The Code of Procedure, or the New and the Old Modes of Proceeding Compared Showing the Necessity of Restoring the Forms of Actions and Pleadings in Cases at Common Law (Classic Reprint)

Excerpt from The Code of Procedure, or the New and the Old Modes of Proceeding Compared Showing the Necessity of Restoring the Forms of Actions and Pleadings in Cases at Common Law

Whatever the form, or nature of the writ, the justices did this by a fixed and settled set of forms, which were substantially the same in every case, called the formulae, or form of the particular ao tion, although the statement of facts on which the party relied would vary in his narrative to meet and sustain the case detailed in the original writ. The steps the party then took before the justice in obedience to the writ, came by custom to be designated according to the nature of the right or principle of law on which the writ it self was founded, and had been issued. It, therefore, took its name from the nature of the case in the writ, and from the word in that instrument which the most significantly, happily or briefly described its peculiarity. Thence there came to be as many actions, so called, as writs, notwithstanding, strictly, there was but one simple method of proceeding, in each instance, in court, particularly as by degrees the reason of the necessity of the writs which originally caused the classification became obsolete. The distinction of rights which had been created by the writs, was afterward attached to the several actions and preserved by the names in like manner given them. The enumeration of the several actions was identical with that of the writs of the writs with that of the several actions No one, as it hap pened, at last, looked beyond the narrative or declaration, the first proceeding in court before the justice, to see the nature of the action on hand. Some of these writs and the corresponding actions have long since been disused, their place having been sup plied by the use of some other, as Writs of Right, or Writs of En try, for trying the rights of property in land, as d1st1ngu1shed from those in which the right of possession only was the subject.

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