorney , 
 but it might be done by the sheriff", to save himself from 
 suit, or by the bail below, for their indemnity. 
 
 With the consent of the plaintiff" or his attorney, only, bail 
 might be put in absolutely, but it was generally de bene 
 esse, i. e., conditionally, and subject to the plaintifl''s objec- 
 tions. ' 
 
 Upon puttin g in btiil de bene esse, th e defendant's attorney 
 was required to g ive a notice thereof without delay to the 
 plaintiff''s attorney, which should be properly entitled as to 
 the court and the cause, and in which such a description of 
 the bail should be given as would enable the plaintiff''s 
 attorney to inquire after them. If the latter accepted the 
 bail, or did not except to them within twenty days after 
 this notice, the bail-piece was filed and the bail considered 
 allowed. 
 
 The plaintiff' sometimes -precluded himself from except- 
 jjjg, as where, before excepting, he declared in chief and 
 not de bene esse, as it was called, and so where he took an 
 assignm,ent of the sheriff''s bail-bond, wljich admitted its 
 sufiicieDcy, and the same bail was afterwards put in above. 
 
 But otherwise, he might, within twenty days after, the no- 
 tice to him aforesaid, file exceptions to the bnil and' give 
 notice thereof to the opposite attorney in writing. 
 
 Upon this, the bail, or, in case they declined, others who 
 were called added bail, were required to justify within four 
 days after the notice. A notice of justification was then given 
 by the defendants to the plaintiff's attorney, which had to 
 be equally explicit with the notice of bail. One day's notice 
 for the original, or two for the added, bail was sufficient. 
 The bail then justified by swearing in person, or, if they 
 lived at a distance, by affidavit, that they were respectively 
 householders or freeholders and worth double the sum sworn 
 
40 COMMON LAW PRACTICE. 
 
 to, after payment of all debts. The plaintiff's attorney might 
 examine them, or otherwise show their insufficiency, or ob- 
 ject to the allowance of bail on the ground of irregularity 
 in the notices or other proceedings. If the bail was allowed . 
 bail was then said to be perfected, an order of allowance 
 was drawn up, and a copy served on the plaintiff's attorney, 
 and the bail-piece- withdrawn from the judge's chambers 
 and tiled in the court. The recognizance of the bail was 
 then entered on the recognizance roll, and so made matter 
 of record. 1 Arch. Pr., 80-89; 1 Tidd's Pr., ch. 11. 
 
 When the defendan t had been kept in custody , he was 
 allowed to put in and perfect bail at any time before iinal 
 judgment, and thereby obtain his discbarge .- Id. 
 
 But where the defendant had been discharged by the 
 sheriff", as before mentioned, bail must have been put in 
 and perfected within the time prescribed for appearance, 
 or the defendant was in default, and further proceedings 
 against him or the sheriff" were in order. 
 
 If the defendant failed to appear, or, in other words, to 
 put in and perfect bail above, in bailable actions, if he had 
 given a bail-bond to the sheriff", the plaintiff" had his choice 
 between proceeding against the bail and proceeding against 
 the sheriff". 
 
 Assignment of If the bail-bond was sufficient, it was usual 
 Bail-bond. ^q take au assignment, which was made by in- 
 dorsement on it under hand and seal, in presence of two or 
 more witnesses. It was tbe sherift''3 duty to assign the bond , 
 and an action on the case lay for his refusal to do it. But 
 after bail above had been allowed, or after the plaintiff" had 
 elected to proceed directly against the sheriff by attachment 
 for not bringing in the bodj', he could not insist on an as- 
 signment, although the sheriff" might make it voluntarily. 
 
 The plaintiff, by taking the bail-bond, if it was valid, dis- 
 charged the sheriff. 
 
 The plaintiff could sue on the bail-bond in his own name, 
 
PKOCBBDINSS BEFORE TRIAL. 41 
 
 but not until after the time for putting in and perfecting 
 bail had expired, and was obliged to sue in the same court 
 in which the original action had been brought. 
 
 But the court would set aside proceedings on the bail- 
 bond i f either party had died before the return of the writ, 
 or even if the death had occurred afterwai'ds, too soon for 
 the plaintiff to have recovered judgment, on payment of 
 costs. And so, on payment of costs, proceedings would be 
 stayed if a trial had not been lost by delay in the original 
 action, and the defendant would put in and perfect bail, even 
 after the time allowed for it, and speed the trial. (1 Arch. 
 Pr., 100, 103; 1 Tidd's Pr., ch. 12.) 
 
 And the same would be done, even if the plaintiff had 
 lost a trial, if the defendant would file an affidavit of merits, 
 and the bail consented that the bond should stand as a secu- 
 rity for the debt and costs of the original action. The same 
 relief was given where there was irregularity in the proceed- 
 ings in the original action, or no return of "cepi corpus," 
 or the debt, interest, and costs were paid into court. Id. 
 
 If the sheriff had discharged the defendant without taking 
 a bail-bond, the plaintiff' had ho choice but to proceed against 
 the sheriff". And if he was dissatisfied with the bail-bond, he 
 might elect to do so. After taking an assignment of the 
 bond, he could not so proceed unless the bond proved to be 
 void. 
 
 The first proceeding was to lay a rule on the sher- Ruieoo 
 iff, as it is called, i. e., to have an order upon him, ^^^''^^ 
 passed by the court, to return the writ. It was in the fol- 
 lowing form, viz. : " It is ordered, that the sheriff of London 
 shall, within four days next after service of this rule, to be 
 given td their secondaries, peremptorily return the writ of 
 capias, issued between the parties." The rule could not be 
 taken before the day when the return should have been 
 made. 
 
 The rule required him to return the writ in four or six 
 days, and as the object was to proceed against the sheriff, as 
 for a contempt, in case of his disobedience, it must have 
 
42 COMMON LAW PRACTICE. 
 
 been served personally on the sherift' or under-sheriff, by 
 leaving a copy with hira and showing the original. It was, 
 in fact, a general principle, that no one could be punished 
 for contempt, for not obeying an order of court, unless it had 
 been ■personally served upon hira. 
 
 Attachment If the sheriff failed to return the writ on o r 
 
 against sheriff. |;)efore the day on which the rule expired, an 
 attachment for contempt could be moved for on the next 
 day . This was in the nature of a criminal process, directed 
 to the coroner, wheu it issued against the existing sheriff, 
 and to the latter, when it issued against the late sheriff, com- 
 manding him to attach (or arrest) the sheriff, so as to have 
 him in court ou a general return day, "to answer for certain 
 trespasses and contempts by him lately done and committed 
 in our court before us." This attachment was a°:ainst the 
 ■person , and differed from the attachment issued as process 
 on the original writ, which affected only the goods. The 
 late sheriff was authorized and bound to execute all unexe- 
 cuted writs, notwithstanding the expiration of his office, and 
 was, equally with the existing officer, liable to be proceeded 
 against for neglect of this duty. The proceeding by attach- 
 ment was in the name of the king, as prosecutor. 
 
 This proceeding might be set aside on motion, if there 
 was irregularity in the previous proceedings, or on fair 
 terms, in order to let in a trial upon the merits. Where, for 
 instance, a trial had not been lost, it would be done on pay- 
 ment of costs and putting in and perfecting bail, and where 
 a ti'ial had been lost, with the further condition that the 
 attachment should stand as security to the plaintiff, in the 
 event of his obtaining a verdict. 
 
 If the attachment was not set aside , the sheriff could only 
 be discharged upon payment of the whole debt and costs, to 
 the extent, at least, of the bail-bond, if any. And his qwu 
 relief was by suit upon the bail-bond, if one was taken. 
 1 Tidd, ch. 12; Arch. Pr., 93-99. 
 
 But the sheriff' might make any one of seve r al retuTns. 
 viz. : 1. That the defendant is not found ; 2. That he has 
 
PROCEEDINGS BEFORE TRIAL. 43 
 
 taken him and has him ready; 3. That he has taken him, 
 but that he is sick or dead; 4. That he has taken him, but 
 he has escaped or been rescued, or been discharged or deliv- 
 ered over to another custody, by order of the plaintift" or of 
 the court. 
 
 If the return of non est inventus vyas false, the plaintiff 
 might sue the sheriff for a false return. 
 
 If the sheriff returned "cepi corpus ei ^aralum habeo," but 
 in point of fact had discharged the defendant without bail, 
 he was liable, as we have seen, to an action for an escape, if 
 the bail above were not perfected within the required time.. 
 
 But the plaintiff, both in this case and where su ie to bring 
 a bail-bond had been taken, miglit elect to pro- in the body. 
 ceed against the sheriff, in the original action . Accordingly, 
 after such a return, if the bail above were not put in, the 
 plaintiff obtained a further rule upon the sheriff, to bring in 
 the body of the defendant. 
 
 Or, if .bail had been put in, but had not justiiied, he 
 excepted to the bail and obtained the same rule, in order to 
 compel the justification. 
 
 This rule could not be taken out until the expiration of 
 the rule to retui'n the writ, and could not be tested before 
 that day. It was, like the other, a four or six-day rule, and 
 must have been served personally, by exhibiting the original 
 and leaving a copy with the siieriff or under-sheriff. 
 
 If the sheriff then failed to produce the defendant, or put 
 in and perfect bail above, within the time fixed by the rule, 
 or, in case the rule were served on the last day of a term, 
 failed to do so on or before the first day of the next term, 
 the plaintiff might obtain an attachment against the sheriff, 
 in the same maniier and with the same results as in case of 
 refusal to return the writ. 
 
 It was not necessary that the defendant's body be actuall y 
 brought into court. It was sufficient that he be shown to 
 be actually in custody. And if he was not in the sheriff's 
 custody, the latter might put in special bail for him, and the 
 bail without waiting to justify, might take and surrender the 
 
44 COMMON LAW PRACTICE. 
 
 defendant, in their discharge. The proceeding was .the same 
 ajjainst a late as against the existing sheriff. Id. 
 
 The bail to the sheriff had no right to take and surrender' 
 the defendant, but might protect themselves by becoming 
 special bail, when, without waiting to justify, they could 
 arrest the defendant and surrender, him in their own dis- 
 charge. Petersdorft" on Bail, 397. 
 
 If a defendant v^ns already in custody, under process in 
 another action, the mode of proceeding in a bailable action 
 was to sue out process, as in other«cases, which was lodged 
 .at the sheriff's office. By virtue' of this, the defendant was 
 detained, as if he had been arrested under the process. 
 
 If the cause of action was not bailable, the defendant was 
 proceeded against as if he were at large, by serving him with 
 a copy of the process. 1 Tidd, ch. 15. 
 
 By means of the proceedings before detailed, the plaintiff 
 effected his first object, by securing the defendant's appear- 
 ance in court, or obtaining, in place of it, the sheriff's bail- 
 bond or the sheriff's personal responsibility, as security for 
 his claim. 
 
 Section II. 
 
 The defendant's appearance in court being se- 
 cured, it was then the duty of the plaintiff to file 
 his declaration. 
 
 Before the return, he could not declare at all . Between 
 the return and the time limited for defendant's appearance, 
 where he had not actually' appeared, in cases where the pro- 
 cess was against the person, the plaintiff might tile a decla- 
 ration de^bene esse, as it was called, i. e., conditionally, and it 
 became absolute on the defendant's appearance. But where 
 the process was not against the person the declaration could 
 not have been Hied until the defendant's actual appearance. 
 The advantage of declaring de bene esse was, that it expe-r 
 
PROCBBDINQS BEFORE TRIAL. 45 
 
 dited the cause. For, if such declaration was filed, the 
 plaintiff was entitled to indorse on it ti notice to the defend- 
 ant to plead witliin four or eight days, according to circum- 
 stances, and that otherwise judgment would be entered for 
 the plaintifl". Notice of the filing of the declaration was to 
 be given four clear days before the end of the term. But 
 if the declaration was filed after that time, the notice in- 
 dorsed was, to plead within the first four days of the ensuing 
 term. 
 
 Upon the defendant's entering a common appearance and 
 filing common bail after this, or upon the plaintiff's doing 
 so for him, in pursuance of the statute, and in bailable cases 
 upon the defendant's putting in and perfecting special bail, 
 the declaration became absolute a nd the notice to plead 
 operative. It was optional, however, with the plaintiff, 
 whether to proceed in this speedy way or wait and declare 
 absolutely, after defendant's appearance. 
 
 After the time limited for the defendant's appearance had 
 expired, an-d before he had appeared, the plaintiff could not 
 declare at all, but must have proceeded on the bail-bond or 
 against the sheriff" to compel an appearance, or, in non-bail- 
 able cases, have entered an appearance for the defendant, in 
 pursuance of the statute, and then declared absolutely. 1 
 Arch. Pr., 105, 106. 
 
 If, however, the defendant had regularly entered an ap- 
 pearance, the plaintiff" had a limited time within which to 
 file his declaration. 
 
 The rule was, that he had until the end of the next term 
 after that in which the process was returnable. If he failed 
 to declare, the defendant might, before the end of the 
 second term, or within four days of it, enter a rule to 
 declare and demand a declaration, and on the plaintift"'s 
 failure to declare before the rule expired, might sign a judg- 
 ment of non pros, at any time before the first general return 
 day, called the essoign day, of the next term. But if no rule 
 were laid, the plaintiff" had until such essoign day of the 
 third term, for filing his declaration. 
 
46 COMMON LAW PRACTICE. 
 
 The rule in question would be entered thus : "And there- 
 upon the said A. B., defendant, by his said attorney, prays 
 that the said C. D., plaintiff, may declare against him, the 
 said defendant in the plea aforesaid ; whereupon it is ruled 
 by the court here that the said C. D, declare against the said 
 A. B. in the plea aforesaid, or judgment will be rendered 
 against him by default." For forms of judgment, see Ap- 
 pendix. 
 
 The plaintiff, if not ready to declare, might obtain rules 
 for further time until the first day of the next term. On the 
 other hand, the defendant might move for a peremptory rule 
 on the plaintiff to declare before the end of the term. 
 
 If one onlj' of several defendants was arrested, it was 
 proper ibr the plaintiff to move for time to declare against 
 him, until the appearjmce or outlawry of the others, as it 
 would have been irregular to deliver a declaration to the 
 one arrested and afterwards to the others. 
 
 The plaintiff, in actions by original, was allowed also to 
 declare by the by, which meant, to declare for any other cause 
 of action than that set forth in the writ, after be had de- 
 clared, in chief, i. e., in pursuance of the writ. 
 
 On the failure of the plaintiff' to declare within the time 
 required, or such further time as he might obtain, the de- 
 fendant could sign judgment of non pros., as before men- 
 tioned. So, if the plaintiff", having sued several, declared 
 against one only, in bailable actions, the other might sign 
 judgment of non pros. 
 
 The practice required several warnings to be given to the 
 defendant, to answer the plaintiff''s complaint, before a judg- 
 ment by default, for want of a plea, could be entered against 
 him, to wit : a notice to plead, a rule to plead, and, in some 
 cases, a demand of a plea. 
 
 Notice The declaration, with a notice indorsed on it, to 
 to plead, plead within four or eight days (according to' cir- 
 cumstances), was either delivered to the defendant or his 
 attorney, to be copied and returned, or filed with the clerk 
 of the court, in which latter case notice of the filing was 
 
PROCEEDINGS BEFORE TRIAL. 47 
 
 given to the defendant's attorney, if he had appeared, and to 
 the defendant himself if an appearance had been entered for 
 him. 
 
 Where the defendant had filed common, or put in special 
 bail, a copy of the declaration was also served on his attorney. 
 
 Where the defendant's appearance had been entered by 
 the plaintiff, the notice in question was served by leaving it 
 at his usual or la§t place of iibode, and it was required to be 
 served on all of several defendants. 
 
 Any irregularity in the notice or its service was ground 
 for setting aside a judgment by default for want of plea. 
 
 The notice to plead was usually indorsed on the de- 
 claration, but might have been given on a different 
 paper and served after filing the declaration. 1 Arch. Pr., 
 105, 110. 
 
 When the plaintiff declared absolutely, the notice was, to 
 plead within four or eight days, according to the venue and 
 the distance of defendant's residence from London, provided 
 the declaration was delivered at least four clear days before 
 the end of the term, and if the defendant failed to plead 
 within the time, the plaintiff might sign judgment. 
 
 Where the plaintift" declared de bene esse, there was some 
 immaterial difference in the proceedings. 
 
 If the declaration was not delivered or filed and notice 
 of it given, four clear days before the end of the term, the 
 defendant was entitled to an imparlance, and had to plead 
 within the first four days of the next term, provided the 
 declaration was delivered before the essoign day of that 
 term. The notice to plead was given accordingly. 
 
 The imparlance or licentia loquendi, was a leave 
 
 , Imparlance. 
 
 given by the court, to the defendant, to imparl 
 or speak with the plaintiff", with a view to amicable adjust- 
 ment of the suit. It amounted simply to giving the de- 
 fendant further time to plead. 
 
 Where he had appeared, as required by the writ, and the 
 writ was not returnable before the last return day of the 
 term, or where the plaintiff" omitted to file his declaration, 
 
48 COMMON LAW PRACTICE. 
 
 with notice to plead, four clear days before tlie end of tlie 
 return term, the pluintift', upon declaring, was not entitled 
 to a plea within four or eight days, but the defendant was 
 entitled to imparl over, as it was called, to the next term. 
 And if the plaiutiff did not deliver or file his declaration 
 before the essoign day of that term, another imparlance to 
 the next term followed, with leave to plead within the first 
 four days of it. 
 
 A general imparlance was a leave to imparl generally to 
 
 the next term, and wiierever defendant was entitled to it, 
 
 - might be entered as of course. After a general imparlance, 
 
 the defendant could only plead in bar, and not in abatement 
 
 or to the jurisdiction, or any other dilatory plea. 
 
 A special imparlance was a leave to imparl over to a day 
 named, sometimes in the same term, which contained a 
 saving of exceptions to the writ or count. 
 
 Where the imparlance was given, on motion, with a saving 
 of all advantages and exceptions whatsoever, it was called a 
 general special imparlance. 
 
 The entry of the imparlance would be thus: " And the 
 said defendant, by his said attorney, defends, etc., and praj-s 
 
 leave of the court farther to imparl until the day of 
 
 , and he hath it; and the same day is given to said 
 
 plaintiff," etc. 
 
 Where the plaintiff amended his declaration, the defend- 
 ant was entitled to two days after the amendment, to plead 
 anew. 
 
 Where the defendant craved oyer, he was entitled to as 
 many days, after it was granted, as he had when he de- 
 manded it. 
 
 Further time If the defendant was not prepared to plead 
 to plead. within the time prescribed by the notice, he could 
 obtain further time, by obtaining a judge's summons and 
 serving it on the plaintiff''8 attorney, to attend before the 
 judge, and obtaining the judge's order for the time. The 
 order must then have been served on the plaintiff's attorney. 
 
PROCEEDINGS BEFORE TRIAL. 49 
 
 The order was usually given on terms, such as pleading, 
 pleading to the merits, taking short notice of trial, etc. 
 
 If the defendant failed to plead within the extended time, 
 the plaintiff might sign judgment on the next day. 
 
 But if there was no order of the court for plead- R„ieto 
 ing within a limited time, it was necessary to enter p^""^- 
 a rule to plead, in all cases. The rule was expressed as fol- 
 lows, viz. : 
 
 " IN THE king's bench. 
 
 A. B. -\ 
 
 V. > Eule to plead. 
 
 CD. J E. P., 
 
 Attorney." 
 
 And it was entered by the clerk in a book. 
 
 The rule could not be entered before the delivery or filing- 
 of the declaration, but might be on the same day or at any 
 time afterwards, even before defendant's appearance. This 
 was a four days'" rule, and after the time for pleading had 
 elapsed, according to the rules alreadj' stated, the plaintiff 
 might sign judgment the day after the rule to plead expired. 
 But if the judgment was not signed of the term in which 
 the rule to plead was entered, and the cause was allowed to 
 go over to the next term, without further proceeding than 
 the rule to plead, a new rule was necessary. Where, how- 
 ever, after rule to plead, the proceedings were stayed by 
 injunction, the plaintiff might sign judgment after dissolu- 
 tion of injunction without a new rule. 
 
 The aforegoing rnle was subject to this qualifica- Demand 
 tion, viz. : that in case where the defendant appeared or "^ p'''*- 
 put in bail, in addition to the rule to plead, there must have 
 been a demand of a plea, delivered to defendant's attorney, 
 in the following form, viz.: 
 
50 COMMON LAW PRACTICE. 
 
 " IN THE king's bench. 
 
 J.N. 
 
 V. 
 
 J. S. 
 
 The plaintiff demands a plea in this case. 
 
 A. B., 
 
 Plaintiff's attorney." 
 
 The demand might have been made before giving a rule 
 to plead, and even at the time of delivei-ing the declaration, 
 or it might be indorsed on the declaration. But if made 
 before bail was put in, it was a waiver of bail, and if after 
 that, but before justification, it was a waiver of justification. 
 
 The plaintiff could not sign judgment until twenty-four 
 hours after the demand, though the rule to plead had ex- 
 pired. 
 
 If the defendant chose to plead before demand, however, 
 it was a waiver of the demand. Id. 111-120. 
 
 " After the time specified in the notice to plead and the 
 rule to plead had expired, and twenty-four hours after the de- 
 mand of a plea, where that was necessary, the plaintiff could 
 sign judgment, if no plea was filed. 
 
 There were also cases in which the plaintiff' could sign 
 judgment, as for want of a plea, on account of the irregu- 
 larity of the defendant's plea, as, where he pleaded in abate- 
 ment after a general imparlance, or plreaded " Tiil debet" to 
 an action of assumpsit, or "non assumpsii" to an action of 
 ■debt, or pleaded tender, without payment of the money into court, 
 or pleaded double pleas without leave of the court, or filed 
 a dilatory plea without affidavit, or pleaded prematurely, as, 
 for example, before putting in and perfecting bail, in bail- 
 able actions; the pleas, in all such cases, being treated as 
 ^mere nullities. 
 
 .pj^^ The pleas had to be filed or delivered to the plain- 
 tiff's attorney, in conformity with rules of the court, 
 :and could be withdrawn or added to, with the court's leave, 
 -and on such terms as the court might impose. 
 
PROCEEDINGS BEFORE TRIAL. 51 
 
 There was no time limited for the replication 
 or other subsequent pleadings, unless the parties 
 respectively were ruled to reply, rejoin, etc. 
 
 In order to compel a replication, the defendaht obtained 
 a rule from the clerk, on the back of his plea, and served a 
 copy on the plaintiff's attorney, in such form as this: "A 
 r. B. Monday next to reply." This was a four days' rule. 
 The same proceeding was observed, to compel other subse- 
 quent pleadings, and in any case, on failure of the party 
 ruled, to comply within the four days, the other party might 
 sign judgment; except, that a party was not compelled to 
 take more than one step in his pleadings at the same terra. 
 Judgment of non pros, was signed against the plaintiff in case 
 of his default, and in case of defendant's default, the plain- 
 tiff might treat it as an abandonment of the plea, strike out 
 all the previous pleadings, and sign judgment for want of a 
 plea. 
 
 Where the plaintiff, instead of replying, made a new as- ■ 
 signment, the defendant might be ruled to plead to it, in the 
 same manner as upon the original declaration. Id. 120-125. 
 
 Though each party may have delivered to his opponent 
 complete copies of his pleadings, yet, by the established 
 practice, before they could proceed to trial, it was neces- 
 sary for the party pressing the trial to make up and deliver 
 to the opposite party an entire copy of all the pleadings 
 in consecutive order. Where the general issue had been 
 pleaded, or the pleadings had been simply delivered by one 
 attorney to the other when an issue was reached, the whole 
 was called the issue. Where the pleadings had been filed and 
 an issue reached concluding to the country, or an issue upon 
 nul tiel record, they were together called the paper book. 
 Where either party had demurred, the pleadings thus copied 
 in full were called the demurrer book. The object of requir- 
 ing this copy of the pleadings to be delivered was, to prevent 
 any variance or dispute as to tlje exact state of the plead- 
 ings. 
 
 In order to prevent dispute in case of loss of pleas or 
 copies so delivered, it was further required that a copy of 
 
52 COMMON LAW PRACTICE. 
 
 t?je issue should be entered on a roll kept in the custody of 
 an officer of the court, called the issue roll, though it became 
 the practice to enter merely an incipitur or commencement 
 of it before the nisi prius record could be signed, sealed, 
 and passed. 
 
 " Paper The paper book or issue consisted of a copy of the 
 Book, declaration and subsequent pleadings down to the 
 issue. 
 
 Where the suit was by original, the pleadings were all 
 supposed to be of the same term, and it was not necessary, 
 in making up the issue or paper book, to enter continuances 
 by imparlance. It was otherwise when the suit was by bill. 
 
 Award of The pleadings were followed by an award 5f the 
 
 Venire, venire facias, thus : 
 " Thereupon the sheriff is commanded that he cause to 
 
 come here, on the day of , twelve good and lawful 
 
 men, etc., by whom, etc., because as well the said plaintiff 
 as the said defendant have put themselves on the said jury." 
 
 The issue or paper book, where the general issue had 
 been delivered to the attorney and not filed, was made up 
 by the attoiniey, and where the pleadings had been filed, by 
 the clerk. 
 
 Where the pleadings were closed by the plaintiff's con- 
 cluding to the country or demurring, or the plaintiff had 
 nothing to do but to add the similiter or join in demurrer, 
 or reply the common replication to nul tiel record, the plain- 
 tiff could at once make the joinder of issue and have the 
 issue or paper book made up, and deliver it to the defend- 
 ant's attorney, who was bound to return it in four days 
 thereafter, under penally of having judgment signed by the 
 plaintiff. 
 
 If the plaintiff''8 attorney omitted to make up the issue 
 or paper book, the defendant might do so, and deliver it to 
 the plaintift''s attorney. 
 
 But if there was any irregularity in making it up, or any 
 variance between it and the declaration, etc., the defendant's 
 
PROCEEDINGS BEFORE TRIAL. 58 
 
 attorney, instead of accepting and returning it, which would 
 be a waiver of objection to it, could obtain a judge's order 
 for setting it aside. 
 
 The defendant's attorney was also at liberty to strike out 
 his special pleading and return the paper book with the 
 general issue, or strike out the similiter entered by the 
 plaintift", and enter a demurrer. 
 
 The plaintiff was then required, as already stated, to enter 
 the issue or paper book on the issue roll. In practice it was 
 not usual to do it until after the trial, when the subsequent 
 proceedings, including judgment, were entered together as 
 the judgment roll. But the defendant could, at any time, 
 oblige the plaintiff -to enter the issue, to enable him to ob- 
 tain judgment of non pros, and for other purposes. 
 
 And in replevin and one or two other actions, where both 
 parties were deemed actors, either might mak^ up and enter 
 the issue. Id. 126-134; 3 Chitty's Pr., ch. 24. 
 
 The plaintiff was required also to give to defend- Notice of 
 ant, or his attorney, a notice of trial, which had to be ''^'''^'■ 
 an eight, ten, or fourteen days' notice, according to circum- 
 stances, unless the defendant was under terms to take short 
 notice pf trial, which might be four or two days' notice. 
 
 This notice was usually indorsed on the issue when deliv- 
 ered to the defendant, but might be given separately. It 
 was of the following tenor, viz. : 
 
 " IN THE king's bench. 
 
 "A. B., Plaintiff, v. C. D., Defendant. 
 
 " Take notice of trial in this cause for the sittings, 
 
 within this present term, to be held at Westminster, county 
 of Middlesex (or, ' for the next assizes to be holden at Ox- 
 ford, in and for the county of Oxford'), etc. Dated the 
 
 day of . 
 
 "E. F., 
 
 " Plaintiff 's Attorney." 
 "To G. H., Defendant's Attorney." 
 
54 COMMON LAW PRACTICE. 
 
 Irregularities iu the form or service of notice were ground 
 for setting aside a verdict, unless waived by the conduct of 
 the opposite party. If no proceedings had taken place for 
 four terms, then, to avoid surprise upon the defendant, a 
 whole term's notice of trial was necessary. The plaintiff 
 might countermand his notice, and whenever he did not 
 proceed to trial according to his original notice, he must 
 have given a new one. 1 Arch. Pr. 135-139. 
 
 Such was the course of proceeding with reference to 
 pleading in bar of the action. 
 
 " Dilatory The defendant might, however, file what were 
 Pleas, called dilatory pleas. They must have been filed in 
 the following order : 
 
 1. To the jurisdiction. 
 
 2. In abatement. 
 
 1. To the person of the plaintiff. 
 
 2. To the person of the defendant. 
 
 3. To the court. 
 
 4. To the writ, 
 
 — To plead in bar was to waive all these pleas, and to plead 
 one of these was to waive all prior to it in the above order. 
 
 The rules of practice were stricter against these pleas 
 than against pleas to the merits of the action. 
 
 If the declaration was delivered, or filed and notice given, 
 before the last three days of the term, the plea to the juris- 
 diction or in abatement must have been filed on or before 
 the fourth day thereafter, otherwise the plaintiff' might sign 
 judgment, though there had been no rule to plead, or it had 
 not expil*ed. If the declaration was delivered, or filed and 
 notice given, on anj' of the last three days of the term or in 
 vacation, the plea must have been filed within the first four 
 days of the next term, but defendant must have obtained a 
 special imparlance continuing the cause over, with leave so 
 to plead. 
 
 Pleas to the jurisdiction, of misnomer, and coverture, were 
 to be' made by the defendant in person, not by attorney. 
 
PROCEEDINGS BEFORE TRIAL. 55 
 
 Pleas in abatement or to the jurisdiction had to be veri- 
 fied by affidavit, otherwise they were treated as nullities and 
 judgment was signed. 
 
 If the plaintift' had no answer to the plea, he entered on 
 the roll a Cassetur breve (let the writ be quashed), and pro- 
 ceeded anew. He might, however, I'eply or demur in like 
 manner as to pleas in bar. 
 
 When an issue in fact was joined, the paper book was 
 made up as in other cases. Judgment on the verdict was 
 final, and the damages were to be assessed by the jury, if 
 they found for the plaintift'. The omission could not be 
 supplied by a writ of inquiry, and a venire de novo would 
 have to be awarded. 
 
 Judgment for the plaintiff", on a demurrer to a dilatory 
 plea, or on a replication of nul tiel record, was not final, but 
 a respondeat ouster. 
 
 Judgment for the defendant on a dilatory plea was, that 
 the writ be quashed. 
 
 Where the plaintiff" demurred generallv, he de- 
 
 f •■ Demurrer. 
 
 hvered the demurrer to the opposite party s attor- 
 ney, but a special demurrer, or general demurrer after a 
 special plea, was filed with the clerk, and a copy delivered. 
 
 If the plaintiff demurred, he might at once add the join- 
 der in demurrer and make up a demurrer book. If the 
 defendant demurred, the plaintiff did not file or deliver a 
 joinder on demurrer, but added it in making up the de- 
 murrer book. He might, however, be ruled to join, and non 
 pressed for failure to do so; or the defendant might add the 
 joinder and make up the demurrer book. 
 
 The demurrer was like the' issue on a paper book, em- 
 bracing the pleadings down to the issue of law, and differ- 
 ino- only in the conclusion, which, instead of being the 
 award of a venire, gave a day to the parties " to have judg- 
 ment thereon, for that the court, etc., are not yet advised 
 thereof." 
 
 If there were issues in fact and law also, it was optional 
 with the plaintiff which he would have determined first. But 
 after the entry of the curia advisare vuli, the award of a 
 
56 COMMON LAW PRACTICE. 
 
 venire was entered, to try the issues of fact, and also, if the 
 demurrer was not to be tried first, to assess the damages 
 upon the issue of law, if found for the plaintiff. The de- 
 murrer book was to be delivered to the opposite party and 
 returned, and the demurrer entered of record, as in case of 
 the paper book. On days of the term assigned for the pur- 
 pose, the demurrers were called aud argued in order. 2 
 Arch. Pr., 33-37. 
 
 On demurrer to plea or replication in abatement, the 
 judgment for plaintiff was respondeat ouster. 
 
 In other cases of demurrer, as to declaration, plea in bar, 
 or replication, the judgment for plaintiff was interlocutory, 
 aud was followed by an assessment of damages, where the 
 action was for damages, such as case, but was final in an 
 action of debt, for a sum certain. 2 Tidd, 687. 
 
 When nul tiel record was pleaded by defendant or replied 
 by the plaintiff, the conclusion was a prayer that the record 
 be inspected, and a day was accordingly given to the parties 
 for the purpose. The trial in such case was by the court, 
 by inspection. Excepting the conclusion, the paper book 
 was in the same form as in case of an issue of fact. 
 
 Where the plaintiff replied nul tiel record, he obtained a 
 rule to produce the record, and when he replied to the plea 
 of nul tiel record, he gave notice in writing that he would pro- 
 duce the record on a day named. If the record was not 
 produced, or, when produced, failed to sustain tiie plea, judg- 
 ment was given for the opposite party. The record of an- 
 other court was brought in by certiorari. 2 Arch. Pr., 38, 41. 
 
 Jury Where issue was joined in a matter not of record, 
 process, ijut j^ pais, it was the plaintiff's duty, next, to sue 
 out the jury process. 
 
 The writ of venire issued to the sheriff, and upon a sup- 
 posed default of the jurors, a writ of distringas, commanding- 
 the sheriff to distrain the jurors, by their lands and goods, 
 so as to have them at Westminster. In practice, the two 
 writs issued together, and the jurors were immediately sum- 
 
PROCEEDINGS BEFORE TRIAL. 57 
 
 raoned, in pursuance of them, and had to attend at West- 
 minster, when the trial was to be at biir. 
 
 But when the trial was to be at nisi prius, the distringas 
 was made returnable on the return day after the time fixed 
 for the trial, with a clause added, " unless before that time the 
 chief judge or judges of assize should come {on a day mentioned) 
 to the place of trial." As the judges in question alwaj-s came 
 to the regular sessions of the court at nisi prius, the sheriff 
 summoned the jurors to attend at nisi prius. 
 
 Instead, however, of summoning a separate jury for 
 each case, the sheriff, according to the directions of the 
 stat. 3 Geo. II, ch. 25, returned the same jurors for all the 
 causes to be tried at the same assizes. 
 
 In common jury cases, at nisi prius, the sheriff' returned a 
 list or panel of not less than forty-eight, nor more than seven- 
 ty-two jurors, with their additions and places of abode, from 
 whom twelve were drawn by lot for the trial of each cause. 
 
 A special jury might be had on motion of either special 
 party. Upon obtaining a rule for that purpose, the J""'''- 
 attorneys of both parties, if they chose, attended before the 
 prothonotary, or other proper officer, and the sheriff being 
 present with his freeholders' book, the proper officer nomi- 
 nated forty-eight freeholders. From the list, each party 
 struck twelve; or, if either declined, the officer did it for 
 him, and the remaining twenty-four were returned by the 
 sheriff', as a special jury from jphich the panel of twelve was 
 to be drawn. 
 
 Vle-w. 
 
 Where it was important that the jury should have a 
 view of the premises in question before the trial, an 
 order might be embodied in the distringas, that the sheriff 
 should have six or more of the jurors who were returned to 
 try the cause, at the place in question, some convenient time 
 before the trial, and that the matters in question should be 
 then shown to them by persons named in the writ, and the 
 sheriff", by special return on the distringas, certified that the 
 view had been had. The attorney obtained a rule, fixing the 
 
58 COMMON LAW PRACTICE. 
 
 time and place of meeting, served it on the opposite attor- 
 ney and the sheriff, and the latter summoned the jurors to 
 be present and view the premises. 1 Arch. Pr. 156-161. 
 
 ifisi The nisi prius record, consisting of the pleadings 
 
 P""^ and the order respiting the iury to a certain day, 
 was carried down, in nisi prius cases, by the plain- 
 tiff's attorney and the cause entered for trial with the proper 
 clerk. Id. 162, 163, 
 
 The following was the form of the record : 
 
 " The day of , in the j'ear of our Lord , 
 
 to wit : A. B., the plaintiff in this suit, by E. F., his attorney 
 [or in his own proper person], complains of C. D. [as in the 
 declaration]. And the said defendant, by his attornej', says 
 [as in his plea]. And the said plaintiff says [as in the last 
 replication]. And the said defendant says [as in the rejoin- 
 der]. And the said plaintiff" does the like. Thereupon tbe 
 said sheriff is commanded that he cause to come here on 
 
 the day of , tvpelve, etc., by whom, etc., iand who 
 
 neither, etc., to recognize, etc., because as well, etc. 
 
 "Afterwards, on the day of , in the year , the 
 
 jury between the parties aforesaid is respited here until the 
 
 day of , unless [the judge or judges of nisi prius 
 
 and assize] shall first come on the day of , at 
 
 (according to the form of the statute in such case made and 
 provided), for default of the jurors, because none of them did 
 appear; therefore, let the sheriff have the bodies of the said 
 jurors accordingly." 
 
 If the plaintiff neglected to do this, the defendant might 
 do so and have a trial, which was called a trial by proviso, by 
 reason of the clause in the sheriff's venire, "proviso," pro- 
 vided, that if two writs come to your hands (that is, one 
 from the plaintiff' and another from the defendant), you 
 shall only execute one of them. A shorter remedy for the 
 plaintiff's neglect was given to the defendant by the stat. 
 14 Geo. II, ch. 17, which authorized a judgment to be given 
 for the defendant, as in case of a non-suit, 3 Bl. Coram., 357. 
 
PROCEEDINGS BEFORE TRIAL. 59 
 
 Trial might be had at bar or at nisi prius. The Trial at 
 former could only be had with leave of the court, ^ar. 
 which was only given when the cause was of unusual im- 
 portance and difficulty, and sometimes on terms. The trial 
 must have been moved for at the term previous to that in 
 which the cause was to be tried. The jury came from the 
 county in which the venire was laid, as if it were to be tried 
 at nisi prius, and was generally a special jury. Causes were 
 called and tried in the order in which they were entered, 
 unless the court made a special order of postponement, etc., 
 on application in open court. 
 
 The record might be withdrawn by the party who entered 
 it. If it was not withdrawn, the plaintiff" was non-suited if 
 his attorney and witnesses were not in attendance when the 
 cause was called. If the defendaut's attorney and witnesses 
 were not present, the plaintiff" might proceed with the trial 
 and obtain a verdict. 
 
 When the jurors were called to be sworn, they might be 
 challenged, and if a sufficient number did not remain after 
 the challenges were exhauste^, or failed to appear, for ather 
 reasons, then, upon the request of either party, the justices 
 commanded the sheriff" to summon other jurors from among 
 the persons attendinar the court, called talesmen, from 
 
 , 1 <■ 1 1 11- -1 ,, Talesmen. 
 
 the words oi the order "tales de circumstantibus, 
 
 to fill the panel. But if neither party prayed a tales, the 
 
 cause would go oft" for want of jurors. 1 Arch. Pr., 168, 9. 
 
 Jurors were required to have certain property qualifica- 
 tions, except where aliens were parties, in which case, upon 
 previous application, a jury de medietate linguce could be had, 
 composed, in half, of aliens, who were not required to have 
 any qualifications of estate. 
 
 The attendance of jurors was compelled by fines, iu case 
 of neglect. 
 
 Challenges were of two kinds, viz., to the array 
 
 ,11 J 1. 1 • J -.1, • Challenges. 
 
 and to the polls, and each kind was either a prin- 
 cipal challenge or one to the favor. 
 
 A challenge to the array was an objection to the whole 
 panel returned by the sheriff". 
 
60 COMMON LAW PRACTICE. 
 
 - The grounds of the principal challenge to the array were 
 such as these, viz., that the sheriff or other returning officer 
 was of kindred or affinity to the plaintiff or defendant; that 
 one or more of the jury were returned upon the nomination 
 of the plaintiff or defendant; that an action of battery was 
 pending between the sheriff and one of the parties; that an 
 action of debt was pending by one of the parties against the 
 sheriff; that the sheriff held land depending on the same 
 title that was in litigation; that the sheriff was the officer 
 or servant of either party, etc. In these cases, there was a 
 sort of conclusive presumption of bias on the part of the 
 sheriff. But in other cases, where there was a mere proba- 
 bility of such bias or partiality, as where the sheriff' was a 
 tenant of one party, the challenge was merely to the favor 
 This challenge to the array, however, was unusual, because 
 when the objections in question existed, it was usual, in the 
 first instance, to direct the vem-e to the coroner, or, if he 
 was disqualified, to two indifferent' persons called elisors. 
 The suggestion in reference to the sheriff's disqualification 
 was made on the issue, and if not traversed by the other 
 party to whom the issue was delivered, the venire followed 
 in conformity with the suggestion. 
 
 V A challenge to the polls was an objection to the individual 
 jurors, and was either a principal challenge or to the favor. 
 The want of any of the legal qualifications was ground 
 for a principal challenge. So, also, that the juror was re- 
 lated to either party within the ninth degree, that he had 
 declared his opinion beforehand, that an action implying 
 malice was pending between him and one of the parties, 
 that he was of the same society or corporation with either 
 party, that since his return he had eaten or drunk at the 
 expense of a party, that he had been convicted of some infa- 
 mous offence, were, all, grounds of principal challenge. The 
 challenge to the polls for favor was where there was ground 
 to believe the juror biassed, without his occupying any of 
 the relations regarded as ground for principal challenge. 
 
 The challenge to the array must have been in writing, 
 with a verification and a prayer that the panel might be 
 quashed. It was within the discretion of the court how a 
 
PROCEEDINGS BEFORE TRIAL. 61 
 
 challenge to the array should be tried. It was sometimes 
 by two of the coroners or two of the jurj', or, if a principal 
 challenge, by the court. 
 
 If the panel was quashed for reasons personal to the 
 sheriff", a new venire issued to the coroner, etc. 
 
 The challenge to the polls was made ore ienus, and might 
 be tnade after failure of the challenge to the array. If two 
 jurors had already been sworn, this challenge, if to the favor, 
 was tried by them; if not, the court appointed two indiffer- 
 ent persons, called triors. When one juror was by them found 
 iiidiffi3rent, he was sworn, and he and they tried the next 
 challenge. When -another was found indifferent, the triors 
 were superseded, and the two jurors first sworn tried the 
 other challenges. 
 
 But a principal challenge to the polls, just as one to the 
 array, was tried by the court without the aid of triors. Id. 
 180-185. 
 
 Section III. 
 
 PRACTICE IN MARYLAND. 
 
 At this point it will be well to pause and examine the 
 application of the common law practice to this country, as 
 illustrated in that of the State of Maryland. 
 
 This State derived the common law jurisprudence 
 
 , ., . , ~ Courts. 
 
 from the mother country, while it was a colony ot 
 Great Britain. It had certain courts, the history of which 
 can hardly be traced in its legislation. When its judicial 
 system, however, acquired a permanent form, at the begin- . 
 ningof the present century, its judiciary consisted of County 
 Courts and a Court of Appeals. The latter had none but 
 appellate jurisdiction. The State was divided into judicial 
 districts, each embracing several counties. In each district, 
 a chief judge and two associate judges hel^ a court in each 
 county, called the County Court, which had two terms in each 
 year. The chief judges of all these districts formed the 
 Court of Appeals. , 
 
 The County Court, in the sense of the English law, was 
 a superior court, having general jurisdiction. It united in 
 
62 COMMON LAW PRACTICE. 
 
 itself the powers, generally, of the superior courts at West- 
 minster, and those of the Courts of Assize and Nisi Prius. 
 
 Writs issued, in the name of the State, imraediatelj' from, 
 and were returnable to, this court, tested in the name of its 
 chief judge. Juries were summoned to it, and issues of 
 fact made on its records were tried at its bar. So, likewise, 
 it determined all questions of law and collateral issues, and 
 gave final judgment on verdict or demurrer. 
 
 It had one return day in each term for the return of writs, 
 which was the first day of the term. 
 
 , Its practice w^-s the common law practice of the superior 
 and nisi prius courts of England, modified in particulars, 
 and it is designed, now, to show wherein it differed from that 
 practice during the latter part of the last century, and before 
 the introduction of the radical reforms of a later date. The 
 practice thus exhibited was the same which existed in the 
 District of Columbia at the time of its cession to the United 
 States. See Evans's Pr., ch. 1. 
 
 The original writ, in the English sense, did not obtain in 
 Maryland. Personal actions were commenced "by a writ of 
 capias ad respondendum, except actions of ejectment, re- 
 plevin, and dower, and suits against corporations. Unlike 
 the original from chancery, which, without oyer, did not be- 
 come so, this writ was a part of the'T'ecord. 
 
 Instead of the praecipe, the plaintiff^ simply delivered to 
 the clei-k of the court a titling in the following form, viz.: 
 
 "county court, etc. 
 
 . A. B.^l 
 
 V. V Trespass (or Case, Debt, etc.).. 
 C.D.J 
 
 " The clerk will issue as above. 
 
 "E. P., 
 
 "Attorney for Plaintiff." 
 
 Thereupon the clerk issued the writ of capias ad respon- 
 dendum, in the common law form, under the seal of the 
 court, addressed to the sheriff of the county. Either the 
 clerk or the plaintiff"'s attorney delivered it to the sheriff. 
 
PROCEEDINGS BEFORE TRIAL. 63 
 
 Bail could not be demanded in a higher sum than gaii- 
 $133.33^, unless a copy of the declaration accompanied ^°°^- 
 the writ, setting forth the true cause of action. Wherefore, 
 the clerk, if so directed, sent with the writ an attested copy. 
 As in England, if the sheriff was a party defendant, the writ 
 was directed to the coroner, or, if both were parties, to 
 elisors. 
 
 This writ, with the copy of the declaration, was sufficient 
 authority to the sheriff to arrest and hold to bail for the full 
 amount of the claim. 
 
 There was a difference between the English and the Mary- 
 land practice in regard to bail. While in certain actions, 
 under both systems, no bail could be required, even where 
 the process was a capias, as in debt on judgment where bail 
 had be^n required in the original action, debt on recogni- 
 zance, on bail-bond, replevin-bond, etc., and in certain other 
 actions, as ejectment, replevin, scire facias, dower, where the 
 process was simply a summons; yet in all actions, in Mary- 
 land, with the exceptions mentioned, the arrest could be 
 made in the first instance, and a bail-bond required, without 
 affidavit and without regard to the amount of the claim. 
 The English statutes, before referred to, required affidavit, 
 to justify the arrest, and the same affidavit sufficed as the 
 ground for requiring special bail when the defendant ap- 
 peared. In Mai'yland no affidavit was necessary for the 
 arrest. In some cases, where no arrest was made under 
 the English practice, the Maryland law seemed to allow the 
 arrest, but allowed a common appearance to be entered, as 
 in the case of executors and administrators, sued as such, 
 women, insolvents, etc. And while in England the affidavit 
 was required as the foundation of both the right to arrest 
 and to exact special bail, in Maryland it was only required 
 in order to exact special bail, on the defendant's appearance, 
 where the cause of action was not a written agreement or 
 evidence of debt. See Gorsuc'h v. Holmes, 4 II. & McH., 5, 
 and note. Anon. Id. 159. 
 
 The capias was executed by informing the defendant of it 
 and requesting him to provide bail, unless a forcible seizure 
 
64 COMMON LAW PRACTICE. / 
 
 became necessary, and leaving the copy of declaration with 
 him, "bnt the original capias was to be returned to tlie court. 
 The scire facias or summons was served by simply noti- 
 fying the party of the writ. As to the former, it was done 
 in the presence of two witnesses, of whom the officer serv- 
 ing it was one. 
 
 The sheriff's duty, as to taking bail, was the same as in 
 England. He might allow the defendant to go at large, at 
 his own risk, or he might detain him until he executed a 
 bail-bond. He could not refuse bail if tendered. The bail- 
 bond was conditioned for the appearance of defendant at 
 the return day of the writ. An appearance, however, at 
 any time during a term was considered as relating to the 
 first day of the term and would save the bond. BeKng per- 
 sonally responsible for the defendant's appearance, the 
 sheriff was the sole judge of the sufficiency of the sureties, 
 and wlfere the declaration accompanied the writ, he was 
 bound to take the bail in the amount laid in the declara- 
 tion. 
 
 At the opening of each term, the clerk had prepared a 
 docket or list of all the writs issued, called the original, or 
 appearance docket. One of the fii-st acts of the court, at 
 each term, was to call over this docket and announce the 
 return, if made, in each case. 
 
 If no return had been made, in any case, it was so entered 
 and announced. The sheriff might verbally certify the court 
 that the process had not come to his hands. 
 
 Rule to I'l the absence of this, if no return was made, 
 
 return writ. f}jg p]aintift''s attorney prayed for a rule on the 
 sheriff to return the writ, which M'as given, of course, and 
 entered on the docket, by the words " rule return." 
 
 The extended entry of record was, "and the said sheriff 
 
 of county aforesaid, to whom the aforesaid writ was 
 
 directed, in form aforesaid, being solemnly called upon by 
 order of the court here, on motion of the said plaintiff", by 
 his attorney aforesaid, to make return to the court here of 
 said writ, according, etc., makes no return thereof to the 
 
PROCEEDINGS BEFORE TRIAL. 65 
 
 court here; thereupon, on motion of the plaintift", by his 
 attorney, it is ruled by the court here, that the said sheriff' 
 
 make returr) to the court here of said writ by the day 
 
 of ; the same day is given to the said plaintiff'," etc. 
 
 It was the sheriff''s duty to attend on the return day, and, ' 
 consequently, to take notice of the rules upon hitn allowed 
 on that day. If the rule was given on any other day, a copy • 
 of it had to be served on him, as the foundation of other 
 proceedings. It was deemed most prudent to do so in all 
 cases. 
 
 If the sheriff" failed to make return in obe- Attaehmeotor 
 dience to the rule, the plaintiff' might have an amercement. 
 attachment against the sheriff" for his disobedience, as in 
 England. In addition to this, an Act of Assembly of 1794, 
 ch. 54, sec. 2, provided a remedy by amercemenl, which was 
 a judgment for the plaintiff, against the sheriff", for the 
 amount of his claim, at first provisional, and then, on con- 
 tinued failure to return the writ, made final. 
 
 Ordinarily, however, the sheriff, in obedience to the writ, 
 made some return. If it was false, his official bond might 
 be put in suit for the false return. 
 
 The returns to the capias were substantially the same as 
 in the English practice. To a capias, the sheriff' might 
 return " non est," >that the defendant is not found ; " mor- 
 tuus est," that he is dead ; " languidus," that he is too ill to 
 be brought into court; " cepi," that he has taken him; or, 
 " tarde," that the process reached his hands too late to be 
 executed before the return day. 
 
 The defendant's duty was to appear at the re- 
 Appearance. 
 turn 01 the writ. 
 
 The fictitious common bail of the English practice was 
 unknown, but the appearance without special bail was called 
 a comrpon appearance, and the terms "common bail" came 
 to be used inaccurately, for bail below. 
 
 This common appearance could be entered by defendants 
 not liable to imprisonment, as females, executors and ad- 
 miflistrators, sued as such, and corporations. The appear- 
 
 5 
 
bb COMMON LAW PRACTICE. 
 
 ance was entered by the clerk, by writing at the proper 
 place on the docket, P. P., proper person, or the name of 
 an attorney. 
 
 There were also certain actions in which bail to the action 
 could not be required, as debt on bond with collateral con- 
 dition, debt on judgment, where bail was given in the first 
 action, debt on penal statutes, on bail-bonds, replevin bonds, 
 and recognizances of bail. 
 
 Cause Where special bail could be required, it was in- 
 ofBaii. cumbent on the plaintiff to produce, at the call of 
 the original docket, if an appearance was then tendered, or 
 if not, whenever it was tendered afterwards, of which notice 
 was to be given to plaintiff's attorney, a bailable cause of 
 action, or, as it was called, cause of bail. 
 
 A bond for payment of money, note, or bill of exchange, 
 or any other written acknowledgment of debt, was suffi- 
 cient cause of bail, without affidavit; other causes of action 
 required affidavit. 
 
 On the motion for bail, the court would not go into the 
 merits of the cause, yet if it appeared that the defendant had 
 theretofore been held to bail for the same cause, and in some 
 other cases, it would allow a common appearance to be 
 entered. 
 
 Any written contract or evidence of debt, or contract for 
 a specific amount, was sufficient cause of bail. Where un- 
 ascertained damages were claimed under contract, an affi- 
 davit of the amount of damage was required. " 
 
 In cases of tort, the affidavit was required to disclose the 
 facts, and bail was required, or not, in the discretion of the 
 ■court. 
 
 =speciai Bail was given in open court, or by filing a bail- 
 ^^"- piece. The bail-piece was, as in England, a recog- 
 nizance entered into on a separate slip. It could be taken, 
 under a statute, before two justices of the peace, whose duty 
 it was made to examine into the sufficiency of the securities 
 ;and take no recognizance except of persons who should ap- 
 pear to have sufficient estate within the State; and the jus- 
 .tices were empowered to examine them on oath. 
 
PROCEEDINGS BEFORE TRIAL. 67 
 
 "When special bail was taken in open court, 
 the bail were, if not accepted by the plaintifi:"'s 
 attorney, required to justify, i. e., each one to swear that he 
 was worth double the amount of the claim sworn to, over 
 and above the payment of his debts. 
 
 Should the defendant fail to appear and render Amercement 
 himself or put in special bail, the proceeding of sheriff. 
 against the sherift" was the same amercement as on his refusal 
 to return the writ. 
 
 The practice was, when the return of cepi was entered, to 
 enter also the letters "arad." on the docket, and announce 
 " sheriff amerced." If the sheriff failed to produce the body 
 or a satisfactory bail-bond, the plaintiff' could have the judg- 
 ment of amercement entered against him. It was a judg- 
 ment in a nominal sum, nisi the body should be produced 
 at the next term, which was called the common- law amerce- 
 ment. At that term, it could be made final, for the debt and 
 costs. But it was usual to enter on the docket that the 
 sheriff "is further amerced and the case continued," and 
 the cause was usually continued for several terms, so as to 
 enable the sheriff to enforce the bail-bond; but the plaintiff" 
 could at any time enter the final amercement on the sheriff's 
 failing to produce the body at the next term, on exhibiting 
 proof of the debt or claim to the court. On the sheriff"'8 
 producing the defendant at any time before final amerce- 
 ment, the common law amercement was struck out. 
 
 If the sheriff had taken a bail-bond, he, of production of 
 course, could not produce the defendant. The defendant. 
 plaintiff could take an assignment of the bail-bond or not, 
 at his election. If he accepted it, he could not take the 
 final amercement against the sheriff", but the latter was vir- 
 tually discharged. 
 
 The obligation of the sheriff to produce the defendant 
 was satisfied b}' the latter giving special bail or showing his 
 right to enter a common appearance, and actually entering 
 it, or by his being actually present in custody. In the last 
 case the plaintiff's attorney prayed his commitment, which 
 
68 COMMON LAW PRACTICE. 
 
 was done, of course, unless he immediately entered his ap- 
 pearance in one of the ways last mentioned. See Evans's 
 
 Pr., ch. 3. 
 
 / 
 
 It is proper here to advert to a proceeding in the Mary- 
 land practice, which was unknown at common law, for com- 
 pelling the appearance of non-residents and others beyond 
 the reach of the ordinary process of the court. 
 
 This was the attachment oh warrant. Of several acts on 
 the subject of attachment, it is only necessary to notice the 
 one which regulated the actual pmctice in that State. This 
 was the act of 1795, ch. 56. According to this act, if. any 
 person not a citizen of the State and not residing therein 
 was indebted to a citizen of that or any other of the United 
 States, or if oue citizen, being indebted to another citizen 
 of the State, should run away, abscond, or fly from jastice, 
 or secretly remove from bis abode, with intent to evade the 
 payment of his debts, in either case, the creditor might apply 
 to a judge of the General Court (afterwards abolished), a 
 justice of the -County Court, or justice of the peace, and 
 make oath or afiirmation before such judge, etc., Or any 
 judge of any other of the United States, "that the said 
 
 debtor is bona fide indebted to him , over and above 
 
 all discounts (producing the bond, account, etc.); that he 
 knows or is credibly informed and believes that the debtor 
 is not a citizen of the State and does not reside therein 
 (where such was the case); or (where the debtor was a citi- 
 zen of the State), that he knows or is credibly informed and 
 believes that such debtor is run away or fled from justice, 
 or removed from his abode, with intent to injure and de- 
 fraud his creditors," the judge or justice should thereupon 
 issue a warrant to the clerk of the County Court to issue 
 an attachment against the lands, tenements, \goods, chattels, 
 and credits of the debtor. On the receipt of the warrant, 
 with the proof, the clerk was to issue the attachment ac- 
 cordingly. According to the decisions, the afiidavit was 
 required to be in strict conformity with the law. 
 
 The law further required that vs^hen the attachment issued, 
 it should be accompanied by a writ of capias ad respondendum 
 
PROCEEDINGS BEFORE TRIAL. 69 
 
 in the same action, and a declaration or short-note, of which 
 a copy was to be set up at the court-house door. The short 
 note was simply a brief statement of the cause of action. 
 
 Upon oath of the plaintiff, that the intended garnishee, 
 on whom the attachment was to be served, had property in 
 his possession of the defendant, or was indebted to him, and 
 that he verily believed or had just cause to fear that such 
 garnishee was about to depart and remove from the county, 
 a clause of capias ad respondendum against the intended 
 garnishee was to be inserted in the attachment, on which 
 he might be held to bail, even though the debt to defendant 
 were not due. 
 
 The attachment was served or executed on lands and per- 
 sonal chattels as other writs of execution — of which here- 
 after — and on credits, by notifying the defendant's debtor 
 and leaving a copy of the writ with him, and return was 
 made accordingly. 
 
 If the defendant was found, he was arrested under the 
 capias and the attachment was not executed, its only object 
 being to secure the defendant's appearance. If he was not 
 found, the mode of compelling him to appear was a judg- 
 ment of condemnation of the property attached. Under 
 this, if the property was tangible, a writ of fieri facias issued, 
 under which it was sold. If it consisted of credits in the 
 garnishee's hands, i. e., a debt due defendant from the gar- 
 nishee, the writ issued against the garnishee. The plaintiff, 
 however, before execution issued, had to give security to 
 make restitution of the goods and chattels condemned, if 
 the defendant, at any time within a year and a day from the 
 awarding of the attachment, should appear to the action, 
 and make it appear that the plaintiff had been satisfied his 
 demand, or otherwise discount it, or bar it or any part of it. 
 
 The attachment being designed simply to compel an ap- 
 pearance, it was immediately dissolved by the defendant's 
 entering his appearance in the same way as if he had been 
 taken under a capias. And even a judgment of condemna- 
 tion would be stricken out during the term, upon such ap- 
 pearance being entered at the appearance term. Evans's 
 Pr., ch. 2. 
 
70 COMMON LAW PRA6tICB. 
 
 The defendant being now in court, the next proceeding 
 was, for the plaintiff" to file his declaration, unless he had 
 already done so at the time of bringing his suit. If the lat- 
 ter were the case, the clerk, immediately on the defendant's 
 appearance, entered on the docket a " rule plea." 
 
 If the declaration had not been filed, the entry 
 was a " rule nar," and whenever the declaration, 
 or nar, was filed, the rule plea was entered. In each court, 
 by its standing rules, a day was fixed for pleading, on the 
 part of either plaintift" or defendant, and the rule to file the 
 nar or plead, required the one or the other to be done on 
 that day. 
 
 But if the plaintiff failed to declare and rule the 
 
 Plea 
 
 defendant to plead, until after the rule day, the latter 
 had until the first day of the next terra to plead. Whenever 
 the plea was filed, a "rule replication" was en- 
 ' ' ' tered, and so on untilan issufe was made. If plain- 
 tift" failed to file his nar, a judgment of non pros, was taken 
 against him, upon the call of the trial docket, which took 
 place at the opening of each term. And so, if the defendant 
 failed to plead when required, a judgment by default was 
 taken against him. Unless advantage was taken of the de- 
 fault at the first call of the trial docket, it was lost for the 
 terra. 
 
 But pleas to the ntierits were admitted at any time, even 
 after rule day, and even up to the moment of the trial, the 
 cause being, of course, at issue on some pleading. Some 
 pleas were not considered meritorious, that of the statute 
 of limitations, for example, and these were not admitted 
 unless filed strictly at the rule day. Evans's Pract., ch. 4, 
 pp. 109, 111, 
 
 Although the rule nar or rule plea required the 
 mpar nces. gj-^^g ^^ ^-^^ declaration or plea by the rule day 
 
 of the term, fixed for that purpose, it became matter of 
 course for an imparlance to be granted to the next term 
 after the appearance term. 
 
PROCEEDINGS BEFORE TRIAL. 71 
 
 If the declaration was not filed during the first term, the 
 entry was, that the plain tift' prayed leave to imparl to the 
 next term; though, in England, the plaintiff could not pray 
 an imparlance before filing his declaration. It came to be 
 considered a matter of right for the defendant to have one 
 imparlance. After a genei-al imparlance, however, the de- 
 fendant was not at liberty to file a dilatory plea, but must 
 plead to the merits. No dilatory plea could be filed after 
 the rule day. A special imparlance could be obtained, how- 
 ever, saving to the defendant "all exceptions as well to the 
 writ as to the declaration," which would allow pleas in 
 abatement, though not to the jurisdiction. It was entered, 
 if asked for, at the call of the appearance docket, by the 
 clerk, or if the declaration was not then filed, might be had 
 within four days after it was filed. 
 
 The effect of the privilege of imparling was, that every 
 cause had at least three terms on the docket, viz. : the orig- 
 inal or appearance, the imparlance, and the trial term. At 
 the imparlance term-, if the declaration had been filed, the 
 clerk generally entered, in short, on the docket, the general 
 issue plea appropriate to the suit, unless the defendant filed 
 special pleas, and so made up an issue in the case for a 
 trial at the next term, when the case was transferred to the 
 trial docket and stood for trial or judgment, in the order in 
 which the eases were entered. As already stated, at the trial 
 term, and just before the trial, other pleas might be filed. 
 If these required formal replications or other pleadings, it 
 was in the discretion of the court to fix the time within 
 which the pleadings must be closed and the cause brought 
 to an issue. Evans's Pract., pp. 193, 194. 
 
 With the exception of cases in which the declaration was 
 sent with the writ, copies of pleadings were not served on 
 the opposite party, but simply filed with the clerk and noted 
 in short on his docket. Notices and demands of pleas were 
 unnecessary, as each party was bound to take notice of the 
 entries and proceedings in the case. So with rules as to 
 pleading, entered as of course by the clerk; though special 
 rules made at other than the times when parties were bound 
 to attend the court, and especially those on which proceed- 
 
72 COMMON LAW PRACTICE. 
 
 ings for contempt, in case of disobedience, were to be 
 founded, must have been personally served. 
 
 !N"o formal venire was awarded, as it was made the sheriff's 
 duty to summon a jury to each term, for the trial of all 
 causes. By virtue of several acts of Assembly, the sheriff 
 was required to summon forty-eight of the best and most 
 understanding freeholders of the county, not under twenty- 
 four j'ears of age, to be selected by himself, of whom twenty- 
 three were to be drawn by the clerk, to serve as grand jurors, 
 and the others were to serve as petit jurors for the trial of 
 criminal and civil issues of fact. The sheriff returned a list 
 of the jurors, called the panel or array. In each case, twelve 
 jurors were sworn, who were drawn by lot and who were 
 called the special panel, or the panel. Evans's Praet., p. 35. 
 
 The causes of challenge to the array, or to the polls, were 
 the same as in England and tried in the same way, and upon 
 setting aside the array for the particular case, a new jury 
 was summoned by the coroner or elisors. 
 
 When a special jury was wanted, the course was, not to 
 summon a panel distinct from the general one, but for the 
 clerk to draw twenty names from the general panel, by lot, 
 and each party to strike off four names from the list, leaving 
 the remaining twelve to try the issue. Either party might 
 demand this, and if either party failed or refused to strike, 
 the court or clerk did it for him. Id., p. 39. 
 
 The regular panel failing to supply sufficient persons for 
 the trial of any issue, the sheriff summoned talesmen imme- 
 diately from the bystanders. The attendance of jurors was 
 enforced by fine, in case of refusal. 
 
 The comparison between the English and Maryland prac- 
 tice will be made plainer by exhibiting the several steps in 
 the proceedings, as follows : 
 
 ENGLISH PRACTICE. MARYLAND PRACTICE. 
 
 Praecipe. Titling, 
 
 Original. 
 
 Attachment. 
 
 Distringas. 
 
 Cnpias. Affidavit of amount of Capias. 
 debt in bailable actions. 
 
PROCEEDINGS BEFORE TRIAL. 73 
 
 ENGLISH PRACTICE. MARYLAND PRACTICE. 
 
 Alias. Pluries. Exigifacias. Out- 
 lawry. 
 
 Service : In non-bailahle actions by 
 leaving copy of ivrit with defendant. 
 
 Arrest': In bailable actions. Bail- Arrest, and bail-bond for $133.33 ; 
 bond received. and for full amount of claim if copy 
 
 of nar sent with writ. 
 
 Appearance : In non-bailable ac- Appearance entered on docket by 
 tions entered by plaintiff ^\i AeienAsiXit letters P. P. or an attorney's name, 
 failed, after service, or entered volun- with or without special bail, 
 tarily by defendant with common 
 bail. 
 
 In bailable actions, on default. Assignment of bail-bond on de/en(Z- 
 assignment,of bail-bond, ant's default, 
 
 or, or, 
 
 Rule on sheriff to return the writ. Kule on sheriff to return writ. 
 
 Attachment against the sheriff. Attachment against sheriff, or 
 
 amercement. 
 
 Keturn "cepi," etc. Keturn "cepi." 
 
 ■Rule on sheriff to bring in the Rule on sheriff to bring in body, 
 body. 
 
 Attachment. Attachment, or amercement. 
 
 Special bail put in de bene esse and Special bail put in when common 
 
 notice to plaintiff. appearance not allowed, on plaintiff's 
 
 exhibiting cause of bail. 
 
 Exceptions to bail and notice When offered in open court, plain- 
 thereof to defendant. tiff may except. 
 
 Justification of bail. Bail must justify. 
 
 Plaintiff not declaring before end " Rule nar " entered by the clerk 
 of next term after process returned, on defendant's appearance, which re- 
 rule on him to declare, and demand quired the declaration to be filed by 
 of declaration, or judgment of non a certain rule day. On failure, non 
 pros. pros, or imparlance. 
 
74 
 
 COMMON LAW PRACTICE. 
 
 ENGLISH PRACTICE. 
 
 Declaraiion de bene esse in bailable 
 actions filed before appearance, be- 
 coming absolute on appearance, 
 
 MAKTLAND PBACTICB. 
 
 Declaration absolute after appear- 
 ance, with notice indorsed, to plead 
 within four or eight days. 
 
 Rule to plead on filing the declara- 
 tion, or afterwards. 
 
 If notice to plead not given four 
 clear days before end of the term, of course, 
 imparlance. 
 
 Demand of plea either indorsed 
 on declaration, or made afterwards 
 where defendant had appeared or put 
 in special bail. 
 
 Declaration filed with the clerk. 
 
 " Rule plea " entered by the clerk. 
 Imparlance to next term, matter 
 
 Plea. 
 
 Rule- to reply in four days. 
 
 Replication and issue. 
 
 Paper book or issue made up by 
 plaintiff. 
 
 Award of venire. 
 
 Notice of trial. 
 
 Jury process. 
 
 A special jury struck before pro- 
 thonotary. 
 
 Challenges. 
 
 Talesmen from persons attending 
 court. 
 
 Plea. 
 
 " Rule replication." 
 
 Replication and Issue. 
 
 Case transferred to trial docket at 
 third term. 
 
 General duty of the sheriff to sum- 
 mon one panel for each term. 
 
 Special jury drawn from general 
 panel. 
 
 Challenges. 
 
 Talesmen from bystanders. 
 
 Where a cause was brought to issue on a question of law 
 by a demurrer, it was entered on the law docket, and the 
 demurrer heard on some day appointed for hearing law 
 questions. 
 
PKOOEEDINGS BEFORE TRIAL. 75 
 
 Section IV. 
 
 The practice prevailing in the State of Maryland, being 
 the common law practice, modified and simplified as indi- 
 cated, remained that of the courts of the District of Colum- 
 bia after exclusive jurisdiction over that District was assumed 
 by the United States, by an act of February 27th, 1801. 
 
 The act of Congress established a court for the 
 
 Courts. 
 
 District, called the Circuit Court, consisting of a 
 chief judge and two assistant judges, which was to have 
 jurisdiction in all cases of common law and equitj'. The 
 practice of the court was that of the County Courts of 
 Maryland. The changes that have been since made in it 
 by occasional acts of Congress indicate the general drift of 
 sentiment in the direction of improvement, but being only 
 occasional and unsystematic, have not kept pace with those 
 made in many of the States. 
 
 The first change made was in the law of bail. An 
 act of August 1st, 1842, 5 Statutes at Large, p. 398, 
 virtually abolished bail in all civil cases, except those founded 
 on fraud. It enacted, that no one should be held to bail 
 in any civil suit, unless on aflidavit by the plaintift" or his 
 agent, stating, in case of debt or contract, the amount which 
 he verilj' believed to be due, and that the same had been 
 contracted by fraud or false pretences, or through breach of 
 trust; or, that the defendant was concealing or had concealed 
 his property in the District of Columbia or elsewhere, or 
 was about to remove it from the District, or the place of his 
 residence, in order to evade the payment of the debt; or, 
 that being a resident of the District and domiciled therein, 
 he was about to abscond without paying the debt and with 
 a view to avoid payment of it. The sufficiency of the affi- 
 davit and the amount of bail was to be determined by the 
 court or a judge in vacation. 
 
 If no such affidavit was filed before the writ was issued, 
 
76 COMMON LAW PRACTICE. 
 
 the defendant, on its service, was not bound to give bail, 
 but, as a substitute therefor, might sign an order to the 
 clerk to enter his appearance. If he refused to do this, 
 however, he might be arrested and imprisoned, or required 
 to give bail, as in other cases. The idea formerly prevailing 
 in England, that a defendant could not be proceeded against 
 unless he appeared, either voluntarily or by compulsion, 
 seemed to be adhered to, and the order to enter an appear- 
 ance was still required as a substitute for bail. 
 
 The practical construction given to this act was, that it 
 abolished bail in all civil cases, to the extent just mentioned, 
 except those founded on fraudulent contracts, or where the 
 debtor was concealing property or preparing to abscond to 
 avoid his debt, in which case an affidavit of the facts must 
 be filed before the writ issued. 
 
 A later act, of June 17th, 1844, 5 Statutes at Large, p. 
 678, abolished bail altogether, in any civil action where the 
 debt or claim, exclusive of costs and interest, was less than 
 $50. Suits by the corporate authorities of either city in the 
 District, for penalties under their ordinances, were excepted. 
 
 Another act, of February 3d, 1853, 10 Statutes at Large, 
 p. 153, provided that no person should be held to bail in 
 any action of debt, assumpsit, or other action founded on, 
 or arising out of, any contract or agreement. 
 
 This was the end of all bail below and special bail, but a 
 defendant was still required to sign an authority to enter his 
 appearance, aud liable to imprisonment if he refused. 
 
 Terms of The ucxt change was made in the terms of the 
 Court. court, by abolishing the imparlance term. 
 An act of February 7th, 1857, 11 Statutes at Large, p. 
 158, declared that all suits should stand for judgment or 
 trial at the term after that to which process should be re- 
 turned executed. 
 
 The latest change in the process was made in 
 pursuance of an act reorganizing the courts of the 
 District, dated March 3d, 1863, 12 Stat. 762. 
 
 This gave to the Supreme Court of the District the power 
 
PROCEEDINGS BEFORE TRIAL. 77 
 
 to establish such rules as it might deem necessary for the 
 regulation of the practice of the courts established by the 
 act. 
 
 In the exercise of the power conferred by this act, the 
 court established the rule, that actions shall be commenced 
 by filing a declaration, on which shall be subscribed a notice 
 to plead on or before the first special term of the court, oc- 
 curring twenty days after service of the notice; otherwise, 
 judgment. The special terras are fixed to commence on the 
 first Tuesday of every month, except August. And the pro- 
 cess thereupon is required to be a simple summons to appear 
 on the first day of the special term, occurring twenty daj's 
 after service of the writ, to answer the plaintiff's suit, and 
 show why he shall not have judgment. Every writ is re- 
 quired to be accompanied by a copy" of the declaration and 
 notice to plead and affidavit, if there bp one, and the defend- 
 ant is required to be served with the copies, and this fact is 
 to be returned by the officer. 
 
 The only method of coercing the defendant's appearance 
 is the entry of judgment by default, on his failure to appeal*. 
 This is the first departure, in this jurisdiction, from the an- 
 cient English idea that no judgment could be entered against 
 the defendant in an original personal action, until he ap- 
 peared. 
 
 The attachment law of Maryland, which was in 
 force in the District of Columbia, and which was 
 intended to compel the appearance of parties beyond the reach 
 of the process of the court, has been amended by act of Con- 
 gress of June 1st, 1866. 
 
 This dispenses with the preliminary warrant by a judge or 
 justice, and enacts, "that writs of attachment or garnish- 
 ment shall be issued by the clerk, whenever the plaintiff, his 
 agent or attorney, shall file in the clerk's office, whether at 
 the commencement or during the pendency of the suit, an 
 affidavit, supported by the testimony of one or more witnesses, 
 showing the grounds upon which he bases his affidavit, and 
 also setting forth that the plaintiff has a just right to recover 
 against the defendant what he claims in .the declaration, and 
 
78 COMMON LAW PRACTIOB. 
 
 also stating, either, first, that the defendant is a non-resident 
 of the District; or, second, that the defendant evades tiie ser- 
 vice of ordinary process by concealing himself, or by with- 
 drawing from the District temporarily; or, third, that he has 
 removed or is about to remove some of his property from the 
 District, so as to defeat just demands against him, and shall 
 also file his, the plaintift''s, undertaking, with sufficient surety 
 or sureties, to be approved by the clerk, to make good all costs 
 and damages which the defendant may sustain, by reason of 
 the wrongful suing out of the attachment. It provides, fur- 
 ther, that if the defendant, his agent or attorney, shall file 
 an afiidavit traversing the plaintiff's affidavit, the court shall 
 determine whether the facts set forth in the affidavit are 
 true, and that there was just ground for issuing the writ of 
 attachment, and the issue may be tried by a judge at cham- 
 bers, on three days' notice. The property attached is not to 
 be discharged unless the defendant file with the officer exe- 
 cuting the attachment, or the clerk, an undertaking, with 
 sufficient surety or sureties, to pay and satisfy the final judg- 
 ment of the court against him, and the final judgment in 
 favor of the plaintiff is to be against the defendant and his 
 sureties. In the absence of such undertaking the court may 
 sell the property, when satisfied that it is for the interest of 
 the parties to have it sold before final judgment. 
 
