10. Are prisoners, captives, and the like abso-
lutely intestable? 497.
11 In what cases may a feme-covert make a
testament of chattels ? 498.
12. Who is an exception to the general rule
that a feme-covert cannot make a testament of
chattels? 498.
13. What if a feme-sole make her will and
afterwards marry? 499.
14. Who are persons incapable of making
testaments on account of their criminal conduct?
499.
15. Into what two sorts are testaments divided?
16. What is a codicil; and of what two sorts?
500.
17. Under what three restrictions has the sta-
tute of frauds, 29 Car. II. c. 3, laid nuncupative
wills and codicils ? 500, 501.
18. What witness of their publication do written
testaments of chattels need? 501.
19. What if there be many testaments of dif-
ferent dates; and what effect has the republi-
cation of a former will upon one of a later date?
502.
20. In what three ways may testaments be
avoided? 502.
21. What if a man who hath made a will
marry and have a child? 502.
31. What is an administrator de bonis non ? 506
32. What is the difference between the offices
and duties of executors and those of administra-
tors? 507.
33. Who is an executor de son tort; and how
shall he be treated? 507.
34. What are the seven powers and duties of
a rightful executor or administrator? 508, 510-
512, 514, 515.
35. In what two ways is a will proved; and
what is styled the probate? 508.
36. When must the will be proved before the
ordinary of the jurisdiction, and when before the
metropolitan of the province by way of special pre-
rogative? 508, 509.
37. If there be two or more executors or admi-
nistrators, is a sale or release by one of them good
against the rest? 510.
38. What are called assets? 510.
39. In what order of priority must the de-
ceased's debts be paid? 511.
40. What if a creditor constitute his debtor his
executor? 512.
41. May an executor or administrator give him-
self the preference in the payment of the de-
ceased's debts and legacies? 511, 512.
42. What is a legacy, and what is necessary
to its perfection? 512.
43. In case of a deficiency of assets, what
legacies must abate, and how? 512, 513.
22. Is it necessary to leave the heir a shilling;
or, if the heir or next of kin be totally omitted in
the will, does the law admit a querela inofficiosiit
to set it aside? 503.
44. What is a lapsed legacy; and to whom does
lapse? 513.
45. What is a contingent and what a vested
23. What is an executor, and who may be one? legacy? 513.
503.
24. What must be done if the executor be not
seventeen years of age, or be out of the realm
when a suit is commenced in the ecclesiastical
court touching the validity of the will? 503.
25. What if the testator name no, or incapable,
executors, or if the executors named refuse to act?
503, 504.
26. What if the deceased die wholly intestate
without making either will or executors? 504.
27. In granting letters of administration pur-
suant to the statutes 31 Edw. III. c. 11 and 21
Hen. VIII. c. 5, by what seven rules is the or-
dinary bound? 504, 505.
28. Who may administer to a bastard? 505,
506.
29. If the executor of A. die, who is A.'s ex-
ecutor? 506.
46. But what if such legacies be charged upon
real estate? 513.
47. When do legacies carry interest? 513, 514.
48. What is a donation causa mortis ? 514.
49. When shall the residuum go to the executor,
and when to the next of kin ? 514, 515.
50. How do the statutes 22 & 23 Car. II. c.
10, explained by 29 Car. II. c. 30 and 1 Jac. II.
c. 17, distribute the surplusage of intestate's es-
tates? 515, 516.
51. But what are the customs of the city of
London and the province of York as to the distri-
bution of intestate's effects which are expressly
reserved by the statute of distributions? 518, 519.
52. What is the widow's chamber by these cus-
toms? 518.
53. What was the dead man's part? 518.
54. In what two principal points do the cus-
30. Is it the same with regard to A.'s admi- toms of London and York considerably differ?
nistrator? 506.
BOOK III.-OF PRIVATE WRONGS.
CHAP. I. Of the Redress of Private Wrongs by wrongs which is obtained by the mere act of the
parties? 3.
the mere Act of the Parties.
1. WHAT are private wrongs as distinguished
from public wrongs; and why are the former
frequently termed civil injuries, and the latter
crimes and misdemeanours? 2.
