Imágenes de páginas


Paga Ouster from freeholds is affected by, gained by the statute of limitations.Abatenient. II. Intrusion. III.

Remedy, in both cases : by a mero
Disseisin. IV. Discontinuance. V. writ of right, the highest writ in the
167 law

190-197 Abatement is the entry of a stranger, after the death of the ancestor, before

CHAPTER XI. the heir

167 & Intrusion is the entry of a stranger, OF DISPOSSESSION, OR OUSTER, or after a particular estate of freebold is CHATTELS REAL

198 to 201 determined, before him in remainder 1. Ouster from chattels real is, I. From or reversion

169 estales by statute and elegit. II. From & Disseisin is a wrongful putting out of an estate for years

199 him that is seized of the freehold 169 2. Ouster, from estates by statute or ele. 7. Discontinuance is where tenant in git, is effected by a kind of disseisin.

tail, or the husband of tenant in fee, Remedy: restitution, and damages ; makes a larger estate of the laud than by assise of novel disseisin

198 the law alloweth

171 3. Ouster from an estate for years, is ef8. Deforcement is any other detainer of fected by a like disseisin or ejectment.

the freehold from him who hath the Remedy: restitution and damages; I. property, but who never had the pos- By writ of ejectione firme. II. By session

172 writ of quare ejecit infra terminum 199 9. The universal remedy for all these is 4. A writ of ejectione firme, or action of

restitution or delivery of possession, trespass in ejectment, lieth where and, sometimes, damages for the de- lands, &c., are let for a term of years, tention. This is effrcted, I. By mere and the lessee is ousted or ejected entry, II. By action possessory. III. from his term ; in which case he shall By writ of right


recover possession of his term, and 10. Mere entry on lands, by him who damages

193 hath the apparent right of possession, 5. This is now the usual method of try: wil (if peaceable) devest the mere ing titles to land, instead of an action possession of a wrong-doer. But for. real: viz. by, I. The claimant's mak. cible entries are remedied by imme. ing an actual (or supposed) lease upon diate restitution, to be given by a jus. the land to the plaintiff. II. The tice of the peace

175-179 plaintiff's actual (or supposed) entry 11. Where the wrong-doer hath not only thereupon. III. His actual (or supmere possession, but also an apparent posed) ouster and ejectment by the deright of possession; this may be de. fendant. For which injury this action vested by him who hath the actual right is brought, either against the tenant, of possession, by means of the posses. or (more usually) against some casual sory actions of writ of entry, or assise 179 or fictitious ejector; in whose stead 12. A writ of entry is a real action, which the tenant may be admitted defendant,

disproves the title of the tenant, by on condition ihat the lease, entry, and shewing the unlawful means under ouster be confessed, and that nothing which he gained or continues posses. else be disputed but the merits of the sion. And it may be brought, either title claimed by the lessor of the plain. against the wrong-doer himself; or in


200-206 the degrees, called the per, the per and 6. A writ of quare ejecit infra terminum cui, and the post

180 is an action of a similar nature : only 13. An assise is a real action, which not brought against the wrong-doer or

proves the title of the demandant, by ejector himself, but such as are in pos. shewing his own, or his ancestor's session under his title

207 possession. And it may be brought either to remedy abatements; viz. the

CHAPTER XII. assise of more of ancestor, fc.: or to


208 to 2.3 remedy recent disseisins; viz. the as- 1. Trespass is an entry upon, and da. sise of novel disseisin

184-190 mage done to, another's lands, by one's 11. Where the wrong-doer hath gained self, or one's cattle ; withont any law.

the actual right of possession, he who ful authority, or cause of justification: bath the right of property can only be which is called a breach of his close. remedied by a writ of right, or some Remedy: damages; by action of tres. writ of a similar nature. As, 1. Where pas3 quare clausum fregit : besides that such right of possession is gained by of distress damage feasant. But, unthe discontinuance of tenant in tail.

less the title to the land come chiefly Remedy, for the right of property : by in question, or the trespass was wilful writ of formedon. II. Where gained or malicious, the plaintiff (if the dama. by recovery in a possessory action, ges be under forty shillings) shall re had against tenants of particular es- cover no more costs than damages 208-316 tales by their own de!ault. Remedy: by writ of quod ei deforceat. III. Where

CHAPTER XIII. gained by recovery in a possessory ac.


