that worketh damage, or inconvenience and it is either a public and common nusance, of which in the next book; or, a private nusance, 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 nusance (besides that of abatement) are, I. Damages; by action on the case (which also lies for special prejudice by a public nusance.) II. Removal thereof, and damages; by assise of nusance. III. Like removal, and damages; by writ of quod permittat pros ternere CHAPTER XIV. Page 216 219 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, I. 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 disclaimer— to recover the land itself 3. To remedy the oppression of the lord, the law has also given, I. The writ of ne injuste vexes: II. The writ of mesne 230 231-234 4. 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 recover damages. II. By action on the case; for damages only CHAPTER XVI. OF DISTURBANCE 734 235 236 to 252 1. Disturbance is the hindering or disquieting the owners of an incorporeal hereditament, in their regular and lawful enjoyment of it 2. Disturbances are, I. Of franchises. II. Of commons. III. Of ways. IV. Of tenure. V. Of patronage 3. Disturbance, of franchises, is remedied by a special action on the case; for damages 4. Disturbance of common, is, I. Intercommoning without right. Remedy: damages; by an action on the case, or of trespass: besides distress damage feasant; to compel satisfaction. II. Surcharging the common. 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 secunda 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 special action on the case; for damages 7. Disturbance of patronage, is the hindrance of a patron to present his clerk to a benefice; whereof usurpation within six months is now become a species Page 236 236 236 237-240 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 9. The remedies are, I. By assise of darrein presentment; II. By writ of quare impedit-to compel institution and recover damages: consequent to which are the writs of quare incumbravit, and quare non admisit; for subsequent damages. III. By writ of right. of advowson; to compel institution, or establish the permanent right Page 255-257 which is to remove the hands (or possession) of the king 4. 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 ex 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. IV. The issue, or demurrer. V. The trial. VI. The judgment. VII. The proceedings in nature of appeal. VIII. The execution 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 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. 279 2 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 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 CHAPTER XX. Page 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 assignment, protestation, averment, and other incidents of pleading CHAPTER XXI. 293-313 OF ISSUE AND DEMURRER 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 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 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 afterwards entered on record 314 315 317 CHAPTER XXII. OF THE SEVERAL SPECIES OF TRIAL Page 330 to 341 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. V. 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 assise 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 obtaining judgment 399 CHAPTER XXV. 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. 351 to 385 OF THE TRIAL BY JURY 1. Trial by jury is, I. Extraordinary; as, by the grand assise, 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, propter defectum, propter affectum (which is sometimes a principal challenge, sometimes to the favour), or, propter delictum. V. The tales de circumstantibus. 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, 1st, privy; 2ndly, public; 3rdly, special 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 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; from the several courts of Exchequer Chamber 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. 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 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 speeific 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 merely as a pledge. V. The execution of trusts, or second uses, in a manner analogous to the law of legal es Pago tates 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 subpœna; 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 Parlia |