the king's courts, but that they fhould be heard and determined in the county with fmall charge, and little or no travel or lofs of time, for it was there accounted against the dignity and inftitution of thofe high courts to hold plea of fmall or trifling caufes; otherwife the law that was inftituted for the quiet of man, and for his defence, might be abufed to his charge, vexation, and offence. And the maxim of the common law is, quod placita de catallis, debitis, &c. quæ fummum 40 s. attingunt vel eam excedunt, fecundum legem et confuetudinem Anglia, fine brevi Regis placitari non debent. Ibid. 312.

al, if plaintiff

than the fum recovered (except

By 43 Eliz. c. 6. it is enacted, That if any Actions perfonperfonal action be brought in any of her Majefty's does not recover courts at Westminster (not being for any title or inte- more than 40 s. Teft of lands, nor concerning the freehold or inheritance no more cofts of any lands, nor for any battery), it shall appear to th the judges of the fame court, and being fo figni- the title or freefied by the juftices before whom the fame fhall be hold is in queltried, that the debt or damages to be recovered tion). therein shall not amount to the fum of 40 s. that in every fuch cafe the judges or juftices before whom fuch action fhall be pursued, shall not award the plaintiff any more colts than the fum of the debt or damages fo recovered fhall amount to, but lefs at their difcretion.

If upon a nonfuit in an inferior court 16 s. is Debt lies for 169, given for cofts, by 23 H. 8. c. 15. debt lies for it costs. in a fuperior court. Cro. Eliz. 95. 1 Wilf. 316.

Murray v. Wilfon. Stat. 4 Fac, 1. c. 3. 1 Leon. 316. cafe 344.

The ftyle of the court is, "Pleas at Weftmin- Style of the ❝fter before Alexander Lord Loughborough, and court. "bis companions, justices of our lord the king of the

"bench, of the term of Saint Hilary, in the thirtieth

year of the reign of our Sovereign Lord George "the third, by the grace of God of Great Britain, "France, and Ireland, king, defender of the faith, " &c."

The authority of this court in common cafes is The authority founded on an original writ iffuing out of the chan- of this court is

B 3

cery,

1

founded on an
original.

If party privi
leged on a wait.

Helds plea by bill

&c.

cery, being the king's mandate for them to proceed to determine the caufe; for it was a maxim among the Normans that there fhould be no proceedings in the king's court in common pleas without the king's writ; therefore a writ always iffued to warrant this court's proceedings.

But where the party is privileged, as an attorney or other perfon entitled thereto, it may hold plea on a writ of privilege, which is the first process of the court iflued against the defendant, to compel him to appear, and make his defence.

It also holds plea by bill, which is in nature of a peagainst attornies, tition to the court, against any attorney, officer, or minifter, intitled to privilege; the bill expreffes either the grievance or wrong which the plaintiff hath fuffered by the defendant, or else some fault by him committed against fome law or ftatute of the realm.

Peers, &c. may

nal bill.

A peer, knight, citizen, or burgess, or other perb- fued by origi- fon intitled to privilege of parliament, may be fued in this court by original bill, in manner as directed by the statute 12 & 13 W. 3. c. 3. on which a writ of fummons may iffue, and in default of appearance, a diftringas may ifiue to compel him thereto.

Of the Laws of England.

its moft general and What is law.

fenfe, fignifies a rule of action, prescribed by fome fuperior power, which the inferior is bound to obey. And the law of England in particular, is the rule of action prefcribed by its legiflature or fupreme power, for the well ordering of that kingdom. The law may be divided into two kinds; the lex non fcripta, the unwritten or common law; and the lex fcripta, the written or ftatute law.

The lex non fcripta, or unwritten law, includes The lex non not only general customs, or the common law, but fcripta, allo the particular cuftoms of certain parts of the kingdom; and likewife those particular laws, that are by cuftom obferved only in certain courts and jurifdictions; and are properly diftinguished into three kinds: 1. General Customs; which are the univerfal rule of the whole kingdom, and form the common law, in its ftricter and more ufual fignification. 2. Particular Cuftoms; which, for the most part, affect only the inhabitants of particular diftricts. 3. Certain particular Laws; which by cuftom are adopted and ufed by fome particular courts, of pretty general and extenfive jurifdiction. 1. As to general cuftoms, or the common law, pro- General perly fo called; this is that law, by which the proceedings and determinations in the king's ordinary courts of juftice are guided and directed. This, for the most part, fettles the courfe in which lands defcend by inheritance; the manner and form of acquiring and transferring property; the folemnities and obligations of contracts; the rules of expounding wills, deeds, and acts of parliament; the refpective remedies of civil injuries; the feveral fpecies of temporal offences, with the manner and degree of punishment; and an infinite number of minute particulars, which diffufe themfelves as extenfively as the ordinary diftribution of common juttice requires. 2. Par

B 4

cuftoms.