 As far as this act applies to non-resident and absconding 
 debtors, one of its objects seems to be, like that of the former 
 law, to compel the defendant's appearance to a suit; but the 
 appearance has not the effect of dissolving the attachment. 
 This can only be done by substituting personal security for 
 it. And in these cases, it is a further object, to secure the 
 satisfaction of any judgment that may be recovered. In the 
 case of the debtor who has removed or is removing his 
 property, to defeat demands against him, but who may have 
 appeared to the suit, the ultimate security of the debt is the 
 sole object of the attachment. 
 
 This act provided no substitute for the notice to the non- 
 resident, by posting a short copy of the cause of action at the 
 
PROCEEDINGS BEFORE TRIAL. 79 
 
 court-house door, as required by the act of Maryland, but a 
 subsequent act of February •22d, 1867, ch. 64, provided for 
 notice by publication, after a summons is issued and re- 
 turned " Not to be found." 
 
 The declaration beinff the commencement of the 
 
 ,.,. ., IT Pleadings. 
 
 suit, the only rules as to diligence, in the pleadings, 
 refer to those which follow the declaration. 
 
 The duty of the defendant is to appear and plead simul- 
 taneously; or, at least, to plead and serve a copy of his plea 
 on the adverse party, on or before the day fixed, as already 
 stated, for appearance. 
 
 By an act of February 22d, 1867, ch, 64, sec. 19, judgment 
 where a suit is brought upon an open account, by Default. 
 verified by the plaintift's or his agent's affidavit, that the 
 amount claimed by the plaintiff is justly payable to him by 
 the defendant, if the latter fails to defend the suit, the plain- 
 tiff may have final judgment for the amount claimed, with 
 interest and costs. 
 
 And by a rule of the court, in any action, ex contractu, if the 
 plaintiff or his agent shall have filed, at the time of bringing 
 his action, an affidavit, setting out distinctly Ms cause of 
 action and the sum he claims to be due, exclusive of all set- 
 offs and just grounds of defence, and shall have served the 
 defendant with copies of his declaration and of said affidavit, 
 he shall be entitled to judgment for the amount so claimed, 
 with interest and costs, unless the defendant shall file, along 
 with his plea, an affidavit of defence, denying the right of 
 the plaintiff' as to the whole or part of his claim, and stating 
 specifically and distinctly, grounds of defence sufficient to 
 defeat the plaintift"'s claim in whole or in part. 
 
 After the pleadinsr is filed and a copy served, the 
 
 ° . , . , , ', Pleading. 
 
 plaintiff must reply within ten days, and so, like- 
 wise, every subsequent pleading must be filed and a copy 
 served, within ten days after the filing and service of the 
 preceding pleading, until issue is joined. And on failure of 
 either party to observe this rule, on motion by the other 
 
80 COMMON LAW PEACTIOB. 
 
 party and notice thereof, the suit may be dismissed, or judg- 
 ment taken by default, according as the failure is by plain- 
 tiff' or defendant. 
 
 Notice After issue is joined, either party, at least ten days 
 ofTriai. before the sitting of the court in which it would be 
 tried, may give notice to the other party that the issue 
 joined in the cause will be tried at the next term, and upon 
 his furnishing to the clerk of the court, at least four days 
 before the sitting of the court, a notice of the issue, contain- 
 ing the title of the action, the names of the attorneys, and 
 the time when the last pleading was filed, it is the clerk's 
 duty to enter the cause upon the trial calendar, where it will 
 stand for trial, with other causes, in the order in which they 
 are so entered. It is then for trial at the next succeeding 
 term of the Circuit Court held by one of the judges of the 
 Supreme Court of the District. The terms of the Circuit 
 Court are three in each year. 
 
 When the pleadings end in a demurrer, the de- 
 Demurrer. ° ,. T r. /. 
 
 murrer may be heard on any motion day atter five 
 days' notice. The demurrer is required to contain a notice, 
 in the margin, of some substantial matter of law to be 
 argued; otherwise, it may be set aside by the court or a 
 judge at chambers, and leave given to enter judgment as 
 for want of a plea. 
 
 Section V. 
 
 Some account of the pi-actice of the Federal Courts of the 
 United States will be appropriate. 
 
 The Constitution of the United States vests the judicial 
 power of the United States in one Supreme Court and such 
 inferior courts as the Congress may, from time to time, 
 ordain and establish. 
 
 • And this judicial power is declared to extend to all cases 
 in law and equity, arising under the Constitution, the laws 
 of the United States, treaties made or to be made, under 
 
PROCEEDINGS BEFORE TRIAL. 81 
 
 their authority; to all cases affecting ambassadors, others, 
 public ministers, and consuls; to all cases of adminiltj' and ] 
 maritime jurisdiction ; to controversies in which the United , 
 States shall be a party; to controversies between two or \ 
 more States; between a State and citizens of another State;, 
 between citizens of different States; between citizens of the- \ 
 same State claiming lands under grants of different States;: 
 and between a State, or the citizens thereof, and foreign 
 States, citizens, or subjects. 
 
 The o?-?</i>M? jurisdiction of the Supreme Court vi&b declared \ 
 to be limited to cases affecting ambassadors, other public V 
 ministers, and consuls, and those in which a State shall be a ; 
 party. In the other cases mentioned, it was to be appellate. 
 
 In the execution of the power conferred by the Constitu- 
 tion, Congress provided, by law, for dividing tlie United 
 States into territorial circuits and districts, and establishing 
 Circuit and District Courts in them, and defining the powers 
 and jurisdiction of these courts. 
 
 Their jurisdiction is, of course, limited to the cases and 
 subjects embraced within the Federal judicial power, as 
 defined in the Constitution. 
 
 But although it is thus limited, and although these are the 
 inferior courts mentioned in that instrument, they are not 
 inferior courts in a technical sense. They have the same 
 general powers as the courts at Westminster and the County 
 Courts of Maryland, in reference to the special cases and 
 subjects with which they are authorized to deal. They are 
 superior courts, in the sense of the common law, and their 
 course of procedure would, therefore, be expected to assimi- 
 late itself to that of the other courts, which we have thus 
 far been considering. 
 
 The United States, however, as a nation, has no commoa 
 law, and its courts, consequently, have no procedure of 
 solely common law origin. Their jurisdiction has been de- 
 fined and their procedure regulated entirely b}' statute. 
 
 As original jurisdiction in cases between private citizens 
 
 6 
 
82 COMMON LAW PRACTICE. 
 
 belongs only to the Circuit and District Courts, our attention 
 will be confined to them. 
 
 The act of September 29th, 1789, sec. 2 (1 Stat. -93), en- 
 acted, " that until further provision shall be made, and except 
 where, by this act or other statutes of the United States is 
 otherwise provided, tjie forms of ^vrits and execution^, ex- 
 cept their style, and modes of process, etc., in tji^e Circuit 
 ^.Sd District C^^rts, in suits at common law, shall be the 
 same in each State, respectively, as are now used and 
 allowed in the Supreme Courts of the same." 
 
 A permanent act, passed May 8th, 1792 (1 Stat. 275), pro- 
 vided, "that the forms of writs, executions, and other pro- 
 cess, and the forms and modes of proceeding in suits, in 
 those of the common law, shall be the same as are now used 
 in said courts [the Supreme, Circuit and District Courts], 
 respectively, in pursuance of the act, etc. (before mentioned); 
 , . , subject, however, to such alterations and additions as 
 the said courts respectively shall, in their discretion, deem 
 expedient, or such regulations as the Supreme Court of the 
 United States shall think proper, from time to time, by rule, 
 to prescribe, to any Circuit or District Court, concerning the 
 same ; provided, that on judgments in any of the cases afore- 
 said, where dift'erent kinds of executions are issuable in suc- 
 cession, a capias ad satisfaciendum being one, the plaintiff 
 shall have his election to take out a capias ad satisfaciendum 
 an the first instance." 
 
 This legislation applied to the States then in the Union, 
 and the practice as it then existed. Any subsequent changes 
 in the practice of the State courts did not, by virtue of these 
 acts, become applicable to the national courts, unless ex- 
 pressly adopted by the latter. 
 
 An act of May 19th, 1828 (4 Stat. 298), and another of 
 August 1st, 1842 (5 Stat. 499), enacted similar provisions as 
 to States admitted since the original act on this subject. 
 
 In most of the States, and consequently in most of the 
 "Circuit and District Courts, when these laws were enacted, 
 
PROCEEDINGS BEFORE TRIAL. 83 
 
 common law suits were begun by the writ of capias ad 
 respondendum. 
 
 It issued from the court in which the suit was instituted, 
 under its seal and the signature of the clerk, in the name of 
 the President of the United States, and was directed to the 
 marshal of the district, or, if he was interested, to some 
 one specially appointed. Writs from the Circuit Court 
 were tested iuthe name of the Chief Justice of the Supreme 
 Court, and writs from the District Court in the name of the 
 judge of that court, and they were made returnable before 
 the judge or judges of those courts respectively. 
 
 The writ might be served in any part of the district in 
 which it issued, by the marshal or his deputj', or a special 
 deputy or bailiff appointed for the purpose. 
 
 The duties of marshal, as to arrest and bail, were the same 
 as those of the sheriffs in States where the common law on 
 these subjects prevailed. In some districts, service was 
 effected by exhibiting the writ and leaving a copy. Else- 
 where the party might be held to bail or required to indorse 
 his appearance on the writ. 
 
 The common law rules, that to serve civil process, an offi- 
 cer cannot break open an outer, but may, after peaceable 
 entrance, force an inner door, that he can break open an 
 outer door to retake a prisoner who has escaped, and that 
 process cannot be served on Sunday, except to retake an 
 escaped prisoner, have -been generally recognized in the 
 United States Courts. 
 
 The subject of bail is governed by local law. 
 
 An Act of Congress of February 28th, 1829, abolished 
 imprisonment for debt, in any State, on United States pro- 
 cess, where, by the laws of the State, imprisonment for debt 
 had been abolished, and where it was allowed under re- 
 strictions and conditions, applied the same conditions and 
 restrictions to the United States process. And an act of 
 January 14th, 1841, made this applicable to future as well 
 as existing laws of the States. 
 
84 COMMON LAW PRACTICE, 
 
 Where imprisonment for debt existed, the bail-bo-ud: was 
 taken by the marsha], in conformity with the local law. 
 
 The form of the bond, the remedy on it, the mode of put- 
 ting in and justifying special bail and excepting thereto, and 
 the rights of bail as to surrender of their- principal', were de- 
 termined by local law, in general conformity witb the com- 
 mon law. 
 
 After appearance, the plaintiff might be ruled to declare 
 and non-prossed for failure, according to the rules of the 
 several courts. 
 
 The general rul-es of pleading, as they existed at the date 
 of the acts of Congress before mentioned, except where 
 State faws or rules of court have changed them, have ob- 
 tained in the national courts. These were th& rules of the 
 common law. One special rule, however, has- always pre- 
 vailed, which is peculiar to those courts. The jurisdiction 
 being limited to certain classes of controversies, and depend- 
 ing- mainly on the character of the parties, it is settled that 
 the declaration must show the case to come within one of the 
 classes mentioned ; as, for instance, where the jurisdiction is 
 asserted because- the parties are citizens of different States, 
 that fact must appear on the face of the declaration. 
 
 Judgment by default, for want of plea, etc.^ or judgment 
 by confession is entered as in common law courts generally. 
 
 In the matters of oyer, bills of particulars, and payment of 
 money into court, there are no peculiarities in the practice. 
 
 The consolidation of actions of like nature or relative to. 
 the same question, for the purpose of avoiding unnecessary 
 costs and delay, is expressly provided for by Act of Congress 
 of July 22d, 1813. 
 
 The order of the various proceedings in bringing a cause 
 to issue, is, of course, determined by the laws and practice 
 of the local courts and the rules of the Circuit and District 
 Courts. But a general provision in section 32 of the judicial 
 act of September 24th, 178*^, forbids any summons, writ, dec- 
 laration, return, process, judgment, or other proceedings in 
 civil eases, from being abated, arrested, quashed, or reversed 
 for any defect of form, except upon special demurrer, and 
 
PR(K!EEDIN«S BEFORE TRIAL. 85 
 
 requires the courts, unless where the question is presented 
 in that form, to give judgment according as the right of the 
 cause and matter in law shall appear to them, without re- 
 garding any imperfections, defects, or want of form in such 
 writ, etc. 
 
 The English practice of making up a nisi prius reooi'd is 
 inapplicable to the Federal courts, in which all trials are at 
 bar. 
 
 Judgment, as in case of non-suit, for not bringing a cause 
 to trial, has been a part of the practice, where it was adopted 
 by the local practice, from that of the King's Bench. 
 
 The cause being at issue, under the twenty-ninth section 
 of the Judiciary Act of 1789, a writ of venire is issued to 
 the marshal of the district, or if he is interested, to some dis- 
 interested person specially appointed. One jury, however, 
 is summoned for all cases to be tried at a term. 
 
 The qualifications of jurors and their designation, by lot, 
 ballot, or otherwise, were required to be according to the 
 law and practice of the States, by Act of Congress of July 
 2d, 1840. 
 
 Coakling's treatise, passim. 
 
86 COMMON LAW PRAOXIOB. 
 
 CHAPTER III. 
 
 TEIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 
 
 Section I. 
 The next step ia the progress of a cause is the trial. 
 
 Preparation I^ the preparation for the trial, the production 
 for trial. of evidence was to be provided for by the attorney. 
 A witness was not bound to attend a trial unless he was sub- 
 pcBnaed by authority of the court. Even if he were present, 
 it has been held that he was not bound to testify without 
 being so subpoenaed. 
 
 The subpoena was a judicial writ under seal of 
 u poena, ^j^^ court, Commanding the witness to appear as a 
 witness, to testify for plaintiff or defendant, and one subpoena 
 could be made out for four witnesses. The writ of subpoena 
 was procured from the clerk, upon a praecipe made out by 
 the attorney, which was a simple memorandum, thus, "sub- 
 poena to testify in cause, between A., plaintiff, and B., defend- 
 ant, on the part of the plaintiff. 
 
 «C. D., 
 
 Attorney." 
 
 The subpoena was accompanied by a subpoena ticket, for 
 each witness, — a mere repetition in brief of the subpoena — 
 and was served by exhibiting the writ and leaving a ticket 
 with the witness. 
 
 It was necessary that the service be personal, if he was 
 to be proceeded against for contempt, in case of refusal to 
 attend. 
 
 If the witness had any written instrument in his posses- 
 sion which it was desired to use as evidence, it was necessary 
 to issue a subpoena duces tecum, instead of the common sub- 
 poena, which contained a clause ^' and also that you bring 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 87 
 
 with you and produce, at the time and place, etc., a certaiu 
 deed, etc." 
 
 The witness was bound to attend with and produce the 
 paper, if in his possession, though the legal custody belonged 
 to another, unless it tended to criminate him, or some other 
 reasonable excuse could be furnished, of the validity of which 
 the court were to judge. 1 Arch. Pr., 150. 
 
 Upon motion and affidavit sh.owing that an inspection of 
 books of a public nature, such as parish, custom-house, or 
 post-office books, etc., was necessary, and had been demanded 
 and refused, if the books were evidence, of themselves, the 
 court would grant an order for leave to inspect them and 
 take copies, and admit the copies as evidence; but no such 
 order would be granted as to books, etc., of a private nature. 
 1 Tidd, 538. 
 
 If the witness happened to be a prisoner, upon application 
 to the court, or a judge at chambers, and affidavit that the 
 witness was a material witness and willing to attend, a 
 habeas corpus ad testificandum could be procured, for bring- 
 ing the witness into court, on the day of trial, to testify. 
 
 A witness was not bound to attend unless his witness's 
 reasonable expenses of going and returning, and Expenses. 
 during the necessary stay at the trial, were paid or tendered, 
 and these were always taxed in .the party's costs, even where 
 foreign witnesses were brought from home and afterwards 
 returned to their own country. Centingent losses suffered 
 by the witness, by having to leave his business, were not al- 
 lowed, unless the profession or business was such that a sub- 
 stitute could not be had, in which case a reasonable allow- 
 ance for the loss of time was made. It was necessary to 
 pay, or tender, a sufficient sura to cover the witness's ex- 
 penses, at the time of serving the subpoena. "Where a wit- 
 ness attended at the trial, the court, in one case, refused 
 to attach him for refusal to testify, though his expenses were 
 tendered at that time. 
 
 If the witness's expenses were tendered, and he still re- 
 fused to attend at the trial,then, upon proof of the personal 
 
88 COMMON LAW PRACTICK. 
 
 .rRemedy service of the subpcBiia, a, reasonable time 
 
 against Witness, 'before the trial, the coui't would, ou motion, 
 ■gi-ant an attachment against the witness for the contempt. 
 
 Besides, under a stat. 5 Eliz., eh. 9, the witness would for- 
 feit £10 to the party aggrieved, and such damages as to the 
 court issuing the process seemed meet, which damages were 
 assessed by the court at Westminster. An action of debt lay 
 on this assessment. 
 
 Besides the remedy under the statute, the pai'ty aggrieved 
 had his action on the case against the witness, for his non- 
 attendance, or failure to pi'oduce the papei-s called for by a 
 subpoena duces tecum. 1 Arch. Pr., p. 150-154. 
 
 Under the English law, there was no means of 
 Depositions. ^j^]^jj,g ^j-^g testimony of witnesses abroad, or of 
 'compulsorily taking that of witnesses going abroad, or too 
 ill to attend court. As to the latter cases, however, the tes- 
 timony might be taken upon interrogatories, with the con- 
 sent of the opposite party. Application was made to the 
 court, in term time, or to a judge in vacation, for a rule on 
 the opposite party, to show cause why the witness should 
 not be examined up-on interrogatories. The application was 
 fortified by affidavit that the witness was a material one, and 
 was going abroad, or too ill to attend, and that the party 
 •could not safely go to trial •without him. If the opposite 
 fparty consented, the rule was made absolute, and the intei'- 
 TOgatories prepared and a copy served, with notice of the 
 ■tiiiie and place of taking the examination. The opposite 
 iparty might also prepare cross-interrogatories. The witness 
 was taken to the judge's chambers and sworn and examined 
 'by the judge's clerk, or, if too ill to attend there, was ex- 
 .amined 'by commissioners appointed for the purpose. 
 
 "If the opposite party, who was plaintiff, refused consent, 
 the 'examination could not be had, but the court on applica- 
 'itian wou'ld 'postpone the trial from time to time, to enable 
 the defendant, by bill in equity or the return or recovery of 
 the witness, to procure the testimony. And where the de- 
 fendant was the party refusing, the court would perhaps re- 
 fuse himajatlgment as in case of non-suit. In this indii-ect 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 89 
 
 way, the court ex,ercised a pressure upon the party to com- 
 pel his consent to take the examination upon interrogatories. 
 If, however, a witness was so examined because he was going 
 abroad, his deposition could not be read while he remained 
 in England. Provision was made by statute for examining 
 witnesses in India, under a commission. These depositions 
 were only taken de bene esse, and could not be used if the 
 witness could be had at the time of trial. Arch. Pr., 153; 
 Tidd, 734-741. 
 
 I7i Maryland, the proper subpoena fell into disuse and was 
 superseded by the simple summons, which was an order to the 
 sheriff to summon such and such, to testify for plaintiff or 
 defendant. It was issued on the verbal or written order of 
 the attorney. It was served by the sheriff, by simply ver- 
 bally notifying the witness, and was returned with the letters 
 "sd," for "summoned," or " n. e.," for " non est," affixed 
 to the names of the witnesses. 
 
 If the witness was desired to produce written papers, a 
 notice to produce them was added to the summons, and it 
 was usually called a subpcEna duces tecum, the effect being 
 the same as that of the common law writ bearing that name. 
 
 It was not necessary to tender the witness's expenses, 
 but the county courts were authorized by statute to make 
 a per diem allowance to the witness. The latter proved 
 his attendance before the clerk, who gave him an order 
 for the amount on the party who summoned him, pay- 
 ment of which could be enforced by an attachment or by 
 action on it as an evidence of debt. This allowance was 
 taxed among the costs of the party summoning the witness, 
 and recovered from his advei'sary, if he finally succeeded. 
 
 The attendance of witnesses was enforced by Bg^eaj^g 
 fines, the court being expressly allowed by statute against 
 to impose a fine not exceeding fifty-three and a 
 third dollars. The law subjected the witness to an action 
 at the suit of the party who summoned him, in which he 
 should be held to bail, and in which he should be liable for 
 all the damages sustained by the party for want of his evi- 
 
90 COMMON LAW PRACTICE. 
 
 deuce, and also to an attachment, by virtue of which he 
 should be compelled to attend the court, and be confined in 
 jail until he should willingly testify. 
 
 It was usual to call over the 'cases at an early day in each 
 terra in which witnesses had been summoned, and if they 
 failed to answer, the attorney was expected to ask an attach- 
 ment. But at any time when the witness was wanted and 
 should not be present, the clerk would issue the attachment 
 on a verbal order of the attorney. The witness was thereupon 
 arrested, and brought before the court for the contempt. In 
 case of mere negligence, he was required to pay the costs 
 of the attachment, and in case of contumacy, he was iined. 
 - A witness in confinement, within the jurisdiction of the 
 court, could be procured by habeas corpus ad testificandum 
 upon an application and affidavit, as in the English practice. 
 But where the prisoner was in confinement under process 
 of the court where he was wanted, a simple order to the 
 officer to bring the prisoner was substituted. 
 
 Provision was made by statute for taking the 
 
 Depositions. . . n ■ i-i i -,• i , 
 
 depositions of witnesses likely to die or leave the 
 State before the trial. Whether an action was pending or 
 not, a party might take the deposition of a witness, before 
 any single justice of the county, upon giving twenty days' 
 notice to the party against whom the deposition was to be 
 used, or, in case of absence or minority, to the guardian, 
 agent, or attorney of the party, if any. If the witness was 
 sick and not likely to live, or about to march out of the 
 State as a soldier or militiaman, the justice, on proof of the 
 facts, might shorten the notice. The depositions were re- 
 quired to be deposited in the clerk's office, with proof of the 
 notice, etc., and the testimony might be read in any cause 
 between the same parties. Act of Assembly of 1779, ch. 8. 
 
 Where the witness whose testimony was required was 
 actually out of the State, the chancery practice of taking 
 depositions, under a commission, was introduced into the 
 common law practice, by an act of 1773, ch. 7, which di- 
 rected that such commission should issue and be executed, 
 and the depositions published, in the same manner as in 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 91 
 
 case of a commission issuing out of the Court of Chancery, 
 upon the court being satisfied, by affidavit or otherwise, 
 that there were material and competent witnesses in the 
 cause residing out of the State, And in practice, the mere 
 word of the party was sufficient to satisfy the court. 
 
 The commission might issue, by consent, to any one per- 
 son, otherwise it issued to four. The proceeding was, for 
 the party wishing the commission to file his interrogatories 
 and the names of four commissioners, and to serve a copy 
 on the opposite party. The latter, if he chose, could file his 
 cross interrogatories and the names of four commissioners, 
 on his part, within a reasonable time, limited by the rules 
 of each court. Each party could then strike two names 
 from his adversary's list, or, on his failure to do so, the court 
 would do it for him, and the commission would issue to the 
 remaining four. If the opposite party failed to furnish any 
 names, the commission issued to those first named. The 
 commission issued to four persons, but with authority to any 
 three to act, and of course could only be executed by the 
 parties named. Even where a mistake occurred in the name ■ 
 of one of the intended commissioners and he acted, it was 
 held a fatal defect in the execution of the commission. Any 
 irregularity in the issuing or execution of the commission 
 would exclude the testimony from being read. Thus, an 
 omission to put any of the interrogatories to the witness, or 
 his omission to answer, or the putting of anj' not furnished 
 by the parties, would be fatal, l^o notice was required to 
 be given of the taking of the proofs, but either party might 
 be present, and was entitled to a copy of the adverse party's 
 interrogatories before the witness was examined upon them; 
 and after the examination, either party might have an ad- 
 journment to a future day in order to exhibit, in writing, 
 additional interrogatories, so as to have a fair opportunity 
 of adducing all his testimony; and the examination, on such 
 additional interrogatories, proceeded as on the original. 
 The commissioners were not, however, to give further time 
 when it appeared to be sought for delay and procrastination. 
 
 It was the duty of the commissioners to make a formal 
 return of the execution of the commission, under their hands 
 
92 COMMON LAW PBACTICE. 
 
 and seals, stating that they were duly sworn, as well as their 
 clerk (if any); that they had taken the depositions in pursu- 
 ance of the commission annexed; and the whole were to. 
 be securely fastened together. The commission and other 
 papers were to be sealed up and indorsed with the title of 
 the cause, with the names of the commissioners written 
 across the seals, and addressed to the court. It might either 
 be mailed or delivered to the clerk of the court by a mes- 
 senger. 
 
 The testimony thus taken, when offered at the trial, might 
 be objected to, if there were irregularities in the execution 
 of the commission. Evans's Pr., ch. 10. 
 
 In the District of Columbia, the practice of 
 
 Depositions m .' ... 
 
 the District of taking testimony under a commission, in pursu- 
 coiiimbu. ^j^^g ^^ ^i^g statute of Maryland, has always pre- 
 vailed. But in addition to that, depositions have been taken 
 ex parte, in pursuance of the act of Congress of September 
 24th, 1789, 1 Stat. 88; see infra. 
 
 The practice as to resident witnesses has been substan- 
 tially the same as in Maryland. But in addition to the pro- 
 duction of documentary testimony, by the summons in the 
 nature of a subpoena duces tecum, a party has another mode 
 of enforcing the production of documentary evidence in the 
 possession of the adverse party, given by the act of Congress 
 ■ aforesaid. It provides that on motion, and due notice 
 thereof being given, the court may require the parties to 
 produce books and writings in their possession or power, 
 containing evidence pertinent to the issue, in cases, and 
 under circumstances, where they might be compelled to 
 produce the same by the ordinary rules of proceeding in 
 chancery, and that on failure of the party to comply with 
 the order, the court may give judgment against the party; 
 i.e., if the defendant so refuses, a judgment by default in 
 favor of tVie plaintiff", and if the plaintiff so refuses, a judg- 
 ment for the defendant, as in case of non-suit. 
 
 In the Federal courts, the usual process to compel the 
 attendance of witnesses is the subpoena, and if the produc- 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDQMENT. 93 
 
 tion of written instruments in his possession is desired, the 
 subpoena duces tecum. 
 
 By act of March 2d, 1793 (1 Stat. 335), this writ might 
 run out of the district even, to places not more than one 
 hundred miles from the place of holding the court. 
 
 And if a witness is in custody, under either State or Fed- 
 eral process, his appearance may be obtained by a habeas 
 corpus ad, testificandum. 
 
 In conformity with the common law, the neglect or re- 
 fusal of a witness, personally served with a subpoena, to 
 attend, is punishable by attachment, provided his legal fees 
 and mileage, which were fixed by act of February 28th, 1779, 
 are tendered to him. Conkling's Treatise. 
 
 The laws of the United States provide for the taking of 
 depositions, to be used in the Federal courts, in a manner 
 entirely foreign to the course of the common law. 
 
 The act of September 24th, 1789, provided, that " when 
 the testimony of any person shall be necessary in any civil 
 cause depending in any district, in any court of the United 
 States, who shall live at a greater distance from the place of 
 trial than one hundred miles, or is bound on a voyage to sea, 
 or is about to go out of the United States, or out of such dis- 
 trict and to a greater distance from the place of trial than as 
 aforesaid, before the time of trial, or is ancient or very in- 
 firm, the deposition of such person may be taken de bene 
 esse before any justice or judge of any of the courts of the 
 United States, or before any chancellor, justice, or judge of 
 a supreme or superior court, mayor or chief magistrate of a 
 city or judge of county court or court of common pleas, of 
 any of the United States, not being of counsel or attorney 
 to either of the parties, or interested in the event of the 
 cause ; provided, that a notification from the magistrate be- 
 fore whom the deposition is to be taken, to the-adverse part}', 
 to be present at the taking of the same, and to put interrog- 
 atories, if he think fit, be first made out and served on the 
 adverse party or his attorney, as either may be nearest, if 
 
94 COMMON LAW PKACTICE. 
 
 either is within one hundred miles of the place of such cap- 
 tion, allowing time foi' their attendance, after notified, not 
 less than at the rate of one day, Sundays exclusive, for every 
 twenty miles' travel." 
 
 " And every person deposing as aforesaid shall be care- 
 fully examined and cautioned, and sworn or affirmed, to 
 testify the whole truth, and shall subscribe the testimony by 
 him or her given, after the same shall be reduced to writing, 
 which shall be done onlyby the magistrate taking the depo- 
 sition, or by the deponent in his presence. And the depo- 
 sitions so taken shall be retained by such magistrate, until 
 he deliver the same with his own hand, into the court for 
 which they are taken, or shall, together with a certificate of 
 the reasons as aforesaid, of their being taken, and of the 
 notice, if any, given to the adverse party, be, b}' him, the 
 said magistrate, sealed up and directed to such court and 
 remain under his seal until opened in court. And any per- 
 son may be compelled to appear and depose as aforesaid, in 
 the same manner as to appear and testify in court." 
 n Such depositions were not, however, to be admitted or 
 used in a cause, unless it should be made to appear on the 
 trial that the witnesses were dead or gone out of the United 
 States, or to a greater distance than one hundred miles from 
 the place where the court was sitting, or that by reason of 
 age, sickness, bodily infirmity, or imprisonment, they were 
 unable to travel and appear at court. 
 
 The act was not to be construed to prevent the courts from 
 granting a dedim.us poiestatem, or commission, to take depo- 
 sitions, according to common usage, when necessary, which 
 power they should possess, nor to extend to depositions taken 
 in perpeiuam rei memoriam. 
 
 Particular provisions were also made for enforcing the 
 attendance of witnesses. The power to take such deposi- 
 tions was, by subsequent laws, extended to commissioners 
 of the circuit courts, clerks of circuit and district courts, and 
 notaries pubUc. 
 
 This act being a departure from the common law, and the 
 depositions being taken in many cases without notice, it has 
 universally been held that a strict compliance with the pro- 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 95 
 
 visions of the statute was necessary to make the depositions 
 admissible. 
 
 By a later act of May 9th, 1872, it was made necessary, in-- 
 all cases, to give reasonable notice in writing to the oppo- 
 site party or hiis attorney, stating the names of the witnesses 
 and the time and place of taking the deposition. 
 
 Provisions are made by the act of January 24th, 1827, for-" 
 enforcing the attendance of witnesses before a commissioner 
 acting under a dedimus from another district. 
 
 The means of compelling the production of private papers 
 at the trial have already been referred to, in connection with 
 the practice of the District of Columbia. 
 
 Another innovation upon the common law was effected byi^*°" 
 several acts of Congress, which, taken together, provide, that 
 in the courts of the United States no witness sh"all be excluded 
 in any civil action because he is a party or interested in the 
 issue tried; provided, that in actions by or against execu- 
 tors, administrators, or guardians, in which judgment may 
 be rendered for or against them, neither party shall be 
 allowed to testify against the other, as to any transaction 
 with or statement by the testator, intestate, or ward, unless 
 called by the opposite party, or required by the court to 
 testify thereto. Rev. Stat, sec. 858. 
 
 Section II. 
 At the trial it was sometimes uncertain which party 
 
 Trial 
 
 was entitled to open and close and which had the bur- 
 den of proof. The general rule was, that the party having 
 the affirmative of the issue had the right to, and must, begin. 
 If, however, there were several pleas, and the plaintiff 
 had the affirmative as to any issue, he was entitled to the 
 opening. "Where a special defense was to be given under 
 the general issue, the rule was the same as if it had been 
 specially pleaded. Where, in ejectment, the parties admit- 
 tedly claimed under the same title, and the plaintiff's les- 
 sor's prima facie title was admitted by the defendant, as 
 
96 COMMON LAW PRACTICE. 
 
 where plaintiff's lessor was heir, and defendant claimed as 
 devisee, the defendant was entitled to begin. And so, where 
 the plaintiff's lessor claimed under a will, and the defendant 
 under a subsequent codicil impeached by the plaintiff. 
 
 The plaintiff's counsel stated the case to the jury, the 
 evidence to be producd, and the questions of law involved, 
 and commented on the case in advance of the proof. 
 „ . ,. The witnesses were then examined in order. 
 
 Examination 
 
 of Witnesses. 'W'hile a witncss was under examination by a 
 junior counsel, the senior counsel might interpose and finish 
 the examination; but, after one counsel had brought his 
 examination to a close, no other counsel on the same side 
 could question a witness. After the direct examination, the 
 opposite counsel could cross-examine; and even if, after being 
 called and sworn, the witness was not examined in chief, 
 he might still be Cross-examined by counsel for the opposite 
 party. The witness might then be re-examined as to any 
 matter developed on his cross-examination, but the plaintiff" 
 could not on such re-examination make a different case for 
 . himself from what he had shown at first. Moreover, the 
 counsel were not allowed to pi'ove a different case from that 
 stated in the opening address to the jury. And where the 
 defense was known, either by the pleadings or by notice of 
 set-off, or the like, the plaintiff' was bound, in adducing his 
 evidence, to offer what evidence he might have for the pur- 
 pose of disproving the defense, and the court would not re- 
 ceive it after the defendant had closed his case. And after 
 closing his evidence, the court did not permit the plaintiff' to 
 remedy any defect in his proof, unless it was caused by inad- 
 vertence on the part of counsel. 1 Arch. Pr., 169-175. 
 
 After the evidence for the plaintiff was closed, the counsel 
 for the defendant stated his defense and the evidence in sup- 
 port of it, and commented on the case and the evidence of 
 the other party. 
 
 If the defendant's counsel had examined witnesses or ad- 
 duced any evidence, the plaintiff''s counsel was entitled to 
 reply, as a matter of right, otherwise, not; and this closed 
 the case on both sides. 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 97 
 
 This was followed by the summing up by the court, if 
 deemed necessary, in which the judge stated the substance of 
 the evidence, with remarks on it, and gave instructions as 
 to the law of the case.. Id. 
 
 After the jury were sworn, it might be doubt- j^^^^. 
 ful whether the aiction would lie, or the proof withdrawn. 
 would sustain it, or whether additional proof was not neces- 
 sary, or, for some other reason, whether the trial ought to pro- 
 ceed ; in which case a juror might be withdrawn by consent 
 of both parties. This discharged the jury and left the case 
 in the same situation as if the jury had not been aworo. 
 Each party paid his own costs. Id. 174. 
 
 A plea puis darrein continuance had also the 
 
 . . . , . 'P\^& puis 
 
 eft'ect, at any time before verdict, of suspending darrein 
 
 .1 T i • ■ • rm 1 • continuance. 
 
 the proceedmgs at nisi prius. ihe plea was in- 
 dorsed on the record of nisi prius and certified to the court 
 above. Id. 
 
 If the evidence oflfered on the part of the plain- i5g„„„er 
 titf was deemed insufficient to establish his case, to Evidence. 
 the defendant might demur to the evidence, and so withdraw 
 the case from the consideration of the jurors. And the plain- 
 tift" might, in like manner, demur to all the evidence offered 
 for the defense. This demurrer admitted all the facts proved. 
 If the evidence was matter of record, or other written proof, 
 the opposite party was compelled to join in the demurrer. 
 And so, likewise, if the evidence was parol, but was certain 
 and positive. If it was loose and circumstantial merelj', 
 such joinder was only obligatory in case the party demurring 
 admitted, on the record, every fact and conclusion which the 
 evidence conduced to prove. 
 
 The court was bound to receive the demurrer, and a refu- ■ 
 sal was good ground for a bill of exceptions. Upon its being 
 admitted, a full note of the testimony was taken and signed 
 by counsel on both sides, and the demurrer, being extended 
 in proper form, was added to the record and sent to the court 
 above. 
 
 The jury might then assess the damages conditionally, or, 
 
 7 
 
98 COMMON LAW PRACTICE. 
 
 if judgment was afterwards given for the plaintiff on the 
 demurrer, they might be assessed for the plaintiff by another 
 "jury upon a writ of inquiry. On the argument of the de- 
 murrer to evidence, in banc, no error of pleadings could be 
 taken advantage of, but after the assessment of damages, 
 the same advantage could be taken of errors in the record as 
 where a regular verdict had been rendered. In determin- 
 ing a demurrer to evidence, the court assumed every con- 
 clusion to be true that the jury might have drawn from the 
 evidence. But where the statement of evidence was so un- 
 certain that thej- could not inferthe facts with any certainty, 
 they awarded a venire de novo. Id.. 186. 
 
 " Biiiof At the trial, if the court committed an error of 
 
 Exceptions. ]^^y^ i,, admitting or refusing evidence or a chal- 
 lenge, or in directions to the jury, the party affected by it 
 could require the ruling to be set forth in a bill of excep- 
 tions, for the purpose of having it reviewed in a superior 
 court. It could only be reviewed on a writ of error, and 
 consequently, could only be required where a writ of error 
 lay. 
 
 The bill of exceptions was nothing more than a certificate, 
 tinder the hand and seal of the court, that such and such 
 evidence was admitted or refused, or that such and such 
 directions were given by the court to the jary, and that the 
 party interested, by his counsel, excepted to the ruling of 
 the court. 
 
 The bill of exceptions, in this form, was to be tendered to 
 the court by counsel, to be signed and sealed, whether trial 
 took place at bar or at nisi prius. It was provided for by 
 the Stat. Westminster 2, 13 Edw. 1, ch. 31. The judge 
 presiding was bound to affix his seal, if the exceptions were 
 "truly stated, but not if they were erroneously stated. If the 
 judge wrongfully refused to sign the bill, the party affected 
 ^thereby might have a writ, under the statute, commanding 
 him to seal the bill if it was correct; and if he returned that 
 it was not correct, the party might have an action against 
 him for a false return. Once signed and sealed, the bill was 
 • conclusive against both parties, as to the facts. The bill 
 
TRIAL AND SUBSEQUENT PROCEEDINSS TO JUDGMENT. 99 
 
 of exceptions, strictly, must have been tendered at the trial, 
 and it was required that the substance of it should then be 
 reduced to writing, although it was not necessary to draw it 
 up in form. 
 
 If the bill of exceptions was tacked to the record, it merely 
 recited the proceedings after issue joined ; otherwise, it set 
 forth the whole record. 
 
 When the exceptions were completed and judgment ren- 
 dered, it was necessary to bring a writ of error and have the 
 question involved decided in the court of error; whereas, a 
 demurrer to evidence was decided in banc, in the court where 
 the record was made up. Id. 187. 
 
 If a plaintiff was satisfied that his evidence had 
 failed to prove his case, in order to avoid an ad- 
 verse verdict and judgment, which would conclude the mat- 
 ter in controversy, he might choose to suffer a non-suit, so 
 that he might renew the action if better prepared with proof. 
 It was entirely optional with the plaintiff' whether he would 
 submit to this non-suit or not. Where, after jury sworn, 
 neither parties, attorneys, nor witnesses appeared, it was 
 held that the jury must be discharged. So, where judgment 
 by default had gone against one of several defendants, and 
 the others went to trial, the plaintiff could not be non-auited, 
 but the defendants must have had a verdict on plaintiff's 
 failure to prove his case, the rule being that the plaintiff' 
 must be non-suited as to aU, or none, of the defendants. The 
 plaintiff could be thus non-suited after payment of money 
 into court, but not after plea of tender. 
 
 The non-suit was recorded at nisi prius only. But if the 
 right of action was doubtful, the court at nisi prius would 
 sometimes allow the plaintiff to take a verdict, with leave to 
 the defendant to enter a non-suit, if the court above should 
 be of opinion, on application, that the action did not lie. The 
 plaintiff, on a non-suit, was liable to costs, as if a verdict had 
 been rendered. 
 
 The court in banc would set aside a non-suit, if the judge ■ 
 at nisi prius had entered it by mistake, and sometimes where 
 plaintiff had been non-suited on account of the non-attend- 
 
100 COMMON LAW PRACTICE. 
 
 ance of his witnesses, on payment of costs and a peremptory 
 undertaking to try tlae cause at the next assizes, but not, 
 ordinarily, where the non-suit had been voluntarily suffered 
 by the plaintiff. Id. 188, 189. 
 
 Triaifn Ii Mmyland and the District of Colimibia, the 
 Maryland, practice of conducting a trial is somewhat different 
 from that given above. By the latter, as we have seen, the 
 opening counsel argued' his case before producing his- testi- 
 mony. The adverse counsel, after the opening testimony 
 was heard, then argued his case in advance of his proofs, 
 mixing, with this argument, his comments on his adversary's 
 case. 
 
 By the American practice referred to, the plaintiff' always 
 has the opening and conclusion, except in case O'f avowry 
 for rent in arrear, as to which the practice has not been 
 uniform. 
 
 "• The opening counsel is not allowed to argue the case in 
 advance, but must confine himself to a statement of the ease 
 which he expects to prove, and of the points of law on which 
 he intends to rely. It is optional with the defendant's coun- 
 sel whether to follow immediately with his statement, or to 
 
 •await the closing of the plain.tift"'s evidence. After the plain- 
 tiff's testimony is heard, that of the defendant is given, and 
 if new matter is introduced, tlje plaiijtiff naay cgJJ wjtn^sses 
 tQ^ rebut j^. It is not the plaintiffs duty, as in the English 
 courts, to attack the defendant's case, in offering the proofs 
 of his. own, but he may wait until the defendant's proofs have 
 
 'been given. Witnesses, or any specific proof, offered on 
 either side, may be objected to, and argument is heard on 
 the admissibility of the evidence, the party objecting having 
 
 vthe opening and closing. Eegularly, evidence should be 
 objected to when offered, but at any time during the trial, 
 according to the Maryland rale, the objection might be made 
 and the jury instructed to disregard the evidence. 
 
 ' If the defendant is of opinion, after the plaintiff's evidence 
 is closed, that it does not prove his case, be may demur to 
 the whole of his evidence, as in the English practice, and 
 such demurrer would be governed by the same rules as 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO J UDGMEK.;^ JjttTTjf 
 
 already stated, except that it is decided by the presiding 
 judge at the trial. 
 
 But a simpler practice prevails, viz. : that of asking the" 
 court to instruct the jury that upon the whole evidence 
 the plaintiff is not entitled to recover. If the application 
 is sustained, the jury render a verdict for the defendant. 
 If it is overruled, the defendant may still go on with his de- 
 fense. 
 
 After the evidence is closed, the case is argued to the '• 
 jury. But before addressing the jury, comisel -may apply to " 
 the court to instruct tiie jury as to the law of the -case. In 
 Maryland, it was the well-settled practice that the court 
 never summed up the case or charged the jury, unless re- 
 quested by one of the parties. But counsel always prepared 
 such instructions as he wished to be given, and applied to the 
 court to adopt them. The skill of counsel was largsly ex- 
 ercised in the framing of these instructions. The court waa- 
 not bound to modify or correct the instructions so asked, 
 but either granted or refused them. It was therefore neces- 
 sary that they should state the law correctly,. as applicable 
 to the facts of the case, that they should not b.e a mere ab- 
 stract cfeclaratiou o( the law, bj^t sjiovv that if certain facts 
 ayg found by the jin'y, tj^e rights of th_e parties are thus and 
 so. The jury are the exclusive judges of the facts, and in- 
 structions would be faulty which would make the court as- 
 sume aiTy of the contested facts as proved. But if the evi-'- 
 dence offered does not, as a matter of law, tend to prove the 
 issue, the court may direct the jury accordingly, and it is 
 their duty to do so, on application. An instruction prayed- 
 must not be confined to the facts on one side, but cover the 
 whole evidence, z. e.,itmust beupou the hypothesis, not only 
 that the facts relied on by the party are found by the jury, 
 but on the further hypothesis that other facts relied on by 
 the adversary, and changing the legal complexion of the 
 case, are not found by the jury. 
 
 A practice peculiar, perhaps, to Maryland, was, to make 
 the prayer for an instruction perform th« office of a demurrer. 
 The court was sometimes asked to instruct the jury that the 
 plaiutiff was not entitled to recover, by reason of some <ie- 
 
102 COMMON LAW PRACTICE. 
 
 feet ill his declaration, which might have been taken advan- 
 tage of by demurrer. 
 
 ■^ All supposed errors of the court on matters of law, in the 
 rulings given during the trial, on the admission or rejection 
 of evidence or in the instructions given to the jur}', must be 
 presented to the superior court bj' the bill of exceptions, 
 founded, as already explained, on the statute of Westmin- 
 ster 2, 13 Edward I, ch. 31. The statute is held to extend 
 to all cases in which court and counsel differ about the law, 
 where the question is not presented on the record of a cause. 
 Accordingly, it was held in Maryland that the evidence, on 
 a motion to set aside a sheriff's return, formed the subject 
 of a bill of exceptions. So, probabl}', with questions arising 
 under the issue of nul iiel record, oyer of deeds, challenges, 
 
 " etc. The bill of exceptions must contain everything in itself, 
 unless.it refer to other bills of exceptions and make them a 
 part of it. The rules of the lower court, if material, should 
 be made a part of the bill of exceptions, as a fact in the 
 
 ~ cause. The statement of evidence contained in the bill of 
 exceptions is, adjusted by agreement with the opposite coun- 
 
 «sel, or settled by the court. The bill is supposed to be settled 
 before the jury retire, and bears date as of the day when 
 the exception is taken, but it may be formally drawn up 
 afterwards. Evans's Pr., ch. 2. 
 
 The plaintiff might suffer a non-suit in Maryland 
 
 Non-suit. ^. , ,. , T ■,'■,, 
 
 at any time before the verdict was rendered, and 
 
 when he was doubtful of the result, it was a common prac- 
 tice, even when the jury came in with the verdict, for the 
 plaintiff, when called, not to respond, in order to suffer a 
 non-suit, the only consequence of which was that plaintiff 
 had to pay the costs of the action, but might sue again. 
 
 By consent of parties, a juror might be withdrawn, and 
 the trial postponed. In ease of material amendment of the 
 pleadings or other proceedings, this was directed by statute 
 to be done. Id. 
 
 The manner of conducting a trial in the States generally 
 being in conformity with the common law, the same may be 
 said of a trial iu the national courts. 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 103 
 
 The sarae general rules prevail as to calling and challeng- 
 ing jurors, examining witnesses, excepting to the decisions 
 of the court, pleading puis darrein continuance, demurring to 
 evidence, special verdicts or general verdicts suhject to a 
 special case, withdrawing jurors, and with regard to dam- 
 ages, with the exception of such modifications as the rules 
 of different courts have introduced." 
 
 It was held by the Supreme Court, that the United States 
 courts had no power to order a peremptory non-suit against 
 the will of the plaintiff', although this was practiced in some 
 of the State courts. Conkling's Treatise. 
 
 Section III. 
 The case being submitted to the jury, they usu- 
 
 _, ,^ ^. ,. Verdict. 
 
 ally retired to consider their verdict, and they were 
 kept together without meat, drink, fire, or light, unless with 
 the court's permission, until they delivered their verdict. 
 They were not allowed to speak with any one — even the 
 bailiff' who attended them — until they had agreed on their 
 verdict, and could only speak with him between agreeing 
 upon and delivering their verdict. They were liable to fine 
 if they ate or drank, even at their own expense, and if they 
 did so at the expense of the party for whom they afterwards 
 found, it avoided the verdict. Any misconduct in the man- 
 lier of finding the verdict, such as determining it by draw- 
 ing lots, avoided it. It was, however, a rule of policy that 
 the testimony of the jurors themselves, as to any such miscon- 
 duct, could not be received. It must have been shown other- 
 wise. When the jury withdrew to consult, it was "a ques- 
 tion what it was proper for them to take with them. They 
 were held entitled to take letters-patent, sealed instiniments, 
 and exemplifications of depositions in equity of deceased 
 witnesses, but not books or writings not under seal, except 
 with the consent of the parties. But taking the latter with- 
 out such consent was simply an irregularity, and did not 
 avoid the verdict. They were not allowed to take any evi- 
 dence that had not been produced to them in court. If 
 
104 COMMON LAW PRACTICE. 
 
 they received such evidence from the party for whom the 
 verdict was afterwards rendered, it avoided the verdict, but 
 not if it was received from the other party or produced by 
 one of the jurors without being received from either party. 
 The verdict was avoided if the jury proceeded to examine 
 any witnesses after leaving the bar, though on the same 
 points ah-eady testified to. But they were allowed to return 
 into court to ask any instruction from the court, or hear 
 evidence there touching matters on which they doubted. 
 Irregularities of the kind mentioned, sufficient to avoid the 
 verdict, must have been made to appear somehow on the 
 record, in order that they might be taken advantage of by 
 motion in arrest of judgment. 
 
 ~ If any of the jury were taken ill, so as to be unable to 
 remain until the verdict was agreed, that jury might be dis- 
 charged and another sworn, before whom the case had to be 
 tried anew. The fact of the jury separating and returning 
 to their homes when the ti'ial lasted several days, did not 
 aft'ect the verdict, unless some tampering with them could 
 be shown. 
 
 -"When the jury returned to the bar, other proceedings 
 were suspended, and the foreman announced the verdict in 
 the presence of the jury, and the verdict was recorded. It 
 was either public, i. e., delivered in open court, or privj^, 
 L e., delivered to one of the judges out of court, and after 
 
 -its adjournment. The privy verdict, however, had to be 
 announced and confirmed in open court before it could be 
 recorded. Until then, it could be varied or departed from 
 
 'by the jury. If the verdict, as announced, was informal, or 
 manifestly against the evidence, the court could send the 
 jury back to reconsider it, but after it was once recorded, 
 neither court nor jury could interfere with it or make any 
 alteration in it, however slight. 1 Arch. Pr., 174-176. 
 — The verdict could be either general or special. A general 
 
 ■verdict was the result of the jury's opinion uj)on both the 
 law and facts of the case, under the instructions of the court. 
 The general verdict was announced in the words: " We find 
 
 for the plaintiff damages £ , and costs £ .;" or, " We 
 
 find tor the defendant." If there were several counts, the 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 105 
 
 verdict expressed on which of the issues it was rendered, 
 for the one party or the other. The action of replevin was 
 an exceptional one, in which a verdict for the defendant in- 
 cluded damages and costs for the defendant. The verdict 
 must have decided all the issues submitted to the jury, other- 
 wise a judgment rendered on it might be reversed. 
 
 The object of a special verdict was to find simply gpeciai 
 the facts, and leave it to the court to pronounce the verdict, 
 result according to their view of the law. The special ver- 
 dict, therefore, was a finding of certain facts, and if, upon 
 the whole matter, the court should be of opinion in favor 
 of the plaintifi", then a finding for the plaiutifF; if otherwise, 
 for the defendant. A proper special verdict stated the facts 
 proved and not the evidence, and the substance and not the 
 
 -verbiage of deeds. It was set aside and a venire de novo 
 awarded, if it contained the evidence instead of the results, 
 or was so defective in any respect that no judgment could 
 be given on it. It might, however, have been amended by 
 the judge's notes or the clerk's minutes, by the notes of 
 counsel, or even an affidavit of what had been proved at the 
 trial. The verdict was settled by the court and signed by 
 counsel on both sides at the trial before the jury were dis- 
 charged, and if any difference existed as to the facts, the 
 question was determined by the jury. The proceedings 
 were then entered on the roll, copies made out for each 
 party, and the cause set down for argument before the court 
 in banc. 
 
 -^ It was a rule that the court would intend nothing in a 
 special verdict but what was clearly found, yet they would 
 generally so construe it as to give it effect, if possible; and 
 after the case was decided by the court, the party in whose 
 favor it was decided might at once sign judgment and sue 
 out execution. 
 
 -' Another form of finding was a general verdict for gpeciai 
 the plaintiff", subject to the opinion of the judge at °*^®- 
 nisi prius, or of the court above, on a special case stated by 
 the counsel on both sides. The advantage of this over the 
 
106 COMMON LAW PRACTICE. 
 
 last-mentioned proceeding was less expense and a more 
 speedy decision, but the disadvantage was, that as the case 
 did not appear on record, but only a general verdict, the 
 parties lost the benefit of a writ of error. This difficulty, 
 however, was obviated by the judge at nisi prius giving 
 liberty to the parties to have the special case turned into 
 a special verdict if it beca:me important to have a writ of 
 erroi'. 
 
 The case was settled before the discharge of the jury in 
 the same manner as the special verdict, and the same rules 
 of form applied to it. It could also be amended like a 
 special verdict. 
 
 The case was then entered for argument, and, after tlie 
 question was determined, a general verdict was entered for 
 the successful party. Id. 189-193. 
 
 Sometimes damages are the substantial object of 
 the writ. In other cases they are merely nominal, 
 the real objbct of recovery being something different. 
 
 In real actions no damages were recoverable. In mixed 
 actions, such as waste, both damages and the place wasted 
 were recovered. 
 
 ■^ In assumpsit, covenant, case, trover, and trespass, the action 
 is essentially a claim for damages, solely. 
 
 ^-" Debt is an action for a liquidated sum, and merely nominal 
 damages are demanded for the detention of the debt. In 
 this action, the jury found the fact that the defendant was 
 indebted, or the affirmative or negative of other issues made 
 in the pleadings, and assessed nominal damages for the de- 
 tention. But in actions on bonds for the performance of 
 covenants, or payment of money in instalments, or the per- 
 formance of any specific act, as distinct from the payment 
 of a sum of money in gross, the jury first assessed the nom- 
 inal damages for the detention of the nominal debt as ex- 
 pressed in the bond, and then the actual damages upon the 
 breaches assigned. In actions on records, the damages were 
 nominal, except in debt on a judgment. 
 
 In detinue they were merely nomiual, but the jury also 
 found the value of the article detained, iu order that judg- 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 107 
 
 ment might be entered for the article, or its value, together 
 with the damages and costs found by the jury. 
 
 In replevin, which was in form an action for the wrongful" 
 taking of chattels, damages were assessed as in trespass, and 
 where the chattel was not taken and delivered to the plain- 
 tiflf under the writ of replevin, or, as it is expressed, the 
 action was in the detinet, the damages were calculated on the 
 value of the chattel, and the injury the plaiutift'had sustained 
 by the wrongful caption; but where the chattel had been 
 replevied and delivered, and the action was in the detinuit, 
 only damages for the taking were allowed. In the latter 
 case, when the verdict was for the defendant, damages were 
 given as for the plaintiff in trespass. 
 
 In ejectment, the damages were only nominal, the wrong-- 
 ful detention being redressed by an action for mesne profits. 
 
 "Where notice of set-oft" had been given by the defendant," 
 but the latter had failed to appear to prove it, the plaintiff 
 was allowed either to take a verdict for the whole amount 
 he claimed, subject to a reduction or an accounting, if the 
 defendant would afterwards enter into a rule not to sue for 
 the set-off, or to take a verdict for the debt as reduced by the 
 set-off, with a special indorsement to that effect on the postea, 
 as a ground for moving a stay of proceedings in case an- 
 other action should be brought for the amount of the set-off. 
 
 Everj' personal action, founded on a transaction between 
 the parties, was for an injury, and damages, real or nominal, 
 were allowed. But in an action by an informer for a pen- 
 alty given by statute, no damages were allowed. 
 
 In actions against several for a tort, as trespass, it M'as • 
 optional for the defendants to join or sever in pleading. If 
 they joined, and were found jointly guilty, the damages had 
 to be assessed against them all jointly, and could not be sev- 
 ered. But the jury were at liberty to find one guilty of part* 
 of the trespass, and another of a different part, or some 
 guilty of the whole and others of a part, in which cases they 
 could assess the damages against them severally. 
 
 Where the defendants severed in pleading, there were so- 
 many separate issues to be tried, but if the defendants were 
 
108 COMMON LAW PRACTICE. 
 
 all found guilty of the same act of trespass, the damages 
 could not be severed. The jury who tried the first issue 
 assessed the damages against all, but there was a cesset exe- 
 cutio uatil the other issues were tried, and if the other de- 
 fendants were found guilty, it is presumed judgment was 
 entered against all. 
 
 If the jury erroneously severed the damages, the plaintiff 
 could take his judgment for the larger damages against one, 
 and enter a nolle prosequi against the others, or he might 
 enter a remittitur as to the lesser damages, and have judg- 
 ment as to the greater damages against all. 
 — ' A judgment for damages against several might be exe- 
 cuted against any. Between defendants, in an action ex 
 delicto, there was no contribution where one was compelled 
 to pay the whole. Id. 195. 
 
 ~" In actions on contract, the plea of one of the defendants 
 to the merits, for the most part, enured to all, and if the 
 plaintiff failed as to one defendant who pleaded, he could 
 not have final judgment or damages against the others who 
 had let judgment go by default. 
 
 But in actions of tort whei-e the wrong is considered joint 
 and several, if the plea of one operated only in his own dis- 
 charge, his success would not prevent the plaintiff" from hav- 
 ing damages assessed against the others who had let judg- 
 ment go by default. If, however, a special plea showed the 
 want of any cause of action against any of the defendants, 
 the result was different. 2 Tidd, 803. 
 
 Several If the declaration contained several counts, the 
 Counts, ju^.y might assess entire damages on all or any of the 
 counts, or several damages on each. The jury might find 
 for plaintiff on some, and for defendant on other, counts. 
 And where there was a single issue, as in replevin, they 
 might find for plaintiff as to part of the subject-matter, and 
 for defendant as to the rest. 
 
 - But if a general verdict was entered on all the counts, and 
 entire damages given, and one count was bad, it was fatal, 
 and judgment was arrested, on motion. But where a gen- 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 109 
 
 era! verdict was given, but it appeared by the judge's notes 
 that evidence was only given on the good counts, the court 
 would allow the verdict to be amended and entered on the 
 good counts. And where it appeared from the judge's notes 
 that the damages were calculated by the jury from evidence 
 applicable only to the good counts, although evidence was 
 also offered applicable to the bad counts, the court amended 
 the verdict by entering it on the good counts. In a penal' 
 action, where the plaintiff applied a verdict to one count 
 afterwards held to be bad, he was not allowed afterwards to 
 enter it upon another count. The verdict, where general, 
 and where the judge's notes of the evidence justified it, 
 might be entered on the good counts, either at the trial or 
 upon application to the judge at chambers. A misjoinder 
 of counts, even, could be remedied in this way, as where 
 assumpsit and trover were joined. 
 
 The plaintiff could be compelled to elect on which of sev- • 
 eral counts he would enter the verdict. 1 Arch. Pr., 193-6. 
 
 Where the jury assessed damages separately ou each of ' 
 the counts, some of which were good and others bad, the 
 judgment might be arrested" on the bad counts only, and 
 given upon the good ones. 3 T. R., 433-5; Stra., 189; 6 
 Taunt., 627. 
 
 It was held (6 T. E,., 691), that where the verdict was gen- ' 
 eral and one count, of several, was bad, there could be no 
 venire de novo, but the better opinion would seem to be 
 that the venire de novo properly issued in such case. Grant 
 V. Astle, Douglas, 722; 2 Tidd, 802. 
 
 In case, however, the declaration was wholly bad, the • 
 judgment was that the defendant go without day. 
 
 If the jury^in their verdict, exceeded the amount claimed' 
 as damages in the declaration, it was the duty of the clerk 
 to enter it for the amount so claimed only. But if the ver- 
 dict was, in fact, entered for more, it could be corrected by 
 the plaintiff's entering a remittitur for the excess, with leave 
 of the court; or, the plaintiff might have a new trial and 
 amend the declaration by increasing the damages. 
 
 It was always a rule that the plaintiff could only recover 
 for a cause of action existing when the suit was brought; 
 
110 COMMON LAW PRACTICE. 
 
 and, consequently, if the declaration claimed damages from 
 a cause of action originating or continued after the com- 
 mencement of the action and entire damages were given bj 
 the verdict, the judgment had to be arrested. But where 
 the averment of damages after the commencement of the 
 suit was under a videlicet, or the matter alleged was iinpos- 
 sible, void, or insensible, so that the jury could not be sup- 
 posed to have considered it, the judgment was not arrested 
 because entire damages were given by the verdict. 1 Arch. 
 Pr., 197, 198. 
 — ^ By virtue of several statutes, double and treble damages 
 were adjudged in certain cases, but at common law the 
 court could not interfere with the verdict by increasing the 
 damages, except in the case of mayhem, and perhaps a case 
 of atrocious battery, in which, if, upon inspection of the in- 
 jury, the court were of opinion that the damages given by 
 the jury were inadequate, they could direct them to be in- 
 creased and the verdict amended accordingly. This inter- 
 ference was rare, even in such cases. In other cases, the 
 court have refused to amend the postea by increasing the 
 damages, even upon affidavit of the jurors that they intended 
 to give such increased damages. Id. 196. 
 
 -^ The verdict, whether general or special, was in- 
 
 dorsed on the nisi prius record, and, from the Latin 
 word from 'which it began, the entry M'as called the posiea. 
 If erroneous, the postea could be amended by the notes or 
 even memory of the judge, and if it was lost, a new one 
 could be made out. It was delivered to the attorney of the 
 successful party. It then became his duty, on or after the 
 day in bane, when the trial had been during the sitting of 
 the term, or if in vacation, then on or after the first day of 
 the next term, to enter, with the clerk of the rules, a rule 
 for judgment on the postea. This obtained equally in the 
 case of verdict and inquisition upon a demurrer or judg- 
 ment by default, but not in the case of a special verdict or 
 non-suit, in which cases judgment could be signed without 
 any rule. This rule expired in four days, exclusive of the 
 day when it was entered. 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. Ill 
 
 If uo motton for a new trial or in arrest of judgment was 
 made, judgment could be signed immediately after expira- 
 tion of the rule. But at any time before expiration of the 
 rule, the defeated party might move for a new trial. Id. 
 
 In the State of Maryland and the District of Columbia, the 
 common law as to the form, rendition, and effect of verdict, 
 and the conduct of the jury, remains, with little alteration. 
 There is not the same strictness in the treatment of the jury. ' 
 They are not deprived of food, etc., to coerce them into find- 
 ing a verdict. 
 
 The privy verdict of the common law, delivered to one of ' 
 the judges, has given place to the sealed verdict delivered 
 after adjournment to the clerk of the court, or retained by the 
 foreman, to be opened and confirmed by the jury, in the 
 presence of the court, at its next meeting. 
 
 The general verdict does not include costs, but only the- 
 debt, if it is an action for a liquidated demand, or the dam- 
 ages, if it is an unliquidated claim, and the costs are taxed 
 by the clerk. In the former case, there is, as in England, an 
 assessment of nominal damages for detention. Evans's Pr., 
 ch. 11. 
 
 Section IV. 
 If circumstances prevented either party from 
 
 New Trial 
 
 having his cause fairly and legally determined, he 
 
 might have a re-examination of it before a new jury, upon 
 
 either the same or additional evidence. 
 
 The grounds on which a motion for a new trial might be ^ 
 made were, error of the court in the conduct of the trial, 
 error or misconduct of the jury, or other matters obstruct- 
 ing a fair trial. 
 
 If the judge misdirected the jury as to the law of thd case, 
 or refused, on application, to direct them properly, or where 
 a sheriff or his deputy misdirected a jury of inquest, it was 
 a sufficient ground for a new trial, unless the court were 
 satisfied that substantial justice had been done, notwith- 
 standing the error. 
 
 It was formerly considered a mere matter of discretion 
 
112 COMMON LAW PRACTICE. 
 
 with the court, to grant or refuse a new trial, on any grounds. 
 -"But where there is a plain error of the court, \Vhich may 
 have misled the jury and caused an adverse verdict, the 
 party affected by it has been held, by modern authorities, to 
 be absolutely entitled to a new trial, though the refusal is 
 not a ground for writ of error. 
 
 The error of the court might also consist in the improper 
 admission of evidence adverse to a party, or the improper 
 exclusion of evidence favorable to him. This, equally with 
 misdirection to the jury, entitled him to a new trial. But in 
 case of improper exclusion Of evidence, if the fact which it 
 was offered to establish had already been shown aliunde, or 
 where evidence was improperly admitted, if there was suffi- 
 cient evidence without it to support the verdict, the court 
 have refused to interfere. 
 
 Where a plaintiff" was improperly non-suited, he was gen- 
 erally granted a new trial, but not where he voluntarily suf- 
 fered a non-suit in consequence of an erroneous direction by 
 the judge. 
 
 — Where the misdirection or other error in the rulings of 
 the court had been made the subject of a bill of exceptions, 
 the court have always refused to give a new trial upon the 
 same question of law, unless the party would waive his bill 
 of exceptions. 
 
 -" Irregularities in the proceedings have also been ground 
 for a new trial, as where the under-shei'ifl', who returned the 
 panel, was attorney for the party who gained the verdict. 
 So where a juror has been sworn by a wrong surname, and 
 was not the person intended to be summoned, the court 
 exercised its discretion in granting a new trial, according as 
 the mistake had or had not resulted in some injustice. 
 
 — Error of the jury is a well-established ground for granting 
 a new trial, as where the verdict was plainly contrary to the 
 evidence. 
 
 --<• But the court exercised a sound discretion in the matter, 
 and would refuse to disturb the verdict if it was just in the 
 main,ithough against the evidence. And where the action 
 was hard and vexatious, they have refused to disturb a ver- 
 dict for the defendant, though contrary to evidence, and 
 
TRIAL AND SUBSEQUENT PEOCBEDINaS TO JUDGMENT. 113 
 
 have (lone the same thing where sucli a verdict was for a 
 plaintiff, and the defense was unconscionable. A new trial 
 would not be granted to a defendant on an issue found on a 
 plea in abatement. 
 
 The power was seldom exercised when evidence was given 
 on both sides, unless the preponderance was great against 
 the verdict. 
 
 In cases where the real damaoje sustained miffht be com- >- 
 puted, it was a matter of course to grant a naw trial, if the 
 damages found were excessive, and generally, in actions ex 
 contractu, if they could clearly be seen to be excessive. 
 
 But in actions ex delicto, such as actions for criminals- 
 conversation, seduction, battery, false imprisonment, mali- 
 cious prosecution, slander, or the like, the court would sel- 
 dom interfere with the verdict or inquest, and would do so 
 only in cases where it was outrageous, or the court could be 
 satisfied that the jury were influenced by improper motives, 
 passion, partiality, or gross error. 
 
 On the other hand, the undue smallness of the damages ■- 
 was not a ground for a new trial, unless it was occasioned 
 by mistake of law, either by court or jury, or some unfair 
 practice on the part of the defendant himself. Inquisitions 
 were sometimes set aside on that ground. If the matter in 
 dispute was too inconsiderable to deserve a second trial, it 
 was refused. 
 
 And the defendant could preclude himself from having a"' 
 second trial, by any step which involved an admission of the 
 case in the declaration, as, b}' the payment of money into 
 court, or serving on the plaintiff an allowance of a writ of 
 error, which is for the review of matters of law only. In"- 
 penal -actions, a verdict for the defendant was never set aside, 
 unless for a mistake or misdirection of the judge. 
 
 The misconduct of the jurors, such as casting lots fortheir*'" 
 verdict, eating or drinking at the expense of the successful 
 party, declaring, in advance, for or against one party, and 
 similar acts, was sufficient ground for a new trial, but the 
 court would not receive an affidavit of misbehavior from one 
 of the jurors themselves, or allow them, by affidavit, to ex- 
 
 8 
 
114 OOMMON LAW PRACTICE. 
 
 plain the grouuda of their verdict, or show that they intended 
 something different from what they found. 
 
 V A new trial was not granted for the default or omission 
 of the parties, or their attorneys, to attend, prepared with 
 their evidence, or because of any mistake of a witness which 
 led to the verdict coniplained of, though the mistake were 
 
 ■explained by affidavit of the witness himself, or because of 
 an objection to the competency of witnesses, discovered since 
 ■the trial, or for the purpose of impeaching a witness. Id. 
 ■222-5. 
 
 But it has also been held, in a comparatively modern 
 case (Richardson v. Fisher, 1 Biug., 145), that a mistake of 
 a witness is sufficient ground. 
 
 «< Bat where a material witness for one party had been kept 
 out of the way by the other party, or no notice, or an insuf- 
 ficient notice, of trial or inquest had been given, or, by trick, 
 the counsel on one side had been taken by surprise, or a 
 verdict obtained in the accidental absence of counsel, the 
 new trial was granted. 
 
 " Any improper influence or tampering with the jury by a 
 party, in whose favor the verdict was afterwards rendered, 
 as by furnishing them evidence after they had left the bar, 
 was ground, as we have seen, for setting aside the verdict 
 
 -and granting a new trial. 
 
 -• If the unsuccessful party discovered new and material 
 evidence after the trial, he might, on the payment of costs, 
 
 ■obtain a new trial, where it was necessary in order to do 
 justice between the parties. And this has been held even 
 where the evidence was in the possession of a party's attor- 
 ney, at the time of trial, but was not known by him to be so. 
 But evidence simply cumulative, and of the same character 
 as that already ofiered, was not sufficient for this purpose, 
 nor was a party ever allowed a new trial for the purpose of 
 making a defense, of which he was apprised at the first trial. 
 
 Whether the second verdict differed from the first or the 
 two concurred, it, was in the discretion of the court to grant a 
 third trial, if the second verdict was unsatisfactory. But it 
 has been refused where the first verdict was set aside for 
 
TRIAL AND SUBSEQUENT PROOBEDINGS TO JUDGMENT. 115 
 
 excessive damages, and the second was for the same 
 amount. 
 
 "Where there were several issues, if the verdict on one of -^ 
 them watj contrary to the evidence, the new trial could not 
 be granted only as to that one, but must have been as to all, 
 and the issue in question must have been a material one to 
 induce the court, in such case, to grant the new trial. 
 
 In ejectment, the court seldom granted a iiew trial when 
 the verdict was for defendant, because the judgment was 
 conclusive of nothing but the presentrightof possesson, and 
 the plaintiff might sue again. It was otherwise where the 
 verdict was for the plaintiff and consequently the defendant 
 might be turned out of possession, 2 Arch. Pr., 225-227. 
 
 The motion for a new trial was addressed to the "^ 
 
 court from which the venire issued, and where 
 there were several defendants, the application had to be made 
 on behalf of all, and therefore it was I'efused where the ver- 
 dict was contrary to evidence as to one, but not the others, 
 of several defendants. Id. 
 
 But it has been granted to 2:>lainiiff agsdnst some of several *"" 
 defendants. (Price v. Harris, 10 Bing., 331.) 
 
 It was necessary to make the motion before the rule for 
 judgment expired, though under particular circumstances 
 the court allowed the new trial to be moved for at any time 
 before judgment was actually signed. 
 
 In general, it could- not be moved for after motion in ar- - 
 rest, or service of an allowance of a writ of error, but it has 
 been allowed after motion in arrest, where the grounds for 
 moving a new trial were not known at the time of filing the 
 former motion. 
 
 Upon the exhibition of proper grounds for it, the court 
 gave a rule nisi, a copy of which was to be served on the 
 opposite attorney. On the day for showing cause, when the 
 cause was called, the report of the judge who tried the cause 
 was read, and the opposite counsel showed cause against the 
 rule, the mover was then heard in support of it, and the 
 court either discharged it or made it absolute. In the latter 
 
116 COMMON LAW PRACTICE. 
 
 ease, they sometimes imposed terms, such as, that witnesses 
 who were infirm 01' going be^'ond seas might be extimiiied 
 on interrogatories, facts should be admitted, papers produced 
 at the trial, or certain facts discovered on oath, or costs paid, 
 etc. If the rule was made absolute, a copy was to be sei-ved 
 on the opposite party's attorney or agent, and if the costs 
 were required to be paid, it was necessary to do it without 
 delay, or the adversary party might move to discharge the 
 rule, and for leave to sign judgment. If the rule was dis- 
 charged, judgment could be signed as in ordinary eases. 
 
 —* It was discretionary with the court whether to require a 
 part}' to pay costs before proceeding to the second trial or not. 
 
 ^ Where a non-suit or a verdict was set aside on account of 
 misdirection by the court, it was generally done without costs. 
 
 — If the new trial was granted because the verdict was con- 
 trary to law or the instructions of the court, it was usually 
 without costs, and so where it was because of the miscon- 
 duct of the opposite party, as by concealing a witness, or 
 — procuring the verdict by trick. If the misconduct of the 
 jury was the ground for the new trial, the costs were ordered 
 to abide the event of the second trial. And when this direc- 
 tion was given, it was only when the same part^^ was success- 
 ful in both trials that he was entitled to the costs of the first. 
 
 >». But if the new trial was given because the verdict was. 
 contrary to evidence, or because of excessive damages, the 
 new trial was usually granted on payment of costs. 
 
 If the rule for a new trial was silent as to costs, those of 
 the first trial were not allowed, though the verdicts were the 
 same on both trials. 
 
 If the postea had been indorsed on the former nisi prius 
 record, it was necessar}'^ to make out a new one for the sec- 
 ond trial ; otherwise the former one could be used. The 
 notice of trial and other proceedings were then the same as 
 for the first trial. 
 -- The record was made up after the second trial, as if that 
 was the only one, and the second verdict only appeared upon 
 the postea. 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 117 
 
 The new trial was granted always on grounds extrinsic to- 
 the record. 
 
 A venire facias de novo followed of course. Bat this was 
 also a part of the old English practice before the introduc- 
 tion of motions for and rules allowing new trials, and the 
 venire de novo was awarded generally for defects appearing 
 on the record, such as a verdict so ambiguous that no judg- 
 ment could be rendered on it. 
 
 Where an action was brought by direction of the Chan- 
 cellor, the motion could be made either to him or in the 
 court which tried the cause. Where an issue was sent from 
 the Court of Chancery it was made in that court. , Inferior 
 courts could not grant new trials except for fraud or irregu- 
 larity. 
 
 In Maryland, the common law of new trials obtained.- 
 All trials being at bar, the motion was addressed to the 
 court which tried the cause. If the ground was misdirec- 
 tion of the court, it was not, as at common law, in the na- 
 ture of an appellate proceeding, but gave the court an op- 
 portunity of reviewing its own rulings. No formal rules 
 were necessary, but the motion was simply filed and entered 
 on the docket. It was required to be made within four days 
 after verdict. 
 
 The disqualification of a juror haS been recognized as a' 
 ground for new trial, in opposition to the English authorities, 
 according to which the proper remedy was the challenge. 
 
 The mover had the opening and conclusion in the argu-- 
 ment of the motion for a new trial. It was a motion ad- 
 dressed to the discretion of the court, and its ruling upon 
 the motion was held not to be the subject of appeal. 
 
 The motion was refused or granted generally, or upon 
 terms. If it was granted, the cause stood for trial again, 
 either at the same or a subsequent term, according to cir- 
 cumstances. 
 
 If it was refused, judgment was immediately entered 
 without notice or rule. Evans's Pr., 219, et seq. 
 
 The Federal courts have the power to grant new trials, ex- 
 
118 eOMMON BAW PEACTieB. 
 
 pressly conferred on them by the act of September 24th, 
 1789, " for reasons for which new trials have us-ually been 
 granted in courts, of law." (Sec. 17th.) 
 
