Page:Halsbury Laws of England v1 1907.pdf/260

 ;

Action.

38 Sect.

1.

Old Forms of Actio n.

Common counts.

though the statute did not expressly give a right

of action for the

penalty (g).

Amongst actions of debt on simple contract were what were called the " common counts " i.e., (1) money lent; (2) money paid by the plaintiff at the defendant's request (3) money received by the defendant to the use of the plaintiff; (4) money due on account stated (the foregoing were called the " money counts ") (5) goods sold and delivered ; (6) goods bargained and sold (7) interest on money due and forborne at interest at the defendant's request (8) work done and materials used. In early days the complaint ran that the debtor unjustly deforced" (h) his creditor of his money or chattels but in course of time the formula changed to Debet et detinet. The latter word was omitted in vicontiel writs (i) whilst, when the action was brought against an executor for his testator's debt, the writ ran " quod detinet " only (k).











Scire facias.

(2) Actions

ex

delicto.

Attaint.

58. The writ of scire facias (I) was used when it was desired to obtain execution on a judgment, statute merchant, recognisance etc., for the sum recovered or acknowledged to be due. It also lay where a demandant who had recovered hereditaments in a real action did not obtain possession of the land within a year and a day. Scire facias on a judgment was a continuation of the former action, but on a recognisance etc. it was an original proceeding; at common law it did not lie in respect of personal actions, so that, if a plaintiff did not succeed in getting execution on his judgment within a year and a day, he had to commence a new action on a new original writ. The Statute of Westminster the Second however, gave scire facias to the plaintiff in a personal action to revive the judgment. The writ was a judicial writ; but, as the defendant was allowed to plead to it, it was regarded in law as an action («). An original writ of scire facias might issue out of the Chancery at the suit of the King on behalf of a subject to repeal letters patent. 59. The action of attaint

(o)

lay

when

a false verdict

was given.

At common law the jury w^ho had given the false verdict were imprisoned, their lands forfeited, their wives and children turned out of their possessions, and their goods forfeited to the King, and themselves outlawed. The penalty was mitigated in the reign of Henry VIII. (2^), and the form of action abolished in the reign of George IV. (q). 1 Eoll. Abr. 598, pL 18. {h) Glanvill, lib. x. c. 2, " deforceat."

{y)

Eeg. Brev. Dig. 139. Nat. Brev. 119 m_. (l) Bac. Abr. tit. "Execution," H. Ckown Practice. (?)

{k) Fitz.

As

to the

modern use

of the writ, see title

(m) 13 Edw. 1, stat. 1, c. 45. Pulteney (n) Co. Lit. 290 b, 291 a; Grey v. Jones (1764), 2 Wils. (k. b.) 251 V. Townson (1779), 2 Wm. Bl. 1227 Winter v. Kretchman (1787), 2 Term



Eep. 45. Eitz. Nat. Brev. 105. Ip) 23 Hen. 8, c. 3. Iq) 6 Geo. 4, c. 50, s. 60. (0)