the purpose of reto a forfeiture of a. And here it is a civil action is indictment for a punishment for not queen's court, and at to appear; while d attainder of the if the offender had 1 because the outence against public

e must either go to that is to say, proanswerable for his which is intended t, in order to abide he appears, the next y, the pleadings, or tiff and defendant. between litigating ects; first, to ascerSecondly, to decide. rst of these objects se, so as to shew to on them. Thus far courts of judicature; peculiarities arising common law. The fact should be tried law decided by the

have any lands or tenements, rents, commons, or other hereditaments, in fee simple, fee tail, or term of life.1 But all real actions are now abolished, excepting three: namely, two species of actions for dower, and the action of quare impedit, which is applicable to injuries against the rights of the patron of a church.2 Original writs are consequently not now a matter of any great importance; we will therefore proceed to the next step of suits at law in the superior courts, namely, process, being the means of compelling the defendant to appear in court. The most effectual mode of doing this was until lately the writ of capias, to arrest the defendant; but arrest at this stage of the suit is now abolished, excepting where the action is brought for the sum of 207. and upwards, and the defendant is also about to leave the country. All personal suits must therefore be commenced by a writ of summons under the seal of the court; and, if necessary, this process is followed by a writ of distringas, by virtue of which the sheriff is authorised to take possession of all the defendant's goods, and the profits of his lands. If the defendant has no goods nor lands which can be distrained upon, and he cannot be found, upon the return of the writ by the sheriff certifying such facts, the plaintiff may, after eight days, enter an appearance for the defendant, and proceed to judgment and execution against him. But upon a return of non inventus to a writ of summons, or of nulla bona and non inventus to a distringas, the plaintiff may proceed, in cases where the defendant was by the old law subject to arrest, by a peculiar method prescribed in the statute referred to above, to outlaw the defendant, the effect of which is to put him out of the protection of

1 These two definitions are taken from Blackstone, b. iii. c. viii. 2 Stat. 3 and 4 Wm. IV. c. xxvii.

31 and 2 Vict. ch. cx.

42 Wm. IV. c. xxxix.

the law in all civil matters (except for the purpose of reversing the outlawry), and subject him to a forfeiture of all his goods and chattels to the queen. And here it is necessary to observe, that outlawry in a civil action is very different from outlawry upon an indictment for a felony or treason: the former being a punishment for not appearing when duly summoned in the queen's court, and a means to compel a stubborn defendant to appear; while the latter amounts to a conviction and attainder of the offence charged in the indictment, as if the offender had been found guilty by verdict of a jury,' because the outlaw is guilty of a more dangerous offence against public justice.

Where the defendant is arrested, he must either go to prison for safe custody, or put in bail; that is to say, produce one or more persons who become answerable for his appearance. Thus much for process; which is intended only to bring the defendant into court, in order to abide the determination of the law. When he appears, the next stage of the suit commences; namely, the pleadings, or mutual altercations between the plaintiff and defendant.

In the administration of justice between litigating parties, there are two successive objects; first, to ascertain the subject for decision, and secondly, to decide. The obvious mode of attaining the first of these objects is to make the parties state their case, so as to shew to the judge what is in dispute between them. Thus far the same principle is followed in all courts of judicature; but our English system has certain peculiarities arising from the fundamental principles of the common law. The common law requires that matters of fact should be tried by the jury, and questions purely of law decided by the

1 2 Hale, P. C. 205. 4 T. R. 521.

judges. It must therefore be clearly ascertained previ ously to the case being brought to adjudication, whether the dispute between the parties depends upon a question of fact, or a point of law; otherwise it cannot appear whether the parties ought to put themselves upon the judgment of the court, or go to trial before a jury of the country. And if the cause depends on matter of fact, it is of the utmost necessity that it should appear clearly and precisely what the specific facts are which one party asserts and the other denies, and the truth of which the jury must decide. The reason of this is, that jurymen are not only in general persons unlearned in law and of little skill, but their deliberations must necessarily be confined within a comparatively small space of time; consequently it is impossible that they should compare and digest intricate and multifarious allegations, throwing off all unnecessary matter, so as to apply their minds to the various questions arising thereon, and determine their effect upon the merits of the case. Under the influence of these principles, the English system of pleading has been formed so as always to evolve some question either of fact or law, disputed between the parties, and mutually proposed and accepted by them as the subject for deci sion; which question, so produced, is called the issue. This is accomplished by means of certain concise and formal allegations in writing, called pleadings. The first of these is the declaration, narratio, or count, anciently called the tale, in which the plaintiff sets forth his cause of complaint at length. Then the defendant must make his defence either by demurring or by pleading. A de

1 Ad quæstionem juris non respondent juratores, sed judices: ad quæstionem facti non respondent judices, sed juratores. Co. Litt. § 360, et ibi cit.

murrer (from the Latin demorari, or French demeurer) imports, according to its etymology, that the objecting party will not proceed with the pleading, because no sufficient statement has been made on the other side; but will await the judgment of the court. The plaintiff then joins in demurrer, by alleging that the declaration is sufficient; and this produces an issue upon matter of law, which is called a demurrer, wherein all the facts that are properly pleaded in the declaration, and are material to the issue, are, by necessary implication, confessed by the defendant. Demurrers are, however, sometimes merely for want of sufficient form in the declaration, and in such cases involve no admission of the truth of the facts pleaded. Where the demurrer is for a matter of substance, or involving the merits of the case, the decision of the judges thereon terminates the suit; but when the demurrer is for matter of form only (in which case it is called a special demurrer), the judgment thereon either overrules it and requires the defendant to put in a plea, or holds it valid; in which case the declaration must be amended, if the defect of form admits of amendment, or quashed, if the defect is such as to be fatal to the action.

If the defendant does not demur, or if his special demurrer is overruled, he must put in a plea. Pleas are of two sorts: dilatory pleas, and pleas to the action; a distinction derived from the canon-law.2 Dilatory pleas are such as tend merely to delay or put off the suit, by questioning the propriety of the remedy, rather than by denying the injury pleas to the action are such as dispute the very cause of suit. Thus a plea to the jurisdiction of the court, merely alleges that the action has not been brought before a competent tribunal; but a plea alleging that the

Stephen on Pleading, c. i. p. 51.

2 Lancelot, Inst. Jur. Canon. lib. iii. tit. viii. princip.