 . It is provided in. another section (18th),. that after judg- 
 ment, execution may be stayed on motion of either party at 
 the discretion of the co'urt, and on such conditions for the 
 adverse party as they may judge proper, for forty-two days 
 from the- time of entering judgment, to give time for filing 
 a petition for a new trial. If the petition is filed within the 
 time, with a certificate thereon from either of the judges of 
 the court that he- allo^v3 it to be filed,, which he may give or 
 refuse, execution shall be further stayed to the next session 
 of the court^. And if a aew trial is granted, the judgment 
 shall be void. 
 
 This does not, however, preclude the courts from granting 
 the new trial in a different way, and it is accordingly sought 
 and granted in the same manner and on the same grounds 
 as at common law, where that law prevails on this subject 
 in the States. Conkling's Treatise. 
 
 Section V. 
 
 " motion The judgment might still be delayed by motion 
 
 in arrest, ju arrest. 
 
 This was always for matter appearing on the face of the 
 record, such as defects in. a declaratio.n, which would be 
 ground for a general demurrer, and which would not be 
 
 .aided by verdict, or defects in the verdict itself, such as have 
 already beeu referred to-,, which could not be amended. 
 
 After a judgment on diemurrer, motion in arrest could not 
 be made, whether the demurrer were argued or not, at least 
 upon the grounds which might have been assigned for the 
 demurrer. After judgment by default, it was held that mo- 
 tion might be made in arrest of final judgment. 
 
 - This motion waSj, in strictness, to be made, like a motion 
 for a new trial, before the expiration of the rule for j,udgment, 
 
TRIAL AND' aUBSEQUEITT PROCEEDINGS TO JUDGMENT. 119' 
 
 though it was allowed at any time, before judgment was ac- 
 tually signed. 
 
 If there was a rule nisi for a new trial, however, it could^' 
 be made after that was discharged, and the practice was, at: 
 the time of obtaining this rule, to ask leave to move in arrest 
 in case the rule nisi for a new trial should be discharged; 
 
 If judgment was arrested for a defect in the verdict, ai 
 venire de novo issued, as we have seen, whereas, if the 
 whole declaration was defective, the judgment was that the 
 defendant go without day. 
 
 If the judgment was arrested, each party paid his own - 
 costs. 
 
 In Maryland the motion for a new trial and the motion in 
 arrest were filed in writing at the same time, and the com- 
 mon law on the subject of arrest of judgment remained 
 unchanged. 
 
 Judgment for the defendant upon a verdict in ^^^^ ^^^^. 
 his favor, might be prevented by a motion' for a uon obstant&! 
 judgment for the plaintiff, non obstante veredicto: "^^^ ""'' 
 This was where the defense made on record by the plea was 
 not valid. The plaintiff might have demuirred;, or, having 
 gone to issue, might raise the question of the' validity of the 
 defense, in this form, which is the oppo&ite- of the defend- 
 ant's motion in arrest. 
 
 This motion vs^as for a rule to show cause why judgment 
 should not be entered. If it was made absolute, the judge- 
 ment entered was interlocutory, and if other- than nominal 
 damages were sought, a writ of inquiiry issued, as in other 
 cases. 2 Arch. Pr., 229'. 
 
 lifeither party would be entitled tO' costs- in su<!h ease. 
 Goodburne v. Bowman, 9 Bing., 667. 
 
 This proceeding was rare in England, and hardly known 
 in practice in Maryland. 
 
 The motion in arrest of judgment and the motion for 
 judgment non obstante veredicto', areas well-known in Federal 
 practice as in the State courts. 
 
120 COMMON LAW PKACTICE. 
 
 Section VI. 
 The next step in the progress of a cause con- 
 
 — ' Judgment. i i i in- i 
 
 ducted regularly through all its stages to a conclu- 
 sion, was the judgment. 
 
 But as a judgment might be rendered for one party or 
 the other at different stages of the cause, it may be well to 
 consider it in each form. 
 •^ It has already been seen that upon the plaintiff's default 
 in certain things incumbent upon him, in the prosecution of 
 his suit, the defendant might sign judgment against him, of 
 non pros. 
 
 -^ If the plaintiff failed to declare within the time 
 
 Non pros. •^ t ^ ^ - c" 1 1 
 
 prescribed by the practice or the court, or to repjj', 
 surrejoin, surrebut, etc., within the time limited in the rules, 
 or failed to enter the issue in time, the attorney of the de- 
 fendant prepared the incipitur, as it was called, i. e., the com- 
 mencement of the roll or record, and carried it to the clerk 
 of the judgments, who filled up and signed the judgment. 
 This judgment, reciting the plaintift''8 default, simply de- 
 clared that, "therefore it is considered by the court here, 
 that the said A. B., plaintiff, take nothing by his said writ, 
 but that he be in mercy, etc., and it is farther considered 
 that the said C. D., the defendant, do recover against the 
 
 said A. B., plaintiff, £ , for his costs and charges, etc., 
 
 etc." It was a judgment against the plaintiff for costs, and 
 execution could issue immediately. 
 
 >■ If the action was against several, it was necessary that all 
 should join in non-prossing the plaintiff. Even in trespass, 
 one defendant could not do so unless the plaintiff had" actu- 
 ally declared against some, or obtained further time for doing 
 so, in which case the others might sign judgment of non 
 pros. And only one judgment of non pros, could be signed, 
 although the defendants appeared by different attorneys. 
 
 -^ The judgment of non pros., if regular, might be set aside, 
 in the discretion of the court, on payment of costs. If irreg- 
 ular, it would be set aside with costs. , 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 121 
 
 After judgment of uon pros., the plaintiff could still com-* 
 meuce a new action against the defendant for the same cause, 
 and hold him to bail as before. 2 Arch. Pr., 204-207. 
 
 By statute 14 Geo. 2, if plaintiff failed to bring the issue 
 to trial, according to the course and practice of the court, 
 upon motion in open court the judges were to give the same 
 judgment for the defendant as in case of non-suit. Id. 214. 
 
 Judgment for the plaintiff might be by default, by confes- 
 sion, upon demurrer, upon verdict, or, as we have seen, non 
 obstante veredicto. 
 
 "Where the defendant, having appeared, omitted to plead* 
 according to rules, or had filed an improper plea, which the 
 court could treat as a nullity, as, for example, a plea of non 
 assumpsit in trover, or, after craving oyer of a deed, omitted 
 to set forth the whole of it, or pleaded in abatement without 
 affidavit, or pleaded tender without paying the money into 
 court, or pleaded after the time of pleading had judgment 
 expired, the plaintiff could sign judgment by ra7 iiy "ii "licit. 
 dicit, as it was termed. 
 
 And if a plea did not profess to answer more than a part" 
 of the decUu-ation, though it in fact answered more, the 
 plaintiff could sign judgment for the part which it did not 
 profess to answer. If the plaintiff omitted to do this, and- 
 demurred or pleaded over, it was a discontinuance of the 
 action. If, however, the plea pi'ofessed to ansvver the whole- 
 declaration, but was only an answer to part, the plaintiff 
 could not sign judgment, but must have demurred. JSTor- 
 did the defendant's failure to appear at the trial amount to 
 a default which warranted the entry of judgment. In such 
 case the plaintiff was bound to go on and prove his case to 
 the jury, and obtain their verdict. 
 
 Where judgment was intended to be entered by default, ■ 
 by previous arrangement, it was a judgment by non sum. i/ifor- 
 matus,\t being stated that the defendant appeared by attorney, 
 who said "that he was not informed of any defense." 
 
 Where judgment was entered as to part, and issue joined* 
 as to the residue, of the cause of action, a special venire 
 
122 COMMON LAW PRACTICE. 
 
 was issued, as well to try the issue as to inquire of the 
 damages, and the jury which tried the issue assessed the 
 damages for the whole. The same occurred where, of sev- 
 eral defendants, some pleaded and others allowed judgment 
 to go by default. In these cases no writ of inquiry issued. 
 
 As already explained, in cases in which unliquidated dam- 
 ages are of the essence of the action, the judgment by de- 
 fault was interlocutory, as in assumpsit, covenant, trespass, 
 case, and replevin; while in debt and ejectm.ent, the damages 
 being merely nominal, the plaintiff usually signed final judg- 
 ment in the first instance. 2 Arch. Pr., 8-11. 
 
 -* The default being established, the plaintiff's attorney pro- 
 cured the judgment to be signed by the clerk of the judg- 
 ments. The form of the judgment included an award of 
 the writ of inquiry, where that was necessary, in the words, 
 writof "but because it is unknown to the court here what 
 inquiry, damages the said plaintiff, A. B., hath sustained by 
 means of the premises, etc., the sheriff" is commanded that 
 by the oath, etc., he diligently inquire, etc." 
 
 -. Where several defendants had allowed judgment to go by 
 default, it was necessary that the writ be executed against 
 all jointly, and a separate assessment was irregular, and final 
 judgment entered on it was erroneous. 
 
 -< Assessment But eveu ill an action for damages it was not 
 by the court, always uecessary to resort to the writ of inquiry. 
 The object of the inquest was to inform the conscience of 
 the court, and they might, if they pleased, assess the dam- 
 ages themselves. And accordingly, in cases where the 
 damages were matters of computation, as in actions of as- 
 sumpsit upon notes or bills of exchange, it was the practice 
 of the court to refer the case to a master, to compute the 
 amount of principal and interest due without a writ of in- 
 
 . quiry. The like was the rule in case of covenant for non- 
 payment of a liquidated sum, or of rent. But in actions 
 on bonds or covenants, to indemnify, or on a bill of ex- 
 change for foreign money, or on a foreign judgment, or as- 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 123 
 
 sumpsitfor a sum certain due under a special agreement, or 
 even on a judgment recovered on a bill of exchange, they 
 required the writ of inquiry to issue. 
 
 It was necessary for the declaration to show, on its face, "^ 
 that the damages were mere matter of computation, and it 
 was not sufficient to make it out by evidence, in order to 
 have the reference to the master. Accordingly, if one count 
 showed this, but the others were the common counts, the 
 reference could be had to assess damages under the former, 
 upon the entry of a remittitur as to the others, only. 
 
 It has already been seen that where there was judgment -^ 
 by default as to part of the case, or as to some of several de- 
 fendants, and issue joined as to the rest of the case, or by 
 the other defendants, a special venire issued, and the jury 
 which tried the issue acted also as a jury of inquest to assess 
 the damages under the judgment by default. 
 
 So, if there was a demurrer as to one count, and issue - 
 joined as to the other, a special venire might issue in the 
 same way, or, after obtaining judgment on the demurrer, 
 the plaintiff" might have his writ of inquiry as to that count 
 on entering a nolle prosequi as to the rest. And if there 
 was a demurrer as to part, and judgment by default as to 
 the residue, the plaintiff" might sue out a writ of inquiry on 
 the judgment by default, and to assess contingent damages 
 as to the demurrer, or he might obtain judgment on the 
 demurrer in the first instance, and then execute a writ of 
 inquiry on both judgments. 
 
 In debt, as has been seen, the judgment by default was — 
 final, quoad the debt, and the damages being merely nom- 
 inal, the plaintiff might at once enter final judgment. This 
 might be even on a bail-bond. And in debt on a replevin 
 bond for not making a return of goods distrained, the plain- 
 tiff" was allowed to enter judgment for the amount of the 
 goods indorsed on the replevin bond. But in debt on bond 
 for the payment of an annuity, or of money by instalments, 
 or the performance of covenants or an award, or of any 
 specific act, though the judgment by default was entered for 
 the amount ot the penalty, a writ of inquiry was necessary 
 to ascertain the real damages. 
 
124 COMMON LAW PRACTICE. 
 
 So, when it is the duty of the (rial jury to assess damages 
 on a judgment by default on some of the counts, or contin- 
 gent damages on a demurrer to the declaration, or a de- 
 murrer to evidence at the trial, their omission to do so was 
 remedied by writ of inquirj- upon application to the court. 
 
 But where an attaint would' formerly lie, as in an ordinary 
 personal action, and a verdict wasfoundfor plaintift", but the 
 damages were not assessed, or where the trial jury was re- 
 quired by statute to assess damages and omitted it, a writ 
 of inquiry would not cure the defect, but the verdict was 
 set aside and a new trial awarded. 
 
 The writ of inquiry was executed before the sheriff, 
 
 Inquest. ....... 
 
 or upon special application, iii important cases, be- 
 fore one of the judges; and generally, the same rules appli- 
 cable to notices of trial applied to notices of inquiry. 
 
 The sheriff summoned a jury in pursuance of the writ. 
 
 The only inquiry allowed was as to the amount of damages, 
 the default admitting, or the judgment on demurrer estab- 
 lishing, the cause of action shown in the^ declaration. 
 
 'Nov was the defendant allowed to offer, inmitigation of 
 damages, any matter which might have been made the sub- 
 ject of set-off". 
 
 Where there were several defendants, all in default, the 
 damages could not be severed, but where one was in default 
 but the other demurred, so that there was a severance in 
 pleading, the damages might be severed. On the return of 
 the inquisition, a rule for judgment was entered, in the same 
 nianner as after verdict, and motions might be made to set 
 aside the inquisition or arrest the judgment; in the absence 
 of such motions, final judgment was signed, as upon verdict. 
 2 Arch. Pr., 19-26. 
 
 When the cause of action was a bond with a penalty, for 
 the performance of any covenants or agreements in any deed 
 or writing, whether in the same or any other writing, it 
 was provided by a statute of 8 and 9 William III, ch. ii, 
 that after judgment on demurrer or by confession or default, 
 the plaintiff" might suggest, on the roll, as many breaches as 
 
TRIAL AND SUBSEQUENT PEOOEBDINSS TO JUDGMENT. 125 
 
 he thought fit, which should be inquired of, and the damage 
 assessed. But the judgment was to stand as security to 
 answer for damages tliat might be sustained by future 
 breaches of the covenants in the same instrument, and the 
 plaintiff' might have a scire facias on the judgment, suggest- 
 ing further breaches, and summoning defendant, etc., to 
 show cause why execution should not issue on the judg- 
 ment; and on payment or satisfaction of the damages so 
 found from time to time, furtlier proceedings were to be 
 stayed and defendant's person or goods discharged. 
 
 But the defendant was not liable beyond the penalty, and" 
 as soon as the amount of that was recovered, or if the 
 amount of it was paid into court, the plaintiff could go no 
 further, but could be compelled to enter satisfaction on rec- 
 ord. The act in question also allowed the plaintiff to assign 
 in his declaration, in the class of cases mentioned, as many 
 breaches as he might think proper, and it was held that this 
 assignment or the suggestion of the breaches, after judg- 
 ment by default, was compulsorj', and subsequent proceed- 
 ings without that were defective. Id. 27-30. 
 
 Judgment might be entered upon a confessioa j^^^ ^^^^ ' 
 
 or cognovit. by confession. 
 
 This was usually where there was no real defence, and 
 often on condition of being allowed time, or on other terms. 
 It was a confession in writing, in the terms, " I confess this 
 action, or (if in debt) the debt in this action, and that the 
 plaintiff hath sustained damages to the amount of , be- 
 sides his costs and charges, to be taxed by the master." It 
 then contained the conditions, such as, that no judgment 
 should be entered, or execution issued, until default in pay- 
 ment by a certain day, and that in case of such default the 
 plaintiff might enter up judgment and issue execution, and 
 that the defendant should not bring a writ of error or file a 
 bill in equity. 
 
 If made on terms, the court enforced them ; if made un- 
 couditionallj', the plaintiff might enter judgment and sue out 
 execution at once. 
 
 If the confession was of part of the cause of action, judg- 
 
126 COMMON LAW PRACTICE. 
 
 ment could be entered , as to that, and the action would 
 proceed as to the residue. 
 
 If the confession was made after plea filed, it contained 
 an agreement to withdraw the plea, and the defendant had 
 to attend before the master to withdraw it. 
 J If the cognovit was. given before the appearance of the 
 defendant, it was necessary for the plaintiff to enter a com- 
 mon appearance for him, before judgment could be signed. 
 
 The roll was made out by the attorney and, with the cog- 
 novit, taken to the clerk of the judgments, who thereupon 
 signed the judgment. 
 
 "- Besides the express, there were implied confessions of 
 judgment, resulting from the form of the defendant's plead- 
 ings. 
 
 Where an executor or an administrator pleaded plene ad- 
 ministravit or plene adminisiravit proeter, etc., it was a confession 
 of the cause of action, and the plaintiff could take judg- 
 ment of assets in futuro in the one case, and in the other, 
 judgment of the assets admitted, and of assets in futuro for 
 the residue. 
 
 But in these cases of implied confession, and also cases of 
 express confession, in which the damages are not ascertained, 
 the plaintiff could only enter up interlocutory judgment, 
 and must have sued out his writ of inquiry as in case of de- 
 fault. 2 Arch. Pr., 5-7; 1 Tidd, 503. 
 
 Judgment on ^esidcs Confessing judgment directly, a party 
 Warrant of might givc a Warrant of attorney to some attor- 
 Attorney. ^^^ ^^ appear for him and receive a declaration 
 in an action at the suit of some one named, and thereupon 
 confess the same or suffer judgment to go by default. This 
 was given sometimes as security for the payment of money, 
 either in gross or in instalments, and contained conditions 
 or a defeasance. 
 
 A warrant of attorney given for a valuable consideration 
 could not be expressly revoked. 
 Death, however, was a revocation in law. If the plaintiff 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 127 
 
 died, this might be avoided by entering the judgment, if the 
 warrant authorized it, as of the term in which the plaintiff 
 died. But if it became necessary to obtain leave of the court, 
 it was seldom granted after a plaintiff's, and never after a 
 defendant's, death. So, if one of two who gave a warrant 
 of attorney died, judgment could not be entered afterwards, 
 but upon a warrant io two, judgment was allowed to be en- 
 tered up by the survivor. Subsequent marriage would revoke 
 a power given by a ferae sole, but not a power given to her, . 
 and upon proper affidavit of the marriage the court would 
 allow judgment to be entered in favor of her and her hus- 
 band. 
 
 If the warrant of attorney was obtained by fraud or for 
 an illegal consideration, or from an infant or ferae covert, 
 the court would order it to be delivered up to be cancelled, 
 or set aside a judgment entered on it, but sometimes only 
 on terms. 
 
 The entering of judgment must have followed the terms-* 
 of the warrant. It could not be done at a different term 
 from that mentioned, or against one where it is authorized 
 against two, though -one be dead, nor in a different form of 
 action from that specified. 
 
 Where the warrant of attorney was given to secure an — 
 annuity or instalment of money, it was not necessary to 
 issue a scire facias before issuing an execution for each sep- 
 arate instalment, as in case of a judgment on a bond. The 
 execution might be sued out directly, but as it was requii-ed 
 to correspond with the judgment, it was necessary that it' 
 should issue for the whole amount of the judgment, but 
 should be indorsed to be levied for the arrears only. 2 Arch. 
 Pr., 12-18. 
 
 On a demurrer, judgment for the plaintiff was judgmenton 
 interlocutory or final, just as a judgment by de- Demurrer, 
 fault was. In the former case a rule for judgment was en- 
 tered with the clerk of the rules, and a writ of inquiry was 
 sued out, or a reference had to the master, as the case might 
 be, and final judgment signed in the manner already men- 
 tioned. 
 
128 COMMON LAW PRACTICE. 
 
 -* Judgment Upoii a general verdict, or upon the return of a 
 on verdict. ^-|^i(; ^f inquiry, the plaintiif' s attorney entered a 
 rule for judgment with the clerk of the rules in the follow- 
 ing form, viz.: "A. B. v. C. D. Rule for judgment on 
 postea (or inquest)." 
 -~ After the expiration of the rule, which was a four-day 
 rule, the attorney took the postea to the master to have the 
 costs taxed. If expenses had been incurred which did not 
 •appear on the face of the proceedings, such as witnesses' 
 fees, etc., an affidavit was required to warrant the master 
 in allowing them, which was called an affidavit of increased 
 costs. It was usual to give notice of the taxation to the 
 opposite attorney, so that he might be present if he desired. 
 He might obtain a rule from the clerk of the rules to be 
 present. 
 
 -^ When the costs were taxed, final judgment was said to 
 be signed, and execution could be sued out. 
 
 ^ The judgment was the award of the court, that the plain- 
 tiff recover his debt, damages, and costs, or damages and 
 costs; or, that the plaintiff should take nothing by his writ 
 — nil capiatur per breve — and that the defendant should go 
 thereof without day, and also should recover against the 
 plaintiff the costs and charges he had been at in his defense. 
 
 -< The judgment included a nominal amercement of the 
 unsuccessful party, expressed by the terms "that he be in 
 mercy" (jnisericordia), except that in all actions vi et armis, or 
 where defendant in pleading, as in an action on specialty, 
 denied falsely his own deed, the entry against the defendant 
 was "capiatur pro fine." 
 
 And it was error if it omitted the costs. 
 
 — It will be appropriate, here, to notice the subject of 
 
 Costs. 
 
 costs. 
 At common law, neither plaintiff nor defendant could re- 
 cover costs. If the plaintiff failed, he was amerced for his 
 false clamor, but the amercement went to the king, and the 
 same was the case with the fine included in the judgment 
 against a defendant. But wherever damages were recov- 
 ered, the jury computed the costs in the damages. 
 
TR-IAIi AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 129 
 
 But where the verdict was for the defendant, or the plain- 
 tiff was non-suited, the defendant had no remedy for the ex- 
 penses to which Vie was subjected. 
 
 But the statute of Gloucester (6 Edward I, ch. 1) enacted, ■ 
 that the plaintiff, in all actions in which he recovered dam- 
 ages, should also recover against the defendant his costs of 
 suit. This was held to extend to cases in which subsequent 
 statutes gave single damages, but not to qui tarn actions or 
 those in wliich double or treble damages were given, where 
 none were recoverable before. 
 
 By other statutes, again, the defendant became entitled to- 
 costs, either upon a Verdict in his favor, or in case the plain- 
 tiff became non-suited, in all actions in which the plaintiff 
 was entitled to costs if he recovered a verdict. 
 
 To the general rule by which the successful plaintiff was ■ 
 entitled to his costs, exceptions were established by subse- 
 quent statutes. 
 
 By statute 43 Elizabeth, ch. 6, § 2, it was enacted, that if 
 in a personal action, not being for any title or interest in lands, 
 nor concerning the freehold or inheritance of any lands, nor 
 for any battery, the judge trying the cause should certify 
 that the debt or damages to be recovered therein did not 
 amount to 40s., the plaintiff should have no more costs than 
 damages. 
 
 In assumpsit, covenant, debt on simple contract or spe- 
 cialty, the plaintiff' was entitled to his full costs, unless the 
 judge presiding at the trial would certify, as already men- 
 tioned. But in debt on a penal statute the plaintiff was 
 never entitled to costs, unless they were expressly given by 
 the statute creating the penalty. 
 
 In trespass, as a general rule, the plaintiff was also entitled 
 to hi's costs. But by 22 and 23 Charles II, ch. 9, if the jury 
 found damages under 40s., unless the judge would certify 
 under his hand, on the back of the record, that an assault 
 and battery was sufficiently proved, or that the freehold or 
 title of the land was chiefly in question, the plaintiff could 
 not recover more costs than damages. 
 
 9 
 
130 COMMON LAW PRACTICE. 
 
 The act in question extended only to actions for assault 
 and battery, or those in which the title to the freehold might 
 come in question, such as trespass qu. ci. fregit, but not to 
 trespass de bonis asportatis, nor to trespass for assault upon, 
 and criminal conversation with, plaintiff's wife. But if the 
 defendant pleaded a justification, the plaintiff was entitled 
 to his full costs. And cases not within this statute, as as- 
 sault and false imprisonment, might still fall within the one 
 before mentioned, of 43 Elizabeth, and the plaintiff be de- 
 prived of his costs by the judge's certificate provided for in 
 that act. 
 -^ By a later statute — 8 and 9 William III, ch. 11 — the plain- 
 tiff was entitled to his full costs, though the verdict was for 
 less than 40s., if the judge would certify that the trespass 
 was wilful and malicious. 
 
 In actions generally for torts, the plaintiff was entitled to 
 his full costs, however trifling the damages, unless the judge 
 certified in pursuance of the act of 43 Elizabeth aforesaid, 
 except in case for words slanderous per se, in which, by 21 
 James I, ch. 16, the plaintiff" was absolutely limited to his 
 damages, where they were under 40s. 
 
 In cases where the plaintiff' would be entitled to damages, 
 the defendant who obtained a verdict was entitled to costs; 
 also in actions upon penal statutes. 
 
 ^ In actions against several defendants, if the plaintiff pro- 
 ceeded to trial against all, and obtained a verdict against 
 any, the others were not entitled to costs. But if some only 
 went to trial and the others suffered judgment by default, 
 the formei% if successful, were entitled to costs, though the 
 plaintiff recovered his costs against those in default. 
 
 An exception was made in the cases of trespass, assault, 
 false imprisonment, or ejectment, by a statute of 8 and 9 W. 
 Ill, where the judge would certify that there was reasonable 
 
 -cause for making the person a defendant. 
 
 " In cases where the plaintiff" was entitled to his costs upon 
 a verdict, he was equally entitled upon a judgment by de- 
 fault, though the damages found under the writ of inquiry 
 
TRIAL AND SUBSEQUENT PROCEEDINaS TO JUDGMENT. 181 
 
 were less than 40s., the statutes referred to applying to 
 damages given by a trial jury, only, and not to those given 
 upon an inquest. 
 
 If one of two defendants suffered default, and the other- 
 pleaded a complete bar to the action, as against both, it 
 seenaa to have been held, that the plaintiff was not entitled 
 to costs against the one in default. 
 
 Either party obtaining judgment on demurrer, was en- 
 titled to costs, under the statute 8 and 9 W. Ill, except 
 upon demurrers in abatement, or in actions in which the 
 plaintiff' would not be entitled to damages. 
 
 Where there were two counts in the declaration, an^J- 
 defendant was defaulted as to one, but plaintiff obtained a 
 verdict as to the other, the plaintiff" was, of course, entitled 
 to his costs on both; but if the defendant obtained the ver- 
 dict, he was entitled to his costs on the issue, while the 
 plaintiff was entitled to the costs on the other count. If,- 
 however, issue Was joined on both counts, and each party 
 succeeded on one, the plaintiff" was entitled to his costs on the 
 count found for him, but the defendant recovered no costs. 
 
 If issue in law was joined on one count, and issue in fact 
 as to the other, and the plaintiff succeeded on the latter, and 
 the defendant in the former, the plaintiff' recovered his costs 
 on the issue in fact, but the defendant was not entitled to 
 any costs. -' 
 
 "Where several pleas were filed, all going to the whole - 
 declaration, in pursuance of the stat. 4 and 5 Anne, ch. 16, 
 §4, 5, if any of the pleas were adjudged bad on demurrer, or if 
 verdict was found on any of the issues, for the plaintiff, or for 
 the defendant in replevin, costs were given in the discretion 
 of the court, unless the judge certified that the defendant, or 
 plaintiff in replevin, had reasonable cause to plead the matter. 
 
 Where, however, several pleas were filed,. going to the 
 whole declaration, if the defendant recovered a verdict on 
 any one, he defeated the action, and was entitled to his costs. 
 Yet, if the plaintiff" succeeded on other pleas, either by de- 
 murrer or verdict, he was entitled to his costs upon those 
 issues, to be deducted from the defendant's costs, unless the 
 
132 COMMON LAW PRACTICE. 
 
 judge would certify that the defendant had reasonable cause 
 for filing the pleas on which the plaintiff had obtained the 
 verdict. The costs in question were the full costs of the 
 trial. Yet there were decisions seemingly in conflict with 
 this rule. • 
 
 On a plea in abatement, if the plaintiifhad a verdict, the 
 
 judgment was final. in his favor, and he recovered his costs. 
 
 ■ But on a judgment for plaintiff on a demurrer, or for the 
 
 defendant, either on a demurrer or verdict, neither party 
 
 was entitled to costs. 
 
 On a feigned issue, sent from a court of equity, the costs 
 were in the discretion of the latter, and were not awarded 
 by the court of law, or, if so, followed the verdict. 
 
 In ejectment, the plaintift" and defendant were entitled 
 respectively to costs, except, that if the plaintiff" was non- 
 suited, by reason of the defendant's not confessing lease, 
 entry, and ouster, at the trial, the defendant, instead of re- 
 covering costs, was obliged to pay them, under the consent 
 rule. 
 
 In replevin, the successful party was entitled to his costs. 
 And in replevin for a distress, for rent or service, the de- 
 fendant, by virtue of a statute, 11 Geo. II, ch. 19, was en- 
 titled to double costs of suit, if the plaintiff was non-suited, 
 discoutiiiued his action, or had judgment against him. But 
 if he was simply non-prossed, the defendant recovered single 
 costs, as in other actions. 
 
 lu scire facias, if the defendant appeared and pleaded or 
 demurred, the plaintiff was entitled to costs if he recovered 
 judgment, but until plea pleaded, he was not. lu case of 
 non-suit, discontinuance, or adverse verdict, the plaintiff' had 
 to pay costs to defendant. In a scire facias, suggesting 
 breaches, after judgment by default on bond to perform 
 covenants, in pursuance of the statute 8 and 9 William, 
 aforesaid, the plaintiflF was entitled to costs. 
 
 In scire facias against bail, if they did not plead to it, no 
 costs could be recovered against them, but only the costs 
 of the original action, nor were they responsible for the 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDaMBNT. 133 
 
 costs of a writ of error, prosecuted from the original judg- 
 ment, by ttieir principal. But in an action against bail on 
 the bail-bond, they were liable for the costs of such action, as 
 well as the debt and costs in the original action. 2 Arch. 
 Pr., 248-254. 
 
 In an action by an executor or administrator, he was enti- 
 tled to costs like any other plaintiff", if he recovered judgment. 
 If judgment went for defendant, or the plaintilt" was non- 
 suited, or judgment was given as in case of non-suit, the de- 
 fendant was not entitled to costs against the plaintiff", unless 
 the cause of action accrued after the decedent's death, so 
 that it might be prosecuted by the representative in his own 
 name. But the executor or administrator was liable for costs 
 on a non pros, or a disconiintumce or for not proceeding to trial 
 according to notice, or if he knowingly brought a wrong aciio7i 
 or was guilty of a wilful default. 
 
 An executor who was defendant, and who gaine<l the ver- 
 dict, was entitled to costs, like other defendants. And so 
 when he pleaded plene adminisiraxit and the general issue, 
 and the former was found in his favor and the latter against 
 him, he was held entitled to costs. 
 
 The judgment against him was for damages and costs, to 
 be levied de bonis testatoris, in defendant's hands, if there 
 were so much to be administered, and if not, then the costs 
 to be levied de bonis propriis. But if the executor pleaded a 
 false plea, he was liable to costs de bonis propriis. Id. 130-134. 
 
 In actions by infants, by guardian or prochein ami, if the 
 defendant had a right to costs he could proceed by attach- 
 ment against the prochein ami, or sue out execution against 
 the infant himself. 
 
 In an action against an infant, he was liable to costs as 
 other defendants. Id. 144^146. 
 
 In Maryland^ there was little change in the law touching 
 costs, except in the amount, which, through the simplifica- 
 tion of proceedings, was much reduced. 
 
 The judgment of the court was for damages assessed by* 
 the jury, and costs taxed by the court. 
 
134 COMMON LAW PRACTICE. 
 
 There have been few decisions on the subject. 
 
 In cases of issues at law, part of which were found for 
 plaintiff and part for defendant, it was held to be the uniform 
 practice to allow full costs to the party who gained the final 
 judgment. Thomas's- Admtr. vs. Fred. Co. School, 9 G. 
 and J., 115. 
 
 Form of The costs being taxed, the judgment was en- 
 
 judgment. tered. 
 
 The form in assumpsit was, 
 
 " Therefore, it is considered that the said A. B. do recover 
 against the said C. D. his said damages, costs, and charges, 
 
 by the jarors in form aforesaid assessed, and also £ , for 
 
 his said costs and charges by the court now here adjudged of 
 increase to the said A. B. and with his assent, which said 
 
 damages, costs, and charges iu the whole, amount to £ . 
 
 And the said C. D. in mercy," etc. 
 
 The judgment for the defendant was, " Therefore, it is 
 considered that the said A. B. take nothing by his said writ, 
 but that be and his pledges, etc., be in mercy, etc., and that 
 the said C. D. do go thereof without daj', and that the said 
 
 C. D. do recover against the said A. B. the sura of £ for 
 
 his costs and charges by him laid out, etc., about his defense 
 in this behalf, by the court now here adjudged to the said 
 C. D. and with his assent, according to the statute, etc., etc., 
 and that said- C. I>. have execution thereof," etc. 
 
 The costs adjudged ofincrease, referred to in the judgment, 
 were the costs not ap^arirbg on the record, and made up of 
 witnesses' fees and travelling expenses and compensation for 
 their loss of 'time, and fees to attorney and officers of the 
 court, as bailifl:s, criers, etc., while those included in the 
 verdict, it is presumed, were those paid during the progress 
 of the cause to trial, on the various pleadings and other pro- 
 ceedings, and which were matter of easy computation from 
 the face of the proceedings. 
 
 In trespass, case, aad covenant, tbe judgments were the 
 same as in assumpsit, except thatin judgment for the plaintift' 
 the capiatur pro fine was substituted for tbe misericordia in the 
 
TRIAL AND SUBSEQUENT PROCEEDINGS TO JUDGMENT. 135. 
 
 first two, and also in the last, when the defendant had false]_yr 
 denied hie deed. 
 
 The statute of Gloucester was considered the origin of the— 
 costs de incremento. It became a rule that the jury shouldi 
 assess the damages and the costs given by them, separately, 
 so that it might appear to the court that the costs were not 
 included in the damages, and if it appeared that they were 
 too small, the plaintiff prayed to have them taxed by the 
 proper officer. Hence they were said to be adjudged ex 
 assensu of the plaintiff, or with his assent. 
 
 As far as bona fide purchasers for value were concerned,*^ 
 a judgment only bound real estate from the date when it was 
 signed, for which reason it was the duty of the master or 
 clerk, signing it, to note the date on the reeord. 
 
 As to other persons than purchasers, it related back, in-^ 
 its effect, as a lien upon the defendant's land, to the first 
 day of the term of which it was signed. The latter was its 
 common-law operation; the former resulted from the statute,, 
 29 Chas. II, ch. S. 
 
 The judgment did not bind chattel property in the defend* '- 
 ant's hands. 
 
 The lien of the judgment on real estate was not affected' 
 or waived by suing upon it, in debt. 
 
 When the judgment was signed, an execution might have- 
 been issued immediately, before it was enrolled. It was,, 
 however, incumbent on the successful party to have it en- 
 rolled and entered on a docket kept ftjr the purpose, whichf 
 was open to the examination of all persons. And without 
 being thus docketed, according to statute of 4 and 5 W. & M., 
 ch. 20, the judgment did not affect lands, as to purchasers- 
 or mortgagees, or have preference against heirs, executors,, 
 etc., in the administration of a decedent's estate. Id> 
 202-206. 
 
 In Maryland the assessment of damages on interlocutory- 
 judgments was not made under a writ of inquiry; but it 
 was enacted by an act of 1794, ch. 46, that the court in which? 
 the judgment should be given, should, on motion of the- 
 plaintiff', or his attorney, make an order, in the nature of a 
 
136 COMMON LAW PRACTICE. 
 
 writ of inquiry, to charge the jury attending the same, or at 
 the next term, to inquire of the damages and costs sustained 
 by the plaintiff in the action, which inquiry should be made 
 and the evidence given in open court in the same manner 
 and under the same regulations as^in other jui-y trials, and 
 that the jury should forthwith return their inquisition, un- 
 der their hands and seals, and the court should thei'eupou 
 proceed to judgment. 
 
 There was little difference between a trial and an inquiry 
 of damages. The oath, m one case was, well and truly to try 
 the issue, and in the other, to try and assess the damages 
 and costs in the action and a true inquisition make. The 
 verdict, on the trial, was rendered in open court, while the 
 inquisition was signed and sealed. Printed forms of inqui- 
 sition, in blank, were alwaj's provided by the attorney and 
 filled up to suit the case. 
 
 In cases where there was interlocutory judgment on some 
 counts, and issue on others, and in which, as has been seen, 
 a special venire was issued, at common law, the practice was 
 to have the damages assessed and the issue tried by the same 
 jury, who were sworn to render a true verdict as to each. 
 
 Where the cause of action was a written instrument evi- 
 dencing a liquidated debt, leaving nothing necessary but a 
 computation of interest, the practice was for the court to 
 assess the damages on the interlocutory judgment, upon a 
 computation prepared by the plaintiff's attorney and sub- 
 mitted to the court. 
 
 As under the English statute, before referred to, when 
 there was judgment by default on a bond with collateral 
 condition, if the breaches liad been assigned in tlie decla- 
 ration or replication, the plaintiff" might proceed with his in- 
 quisition immediately after judgment. But if no breaches 
 had been assigned, it was his duty to suggest the breaches 
 upon the record. 
 
 Upon an inquiry in court, the opinion of the court could 
 be taken and exceptions reserved, as on a trial, and the de- 
 fendant could move to set aside the inquisition on the same 
 grounds that would justify setting aside a verdict. 
 
 There seems not to have been the distinci:ion between 
 
TRIAL AND SUBSEQUENT PEOOEEDINGS TO JUDGMENT. 137 
 
 debt and actions sounding in damages, as to entering final 
 judgment in the former case, where defendant was in de- 
 fault. All judgments by default were interlocutory, but the 
 ascertaining of damages in case of liquidated claims, by the 
 court, made the interlocutory and final judgment appear of 
 record as one act. 
 
 A judgment by confession was not interlocutory in Mary- • 
 laud, and it was considered unnecessary to assess damages, 
 even where it was on a bond with collateral condition. The 
 confession was considered an admission of the whole claim, 
 unless it was made on terms. 
 
 After entering the verdict in short on his docket, the 
 clerk added the word "judgment," and it was afterwards 
 extended on the rolls of the court. If the judgment was on 
 terms, it was so entered. 
 
 The form of the judgment was not, as in England, for 
 the amount ascertained to be due, but for the whole sum 
 claimed under the ad damnum, in the declaration, with the 
 additional entry, that the damages were to be released on 
 payment of the amount actually due. 
 
 The same entries followed an inquiry of damages as a ver- 
 dict. The old form of entering judgment for costs of in- 
 crease, with the assent of the plaintift', seems to have, at one 
 time, obtained, but for a long time past, the judgment entry 
 has been simplj' for damages found by the jury and costs to 
 be taxed by the court. Evans's Pr., ch. 12. 
 
 In the District of Columbia, upon the defendant's default in 
 an action on an open account, "verified by affidavit that the 
 amount claimed by the plaintifi'is justly paj'able by the de- 
 fendant to the plaintifl", the plaintiff may have final judg- 
 ment for the amount, with interest from the day specified in 
 the declaration, without an inquiry of damages. Kev. Stat., 97. 
 
 In the Federal cowr-te judgment is entered on verdict, as in 
 the State courts. In one or more, the common law practice 
 lias prevailed, of entering a rule for judgment, which expired 
 four days afterwards or on the last day of the term if there 
 were not four days left, during which time the motion for a 
 new trial or in arrest of judgment might be made. Conkling. 
 
138 COMMON LAW PRACTICE. 
 
 CHAPTER IV. 
 
 WEIT OP BEEOE. 
 
 — The proceeding which followed the rendition of the judg- 
 ment, having for its object the review of that judgment in a 
 superior court, was a writ of error. 
 
 ~~ This was an original writ issuing, like other originals, out 
 of chancery, operating like a certiorari, to remove a record 
 from an inferior to a superior court, and at the same time 
 constituting the authoi'ity of the latter to review and affirm 
 or reverse the judgment rendered by the former. 
 
 - There was also a writ of error called coram nobis, which 
 did not remove the record from one court to another, but 
 was addressed to the court where the record remained, and 
 authorized the same court to correct errors in it. 
 
 The writ of error lay to redress an error of substance, only, 
 in the judgment or other proceedings in a suit, which was 
 i^t aided at common law or by some of the statutes before 
 or hereafter referred to. 
 
 w It could only be brought on a judgment of a court of 
 record acting according to the course of the common law, 
 and only upon^ Jinal, as distinct from an in terlocuiory, judg- 
 ment; though where, as in real actions, judgment by de- 
 fault or on demurrer was at. common law equivalent to iiual 
 judgment, as it could be executed, the fact of a statute allow- 
 ing damages also to be recovered, and thus making it a mixed 
 action, did not prevent a writ of error from being sued out 
 on the judgment by default or on demurrer. 
 
 Where the court acted in a summary manner variant from 
 the course of the common law, the proceeding for correcting 
 its errors was not a writ of error, but a certiorari, and in the 
 case of a court not of record, the proceeding was a writ of 
 false judgment. 
 
WRIT OP ERROR. 139 
 
 Under a statute of 10 and 11 W. Ill, cli. 14, no judgment ■ 
 could be reversed unless the writ of error was brought within 
 twenty years after the judgment was signed or entered of 
 record, and in case the party aggrieved by the-judgment was 
 an infant, feme covert, non compos mentis, in prison, or be- 
 yond sea, within twenty years after the removal of the dis- 
 ability. 
 
 It might be brought and be tested before the signing of 
 the judgment, and such was the practice, in order to avoid 
 execution. 
 
 The writ of error could only be brought by whooouid 
 some one who was a party to the record, or some sue the writ. 
 one in privity with such a party, who was injured by the 
 judgment and would be benefited by its reversal. 
 
 It could therefore be brought by the heirs, executors, or 
 administrators of a party. In regard to real estate, the right 
 heir who would inherit the land in suit, and not the heir 
 general, where the estate was special, could bring the writ. 
 
 But if a tenant in tail lost his estate by an eri'oneous judg- 
 ment, and died without issue, the immediate remainderman 
 or reversioner, after his death, could bring the writ; or if he 
 was a party to the record, he might do it in the lifetime of 
 the tenant in tail. The twenty years within which the writ 
 was to be brought, counted, however, from the rendition of 
 the judgment, and not from the accruing of the remainder- 
 man's or, reversioner's right to possession. 
 
 So, if lessee for life lost his land by an erroneous judg- 
 ment, the immediate remainderman or reversioner might 
 bring a writ of error, at common law, after the lessee's death, 
 but by statute, even during his life. 
 
 Where there were judgments against a principal defend- 
 ant and his bail also, neither one could have a writ of error 
 upon the judgment against the other, nor could they join in 
 a writ of error, the judgments being several and atiecting dis- 
 tinct persons, and neither being a privy of the other in re- 
 gard thereto. 
 
 The writ was usually brought by the party against whom 
 judgment was rendered, but the plaintiff might be dissatis- 
 
140 COMMON LAW PRACTICE. 
 
 fied with his own j udgraen t, and might seek to have it reversed 
 because it was not all that he claimed, by a writ of error. 
 
 If an action was brought against a feme covert, and judg- 
 ment recovered, and she was taken in execution, she and 
 her husband could bring a writ of error. And if the action 
 was against a ferae covert and others, the husband could 
 join with them in a writ of error. 
 
 Where the judgment was against several, any of them 
 might bring a writ of error, bat it was required to be in the 
 "names of all. If it was not, it was Ifable to be quashed. 
 Otherwise, the successful party might be harassed and de- 
 prived of the benefit of his judgment, by successive writs of 
 error by all the parties to the suit, separately. Even where 
 one of the parties had died, it was still required that he be 
 named in the writ, and his death stated, though the writ 
 might be brought by the survivors. 
 
 Where, after error brought by one of several plaintiffs or 
 defendants in the name of all, the others refused to come in 
 and join in the assignment of errors, it was necessary that 
 they be summoned and severed, after which he might pro- 
 ceed in the writ of error alone, and the court would allow 
 him time to summon and sever, before assigning errors. 
 
 Where, however, in trespass against three, there was judg- 
 ment by default against two, and the other justified and pre- 
 vailed at the trial, the two only against whom judgment was 
 given could join in a writ of error, and the same was the 
 case where two were found guilty and the other acquitted. 
 And where one of two defendants was outlawed, and judg- 
 ment given against the other, the latter was held entitled to 
 sue the writ of error alone. In these eases, the writ of error, 
 it was held, should describe the record as it was, with the 
 names of all the parties, and alleging the error to be to the 
 damage of the parties suing the writ. 
 
 -'" If there was an omission to join necessary parties, and the 
 defendant in error omitted- to take advantage of it by hav- 
 ing the writ quashed, and the judgment below was affirmed, 
 he could only sue out execution against the parties to the 
 writ of error. 
 
WRIT OF ERROR. 141 
 
 If there was an agreement between the parties that a writ 
 of error should not be brought, such agreement would be 
 enforced by the court, and the party wrongfully bringing it 
 required to non pros. it. It was even held, where a defend- 
 ant's attorney agreed not to bring a writ of error in the orig- 
 inal action, that his executors could not sue one out upon a 
 judgment in a scire facias brought to revive the original 
 judgment. 
 
 As to defendants in error, the writ must have been brought • 
 against only parties and privies. All parties must have been 
 joined, as in the case of plaintiffs, though the qmi^smon might 
 be^ waived ; the same reason not applying as in case of plain- 
 tiffs in error. 
 
 Error was sometimes error of fact in the record, ^. ^ . 
 
 ' Where to be 
 
 as where the defendant, being under age, appeared brought. 
 by attorney, or plaintiff' or defendant was a married wo- 
 man at the commencement of the suit, or died before ver- 
 dict or interlocutory judgment. Or the error was sometimes 
 a mere irregularity in the process, through some fault of the 
 clerk. 
 
 In these cases, the writ of error was brought in the same 
 court in which the judgment was rendered. If this was the 
 King's Bench, it was called a writ of error coramnobis, from 
 the language of the writ which described the record as re- 
 maining " before us," the king being supposed to be present 
 in that court. If the court was the common pleas, it was a 
 writ of error coram nobis. *" 
 
 But for error of laiv, in the judgment itself, the writ of 
 error must have been brought in the superior court. 
 
 A writ of error from the King's Bench lay, in some 
 cases, immediately to the House of Lords, in others to 
 the Exchequer Chamber, from which, on affirmance oi^ 
 reversal, a writ lay to the House of Lords. It lay to the 
 King's Bench from the conimon pleas and all inferior 
 courts of record. Prom the law side of the Exchequer, it 
 lay to the Exchequer Chamber, and thence to the House of 
 Lords. 
 
 / 
 
142 COMMON LAW PRACTICE. 
 
 ^ At ccmimon law, a writ of eiTor could uot be 
 
 amended. But a statute of 5 George I, ch. 13, 
 directed that such writs of error in which there might be any 
 variance from the original record, or other defect, should be 
 amended and made agreeable to such record, by the courts 
 where the writs should be returnable. Accordingly, writs 
 of error have been amended by correcting, striking out, or 
 adding, the names of parties improperly joined, omitted, or 
 described, and changing the description of the form of action. 
 
 -~" But there were fatal defects which could not be amended, 
 such as where the writ was made returnable before judg- 
 ment was given. 
 
 — The amendment was made in the court where the record 
 was, and where merely a transcript was sent up to the su- 
 perior court, it was made in the court below. 
 
 The amendment was allowed, generally, without costs. 
 
 -- For any incurable defect, the defendant in 
 
 When quashed. , - , . , ^ 
 
 error could move to quash the writ, in a case 
 in which bail sued out a writ of error, upon both the judg- 
 ment against them in scire facias and the original judgment, 
 the writ was quashed as to the original judgment, but was 
 allowed to stand as to the other, on the ground that the bail 
 could not sue out a writ of error on the judgment against 
 their principal. 
 — V The defendant in error was entitled to recover costs on 
 having the writ quashed, unless it was rendered ineffectual 
 by his own act, as where he delayed to sign judgment until 
 the writ was spent, in which case he was compelled to pay 
 the costs of the plaintiff in error. 
 
 ^ Death of "^^^ ''''^''^^ °^ crror abated by the death of a sin- 
 
 Parties and gle plaintiff in error, or by the death of one of 
 
 Abatement. i i /? j i • , *• 
 
 several, betore the assignment of errors. 
 
 The defendant in error was then required to sue out a 
 scire facias quare execulionem non, against the executors, etc., 
 in the one case, and the survivors in the other, before suing 
 out execution. 
 
 But after the assignment of errors, the writ did not abate 
 
WRIT OF ERROR. 143 
 
 by death, and the defendant in error was required to join in 
 error and proceed to have the judgment affirmed. After 
 affirmance, if there was only one plaintiff in error, the judg- 
 ment had to be revived against the executors, etc., by scire 
 facias. 
 
 The death of a defendant in error, whether a single de- • 
 fendant or one of several, did not abate the writ. 
 
 On the death of the defendalnt, or of all of several de-- 
 fendants, the executors or administrators might he made 
 parties by scire facias ad audiendum error es, and be compelled 
 to join in error. 
 
 If one of several died, upon a suggestion of the death on- 
 the roll, the plaintiff could proceed against the survivors. 
 
 If the defendant died before assignment of errors, the 
 executors, etc., might compel the assignment by scire facias 
 quare executionera uon. If he died after assignment, the 
 executors, etc., or survivors, could proceed until the judgment 
 was affirmed, as if the defendant was still living, and th^, 
 in case of a sole defendant, had to revive the judgment by 
 scire facias. 
 
 The death of the Chief Justice, before making and sign- 
 ing his return to the writ of error, made it ineffectual, and 
 the plaintiff below could thereupon, with leave of the court, 
 sue out execution. But if the return had been signed, it 
 might be certified after the death of the justice. 
 
 The act of the party sometimes abated a writ^ as where 
 a feme sole, plaintiff in error, married pending the writ. 
 In such case, the court allowed the defendant in error to sue 
 out execution, although the plaintiff and her husband had 
 ■sued out a new writ. 
 
 Where a feme sole, defendant in error, married, and the 
 plaintiff pleaded this in abatement to a scire facias quare 
 executionem non, the court allowed the sci. fa. to be quashed 
 without costs. 
 
 The effect of the abatement of a writ of error was, that a" 
 new writ of error might be sued out by the plaintiff' or his 
 
—s/ 
 
 144 COMMON LAW PRACTICE. 
 
 representatives. If the abatement was caused, however, b}' 
 the act or -default of the plaintiff, the new writ was not a su- 
 persedeas, and the defendant might sue out execution on his 
 judgment, even without leave of the court. 
 
 If the abatement was caused by the act of God, or of the 
 law, the second writ was a supersedeas, and if no new writ 
 was issued, still, execution could not be sued out without 
 leave of the court. If the plaintiff in error made default, 
 after assignment of errors, the writ was said to be thereby 
 discontinued. 
 
 In case of either abatement or discontinuance, the tran- 
 script was remitted and a remittitur entered, before execution 
 could be sued out in the court below. 
 
 When a writ of error was to be sued out, it 
 
 How obtained. i , ■ i i ^ i • • • n 
 
 was obtained by nlmg a praecipe, as in case or 
 other original writs. The writ was directed to the chief 
 justice of the court where the record was, and was tested 
 on the day when issued. The writ, if directed to the King's 
 Bench, was taken to the clerk of errors of that court, who 
 allowed it, and gave a note or certificate of such allowance, 
 which was exhibited to, and a copy of which was served on, 
 the opposite attorney. This note of allowance could be 
 served before the signing of judgment, and it was usual to 
 do so at the time of taxing the costs, to prevent the suing 
 out of execution. The allowance itself was a supersedeas, 
 but the object of serving the note of allowance was, to sub- 
 ject the opposite attorney to process of contempt, should he 
 afterwards sue out execution, and to avoid the expense of an 
 application to set aside the execution. 
 
 In order to give to the writ of error the effect' 
 of a supersedeas, which stayed the issue of exe- 
 cution, two things were necessary, viz. : the allowance of 
 the writ, and putting in bail, except in certain cases in which 
 bail was not required. 
 
 If the writ was sued out before judgment, and the judg- 
 ment was signed before the writ was returnable, or in the 
 same term, it was a supersedeas of execution, provided the 
 
WRIT OP ERROR. 145 
 
 bail in error was put in within four clear days atter the 
 signing of judgment, the writ h\ such case operating from 
 the signing of the judgment. But if the writ was return- 
 able in a term previous to that of which the judgment was 
 signed, it was not a supersedeas. Where a party purposely 
 refrained from signing judgment until after a writ of error 
 was spent, i. e., until after the time when it was returnable, 
 the court required his attorney to sue out a new writ at his 
 own expense. 
 
 If the writ of error was sued out after judgment and be- 
 fore execution executed, it operated as a supersedeas from 
 the time of the allowance, provided bail ni error, if requisite, 
 was put in within four clear days after the allowance. Or 
 if, after the writ was sued out, and before allowance, actual 
 notice of its delivery to the clerk of errors was given to the 
 opposite party, it operated as a supersedeas from the date of 
 notice. After allowance or notice, the defendant in error 
 sued out execution at liis own risk, for if bail, where it was 
 necessary, was regularly put in, the execution was set aside 
 with costs, and the same result followed where bail was not 
 necessary. 
 
 The writ of error, being duly allowed, superseded or stayed - 
 all proceedings in the direction of execution of the judg- 
 ment. 
 
 The plaintiff below could not sue out a ca. sa. even for 
 the purpose of proceeding against bail. If the writ of ca. 
 sa. had issued before the allowance of the writ of error, the 
 plaintiff could not even call for a return of it; or, if it was 
 afterwards returned and asci. fa. issued against the bail, the 
 court would set aside the pi-oceedings with costs, or the bail 
 could plead that before the returo of the ca. sa. the writ of 
 error issued and was duly allowed. 
 
 And even when a scire facias was issued against the bail, 
 and the writ of error was not sued out until afterwards, the 
 court stayed the proceedings on the sci. fa. until the deter- 
 mination of the writ of error, on the bail undertaking to 
 render the defendant or pay the sura recovered, in case of 
 
 10 
 
146 COMMON LAW PRACTICE. 
 
 affirmance, within four days thereafter, and agreeing not to 
 file a bill in equity. 
 
 A writ of error by the bail was not a supersedeas of exe- 
 cution against the principal. 
 
 ~ The writ of error was only, strictly, a supersedeas of exe- 
 ■cution. It did not prevent a new suit from being brought on 
 the judgment. It was, however, in the discretion of the 
 •court to stay proceedings or not, in such new action, and it 
 ■was usually done, on application, unless the proceedings of 
 the plaintiff in error appeared vexatious, or intended for de- 
 lay. But the plaintiff in error could not make the applica- 
 tion until he had put in and perfected bail. 
 
 Whether the proceedings before judgment, in such second 
 action, were stayed or not, the issuing of execution in it was 
 :8tayed until the writ of error was determined, wherever the 
 writ of error was a supersedeas in the first suit; for otherwise 
 the plaintitf belo.w could indirectly defeat the writ of error 
 ■before it was determined. This would not apply, however, 
 if the writ of error in the first case was not sued out until 
 after judgment in an action on the first judgment, and the 
 ■court in such case have refused to set aside the execution. 
 
 ■v The supersedeas only occurred when the writ of execu- 
 tion remained unexecuted. But where a sheriff had levied 
 ■on goods under a fi. fa., if a writ of error was sued out and 
 ■allowed afterwards, it was the sheriff's duty to proceed to sell 
 the goods and pay the money into court, to abide the event 
 of the writ of error. 
 
 ■^ The writ of error was not a supersedeas, where it appeared, 
 from the admissions of the plaintiff' in error, that it was 
 intended for delay, or where it was brought against good 
 faith or positive agreement, or was made returnable in a 
 term previous to that of the judgment, or where bail was 
 <Qot put in in proper time. 
 
 In such cases, the court would, on motion, allow execu- 
 tion to issue, and would refuse to stay proceedings in an 
 action on the judgment. But mere statements, in advance 
 of an action, that the defendant would delay the plaintiff by 
 writ of error, or a statement by his attorney, that the defend- 
 ant wanted time, but the debt would be settled, or affidavits 
 
WRIT OP ERROR. 147 
 
 of the plaintiff, that the writ was brought for delay, or merely 
 sufferiug a judgment to be affirmed in exchequer chamber 
 without objection, and then bringing error to the House of 
 Lords, have been considered insufficient grounds for the 
 court to assume the writ to have been sued out only for 
 delay, and to treat it as no supersedeas. 
 
 The cases in which bail in error was required, were Bail in -^ 
 defined by several statutes. ^"O'^- 
 
 By Stat. 3 Jas. I, ch. 8., it was provided, that in actions 
 on any single bond for debt, or on any obligation with con- 
 dition for payment of money only, or any action or bill of 
 debt for rent, or upon any contract, execution should not be 
 stayed by a writ of error, unless the party bringing it, to- 
 gether with two sufficient sureties, approved by the court, 
 should first be bound by recognizance, in double the sum 
 recovered by the judgment, to prosecute the writ of error 
 with efieet, and also to satisfy and pay the debt, damages, 
 and costs, awarded by the judgment, and to be awarded for 
 delaying execution, in case the judgment should be affirmed. 
 
 This applied to all judgments, whether upon verdict, or 
 demurrer, or default, or on nul tiel record. 
 
 Subsequent statutes extended the requirement of baii -to 
 judgments upon verdict, in all personal actions, except judg- 
 ments against executors, de bonis testatoris. 
 
 Where a judgment was affirmed upon the first writ of error, '^ 
 and another writ was sued out on the judgment of affirm- 
 ance, to a higher court, bail was required anew on the second 
 writ, wherever it was required on the first. And where a 
 writ was amended, fresh bail was also required to be put in, 
 in the court where the writ was allowed. 
 
 As already mentioned, if the writ of error was sued out "■ 
 before judgment, bail might be put in within four days after 
 judgment, and if the writ was sued out after judgment, it 
 might be put in within four days after allowance of the writ. 
 If it was not thus put in, the plaintift" below might imme- 
 
148 COMMON LAW PRACTICE. 
 
 diatelj' sue out execution. Still, the writ of error might be 
 prosecuted in tlie same manner as if" no bail was required. 
 
 The mode of putting in bail in error was similar to that 
 of putting in bail to the action. It was not necessary or 
 nsual for the plaintifT in error to join in the recognizance. 
 After bail was put in, notice was given without delay to the 
 defendant in error, or his attorney, who had twenty days 
 within which to except. If no exception was made, the 
 recognizance was allowed, of course. 
 
 The exception was made by obtaining a rule for better 
 bail, and serving it on the attorney for the plaintift"in error. 
 He was then allowed fonr days within which to justify, and 
 if he omitted to do so, the plaintiiBf below might treat the 
 recognizance as a nullity, and sue out execution. The same 
 bail might justify, or others be added. They justified in 
 double the amount of the judgment, except in debt on bond, 
 in which case they were only required to justify iia the 
 amount of the peiiitlty. If the bail failed to justify, they 
 might still be proceeded against as such, until they were 
 exonerated, and proceedings against them would only be 
 dismissed on payment of costs. 
 
 After the service of the notice of allowance of the writ, 
 and before it was returnable, and in bailable cases, after ser- 
 vice of the rule of allowance of the bail, the record was to 
 be certified to the court above. A transcript or copy of it 
 was made out by the clerk. If the plaintiff in error failed 
 to have this done, the defendant in error, if he wished to 
 hasten the proceeding, might rule the plaintifi" to transcribe, 
 and on his failure to have the record certified within eight 
 days, sign a judgment of non pros., and sue out execu- 
 tion. The plaintiff in error might non pros, his own writ. 
 This judgmient of non pros, might be signed in the court 
 below. 
 
 Costs in error were not allowed upon a judgment of non 
 pros, before the record was certified. 
 
 Upon writs of error from the King's Bench to the Lords, 
 
WRIT OF ERROR. 149 
 
 or to the Exchequer Chamber, a transcript only went to the 
 superior court. 
 
 In cases of error to the King's Bench from other courts., 
 the original record was supposed to be removed, though, in 
 practice, only a transcript was sent. 
 
 After the record was thus sent to th« superior court, there - 
 could be no further proceeding, except in that ^ourt, nutil 
 final judgment there. 
 
 If the court below failed to certify the whole 
 record, omitting something either m the body or 
 the outbranches of the record, tlie plaintiff in error mighi 
 allege diminution of the record, and pray a writ of ■certiorari 
 to the court, to certify up the whole record. But it was a 
 rule that he could not allege a diminution contrary to the 
 record as certified. There was a limited time within which 
 diminution was to be alleged, after which came the assign- 
 ment of errors. 
 
 The assignment of errors, in the superior court, Assignment "" 
 was the plain tifi:'s declaration. °f«""'- 
 
 In the Lords or Exchequer Chamber, the plaintiff might 
 be ruled to assign errors within a limited time, in default of 
 which, ajudgmentof nou pros, was signed there, with a remit- 
 titur, or order, that the record be remitted to the court below. 
 
 The judgment included the allowauce of costs t(j the 
 defendant. 
 
 In the King's Bench, on a writ of error from an inferior 
 court, the assignment of errors might be compelled by the 
 defendant in error, by a scire facias quare execuiionem non, ex- 
 cept where the plaintiff brought the writ of erroi- to reverse 
 his own judgment, in which case he was simply T'Wled to as- 
 sign. The sci. fa., in question, being merely to compel the 
 assio-nment of errors, the plaintiff was not allowed to plead 
 to it, but answered it by assigning errors, upon which further 
 proceedings on it ceased. Upon service of the sci. fa., a rule 
 to appear within four days was served on the plaintiff in 
 error, and on his failure to assign errors within that time, 
 iud'^raent could be entered ou the scire facias, and execu- 
 tion issued. But costs iu error were not obtained without 
 
150 COMMaN LAW PRACTICE. 
 
 non prossing the writ of error, by ruling the plaintift' to as- 
 sign, etc., as i» the other courts. 
 
 The erro-ra assigned were said to be common or 
 
 Errors. . , 
 
 special. 
 The common errors were, that the declaration wasinsuflB- 
 cient in law to maintain the action, that the judgment was 
 given for the plaintiff instead of the defendant, or vice versa, 
 in the original action. 
 
 Special errors were such as, the want of an original, or 
 warrant of attorney,, or any other special matter appearing 
 on the record, which might show the judgment to be erro- 
 neous. 
 
 - But nothing could be assigned for error which was extra- 
 neous to, or contradicted, the record, and nothing which was 
 to the plaintiff's advantage, unless the error was the fault 
 of the court, Nor could anything be so assigned which 
 might have been pleaded in abatement, or which was cured 
 by the partj^'s appearance below. 
 
 In some cases, the court has set aside an assignment of 
 error, as where it was evidently intended for delay only. 
 
 " If the errors- appeared on the record itself, which did not, 
 as certified, ordinarily contain the original writ or warrant 
 of attorney, the common errors might be assigned; or if 
 any special error was assigned, counsel were not confined 
 in argument, to that, but might rely upon any others ap- 
 pearing on the record. But where the error was in that 
 part of the record not sent up, such as the want of an orig- 
 inal, or a defective one, it was necessary to assign it specially 
 and pray a certiorari, which was called "alleging diminu- 
 tion." Meanwhile, the omission of an original, or of awar- 
 rant of attorney, could be supplied by the plaintiff below. 
 
 If the plaintiflf" in error then failed to have the certiorari 
 sued out and returned, within a time limited, judgment of 
 non pros, might be signed against him. 
 
 Upon the assignment of errors in the House of Lords, an 
 order was served on the defendant in error to appear and 
 make defense,, within a specified time. In the Exchequer 
 
WRIT OF. ERROR. 151 
 
 Chamber a simple notice was given. In. the King's Bench, 
 upon error from another court, he might be ruled toappeajr 
 and plead, or a scire facias ad audiendum enrore» was- issued, 
 on which the proceeding resembled that upon the sci. fa. 
 quare executionem nou. 
 
 To the assignment of errors the defendant might 
 plead the common joinder, in nullo est ervalum, or a 
 special plea, or he might demur. ^^4^a,:^ ^^^^.^ ^^.io^^.m... 
 
 The common joinder alleged that there was no error in , 
 the record and proceedings, and prayed that the court would ■« 
 proceed to examine them and aiBrm the judgment. 
 
 Where common errors or special errors in the body of 
 the record were assigned, this plea denied the existence of 
 the errors, or that they were sutEcient in law to reverse the 
 judgment. Where the error assigned was out of the body 
 of the record, as the want of an original, this plea amounted 
 to a confession of the fact, but a denial of the legal suffi- 
 ciency of the error, as a ground of reversal. 
 
 Special pleas confessed and avoided the errors assigned. ■" 
 Such were, a release of errors, a release of all suits or actions, 
 personal or real, or a conveyance or transfer, by the plaintiff 
 in error, of his interest in the matter in controversy to an- 
 other, or the statute of limitations, etc. A release of errors 
 by one of several plaintiffs could not be pleaded. 
 
 These pleas, as they were by confession and avoidance, 
 admitted the error, and therefore concluded with a prayer 
 that the plaintiff be barred of his writ of error, and not that 
 the judgment be affirmed. 
 
 Yet if there were really no errors in the judgment, the- 
 court would affirm it, notwithstanding bad pleading by the 
 defendant in error. 
 
 If the errors were badly assigned, the defendant might 
 demur, though generally the common joinder was sufficient. 
 All pleadings in error were signed by counsel. 
 
 The common iudfi'ment for the defendant in 
 error was, that the judgment be afnrmea. It was 
 
152 COMMON LAW PRACTICE. 
 
 the same upon a demurrer to the assignment. But where 
 the defendant pleaded specially, as the statute of , limitations 
 or a release of errors, the judgment in his favor was, simply, 
 that the plaintiff" be barred of his writ of error. 
 
 Where judgment was given against the defendant below, 
 and he prosecuted the writ of error, the judgment in error, 
 in his favor, was that the judgment below be reversed. 
 
 But if the judgment below was given against the plaintiff", 
 and he brought the writ of error, the court above, in decid- 
 ing for the plaintiff' in error, not only reversed the judgment 
 below, but also rendered such a judgment as the court below 
 should have rendered. So when the judgment below was on 
 a special verdict, the superior court, if theLords orExchequer 
 Chamber, gave final judgment at once. If, however, a writ 
 of inquiry was necessary, the judgment was simply quod recu- 
 peret, and the transcript was remitted to the court below to 
 have the damages assessed and to render final judgment. - 
 jWhere the writ of error was returnable to the King's Bench, 
 that court, in reversing a judgment, could award a writ of 
 inquiry, and, on the return, give final judgment. 
 
 ■^ A judgment was an entire thing, and could not, regularly, 
 be afllrraed in part and reversed in part. 
 
 Consequently, if it was to be reversed for any part of the 
 subject-matter embraced in one count, or if there was one 
 judgment, on several counts, and it was erroneous as to any 
 one, it was reversed as to the whole. 
 
 ~ If the judgment was erroneous as to one of several de- 
 fendants, against whom one judgment had been rendered, 
 it was reversed as to all. 
 
 - If, in the .same cause, there were several independent 
 judgments, the reversal of one would not affect the other. 
 But where there was one judgment dependent on another, 
 as a judgment in scire ikeias, or in debt on a judgment, the 
 reversal of the original judgment involved that of the other, 
 though the reverse was not true, for the scire facias or action 
 of debt, on the original judgment, might contain errors 
 which would not affect the latter. 
 
WRIT OF ERROR. 153 
 
 If the judgment consisted of several distinct and inde-*- 
 pendeut parts, it might be reversed as to one part, and be 
 sustained for the other. Thus, where a judgment in scire 
 facias gave damages for the delay of execution, it was re- 
 versed as to the damages only. 
 
 ^ In a qjai_tam action, where judgment was given for dam- a 
 -'ages as well as for the penalty, it was reversed as to the c 
 damages. Where costs were allowed in a judgment against A 
 executors on a scire facias, the judgment was reversed as to 
 the costs. 
 
 If judgmerit was given for the plaintiff on one count of a — 
 declaration, and for the defendant on another count, in a 
 writ of error on the former by the defendant, the judgment 
 in favor of the defendant was not considered, no error being 
 assigned therein. 
 
 When the judgment of affirmance or reversal was given,— 
 a remittitur was drawn up by the clerk, and the transcript 
 was thereby remitted to the court below, where execution 
 was awarded in cases where the writ was to the Lords or 
 Exchequer Chamber from the King's Bench, while in cases 
 carried to the King's Bench from other courts, execution 
 was awarded there. 
 
 It was necessary to remit the transcript to the court be- 
 low before execution was sued out, or, at l6ast, before it was 
 returnable, otherwise it might be set aside as irregular. 
 
 Where the defendant below brought error, and 
 the judgment was affirmed, the counsel for defend- 
 ant in error might immediately move the court above that 
 interest be allowed, from the time of signing judgment be- 
 low, until affirmance; otherwise the clerk of errors could not 
 allow it in taxing the costs. A rule nisi was then granted 
 and served on the opposite attorney, and made absolute in 
 the usual way. 
 
 It was discretionary with the court to allow interest or not. -^ 
 They have allowed it in covenant on a charter-party for 
 stipulated freight, on a contract to replace stock and pay the 
 dividends, on a contract to give a mortgage, on a contradt 
 
154 COMMON LAW PRACTICE. 
 
 to indemnify the acceptor of a bill of exchange,' on the bal- 
 ance of a banker's account on which interest was usually 
 charged, and on a balance of merchants' accounts. 
 ~ They have refused to allow it on a contract to sell goods, 
 in an action for goods sold, in an action against bail, in an 
 action on a replevin bond, in an action where a general judg- 
 ment was rendered on counts claiming liquidated, and others 
 claiming unliquidated, damages, and in an action for money 
 lent generally. 
 
 In trover, for bills of exchange, it was allowed from the 
 date of judgment, on such bills as had been previously paid, 
 and ou such as were paid afterwards, from the time of pay- 
 ment. 
 
 And in all cases where the writ of error was intended for 
 delay, and in which the court below would have allowed the 
 defendant in error to sue out execution pending the writ, it 
 was a general rule that the court would allow interest. 
 
 And it made no difference whether the plaintiff was non 
 prossed, or judgment of affirmance was entered; the allow- 
 ance of interest, in both cases, was governed by the same 
 considerations. 
 
 Where the judgment below was against the defend- 
 ant, and he sued out his writ of error before execu- 
 tion was had, then if the judgment was affirmed, or the writ 
 of error was discontinued, or the plaintiff' in error was non- 
 suited, the defendant in error was entitled, in the discretion 
 of the court, to his costs and damages for the delay. This 
 was by virtue of several statutes of Hen. VIII. 
 
 It was in virtue of these statutes that interest was allowed 
 by the court, on the judgment. 
 
 They were held not to extend to cases where the writ of 
 error was non prossed before the. record was transcribed, or 
 where the writ was sued out after execution. They only 
 applied where the plaintiff' below was the defendant in error, 
 and were held not to apply to an avowant in replevin. 
 "Where an executor brought error on a judgment, after a de- 
 vastavit, or even on a judgment as to the debt, de bonis tes- 
 tatoris, and, as to the costs, de bonis testatoris, et si non, de 
 
WRIT OF ERROR. 155 
 
 bonis propriia, he was chargeable with costs, on affirmance, 
 but not where the judgment was recovered against his 
 testator. 
 
 Where the judgment below was in favor of the defendant, 
 and the plaintift" brought the writ of error, if the judgment 
 was affirmed, or the writ discontinued, or the plaintiff was 
 non-suited, the defendant was entitled to his costs. Stat. 8 
 and 9 W. HI. 
 
 The statutes on this subject did not apply to the reversal 
 of a judgment, and therefore, in such case, each party paid 
 his own costs in error. 
 
 If the judgment below was revei'sed, the plain- 
 
 . rt» • • n • 111 IT Restitution. ^ 
 
 tin in error, if execution had been had, was en- 
 titled to be. restored to what he had lost, in order to which, 
 he was. entitled to a writ of restitution. If the money re- 
 covered by the judgment had been made by execution, and 
 actually paid over, it was held that restitution might be bad 
 without previous scire facias; if it was still in the sheriff's 
 hands, a scii'e facias quare restitutionem non, suggesting the 
 facts, had to be sued out previously. The writ of restitution 
 did not restore personal pi-opei'ty of the defendant which had 
 been sold under execution, but only the sum which the de- 
 fendant had been compelled by the execution to pay. 
 
 If the justice of the case required it, the court, upon 
 application, where real estate was in controversy, would 
 sometimes compel the defendant to enter into a rule not to 
 commit waste pending the writ of erroi\ 
 
 The writ of error coram nobis was not made re- wnt of error — 
 turnable, being in the nature of a simple com- coram noWs, 
 mission to the court to rectify an error in its own record. 
 
 It was obtained upon a pi'secipe, in the usual way, and was 
 allowed in the court where the i-ecord was. Where infancy 
 or coverture was the fact assigned, an affidavit was i-equired 
 before the writ was issued. And where the wi'it was brought 
 by an infant, a prochein ami was required to be appointed, 
 as in other cases. 
 
 This writ was not within the statutes requiring bail in error. 
 
156 COMMON LAW PRACTICE. 
 
 — * It was a suspersedeas, however, where errors iu law, as 
 irregularity in the process, were assigned, and in such cases 
 no bail was required, and the party might proceed to assign 
 errors as soon as the writ of error was allowed. 
 
 When it assigned errors iu fact, or was brought after 
 abatement of a former writ through act or default of the 
 party, or after it had been quashed for insufficiency, it was 
 not a supersedeas. In such cases, the court wO'uid. grant a 
 rule that, upon the plaintiff' in error putting in and per- 
 fecting bail in error, within four days next ensuing, all pro- 
 ceedings on the original judgment should be stayed until 
 the determination of the writ of error. 
 
 —- After a copy of allowance of the writ was served, and bail 
 entered, when required, the plaintiff" was ruled to assign 
 errors within four days, and the defendant, if necessary, was 
 ruled to plead within four days. A neglect to obey either 
 rule was followed by judgment of non pros, or reversal, as 
 the case might be, against the party in default. 
 
 — The plaintiff" in error might assign, for error, any matter 
 of fact which, if it appeared on the record, would have 
 proved it erroneous, as, that a sole defendant, or one of sev- 
 eral defendants, under age, appeared by attorney, or that one 
 of the parties was a feme covert at the commencement of 
 the action, or that the plaintiff or defendant died before ver- 
 dict or interlocutory judgment. 
 
 ^ The plaintiff' was not allowed to assign more than one 
 error in fact, nor error in fact and in law together, because 
 they required diff'erent trials. 
 
 The assignment concluded with a verification and prayer 
 that the former judgment be revoked, etc., and where the 
 death of the original plaintiff, before verdict or interlocutory 
 judgment, was assigned, included a prayer for a scire facias 
 ad audiendum errores, against his executor or administrator. 
 
 w The defendant might plead specially, confessing and avoid- 
 ing the fact assigned, and concluding with a verification, or 
 traversing the fact, with a conclusion to the country, or he 
 might plead " in nuUo est erratum," which confessed the fact 
 but denied that it was error, or he might demur. 
 
