SOUTHERN DISTRICT OF NEW-YORK, 88.

BE IT REMEMBERED, that on the 21st day of June, A. D. 1824, in the 48th year of the Independence of the United States of America, COLLINS & HANNAY, of the said District, have deposited in this office the title of a Book, the right whereof they claim as Proprietors, in the words following, to wit:

A Digest of the Laws of England. By the right honourable Sir John Comyns, Knight, late Lord Chief Baron of his Majesty's Court of Exchequer. The fifth edition, corrected, (with considerable additions to the text) and continued from the original edition to the present time; to which is added, a Digest of the Cases at Nisi Prius, By Anthony Hammond, Esq. Of the Inner Temple. The first American from the fifth London Edition. With the addition of the principal American decisions. By Thomas Day, Esq.

In conformity to the Act of the Congress of the United States, entitled, "An Act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned;" and also to an act, entitled, "An Act supplementary to an act, entitled, An Act for the encouragement of learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies during the times therein mentioned; and extending the benefits thereof to the arts of designing, engraving and etching historical, and other prints."

JAMES DILL,

Clerk of the Southern District of New-York.

E. & G. Merriam, Printers,
Brookfield, Mass.

A

DIGEST

OF THE

LAWS OF ENGLAND.

[The figures in this work refer to the original pages as numbered at the bottom.]

PLEADER.

(A) THE ADVANTAGE OF PLEADING.

IT is one of the most honourable, laudable, and profitable things in our law, to have the knowledge of well pleading in actions real and personal. Lit. s. 534.

Plea (from the Saxon pleo or pleoh, i. e. juris actio) comprehends all that every party to the action alleges in court. Blo. Nom. Lex. Verb.

Plea.

Pleading is the formal mode of alleging that on the record, which would be the support or defence of the party on evidence. 3 T. R. 159.

But the evidence itself by which an allegation is to be proved, need not be stated. 3 T. R. 60.

Though legal rights depending upon rules of practice may be pleaded. 16 East, 39.

The use of pleading is to reduce the matters in litigation to a single point. 3 T. R. 684.

The substantial rules of pleading are founded in strong sense, and in the soundest and closest logic; and so appear, when well understood and explained; though, by being misunderstood and misapplied, they are often made use of as instruments of chicane. 1 B. M. 316.

And in the absence of decided cases, the books of entries and the returns of writs, are the best authorities. 2 T. R. 10.; 3 T. R. 161.

And of this rolls are made.

Antiently the writ was entered on a roll, and the tenant or defendant sometimes might appear at the day given by the roll. 1 Sal. 64. post, (B 6.)

Vide

Now there are only, the imparlance roll, on which are entered the declaration and imparlance.

The plea roll.

By rule, M. 1654. in C. B. the rolls of Easter term shall be brought in to the prothonotary entered and docketted on or before the first day of Trinity term, and the rolls of every other term, ten days before [*]the essoign day of the next term, on pain of 10s. for each roll wanting; the rolls of Easter term shall be delivered by the prothonotary to the clerk of the warrants within six days, and of other terms before the essoign day, and the clerk of the warrants in five days shall deliver them to the clerk of the essoigns. (Vide Rules and Orders of C. B. 10. 11.)

By rule, P. 34 Car. 2. the rolls of Easter term shall be brought in by the first day of Trinity term, those of Trinity term by Michaelmas day, those of Michaelmas term by the 6th of January, and those of Hilary term, four days before Easter. (Vide Rules and Orders of C. B. 85.)

By rule, P. 5 W. & M. the rolls of Easter term shall be brought in to the clerk of the essoigns before Trinity term, and of every other term before the essoign day of the next term. (Vide Rules and orders of C. B. 113.) And no roll ought to be received post terminum, without the leave of the court on motion. 1 Sal. 88.

By the st. 36 Ed. 3. 15. all pleadings in the king's court, or any other, shall be debated and adjudged in English, and enrolled in Latin.

Pleadings were antiently pronounced by the counsel, ore tenus, and minuted down by the prothonotaries, and afterwards entered of record in the Latin language.

