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Paga Ouster from freeholds is affected by, gained by the statute of limitations.Abatenient. II. Intrusion. III.
Remedy, in both cases : by a mero
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
species OF SUBTRACTION
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
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.
315 CHAPTER XIX.
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
of law : as, by carrying agreements
haps, injunction. III. Process, of con.
VIII. Exceptions ; amend
facias ir detinue. III. Where money
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
Ur PROCEEDINGS IN THE COURTS OF
426 to 455
1. Matters of equity, which belong to the
peculiar jurisdiction of the court of
Chancery, are, I. The guardianship 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