The first document filed in a lawsuit at common law was the writ and it generally was lengthy and served two functions. It set out the facts of the plaintiff’s complaint, and also directed the sheriff to serve it on the defendant and bring him before the court. To the writ was attached the plaintiffs declaration, which detailed the elements of the cause of action. Here is what an English writ of trespass for assault and battery looked like. This one is taken from A Treatise on the Principles of Pleading in Civil Actions by Henry John Stephen, published by Robert H. Small, of Philadelphia, in 1831. It is typical of the writs of trespass used for hundreds of years.
Before you read this writ, please do not think that this extremely archaic and complex language is typical of the material you will have to work with in law school. It definitely is not.
Here is what this writ is all about. Albert Bottom was beaten up by Charles Dawson. Bottom then started a lawsuit against Dawson for damages. The first thing his lawyer did was to go to the court clerk's office, pay the necessary fee and obtain this writ. It was then given to the sheriff for service on Dawson. The writ directs the sheriff, provided that Bottom puts up a bond and security for costs ("gages and safe pledges"), to arrest Dawson and bring him before the court, wherever it happens to be sitting at the time, two days after Halloween (the morrow of All Souls) to answer the charges and show why he should not pay Bottom damages.
George the Fourth, by the Grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, to the Sheriff of Nottingham, greeting:
Witness ourself, at Westminster, the 14th day of April in the 3rd year of our reign.
Signed, etc.
When Dawson was served with the writ, he was arrested and was held in jail until the time the sheriff produced him before the court, unless he could put up bail to guarantee his appearance. He was also served with Bottom's declaration, which looked like this:
In the King's Bench.
All Souls Term, in the 3rd year of the reign of King George the Fourth. On August 4, 1823 to wit, Charles Dawson was attached to answer Albert Bottom of a plea, wherefore he the said Charles Dawson with force and arms, at Kentbury in the County of Nolting/iam made an assault upon the said Albert Bottom and beat, wounded and ill-treated him, so that his life was despaired of, and other wrongs to him there did, to the damage of said Albert Bottom and against the peace of our Lord the now King.
And thereupon the said Albert Bottom, by Warren Tompson his attorney, complains: For that the said Charles Dawson heretofore, to wit, on the fourth day of April in the year of our Lord One Thousand Eight Hundred and Twenty-three, with force and arms, at Kentbury aforesaid, in the county aforesaid, made an assault upon the said Albert Bottom, and then and there beat, wounded and ill-treated him, so that his life was despaired of, and other wrongs to the said Albert Bottom, then and there did; against the peace of our said Lord the King, and to the damage of the said Albert Bottom of One Thousand Pounds, 1000 £; and therefore he brings his suit, wherefore he prays judgment, and his damages by him sustained, by reason of the committing of said trespasses, to be adjudged to him.
Signed, etc.
The defendant had to reply to the writ and declaration if he wished to defend the case. If a plaintiff lost the case and could not pay the amount due as set forth in the defendant's bill of costs, the plaintiff was arrested.
With respect to pleadings in the old cases, generally the defendant had several options. He could deny the allegations in a traverse and plead what was known as "the general issue" (ask for a jury trial), or he could respond by making a technical objection to the declaration in the form of a demurrer, a plea in bar, or a plea in abatement. You may come across references to these in your first year of law school. A demurrer admitted the facts alleged in the declaration to be true, but argued that the declaration nevertheless failed to state a cause of action. Other pleas might be that the plaintiff lacked legal capacity to sue (plea in bar) or that there was a similar action then pending between the same parties (plea in abatement.)
If the defendant's technical objection was upheld, the plaintiff had to file a second pleading and the process was repeated. Eventually, the various pleadings resulted in an issue being reached on which the case was tried.
Besides the common law there was another body of law which grew up, called equity. Equity courts stepped in where common law left off. Where money damages were inadequate as a remedy, equity could act. Thus, if one individual illegally drained waters over another's land, common law courts could give only money damages for the unlawful act. Equity courts, however, could issue an order to actually stop the improper drainage and to prevent it from happening again in the future. Noncompliance would result in imprisonment for contempt of court. A separate body of legal principles based on precedence was developed through the decisions of the equity courts. These courts were also under the jurisdiction of the king's chancellor. They were called courts of chancery. Instead of calling the parties "plaintiff and "defendant," they were referred to as "petitioner" and "respondent."
With the development of modern statutory code pleading, both law and equity were frequency joined into one court system, and today, in most American jurisdictions, the county trial court can usually give whatever remedy is adequate and necessary under the facts presented. But again, as in common law, it is still important to have knowledge of the basic principles of equity even though the specialized practice of the subject no longer exists.