WRIT OP EKROB. 157 
 
 The plea in nullo est erratum confessed the fact assigned, 
 unless it was something not assignable or it was ill assigned. 
 In those cases, it was equivalent to a demurrer. 
 
 If the plaintiff assigned error of law and fact both, in nullo 
 est erratum would confess the error in fact, and judgment 
 would have to be reversed; and therefore it was necessary, 
 iu such case, to demur specially, for the duplicity. 
 
 The issue was made up and the proceedings entered of re- 
 cord, on the same' roll as the original judgment, and if the 
 issue was one of fact, a venire issued and a nisi prius trial 
 followed, as in other cases. On the postea, the court gave 
 judgment of affirmance, or that " the judgment aforesaid be 
 recalled," according to the finding. 1 Arch. Pr. 207-255; 2 
 Tidd. ch. 43. 
 
 In the State of Maryland a practice existed, from a remote — 
 period, of appealing, instead of prosecuting a writ of error, 
 to a Court of Appeals established by statute. The common- 
 law writ of error, however, was still in force, though rarely 
 resorted to. 
 
 The whole subject has been regulated by statutes, mostly 
 enacted after the cession of the District of Columbia. 
 
 The writ of error coram nobis was replaced by a writ of 
 error coram nobis, to the Court of Appeals, to correct errors 
 of fact in the county court. 
 
 The general features of the practice in error were pre- 
 served. An appeal was prayed, in an informal manner, 
 from final judgment only, and became a supersedeas, only 
 upon the execution of an appeal bond, in a penalty double 
 the sum recovered. 
 
 The record, containing the proceedings, with the bills of 
 exception annexed, in the form of a memorandum, was 
 transmitted to the superior court. There, diminution might 
 be suggested, errors were assigned, and issue was joined bj' 
 the general plea in nullo est erratum. 
 
 Statutory provisions were made for amendment and re- 
 specting abatement. 
 
 One important question settled by decisions was, that 
 though error may have been committed, the judgment 
 
158 COMMON LAW PRACTICE. 
 
 would not be reversed on that account, if no injury resulted 
 from it, to the party. 
 
 The errors reviewed, in the Maryland practice, and per- 
 haps in the American practice, generally, have been mostly 
 presented in bills of exception, rather than in the proceed- 
 ings shown in the record, and however erroneous these 
 instructions were, unless they prejudiced the appellant or 
 plaintiff in error, they were not ground of reversal. 
 
 An important departure from the English practice related 
 to the effect of a reversal of a judgment. The reversal of a 
 judgment, in England, left the parties to begin again, de novo, 
 or not, as they thought proper. This involved much delay, 
 and sometimes left a second action open to the defense of 
 limitations. 
 
 The Maryland laws, therefore, provided, that in case of 
 reversal of judgment, the Court of Appeals should direct a 
 pi'ocedendo to the court below, directing it to proceed to try 
 the case anew, as if no trial had taken place. Here, again, 
 if it appeared that a procedendo was useless, it was refused. 
 
 If the judgment below had been executed, and was after- 
 wards reversed, a writ of restitution was awarded by the 
 Court of Appeals. When a judgment was affirmed in the 
 Court of Appeals, it became a judgment of that court, and 
 when it was reversed, that court gave judgment for costs 
 against the appellee. In either case, execution could issue 
 on the judgment, immediately from that court. Evans's Pr., 
 421-448. 
 
 In the District of Columbia, the subject of proceedings in 
 error is governed by the acts of Congress applicable to the 
 Federal judiciary. 
 
 ^ With regard to the Federal practice, it is only deemed 
 necessary to notice the practice on writs of error from the 
 Supreme Court, to a Circuit Court or to the Supreme Court 
 of the District of Columbia. 
 
 Such writs of error lie, as at common law, only to review 
 final judgments. In the District of Columbia, the matter in 
 dispute must exceed $1000, and in the Circuit Courts, 
 $2000; except tliat where the case is one touching patent- 
 
WRIT OF ERKOR. 159 
 
 rights or copyrights, or is a civil action by the United 
 States to enforce any revenue lav7, or is a civil action 
 against a revenue officer, or is brought on account of the 
 deprivation of any right, privilege, or immunity secured by 
 the Constitution of the United States, or is brought under 
 the Civil Eights Act, the v^rit may be had without regard to 
 the amount involved. And in the District of Columbia, it 
 may be had in any case involving more than $100, if, upon 
 petition of either party, accompanied by a copy of the pro- 
 ceedings and an assigment of errors, any justice of the Su- 
 preme Court is of opinion that the errors involve questions 
 of law, of such extensive operation, as to render a decision 
 of them by the Supreme Court desirable. The justice then 
 gives a written oi-der to the clerk of the Supreme Court of 
 the District, to issue the writ of error. 
 
 Though the writ of error properly issues from the superior 
 to the inferior court, the inconvenience of applying to the 
 clerk of the Supreme Court, for writs to be used at remote 
 points, led to the passage of an act which required the clerk 
 of the Supreme Court to transmit the form of a writ of error 
 to the clerks of the Circuit Courts, and made it lawful for 
 the latter to issue the writs, under the seals of the Circuit 
 Courts, returnable to the Supreme Court, 
 
 The writs are therefore, in fact, obtained from the clerks 
 of the Circuit Courts, and signed and sealed by them. They 
 are, however, in the name of the President of the United 
 States, and tested in the name of the Chief Justice, or if his 
 office be vacant, of the next associate justice. 
 
 In order to obtain a writ of error, the first step necessary 
 is, to file bail in error, which is in the shape of a bond, with 
 security approved by the judge or justice of the court, whose 
 judgment is to be reviewed, with condition that the plaintiff 
 in error shall prosecute his writ to effect, and if he fails to 
 make good his plea, answer all damages and costs, if it is a 
 supersedeas, or costs only, if not. If the writ is not intended 
 as a supersedeas, Ihe security need only be sufficient to an- 
 swer the costs of the defendant in error, in case of affirmance. 
 
160 COMMON LAW PRACTICE. 
 
 The writ is then filled up by the clerk, with a citation to 
 the opposite party, which is to be signed by the jndge of the 
 Circuit Court, or a justice of the Supreme Court. The judge 
 or justice signing the citation is required to take the security. 
 ^ The adverse party is required to have at least thirty days' 
 notice before the cause can be heard. This notice is given 
 by service of the citation. The service is effected by ex- 
 hibiting the original citation and delivering a copy. The 
 original remains in the office, and goes up with the record. 
 
 The writ of error itself, however, is served, by simply lodg- 
 ing a copy in the clerk's office, where the record remaius. 
 This service may be made at any time before the return day 
 of the writ, Avhere it is not intended to operate as a super- 
 sedeas and stay of execution. 
 
 But where it is intended that the writ shall be a super- 
 sedeas, the service as aforesaid and giving of security, or 
 bail in error, must be completed within sixty days, Sundays 
 exclusive, after the rendering of the judgment. 
 
 Before the Revised Statutes were passed, an execution 
 could not issue until the expiration of ten days from the date 
 of the judgment. After the ten days the writ could issue, if 
 not previously susperseded, but the filing of the bond and 
 perfecting the supersedeas would then stay any further pro- 
 ceeding under the execution. The Revised Statutes extended 
 the period, during which the writ was not to issue, to sixty 
 days. A still later act, however (18 Stat., 318), again limited 
 the time, for withholding the writ, to ten days. 
 
 In order to prevent process from issuing, the defendant 
 may serve the writ of error, as aforesaid, and give the re- 
 quired security. It is then the duty of the attorney to see 
 that a transcript of the record is made out. To this, the 
 writ of error, with its return and citation, on which service 
 is generally acknowledged, are attached, and the attorney 
 must see to its being filed with the clerk of the Supreme 
 Court, within the time required by its rules. 
 
 By the rule of that court, where the writ of error is prose- 
 cuted from a judgment rendered thirty days before the com- 
 mencement of the term, the record must be filed and the 
 cause docketed, within the first six days of the term. If 
 
WRIT OF ERROR. 161 
 
 the judgment is rendered less than thirt}' days before the 
 term, this must be done within the first thirty days of the 
 term. If it l)e not done by the plaintiff in error, the de- 
 fendant in error may do it at any time during the term, or, 
 upon a certificate of the clerk of the court below, that the 
 writ has been sued out, may have the ease docketed and 
 dismissed. 
 
 The act of Congress, on this subject, directs an assignment 
 of errors to accompany the transcript of the record. This 
 has, however, been regarded as merely directory, and errors 
 are assigned in the printed briefs of counsel, required to he- 
 filed by the rules of the court. 
 
 In accordance with the English practice, the plaintiff in 
 error is entitled to suggest diminution and have a certiorari, 
 but only on written motion verified by affidavit. 
 
 The vprit may be dismissed, on motion, for irregularity in 
 the proceeding in error, or for want of jurisdiction. 
 
 The judgment in error follows the English practice. 
 
 In case of affirmance, the judgment is, simply, that the 
 judgment below be, in all things, affirmed; and thereupon 
 the transcript of the record is remitted, with a mandate to 
 carry the judgment into execution. 
 
 But the court is also required by law, in ease of affirm- 
 ance, to adjudge to the defendant in error, just damages for 
 his delay, and single or double costs, at their discretion. 
 And these damages are allowed, under the rules and practice 
 of the court, in the shape of interest from the date of judg- 
 ment, until paid, at the rate allowed in the State courts, and 
 where the writ seems to have been sued out for delay, ten 
 per cent, on the amount of the judgment, in addition to the 
 interest. 
 
 In case of reversal, there is a remittitur to the court below, 
 with a mandate, if the case is in condition for it, to enter 
 judgment in conformity with the decision, or, where further 
 proceedings are necessary, to institute them. 
 
 Where the judgment below is on special verdict or case 
 agreed, the mandate is to enter judgment. 
 
 Where it is on general verdict, or defective special verdict, 
 
 11 
 
162 COMMON LAW PRACTICE. 
 
 the case is remanded with directions to award a venire de 
 ■novo. 
 
 On affirmance or dismissal for want of plaintiff's appear- 
 au,ce, costs go, of course, to defendant in error, but not on 
 dismissal for want of jurisdiction. 
 
 On reversal, costs are allowed to the plaintiff in error, 
 luuless otherwise ordered by the court. 
 
 Conkling's Treatise, p. 5. Rev. Stat., tit. 13. 
 
 CHAPTEE Y. 
 
 EXECUTION. 
 
 A WRIT of execution, where no obstacle intervened, such 
 -as death, requiring a revival of the judgment, or a writ of 
 error, operating as a supersedeas, might be issued at any 
 time within a year and a day after the signing of the judg- 
 ment, computed by calendar months. 
 
 After a year and a day, at common law, a judgment in a 
 personal action could not be revived by scire facias, and the 
 plaintiff's only remedy on it was an action of debt. It was 
 otherwise with real and mixed actions. 
 
 The statute of Westm., 2 (13 Edw. I), ch. 45, gave to all 
 matters enrolled, to which the king's court could give effect, 
 ■such force, that it should no longer be necessary to implead, 
 or sue upon them, but if the plaintiff should come into 
 court after a year, a scire facias might be issued, etc., and 
 if no cause should be shown, etc., the matter enrolled 
 ■should be executed. This extended to all forms of action. 
 
 If the writ was not sued out within the year and day, it 
 "was necessary to revive the judgment bj' scire facias, before 
 it could be issued, except in a suit by the king, unless the 
 issue within the year had been prevented by writ of error 
 or injunction, or the judgment had been entered with a 
 ■cesset execution, or stay; in which cases, the j'ear and day 
 ■did not begin to run until the obstacle was removed. 
 
 Suing out a writ of error after the year w^as an admission 
 
execution;. 16S 
 
 that the judgment was still alive, and has been held to re- 
 vive the judgment, so that execution raiight issue 'within a 
 year and a day after its aflSrmance without a sci. fa. 
 
 If the writ was actually sued out-within the year, and re- 
 turned and filed, it might again 'be sued out after the year, 
 by entering the continuances, from the return down to the 
 new issue. 
 
 It was not even necessary that the new writ Should be of 
 the same kind as the former. Thus, if a fi. fa. 'was issued and 
 returned within, a ca. sa. could be sued out after, the year. 
 
 The judgment, as we have seen, related to the first day of 
 the term, except as to third ^persons. The writ of execution 
 could, therefore, be tested on any day in the term. A fi. fa. 
 might, therefore, be tested before the death of a defendant; 
 though issued afterwards. And as a 'fieri facias bound the 
 goods of the defendant from its teste, it -might be executed 
 on defendant's goods in the 'hands of his executor, where 
 he died within a year and a day after judgment, and the 
 execution was tested before the death. 
 
 In case of death after argument of a -demurrer, but before 
 the judgment upon it was entered, it was usual to enter the 
 judgment as of the term in which the party died, or, if he 
 died in vacation, as of the previous term, on the ground 
 that the delay, being the act of the court, ought not to 
 prejudice either party. The, judgment fhad relation to the 
 commencement of the term in which it was entered, and 
 thus it might happen that 'both judgment and execution 
 would be, in fact, subsequent to a party's death, though 
 having a legal operation as if antedating it. And in such 
 case, the execution, as above mentioned, would bind a de- 
 ceased defendant's goods in the hands of bis executor. In 
 all such cases, however, the writ could not ^regularly issue 
 until the judgment was actually signed. 
 
 The judgment plaintifif had his choice of seve- Different 
 ral writs, viz. : fieri facias, elegit, levari facias, and *^'°^^- 
 capias ad satisfaciendum. He might, after issuing one, aban- 
 don it and issue another, or have them all executed in succes- 
 sion until the judgment was satisfied. He mighteven have 
 
164 COMMON LAW PBAOTICIT. 
 
 several of the- same, but not of different kinds, running at once 
 into different counties. 
 
 I. As tlie execution was the mode of carrjing the judg- 
 ment into effect, it was necessary that the execution should 
 strictly conform to the judgment and be authorized by it, 
 or it was void. Thus, on a judgment against two, a capias 
 could not be sued out against one separately, or a capias 
 against one and an elegit against the other. But where a 
 verdict was again-st four, of five, defendants, and a judg- 
 ment by default against the fifth, who brought a writ of 
 error, leave was given to sue out execution against the 
 four. So when scire facias to revive a judgment issued 
 against two, of whom one made default and the other was 
 returned nihil, execution might be issued for the whole 
 against the one in default, and so if one was returned 
 dead, the writ might issue against the survivor. And 
 where one of several plaintiffs or defendants died, it might 
 go against the survivor, upon a suggestion of the- death o^i 
 the roll. 
 
 A general judgment against a bankrupt or insolvent 
 debtor would only authorize a general execution, and not a 
 special one against his future effects. 
 
 In actions for damages, as assumpsit, etc., the exe- 
 eution for the plaintiff was for damages and costs. In 
 debt, it was for the debt, damages, and costs. In debt on 
 bond, it was for the penalty of the .bond, damages, and costs, 
 but was indorsed to be levied only for the damages assessed, 
 and costs. And where the bond was for the payment of a 
 sum in gross, though the execution, in order to conform to 
 the judgment, was for the penalty, yet it was indorsed to 
 levy only the principal, interest, nominal damages, and 
 costs. 
 
 In detinue, the execution was for the goods or their value; 
 in replevin, for a return of the goods. 
 
 A fieri facias and a ca. sa. had to be issued, in the first 
 instance, to the sheriff of the county where the venue was 
 laid, and on its being returned by him, a testatum, writ might 
 he issued to- the sheriff of another county. 
 
EXECTTTI'ON, 165 
 
 An execution, being a judicial writ, was required to 
 be tested in term time. If it was tested in vacation, 
 though the sheriff, it has been held, might justify under it, 
 it was so far void, that he would not be liable for an escape, 
 wher« an arrest was made under a ca. sa. But it might be 
 tested on any day during term, ■ev-en before judgment 
 actually signed. 
 
 Writs of execution, in actions by original, were required 
 to be made returnable on a general return day, and at com- 
 mon law it was necessary that there be fifteen days between 
 the teste and the return. 
 
 The judgment, and not the -execution, bound the 
 lands of the defendant; but chattels were bound by 
 the execution, from the time of its teste. This was the com- 
 mon law. 
 
 But by -statute of 29 Chas. TI, ch. 3, it was enacted, that 
 no writ of execution should bind a party's goods, but from 
 the time th-e writ should be delivered to the sheriff to be 
 executed. This was intended, however, only to protect 
 purchasers from suffering injury from the relation back, of 
 writs, to their teste. As against the defendant himself, and 
 others than purchasers for value, the writ was operative and 
 bound the goods, from the time of teste. 
 
 If two writs of execution against the same per- 
 
 . r,» ■ 1-1 Priorities. 
 
 son were delivered to the shenft, it was his duty to 
 execute fii-st, that which was delivered first, even where both 
 were received on the same day, unless the first was fraudu- 
 lent. If, however, the sheriff executed the second writ fii'st, 
 by seizure and sale of defendant's goods, the execution and 
 sale were valid, but the party who sued out the first writ 
 had his recourse against the sheriff", if the first writ could 
 not be also satisfied. Where the sheriff merely levied on 
 the defendant's goods under the second writ, and then, be- 
 fore sale, levied under the first, the first had priority. Where 
 one party sued out an execution which was not executed 
 before it was returnable, and which was therefore spent, and 
 then sued out an alias or renewal of it, but a second writ 
 
1*66' COMMON LAW PRACTICE. 
 
 came to the sheriff's hands before the alias, the second writ 
 was held entitled to priority. Where two writs were deliv- 
 ered at different times to the sheriff, and he levied and sold 
 under the first, and' the execution was afterwards set aside 
 and the money repaid' by him to the defendant, as he was 
 ordered to do by rule of the court, he was held liable to the 
 plaintiff in the second action, to the extent of the money 
 levied by him; in the first, on the ground that he should have 
 applied to- the court for leave to pay the money in satisfac- 
 tion of the second writ of execution, which would have been 
 given of course.. 
 
 When j,udgment was signed in the lifetime of the defend- 
 ant, of a term in or after which he died, execution might 
 be sued' out bearing teste in the beginning of the term, and, 
 consequently, before the death, which might be levied on 
 the defendant's goods in the hands of executors, without re- 
 viving, the judgment by scire facias. And so, likewise, if 
 the defendant died after execution was issued, the writ 
 might be executed on goods in the executor's hands. 
 
 And if the plaintiff died after execution sued out, the writ 
 might be executed, and his executor would have the money, 
 ©r, if no executor or administrator was appointed, the 
 money was to be brought into court and deposited until some 
 person should, appear to claim it, as representative of the 
 deceased. 
 
 The writ could be executed at any time before it was re- 
 turnable, and even on the return day, and it was to be exe- 
 cuted by the same sheriff to whom it was delivered, although 
 lie might,. meaatime,, go out of office. 
 
 By statute of 8 Anne, ch. 14, it was enacted, that 
 
 liandlord.. ■' ^ i . , i i \ , , , , 
 
 no goodSj or chattels, or leased properly, should be 
 liable to be taken in execution, unless the party, at whose 
 suit the execution issued,, should, before the removal of such 
 goods, pay the landlord all the rent due for the premises, 
 not exceeding one year's rent, and that the sheriff should 
 thereupon proceed to levy as well the money so paid for 
 nent as the execution, money.. 
 
EXECUTION. 161 
 
 The landlord's remedy against the sherifl", under this act, 
 was either by special action on the case or by motion to the 
 court. A notice to the sheriff, at any time before the money 
 was paid over, was sufficient to found a motion to the court. 
 And in the case of an action, it was not necessary to prove 
 a formal notice, if it could be shown that the sherifl" knew, 
 before he removed the goods, that there was rent due to the 
 landlord. 
 
 Within the meaning of the act, a bill of sale by the sheriff"' 
 was deemed a removal. 
 
 If the debtor paid the debt before any actual removal or 
 bill of sale, or there was an irregularity in the writ which 
 rendered it void, or the landlord accepted the undertaking 
 of a third person, tlie sheriff was not liable to the landlord. 
 The landlord could not, if he was paid a year's rent under 
 one execution, claim another year's rent, which might be 
 due, under a second execution. Nor did the act extend to 
 any other than the immediate landlord of the tenant whose, 
 goods were seized. 
 
 The sheriff" could not break open an outer door of a dwell- 
 ing, in order to execute a writ of execution, except in the- 
 case of a writ of seizin or of habere facias possessionem^ 
 under which he might do so, if denied admission by the ten- 
 ant, and in the case of an execution at the suit of the king,, 
 under which he might do so after signifying the cause of 
 his coming and desiring admission. After peaceable entry 
 through an outer door, the officer might break open- inner- 
 doors, closets, trunks, etc., if necessary. The dwelling of 
 a stranger, where defendant's goods might be, was not so- 
 protected, and might be entered forcibly after previous de- 
 mand of admission and refusal. And without demand and 
 refusal, other buildings of the defendant than his dwelling, 
 such as barns, outhouses, etc., might be entered forcibly. 
 And if the defendant, after being arrested on a capias, 
 escaped, either into his own or into another's dwelling, the 
 officer might break open the outer door to arrest him. If, 
 after a peaceable entrance through the outer door of a dwell- 
 
168 COMMON LAW PRACTICE. 
 
 JDg house, the sherift" was locked in, he could break open the 
 door to get out. 
 ~^ But the forcible and unlawful entry through an outer door, 
 by the sheriff or his officers, did not invalidate his execution 
 of a writ; it only made him liable in damages for the tres- 
 pass. 
 
 In strictness, the sheriff was bound to return writs 
 which were executed, though it was not usual to do 
 so except in the case of an elegit. It was necessary to re- 
 turn the elegit and inquisition. 
 " Either party could rule the sheriff to return the writ, and 
 if he neglected to do so before the expiration of the rule, 
 he was liable to attachment. By statute, he was not liable 
 to be called on to return the writ, unless required to do so 
 within six months after the expiration of his office. 
 
 ~^ Where the property in the goods seized was disputed, the 
 court, on the sheriff's suggestion of this or other reasonable 
 cause, would sometimes enlarge the rule for making the 
 return until the right could be tried, or one of the parties 
 would give the sheriff an indemnity. 
 
 The return was indorsed on the writ, which was then filed 
 with the custos brevium, on or before the day of the return. 
 
 — Effectof It was a rule, that as soon as the sheriff seized 
 aievy. jjjg defendant's goods, the defendant was discharged 
 from the judgment debt, to the extent of the levy, whether 
 the sheriff ever made return of the writ or sold the goods 
 afterwards, or not, or even if they were afterwards rescued 
 from him by a stranger. 
 
 This seizure could be pleaded to a scire facias to revive 
 the judgment, as a satisfaction, and if a new suit for the 
 same debt was brought, the defendant might be relieved by 
 Midila querela, or, in the more modern way, by motion. 
 
 The sheriff, upon the seizure, acquired a special property 
 in the goode, which enabled him to maintain trespass or 
 :traver against any person taking them. He became liable, 
 
EXECUTION. 169 
 
 also, to the plaintiff, for the amount of the levy, which could 
 be recovered by an action of debt, account, or assumpsit, or 
 by application to the court for a rule on him, followed by 
 attachment. 
 
 Upon executing a writ of _^. fa., the sheriff was 
 
 . , , . , 1 • T Poundage. 
 
 entitled to a certain percentage on the sum levied, 
 called his ■poundage. The right attached, even where no sale 
 took place in consequence of the payment or compromise 
 of the plaintiff's claim. It was doubtful, at common law, 
 who paid the expenses of executing the fi. fa. Where it 
 issued at suit of the defendant, he was held bound to pay 
 them. 
 
 Upon the execution of a ca. sa., the sheriff was , also en- 
 titled to his poundage, which was calculated upon the debt. 
 On executing an elegit or habere facias possessionem, he 
 was entitled to poundage in the shape of a percentage on 
 the yearly value of the land. He could sue for his pound- 
 age, or retain it out of the moneys levied by him. 
 
 Where a judgment was reversed or set aside, 
 
 , . , , • /. • Restitution. 
 
 after money was levied under a writ ot execution, 
 the defendant in the execution was entitled to restitution. 
 If a term of years or personal chattels had been sold, only 
 the money, and not the term or goods, was restored. But 
 if the judgment was reversed before sale of the goods or 
 term, the specific property had to be redelivered. 
 
 If, under an elegit, lands were extended or chattels de- 
 livered at a valuation, and the judgment was afterwards 
 reversed, the land or chattels had to be restored, and not 
 merely the extended value. 
 
 Where the judgment was set aside for irregularity, resti- 
 tution formed part of the rule, which was enforced, if neces- 
 sary, by attachment. 
 
 The fieri facias was a command to the sheriff that, pieri ■^ 
 of the goods and chattels of the party, he cause to be ^''"^^• 
 made the sum recovered by the judgment, and that he have 
 
170 COMMON LAW PRACTICE. 
 
 the money and the writ itself at court on the day on which 
 the wi'it was returnable. 
 
 It was always returnable on some day in terra. 
 
 If the sheriff returned nulla bona, the party might sue 
 out an alias, and on the return of that,, a pluries into the 
 same county, or he might have a testatum fi. fa. into another 
 county, and this was necessary if the goods were in a dif- 
 ferent county from that in which the venue was laid. It 
 became usual to sue out they?, fa. and testatum together, 
 leaving the former to be returned nulla bona, and the ktter 
 to be executed. 
 
 The writs of fieri facias and levari facias were the only 
 writs of execution at common law, except in case of trespass, 
 in which the capias ad satisfaciendum could be issued. 
 
 - How The proceeding of the officer having the fi. fa. to 
 
 executed, exccutc, was, to enter upon the premises where the 
 goods were, and to leave an assistant in charge of them, and 
 afterwards to get an auctioneer to appraise, remove, and sell 
 them, or to sell them on the premises, if the defendant con- 
 sented. The slieriff was not entitled to charge the auction- 
 eer's compensation for selling, besides his poundage, unless 
 he was employed at the request of the plaintiff or defendant. 
 
 The sheriff could not keep the goods and pay their value 
 to the plaintiff, nor could he deliver them to the plaintiff" in 
 payment of the judgment, at a valuation, as was done under 
 an elegit. It was necessary to sell them, and the plaintiff 
 might buy them, as well as a stranger. 
 
 It was further necessary to sell them before the return of 
 the writ, or wait for a further order from the court, in the 
 shape of a writ of venditioni exponas. In like manner, if an 
 inadequate price was offered, the sheriff more properly with- 
 drew them from sale, and returned that the goods remained 
 on his hands for want of buyers, and waited until a vendi- 
 tioni exponas obliged him to sell them for any price. 
 
 On what Under a fieri facias, the sheriff could not sell a 
 
 property, freehold estate, except perhaps an estate pur autre 
 
 vie, but might sell terms for years belonging to the defend- 
 
EXECUTION. 171 
 
 ant, and execute an assignment of them to the purchaser. 
 'Nov could he levy on and sell an equity of redemption, the 
 legal estate being in the mortgagee. IN'or could he give pos- 
 session of leasehold property to a purchaser, when occupied 
 by a tenant, but the purchaser had to bring his action of 
 ejectment, unless the tenant would voluntarily surrender 
 possession. 
 
 Things fixed to the freehold, such as doors, windows, etc., 
 were no more liable to be sold' than the freehold itself, ex- 
 cepting trade fixtures, such as engines, etc. 
 
 All the defendant's goods could be seized and sold, except 
 his wearing apparel, but not goods which were merely 
 pledged to him, or hired to him generally or for a term of 
 years. Neither could goods already in the custody of the 
 law be seized, as where they -were distrained, or were held 
 by the sheriff under a former writ, unless he had returned 
 nulla bona to that; nor could property be seized which was 
 not the subject of sale, such as title-deeds, writings, bank 
 notes, or money. This -rule was carried so far, that where 
 the sheriff had the defendant's money in his hands, either 
 made for him by execution against another, or being the 
 surplus of a former execution against him by the same plain- 
 tiff, it was held that the court could not stay the money in 
 the sheriff's hands to satisfy a present writ of fi. fa. But this 
 seems to be contradicted by a later decision. Ante, p. 166. 
 
 A sale of the goods by the defendant, even for a valuable 
 consideration, after the delivery of the writ to l^he sheriff, 
 was void, unless it was in market overt. 
 
 If the goods were sold or assigned fraudulently, even be- 
 fore the writ was executed, the sale was held void, at least 
 if after the writ bore teste. 
 
 The debtor's continued possession was deemed a badge 
 of fraud. And if the creditor, after levying, allowed the 
 goods to remain in the debtor's possession, it exposed them 
 to a second levy by another creditor, this being deemed evi- 
 dence of fraud in the first creditor. 
 
 A term vested in a husband, in I'ight of his vs^ife, might be 
 sold under execution against the husband, unless it was 
 vested in trustees for the wife, before the marriage. In the 
 
172 COMMON LAW PKACTICB. 
 
 latter case, the husband's possession did not subject it to the 
 sale. 
 — ' The goods of a testator or intestate could not be seized 
 for the debt of the executor or administrator. 
 
 -^ The sheriff could only execute the writ on the goods of 
 the defendant in the execution, and was liable, in trespass, 
 for taking the property of another person. In case of doubt, 
 he might impanel a jury to inquire into the ownership. 
 
 It was held, in one case, that the inquisition would protect 
 him in making a return of nulla bona, or, on the other hand, 
 mitigate the damages in an action of trespass for seizing and 
 selling the goods, but later decisions hold otherwise. 
 
 ^^ Goods of one who became bankrupt could not be seized, 
 as they belonged to his assignees. 
 
 ~^ Under a fi. fa. against one of two partners, it was formerly 
 held that the sheriff should seize the goods of both, and sell 
 the defendant's undivided moiety in them, in which case the 
 vendee became tenant in common with the other partner. 
 
 If there were two or more defendants, and one died after 
 final judgment, and before execution executed, though the 
 writ, in form, was issued against all, it could only be exe- 
 cuted against the survivors. Or, upon a suggestion of the 
 death on the roll, the writ might, issue against the survivors 
 only. 
 
 ^ Besides the amount of the debt, the sheriff" levied his 
 poundage and expenses, and if any surplus of the proceeds 
 of sale remained in his hands after satisfying the debt and 
 costs, the sheriff was not bound to search for the defendant 
 in order to pay it to him, but might wait until it was called 
 for. 
 ^ Payment of the debt and costs to the officer, instead of 
 allowing the writ to be executed, was deemed good as a 
 payment to the plaintiff. 
 
 ^ The execution of the writ was valid without a re- 
 
 Eeturn. _ . . .,,.,., 
 
 turn, and the shenti did not usually return writs of 
 fi. fa., but he might be ruled to do so, and if his return was 
 untrue, he was liable to an action for a false return. 
 
EXECUTION. 173 
 
 Upon a return of W M?fa bona, the writ might be re- ''^ ^ 
 
 newed, as already stated. Or if part of the debt 
 had been levied, a fi. fa. might be issued for the residue, but 
 the first writ had to be first returned, because the second 
 writ recited the first and the return to it, and was based 
 upon that return. In all renewed writs, the alias or testa- 
 tum was tested on the day the former was returnable. 
 
 If the sherift" levied for part of the debt only, and returned- 
 that the goods remained on his hands for want of buyers, a 
 venditioni exponas might issue for the goods seized, and a fi. 
 fa. for the residue of the debt. 
 
 On receiving the venditioni exponas, the sheriff was bound - 
 to sell and have the money in court on the return day. If 
 he failed to do so, a distringas might issue against him, 
 and if he still failed to make the money before the return 
 of that writ, he would forfeit issues to the amount of the 
 debt. 
 
 In making sale under the venditioni exponas, he was not 
 bound by the value set upon the goods in his return to the 
 fi. fa., but if they were rescued from him, so that he could 
 not make sale of them, it was otherwise. 
 
 When a sheriff" went out of office after returning that he 
 had levied, but that the goods remained on his hands for 
 want of buyers, instead of a venditioni exponas to compel the 
 sale, a distringas nuper vicecomiiem issued to the new sheriff, 
 commanding him to distrain the late sheriff to sell the goods. 
 And if only a partial levy was made under the first writ, the 
 distringas and a fi. fa. for the residue were united in one 
 writ. 
 
 Under this writ, the former sheriff", if he failed to sell, etc., 
 would forfeit issues to the amount of his levy. 
 
 After a return of nulla bona, to aji.fa., the plaintiff might 
 sue out an elegit, or, if the debt was partially collected under 
 aji.fa., he might sue out an elegit for the residue. 
 
 In an action against an executor, if the sheriff returned a 
 devastavit, the plaintiff' might have execution immediately 
 against the defendant, h^ fi. fa., de bonis propriis, or ca. sa. 
 If the sheriff returned nulla bona, the plaintiff proceeded by 
 
174 COMMON LAW PRACTICE. 
 
 scire fieri inquiry or debt on the judgment^ suggesting a de- 
 vastavit. 
 
 In all cases in which a capias ad satisfaciendum might 
 issue in the first instance, the plaintiff might sue out a ca. 
 sa. after a return of 7iulla bona to a fi.fa.; and on a return 
 oi fieri feci, as to part of the debt, it might issue in order to 
 recover the I'esidue. 
 
 If the writ of fieri facias was irregular, the defendant 
 might move to set it aside, and that the goods or money 
 levied might be restored. So might a third person whose 
 goods were taken. 
 
 A farty might justify under an erro^eoMS judgment, which 
 was the act of the court, but not under an iVre^wiar judgment 
 or writ, to which he or his attorney was privy. But a sheriff- 
 could justify under either an erroneous or an irregular j'wc/^- 
 ment, if the writ was regular. 
 
 And if the writ was not absolutelj- void, though irregular, 
 a purchaser acquired a title under the sheriff. 
 
 The writ of elegit was founded upon the Stat, 
 '^'"sit- ^estm. 2 (13 Ed. I), ch. 18, which provided, that 
 where a debt was recovered or acknowledged in the King's 
 Court, or damages awarded, it should be in the election of the 
 party suing, to have a.' fieri facias to the sheriff, to levy the 
 debt upon the lands and chattels of the debtor, or that the 
 shei'ift' should deliver to him all the chattels of the debtor 
 (saving his oxen and beasts of the plough), and the one-half 
 of the land, until the debt should be paid, upon a reason- 
 able price or extent. From this election the writ derived its 
 name. 
 
 This writ might be sued either against the debtor in his 
 lifetime, or, after his death, against his heirs and terre ten- 
 ants. And the plaintiff" might issue at once, for the whole 
 debt, into as many counties as he chose, without having to 
 sue out testatum writs. 
 
 The plaintiff" exercised his election by awarding this exe- 
 
EXECUTION. 175 
 
 cution on the roH. By awarding it as of a previous term, he 
 might issue it even after expiration of the year, without a 
 scire facias. It was, however, considered safest to sue out 
 the elegit within the year, and have it returned and con- 
 tinued to the date when issued to be executed. 
 
 On receipt of the writ, the sheriff's duty was to how 
 impanel a jury to inquire of all the goods and chat- executed. 
 tels of the debtor, and appraise them, and also to inquire as 
 to his lands and tenements, and on inquiry had, to deliver 
 the goods and chattels (excepting beasts of the plough), and 
 a moiety of the lands, to the plaintiff, and then to return the 
 writ, that the inquisition might be recorded in the court 
 whence the elegit issued. The return, however, was only 
 necessary where lands were levied on. The inquisition 
 found the lands and the defendant's interest in them, and 
 their value. 
 
 If the goods were sufficient to satisfy the debt, the sheriff' 
 had no right to extend the lands, but simply delivered the 
 goods at the value found by the jury. 
 
 If the goods were insufficient, a moiety of the lands, after 
 being valued by the jury, were set out by the sheriff, by 
 metes and bounds, and delivered to the plaintiff. His exe- 
 cution of the writ was void, if he delivered more or less than 
 a moiety, or otherwise than by metes and bounds. It was 
 not necessary to set off' a moiety of each particular parcel 
 of land, but a particular part, equal to a moiety of the whole, 
 was sufficient. 
 
 If a moiety of the land was extended under one elegit, 
 another creditor, suing out a subsequent elegit, could only 
 take a moiety of the residue. But if the same creditor had 
 two judgments, and issued two elegits at the same term, he 
 could have a moiety of defendant's lands on the first elegit 
 and the entire other moiety on the second. 
 
 The sheriff, in executing the writ, did not put the plaintiff 
 in actual possession, against an occupant already on the 
 land, but left him to recover possession by ejectment. 
 
 A term of years might be extended either as land or as 
 chattels. In the first case, a moiety was delivered at an ex- 
 
176 COMMypN LAW PKACTICE. 
 
 tended annual value, as part of the defendant's land, or, in 
 the second case, the entire term was delivered at a gross 
 valuation. 
 
 But in the latter case, the defendant could save the terna 
 by paying the valuation. 
 
 Rent charges and trust estates, held for defendant's 
 b^efit, could be extended, but nothing which could not be 
 granted over, as offices of a public character. 
 
 If one of two judgment defendants died before execution 
 issued, the judgment survived, as to the personalty, against 
 the survivor, but it bound the lands of both parties. A fi. 
 fa. could only be executed against the survivor, but if it was 
 intended to proceed against the realty, after a scire facias 
 against the survivor and heir and terre tenants of the de- 
 ceased, an elegit could be sued out, and the lands of both sur- 
 vivor and deceased extended ; though if two defendants both 
 died, and one left no lands, the elegit might issue against 
 the heir and terre tenants of him who left the land, only. 
 
 The tenant by elegit had a chattel interest only, and if 
 evicted, had his remedy by ejectment, or scire facias and 
 re-extent, etc. 
 
 Where chattels were appraised and delivered, the sheriff's 
 return was, that he had delivered the goods at a reasonable 
 price, fixed by the jury. 
 
 "Where land was extended on an elegit, another elegit 
 might issue to extend other land, but a different form of 
 execution could not issue unless the plaintiff was evicted 
 from the land. But if the elegit proved ineffectual, as 
 where it appeared by the sheriff's return that the land had 
 alueady been extended, the other writs of ea. sa. or Ji. fa. 
 might be issued. And if the inquisition was set aside, any 
 of the writs might be sued out. 
 
 When the plaintiff"'s judgment was satisfied out of the 
 yearly value of the land, as ascertained by the inquisition, 
 the defendant might recover possession of his land, by eject- 
 ment or scire facias ad rehabendam ierram. Or if the defend- 
 ant would tender what remained unpaid, before the judg- 
 
EXECUTION. 177 
 
 ment was satisfied, he could have back his land by the scire 
 facias ad, etc. 
 
 The writ of levari facias authorized the sheriff to Levari 
 make the debt by sale of the defendant's chattels and ^'^'■^■ 
 from the issues and profits of his land. He might collect 
 rent from the tenants, cut down crops, etc. This writ was 
 superseded by the elegit, in practice. 
 
 The general rule was, that in all cases in capias ad i^*^ 
 which a capias ad respondendum or lat^t might satisfaciendum. 
 have been issued as the process to compel the defendant's 
 appearance, a capias ad satisfaciendum, could be sued out, on 
 a judgment obtained against him. It was given by statutes. 
 in other cases than trespass, to which it was confined at 
 common law. And it made no difference whether the de- 
 fendant could have been held to bail or not. So that bail, 
 or femes covert, although not liable to arrest under capias 
 ad respondendum, could be taken under a ca. sa. There 
 were privileged persons, however, who were not liable to 
 arrest under the ca. sa., such as peers, commoners, during 
 their time of privilege, executors, unless a deva,stavit was 
 returned, etc. 
 
 It was requisite that the writ pursue the judgment; so 
 that if the defendant was sued by the wrong name, and 
 omitted to plead the misnomer, he could be arrested by the 
 wrong name on a ca. sa., and the sheriff could justify under 
 the writ. 
 
 The ca. sa. was a command to the sheriff to take the de- 
 fendant and him safely keep, so tliat he might have his body 
 in court on the return day of the writ. 
 
 On a return of 7^on est inventus, alias and pluries writs or a 
 testatum ca. sa. might be issued, in the same manner as a 
 testatum fi. fa. 
 
 The writ was engrossed by the attorney, who procured it 
 to be properly sealed and left it at the sheriff's ofiice, with 
 proper directions. 
 
 mfldfl in t.hp an.mp. -wnv «a nnrJpr ^ 
 
 The arrest was made in the same way as under how 
 
 a capias ad respondendum. The defendant was executed. 
 
 12 
 
178 COMMON LAW PRACTICE. 
 
 usually not carried to jail until the return of the writ, but 
 confined in the house of the sheriff or an officer. Payment 
 of the debt to the sheriff was not considered payment to the 
 plaintiff, so as to operate as a satisfaction of the judgment, 
 as payment to the sheriff on a fieri facias would be. 
 
 Effect of The arrest under a ca. sa. was considered so far 
 arrest. ^ satisfaction of the judgment, that if the plaintiff 
 discharged the defendant from custody, voluntarily, he could 
 never have him arrested again, even, though the discharge 
 were on conditions which were not complied with. And 
 even if one of several defendants in a joint ca. sa. was so dis- 
 charged after arrest, the plaintiff could neither retake him 
 nor arrest the others afterward. But this did not prevent 
 the plaintiff' from proceeding against others liable separately 
 for the same debt. 
 
 Under mesne process the sheriff could not iustify 
 
 Eeturn. . , . , . -n , , i 
 
 an arrest without returning the writ. J3ut he could 
 justify without such return under final process, as Ji. fa. or 
 ca. sa. And it was not usual to return the ca. sa., but the 
 return could be enforced by rule. When ruled to return it, 
 the sheriff returned cepi corpus if the defendant was taken, 
 or von est inventus if he could not be found, or any special 
 matter, as privilege, etc. 
 
 As long as the ca. sa. was not executed, the plaintiff might, 
 ■on having it returned, sue out another ca. sa. or any. other 
 writ of execution. But if it was once executed by the de- 
 fendant's arrest, no other writ could be issued against the 
 ■defendant's goods or lands while he remained in custody, for 
 the same debt. And at common law, if the defendant died 
 ■while in custod}', the plaintiff could not have execution of 
 Jhis goods, but by statute 21 James I, ch. 24, he was allowed 
 to sue it out as if the defendant had not been taken in exe- 
 cution. 
 
 The object of an arrest under a ea. sa. would be 
 
 °''^^^' defeated if the defendant were allowed to go at large. 
 
 tConsequeoitly, if the defendant was suffered, even before the 
 
EXECUTION. 179 
 
 return of the writ, to go out of prison, even with a keeper, 
 it was an escape, unless, of course, it was under other ju- 
 dicial process, as a habeas corpus. 
 
 If the escape was simply negligent, i. e., through the ne- 
 glect of the jailer or other custodian, he might retake the 
 prisoner on fresh pursuit, and if the latter was recaptured 
 before an action was brought for the escape, the sheriff was 
 excused, and it was the same if the prisoner surrendered him- 
 self before action brought. 
 
 But if the escape was voluntarj', the jailer could never 
 retake the prisoner, and was liable to an action for false 
 imprisonment if he did so. 
 
 The remedy for the escape, against the sheriff, was an 
 action of debt or on the case. 
 
 The plaintiff in the action was not confined to his remedy 
 against the sheriff or jailer, but he might sue out a fresh 
 ca. sa. or any other writ of execution against the defendant, 
 or have an action of debt against him on the judgment. 
 
 A rescue was no defense to the sheriff, as it was in case of 
 mesne process. In case of rescue, the plaintiff might sue 
 the sheriff or jailer who had the custody of the prisoner, or 
 might sue out a fresh ca. sa. or an execution against the de- 
 fendant's goods, at his option. 
 
 If judgment was given for the defendant, he might have 
 his execution for costs, just as the plaintiff might for his 
 damages and costs where he had the judgment. And in 
 cases in which a ca. sa. was appropriate, he might have that 
 or the other forms of execution. 1 Arch. Pr., 255-280; 2 
 Tidd, ch. 41. 
 
 In the Slate of Maryland the writs of elegit and levari facias 
 never obtained, but the other English writs of execution were 
 in use, and, in addition to them, the writ of attachment on 
 judgment. 
 
 The writ of execution on a judgment could be sued out 
 by a simple written order of the attorney to the clerk, to 
 issue it. 
 
 Several circumstances operated as a stay or suspension of 
 the right to issue the execution. 
 
180 COMMOJfT LAW PRACTICE. 
 
 The amtssioii- to issue it within a year and a day, or the 
 death of parties, necessitated the issue of a scire facias, in 
 which a jiai or new judgment was obtained before it could 
 be issued. 
 
 Again, a judgment was often con'fessed, expressly, upon 
 the terms that execution should be stayed for a certain time. 
 
 A writ of error or appeal, so prosecuted as to be a super- 
 sedeas, stayed the execution until it was determined. 
 
 An injunction from a court of equity had the same effect. 
 
 A direct supersedeas was also given by statute. It might 
 be obtained by the defendant, within two montfis after the 
 rendition, of a judgment, by going with two securities before 
 two justices- of the peace of the county and confessing a 
 judgment, without the form, of an action, subject to a stay 
 of six months. The confession was filed antl entered on the 
 docket, aud execution was thereupon stayed for six months. 
 
 Several writs of execution, while still legal, were seldom 
 resorted to. The reiorvo habendo, for example, was not com- 
 mon, the remedy being sought on the replevin bond. The 
 writ of admeasurement of dower was another example. 
 
 The attachment might be issued against the lands, chattels, 
 and credits of the defendant in the same way as where the 
 attachment was issued on warrant to compel an appearance 
 to a suit. It m,ight be jileaded to and be carried on to a 
 judgment of condemiiati(jn. 
 
 The fieri facias in Maryland could be levied on freehold 
 estates by virtue of the statute 5, G-eorge II, ch. 7, which 
 declared lands in the colonies liable to execution. It was 
 held, in Maryland, that lands were liable to be taken and sold 
 by fieri facias and were liable to attachment, in the same 
 manner as goods and chattels. 
 
 Although money could not be directly levied on under a 
 fi. fa., it was the practice in Maryland, where several writs 
 were in the sheriff's hands, to apply any surplus, from a sale 
 under one, to the other. 
 
 The writ operated as a lien on personal property from the 
 time of its receipt by the sheriff, and it had no relation back. 
 
 In the execution of a fi. fa. the sheriff's duty, after seizure, 
 
EXECUTION, 181 
 
 was to have the property valued by two sworn appraisers. 
 In fact, this was the whole ceremonial of seizure, as to real 
 estate. A schedule, or list and description, accompanied 
 the return. This was an important part of the title of a 
 purchaser of real estate, and was i-equired to be precise. 
 The 8henft"'s return, with this schedule, was sufficient evi- 
 dence 'of title on which to stistaim an ejectment, thongli the 
 complete execution of the writ involved a deed from the 
 sheriff to the purchaser. 
 
 The property seized was sold at auction to the highest 
 bidder, after advertisement. 
 
 If there was doubt whether the property indicated was 
 that of the defendant, the sheriff usually, before levying, 
 demanded an indemnifying bond of the plaintiff. And if, 
 after a levy, the property was claimed by a stranger, the 
 sherift"s course was, to apply to the court to give him time 
 for a return of the writ, until one or the other party should 
 give such bond. 
 
 When the writ was in the sheriff's hands, its execution 
 was not stopped, either as to land or goods, by the defend- 
 ant's death. 
 
 In case of a sheriff vacating his office before executing a 
 writ, instead of the distringas nu-per ■vicecomiie?n, to the coroner, 
 the vendilioni exponas issued to the late officer until the prop- 
 erty was sold. 
 
 The statute before mentioned, relating to levies on the 
 property of tenants, was considered in force in Maryland. 
 
 The capias ad satisfaciendum was executed, in most respects, 
 as in England. 
 
 On the return day of the writ, or some other day in the 
 term, the sheriff brought the prisoner, with the writ and 
 return, before the court, and it was the duty of the plaintiff's 
 attorney to pray a commitment. If that was not done, the 
 defendant went at large, but another ca, sa. might be issued. 
 If the parties so agreed, the writ was not returned at all, 
 but an entry was made on the docket that it was " not called 
 by consent." This discharged the bail, but it warranted 
 another execution. 
 
 By force of several statutes, executioa could be issued 
 
182 COMMON LAW PRACTICK. 
 
 from any county court, to the sheriff or coroner of any other 
 county, into which the defendant might have removed, and 
 returned to the court of that county. On the return of nulla 
 bona to a fi.,fa., directed to the sheriff of the county where 
 the judgment was rendered, a fi. fa. might likewise issue 
 into any other county where the defendant might have prop- 
 erty. The same proceedings were to be had in the court 
 of the county to which it was directed, as if it had issued 
 from that court. 
 
 Executions might be quashed, on motion, for any irregu- 
 larity in issuing them. It was held, that the motion must 
 be made at the return term of the writ; it would be too late 
 afterwards. 
 
 In Maryland there was no such officer as under-sheriff. 
 There was, ordinarily, a deputy, who acted under a general 
 authority, and special deputies for particular cases, who had 
 a special authority indorsed on the writ. 
 
 If the sheriff neglected to return a writ of execution, when 
 ruled so to do, the court was authorized by statute to enter 
 judgment, in the plaintiff's name, against him, for the debt 
 or damages and costs. An affidavit that the writ was deliv- 
 ered to him, or that a copy of the rule to return it had been 
 served on him, was necessary to support the motion for such 
 judgment. 
 
 In Maryland, the English practice of having an execution 
 issued and returned within the year and day, in order to 
 keep the judgment alive, and continuances entered after- 
 wards, down to the time when the actual execution of the 
 writ was required, could be resorted to. But another prac- 
 tice was, to order the clerk to issue the execution " to lie." 
 The clerk, in fact, issued no execution, but made the same 
 entry on the docket as if he had, and this was renewed every 
 term. By this means, the judgment could be kept alive 
 indefinitely. Evans's Pr., 55, 353-381. 
 
 In the District of Columbia the law of executions, as it 
 
BXBCOTION. 183 
 
 prevailed in Maryland, has remained unaltered, except in 
 regard to certain exemptions, enumerated in an act of Con- 
 gress of February 5tli, 1867, ch. 30, and in regard to the 
 supersedeas of judgment; it being enacted, as to the latter, 
 by act of February 22d, 1867, ch. 64, that there shall be no 
 supersedeas or stay of execution of the judgments of the 
 Supreme Court of the District, otherwise than by injunction 
 or proceedings in error. 
 
 "With regard to execution on judgments of the Federal 
 courts, it has already been seen, that common law'executions 
 are recognized, and an election given to the plaintiflF to issue 
 either a fi. fa. or ca. sa , in the first instance. 
 
 It has also been §een, that even after judgment, execution 
 may be stayed by motion for a new trial. 
 
 It is further to be observed, that in States where judg- 
 ments are a lien on property, and where the defendants in 
 the State courts are entitled to a stay of execution for one 
 or more terms, a stay for one term is expressly given to de- 
 fendants, in the courts of the United States. E,ev. Stat., sec. 
 988. 
 
 The execution ordinarily runs only within the district, 
 unless a State is divided into one or more districts, in which 
 case, it runs into any part of the State. Id. sec. 985. 
 
184 COMMON LAW PRACTICE. 
 
 CHAPTER VI. 
 
 PROCEEDINGS AGAINST BAIL. 
 
 Special bail were only liable to the amount indorsed ou 
 the writ, or such less sum as the plaintifi" might obtain judg- 
 ment for, with the costs of the action against the principal; 
 and the court would stay proceedings in an action on the 
 recognizance, or order an exonereiur to ,be entered on the 
 bailpiece, on payment of the amounts in question, though 
 even a larger amount of damages had been recovered. 
 
 If an action was brought against bail on their recogni- 
 zance, they were liable for the costs of such action, as well' 
 as the debt and costs in the original action. 
 
 They were not liable, however, for the costs of a scire 
 facias against them, before pleading to it. But if they de- 
 sired a stay of the proceeding against them hy scire facias, 
 until the determination of a writ of error brought after 
 they were fixed, the court would only grant it on condition 
 of their undertaking to pay the costs of the sci. fa., and (if 
 there was no bail in error) of the writ of error, if judgment 
 should be affirmed. 
 
 If the writ of error had been brought before the bail were 
 fixed, they could have the proceedings against them stayed 
 pending the writ of error, upon their undertaking to pay 
 the damages recovered, or to surrender the defendant within 
 four days after the affirmance of judgment. 
 
 Bail were liable as long as their names remained on the 
 bailpiece, even when they were rejected as insufficient. If 
 proceedings were commenced against them after this, they 
 could only be discharged on payment of costs. 
 
 Death of If the principal died before the return day of the 
 principal, ga. sa., the bail were discharged. But if he died 
 
PROCEEDINGS AGAINST BAIL. 185 
 
 after the writ was returnable, though before actual return, 
 the bail were tixed, and there was no relief for them. 
 
 Where the principal's death occurred before the writ was 
 returnable, the bail might apply to the court or to a judge, 
 in vacation, to have an exonerelur entered on the bailpiece. 
 
 Bankruptcy had an effect similar to that of 
 
 TTTi 1 • n ^ • -I 1 r> Bankruptcy. 
 
 death. Where the certmcate was obtained berore 
 the bail were fixed, it was a discharge to the bail. After- 
 wards, it was not. In the former case, an exonerelur was 
 obtained, as in case of death. 
 
 Bail could also discharge themselves by render- surrender of 
 ing the person of their principal, either before or principal, 
 after judgment. Bail to the sheriff might put in bail to the 
 action and render the principal, even before the return of 
 the writ, and before justifying, and even after being rejected. 
 
 Bail above could, at any'tirae pending the action, or be- 
 fore a return of the ca. sa. against the principal, surrender 
 him in their own discharge, and this could be pleaded in 
 any action against them.. 
 
 The surrender might be made at any time before the 
 return of the writ to which the bail must appear, i. e., the 
 return of tlie first writ, if it was served, and that of the 
 second if tlie first was returned nihil, and the benefit of such 
 surrender could be had on motion. 
 
 Further time was allowed in practice and by the indulg- 
 ence of the court, both in actions of debt and scire facias 
 against the bail, on their motion. 
 
 If the act of the law prevented the rendition of the defend- 
 ant, the bail were discharged, as where he had been sent 
 abroad under the alien act, or was on shipboard, for trans- 
 portation ; and the court would enter an exonerelur. If he 
 was in custody, the bail might have a habeas corpus to pro- 
 duce and surrender him. 
 
 The mode of surrendering the principal, after taking him, 
 was to produce him in court, or at a judge's chamber, and, 
 
186 COMMON LAW PRACTICE. 
 
 from the clerk of the court, or the judge, to procure a com- 
 mitment, upon which he was delivered to the tipstaff'. 
 
 For the purpose of taking the principal, the bail might 
 break open inner doors of his residence. 
 
 K'otice of the render, to the plaintiff''s attorney, was neces- 
 sary, before the exoneretur could be entered. 
 
 Cause of Where the plaintifl"'s declaration was for a dif- 
 discharge. ferent causc of action from that mentioned in the 
 writ or affidavit to hold to bail, as where the writ was in 
 case and the declaration in debt, or the declaration varied 
 from the affidavit, in the number or names of the defend- 
 ants, or the cause of action, or the declaration was in autre 
 droit, and the writ general, and the like, the bail were dis- 
 charged and were entitled to an exoneretur. Nor could the 
 declai'ation, in such cases, be amended, so as to recharge the 
 bail. 
 
 But where the defendant was held to bail by a wrong 
 name, but put in and justified bail in the right name, and 
 the declaration was in the right name, the bail were not ex- 
 onerated. 
 
 A reference of the cause to arbitration would discharge 
 the bail. 
 
 Where the principal was taken under a ca. sa,, or the 
 debt actually made by fi. fa., there was equally a discharge. 
 
 If one of the bail happened to be a material witness, his 
 name would be struck out of the bailpiece, upon the defend- 
 ant's adding and justifying other bail in his stead. 
 
 How to proceed Bcforc proceeding against bail, it was neces- 
 against bail. g^yy ^q g^g o,j(. ^ yy^jj- Qf q^_ g^_ against the prin- 
 cipal, and have it returned, and the omission to do this was 
 pleadable in bar of scire facias or debt. 
 
 The ca. sa. was directed to the sheriff' of the connty where 
 the venue was laid, and was returnable on some general re- 
 turn day; and if it was not sued out within the year and day, 
 a sci. fa. to revive was necessary. Yet irregularities in these 
 respects could be taken advantage of only by the defendant, 
 and not by the bail. 
 
PROCEEDINGS AGAINST BAIL. 187 
 
 Unless the defendant was already in the sheriff's custody 
 under another writ, in which case it could not be done, the 
 sheriff returned non est inventus, as a matter of course, with- 
 out attempting to arrest the defendant, the object of the writ 
 being simply to notify the bail of the intended proceedings 
 against them. 
 
 After the return, the bailpiece was filed and the recog- 
 nizance was entered on the roll and docketed by plaintift"'s 
 attorney. The entry of the recognizance followed the recital 
 of the defendant's appeaiance and defense. 
 
 The plaintiff had the option of proceeding against the bail 
 by scire facias or action of debt. 
 
 If the bail were absent, it was usual to resort to the scire 
 facias. A return of two nihils to the original and alias was 
 equivalent to service, and a judgment could be had there- 
 upon. 
 
 In other cases, debt on the recognizance was the remedy. 
 
 The sci. fa. was tested on the quarto die post of the return 
 day of the ca. sa., and returnable on a general return day. 
 
 Debt might be brought jointly against both the bail, or a 
 separate action against each. 
 
 Scire facias, on a recognizance in the King's Bench, had 
 to be brought in Middlesex, where the record was, and, for 
 the same reason, the venue was laid in Middlesex in an 
 action of debt. 
 
 Upon a iudisrment, either in debt or scire facias, 
 
 ^ '' r ~ . ■ 1 ■ 1 -P Execution. 
 
 any of the writs of execution might issue, and it 
 the plaintiff preferred, a ca. sa. in the first instance. 
 
 If a judgment in debt was obtained against both the bail, 
 the execution was necessarily joint; if the judgment was in 
 scire facias, the execution might be joint or several, the ob- 
 ject of the scire facias being to have execution against the 
 defendant, according to the form of the recognizance, which 
 was joint and several. 
 
 If the plaintiff" failed to collect his debt of the bail, by exe- 
 cution, he might still have execution against the principal, 
 unless the bail had been taken on a ca. sa. In the latter case, 
 the plaintiff was forever precluded from proceeding against 
 
188 COMMON LAW PRACTICE. 
 
 the principal ; and even a release of the bail upon partial pay- 
 ment, with a reservation of this right to proceed against the 
 principal, did not change this result, nor did a discharge of 
 the bail upon receiving a certificate in bankruptcy. 
 
 Baiiin Bail in error became responsible for the amount 
 error, (jf t]je original judgment, and also for damages and 
 costs awarded by the court of error for the delay of execu- 
 tion, where the judgment was affirmed, or the plaintiff in 
 error discontinued or was non prossed. As regards interest, 
 their liability was only for interest on the sum awarded by 
 the court of error, from the date of affirmance, and not for 
 interest before the affirmance, except for what was included 
 in the original judgment. 
 
 The obligation of the bail in error was to pay the debt, 
 absolutely, in case of affirmance, and consequently neither 
 the surrender of the principal, nor his discnarge in bank- 
 ruptcy, nor his arrest under a ca. sa. for the same debt, would 
 discharge the bail. Even the bankruptcy of the bail them- 
 selves, before affirmance, was no bar to proceedings against 
 them on their recognizance. 
 
 But bail who did not justify were entitled to have their 
 names struck out of the bail piece. 
 
 It was not necessary to issue a ca. sa. against the principal 
 befoi-e proceeding against bail in error. But their recogni- 
 zance had to be regularly entered on the roll, as in the case 
 of bail to the action. 
 
 The proceedings against bail in error were by scire facias 
 or debt. 
 
 If the defendant had joined in the recognizance, the scire 
 facias was either against him- and the two bail jointly; or 
 separately against each. Two of the three could not be 
 joined, and such proceeding would be had on demurrer. 
 The same may be said of an action of debt on the recogni- 
 zance. 
 
 When a iudgment was satisfied by pavment, or 
 
 Satisfaction. , , "^ . , . , , . „ 
 
 through execution, or otherwise, the plamtiir, if 
 
ON SPECIAL ACTIONS, ETC. 189 
 
 required, was bound to give the defendant a warrant di- 
 rected to some attorney, authorizing him to enter up satis- 
 faction on the roll. 
 
 Where there were judgments in cross actions, a defend- 
 ant in one, who had the larger judgment, was allowed, on 
 application, to enter up satisfaction on the roll, upon his 
 acknowledging satisfaction for the same amount on his own 
 judgment, although he had the defendant, in his own judg- 
 ment, in custody in execution. Arch. Pr., 280-296. 
 
 CHAPTER VII. 
 
 ON SPECIAL ACTIONS, AND ACTIONS AGAINST PAETICULAR 
 
 PEKSONS. 
 
 Section I. 
 
 The preceding chapters have exhibited the course of pro- 
 ceeding in an ordinary personal action. 
 
 There were several actions in which the proceedings were 
 peculiar, and which require special notice. 
 
 The first was the action of ejectment. Ejectment. 
 
 Instead of bemnning the action by a capias, the 
 
 , . .^ . ,,.,,,?,, . . , . Declaration. 
 
 plaintift simply filed his declaration, with a notice 
 from the casual ejector to the tenant, to appear and defend, 
 and caused a copy of it to be served on the tenant, and on 
 each tenant, if there were several. The notice required the 
 tenant's appearance at the next term. 
 
 The copy might be served on the tenant himself 
 
 1 . T 1 -i' Service. 
 
 anywhere; it might be .served on the tenant s wite 
 
 on the premisesj or at her husbahd,'s house. In other cases, 
 
190 COMMON LAW PRACTICE. 
 
 it was required to be served on the premises. It was suf- 
 ficient to tender it and then leave it; and in the absence of 
 the tenant and his wife, it might be served on his child or 
 servant, and if the servant afterwards acknowledged that he 
 had received it before the essoign day of the term, the ser- 
 vice was deemed sufficient. 
 
 If the tenant had absconded, or, from other causes, service 
 as before mentioned was impossible, it was to be served in 
 the best way practicable, and if no one was present to receive 
 it, by affixing it on some conspicuous part of the premises. 
 
 Where personal service could not be made, the attorney 
 for the plaiutifi^, after leaving the copy on the premises, ob- 
 tained a rule from the court to show cause why the service 
 in question should not be deemed sufficient, and that leav- 
 ing a copy of the rule with some person on the premises, or 
 affixing it there, should be deemed sufficient service of the 
 rule. If no sufficient cause was shown, in response to the 
 rule, the court made it absolute. 
 
 In making personal service, it was necessary to. read, or 
 otherwise make known, the purport of the notice. The ser- 
 vice was then to be proved by affidavit of the party making 
 it, which was required to show service on the tenant in pos- 
 session, in some of the modes indicated, and to be positive 
 and certain. 
 
 Judgment If the tenant, thus served, omitted to have him- 
 by default, gejf made a party to the action, the plaintiff was 
 entitled to a judgment by default against the casual ejector. 
 If the service had been on the tenant in person, on pro- 
 ducing the declafration with the proof of service, a rule nisi, 
 for judgment, could be obtained from the clerk of the rules. 
 If the service had been otherwise, the rule must have been 
 moved for in court. Upon the expiration of the rule, if no 
 plea and consent rule were filed by the defendant, judgment 
 could be signed, as in other cases, after filing common bail 
 for the casual ejector. 
 
 There was a difference, in effect, between this judgment 
 and judgment on verdict against the tenant. Execution 
 could forthwith be sued out on the judgment by default, but 
 
191 
 
 at any time before the writ of possession was executed, the 
 court, or a judge in vacation, on affidavit of merits, might 
 stay the proceedings, and admit the tenant or other claimant 
 of the title to defend. After execution of the writ, this 
 privilege was not granted. 
 
 The appearance was entered- and plea deliv- 
 ered, either by the tenant on whom the declara- 
 tion and notice were served, or by his landlord, or by both 
 jointly, or by some other person claiming the title and pos- 
 session, within the time fixed by the rule nisi for judgment, 
 or the rules of the court. 
 
 The tenant in possession was not bound to appear when 
 he held under another person, though his landlord offered 
 to indemnify him, but under statute 11 Geo. II, eh. 19, he 
 was bound, on being served with a declaration in ejectment, 
 to give immediate notice of it to his landlord, on pain of for- 
 feiting three years' improved rent of the premises, and the 
 landlord could be admitted to defend, on entering into the 
 same rule which the tenant would have had to enter into, on 
 his appearance. 
 
 The statute allowing this, 11 G-eorge II, ch. 19, was liber- 
 ally construed as extending to an heir of the landlord, a re- 
 mainderman under the same title, a devisee, and mortgagee. 
 
 The appearance was entered by giving a praecipe to enter 
 it, to the clerk, and signing a printed form of consent rule, 
 which was also filed. 
 
 The consent rule required the defendant to plead the gen- 
 eral issue only, and, at the trial, to confess his possession at 
 the time of service of the declaration, and the lease, entry, 
 and ouster averred in the declaration. 
 
 In ejectment by one joint tenant, coparcener or tenant in 
 common, against another, the tenant would be admitted to 
 defend, on confessing lease and entry only, so as to put in 
 issue the actual ouster, the plaintiff's title, as joint tenant, 
 etc., being admitted. 
 
 Either party might, at any time before the trial, take out 
 a summons before a judge, calling upon the other for a bill 
 of particulars of the premises intended to be claimed or de- 
 
192 COMMON LAW PRACTICE. 
 
 fended, as the case might be. And so, if the suit was brought 
 for a forfeiture, the court, on application of the defendant, 
 would rule the plaintiff to give the defendant a particular 
 of the covenants and breaches, etc., on which he meant to 
 insist, as grounds of forfeiture. 
 
 The general issue only could be pleaded, nnder the consent 
 rule, and the issue for trial. was made up as in other cases. 
 
 At the trial, the defendant might give any special 
 
 matter of defense under the general issue, and, as in 
 
 other such cases, was then, entitled to begin and reply. He 
 
 might also plead, puis darrein continuance, that the plaintiff 
 
 had entered intopartor allof the premises, since issue joined. 
 
 If the defendant failed to appear at the trial and confess 
 lease, entry, and ouster, according to the consent rule, the 
 plaintiff had to be non-suited and the fact was entered on 
 the postea that it was because of the defendant's said omis- 
 sion, and the plaintiff was entitled to sign judgment against 
 the casual ejector. If one of several defendants failed to ap- 
 pear, etc., as the consent rule required, the same non-suit took 
 place as to him, while the trial proceeded, as to the others. 
 
 The damages given in ejectment were merely nominal, 
 the real damage occasioned by the detention being recov- 
 ered in action of trespass for mesne profits. 
 
 The prevailing party was generally entitled to re- 
 cover costs, as in personal actions generally. The suc- 
 cessful plaintiff was entitled to recover his entire costs from 
 any of several defendants, although they defended severally. 
 If several, defending jointly, succeeded, they were entitled to 
 costs, and the plaintiff might pay to whichever one he pleased. 
 A non-suited plaintiff was liable to costs, unless it was be- 
 cause of defendant's refusal to appear and confess, etc., in 
 which case the plaintiff" recovered costs against the defendant. 
 The defendant could never have execution for costs, be- 
 cause the real plaintiff was not a party to the record, but 
 his remedj' was by attachment, on the consent rule. 
 
 The execution was a writ of possession, or 
 habere facias possessionem, which directed the 
 
ON SPECIAL ACTIONS, ETC. 193 
 
 sheriff to put the plaintiff in possession of the premises. 
 Either in the same or in a separate writ, the plaintiff might 
 have aji.fa. or ca. sa., for his costs. 
 
 While the writ was unexecuted, the plaintiff' might have 
 it returned and sue out an alias. But if it was once ex- 
 ecuted by delivery of possession, another writ of 'possession 
 could not be sued out, though the plaintiff' was ousted by 
 the same defendant. But if the ouster occurred when the 
 execution of the writ was still recent, the court might 
 punish the defendant by attachment. 
 
 In execution of the writ of habere facias, the officer 
 could use all necessary force and remove persons and goods 
 from the premises. If he gave possession of too much, the 
 court would, on application, order it to be restored. Thus 
 if, under a writ for an undivided part, the defendant was 
 turned out of the whole, he could be restored to the pos- 
 session of his undivided part. 
 
 Where the possession was vacant, and the tenant vacant 
 could not be found, so as to be served with the dec- possession. 
 laration and notice, it was deemed necessary that the plain- 
 tiff"'s lessor should make an actual entry on the premises. 
 He took two friends, and executed a lease on the land to 
 one of them, who was then ousted by the other; the latter 
 was then immediately served with a declaration, at the suit 
 of the person ousted. No one was admitted to defend such 
 an action, and judgment vs^as rendered against tlie casual' 
 ejector. Whoever could first seal a lease on the premises 
 obtained possession, and others were driven to their action. 
 
 After judgment, in ejectment, an action of trespass Mesne 
 for mesne profits might be brought against the ten- P'ofl*'- 
 ant, either in the name of the nominal plaintiff or in that of 
 his lessor. In this action, the judgment in the ejectment 
 was conclusive, as to the plaintiff's title, but the plaintiff" 
 was not restricted to the time stated in his demise, and 
 might recover profits which had accrued previously, if he 
 then had title. The defendant, however, could plead the 
 statute of limitations, as to all profits except those which 
 had accrued withiu the statutory period of six years before 
 
 la 
 
194 COMMON LAW PRACTICE. 
 
 the commencement of the action of trespass. 2 Arch. Pr., 
 42-52. 
 
 In Maryland the general law of ejectment remained un- 
 altered. 
 
 Upon th"e defendant's appearance, it was not the practice 
 actually to draw up the consent rule, but the fact of enter- 
 ing an appearance was considered as equivalent to entering 
 into the consent rule. If no appearance was tendered, a 
 judgment nisi was entered against the casual ejector, to be- 
 come absolute unless an appearance was entered by the sec- 
 ond day of the next term. 
 
 In the case of vacant possession, it was not necessary to 
 enter and seal a lease upon the land, but if the defendant 
 could not be found, service of the declaration and notice 
 was effected by posting it on a conspicuous part of the prem- 
 ises, but the defendant could be admitted to defend, as if 
 notice had been served on him personally. The course of 
 the suit, after appearance and plea, was like that of other 
 actions. Evans's Pr., 102. 
 
 Section II. 
 
 The action of replevin was also peculiar. 
 
 At common law it apphed principally in case of 
 "wrongful distress of goods, and only to cases where the tak- 
 ing was wrongful. 
 
 The writ formerly resorted to, was that of replegiari facias, 
 ^nd issued as an original writ from chancerj'. This proceed- 
 ing, however, being tedious, and the case of wrongful dis- 
 tress requiring speedy remedy, the statute of Marlbridge (52 
 Hen. Ill, ch. 21) directed that the sheriff, without any writ 
 being sued out of chancery, should proceed to replevy the 
 ■goods on complaint being made to him. Before doing so 
 he was required to take pledges from the plaintiff, not only 
 to prosecute his suit, but also to return the cattle or goods, 
 if a return should be adjudged. The statute of 11 Geo. II, 
 'ch. 19, directed that a bond should be taken by the sheriff, 
 
ON SPECIAL ACTIONS, ETC. 195 
 
 with this condition, in double the value of the goods dis- 
 trained. He was to assign this bond to the avowant, or per- 
 son making conusance, just as a bail-bond was assigned, to 
 be sued in his own name. If the sheriff neglected to take a 
 bond, or took an insufficient one, he was liable in an action 
 ou the case. Taking an assignment of the bond, however, 
 was not a waiver of the remedy against the sheriff, and if 
 upon his proceeding against the pledges they were found 
 insolvent, the avowant or conusor might still sue the sheriff". 
 
 The proceeding was, to take two competent 
 
 11 1 ■ ^ 1 /i> ■ Proceeding. 
 
 bondsmen, who were required to be sumcient 
 housekeepers, to the sheriff's office, and there to fill up and 
 execute a bond, whereupon a warrant was issued to one of 
 the sheriff's officers to seize the goods and deliver them to 
 the plaintiff, and also to summon the defendant to appear at 
 the next county court. In the execution of the writ, the 
 officer might use force if resisted, and might break open the 
 outer door of the defendant's dwelling if the goods were 
 there, having first demanded admittance and announced his 
 object. If the goods had been eloigned, so that the sheriff' 
 could not take them, then, upon plaint being levied, as it 
 was called, in the county court, the sheriff" might issue a 
 precept in the nature of a capias in withernam, commanding 
 the officer to take other goods or cattle of the defendant to 
 the amount of those taken by him, and deliver them to the 
 plaintiff, the latter having first executed a bond similar to 
 the original replevin bond. 
 
 After the goods were replevied and delivered to 
 
 ,••«.? 1 1 T 1 ■ Plaint. 
 
 the plaintiff, he was bound, according to the terms 
 of his bond, to levy his plaint at the next county court, and 
 prosecute his suit with effect. If he failed therein, or made 
 default at any subsequent stage of the ca,se, the defendant 
 was entitled to take an assignment of the bond and sue on it. 
 But if any right of freehold came in question, the sheriff 
 could not proceed in the county court. 
 
 The plaint, once begun, might be removed from the county 
 court to the King's Bench, by writ of recordari facias, by 
 
196 COMMON LAW PRACTICE. 
 
 either the plaintiff or the defendant. The latter was bound, 
 strictl^^ to show cause, though the assignment of cause came 
 to be merely formal, and was made on the writ itself. 
 
 ■ Eenordari The Writ of recordaH facias was an original writ, 
 facias. and was sued out like others, and the sheriff could 
 be ruled to return it, as in other cases. This writ suspended 
 all proceedings in the county court, if delivered before final 
 judgment, and any such proceedings afterwards were void. 
 The defendant had to enter his appearance before the 
 plaintiff could either declare or be ruled to do so. The 
 plaintiff could obtain a four-day rule for him to appear, and 
 on his failure to do so, might have a distringas, alias, etc., 
 until he appeared. Or if "nulla bona" was returned to the 
 distringas, he might sue out a capias and proceed to out- 
 lawry, as in other cases. 
 
 Euieto The defendant having appeared, and desiring 
 
 declare, etc. ^q expedite the cause, might obtain a rule on the 
 
 plaintiff to declare, and demand a declaration, as in other 
 
 cases, and, on the plaintiff's default, sign a judgment of non 
 
 pros, against him. 
 
 Second The judgment of non pros, was that the defend- 
 
 deiiverance. ^nt should have a return of the goods and his 
 costs. The plaintiff might, however, sue out a writ of second 
 deliverance, under which the goods might again be taken 
 and delivered to the plaintiff", or which, if they had not been 
 returned under the writ de retorno habendo, would super- 
 sede the latter. The award of this writ was entered qn the 
 roll after the judgment of non pros., and the proceeding 
 under it was the same as in other cases of replevin com- 
 menced by writ. The judgment for the defendant after this, 
 whether of uon pros, or upon verdict of demurrer, was for 
 a return irreplevisable. 
 