2. How is the redress of private wrongs prin-
cipally to be sought? 2, 3.
3. Into what three species may the redress of
private wrongs be distributed? 3.
5. Of what six species is that redress of pri-
vate wrongs which arises from the sole act of the
injured party? 3–6, 15.
6. What is a distress, districtio; and for what
four injuries may a distress be taken? 6, 7.
7. What are cattle damage-feasant? 7.
8. What six species of things cannot be dis-
trained? 7-10.
9. What are cattle levant and couchant elevan
4. Of what two sorts is that redress of private | tes et cubantes? 9
10. When, where, and how must all distresses be
made; with what exceptions as to the time? 11.
11. In what cases may a second distress for
the same duty be made? 11, 12.
12. What does the statute of Marlberge, 52 Hen.
III. c. 4, enact as to unreasonable distress? 12.
13. How must a distress be disposed of; and
when may it be rescued by its owner? 12.
14. V. hat is a pound (parcus); and of what
four kinds? 12.
15. What is the difference in the effect be-
tween impounding a live distress in a common
pound-overt and in a special pound-overt? 13.
16. What if the beasts are put in a pound-
covert; or if a distress of dead chattels be not put
in one? 13.
17. How long must beasts taken damage-feasant
and distresses for suit or services remain impounded?
13.
18. What is to replevy (replegiare)? 13.
19. When is the distress salable for a debt due
to the crown for an amercement to the lord, and for
statute distresses; and when in all cases of dis-
tress for rent? 14.
20. What has the statute 11 Geo. II. c. 19 pro-
vided in case of any unlawful act done in taking
a distress? 15.
21. Are those who are entitled to that redress
of private wrongs which arises from the sole act
of the injured party debarred of their redress by
suit or action? 15.
22. Of what two species is that redress of
private wrongs which arises from the joint act of
all the parties together? 15.
23. What is accord; and what is its effect?
15, 16.
24. In what cases is tender of sufficient amends
to the party injured a bar of all actions? 16.
25. What is arbitration; who is an umpire (im-
perator or impar); and what is an award? 16.
26. How may the right of real property pass
by an award? 16.
27. In what case does the statute 9 & 10 W.
III. c. 15 enact that all submissions of suit to
arbitration or umpirage may be made rules of any
of the king's courts of record? 17.
2. Is not the ordinary course of justice ex
cluded by the extrajudicial remedy which the
law allows in the several cases of redress by the
act of the parties mentioned in a former chapter
22, 23.
3. What in the cases of remedy by the mere
operation of law? 23.
4. What is a general and indisputable rule
where there is a legal right? 23.
5. What is a court defined to be? 23.
6. Whence are all courts of justice derived?
7. What one distinction runs throughout all
courts of justice? 24.
8. What constitutes a court of record; and by
what shall its existence be tried? 24, 25.
9. What is a court not of record; what is the
extent of its power, and by what shall its ex-
istence be tried? 25.
10. What three constituent parts must there
be in every court; and what assistants is it usual
for the superior courts to have? 25.
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14. Of what two species or degrees are advo-
cates or counsel? 26.
15. When may a barrister be called to the state
and degree of a serjeant; and who are by custom
always admitted into this venerable order as a
qualification for their office? 27.
16. Who are his majesty's counsel learned in the
law, and his attorney and solicitor general; and
what are their restrictions? 27.
17. To what does a patent of precedence entitle
a barrister? 28.
18. Who are clients? 28.
19. Can a counsel maintain an action for his
fees? 28.
20. For what spoken by him is a counsel not
answerable? 29.
21. How are counsel guilty of deceit or collu-
sion punishable by the statute Westminster 1,
3 Edw. I. c. 28? 29.
CHAP. IL-Of Redress by the mere Operation of CHAP. IV.-Of the Public Courts of Common
1. Or what two species is that redress of pri-
vate wrongs which is effected by the mere opera-
tion of law? 18.
2. Why, when a creditor is executor or admi-
nistrator, is he allowed to retain his own debt?
18, 19.
3. But in prejudice to whom can he not retain
his own debt? 19.
