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The course is concerned with procedure in civil cases, that is controversies between private individuals coming to court, and not with criminal procedure, which is dealt with in the course in Criminal Law. In modern systems of law, there is a pretty complete segregation of these two. Criminal prosecutions by the state for murder, robbery, and other crimes are dealt with quite differently from suits between private parties as to private rights, and the purposes of these two types of proceedings are different. A criminal prosecution has for its purpose the punishment of an offender against the rules which the state has laid down to govern the conduct of its citizens." A civil suit has for its objects the adjudication of a dispute between two private persons and the reparation or prevention of private injury. While there can be in practice no absolute separation of civil from criminal litigation, and while the state may be a party to civil litigation as well as the prosecutor in criminal cases, for purposes of beginning study it is important to consider the two separately.3 Most of the work of the bar is in connection with civil rather than criminal cases, and hence the curriculum of the law school is mostly concerned with the civil side of the law. It is important, however, that the student constantly consider possible relations of the civil and the criminal law in the situations involved in the cases he is studying.*

Since the law of procedure is, so to speak, the handmaiden of the substantive law, the student should consider this course as in part designed to aid his study of the other courses of the first year. He should form the habit of relating the problems discussed in this course to those dealt with in Contracts, Torts, Property, and Agency, as well as Criminal Law. He must remember that every actual case involves both substantive law and procedure, and that any separation of the two, while necessary for purposes of study, is an artificial separation.

It will be well for the student to examine the Table of Contents of this book in order to get a general view of the course. In large, the plan of study is this: First, the student will be introduced to the history and organization of the judicial system in England and the United States and to the general character of a lawsuit; second, he will study the system of procedure in actions at law, mainly actions

1 Corporations, and even the state in some cases, are regarded as private individuals for purposes of civil litigation.

2 And the proceeding is brought by and in the name of the state.

3 Thus, while the same act — e.g., stealing, may be a crime against the state which has prohibited larceny, and a private wrong, i.e., the tort of conversion to the person whose property is stolen- under our system these two aspects of the act are dealt with in different judicial proceedings.

The "civil law" as used in this connection means that part of the law which is not criminal law. The term is used in other contexts to mean the law of continental Europe and the other countries whose legal systems are based on the Roman law, as distinguished from the common law, based on the law of England, which obtains throughout most of the English-speaking world.

to recover money damages; third, he will consider the somewhat different procedural system developed in courts of equity, and in that connection the historical difference between equity and law in the common-law system; and finally, he will consider modern attempts to create a unified system of procedure in civil litigation and the most important characteristics of present-day procedure. It will be perceived that the course contemplates a considerable study of legal history as essential to an adequate understanding of the law of the present day. It is essential; and this course must be thought of as being in part a course in Legal History.'

1 The study of Maitland, The Forms of Action at Common Law (1936), is recommended as part of this course to give the student some part of the historical background necessary to an understanding of the law of procedure.



IT is of importance that the student, in order to understand the law of civil procedure and the ways in which it has developed, should have some familiarity with the organization of the courts in England and in the United States. This chapter will therefore briefly describe the earlier court system in England, and the reorganization of that system in 1875. It will then describe the system of federal courts in the United States, and add a word as to the organization of the state courts.

1. The earlier English courts. In England there have always been local courts, which are inferior courts of limited jurisdiction. It is unnecessary to enumerate them. They included county courts, courts-baron, hundred courts and others. Blackstone gives an account of them in the fourth chapter of his third book.1

Of much greater importance are the royal courts, the superior courts of justice. The courts which prior to 1875 had come to have jurisdiction over actions at law were three in number, the Common Pleas, the King's Bench, and the Exchequer.2 In addition there was the Court of Chancery, which had jurisdiction over suits in equity.

The Court of Common Pleas, or Common Bench as it was sometimes called, was early established as a permanent court, with jurisdiction to determine controversies between the King's subjects. In Magna Carta (1215) it was provided that this court should not follow the King from place to place but should be held in some fixed place, and this place was established in Westminster Hall. The court had jurisdiction to hear and determine civil controversies. It was composed in Blackstone's day of four judges, the Chief Justice of the court and three puisne justices. It had jurisdiction of actions originally brought in the court and actions removed to the court from some of the local courts. It had jurisdiction over "common pleas," that is controversies between individuals, as distinguished from "pleas of the crown," that is criminal proceedings. Its jurisdiction over private controversies, however, was not exclusive, since,

1 For a full discussion, see 1 Holdsworth, History of English Law (6th ed. 1938) 5-32, 64-193.

2 For the origin of these courts as committees of the Curia Regis, or King's Council, and their later development, see I Holdsworth, History of English Law (6th ed. 1938) 32-54, 194-242.