 Capias in If the plaintiff' omitted to sue out the writ of 
 withernam, gecoud delivcraiice, and to the writ de retorno, ha- 
 bendo the sheriff returned "eloigned," the defendant was 
 entitled to the writ O'f capias in withernam, under which 
 
ON SPECIAL ACTIONS, ETC. 197 
 
 plaintiff's goods were taken and delivered to defendant, to 
 beheld until the latter's goods were returned; but it was 
 treated as mesne process to compel the plaintiff to declare, 
 and as soon as he did so, he might obtain restitution of the 
 goods taken under it, upon motion. 
 
 Where the replevin was for goods distrained for rent, the 
 defendant, in pursuance of a statute of 17 Chas. II, ch. 7, 
 after the entry of judgment for a return, might make a sug- 
 gestion on the roll in the nature of an avowry or cognizance, 
 and obtain a writ of inquiry to find the amount of the rent 
 due, and the value of the distress, and if the distress equalled 
 in value the amount of rent due, final judgment was entered 
 for that value, and if it was less, then for the value of the 
 distress, as ascertained by the inquest, and costs of suit. 
 Or, instead of an inquiry, the defendant might take an as- 
 signment of the replevin bond, after signing judgment of 
 non pros., and sue the plaintiff and his pledges. 
 
 When the plaintiff declared, he entered a rule to avow, 
 and demanded an avowry in the same manner in which a 
 plea was ruled and demanded, and on the defendant's de- 
 fault could sign judgment by default, and sue out a writ of 
 inquiry, as in other cases. 
 
 After avowing, the defendant could rule the plaintiff to 
 plead, and, on his default, sign judgment of non pros. This 
 was for a return of the goods, and if the distress was for 
 rent, customs, services, or damage feasant, the defendant 
 had judgment for his damages, and could sue out a writ of 
 inquiry, and proceed to final judgment in the usual way. 
 Or in case of distress for rent, he could proceed under the 
 statute 17 Chas. II, aforesaid, iu this way, or he might sue 
 on the bond. 
 
 The proceedings to issue and trial were nearly the same 
 as in other cases. In case of non pros, the writ of retorno 
 habendo and the inquiry might be sued out, either in the 
 same writ or in separate writs. The jury, iu findinoj 
 
 , ■ 1 /• , 1 ■ -m -1 1 • Verdict. 
 
 a verdict, upon the trial, tor the i.)lauitin:, assessed his 
 damages as in trespass. In finding for the defendant, they 
 
198 COMMON LAW PRACTICE. 
 
 assessed his damages, aud found the value of the distress 
 and the amount of rent due. 
 
 The judgment on verdict for the plaintifi' was 
 
 that he recover damages and costs, as in trespass. 
 
 The judgment :^or defendant was, that he have a return of 
 
 the goods, irreplevisable, and recover the damages assessed 
 
 by the jury, and his costs of increase. 2 Arch. Pr., 62-73. 
 
 On a judgment at common law, besides the 
 
 Execution. „ ,. n i i i ^ -^ 
 
 n. fa., or ca. sa., for the damages and costs, a writ 
 de retorno habendo might be issued, which directed the sheriff 
 to take the goods and deliver them to the defendant. If 
 this was returned "eloigned," a capias in withernam might 
 issue, as above. If this was returned " nihil," a sci. fa. might 
 be issued against the pledges, and then against the sheriff. 
 
 In Maryland, replevin was not confined, as at common 
 law, to the case of wrongful taking, but was recognized as 
 the universal remedy in all cases, where the plaintiff had a 
 right to goods and chattels withheld by another. It was 
 not allowed to be resoi-ted to, however, in two cases, viz., 
 where the party in possession had already replevied them 
 from the plaintiff, because the matter of right could be deter- 
 mined in that replevin ; and the other, where they were in the 
 custody of an officer of the law, under process from the court. 
 
 The proceeding in replevin was much simplified. The 
 action was commenced by filing a replevin bond with the 
 clerk of the court, in favor of the defendant, signed by the 
 plaintiff and two sureties approved by the clerk, in a penalty 
 of double the value of the property in dispute, conditioned 
 that the plaintiff shall prosecute his suit with effect, and 
 return the goods, if a return be adjudged, and, in all things 
 abide by the judgment of the court. 
 
 It was not permitted to issue the writ against any person 
 holding an office which authorized him to collect taxes, with- 
 out an affidavit from the plaintiff, that the property had not 
 been distrained or taken in execution, on account of any 
 public dues or taxes, or, in the absence of that, a warrant 
 from a justice of the peace. But in other cases, upon the 
 
ON SPECIAL ACTIONS, ETC. 199 
 
 filing of the bond, it was tlie duty of the clerk to issue the 
 writ. The writ commanded the sheriff to replevy the goods 
 and to summon the defendant to appear at court. The only 
 returns which the sheiiff made were, " replevied and deliv- 
 ered" (to the plaintiff), or, "eloigned," and "summoned 
 the defendant." Where the goods had been replevied and 
 the defendant summoned, if the defendant appeared, the 
 plaintiff proceeded to declare as in other cases. 
 
 Under a statute of 1785, oh. 80, the court might, on mo- 
 tion, and upon hearing the circumstances, order a return 
 of the property to the defendant, upon his executing a bond 
 similar to that required of the plaintiff. The order might 
 be enforced by a writ of retorno habendo and other proceed- 
 ings, like a judgment. 
 
 There seemed to be no mode of compelling the defend- 
 ant's appearance, unless it might be by attachment for con- 
 tempt, nor could judgment be entered against him by de- 
 fault. 
 
 Where the sheriff returned "eloigned," whether the de- 
 fendant appeared or not, the writ of capias in withernam 
 issued, under which other goods of the defendant were 
 seized and delivered to the plaintiff, and other proceedings 
 had, according to the course of the common law. The pro- 
 ceeding under the withernam was complicated and there 
 are no reported cases of its application in Maryland, but the 
 precedents in Evans's Harris indicate thatthe common law 
 on the subject was considered in force there. 
 
 The verdict in replevin was for nominal damages, for 
 either party, and the defendant depended upon the replevin 
 bond to recover his actual damages. The judgment was for 
 a return of his goods and nominal damages and costs, on a 
 verdict for the plaintiff', if the goods had not been taken or 
 had been returned to the defendant, and for nominal dam- 
 ages only and costs, if they had been delivered to the plain- 
 tiff. On a verdict for the defendant, where the goods had 
 been delivered to the plaintiff, the judgment was for a return 
 and nominal damages and costs. Evans's Pr., 92, 107, 238. 
 
 lu the District of Columbia the practice of Maryland con- 
 
200 COMMON LAW PRACTICE. 
 
 tinued unaltered until the act of Congress of February 22d, 
 1867 (1-4 Stat. 404), made various changes in it, in respect to 
 the forms of pleading, proceeding, and judgment, which it 
 is deemed unnecessary to state here in detail. 
 
 Section III. 
 
 SCIRE FACIAS. 
 
 A scire facias was a judicial writ, founded upon some 
 record, issuing out of the court where the record was, and 
 calling upon the defendant to show cause why the plaintiff 
 should not have some benefit of the record. 
 
 An exception to this, perhaps, was the case of a scire 
 facias to repeal letters patent. 
 
 The scire facias issued for various purposes. la some 
 cases it was an original proceeding or new action ; in others 
 it was merely a continuation of an original action. Of the 
 former kind was the sci. fa. against bail ; of the latter, the 
 sci. fa. to revive a judgment, after a year and a day or the 
 death, marriage, or bankruptcy of parties, or, on a judgment 
 on bond, to recover for further breaches. 
 
 When a year and a day had elapsed after judgment was 
 signed, without execution being issued, the law presumed 
 it satisfied until an opportunity was given to the defendant 
 to show why execution should not issue, by the writ of scire 
 facias. 
 
 So, if the death of either party occurred at certain stages of 
 tfie action, as will be elsewhere more fully explained, a scire 
 facias was necessary to revive the action, by or against the 
 representatives of the deceased. 
 
 The same thing occurred upon the marriage of a feme 
 sole, party to the suit, and sometimes upon the bankruptcy 
 of a party. • 
 
 We have also seen, that where a judgment was rendered 
 for the penalty of a bond given to secure the performance of 
 covenants, it stood as security for damages that might enure 
 from future breaches. When such new breaches occurred, a 
 
SCIRE FACIAS. 201 
 
 scire facias on the judgment, suggesting the breaches and 
 requiring the defendant to show cause whj' execution should 
 not issue for the new damages, was necessary. 
 
 This was also the proceeding against special bail, on their 
 recognizance, when it was forfeited. 
 
 There were various other cases, unnecessary to mention 
 here, in which tliis proceeding, more or less modified in 
 form, was resorted to. 
 
 The writ of scire facias was always sued out of the court 
 where the record was supposed to remain. It was a judicial 
 and not an original writ. 
 
 In form, after a recital of the record on which it was 
 founded, it commanded the sherifi", by good and lawful men 
 of his bailiwick, to make known to the defendant, to be and 
 appear before the court, on a day named, to show, if he 
 has or knows anything, why the plaintiff should not have 
 execution against the said defendant, for the damages, etc., 
 according to the form and eft'ect of the judgment, or recog- 
 nizance, etc. ; and further, to do and receive what the court 
 should then and there consider, etc. 
 
 The writ was required to pursue strictly the terms of the 
 record, on which it was founded. On a judgment against 
 two, a scire facias could not issue against one, but with a 
 recognizance of bail it was different, because that was joint 
 and several. So, a scire facias for the non-performance of a 
 single promise, where the judgment was upon several prom- 
 ises, was held bad. And so, where a judgment was for 
 assets, quando acciderint, a scire facias, seeking execution of 
 assets generally, instead of such as had come to the execu- 
 tor's hands since the former judgment, was held bad. 
 
 In the case of a scire facias to revive a judgment, it was 
 sometimes necessary to ask leave of the court to sue it out. 
 At any time, within seven years after the signing of the 
 judgment, it might be issued, as matter of course. 
 
 After seven and within ten years, a side bar rule had to 
 be obtained. After ten years, a motion in court, supported 
 by affidavit, that the judgment was still unsatisfied, was 
 necessary. After fifteen years, the court would only grant 
 a rule nisi. 
 
202 COMMON LAW PRACTICE. 
 
 The writ was tested, if against bail, on the retarii day or 
 quarto die post of the capias ad satisfaciendum; and if on 
 a judgment, on any day of the term in which the judgment 
 was rendered, or of any subsequent term, and was made 
 returnable on some general return day, or some day certain, 
 of the regular term. 
 
 The action of scire facias was commenced by making out 
 a praecipe for the writ in the usual way, whereupon it was 
 issued by the filacer. It was then taken to the sheriff's 
 office, and a warrant made out to summon the defendant. 
 He was summoned by leaving with him a copy of the war- 
 rant. The summons was made at any time before, or even 
 on, the return day, and the service was returned by the 
 sheriff by the words "scire feci." If the sheriff' returned 
 " scire feci," a rule to appear was left with the clerk of the 
 rules, and if no appearance was entered, the plaintiff might 
 sign judgment. This judgment was conclusive, and de- 
 fendant could never afterwards avail himself of any matter 
 wliicli he might have pleaded. 
 
 If the defendant was not found, the sheriff returned "ni- 
 hil," i. e., that the defendant had nothing in his bailiwick 
 where or by which he could give him notice, as by the writ 
 he was commanded, and that he was not found in the same. 
 
 Upon this an alias scire facias was issued, and if this was 
 also returned "nihil," the two niiiils were considered equiva- 
 lent to service, and the plaintiff might proceed to sign judg- 
 ment, as in case of actual service. But in this case the de- 
 fendant might have the benefit of any defense he might have 
 made to the scire facias, either on an audita querela or on 
 motion to the court, or even on application to a judge at 
 chambers. 
 
 On a scire facias or judgment against two, if " nihil" was 
 returned as to one, or that he was dead, and the other was 
 returned "summoned," and made default, the plaintiff was 
 entitled to judgment against the latter for the entire amount. 
 
 Where "nihil" was returned to a scire facias against per- 
 sonal representatives, to revive a judgment, the plaintiff 
 might sue out a testatum sci. fa. against the heirs and terre 
 tenants. 
 
. SCIRE FACIAS. 203 
 
 The appearance of the defendant was entered 
 in the usual way; after which the plaintiff filed pp^*™""®- 
 his declaration and demanded a plea, and went to issue, as 
 in other cases. 
 
 The jury could not give damages for the delay in the issue 
 of execution, as they did for delay in the payment of a debt. 
 
 The judgment, in scire facias, was, that the plaintiff have 
 his execution against the defendant, of the damages, or debt 
 and damages, according to the force and effect of the judg- 
 ment or recognizance, as the case might be. 
 
 After the revival of a judgment by scire facias, if a year 
 and a day elapsed without the issue of an execution, it was 
 necessary to issue a new scire facias, and revive the judg- 
 ment again, before execution could be sued out. 
 
 In Maryland, the scire facias issued out of the court where 
 the record was, directed to the sheriff of the county. The 
 sheriff's returns were the same as at common law. The 
 service was effected by verbally informing the defendant of 
 the writ through a deputy sheriff, in presence of another, 
 and these two were the witnesses named in the return. The 
 appearance was compelled only by entering a fiat or judg- 
 ment in case of default, but it was readily stricken out, and 
 an appearance allowed during the appearance term. 
 
 In this State, too, as in others, a scire facias has been the 
 usual remedy against a corporation to enforce a forfeiture 
 of its charter for non user or abuse. Evans's Pr., 54, 415. 
 
 !N^o declaration was filed, but the defendant pleaded to the 
 writ, and vul tiel record wa^ considered the general issue, but 
 any sufficient matter in discharge could be pleaded. 
 
 The writ was held not amendable. It was usual to crave 
 oyer of the writ in pleading, though the. writ was already 
 part of the record. The form of the judgment remained 
 substantially the same as under the English practice. 
 
 Inasmnch as & fieri fadas in Maryland could be levied on 
 land, a scire facias, to revive a judgment obtained against a 
 person in his lifetime, issued, after his death, against his heirs 
 and terre tenants, as well as his personal representatives. 
 
 Whether such scire facias ought to issue against an alienee 
 
204 COMMON LAW PRACTICE. 
 
 after judgment was not clearly settled. The latest decision 
 was in the negative, Evans's Pr., 86, 92, 109, 171. 
 
 
 Section IV. 
 
 CERTIORARI. 
 
 The removal of causes from an inferior to a superior court, 
 
 where a writ of error did not lie, was effected through a 
 
 writ of certiorari or habeas corpus, where the inferior court 
 
 was one of record, and through a writ of fone, recordari fur- 
 
 ' cias loquelam or accedas ad curiam., where it was not a court 
 
 ' of recordZ^^''^^''-'5^^/-^^^'"'*'**-2'^'''^''^ -rea,.^/- i->-&^'at 
 
 We have already seen the use of this writ as an incidental 
 proceeding, where, upon a writ of error, diminution of the 
 record was suggested. 
 
 As an original proceeding, and as a civil remedy, the writ 
 issued from the Chancery or the King's Bench principally 
 in two classes of cases, viz., wliere the inferior court was 
 alleged to be exceeding its jurisdiction, and when the supe- 
 rior court had concurrent jurisdiction with it. 
 
 The writ commanded the inferior court to certify, to the 
 other, the record of the proceeding pending before it. If it 
 failed to do so, an alias and a pluries issued, and if good 
 cause was not shown for not doing it, an attachment followed. 
 
 The writ would not issue where the inferior court had 
 exclusive jurisdiction. 
 
 If that court, however, proceeded to act in excess of its 
 jurisdiction, or in a manner contrary to the rules of the 
 common law, the -writ would issue, although the superior 
 court could not determine the cause, for the purpose of ar- 
 resting the proceedings. 
 
 As a general rule, the writ could only issue before judg- 
 ment in the inferior court and for the purpose of preventing 
 judgment, and if such judgment was returned, no further 
 proceeding could be had. But where the inferior court pro- 
 ceeded in a summary way, and not according to the course 
 
CEETIOEARI. 205 
 
 of the common law, it waa held that tlie writ might issue 
 even after judgment. It was also allowed in some cases of 
 necessity, as where the inferior court refused to issue execu- 
 tion. On the removal of the record into the King's Bench, 
 that court could award execution. 
 
 The writ, when the ohject was to remove a cause for pro- 
 ceedings in the court above, required the record itself, with 
 all things touching it, to be certified, and not the tenor of it. 
 
 If the writ was bad in law, the court would quash it if 
 before them, or grant a supersedeas if it had not been re- 
 turned. 
 
 Sometimes a habeas corpus was resorted to, instead of a 
 ccrft'orarz, where the petitioner had been arrested on a capias, 
 his removal to the superior court being held to supersede 
 the jurisdiction of the other. 
 
 As soon as the writ was served, it suspended the power 
 of the inferior court to proceed, and any further action by 
 it was void in law, and subjected the judges to punishment 
 for contempt. 
 
 It was the duty of the officers forthwith to send up the 
 record, and non-payment of fees or charges was no excuse 
 for not doing it. 
 
 On the certiorari, the record itself was returned in the 
 condition in which the writ found it. On the habeas cor- 
 pus, the record was not sent, but the return contained an 
 account of the proceedings. 
 
 On the return of the certiorari or habeas corpus, the de- 
 fendant below was required to put in bail in the court above, 
 in cases where it was requii-ed in the court below, if de- 
 manded by the plaintift'. The latter might have a rule for 
 a procedendo, unless the bail was put in within a certain time. 
 The bail might be excepted to, and they justified as in other 
 cases. 
 
 Where the bail was not put in, a procedendo was awarded, 
 which removed the suspension created by the certiorari, and 
 directed the judges below to proceed in the cause. 
 
 Though the record itself was brought up by the certiorari 
 to the superior court, it did mot become a record of that 
 
206 COMMON LAW PRACTICE. 
 
 court; thei'e was no continuance from the inferior court to 
 that, and consequently that court did not take up the cause 
 from where the record left off, but began the whole proceed- 
 ing de novo, and the plaintiff was required to declare, as in 
 other actions. But the proceeding in the inferior court was 
 so far the commencement of the action, that if commenced 
 within the requisite time, it could be replied to a plea of the 
 statute of limitations in the superior court. 1 Tidd, 329-352. 
 
 In Maryland, the county courts having the jurisdiction of 
 the courts at the Westminster, have always assumed the 
 right to issue this writ. It might issue to justices of the 
 peace, the levy court, or orphan's court, or any board of 
 commissioners. All these inferior tribunals proceeded in a 
 summary way, and not according to the course of the com- 
 mon law. Consequently, the writ could issue as well after 
 as before judgment. 
 
 In certain summary proceedings between landlord and 
 tenant, the statutes expressly provided for a certiorari to" re- 
 move them into the county court, upon proper bond being 
 given by the party applying for the writ, to the adverse 
 party. 
 
 In all cases, the writ was obtained upon a petition verified 
 by affidavit. 
 
 The case of concurrent jurisdiction rarely existed in Mary- 
 land. Evans's Pr., 383-390. 
 
 In the District of Columbia the Supreme Court of the 
 District and justices of the peace have concurrent jurisdic- 
 tion in cases of small debts between $50 and $100 in amount, 
 and to such cases the English rule has been applied. 
 
 Section V. 
 
 HABEAS CORPUS. 
 
 At common law, and also by virtue of Magna Charta, a 
 habeas corpus could be procured from the Chancery, either 
 
HABEAS CORPUS. 207 
 
 in term time or vacation, in favor of one who was in confine- 
 ment on a criminal charge; but neither the King's Bench, 
 nor common pleas, nor a single judge, could issue it in va- 
 cation. 
 
 The habeas corpus act, 31 Car. II, ch. 2, was passed, in 
 part, to remedy this evil, and it required any judge or baron, 
 in vacation, in case of imprisonment for any criminal, or sup- 
 posed criminal matter, excepting cases of treason or felony 
 plainly and specially expressed in the warrant of commit- 
 ment, to issue the writ. 
 
 This, however, only applied to imprisonment for alleged 
 crime, and did not extend to detentions on other grounds. 
 These were not provided for by statute until the stat. 56 
 Geo. Ill, c. 100 was passed, which was too recent to have 
 any application in this country. 
 
 The stat. 31 Car. II enacted that any person committed 
 or detained for any crime, unless for felony or treason plainly 
 expressed in the warrant of commitment, or any one in his 
 behalf, might, in vacation, apply to the chancellor, or any 
 of the justices or barons who, upon view of the copy of the 
 warrant of commitment, or upon oath that it has been denied, was 
 authorized and required, on request made in writing by such 
 person, or any one in his behalf, attested and subscribed by two 
 witnesses who were present at' the delivery of the same, to award 
 the writ returnable immediately, etc. 
 
 Under this statute, a commitment by the House of Com- 
 mons for contempt, was held not to be for a crim.e. And so 
 of a commitment of a lunatic. 
 
 M'either at common law, nor under the statutes, was the 
 writ grantable as of course, on a mere petition. Under 
 both, the application had to be grounded on affidavifof a 
 probable reasonable ground of complaint, and that it was made 
 by, or on behalf of,- the person imprisoned. 
 
 And when made to a single justice, under the statute, it 
 was required, further, to be accompanied by a copy of the 
 warrant of commitment, or an oath that it had been denied. 
 
 At the time of moving, or applying for the habeas corpus, 
 
208 COMMON LAW PRACTICE. 
 
 it was usual to apply for a certiorari to the committiug magis- 
 trate to return the depositions taken before him, so that they 
 might be read with the commitment, and the court or judge 
 might form an opinion as to the nature of the alleged offence 
 and probable guilt of the prisoner. 
 
 The writ was addressed to the officer having custody of 
 the prisoner, and was subscribed by the judge awarding it. 
 "Without this, it perhaps might be disobeyed with impunity. 
 The return might be enforced by attachment, or a disobedi- 
 ence of the writ redressed by action or indictment. The 
 return was required to be under the hand and seal of the 
 officer to whom the writ was addressed. He set forth the 
 facts on which he relied, and stated that he had the body of 
 the prisoner before the court, or that he had it not in his 
 possession, etc., and could not produce it. 
 
 Upon the return, the prisoner's counsel might move to 
 have it filed, and to have the prisoner brought into court, 
 and the return and depositions read. 
 
 If it appeared from the return and depositions that no 
 offence had been committed, and that there was no ground 
 for the imprisonment, the court would at once discharge the 
 prisoner. 
 
 If a bailable offence was cle'arly charged, either in the 
 warrant or depositions, the party was discharged on bail. 
 
 Though the warrant were informal, the court would re- 
 mand on a special rule, or admit to bail, according to circum- 
 stances. If there was no commitment at all, but a corpus 
 delicti appeared from the depositions, the court would not 
 discharge, but would either hold to bail or commit to the 
 proper custody. 
 
 In strictly criminal cases it was held that the return could 
 not be controverted, though matter in confession and avoid- 
 ance might be relied on. But where the offence partook of 
 a civil nature, as where one was imprisoned on informatiim 
 in the exchequer for smuggling, it was held that the truth 
 of the return might be denied, 1 Chitty's Gen. Pr., 684-694. 
 
 As already mentioned, the application of the remedy of 
 
HABEAS CORPUS. 209 
 
 habeas corpus to coniinements or detentions on other grounds 
 than criminal charges, was provided for in England by a 
 statute which was not in force in this country, 56 Geo. III. 
 
 An act of Assembly of Maryland was passed in 1809 on 
 the same subject, which has no application in the District of 
 Columbia, and Federal legislation applies only to detention 
 on criminal charges. So that there does not seem to be any 
 direct authority of law for the use of this writ in the District 
 of Columbia, except in the last-mentioned class of cases. 
 Yet, in practice, it has been resorted to in all kinds of cases 
 to which it is elsewhere made applicable by statute. And it 
 is not certain whether it was not, in fact, even before direct 
 legislation in that direction, extended to all sorts of arrests 
 and detention, without any pretence of a criminal charge. 
 
 Whether this practice grew out of the statutes, or preceded 
 them, some general rules were settled in regard to it. 
 
 It was held, for example, that it must appear, in the appli- 
 cation for the writ, that the party for whose benetit it was 
 sought, was detained against his or her will, and illegally. 
 Where there was doubt as to a married woman, the court 
 have ordered a private examination. Where a husband has 
 sought the writ to bring his wife before the court, he lias been 
 required to make affidavit that she was detained against her 
 will, and when she was before the court, she was not com- 
 mitted to his custody, but discharged. And a wife has been 
 entitled to this writ against her husband. 
 
 The writ has been resorted to by parents, to obtain the 
 custody of their children illegally detained from them. 
 Where a child was too young to exercise a choice, the court, 
 on a habeas corpus, would commit it to the proper custody. 
 If it was old enough to choose for itself, the court generally 
 discharged the child. Questions between husband and wife 
 who were separated, as to the custody of children, were often 
 determined on habeas corpus. 
 
 These cases were an exception to the general rule which 
 seemed to be recognized, that. a prisoner would not be com- 
 mitted to a new custodj', but either discharged or remanded, 
 or, in case of criminal charge, admitted to bail. Id. ; Evans's 
 Pr., 391-402. 
 
 14 
 
210 'COMMON LAW PRACTICE. 
 
 Section VL 
 
 mandamus. 
 
 A brief notice of the remedy of mandamus may be ap- 
 propriate. 
 
 The writ of mandamus was a command issuing from the 
 King's Bench, directed to some person, corporation, or in- 
 ferior court, requiring some particular thing to be done, 
 appertaining to his or its oifice or duty. It was not used for 
 the purpose of enforcing mere private rights, but generally, 
 to enforce some public duty, by an officer or corporate body, 
 in which the applicant for the writ was interested. 
 
 Thus, it would not issue to a trading corporation, for one 
 of its members, to compel it to produce accounts, with a view 
 to declaring a dividend, nor to compel a transfer of shares 
 of stock from one individual's name to another, nor to admit 
 to a private office or one determinable at pleasure; but it 
 would issue to compel admission to a corporate office, or to 
 ■compel an election to fill vacancies in corporate offices 
 where the corporation was of a public character and the 
 ■office was a legal and permanent one. 
 
 It would lie to an inferior court, to compel it to determine 
 a cause, but not to determine in a particular way.- 
 
 It would never lie where the thing sought to be enforced 
 was discretionary. 
 
 And it was a general rule that it could onlj' be resorted 
 •to in the absence of any other specific legal remedy. 
 
 The application was, in the first instance, for a rule to 
 ■show cause whj' a mandamus should not issue. This was 
 made by a petition, stating the facts supposed to give a right 
 to the writ, verified by oath. On proof of service of the rule, 
 if no cause was shown, the mandamus issued in the alter- 
 native form, commanding the defendant to do the thing 
 required, or show sufficient cause why he did not. To this 
 
PROCEEDINaS AGAINST CORPORATIONS. 211 
 
 he was bound to make a return or answer, and was liable to 
 attachment if he failed. 
 
 Besides this, either on his failure to make any retiirn, or 
 on his making an insufficient one, a peremptory mandamus 
 would issue, obedience to which was enforced by attach- 
 ment. 
 
 The return was required to be certain and complete, and 
 to have the same general characteristics as pleadings. If 
 defective, however, it might be amended. 
 
 It was to be made by the person to whom the writ was 
 addressed. 
 
 When the return was made and filed, motion misrht be 
 made to quash the writ for irregularity, as where several 
 parties claiming in diiFerent rights were joined in it, or it 
 was directed to a corporation by a wrong name, or a want 
 of jurisdiction appeared on the face of it. 
 
 It will be observed, that the same questions might be 
 raised on the answer to the rule to show cause as in the 
 return to the alternative mandamus, or, new facts not suffi- 
 ciently disclosed in the former might be introduced in the 
 latter. The same points might be raised with a view to 
 review by a superior court. If no such reasons existed, for 
 allowing the same questions to be raised twice, and the 
 whole case appeared on the answer to the rule, a more mod- 
 ern practice has been, in this country, to grant the peremp- 
 tory, without the alternative, mandamus. 
 
 As in some other cases, the return was conclusive in this 
 proceeding, and the remedy for a false return was an action 
 on the case. If the plaintiff" obtained a verdict in such a 
 case, he might afterwards obtain a peremptory mandamus. 
 1 Chitty's Pr., ch. 10; Evans's Pr., ch, 15. 
 
 Section VII. 
 
 PROCEEDINGS AGAINST CORPORATIONS. 
 
 Corporations could only sue or defend by attorney. The 
 proceedings in actions by them were the same as in actions 
 
212 COMMON LAW PRACTICE. 
 
 by individuals. But inasmuch as corporations could not be 
 arrested, actions against them were by original writ, sum- 
 mons, and distringas, and the appearance was only com- 
 pelled by repeated distress. 
 
 After appearance, the action proceeded to judgment, as 
 in other cases. 
 
 Section VIII. 
 
 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS. 
 
 An executor or administrator, bringing an action, was 
 not required, as one suing in his own right was, to swear 
 positively to the cause of action, in order to hold the defend- 
 ant to bail, but might swear accoi'ding to his belief. 
 
 The declaration was required to conform to the process, 
 so far, that upon process issued in his own right he could 
 not declare as executor, and vice versa. 
 
 If the verdict was for the plaintiff, costs followed as in other 
 actions. And if the cause of action arose after death of the 
 testator or intestate, whether it were a contract or tort, the 
 executor or administrator, suing, was liable for costs, as 
 other plaintiffs, though suing in his representative character. 
 
 If the verdict was for the defendant, the latter was not 
 entitled to costs against the executor or administrator, un- 
 less the cause of action accrued after the decedent's death 
 and the plaintiff might have brought the suit in his own 
 right. 
 
 The plaintiff was not liable, either, to the costs of a non- 
 suit, unless the action might have been brought in his own 
 right ; but he was liable to the costs of a non pros, or upon 
 a discontinuance, or for not proceeding to trial according to 
 notice, or if he knowingly brought a wrong action, or was 
 guilty of wilful default; otherwise not. 
 
 In actions against executors, or administrators, they could 
 not be held to bail, unless they had promised to pay the 
 debt of the deceased, or a devastavit was alleged and sworn 
 
EXECUTORS AND ADMINISTRATORS. 213 
 
 to, in which latter case, upon the special order of a judge, 
 bail might be exacted. 
 
 A judgment by default or confession, against the execu- 
 tor or administrator, was a confession by him of assets, and 
 estopped him from denying it afterwards, in an action on 
 the judgment, suggesting a devastavit. It was incumbent 
 on him to plead regularly, to the action, in order to avoid 
 this result. 
 
 If the defendant pleaded the general issue, it, of course, 
 put the plaintiff upon the proof of his claim, and if he was 
 successful he obtained judgment for assets, i. e., to be levied 
 de bonis testatoris in the defendant's hands. 
 
 If the defendant pleaded simply plene administravii, or plene 
 adminisiravit prosier, alone, the plaintiff might take issue upon 
 the plea, or confess it and take judgment for assets in fatui'O, 
 as to the first, or, upon the second, for th« assets admitted at 
 once, and for assets in futuro, as to the residue of his claim. 
 These pleas being an implied confession of judgment to 
 bind future assets, the plaintiff could only sign interlocutory 
 judgment, and then take his writ of inquiry, which was fol- 
 lowed by judgment of assets quando acciderint. When assets 
 afterwards came to hand, the plaintiff proceeded against them 
 by scire facias on his judgment. On such a scire facias, no 
 evidence was admissible, of assets before the judgment, and 
 a scire facias could not be supported which prayed execution 
 of assets generally, instead of assets that came to defendant's 
 hands after the judgment. If the general issue was pleaded, 
 with one of the other pleas, the plaintiff might join issue on 
 both, or, in adding the similiter to the general issue, he 
 might confess the plea of plene administravit and pray 
 judgment of assets in futuro. If he then obtained a verdict, 
 he signed judgment of assets quando acciderint. 
 
 Judgments obtained by other creditors, before trial, were 
 matter for plea puis darrein continuance. 
 
 The ordinary judgment against an executor or adminis- 
 trator was, that the debt, etc., be levied de bonis testatoris, if 
 there be sufficient thereof in his hands to be administered, 
 and if not, that the costs be levied de bonis propriis. 
 
 If verdict was found for plaintiff on both the general issue 
 
214 e&MMON LAW PRACTICE. 
 
 and pleue administravit, it ia presumed that judgment was 
 d'e bonis propriis. The same was tlie case where the action 
 was brought with a suggestion of a devastavit, but not where 
 it was brought against an executor of an executor, suggest- 
 ing a devastavit bj the former. 
 
 Where the executor was sued as assignee, the judgment 
 was de bonis propriis. 
 
 "Where he pleaded judgments obtained against himself, 
 which the plaintiff avoided by pleading, the judgment was 
 also de bonis propriis. 
 
 Judgment on demurrer, nul tiel record, or by confession, 
 was interlocuitory or final, as in other cases. On interlocu- 
 tory judgment a writ of inquiry issued, as in other cases, 
 and final judgment was the same as on verdict. 
 
 On a verdict for an executor or administrator defendant, 
 he was entitled to costs, and the same if one of several issues 
 was found for him^ &s plene adminislravit,vih\\e the general 
 issue was fournd against him. But where the plaintiff con- 
 fessed the plene administravit, and prayed judgment of assets 
 in futurOy and obtained a verdict on the general issue, he 
 was beM entitled to costs. 
 
 If the executor or administrator pleaded a false plea, he 
 was liable, it seems, to costs de bonis propriis, but ordinarily 
 they were to be so levied only in case there were not goods 
 of the deceased sufficient to answer them. 2 Arch. Pr., 130- 
 135; 2 Tidd, 893-1017. 
 
 Section IX. 
 
 ACTION AGAINST HEIR ON EONI> OF ANCESTOR. 
 
 The heir was liable for the bond defet of the ancestor to the 
 extent of assets descended^ even if he aliened the land be- 
 fore suit brought, and he was sued in the debet and detinet. 
 
 While only half the land could be taken under an elegit 
 in the ancestor's lifetime, in a suit against the heir the whole 
 of the descended land was liable. Under statute 3 W. & M., 
 eh. 14,, the heir became personally liable to the extent of the 
 
ACTION ASAINST HEIR ON BOND OF ANCESTOR. 215 
 
 assets descended, if he aliened them, but a bona fide par- 
 chaser was not affected. 
 
 If under age at the time, the heir might pray that the pa- 
 rol should demur until he became of age. 
 
 The defendant might plead, in addition to defenses which 
 the ancestor had, that he was not heir, that he had paid 
 other bond or judgment creditors, to the full value of the 
 land descended, before commencement of the action, or was 
 retaining for that purpose, or for his own bond or judgment 
 debt, or that he had nothing but a reversion after a life es- 
 tate, in which case the plaintiff might take judgment of as- 
 sets quando acciderint, and afterwards proceed by scire facias 
 when the life estate expired. If the reversion was after a 
 terra of years, the freehold being in the defendant, he was 
 bound to confess assets to the value of the reversion. 
 
 If the defendant had no defense personal to himself,, and 
 none showing that the plaintiff had no cause of action, it was 
 expedient for him to confess the action, and show the extent 
 of the assets descended. For if he took issue on. the quan- 
 tity of the assets descended, or pleaded what he knew to be 
 false, or payment by a co-obligor, etc., and it was found 
 against him, judgment went against him for the whole debt,, 
 damages, and costs, as if for his own debt. An exception 
 to the rule was the plea of non estfaotum. If this was found 
 false, still judgment went only for the lands descended'.. 
 
 If plaintiff took issue on the plea of riensper discent, an^ 
 had a verdict, he was entitled to a general common-law 
 judgment against the defendant; hut where to a plea of 
 riens per discent at the time of the writ being sued out, the 
 plaintiff replied that defendant, had assets descended before 
 that, and issue joined thereon was found for him, thejury^ 
 under the statute 3 and 4 W. & M., ch.5, were to inquire of 
 the value of the lands descended,, and the plaintiff" to. ha\re- 
 judgment of them. 
 
 The judgment, therefore, was special', viz., that the plain- 
 tiff' recover his debt, etc., to be levied of the lands descended,, 
 when the defendant pleaded non est factum, or confessed the 
 action, and showed with certainty the assets descended; but 
 upon verdict for plaintiff on the issue made on riens per disr 
 
216 COMMON LAW PRACTICE. 
 
 cent, or demurrer, or default, or confession without showing 
 the assets certainly, the judgment was general as for the de- 
 fendant's own debt, unless tlie plaintiff elected to have it 
 special. The plaintiff was also allowed to have a general 
 judgment where it otherwise would be special, by showing 
 that the defendant had already received profits from the 
 estate to the amount of the debt. 
 
 An action against a devisee was proceeded with in the 
 same manner as the action against the heir. 2 Arch. Pr., 
 138; 2 Tidd, 853. 
 
 In Maryland and the District of Columbia, in suits against 
 executors or administrators upon a debt or other liability of 
 the decedent, the judgment was interlocutory, /o?- assets, and 
 was so entered, in short, on the docket, though when ex- 
 tended it was in the same form as in the English practice. 2 
 Harris's Entries, p. 348, etc. The case was referred to an 
 auditor to report upon the assets, and if his report showed 
 assets, the final judgment was de bonis propriis. This was 
 also the first judgment when assets were admitted. 
 
 Under an act of Assembly of Maryland of 1798, ch. 101, 
 sub-ch. 8, sec. 5, executors and administrators were to re- 
 cover, and be liable for, costs, as other persons, and were to 
 be allowed for costs paid, in their accounts, upon certificate 
 from the court, of probable cause for suing or defending, etc. 
 
 Section X. 
 
 ACTIONS BY AND AGAINST INFANTS. 
 
 In an action by an infant, the process was first sued out 
 in the name of the infant before the appointment of a pro- 
 chein ami or guardian. 
 
 He could not prosecute the suit, however, either in per- 
 son or by attorney. For this reason he could not sue as 
 informer under the penal statutes, an act of 18 Eliz., ch. 5, 
 requiring all informers to sue in proper person. 
 
 If he sued by attorney, defendant might plead it in abate- 
 
ACTIONS BY AND AGAINST INFANTS. 217 
 
 ment. Where, however, an infant was one of several ex- 
 ecutors, the others being of age, they could sue by attorney, 
 the adults appointing the attorney for themselves and him. 
 
 If the lessor of the plaintiff in ejectment was an infant, the 
 legal plaintiff being fictitious, the defendant, after pleading, 
 might move to stay proceedings until a guardian was ap- 
 pointed to answer for the costs. 
 
 When the action was brought, the infant, with the in- 
 tended prochein ami or guardian, attended at chambers, 
 and procured a rule admitting the prochein ami, or guard- 
 ian, to prosecute the action, or all actions, for the infant, 
 and a copy of this rule was annexed to the declaration be- 
 fore it was delivered. 
 
 If the prochein ami could not attend in person, a petition 
 was addressed to the judge, with the written agreement of 
 the prochein ami to act, the signatures to both being veri- 
 fied by affidavit. 
 
 The prochein ami, or guardian, could not be removed by 
 the infant himself, but might be by the court, on application. 
 Such change made pending the action was required to be 
 noted on the roll. The declaration stated that the prochein 
 ami, etc., was admitted by the court to prosecute. The 
 omission of this was considered error. 
 
 The defendant was entitled to know the place of residence 
 of the prochein ami or guardian, and if he was not a respon- 
 sible person, to have another appointed in his stead. 
 
 Where the defendant was entitled to costs, he had the 
 right to proceed against the prochein ami or guardian for 
 them, by attachment, or might sue out execution for them 
 against the infant himself, and this, whether he sued by pro- 
 chein ami, etc., or not. 
 
 In an action against an infant, he was not to be held to 
 bail for any cause of action against which infancy was a de- 
 fense. Yet if he was held to bail, he was required to plead 
 his infancy, and was not discharged on common bail. 
 
 It was error for the infant to appear by attorney, even 
 where he was one of several, and though they were sued as 
 executors. He could only appear by guardian. 
 
218 COMMON LAW PRACTICE. 
 
 If the defendant appeared by attorney, and the plaintifi 
 knew him to be an infant, he could obtain an order of the 
 court that the appearance be set aside, and that the defend- 
 ant should appear by guardian, and this could be done at 
 any time before judgment. 
 
 The guardian was appointed for an infant defendant in 
 the same manner as the guardian or procheiu ami was ap- 
 pointed for an infant plaintiff, and a copy of the rule for his 
 appointment was to be annexed to the plea before it was 
 filed or delivered. 
 
 N'otwithstauding the appointment of a guardian, the in- 
 fant defendant was liable for costs. 
 
 Section XI. 
 
 ACTIONS BY AND AGAINST HUSBAND AND WIEE. 
 
 There are no peculiarities i-equired to be noticed here in 
 actions by husband and wife. 
 
 In actions against husband and wife, as before seen, the 
 husband only could be arrested in bailable actions, and was 
 required to give bail for both himself and wife. 
 
 In non-bailable actions, service of the process on the hus- 
 band was sufficient for both. 
 
 If a feme covert was arrested, whether upon process 
 against her and her husband, or against her alone, she was 
 ordinarily entitled to be discharged upon filing common 
 bail. 
 
 If a feme covert was sued alone, she could only appear in 
 proper person, and not by attorney. If she and her hus- 
 band were sued jointly, they could appear by attorney, as 
 the husband was capable of appointing an attorney for both. 
 
 If the feme covert was sued without her husband, she 
 could plead the coverture in abatement or bar, according to 
 circumstances, or assign it for error on a writ of error coram 
 nobis. 
 
 The further proceedings to judgment were the same as in 
 ordinary cases. 2 Arch. Pr., 143-148. 
 
ACTIONS AGAINST JUSTICES OF THE PEACE. 219 
 
 Section XII. 
 
 Idiots and lunatics were liable to be arrested and held to 
 bail in the same manner as other persons, under like circum- 
 stances. They were not entitled to discharge from custody 
 on accouat of insanity, nor did that circumstance discharge 
 their bail, but the latter were bound to render them. An 
 idiot, whether plaintiff or defendant, appeared in person, 
 and any friend might then be admitted to prosecute or de- 
 fend for him. 
 
 A lunatic sued and defended as other persons, by attorney 
 or in person, if of age, and by procheiu ami or guardian if 
 a minor. Id. 149. 
 
 ■Section XIII. 
 
 ACTIONS AGAISrST JUSTICES OF THE PEACE. 
 
 By statute 24 George II, ch. 44, § 8, before an action could 
 be commenced against a justice of the peace for anything 
 done by him in the execution of his duty, or against a con- 
 stable or other person acting in his aid, the plaintiff was 
 required, one calendar month at least before suing out the 
 writ, to deliver him a wi-itten notice of the intended writ, 
 stating explicitly the cause of action, etc. The officer might 
 tender amends before action brought, and plead such tender, 
 with the general issue or other plea, with leave of the court. 
 The plaintiff was bound to prove the notice, and was re- 
 stricted in his proof, to the cause of action mentioned in it, 
 as he was by a bill of particulars. Id. 150. 
 
 This statute, as far as it related to justices of the peace, 
 was considered applicable in Maryland. 
 
220 COMMON LAW PRACTICE. 
 
 Section XIV. 
 
 ACTIONS BY PAUPERS. 
 
 Under an old statute of 11 Henry VII, ch. 12, every poor 
 person was entitled to a writ suitable to his cause of action, 
 without having to pay costs or fe*s, and it was made the 
 duty of the court to assign attorney and counsel for him, 
 who were bound to serve him gratis, as were the officers of 
 the court. The party was required to swear that he was 
 not worth £5, excepting his wearing apparel and the matter 
 in controversy. 
 
 This was called suing in forma pauperis, and it was dis- 
 cretionary with the court whether to permit it or not. It 
 was granted at any stage of a suit, and was confined to 
 plaintifit's, and was denied in such actions as slander, etc. 
 The privilege was confined to the single action in which it 
 was specially allowed. 
 
 The order for the plaintiff's admission was obtained either 
 by motion in court or on petition to the chief justice, stating 
 the cause of action, verified by affidavit, and accompanied 
 with the opinion of counsel that the plaintiff had a good 
 cause of action. The order or rule was made out by the 
 judge's clerk, and it entitled the plaintiff to carry his action 
 through all its stages without paying fees. It was, how- 
 ever, for his benefit only, and if he recovered judgment, his 
 attorney and counsel were entitled to have their usual fees 
 included in the taxation of costs, to be recovered from the 
 defendant. 
 
 A pauper plaintiff was entitled to recover costs from the 
 defendant, but was not bound to pay them. But for laches 
 or misbehavior, the court could dispauper him, and leave 
 him liable to all costs accruing thereafter. Id. 154, 5. 
 
 The statute in question was considered applicable in Mary- 
 land. Alexander's Brit. Stat., 780. 
 
MOTIONS AND RULES, 221 
 
 CHAPTER VIII. 
 
 INCIDENTAL AND COLLATERAL PEOCEEDINGS. 
 
 Section I. 
 
 The regular progress of a cause has now been traced from 
 the original writ to judgment and execution. 
 
 But various incidental and collateral proceedings may arise 
 pending the suit, which grow out of and are connected with 
 it, but are outside of the regular order that has thus far been 
 detailed. 
 
 These it is important to explain. 
 
 The first subject of this kind, to which attention will be 
 called, is that of 
 
 MOTIONS AND RULES. 
 
 Every motion is an application to the court to pass some 
 order or rule. 
 
 There were many rules which could be obtained without 
 motion in court. 
 
 Upon a judge's order, or fiat , rules could be obtained for 
 admitting an infant to sue by prochein ami or guardian, or 
 to defend by guardian. > n.^ ^"^^.^-wl. J^A^a^^.c^-i^ 
 
 Upon a "similar" mere order, could be ob- Rules obtained s 
 tained, from the clerk of the rules, a rule to from the clerk. ? 
 plead, to avow in replevin, to appear to a scire facias, for 
 judgment on a postea, or after a writ of inquiry executed, 
 or on scire facias, or on demurrer, etc. 
 
 So with jules formerly applied for at the side bar in court, 
 but afterwards obtained of the clerk of the rules on a prae- 
 cipe, such as, that the sheriff return the writ or bring in the 
 
222 COMlVtON LAW PRACTICE. 
 
 body ; for time to declai'e ; for special imparlance ; for leave 
 to discontinue before verdict; or the consent rule in eject- 
 ment, etc.; as, also, the ordinary rules to declare, to plead, 
 to reply, rejoin, etc.; to enter the issue; to join in demurrer; 
 to produce the record on the plea of nul tiel record, etc. 
 
 Euies Ob- But the rules which were obtained on motion 
 taxned on ^g^,g c]agged Under several heads. The first were 
 
 written 
 
 motion, those which were granted on written motion, signed 
 by counsel, without any motion being actually made in 
 court, such as, that defendant may plead several matters; 
 that he may pay money into court; for a concilium or judg- 
 ment on demurrer; for a special jury ; for a view in trespass; 
 that the landlord be admitted to defend, instead of the tenant 
 in ejectment; for judgment against the casual ejector; for a 
 scire facias to revive a judgment more than ten and less than 
 fifteen years old, etc. 
 
 Euiesof The second class was of those for which applica- 
 course j-j^j^ must havc been made in court, but which were 
 
 moved for ' 
 
 incourt. granted as a matter of course, and it was not nec- 
 essary to make it viva voce, but sufficient to hand the 
 motion paper, signed by the counsel, to the clerk. Exam- 
 ples of these were rules, that money deposited with the 
 sheriff in the place of bail, be paid to the plaintiff"; that bail 
 justify; to declare peremptorily; to change the venue; to 
 refer it to a master to compute principal and interest of a 
 bill of exchange; to have witnesses examined on interroga- 
 tories; for judgment as in case of non-suit; for costs for not 
 proceeding to trial or inquiry; to make a submission to arbi- 
 tration a rule of court; for a sci. fa. to revive a judgment 
 more than fifteen years old. 
 
 Euics.obtained "^he third class was of rules applied for in 
 
 on viva voce court, the grounds of which were not required 
 
 ™° '™' to be stated in the motion paper, but might be 
 
 briefly stated, viva voce, by counsel, but which were not 
 
 wholly of course. Such were rules, that plaintiff' might sue 
 
 out a distringas; for a habeas corpus ad respondendum; for 
 
MOTIONS AND KTJLBS. 223 
 
 leave to compound penal actions; for a general special im- 
 parlance ; that defendant might withdraw the general issue 
 and plead de novo with notice of set-off"; for leave to in- 
 spect copies of books, etc., and to have them produced at 
 trial; to discharge an insolvent debtor; to make a rule nisi 
 absolute on affidavit of service, no cause being shown; for 
 judgment on demurrer when not argued, etc. 
 
 The last class was of those which must be par- Rules ob- 
 ticularlj applied for, with a full statement of the '^j,°i„*^™ ^ 
 grounds of the motion, as shown by accompany- affidavit. 
 ing affidavits, and the court might grant or refuse the rule 
 at their discretion. 
 
 Among these were, rules that defendant might be dis- 
 charged on filing common bail ; that the bail-bond might be 
 delivered up to be cancelled; for further time to justify; 
 that service in ejectment on tenant's son, etc., on the prem- 
 ises be deemed good service; that superfluous counts be 
 struck out of the declaration; to consolidate actions; for 
 time to declare under special circumstances; for leave^to 
 withdraw general issue or a special plea, and plead specially ; 
 to add a plea; for a view in other actions than trespass; for 
 a trial at bar; for a change of venue; to postpone trial; to 
 stay proceedings in ejectment or replevin, on payment of 
 rent, or on payment of debt or costs, or until security be 
 given for costs, or until the costs o^ a prior action for the 
 same cause are paid, or in actions on bail-bonds, on terms; 
 to set aside a non pros, or judgment by default; to set aside 
 a verdict and have a new trial or the execution of a writ of 
 inquiry; for judgment non obstante veredicto; for leave to 
 amend after judgment; to arrest the judgment; for leave to 
 discontinue after verdict; to enter up judgment nunc pro 
 tunc; for leave to take out execution pending error; to set 
 aside an award or a judge's order; to make a rule absolute, 
 when cause is shown, etc. 
 
 These rules were either absolute in the first ^uie nisi 
 instance or nisi. ^""^ absolute. 
 
 Those granted by the clerk, upon the mere signature of 
 
224 COMMON LAW PRACTICE. 
 
 counsel, were absolute, and were drawn up b}' the attorney, 
 and filed in the office of the clerk of the rules, and a copy 
 served on the opposite attorney. 
 
 The other rules were sometimes one, and sometimes the 
 other. When they M'ere rmL service was made in the same 
 way. Where affidavits were necessar}', they were to be 
 ' made before the rule was moved for, and produced in court 
 at the time of making the motion, otherwise the rule was 
 not drawn up, or, if drawn up, was void. The rule nisi re- 
 quired the opposite party to show cause on some day 
 named. His appearance and showing cause was a waiver 
 of any irregularity in the service. The rule was or was not, 
 in the discretion of the court, to operate as a stay of pro- 
 ceedings until it was made absolute or discharged. Where 
 it did so operate, any proceedings in the cause, in the 
 meantime, would be set aside, on application to the court. 
 
 Where it was intended that the rule should so operate, 
 notice was sometimes given to the opposite party, in advance 
 of the application for the rule nisi, to save time and expense, 
 by giving him an opportunity of showing cause against it in 
 the first instance. When the rule nisi was obtained, an 
 accurate copy had to be served on the party affected by it, 
 either personally or by leaving it at his residence, with his 
 wife or servant, and to bring him into contempt, it was nec- 
 essary to deliver the copy to him personally and exhibit the 
 original to him. The court would enlarge the rule to a later 
 day, on application of either party, in its discretion. On 
 cause being shown against the rule, the mover was heard in 
 reply, and the rule made absolute or discharged. If no cause 
 was shown on the day appointed, motion might be made on 
 the following day, to make the rule absolute, on affidavit of 
 service. 2 Archb. Pr., p. 266-276. 
 
 The affidavits on which the motion was founded were to 
 be properly entitled in the cause, and to contain a full state- 
 ment of all the facts necessary to support the motion, as it 
 was a rule not to receive supplementary affidavits on showing^ 
 cause, except where they only tended to confirm what was 
 alleged and sworn when the rule was made. 
 
 Affidavits made on either side, after being used, were re- 
 
MOTIONS AND RULES. 225 
 
 quired to be filed with the clerk, so as to be used, if neces- 
 sary, as evidence, on an indictment for perjury. 1 Tidd, 
 450, 455. 
 
 The court, in making absolute or discharging the 
 rule, directed costs to be paid, either by the party ap- 
 plying or by the other, or they were silent about the costs, 
 in which last case each party paid his own, or they directed 
 the costs to abide the event of the suit. If the application 
 was to the favor of the court, the rule was commonly made 
 absolute, on payment of costs by the applicant. If the rule 
 was to set aside proceedings for irregularity, the opposite 
 party was generally, required to pay the costs. Id. 457. 
 
 A proceeding similar to the motion, in court, for summons 
 a rule, was the summons and order at chambers. In and order, 
 matters of minor importance, the opposite attorney could be 
 summoned to attend at a judge's chambers, to show cause 
 why an order should not be passed. An order passed, 
 either on cause shown or without it, was as effectual as a 
 rule granted by the court. 
 
 A few remarks upon affidavits will be appro- 
 
 ■^ -^ ^ AffidttTits. 
 
 priate. 
 
 Great particularity was required, in certain respects. If 
 there was a cause in court, in which an affidavit was to be 
 used, it was required to be entitled correctly in the cause, 
 stating the Christian names, as well as surnames of the 
 parties; otherwise, the court would not allow it to be read. 
 On the other hand, where there was no cause in courtj the 
 affidavit was not to be entitled, as in case of an affidavit to 
 hold to bail, and the court would perhaps have refused to 
 allow it to be used, if so entitled. It was sometimes a ques- 
 tion in what cause it ought to be entitled. An affidavit for 
 staying proceedings on a bail-bond was to be entitled in the 
 action against the bail, but if the judgment in the original 
 action had been obtained irregularly, one motion might be 
 made to set aside that judgment and the proceedings against 
 the bail, and the affidavit in support might be entitled in 
 
 15 
 
226 COMMON LAW PRACTICE. 
 
 the original action. The affidavit to found a motion for an 
 attachment was entitled in the original action, but after the 
 attachment was awarded, it was a criminal proceeding, and 
 affidavits, afterwards, as upon application to set aside the 
 attachment, were entitled "Rex v. A. B., etc." 
 
 The deponent's addition and place of abode were required 
 to be stated. The affidavit must have been made before 
 some officer authorized to take affidavits, to be used in the 
 ■court, and was required to he positive, aa to all matters within 
 the deponent's knowledge. 
 
 Defects were rarely aided. A defect, for example, in an 
 affidavit to hold to bail, could not be remedied by a supple- 
 mentary affidavit, but it was cured by the party's appear- 
 ance. And, as already stated, where a motion for a rule nisi 
 was made, upon certain affidavits, other affidavits were not 
 allowed to be used, when cause was shown, without leave of 
 the court, unless thej' merely confirmed what had already 
 been sworn. An exception to the rule excluding supple- 
 mentary affidavits has been allowed in the ease of affidavit 
 of service of declaration in ejectment. 2 Arch. Pr., 279, 
 282. 
 
 The general rule was, that the affidavits must be complete 
 at the time of applying for a rule. If a party, after moving, 
 discovered that they were defective, he might withdraw his 
 motion, and after amending and reswearing his affidavits, 
 renew it. 
 
 When a rule was discharged on account of the insuffi- 
 •ciency of the affidavits, a party was not generally allowed to 
 come again on additional or amended affidavits, unless on 
 leave of the court, which was sometimes granted, in case of 
 surprise or inadvertence. 
 
 Affidavits in opposition to a rule, defective in technical 
 ■matters, have been allowed to be amended and resworn. Id. ; 
 3 Chitty'sPr.,ch. 17. 
 
 In Maryland, the same particularity was not required, as 
 by the English practice. Where justice seemed to require 
 it, and also where a proceeding was begun by motion out- 
 side of anj' cause, as an application for a mandamus, the rule 
 
AMENDMENTS. 227 
 
 nisi was resorted to, and the regular course was the same as 
 at common law. But ordinary motions in a cause were, for 
 the most part, simply entered upon the docket, which was 
 of itself deemed notice to the other party. Evans's Pr., p. 
 267. 
 
 Section II. 
 
 AMENDMENTS. 
 
 At common law, the court could always amend the pro- 
 ceedings before judgment was signed. Up to that period 
 the proceedings were said to be in fieri, and in paper, not yet 
 recorded, and subject to the control of the court. Amend- 
 ments were allowed only in the discretion of the court, and 
 to further the ends of justice. 
 
 It was usual after demurrer, general or special, to allow 
 the party whose pleading was demurred to, an opportunity 
 to correct any error, and this even after the demurrer had 
 been argued, but before judgment upon it. But after one 
 amendment on demurrer, a party was not allowed to amend 
 again on a second demurrer. The privilege has been re- 
 fused in a qui tam action, in an action against bail, in hard,, 
 unconscionable actions, and where by the defendant's demur- 
 rer the plaintiff has lost a trial. 
 
 A party was allowed, under particular circumstances, to 
 withdraw a demurrer, and plead de novo, after argument. 
 
 This has been done also where there were several issues 
 of law and fact, even after argument of the issues of law, but 
 before trial of the issues of fact; but neither an amendment 
 nor a withdrawal of the demurrer was allowed where the 
 issues in fact were tried, and the contingent damages, as to 
 the demurrer, assessed. 
 
 After judgment was signed, there was no common law 
 power to amend. But by several ancient statutes the courts 
 were allowed to amend misprisions of the clerk in speliingj 
 and whatever seemed to be his misprision or mistake in any 
 recorii, process, plea, writ, panel, or return, that might be 
 
228 COMMON LAW PRACTICE, 
 
 before them, by error or otherwise, as well after as before 
 judgment, so that no judgment should be reversed because 
 of such misprisions. 
 
 statutes By virtue of several statutes running from the 
 
 of ieofaife. tijQg of Henry VIII to that of George I, called stat- 
 utes of jeofails, sundry defects were said to be aided. 
 
 Thus, the want of a warrant of attorney, or of an original 
 writ, or any defects therein, variances between it and the 
 declaration, mistakes and omissions in pleading, misjoining 
 of issue, miscontiiuiing, discontinuing, misawarding of jury 
 process, the omission of a capiatnr or misericordia on a judg- 
 ment, were said to be aided after a verdict, and the same 
 were aided after judgment by confession, nil dieit or nou 
 sum iuformatus, provided an original writ or warrant of 
 attorney, etc., were filed. 
 
 While the statutes sometimes in terms directed the amend- 
 ment to be made, the practice was simply to ignore the de- 
 fect, for which reason, costs were not allowed to the plaintift' 
 who prosecuted a writ of error for any of the defects aided 
 by these statutes. 
 
 Before judgment, in ordinary cases, the amendment would 
 .be made by a judge at chambers, upon a summons calling 
 on the opposite party to show cause why the applicant should 
 not have leave to amend. In other cases, the leave was ob^ 
 tained upon application to the court. 
 
 The judge at nisi prius, on application, would allow the 
 nisi prius record to be amended, if he was a judge of the 
 court in which the record was made up, provided the defect 
 was not in a material allegation, and was not one of which 
 the party was apprised, and which he might have corrected 
 before the trial. 
 
 After judgment, the application for leave to amend was not 
 generally entertained at chambers, but was required to be 
 made to the court, and only a rule nisi was granted. 
 
 After error, even to reverse a judgment of the King's 
 Bench, the application to' amend was made in that court, be- 
 cause the record remained there, and only a transcript was 
 
AMENDMENTS. 229 
 
 sent to the court of error. But after error to that, from an in- 
 ferior court, the application might have been made in either. 
 
 The court or judge giving leave to amend, could * 
 mipose terms on the party applying, to prevent the 
 opposite party from being prejudiced. 
 
 If the mistake arose froni the fault of the party applying, 
 leave was generally granted only on payment of costs, and 
 so likewise in other cases, except when the amendment was 
 made at the trial. If the amendment was made after error 
 brought, the leave was given only on condition of paying 
 the cost of the proceedings in error, provided the plaintiff 
 in error would proceed no farther. 
 
 It was a rule, that amendments under the statutes of amend- 
 ments could only be made when there was something to 
 amend by. But the original writ could be amended by the 
 praecipe, the declaration b}' the writ, the subsequent plead- 
 ings by the paper-book, the nisi prius roll by the plea roll, 
 the verdict by the plea roll, or notes of the judge or counsel, 
 or even by affidavit, the judgment by the verdict, and the 
 execution by the judgment. 
 
 Process could be amended for misprision of the 
 
 Proc6ss< 
 
 clerk, at any time. A capias ad respondendum could 
 
 be amended as to the names of parties, the teste, the return, 
 
 and the like. 
 
 Defects were sometimes waived by the acts of the opposite 
 party, so that amendment was unnecessary. 
 
 Thus, by entering an appearance and giving bail, a defend- 
 ant waived irregularities in the process or its service. 
 
 A mistake in a defendant's name in entering his appear- 
 ance has been amended by the writ. But a bailpieee the 
 court have refused to amend without consent of the bail, 
 while they have amended a recognizance on the application 
 of the bail. 
 
 The declaration could be amended, under the 
 
 „ . i 1 p ■ T , Declaration. 
 
 common law power or toe court, before judgment, 
 in the title, the names of parties, or in the substance. 
 
280 COMMON LAW PRACTICE. 
 
 In other than penal actions, new counts could be added. 
 Where a jury gave more damages than were claimed on the 
 declaration, the court, as we have seen, would, on the plain- 
 tiff's application, set aside the verdict and give a new trial, 
 with leave to amend by increasing the damages. They have 
 refused it, however, where the verdict was for the damages 
 claimed, subject to an award to be made. 
 
 Amendment has been allowed after plea in abatement, 
 issue joined, or the record taken down for trial and with- 
 drawn. A nonsuit has been set aside and an amendment 
 of the defect for which the nonsuit was given, allowed. 
 
 Before plea, the declaration might be amended without 
 costs, except those of the application. 
 
 After general issue pleaded, and before entry of the cause 
 for trial, an amendment in substance was allowed only on 
 payment of costs or giving an imparlance; an amendment 
 inform, without those conditions. 
 
 After special plea or demurrer, amendment could only be 
 had on payment of costs, and the defendant was entitled to 
 an imparlance. Declarations in ejectment could be amended 
 like others, before or after plea pleaded, as by changing the 
 demise, or description, etc. 
 
 Misprisions of the clerk as to the declaration could be 
 amended at any time. Want of form in the declaration, as 
 the omission of technical phraseology not affecting the right 
 of the matter, were cured, after verdict, by the statutes of 
 jeofails aforesaid. 
 
 Bill of If a bill of particulars was incorrect, the party 
 
 particulars, delivering it might have leave to amend it, and 
 the opposite party, if it was not sufficiently explicit, might 
 take out summons and obtain an order for further partic- 
 ulars. 
 
 Pleas and replications have been amended at any 
 
 Pleas, etc. . y, •' 
 
 time, even after a cause has gone down for trial, 
 and evfen after a verdict, by adding the similiter to the rep- 
 lication. 
 
 Amendment of replication after nonsuit has been refused, 
 
AMENDMENTS. 231 
 
 and so in hard actions, particularly after a demurrer argued; 
 and pleas in abatement have not been allowed to be amended. 
 Informalities in pleas and replications, like those in dec- 
 larations, were cured, after verdict, by the statutes of jeofails. 
 
 A writ of inquiry could be amended by the award of it on 
 the roll, and the want of it was said to be aided by the stat- 
 utes of jeofails. 
 
 The misjoining of issue, or informalities in it, such 
 as the omission of the similiter, its use by the wrong 
 party, etc., were aided by verdict. And even where the- 
 plaintiff, instead of taking issue on a rejoinder which con- 
 cluded with a verification, and concluding to the country, 
 added a similiter to it, the record was allowed to be amended 
 after verdict. An immaterial issue made by the pleadings, 
 however, was not aided, either at common law or by statute, 
 but the court would grant a repleader. 
 
 All defects in judicial writs, and all variance in 
 
 Vcnirs 
 
 them, from other proceedings in a cause, were cured 
 by the verdict. The rule was considered as including the 
 venire. Any defect in this, therefore, as an award of the 
 venire to the wrong officer, upon an insufficient suggestion, 
 or a mistake in the names of jurors in the return, the omis- 
 sion of the officer's signature, and, finally, even the absence 
 of any venire, were all cured by the verdict. 
 
 The nisi prius record could be amended from the issue 
 roll, even by adding the names of defendants which were 
 omitted, after verdict. Amendments were allowed even 
 when the cause was called, in matters not material. 
 
 The verdict could not be altered by the court, 
 
 , . (■ 1 Verdict. 
 
 except, as we have seen, in cases ot mayhem or 
 aggravated assault. But if a mistake was made in record- 
 ing the verdict, it could be amended by the judge's notes 
 or those of the clerk of assize, before judgment, at common 
 law, and after judgment by virtue of the statutes, where the 
 mistake was a clerical misprision. 
 
232 COMMON LAW PRACTICE. 
 
 Thus, where mere nominal damages were entered, instead 
 of the real damages, through a mistake as to the form of the 
 action, it was amended by the judge's notes. So, where 
 there were two pleas, and the verdict was entered in one 
 only and the other not noticed, it was amended, even after 
 a writ of error was sued out for this defect. The applica- 
 tion of the verdict, where there were several counts and the 
 verdict was general, has already been considered, as also the 
 mode of correcting the mistakes of the jury, by the plain- 
 tiff's own act, where they improperly severed the damages or 
 gave larger damages than were claimed in the declaration. 
 
 A special verdict could be amended by the judge's notes, 
 by the clerk's minutes, by notes of counsel, or even by affi- 
 davit, of what was proved at the trial. 
 
 A judgment could be amended at common law, 
 either in form or substance, at the same term in 
 which it was signed. 
 
 For misprision of the clerk, by virtue of the statutes of 
 jeofails, it could be amended afterwards, and even after 
 error brought. 
 
 Thus, where judgment de bonis propriis, instead of de 
 bonis testatoris, was entered against an executor, an amend- 
 ment was allowed after error. 
 
 The same was done, wJiere in debt on bond, judgment was 
 entered for the penalty as damages. So, where defendant 
 was found not guilty, as to part of the cause of action, but no 
 judgment was entered as to that part, the court allowed the 
 record to be amended by the verdict. A remittitur of the 
 excess of damages found, above those claimed in the decla- 
 ration, was allowed, after error. 
 
 The court have refused, however, to amend a judgment 
 entered on warrant of attorney, as to the names of defend- 
 ants, though it might have been amended by the warrant. 
 The same was the case where a joint judgment was entered 
 on several scire facias against bail, and the application was 
 made after the term at which it was entered. They have 
 also refused to allow an amendment of a judgment against 
 an executor, where it would be to his prejudice. 
 
AMENDMENTS. 233 
 
 A scire facias to revive a judgment was amend- 
 
 Scire facias. 
 
 able for misprisions, and a scire facias, where it 
 was an original proceeding, could be amended where an 
 original writ could. But amendments which would give 
 the bail farther time to render their principal were not 
 allowed, to a scire facias on a recognizance of bail. Where 
 an aniendment could not be had, if nul tiel record was 
 pleaded, the plaintiff's course was to move to quash the 
 writ. 
 
 After verdict, as after judgment by confession or default, 
 defects in the scire facias, in form or substance, were aided 
 by the statutes before referi-ed to. 
 
 At common law, a writ of error was not amend- writ of 
 able. But by 5 George I, ch. 13, it was enacted, that «"<"^- 
 all wi-its of error, wherein there should be any variance from 
 the original record, or other defect, should be amended and 
 made agreeable to such record, by the courts where the 
 wi'its of error should be made returnable. Consequently, 
 the writ has been amended by altering, striking out, and 
 even adding names, so as to conform to the judgment. But 
 where it appeared that the wi'it was made returnable before 
 the judgment was rendered, the fault could not be amended, 
 as it showed that the writ could not legally have issued at all. 
 
 The writ of error was amended in the court to which it 
 was returnable where the original record was taken up by 
 it, but in the court where the record remained, where only 
 a transcript was sent up with the writ of error; as, for in- 
 stance, where a writ of error was prosecuted from the King's 
 Bench to the Exchequer, the writ was amended in the former 
 court. 
 
 "Writs of execution could be amended for clerical 
 
 11 p r» Tx TT-x 1 Execution. 
 
 misprision, under the statute ot o Henry Vi, ch. 
 12. They have consequently been amended in the names 
 of parties, the amount, the return, etc., even after being 
 executed. But the amendment of a fi. fa. has been refused 
 whei-e it would prejudice the rights of third persons, as 
 where the defendant became bankrupt before sale of the 
 
234 COMMON LAW PRACTICE. 
 
 goods taken under execution. 2 Arch. Pr., 230-245 ; 1 Tidd, 
 ch. 30. 
 
 In the State of Maryland, the subject was simpli- 
 fied by an act of Assembly of 1785, which provided 
 that the courts should have power to order and allow amend- 
 ments to be made in all proceedings whatever, before verdict, 
 so as to bring the merits of the question between the parties 
 fairly to trial, and that if the amendment was made after the 
 jury vi'as sworn, a juror should be withdrawn, and that in 
 all cases where amendments were made, the adverse party 
 should have time to prepare to support his cause, and such 
 costs should be allowed the party against whom the amend- 
 ment was made, as the court should think just. 
 
 The words "before verdict" have been settled to mean a 
 conclusive verdict, so that, though several verdicts may be 
 set aside, the right to amend yet remained. The amend- 
 ment and withdrawal of a juror had the practical effect of 
 giving to the other party a continuance until the next terra, 
 to prepare to meet the new case made by the amendment. 
 
 It was held in Maryland, that this statute did not confer 
 the power of amending the capias, or, as it was called, the 
 original writ, as this would be making a new question 
 between the parties. But mere clerical errors could be 
 amended, as before the act passed. In this respect, the writ 
 could be amended by the titling or other paper on which it 
 issued. 
 
 The courts uniformly held the plea of the statute of limit- 
 ations an exception to the rule allowing amendments to 
 pleadings, on the ground that it was not a meritorious de- 
 fense. Evans's Pr., 246-8. 
 
 The courts of Maryland and the Supreme Court of the 
 United States have held, that a judgment could be amended 
 during the term at which it was rendered, for error of the 
 court; but for misprision of the clerk, or fraud, or irregu- 
 larity, at any reasonable time afterwards. Sadler v. Cox, 2 
 liar. & Gill, 879; Munnikuyzen v. Dorsett, Id. 377; Kemp 
 V. Cook, 18 Md., 139; Montgomery v. Murphy, 19 Id. 576; 
 Bank Kentucky v. Wistar, 3 Pet, 431; Ex parte Crenshaw, 
 
AMENDMENTS. 235 
 
 15 Pet., 119; The Palmyra, 12 Wheat., 1; Bank TJ. S. v. 
 Moss, 6 Harv., 38; Harris v. Hardemau, 14 Id. 334. 
 
 The subject of amendments in the Federal courts is pro- 
 vided for by several acts. 
 
 We have already seen that no defect of form in pleadings 
 or process can be made the ground of quashing or reversing 
 any proceeding, except when it is presented by special de- 
 murrer, and the courts are empowered to amend any de- 
 fects of form not so presented. " 
 
 They are further authorized to allow either party to amend 
 any defect, either of form or substance, on such conditions as 
 they shall, in their discretion and by their rules, prescribe. 
 Rev. Stat., sec. 954. 
 
 Any of the courts may, at any time, in its discretion, and 
 on such terms as it may deem just, allow an amendment of 
 any process returnable to or before it, where the defect has 
 not prejudiced, and the amendment will not injure the party 
 against whom such process issues. Id. 948. 
 
 The Supreme Court is authorized, in its discretion, and on 
 such terms as it may deem just, to allow an amendment of 
 a writ of error where there is a mistake in the teste of the 
 writ, or a seal to the writ is wanting, or where the writ is 
 made returnable on a day other than the day of the com- 
 mencement of the term next ensuing the issue of the writ, 
 or when the statement of the title of the action or parties 
 thereto in the writ is defective, if the defect can be reme- 
 died by reference to the accompanying record, and in all 
 other particulars of form ; provided the defect has not preju- 
 diced, and the amendment will not injure the defendant in 
 error. Id. sec. 1005. 
 
 Section III. 
 
 ENTERING PROCESS TO SAVE THE STATUTE OF LIMITATIONS. 
 
 It was customary to commence a suit without the inten- 
 tion of immediately prosecuting it to a conclusion, simply 
 
236 COMMON LAW PRACTICE. 
 
 to avoid the bar of the statute of limitations. The writ 
 was issued, as usual, and the sheriflf's return of "non est 
 inventus" was procured. The return was necessary, be- 
 cause, without it, continuances could not be entered unless 
 the plaintiff declared within a year after suing out the pro- 
 cess, in which case the entry of continuances was held not 
 necessary. 
 
 When, finally, the writ was actually issued and served, it 
 was in order to enter, on the record, continuances from term 
 to term by the entry " vice comes von rnisit breve," " the sheriflF 
 has not sent the writ." But they were not in fact entered 
 unless the defendant pleaded the statute of lirtiitations, or 
 until the plaintiff was about to reply to it. They were then 
 entered down to the writ actually served, and on which the 
 declaration was founded, if filed after service. 
 
 In order to be efl^'ectual, it was necessary that the writ 
 should be not only tested, but actually sued out before the 
 time limited for bringing the action had expired, and that 
 it should be such a writ as the plaintiff would use if he in- 
 tended immediately to proceed with the action. 
 
 Errors in the process which did not make it void were 
 not material. Even if voidable, it was sufficient to support 
 a continuance, and save the statute of limitations. 2 Arch. 
 Pr., 156, 7. 
 
 In Maryland and the District of Columbia this practice 
 has always been recognized so far, at least, that the entry 
 on the docket, at each term, " not come to hand," would 
 save the bar of the statute, where the writs were not actually 
 delivered. Evans's Pr., 104. 
 
 Section IV. 
 
 OUTLAWRY. 
 
 It is not deemed important to consider the proceeding of 
 outlawry in detail. 
 
 It is proper to observe, that if one of several defendants 
 was arrested, but the others could not be found, the plaintiff 
 
CHANGE OF VENUE. 237 
 
 could make nql progress in the cause against the one found, 
 and could not even declare against him, until he had pro- 
 ceeded to outlawry against the others. 
 
 The outlawry being completed, he could declare against 
 the one found, alone, stating the fact of the outlawry in the 
 declaration. 
 
 If the defendants appeared before outlawry completed, 
 the plaintiff" declared, as in ordinary actions by original 
 writ. 2 Arch. Pr., 158, 163. 
 
