Secondly, things in action, consist of contracts and legal obligations, are liable only to one kind of injury, namely, nonperformance; but the nature of the remedy varies according to the nature of the obligation; respecting which the following rules may be laid down: 1. If a debt, technically so called, be due me, that is, a sum of money already liquidated, or capable of being liquidated with certainty, whether it be a statutory penalty, or a voluntary indebtedness by contract under seal, or writing without seal, or simply implied by law, I may bring the action of debt. 2. If this liquidated sum be evidenced by a contract under seal, I have an option between debt and covenant; and if by a contract not under seal, whether express or implied, I have an option between debt and assumpsit. 3. If there be a contract for any thing else than a liquidated sum of money, and it be under seal, the only remedy is covenant; and if not under seal, the only remedy is assumpsit.

§ 210. Process. (a) The preceding remarks have prepared the student to answer the first question of practice; namely, what is the proper action to be brought? The next inquiry is, how is such action to be commenced and prosecuted? Judicial proceedings naturally divide themselves into five parts. 1. The process, including the means whereby the parties are brought before the court. 2. The pleadings, including the means of making up an issue between the parties. 3. The trial, including what relates to jurors and witnesses. 4. The judgment, including what relates to appeals and writs of error. 5. The execution, including the means of carrying the judgment into effect. I am to speak first, then, of process, a term which embraces all writs and orders issued by courts to their executive officers in the course of judicial proceedings. In England, where the king is in theory the fountain of justice, the first step in any civil action is to obtain an original writ, (b) which is a mandatory letter in the king's name and under the great seal, issuing out of the court of chancery, and commanding the defendant to satisfy the plaintiff, or else appear in the proper court and answer for his default. This writ is there deemed necessary to give the courts of law jurisdiction. In modern practice, however, it is usually dispensed with by recourse to a fiction, and a proceeding by bill substituted. But in this country there is no occasion for an original writ, and nothing in the nature of a proceeding by bill. Our courts derive their jurisdiction from the constitution, and require no writ to confer it in particular cases. Accordingly, all process is here divided into mesne and final; the former signifying all process before judgment, and the latter all process after

(a) With respect to the federal courts, the act of Congress of 1798 adopted the State laws in regard to process as they existed in 1789. The act of 1828 adopts the State laws, in regard to final process both in law and equity, as they then existed; but provides that the federal courts may by rules conform such process to the alterations since made by State laws. See Bronson v. Kinzie, 1 Howard, 311; Duncan v. Darst, id. 301.

(b) Steph. on Plead. 5.

judgment. The constitution requires all process to issue in the name of the State; but it issues under the seal of the proper court, and is attested by the clerk. As a general rule, all courts are invested with power to enforce obedience to any process they are authorized to issue. We have express provision to this effect, though the power would exist incidentally. Disobedience is technically denominated a contempt, (a) and may be punished by attachment, fine, imprisonment, and sometimes sequestration of property. Moreover, the officer who is charged with executing any process may call to his aid the posse comitatus, or power of the county; and it is made the duty of every person to render assistance when called upon, under penalties for refusal. Even the military force of the county may be called out, if necessary. The theory is, that every writ, properly issued, must be obeyed at all hazards.

Precipe. (b) The first step, then, is to procure the proper writ to be issued. This is done by delivering to the clerk a precipe, which is a brief written order to him to issue the writ required. It may be made by the plaintiff or his attorney, but usually by the latter. It names the court, the parties, the action, the writ, and the damages, in all which respects the writ and pleadings must correspond with the precipe. The only action, in which no precipe is required, is ejectment, where a copy of the declaration and notice takes the place of a writ. Upon filing the precipe, it is the duty of the clerk to obey it in a reasonable time; and if he fail to do so he is liable in damages on his official bond. The only part of the precipe which is entirely discretionary is the damages, as to which the rule is to lay them high enough, to cover all that can by possibility be recovered; since you cannot recover more than you claim, though you

(a) Until a recent date, the power of courts to punish contempts has been left to their discretion, controlled only by precedents. By our statute of 1834, it is confined to three classes of cases. 1. To the misbehavior of any person in their presence, or so near as to obstruct the administration of justice. 2. To the misbehavior of their officers in their official transactions. 3. To disobedience or resistance, by any person, to any lawful writ, process, order, rule, decree, or command of said courts. And see State v. Goff, Wright, 78; State v. Coulter, id. 421; State v. Nixon, id. 763; Morris v. Marcy, 4 Ohio, 83; Lowe v. The State, 9 Ohio State, 337; Baldwin v. The State, 11 Ohio State, 681; Coe v. Columbus, P. & L. R. R. Co. 10 Ohio State, 372; in the matter of Hackley, 24 N. Y. 74; Shaw v. Shaw, 2 Swab. & T. 519; Ex parte Chetwynd, Re Mulock, 4 Am. Law Register (N. s.) 298. Ex parte Langdon, 25 Vt. 680; 32 Vt. 253; id. 258; Clarke's case, 12 Cush. 320. The power to punish contempt is inherent in legislative and judicial tribunals; and see as to the practice in such cases, State v. Mathews, 37 N. H. 450. A party committed until he purge the contempt by appearing before the grand jury, is entitled to his discharge when the grand jury has been discharged. Ex parte Maulsby, 13 Md. 625.

