& Ouster from freeholds is affected by, Abatement. II. Intrusion. III. Disseisin. IV. Discontinuance. V. Deforcement

Abatement is the entry of a stranger, fter the death of the ancestor, before the heir

Intrusion is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion

6. Disseisin is a wrongful putting out of him that is seized of the freehold 7. Discontinuance is where tenant in tail, or the husband of tenant in fee, makes a larger estate of the laud than the law alloweth

8. Deforcement is any other detainer of the freehold from him who hath the property, but who never had the possession

9. The universal remedy for all these is restitution or delivery of possession, and, sometimes, damages for the detention. This is effected, I. By mere entry. II. By action possessory. III. By writ of right

10. Mere entry on lands, by him who hath the apparent right of possession, will (if peaceable) devest the mere possession of a wrong-doer. But for cible entries are remedied by immediate restitution, to be given by a justice of the peace

Page

167

167

169

169

171

172

174

175-179

11. Where the wrong-doer hath not only mere possession, but also an apparent right of possession; this may be devested by him who hath the actual right of possession, by means of the possessory actions of writ of entry, or assise 179 12. A writ of entry is a real action, which disproves the title of the tenant, by shewing the unlawful means under which he gained or continues possession. And it may be brought, either against the wrong-doer himself; or in the degrees, called the per, the per and cui, and the post

180

184-190

13. An assise is a real action, which proves the title of the demandant, by shewing his own, or his ancestor's possession. And it may be brought either to remedy abatements; viz. the assise of mort d' ancestor, &c. or to remedy recent disseisins; viz. the assise of novel disseisin 14. Where the wrong-doer hath gained the actual right of possession, he who hath the right of property can only be remedied by a writ of right, or some writ of a similar nature. As, I. Where such right of possession is gained by the discontinuance of tenant in tail. Remedy, for the right of property; by writ of formedon. II. Where gained by recovery in a possessory action, had against tenants of particular estates by their own default. Remedy: by writ of quod ei deforceat. III. Where gained by recovery in a possessory action, had upon the merits. IV. Where

OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL

198 to 201

1. Ouster from chattels real is, I. From estates by statute and elegit. II. From an estate for years

2. Ouster, from estates by statute or elegit, is effected by a kind of disseisin. Remedy restitution, and damages; by assise of novel disseisin 3. Óuster from an estate for years, is ef fected by a like disseisin or ejectment. Remedy restitution and damages; I. By writ of ejectione firmæ. II. By writ of quare ejecit infra terminum 4. A writ of ejectione firma, or action of trespass in ejectment, lieth where lands, &c., are let for a term of years, and the lessee is ousted or ejected from his term; in which case he shall recover possession of his term, and damages

199

198

199

190

5. This is now the usual method of trying titles to land, instead of an action real: viz. by, I. The claimant's mak ing an actual (or supposed) lease upon the land to the plaintiff. II. The plaintiff's actual (or supposed) entry thereupon. III. His actual (or supposed) ouster and ejectment by the defendant. For which injury this action is brought, either against the tenant, or (more usually) against some casual or fictitious ejector; in whose stead the tenant may be admitted defendant, on condition that the lease, entry, and ouster be confessed, and that nothing else be disputed but the merits of the title claimed by the lessor of the plaintiff 200-206 6. A writ of quare ejecit infra terminum is an action of a similar nature only not brought against the wrong-doer or ejector himself, but such as are in possession under his title

CHAPTER XII.