 In Maryland, the plaintiff" might renew his writ, from term 
 to term, against one of several parties who was returned non 
 est, and, at the same time, proceed against those who were 
 served and appeared. It was not considered obligatory to 
 renew the writ, and the return of "non est" was considered 
 as equivalent to outlawry in England, for the purpose of 
 enabling the plaintiff to proceed to judgment against those 
 iu court. / 
 
 If, upon a renewal of the writ, the other party was found, 
 it was usual to move to consolidate the actions thus begun 
 by two separate writs, into one, and the one most advanced 
 was thrown back, so to speak, so that the consolidated suit 
 occupied the position of the one least advanced towards a 
 trial. Evans's Pr., 244. 
 
 Section V. 
 
 CHANGE OP VENUE. 
 
 Local actions were required to be brought in the county 
 where the cause of action arose. 
 
 Transitory actions might be brought in any county, but 
 upon application to the court, and affidavit showing that the 
 cause arose in a diff"erent county from that where the action 
 was brought, the court would order the venue changed to 
 the county where it arose. The motion was of course, and 
 the rule granted, absolute. Upon service of the rule on the 
 adverse party's attorney, he would change his declaration. 
 
238 COMMON LAW PKACTICB. 
 
 The application was to be made within a limited time after 
 the declaration, and before pleading. 
 
 If the transitory action was brought iu the county where 
 the cause of action arose, the court would not change the 
 venue, unless a fair and impartial trial could not be had in 
 that county, or under other very special circumstances, or 
 by consent of the parties. 
 
 In local actions properly brought, where an impartial trial 
 could not be had in the county, it was more usual to move 
 for leave to enter a suggestion 'upou the issue, in order to 
 have a trial iu the adjoining county. 
 
 There were cases in which the venue would not be 
 changed, as where the cause of action arose in two coun- 
 ties, as a libel written in one and published in another. So 
 with actions on awards and covenants, actions against car- 
 riers, actions for escapes, false returns, etc. 
 
 When the venue was changed, upon the common affidavit 
 aforesaid, it was to the county where the cause of action 
 arose. When because a fair trial could not be had in the 
 original county, it was usually to the adjoining county. 
 When for other special causes, it was to such county as the 
 circumstances of the case required. 
 
 The plaintiff might move to discharge the rule and retain 
 the venue in the county in which it was laid, upon under- 
 taking to give material evidence at the trial, of some matter 
 in issue arising in the county, in which ease, if he failed to 
 give the evidence at the trial, he was nonsuit, or, without 
 such undertaking, under special circumstances, as where a 
 fair and impartial trial could not be had in the county to 
 which the trial had been changed, or the affidavit was de- 
 fective, etc. 
 
 The plaintiff could also have the venue changed, upon 
 showing sufficient grounds. 2 Arch. Pr., 175, 8. 
 
 In Maryland, the subject of a change of venue was pro- 
 vided for by legislation subsequent, in date, to the cession 
 of the District of Columbia, and in said District, when it 
 contained several counties, it was also regulated by express 
 law. 
 
CONSOLIDATINa ACTIONS. 239 
 
 Section VI. 
 striking out counts. 
 
 If the declaration contained superfluous and unnecessary 
 counts, involving the defendant in additional expense, the 
 court, on his application, would direct them to be struck 
 out, and if they were introduced apparently for the purpose 
 of vexation, would order the plaintiff to pay the costs of the 
 application. And if any one count contained unnecessary 
 and lengthy recitals, descriptions, etc., the court would grant 
 a rule on the plaintiff to show cause why they should not be 
 stricken out. If the matter complained of was scandalous, 
 or the superfluous matter so mixed with the rest as to be 
 difiicult to separate, the court would refer it to a master to 
 report upon, and act on his report. 
 
 It was requisite to make the motion before pleading. Id. 
 178. 
 
 Section YII. 
 
 consolidating actions. 
 
 If a plaintiff brought several actions against the same 
 defendant, for causes of action that might have been joined 
 in one suit, the court would compel the plaintiff" to consoli- 
 date them, and pay the costs of the application. "Where a 
 large number of ejectment suits had been brought on the 
 same title, the court stayed the proceedings in them, and 
 directed that they should abide the event of a special verdict 
 in another action on the same title. And in one case, three 
 separate actions against three persons for the same assault 
 were ordered to be consolidated, while in a similar case it 
 was refused. It was altogetherwithin the discretion of the 
 court. 
 
 Where several actions were brought by the plaintiff on 
 the same policy of insurance, against different underwriters, 
 the court, with the consent of the plaintiff, would order a 
 
240 COMMON LAW PRACTICE.! 
 
 stay of proceedings in all the actions bnt one, the defend- 
 ants undertaking to be bound by the verdict in that one, and 
 to pay if the plaintiff recovered. And if the plaintiff refused 
 his consent, the court would grant imparlances in all the 
 actions but one, until fhat one was determined, and it it was 
 determined in plaintift''s favor, would order a stay of further 
 proceedings, on payment by the defendants of their several 
 subscriptions and costs. 
 
 The application was made to the court in term time, or to 
 a judge in vacation, and there were separate rules or sum- 
 mons and orders, in each action. After verdict for plaintiff, 
 he obtained a rule nisi for judgment, and for libertj' to sue 
 out execution in all the actions, and wheu it was made ab- 
 solute, proceeded to sign judgment in them, as in other 
 cases. Id. 180. 
 
 In Maryland, this practice of consolidating was not in 
 vogue, except in the case before mentioned, of failure to 
 serve with process one of several defendants. Evans's Pr., 
 245. 
 
 V 
 
 Section VIII. 
 
 PAYMENT OF MONET INTO COUKT. 
 
 If the amount of a debt was disputed by a defendant, he 
 might pay into court what he admitted to be due, and the 
 plaintiff proceeded afterwards at his peril. 
 
 This was only where the .sum demanded was a liquidated 
 debt, and capable of being ascertained by computation. It 
 was allowed iu assumpsit, not on special contract, in debt for 
 rent, debt on special contract, or on a policy of insurance. 
 It was allowed in actions against carriers, where their liabil- 
 ity was limited to a certain amount which was paid in, but 
 not in assumpsit against them for injury to goods. It was 
 allowed in covenant where the breach was the non-payment 
 of money. 
 
 It was not allowed in debt on a record, or a specialty, be- 
 cause there was no room for a departure, by the jury from 
 
PAYMENT OF MONET INTO COURT. 241 
 
 the amount fixed by it. It'was not allowed in trespass, ex- 
 cept in actions against justices, etc., by virtue of the statute 
 before referred to, nor in trespass for mesne profits, trover, 
 or replevin. 
 
 If there were two or more counts in a declaration, and one 
 of them was for a demand ascertainable by computation, the 
 defendant might bring money into court on that count. 
 The same rule obtained in covenant, where one of several 
 breaches suggested was the non-payment of money. 
 
 If the defendant paid money in when he had no right to 
 do so, and the plaintiff took it out, the latter therebj^ waived 
 the irregularity, and the effect was the same as if it had 
 been paid on a mere money demand. 
 
 Before pleading, money could be paid in at any time, as 
 a matter of course, and after pleading, upon obtaining a 
 judge's order, which v/as of course. 
 
 The money was deposited and a I'ule obtained from the 
 clerk, allowing the payment, and served on the opposite 
 attorney. 
 
 According to the terms of the rule, if the plaintiff accepted 
 the money so paid in, and proceeded no further, the defend- 
 ant was bound to pay costs, to be taxed by the master. 
 
 Where the defendant had offered to pay the amount paid 
 in, before action, and the conduct of the plaintiff was Vex- 
 atious, the court in one case, on application of the defendant 
 after payment of money into court, ordered so much of the 
 rule as obliged bim to pay costs, to be discharged. And in 
 another case, they allowed the defendant to deduct costs in- 
 curred by him after making an offer, from costs incurred by 
 plaintiff" before the offer was made. 
 
 The payment of money into court was an admission -wiiat it 
 that the cause of action was such as the declaration ^'J""«' 
 described it to be, and left open ou'iy the question of dam- 
 ages. Where, for instance, in an action against a carrier, 
 on a general undertaking to carry for hire, the defendant paid 
 £5 into court, he was not allowed to show that, by the con- 
 tract of hiring he was not to be answerable for goods lost to 
 a greater amount than £5, unless entered and paid for ac- 
 
 16 
 
242 COMMON LAW PRACTICE. 
 
 cordingly, though, if no money had been paid in, such evi- 
 dence would have nonsuited the plaintiff". Payment into 
 court, in an action on a bill of exchange, dispensed with proof 
 of defendant's handwriting; in covenant, it admitted the ex- 
 ecution of the deed; in all cases, it admitted the plaintiff's 
 right to sue and the character in which he sued. 
 
 But it did not admit anything due beyond the amount 
 paid in, nor preclude the defendant from assailing the legal- 
 ity of the contract, for the purpose of preventing further re- 
 covery. If the declaration contained a legal and an illegal 
 demand, the payment was applied to the former only. 
 
 The plaintiff might be nonsuited after payment into court. 
 
 After payment into court, made even through mistake, the 
 defendant could never withdraw the money. But if the 
 plaintiff failed in his action, the money, if not taken out by 
 him, would be applied to defendant's costs. 
 
 If the plaintiff' accepted the money paid in, in satisfaction 
 of his claim, he was entitled to costs up to the time of the 
 payment. And even if he proceeded further, he was entitled, 
 at any time before the trial, to accept it in satisfaction, and 
 was entitled to his costs to the time when it was paid in, 
 Tipon allowing the defendant his subsequent costs. But if 
 he proceeded to trial, and a verdict was rendered against him, 
 or a juror was withdrawn, or he was nonsuited, or the de- 
 fendant obtained a judgment as in case of nonsuit, he was 
 not entitled to costs to the time of the payment into court. 
 
 If the plaintiff' proceeded to trial, and did not prove a debt 
 or damages beyond the amount paid in, on the defendant's 
 producing the rule, the plaintiff was nonsuited, or had a ver- 
 dict against him, and was liable to costs as in other cases. 
 If the plaintiff proceeded further with his action after the 
 ■money was paid in, by the terms of the rule, the amount so 
 paid in was struck out of the declaration, and the plaintiff' 
 was not permitted to give evidence touching it at the trial. 
 
 If he wished to discontinue at any time before trial, the 
 iplaintiff obtained a rule to show cause why the master should 
 not be directed to tax his costs to the time of payment, and 
 the defendant's, since, and why defendant should not pay the 
 
STAYING PROCEEDINGS. 243 
 
 balance to the plaintiff. Or, if he chose to accept the money 
 paid without proceeding in the action, he took the money 
 out of court, and then obtained, and served on defendant's 
 attorney, an appointment from the master to tax the costs. 
 He attended before the master, and had the costs taxed, and 
 if the defendant did not pay them, he proceeded in the action, 
 and at the trial was entitled at least to a verdict for nominal 
 damages and costs. Without this, the plaintiff who took 
 the money out was considered as intending to proceed in 
 the action. 
 
 On a plea of tender, the money was paid into court in the 
 same manner as in the proceeding just explained, i. e., by 
 depositing it with the proper clerk and taking his receipt. 
 The plea of tender was treated as a nullity if the money was 
 not paid in. Once paid in, it could not be withdrawn by the 
 defendant, whatever the result of the suit, but the plaintiff 
 could withdraw it, whether he admitted or traversed the 
 tender, in his replication. 2 Arch. Pr., 181-185. 
 
 Section IX. 
 
 STAYING PROCEEDINGS. 
 
 Connected with the subject of payment of money into 
 court, where the amount only, of plaintiff's claim, is in dis- 
 pute, is that of moving to stay proceedings, upon payment 
 of the debt claimed and costs. 
 
 Wherever defendant might pay money into coui't, as a 
 general rule, he might stay proceedings on payment of the 
 debt and costs. 
 
 Thus, in assumpsit, debt on simple contract, debt on judg- 
 ment, debt for rent, covenant for payment, of money, debt 
 on bond, for payment of a less sum, or for payment of an 
 annuity or of money in instalments, the proceedings might 
 be stayed on payment of the amounts and arrears due and 
 all costs incurred, provided, in the case of the annuity or the 
 
244 COMMON LAW PRACTICE. 
 
 money payable in instalments, the defendant would give 
 judgment to the plaintiff, as security for future payments. 
 
 Where several actions were brought against the acceptor, 
 drawer, and indorsers of a- bill, the drawer or any of the 
 indorsers might have a stay of proceedings in the action 
 against himself, by paying the debt and the costs of that 
 action, but the acceptor, the principal debtor, could only 
 obtain such stay upon payment of the debt and the costs of 
 all the actions. 
 
 Where a bond was for payment of a sum in gross, but by a 
 subsequent parol agreement, it was to be paid in instalments, 
 or where by its terms, although payable in instalments, the 
 whole was due and payable in case of any default, the court 
 would only stay proceedings on payment of the whole. 
 
 In case of a bond conditioned for the performance of a 
 specific act, the court would stay proceedings on payment of 
 the whole penalty and costs. 
 
 In debt on a penal statute, the payment of the penalty and 
 costs of suit stayed the pi'oceedings. 
 
 In trespass or case, the proceedings could not be stayed 
 by the payment of money by the defendant, because the 
 jury only could determine the amount of damages. 
 
 In trover, this was also the rule, unless the trover was 
 brought for money, in which case, the court allowed the 
 money to be brought into court, and let the plaintiff pro- 
 ceed in his action at his peril; or perhaps, they would stay 
 the proceedings upon payment of the money, with interest 
 and costs, if nothing appeared to enhance the damages be- 
 yond the interest. 
 
 In case of trover for a specific chattel, of ascertained iden- 
 tity, the court would allow the chattel to be brought into 
 court or delivered to the plaintiff, and allow him to proceed 
 at his peril, as to his costs, in the absence of special circum- 
 stances of damage; or, perhaps, grant a rule on him to show 
 cause why, on the delivery of the goods, and payment of the 
 costs, the proceedings should not be stayed. 
 
 In replevin of a distress for rent, the plaintiff might have 
 leave to pay the rent into court, or, if no special damage 
 
STATING PROCEEDINGS. 245 
 
 was averred in the declaration, the defendant might have the 
 proceedings stayed npon paying the costs of the action and 
 of replevying, and surrendering the replevin bond. 
 
 In ejectment for non-payment of rent, or ejectment by 
 mortgagee, the payment of the rent or the mortgage debt, 
 as the case might be, and costs, would entitle the defendant 
 to a stay. 
 
 In an action on a promissory note, the court granted a 
 rule to show cause why the proceedings should not be stayed, 
 on an affidavit that the note had been obtained without 
 consideration, and the affidavit not being contradicted, made 
 the rule absolute. So, where an action was brought for 
 what had been set oft" in a former action, the proceedings 
 were stayed. 
 
 The rule to stay proceedings in ordinary cases, could be 
 obtained at chambers, or by application to the court in term 
 time. In special cases, a rule to show cause was necessary. 
 On obtaining the rule, the defendant had the costs taxed as 
 in the case of payment of money into court, and paid them 
 immediately, in default of which, the plaintiff proceeded 
 with the action. 
 
 The stay of proceedings, thus far referred to, was a per- 
 manent stay, equivalent to the termination of the suit. 
 There were also cases in which they were temporarily 
 stayed. 
 
 Thus, generally, if a second action was brought between 
 the same parties, for the same cause of action, there not 
 having been a recovery in the former, it was the practice, on 
 motion of the defendant, to stay the proceedings until the 
 costs of the defendant, in the former action, should be paid. 
 But where there had been a recovery in the former action, 
 the court generally refused to proceed in this summary way, 
 and required the defendant to plead it. And the court have 
 refused to stay proceedings until the debt and costs recov- 
 ered by the defendant against the plaintiff' in another action 
 were paid. 
 
 In ejectment, the relief has been granted, even where the 
 former action was between the ancestors of the same parties, 
 
246 COMMON liAW PRACTICE, 
 
 or for different property, but on the same title, and where it 
 was in a different court. And where the plaintiff in the 
 second action was the defendant in the former, and was 
 evicted, the court have stayed proceediijgs until he paid the 
 costs of the former action. They have also compelled a 
 party to pay costs of the action for mesne profits. 
 
 They have also stayed proceedings until a special verdict 
 in a former action should be determined. And where a de- 
 fendant in ejectment, after judgment, brought a writ of 
 error, and pending the writ, brought a new ejectment for 
 the same premises, the court stayed proceedings until he 
 should quit the possession, or the tenants should attorn to 
 the lessor of plaintiff in the former action. 
 
 Where an action was brought pending a reference, or 
 otherwise against good faith, the proceedings were stayed. 
 
 Sometimes, proceedings were entirely set aside, as where 
 an attorney brought an action without the plaintiff's au- 
 thority. 
 
 In various other cases which will be, or have been, re- 
 ferred to under other heads, a temporary or permanent stay 
 of proceedings has been granted, where it seemed necessary 
 to the ends of justice. Id., 181-191. 
 
 Section X. 
 
 SECURITY FOR COSTS. 
 
 If the plaintiff resided abroad, the court, on application, 
 would stay the proceedings, until he gave security for 
 costs, but not where any one of several plaintiffs was a 
 resident. 
 
 If the lessor of the plaintiff in ejectment resided abroad, 
 or died pending the action, the rule was the same. So, if 
 the plaintiff's lessor was an infant, the proceedings would be 
 stayed until the'seeurity was given or the guardian became 
 responsible for the costs. The defendant might compel the 
 plaintiff's attorney to disclose the residence of the plaintiff's 
 lessor, or, in case of refusal, have the proceedings stayed 
 until security was given. 
 
SECURITY FOR COSTS. 247 
 
 • 
 
 But sueh security was not exacted because the plaintiff 
 was insolvent, nor where he was an uncertificated bank- 
 rupt, unless the suit was brought for the benefit of the 
 assignees. 
 
 Where it was intended to have the proceedings stayed, 
 the application for security was first made to plaintiff's attor- 
 ney, and on his refusal, he was notified, and motion made in 
 court for a rule. 
 
 The motion was to be made before notice of trial and after 
 bail put in and justified. And one of several defendants 
 putting in bail might move for security without putting in 
 bail for the others. 
 
 "Where the defendant was in custody, and plaintiff failed 
 to give security within a reasonable time after being ruled 
 to do so, the defendant was discharged on common bail. 
 
 One of several defendants might put in bail and require 
 security for costs, without putting, in bail for the others. 2 
 Arch. Pr., 192, 3. 
 
 In Maryland, it was provided by statute, 1796, ch. 43", 
 section 12, that when suits should be brought by non-resi- 
 dents of the State, or persons who might move out of it after 
 bringing suit, the defendant might, at or before the trial 
 court, lay a rule on the plaintiff, or his attorney, to give se- 
 curity for all costs and charges that the defendant might be 
 put to, in case the plaintiff should be nonsuited, or judg- 
 ment given against him, and in case of noncompliance,judg- 
 ment of nonsuit should be entered. 
 
 It was a part of the practice, that if the rule was not laid 
 until the trial term, the plaintiff" should have a continuance 
 of the case to the next term, to enable him to comply with 
 the rule. If the plaintiff denied that he was a non-resident, 
 he might file an affidavit to that effect, and the court would 
 try the question on affidavits or by witnesses. 
 
 The person becoming security simply acknowledged him- 
 self such in open court, of which fact an entry was made on 
 the docket. 
 
 The proceeding against the security was, to have the costs 
 taxed by the clerk, and serve a copy of such taxation on the 
 
248 COMMON LAW PRACTICE. 
 
 • 
 
 security, with an order of the court to pay the costs to the 
 defendant, and on affidavit of this service and a demand, 
 and of the security's refusal or neglect to pay them, to pro- 
 cure an attachment for contempt against him. Evans's Pr., 
 241. 
 
 Section XI. 
 
 OYER OF DEEDS, ETC. 
 
 A party pleading a deed or letters patent, or letters testa- 
 mentary or of administration, to the possession of which he 
 was entitled, as a part of his case, was bound to make pro- 
 fert of them or exhibit them to the court. The rule did not 
 apply to records which were supposed to be fixed in one 
 place and not to be in the party's possession, nor when the 
 deed was merely stated by way of inducement. If profert 
 was not made when it ought to be, the opposite party might 
 demur specially. If he pleaded over, he waived the irregu- 
 larity. 
 
 If profert was made, and not otherwise, theopposite party 
 might crave oyer of tlie instrument, and set it forth in his 
 pleading. In debt on bond to perform the covenants of an 
 indenture, he could only ask oyer of the bond, and if neces- 
 sary to his plea, be was required to set forth and make profert 
 of the deed, and the other party woijld pray oyer of it. 
 
 The party praying oyer, who was entitled to it, was not 
 bound to plead without it. If it was prayed improperly, 
 the opposite party could treat the demand as a nullity, and 
 sign judgment for want of a plea. If, however, he chose to 
 grant it, the party praying it could treat the whole instru- 
 ment as part of the other's plea. 
 
 Oyer must have been prayed at the term in which the 
 deed was pleaded, and before the time for pleading, in reply 
 to the averment of the deed, had expired. 
 
 In practice, the oyer was prayed by a written demand on 
 the opposite attorney, who responded by furnishing a copy 
 of the deed, including the names of the witnesses by whom 
 it was attested. If oyer was refused, the party praying it 
 
249 
 
 entered his prayer on the record in the nature of a plea, 
 and the opposite party counterpleaded or demurred, and 
 the court gave judgment on it, from which a writ of error 
 might be brought, but error did not lie for granting oyer 
 where it was not demandable. 
 
 After oyer was granted, the party praying it might set 
 out the instrument in his plea or not, at his option. In the 
 former case, he was bound to set forth accurately all of the 
 deed that related to the matter of the action, and if he failed 
 to do so, the other party might sign judgment as for want 
 of a plea, or pray that the deed be enrolled, and thereupon 
 have it truly enrolled, and demur. If the party praying oyer 
 did not set out the deed, the other party might pray that 
 the deed be enrolled, and set it forth in his pleading. 
 
 Where oyer was demanded by the defendant, there was 
 no fixed time within which the plaintiff had to give it, but 
 it was for his interest to do it without delay, because the 
 defendant was not bound to plead without it. But where 
 the plaintift' prayed oyer, defendant was bound to grant it 
 within two days, or the plaiutiti" might sign judgment. 2 
 Arch. Pr., 194-196. 
 
 In Maryland the practice was, upon making profert, to 
 leave the instrument, or a copy, at the clerk's ofBce, whence 
 it could not be withdrawn. The party praying oyer filed 
 his prayer in writing, and then his plea, in which the prayer 
 was repeated, and the words added, "and it is read to him 
 in these words, to wit (insert)," and then proceeded with his 
 plea. The instrument was considered as copied into the 
 plea, but was not so in fact, except when the record was 
 made up after judgment. The usual case in which oyer was 
 necessary, was debt on bond with condition, when the con- 
 dition was not set out in the declaration, and it was neces- 
 sary to set it forth, in order to plead performance. Evans's 
 Pr., 206. 
 
250 COMMON LAW PRACTICE. 
 
 Section XII. 
 
 COPIES OP INSTRUMENTS NOT UNDER SEAL. 
 
 A practice analogous to craving oyer of deeds, was the 
 demand of a copy of written instruments declared on, which 
 were not under seal. The defendant could take out a sum- 
 mons before a judge at chambers, who would order a copy 
 of the instrument to be delivered to the defendant, and that 
 all proceedings be stayed in the meantime. 
 
 In policy causes, a judge at chambers would sometimes 
 order the assured to produce to the underwriters, on affida- 
 vit, all papers in his possession relating to the matters at 
 issue. 
 
 Where a discovery was necessary to the defense, the court 
 would sometimes give the defendant further time to plead, 
 to enable him to obtain the discovery in equity. 
 
 Where the defendant was in possession of any written 
 instrument which it was material for the plaintiff to inspect, 
 the court has, under particular circumstances, ordered that 
 plaintiff have leave to inspect it, and that defendant should 
 give him a copy and produce it at the trial, iu which case it 
 was sufficient to give extracts of all. that might be relevant, 
 with affidavit to that effect. 2 Arch. Pr., 196. 
 
 In Maryland, it does not appear that the power to order 
 inspection and production of private papers of a party was 
 exercised by the courts before it was specially given by leg- 
 islation subsequent to the cession of the District of Colum- 
 bia. Evans's Pr., 290, 291. 
 
 Section XIII. 
 
 PAKTICULARS OF DEMAND. 
 
 Wherever the plaintiff declared generally, without speci- 
 fying the particulars of his cause of action, a judge, on ap-- 
 
PARTICULARS OF DEMAND. 251 
 
 plication, would order him to give the defendant the par- 
 ticulars, in writing, and that all proceedings be stayed in the 
 meantime. 
 
 Accordingly, where the declaration contained the com- 
 mon counts for work and labor, goods sold and delivered, 
 and the like, it was a matter of course to order the particu- 
 lars given. So in debt on bond, conditioned to perform 
 covenants, or to indemnify', etc., particulars of the breaches 
 might be demanded. So in an action by a vendee, alleging 
 defects of title, or to recover the deposit, because of failure 
 to comply with conditions of sale, or in ejectment for for- 
 feiture, where there was doubt what land was claimed or de- 
 fended, or where set-off was pleaded generally, or notice of 
 set-off given with the general issue, particulars might be de- 
 manded. 
 
 The bill of particulars was obtained by taking out a judge's 
 summons for the purpose, and usually before pleading, but 
 it might be ordered, in his discretion, at any time before 
 trial. It could not be demanded before appearance. The 
 order against the plaintiff was, that the proceedings be stayed 
 until the bill of particulars should be furnished. The order 
 against the defendant required him to deliver the particulars 
 by a certain time, in default of which he should not be al- 
 lowed to 2;ive evidence of them at tlie trial. 
 
 The party ordered to furnish the bill of particulars was 
 required to make it out and deliver it immediately, and the 
 opposite party had the same time afterwards, to plead, that 
 he had when the summons was served. It was held, at nisi 
 prius, that the bill was required to show both sides of an , 
 account, and the balance claimed to be due. If it stated the 
 debtor side only, or was as general as the declaration, it was 
 considei-ed a contempt of court. If it was not sufficiently 
 explicit, it could be amended with leave, or an order could 
 be obtained for further particulars. 
 
 At the trial, the party giving the bill of particulars was 
 confined to that, and could not offer evidence of other items 
 of claim. Thus, where tiie bill of particulars claimed for 
 goods sold to defendant, the plaintiff was not allowed to 
 prove goods sold by the defendant as his agent. So where 
 
252 COMMON LAW PRACTICE. 
 
 the particular was a promissory note only, and the note, when 
 produced, was found to be improperly stamped, the plaintiff 
 was not allowed to fall back on his money counts. 
 
 But this strictness was not observed where the mistake in 
 the particulars was such as could not mislead the. opposite 
 party. And though the plaintiff was confined, on his proof, 
 to his particulars, yet if the defendant's evndenee showed 
 him entitled to recover for items not included in the bill, he 
 could recover for them. 2 Arch. Pr., 197, 199. 
 
 In Maryland, the mode of obtaining a bill of particulars 
 was, simply to enter the demand on the docket, instead of a 
 plea, whereupon the opposite party filed the bill of particu- 
 lars. The party demanding the particulars was then under 
 the rule plea or replication, and the pleading went on, as if 
 not interrupted by the demand for particulars. If the de- 
 mand was objected to, the question could be brought before 
 the court by motion. Evans's Pr., 211. 
 
 Section XIV. 
 
 SETTING ASIDE PROCEEDINGS FOR IRREGULARITY. 
 
 Proceedings could be set aside for irregularity, on motion 
 to the court, in term time. The motion was founded upon 
 affidavit, stating the irregularitj' complained of, with a copy 
 annexed, of any process or notice iu which it was alleged to 
 exist. A rule nisi was then granted, which suspended all 
 I further proceedings until it was disposed of. 
 
 It was necessary to make the motion on the first oppor- 
 tunity after the irregularity took place, and before other 
 proceedings were had by the party moving, otherwise he 
 was held to have waived it. 
 
 Thus an irregularity in the affidavit to hold to bail must 
 have been taken advantage of before putting in bail; one in 
 the process, before appearance, or before taking out a dec- 
 laration; one in the notice of the declaration, before plea, 
 etc. 
 
 If the rule was made absolute, it was with costs, unless 
 
SETTING ASIDE PROCEEDINGS FOR IRKEGUL ARITT. 253 
 
 strong reasons existed for otherwise directing. If dis- 
 charged, it was also with costs, unless otherwise expressed. 
 
 The omission of aii}- necessary step in a cause rendered 
 the next subsequent proceeding irregular. For instance, if 
 a defendant was arrested and held to bail, where there was 
 no affidavit to hold to bail, the arrest would be set aside as 
 irregular. So if plaintifl" signed judgment for want of a 
 plea, without having given a rule to plead, oV proceeded to 
 trial without having given notice of trial. 
 
 So with an\' proceeding had by a party prematurely or 
 too late, or at a wrong time, as if mesne or final process 
 was served after the day when it was returnable, or on Sun- 
 day, or judgment was signed for want of plea before the 
 time for pleading expired, or final judgment before the ex- 
 piration of the rule for judgment. 
 
 In such cases, service would be set aside, parties dis- 
 charged from irregular arrest, money levied be returned to 
 defendant, or judgment set aside. 
 
 So if any proceeding was, in form, not conformable to the 
 rules or practice of the court, as, for example, if the affidavit 
 to hold to bail comprised two distinct causes of action 
 which could not be joined, or was otherwise defective, the 
 defendant was discharged on common bail. If a judicial 
 writ was tested or returnable out of term, or misdirected, 
 or the name of either party omitted, or there was a material 
 variance between the first writ and the alias, the court would 
 set it aside for irregularity, and order the defendant to be 
 discharged, and the goods seized to be surrendered. So, 
 also, if the writ was at the suit of one person, and the dec- 
 laration at the suit of two, or if the writ was against two de- 
 fendants, and the declaration against one only. 
 
 So with proceedings not warranted by the state of the 
 case, as where judgment was signed for want of plea after 
 plea was filed, or proceedings vyere had against a sherifl:" or 
 bail after the original defendant had been rendei-ed. In 
 short, any want of adherence to the prescribed rules of pro- 
 ceeding, consisting in either the omission to do something 
 necessary to the due and orderly conduct of the suit, or the 
 doing it unseasonably or improperly, was an irregularity for 
 
254 COMMON LAW PRACTICE. 
 
 which everything following and depending upon the error 
 would be set aside. 2 Arch. Pr., 201-203 ; 1 Tidd, 434. 
 
 Some general rules may be laid down in regard to irregu- 
 larity in the proceedings in a cause, though the effects of 
 such irregularity, in particular cases, have already been ad- 
 verted to. 
 
 Errors in the pleadings, which are taken advantage of by 
 demurrer, are not strictly irregularities. The latter term 
 applied, properly, to defects in the practical proceedings or 
 the mode of conducting the cause. 
 
 The deviations from the prescribed course of practice 
 may be mere irregularities, which may be waived by the 
 conduct of the adverse party, or they may be mere nulli- 
 ties which cannot derive any validity from waiver, consent, 
 or tacit acquiescence. 
 
 Illustrations of the latter class may be given. 
 
 If a defendant was arrested upon a writ issued against 
 him in a wrong name, the arrest was so far an illegal and 
 void proceeding, that a bail-bond given thereupon was held 
 void, though the defendant might have been discharged, on 
 motion, without giving bail. 
 
 So, where a declaration was delivered before appearance 
 to process had been entered, it was held a mere nullity 
 which could not be waived by the defendant's retaining the 
 declaration, omitting to plead, and allowing judgment by 
 default to be signed. 
 
 " So, where maker and indorser of a promissory note were 
 held to bail on one affidavit." 
 
 So, where a statute of 4 Anne, ch. 16, required a plea in 
 abatement to be verified by affidavit, the filing of such plea 
 without affidavit was considered a nullity. 
 
 If a proceeding was declared void by statute, or if a 
 statute required a particular proceeding to be taken, which 
 was omitted, in either case, a nullity arose. Other cases 
 have been suggested in describing the different stages of 
 the common law action. 
 
 The general rule with regard to the mere irregularity, 
 and that which distinguishes it from the nullity was, that 
 
SETTING ASIDE PROCEEDINGS FOR IRREGULARITY. 255 
 
 the former must have been promptly taken advantage of and 
 objected to, and if the opposite party took a step in the 
 cause, inconsistent with such objection, he was held to 
 waive the objection. 
 
 The spirit of the rule required that the party affected by 
 the irregular proceeding, should apply formally to have it set 
 aside before proceeding himself, and also before allowing the 
 other party to proceed further, in ignorance of the objection. 
 
 The irregularities in question might occur at any stage of 
 a cause, from the affidavit to hold to bail, to the entry of 
 satisfaction of the judgment. 
 
 There might be a substantial defect in the affidavit to 
 hold to bail, but it must have been objected to within a reas- 
 onable time and before the plaintiff had incurred further 
 expense in his proceedings. 
 
 It was too late to object after the defendant had put in 
 bail, or even after obtaining time for the purpose, or after 
 the defendant had ineffectually attempted to justify bail. 
 
 In this and all cases, however, where the defect was not 
 known and could not be discovered with proper diligence, 
 as where the affidavit was mislaid, delay in making the 
 objection might be excused. 
 
 An irregularity in the service of process wks waived by 
 the defendant's attorney undertaking to appear. 
 
 A misnomer of defendant was waived bj' his using the 
 name under which he was arrested, in subsequent pro- 
 ceedings. 
 
 So, executing a bail-bond, in the defendant's full Christian 
 and surname, waived the irregularity in the writ, of describ- 
 ing him by his initials only. 
 
 An irregularity in the description of bail was waived by 
 excepting to them. 
 
 An irregularity in the notice of or filing a declaration, or 
 in the rule to plead or demand of plea, was, of course, 
 waived by pleading. 
 
 Defects in the titling of a rule nisi, or of the affidavits 
 filed to support it, were not waived by filing counter-affi- 
 davits and appearing to oppose the rule. 
 
256 COMMON LAW PRACTICE, 
 
 Attending the taxation of costs was held to be a waiver 
 of irregularity in signing judgment prematurely. 
 
 Insufficiency of notice of inquiry, or trial, was waived by 
 attending the inquiry or trial and making defense. But the 
 attendance of counsel, who merely took notes, but did not 
 otherwise interfere, did not preclude the defendant from 
 afterwards moving to set aside the proceedings. 
 
 Pleading to a scire facias, pending a rule to set it aside for 
 irregularity, was a waiver of the irregularity. 
 
 If an execution was issued without a sci. fa. after the year, 
 it was held an irregularity and not a nullity, by the older 
 cases. Unless set aside, it might be executed, and property 
 might be delivered or sold under it. A later case has held 
 such an execution against the person to be a nullity. 
 
 There are cases in which even a party's acquiescence has 
 not been allowed to operate aa a waiver, but the court have 
 insisted on redressing the irregularity. For instance, though 
 bail were unopposed, the court have refused to allow them 
 to justify, where their unfitness has been established in a 
 previous case. And whenever the ends of justice and or- 
 derly proceeding required it, the court would deny to a 
 party's acquiescence the efiect of waiving an irregularity. 
 2 Chitty's Pr., ch. 17. 
 
 In Maryland, the same practice prevailed, of setting aside 
 irregular proceedings on motion. It was illustrated by the 
 motion to quash a writ of replevin issued without bond or 
 for property which had been replevied Uy the defendant 
 from the plaintiff", or issued against a collector of taxes with- 
 out proper affidavit or warrant from a Justice, and similar 
 cases. Evans's Pr., 238. 
 
 Section XV. 
 
 DISCONTINUANCE. 
 
 Between each proceeding in a suit and that which followed, 
 an entry was necessary to connect them. For instance, when 
 a defendant appeared and pleaded, it was necessary to ap- 
 
DISCONTINUANCE. 257 
 
 point some day for both parties to appear in court for the 
 next proceeding; otherwise the defendant, liaving appeared 
 and pleiided as required, and not being required to appear 
 again, was considered discharged. The entry in question 
 was called a continuance, and if it was omitted, the plaintift" 
 was said to discontinue, the defendant went without day, 
 and the plaintiff was compelled to commence again. The 
 continuance was in different forms, at different stages of the 
 proceedings. Thus, after declaration filed, and before issue, 
 the case was continued by an im-parlance, and all process was 
 continued by the entry, "vice-comes non misit breve," "the 
 sheriff has not sent the writ." 
 
 But, in practice, the continuances were not entered until 
 the plea roll was made up, so that their omission could not 
 be the subject of objection during the progress of the cause, 
 and their omission was cured, after verdict, by the statutes 
 of jeofails, and after judgment by default, by the statute 4 
 Anne, ch. 16. 
 
 But the plaintiff' might obtain a rule for leave to discon- 
 tinue. This wa« his course when he was satisfied that his 
 action was misconceived, or, for any reason, could not be 
 maintained. The privilege was given only to a plaintiff, 
 and not even to an avowant in replevin. It was only on 
 payment of costs, except in case of executors or administra- 
 tors, and even they were required to pay costs if they know- 
 ingly brought a wrong action. 
 
 The rule could be obtained at any time after commence- 
 ment of the action, before trial or writ of inquiry. As mat- 
 ter of special favor, it has been allowed even after special 
 verdict, except in a hard action. It was not allowed to en- 
 able a plaintiff to adduce further proof in contradiction of 
 the verdict. It was not allowed after a general verdict or 
 a writ of inquiry returned and executed, without the defend- 
 ant's consent. 
 
 After argument on a demurrer, where there were faults 
 in the plaintiff's pleading, he was allowed to discontinue, 
 or could have leave to amend on payment of costs. 
 
 Before argument of a demurrer, and before verdcit or 
 
 17 
 
258 COMMON LAW PRACTICE. 
 
 execution of a writ of inquiry, the rule eould be had as a 
 matter of course, from the clerk of the rules ; in other cases, 
 a rule nisi was applied fur, to the court. On obtaining the 
 rule absolute, the plaintifi"'s attorney had the costs taxed in 
 the way before mentioned. Until they were paid, the action 
 was not discontinued, though the plaintiff was not liable to 
 attachment for the non payment of the costs. 
 
 After the taxation and payment of the costs, the plaintiff 
 might commence a new action for the same cause and hold 
 the defendant to bail a second time, unless the discontinu- 
 ance of the first action arose from gross neglect of the plain- 
 tiff, or the second arrest appeared to be vexatious. 
 
 If the first action was upon common, non-bailable process, 
 the plaintiff was held entitled to hold the defendant to bail 
 for the same cause, if bailable, even before discontinuing 
 the first action. And in a case where it appeared that the 
 bail in an action were worthless, the plaintiff was considered 
 justified in holding the defendant to bail for the same cause 
 in a second action, even before he discontinued the first, 
 because, if he had first discontinued, it was probable that 
 the defendant would abscond. But where a plaintiff dis- 
 continued simply because he was dissatisfied with the bail 
 in the first action, and held the defendant to bail in a second, 
 the court discharged the side bar rule he had obtained, for 
 the discontinuance, leaving the bail in the first action still 
 iiable. 
 
 If the defendant pleaded sufficient matter in abatement, 
 which the plaintiff could not gainsay, the latter might obtain 
 leave to amend, if that would answer his purpose, on pay- 
 jnent of costs, or he might, at once, enter on the roll a judg- 
 ement that the writ be quashed, so as to be able to commence 
 -a new action. 2 Arch. Pr., 208, 209; 1 Tidd, 627. 
 
 In Maryland the plaintiff" might, voluntarily and without 
 motion, enter a non pros, at any stage of a case, before ver- 
 dict. The entry, after defendant's appearance, included a 
 judgment for costs in favor of the defendant. 
 
 Or, the plaintiff might give an order to discontinue or to 
 
PUTTING OFF THE TRIAL. 259 
 
 strike off the case. The practical effect was about the same 
 in all three cases. If the defendant had been served with 
 process, he had a right to appear and have judgment for his 
 costs. After verdict, the defendant was entitled to his judg- 
 ment, and it was too late for a plaintiff to discontinue or 
 dismiss. "Where the suit was dismissed, discontinued, or 
 non prossed, the plaintiff might sue again for the same cause 
 of action, which the defendant was entitled to prevent, after 
 verdict, by having a judgment concluding the controversy. 
 Before a writ was served, it could be countermanded by 
 the plaintiff. Evans's Pr., 263-265. 
 
 Section XVI. 
 
 PUTTING OFF THE TRIAL. 
 
 In general, where a material witness for either party was 
 absent, the court, on application, allowed a postponement of 
 the trial to another day in the same term, or to another term, 
 or even longer, under peculiar circumstances. 
 
 The allowance was sometimes made on terms, such as, the 
 payment of the money claimed into court, or giving security 
 for it, where the postponement was made repeatedly. They 
 have also postponed until a commission to take a deposition 
 of an absent witness could be executed. 
 
 They, however, have refused, where there appeared no 
 probability of an absent witness's return, and where he went 
 abroad after notice of trial and might have been served with 
 a subpoena in sufficient time, and where the pla,iiitiff had con- 
 ducted himself unfairly, and where the absent witness was 
 needed to sustain a defense not favored by the court. 
 
 Other grounds might be given for the application to post- 
 pone. The illness of defendant's attorney was one. Where 
 three actions were brought against as many defendants, 
 founded on the same transaction, and one demurred, it was 
 held sufficient ground for postponing the trials of the others 
 involving the same question of law, until the demurrer was 
 disposed of. The court have refused, however, to postpone 
 because of the pending of a suit touching the same matter in 
 
260 COMMON LAW PRACTICE. 
 
 the ecclesiastical court, or because counsel were not pre- 
 pared. 
 
 The application for the postponement was made, in terra 
 time, to the court, by motion for a rule nisi; in vacation, to 
 a judge at cliambers; and was required to be made at least 
 two days before the trial ; or, if the grounds of the applica- 
 tion became known to the party too recently for that course, 
 it was made to the judge at nisi prius, who could postpone 
 the trial to another day in the same sittings. 
 
 It was usual and proper to give the opposite party notice 
 of the intended motion, in order to give him an opportunity 
 to oppose it, in the first instance, or to save him the expense 
 of bringing his witnesses, if he did not intend to oppose it. 
 
 The motion was founded on affidavit, stating the grounds 
 on which it was made. If made on account of the absence 
 of a material witness, the affidavit ordinarily stated the time 
 when issue was joined, the time for which notice of trial was 
 given, the absence of the witness, and that the party could 
 not safely proceed to trial without him, the effiarts which 
 had been made to find him, and when he was expected to 
 return. But if the witness was abroad, or, from the nature 
 of the application, it might be suspected to be made for 
 mere delay, it was necessary that the affidavit should go 
 further and state the cause of action and the evidence ex- 
 pected from the witness, in order that the court might judge 
 of its materiality, and circumstances from which his return 
 within a reasonable time might be inferred. 
 
 The affidavit might be made by the party or his attorney, 
 and the postponement was generally allowed on payment of 
 the costs the opposite party was thereby put to. 2 Arch. Pr., 
 210, 211. 
 
 In Maryland, a continuance was the technical name of a 
 postponement from one term of the court to the next. 
 
 It was allowed for several causes. By consent, it could 
 be had when several causes were identical in principle and 
 it was convenient to postpone one until the other was de- 
 cided. A case might be so continued either to await or to 
 abide the decision of the other. The former was proper 
 
PUTTING OFF THE TRIAL. 261 
 
 when it might be expedient to try both, and it was not 
 intended that the decision of one should settle the other; 
 the latter, when it was intended that the decision should be 
 conclusive upon the other. In each case, the entry was 
 repeated each term until the case referred to was disposed 
 of, but the parties might, at any time, agree to strike out 
 the continuance and try the case. 
 
 Continuances without consent were generally allowed on 
 account of the absence of a witness. 
 
 The Act of Assembly of 1787, ch. 9, empowered the courts 
 to continue a cause, as long as they thought proper, on affi- 
 davit made by the party, or some other credible person, "that 
 a witness named, or testimony material, competent, and 
 proper in the suit is wanting, and that the affiant verily be- 
 lieves that the cause cannot be tried, with safety and justice 
 to the party, without the testimony, that he expects the tes- 
 timony can be had in a reasonable time, and that he hath 
 used due diligence to obtain the testimony," unless the 
 other party would admit the fact the testimony was intended 
 to prove. 
 
 The inquiry made by the court, on such application, was, 
 whether the witness, if a resident, had been summoned, and 
 whether steps had been talcen to compel his attendance. If 
 no such steps had been taken, the court required to be satis- 
 fied that they would have been useless. 
 
 The reasonable time was usually understood to mean the 
 next succeeding term of the court. 
 
 Where the witness was a non-resident, the court were 
 authorized to grant a continuance in their discretion, and to 
 decide upon the materiality of the facts intended to be 
 proved, without putting the opposite party to the necessity 
 of admitting them. 
 
 Continuances were also to be granted when a commission 
 issued to take testimony of an absent witness. Where he 
 was out of the United States, the continuance might be re- 
 peated as often as the court thought proper. But if he was 
 within the United States, the delay was not to exceed four 
 terms beyond the time ordinarily allowed for continuance. 
 
 If a commission was asked for at the trial term, or other- 
 
262 COMMON LAW PRACTICE. 
 
 wise irregularly, the court sometimes imposed terms, such 
 as, that the party should try the case at a particular time, 
 whether the commission was returned or not. In such case, 
 while the party obtaining the delay was held to the con- 
 ditions, the other party might still obtain a continuance, if 
 the commission was returned so late that he had not suffi- 
 cient opportunity to examine it, before the time appointed 
 for the trial. 
 
 The illness of the only counsel on either side was con- 
 sidered a common law ground for a continuance. 
 
 Continuances were usually granted on condition of paj-- 
 ing the costs of the term, especially where the absence of a 
 witness was the ground of the continuance. The entry was 
 then made on the docket "continued at the cost of plain- 
 tifi'" (or defendant), and the other party, bound to pay any 
 witness's or officer's fees, could have them taxecl, procure an 
 order of court for their payment, and have it enforced by 
 attachment. 
 
 It was also held, in Maryland, that a party was entitled to 
 a continuance, upon affidavit that he had filed a bill for a 
 discovery, and used due diligence to obtain an answer, but 
 not because, after obtaining an answer, he expected to pro- 
 cure further testimony. Evans's Pr., 255. 
 
 Section XVII. 
 
 NOLLE PROSEQUI. 
 
 A nolle prosequi was an abandonment, by the plaintiff, 
 of either the whole or a part of his action, or an abandon- 
 ment of it as to some one or more of the defendants. 
 
 If he discovered that he had misconceived the action or 
 that he had sued the wrong person, or, for other reasons 
 could not sustain his suit in any part, as where defendant 
 pleaded coverture or infancy, he could enter a nolle prosequi 
 as to the whole cause of action. 
 
 If the defendant's plea to the whole declaration was a 
 good defense to one or more of several counts and not to the 
 
KOLLE PROSEQUI. 263 
 
 rest, the plaintiff" might enter a nolle prosequi as to those 
 which could not he sustained, and proceed with his action 
 as to the others. "Where, for example, to a declaration in 
 assumpsit, for goods sold, and also upon an account stated, 
 the defendant pleaded infancy, which was a bar to the latter 
 count, the plaintiff' could enter a nolle prosequi as to that, 
 and reply as to the other. 
 
 But where there was a demurrer to the whole declaration, 
 the plaintiff was not allowed to rectify his error by entering 
 a nolle prosequi as to some of the counts. Where a declara- 
 tion against two omitted tiie name of one in one of the 
 counts, and was demurred to for that reason, or where 
 there was a demurrer for misjoinder of counts, it was held 
 that the error could not be rectified by a nolle prosequi. 
 
 But if the defendant demurred or pleaded separately to 
 several counts, the plaintiff could enter a nolle prosequi as 
 to any one, and proceed on the others. 
 
 If the defendant pleaded to one count and demurred to 
 another, the plaintiff, getting judgment on the demurrer, 
 might take damages on that only, and enter a nolle prose- 
 qui as to the issue in fact. 
 
 The plaintiff' could also enter a nolle prosequi as to part 
 of the subject-matter of a count, as where, in trespass de 
 bonis asportatis, the declaration was for taking and carrying 
 away the plaiutiff"'s hay, grass, and corn, he might enter the 
 nolle prosequi as to the hay and grass, and proceed as to the 
 corn. 
 
 In actions against several defendants, upon a contract, if 
 the defendants joined in pleading, a nolle prosequi could 
 not be entered as to one without releasing the others. But 
 if they severed in pleading, and one pleaded matter of per- 
 sonal discharge, such as bankruptcy, minority, or the like, 
 the plaintiff' might enter a nolle prosequi as to him, though 
 he also pleaded to the merits, and proceed against the 
 others. 
 
 In actions ex delicto, the plaintiff' might enter a nolle pros- 
 equi as to any of the defendants, and proceed against the 
 others, at any time before final judgment, whether they 
 
264 COMMON LAW PRACTICE. 
 
 joined or severed in pleading, and though they were found 
 jointly guilty. In ejectment, for instance, the plaintiff was 
 held .entitled to enter the nolle prosequi as to one or more 
 of several defendants, even at the assizes. 
 
 If the jury erroneously severed the damages, the plaintiff 
 might take judgment i^e melioribus dainnis against one defend- 
 ant, and enter a nolle prosequi as to the othei's. 
 
 There could be no nolle prosequi after final judgment. 
 
 "Where it was intended to enter it before issue joined, 
 it was inserted in the commencement of the replication. 
 Where it was to be entered after issue joined, it could be 
 done at the time of entering the final judgment, for which 
 reason, where a writ of inquiry was sued out on a judgment 
 on one of several counts, the court refused to set it aside 
 because of the omission to enter the nolle prosequi, on the 
 other counts, previously. 
 
 Where the nolle prosequi was entered as to the whole 
 declaration, the defendant was entitled to costs in like man- 
 • ner as in case of discontinuance. And where it was entered 
 as to some of several counts, the plaintiff was not entitled 
 to costs as to these counts, though he had a verdict on the 
 others. 
 
 A retraxit was similar t*o a nolle prosequi to the whole 
 declaratio^n, but differed in this, that it was a bar to any 
 future action for the same cause, and was made in open 
 court when the trial was called, whereas the nolle prosequi 
 was made by a mere entry on the roll of the court. 2 Arch. 
 Pr., 218, 220; 1 Tidd, 630. 
 
 . J^cJtx-^. \PxJk ^i Sjsction XVIII. tr^^Um gW^, C-- ^ ■ 
 
 EFFECT OF DEATH, BANKRUPTCY, OR MARRIAGE UPON THE 
 
 ACTION. 
 
 The rule of the common law was said to be, that a per- 
 sonal action died with the person. The rule has, however, 
 only a limited application. 
 
EFFECT OF DEATH, ETC., UPON THE ACTION. 265 
 
 Personal actions, founded upon contract, debt, covenant, 
 or any obligation, survived, and might be brought by or 
 against the personal representatives of a decedent. It might 
 be said, more properly, that the cause of action survived, for 
 whether an action, actually brought, died or survived, is a 
 different question. 
 
 At common law, an action of account could not be brought 
 by or against an executor, but it was given, to and against 
 them, by statutes. Nor did debt on simple conti-act lie 
 against them, but debt for rent, and assumpsit on the testa- 
 tor's simple contract, would lie. 
 
 There were also some actions, in form ex delicto, which 
 might be brought, notwithstanding the death of the party 
 concerned, by or against his representatives. 
 
 Thus, replevin or detinue would lie for the recovery of 
 specific goods, either by the executor of the owner or against 
 the executor of the wrongdoer. And by statute, trespass 
 or trover might be brought by an executor or his executor, 
 or an administrator, for goods taken in the lifetime of the 
 original testator or intestate. The representatives might, 
 in short, bring an action for injuries to the pei-sonal estate 
 that the deceased might have brought, such as actions for 
 false return, for an escape, for removing goods taken in exe- 
 cution without paying the year's rent to the landlord, and 
 the like. But the statutes, in question, gave' no right of 
 action to or against personal representatives for injuries 
 done to the person, or to the freehold of a decedent. Con- 
 sequently, an executor could not sue or be sued for assault 
 and battery, false imprisonment, slander, deceit, obstruct- 
 ing lights, cutting trees, trespass on real estate, or the 
 like. 
 
 And for injuries to personal property, by a deceased person, 
 an action ex delicto ^did not lie against his personal represen- 
 tatives for damages, either at common law or under the 
 statutes. They could not, therefore, be sued in trespass or 
 trover. But if the specific goods remained, they might be 
 recovered by replevin or detinue, or, if they were consumed, 
 the executors might be sued for money had and received, 
 in assumpsit, to recover their value. 
 
266 COMMON LAW PRACTICE. 
 
 Before If ^ sole plaintiff or defendant died before a 
 
 verdict, etc. verdict, or judgment by default, the action was 
 said to abate. The action died, but the cause of action 
 might survive, as in cases above mentioned, in which case 
 a new action might be brought by the plaintiff or his repre- 
 sentatives against the defendant or his representatives. 
 
 But where there were several plaintiffs or defendants and 
 some of them died, if the cause of action survived to or 
 against the others, the action did not abate, but the death 
 was simply suggested upon the roll, and the action proceeded 
 by or against the survivors. 
 
 After If 3. sole plaintiff or defendant died after verdict 
 verdict, ^nd before final judgment, the action did not abate, 
 if it was such as could originally be brought by or against 
 an executor; but final judgment was signed, as if the party 
 were still alive, and then revived by scire facias, by or 
 against the executor or administrator. 
 
 And if either party died after verdict, in vacation, judg- 
 ment might be entered as of the preceding term, and it was 
 a good judgment as of that term, though not in respect to 
 purchasers, except from the time of signing, since the Statute 
 of Frauds. And where either party died pending argument 
 or deliberation on a special verdict, or motion in arrest or 
 for a new trial, judgment was entered afterwards, as of the 
 term to which the postea was returnable, so that the court's 
 delay should not prejudice. 
 
 In case one of several parties died after verdict and be- 
 fore judgment, there was no abatement, but, the death being 
 suggested on the roll, judgment was entered for or against 
 the survivors, and execution issued accordingly. 
 
 After Inter- After inteHocutory judgment, as judgment by 
 locutory default, if a sole plaintiff or defendant died, the 
 ju gment. ^ction did not abate, if it was one which might 
 have been brought by or against an executor, but it could 
 be revived by scire facias, and the parties could thereupon 
 proceed to final judgment. "Where the action was on a bill 
 of exchange, the court have referred it, without a scire 
 facias, to the master, to compute the amount due, during 
 
EFFECT OF DEATH, ETC., UPON THE ACTION. 267 
 
 the same term in which the plaintiff died, because the iinal 
 judgment was signed as of the same term, and having rela- 
 tion to the first day of it, would appear to have been signed 
 before the p]aintiff"'s death. In case of the death of one of 
 several parties, plaintiffs or defendants, after interlocutory 
 and before final judgment, the death was suggested, and the 
 action proceeded against the survivors. 
 
 If a sole plaintiff or defendant died after final After final 
 judgment and before execution was issued, the ji^dgment. 
 action did not abate, but had to be revived by scire facias, 
 by or against the executor, etc., of the deceased. 
 
 Where one or more of several plaintiffs or defendants 
 died after final judgment and before execution, execution 
 might be sued out in the names of all, as if no death had 
 occurred, but could only be executed against the survivors; 
 or, on a suggestion of the death on the roll, execution might 
 be issued by or against the survivors by name; or, where it 
 was desired to have execution, by elegit, of the lands of a de- 
 ceased defendant, the judgment might be revived by scire 
 facias against his heir and terre tenants, and against the sur- 
 viving defendants, and an elegit thereupon sued out against 
 the lauds of the deceased and the goods and chattels of the 
 survivors. 
 
 If a defendant died after a writ of fieri facias issued, it 
 could be executed notwithstanding the death, and if it was 
 tested in the lifetime, it could be taken out and executed after- 
 the death of the defendant. 
 
 The death of a plaintiff in error, before the as- 
 signment of error, abated the writ, but not his 
 death after errors were assigned. 
 
 The death of a defendant in error in no case abated a writ, 
 but the death being suggested on the roll, the writ proceeded 
 against the survivors, if there were several defendants; and 
 if a sole defendant died, his representatives were made par- 
 ties by scire facias ad audiendum errores. 
 
 If the principal debtor died at any time before the 
 return of the ca. sa., the bail to the action were dis- 
 
268 COMMON LAW PRACTICE. 
 
 s 
 
 charged, but if he was not arrested under the ca. sa. before 
 it was returnable, the bail were fixed and his death after- 
 wards did not discharge them. The death of a principal 
 did not, however, discharge bail in error. 
 
 If a plaintiff became bankrupt, pending a suit, 
 his assignees continued it in the name of the 
 plaintiff, to final judgment; or, in case of error brought, to 
 affirmance, and then revived it by scire facias. But if a per- 
 son became bankrupt before commencing an action, it was 
 prosecuted in the name of the assignees. 
 
 If the defendant became bankrupt and obtained his cer- 
 tificate before the bail were fixed, the bail were thereby dis- 
 charged. 
 
 If a feme sole plaintiff" married during the prog- 
 ress of a suit, before judgment, the suit abated. If 
 she married after the judgment, and before execution, a 
 scire facias was necessary to make the husband a party. 
 
 If a feme sole defendant married pending the suit, it had 
 no effect upon the suit. If she married after the judgment, 
 the husband could only be made party to the judgment by 
 a scire facias. 
 
 The form of the suggestion was, simply, an entry on 
 the roll, that the party " gives the court to understand 
 and be informed, that since the last continuance, the dece- 
 dent died," etc. If it occurred before issue joined, the sug- 
 gestion was made at the commencement of the next plead- 
 ing, so as to appear on the face of the issue, when made up. 
 If it happened after issue joined, it was not necessary to sug- 
 gest it on the roll. Even after motion to set aside proceed- 
 ings for irregularity, because, notwithstanding the death of 
 one of two plaintiffs before interlocutory judgment, the suit 
 proceeded to execution in the name of both, the court have 
 allowed the surviving plaintiff to suggest the death of the 
 other on the roll and to amend the ca. sa. without payment 
 of costs. 2 Arch. Pr., 262-266; 2 Tidd, 857, 915. 
 
EFFECT OF DEATH, ETC., UPON THE ACTION. 269 
 
 In Maryland it was provided by an act of Assembly, of 
 1785, ch. 80, that no action should abate by the death of 
 either of the parties. A subsequent act, of 1798, ch. 101, 
 sub-ch. 14, provided, that no personal action should abate 
 by the death of either party, and required executors and ad- 
 ministrators to conform to the directions of the prior act, 
 respecting the prosecution and defense of such action. 
 
 It was not understood that this act had the effect of 
 making causes of action survive, which did not survive at 
 common law, but it was supposed merely to mean, that 
 where the cause of action would survive, it should not be 
 necessary, in consequence of the abatement of the action, 
 to bring a new one. It therefore provided, in such cases, 
 for the continuance of the action already brought, by or 
 against the representatives of the deceased. But actions 
 for mere personal injuries, such as assaults, slander, etc., 
 were held to abate, notwithstanding the act. 
 
 In the case of a party's death, it was suggested verbally, 
 by the attorney, to the clerk, in open court, and a memoran- 
 dum of it entered on the docket. Where a sole party died, 
 it was done either by the opposite party or by the repre- 
 sentative of the deceased, or by the attorney who repre- 
 sented the deceased. Where one of several died, the sur- 
 vivors or the opposite party made the suggestion. The 
 suggestion could be traversed, but was considered admit- 
 ted, if not at once traversed. As soon as the suggestion was ' 
 made, unless a traverse was taken, the representative of the 
 deceased could appear. If he failed to do so, at the term 
 in which the suggestion was made, a summons could issue 
 for him, returnable to the next term. When the process 
 was returned served, and the representative failed to appear, 
 he could be attached for contempt. Besides this, if the de- 
 cedent was plaintiff, a judgment of non pros, was entered. 
 If he was defendant, the court could enter the appearance 
 of the representative, and proceed as if he had voluntarily 
 appeared. 
 
 If the representative died after appearing, similar pro- 
 ceedings might be had against the person succeeding to the 
 title, as an administrator de bonis non, and if there was no 
 
270 COMMON LAW PRACTICE. 
 
 legal executor or administrator, a summons could go to an 
 executor de son tort. 
 
 The action proceeded as if originally brought between 
 the substituted parties. If no appearance or proceeding 
 took place on either side, a.fter the death was suggested, 
 before the tenth day of the second court, the action was to 
 be discontinued. But if there was an appearance or a sum- 
 mons issued, the cause might be continued to the third term 
 after the appearance term, being the fourth from the sug- 
 gestion. 
 
 The proper persons to be summoned, if the suit related 
 to real estate, were the heirs or devisees, and in other cases, 
 the executor or administrator. 
 
 Where an infant was made party, as heir to a deceased 
 party, in a suit relating to real estate, the cause had to be 
 continued until he arrived at age, unless his guardian or 
 next friend should satisfy the court that it would be for his 
 benefit to have the case tried at an earlier period. 
 
 It was further provided, that where a case was referred, 
 by consent of parties and rule of court, and a party's death 
 happened before the return of the award and judgment upon 
 it, the suit should not abate, but upon reasonable notice to 
 the representative of the deceased, not being a minor, the 
 arbitrators might proceed to a determination, and return 
 their award, upon which judgment might be entered. 
 
 It was held that where both parties died pending a refer- 
 ence, the action did not abate, but suggestions might be 
 entered and new parties made. 
 
 It was further held that the death of the plaintiff's lessor 
 in ejectment would have abated the suit at common law, 
 and, under the acts above mentioned, necessitated the 
 making of new parties. Evans's Pr., 199, 250. 
 
 In the courts of the United Stales, the death of either 
 party works no abatement of a personal action, where the 
 cause of action survives. 
 
 It is provided, that where the death occurs at any time 
 before final judgment, the executor or administrator may 
 prosecute or defend, to final judgment. The defendant is 
 
ARBITRATION. 271 
 
 required to answer accordingly, and judgment to be giyen 
 for or against the executor or administrator, as the case may , 
 require. 
 
 If the executor or administrator, having been dul}' served 
 with a scire facias, from the office of the clerk of the court 
 where the suit is depending, twenty days beforehand, ne- 
 glects or refuses to become a party to the suit, the court may 
 render judgment against the estate of the deceased party, 
 in the same manner as if the executor or administrator had 
 voluntarily appeared. When he appears, he shall be en- 
 titled to a continuance of the suit until the next term of the 
 court. 
 
 Where there are two or more plaintiffs or defendants, and 
 one dies, if the cause of action survives to or against the 
 survivors, the action is to proceed for or against the sur- 
 vivors, the death being suggested ou the record. Rev. Stat., 
 Sees. 955, 956. 
 
 The law is held to apply to personal actions only, and in 
 a writ of right the heirs of a deceased party could not be 
 made parties. 
 
 The statute does not affect the caseof marriage of a female 
 plaintiff. The effect of this depends upon the statutes or 
 common law of the States. Conkling's Treatise, p. 290. 
 
 Section XIX. 
 
 ARBITRATION. 
 
 Where an action was pending, in which the defendant 
 had been held to bail, the matter in controversy could not 
 be referred to arbitration without discharging the bail; 
 whence, the practice was, in such case, to take a verdict, 
 when the case was called at nisi prius, for the damages 
 claimed in the declaration, subject to the award of the person 
 to whom the cause was to be referred. 
 
 But if the defendant had not been held to bail, the refer- 
 ence might be made by rule of the court, at anytime before 
 trial, or by order at nisi prius, with or without a verdict. 
 
 Where an attorney agreed to refer a cause at nisi prius, 
 
272 COMMON LAW PRACTICE. 
 
 without the consent or knowledge of his client, the court 
 refused to set it aside on that account, even upon applica- 
 tion made before any proceedings before the arbitrator. 
 
 The rule referring a cause was obtained upon a motion or 
 consent of counsel or attorneys, 
 
 "Where no suit had been brought, matters of 
 
 Without suit. . - -n . /. ^1 1 .< 
 
 controversy might still be referred to an arbitra- 
 tor, in sevei-al ways. It might be done by a mere agreement 
 of submission, sealed or not, in writing; or by such agree- 
 ment, with the additional assent of the parties, that it be 
 made a rule of court, in pursuance of the Stat. 9 and 10 W. 
 Ill, ch. 15; or by parol agreement only, in which last case, 
 the submission could not be made a rule of court. 
 
 A submission could not be executed by attorney, except 
 by virtue of a power of attorney. And when an attorney so 
 acted, without a power, and the arbitrator awarded a pay- 
 ment to be made by the attorney, the court held that he, 
 and not his client, was bound. 
 
 In order that the voluntary submission might be made a 
 rule of court, under the above statute, it was requisite that 
 the cause of action should be one for which there was no 
 other remedy but by personal action or suit in equity. 
 
 Consequently, it has been refused where the matter in 
 controversy had been the subject of indictment, being an 
 assault; and where a debt, of which payment was awarded, 
 had grown out of an illegal transaction, the award, as to 
 that, was set aside. 
 
 An award could not pass title to real estate, but it might 
 direct the conveyance or release of land, and consequently 
 the question of right to^such conveyance was a proper sub- 
 ject of submission. 
 
 It was important that the submission should 
 
 Submission. .„,..,, _ 
 
 specify distinctly the matter of controversy sub- 
 mitted, or, if general, should be of all matters of difference 
 between the parties. 
 
 A submission of all matters of difference would seem to 
 preclude one of the parties from suing on a claim existing 
 
ARBITRATION. 273 
 
 at the time of the reference, though it was not, in fact, laid 
 before the arbitrator. 
 
 A submission bj iin executor or administrator, was not 
 considered as an admission of assets, but as including a sub- 
 mission of the question of assets, so that an award against 
 him of the payment of a sum of money was a finding that 
 he had assets to that amount. 
 
 The consent generally was that the submission be made a 
 rule of a court. But it was held an- immaterial mistake to 
 use the term award instead oi' submission. 
 
 Even after entering into the submission and 
 consenting to its being made a rule of court, either 
 party might revoke the submission by deed, at any time 
 before the award, and before it was made a rule of court, 
 and was not afterwards liable to attachment for non-perform- 
 ance of the award, especially if the arbitrator had notice 
 before the award was made. But the bond of submission 
 became thereby forfeited and might immediately be sued on. 
 
 The death of either party was also a revocation of a 
 submission, even where a verdict was taken, subject to the 
 award. 
 
 It was usual, when a cause was referred at nisi prius, if 
 the witnesses were in court, to have them sworn there. In 
 other cases, the witnesses were taken to the judge's cham- 
 bers and sworn by his clerk, who gave a memorandum of 
 the fact. If, however, the witnesses went before the arbi- 
 trator and testified without being sworn, and without objec- 
 tion made before him, it was not ground for setting aside 
 the award. 
 
 The next step was to obtain an appointment from the 
 arbitrator, of the time and place of hearing, and to serve a 
 copy of this, and the order or rule referring the cause, on 
 the opposite party. In case of a submission out of court, a 
 simple notice by the arbitrator was sufficient. 
 
 As part of the order or rule of reference, it was important 
 that a stay of proceedings in the cause be ordered, for other- 
 wise, the reference did not operate as such stay. 
 
 18 
 
274 COMMON LAW PRACTICE. 
 
 The arbitrator, at the time appointed, heard the counsel 
 and witnesses in the same order as the court at nisi prius. 
 
 The award was signed by the arbitrator in the 
 
 Award. ^ . -. ^ . ,. i « 
 
 presence oi a witness, and the attorneys notined or 
 it, and eacli party received his part or copy, on payment of 
 expenses. After it was delivered, or after notice that it was 
 ready for delivery, no error in its calculations, or in the 
 amount awarded, could be corrected. 
 
 If it became necessary to enlarge the time for making the 
 award, the arbitrator himself might do it, if within the terms 
 of the submission, but notice to the parties, of such enlarge- 
 ment, was required. Where no power was given in the 
 submission, a rule for the purpose could be obtained from 
 the clerk of the rules, and a new appointment obtained from 
 the arbitrator. In case of private submission, the written 
 consent of the partieswas sufficient. 
 
 Where the reference was to two or more arbitra- 
 tors, the submission usually provided that if they 
 should not agree upon an award before a specified time, an 
 umpire should be appointed, by whose award the parties 
 should abide. He was sometimes named in the submission, 
 and sometimes his appointment was left to the arbitrators. 
 In the latter case, the appointment could be made by them 
 at any time before or after the time limited for the arbitra- 
 tors to make up their award, and before the time limited for 
 the umpire to make his decision. They could do so, in fact, 
 before entering upon the examination of the matter referred. 
 Where the umpire was chosen by lot, this was held not to 
 vitiate the award. 
 
 The office of the arbitrator was determined by the ap- 
 pointment of an umpire. But if he refused to act, they 
 could appoint another, and if they united with him in his 
 decision, it was only surplusage, and did not vitiate it. 
 
 In case of a submission out of court, no costs could 
 be awarded unless provided for by the submission, but 
 each party paid his own costs and half the costs of the ref- 
 -erence. 
 
AKBITRATION. 275 
 
 In case of an action referred, if the order or rule of ref- 
 erence was silent on the subject, the arbitrator might award 
 costs of the action but not of the reference. The latter were 
 borne equally, as in the case of a private reference. 
 
 If the rule required each party to pay half the costs of 
 the reference, either might pay the whole and have the same 
 remedy, against the other, for non-payment of his moiety, 
 as he would for the non-performance of other parts of the 
 award. 
 
 The arbitrator was functus officio as soon as his award 
 was made, and could not afterwards alter it in any essential 
 part. After the time limited for that purpose, he could 
 make no award. His authority was also terminated by the 
 appointment of an umpire, by an express revocation, by an 
 implied revocation, as by the marriage of a feme sole party, 
 or the death of either party after the submission and before 
 the award was made. 
 
 On an application to set aside an award, the court getting 
 would not review the judgmeht of the arbitrators, °■^^^^■ 
 fairly given, upon the merits. Unless it could be made plain 
 that the arbitrators acted dishonestly or corruptly, the court 
 would not enter upon an examination of the merits. 
 
 It would set aside the award if it did not pursue the terms 
 of the submission in every material point. If the arbitrator 
 decided matters without it, or omitted to decide those within 
 it which were laid before him, it was fatal to the award. 
 This was also the case when the award went beyond the 
 submission, and decided more matters than were embraced 
 in it. It was the same if the award was against a stranger 
 to the submission, or if it was in favor of a stranger, unless 
 it was for the benefit of a party to it. 
 
 Uncertainty in a material part of the award was a fatal 
 defect. But where it required a party to do one of several 
 possible things, it was considered sufficient. So where it 
 required something to be done within sucji a time from the 
 date of the award, where there was no date to it, or from the 
 date of another instrument, without mentioning the date. 
 
276 COMMON LAW PRACTICE. 
 
 The award was bad if it was not a final settlement of the 
 matters referred, or where it directed acts to be performed 
 conditionally, or money to be paid unless further proof 
 should be produced within so many days, which might be 
 after the time limited for making the award. An award 
 that one should give his promissory note for a sum certain, 
 was considered final. So with an award that one should 
 pay a sum, at a future day, in full of all demands. 
 
 Inconsistency was also a ground for setting aside, as where 
 the award was that A. should pay B. £100 and both give gen- 
 eral releases, and that B. should afterwards pay back £20 
 to A. 
 
 If the award was ineffective, as where, upon a submission 
 for a partition between tenants in common, it simply allotted 
 their portions to the several tenants, without requiring deeds 
 to be made, or where it directed any of the parties to do 
 something illegal, it was bad. 
 
 If an arbitrator was guilty of misconduct or unfairness, 
 as by refusing to receive evidence, the award was set aside. 
 
 But the court refuspd to vacate the award on the ground 
 of a refusal to receive further evidence after the examination 
 was closed; and again, where the umpire received the evi- 
 dence from the arbitrators instead of the witnesses, where 
 he had not been requested to examine the latter; and again, 
 even where, after the evidence was closed, the arbitrators 
 examined one of defendant's witnesses. 
 
 If the arbitrator made a mistake in matter of law, which 
 appeared on the face of the award or of a paper filed with 
 it, the award would be set aside; but if it did not appear 
 on the award, the court would not set the award aside upon 
 a mere suggestion of the mistake, or upon affidavit of the 
 fact. 
 
 Where the award was good in part, that part might be 
 enforced, if it was entirely distinct from and independent 
 of the rest. 
 
 If the cause was referred to three arbitrators, with power 
 to any two of them to act, an award by two was held good, 
 the third having had notice of the meetings. 
 
ARBITRATION. 277 
 
 On a reference of a pending action, the arbitrators could 
 not award more than the damages claimed in the declaration. 
 
 An award made under a reference of a pending action, or 
 under a submission which was made a rule of court, could 
 be set aside, on application, by the court. 
 
 But a private submission of controversies to an arbitrator 
 did not admit of such proceeding. If the objections were 
 such as could not be availed of in pleading to a suit on the 
 award, or bond for its performance, the redress was in equity. 
 
 When the submission was made out of court, with a con- 
 sent that it be made a rule of court, the proceeding to set 
 aside tlie award was, first, to have the submission made a 
 rule of court, and then to move for a rule to show cause why 
 the award should not be set aside, upon an affidavit as to 
 any facts necessary to sustain the objections to it. 
 
 Where the submission was by agreement, with- Mode of 
 out suit pending or consent to make it a rule of enforcing, 
 court, the only means of enforcing an award was an action. 
 If the submission was by bond, the successful party might 
 sue in debt on the bond; if jt was a parol agreement, he 
 might sue in assumpsit on the submission. If, in any case, 
 the award was for payment of money, he might sue in debt 
 on the award. But a demurrer would lie to debt on an 
 award against an executor or administrator, where the sub- 
 mission was by the deceased. 
 
 Where, in an arbitration bond, a time was limited for 
 making the award, and the time was enlarged by consent, 
 it was held that the bond could not be sued on to recover 
 the penalty, or for not performing an award made after the 
 time first limited ; the suit should have been assumpsit on 
 the agreement to enlarge the time. 
 
 In an action of debt on an award, if any defect invali- 
 dating it appeared ou its face, it might be set out on oyer 
 and demurred to. But an objection extrinsic to the instru- 
 ment could not be pleaded in bar or shown under the gen- 
 eral issue, and could only be taken advantage of by bill in 
 equity. 
 
 If an action was referred, or the submission made a rule 
 
278 COMMON LAW PRACTICE. 
 
 of court, ill the maimer already mentioned, the plaintiff 
 might either have his action on the award or enforce it by 
 attachment. Upon affidavit of demand and refusal, and of 
 the service of a copy of the award and of the rule, the plain- 
 tiff moved for a rule nisi for an attachment, for non-perform- 
 ance of the award. 
 