Particular customs.

Gavelkind,

lish, &c,

2. Particular cuftoms, are thofe which belong to particular counties, cities, towns, manors, and lordShips; and thefe were very early indulged with the privilege of abiding by their own cuftoms, in contradiftinction to the reft of the nation at large; which privilege is confirmed to them by feveral acts of parliament, Mag. Cart. 9 H. 3. c. 9. 1 Ed. 3. ft. 2. c. 9. 14 Ed. 3. ft. 1. c. 1. & 2 H. 4. c. 1.

Such is the custom of gavelkind in Kent and Borough Eng- fome other parts of the kingdom, where the lands of the father are equally divided, at his death, among all his fons; or the land of the brother, among all the brethren, if he have no iffue of his own. Vide Co. Litt. 140. Alfo the custom that prevails in divers antient boroughs, and therefore called Borough Englifh, that the youngest fon shall inherit the estate, in preference to all his elder brothers. Co. Litt. 140. b. Such is the cuftom in other boroughs, that a widow fhall be intitled for her dower, to all her husband's lands. Co. Litt. 166; but at the common law the is intitled to one third part only. Lastly, there are many particular customs within the city of London with regard to trade, apprentices, widows, orphans, &c. All these are contrary to the general law of the land, and are good only by fpecial ufage; though the cuftoms of London are alfo confirmed by an act of parliament. 8 Rep. 126. Cro. Car. 347. 2 W. & M. c. 8. ft. 3.

Lex mercatoria.

Cams must be realonable.

To this may moft properly be referred a particular fyftem of cuftoms ufed only among one fet of the king's fubjects, called the custom of merchants, or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it; being allowed, for the benefit of trade, to be of the utmost validity in all commercial tranfactions. Winch. 24.

Cuftoms must be reasonable; or rather, taken negatively, they must not be unreafonalle. Which is not, as Sir Edward Coke fays, to be understood by every unlearned man's reafon, but of artificial and

legal reafon, warranted by authority of law. Co. Litt. 62. Cake's Copyb. f. 33.

Customs ought to be certain. A cuftom that lands Cuffoms ought fball defcend to the most worthy of the owner's blood, is to be certain, void; for how hall this worth be determined? But

a custom to defcend to the next of male blood, exclufive of females, is certain, and therefore good. 1 Rol. Abr. 565. A cuftom to pay two pence an acre in lieu of tythes, is good; but to pay fometimes two pence, and fometimes three pence, as the occupier of the land pleafes, is bad, for its uncertainty. Yet a cuftom, to pay a year's improved value for a fine on a copyhold eftate, is good; though the value is a thing uncertain: for the value may at any time be ascertained; and the maxim of law is, id certum eft, quod certum reddi poteft. Co. Lit. 33. b.

Customs, though established by confent, must be cuftoms must be (when eftablished) compulfory; and not left to the compulsory. option of every man, whether he will use them or no. Therefore a cuftom, that all the inhabitants fhall be rated towards the maintenance of a bridge, will be good; but a cuftom that every man is to contribute thereunto at his own pleasure, is idle and abfurd, and indeed no custom at all.

Laftly, cuftoms must be confiftent with each Cofme mult other one cuftom cannot be fet up in oppofition be confiftent, to another. For if both are really customs, then both are of equal antiquity, and both eftabiifhed by mutual confent: which to fay of contradictory customs is abfurd. Therefore, if one man prefcribes that by custom he has a right to have windows looking into another's garden; the other cannot claim a right by custom to top up or obstruct those windows; for these two contradictory cultoms cannot be both good, nor both ftand together. He ought rather to deny the existence of the former cuftom. 9 Rep. 58.

The written laws, or leges feripta, are ftatutes, Leres feripte, als, or edicts, made by the king's majesty, by and what. with the advice and confent of the lords fpiritual

and