207

OF TRESPASS 208 to 218 1. Trespass is an entry upon, and damage done to, another's lands, by one's self, or one's cattle; without any law. ful authority, or cause of justification: which is called a breach of his close. Remedy damages; by action of trespass quare clausum fregit: besides that of distress damage feasant. But, unless the title to the land come chiefly in question, or the trespass was wilful or malicious, the plaintiff (if the damages be under forty shillings) shall re cover no more costs than damages 208-315 CHAPTER XIII.

that worketh damage, or inconvenience and it is either a public and common nuisance, of which in the next book; or, a private nuisance, which is any thing done to the hurt or annoyance of, I. The corporeal, II. The incorporeal, hereditaments of another 2. The remedies for a private nuisance (besides that of abatement), are, I. Damages; by action on the case (which also lies for special prejudice by a public nuisance). II. Removal thereof, and damages; by assise of nuisance. III. Like removal, and damages; by writ of quod permittat pros

ternere

CHAPTER XIV.

Page

216

219

223 to 229

OF WASTE 1. Waste is a spoil and destruction in lands and tenements, to the injury of him who hath, I. An immediate interest (as, by right of common) in the lands. II. The remainder or reversion of the inheritance

2. The remedies, for a commoner, are, restitution, and damages; by assise of common: or, damages only; by action on the case

223

224

3. The remedy for him in remainder, or reversion, is, I. Preventive: by writ of estrepement at law, or injunction out of Chancery; to stay waste. II. Corrective by action of waste; to recover the place wasted, and damages 225-229 CHAPTER XV.

OF SUBTRACTION 230 to 235 1. Subtraction is when one who owes services to another, withdraws or neglects to perform them. This may be, L. Of rents, and other services, due by tenure. II. Of those due by

custom

2 For subtraction of rents and services due by tenure, the remedy is, I. By distress; to compel the payment, or performance. II. By action of debt. III. By assise. IV. By writ de consuetudinibus et servitiis-to compel the payment. V. By writ of cessavit; and VI. By writ of right sur disclaimerto recover the land itself 3. To remedy the oppression of the lord, the law has also given, I. The writ of ne injuste veces: II. The writ of

mesne

230

231-234

For subtraction of services, due by custom, the remedy is, I. By writ of secta ad molendinum, furnum, torrale, &c.; to compel the performance, and ecover damages. II. By action on the case; for damages only

CHAPTER XVI.

Or DISTURBANCE

234

235

236 to 252

Disturbance is the hindering or disquieting the owners of an incorporeal

4. Disturbance of common, is I. Intercommoning without right. Remedy: damages; by an action on the case, or of trespass: besides distress da mage feasant; to compel satisfaction. II. Surcharging the cominon. Remedies: distress damage feasant; to compel satisfaction: action on the case; for damages: or, writ of admeasurement of pasture; to apportion the common;-and writ de se cunda superoneratione; for the supernumerary cattle, and damages. III. Enclosure, or obstruction. Remedies: restitution of the common, and damages; by assise of novel disseisin, and by writ of quod permittat: or, damages only; by action on the case 5. Disturbance of ways, is the obstruction, I. Of a way in gross, by the owner of the land. II. Of a way appendant, by a stranger. Remedy, for both: damages; by action on the case 6. Disturbance of tenure, by driving away tenants, is remedied by a spe cial action on the case; for damages 7. Disturbance of patronage, is the hinderance of a patron to present his clerk to a benefice; whereof usurpation within six months is now become a species 8. Disturbers may be, I. The pseudopatron, by his wrongful presentation. II. His clerk, by demanding institution. III. The ordinary, by refusing the clerk of the true patron

Page 255-257

waich, is to remove the hands (or possession) of the king i. Where the crown is the sufferer, the king's remedies are, I. By such common law actions as are consistent with the royal dignity. II. By inquest of office, to recover possession: which, when found, gives the king his right by solemn matter of record; but may afterwards be traversed by the subject. III. By writ of scire facias, to repeal the king's patent or grant. IV. By information of intrusion, to give damages for any trespass on the lands of the crown; or of debt, to recover monies due upon contract, or forfeited by the breach of any penal statute; or sometimes (in the latter case) by information in rem: all filed in the Exchequer er officio by the king's attorney-general. V. By writ of quo warranto, or information in the nature of such writ; to seize into the king's hands any franchise usurped by the subject, or to oust an usurper from any public office. VI. By writ of mandamus, unless cause; to admit or restore any person entitled to a franchise or office to which, if a false cause be returned, the remedy is by traverse, or by action on the case for damages; and, in consequence, a peremptory mandamus, or writ of restitution

CHAPTER XVIII.

