OF THE PURSUIT OF REMEDIES BY ACTION, AND, FIRST, OF THE ORIGINAL WRIT..270 to 272 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... 270 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. IV. The issue or demurrer. V. The trial. VI. The judgment. VII. The proceedings in nature of appeal. VIII. The execution 272 3 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 show 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 show wherefore he hath injured the plaintiff both issuing out of Chancery under the king's great seal, and returnable in bank during term-time......................................... 272 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 capius 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 pluries writs. VI. The exigent, or writ of exigi facias, proclamations, and outlawry. VII. Appearance, and common bail. VIII. The arrest. IX. Special bail, first to the sheriff, and then to the action.................................... ...279-292 CHAPTER XX. OF PLEADINGS... 293 to 313 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, aidprayer, voucher, or age. III The plea; which is either a dilatory plea (1st, to the jurisdiction; 2dly, in disability of the plaintiff; 3dly, 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, 2dly, 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 assignment, protestation, averment, and other incidents of pleading... Page 293-313 .... CHAPTER XXI. .314 to 317 OF ISSUE AND DEMURRER.. 1. Issue is where the parties, in a course of pleading, come to a point affirmed on one side and denied on the other: 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, by giving them a day certain to appear upon. And, if any new matter arises since the last continuance or adjournment, the defendant may take advantage of it, even after demurrer or issue, by alleging it in a plea puis darrein continuance.... 3. The determination of an issue in law, or demurrer, is by the opinion of the judges of the court; which is afterwards entered on record...... CHAPTER XXII. 314 315 317 336 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 assise...... 336 8. 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. OF THE TRIAL BY JURY............ Page 351 to 385 2. The method and process of the ordinary CHAPTER XXIV. 351 .351-385 OF JUDGMENT, AND ITS INCIDENTS......386 to 399 1. Whatever is transacted at the trial, in the court of nisi prius, is added to the record under the name of a postea; consequent upon which is the judgment......... 386 2. Judgment may be arrested or stayed for causes, I. Extrinsic, or dehors the record: as in the case of new trials. II. Intrinsic, or within it: as where the declaration varies from the writ, or the verdict from the pleadings and issue; or where the case laid in the declaration is not sufficient to support the action in point of law... .386-394 3. Where the issue is immaterial or insuffi cient, the court may award a repleader 395 4. Judgment is the sentence of the law, pronounced by the court, upon the matter contained in the record 5. Judgments are, I. Interlocutory; which are incomplete till perfected by a writ of inquiry. II. Final... 395 396 PEALS OF PROCEEDINGS IN THE NATURE OF AP.402 to 411 . Proceedings in the nature of appeals from judgment are, I. A writ of attaint; to impeach the verdict of a jury: 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......... 402-406 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 proceedings in the court of King's Bench by original, and on writs of error; and from the several courts of Exchequer Chamber........... Page 406-411 CHAPTER XXVI.. .412 to 425 OF EXECUTION..... 1. Execution is the putting in force of the sentence of judgment of the law: which is effected, I. Where possession of any hereditament is recovered; by writ of habere facias seisinam, possessionem, &c. II. Where any thing is awarded to be done or rendered; by a special writ for that purpose: as, by writ of abatement in case of nuisance; retorno habendo, and capias in withernam, in replevin; distringas and scire facias in 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. 3dly, 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. .412-425 OF PROCEEDINGS IN THE COURTS OF EQUITY 426 to 455 1. Matters of equity, which belong to the peculiar jurisdiction of the court of Chancery, are, I. The guardianship of infants. II. The custody of idiots and lunatics. III. The superintendence of IV. Commissions of bank426-428 2. The court of Exchequer, and the duchy court of Lancaster, have also some peculiar causes, in which the interest of the king is more immediately concerned... 428-429 charities. rupt....... ....... 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.. 430-43 4. The essential differences, whereby the English courts of equity are distinguished from the courts of law, are, I. The mode of proof, by a discovery 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 encumbered lands, &c. IV. The true construction of securities for money, by considering them merely as a pledge. V. The execution of trusts, or second uses, in a manner analogous to the law of legal estates....................................... Page 436-440 5. The proceedings in the court of Chancery (to which those in the Exchequer, &c. very nearly conform) are, I. Bill. II. Writ of subpæna; and perhaps injunction. III. Process of contempt; viz., (ordinarily) attachment, attachment with proclamations, commission of rebellion, serjeant-at-arms, and sequestration. IV. Appearance. V. Demurrer. VI. Plea. VII. Answer. VIII. Exceptions; amendments; 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 par.Page 442-45h liament............................................................ ANALYSIS. BOOK IV.*-OF PUBLIC WRONGS. CHAPTER I OF THE NATURE OF CRIMES AND THEIR ment.......... 2. A crime, or misdemeanour, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it.......... ? Crimes are distinguished from civil injuries, in that they are a breach and violation of the public rights, due to the whole community, considered as a community..... 4. Punishments may be considered with regard to, I. The power, II. The end, III. The measure,-of their infliction..... 5. The power, or right, of inflicting human punishments, for natural crimes, or such as are mala in se, was by the law of nature vested in every individual; but, by the fundamental contract of society, is now transferred to the sovereign power: in which also is vested, by the same contract, the right of punishing positive offences, or such as are mala prohibita.... ...... 6. The end of human punishments is to prevent future offences; I. By amending the offender himself. II. By deterring others through his example. III. By depriving him of the power to do future mischief. 1 4 5 7 7 11 7. The measure of human punishments OF THE PERSONS CAPABLE OF COMMITTING 20 to 33 1. All persons are capable of committing crimes, unless there be in them a defect of will; for, to constitute a legal crime, there must be both a vicious will and a vicious act......... 2. The will does not concur with the act, I. Where there is a defect of understanding. II. Where no will is exerted. III. Where the act is constrained by force and violence..... 3. A vicious will may therefore be wanting, in the cases of I. Infancy. II. Idiocy, or lunacy. III. Drunkenness; which doth not, however, excuse. IV. Misfortune. V. Ignorance, or mistake of fact. VI. Compulsion, or necessity; which is, 1st, that of civil subjection; 2dly, that of duress per minas; 3dly, that of choosing the least pernicious of two evils where one is unavoidable; 4thly, that of want or hunger; which is no legitimate ex. Page 22-32 4. The king, from his excellence and dignity, is also incapable of doing wrong.... 33 cuse..... ......... OF OFFENCES AGAINST GOD AND RELIGION... 20 2. Crimes more immediately offending God 21 ment. 42 |