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a contract under seal or of record, whenever the demand is for a sum certain, or capable of being reduced to a certainty.

Annuity is the form of remedy for the recovery of an annuity, or yearly payment of a sum of money granted to another in fee, or for life or years, charging the person of the grantor only; and it may be brought by the grantor or his heirs, or his or their grantee, against the grantor, or his heirs.

A scire facias is a judicial writ, founded upon a record, such as a judgment or recognizance,-requiring the party against whom it is brought, to shew cause, why the party bringing it should not have the benefit of such record. For example, it lies where execution has not been sued out on a judgment within two years; or to revive a judgment against the representatives of a deceased defendant; or by the representatives of a deceased plaintiff; or where the situation of either party is changed by marriage; or to continue a suit by or against the representatives of either party, who shall have died during its pendency.

Trespass (regarded as a personal action,) may be brought for an injury accompanied by force, to the person; such as assault, battery, and false imprisonment; or to personal property, either in carrying it away, or destroying or otherwise injuing it.

Trespass on the case is the most comprehensive action known to the law. It includes within its operation, nearly every injury to personal rights, whether resulting from a violation of express or implied duty or obligation, tending either to the withholding of a right or the actual commission of a wrong. Indeed, if we except the cases already referred to, where the remedy by the action of account, covenant, debt or scire facias, is applicable, it may be said to comprise, or at all events, to be concurrent with, every other personal remedy. For example, it applies to injuries to the person, whether with or without force, and affecting either the character, the safety, or the health or quiet of the plaintiff; or to the personal rights of the plaintiff, and resulting from negligence, deceit or the like,

or from seduction or criminal conversation; or to his property, by its conversion, which is remediable by what is denominated the action of trover.

The action of replevin lay originally at common law, for the specific recovery of the property of the plaintiff, which had been taken by distress; and had for its object, as it now has, the immediate re-delivery of the property to the plaintiff, upon sufficient security to make good his claim. It has been gradually extended, until it has now become the common, as it is the only remedy, for the recovery of the possession of personal property, wrongfully taken or withheld.

Within some one of these forms of action, every injury to personal rights, which is the subject of legal redress, must be brought; and the failure to select the one which is strictly appropriate, is as fatal to the rights of the party, as his failure to sustain the merits upon which his claim to redress is founded. There is no branch of legal science upon which so much curious, and we may be permitted to add, unnecessary learning has been expended, as in the attempt to define the precise boundaries which distinguish these various forms of action; and the absurdities by which their early history and their present retention are attended, are full of instruction as to the necessity for a deliberate inquiry, into the propriety of their further continuance. They are referred back, by some of the elementary writers, to the sanction of the king's original writ, which formerly was, and even now, by fiction of law, is an essential preliminary form to the institution of a suit in the common law courts; and which, from the fact, that, from the most ancient times, it defined and determined the form of action, rendered the forms of writs and actions correlative terms, and led to the result that the former were regarded as evidence of the right.

Mr. Stephen, (one of the ablest commentators upon and defenders of this system,) refers to various conflicting authorities as to the antiquity of these writs; which he regards, not only as essential formula for the institution of a suit, but as connected with the whole scheme of actions, and as having an important relation to pleading, especially. After remarking that it [P. & P]

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is known that some of these writs are at least as ancient as the time of Henry II., (being found in the work of Glanville, who wrote in that king's reign,) he observes, that the student will in vain search the books of the science, for any distinct and satisfactory history of their original invention.-"It is said on high authority," says he, "that the more common and ordinary writs were, de communi consilio totius regni, concessa et approbata; and also that some writs existed long before the conquest."

Another learned writer, (Lord Chief Baron Gilbert,) asserts that the more ancient of them were brought from Normandy. And these vague and somewhat inconsistent statements, seem to constitute the whole substance of the information to be derived from the English writers on the subject. A learned jurist of our own country, however, (Judge Cushing, of Massachusetts,) has carefully examined the subject, and has presented a condensed history of these writs, as constituting the basis of the present forms of action; to the results of which we deem it not out of place to refer.