257-265

1. The pursuit of the several remedies furnished by the laws of England, is, I. By action in the courts of common law. II. By proceedings in the courts of equity

2. Of an action in the court of Common Pleas (originally the proper court for prosecuting civil suits) the orderly parts are, I. The original writ. II. The process. III. The pleadings.

V. The

IV. The issue, or demurrer. trial. VI. The judgment. VII. The proceedings in nature of appeal. VIII. The execution

The original writ is the beginning or foundation of a suit, and is either optional (called a præcipe) commanding the defendant to do something in certain, or otherwise shew cause to the contrary; or peremptory (called a si fecerit te securum) commanding, upon security given by the plaintiff, the defendant to appear in court, to shew wherefore he hath injured the plaintiff: both issuing out of Chancery under the king's great seal, and returnable in bank during term-time

OF PROCESS

CHAPTER XIX.

270

272

272

279 to 292

1. Process is the means of compelling

the defendant to appear in court VOL. II

2. This includes, I. Summons. II. The writ of attachment, or pone; which is sometimes the first or original process. III. The writ of distringas, or distress infinite. IV. The writs of capias ad respondendum, and testatum capias: or, instead of these, in the King's Bench, the bill of Middlesex, and writ of latitat; and, in the Exchequer, the writ of quo minus. V. The alias and plu ries writs. VI. The exigent, or writ of exigi facias, proclamations, and outlawry. VIII. Appearance, and common bail. VIII. The arrest. IX. Special bail, first to the sheriff, and then to the action

CHAPTER XX.

Pago

279-292

293 to 313

OF PLEADINGS 1. Pleadings are the mutual altercations of the plaintiff and defendant, in writing; under which are comprised, I. The declaration or count (wherein, incidentally, of the visne, nonsuit, retraxit, and discontinuance). II. The defence, claim of cognizance, imparlance, view, oyer, aid-prayer, voucher, or age. III. The plea; which is either a dilatory plea (1st, to the jurisdiction; 2ndly, in disability of the plaintiff; 3rdly, in abatement: or it is a plea to the action; sometimes confessing the action, either in whole, or in part (wherein of a tender, paying money into court, and set-off'); but usually denying the complaint, by pleading either, 1st, the general issue; or, 2ndly, a special bar (wherein of justifications, the statutes of limitation, &c.) IV. Replication, rejoinder, surrejoinder, rebutter, surrebutter, &c. Therein of estoppels, colour, duplicity, departure, new assign ment, protestation, averment, and other incidents of pleading

CHAPTER XXI.

OF ISSUE AND DEMURRER

293-313

314 to 317

1. Issue is where the parties, in a course of pleading, come to a point affirmed on one side and denied on the othe": which, if it be a matter of law, is called a demurrer; if it be a matter of fact, still retains the name of an issue of fact 2. Continuance is the detaining of the parties in court from time to time, v giving them a day certain to appear upon. And, if any new matter arises since the last continuance or adjourn. ment, the defendant may take advan tage of it, even after demurrer or issue, by alleging it in a plea puis dar

rein continuance

3. The determination of an issue in law, or demurrer, is by the opinion of the judges of the court; which is after wards entered on record

314

315

317

1. Trial is the examination of the matter of fact put in issue 2. The species of trials are, I. By the record. II. By inspection. III. By certificate. IV. By witnesses. By wager of battel. VI. By wager of law. VII. By jury

3. Trial by the record is had, when the existence of such record is the point in issue

4. Trial by inspection or examination is had by the court, principally when the matter in issue is the evident object of the senses

5. Trial by certificate is had in those cases, where such certificate must have been conclusive to a jury 6. Trial by witnesses (the regular method in the civil law) is only used on a writ of dower, when the death of the husband is in issue

7. Trial by wager of battel, in civil cases, is only had on a writ of right: but, in lieu thereof, the tenant may have, at his option, the trial by the grand assize

330

330

330

331

333

5. Judgments are, i. Interlocutory; which are incomplete till perfected by a writ of enquiry. II. Final

396

336

6. Costs, or expenses of suit, are now the necessary consequence of obtain. ing judgment

399

CHAPTER XXV.

