Commentaries on the Laws of England

other remedies are, 1. action of debt; 2. assize; 3. writ de consuetudin
ibus et servitiis; 4. writ of cessavit; 5. writ of right sur disclaimer,.... 281
to remedy the oppression of the lord, the tenant has, 1. writ ne injuste
vexes; 2. writ of mesne,...

284

....

of those due by custom, the remedies are, 1. writ of secta ad molendinum,

&c., 2. action on the case....

disturbance is a hindering or disquieting the owner of an incorporeal heredita-

ment in his regular and lawful enjoyment of it,...

286

I. disturbance of franchises is remedied by action on the case,.

II. disturbance of common, which may be, 1. by intercommoning without

right; 2. by surcharging the common; 3. by enclosure or obstruction,

for each of which there is appropriate remedy,......

236

237-241

III. disturbance of ways is redressed by action on the case,.

IV. disturbance of tenure has the like remedy,.....

241

843

V. disturbance of patronage, is the hindrance of a patron to present his

clerk to a benefice,..

243

for which there were various remedies, of which quare impedit is the

present,..

246-253

CHAPTER XVII.

OF INJURIES PROCEEDING FROM OR AFFECTING THE CROWN,...

254-269

these are, 1. where the crown is aggressor; 2. where the crown is the sufferer,...

the maxim that the king can do no wrong,......

254

injuries to rights of property by the crown are remedied:

1. by petition of right, grounded on facts set forth in the petition,... 256

8. by monstrans de droit, when the right already appears, and is estab-

lished,...

256

OF INJURIES PROCEEDING FROM OR AFFECTING THE CROWN-(continued.)

injuries to the rights of the crown are redressed:

1. by the usual common-law actions,....

PAGE

257

2. by inquest of office, to recover possession,

258

8. by scire facias, to repeal the king's letters patent or grant,...

261

4. by information in the exchequer to recover moneys or chattels, or to

obtain damages for wrongs to the possessions of the crown,.

5. by writ of quo warranto, or information in the nature thereof, when

offices, franchises or liberties are usurped,..

261

262

6. by mandamus, to admit or restore a person entitled to a place or office, 264

or to compel elections, &c,......

265

265-269

recapitulation: completeness of the remedies given for wrongs,.

CHAPTER XVIII.

OF THE PURSUIT OF REMEDIES BY ACTION; AND, FIRST, OF THE ORIGINAL WRIT, 270-278

the common pleas, the original court for civil actions,.

271

the king's bench and exchequer have now concurrent jurisdiction generally, 271

of the orderly parts of a suit the first is the original writ from the court of

chancery,.

which is either optional or peremptory,.

return thereof,..

the four terms of court,.

CHAPTER XIX.

OF PROCESS,...

279-298

after the original writ comes process, or the means of compelling the defendant

to appear,.

this includes, 1. summons; 2. writ of attachment or pone, sometimes the first
process; 3. writ of distringas; 4. 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; 5. the
alias and pluries writs; 6. the exigeat, or writ of exigi facias, proclama-
tions and outlawry; 7. appearance and common bail; 8. arrest; 2.
special bail, first, to the sheriff and then to the action,...............
for all which a writ of summons is now substituted in ordinary cases.

979

279-292

CHAPTER XX.

O PLEADINGS,.

298-818

pleadings are the mutual altercations between the plaintiff and defendant, form-

erly oral, but now in writing,..................

298

it may contain several counts,.

of non-pros. retraxit and discontinuance,.

L the declaration, narratio or count, which is an amplification of the original

writ, with the addition of time and place of the injury,.

the venue in which is in some cases local,..

II. the defence, claim of cognizance, imparlance, view, oyer, aid-prayer,

voucher, or parol demurrer,..

III. the plea, which is either dilatory or to the action,..

dilatory pleas, merely to delay or put off the suit, are:

pleas to the action either confess the complaint in whole or in part, as

in tender and set-off,......

or totally deny the cause of complaint; as the general issue or special

plea in bar,....

instances of special pleas,.

.305, 306

...306, 308

the qualities of a plea are, 1. that it be single; 2. direct and positive and
not argumentative; 3. with convenient certainty of time, place and
persons; 4. answering the plaintiff's allegations in every material
point, and, 5. so pleaded as to be capable of trial,...
special pleas must advance some new fact not mentioned in the declara-
tion, and are bad if only amounting to general issue,...

they may give color to the plaintiff,..

808

809

.......

809

OF PLEADING—(continued.)

IV. the replication of the plaintiff, which may be followed by rejoinder, sur-
rejoinder, rebutter, and sur-rebutter,...

concerning departure, new assignment, duplicity, &c.,.........

PAGE

810

810-818

CHAPTER XXI.

OF ISSUE AND DEMURRER, .

issue is either upon matter of fact or matter of law,...

814-824

814

issue of law is called a demurrer, and it admits the facts to be true, as stated,

but denies their legal sufficiency,....

814

this issue is tried by the court,...

815, 823

issues of fact are to be tried by jury,

new matter after issue joined may be pleaded puis darrien continuance..

pleadings were formerly in Norman or law-french, and then in Latin, but now in

English,.

815

816

2. by inspection, or examination, which is by the court, where the mat-
ter in issue is the evident object of the senses,..

