« EelmineJätka »
damages; by action on the case, for tro
ver and conversion.......... ............Page : 51 7. For damage to personal property, while
in the owner's possession, the remedy is in damages, by action of trespass vi et armis, in case the act be immediately injurious, or by action of trespass on the case, to redress consequential damage..
153 8. Injuries to personal property, in action,
arise by breach of contracts, I. Express. II. Implied...
153 9. Breaches of express contracts are, I.
By non-payment of debts. , Remedy: 1st, specific payment; recoverable by action of debt; 2dly, damages for nonpayment; recoverable by action on the
II. By non-performance of covenants. Remedy: by action of covenant, 1st, to recover damages, in covenants personal; 2dly, to compel performance in covenants real. III. By non-performance of promises, or assumpsits. Remedy: by action on the case, for damages...
.154-158 10. Implied contracts are such as arise,
I. From the nature and constitution of government. II. From reason and the construction of law.........
158 11. Breaches of contracts implied in the
nature of government are by the nonpayment of money which the laws have directed to be paid. Remedy: by action of debt, (which, in such cases, is frequently a popular, frequently a qui tam action,) to compel the specific payment; or sometimes by action on the case, for damages......
.158-161 12. Breaches of contracts implied in reason
and construction of law are by the nonperformance of legal presumptive assumpsits : for which the remedy is in damages; by an action on the case, on the implied assumpsits. I. Of a quantum meruit. II. Of a quantum valebat. III. Of money expended for another. IV. Of receiving money to another's use. V. Of an insimul computassent, on an account stated, (the remedy on an account unstated being by action of account.) VI. Of performing one's duty, in any employment, with integrity, diligence, and skill. In some of which cases an action of deceit (or on the case, in nature of deceit) will lie....
.........161-166 CHAPTER X. OF INJURIES TO REAL PROPERTY; AND
FIRST OF DISPOSSESSION, OR OUSTER, OF
..167 to 197 1. Injuries affecting real property are, I. Ouster. II. Trespass.
III. Nuisance. IV. Waste. V. Subtraction. VI. Disturbance.
167 2. Ouster is the amotion of possession; and
is, I. From freeholds. II. From chattels real....
167 3. Ouster from freeholds is effected by, I.
Abatement. II. Intrusion. III. Disseisin. IV. Discontinuance. V. Deforcement......
10. Injuries to reputation are, I. Slander
ous and malicious words. Remedy: by' action on the case, for damages. II. Libels. Remedy: the same. III. Malicious prosecutions. Remedy: by action of conspiracy, or on the case, for damages.
Page 123 11. The gole injury to personal liberty
is false imprisonment. Remedies: I. By writ of, 1st, main prize ; 2dly, odio et atia; 3dly, homine replegiando; 4thly, habeas corpus ;
to remove the wrong. II. By action of trespass; to recover damages
........ ..127-138 12. For injuries to private property, see the
Husbands. II. Parents. III. Guardians.
138 14. Injuries to a husband are, I. Abduc
tion, or taking away his wife. Remedy: by action of trespass de uxore rapta et abducta, to recover possession of his wife, and damages. II. Criminal conversation with her. Remedy: by action on the case, for damages. III. Beating her. Remedy: by action on the case, per quod consortium amisit, for damages....
139 15. The only injury to & parent or guar
dian, is the abduction of their children, or wards.
Remedy: by action of trespass, de filiis, vel custodiis, raptis vel abductis ; to recover possession of them, and damages...
....140-141 16. Injuries to a master are, I. Retain
ing his servants. Remedy: by action on the case, for damages. II. Beating them. Remedy: by action on the case, per quod servitium amisit; for damages.......
OF INJURIES TO PERSONAL PROPERTY.. 144 to 166 1. Injuries to the rights of property are
either to those of personal, or real, property ..... .......
144 2. Personal property is either in possession, or in action...