(b) Under the Code, the first step is to file a petition, setting forth purely the cause of action, which corresponds to a declaration in law, a bill in chancery, and a libel in admiralty, and must be verified by affidavit. And this petition must be accompanied by a precipe; § 55-60. And see as to Precipe, Coffee v. The State, 6 Ohio, 150. Precipe. A. B. Court of

υ.

Action of

C. D.) Damages The clerk of the court of

returnable

cause of action.] [Date.]

dollars.
for

county, Ohio, will issue a writ of and indorse that suit is brought to [describe briefly the E. F., Atty. for Piff.

may less. If the writ required be a capias, attachment, or replevin, which, by the law of this State, do not issue as a matter of course, at the mere suggestion of the plaintiff, but only when certain facts exist, which are specified in the statute, these facts authorizing the writ must be evidenced by affidavit of the plaintiff, his agent, or attorney. An affidavit is a written oath or affirmation, subscribed by the party making it, and certified by some officer qualified to administer oaths. In these cases, the affidavit must accompany the precipe. In describing the parties to the writ, their additions, occupations, or titles need not be stated. If they have a middle name, the initial letter only need be used; but otherwise the full name. In describing partners, the individual names are first stated, and then the partnership name. In describing a corporation, care must be taken to use the exact name mentioned in the charter, since it can only be known by that name. The cause of action must be substantially set forth in the precipe, so that the clerk may indorse it on the writ; otherwise the court will, on motion, quash the writ at the costs of the plaintiff. The writs by which an action is ordinarily commenced are summons, capias, attachment, and replevin. But before considering these, I will briefly describe the writs of scire facias, habeas corpus, mandamus, and quo warranto, which are resorted to on particular occasions.

Seire Facias. (a) This is the name of a writ founded upon some matter of record, as a judgment or recognizance; its purpose being to notify the party against whom it issues, to show cause why some step founded upon such record should not be taken against him. In this State, the cases in which it may be issued are pointed out by statute; and it is sometimes in the nature of a new action, but more generally a consummation of some former action. The cases in which it may be here issued are as follows: 1. To make joint defendants, who were not served with process originally, parties to a judgment already recovered against their co-defendants. 2. To obtain further damages on a penal bond, after an original judgment for the whole penalty, in consequence of new breaches of the condition of such bond after such original judgment. 3. To revive a judgment in favor of the executor or administrator of a deceased plaintiff, or against the executor or administrator of a deceased defendant, when the plaintiff or defendant has died after judgment; for if the death took place before judgment, they are made parties to the suit by citation. 4. To revive a dormant judgment, that is, a judgment on which no execution has been issued for five years. 5. To make the sureties of a sheriff parties to a judgment of amercement against him for neglect of duty. 6. To subject real estate to the satisfaction of a judgment rendered by a justice of the peace, when there is no personal property to satisfy such judgment. 7. To obtain satisfaction for any injury arising from the neglect of duty of any executor, administrator, or other

(a) 6 Dane's Abr. 462; Wilcox's Forms, 231; Wolf v. Ponsford, 4 Ohio, 397.

officer, after judgment has been recovered on his official bond, in favor of some other person. 8. To compel special bail to satisfy the judgment recovered against their principal. 9. To obtain satisfaction of a judgment against the principal in favor of bail, who have been compelled to pay such judgment. In all these cases, the writ of scire facias recites the facts which authorize it to be issued, and then commands the sheriff to make known to the party, against whom it issues, that he appear in court and show cause, if any there be, why the contemplated step should not be taken against him. If he can be found, the sheriff serves him with a copy of the writ, and returns, scire feci; if not found, the sheriff returns nihil; and in proceedings against special bail, two returns of nihil are held equivalent to service. All proceedings by scire facias have this peculiarity, that the writ itself operates as a declaration, and may be pleaded or demurred to, as will be explained hereafter.

Habeas Corpus. (a) The nature of this writ has already been described. We have seen that it is the great writ of liberty, and that it may be issued in favor of any person unlawfully detained in the custody of another, whether under color of legal process, or the right of a parent, master, or guardian, or any other pretext whatsoever. Application may be made in writing, by the person imprisoned, or any other person in his behalf, to either of the courts in term time, or any judge thereof in vacation. If the cause of detention be legal process, it must be set forth in the application. If not, the truth of the application must be evidenced by affidavit. If the court or judge allow the writ, such allowance is indorsed on the application, and the time is fixed for the return of the writ. The writ is addressed to the person holding the applicant in custody, and directs him to have the body of the applicant, together with the cause of detention, before the court or judge at the time specified. Any disinterested person may serve the writ, by delivering it to the person to whom it is addressed, and retaining a copy to proceed upon in case of default. The writ is returned by bringing the person detained before the court, and setting forth the cause of detention in writing. The court or judge then examines into the cause of detention, and either remands the person back into custody, or discharges him, or holds him to bail, as the facts of the case may warrant.

