CHAPTER I. OF THE PROCEEDINGS IN AN ACTION, FROM ITS COMMENCEMENT TO ITS TERMINATION.
Actions are divided into Real, in which there is often much sham; Personal, in which the personality is frequently indulged in by Counsel, at the expense of the witnesses; and Mixed, in which a great deal of pure nonsense sometimes prevails. The Legislature being at last sensible to the shamness of Real, and the pure nonsense of Mixed actions, abolished all except four, and for the learning on these subjects, now become obsolete, we must refer to the "books," which have been transferred to the shops of Butter, from the shop of Butterworth.[8]
There are three superior Courts of Common Law, one of their great points of superiority being their superior expense, which saves the Common Law from being so common as to be positively vulgar; and its high price gives it one of the qualities of a luxury, rendering it caviare to the million, or indeed to any but the millionaire. These Courts are the Queen's Bench—a bench which five judges sit upon; the Exchequer, whose sign is a chess or draught-board—some say to show how difficult is the game of law, while others maintain it is merely emblematic of the drafts on the pockets of the suitor; and thirdly, the Common Pleas, which took its title, possibly, from the fact of the lawyers finding the profits such as to make them un-Common-ly Pleas'd.
The real and mixed actions not yet abolished, are—1st, the Writ of Right of Dower, and 2d, the Writ of Dower; both relating to widows; but as widows are formidable persons to go to law against, these actions are seldom used. The third is the action of Quare Impedit, which would be brought against me by a parson if I kept him out of his living; but as the working parsons find it difficult to get a living, this action is also rare. The fourth is the action of Ejectment, for the recovery of land, which is the only action that can not be brought without some ground.
Of personal actions, the most usual are debt, and a few others; but we will begin by going into debt as slightly as possible. The action of debt is founded on some contract, real or supposed, and when there has been no contract, the law, taking a contracted view of matters, will have a contract implied. Debt, like every other personal action, begins with a summons, in which Victoria comes "greeting;" which means, according to Johnson, "saluting in kindness," "congratulating," or "paying compliments at a distance;" but, considering the unpleasant nature of a writ at all times, we can not help thinking that the word "greeting" is misapplied. The writ commands you to enter an appearance within eight days, and, by way of assisting you to make an appearance, the writ invests you, as it were, with a new suit.
The action of Covenant lies for breach of covenant, that is to say, a promise under seal; and under wafer it is just as binding, for you are equally compelled to stick to it like wax.
The action of Detinue lies where a party seeks to recover what is detained from him; though it does not seem that a gentleman detaining a newspaper more than ten minutes at a coffee-house would be liable to detinue, though the action would be an ungentlemanly one, to say the least of it.
The action of Trespass lies for any injury committed with violence, such as assault and battery, either actual or implied; as, if A, while making pancakes, throws an egg-shell at B, the law will imply battery, though the egg-shell was empty.
The action of Trespass on the Case lies, where a party seeks damages for a wrong to which trespass will not apply—where, in fact, a man has not been assaulted or hurt in his person, but where he has been hurt in that tender part—his pocket. Of this action there are two species, called assumpsit, by which the law—at no time very unassuming—assumes that a person, legally liable to do a thing, has promised to do it, however unpromising such person may be; and trover, which seeks to recover damages for property which it is supposed the defendant found and converted, so that an action might perhaps be brought in this form, to recover from Popery those who have been found and converted to the use, or rather lost and converted to the abuses, of the Romish Church.
Having gone slightly into the different forms of actions; having just tapped the reader on the shoulder with a writ in each case, which, by the way, should be personally served on him at home, though the bailiff runs the risk of getting sometimes served out, we shall proceed to trial—perhaps, of the reader's patience—in a subsequent chapter.