336

3. Trial by wager of law is only had, where the matter in issue may be supposed to have been privily transacted, between the parties themselves, without the intervention of other witnesses 341

CHAPTER XXIII.

351 to 385

OF THE TRIAL BY JURY 1. Trial by jury is, I. Extraordinary; as, by the grand assize, in writs of right; and by the grand jury, in writs of attaint. II. Ordinary 2. The method and process of the ordinary trial by jury is, I. The writ of venire facias to the sheriff, coroners, or elisors; with the subsequent compulsive process of habeas corpora, or distringas. II. The carrying down of the record to the court of nisi prius. III. The sheriff's return; or panel of, 1st, special, 2ndly, common jurors. IV. The challenges; 1st, to the array; 2ndly, to the polls of the jurors; either, propter honoris respectum, prop ter defectum, propter affectum (which is sometimes a principal challenge, sometimes to the favour), or, propter delictum. V. The tales de circumstan tibus. VI. The oath of the jury. VII. The evidence; which is either by proofs, 1st, written; 2ndly, parol-or, by the private knowledge of the jurors. VIII. The verdict: which may be, ist, privy; 2ndly, public; 3rdly, specia!

CHAPTER XXIV.

OF JUDGMENT, AND ITS INCIDENTS

351

351-385

386 to 399

1. Whatever is transacted at the trial,

OF PROCEEDINGS IN THE NATURE OF APPEALS 402 to 411 1. Proceedings in the nature of appeals from judgment, are, I. A writ of attaint; to impeach the verdict of a ju ry: which of late has been superseded by new trials. II. A writ of audita querela; to discharge a judgment by matter that has since happened. III. A writ of error, from one court of record to another; to correct judgments, erroneous in point of law, and not helped by the statutes of amendment and jeofails

402-400

2. Writs of error lie, I. To the court of King's Bench, from all inferior courts of record; from the court of Common Pleas at Westminster; and from the court of King's Bench in Ireland. II. To the courts of Exchequer Chamber, from the law side of the court of Exchequer; and from proceedings in the court of King's Bench by bill. III. To the house of Peers, from proceed. ings in the court of King's Bench by original, and on writs of error; and from the several courts of Exchequer Chamber

facias ir. detinue. III. Where money only is recovered; by writ of, 1st, capias ad satisfaciendum, against the body of the defendant; or, in default thereof, scire facias against his bail. 2dly, fieri facias, against his goods and chattels. 3rdly, levari facias, against his goods, and the profits of his lands. 4thly, elegit, against his goods, and the possession of his lands. 5thly, extendi facias, and other process, on statutes, recognizances, &c., against his body, lands, and goods

CHAPTER XXVII.

Page

412-425

tates

Page

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 es436-440 5. The proceedings in the court of Chancery (to which those in the Exchequer, &c. very nearly conform) are, I. Bill. II. Writ of subpona; and perhaps, injunction. III. Process, of contempt; viz. (ordinarily) attachment, attachinent with proclamations, commission of rebellion, serjeant at arms, and sequestration. IV. Appearance. V. Demurrer. VI. Plea. VII. Answer. VIII. Exceptions; amend ments; cross, or supplemental, bills bills of revivor, interpleader, &c. IX. Replication. X. Issue. XI. Depositions, 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 bill' of review. XVI. Appeal to Parlia