Definition
By bill refers to a historical common law method of commencing a civil action by capias — a writ directing the sheriff to arrest the defendant and bring him before the court — rather than by original writ, which was the standard initiating process. When a plaintiff chose this procedural route, the action was said to be commenced "by bill" as opposed to "by writ."
The most familiar application was the bill of Middlesex, the customary mechanism for initiating actions in the Court of King's Bench. Under that device, a plaintiff filed a bill alleging a trespass committed in Middlesex County (over which King's Bench had undisputed jurisdiction), which justified issuance of a capias. Once the defendant was nominally in custody, the court's jurisdiction attached and the real underlying claim — regardless of its nature or county of origin — could proceed. This was a deliberate procedural fiction that expanded King's Bench jurisdiction at the expense of the Court of Common Pleas.
A practical consequence of commencing an action by bill rather than by original writ: the plaintiff was not required to state the form or nature of the action in the initiating process. The bill functioned as the jurisdictional hook; the substance of the claim emerged later in the pleadings.
Common Confusion
"By bill" is easily confused with other bill-related procedural terms — particularly the bill in equity (a pleading filed to commence a suit in chancery) and a bill of particulars (a demand for specificity in pleading). These share the word "bill" but occupy entirely different procedural universes. A bill in equity initiated a suit in a court of conscience; a bill of Middlesex initiated a common law action by fictional capias. Researchers encountering "by bill" in historical records should resist importing equity procedure concepts into what is a purely common law process.
Why It Matters in Research
This term is essentially extinct in modern practice. No American jurisdiction commences actions by capias in place of a summons or complaint as a general procedural matter, and the fictional jurisdictional devices that made "by bill" useful — like the bill of Middlesex — were abolished in England by the Uniformity of Process Act 1832 and swept away entirely by the Judicature Acts. American procedural reform, culminating in the Federal Rules of Civil Procedure (1938) and equivalent state reforms, replaced the entire system of original writs and capias fictions with notice pleading by complaint and summons.
Researchers will encounter "by bill" primarily in:
— Pre-nineteenth-century English common law materials, especially records and treatises concerning King's Bench practice.
— Early American state court records and reporters, particularly from jurisdictions that preserved English common law forms longer than others. Pennsylvania decisions are especially relevant: Bouvier's notes Pennsylvania following the English rule on related procedural questions, and early Pennsylvania reporters (pre-1850) reflect King's Bench-style practice more directly than many other states.
— Pleading treatises of the formative period, particularly Chitty's Pleading, which Bouvier cites directly and which remains the authoritative guide to understanding what these initiating forms required (or did not require) of the pleader.
The key research trap: a document described as filed or commenced "by bill" in an early American court record does not mean it was filed in equity. Confirm the court. If it is a court of common law jurisdiction, "by bill" signals the capias/bill of Middlesex mechanism, not equitable procedure.
Historical Dictionary Support
Bouvier's Law Dictionary provides the operative definition: "Actions commenced by capias instead of by original writ were said to be by bill," citing Blackstone's Commentaries (3 Bla. Com. 285, 286) and a New York reporter (5 Hill 218). Bouvier further notes that in actions commenced by bill, it is not necessary to notice the form or nature of the action, citing Chitty's Pleading (1 Chit. Pl. 283).
Blackstone is the foundational authority here. His Commentaries explain the bill of Middlesex and the latitat (the follow-on writ used when the defendant could not be found in Middlesex) as the twin engines of King's Bench's expanded jurisdiction — a deliberate, centuries-long encroachment on Common Pleas jurisdiction through procedural fiction.
No other historical dictionary in the current Law Mind corpus addresses this term independently. The absence is not surprising: by the time most American legal dictionaries were being systematically compiled in the mid-to-late nineteenth century, the practice was already moribund. Bouvier preserves the definition because his earlier editions (1839 onward) were compiled while some institutional memory of these forms remained alive in American practice.
What historical sources collectively miss: they do not address how long variant forms of "by bill" practice persisted in individual American states after English abolition, nor do they trace the specific statutory reforms by which each American jurisdiction displaced the old writ system. Researchers needing that information must go to individual state procedural histories.
Jurisdictional Note
"By bill" as a living procedural mechanism is abolished across all American jurisdictions. Its relevance is purely historical. Pennsylvania and New York (given the 5 Hill citation in Bouvier) appear most prominently in surviving American case law touching this procedure, but any early American common law jurisdiction applying English procedural forms may yield relevant materials.