144 3. Injuries to personal property in posses
sion are, I. By dispossession. II. By damage, while the owner remains in
possession. 4. Dispossession may be effected, I. By an
unlawful taking. II. By an unlawful detaining...
144 5. For the unlawful taking of goods and
chattels personal, the remedy is, I. Actual restitution; which (in case of a wrongful distress) is obtained by action of replevin. II. Satisfaction in damages: 1st, in case of rescous, by action of rescous, pound-breach, or on the case; 2dly, in case of other unlawful takings, by action of trespass, or trover....
... 145–151 u For the unlawful detaining of goods
lawfully taken, the remedy is also, I. Actual restitution; by action of replevin, or detinue. II. Satisfaction in
4. Abatement is the entry of a stranger, estates by statute and elegit. II. From after the death of the ancestor, before the an estate for years .........
.... Page 198 heir .......
.Page 167 2. Ouster from estates by statute or elegit 5. Intrusion is the entry of a stranger, is effected by a kind of disseisin. Reme
after a particular estate of freehold is dy: restitution, and damages; by assise determined, before him in remainder or of novel disseisin..........
198 reversion...... .....
169 3. Ouster from an estate for years is ef6. Disseisin is a wrongful putting out of fected by a like disseisin or ejectment.
him that is seised of the freehold........ 169 Remedy: restitution and damages; I. 7. Discontinuance is where tenant in tail, By writ of ejectione firmæ. II. By writ of or the husband of tenant in fee, makes a quare ejecit infra terminum......
199 larger estate of the land than the law 4. A writ of ejectione firmæ, or action of tresalloweth .....
171 pass in ejectment, lieth where lands, &c., 8. Deforcement is any other detainer of the are let for a term of years and the lessee
freehold from him who hath the property, is ousted or ejected from his term ; in but who never had the possession.......... 172 which case he shall recover possession of The universal remedy for all these is re- his term, and damages.. stitution or delivery of possession, and, 5.' This is now the usual method of trying sometimes, damages for the detention. titles to land, instead of an action real: This is effected, I. By mere entry. II. viz., by, I. The claimant's making an acBy action possessory. III. By writ of tual (or supposed) lease upon the land to right...........
174 the plaintiff. II. The plaintiff's actual 10. Mere entry on lands, by him who hath (or supposed) entry thereupon. III. His
the apparent right of possession, will (if actual (or supposed) ouster and ejectpeaceable) devest the mere possession of ment by the defendant. For which ina wrong-doer. But forcible entries are jury this action is brought, either against remedied by immediate restitution, to be the tenant, or (more usually) against given by a justice of the peace......... 176-179 some casual or fictitious ejector; in whose 11. Where the wrong-doer hath not only stead the tenant may be admitted de
mere possession, but also an apparent fendant, on condition that the lease, enright of possession; this may be devested try, and ouster be confessed, and that by him who hath the actual right of pos- nothing else be disputed but the merits session, by means of the possessory ac- of the title claimed by the lessor of the tions of writ of entry, or assise.... 179 plaintiff .....
..... 200-200 12. A writ of entry is a real action, which 6. A writ of quare ejecit infra terminum is an
disproves the title of the tenant, by show- action of a similar nature; only not ing the unlawful means under which he brought against the wrong-doer or ejector gained or continues possession. And it himself, but such as are in possession may be brought, either against the wrong- under his title .......
207 doer himself; or in the degrees called the per, the per and cui, and the post...... 180
CHAPTER XII. 13. An assise is a real action, which proves the title of the demandant, by showing
OF TRESPASS .................................. 208 to 215 his own, or his ancestor's, possession.
