The principal proceedings in an action are first, the warrant of attorney, to prosecute or defend; secondly, the process used for bringing the defendant into court; thirdly, his appearance and bail; fourthly, the pleadings, beginning with the declaration; fifthly, the issue; sixthly, the trial, or determination of the issue; seventhly, the judgment; and eighthly, the execution To which may be added the proceedings in scire facias to revive the judgment, or in error to reverse it; though these are rather to be considered as distinct actions, or proceedings, arising out of, than as parts of the original suit. The above proceedings are from time to time entered on the rolls of the court; which thence take their denomination of the warrant of attorney roll, the process roll, the recognizance roll, the imparlance, plea, or issue roll, the nisi prius roll or record, the judgment roll, (on which latter is entered the award of execution,) the scire facias roll, and the roll of proceedings on writs of error, and false judgment.

Subordinate to these principal proceedings, there are others of an auxiliary nature, which occur in the course of a suit; such as, in bailable actions, the arrest and bail-bond, with the proceedings thereon, or against the sheriff, to compel him to return the writ, and bring in the body. These happen before the plaintiff has declared absolutely. After declaration and before plea, the defendant, in order to prepare for his defence, is, under circumstances, allowed to crave oyer of deeds, &c. or copies of written instruments, call for the particulars of the plaintiff's demand, or claim inspection of public books, court rolls, &c.; or he may move the court to change the venue, consolidate actions, strike out superfluous counts, or bring money into court. After issue and before trial, the plaintiff should give notice of trial, sue out the jury process, and make up and pass the record of nisi prius: and each party should prepare a brief for counsel, and subpoena his witnesses. After trial and before judgment, the unsuccessful party may move the court for a new trial, or in arrest of judgment; or for judgment non obstante veredicto, a repleader, or venire facias de

novo.

The variations in the proceedings are occasioned, first, by the nature of the action, and the parties by or against whom it is brought; as whether it be founded in contract or tort, or be brought by or against one or more plaintiffs or defendants, by the assignees of a bankrupt or insolvent debtor, or by or against baron and feme, surviving partners, executors or administrators, heirs or devisees, &c. Secondly, by the mode of commencing the action; as whether it be commenced originally in the King's Bench or Common Pleas, or removed thither from an inferior court: and, in the former case, whether it be commenced by original writ, bill of Middlesex or latitat, capias quare clausum fregit, or attachment of privilege, or by bill exhibited to the court, and brought against common persons, or peers of the realm, members of the House of Commons, corporations, hundre

dors, attorneys, officers of the court, or prisoners in the actual custody of the sheriff or marshal: Thirdly, by the nature of the process used for bringing the defendant into court; which is either a mere summons, an attachment or distringas against his property, or a capias against his person; which latter process, in point of form, is common or special, and in effect is bailable or not bailable; and upon a bailable capias, the defendant is either taken, or stands out to process of outlawry: Fourthly, by the appearance of the parties; and whether they prosecute or defend the action in person or by attorney, or, in case of infancy, by prochein amy or guardian: Fifthly, by the course which the proceedings take; and whether the action be prosecuted, or abate by the death of the parties; or the plaintiff voluntarily abandon it by a discontinuance, nolle prosequi, stet processus, or cassetur billa vel breve; or make default, and suffer judgment of non pros for not declaring, replying, or entering the issue, or judgment as in case of a nonsuit for not proceeding to trial; or the defendant compromise or compound the action, confess it or let judgment go by default.