4. What is remitter? 19, 20.
5. But what if the subsequent estate or right
of possession be gained by a man's own act and
consent? 20.
6. What is the reason why this remedy of re-
mitter to a right was allowed? 20.
7. But what, too, if the party have no remedy
by action? 21.
CHAP. III.-Of Courts in General.
1. WHAT is that redress of private wrongs
wherein the act of the parties and the act of law
co-operate? 22.
1. Or what two natures are courts of justice
with regard to their several species? 30.
2. Of what four sorts are public courts of jus-
tice? 30.
3. What are the ten general and public courts
of common law and equity constituted for the re-
dress of civil injuries, beginning with the lowest;
and, of these ten, which are of a partial juris-
diction and confined to particular districts, and
which are the superior courts, calculated for the
administration of redress throughout the whole
kingdom; which are courts of record, and which
not, and which are courts of equity as well as
law? 32-35, 37, 41, 44, 47, 48, 56, 57.
4. What is the court of piepoudre; who is the
judge of it; what is its jurisdiction; and where
lies an appeal from it? 32, 83.
5. What is the court-baron; by whom is it
held as registrar; and of what two natures is it?
33.
6. Before whom, as judges, is the court-baron
of the second or common-law nature held; what
pleas may it hold; whither may its proceedings
be removed; and where lies an appeal from it?
7. What is a hundred court; who are its judges
and registrar; whither may its proceedings be
removed; and where lies an appeal from it?
34, 35.
8. What is the county court; what pleas may
it hold; who are its real judges, and who its
ministerial officer; whither may its proceedings be
removed; and where lies an. appeal from it?
36, 37.
9. What is the origin of the court of common
pleas or common bench; and by what was the
court rendered fixed and stationary where? 38,
39.
10. What benefit did the common law itself de-
rive from this establishment of its principal
court? 39.
a court of equity could give relief after cr against
a judgment at common law? 54.
30. What chancellor first built a system of
equitable jurisprudence and jurisdiction upon
wide and rational foundations, and occasioned
the power and business of the court of chancery
to increase to its present amazing degree? 56.
31. Where lies an appeal from this court of
equity in chancery; and what two differences are
there between appeals from a court of equity and
writs of error from a court of law? 56.
32. What is the nature of all the branches of
the court of exchequer chamber; and of whom
does it now consist? 56, 57.
33. Where lies an appeal from this court? 57.
34. What is the nature of the house of peers as
a court of judicature; and where lies an appeal
from it? 57.
35. What is an eleventh species of courts of
general jurisdiction and use which are derived
regu-out of, and act as collateral auxiliaries to, the
foregoing? 58.
11. Into what two sorts are pleas or suits
larly divided; and of what court's jurisdiction
were each of these the proper objects? 40.
12. What are the judges of the court of common
pleas; and when do they sit? 41.
13. Where lies an appeal from this court? 41.
14. What is the court of king's bench; why is
it so called, and what are its judges? 41.
15. For what reason is all process issuing out
of this court in the king's name returnable "ubi-
cunque fuerimus in Anglia"? 41, 42.
16. What is the jurisdiction of this court;
and by what fiction can it hold plea of all per-
sonal actions whatever? 42-44.
17. Where lies an appeal from this court? 44.
18. What is the court of exchequer (scaccha-
rium); why is it so called; and what is its rank?
19. Of what two divisions does it consist;
and what are the two subdivisions of the second
division? 44.
20. Where and before whom is the exchequer
court of equity held; and what is the primary
and original business of this court? 45.
21. But by what fiction, with the help of the
common-law part of this court's jurisdiction, may
all kinds of personal suits be prosecuted in it?
45, 46.
22. Where lies an appeal from the equity side
of this court; and where from the common law?
46.
23. What is the court of chancery (cancellaria);
why is it so called; and how is the office of
chancellor or lord-keeper created? 47.
24. What is the chancellor virtute officii; and
what are his powers and authorities? 47, 48.
25. Of what two distinct tribunals does the
court of chancery consist? 48.
26. What is the jurisdiction of the ordinary
legal court in chancery; what if any fact be dis-
puted between the parties; and where lies an
appeal from its judgments in law? 48, 49.