1. Trespass is an entry upon, and damage And it may be brought either to remedy
done to, another's lands, by one's self, ir abatements; viz. the assise of mort d'an
one's cattle; without any lawful author. cestor, &c.: or to remedy recent disseisins;
ity, or cause of justification : which is viz. the assise of novel disseisin ......... 184-190
called a breach of his close. Remedy: ·14. Where the wrong-doer hath gained the
damages ; by action of trespass quare actual right of possession, he who hath
clausum fregit: besides that of distress the right of property can only be reme
damage feasant. But, unless the title to died by a writ of right, or some writ of a
the land come chiefly in question, or the similar nature. As, I. Where such right
trespass was wilful or malicious, the of possession is gained by the discon
plaintiff (if the damages be under forty tinuance of tenant in tail. Remedy, for
shillings) shall recover no more costs
...... 208-215 the right of property : by writ of forme
than damages .. don. Il. Where gained by recovery in a
CHAPTER XIII. possessory action, had against tenants of particular estates by their own default. OF NUISANCE...
.216 to 210 Remedy: : by writ of quod ei deforceat. 1. Nuisance, or annoyance, is any thing III. Where gained by recovery in a pos- that worketh damage, or inconvenience; sessory action, had upon the merits. IV. and it is either a public and common nuiWhere gained by the statute of limita- sance, of which in the next book; or, a tions. Remedy, in both cases: by a private nuisance, which is any thing done mere writ of right, the highest writ in to the hurt or annoyance of, I. The corthe law....
.190-197 poreal, II. The incorporeal, hereditaments of another........
...... 216 CHAPTER XI.
2. The remedies for a private nuisance DISPOSSESSION, OR OUSTER, OF Chat- (besides that of abatement) are, . I. TELS REAL......
198 to 207 Damages ; by action on the case (which 1 Ou ster from chattels real is, I. From also lies for special prejudice by a public
nuisance.) II. Removal thereof, and or, writ of admeasurement of pasture; to lamages ; by Assise of nuisance. III. apportion the common ;-and writ de seLike removal, and damages; by writ of cunda superoneratione ; for the supernuquod permittat prosternere
merary cattle, and damages. III. Enclo
sure, or obstruction. Remedies : restiCHAPTER XIV.
tution of the common, and damages; by
assise of novel disseisin, and by writ of Or WASTE.......
223 to 229
quod permittat: or, damages only; by 1. Waste is a spoil and destruction in lands action on the case.....
.Page 237-240 and tenements, to the injury of him who
5. Disturbance of ways is the obstruction, hath, I. An immediate interest (as, by
I. Of a way in gross, by the owner of the right of common) in the lands. ÎI. The
land. II. Of a way appendant, by a remainder or reversion of the inheritance 223
stranger. Remedy, for both: damages ; 2. The remedies, for a commoner, are, re
by action on the case .......
241 stitution, and damages; by assise of com- 6. Disturbance of tenure, by driving away mon: or, damages only; by action on the
tenants, is remedied by a special action 224 on the case ; for damages.....
242 3. The remedy for him in remainder, or 7. Disturbance of patronage is the hinderreversion, is, I. Preventive: by writ of
ance of a patron to present his clerk to a estrepement at law, or injunction out of
benefice; whereof usurpation within six Chancery; to stay waste. II. Corrective:
months is now become a species......... 242 by action of waste; to recover the place 8. Disturbers may be, I. The pseudo-patron, wasted, and damages.......
by his wrongful presentation. II. His
clerk, by demanding institution. III. CHAPTER XV.
The ordinary, by refusing the clerk of OF SUBTRACTION
244 the true patron ......
...230 to 235 1. Subtraction is when one who owes ser
9. The remedies are, I. By assise of darrein vices to another withdraws or neglects
presentment ; II. By writ of quare impcdit to perform them. This may be, I. Of
-to compel institution and recover darents, and other services, due by tenure.
mages: consequent to which are the writs II. Of those due by custom....
of quare incumbravit, and quare non ad2. For subtraction of rents and services
misit; for subsequent damages. III. By due by tenure, the remedy is, I. By dis
writ of right of advowson; to compel tress; to compel the payment, or perform
institution, or establish the permanent right...
.. 245-252 II. By action of debt: III. By ance. assise. IV. By writ de consuetudinibus et
CHAPTER XVII. servitiis; to compel the payment. V. By writ of cessavit; and, VI. By writ of right
OF INJURIES PROCEEDING FROM, OR AFFECTsur disclaimer-to recover the land it- ING, THE CROWN.....