216 10 310 tion, had upon the merits. IV. Where 1. Nvisance, or annoyance, is any thing



Page that worketh damage, or inconveni- hereditament, in their regular and law. ence: and it is either a public and ful enjoyment of it

236 common nuisance, of which in the next 2. Disturbances are, I. Of franchises. Look; or, a private nuisance, which is II. Of commons. Ill. Of ways. IV. any thing done to the hurt or annoy.

Of tenure. V. Of patronage

236 ance of, The corporeal, II. The in- 3. Disturbance, of franchises, is reme

corporeal, hereditaments of another 216 died by a special action on the case ; 2. The remedies for a private nuisance for damages

236 (besides that of abaiement), are, I. 4. Disturbance of common, is I. Inter. Damages ; by action on the case commoning without right. Remedy: (which also lies for special prejudice damages; by an action on the case, by a public nuisance). II. Removal or of trespass : besides distress da thereof, and damages ; by assise of mage feasant; to compel satisfaction. nuisance. III. Like removal, and da. II. Surcharging the cominon. Rememages; by writ of quod permittat pros

dies: distress damage feasant; to ternere

219 compel satisfaction : action on the

case; for damages : or, writ of adCHAPTER XIV.

measurement of pasture; to appor

tion the common ;-and writ de seOP WASTE

223 to 229 cunda superoneratione ; for the super. 1. Waste is a spoil and destruction in numerary cattle, and damages. III.

lands and tenements, to the injury of Enclosure, or obstruction. Remedies : him who hath, I. An immediate inte

restitution of the common, and dama. rest (as, by right of common) in the ges; by assise of novel disseisin, and lands. II. The remainder or rever- by writ of quod permittat : or, damages sion of the inheritance

223 only; by action on the case 237-200 2. The remedies, for a commoner, are, 5. Disturbance of ways, is the obstruc

restitution, and damages ; by assise tion, I. Of a way in gross, by the ownof common : or, damages only; by ac. er of the land. II. Of a way appende tion on the case


ant, by a stranger. Remedy, for both: 3. The remedy for him in remainder, or damages ; by action on the case 241 Payo

reversion, is, l. Preventive : by writ 6. Disturbance of tenure, by driving of estrepement at law, or injunction out away tenants, is remedied by a spe of Chancery; to stay waste. II. Cor- cial action on the case ; for damages rective : by action of waste ; to reco- 7. Disturbance of patronage, is the hin. ver the place wasted, and damages 225–229 derance of a patron to present his clerk

to a benefice; whereof usurpation CHAPTER XV.

within six months is now become a


230 to 235 8. Disturbers may be, I. The pseudo1. Subtraction is when one who owes patron, by his wrongful presentation.

services to another, withdraws or ne. II. His clerk, by demanding instituglects to perform them. This may tion. III. The ordinary, by refusing be, f. Or rents, and other services,

the clerk of the true patron

244 due by tenure. II. Of those due by 9. The remedies are, 1. By assise of custom

230 darrein presentment; II. By writ of 2 For subtraction of rents and services quare impedie- to compel institution

due by tenure, the remedy is, I. By and recover damages : consequent to distress; to compel the payment, or which are the writs of quare incumbraperformance. II. By action of debt. vil, and quare non admisit ; for subseIII. By assise. IV. By writ de con- quent damages. III. By writ of right suetudinibus el servitiis-to compel the of advowson ; to compel institution, or payment. V. By writ of cessavit ; and establish the permanent right 245 252 VI. By writ of right sur disclaimer to recover the land itself


CHAPTER XVII. 3. To remedy the oppression of the lord,

the law has also given, I. The writ OF INJURIES, PROCEEDING FROM, OR of ne injuste veces : II. The writ of AFFECTING, THE CROWN 254 to 265