881

4. by witnesses, which is only used on writ of dower, where the death of
the husband is denied,..

8. by certificate, where the evidence of the person certifying is the only

proper criterion of the point in dispute,...

833

836

is of two kinds, extraordinary or ordinary,...

the first is by the grand assize in writs of right, and by the grand jury in

writs of attaint,...

1. the venire facias to the sheriff to summon jurors,..

with the subsequent compulsive habere corpora, or distringas,............

if the sheriff be not indifferent, the process issues to coroners or

elisors,.....

8. the carrying down the record to nisi prius,

8. the sheriff's return of common or special jurors,..

4. the challenges, which are to the whole array or to the polls,

Jury de medietate lingua,....

challenges to the polls are either propter honoris respectum, propter

defectum, propter affectum, or propter delictum,..

851

evidence is of two kinds, by proofs, or by the private knowledge of
the jurors,...

867

the best evidence the case will admit of is always required, if to be

obtained,......

Judgment may be suspended or arrested,..

.....

1. new trial may be granted for matter extrinsic the record,.

as for misbehavior of party or jury, excessive damages, &c.,.............

for which cause must be shown by affidavit, if the matter was not apparent

to the judge,....

and terms may be imposed,..

2. judgment may be arrested for cause apparent on the record,..

as where declaration does not pursue the writ, or is insufficient,.
but certain defects in the declaration are cured by verdict....
and if the issue be immaterial, repleader may be awarded,..

392

393

394

895

judgments are the sentence of the law pronounced by the court upon the matter

contained in the record,.

they are either, 1. upon demurrer; 2. on verdict; 3. by confession or default;

4. upon nonsuit or retraxit,.

they are also, 1. interlocutory; 2. final,.

warrants of attorney to confess judgment,

writ of inquiry to assess damages,

costs or expenses of suit are now the necessary consequence of judgment, 399

but the king generally neither pays nor receives them,.

case of executors, &c., and paupers,..

1. a writ of attaint (now superseded) to impeach the verdict,.

402

2. a writ of deceit in the common pleas to reverse a judgment there had by

fraud or collusion,.....

405

8. a writ of audita querela, to discharge a judgment by matter that has since
happened,......

306

4. a writ of error to some superior court of appeal..

407

which is only upon matter of law appearing on the face of the proceed-

ings...

407

and slight mistakes and errors are cured under the statutes of amend-

ments and jeofails,...

407

history of these statutes,.

407-410

writs of error are to the king's bench from all inferior courts of record, 410

formerly also from the common pleas and the court of king's bench

in Ireland...

410

they are now from the three superior courts at Westminster to the
exchequer chamber,.

410n

and from the exchequer chamber and the superior courts of Ireland

to the house of lords....

I. when possession of any hereditament is recovered the execution, is an

habere facias seisinam possessionem, &c....

418

II. in other actions where something special is to be done, a special writ is

awarded according to the nature of the case,.............

OF ECUTION—(continued.)

4. an elegit, against goods and the possession of lands,...

5. an extendi fucius, and other process, on statutes, recognizances, &c.,

against the body, lands and goods,..

OF PROCEEDINGS IN THE COURTS OF EQUITY.....

....426-455

matters of equity which belong to the peculiar jurisdiction of the court of

chancery are:

4. Jurisdiction in bankruptcy, now taken away,.

some peculiar equity causes are heard in the exchequer and duchy court of

Lancaster,...

equity in its true and genuine meaning is the soul and spirit of all law,.

to set law and equity in opposition to each other will be found either wholly or to a

certain degree erroneous.

430

..430-436

that equity follows the law; that both interpret the law according to its spirit;

that both have the same object; that both follow rules and precedents, and

observe the same rules of property, evidence, &c.,. . . . . .

the essential differences between the courts of equity and of law are:

1. the mode of proof, by a discovery on the oath of the party, which gives

jurisdiction in matters of account and fraud,.....

2. the mode of trial, by depositions taken in any part of the world,

8. the mode of relief, by giving a more specific and extensive remedy than

can be had in courts of law,...

437

438

5. the execution of trusts under nearly the same rules as would govern the

estate at law...

examples, specific performance, setting aside deeds, enjoining waste, &c., 438

the true construction of securities for money by considering them merely

as a pledge,..

439

which must bring all interested parties before the court,....

8. appearance,

the proceedings in a suit in equity are:

1. the bill of complaint, in the nature of a declaration,

3. the subpoena, followed, if necessary, by attachment, &c., to compel

4. demurrer, which corresponds to that at law,..

5. pleas, either to the jurisdiction, to the person, or in bar..

6. answer, which is given upon oath,

446

but defendant may plead, answer and demur to different parts of the

same bill,

446

7. exceptions to answer for insufficiency,.

448

8. amendments of bill, bill of supplement, of revivor, of interpleader, &c.,.. 448

9. hearing upon bill and answer,.

feigned issue and trial; question of law for opinion of common-law

court; reference to master, &c.,..

No. 1. proceedings on a writ of right patent.

2 proceedings in an action of trespass in ejectment by original in the king's bench.
& proceedings in an action of debt in the court of common pleas removed into the
king's bench on writ of error.

« Eelmine Jätka »

Books

Commentaries on the Laws of England: In Four Books, 2. köide