If the action be prosecuted, the variations in the proceedings are occasioned, Sixthly, by the nature of the declaration, and subsequent pleadings; as whether the declaration be common or special, and consist of one or more counts, and whether it be in chief or by the bye, and delivered or filed absolutely or de bene esse, and whether the defendant plead or demur thereto; and, if he plead, whether it be to the jurisdiction of the court, in abatement, or in bar; and if the latter, whether he plead one or more pleas, and whether they be general or special; and if special, whether the replication thereto be in denial, or confession and avoidance, or by way of estoppel, or new assign the injury complained of; and whether there be any rejoinder, surrejoinder, rebutter, or surrebutter, and of what it consists: Seventhly, by the nature of the issue, joined upon the pleadings; as whether it be an issue in fact or in law; and if in fact, whether it be triable by the court, upon nul tiel record; by a jury, upon pleadings concluding to the country; or by the bishop's certificate, upon a plea of ne unques accouple, &c.: Eighthly, by the mode of trial, and the proceedings in the course of it; as whether it be at bar or nisi prius, or by a common or special jury, or the defendant at the trial plead puis darrein continuance, or the parties agree to withdraw a juror, or refer the cause to arbitration, or there be a nonsuit or verdict, and if a verdict, whether it be general or special, or there be a special case, bill of exceptions, or demurrer to evidence: Ninthly, by the nature of the judgment; which is either for the plaintiff or defendant; for the former by confession, non sum informatus, or nihil dicit, for the latter on a non pros, discontinuance, nolle prosequi, cassetur billa vel breve, retraxit, nonsuit, or as in case of a nonsuit, and for either party upon demurrer, nul tiel record, verdict, or the bishop's certificate: Lastly, by

the species of execution; as whether it be by fieri facias against the defendant's goods, by capias ad satisfaciendum against his person, by elegit against his goods and a moiety of his lands, or by extendi facias, or extent, against his body, lands and goods, or in some cases against his lands and goods, or lands only.

The practice of the court, by which the proceedings in an action are governed, is founded on ancient and immemorial usage, (which may not improperly be termed the common law of practice,) regulated from time to time by rules and orders, acts of parliament, and judicial decisions. The practice is the law of the court, and as such, is a part of the law of the land;* and it has been so strictly adhered to, that in the case of Bewdley,† a practice of seven years only was allowed to prevail against the express words of an act of parliament. The rules and orders of the court are either such as are made for the regulation of its general practice, or such as apply only to the proceedings in particular causes. The general rules are confined in their operation to the court in which they are made; and for the most part respect the mode of conducting the proceedings. Hence we find, that acts of parliament are sometimes necessary, to introduce regulations extending to all the courts, or creating some changes or alteration in the proceedings themselves. And as questions arise respecting the regularity of the proceedings, the courts are called upon to settle, by judicial decisions, the course of their own practice, or to fix the construction of the rules or acts of parliament which have been made respecting it. Such is the nature of practice: upon which it is observable, that as the actions and proceedings in general are the same, in all the superior courts of common law, there must necessarily be a great uniformity in the practice of each; and especially when it is considered, that the courts have in many instances adopted the same general rules, and are governed by the same acts of parliament, in the construction of which their decisions are for the most similar. The principal differences arise from the original constitution of each particular court, its jurisdiction and officers, and the peculiar rules laid down for regulating its proceedings; and they consist for the most part in the nature of the process used for bringing in the defendant, &c. and the manner in which it is returnable, the times prescribed or allowed for particular purposes, and the modes of transacting business by the court, or its officers.§

* Jenk. Cent. 295. 2 Co. 17. 4 Co. 93, (b). Hard. 98, 2 Ses. Cas. 342. 1 Wils. 162. 4 Bur. 2572.

† 1 P. Wms. 207, 223.

2 Str. 755; and see 3 Bur. 1755. But this doctrine does not seem to be tenable. See 1 Blac. Com. 76, 7. 1 Chit. Rep. 299. (a.)

? It were to be wished that many of these differences were abolished, in order to render the practice more simple and uniform.

In the following work, it is the author's intention to treat of personal actions, and the various means of commencing, prosecuting, and defending them, in the courts of King's Bench and Common Pleas, and occasionally in the court of Exchequer of Pleas: And with that view, he has considered the proceedings, in the order in which they present themselves, and follow one another, in the course of the suit; and has endeavored to explain, not only the principal proceedings, but also such as are of a subordinate nature, with all the variations attendant upon each, by a methodical arrangement of the several acts of parliament, rules of court, and judicial decisions respecting them. In stating the mode of commencing the suit, he has attended to the jurisdiction of the courts, as it is exercised by original writ, bill, or attachment of privilege. The proceedings against peers of the realm, corporations and hundredors, are classed under the head of proceedings by original writ, to which outlawry is considered as an incident; and the proceedings against members of the House of Commons, on the statute 12 & 13 W. III. c. 3, as well as against attorneys and officers of the court, and, in the King's Bench, against prisoners in the actual custody of the sheriff or marshal, under that of proceedings by bill.