234 1. Injuries to which the crown is a par. For subtraction of services, due by

ty, are, I. Where the crown is the ag. custom, the remedy is, I. By writ of gressor. II. Where the crown is the secta ad molendinum, furnum, torrale,


254 &c.; to compel the performance, and 2. The crown is the agressor, whenecover damages. II. By action on ever it is in possession of any properthe case ; for damages only

235 ty to which the subject hath a right 25445

3. This is remedied, I. By petition of CHAPTER XVI.

right ; where the right is grounded on

facts disclosed in the petition itself. Or DISTURBANCE

236 to 252 II. By monstrans de droit ; where the Disturbance is the fundering or dis. claim is grounded on facts already apquieting the owners of an incorporeal pearing on record. The effect of borba


Page wnict is to remove the hands (or pos- 2. This includes, I. Summons. Jl. The session) of the king

255-257 writ of attachment, or pone ; which is 6. Where the crown is the sufferer, the

sometimes the first or original process. king's remedies are, I. By such com

III. The writ of distringas, or distress mon law actions as are consistent with infinite. IV. The writs of capras ad the royal dignity. II. By inquest of respondendum, and testatum capias : or, office, to recover possession : which, instead of these, in the King's Bench, when found, gives the king his right

the bill of Middlesex, and writ of latiby solemn matter of record; but may tat ;-and, in the Exchequer, the writ afterwards be traversed by the subject. of quo minus. V. The alias and pluIII. By writ of scire facias, to repeal ries writs. VI. The exigent, or writ the king's patent or grant. IV. By of exigi facias, proclamations, and out. information of intrusion, to give dama- lawry. VIII. Appearance, and com. ges for any trespass on the lands of mon bail. VIII. The arrest. IX. the crown; or of debt, to recover mo. Special bail, first to the sheriff, and nies due upon contract, or forfeited by

then to the action

279-292 the breach of any penal statute; or sometimes (in the latter case) by in

CHAPTER XX. formation in rem : all filed in the Exchequer ex officio by the king's attor


293 to 313 ney-general. V. By writ of quo war. tanto, or information in the nature of

1. Pleadings are the mutual altercations such writ; to seize into the king's

of the plaintiff and defendant, in writhands any franchise usurped-by the

ing; under which are comprised, I.

The declaration or count (wherein, in. subject, or to oust an usurper from any public office. VI. By writ of manda

cidentally, of the visne, nonsuit, re

traxit, and discontinuance). II. The nus, unless cause ; to admit or restore

defence, claim of cognizance, impar. any person entitled to a franchise or office : to which, if a false cause be

lance, view, oyer, aid-prayer, voucher, returned, the remedy is by traverse,

or age. Ill. The plea; which is either or by action on the case for damages ;

a dilatory plea (1st, to the jurisdic. and, in consequence, a peremptory

tion; 2ndly, in disability of the plain

tiff ; 3rdly, in abatement: or it is a nandamus, or writ of restitution 257-265

plea to the action; sometimes conCHAPTER XVIII.

fessing the action, either in whole, or

in part (wherein of a tender, paying UP THE PURSUIT OF REMEDIES BY AC

money into court, and set-off); but

usually denying the complaint, by LION, AND, FIRST, OF THE ORIGINAL WRIT

270 to 272

pleading either, Ist, the general is. 1. The pursuit of the several remedies

sue; or, 2ndly, a special bar (wherein furnished by the laws of England, is,

of justifications, the statutes of limita1. By action in the courts of common

tion, &c.) IV. Replication, rejoinlaw. Il. By proceedings in the courts

der, surrejoinder, rebutter, surrebutof equity


ter, &c. Therein of estoppels, co2. Of an action in the court of Common

lour, duplicity, departure, new assign

ment, protestation, averment, and Pleas (originally the proper court for

other incidents of pleading 293-313 prosecuting, civil suits) the orderly parts are, I. The original writ. II. The process. III. The pleadings.

