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DIGEST

OR

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.

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SOUTHERN DISTRICT OF NEW-YORK, ss. 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 Exchoquer. 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 additiou 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 capise of maps, charts, and books, to the authors and proprietors of such cupies, 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 bistorical, and other prints."

JAMES DILL,
Clerk of the Southern District of Nere-York.

E. & G. Merriam, Printers,

Brookfield, Mass.

DIGEST

OF THE

LAWS OF ENGLAND.

[The figures in this work refer to the original pages us 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. Vide post, (B 6.)

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 501.

So, by the st. 5 G. 2. 27. & 6G. 2. 14, in actions under 101, 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

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