3 See 1 Holdsworth, History of English Law (6th ed. 1938) 200-202.


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as we shall see, the Court of King's Bench had jurisdiction over some private controversies, and gradually assumed jurisdiction over other private controversies, as did also the Court of Exchequer. The Court of Common Pleas, however, always had exclusive jurisdiction of certain actions to recover land, known as real actions, until those actions were finally abolished in the nineteenth century.1


The Court of King's Bench was established probably in the early part of the thirteenth century. It had jurisdiction over criminal cases. It also had jurisdiction over civil actions involving a breach of the peace. It had jurisdiction also over other actions brought against a person in the custody of the King's marshal of the Marshalsea Prison. It did not, however, have jurisdiction in the case of other civil actions, as for example an action of debt. By the use of a fiction it acquired such jurisdiction. If a plaintiff desired to sue a defendant for debt in the King's Bench he might first sue him for trespass, have him arrested and committed to the Marshalsea, and thereafter the court could entertain an action of debt against him. The proceeding would be begun, not by an original writ, but by what was known as a "bill of Middlesex," a process directing the sheriff to arrest the defendant to answer a charge of trespass and also (ac etiam) of debt. The charge of trespass was a sufficient ground for arresting the defendant and committing him to the custody of the marshal, and the Court of King's Bench thus acquired jurisdiction to determine the question of the indebtedness of the prisoner. Since the court was anxious to extend its jurisdiction, it came to be held that it was not necessary that the defendant should be actually arrested; it was held that an allegation by the plaintiff that the defendant had been arrested was sufficient and the defendant would not be permitted to deny the allegation. Thus, the Court of King's Bench acquired concurrent jurisdiction over all kinds of civil controversies except real actions. Later it came to be held that a proceeding in the court could be begun by an original writ as well as by a bill of Middlesex. The court was composed of four judges, the Chief Justice of England and three puisne justices.

The Court of Exchequer originally had jurisdiction over controversies affecting the King's property and his revenue. By an ingenious device the jurisdiction of this court was enlarged. If a plaintiff wished to bring an ordinary personal action against the defendant in the Court of Exchequer, he would allege that he, the plaintiff, was indebted to the King, and that the defendant had refused to discharge a liability to the plaintiff, whereby he is the less able (quo minus) to pay the King. The writ by which the proceed

1 The last reported case involving a real action appears to be Davis v. Lowndes, 1 Bing. N. C. 597 (C. P. 1835). This case involved a writ of right sued out in 1832. Real actions were abolished by statute in England in 1833. 2 For an example of a bill of Middlesex, see pp. 23-24, infra.

ing was begun was known as a "writ of Quominus." Thus, the question of the royal revenues being involved, the Court had jurisdiction over the private controversy. This court, like other courts, was only too ready to extend its jurisdiction, and therefore it became. unnecessary for the plaintiff to prove his allegation of his indebtedness to the King. It might seem to be a dangerous thing for a plaintiff to admit such an indebtedness if it did not in fact exist, but the King never appears to have taken advantage of the admission. Indeed, it came to be recognized that the allegation was purely fictitious and that its purpose was merely to confer jurisdiction upon the court over the private controversy. The court was composed of a Chief Baron of the Exchequer and three puisne barons.2

Thus gradually it came about that the three superior courts of common law had concurrent jurisdiction over actions between subject and subject, except those actions relating to land which were known as real actions, as to which the Court of Common Pleas retained its exclusive jurisdiction until they were finally abolished. In ordinary personal actions, whether they involved tort or contract, the plaintiff might select any of the three courts as the tribunal to determine the litigation. From the point of view of logic and practical convenience it would seem better to have had a single tribunal, but the development of legal institutions is not governed altogether by logic or convenience. It is curious, also, to see how the whole matter was developed through the use of fictions, but fictions have played a great part in the development of the law, both on the procedural and on the substantive side.3 The notion that fictions are foolish at best and dishonest at worst is a comparatively modern and sophisticated notion. To a more primitive state of mind the employment of fictions is an admirable device if properly used to improve the juridical system.


The judgment of one of these three courts did not necessarily end a case. It was possible by a writ of error to carry the case to a higher court. To do this it was necessary for the losing party to obtain from the Court of Chancery a writ of error. The party who lost in the court below became the "plaintiff in error," and the party who won in the court below became the "defendant in error." Originally the court of error from the Common Pleas was the Court of King's Bench, the court of error from the King's Bench was the House of Lords, and the court of error from the Court of Exchequer

1 A plaintiff who sued in the Exchequer avoided trial by wager of law. See p. 112, n. 4, infra.

2 The Court of Exchequer also had jurisdiction in equity. See Ch. XI, infra.

3 See Maine, Ancient Law (10th ed. by Pollock, 1906) 26-47, discussing the place of fictions in the development of law generally, with particular reference to the Roman law.

4 Acting in its administrative capacity as in the case of the issuance of other original writs. See p. 11, infra.

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