CHAPTER XXI. IV. The issue, or demurrer. V. The trial. VI. The judgment. VII. The Or ISSUE AND DEMURRER 314 to 317 proceedings in nature of appeal. VIII. 1. Issue is where the parties, in a course The execution

272 of pleading, come to a point affirmed 3. The original writ is the beginning or on one side and denied on the othe-: foundation of a suit, and is either op

which, if it be a matter of law, is call. tional (called a precipe) commanding ed a demurrer; if it be a matter of the defendant to do something in cer. fact, still retains the name of an issre tain, or otherwise shew cause to the

of fact

314 contrary; or peremptory (called a si 2. Continuance is the detaining of the fecerit te securum) commanding, upon parties in court from time to time, og security giren by the plaintiff, the de. giving them a day certain to appear fendant to appear in court, to shew upon. And, if any new matter arises wherefore he hath injured the plaintiff: since the last continuance or adjourn. both issuing out of Chancery under ment, the defendant may take advan. the king's great seal, and returnable tnge of it, even after demurrer or is. in bank during term-time

272 sue, by alleging it in a plea puis dar.
rein continuance


3. The determination of an issue in law, OF PROCESS

279 to 292 or demurrer, is by the opinion of the 1. Process is the means of compelling judges of the court; which is after the defendant to appear in court 279 wards entered on record

317 Vol. II





in the court of nisi prius, 13 added to

the record under the name of a pos. OF THE SEVERAL SPECIES OF TRIAL

tea: consequent upon which is the 330 to 341 judgment

388 1. Trial is the examination of the mat- 2. Judgment may be arrested or stayed ter of fact put in issue

330 for causes, I. Extrinsic, or dehors the 2. The species of trials are, I. By the

record: as in the case of new trials. record. II. By inspection. III. By II. Intrinsic, or within it: as where certificate. IV. By witnesses. V.

the declaration varies from the writ, By wager of battel. VI. By wager or the verdict from the pleadings and of law. VII. By jury

330 issue; or where the case laid in the 3. Trial by the record is had, when the declaration is not sufficient to support existence of such record is the point the action in point of law

386–394 in issue

330 3. Where the issue is immaterial, or in. 4. Trial by inspection or examination is sufficient, the court may award a rehad by the court, principally when the pleader

395 matter in issue is the evident object 4. "Judgment is the sentence of the law, of the senses


pronounced by the court, upon the mato 5. Trial by certificate is had in those ter contained in the record

399 cases, where such certificate must 5. Judgments are, i. Interlocutory; which have been conclusive to a jury

333 are incomplete till perfected by a writ 6. Trial by witnesses (the regular me. of enquiry. II. Final

396 thod in the civil law) is only used on 6. Costa, or expenses of suit, are now a writ of dower, when the death of the the necessary consequence of obtain. husband is in issue 336 ing judgment

399 7. Trial by wager of battel, in civil cases, is only had on a writ of right:

CHAPTER XXV. but, in lieu thereof, the tenant may have, at his option, the trial by the Or PROCEEDINUS IN THE NATURE OP grand assize 336 APPEALS

402 to 41) 5. Trial by wager of law is only had, 1. Proceedings in the nature of appeals where the matter in issue may be sup

from judgment, are, I. A writ of ate posed to have been privily transacted, taint; to impeach the verdict of a ju. between the parties themselves, with- ry: which of late has been superseded out the intervention of other witnesses 341 by new trials. II. A writ of audita

querela ; to discharge a judgment by CHAPTER XXIII.

matter that has since happened. TIL

A writ of error, from one court of reOr THE TRIAL BY JURY

351 to 385 cord to another; to correct judgments, 1. Trial by jury is, I. Extraordinary; erroneous in point of law, and not

as, by the grand assize, in writs of helped by the statutes of amendment right; and by the grand jury, in writs and jeofails

402-400 of aliaint. II. Ordinary

351 2. Writs of error lie, I. To the court of 2. The method and process of the ordi. King's Bench, from all inferior courts

nary trial by jury is, I. The writ of ve- of record; from the court of Common nire facias to the sheriff, coroners, or

