himself against the Plaintiff's Suit, that is once by the Service of the Writ, and next by the Notice

felf from Gaol with the Addition of Cofts? Whereas, had the Arreft been for 4 or 57. only, a Defendant might have raised it, or got Friends, much fooner, to relieve him.

But now, as the Arreft is for 10l. a Plaintiff is very unwilling the Defendant should be discharged; and, to punish him, ftill proceeds to prevent it, and thereby increafes the Hardship on both; for the Plaintiff's Revenge is fharpened by reafon of his Cofts, and the fame Cofts is an Addition to the Defendant's Debt, and thereby his Discharge is rendered still more difficult; for these Costs, upon a Writ of Inquiry, may be 71. or 87. at the leaft; and 147. or 157. if by Verdict on a Trial: generally they are much more,

with

The not holding a Man to Bail for less than 10l. and that by Oath of the Plaintiff, was defigned to favour a Man's Liberty; now fuppofe a Man is ferved with a Copy of a Writ, for a juft Debt of 41, or 5. only, the only Check upon the Defendant for the Non-payment is the growing Cofts; and what is then the Confequence, refpect to both Parties? The Plaintiff must proceed to Judgment by Inquiry, or Verdict, to prevent his being non-profs'd, and add fuch large Cofts to his Debt, before he can receive any Benefit by his Suit, that are fufficient to deter any Plaintiff from fuing at all, where the Payment is the leaft doubtful; and 'tis evident an experienced Tradesman will rather lofe fuch a Debt, than rifque a certain great Expence in endeavouring to get it. This is an Occafion for a Defendant to exult, and run in Debt wherever he can get Credit; and as to the Defendant, those Cofts are fuch an Addition to a fmall Debt, that it is impoffible to expect a Man, who can't pay 41. or 57. fhould pay 151. or 207. and if not, his Body, Goods, and Chattels, muft be, and continue to be, liable to be taken in Execution, to the immediate Ruin of himself and Family, and remain a Difcouragement to his future Endeavours, for these are large

F

Cofts

Notice of a Declaration being left in the Office; and without this Liberty given to the Plaintiff thus to proceed, he would be in no Capacity of receiving any Benefit by his Suit, nor the Court of giving any Judgment or Relief to him therein.

However, it may be observed, that this, and many other Methods of the present Practice, are quite opposite and contradictory to the old, established, and fundamental Laws and Customs of the Courts, in many Inftances, as may be obferved throughout. (See

Cofts for a poor Man to pay. However, the induftrious Creditor is the greatest Sufferer; his Debt is moft often loft, and his Cofts are a certain Addition to it; and it is difficult to point out a Method to fave or prevent it; unless a Plaintiff, by eftablishing a fmall Debt by Oath, might arreft a Defendant, and after fome short Time of Imprisonment, if the Debt was not paid, the Defendant fhould be releafed both from Gaol and the Debt. Such Punishment, when rendered certain, and proportioned to the Debt, might deter the wild, the carelefs, and difhoneft Part of Mankind, from contracting Debts but with an Intent to pay them. Then the Plaintiff would know his Lofs, and be at Liberty, not to add fuch extraordinary Cofts to it, as he now must. It need be no Bar to a Man's giving Bail, and contefting the Suit; and it would prevent fuch long Imprison. ments, for fmall Sums, that poor Prifoners labour under, It would prevent a whole Family's being ruined (as is often the Cafe) by an Execution against the Goods, &c. It is difficult to fay what, but fome fuch Method might be fubftituted to fave the Plaintiff's Expence in proceeding, who in general is the Sufferer, and the long Imprisonments poor Men moft frequently endure, &c.

poft.)

poft.) However it is an excellent Law, and thews how much the Proceedings, or Pleadings in a Suit, want to be regulated, and made agreeable to the prefent Mode of Practice, without harbouring fo much Obfcurity, and unintelligible References to ancient Matters as they do.

- After the Defendant has appeared to the Plaintiff's Process, or in cafe the Plaintiff appears for him, according to the above new established Method of Practife, the next regular Proceeding in a Suit is the Plaintiff's Count, or Declaration, exhibiting his Complaint or Cause of Action; which used, and is now Suppofed, to be done by the Bill or Original Writ, filed in the refpective Courts; though, in fact, neither the one nor the other is but very rarely or ever done, except, as obferved, against Prisoners, &c. neither of them being now requifite at the Commencement of a Suit, they being helped by the Statute. And therefore they may, with great Reafon, be laid afide; efpecially, as by what has been faid, and as it will evidently appear, they only (when now) occafionally used) tend to the increafing the Expence of the Suit, and multiplying the Proceedings, without the leaft Neceffity for them.

Df the Declaration.

A Declaration*, or Count, is an Inftrument framed to fet forth the Complaint or Demand of the Plaintiff or † Demandant, against the Defendant or † Tenant; and which used, and ought to contain, the whole Matter or Subftance thereof.

The original Defign, and principal Eftablishment of the Court of King's Bench, after the making of Magna Charta, being to determine criminal Proceedings, it is faid, Civil Causes were the By-bufinefs of this Court, and entered by way of Memorandums; from which it may be concluded, that the Declaration was begun with the fame Memorandum, which is now prefixed before the Iffue, (fee poft.) it feems to have been fo. But to begin on this Head with more Certainty:

In the Court of King's Bench, the Declaration used to be drawn from the Bill then filed by the Clerks in the King's Bench Office, who were

*Though a Declaration and Count may be fometimes confounded, yet a Count more properly fignifies the Declaration in the Original Process, and chiefly ufed in' Real Actions in the Common Pleas; it feems to come from the French Word Counter, or Contor, to declare: So Serjeants at Law have been called Counters, or Contours; and at this Day we call their paffing a Recovery at Bar, Counting at Bar.

+ Demandant and Tenant were Terms ufed in Real Actions only, in the Common Pleas, and are difufed with

them.

then

then many, and did the Bufinefs therein for the Attornies at large, or for those who had not Seats there; in like Manner as the Clerks in the Exchequer of Pleas do now, for these Clerks, in Right of their being Clerks in the Office, were called Attornies of the Court; and no Attornies at large, till after the Fire of London, were admitted to file their own Pleadings, and it was from thofe Clerks that the Clerk of the Declarations received his Fee of 2 s. a Term for * pyeing, filing, and keeping the Declarations; and 'tis fuppofed they paid him as well for the Attornies at large who employed them as for themselves.

The Bill or Declaration being † ingroffed and filed by the Plaintiff's Clerk, (which was done for the entring up Continuances thereon) he then delivered a Copy of it to the Defendant's Clerk, who filed the Common Bail, who taking a Copy of it for his own and Client's Ufe, returned it again the next Term when he came to plead, with his Plea (if he pleaded the general Issue) wrote on the Side of it, (or

This word pyeing, as made ufe of in an old Rule of Court, fignifies the felecting the Declarations from that confufed Manner in which they were brought in, and reducing them into an alphabetical Order, for the more ready finding them, &c. It is a Term yet in Use among the Printers, but here it fignifies the Reverse of this, for they call pyeing the caiting away the Letters out of the Frame, or Box, confufedly together; and this they call making Pye.

Ingroffing, filing and continuing, have been long difufed; but it is yet charged for, as done previous to the delivering, or filing the Declaration.