 Ill showing cause against the rule for an attachment, the 
 opposite party might impeach the award for any defect ap- 
 pearing on the face of it, though it might be too late to 
 move to set aside, but not for matter extrinsic to it. At- 
 tachment was, in no case, granted against privileged per- 
 sons, such as peers, or commoners during their time of 
 privilege, nor against an executor where the submission 
 was by his testator, nor was it granted pending a rule to set 
 the award aside, nor pending an action on the award, nor 
 was a plaintiff allowed to waive his action, in order to apply 
 for the attachment. And where a party had consented to 
 abide by an award and not to bring a bill in equity, and the 
 submission was made a rule of court, and after the award, 
 he filed a bill to set it aside, an attachment was granted. 
 On proof of loss of the original, a copy was sufficient for 
 grounding the application for an attachment. 
 
 If, in a cause in court, a verdict was taken in pursuance 
 of an award, in favor of the plaintiff, he might either pro- 
 ceed as already mentioned, by action or attachment, or pro- 
 ceed to enter a judgment on the verdict and sue out execu- 
 tion. It was not necessary to serve the defendant with a 
 copy of the award or to obtain leave of the court to sign 
 jugment. 
 
 Where the award was for payment of money at a particu- 
 lar time, the execution could not be sued out before the 
 time expired. 2 Arch. Pr., 283-295. 
 
 In Blaryland the English practice of references obtained, 
 until it was partially superseded by the practice authorized 
 by statute. 
 
 The act of 1778, ch. 20, provided, that if any cause, in any 
 court of the State, should, by rule of court and by the consent 
 and agreement of the parties, be submitted and referred to 
 
ARBITKATION. 279 
 
 the award and arbitrament of anj' person or persona, it 
 should be lawful for the court to give judgment upon the 
 award of the person or persons to whom the reference 
 should be made, as of the court to which the award should 
 be returned, and to award execution thereon in the same 
 manner as they might do on verdict, confession, or nonsuit, 
 and that such judgment should have the same effect as any 
 judgment on verdict or confession would have; provided, 
 that the award should remain four days in any county court 
 to which it might be returned, before judgment should be 
 entered up. 
 
 It further enacted, that if it should appear to the court 
 that the award was obtained by fraud, or malpractice in, or 
 by surprise, imposition or deception of, the arbitrators, or 
 without due notice to the parties or their attorneys, the 
 court might set aside such award and refuse to give judg- 
 ment on it. 
 
 An act of 1785, ch. 80, provided, that in case any arbitra- 
 tor, appointed by the parties, should die or refuse to act, the 
 court should, on motion of either party, appoint another per- 
 son in his place who should have the power to decide as if 
 appointed by the parties; and that if the award siiould not 
 be returned within eight months after the reference, the 
 court might compel the arbitrators to return the award, or 
 give their reasons for not doing it; or, in their discretion, 
 might, on motion of either party, reinstate the cause, and 
 proceed so as to have the same fairly tried in court, as if it 
 had never been referred. It also required that the party in 
 whose favor the award should be made, should caus^acopy 
 of it to be delivered to the adverse party, or his attorney, at 
 least three days before judgment should be moved for, on 
 the award; that the clerk should not enter judgment upon 
 the award without a motion to and direction from the court, 
 and that the court should always have satisfactory proof of 
 the delivery of the copy to the adverse party, before direct- 
 ing judgment to be entered on the award. 
 
 Instead of the English practice of making a submission a 
 rule of court, it was usual to bring an action for the express 
 
280 COMMON LAW PRACTICE. 
 
 purpose of referring. The reference could be made at any 
 time after the return of the writ, even before and without 
 the filing of the declaration. 
 
 The reference, if special, was in writing, signed by the 
 attorneys. If general, it might be made orally by instruc- 
 tions in open court, to the clerk, \vho entered on the docket 
 the words " referred to A. B." A special reference was en- 
 tered by the words " referred, agreement filed." By con- 
 sent, the reference could be made to one person. If the 
 parties could not agree, each named one arbitrator. The 
 entry "referred in the usual way" authorized the clerk, in 
 drawing up the rule in form, to insert a power to choose an 
 umpire, in case of disagreement. After the entry on the 
 docket, the clerk, when required, drew up the rule for a 
 reference and signed it and delivered it to the party apply- 
 ing for it. 
 
 Where there were two arbitrators, they might at once 
 appoint an umpire, without waiting to disagree. They 
 might either appoint an umpire or a third person. On the 
 appointment of an umpire, the authority of the arbitratprs 
 ceased. The umpire had entire control of the case, and 
 ■ might decide it in opposition to the opinion of both arbitra- 
 tors. A third person, however, acted jointly with the 
 arbitrators, and the decision of any two was binding on the 
 parties. The usual course was, to appoint the umpire or 
 third person at once, to save the repetition of the testimony 
 and the hearing. 
 
 The arbitrators had no authority to compel the attendance 
 of witnesses, and it was considered that in consenting to a 
 reference, a party took the risk of being unable to produce 
 unwilling witnesses. The arbitrators had authority, by 
 usage, to swear the witnesses. But a witness could not be 
 indicted for false swearing before the arbitrators, either 
 when sworn by them, or when sworn by a justice to testif)' 
 before them, his oath, in either ease, being a voluntary one. 
 
 The general rules before laid down, as to the conduct of an 
 arbitrator and the essentials of a valid award, were applicable. 
 
 The party against whom the award was made, might file 
 exceptions against it for defects apparent on its face, or move 
 
ATTACHMBNT. 281 
 
 to set it aside upon grounds not apparent on its face, and 
 which required to be supported by affidavit, or he might do 
 both at oiice. The two proceedings could go on as one and 
 be embraced in the same paper. 
 
 The award could be set aside, upon exception, for any 
 defect on its face, or for error of law there appearing, though 
 it was also understood that the parties might refer questions 
 of law to the final decision of the arbitrator. On questions 
 of fact, the arbitrator's decision was considered final. 
 
 It was held that the court could onlj' set aside the award, 
 for reasons not apparent in it, when they were some one or 
 more of those mentioned in the act of Assembly. Afi&davits 
 and counter-afiidavits were heard, on the allegation of such 
 matter. 
 
 The reinstatement, for trial byjury, of acaseonce referred, 
 was granted with difliculty, and there was doubt whether 
 it could be properly done, except in the case of a delay for 
 eight months in returning the award, the case expressly 
 provided for in the act of Assembly. 
 
 When parties died after a reference, it was held prema- 
 ture to make new parties until the award was returned, the 
 act of Assembly positively requiring the case to be con- 
 tinued until such return. Evans's Pr., 241-351. 
 
 Section XX. 
 
 ATTACHMENT. 
 
 An attachment was a proceeding, criminal in its nature, 
 to punish for contempts committed against the court, or 
 misconduct of officers or others particularly under its con- 
 trol. 
 
 Thus, if one who was served with process used contemp- 
 tuous expressions concerning the court or its process, the 
 court, upon affidavit of the fact, would issue an attachment. 
 
 The rule was absolute, in the first instance, if the^ con- 
 temptuous language related to the court, and a ru\&^ nisi i f 
 it related to its process. 
 
282 COMMON LAW PRACTICE. 
 
 If a prisoner was rescued from the sheriff, and that fact 
 returned by the latter, the return was a conviction of the 
 party rescuing, and not traversable, and his only remedy for 
 a false return was an action. In such case, the attachment 
 was absolute in the first instance. 
 
 Attorneys were proceeded against by attachment for pro- 
 fessional misconduct. 
 
 The sheriff, as alreadj'' seen, was liable to attach- 
 ment for not obeying any rule of the court, as the 
 rule to return the writ or bring in the body, in which case 
 the attachment was absolute in the first instance. The same 
 was the case with the coroner when writs were issued to 
 him. For not executing a writ, or doing it imperfectly or 
 oppressively, attachments would issue against either officer. 
 There were some cases, however, in which a party's remedy 
 against the shei-iff was an action, as, for not taking a bond 
 in replevin. 
 
 Other persons, not officers of the court, were liable to at- 
 tachment for any disobedience of its process. 
 
 A witness served with a subpoena would be at- 
 tached for refusing to attend, on affidavit of per- 
 sonal service of the writ and the tender of his expenses. 
 
 For disobedien'ce of any rule of court or any judge's 
 order, such as the non-performance of an award made 
 under rule of court, a party to a cause was liable to attach- 
 ment. A contempt was not committed by such disobedience, 
 unless the rule or order was personally served on the party. 
 Any abuse of the process of the court was ground for at- 
 tachment, as where execution was sued out without a judg- 
 ment, or where a plaintiff", after bringing an action in one 
 court, commenced another for the same debt in another 
 court against the same defendant, or where a bailable ac- 
 tion was commenced against a witness, and he was arrested 
 to prevent him from testifying, or where process of the 
 court was forged or altered, or filled up after being issued, 
 
ATTACHMENT. 283 
 
 or some one was made to personify a party, to admit ser- 
 vice, or where a party tampered with a jury, or threatened 
 a prosecution, and the like. 
 
 For contempts committed in the presence of the court, it 
 was not necessary to issue an attachment, nor was an affi- 
 davit necessary. The court found the fact upon its own 
 view, and ordered the offender to be apprehended and im- 
 prisoned, or fined, in its discretion. 
 
 The rule for an attachment was, as we have seen, 
 absolute or nisi. The former might be had even on 
 the last day of a term, the latter not. 
 
 If it was a rule nisi, it was served by exhibiting the orig- 
 inal to the party, and leaving a copy with hira; and if he 
 kept out of the way to avoid service, the court would order 
 that leaving a copy at his last usual place of abode should 
 be deemed sufficient service. On affidavit of service, if no 
 cause was shown, the rule was made absolute, on motion. 
 The attachment was then procured from the proper clerk, 
 returnable on a general return day, and delivered to the 
 sheriff", on whose warrant the party was arrested. 
 
 If the sheriff' failed to return the attachment, he might 
 be ruled to do so. 
 
 Where the defendant was arrested, he was brought into 
 court, or before a judge at chambers, iind sworn to answer 
 interrogatories. He was then either committed to piisoii, 
 or allowed to give his recognizance, with sureties, to appear 
 in court, from day to day, to answer interrogatories concern- 
 ing the matter complained of against him. It was discre- 
 tionary with the court whether they would allow a party to 
 be thus bailed or not, and in gross cases it was refused. 
 Where bail was allowed, the bail justified, and the recogni- 
 zance was taken, as in other cases of admitting to bail. 
 
 Upon commitment of the defendant, or his giving bail, 
 the court would rule that unless the prosecutor should ex- 
 hibit interrogatories against him within four days, he should 
 be discharged. 
 
284 COMMON LAW PRACTICE. 
 
 la ease of the prosecutor's omi.ssion to file the interroga- 
 tories, the defendant might move to be discharged from cus- 
 tody, or that his recognizance be discharged, as the case 
 might be. The interrogatories might, however, be filed at 
 any time before motion for discharge. 
 
 An attachment for non-payment of money was considered 
 in the nature of an execution, and no interrogatories were 
 necessary. In other cases, the interrogatories were consid- 
 ered as containing the charge against the defendant, the at- 
 tachment being the process for bringing him before the 
 court. The interrogatories were therefore as necessary as 
 an indictment. The defendant could not come in and con- 
 fess the contempt before the interrogatories were filed, as 
 there was no charge against him, until then, to which he 
 could plead. The attachment for a rescue was somewhat 
 in the nature of an execution, because the 8herifi''s return 
 was a conviction. Yet it was the uniform practice, in such 
 case, to put the defendant to answer interrogatories, unless 
 the prosecutor consented to his confessing the contempt 
 without them. 
 
 When the -interrogatories were engrossed and filed with 
 the examiner, a rule was obtained from the clerk of the 
 rules to have the defendant brought before the examiner, 
 an appointment obtained from the latter, and copies served 
 on the defendant, or his attorney, and on the marshal, if he 
 was in custody. If the defendant, being in custody, refused 
 to answer, he might be recommitted. If out on bail, he re- 
 fused to attend, his recognizance might be estreated, and a 
 second attachment might be issued for the new contempt, 
 and the court could punish him in their discretion. 
 
 When the examination was completed, it was referred to 
 the master, on motion. If the master's report showed that 
 he had cleared himself of the contempt in his answer, the 
 court discharged him, or, if he was out on bail, discharged 
 his recognizance. He was, however, liable to an indictment 
 for perjury if his answers were false. 
 
 If the answers confessed the contempt, the master so re- 
 ported, and the court gave judgment of fine or imprison- 
 
FEIGNED ISSUES. 285 
 
 ment, or both, as upon a conviction at common law for a 
 misdemeanor. 
 
 It was, however, discretionary with the court, whether to 
 give the judgment or discharge the defendant. 
 
 If the defendant cleared himself, he was not strictl}' en- 
 titled to costs, unless the prosecutor's conduct was deemed 
 vexatious, in which case he was required to pay the defend- 
 ant's costs. 
 
 Altliough an attachment for non-paymetit of money, or 
 non-performance of an award, was in the nature of an exe- 
 cution, and interrogatories were not filed, the defendant who 
 disputed the contempt, might rule his adversary to file them, 
 and proceed as in other cases. 
 
 The proceeding in attachment, against sheriflTs, has already 
 been explained. 2 Arch. Pr., 296-302. 
 
 Section XXI. 
 
 FEIGNED ISSUES., 
 
 If a material fact came into controversy before a court of 
 law, upon a motion or otherwise, not in the regular course 
 of pleading, which was of too much importance to be de- 
 cided in a summary way, the court could order it to be tried 
 in a feigned issue. 
 
 These issues, however, were ordinarily tried under orders 
 of the Court of Chancery, in order that the conscience of 
 the chancellor might be enlightened by the verdict of a jury. 
 This was generally done in cases involving the title to land, 
 and especially in such as turned upon the validity of wills, 
 the fact of heirship, etc. 
 
 The chancellor, by his interlocutory decree, generally or- 
 dered the issue to be made up in one of the courts at West- 
 minster, and to be tried in Middlesex or London, or at some 
 one of the county assizes, and directed which party should 
 hold the aflSrmative of the issue as plaintiff. 
 
 The issue was then made up as in other actions, com- 
 mencing with a declaration in assumpsit, upon a feigned 
 
286 COMMON LAW PRACTICE. 
 
 wager whether the fact intended to be put in issue was true 
 or not. This was followed by a plea admitting the wager, 
 and denying the fact to be as averred in the declaration, a 
 joinder of issue and the award of the venire facias. 
 
 If several facts were to be put in issue, there were sepa- 
 rate counts and pleas as to each, so that the jury might find 
 separately as to each. 
 
 The issue was settled by counsel, if they could agree, and 
 if they could ndt, by the master named for that purpose, in 
 the interlocutory order. 
 
 Notice of trial had to be given, and the nisi prius record 
 made up, sealed, and passed, and the case entered for trial, 
 as in ordinary cases. 
 
 The defendant might take down the record by proviso, 
 upon application to the court. And if the plaintiff failed 
 to bring the issue to trial by the time directed, without good 
 reason, the court of equity would order the matter involved 
 in the issue to be taken pro confesso against him. 
 
 The trial followed the course of other trials, except that 
 the interlocutory decree often directed what matters should 
 be admitted or allowed in evidence, that depositions of de- 
 ceased or sick witnesses should be read, that the parties 
 "themselves should be examined, etc., all which directions it 
 was necessary to observe strictly. 
 
 The postea was indorsed on the nisi prius record, as in 
 other cases. It was not necessary, however, to enter up 
 judgment, since the verdict of the jury on the disputed ques- 
 tion of fact was what the court of equity required. 
 
 The judge who presided certified the finding of the jury. 
 He might add, to the certificate of the finding, such com- 
 ments as he thought proper, such asj that the verdict was, 
 in his opinion, contrary to the evidence. 
 
 Where the feigned issue was ordered by a court of law, 
 costs followed the verdict, unless it was made a condition in 
 the order, that they should be in the discretion of the court. 
 
 Where the issue was ordered by a court of equity, costs 
 
OTHER PROCEEDINGS IN MARYLAND. 287 
 
 were entirely in the discretion of that court, and were not 
 given by the court of law. 
 
 A party against whom the issue was found might apply 
 for a new trial, either to the court of trial, or to the court 
 which ordered the issue. 
 
 The court of equity would order a new trial in cases in 
 which it would be granted by a court of law, and in other 
 cases also. 
 
 If the presiding judge certified any misbehavior of the 
 jury, or that the verdict was against the evidence, the court 
 of equity would, on application, order a new trial. The 
 same was done in case of misdirection of the jury, or the 
 improper exclusion of evidence, where it worked injustice, 
 or of surprise practiced upon a party, notwithstanding the 
 judge may have certified in favor of the verdict. 
 
 The court of equity might order a second or third trialin 
 its discretion, and be guided by, or disregard, the findings 
 of the jury. 
 
 In Maryland and the District of Columbia, issues are sent 
 to be tried by a court of common law, from the courts of 
 equity and the orphans' courts. 
 
 They are, however, made up in the form of simple ques- 
 tions, on which one party holds the affirmative, but without 
 pleadings. 
 
 The control of the court of equity over the subject of 
 costs and new trials is recognized. 
 
 Section XXII. 
 
 OTHER INCIDENTAL PROCEEDINGS PECULIAR TO MARYLAND 
 PRACTICE. 
 
 It was the privilege of an attorney to retire from a case, 
 as far as the opposite party was concerned. Permission was 
 asked and was given, as a matter of course. 
 
 In such case, it was usual to lay a rule on the party to 
 
288 COMMON LAW PRACTICE. 
 
 employ new counsel. The withdrawal of counsel was not 
 allowed to delay the other party in proceeding with the 
 cause, if he insisted upon his rights, though it was usual to 
 "consider the rule for new counsel as a good ground for a 
 continuance. 
 
 The party whose counsel had withdrawn was not entitled' 
 to insist on being served with this rale, and its omission was 
 not error which vitiated a judgment. Evans's Pr., 243. 
 
 By an act of Assembly of 1785, ch. 80, in all actions 
 grounded upon an account, or in which it might be neces- 
 sary to examine and determine on accounts between the 
 parties, the court was empowered to order the accounts and 
 dealings between the parties to be audited and stated by an 
 auditor appointed by the court, and it was directed that 
 there should be such proceedings thereon as in actions of 
 account. The auditor was generally the same person who 
 acted as such on the equity side of the court. In any form 
 of action, the reference might be made to him whenever 
 matters of account were involved, too intricate or lengthy 
 to be determined by a jury. As before stated, upon a judg- 
 ment for assets against an executor or administrator, a ref- 
 erence was made to an auditor to state the amount of assets 
 in hand, for which a final judgment should be rendered. 
 Id. 253. 
 
 Another proceeding was, the entry of a case to the use of 
 another person than the nominal plaintiff. 
 
 Official bonds, as those of executor, sheriff, and collector, 
 were made to the State, but any one interested was entitled 
 to sue on them in the name of the State. Several acts of 
 Assembly required, that before the issuing of the writ in 
 such cases, the clerk should indorse on it the names of the 
 parties for whose use the suit was brought, who were to be 
 responsible for costs to the defendant, in the same manner 
 as if they had been entered as security for costs by rule of 
 court. 
 
 Besides this, an attorney, at any time, might order a suit 
 to be entered for the use of any one, even himself. Any 
 
OTHER PROCEEDINGS IN MARYLAND. 289 
 
 controversy as to the right of the cestui que use, as against 
 the nominal plaintiff, was determined by the court, on mo- 
 tion, in a summary way. The cestui que use was protected 
 against admissions or other acts of the nominal plaintiff. 
 
 In suits on official bonds, it was necessary that in the as- 
 signment of breaches, either in the declaration or the repli- 
 cation, the interest of the cestui que use should appear. 
 
 His disability to sue could be replied to the plea of limita- 
 tions, in suits on testamentary and other official bonds. In 
 other cases, notwithstanding the death of the nominal plain- 
 tiff, he could prosecute the suit to judgment, and, after judg. 
 ment, issue a scire facias in his own name. Id. 260. 
 
 19 
 
290 MODERN ENGLISH PRACTICE. 
 
 OHAPTEE IX. 
 
 MODEEN ENGLISH PEACTICE. 
 
 O0R task would be incomplete without a brief notice of 
 recent legislation. 
 
 An act of 3 and 4 William IV, ch. 27, and certain acts of 
 1852, 1854, and 1860, called the Common Law Procedure 
 Acts, made fundamental changes in the procedure of the 
 English courts and in the forms of pleading. 
 
 The old forms of writs were entirely abolished, and one 
 form, called a writ of summons, substituted for them, in all 
 actions, except ejectment. In the latter, a writ of ejectment, 
 divested of all fictions, and calling directly upon the defend- 
 ant, in possession, to appear and defend against the plain- 
 tiff's alleged title, replaced the old proceeding founded upon 
 a supposed lease, entry, and ouster. 
 
 It was not necessary to mention any cause of action in the 
 writ of summons. Any one might sue out such a writ by 
 filling it out in the statutory form, having it sealed by the 
 proper officer of the court, and leaving a praecipe with him. 
 
 The writ issued in the name of the Queen, and was tested 
 in the name of the chief justice or senior judge of the court 
 from which it issued. 
 
 The amount of the debt claimed and costs, where the 
 action was to recover a debt, was required to be indorsed 
 on the writ ; and if the amount was paid at any time, within 
 four days after service, the proceedings were stayed. 
 
 Wherever the claim was for a liquidated demand, founded 
 ■on contract, express' or implied, if, in addition to the state- 
 ment of the amount claimed, the particulars of the claim 
 were included in the indorsement on the writ, in a form pre- 
 scribed by law, upon affidavit of personal service of the writ 
 upon the defendant and filing a copy of the writ, the plain- 
 tiff" might have judgment signed for want of the defendant's 
 .appearance within the time prescribed by law. 
 
MODERN ENGLISH PRACTICE. 291 
 
 But if the particulars of the claim had not been indorsed 
 on the writ, then, in addition to the affidavit of service of 
 the writ and the filing of a copy, it was necessary to file a 
 declaration, indorsed with a notice to plead within eight 
 days, and on the defendant's failure to plead, if the declara- 
 tion was for claims which might have been inserted in a spe- 
 cial indorsement, judgment might be signed and execution 
 issue, for an amount not exceeding that indorsed on the writ. 
 
 The writ of summons required the defendant to cause an 
 appearance to be entered for him, in the court out of which 
 the writ issued, within a certain time after service of the writ. 
 Where the service was within the jurisdiction of the court, 
 the period fixed was eight days; where without the juris- 
 diction, it was fixed with reference to the distance. 
 
 The service was effected by delivering a copy of the writ 
 and exhibiting the original, if demanded, and where the 
 defendant evaded service, the court might direct that the 
 plaintiff could proceed as if personal service had been made. 
 
 Besides the writ of summons, to be served within the 
 jurisdiction, a concurrent writ of summons might be issued, 
 to be served out of the jurisdiction. 
 
 The writ was in force for six months, but might be re- 
 newed before the expiration of the time, so as to be kept 
 continuously alive, and in this waj', the statute of limitations 
 could be avoided, because the issuance of the writ was the 
 commencement of the action. 
 
 Where the writ was issued against either a, British sub- 
 ject or a foreigner, residing without the jurisdiction, upon 
 defendant's failure to appear, the plaintiff" could only pro- 
 ceed with leave of the court, or a judge, who was to be 
 satisfied by affidavit, that there was a cause of action which 
 had arisen within the jurisdiction, and that the writ had 
 been served on the defendant, or that reasonable efforts had 
 been made to serve it, and it had come to his knowledge, 
 and either that the defendant wilfully neglected to appear, 
 or that he was living out of the jurisdiction to defeat or 
 delay his creditors. Upon this, the court might allow the 
 
292 MODERN ENGLISH PKACTICE. 
 
 plaintiff to proceed, on such conditions as might seem fit; 
 but it was required that his claim be proved before a jury 
 of inquest or one of the masters of the court, as a condition 
 precedent to his obtaining judgment. 
 
 The appearance was effected by delivering a simple mem- 
 orandum to the clerk, in a form prescribed by the Procedure 
 Act of 1852. 
 
 "Where only some of several defendants appeared to a 
 writ specially indorsed, the plaintiff' might sign judgment 
 against those in default and issue execution, before declar- 
 ing against the others, which would be an abandonment of 
 the action against the others; or, he might declare against 
 those appearing, suggesting the judgment against the others, 
 in which case the judgment had simply the same effect as a 
 judgment by default before these acts were passed. 
 
 The nonjoinder or misjoinder of parties, though governed 
 by the same general principles as at common law, could be 
 remedied by amendments, under such conditions as to pre- 
 vent injustice. 
 
 These acts practically abolished all the common law forms 
 of actions; that is to say, no reference, either in the writ or 
 the declaration, was made to sucli forma of action, and all 
 causes of action, and any number of them, might be joined 
 in one suit. The old forms were merely important for ref- 
 erence, on the question whether a given state of facts would 
 have been a ground for any of them, and gave any cause of 
 action, at common law. They remained as the ideal stand- 
 ard for determining whether a right of action existed. 
 
 The subject of pleading was dealt with by the Procedure 
 Acts, with a view to simplification and dispatch. 
 
 Special demurrers were abolished, and defects which for- 
 merly were taken advantage of in this form, were to be 
 remedied by motion to amend, strike out, or otherwise deal 
 with the pleadings, as might seem fit, and parties might have 
 leave to demur and plead to the same pleading. 
 
MODERN ENGLISH PRACTICE. 293 
 
 Abbreviated forms of pleading wei-e provided, and the 
 purport of different general issue pleas determined, and 
 rules prescribed as to the use of several answers, at differ- 
 ent stages of the pleadings. 
 
 The plaintiff, under the amended practice, had the whole 
 of the term next after the appearance for declaring. If he 
 failed to declare within the time, and within the additional 
 period of four days after notice given him to declare, judg- 
 ment of non pros, might be signed against him. 
 
 The regular time fur pleading in bar was eight days, 
 where defendant 'resided within the jurisdiction. A notice 
 indorsed on the declaration, or delivei-ed separately, to plead 
 within the eight days, "otherwise judgment," followed by 
 judgment, in case of default, was the means of compelling 
 the defendant to plead. 
 
 As to all the other steps in the pleadings, a four days' 
 notice, of the same tenor, was sufficient. 
 
 Pleas in abatement were required to be filed within four 
 days after the declaration was filed and notice given to 
 plead. Further time for pleading, at any stage, might be 
 had, upon application to a judge, as at common law. 
 
 Provisions are made in these laws, also, for raising ques- 
 tions of fact or law without formal pleadings. 
 
 By the act of 1854, equitable defenses were allowed to be 
 pleaded, such as facts which would entitle the defendant to 
 an injunction against further proceedings. 
 
 An issue in law was reached by a demurrer, stating that 
 the adversary's pleading "was bad in substance," and the 
 joinder, stating that the pleading demurred to was "good 
 in substance." 
 
 Joinder of issue in fact was completed by the party's state- 
 ment that he joined issue on the adversary's plea. 
 
 Provision was made by the statute 14 and 15 Victoria, 
 and the Procedure Act of 1854, for compelling the produc- 
 tion of documentary evidence in the hands of the adverse 
 party, b}' a proceeding similar to that in use in the Federal 
 courts of the United States. 
 
 The latter act also allows interrogatories to be delivered 
 
294 MODERN ENGLISH PRACTICE. 
 
 to the opposite party, to which sworn answers are required 
 to be made. 
 
 Other acts enable a party in possession of a document to 
 give the opposte party notice to admit it, under penalty of 
 having to pay the costs of proving it. 
 
 De bene esse depositions of persons going out of the ju- 
 risdiction are also provided for. 
 
 The Procedure Acts abolished the writs of venire, distrin- 
 gas, etc., which were a part of the ancient jury process, and 
 provided for the summoning, by the sheriff, of a jury for the 
 trial of issues at the assizes, pursuant to a precept from the 
 judges of assize. 
 
 In the conduct of a trial, a change was made in the old 
 practice, by allowing counsel on either side, not only to dis- 
 cuss his case in advance of the production of the evidence, 
 but also to sum up after the evidence was introduced. 
 
 The Procedure Acts provided new methods of correcting 
 errors of th6 nisi prius courts, in addition to the bill of ex- 
 ceptions and the common law writ of error. 
 
 After a verdict, a party might move for a rule to enter a 
 nonsuit, or to have a verdict entered for himself, on a point 
 of -law reserved at the tjial, and if the rule was refused or 
 discharged, he might appeal from the order of the court, 
 immediately, to the court of error. Or, he might move for 
 a new trial for erroneous ruling of the judge at the trial, 
 and appeal from an adverse ruling on this motion. 
 
 This appeal was not allowed where the motion was one 
 addressed to the discretion of the court, as where it was 
 made because of excessive damages, or because the verdict 
 was against the weight of evidence, or because of miscon- 
 duct of the jury, or for like causes. 
 
 Inasmuch as, under the new practice, a party might both 
 plead and demur to the same pleading, a defect in the dec- 
 laration was ordinarily taken advantage of by demurrer, in- 
 stead of motion in arrest, especially as the costs of an abor- 
 tive trial, of an issue in fact, were thrown upon the party who 
 
MODERN ENGLISH PKACTICE. 295 
 
 delayed to take advantage of defects in the pleadings until 
 after the verdict. 
 
 Under the new practice, the writ of fieri facias could be 
 levied on money, bank notes, bills, bonds, and other secu- 
 rities of the judgment defendant. It became a lien on de- 
 fendant's goods from the time of its delivery to the sheriff, 
 except that persons acquiring title bona fide, before actual 
 seizure and without notice, were protected. 
 
 "Where a question of ownership arose between a stranger 
 and the execution debtor, whose property was taken, provi- 
 sion was made by law for determining the title, by a process 
 of interpleader. 
 
 The Procedure Act of 1854 introduced the attachment of 
 the debtor's credits as a new form of execution. 
 
 Still later, viz., in 1873 and 1875, other statutes have been 
 passed, providing for an entire reorganization of tlie courts, 
 and a more complete blending of common law and equitable 
 relief in actions. 
 
 This very general notice will suffice to convey some idea 
 of the reforms effected by recent legislation. 
 
 It will be seen, that some of the defects of the common 
 law practice have been remedied, by introducing proceed- 
 ings well known in American practice. On the other hand, 
 the Procedure Acts have been extensively copied in the leg- 
 islation of the States in this country; so that there has been 
 a mutual contribution, by the two countries, to the improve- 
 ment of the ancient system of procedure common to both. 
 
APPENDIX. 
 
 ( 297 j 
 
APPENDIX. 
 
 ENGLISH RECORD ENTRIES. 
 Original Whit. 
 William the Fourth, by the ffraee of God, of 
 
 Prgecipe 
 
 Great Britain, France, and Ireland, King_, Defender 
 
 of the Faith, and so forth, to the sherift" of , greeting: 
 
 Command C. D., that justly and without delay, he render to 
 
 A. B. £ , which he owes him and unjustly detains, as he 
 
 saith. And unless he shall so do, and if the said A. B. shall 
 make you secure of prosecuting his claim, then summon by 
 good summoners the aforesaid C. D. that he be before' our 
 
 justices, at Westminster, on the day of , A. D. 
 
 18 — , to show wherefore he hath not done it, and have you 
 there then the summoners, and this writ. Witness ourself 
 at Westminster, the — day of , in the year of 
 
 Sheriff's return. 
 
 Pledges of > John Doe, 
 prosecution /Richard Roe. 
 
 Summoners of the \ L. M. 
 within named C. D. J 0. P. 
 
 Process. 
 William the Fourth, etc., to the sheriif of- 
 
 Attacbment. 
 
 greeting: Put by gage and safe pledges, C. D., 
 
 late of , merchant, that Le be before our justices at 
 
 Westminster, on the day of , A. D. 18—, to answer 
 
 ( 299 ) 
 
300 COMMON LAW PRACTICE. 
 
 to A. B. of a plea that he uender to him £ , which he 
 
 owes him and unjustly detains, as he saith ; and show 
 wherefore he was not before our justices at Westminster on 
 
 the day of , as he was summoned, and have you 
 
 there the names of the pledges and this writ. Witness, etc. 
 
 The within named C. D. 1 Q. E. 
 
 Sheriff's return. . , t i ^ ■, C c\ rv\ 
 
 IS attached by pledges, j fe. i. 
 William the Fourth, etc., to the sherifi:' of , 
 
 Distringas. . _ _ ^ ,, . 
 
 greetmg:' We command you that you distram 
 
 C. D., late of , merchant, by all his lands and chattels 
 
 within your bailiwick, so that neither he nor any one 
 through him, may lay hands on the same, until you shall re- 
 ceive from us another command thereupon; and that you 
 answer to us of the issues of the same; and that you have 
 
 his body before our justices at Westminster, on the 
 
 day of , to answer to A. B. of a plea that he render to 
 
 him £ , which he owes him and unjustly detains, as he 
 
 saith ; and to hear his judgment of his many defaults. Wit- 
 ness, etc. 
 
 Sheriff's return The within named C. D. hath nothing in my 
 °i''''- bailiwick whereby he may be distrained. 
 
 Capias ad William the Fourth, etc., to the sheriff of 
 
 respondenaum. ^ greeting: We command you that you 
 
 take C. D., late of , merchant, if he may be found in 
 
 your bailiwick, and him safely keep, so that you may have 
 
 his body before our justices at Westminster, on the 
 
 day of A.D., , to answer to A. B., gentleman, of 
 
 a plea that he render to him £ , which he owes him and 
 
 unjustly detains, as ?ie saith; and whereupon you have 
 returned to our justices at Westminster, that the said C. D. 
 hath nothing in your bailiwick whereby he may be dis- 
 trained. And have you there and then this writ. Witness, 
 etc. 
 
 Sheriff's return, The within named C. D. is not found in my 
 
 non est Inventus. baiUwick. 
 
ENGLISH RECORD. 301 
 
 William the Fourth, etc., to the sheriff of , 
 
 . .,- £■ r Alias capias. 
 
 greeting: We command you, as formerly we eom- 
 
 mauded you, that you take C. D., late of , merchant, if 
 
 he may be found in your bailiwick, and him safely keep, so 
 that you may have his body before our justices at West- 
 minster, on the ;- day of , to answer to A. B., gen- 
 tleman, of a plea that he render to him £ , which he 
 
 owes fiim and unjustly detains, as he saith; and have you 
 there then this writ. Witness, etc. 
 
 The within named C. D. is not found in my sheriff's return 
 
 bailiwick. """ ^^' inventus. 
 
 William the Fourth, etc., to the sheriff of 
 
 -y-iT- , , 1 , Testatum capias. 
 
 , greeting: We command you that you 
 
 take C. D., late of , merchant, if he may be found in 
 
 your bailiwick, and him safely keep, so that you may have 
 
 his body before our justices at Westminster, on the day 
 
 of , to answer to A. B., gentleman, of a plea that he ren- 
 der to him £ , which he owes him and unjustly detains, 
 
 as he saith, and whereupon our sheriff of hath made 
 
 a return to our justices at Westminster, at a certain day now 
 past, that the aforesaid C. D. is not found in his bailiwick, 
 and thereupon it is testified in our said court, that the afore- 
 said C. D. lurks, wanders, and runs about in your county, and 
 have you there then this writ. Witness, etc. 
 
 By virtue of this writ to me directed, I have sheriff's return 
 taken the body of the within named C. D., oe:i,i oorj,us. 
 which I have ready at the day and place within contained, 
 according as by this writ it is commanded me. 
 
 In the King's Bench, etc. 
 
 A. B. V. C. D. 
 
 The defendant demands a declaration in this cause, and 
 
 unless the plaintiff declare within days next after this 
 
 demand, judgment of non pros, will be signed. Dated, etc. 
 
 Yours, etc., 
 
 G. H., 
 
 Defendant's Attorney. 
 
302 COMMON LAW PRACTICE. 
 
 In the King's Bench, etc. 
 
 The daj' of , in the year of our Lord . 
 
 ^ , ^. C. D, 1 , to wit: C. D. was, on the 
 
 Judgment in | ' . ' 
 
 default of V. \ day of , A.D. , arrested by vir- 
 
 ec aration. ^ -q J ^^^ ^^^ Certain Writ of capias arising out 
 of the court of our lord the King, before the justices of the 
 bench, against the said C. D., at the suit of A. B., and 
 
 directed to the sheriff of , in an action of debt, and 
 
 thereupon the said C. D. went to prison and was detained 
 
 in custody of the said sheriff" of , by virtue of the said 
 
 writ. ^Nevertheless, the said A. B. hath not declared against 
 the said C. D., in the said court, in the action aforesaid, be- 
 fore the end of term, in the year of our Lord , 
 
 being the next term after the said arrest of the said C. D.; 
 nor hath he further prosecuted his said writ against the said 
 C. D. Therefore, it is considered by His Majesty's court 
 here, that the said A. B. take nothing by his said writ, but 
 that he be in mercy, etc. And it is further considered by 
 the said court here, that the said C. D. do recover against 
 
 the said A. B. £ for his costs and charges by him laid 
 
 out about his defense in this behalf, by the said court here 
 adjudged to the said C. D. and with his assent, according to 
 the form of the statute in such case made and provided; 
 and that the said C. D. have execution thereof, etc. 
 
 In the King's Bench, etc. 
 
 The day of , A.D. . 
 
 Declaration A. B., by E. F., his attorney, complains of C. D., 
 
 in debt. y!\\o has been summoned to answer the said A. B. 
 
 in an action of debt, and he demands of the said C. D. the 
 
 sum of £ , which he owes to and unjustly detains from 
 
 him; for that, whereas, the said C. D., on the day of 
 
 , A.D. , by his writing obligatory, sealed with his 
 
 seal, and now shown to the court here, did acknowledge 
 himself to be bound to the said A. B. in the said sum of 
 £ of lawful money of Great Britain, to be paid to the 
 
ENGLISH RECORD. 303 
 
 said A. B. when the said C. D. should be thereto afterwards 
 requested; yet the said C. J), (although often requested, 
 
 etc.) hath not as yet paid the sum of £ , above demanded, 
 
 or any part thereof, to the said A. B., but to pay the same, 
 or any part thereof, hath hitherto wholly refused, and still 
 
 doth refuse, to the damage of the said A. B. of £ , and 
 
 therefore he brings suit. 
 
 Indorsement of Declaration. 
 ■ The defendant is to plead hereto in days, 
 
 •^. , ^ '^ ' Notice to plead. 
 
 otherwise judgment. 
 
 Or, 
 
 In the King's Bench, etc. 
 
 The day of A.D. . A. B. v. C. D. 
 
 Take notice, that a declaration was, on the - 
 
 Notice of declara- 
 
 day of last, filed against you, with the mas- tion aiea, ana 
 
 ters in the King's Bench Office in the Inner Tern- "''*'°® *° ^'®*'*' 
 pie, London, at the suit of the abovenamed plaintiff, in an action 
 
 of debt, and unless you plead thereto in days, judgment will 
 
 be signed against you by default. 
 
 E. r.. 
 
 Attorney for Plaintiff. 
 
 In the King's flench, etc. 
 
 The day of , A.D. . A. B. r. C. D. 
 
 And the said defendant, by Gr. H., his attor- 
 
 j 1 ^ 1 iU /■ J • • Demand of oyer. 
 
 ney, comes and defends the iorce and injury, 
 when, etc., and craves oyer of the said writing obligatory, 
 and likewise craves oyer of the condition of the said writing. 
 And it is read unto him in these words : " The condition of 
 the above obligation is such, that if the above bouudenC.D., 
 his heirs, executors, and administrators, and every of them, 
 shall and do, from time to time, and at all times hereafter, 
 well and truly stand to, obey, observe, fulfil, and keep the 
 award, arbitrament, order, rule, judgment, final end, and 
 
304 COMMON LAW PRACTICE. 
 
 determination of P. Q., of , and R. S., of (arbitrators 
 
 indifferently nominated and cliosen bj and between the said 
 A. B. and the said C. D., to arbitrate, award, order, judge 
 and determine of all and all manner of actions, cause or 
 causes of action, suits, plaints, debts, duties, reckonings, 
 accounts, controversies, trespasses, and demands whatsoever 
 had, moved, or depending, or which might have been had, 
 moved, or depending, by and between the said parties, for 
 any matter, cause, or thing, from the beginning of the world" 
 until the day of the date hereof), which the said arbitrators 
 shall make and publish, of or in the premises, in writing 
 under their hands and seals, or otherwise by word, of mouth 
 in the presence of two credible witnesses, on or before the 
 
 day of next ensuing the date hereof; then this 
 
 obligation to be void and of none effect, or else to be and 
 remain in full force and virtue." 
 
 In the King's Bench, etc. 
 
 The day of - — , A.D. . A. B. v. C. D. 
 
 And the said C. D., by G. H., his attorney, 
 
 General imparlance. t t r- -t 
 
 comes and defends, etc., and prays leave of 
 
 the court here to imparl until the day of next, 
 
 and he hath it. The same day is given to the said A. B. 
 then and there, etc. 
 
 Or, 
 And the sajd C. D., by G. H., his attorney, 
 
 Special imparlance. . inn . 
 
 saving to himself all exceptions as well to the 
 writ as to the declaration aforesaid, prays leave of the court 
 
 here, to imparl until the day of next, and he hath 
 
 it. The same day is given to the said A. B. then and there, 
 etc. 
 
 [Rule Plea, and Demand of Plea.J 
 
 In the King's Bench, etc. 
 
 The day of , A.D. . 
 
 Judgment by And the said'C. D., by G. H., his attorney, says 
 
 niidicit. nothiug ill bar or preclusion of the' said action 
 
 of the said A. B., whereby the said 0. D. remains therein 
 
ENGLISH RECORD. 305 
 
 undefended against the said A. B. Therefore, it is consid- 
 ered that the said A. B. do recover against the said C. D. 
 
 his said debt, and also £ for his damages which lie hath 
 
 sustained, as well on occasion of detaining the said debt, as 
 for his costs and charges by him about his suit in this behalf 
 expended, by the court here adjudged to the said A. B. and 
 with his assent; and the said C. D. in mercy, etc. 
 
 Or, 
 
 And the defendant, by G. H., his attorney, comes 
 and defends the force and injury when, etc., and saith 
 that the said plaintift" ought not to have or maintain his 
 aforesaid action against him; because, he saith, that the 
 said P. Q. and B.. S., the arbitrators before named in the 
 said condition, did not make any such award, arbitrament, 
 order, rule, judgment, final end, or determination, of or in 
 the premises above specified in the said condition, on or be- 
 fore the day of , A.D. -, in the condition afore- 
 said, above mentioned, according to the form and effect of 
 the said condition, and this he is ready to verify. 
 
 Wherefore he prays judgment, .whether the said A. B. 
 ought to have or maintain his aforesaid action against him. 
 
 In the King's Bench, etc. 
 The day of , A.D. . A. B. v. C. D. 
 
 And the plaintiff, by E. F., his attorney, saith, 
 
 , ,, , 'IT Replication. 
 
 that for anything above alleged by the said de- 
 fendant in pleading, he ought not to be precluded from 
 having his said action thereof against him; because he says 
 that after the making of the said writing obligatory and be- 
 fore the day of aforesaid, to wit, on the day 
 
 of ,'in the year aforesaid, at, etc., in presence of, etc., 
 
 the said arbitrators undertook the charge of the award, ar- 
 bitrament, order, rule, judgment, final end, and determina- 
 tion aforesaid, of and in the premises specified in the condi- 
 tion aforesaid; and then and there made and published their 
 award by word of mouth in manner and form following, 
 that is to say : the said arbitrators did award, etc. And the 
 
 20 
 
306 COMMON LAW PKACTICB. 
 
 said plaintiff further says, that although he afterwards, to 
 
 wit, ou the day of , A,D. , at aforesaid, 
 
 requested the said defendiiiit to pay to him, the said plaintiff, 
 
 the said £ , yet that tiie said plaintiff hath not stood to, 
 
 obeyed, observed, fulfilled, or kept any part of the said 
 award, nor hath the said defendant hitherto paid the said 
 
 £ to the said plaintiff, and this the said plaintiff' is ready 
 
 to verify. 
 
 In the King's Bench, etc. 
 
 And the said defendant, by G-. H., his attorney, 
 
 comes and defends the force and injury when, etc., 
 
 and says that the said arbitrators did not order and adjudge 
 
 in manner and form as the plaintiff hath hitherto alleged, 
 
 and of this he puts himself upon the country. 
 
 In the King's Bench, etc. 
 
 And the said plaintiff as to the rejoinder of the 
 said defendant, wherein he puts himself upon the 
 couuti'y, doth the like. 
 
 Award of Therefore let a jury come thereupon before the 
 venire. Lord the King, on the day of , whereso- 
 ever he shall then be in England, who neither, etc., to rec- 
 ognize, etc., because as well the said A. B. as the said C. D., 
 between whom the difference is, have put themselves upon 
 the said jury. The same day is there given to the parties 
 aforesaid. Afterwards the process therein, beitig continued 
 between the said parties of the plea aforesaid by the jury, 
 Eespite IS put between them in respite, before the Lord the 
 
 nisiprius. King, Until the day of , wheresover the 
 
 said Lord the King shall then be in England; unless the 
 justices of the Lord the King, assigned to take assizes in 
 the county aforesaid, shall have come before that time, to 
 
 wit, on the day of , at , in the said county, by 
 
 the form of the statute in such case made and provided, by 
 reason of the default of the jurors [summoned to appear as 
 .aforesaid]. 
 
ENGLISH RECORD. 307 
 
 Or, 
 
 In the King's Bench, etc. 
 
 The day of , A.D. . A. B. v. C. D. 
 
 And hereupon the said A. B. says, that , 
 
 now sheriff of the said county of , is of kin, suggestion 
 
 that is to say "brother," to the said C. D., and o^shenfifa 
 for this cause the said A. B. prays a writ of our 
 Lord the King, of venire facias, to be directed to the cor- 
 oner of the said county of , for the trial of the issue 
 
 above joined between the parties aforesaid. And because 
 the said C. D. doth not deny the aforesaid allegation of the 
 said A. B., it is granted to hira, etc. Therefore it is com- 
 manded to the coroner of the said county of that he 
 
 cause to come, etc. 
 
 At this — — day of , before the Lord the King, at 
 
 Westminster, come the parties aforesaid by their attorneys 
 aforesaid;" and the aforesaid justices of assize, before whom 
 [the jury aforesaid came], sent here their record before them 
 had in these words, to wit, etc. 
 
 In the King's Bench, etc. 
 
 The day of , A.D. . A. B. v. 0. D. 
 
 Afterwards, that is to say, on the day and at the 
 
 place within contained, before , the chief justice 
 
 within mentioned, the honorable being associated unto 
 
 the said chief justice, according to the form of the statute 
 ■in such case made and provided, come as well the within 
 named A. B.. as the within named C. D., by their respective 
 attorneys within mentioned; and the jurors of the jury, 
 whereof mention is within made, being summoned, also 
 come, who, to speak the truth of the matters within con- 
 tained, being drawn by ballot, approved and sworn, accord- 
 ing to the form of the statute in such case made and pro- 
 vided, say, upon their oath, that the within mentioned award 
 was made in manner and form as the said A. B. hath within 
 in that behalf alleged; and they assess the damages of the 
 said A. B. on the occasion of the detaining of the sum men- 
 
308 COMMON LAW PRACTICE. 
 
 tioned in said award, over and above his costs and charges 
 
 by him about his suit in this behalf expended, to £ , and 
 
 for those costs and charges to £ . 
 
 In the King's Bench, etc. 
 
 The day of , A.D. . A. B. v. C. D. . 
 
 Euie for a ^^ ^^ Ordered that the plaintiff, upon notice of this rule 
 
 t""^- to he given to his attorney, shall, upon the day of 
 
 next, show cause why the verdict obtained in this cause should 
 
 new 
 
 not be set aside, and a new trial had between the parties; and, in 
 the meantime, that proceedings be stayed. Upon the motion of 
 
 Mr. . 
 
 By the Court. 
 
 In the King's Bench, etc. 
 
 The day of , A.D. . A. B. v. C. D. 
 
 „ . . It is ordered that the plaintiff, upon notice of this rule 
 
 Motion in r m t c . j 
 
 arrest of to be given to his attorney, shall, upon the day of 
 
 judgment. ncxt, show causc wky the judgment on the verdict, 
 
 obtained in this cause, should not be arrested; and, in the mean- 
 time, that proceedings be stayed. Upon the motion of Mr. . 
 
 By the Court. 
 
 In the King's Bench, etc. 
 
 The day of , A.D. . 
 
 Therefore it is considered, that the said A. B.. 
 
 u gmen . ^^ j-ecover against the said C. D. his said debt and 
 
 his damages aforesaid, on occasion of the detention thereof, 
 
 to £ , together with his costs and charges aforesaid, to 
 
 £ , by the said jury in form aforesaid assessed, and also 
 
 £ for his said costs and charges, by the court here ad- 
 judged, of increase to the said A. B., and with his assent. 
 It is also considered, by the said court here, that the said 
 A. B. have execution against the said C. D. of the damages 
 aforesaid, to £ , by the said jury in form aforesaid as- 
 sessed, on occasion of the aforesaid breach of the said con- 
 
ENGLISH RECORD. 309 
 
 dition of the said writing obligatory, according to the form 
 of the statute in such case made and provided; and the said 
 C. D. in mercy, etc. 
 
 William the Fourth, etc., to the sheriff of , Yieii 
 
 greeting: We command you, that of the goods and f*"^^- 
 chattels of C. D., in your bailiwicli, you cause to be made a 
 certain debt of £ , which A. B. lately, in our court be- 
 fore us at Westminster, recovered against him, and also 
 
 £ which, in our same court, were adjudged to the said 
 
 A. B. for his damages, which he had sustained, as well on 
 occasion of the detention of the said debt, as for his costs 
 and charges by him about his suit in that behalf expended; 
 whereof the said C. D. is convicted, as appears to us of 
 record; together with interest upon the said two several 
 
 sums of £ and £ , at the rate of per centum 
 
 per annum, from the day of , A.D. , on which 
 
 day the judgment aforesaid was entered up. And have that 
 money, with such interest as aforesaid, before us at West- 
 minster, immediately after the execution hereof, to be ren- 
 dered to the said A. B. for his debt and damages and in- 
 terest as aforesaid; and that you do all such things as by, 
 etc. And in what manner you shall have executed this our 
 writ, make appear to us at Westminster, immediately after 
 the execution thereof; and have there then this writ. Wit- 
 ness, etc. 
 
 The within named C. D. has no goods or chat- sheriff's return 
 tels in my bailiwick whereof I can cause to be nuuabona. 
 made the debt, and damages, and interest within mentioned, 
 or any part thei'eof, according to the exigency of this writ. 
 
 Or, 
 By virtue of this writ to me directed, I have 
 
 Fisri feci 
 
 caused to be made of the goods and chattels of the 
 within named C. D., the debt, and damages, and interest 
 within mentioned, which I have ready before the Lord the 
 King at Westmiueter, at the time and place within contained, 
 
310 COMMON LAW PRACTICE. 
 
 to be rendered to the said A. B. for his debt, and damages, 
 and interest aforesaid, as within I am commanded. 
 
 (After the end of the issue and award of venire facias.) 
 
 "Which said issue, in form aforesaid joined 
 
 Bill of exoeptiona. , , ... , . _ -i , • ^ 
 
 between the said parties afterwards, to wit: 
 At the sittings of nisi prius, holden at Westminster Hall, in 
 
 and for the county of , on the day of , in the 
 
 year of the reign of our Lord the now King, before the 
 
 right honorable , chief justice of our said Lord the King, 
 
 assigned to hold pleas in the court of said Lord the King, be- 
 fore the King himself, being associated unto the said 
 
 chief justice, according to the form of the statute in such 
 case made and provided, came on to be tried by a jury of 
 
 the said county of , for that purpose duly impanelled. 
 
 At which day. came there as well the said A. B. as the said 
 C. D., by their respective attorneys aforesaid; and the jurors 
 of the jury aforesaid, impanelled to try the said issue, being 
 called, also came, and were then and there in due manner 
 drawn by ballot, approved and sworn, to try the same issue. 
 
 And upon the trial of that issue, one was produced and 
 
 examined upon oath as a witness, by the counsel learned in 
 the law, for the said A. B. in support of the said action; and 
 upon the cross-examination of the said by the coun- 
 sel learned in the law for the said C. D., the said was 
 
 asked by the said last-mentioned counsel whether he had 
 not been imprisoned upon a conviction of, etc. Whereupon 
 the said chief justice then and there interposed, and before 
 the said had given any answer to the said question, de- 
 clared and delivered his opinion that the said was not 
 
 bound to answer the said question; and the said there- 
 upon then and there refused to answer the same. And after- 
 wards at the said trial, the said chief justice, in summing up 
 the evidence given in the said cause to the jury aforesaid, 
 did further declare and deliver his opinion to the said jury, 
 
 that the said 's refusal to answer the said question, 
 
 threw no manner of discredit upon him, the said ; and 
 
 the jury aforesaid thereupon then and thei^ gave their ver- 
 
ENGLISH RECORD. 311 
 
 diet for the said A. B., and £ dumagevS. Whereupon 
 
 the said counsel for the said C. D. did then and there, and 
 before the giving of the said verdict, on behalf of the said 
 C. D., except to the aforesaid opinion of the said chief jus- 
 tice, and insisted that the said was bound to answer the 
 
 said question, and that his refusal to answer the same was, 
 and ought to be, considered by the said jury as an impeach- 
 ment of his credit; and inasmuch as the said several matters 
 hereinbefore mentioned do not appear by the record of the 
 verdict aforesaid, the said counsel for the said C. T>. did 
 then and there propose their aforesaid exception to the 
 opinion of the said chief justice, and requested him to put 
 his seal to this bill of exceptions containing the said several 
 matters so produced and given in evidence on the part of 
 the said C. D. as aforesaid, according to the form of the stat- 
 ute in such case made and provided. And thereupon the 
 said chief justice, at the request of the said counsel for the 
 said C. D., did put his seal to the bill of exceptions, pursu- 
 ant to the aforesaid statute in such case made and provided, 
 
 on the said day of in the year of the reign of 
 
 his present majesty. 
 
 William the Fourth, etc., to our trusty and be- 
 
 , , ^ __ . , • -r-> ''^"^^ "^ error. 
 
 loved Sir , iinight, greeting: Uecause 
 
 in the record and process, and also in the giving of judgment 
 in the plaint, which was in our court before you and your 
 fellows, our justices of the bench, by our wri't between A. B. 
 
 and C. D., late of , in the county of , of a certain 
 
 debt of £ , which the said A. B. demands of the said C. 
 
 D., manifest error hath intervened to the great damage of 
 him, the said A. B., as we from his complaint are informed ; 
 we being willing that the error, if any there be, should be 
 corrected in due manner, and that full, and speedy justice 
 should be done to the parties aforesaid in this behalf, do 
 command you, that if judgment thereof be given, then under 
 your seal you do 4istinctly and openly send to our justices 
 of the bench, and the barons of our exchequer, in the Ex- 
 chequer Chamber, on the day of next ensuing, a 
 
 transcript of the record and proceedings of the plaint afore- 
 
312 COMMON LAW PRACTICE. 
 
 said, with all things touching the same, and this writ; that 
 the said transcript and proceedings being reviewed and ex- 
 amined by the said justices and barons, they may cause to 
 be further done thereupon what of right ought to be done. 
 Witness, etc. 
 
 Affirmance of Afterwards, to wit, on the day of , 
 
 judgment. j^ the year of our Lord , before the Justices, 
 
 etc., in the Exchequer Chamber, come as well the said A. B. 
 as the said C. C, by their respective attorneys aforesaid. 
 Whereupon all and singular the premises being seen, and as 
 well the record and proceedings aforesaid, and the judgment 
 given in form aforesaid, as the matters aforesaid by the said 
 C. D. above for error assigned, being by the said Justices, etc., 
 now here, diligently examined and fully understood, it appears 
 to the same court here that there is no error in the recordand 
 proceedings aforesaid, or in giving the judgment aforesaid. 
 Therefore it is considered by the same court that the judg- 
 ment aforCvsaid, in form aforesaid given, be in all things 
 affirmed, and stand in full force and effect, the several mat- 
 ters above for error assigned or alleged, in anywise notwith- 
 standing. And it is further considered by the same court 
 here, that the said A. B. do recover against the said C. D., 
 
 as well his damages aforesaid, as also £, , adjudged to 
 
 him by the said court, now liere, according to the form of 
 the statute in such case made and provided, for his dam- 
 ages, costs, and charges which he hath sustained and ex- 
 pended by reason of the delay of execution of the judgment 
 aforesaid, on pretence of prosecuting the said writ of error, 
 which said several damages, costs, -and charges, in the 
 whole amount to £ ; and that the said A. B. have exe- 
 cution thereof, etc., and the said C. D. in mercy, etc. 
 
MARYLAND RECORD IN ASSUMPSIT. 313 
 
 MARYLAND RECORD IN" ASSUMPSIT. 
 
 State of Maryland, county, to wit: 
 
 At the county court of the judicial district of the 
 
 State of Maryland, begun and held at the court-house, in 
 
 and for the county aforesaid, on the Monday in , 
 
 in the year of our Lord . 
 
 Present. — The honorable S. A., 
 
 Chief Judge. 
 
 C. W. H. 1 
 
 I 
 
 and )■ Esquires, Associate Judges. 
 
 T. K. J 
 H. G. Esquire, 
 
 Sheriff. 
 
 A. J., 
 
 Clerk. 
 
 Among others were the following proceedings, to wit: 
 
 A. B. "j 
 
 V. y Be it remembered, etc. 
 C. D. 
 
 Maryland, sc. 
 
 The State of Maryland to the sherift'of county. 
 
 Capias. 
 
 greeting: You are hereby commanded to take CD., 
 
 late of county, if he shall be found in your bailiwick, 
 
 and him safe keep, so that j'ou have his body before • 
 
 court on the day of next, to answer unto A. B. in 
 
 a plea, that whereas the said C. D., on the day of , 
 
 in the year of our Lord , to wit, at the county aforesaid, 
 
 was indebted to the said A. B. in the sum of dollars for 
 
 the work and labor, care, diligence, and attendance of the 
 said A. B. before that time done, performed, and bestowed 
 by the said plaintiff in and about the business of the said C. 
 
314 COMMON LAW PRACTICE. 
 
 D., for him and at his special instance and request, and being 
 so indebted, he, in consideration thereof, afterwards, to wit, 
 on the same day and year aforesaid, at the county aforesaid, 
 undertook and faithfully promised the said A. B. to pay him 
 the said sum of money when he should be thereto requested; 
 nevertheless the said defendant hath not yet paid Ihe afore- 
 said sum of money, or any part thereof, to the said plaintiff, 
 but to pay the same the said defendant hath hitherto alto- 
 gether refused, and still doth refuse so to do, to the damage 
 
 of the said plaintiff in the sum of dollars, thereupon he 
 
 brings suit. Hereof fail not at your peril, and have you then . 
 and there this writ. Witness, etc. 
 
 By virtue of the writ to me directed, I have 
 
 Sheriff's return. -i. i/^-r-, itt 
 
 taken the withm named C. JD., whose body i 
 
 have ready before court within named, at the day and 
 
 place within contained, as I am within commanded. 
 
 Euiefor And the said C, D. being called, appeai-s in 
 special bail, eourt here by Gr. H., his attorney, and thereupon, 
 on motion of the said A. B., by his attorney aforesaid, it is 
 ruled by the court here that the said C. D. give special bail 
 in the plea aforesaid, or in default thereof be committed to 
 the custody of the sheriff of county aforesaid; where- 
 upon a certain M. N., of county, gentleman, present 
 
 here iii court in his proper person, and (with the consent of 
 the said A. B., by his attorney aforesaid) undertakes for the 
 said C. D. that in case the aforesaid A. B. shall recover judg- 
 ment against the said C. T>. in the plea aforesaid, or that the 
 said C. D. shall be legally convict, that then the said C. D. 
 shall pay the condemnation of the eourt thereupon, or ren- 
 der his body to the custody of the sheriff of county in 
 
 satisfaction thereof, or that the said M. IST. will do the same 
 for him. 
 
 And thereupon ihe said C. D., bu Ms said attor- 
 
 Hills to dcclflFG ' */ 
 
 ney, -prays that the said A. B. may declare against 
 him, the said C. D., in the plea aforesaid; whereupoii it is ruled 
 by the court here that ihe said A. B. declare against ihe said G. D. 
 
MARTEAND RECORD IN ASSUMPSIT. 315 
 
 in the plea aforesaid, or judgment will be rendered against him by 
 defavit. 
 
 C. D., late of county, was attached to 
 
 T - -r-» . 1/1 , Declaration, 
 
 answer under A. B. in a plea of trespass on the 
 
 case, and so forth. And whereupon the said A. B., by E. F., 
 
 his attorney, complains that whereas the said C. D., on the 
 
 day of , in the year of our Lord , to wit, at 
 
 the county aforesaid, was indebted to the said A. B. in the 
 
 sum of dollajs for the woi'lc and labor, care, diligence, 
 
 and attendance of the said A. B. before that time done, per- 
 formed, and bestowed by the said plaintiff in and about the 
 business of the said defendant, for him, and at his special in- 
 stance and request, and being so indebted, he, in consider- 
 ation thereof, afterwards, to wit, on the same day and year 
 aforesaid, at the county aforesaid, undertook and faithfully 
 promised the said A. B. to pay him the said sum of money 
 when he should be thereto requested; nevertheless the said 
 defendant hath not yet paid the aforesaid suraof money, or 
 any part thereof, to the said plaintiff (although so to do the 
 said defendant was requested by the said plaintiff afterwards, 
 to wit, on the same day and year aforesaid, and often after- 
 wards, to wit, at the county aforesaid), but to pay the same 
 the said defendant hath hitherto altogether refused, and doth 
 still refuse so to do, to the damage of the said plaintiff in the 
 sum of dollars, thereupon he brings suit, etc. 
 
 E. F., 
 
 Plaintiff's attorney. 
 
 And therefore the said A. B., by his attorney afore- Euieto 
 said, prays that the said C. D. may answer to the p'^"^- 
 declaration of him the said A. B. in the plea aforesaid: 
 whereupon it is ruled by the court here, that the said C. D. 
 answer to tiie declaration of the said A. B. in the plea afore- 
 said, or judgment will be rendered against him by default. 
 
 E. F., 
 
 Plaintiff's attorney. 
 
316 COMMON LAW PRACTICE. 
 
 And the said C. D. comes and defends the wrone' 
 
 Plea. . . . 
 
 and injuiy, when, and says, that the said plaintiff 
 ought not to have and maintain his action aforesaid against 
 him, because, he says, that he, the said defendant, did not 
 at any time within three years next before the commence- 
 ment of this suit, undertake or promise in manner and form 
 as the said plaintiff hath above thereof complained against 
 him, and this he is ready to verify; wherefore he prays 
 judgment if the said plaintiff' ought to have or maintain his 
 aforesaid action against him. 
 
 ' G.H., 
 
 Defendant's attorney. 
 
 Kuieto And thereupon the said C. D., by his said attor- 
 repiy. ney^ prays that the said A. B. may reply to the plea 
 of the said C. D. in the action aforesaid ; whereupon it is 
 ruled by the court here that the said A. B. reply to the plea 
 of the said C. D. in the action aforesaid, or judgment will 
 be rendered against him by default. 
 
 G. H., 
 
 Defendant's attorney. 
 
 And the said plaintiff saith that he, by reason 
 of anj'thing by the said defendant in his said plea 
 above alleged, ought not to be barred from having and main- 
 taining his action aforesaid against him, because, he says, 
 that the said C. D. did within three years next before the 
 suing out the original writ of the said A. B. against the said 
 C. D. in this cause, undertake and promise in manner and 
 form as the said A. B. hath above thereof complained against 
 'him; and this he prays may be inquired of by the country. 
 
 E. F., 
 
 Plaintiff's attorney; 
 
 Joinder 
 in issue. 
 
 Verdict. 
 
 And the said defendant doth the like. 
 
 G. H., 
 
 Defendant's attorney. 
 
 And now come as well the plaintiff", by his attor- 
 ney, as the defendant, by his attorney, and a jury 
 
MARYLAND RECORD IN ASSUMPSIT. 317 
 
 of good and lawful men of this county, to wit, etc., who, 
 being sworn to try the issue above joined, on their oaths 
 say, they find the same in favor of the plaintift", and that the 
 money payable to him, by tiie defendant, by reason of the 
 
 premises, is the sum of dollars; therefore it 
 
 is considered by the court here, that the said A. B. 
 
 recover against the said C. D. as well the said sura of 
 
 dollars, "for his damages in form aforesaid acknowledged, as 
 
 the sum of , adjudged by the court here unto the said 
 
 A. B. for his costs and charges by him about his suit in this 
 behalf expended; and the said C. D. in mercy, etc., and that* 
 the said A. B. have thereof his execution, etc. 
 
 Memorandum: Before the jurors aforesaid withdrew from 
 the bar of the court here, the said 0. D., by his attorney 
 aforesaid, filed in court here the following bills of excep- 
 tions, to wit : 
 
 At the trial of this cause, the plaintiff", to main- First wii of 
 tain the issue on his part joined, offered to prove excepuona. 
 (here insert matter offered), to the admission of which evi- 
 dence the defendant objected, but the court overruled the 
 objection, and allowed the evidence to be given to the jury, 
 to which ruling the defendant, by his attorney, excepts, and 
 prays the court to sign, seal, and enrol this, his first bill of 
 exceptions, according to the form of the statute in such case 
 made and provided, which is accordingly done this day 
 
 of . 
 
 S. A., [seal.] 
 
 Chief Justice. 
 
 C.W. H. [seal.] ■ 
 T. K [seal.] 
 
 At the trial of this cause, the plaintifif, to main- second bin of 
 tain the issue on his part joined, ofi'ered and gave e'^<:«pti»°s. 
 evidence tending to show that, etc., etc., etc., and there 
 rested. And thereupon the defendant prayed the court to 
 instruct the jury that on the whole evidence, if believed by 
 the jury, the plaintiff was not entitled to recover, but the 
 court refused so to instruct the jury; to which refusal the 
 
318 COMMON LAW PRACTICE. 
 
 defendant, by his attorney, excepts, and prays the court to 
 sign, seal, and enrol this, his second bill of exceptions, ac- 
 cording to the form of the statute in such case made and 
 provided, which is accordingly done this day of . 
 
 S. A., [seal.] 
 
 Chief Justice. 
 
 C. W. H. [seal.] 
 
 T, K. [SEAL.] 
 
 , Third bill of After the evidence stated in the aforegoing 
 exceptions. i,[\\ gf exccptions, the defendant offered to show 
 (here insert), to which evidence the plaintiff objected, and 
 the court sustained the objection, and refused to allow the 
 evidence to go to the jury, to which refusal the defendant, 
 by his attorney, excepts, etc. 
 
 Fourth bill of After the evidence stated in the aforegoing 
 exceptions. \y\\\Q of cxceptions, the defendant offered evidence 
 tending to show, etc., etc., etc., and there rested, and the 
 plaintiff offered, in rebuttal, evidence to show, etc., etc. 
 The plaintiff then asked the court to give the following in- 
 struction to the jury (here insert), to which the defendant 
 objected, but the court gave the instruction as prayed, to 
 which instruction the defendant, by his attorney, excepts, 
 etc. 
 
 Fifth bill of The defendant then prayed the court to instruct 
 exceptions, ^hc jury as follows (insert), which the court re- 
 . fused to do, to which refusal the defendant, by his attorney, 
 excepts, etc. 
 
 Maryland: set. 
 
 writof The State of Maryland to the honorable the judges 
 
 error. Qf court, greeting: Whereas, at a court, 
 
 begun and held, etc., a cei-tain A. B., by the judgment of 
 
 the said court, recovered against a certain C. D., late of 
 
 county, as well the sum of dollars, for his damages, as 
 
 the sum of , adjudged by the court unto the said A. B. 
 
FORMS OF INSTRUCTIONS. 319 
 
 for his costs and charges by him about his suit in this behalf 
 expeuded, whereof the said C. D. ia convict, as it is said, and 
 because in the record and proceedings, as also in the rendi- 
 tion of the said judgment, a manifest error hath happened, 
 to the great damage of the said C. D. as of his complaint hath 
 been stated; therefore you are hereby commanded, that if 
 the judgment aforesaid be therein given, then the record 
 and proceedings aforesaid, with all things thereunto relat- 
 ing, to the Court of Appeals, to be held for, etc., under your 
 seal, distinctly and openly you send, together with this writ, 
 that the record and proceedings aforesaid being inspected, 
 the said Court of Appeals may farther cause to be done 
 therein, for the correcting that error, what of right, and ac- 
 cording to the laws and customs of this State, may be done. 
 "Witness, etc. 
 
 It is thereupon ordered by the court here, that a tran- 
 script of the record and proceedings in the plea aforesaid, 
 with all things thereunto relating, be transmitted to the 
 
 Court of Appeals, to be held for the Shore of the State 
 
 of Maryland, and the same is transmitted accordingly. 
 
 FORMS OF INSTRUCTIONS. 
 
 The jury are instructed, that if they find from the evi- 
 dence that the plaintiff was rightfully on the cars of the 
 defendant, as a passenger, and while on said cars received 
 the injury complained of in the declaration, the injury is 
 presumed to have resulted from the negligence of the de- 
 fendant, until the contrary is proved, and the burden of 
 proof is on the defendant to show the contrary. 
 
 If the jury find that the injury complained of was occa- 
 sioned by the negligence of the defendant, but further find 
 that the plaintifiF's own negligence contributed directly to 
 it, and that notwithstanding the defendant's carelesness, the 
 
320 COMMON LAW PRACTICE 
 
 injury might have been avoided, but for such contributory 
 negligence, the plaintift' is not entitled to recover. 
 
 If the jury find from the evidence, that the promissory 
 note, on which this action is brought, was made and deliv- 
 ered to the payee, without consideration, to enable the payee 
 to negotiate it and raise money for the use of the maker, 
 and that the said payee passed it to the plaintiff at a rate 
 of discount exceeding the legal rate of interest, the trans- 
 action was usurious and the plaintiff is not entitled to 
 recover. 
 
 If the jury find from the evidence, that thp promissory 
 note declared on was given for a valuable consideration, and 
 was passed by the payee to the plaintiff, for value, it is im- 
 material at what discount it was purchased by the plaintiff, 
 and the fact of its being indorsed by the payee does not, in 
 connection with such discount, make the transfer, to the 
 plaintiff, usurious. 
 
 If the jury find from the evidence, that the plaintiff was 
 injured by a collision between his own vehicle and a train 
 of cars on the railroad of the defendant, the burden of proof 
 is on the plaintiff to show that the injury was caused by the 
 negligence of the defendant. 
 
 If the jury find that the injury complained of in the decla- 
 ration was occasioned by a collision between a street car in 
 which the plaintiff was lawfully riding and a train of cars 
 on the railroad of the defendant, and that the defendant's 
 agents in charge of said train were guilty of negligence in 
 not avoiding said collision, the plaintiff'is entitled to recover, 
 and it is not a defense that the negligence of the driver of the 
 street car contributed to the result. 
 
 If the jury find that the horse referred to in the declara- 
 tion was the property of the plaintiff, and was wrongfully 
 taken from his possession and sold to the defendant, who 
 afterwards sold him to another, the plaintiff is entitled to 
 recover the value of the horse from the defendant, though 
 
FORMS OF INSTRUCTIONS. 321 
 
 the latter may have bought and sold the horse in good faith 
 and in ignorance of the plaintiff's title. 
 
 If the jury find that the eonnnunication set out in the 
 declaration was addressed by the defendant to the Secretary 
 of the Treasury, as alleged in the declaration, and in conse- 
 quence thereof, the plaintiff was dismissed from his office, 
 they are instructed that said communication was a privileged 
 one, and not libellous in law, unless they further find that 
 it was made maliciously, in which case, if they further find 
 that it was false, the plaintiff' is entitled to recovei*. 
 
 If the jury find from the evidence, that the defendant, for 
 more than twenty years before the commencement of this 
 suit, has been in the continuous, uninterrupted possession, 
 under inclosure, of the premises in controversy, with a claim 
 of title thereto during said period, said possession is a bar to 
 the plaintiff's claim, and the jury must find for the defendant. 
 
 If the jury find from the evidence that the plaintiff had a 
 connected record title, by successive conveyances, from the 
 patent issued by the United States, except that one convey- 
 ance in the chain of title which should have been executed 
 thirty years ago is wanting, but that possession has been 
 held in conformity with said chain of title for over twenty 
 years, the jury may presume said missing conveyance, from 
 such possession. 
 
 If the jury find from the evidence that the defendant un- 
 dertook for value, to deliver to the plaintiff" five hundred 
 
 barrels of flour on the day of , for the price of 
 
 $2500, and failed or refused to do so, the plaintift'is entitled 
 to recover, and the measure of his damages is the difference 
 between the contract price and the market price at the time 
 and place agreed on for such delivery. 
 
 If the jury find from the evidence that in consideration 
 of $500 paid him in advance, the defendant undertook to 
 deliver to the plaintiff" one hundred barrels of flour on the 
 
 day of , and failed or refused to do so, the plaintiff' 
 
 21 
 
.'322 
 
 COMM©N LATSr PRACTICE. 
 
 is entitled to recover, and the jury may allow, as damages, 
 the difference between the contract price and the highest 
 market price that has prevailed between the agreed time of 
 'delivery and the ta-ial. 
 
 MARYLAIiTD DOCKET. 
 
 Appearance docket. 
 
 E. W., , 
 
 .-Attorney, 
 
 < 
 
 «. H., I 
 
 Attorney. 
 
 r A. B., 
 
 Plaintiff. 
 
 • €. D., 
 
 Defendant. 
 
 Case. 
 Cepi. 
 Rule nar. 
 
 Impaflance docket. 
 
 IE. F., 
 
 Attorney. j 
 
 A. B., 
 
 (Plaintiff. 
 
 , 
 
 No. 
 
 < 
 
 < 
 
 
 
 Case. 
 
 Rule nar. 
 
 Nar. Rule plea. 
 
 
 ■G. H., 
 
 Attorney. 
 
 'C. D., 
 
 Defendant. 
 
 
 Srlal. docket. 
 
 E. F., 
 
 .Attorney. 
 
 A. B., 
 
 Plaintiff. 
 
 
 
 
 
 
 Case. 
 
 'Ho. 
 
 i 
 
 'G. H., 
 
 .Attorney. 
 
 0. D., 
 
 .Defendant 
 
 Nar. non assump- 
 sit and issue. 
 
 day of , 
 
 Jury sworn, ver- 
 dict for plaintiff. 
 
 
 Damages to be re- 
 leased on pay- 
 ment of $ , 
 
 day of . 
 
 Judgment. 
 
MARYLANB RECORD IN HBPLEVIN. 
 
 323 
 
 E. F., 
 
 Attorney. 
 
 No. 
 
 G. H., 
 
 Attorney. 
 
 A. B., 
 
 Plaintiff. 
 
 C. D., 
 
 Defendant. 
 
 Replevin. Bond. Appearance docket. 
 
 Nar. rule plea. 
 Replevied and delivered 
 as per schedule, and suna- 
 -moned defendant. 
 
 E. F., 
 
 Attorney. 
 