Pleas at Westminster; and from the elisors; with the subsequent compul. court of King's Bench in Ireland. II. sive process of habeas corpora, or dis. To the courts of Exchequer Chamber, tringas. II. The carrying down of from the law side of the court of Exthe record to the court of nisi prius. chequer; and from proceedings in the III. The sheriff's return; or panel of, court of King's Bench by bill. III. Ist, special, 2ndly, common jurors. To the house of Peers, from proceed. IV. The challenges : Ist, to the ar. ings in the court of King's Bench by ray ; 2ndly, to the polls of the jurors ; original, and on writs of error; and either, propter honoris respectum, prop.

from the several courts of Exchequer ter defectum, propler affectum (which Chamber

406 411 is sometimes a principal challenge, sometimes to the favour), or, propter

CHAPTER XXVI. delictum. V. The taler de circumstantibus. VI. The oath of the jury. VII. Or EXECUTION

412 to 429 The evidence; which is either hy 1. Execution is the pitting in force of proofs, Ist, written; 2ndly, parol–or, the sentence or judgment of the law: by the private knowledge of the jurors.

which is effected, 1. Where possesVIII. The verdict: which may be, sion of any hereditament is recovered ; ist, privy ; 2ndly, public; 3rdly, spe- by writ of habere facias sesinam, pos. cia!

351-385 sessionem, fc. II. Where any thing CHAPTER XXIV.

is awarded to be done or rendered, by

a special writ for that purpose : as, by Or JUDGMENT, AND ITS INCIDENTS

writ of abatement in case of nuisance;

386 to 399 retorno habendo, and capias in wither1. Whatever is transacted at the trial, nam in replevin; distringas and scure

on the oath of the party ; which gives

a jurisdiction in matters of account,

and fraud. II. The mode of trial; by

depositions taken in any part of the

world. III. The mode of relief ; by

giving a more specific and extensive

remedy than can be had in the courts

of law : as, by carrying agreements
into execution, staying waste or other
injuries by injunction, directing the
sale of incumbered lands, &c. IV.
The true construction of securities
for money, by considering them mere.
iy as a pledge. V. The execution of
trusts, or second uses, in a manner
analogous to the law of legal es-


5. The proceedings in the court of Chan-

cery (to which those in the Exche-

quer, &c. very nearly conform) are, I.

Bill. II. Writ of subpæna ; and per-

haps, injunction. III. Process, of con.
lempt ; viz. (ordinarily) attachment,
attachinent with proclamations, com-
mission of rebellion, serjeant at arins,
and sequestration. IV. Appearance.
V. Demurrer. VI. Plea. VII. An.

VIII. Exceptions ; amend

ments ; cross, or supplemental, bills ,

bills of revivor, interpleader, &c. ix.

Replication. X. Issue. XI. Deposi.

cions, taken upon interrogatories; and

subsequent publication thereof. XII.

Hearing. XIII. Interlocutory decree ;

feigned issue, and trial; reference to

the master, and report ; &c. XIV.

Final decree. XV. Rehearing. or billi

of review. XVI. Appeal to Parlia-



facias ir detinue. III. Where money
only is recovered; by writ of, 18t, ca-
pias ad satisfaciendum, against the body
of the defendant; or, in default there-
of, scire facias against his bail. 2dly,

fieri facias, against his goods and chat-

tels. 3rdly, levari facias, against his

goods, and the profits of his lands.

4thly, elegit, against his goods, and

the possession of his lands. 5thly, es-

tendi facias, and other process, on sta-

tutes, recognizances, &c., against his

body, lands, and goods





426 to 455

1. Matters of equity, which belong to the

peculiar jurisdiction of the court of

Chancery, are, I. The guardianship of
infants. II. The custody of idiots and
lunatics. III. The superintendence
of charities. IV. Commissions of


2. The court of Exchequer, and the du.

chy court of Lancaster, have also some

peculiar causes, in which the interest

of the king is more immediately con-



3. Equity is the true sense and sound

interpretation of the rules of law; and,

as such, is equally attended to by the

Judges of the courts both of common

law and equity


The essential differences, whereby
the English courts of equity are dis-
tinguished from the courts of law, are,
1. The mode of proof, by a discovery



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