The service of the writ is in all cases the most important step in the cause, as it is the foundation of all the future proceedings therein; and, the law, accordingly, in many cases specially provides how service is to be effected. Thus, service on a husband is deemed good service on the wife, unless the wife is to be served separately. So where an infant is defendant, service on the father or guardian is in general good service on the infant. Where a firm is sued, the writ may be served upon a partner or on a manager at the principal place of business. And whenever provision is made for service of process upon a corporation, or on the inhabitants of a hundred, or any society or fellowship, the writ must be served in the manner so provided. In an action to recover land, a copy of the writ, in case of vacant possession, may be posted upon the door of the dwelling-house or other conspicuous part of the property. In admiralty actions in rem, service is effected usually at the same time that a warrant of arrest, whether against ship, freight, or cargo, is executed. This is done by the marshal or his officer nailing or affixing the writ for a short time on the mast, and, on taking it off, leaving a true copy fixed in its place. A similar proceeding is resorted to where the cargo has been landed; but if it is in the custody of a person who will not permit access to it, service may be made upon the custodian.

Upon the service of the writ, the next step taken in a defended action is the entry of an appearance by or on behalf of the defendant. If this be not done, the plaintiff may sign judgment by default, and proceed to recover the debt or damages, or the possession of the property to which he is entitled, the administration of the estate of which he is a creditor, the dissolution of his partnership, or whatever else he may have claimed by his writ. Should the defendant have inadvertently neglected to appear, so that judgment by default has been signed, he is not necessarily debarred from still disputing the justice of the plaintiff's claim; for it has long been a matter of course to allow a defendant to appear on an affidavit of merits. He must, however, account in some way for not having entered an appearance; he must also pay the costs of the application; and as he is obtaining an interference of the court on his behalf calculated to delay the plaintiff, conditions may be imposed on his being allowed to appear; for instance, that he shall plead within a fixed time, or that he bring money into court.

The judgment in default of appearance necessarily varies according to the nature of the claim made by the writ. In cases where a debt is claimed, judgment by default is usually final. Where damages are sought to be recovered, the plaintiff's claim cannot be endorsed on the writ; for how, in an action for breach of promise of marriage, for a nuisance, or the like, can any court permit the plaintiff to be a judge in his own cause by allowing him to assess his own damages, as it would do if he were permitted to obtain judgment for any amount he chose to claim? But as by failing to appear, the defendant has admitted that the plaintiff is entitled to redress of some kind, the court therefore gives interlocutory judgment, quod recuperit, that is, that the plaintiff do recover the damages sustained by him; and then proceeds to inform its conscience of the amount for which final judgment is to be given, either by a writ of inquiry directed to the sheriff to assess the plaintiff's damages, or, if the plaintiff's claim is substantially a matter of calculation, by one of its own officers.

If no appearance be entered in an action for the recovery of land, the judgment will be that the person whose title is asserted in the writ shall recover possession. Where a claim for mesne profits or arrears of rent has been made, the plaintiff will proceed to assess his damages. Indeed, in most actions, and in those not specially provided for by law, if the defendant does not appear, the action proceeds as if he had appeared.

There is, however, an exceptional procedure which may be adopted by the holder of an unpaid bill of exchange or promissory note, which is closely connected with the subject of judgment by default. Formerly a plaintiff must have sued out a writ of summons, on which, in case of non-appearance, he obtained a judgment by default. But it was always open to the defendant to appear and plead a variety of fictitious defences, the sole effect of which was to compel the plaintiff to proceed to trial, and thus create delay and expense. This practice became so much of a reproach to the administration of justice, that the judges became ashamed of it, and the legislature was induced to place under restriction the right even of a defendant to appear to the action. All actions on bills or notes, brought within six months after the same have become payable, may now be commenced by a writ of

summons in a special form; which, instead of commanding the defendant to enter an appearance, warns him that, unless he obtains leave to appear, and do appear accordingly, the plaintiff may proceed to judgment and execution. And when served with this species of writ, a defendant, if he has a defence, must apply for and obtain leave to appear, without which he cannot do so; and unless he obtains such leave within the time allowed, judgment by default may be signed, and execution issued.