 No. 
 
 G. H., 
 
 Attorney. 
 
 A. B., 
 
 Plaintiff. 
 
 C. D., 
 
 Defendant. 
 
 EepleviH. 
 
 Nar. rule plea, imparlance ^ostet. 
 
 E. F., 
 
 Attorney. 
 
 No. 
 
 G. H., 
 
 Attorney. 
 
 A. B., 
 
 Plaintiff. 
 
 Eepl'evin, nar. Trial docket. 
 
 Plea, property in defend- 
 ant, and issue. 
 
 day of . Jury 
 
 sworn. Verdict for plain- 
 tiff, damages one cent. 
 
 day of . Judg- 
 ment, 
 
 C. D., 
 
 Befendant 
 
 MARYLAND EECORD IN REPLEVIN. 
 
 A. B. ] Be it remembered, that heretofore, to 
 
 V. V wit, on the day of , in the year Wiit. 
 
 C. D. j of our Lord , the said A. B., % E. F., 
 
 his attorney, filed in the county court here a certain writing 
 
324 COMMON LAW PRACTICE. 
 
 obligatory, commonly called a replevin bond, and wbich is 
 in manner and form, and of the tenor following, to wit [here 
 insert it); thereupon on the day and year aforesaid, the said 
 A. B., by his attorney aforesaid, prosecuted and sued forth 
 out of the county court here, the writ of the State of Mary- 
 land of i-eplevin, directed to the sheriff of countj', in 
 
 the words and of the tenor following, to wit [here insert it); 
 
 at which mentioned second Tuesday of , being the 
 
 da}' of said month, A.D. , and the day of the return of 
 
 the aforegoing writ, comes into the countj' court here the 
 
 said A. B., by his attorney aforesaid, and the sheriff of 
 
 county aforesaid, to wit, R. H., gentleman, to whom the said 
 aforegoing writ was in form aforesaid directed, makes return 
 thereof to the court here, thus indorsed, to wit [enter thewrit) ; 
 and the said C. D., so forewarned by Gr. H., his attorney. 
 Motion for appears in court here, and prays a return of the 
 return. horscs aforesaid, so as aforesaid replevied and de- 
 livered to the said A„B. by the sheriff of county afore- 
 said, in. virtue of the said writ of replevin, which is granted 
 unto him upon giving bond and security, to be approved of 
 Beturn by the court here, conditioned for a return of the 
 ordered, gajd, etc, whcreupou the said C. D., by his attorney 
 aforesaid, files in 'court here a certain writing obligatory, 
 commonly called a retorno habendo bond, in form and tenor 
 following, to wit [here insert it); which being read and heard, 
 and the security of the said bond being approved of by the 
 court here, thereupon the said C. D., by his attorney afore- 
 said, prosecutes and sues forth out of the county court here 
 the writ of the State of Maryland de retorno habendo, di- 
 rected to the sheriff of county aforesaid, in the words 
 
 and of the tenor following, to wit [insert it); and the said C. 
 
 D., by his attorney aforesaid, defends the force and injury, 
 
 when, and so forth, and prays leave of the court 
 
 mparance. ^^^,^ to imparl Until the second Tuesday of 
 
 next, and to him it is granted; the same day is given to the 
 
 said A. B. also, at which said second Tuesday of , being 
 
 the day of the said month, A.D. , and the day of 
 
 the return of the last aforegoing writ, and to which said day 
 the said C, D, had leave to imparl, comes again into the 
 
MARYLAND RECORD IN REPLEVIN. 325 
 
 court here, as well the said A. B., by his attorney aforesaid, 
 aa the said C D., by his attorney aforesaid; and the said C. 
 D., by his attorney aforesaid, as before, defends the force and 
 injury, when, etc., and says that he did not take the pieanon 
 said horses in the declaration aforesaid abovemen- "^p"- 
 tioned, in manner and form as the said A. B. above against 
 him hath declared, and of this he puts himself upon the 
 country, etc.; and the said A. B. in like manner, etc.; and 
 the said C. D., by leave of the court here, according to the 
 form of the statute in such case made and pro- piea, property 
 vided,by his attorneys aforesaid, comes and fur- in defendant. 
 ther defends the force and injury, when, etc., and says that 
 the said A. B. ought not to have or maintain his aforesaid 
 action against him, because he says that the said horses in 
 the declaration aforesaid mentioned, at the time when, etc., 
 were the property of him, the said C. D., without this, that 
 they were at the time when, etc., the property of the said A. 
 B., as he hath alleged, and this he is ready to verify; where- 
 fore he prays judgment, if the said A. B. his action aforesaid 
 against him ought to have or maintain, etc., and that a re- 
 turn of the said horses may be adjudged to him, the said C. 
 D., etc., and the said A. B., by his attorney aforesaid, as to 
 the second plea of him, the said C. D., above 
 pleaded, saith, that he, by anything in the said 
 plea alleged, from having and maintaining his action afore- 
 said to be precluded, ought not, because he saith that the 
 property of the said horses called John and Charley, at the 
 time of taking the said horses, was in him, the said A. B., in 
 manner and form as he by his declai*ation aforesaid above 
 thereof hath alleged, and this he prays may be inquired of 
 by the country, and the said A. B. in like manner, etc.; and 
 for trying the issues aforesaid, between the parties aforesaid 
 above joined, therefore let a' jury thereon appear before the ' 
 
 court here on the second Tuesday of next, by whom, 
 
 etc., and who neither, etc., to recognize, etc., because as 
 well, etc., the same day is given to the parties aforesaid, 
 
 then and there, etc., at which said second Tuesday of , 
 
 being the day of , A.D. , come agaiu into 
 
 the court here, as well the said A. B., by his attorney 
 
32^ CO'lVSMON LAW PRACTICE. 
 
 aforesaid, as the said C. D., by his attorney aforesaiel'; and 
 the said C. Tf., by his attorney aforesaid, withdraws his first 
 plea hereinbefore set forth and alleged on, and says that he 
 Noncepa will Hot further prosecute of and upon that plea, 
 withdrawn* and the issu& thereto joined ; whereupon for try- 
 ing" the issue- herein last above joined between the parties 
 aforesaid, it is ordered by the eou-rt here, with the consent 
 of the parties aforesaidy by their O'ttorneys aforesaid, that 
 Special jury, twelve pcrsons from the panel of petit jurors, re- 
 ordered, turned to the court here^ be drawn by ballot, 
 according to the act of Assembly in such case made and 
 provided; and thereupon the twelve persons being so drawn 
 by ballot,, and called, coirie^ that is to- say {entering/ furors' 
 Special' names), who being impanelled and sworn, etc., upon 
 verdict, their oath say^ etc. {enter the- verdict, setting' forth the 
 facts and then), but whether \i<pon> the whole matter afore- 
 said, by the jurors aforesaid, itt mttnner and form aforesaid 
 fou-nd, the property of the said horses, John and Charley, at 
 the time of taking the- said horses, was i<n him, the said A. 
 B., in manner and form as he by his declaration aforesaid 
 hath above alleged, the jurors are wholly ignorant, and pray 
 thereupon the advice of the- court here; and if upon the said 
 matter it shall appear to* the court here- that the property of 
 the said horses, John- and Gbarley, at the- time of taking the 
 said horses, was in- the said A. B., in- manner and form as 
 he by his declaration* aforesaid hath alteged,.the said j,uror8 
 say, upon their oath, that the property of the said horses, 
 John and' Charley, at the time of taking the said horses, was 
 in him, the said A. B., in manner and fornt as the said A. 
 B. by replying hath alleged, and that they assess the dam- 
 ages of him, the said A. B., by occasion of the- detention 
 
 thereof, to the sum of ; and if upon the whole matter 
 
 aforesaid, by the jurors aforesai'd, in manner and form afore- 
 said found, it shall appear tothe court here that the said 
 horses in the declaration aforesaid mentioned, at the time 
 when, etc., were the property of him,, the- said C. D., then 
 the said jurors, upon, their oath- aforesaid say, that the said 
 horses in the declaration aforesaid meationed, at the time 
 when, etc., were the- property of him, the said C. D,, as the 
 
MARYLAND RECORD IN TROVER. S2T 
 
 said C. J), in pleading thereupon hath alleged, and they as- 
 sess the damages of him, the said C. D., by occasion thereof,, 
 to the sura of . 
 
 Whereupon all and singular the premises, being 
 by*the court here seen, heard, and fully under- ^ ^""^^ 
 stood, and mature 'deliberation thereupon had, for that it 
 appears to the court here that the said horses in the decla- 
 ration aforesaid mentioned, at the time when, etc., were the 
 propertj' of the said 0. D., as the said C. D. within the plead- 
 ing thereupon hath alleged, therefore it is considered by the 
 court here that the said A. B, take nothing by his writ 
 aforesaid, but that he be in mercy, etc., and that the said C. 
 D. go thereof without day, etc.; and it is also considered by 
 the court here, that the said C. D. recover against the said 
 
 A. B. as well the said sum of , etc., as the sum of , 
 
 by the court here unto him, the said C. D., on his assent ad- 
 judged, for his costs and chp,rges, etc.,and that he have thereof 
 his execution, etc., and thereupon the said A. B., by his 
 attorney aforesaid, prays an appeal from the judgment afore- 
 said, so as aforesaid rendered, to the high Court of Appeals 
 of the State of Maryland, and the same is granted unto him; 
 it is therefore ordered by the court here, that the record and 
 proceedings aforesaid, with all things thereunto relating, be 
 transmitted to the said high Court of Appeals of the said State, 
 and the same are transmitted to the said court accordingly. 
 Test, J. G., 
 
 Clerk. 
 
 MAEYLAND EECOED IN" TEOVEE. 
 
 Be it remembered, that heretofore, t& 
 
 wit, on the day of , the said Capias. 
 
 A. B., the plaintifi" in this cause, by E. E., 
 his attornej', prosecuted and sued forth out of the county 
 court here the writ of the State of Maryland of capias ad 
 respondendum, to the sherift' of county aforesaid di- 
 rected, in the words and of the tenor following, to wit (enter 
 
328 COMMON LAW PRACTICE. 
 
 writ); and the said A. B. did then and there declare against 
 the said C. D., in the plea aforesaid, in manner and form of 
 the tenor following, to wit (enter declaration); a copy of which 
 said declaration was made and sent with the said writ which 
 issued in the plea aforesaid, thereon indorsed, etc., at which 
 said second Tuesday of, etc., and the return day of the afore- 
 going writ, comes into the county court here the said A. B., 
 by his attorney aforesaid, and the sheriflF of county afore- 
 said, to whom thesaidaforegoing writ was made and directed, 
 makes return to the court here of the said writ, thus in- 
 dorsed, to wit (enter return); and the said C. T>. being 
 
 Return. n -, i ^-^ tt i • -i ^ 
 
 called, appears by G. H., his attorney; and thereupon, 
 on motion of the said A. B., the said C. D. is ruled to give 
 special bail in the plea aforesaid; whereupon the said C. D., 
 by his said attorney, files in court here the following bail- 
 piece, to w\t (enter bail-piece), which said bail-piece is approved 
 by the court here; whereupon the said C. D., by his said 
 attorney, defends the force and injury, when, etc., and the 
 said A. B., by his attorney aforesai,d, prays that the said 
 C D. may answer to his declaration aforesaid, in the plea 
 aforesaid, by the second Tuesday of next; and there- 
 upon it is said to the said C. D., that if he doth not answer 
 to the declaration aforesaid of the said A. B. by the said 
 
 second Tuesday of next, judgment will be entered 
 
 •against him by default; whereupon the said C. D., by his 
 said attorney, prays leave of the court here to imparl until 
 
 the second Tuesday of next, and he hath it; the same 
 
 ■day is given to the said A. B., also; at which said second 
 Tuesday of, etc., comes again into the county court here, 
 as well the aforesaid A. B., by his attorney aforesaid, as the 
 ^.foresaid C. D., by his attorney aforesaid; and the said C. D., 
 by his said attorney, as before, defends the force and injury, 
 pieanot whcu, ctc , and saith that he is in nowise guilty of 
 guilty, the premises above against him imposed, as the said 
 A. B. above against him hath declared, and of this he puts 
 himself upon the country, etc., and the said A. B. in like 
 manner, etc.; therefore let a jury thereupon appear before 
 
 the court here on the second Tuesday' of next, by whom, 
 
 etc., and who neither, etc., to recognize, etc., because as well, 
 
MARYLAND RECORD IN EJECTMENT. ^ 329 
 
 etc., the same day is given to the parties aforesaid, then and 
 there, etc.; and now here at this day, to wit, the said second 
 Tuesday, etc., comes again into the county court here, as 
 well the aforesaid A. B., by his attorney aforesaid, as the 
 said C. D., by his attorney aforesaid; nevertheless the said 
 C. D., by his attorney, relinquishing his averment above by 
 him pretended, saith, that he cannot deny the action afore- 
 said of the aforesaid A. B. so as aforesaid against him 
 brought, nor but that the said A. B. hath sustained dam- 
 ages, by occasion of the trover and conversion aforesaid, to 
 
 the sum of current money, in manner and form as the 
 
 said A. B. within against him hath complained; therefore 
 it is considered by the court here, that the said A. B. re- 
 cover against the said C. D. the said sum of current 
 
 money, his damages aforesaid, so as aforesaid above con- 
 fessed to be sustained by reason of the trover and conversion 
 
 aforesaid, as also the sum of , by the court here unto 
 
 him on his assent adjudged, for his costs and charges by 
 him about his suit in this behalf laid out and expended; 
 and the said C. J), in mercy, etc. 
 
 MARYLAND EECOED IN EJECTMENT, 
 
 A. B.'s lessee 
 
 V. 
 
 The casual ejector, 
 A. Q-., tenant. 
 
 Be it remembered, that hereto- 
 fore, to wit, on the day of - 
 
 in the year of our Lord , J. G-., 
 
 lessee of A. B., by E. F., his attor- 
 ney, declared in the county court here against T. N., in a 
 plea of trespass and ejectment, with a notice thereto an- 
 nexed, in manner and form following, to wit: 
 
 " county, sc: 
 
 "T. N., late of , farmer, was attached to answer unto 
 
 J. G., in a plea wherefore with force and arms, etc., into all, 
 etc." {copy declaration and notice), a copy of which said dec- 
 laration and notice was made and sent to the sheriff of 
 
330 COMMON LAW PRACTICE. 
 
 county aforesaid, thereon indorsed, "to he served on the de- 
 fendant, tenant in possession, or set up on the premises, at 
 
 least days before court;" at which mentioned second 
 
 Tuesday of , being the day of said mouth, A.D. 
 
 , and the day of the return of the service of the afore- 
 going declaration in ejectment, comes into the county court 
 here the said J. G., lessee of the said A. B., by E. F,, his 
 
 attorney aforesaid, and the sheriif of' county, to wit, 
 
 etc., to whom a copy of the said declaration in ejectment 
 and notice as aforesaid was in form aforesaid made and sent, 
 certifies his service thereof to the court here in terms follow- 
 ing, to wit {here enter sheriff's return of service); whereupon 
 the said J. Gr., lessee of the said A. B., by his attorney afore- 
 said, prays that the defendant, the tenant in possession of 
 the premises aforesaid, or those under whom he claims, to 
 his declaration aforesaid may appear and answer, but the 
 said T. N., nor the said A. Gr., nor any other person what- 
 soever, appears to the declaration aforesaid, but makes de- 
 fault; therefore it is considered by the court here, that the 
 said J. Gr., lessee of the said A. B., recover against the said 
 T. N. his term ■ aforesaid yet to come and unexpired of, in 
 and unto {the premises mentioned in the declaration), with the 
 appurtenances, and that he have thereof his possession 
 against the said T. IS., etc. 
 
 Test, C. K., 
 
 Clerk. 
 
 USTQUIRY OF DAMAGES 
 
 Sheriff's The execution of the within writ appears by the 
 return, inquisition hereunto annexed. 
 
 So answers G. G., 
 
 Sheriff. 
 Maryland, county, sc. : 
 
 An inquisition taken on the day of , 
 
 before G. G., Esquire, sheriff of the said county, 
 
ATTACHMENT PR0CBEDIN98, 831 
 
 by virtue of a certain writ of the State of Maryland of in- 
 quiry of damages, to the same sheriff directed, and to this 
 inquisition annexed, by the oaths of G. J. {and eleven others), 
 twelve good and lawful men of my bailiwicic, who being 
 charged, and sworn well and truly to inquire what damages 
 the said S. T. named in the said writ to this inquisition an- 
 nexed hath sustained by reason of the premises in the same 
 writ mentioned, upon their oaths do say, that the said S. T. 
 hath sustained damages by occasion of the premises afore- 
 said to the sum of current money. 
 
 In testimony whereof the sheriff of the said county, as 
 well as the jurors aforesaid, have hereto set their hands and 
 seals, the day and year above said. 
 
 G. G., [L.S.] 
 
 Sheriff. 
 
 G. J., [L.S.] 
 
 Foreman. 
 
 H. K, [L.S.] 
 
 Etc., etc., etc. 
 
 ATTACHMENT PROCEEDINGS. 
 
 State of Maryland, county, to wit: 
 
 Be it remembered, that on the day of , 
 
 in the year , before me, the subscriber, a jus- obtain an 
 
 tice of the peace of the State of Maryland, in and ""a':'™™' 
 
 . __ on warrant. 
 
 for the said county, personally appeared A. B., a 
 citizen [or resident), of the State of Maryland, and made oath 
 on the Holy Evangely of the Almighty God, that C. D. is 
 justly and bona fide indebted, unto hira the said A. B., in 
 
 the sum of , over and above all discount. And at the 
 
 same time, the said A. B. produced to me the , on and 
 
 by which the said C. D. is so indebted, and which is hereto 
 annexed : And the said A. B. did also make oath, that he 
 doth know (or is credibly informed, and verily believes) 
 
332 COMMON LAW PRACTICE. 
 
 that the said C. T>. is actually run away and fled from jus- 
 tice, and removed from his place of abode, with intent to 
 injure and defraud his creditors {01% thai the said C. D. is not 
 a citizen of the State of Maryland, and doth not reside therein). 
 
 You are therefore hereby required, on the receipt 
 
 Warrant. „ , . n , , , -, ■, 
 
 ot this warrant and the above oath and annexed 
 
 voucher , on which the same is granted, to issue an 
 
 attachment against the lands, tenements, goods, chattels, 
 rights, and credits, of the said C. D., to answer unto the said 
 
 A. B. the above mentioned sum of current money, and 
 
 costs of the attachment, according to the acts of Assembly 
 in such case made and provided, and this warrant shall be 
 your suflicient authority therefor. Given under my hand 
 and seal this, etc. 
 
 [seal.] 
 
 To the Clerk of county court : 
 
 The State of Maryland to the sherifi" of county, greet- 
 ing: Whereas, on the day of , in the year , 
 
 a certain A. B., a citizen of this State, appeared before 
 
 , one of the justices, etc., and made oath that C. C, 
 
 a citizen of this State, is bona fide indebted to him, 
 
 the said A. B., in the' sum of dollars, over and above 
 
 all discounts; and at the same time produced the writing 
 obligatory by which the said C. D. is so indebted; and the 
 said A. B. then and there further made oath, that he did 
 know {or was credibly informed, and verily believes) that the 
 said C. D. was actually run away {or fled from justice, or 
 removed from his place of abode), with intent to injure and 
 
 defraud his creditors : And whereas, the said , esquire, 
 
 by his warrant, to the clerk of the said court, thereby re- 
 quiring the said clerk to issue the writ of the State of Mary- 
 land, of attachment, against the lands, tenements, goods, 
 chattels, and credits, of the said C. D.; therefore, you are 
 hereby commanded to attach, seize, take, and safe keep, the 
 lands, tenements, goods, chattels, and credits of the said 
 C. D., which shall be found in your bailiwick, to the value 
 
AFFIDAVIT FOR CONTINUANCE. 833 
 
 of as well the sum of dollars as the sum of. , for 
 
 the costs and charges which may or shall accrue in the prem- 
 ises; and when you have the same so attached, or any part 
 thereof, the same in your custody safe to keep, or that you 
 
 have the same before court, to be held on the day 
 
 next, then and there to be condemned, according to the 
 
 act of Assembly aforesaid, to and for the use of the said 
 A. B., unless he, the said C. D., by himself, or his attorney, 
 shall appear and answer unto the said A. B., in a plea, etc. 
 {state the plea), according to law; you are likewise com- 
 manded (by good and lawful men of your bailiwick), "to 
 make known to each person or persons in whose hands or 
 possessions the said goods, chattels, and credits, so attached 
 are, if to him or them it shall seem meet, to be and appear, 
 on the day and at the place aforesaid, before the said court, 
 to show cause why such goods, chattels, and credits, so 
 attached as aforesaid, should not be condemned, and execu- 
 tion thereof had and made, as in other cases of recoveries 
 and judgments given in courts of record," according to the 
 directions of the acts of Assembly aforesaid; and that you 
 make appear unto the said court, at the place and on the 
 day aforesaid, in what manner you shall execute this writ, 
 and have you there then this writ. Witness, etc. 
 
 AFFIDAVIT FOE CONTmUANCE. 
 
 Action of , in county court. 
 
 Be it remembered, that on this day of Affldavitfor 
 
 — , personally appears the above-named A. B., «o°tMua°ce. 
 
 the plaintiff in the said cause, before me, etc., and being 
 sworn, etc., deposeth and saith, that he cannot with safety 
 and justice to himself, proceed to the trial of the above 
 
334 COMMON LAW PRACTICE. 
 
 cause at this term, for the want of evidence material, com- 
 petent, and proper, in the said suit; that of , 
 
 is a material, competent, and proper witness for him in the 
 said suit, by whom he expects to prove, etc., etc., that he 
 hath used his proper and reasonable endeavors to procure 
 
 the attendance of the said , and that he verily believes 
 
 that the cause cannot be tried with justice to himself, with- 
 out the evidence of the said , and that he has a reason- 
 able eKpectation and belief that the same can be had at the 
 next term. 
 
 Sworn to before me, 
 
 , J. P. 
 
 OATHS. 
 
 You shall well and truly try the issue (or 
 
 Of a petit jury , 
 
 in a civil case issues) joined, between A. B., plaintiff, and C. D., 
 ofdebt. defendant, and a true verdict give, accoi'ding to 
 
 the evidence; so help you God. 
 
 Same to assess You shall Well and truly try and assess the 
 damages. damages in the action vow depending between 
 A. B., plaintiff, and C. D., defendant, and a true verdict 
 give according to the evidence; so help you God. 
 
 , , You shall well and truly try the issue ioined 
 
 Same to try J ^ j 
 
 issues and in the action between A. B., plaintiff, and C. D. 
 
 assess damages. ^^^ -g_ y_^ defendants, and a true verdict give 
 according to the evidence; and in case you find said issue 
 for the plaintiff, you shall well and truly assess the damages 
 sustained by him in the premises, as well against said 0. D. 
 as against the said E. F., and a true verdict give according 
 to the evidence. 
 
 And in case you find the said issue for said C. D., defend- 
 ant, you shall then well and truly assess the damages and 
 costs sustained in the premises by the said A. B., plaintifi^, 
 against the said E. P., defendant, and a true inquisition 
 make, according, etc. 
 
BOND. 335 
 
 The evidence which you shall give to the of a witness to 
 court and jury in the matter depending before the poiit jury. 
 them, shall be the truth, the whole truth, and nothing but 
 the truth; so help you God. 
 
 You shall true answers make to such ques- voirdir6,Tor- 
 tions as the court shall demand of you; so help itatem dicere. 
 you God. 
 
 BOND. 
 
 Know all men by these presents, that we (or General form 
 
 2) , are (or am) held and firmly bound unto "^ bona. 
 
 , in the just and full sum of , to be paid to the said 
 
 , his certain attorney, executors, administrators, and 
 
 assigns ; to the payment whereof, well and truly to be made 
 and done, we (or I) bind ourselves (or myself and my), our 
 heirs, executors, and administrators { jointly and severally), 
 firmly by these presents, sealed with our seals, and dated 
 this day of , in the year of our Lord, . 
 
 Whereas, the said did obtain judgment condition of 
 
 (or a decree) against the said , in appeal bond. 
 
 county court at term, in the j-ear of our Lord 
 
 an 
 
 from which j udgment (or decree) the said hath prayed 
 
 an appeal {or hath sued out a writ of error returnable) to the 
 
 next Court of Appeals to be held for the Shore of the 
 
 State of Maryland. 
 
 Now, the condition of the above obligation is such, that 
 
 if the said shall not cause a transcript of the record and 
 
 proceedings of the said to be transmitted to the Court 
 
 of Appeals, to be holden for the Shore, within the time 
 
 required by law, and prosecute the said appeal with effect; 
 
336 COiMMON LAW PRACTICE. 
 
 and also satisfy and pay the said , his executors, admin- 
 istrators, and assigns, in ease the said judgment shall be 
 affirmed, as well the — r-debt, damages, and costs, adjudged 
 in the county court aforesaid, as also all damages and costs 
 that may be awarded by the Court of Appeals aforesaid, 
 then the said bond to be and remain in full force and virtue, 
 otherwise to be of no effisct. 
 
 Condition of a Replevin Bond. 
 
 Whereas, the said is about to sue forth from the 
 
 court of county, a writ of replevin, directed to 
 
 the sheriff of said county, commanding him to replevy cer- 
 tain goods and chattels of him, the said , whidh the 
 
 said wrongfully detains, etc. ITow, the condition of 
 
 the above obligation is such, that if the said shall 
 
 prosecute his said writ to effect and make return of said 
 goods and chattels, if the same be adjudged, and answer all 
 damages, then the said obligation shall be void ; it shall 
 otherwise remain. in full force and virtue at law. 
 
 COMMISSIOlSr TO TAKE TESTIMONY. 
 
 county, sc: 
 
 The State of Maryland to A. B., C. D., E. F., and G. H., 
 
 of , in , gentlemen, greeting: Be it known that 
 
 you are appointed commissioners to examine witnesses in 
 
 a cause depending in court, between P, P., plaintiff, 
 
 and D. D., defendant; therefore you, or any three or two 
 of you, are requested,' having first taken the oath here- 
 unto annexed, and also administered the annexed oath to 
 the person whom you shall appoint as clerk to attend the 
 execution of this commission, that at such time and place 
 as to you, or any three or two of you, shall seem conve- 
 nient, you cause to come before you, or any three or two 
 of you, all such witnesses as shall be named or produced 
 to you, or any three or two of you, by either the plaintiff 
 or defendant, and that you, or any three or two of you, ex- 
 amine them upon their corporal oaths, to be by you, or any 
 
BOND. 837 
 
 three or two of yoa, administered, on the holy evangely of 
 Abnighty God, touching their knowledge or rememhrance 
 of anything that may relate to the cause aforesaid; and that 
 you, or any three or two of yon, cause notice to be given to 
 the parties, or their attorneys, of tlie execution of this com- 
 mission, before you execute the same; and having reduced 
 the depositions of the witnesses, so taken by you, or any 
 tViree or two of you, unto writing, you send the same, with 
 this commission, closed under your, or any three or two of 
 your, hands and seals, to the said court, with all convenient 
 speed. Witness, etc. 
 
 Commissioners' Oath. , 
 
 You shall, according to the best of your skill and knowl- 
 edge, truly, faithfully, and without partiality to any or either 
 of the parties, take the examinations and depositions of all 
 and every witness and witnesses produced and examined, by 
 virtue of the commission hereunto annexed, upon the in- 
 terrogatories now, or which may hereafter, before the said 
 commission is closed, be produced to, and left with you, by 
 either of the said parties; so help you God. 
 
 Clerk's Oath. 
 
 You shall truly, faithfully, and without partiality to Uuj 
 or either of the parties in this cause, take, write down, and 
 transcribe the deposition of all and every the witness and 
 witnesses, produced before, and examined by, the commis- 
 sioners, or any three or two of them, named in the commis- 
 sion hereunto annexed, as far forth as you are directed and 
 employed by the said commissioners, or any three or two 
 of them, to take, write down, and transcribe the said depo- 
 sitions, or any of them; so help you God. 
 
 Commissioners' Return. 
 
 "We, the undersigned, commissioners, do hereby certify, 
 that in pursuance of the annexed commission, empowering 
 
 22 
 
388 
 
 COMMON LAW PRACTICE. 
 
 US to take evidences in a cause, wherein P. P. is plaintiff, 
 and D. D., defendant, after taking the oath auuexedlto said 
 commission, and administering the oath thereto annexed to 
 L. M., our cleric, and after having given notice to the re- 
 spective parties, we met on the day of , at , 
 
 and there proceeded to take the examination of witnesses 
 produced before us, in the presence of the attorneys of said 
 parties, as follows, viz. : 
 
 0. P., a witness of lawful age, being duly sworn, deposed 
 and said, in answer to the interrogatories accompanying the 
 said commission, as follows, viz.: 
 
 To the first interrogatory, I, etc., etc. 
 
 To the first cross-interrogatory, etc. 
 
 0. P. 
 
 There being no other witnesses to be examined, and 
 neither party desiring further time, we thereupon closed the 
 said examination, and herewith return the same with said 
 
 commission, closed under our hands and seals this day 
 
 of , A.D. — :-. 
 
 A. B. [L.S.J 
 CD. [L.S.] , 
 E. F. [L.S.] 
 
 DEPOSITION DE BENE ESSE. 
 
 Circuit Court of the United States for the 
 
 circuit. 
 
 A. B., plaintiff, 
 
 V. 
 
 C. D., defendant. 
 
 Please take notice that on the day of next, at 
 
 «the office of J. S., United States Commissioner, etc., in , 
 
DEPOSITION DE BENE ESSE. 339 
 
 at 12 o'clock M., I will proceed to take the deposition, de 
 bene esse, of E. F., to be used in the above cause. 
 
 Yours, etc., 
 
 V.Y., 
 
 Attorney of A. B. 
 To C. D. 
 
 Service admitted, 
 
 CD. 
 
 Deposition. 
 
 Be it remembered, that on the day of , one thou- 
 sand, etc., at , A. B. personally appeared before me, 
 
 J. S., a commissioner appointed under the laws of the United 
 States to take affidavits and acknowledgments of bail, and 
 made oath that he, the said A. B., was plaintiff in a suit then 
 depending in the Circuit Court of the United States for the 
 circuit and district of , wherein C. J), was defend- 
 ant; that the testimony of E. F., of - 
 
 terial and necessary for him, the said defendant, in the pros- 
 ecution of such suit, and that he, the said E. F., lives at — ■ — , 
 
 more than one hundred miles from , where the court, 
 
 at which he, the said defendant, expected the said cause 
 would be tried, was appointed by law to be held; and the 
 said A. B. hath requested me that the said E. F. might be 
 examined according to the directions of the act of Congress 
 in such case made and provided. 
 
 Whereupon, I ordered that the said E. F. should be ex- 
 amined, de bene esse, before me at , and notice of the 
 
 taking of such deposition having been given to the defend- 
 ant, C. D., as required by law, as appears by said notice 
 herewith returned, and as well the said A. B. as the said 
 
 C. D. appearing before me at , on this day of , 
 
 I have therefore proceeded with said examination. 
 
 And the said E. F., being carefully examined, cautioned, 
 and duly sworn, to, testify the whole truth and nothing but 
 the truth, saith .... 
 
 (Signed), E. F. 
 
340 COMMON LAW PRACTICE. 
 
 And I do further certify, that the preceding deposition 
 was reduced to writing by rae and signed by the said E. F,, 
 and that I am not of counsel or attorney for either of the 
 parties to said suit, nor am I interested in the event thereof. 
 
 J, S., [seal.] 
 
 Commissioner. 
 
 SUGGESTION'S. 
 
 Suggestion of A. BA And hereupon the said A. B, prays 
 breaches in ^i. V that the Said Writing obligatory in 
 
 afterpieaof ' C. D. ) the Said declaration mentioned may 
 non est factum, jjg enrolled, and the same is accordingly en- 
 rolled in these words, to wit {copy the obligatory part of the 
 bond verbatim). He also prays that the condition of the said 
 writing obligatory may be enrolled, and the same is accord- 
 ingly enrolled in these words, to Avit: Whereas, etc. {copy 
 the condition of the bond beginning with the recital, if any). And 
 for a breach of the said condition of the said writing obli- 
 gatory, the said A. B., according to the form of the statute 
 in such case made and provided, suggests, and gives the 
 court here to understand and be informed, that, etc. {assign 
 the breach as in a replication). 
 
 Same after ^' ^' ) -^^^ hcrcupon the Said A. B., accord- 
 judgment V. Viug to the form of the statute in such 
 y e au . C. D. J cascs made and provided, suggests, and 
 gives the court here to understand and be informed, that 
 the said writing obligatory in the said declaration mentioned, 
 was made and given by the said C. D. under and subject to 
 certain condition thereto subscribed; whereby, after reciting 
 to the effect following, that is to say, that, etc. {copy recitals), 
 it was declared, that the condition of said writing obligatory 
 was such, that if, etc. {copy condition), as by the said writing 
 obligatory, reference being thereunto had, will fully appear. 
 
SUGGESTIONS. 341 
 
 Nevertheless the said A. B., for assigning a breach of the 
 said condition of the sai.d writing obligatory, accoi'ding to 
 the form of the statute in such case made and provided, 
 suggests, and gives the court here to understand and be in- 
 formed, that, etc. (state the breaches according to the fads, and 
 which may be as in a replication). And the said A. B., for 
 assigning a further breach of the condition of the said writ- 
 ing obligatory, according to the form of the statute in such 
 case made and provided, further suggests, and gives the 
 court here to understand and be informed, that, etc. {state 
 second and subsequent breaches, according to the facts). 
 
 And thereupon the said A. B., by his attor- g^gg^^tio^of 
 nev, srives the court here to understand and be death of one of 
 informed, that since the suing out of the orig- ^p*'°' 
 
 inal writ in this cause, and before this day, to wit, on , 
 
 the said E. F. died, to wit, at the county aforesaid, and the 
 said A. B. then and there survived him ; which the said C. D. 
 does not deny, but admits the same to be true ; and hereupon 
 the said A. B., by his attorney aforesaid, etc. 
 
 county, sc. : 
 
 The State of Maryland to the sheriff of ca.sa.on 
 
 county, greeting: "Whereas at a county court, for, ^"■''*- 
 
 etc., begun and held on the day of, etc., a certain 
 
 A. B., by the judgment of the said court, recovered against 
 
 a certain C. D., late of , etc. {recite original judgment), 
 
 whereof the said C. D. was convict, as of record is manifest; 
 
 and whereas, also, in the said court, on the day of, etc., 
 
 it was considered that the said A. B. should have his execu- 
 tion against the said C. D. as well for the debt, damages, 
 
 costs, and charges aforesaid, as also for the sum of , 
 
 which to the said A. B., in the said court, was adjudged for 
 his costs and charges which lie had sustained by delay of 
 the execution aforesaid, whereof the same C. D. is convict, 
 as it likewise appeareth of record; therefore you are hereby 
 commanded, etc. 
 
342 COMMON LAW PRACTICE. 
 
 JUDGMENTS. 
 
 A. B. j And hereupon the said plaintiff, in- 
 cassetar brere. V. > asmuch as he caHHot deny the several 
 
 C. D. J matters above pleaded bj the said de- 
 fendant, but admits the same to be true, prays judgment that 
 the said writ of him, the said plaintiff, may be quashed, to 
 the intent that he, the said plaintiff', may issue a better writ 
 against the said defendant; therefore it is considered by the 
 court now here that the said writ of the said plaintiff be 
 quashed, etc. 
 
 A. B. ") And the said A. B., by his said at- 
 By confession ^^ [ tomev, comcs and says that he cannot 
 
 (in assumpsU). i 
 
 C. J). J deny the action of the said A. B., nor 
 but that he, the said C. D., did undertake and promise in 
 manner and form as the said A. B. above thereof against 
 him hath complained, nor but that the said A. B. hath sus- 
 tained damages, by reason of the non-performance of the 
 promises and undertakings in the said declarations men- 
 tioned, to the sum of dollars, as by the said declaration 
 
 is supposed ; whereupon the said A. B., by his said attorney, 
 prays judgment, and his damages so acknowledged, together 
 with his costs and charges by him about his suit in this be- 
 half expended, to be adjudged to him, etc.; therefore it is 
 considered by the court here, that the said A. B. recover 
 
 against the said C. D. as well the said sum of dollars 
 
 for his damages in form aforesaid acknowledged, as the sum 
 
 of adjudged by the court here, uhto the said A. B. for 
 
 his costs and charges by him about his suit in this behalf 
 expended; and the said C. D., in mercy, etc., and that said 
 A. B. have thereof his execution, etc. 
 
 interiocatory A. B. 'j And the Said C. D., by his said 
 
 inqu^Mo'n, ^- f attomcy, defends the force and in- 
 
 and final judgment. Q. J), j jury, whcn, ctc, and says nothing 
 
 in bar or preclusion of the said action of the said A.B., by 
 
 which the said A. B. remains therein undefen-ded against 
 
 the said C- D., for which the said A. B. ought to re- 
 
JUDGMENTS. 343 
 
 cover against the said C. D., bis damages by occasion 
 ot the premises (or von-performavne of the promise and 
 assumption aforesaid), but because it is unknown to the said 
 court here what damages the said A. B. hath sustained by 
 reason of the premises; therefore, on motion of the said A. 
 B., by his attorney aforesaid, let a jury thereupon appear 
 before the court here immediately, by whom, etc., and who 
 neither, etc., to recognize, etc., and diligently to inquire 
 what damages the said A. B. hath sustained by reason of 
 the premises aforesaid; and the jurors of that jury, whereof 
 mention is above made, being balloted, impanelled, and ac- 
 cepted, that is to say {name the jurors), who being called, come, 
 and being elected, sworn, and charged to inquire of the dam- 
 ages sustained by the said A. B. in the premises, and after 
 evidence being given to them of and upon the said prepi- 
 ises, went from the bar of this court to consult and consider 
 of their inquest of and upon the premises aforesaid; and the 
 said jury having consulted, considered and agreed among 
 themselves, they return to the bar of the court here, and' 
 forthwith return their inquisition, under their hands and 
 seals, to the court here, the tenor of whereof is in form fol- 
 lowing: that is to say [enter it), therefore it is considered by 
 the court here, that the said A. B. recover against the said 
 C. D. as well the said sum of current money, his dam- 
 ages aforesaid, by the said inquisition in form aforesaid found, 
 by occasion of the non-performance of the promise and as- 
 sumption aforesaid, as the sum of for his costs and 
 
 charges by him about his suit in this behalf laid out and ex- 
 pended; and the said C. D. in mercy, etc. 
 
 A. B. l And the said C. D., by his said „ 
 
 \ ' «^ By confession against 
 
 V. > attorney, saith, that he cannot executor or adminis- 
 C. D. j deny the action of the said A. B., *-'<"•*<> wad assets. 
 nor but that the said Q., in his lifetime, did undertake and 
 promise in manner and form as the said A. B. hath above 
 thereof complained, nor but that the said A. B. liath sus- 
 tained damages, by reason of the non-performance of the 
 said promises and undertakings in the said declaration men- 
 tioned, to the sum of dollars, as by the said declaration 
 
344 COMMON LAW PRACTICE. 
 
 is supposed;* whereupon the said A. B., by his attorney 
 aforesaid, prays judgnieut, and his damages so acknowl- 
 edged, together with his costs and charges by him about his 
 suit in this behalf expended, to be adjudged bj' him, etc.; 
 therefore it is considered by the court here, that the said A. 
 B. recover against tiie said C. D., executor (or administrator), 
 
 as aforesaid, as well the said sum of for his costs and 
 
 charges by Lim about his suit in this behalf expended, to be 
 levied of the goods and chattels which were of tlie said Q., 
 at the time of his death, in the hands of the said C. D. re- 
 maining to be administered, if so much thereof in his hands 
 to be administered he hath (and if so much thereof in his 
 hands to be administered he hath not,* then tlie costs and 
 charges aforesaid to be levied of the proper goods and chat>- 
 le[s of the said C. D.), and the said C. D. in mercy, etc. 
 
 A. B. "j {Last from the asterisk, then) STor 
 
 Same, where assets \ i j_ j.i ., ^i • t nt t\ ^ j.t • t ' 
 
 are admitted. '"'• V but that the Said U. D. hath in his 
 
 C. D. ) bands unadministered goods and 
 chattels which were of the said Q. at the time of his death 
 sufficient to satisfy and pay to the said A. B. the damages 
 aforesaid, in form aforesaid acknowledged; whereupon, etc. 
 [as last form, from first to second asterisk, then), then the dam- 
 ages, costs, and charges aforesaid, to be levied of the proper 
 goods and chattels of the said C. D., and the said'C D. in 
 mercy, etc. 
 
 Against executor or A. B. \ And the Said A. B. prays that 
 
 administrator by de- j-Jj^ g^jj^J Q J) gxecutor as afore- 
 
 fault under rule plea, V, V . 
 
 damages assessed by | Said, may Ruswer his Said decla- 
 *"=°"'^'- C. D. J ration, and because the said 0. D. 
 doth not answer the declai-ation aforesaid, whereby the said 
 action remains against the said C. D. therein undefended; 
 wherefore the said A. B. ought to recover against the said 
 C. C, his damages, on occasion of the premises; and be- 
 cause it is suggested and proved, and manifestly appears to 
 the court here, that the said A. B. hath sustained damages 
 on occasion of the not performing the promises and under- 
 takings aforesaid to the sura of , besides his costs and 
 
JUDGMENTS. 345 
 
 charges by him about his suit in this behalf expended; there- 
 fore it is considered by the court here, that the said A. B. 
 
 recover against the said C. D., as well the sura of , the 
 
 damages in the declaration of the said A. B. mentioned, as 
 
 the sum of , adjudged by the court unto the said A. B. 
 
 on his assent, for his costs and charges by him about his suit 
 in this behalf expended, to be levied of the goods and chat- 
 tels which were of the said Q., at the time of his death, in 
 the hands of the said 0. D. remaining to be administered, if 
 so much thereof in his hands to be administered he hath, and 
 if so much thereof in his hands to be administered he hath 
 not, then the damages, costs, and charges aforesaid, to be 
 levied of the proper goods and chattels of the said C. D., and 
 the said C. D. in mercy, etc. 
 
 A. B. ) And the said A. B. prays that the ,, 
 
 f ^ , Same, damages 
 
 V. V Caids. D., executor as aforesaid, may assessed by in- 
 C. D.J answer his said declaration, and be- i"''"'""- 
 cause the said G. D. doth not answer the declaration afore- 
 said, of the said A. B. in the plea aforesaid, whereby the 
 said action remains against the said C. D. therein unde- 
 fended; wherefore the said A. B. ought to recover against 
 the said C. D., his damages on occasion of the premises; 
 thereupon, on motion of the said A. B., by his attorney afore- 
 said, and by order of the court here, twelve of the jurors in 
 attendance upon the court here, according to the direction 
 of .the acts of Assembly in such cases made and provided, 
 being called, come, to wit {^enter jurors), who being impan- 
 elled, sworn, affirmed, and charged to inquire and assess the 
 damages and costs sustained by the said A. B. in the prem- 
 ises, upon their oath and affirmation aforesaid, return to the 
 court here, their inquisition of and upon the premises, in 
 form following, to wit {enter inquisition); therefore it is con- 
 sidered bj' the court here, that the said A. B. recover against 
 the said C. D., executor as aforesaid, as well the sum of 
 , the damages in the declaration of the said A. B. men- 
 tioned, as the sum of adjudged by the court here unto 
 
 the said A, B. on his assent, for his costs and charges by 
 
346 COMMON LAW PRAOTICB. 
 
 him about his suit in this behalf expended, to be levied, etc. 
 (as in the last). 
 
 A. B. 1 And the said 0. D., although called, 
 
 In attachment [ ^^^^^^^ ^^^. ^^^^ ^^^ 3^;^ q. -^j ^^^OSC 
 
 on warrant. I ' ' 
 
 C. D. J hands the goods, chattels, and credits 
 of the said C. D. were so as aforesaid attached, being called, 
 comes not, but makes default; thereupon, on motion of the 
 said A. B., by his attorney aforesaid, it is adjudged by the 
 court here, in pursuance of the act of Assembly in such case 
 made and provided, that the said G. hath in his hands goods, 
 chattels, and credits of the said C. D., to the value of the 
 aforesaid sura of , in the said writ of attachment speci- 
 fied; therefore it is considered by the court here, that the 
 goods, chattels, and credits of the said C. D., so as aforesaid 
 attached and adjudged to be in the hands of the said G-., be 
 condemned in his hands, according to the said act of As- 
 sembly, towards satisfying uuto the said A. B. as well the 
 aforesaid sum of , in the said writ of attachment speci- 
 fied, as the sum of , by the court here, unto the said 
 
 A. B. on his assent adjudged for his costs and charges by 
 him expended in the prosecution of the said writ of attach- 
 ment. 
 
 And the said C. D., although de- 
 manded, comes not, but makes de- 
 fault, therefore it is considered by 
 the court here, that the said A. B. 
 have execution against the said C. D. for as well the (debt) 
 damages, costs, and charges aforesaid, in the writ of scire 
 facias aforesaid mentioned, according to the force, form, and 
 
 effect of the recovery aforesaid, as the sum of , to the 
 
 said A. B. on his assent by the court here adjudged, for his 
 costs and charges which he hath sustained by reason of the 
 delay of the execution of the judgment aforesaid, by default 
 of the said C. I)., etc. 
 
 Against exec- Therefore it is considered, by the court here, 
 utortobind that the Said A. B. recover against the said C. D. 
 
 future assets. ^^^ ^^^^ ^^^ ^^ dollars, for, ctc, to be levied 
 
 of the goods and chattels which were of the said G. at the 
 
 By default A. B. 
 
 after return of 
 
 scire feci in 
 
 scire facias. Q T) 
 
JUDGMENTS. 347 
 
 time of his death, when such goods and chattels shall here- 
 after come to the hands of the said C. T>. to be administered, 
 etc. 
 
 Therefore it is considered, by the court here, Against 
 that the said C. D. have his execution against the ^eir-at-iaw. 
 said H. L. for as well the debt, damages, costs, and charges 
 aforesaid, in the said writ of scire facias specified, according 
 to the form and effect of the recovery aforesaid, as also th.e 
 sum of , by the court now here unto the said C. D. ad- 
 judged, for his costs and charges which he hath sustained 
 by reason of the delay of the execution of the said judgment, 
 to be levied of the lands and tenements which were of the 
 said J. L. at the time of his death, and which were, on the 
 day of the impetration of the said writ of scire facias, in the 
 possession of the said H, L., by descent, in fee simple, from 
 the said J. L., his father, etc. 
 
 {For Defendant.) 
 
 A. B. 1 And the said C. D. prays that the said 
 
 V. >A. B. may declare against him in the Nonpros. 
 
 C. D. J plea aforesaid (or reply to the plea, etc.). 
 And because the said A. B. doth not declare (or reply, etc.), 
 as aforesaid, but makes default, nor doth further prosecute 
 his writ against the said C. D., therefore it is considered, by 
 the court here, that the said A. B. take nothing by his said 
 writ, but that he be in mercy for his false complaint, and 
 that the said C. D. go thereof without day, etc., and it is also 
 considered, by the court here, that the said C. D. do recover 
 
 against the said A. B. the sum of dollars, for his costs 
 
 and charges by him about his defense in this behalf sus- 
 tained, to the said C. D. by the court here now adjudged, 
 according to the form of the statute in such case made and 
 provided, and that the said C. D. have thereof his execution. 
 
 And the said iurors, sworn to say the truth, of, 
 
 ... .11 r \ Of nonsuit. 
 
 and in the issue withm contained, depart trom the 
 
 bar here to consider of their verdict to be given thereupon, 
 
 and they having considered and agreed thereof among them- 
 
348 COMMON LAW PRACTICE 
 
 selves, return to the bar here to give their said verdict; 
 whereupon the said A, B., although solemnly demanded, 
 comes not, nor doth he further prosecute his suit aforesaid 
 against the said C. D. in the plea aforesaid; whereupon the 
 said jurors are wholly discharged from giving any verdict 
 of and upon the premises aforesaid. 
 
 WRITS OF ATTACHMENT FOR CONTEMPT. 
 
 Maryland, sc. : 
 
 The State of Maryland to the sheriff of — 
 
 Attachment for 
 
 contempt, for county, greeting : Whereas at the county court, 
 
 of a'nor"er°of beguu and held for — • — county, on the 
 
 court. day of , in the year , it was ordered by 
 
 the said court that J. H. should pay unto T. H. the sum of 
 
 , being due unto him for days' attendance as a witness 
 
 for the said J. against K. L., witii days' itinerant charges 
 
 from county, as by the record thereof in the said court 
 
 remaining is manifest; and whereas, by the suggestion of 
 the said T., and by other due proof exhibited, it appears that 
 
 the said sum of hath been demanded of the said J., and 
 
 that he hath refused to pay the same, in manifest contempt 
 of the order aforesaid, and because it is right that due and 
 ready obedience be paid to the order of the said court, you 
 are therefore hereby commanded to attach the said J., if he 
 shall be found in your bailiwick, and him safe keep, so that 
 
 you have his body before the said court, on the day of 
 
 next, to answer unto the State of Maryland for his con- 
 tempt in not paying the said T. the said sum of money; and 
 how you shall execute this writ, make known unto the said 
 court, at the place and on the day aforesaid. Hereof fail 
 not at your peril, etc. Witness, etc. 
 
 The State of Maryland, etc. : You are hereby 
 
 The same, for . j J j 
 
 non-attendance Commanded to attach the body of W. W., and 
 as a witness. j^j^^ immediately have before the court, 
 
WRIT OF MANDAMUS. 349 
 
 now sitting, to answer unto the State of Maryland, touching 
 a certain contempt by him committed, in not attending this 
 court as a witness for D. D., at the suit of P. P., after being 
 thereto legally summoned. Hereof, etc. Witness, etc. 
 
 WRIT OF MANDAMUS. 
 
 Maryland, sc. : 
 
 The State of Maryland to H. W., etc., of county, 
 
 greeting: Whereas the Reverend W. R. into the place and 
 function of minister of the congregation of the German or 
 High Dutch Reformed Christian Church in P. town, in the 
 said county, and to the use of the church of the said con- 
 gregation, and the pulpit thereof, as minister of the said 
 congregation, with all liberties, privileges, and advantages, 
 to that place and function belonging and appertaining, was 
 duly inducted, and hath in that place and function carried 
 and behaved himself well ; you, nevertheless, the said W. H.,. 
 etc., the premises lightly regarding, the said W. R. unduly, 
 and without any reasonable cause, from that place and func- 
 tion have unjustly removed, to 1;he no small damage and griev- 
 ance of him the said W. R., as by his complaint hath been 
 stated to the court here; and as it is right that due and 
 speedy justice be done to the said W. R. in this behalf, as 
 is reasonable, you, and each of you, are hereby commanded, 
 that immediately after the receipt of this writ, you do re- 
 store, or cause to be restored, the said W. R. into the said 
 place and function of minister of the congregation of the 
 German or High Dutch Reformed Christian Church at F. 
 town, in the said county, and to the use of the church of 
 the said congregation, and the pulpit thereof, as minister of 
 the said congregation, with all liberties, privileges, and ad- 
 vantages, to that place and function belonging and apper- 
 taining, or signify to this court cause to the contrary thereof, 
 lest in your default complaint should be again made to the 
 
850 COMMON LAW PRACTICE. 
 
 said court; and how you shall execute this command, certify 
 
 to the said court, to be held, etc., on the day of 
 
 next, together with this writ. Hereof fail not, etc. 
 
 WRIT OF HABEAS CORPUS. 
 
 county, sc. : 
 
 The State of Maryland to greeting: You are hereby 
 
 commanded to have the body of N. 0., detained under your 
 custody, as it is said, under a safe and secure conduct, to- 
 gether with the day and the cause of his being .taken and 
 detained, by whatsoever name he shall be called in the same, 
 before the Honorable S. A., Esquire, chief judge of the 
 State of Maryland, for the judicial district, etc., imme- 
 diately after the receipt of this writ, to do and receive all 
 and singular those things which the said chief judge shall 
 then and there consider concerning him in this behalf, and 
 have there this writ. Witness, etc. 
 
 WRIT OF CERTIORARI. 
 
 county, sc. : 
 
 The State of Maryland to K T>., Esquire, one of the jus- 
 tices of the peace of the said State for county, greeting: 
 
 Whereas a certain plaint was lately depending before you, 
 in the name of the said State of Maryland, against D. D., 
 
 late of county, gentleman, and E. D., late of the same 
 
 county, yeoman, for an entry, with strong hand and armed 
 power, made by the said D. and E. into part of a tract and 
 
 parcel of land called , lying in the said county, whereof 
 
 P. P., of the same county, yeoman, was lately seized in his 
 demesne as of fee, and for a disseizin of the said P. bv the 
 
WRIT OF EREOR. 351 
 
 said D. and E. and keeping him out of the seizin and pos- 
 session of the tract of land aforesaid, with the appurte- 
 nances, with like strong hand and armed power, which said 
 plaint, as it is said, is still depending before you, undeter- 
 mined; and the county court of the said county being will- 
 ing that the record and proceedings of the plaint aforesaid 
 be certified unto them ; therefore you are hereby commanded, 
 that the plaint aforesaid, together with all proceedings 
 thereon, as fully and entirely, with all things touching the 
 same, as it remains before you, by whatsoever name the said 
 D. and E., or either of them, and the said P., may be called 
 in the same, you certify to the said court, to be held, etc., 
 together with this writ, so that the said court may be able 
 thereon to proceed, and to do what shall appear to them of 
 right ought to be done, "Witness, etc. 
 
 WEIT OF ERROR IN" UNITED STATES COURTS. 
 
 The President of the United States, to the chief justice 
 and justices of the Circuit Court of , greeting: 
 
 Because, in the record and proceedings, as also in the 
 rendition of a judgment, in a plea which is in the said court 
 before you, between A. B., plaintiff", and C. D. and E. F., 
 defendants, a manifest error hath happened, to the great 
 damage of said defendants, as by their complaint appears; 
 and, it being fit that the error, if any hath happened, should 
 be duly corrected, and full and speedy justice done to the 
 parties aforesaid, in this behalf, therefore, you are hereby 
 commanded, if judgment be therein given, under your seal, 
 distinctly and openly to send the record and proceedings 
 aforesaid, with all things concerning the same, to the 
 Supreme Court of the United States, together with this 
 writ, so that you have the same at Washington, on the first 
 
 Monday of next, in the said Supreme Court, to be then 
 
 and there held, that the record and proceedings aforesaid 
 being inspected, the said Supreme Court may cause further 
 
352 COMMON LAW PRACTICE. 
 
 to be done therein to correct the error, what of right, and 
 according to law and custom of the United States, should 
 be done. 
 
 Witness, the honorable Salmon P. Chase, Chief Justice 
 
 of the United States, this day of , in the year of 
 
 our Lord , and of the independence of the United 
 
 States, the . 
 
 [L.S.] P. Q., 
 
 Clerk. 
 
 State of , to wit : 
 
 To A. B. : 
 You are hereby cited and admonished, to be and 
 
 Citation. ^ _^ ^ ^_ . ^^ 
 
 appear at a Supreme Court ot the United States, to 
 be holden at Washington, on the first Monday of December 
 next, pursuant to a writ of error filed in the clerk's office of 
 
 the Circuit Court of the State of , wherein C. D. and E. F. 
 
 are plaintifi^s, and j'ou are defendant, to show cause, if any 
 there be, why the judgment in the said writ of error men- 
 tioned should not be corrected, so that speedy justice be 
 done the parties in that behalf. 
 
 Witness, M. N., chief justice of the said Circuit Court of 
 
 the State of . 
 
 M. K, 
 Chief Justice. 
 
INDEX, 
 
 ATsatement'of actions, 166, 269, 270, 271 
 plea hi, 54. 
 
 •of writ of error, 143, 267. 
 Aeeount, 288. 
 
 Administrators, see exeeaters. 
 Affida-vrts, 223, 224. 
 
 to hold to bail, SI, 32, 38, 34, 63, 6S. 
 •of extra costs, 134, 135. 
 tO'dilatory plea, 55. 
 for continuance, 260, 333; 
 Alloiivance of writs df error, 14'4. 
 AmendmeHt, 227 to 235. 
 
 statutes of jeofails, 228. 
 •on terms, 529. 
 
 •of process, id.-; of declaration, id. 
 of particulars, 230:; of pleas, id. 
 •Of issue, 231-; of venire, id.; of verdict, id. 
 ■of judgment, 232. 
 
 ■of scire facias, 233 ; of writs of error, ad. 
 •of executors, id. 
 in Maryland, 234. 
 in JJnited States Courts, 235. 
 Amercement, 'OS, -67. 
 .Appeal, 157. 
 
 "bond, 335. 
 Appearance, 38, 65. 
 Appraisement, 170, 175, 181- 
 Arbiitrati&n, 271. 
 
 ■without suit, 272; su'bmisslon, id. ; sutmission •made a rule of 
 court, id.; revocation, 273; award, 274; umpire, id. ; costs, 
 ad.;; setting aside award, 275, 276 ; enforcing it, 277, 278^ 
 Marylanid, practice of, 278 to 281. 
 Arrest, 33, :34, 35. 
 
 of judgment, 118, 119. 
 
 farm of motion for, 3G8. 
 Assess'meut of 'damages by the court, >122, 123, 136. 
 Assignment of errors, 149, 150. 
 Assignee, see Bail Bond. 
 AsBunnpsit, jurisdiction in, 22. 
 >writin, 26. 
 ••damages in, ,106.; judgment in, ■1S4. 
 
 .28 v( «6S <) 
 
§54 INDEX. 
 
 Attachment, 28. 
 
 of sheriff, 42, 43, 65. 
 
 on warrant, 68, 69, 331 ; on judgment, 180. 
 
 against witness,, 88, 89, 93, 282. 
 
 officers of court, 282 ; parties, id. 
 
 rule for, 283. 
 
 hail on, 283. 
 
 interrogatories on, id. 
 Avowant in replevin, 197, 198 
 Award, see Arbitration. 
 
 Bail, 31, 34, 63, 66. 
 
 special, 38, 39, 40^ in error, 147, 188; proceedings against, 184, 186, 
 
 1ST; how and when fixed, 185; surrender of principal by, 185; 
 
 discbarge of, 185, 186; satisfaction, 188. 
 Bail bond, 36, 63; assignment of, 40; suit on, 40, 41. 
 Bankruptcy, effect of upon action, 268. 
 Bill of exceptions, 98, 99, 102; forms of, 310, 317, 3ia 
 Bill of particulars, 250, 251, 252. 
 Books, imspeetion of, 87. 
 Breaches, suggestion, of, 124, 125, 126. 
 
 Capias ad respondendum, 28, 29, 62. 
 Capias ad satisfaciendum, 177, 181. 
 
 how executed, 178; return of, 178. 
 
 escape from, arrest under, 178, 179. 
 Capias in withernam, see Eeplevin. 
 Capiatur pro fine, 128. 
 Cassetur billa vel breve, 5& 
 Case, 22 
 
 writ in, 27. 
 Casual ejector, see Ejectment. 
 Certifying- the record, 148. 
 Certiorari, 204, 206, 350. 
 Challenges, 59, 60, 61, 72 
 Change of venue, 237, 238. 
 Cognovit, judgment by, 125) 1S7, 342. 
 Commission to- examine, etc., see Depositions. 
 Common bail, 38. 
 Common Pleas, IS. 
 
 Confession, judgmeat by, 128, 137, 342. 
 Consolidating actions, 239, 240. 
 Continuances, see Putting off trial. 
 Copies, of plea-dings, 47, 51, 71. 
 
 books, ete., 87; of papers not under seal, 250. 
 Coroner, 63. 
 
 Corporations, actions by and against, 211. 
 Costs, 128 to 133.. 
 
INDEX. 355 
 
 Cost at common law, 128 ; under the statute of Gloucester, 129 ; in different 
 actions, id. ; against several defendants, 130 ; where each party 
 succeeded on some issue, 131 ; on feigned issues, 132; on plea in 
 abatement, id.; in ejectment, id. ; in replevin and scire facias, 
 id. ; by and against executors, 133 ; in Maryland, id. ; of increase, 
 134, 135; security for, 246, 247. 
 
 Counts, striking out, 239. 
 
 Courts, English, 17, 18, 19. 
 Maryland, 61. 
 District of Columbia, 75. 
 United Stales, 81. 
 
 Covenant, writ in, 24. 
 
 damages in, 106. 
 
 Coverture, plea of, 54. 
 
 Damages, 106. 
 
 in assumpsit, covenant, case, and trespass, 106 ; debt, id. ; de» 
 tinue, id. ; replevin, 107 ; ejectment, id. ; where notice of 
 setoff was given, id. ; against several defendants, 107, 108 ; 
 in case of several counts, 108, 109 ; excessive, id. ; double and 
 treble, 110. 
 assessment of by the court, 122, 123, 136. 
 assessment by jury, 124. 
 Death, what causes of action survive after, -265 ; effect of before verdict, 266 ; 
 after verdict, id. ; after interlocutory judgment, id. ; after final 
 
 judgment, 267 ; after error, id. 
 suggestion of, 268, 341. 
 De bene esse, declaration, 44. 
 I depositions, 93. 
 Debt, writ in, 24. 
 
 damages in, 106. 
 Declaration, 44, 45, 46, 70. 
 Deeds, see Oyer. 
 
 Default, judgment by, 49, 50, 302, 304, 346. 
 Delay, in bringing case to trial, 58. 
 Demand, of declaration, 45. 
 
 of plea, 49. 
 Demurrer, 55. 
 
 book, 51. 
 to evidence, 97. 
 Deposit, with the sheriff, in lieu of bail, 36. 
 Depositions, 88, 89, 90, 91, 92, 93, 94, 95, 336, 338. 
 Detinue, 21. 
 
 Devastavit, 212, 213, 214. 
 Devisee, see Heir. 
 Dilatory pleas, 54, 71. 
 
 judgment on, 55. 
 Diminution, 149. 
 Discharge, see Bail. 
 Discontinuance, 256. 
 
35&- isvEX. 
 
 District of Colambiai courts of, 75 ; proceedings, befbre trfal in', 76 to 80. 
 
 attachment in,. 77, 78. 
 
 ball, 75, 76' I depositions, 92; production of 
 papers, 93 ; judgment by default in, 137 ; 
 error in, 158 ; exemptions from execution, 
 183; ueplevin, 199, 200, certiorari, 206; 
 habeas corpus,209 ; executostsuits against, 
 . 216. 
 Distringas, 28i 
 Docket, 64, 322. 
 
 Ejectment, 189<to I9C; 329; 
 
 Election, as to form of verdict, 107'; as tO' applying, vwdict, 109: 
 
 Elegit, 174, 175, 176, 177, 179. 
 
 Elisors, 63. 
 
 Entry, of continuances, 52, 257^ 
 
 of caijse for trial; 58'. 
 Error, writ of, 138. 
 
 who could sue out, 139: 
 parties to, 139^, 140. 
 
 where to be brought, 141 ; amendment of, 142; 
 
 when quashed, 142; abatement of, 142,' allowance of, 144; how ob- 
 tained, 144; supersedeas, when, 144, 145,146, 160; diminution, 
 141; ball on, 147, 157,' 159; costs, 148; transcript, 148; assign- 
 ment of errors, 149, 150; pleas, 150; judgment on, 151, 152, 153, 
 158, 161 ; damages in, 153, 154, 161; forms of,.8ri, 318, 351 ; forms 
 of bond, 335. 
 Escape, 87. 
 
 on mesne process, 37. 
 on final process, 179. 
 Essoign', 20: 
 
 Examination of witnesses, 96, S36,. 338. 
 Excepting to bail, 39, 40. 
 Exceptions, bill of, 98, 99, 102, 310, 817, 318: 
 Exchequer,, court of, 18. 
 Execution, 163>179i 182, 183; different kinds of; 164". 
 
 form of, 164 f. teste of, 165; relation of, 165;^ priorities of, 165; 
 landlord's protection against, 166, 181 ; return of, 168; copy 
 of, 168 ; poundage, 169 ; restitution after, 169 ; by attachment, 
 180; see Fieri Eacias, Capias ad satisfaciendum, Elegit. 
 Executors and administrators, 212; 214. 
 
 revivor against, see' Death, 
 judgments against, 343, 344, 345v 
 Exlgi facias, see- ou-tla»wry. 
 Exoneretur, see Bail. 
 
 Feigned issues, 285. 
 
 Eeme covert, see Husband and Wife. 
 
 Fieri facias, 1^69; 180. 
 
 how executed, 170; 
 
INDEX. 357 
 
 Fieri facias, on what property levied, 170, 171. 
 
 return of, 172. 
 
 renewal of, 173. 
 
 venditioni exponas, 170. 
 Filacer, 20. 
 
 Forfeiture, ejectment for, 245. 
 Further tim*, to declare, 46. 
 to plead, 48. 
 
 Guardian ad litem, see Infants. 
 
 Habeas corpus, 206, 209, 350. 
 
 Heir, action against on ancestor's bond, 214, 215, 216. 
 
 Husband and wife, actions by and against, 218. 
 
 Idiots and lunatics, actions by and against, 219. 
 
 Imparlance, 47, 48, 70, 71. 
 
 Incipitur, 120. 
 
 Indorsement of process, 32, 164. 
 
 Infants, actions by and against, 216, 217, 218 
 
 In nullo est erratum, see Error. 
 
 Inquest, see Writ of Inquiry. 
 
 Inspection, of books, etc., 87. 
 
 Instructions to jury, 102, 319. 
 
 Interest, 163, 154, 161. 
 
 Interrogatories, see Depositions and Attachment. 
 
 Irregularities, 252 to 256. 
 
 Issue, 51. 
 
 roll, 53. 
 
 Jeofails, 228. 
 
 Judgment, arrest of, 118, 119. 
 
 signing of, 120; general form of, 134. 
 
 relation of, 135 ; lien of on land, id.. 
 
 satisfaction of, 188, 189. 
 
 non obstante veredicto, 119. 
 
 forms of, 842 to 348. 
 
 on plea in abatement, 55, 56. 
 
 in assumpsit, 134, 317. 
 
 on an award, 278, 279. 
 
 on cognovit, 125, 137, 342. 
 
 by default, 49, 50, 302, 304, 806. 
 
 de melioribus damnis, 108, 164. 
 
 on demurrer, 127. 
 
 on demurrer to evidence, 98. 
 
 in ejectment, 193, 380. 
 
 in error, 151, 152, 158, 158, 161, 3ia 
 
 against executors, 213, 214. 
 
 after inquiry, 124, 342, 343, 
 
 on plea to jurisdiction, 55, 56.. 
 
358 INDEX. 
 
 Judgment, by nil dicit, 121, 304. 
 
 of non pros, 45, 46, 120, 302. 
 
 of non sum Informatus, 121. 
 
 as in case of nonsuit, 58. 
 
 on nul tiel record, 56. 
 
 in replevin, 198, 327. 
 
 on scire facias, 202, 346. ^ 
 
 on a special case, 105, 327. 
 
 on verdict, 1?8, 136, 317. 
 . on warrant of attorney, 126. 
 Juror, withdrawal of, 97, 234. 
 Jury, 72. 
 
 process, 56, 57, 72. 
 special, 57, 72. 
 Justice of the peace, action against, 219. 
 Justification of bail, 39, 40, 67. 
 
 Landlord, see Ejectment and Execution. 
 Lands, how extended on elegit, see Elegit. 
 
 when bound by judgment, see Judgment. 
 Levari facias, 168, 177, 179. 
 Limitations, entering process to avoid, 235, 286. 
 Lords, error to, 19. 
 Lunatics, see Idiots. 
 
 Mandamus, 210, 211,. 349. 
 
 Marriage, effect of in abating actions, 268. 
 
 Maryland, courts of, 61, 62. 
 
 practice in, before trial, 61 to 74 ; attachment, 68, 69 ; practice 
 compared with English, 72, 73, 74; depositions, 90 j trial, 100; 
 nonsuit, 102; privy verdict. 111; new trials, 117 ; damages, 
 136; judgment, 136; appeal and writ of error, 157; execution, 
 179 to 182; ejectment, 194; replevin, 198,199; scire facias, 
 203; certiorari, 206 ; habeas corpus, 206; executors, etc., 216; 
 amendments, 235; limitations, 237; security for costs, 247; 
 bill of particulars, 252 ; discontinuance, 258 ; abatement, 269 ; 
 arbitration, 278 to 281. 
 
 Members of Parliament, privileged from arrest 34. 
 
 Misericordia, 128. 
 
 Misjoinder of counts, 109. 
 
 Misnomer, plea of, 54. 
 
 Mesne profits, action for, 193, 194. 
 
 Modern English practice, 290. 
 
 Money, payment of into court, 240 to 243. 
 
 Motions and rules, 221 to 227. 
 
 New assignment, 51. 
 New trial. 111 to 118. 
 
 form of motion for, 308. 
 :Nlsi prius record, 58. 
 
INDEX. 359 
 
 Nolle prosequi, 262. 
 
 as to part of action, 263 ; as to several defendants, 268 ; ac- 
 tions ex contractu and ex delicto, 263, 264 ; costs on, 264. 
 Non pros, judgment of, 45, 46, 120, 802. 
 Nonsuit, 99, 102, 108. 
 Notice to plead, 46, 47. 
 
 of trial, 53. 
 Nul tiel record, 56 
 
 Officers, 20. 
 
 Orders upon summons, 225. 
 
 Original writ, 21 to 27. 
 
 want of, when error, 30, 150. 
 
 how supplied, id. 
 Outlawry, 236. 
 Oyer of deeds, etc., 248, 249. 
 
 Paper book, 52. 
 
 Parties, see Attachment. 
 
 Particulars, see Bill of. 
 
 Paupers, actions by, 220. 
 
 Payment to sheriff, on execution, 172, 178. 
 
 of money into court, 240, 241, 242, 243. 
 Penalty of bond, see Error and Replevin. 
 
 judgment for, 124, 125. 
 Plaint, see Replevin. 
 Plea, 50, 70. 
 Pone, 22. 
 Postea, 110, 307. 
 Poundage, 169. 
 Prseeipe, 22, 30. 
 Priority of executions, 165. 
 Prison, see Arrest. 
 
 Privilege of peers and commoners, 24. 
 Privy verdict, 104, 111. 
 Procedendo, 158, 205. 
 Process, 27. 
 
 Prochein amy, see Infants. 
 Production of books, etc., 92, 95. 
 Proviso, trial by, 58. 
 Puis darrein continuance, plea of, 97. 
 Putting off trial, 259 to 262. 
 
 how application made for, 260; affidavit for, id.; form of 
 affidavit, 333 ; terms of, 260-262. 
 
 Quashing of writ of error, 142. 
 
 Recognizance of bail, see Bail. 
 
360 INDEX. 
 
 Record, trial by, 56. 
 Kecordari facias loquelara, 196. 
 Reference to master, 122, 288. 
 Registry of judgment, 135. 
 Relation of judgments, 135. 
 executions, 165. 
 Remittitur of damages, 109. 
 
 of record by court of error, 144, 153. 
 Removal of causes, see Certiorari. 
 Render by bail, see Bail. 
 Replevin, 194-200. 
 
 bond, 336. 
 Replication, 51, 70. 
 Rescue, 37, 38. 
 Respondeat ouster, 55, 56. 
 Restitution, 155. 
 Returns, 31, 42, 43, 64,65. 
 Retraxit, 264. 
 
 Riens per discent, see Heir. 
 Rule days, 20. 
 Rules, on sheriflF, 42, 43, 64. 
 
 to declare, 45, 70. 
 
 to plead, 49, 70. 
 
 different kinds of, 221-224. 
 
 how obtained, 221-223. 
 
 nisi and absolute, 223, 224. 
 
 costs on, 225. 
 
 some forms of, 308, 314-316. 
 
 Satisfaction, entry of on judgment roll, 188, 189. 
 
 in case of cross actions, id. 
 Scire facias, 200-204. 
 
 to revive judgment, 162, 200. 
 to revive in case of death, 200. 
 suggesting breaches, 124, 125. 
 for future assets, 201. 
 Second deliverance, 196. 
 Security for costs, 246, 247. 
 Service of capias, 32, 64. 
 
 of sci. fa. or summons, 64. 
 of subpoena, 86. 
 Setoff, 107. 
 
 Setting aside proceedings, 252-256. 
 Severing damages, 107, 108. 
 
 in pleading, id. 
 Sheriff, 35-44, 64. 
 Si te fecerit securum, 22. 
 Special bail, 38-40. 
 
iNDES, 361 
 
 Special case, I0&. 
 
 verdict, 105, 326; 
 
 jury, 57, 72; 
 Statutes of jieofails, 228. 
 Staying proceedings, 243-246. 
 Striking oiit counts, 239". 
 Sabmission, see Arbitration. 
 Subpeena, 86, 89. 
 
 duces tecum, 87, 89. 
 Suggestions, of breaches, 124, 125, 340. 
 
 of deatli, 268, 841. 
 Summons and order, 225. 
 Supersedeas, 144-160. 
 Surrender, by bail, 44i. 
 
 Talesmen, 59, 72. 
 Taxation of costs, 128, 137'. 
 Tender, 248. 
 
 Terms, of new trial, 115, llfft 
 of courts, 19, 20, 225. 
 Testatum capias, 30. 
 Teste, 30. 
 Transcript, 148. 
 Trespass, writ in, 25-. 
 
 damages im, 106. 
 Trial, at bar, 59. 
 
 how conducted, 95-97, lOa 
 by proviso^, 58'; 
 Triors, 61. 
 Trover, writ in, 27. 
 
 damages in, 106. 
 record in, 327. 
 
 TJnited States courts, jurisdiction of, 80-81. 
 
 proceedings in, before trial, 82-85i. 
 
 depositions in, 93-95. 
 
 trial and nonsuit in, 102, 103. 
 
 new trials in, 118. 
 
 writ of error in, 158-162, 3511. 
 
 executions in, 183. 
 
 amendments in, 235. 
 
 Variance in writs of error from the record,. 142, 238i. 
 
 cured by verdict, when, 281. 
 Venditioni exponas, see Pieri Facias. 
 Venire, 52, 306. 
 
 de novo, 109. 
 Venue, change of, 237, 238'. 
 
362 INDEX. 
 
 Verdict, 103, 104, 307, 316. 
 
 special, 105, 326. 
 
 entire, on several counts, 108, 109. 
 View, 57. 
 
 "Waiver of bail, 50. 
 
 of dilatory pleas, 54. 
 Withdrawing a juror, 97. 
 Witness, 86-88', 92, 95. 
 Writs, original, 21-27. 
 Writ of inquiry, 124, 136,330. 
 
 of possession, 193; of replegiari facias, 194. 
 
 de retorno habendo, 198; of error, 138, 157, 159-162, 351. 
 
 coram nobis, 156-157.