......... 254 to 265 self...... ............................. 231-234 1. Injuries to which the crown is a party, 3. To remedy the oppression of the lord,
are, I. Where the crown is the aggressor. the law has also given, I. The writ of ne
II. Where the crown is the sufferer .... 254 injuste vexes: II. The writ of mesne ...... 234 2. The crown is the aggressor, whenever it 4. For subtraction of services due by cus- is in possession of any property to which tom, the remedy is, I. By writ of secta
the subject hath a right ... .......... 254–255 ad molendinum, furnum, torrale, &c.; to
3. This is remedied, I. By petition of right; compel the performance, and recover where the right is grounded on facts disdamages. II. By action on the case ; for
closed in the petition itself. II. By mondamages only......
235 strans de droit ; where the claim is ground
ed on facts already appearing on record. CHAPTER XVI.
The effect of both which is to remove the
hands (or possession) of the king...... 256–257 OF DISTURBANCE....
........... 236 to 252 4. Where the crown is the sufferer, the 1. Disturbance is the hindering or disquiet- king's remedies are, I. By such commoning the owners of an incorporeal heredita
law actions as are consistent with the ment, in their regular and lawful enjoy- royal dignity. II. By inquest of office, ment of it.......
to recover possession: which, when found, 2. Disturbances are, I. Of franchises. II. gives the king his right by solemn matter Of commons. III. Of ways. IV. Of
of record; but may afterwards be tratenure. V. Of patronage.....
236 versed by the subject, III. By writ of 3. Disturbance of franchises is remedied scire facias, to repeal the king's patent or
by a special action on the case ; for da- grant. IV. By information of intrusion, mages..
236 to give damages for any trespass on the 4. Disturbance of common is, I. Intercom
lands of the crown; or of debt, to recover moning without right. Remedy: da- moneys due upon contract, or forfeited by mages; by an action on the case, or of the breach of any penal statute; or sometrespass : besides distress damage fea- times in the latter case) by information sant; to compel satisfaction. II. Sur- in rem : all filed in the Exchequer ex officio charging the common. Remedies: dis
by the king's attorney-general. V. By tress damage feasant; to compel satisfac- writ of quo warranto, or information in tion: action on the case ; for damages : the nature of such writ; to seize into the
king's hands any franchise usurped by which is either a dilatory plea (1st, to the subject, or to oust a usurper from the jurisdiction ; 2dly, in disability of the any public office. VI. By writ of manda- plaintiff; 3dly, in abatement, or it is a mus, unless cause; to admit or restore plea to the action; sometimes confessing any person entitled to a franchise or the action, either in whole, or in part, office: to which, if a false cause be re- (wherein of a tender, paying money into turned, the remedy is by traverse, or by court, and set-off,) but usually denying action on the case for damages; and, in the complaint, by pleading either, 1st, consequence, a peremptory mandamus, or the general issue; or, 2dly, a special bar, writ of restitution
.Page 257–265 (wherein of justifications, the statutes of
limitation, &c.) IV. Replication, rejoinCHAPTER XVIII.
der, surrejoinder, rebutter, surrebutter,
&c. Therein of estoppels, colour, dupliOF THE PURSUIT OF REMEDIES BY Action,
city, departure, new assignment, protestAND, FIRST, OF THE ORIGINAL WRIT..270 to 272 1. The pursuit of the several remedies fur
ation, averment, and other incidents of pleading..
Page 293–313 nished by the laws of England, is, I. By action in the courts of common law. II. By proceedings in the courts of equity... 270
CHAPTER XXI. 2. Of an action in the court of Common
OF Issue AND DEMURRER. ........314 to 317 Pleas, (originally the proper court for 1. Issue is where the parties, in a course of prosecuting civil suits,) the orderly parts
pleading, come to a point affirmed on one are, I. The original writ.