The doctrine of pleas and pleading, and of demurrers, amendments and jeofails, is considered, with reference to the different actions, so far as appeared to be necessary for understanding the practice of the courts: And the reader will here find a full account of the practice on motions, and the cases in which the courts will set aside or stay the proceedings, the subject of arbitration, and the law of damages and costs, the doctrine of extents, in chief and in aid, with the proceedings in scire facias, and error. The proceedings in criminal cases in general, and in real and mixed actions, being foreign to the purpose of this work, are only incidentally mentioned in the course of it. The doctrine of attachments, however, is considered, as it arises out of, and is connected with, the proceedings in civil suits. A collection will be found, towards the end of the first volume, of all the cases determined by the court of Common Pleas, on the amendment of fines and recoveries: And the practice in the action of ejectment is fully treated of in the last chapter.

This work was originally published in three parts: The first part made its appearance in November, 1790; and was received by the profession, in a manner highly flattering to its author. This part contained the whole of the proceedings in personal actions, in the court of King's Bench, previous to the plea; together with all that was peculiar to the proceedings by and against attorneys and officers of the court, against peers of the realm, and members of the house of commons, upon the writ of habeas corpus, and against prisoners in the actual custody of the sheriff, or marshal, &c. In the second part, which was published in November, 1794, the

proceedings at large were continued, from the demand of plea, to final judgment and execution; and the third part, which treated of the proceedings in scire facias and error, was published in November, 1798.

In the following year, a second edition of the whole work was called for: in which some parts of it were considerably enlarged, particularly those which treated of actions and declarations; of the doctrine of arrest: of the proceedings against the sheriff, to compel him to return the writ, and bring in the body: of attorneys, and the mode of their admission, with their duties, privileges, and disabilities; of the practice on motions; and the judgment and execution against heirs and tertenants.

In the third edition, which was published in October, 1803, a new Chapter was inserted, on the removal of causes from inferior courts; by writ of certiorari and habeas corpus, from such as were of record, and by writ of pone, recordari facias loquelam, or accedas ad curiam, from such as were not of record: And this edition was not confined altogether to the practice of the court of King's Bench; but contained an account of the means of commencing actions in the court of Common Pleas; and references were occasionally made to the rules of that court, and more frequently to the cases of practice determined therein, as reported by Lord Chief Justice Willes, and other subsequent reporters.

The fourth edition was published in January, 1808. In this was comprised the substance of all the rules and orders of the court of King's Bench, on the subject of practice, from the beginning of the reign of James the 1st, down to that period; and in addition to those of the Common Pleas, which were before referred to, from the printed collection, ending in 1743, it contained all the subsequent rules of that court, many of which were never before published.

Still, however, the publication related principally to the practice of the court of King's Bench. The author had originally intended to treat of the practice of both courts: but was deterred from the execution of his design, by the difficulty of the undertaking, and a fear of failure from attempting too much. Encouraged, however, by the success he met with, he afterwards inserted some of the more recent rules and decisions of the court of Common Pleas; and in the fifth edition, published in November, 1812, he endeavoured to incorporate the whole of its practice with that of the King's Bench. For this purpose, and with a view to the differences between the practice of the two courts, which will be noticed hereafter, particular attention was paid to the constitution of the court of Common Pleas, its jurisdiction and officers, and the process used for bringing in the defendant, &c. And besides some of the earlier cases of practice, most of those reported by Sir George Cooke, the author of the Practical Regis ter, and Mr. Secondary Barnes, were referred to; and all that were to be