27. What writs issue from the common-law
court in chancery; and what is the origin of the
hanaper and petty-bag offices? 49.
28. What is the origin of the separate juris-
diction of the chancery as a court of equity? 51-
53.
29. How was that notable dispute decided
which was set on foot by Sir Edward Coke when
chief justice of the court of king's bench, whether
36. Of what are these courts composed; how
often in the year are they instituted, and for
what purpose? 58, 59.
37. By virtue of what five several authorities
do the judges upon their circuits now sit? 60.
38. What is a commission of assize? 60.
39. What is a commission of nisi prius? 60.
CHAP. V.-Of Courts Ecclesiastical, Military, ana
Maritime.
1. WHO first separated the ecclesiastical court
from the civil? 62.
2. What are the seven principal courts of ec-
clesiastical jurisdiction, or, as they are often
styled, courts Christian, (curiæ Christianitatis,) be-
ginning with the lowest? 64-67.
3. What is the jurisdiction of the archdeacon's
court; before whom may it be held; and where
lies an appeal from it? 64.
4. What is the jurisdiction of the consistory
court of every diocesan bishop; where is it held;
who is the judge; and where lies an appeal from
it? 64.
5. What is the court of arches; why is its judge
called dean of the arches; what is now the juris-
tion of the court; and where lies an appeal
from it? 64, 65.
6. What is the court of peculiars; what is its
jurisdiction; and where lies an appeal from it?
65.
7. What is the jurisdiction of the prerogative
court; by whom is the judge appointed; and
where lies an appeal from it? 65, 66.
8. What is the nature of the court of delegates
(judices delegati); and by whom are they ap-
pointed? 66, 67.
9. What is a commission of review? 67.
10. What is the only court military known to
and established by the permanent laws of the
land; before whom is it held; of what has it
cognizance; and where lies an appeal from it?
68.
11. What are the three maritime courts; and
what are their power and jurisdiction? 68, 69.
12. Before whom is the court of admiralty held;
according to the method of what law are its pro-
ceedings; and where is it held? 69.
13. Where lies an appeal from the ordinary
sentences of the admiralty judge; but, in cases
of prize vessels taken in the time of war in any
part of the world and condemned in any of the
courts of admiralty or vice-admiralty as lawful
prize, where lies an appeal? 69.
CHAP. VI.-Of Courts of a Special Jurisdiction.
1. WHAT are the ten courts whose jurisdiction
is private and special, confined to particular
spots, or instituted only to redress particular in-
juries 71, 78-75, 77-80, 83.
2. What were the forest courts? 71-73.
3. By whom is the court of commissioners of
sewers appointed; what are their jurisdiction
and power; and under whose control are they?
73, 74.
4. What are the power and jurisdiction of the
court of policies of assurance; by whom may it
be appointed; of whom does it consist; and
why has it fallen into disuse? 74, 75.
5. What is the origin of the court of the mar-
shalsea and the palace-court at Westminster; how
were both revived by king Charles I.; what is
their present jurisdiction; how may their pro-
ceedings be removed; and where lies an appeal
from them? 75, 76.
6. What are the courts of the principality of
Wales; by whom are the judges of session ap-
pointed; what is their jurisdiction; and where
lies an appeal from their judgments? 77.
7. What writs of process of the king's courts at
Westminster run into the principality of Wales;
and when may actions between Welsh parties be
brought in the English courts, and where may
they be tried? 77, 78.
17. In what one instance have the proceed-
ings in the county and hundred courts been again
revived by the statute 23 Geo. III. c. 33; and
what does it enact? 83.
18. What are the jurisdiction and system of
jurisprudence of the chancellor's courts in the
two universities of England; and why, in the
reign of Queen Elizabeth, was an act of par
liament obtained confirming all the charters of the
two universities? 83-85.
19. Who is the judge of the chancellor's court;
and what is the progress of an appeal from its
decisions? 85.
CHAP. VII.-Of the Cognizance of Private Wrongs.
1. Or what three classes are wrongs or injuries
cognizable by the ecclesiastical court, not for the
sake of the party injuring, (pro salute animæ,) but
for the sake of the party injured? 87, 88.