From their introduction into England by the Normans, the forms of writs, for many years after the Norman conquest, were devised, and the writs themselves issued by the king's chancellor and the clerks in chancery. The chancellor was the keeper of the king's great seal, by which all writs, as well as other documents emanating from the king, were authenticated. For the purpose of performing this duty, it is stated by one of the most ancient writers on the English law, that certain honest and discreet clerks, sworn to the king, were associated with the chancellor, and that by reason of their being more fully informed in the laws and customs of England, it was made their duty to hear and examine the petitions and complaints of suitors, and upon the quality of injuries shewn by them to provide due remedy by the writs of the king, which were denominated brevia.

The mode of proceeding, by means of writs framed and issued as above mentioned, so far as it is necessary to be here stated, seems to have been the following:-when any one had received an injury, for which he wished to obtain redress, he

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made application or petition to the king himself, as the fountain of justice, or rather to the chancellor, then, as now-denominated the keeper of the king's conscience; and the chancellor, or his clerks, upon the plaintiff's statement of his case, framed or selected a writ, adapted to the redress of the injury sustained. This writ was nothing more than a letter, containing a brief statement of the plaintiff's claim, addressed, in the king's name, to the sheriff of the county, where the injury occurred; in some cases, (3 Bl. Com. 274,) directing him to command. the defendant, to satisfy the plaintiff's claim, and if the defendant failed to comply, then to summon him to appear before the king's justices, to show why he had not done so; and, in other cases, (3 Bl. Com. 274,) merely directing the sheriff, without any previous command to the defendant, to summon him to appear as above, provided the plaintiff should give the sheriff security effectually to prosecute his claim. If the defendant, in the first class of cases, obeyed the command of the king, there was an end of the matter. If he did not, the sheriff commanded him to appear, as by the direction of the writ, and account for his non-compliance. The sheriff then endorsed a statement of his proceedings on the writ, and returned it to the court or justices specified. The same course was pursued, in the other class of cases; except that the sheriff did not command the defendant to satisfy the plaintiff's claim, but summoned him in the first instance, upon receiving security from the plaintiff.

These writs being thus returned, not to the chancellor, by whom they were issued, but to some other of the king's courts or justices, operated as a commission, directed by the king to his judges, to determine the controversy between the parties. They were called original writs. If the defendant appeared, according to the requisition, the plaintiff stated his case anew to the court, in a declaration, or statement of the facts upon which his claim or demand was founded. If the defendant did not appear, a new process was then issued, (not by the chancellor, but by the judge or the court, to whom the original writ, issued by the former, had been returned,) against the person or property of the defendant, with a view to compel

him to appear. This was denominated a judicial writ. The process, thus issued by the court, to compel the defendant to submit himself to its jurisdiction, agreeably to the command of the king, and all the subsequent proceedings,-including the plaintiff's declaration, the defendant's answer, (the pleadings, as they were called,) closely followed, or rather repeated the original writ, in the statement of the plaintiff's case. The forms of the original writs, which were devised and issued by the chancellor and his clerks, were inserted in a book kept in the chancery, called the register of writs, and preserved as precedents for future cases.

"When these forms had accumulated to such a number, as to provide for the most obvious cases of wrong, some of them were denominated de cursu, or writs of course; which seem to have been issued from the chancery, upon the applicant's finding pledges, paying the customary fees, and swearing to the truth of his allegations: and according to Fleta, the writs de cursu attained such a degree of authority, as precedents, that they could not be altered, but by the parliament. In the twelfth year of Henry III, the forms and precedents of all the writs de cursu then in use, which were transmitted by that king to Ireland, for the administration of justice in that country, were fifty-one in number. These writs de cursu seemed to have sufficed for the ordinary demands of suitors, and probably rendered the interference of the chancellor, in the formation of new writs, less frequent than in former times. Whether it was in consequence of the infrequent exercise of this power, or the breaking up of the old court into distinct judicatures, or the authority of the old forms, regarded as precedents, or from some other cause which can now only be conjectured, it seems, that early in the reign of Edward I., it was doubted, whether the clerks of the chancery had authority to devise new forms to meet the exigency of new cases; and it was therefore provided, by a statute enacted in the thirteenth year of that king, "that, as often as it shall happen, in the chancery, that in one case a writ is found, and in a like case, (in consimili casu,) falling under the same right, and requiring

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