And Latin comprehends not only that which is allowed by grammarians, but also words of signification well known to the sages of the law: as messuagium, toftum, guardinum, &c. 10 Co. 133. a.

So, the words newly invented with an Anglice. 10 Co. 133. a. Vide Abatement, (II. 2.)-Action upon the Case, (G 4.)-Amendment, (D 2.) -Obligation, (B 3. 5.)

But an addition in an indictment, &c. by English words will be well. 1 Sid. 191. Vide Indictment, (G 1.)

So, a return of a proceeding, in English, on a writ of error to Berwick, where the entry ought to be in English, is good. R. 1 Sal. 269.

And by the st. 4 G. 2. 26. all writs, process, and returns, and proceeding thereon, all pleadings, rules, indictments, informations, inquisitions, verdicts, records, patents, &c. bonds, fines, &c. and all proceedings relating thereto, &c. in courts leet, courts baron, or any court of justice in England, or the Exchequer in Scotland, or which concern the administration of justice, &c. shall be in English only, and written in a legible hand, close, in words, at length, and not abbreviated, on pain of 50%.

So, by the st. 5 G. 2. 27. & 6 G. 2. 14. in actions under 107. or under and and above in Wales.

But these acts extend not to the usual method of writing numbers by figures, common abbreviations, names of writs, or technical words. Vide the st. 6 G. 2. 14. s. 5.

(B) APPEARANCE.

(B 1.) What shall be.

The first act of parties in court is, that the defendant appears to the process against him.

[*]When a writ issued out of the king's bench, it was entered upon a roll; so that though the officer had not returned the writ, yet the defendant might have ap

peared at the day given by the roll, and that either to save himself from corporal pain by imprisonment, or to prevent the loss of issues, or to save his freehold or inheritance. Tidd, 262. Co. Litt. 135. a. 1 Salk. 64.

And so it was in the common pleas; where they entered the writ upon a roll, by way of recital, viz. dominus rex misit breve suum clausum, in hæc verba, &c. Ibid.

If a man abroad enters into a bond, conditioned for his appearance in B. R. at his arrival in England, to answer to any demand that may be made against him, by or on the behalf of A.; the court, to prevent forfeiture of his bond, will admit his appearance, and direct him to enter into recognizance with sureties to answer the demands in the condition. 1 B. M. 398.

And the appearance is, when the defendant shows himself in court, in person, or by his attorney, ready to answer to the action.

And he ought to enter his appearance by filing common bail, or special bail when it is required. Pr. Reg. 40.

Appearance differs from putting in bail, which is the act of the court itself. Tidd, 262. 1 Salk. 8.

An appearance is either voluntary or compulsive.

A voluntary appearance is of no effect in king's bench, unless the plaintiff's attorney, within fourteen days after such appearance, sue out a writ of latitat, or bill of Middlesex, where the defendant abides in that county. Tidd, 262. 4 R. T. 4 W. & M. reg. 1 K. B.

Which rule, however, cannot be taken advantage of by any but the defendant, unless some particular fraud be alleged. Tidd, 262. 1 M. & S. 408. (a.)

In C. B. it is a rule, that no bail be put in for any party against whom no writ or process is sued out without leave of the court. Tidd, 262. R. H. 14 Jac. 1. reg.

2. s. 4.

And no bail is required in that court, but a common appearance only, if the defendant appear upon a summons, attachment, or distress, or by supersedeas quia improvide, &c. Tidd, 262. R. M. 1654. s. 12. C. B.

Bail to the action are common or special.

In K. B. by bill, common bail must be filed in all cases where special bail is not necessary, or has been dispensed with in the court. Tidd, 263.

They are particularly required in ejectment, for the casual ejector. R. T. 14 Car. 2. R. M. 33 Car. 2. K. B.

And to authorise judgments by covenant of attorney, default, or non sum informatus. R. H. 1 W. & M. R. T. 4 W. & M. reg. 2 K. B. Tidd, 264.

These bail are merely nominal. Tidd, 264.