2. From what five principal injuries do the pe-
cuniary causes cognizable in the ecclesiastical court
arise? 88-92.
3. When will a suit for tithes lie in ecclesiastical
courts? 88, 89.
4. What, by the ancient law and by the sta-
tute 2 & 3 Edw. VI. c. 13, is the penalty in case
any person shall carry off his predial tithes before
the tenth part be duly set forth, or agreement
be made with the proprietor, or shall withdraw
his tithes of the same, or shall hinder the pro-
prietor of the tithes, or his deputy, from viewing
or carrying them away? 89.
5. But how may what tithes and dues be re-
covered by statutes 7 W. III. c. 6 and 8 W. III.
c. 34? 89, 90.
6. When will a suit for fees lie in the eccle-
8. What are the nature and jurisdiction of the
court of the duchy-chamber of Lancaster; and be-siastical courts? 90.
fore whom may it be held? 78.
9. What is the jurisdiction of the courts apper-
taining to the counties palatine of Chester, Lan-
caster, and Durham, and the royal franchise of
Ely; under whose government are these fran-
chises; and by virtue of what do the judges of
assize sit therein? 78, 79.
10. What franchises and exclusive jurisdiction
(before whom) have the cinque ports of Dover,
Sandwich, Romney, Hastings, and Hythe, to which
Winchelsey and Rye have been added; and what
is the progress of an appeal from them? 79.
11. Why may all prerogative writs issue to
these exempt jurisdictions? 79.
12. What are the stannary courts in Devonshire
and Cornwall; and before whom are they held?
79.
13. What are the privileges of tinners; and
what is the progress of appeal from decisions in
a stannary court? 80.
14. What is the origin of the several courts
within the city of London and other cities, bo-
roughs, and corporations, held by prescription,
charter, or act of parliament; under what su-
perintendency are they; and according to what
aw must their proceedings be? 80, 81.
15. What are the nature and constitution of
the courts of requests or courts of conscience; and
wherein do their proceedings vary from the
course of the common law? 81.
16. What does the commentator recommend
in preference to courts of requests; and why?
82, 83.
7. When has a curate a remedy for his salary
in the ecclesiastical court? 90.
8. What is spoliation, and when is it cognizable
in the spiritual court? 90, 91.
9. When will the temporal courts interfere with
the spiritual in causes matrimonial? 93.
10. What are the five principal mutrimonial
causes now cognizable in the ecclesiastical courts ?
93, 94.
11. When does the ecclesiastical law decree &
divorce à menså et thoro, and when à vinculo ma-
trimonii? 94.
12. What are the three principal testamentary
causes belonging to the ecclesiastical jurisdiction?
98.
13. In what cases of testamentary causes do
the courts of equity exercise a concurrent juris-
diction with the ecclesiastical courts; and why? 98.
14. According to the practice of what laws
are the proceedings in the ecclesiastical courts
regulated? 100.
15. When will the courts of common law awa:
a prohibition against the proceedings in cho
spiritual court? 100.
16. What is the ordinary course of proce ding
in the ecclesiastical courts? 100, 101.
17. What process have the ecclesiastical courts
to enforce their sentences? 101.
18. What are the two sorts of excommunication?
101.
19. What if the judge of any spiritual court
excommunicate a man for a cause of which he
hath not the legal cognizance? 101.
20. What acts is an excommunicated person | bition directed to declare in prohibition; and what
disabled from doing? 102.
is the nature and effect of that proceeding? 113,
21. What are writs of significavit or de excom-
municato capiendo and de excommunicato delibe-
rando; when and whence do they issue; and
what are their effects? 102.
22. What assistance is given by the statutes
27 Hen. VIII. c. 20 and 32 Hen. VIII. c. 7 in
case of subtraction of tithes? 102, 103.
23. What is the jurisdiction of the court mili-
tary or courts of chivalry declared to be by sta-
tute 13 Ric. II. c. 2; and by what fiction of
common law has it been still more narrowly con-
fined? 103.
24. Of what two civil injuries is it cognizable?
103, 104.
25. Will an action for words lie; and what
remedy can the court military give as a court of
honour? 104.