Leave to appear may, however, be obtained, as a matter of right, on the defendant paying into court the sum indorsed on the writ;-or upon affidavits which disclose a legal defence, as that the note was given to the plaintiff by way of accommodation and without value;-or an equitable defence, as that the bill was accepted by the defendant, as chairman of a company, and not on his own account;-or such facts as would make it incumbent on the holder of the instrument to prove that he gave value for it, as that it had been obtained from the defendant by fraud, or was tainted with illegality. But terms may also be imposed on the defendant, for instance, that he shall give security for the amount claimed.

Thus much for the writ of summons, which is only meant to bring the defendant into court, in order to contest the suit, and abide the determination of the law. When he does not appear, he is considered to admit the justice of the demand; and the sovereign then, by his delegates the judges, sitting in his courts of justice, awards to the plaintiff that redress to which he is by law entitled, and which by his writ he has demanded. When the defendant does appear, it must be either in person or by a solicitor. In probate actions, and admiralty causes in rem, a person not named in the writ may intervene, on filing an affidavit showing how he is interested, in the former class of cases, in the estate of the deceased; in the latter, in the res under arrest. And in an action, also, for the recovery of land, a person not named as a defendant may appear, on filing an affidavit that he is in possession of the land either by himself or his tenant, just as in the old action of ejectment the landlord was admitted to defend. Both parties being thus before the court, next follow the pleadings, which are to be considered in the next chapter.

CHAPTER XII.

OF PLEADING.

THE pleadings of the plaintiff and defendant were formerly put in by their respective counsel ore tenus, or viva voce, in court, and minuted down by the chief clerks or prothonotaries; whence in our old law French they are frequently denominated the parol. That practice gave way in time to the more convenient course of producing previously prepared written pleadings; which innovation was in its turn supplanted by the modern system, all the pleadings in an action being now simply interchanged between the solicitors of the parties.

There is a course open to the parties, however, which may render formal pleadings unnecessary. For as the object of all pleading is to ascertain what is in issue between the litigants, whether they disagree upon a matter of fact or on a question of law, there is no reason, if they can ascertain this without pleadings, why these should be resorted to. And they are accordingly allowed to take the simplest mode of stating the question at issue, by what is called a special case, for the decision of the proper tribunal. If the question is one of fact, it may be sent for trial by a jury; if one of law, the court can decide between the parties.

But if, as is most usual, the parties do not agree that the matters in dispute betwixt them shall be decided in this way, these must be evolved by the pleadings: the first of which is the statement of claim; in which the plaintiff sets forth as concisely as may be the material facts on which he relies.

In local actions, as for an actual trespass, or for waste, &c., affecting land, the plaintiff has hitherto been obliged to allege his injury to have happened in the very county in which it really did happen; but in transitory actions, for injuries that might have happened anywhere, as debt, slander, and the like, the plaintiff might have selected whatever county he pleased as

the venue, the visne, vicinia or neighbourhood from which the jury was to come; and then the trial must have been had in that county. If the defendant, however, made affidavit that the cause of action, if any, arose not in that but in another county, the court directed a change of the venue, unless the plaintiff showed good cause for retaining the venue where he had laid it. There is now, however, no local venue for the trial of any action; but where the plaintiff proposes to have the action tried elsewhere than in Middlesex, he must in his statement of claim name the county in which he proposes that the action shall be tried, and this, unless altered, will be the venue; the result being that it is for the court to determine, in case of dispute, where the action shall be tried. The venue will always be changed on an affidavit of special facts, as that a fair trial cannot be had in the county where it is laid, or that the witnesses live in the county to which it is proposed to change it.

The original writ, which has been described already, was the authority to the judges to give the plaintiff that redress which the law awarded, for the particular injury of which he complained, and no more. He could not consequently join different causes of action in one suit. But the operation of the writ of summons is not limited in any way; it calls on the defendant simply to answer the plaintiff in an action: and therein he may seek redress for every complaint he has to make against the defendant. If it should afterwards appear that any such complaint cannot be conveniently tried or disposed of together with another, separate trials may be had.

The statement of claim must conclude with a demand of the relief which the plaintiff seeks. In claims for a debt or for damages, it is a sum of money in detinue it is a return of his goods, and damages for their detention; or if they have been returned, damages only. In administrations and dissolutions of partnership it is to have the accounts taken, and, if necessary, a receiver appointed; in some cases an injunction, in others a mandamus may be claimed.

If in actions at law the plaintiff neglected to deliver his statement of claim, or as it was formerly called, his declaration