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PART SECOND.

PART II.

OF THE PRACTICE OF THE SUPREME COURT IN THE PRINCIPAL AND
DIRECT PROCEEDINGS TO JUDGMENT, IN

PERSONAL

ACTIONS

BROUGHT FOR THE RECOVERY OF ANY DEBT, OR FOR DAMAGES
ONLY.

CHAPTER I.

OF THE MODES OF COMMENCING PERSONAL ACTIONS.

chapter.

The modes of commencing actions of which we shall treat Subject of in this division, are by capias ad respondendum, and by original writ. These are the remedies of general use and application, although in particular cases and against particular persons, actions may be otherwise commenced, as by bill against attornies and officers of the court, and by attachment against absent or absconding debtors.

The history and origin of these writs have been given in a previous part of the work: in the chapters which follow we shall speak of their nature and incidents, and of the duties of officers under them.

ment of ac

ling declara

It is proper here to observe, that there is provided by commencethe revised statutes a new mode of commencing personal tions by fiactions against all persons, whether privileged from arrest tion. or not. A declaration must, in such case, be filed in the office of one of the clerks of this court, or if the action be commenced in a court of common pleas, with the clerk of the

Service.

court of the county in which the defendant resides, and a rule entered requiring the defendant to plead to the declaration according to the rules of the court. A copy of the declaration, and notice of the rule, must be personally served on the defendant. Upon due proof of the service of a declaration personally on all the defendants in the cause, it is made the Appearance, duty of the clerk to enter their appearance in the same manner as if they had endorsed their appearance on a capias; and their default may be entered for not pleading, and the same proceedings had against them in all respects as if they had appeared.2

&c.

SECTION I.

OF THE ORIGINAL WRIT AND PROCESS THEREON.

When actions may be commenced by original.

upon

3

The original writ was till lately an universal remedy: actions might have been commenced by means of it, in all cases and against all persons. Whether it still continues so, depends the construction given to a section in the revised statutes, which enacts that actions brought for the recovery of a debt or for damages only, "may be commenced either," by capias, by summons against corporations or by filing a declaration, &c. If these words are to be understood in a restrictive sense, as meaning that such actions must be commenced in one of the ways therein enumerated, then, of personal actions, those alone which are against corporations can be commenced by original. There are other sections which would seem to favour this construction. This is a matter practically of no consequence, as in actions against individuals, the capias is more convenient and universally used.

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court into which returnable.

No particu

of days need

Teste, return, &c.] Formerly the original writ issued out of the court of chancery; but now "original writs, whenever Issue out of the same shall be necessary, shall issue out of and under the seal of the court in which they shall be returnable."4 It was likewise requisite that in original writs fifteen days should intervene between the teste and the return, but now it is pro- lar number vided that such writs shall be tested in the same manner as intervene beother writs issued out of the same court;5 and in another part and return. of the revised statutes it is declared "that it shall not be necessary to have any particular number of days intervene between the teste and return day of any process except writs of capias ad satisfaciendum, when issued for the purpose of charging bail."6

tween teste

quod reddat.

Nature and kinds.] In actions of account, covenant, debt Præcipe and annuity, the original writ is called a præcipe, or præcipe quod reddat, and is, in the alternative, giving the defendant an option either to do what he is required, or show cause to the contrary. In assumpsit and actions for wrongs, it is termed a pone, or si te fecerit securum, and is peremptory, requiring Pone. the defendant to show cause in the first instance. The former is used in actions where something certain is demanded, as to perform a specific covenant, to pay a liquidated debt: the latter where nothing is specifically demanded, but satisfaction for an injury, or the breach of a parol agreement, where the damages are not mere matter of calculation, but the intervention of a court is necessary to obtain complete redress.

These writs derive their name from the words with which Security. they commence. The security, spoken of in the si te fecerit securum, is common to both writs: the whole of it is at present mere matter of form; John Doe and Richard Roe are always

4 R. St. P. 3. Ch. 3. T. 2. s. 8.

Vol. 2. p. 277.

5 Ib.

R. St. P. 3. Ch. 8. T. 17. s. 31.

Vol. 2. p. 555.

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