(a) Ante, p. 201. The proceedings on the writ are not affected by the Code, § 604; but are regulated by the statute of 1811. See act of March 27, 1858, restoring section six of the act of Jan. 22, 1811, and section nine of the act of Feb. 8, 1847, and repealing the act of April 5, 1856, which repealed those sections.

The form is as follows: The State of, county of. To- [the person detaining the applicant]. We command you that you have the body of said to be detained in your custody, together with the cause of his detention, before [the court or judge), at on the [name the day and hour], to abide such order as shall then and there be made in this behalf; and have you then and there this writ with your doings thereon. Given under the seal of said court this [date]. clerk. [Seal of court.]

Attest

The return may be as follows: I have the body of said

judge, pursuant to the within order; and do certify that the said

before the [court or

was by me

taken into custody on the -, and is now detained by virtue of [here set forth the authority for detention.] [Date and signature.]

Mandamus. (a) At common law this was a prerogative writ, and not a writ of right. In this State, it is provided for by statute. Its object is to compel the performance of some public duty, by some public person, when there is no other specific legal remedy. It may be addressed to any public officer, corporation, or inferior court, requiring them to do some specific legal act, agreeably to law. It presupposes a neglect of duty, and never issues for a mere lack of discretion. Its most common purpose is to enforce the admission of a person to an office to which he has been legally elected; or his restoration to an office from which he has been illegally removed. It issues at the instance of the party injured, upon proper showing made to the court, and not as a matter of course. application for a mandamus, the first step is to issue an alternative mandamus, reciting the facts making out the delinquency, and commanding the delinquent to do the thing required, or show cause for the omission. This is sometimes called a rule to show cause why a mandamus should not issue; and the court will hear argument in opposition to this application. If the rule be granted, and the delinquent on being served refuse to make any return, he is in contempt, and may be proceeded against by attachment. If return

On

(a) Tapping on Mandamus. Proceedings on mandamus are regulated by the Code. The writ may be issued to any inferior tribunal, corporation, board, or person, to compel the performance of a duty prescribed by law to any office, trust, or station, but not so as to control judicial discretion. It may be issued on the information of the party beneficially interested, supported by affidavit. The allowance must be indorsed on the writ by the judge who grants it. The return is made by answer, and there are no other pleadings. Beckel v. Union Township, 9 Ohio State, 599: Johnes v. Auditor, 4 id. 493; State v. Commissioners of Perry Co. 5 id. 497. The issues are tried as in any other civil action. There may be a judgment for damages, and a fine not exceeding five hundred dollars. § 569-80. The law of mandamus is very fully discussed in Marbury v. Madison, 1 Cranch, 137; Kendall v. Stokes, 12 Peters, 524; Decatur v. Paulding, 14 id. 497; Brashear v. Mason, 6 How. 92; U. S. v. Seaman, 17 id. 225; U. S. v. Guthrie, 17 id. 284; U. S. v. Addison, 22 id. 174. And see State v. Trustees, 2 Ohio, 108; State v. Com. Pleas, 3 id. 49; State v. Todd, 4 id. 351; State v. Moffit, 5 id. 358; Cases of Turner & Kazer, 5 id. 542, 544; Universal Church v. Trustees, 6 id. 445; Burnet v. Auditor, 12 id. 54; Smith v. Commissioners, 9 id. 25; State v. Treasurer, 17 id. 32, 184; State v. Auditor, 19 id. 116, 125; State v. Cincinnati, 19 id. 178; State v. Commissioners, 19 id. 415; State v. Bailey, 7 Clarke (Iowa), 390; Hollister v. Judges of District Court, 8 Ohio State, 201; The State v. Governor of Ohio, 5 id. 528; City of Zanesville v. Auditor of Muskingum Co. id. 589; Shelby v. Hoffman, 7 id. 450. Cass Township v. Dillon, 16 Ohio State, 39. The State ex rel. Anderson v. Harris, 17 Ohio State, 608. The State ex rel. Hayes v. C. & I. R. R. Co. 17 Ohio State, 103; The State v. Lewis, 10 Ohio State, 128. The court will not by mandamus compel a party to do what by a subsisting decree of injunction he is prohibited from doing, although the party seeking the remedy by mandamus is not a party to the decree of injunction. Ohio and Indiana R. R. Co. v. Commissioners of Wyandot Co. 7 id. 278. Though an inferior board or tribunal failed to perform a ministerial duty at the proper time, a mandamus will not issue to compel its performance if it is no longer consistent with the substantial rights of other parties, or with public interests. Nor will it issue when it must evidently be abortive and fruitless. Ingerson v. Berry, 14 Ohio State, 315. Obligations arising upon contract merely, and involving no trust, cannot be enforced by mandamus. Com'rs of Ross Co. v. Z. & M. Turnpike Co. 16 Ohio State, 308. It will not lie to compel a judge who has once considered and decided a case to hear it again. Ex parte Newman, 14 Wall. 152. Before an officer will be required by mandamus to do an act, the application must show that all the evidence required by the statute upon which he is to act was placed before him. Cincinnati College v. La Rue, 22 Ohio St. 469.