II. The pro
side and denied on the other: which, if it III. The pleadings. IV. The
be a matter of law, is called a demurrer; issue or demurrer. V. The trial. VI.
if it be a matter of fact, still retains the The judgment. VII. The proceedings in name of an issue of fact..........
314 nature of appeal. VIII. The execution 272 2. Continuance is the detaining of the par3. The original writ is the beginning or ties in court from time to time, by giving
foundation of a suit, and is either op- them a day certain to appear upon. And, tional, (called a præcipe,) commanding the if any new matter arises since the last defendant to do something in certain, or continuance or adjournment, the defendotherwise show cause to the contrary; or
ant may take advantage of it, even after peremptory, (called a si fecerit te securum,) demurrer or issue, by alleging it in a commanding, upon security given by the plaintiff, the defendant to appear in court,
plea puis darrein continuance....... ...... 315
3. The determination of an issue in law, or to show wherefore he hath injured the
demurrer, is by the opinion of the judges plaintiff both issuing out of Chancery of the court; which is afterwards entered under the king's great seal, and return
317 able in bank during term-time............... 272
279 to 292 OF THE SEVERAL SPECIES OF TRIAL...330 to 641 1. Process is the means of compelling the
1. Trial is the examination of the matter of
330 defendant to appear in court..
fact put in issue.........
279 2 This includes, I. Summons. II. The writ
2. The species of trials are, I. By the reof attachment, or pone ; which is some
cord. II. By inspection. III. By certitimes the first or original process. III.
ficate. IV. By witnesses.
V. By wager The writ of distringas, or distress infinite.
of battel. Ví. By wager of law. VII.
330 IV. The writs of capius ad respondendum,
By jury........ and textatum capias: or, instead of these,
3. Trial by the record is had, when the exin the King's Bench, the bill of Middle
istence of such record is the point in issue 330 sex, and writ of latitat ;-and, in the
4. Trial by inspection or examination is Exchequer, the writ of quo minus. V.
had by the court, principally when the The alias and pluries writs. VI. The
matter in issue is the evident object of
331 exigent, or writ of exigi facias, proclama
the senses......... tions, and outlawry. VII. Appearance,
5. Trial by certificate is had in those cases and common bail. VIII. The arrest. IX.
where such certificate must have been
338 Special bail, first to the sheriff, and then
conclusive to a jury....... to the action.....
6. Trial by witnesses (the regular method
in the civil law) is only used on a writ CHAPTER XX.
of dower, when the death of the husband is in issue...
336 OF PLRADINGS...
.293 to 313 7. Trial by wager of battel, in civil cases, 1 Pleadings are the mutual altercations of is only had on a writ of right; but, in
the plaintiff and defendant, in writing; lieu thereof, the tenant may have, at his under which are comprised, I. The decla- option, the trial by the grand assise ...... 330 ration or count, (wherein, incidentally, 8. Trial by wager of law is only had, where of the visne, nonsuit, retrazit, and dis- the matter in issue may be supposed to continuance.) II. The defence, claim of have been privily transacted between cognizance, imperlance, view, oyer, aid- the parties themselves, without the inprayer, voucher, or age.