26. What were the proceedings of the court
military as a court of heraldry and precedence;
and why has it fallen into disuse? 105.
27. What deeds and records of the heralds are
received in a court of justice? 105.
28. How has the house of lords provided for
the descent of peers? 106.
29. Have the courts maritime cognizance of
any thing done by water within the body of any
county, of wrecks, of things flotsam, jetsam, and
ligan, of seaman's wages contracted for on land,
of charter parties or ship covenants, or of con-
tracts made upon sea to be performed in Eng-
land; and what is the general rule as to their
jurisdiction? 106, 107.
30. By what fiction of common law has the
cognizance of suits been drawn from the courts
of admiralty to those of Westminster hall? 107.
31. What if a question that is proper for the
cognizance of the court of admiralty should
arise in a cause of which that court hath not the
original jurisdiction; or if a question properly
determinable by the common law should arise in
a cause of which the court of admiralty hath the
original jurisdiction? 108.
32. Upon what laws are the proceedings of
the courts of admiralty founded? 108.
33. What are their process and power? 108,
34. What injuries are cognizable by the courts
of common law? 109.
35. What is the remedy when justice is either
refused or delayed by an inferior court that has
proper cognizance of the cause? 109.
36. What is a writ of procedendo ad judicium ;
and when and whence does it issue? 109, 110.
37. What is a writ of mandamus; and when
and whence does it issue? 110, 111.
38. What is a peremptory mandamus; when does
it issue; and what if a false return should be
39. What is the remedy when an inferior court
encroaches on its jurisdiction or calls one coram
non judice to answer in a court that has no legal
cognizance of the cause? 111.
40. What is a writ of prohibition; and when,
whence, and whither does it issue? 112.
41. What if the judge or the party shall pro-
ceed after such prohibition? 113.
12. What is the usual form of proceeding upon
prohibitions? 113.
44. When is a writ of consultation awarded
upon that proceeding; why is it so called; and
what is its effect? 114.
45. What if the fact upon which the prohibition
is granted be afterwards falsified? 114.
46. In what other case is the writ of consulta-
tion frequently granted? 114.
CHAP. VIII.-Of Wrongs and their Remedies re-
specting the Rights of Persons.
1. WHAT two things may be considered in
treating of the cognizance of injuries by the
courts of common law? 115.
2. What is the plain, natural remedy for every
species of wrong between subject and subject?
116.
3. In what two ways may this remedy be
effected? 116.
4. What are the instruments whereby this
remedy is obtained? 116.
5. Into what three kinds are the suits, from
the subject of them, distinguished? 117.
6. Of what two sorts are personal actions; and
upon what is each said to be founded? 117.
7. What are real actions; and why and for
what are they now pretty generally laid aside
in practice? 118.
8. What are mixed actions? 118.
9. What distinction into two kinds runs through
all civil injuries; the latter species why savouring
of the criminal kind, and how, therefore, in strict-
ness of law, liable to a double punishment? 118,
119.
10. May we make the same division of injuries
that we did of rights in a former book? 119.
11. Into what two kinds, may we remember,
were the rights of persons distributed; and what
three were the absolute rights of each individual
defined to be; and must the wrongs or injuries
affecting them be of a correspondent nature?
119.
12. Of what five kinds are the injuries which
affect the personal security of individuals? 119.
13. By what five means may the two species
of injuries affecting the limbs or bodies of indi-
viduals be committed? 120, 121.
14. What is necessary to complete the injury
of threat? 120.
15. What constitutes assault? 120.
16. What constitutes battery; and when is
battery justifiable? 120.
17. What is the plea of son assault demesne?
120.
18. What is the plea of molliter manus imposuit ;
and when may it be pleaded in justification? 121.
19. What is mayhem? 121.
20. What are the members the loss of which
constitutes mayhem; and what are not? 121.
21. For which of these five injuries may ak
indictment be brought as well as an action; and
why? 121.
22. What are the injuries affecting a man's
health; and, these being injuries unaccompanied
by force, what is the remedy for them? 122.
23. What is the special action of trespass or
transgression upon the case; and why is it so
43. When is the party applying for the prohi- | called? 122.
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