In C. B. there is no common bail; but in that court, and also in K. B. by original, a common appearance is entered for the defendant, in cases where special bail is not necessary. Tidd, 264.

For preventing inconveniences which happened to plaintiffs, by the defendant's omission to file common bail, according to the ancient usage and course of the court, there is an old rule in K. B., that all clerks, &c. do, within ten days after the end of every term, deliver to the secondary, a note of all such appearances as have been made unto them the term before, and by whom they were made; so that the person appointed to enter the bails, may see whether they are filed for such appearance or not. R. T. 1657. reg. 2. K. B. Tidd, 269.

Nothing is a performance of the condition of the bail-bond, but putting in bail above. 5 Burr. 2683.

When special bail shall be required, vide Bail, (K 4.)

[*]And therefore, the plaintiff cannot declare in B. R. until a committitur of the party is made, or bail put in. 1 Rol. 581. 1. 10.

Nor, in C. B. till bail is put in, or the party is brought into court by habeas corpus.

But by the st. 4 & 5 W. & M. 21. a declaration may be delivered to a prisoner or gaoler, &c.

And by the st. 12 Geo. 29. where the cause of action amounts not to 10l. on atidavit of process being served, if the defendant appears not in four days (by st. 5 Geo. 2. 27. in eight days) after the return, the plaintiff may file common bail, and enter an appearance, as if the defendant had appeared. So, if the attorney for the defendant accept a declaration from the plaintiff's attorney, it shall be an appearance for the defendant. Pr. R. 39. If he undertakes that he will appear, after a writ taken out, it shall be an appearance. Mod. Ca. 42.

If an attorney has undertaken to appear, the court will oblige him to do it, even though he had no authority from the defendant. Str. 693. 7

But if the tenant or defendant be in court, and says that he will not appear; this is not an appearance. 1 Rol. 580. 1. 15.

So, if the tenant in an assise makes default and another appears for him as his bailiff, and he comes into court, and disavows him to be his bailiff; this is no appearance; for he comes for another purpose, viz. to disavow

his bailiff. 1 Rol. 580. 1. 20.

So, if the attorney accepts the declaration for the defendant, if he approves of it; it shall not be an appearance, if he afterwards sends back the declaration. Pr. R. 41.

So, if before the writ issues, he undertakes that he will appear; it is not an appearance, though the writ be afterwards shown to him.

Mod. Ca. 42.

So, if he undertakes, after the writ is sued out, but afterwards refuses, he shall be compellable to enter an appearance; but it is no appearance till it is entered. Mod. Ca. 36. [2.]

So, it is not an appearance if it is not recorded; for, whether he appeared or not, ought to be tried by the record. Bro. Default, 32. R. Cro. El. (466.) per two J. Keilw. 180.

The appearance of the defendant is triable by the record. Cro. Eliz. 466. Tidd, 263.

And in C. B. it is a rule, that all appearances for defendants upon writs of capias, alias, and pluries, issuing out of that court, ought to be entered of record, or otherwise they are not warranted by the course of the court; neither can the defendant, if he have been arrested, plead comperuit ad diem in discharge of the sheriff's bond taken for his appearance. R. M. 14 Jac. 1. reg. 2. C. B. Tidd, 263.

By that rule, the appearance is required to be entered with the proper filacers; but there does not seem to be any appearance roll, or entry of the defendant's appearance, excepting the statement of it on the recognizance roll, or on the imparlance plea, or issue roll, and the entries in the filacers' books: which entries however cannot be considered as records. Tidd, 263.

In an action against a bailiff and commonalty, it is not an appearance, if the bailiff appears without the commonalty; for they are but one corporation. 1 Rol. 582. 1. 30. [3.]

[*]A corporation aggregate cannot appear in any other manner than by attorney. Bro. Corp. 28.

Nor, in an action against husband and wife, if the husband appears without the wife, or e contra. Vide post, (B 4. 10.)

Appearance cures all errors and defects in process. Barnes, 163. 167. 415. 424.

(B 2.) Where it shall be entered.

An appearance on a capias in C. B. shall be entered in the filazers' office, out of which it issued. Compl. Att. 31.