III The plea; tervention of other witnesses ............... 341
2. Writs of error lie, I. To the court of Of the TRIAL BY JURY......... ... Page 351 to 385
King's Bench, from all inferior courts of
record; from the court of Common Pleas 1. Trial by jury is, I. Extraordinary; as,
at Westminster; and from the court of by the grand assise, in writs of right;
King's Bench in Ireland. II. T. the and by the grand jury, in writs of attaint. II. Ordinary
courts of Exchequer Chamber, from the
351 2. The method and process of the ordinary
law side of the court of Exchequer; and
from proceedings in the court of King's trial by jury is, I. The writ of venire
Bench by bill. III. To the house of facias to the sheriff, coroners, or elisors; with the subsequent compulsive process
peers, from proceedings in the court of
King's Bench by original, and on writs of habeas corpora, or distringas. II. The
of error; and from the several courts of carrying down of the record to the court of nisi prius. III. The sheriff's return;
Exchequer Chamber............... Page 406-411 or panel of, 1st, special, 2dly, common, jurors. IV. The challenges; 1st, to the
CHAPTER XXVI. array; 2dly, to the polls of the jurors ;
.........412 to 425 either, propter honoris respectum, propter
1. Execution is the putting in force of the defectum, propter affectum, (which is some
sentence of judgment of the law: which is times a principal challenge, sometimes to
effected, I. Where possession of any herethe favour,) or, propter delictum. V. The
ditament is recovered; by writ of habere tales de circumstantibus. VI. The oath of
facias seisinam, possessionem, &c. II. the jury. VII. The evidence; which is
Where any thing is awarded to be done either by proofs, 1st, written; 2dly,
or rendered; by a special writ for that parol, -or, by the private knowledge of the jurorg. VIII. The verdict: which
purpose: as, by writ of abatement in
case of nuisance; retorno habendo, and may be, 1st, privy; 2dly, public; 3dly,
capias in withernam, in replevin; distringas special........
and scire facias in detinue. III. Where CHAPTER XXIV.
money only is recovered; by writ of,
1st, capias ad satisfaciendum, against the OF JUDGMENT, AND ITS INCIDENTS ......386 to 399 body of the defendant; or, in default 1. Whatever is transacted at the trial, in
thereof, scire facias, against his bail. the court of nisi prius, is added to the re
2dly, fieri facias, against his goods and cord under the name of a postea ; conse
chattels. 3dly, levari facias, against his quent upon which is the judgment ......... 386
goods and the profits of his lands. 2. Judgment may be arrested or stayed for Athly, elegit, against his goods and the
causes, I. Extrinsic, or dehors the record: possession of his lands. 5thly, extendi as in the case of new trials. II. Intrin- facias, and other process, on statutes, sic, or within it: as where the declara
recognizances, &c., against his body, tion varies from the writ, or the verdict
lands, and goods..........
.412-426 from the pleadings and issue; or where the case laid in the declaration is not
CHAPTER XXVII. sufficient to support the action in point of law....
OF PROCEEDINGS IN THE COURTS OF EQUITY 3. Where the issue is immaterial or insuffi
426 to 455 cient, the court may award a repleader 395 1. Matters of equity, which belong to the 4. Judgment is the sentence of the law,
peculiar jurisdiction of the court of pronounced by the court, upon the mat
Chancery, are, I. The guardianship of ter contained in the record ............. 395 infants. II. The custody of idiots and
lunatics. 5. Judgments are, I. Interlocutory; which
III. The superintendence of are incomplete till perfected by a writ of
charities. IV. Commissions of bankinquiry. II. Final...
rupt......... ...................... 426-428 5. Costs, or expenses of suit, are now the
2. The court of Exchequer, and the duchy necessary consequence of obtaining judg
court of Lancaster, have also some ment..........
peculiar causes, in which the interest
of the king is more immediately conCHAPTER XXV. cerned.....
3. Equity is the true sense and sound inOF PROCEEDINGS IN THE NATURE OF AP- terpretation of the rules of law, and,
.... 402 to 411 as such, is equally attended to by the !. Proceedings in the nature of appeals judges of the courts both of common from judgment are, I. A writ of attaint; law and equity ......
430-43 to impeach the verdict of a jury: which 4. The essential differences, whereby the of late has been superseded by new trials. English courts of equity are distinII. A writ of audita querela; to discharge guished from the courts of law, are, a judgment by matter that has since I. The mode of proof, by a discovery happened. III. A writ of error, from on the oath of the party ; which gives one court of record to another; to cor- a jurisdiction in matters of account, and rect judgments, erroneous in point of fraud. II. The mode of trial; by depolaw, and not helped by the statutes of sitions taken in any part of the world. emendment and jeofails......... ..402-406 III. The mode of relief; by giving a more