CONTENTS OF THE ANALYSIS OF BOOK III. PRIVATE WRONGS. For which the laws of England have provided redress I. By the mere act of the parties. II. By the mere operation of law. III. By both together, or suit in courts; wherein 1. Of courts, and therein of §1. Their nature and incidents. 2. Their several distinctions; viz. (1. Of public or general jurisdiction; as, 1. The courts of common law and equity. 2. Ecclesiastical courts, 3. Courts military, 4. Courts maritime 2. Of private or special jurisdiction 2. Of the cognizance of wrongs, in the courts 1. Ecclesiastical, 2. Military, 3. Maritime 4. Of common law; wherein 1. Of the respective remedies, for injuries affecting 1. The rights of private persons §1. Absolute, 2. Relative . Chapter I II 111 IV V VI VII VIII §1. Dispossession, 2. In action; by breach of contracts IX 2. Real; by (1. Ouster, or dispossession of Freeholds BOOK III.—OF PRIVATE WRONGS. CHAPTER I. Page 2 OF THE REDRESS OF PRIVATE WRONGS, 3. The redress of civil injuries is one 4. This redress is effected, I. By the mere act of the parties. II. By the mere operation of law. III. By both together, or suit in courts 5. Redress by the mere act of the parties, is that which arises, I. From the sole act of the party injured. II. From the joint act of all the parties 6. Of the first sort are, I. Defence of one's self, or relations. II. Recaption of goods. III. Entry on lands and tenements. IV. Abatement of nusan OF REDRESS BY THE MERE OPERATION 2 3 3 3-15 courts 3 3. The general and public courts of 15, 16 18 to 21 1. Redress effected by the mere operation of law, is, I. In case of retainer; where a creditor is executor or administrator, and is thereupon allowed to retain his own debt. II. In the case of remitter; where one, who has a good title to lands, &c., comes into possession by a bad one, and is thereupon remitted to his antient good title, which protects his ill-acquired posses sion CHAPTER III. CHAPTER V. OF COURTS ECCLESIASTICAL, MILI- 1. Ecclesiastical courts, (which were 18-21 2. The only permanent military court is 22 to 25 3. Maritime courts are, I. The court of 22 OF COURTS IN GENERAL 23 CHAPTER VI. 30 30 32-60 62-68 62-68 67 68 23-24 OF COURTS OF A SPECIAL JURISDIC TION 71 to 85 1. Courts of a special or private juris- cluding the courts of attachments, regard, sweinmote, and justice-seat. II. The court of Commissioners of Sewers. III. The court of policies of assurance. IV. The court of the Marshalsea and the Palace Court. V. The courts of the principality of Wales. VI. The court of the duchychamber of Lancaster. VII. The courts of the counties palatine, and other royal franchises. VIII. The stannary courts. IX. The courts of London, and other corporations:-to which may be referred the courts of requests, or courts of conscience; and the modern regulations of certain courts baron and county courts. X. The courts of the two Universities CHAPTER VII. OF THE COGNIZANCE OF PRIVATE Page 71-85 86 to 114 OF WRONGS, AND THEIR REMEDIES, 1. All private wrongs or civil injuries 2. Injuries cognizable in the ecclesias- 4. Matrimonial injuries are, I. Jactita- 5. Testamentary injuries are, I. Disputing the validity of wills. Remedy: By suit to establish them. II. Obstructing of administrations. Remedy: by suit for the granting them. III. Subtraction of legacies. Remedy: by suit for the payment 3. This is effected, I. By delivery of 88-92 4. The instruments by which these re- 92-95 116-118 95-98 6. The course of proceedings herein is much conformed to the civil and canon law: but their only compulsive process is that of excommunication; which is enforced by the temporal writ of significavit or de excommunicato capiendo 98-103 6. The absolute rights of individuals 119 119 7. Civil injuries, cognizable in the court military, or court of chivalry, are, I. Injuries in point of honour. Remedy: by suit for honourable amends. II. Encroachments in coat-armour, &c. 9. Injuries to health, by any unwholesome practices, are remedied by a special action of trespass on the case, for damages 10. Injuries to reputation are, I. Slanderous 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 11. The sole injury to personal liberty is false imprisonment. Remedies: I. By writ of, 1st, mainprize; 2ndly, odio et atia; 3rdly, homine replegiando; 4thly, habeas corpus; to remove the wrong. II. By action of trespass; to recover damages Page 121 123 127-138 12. For injuries to private property, see the next chapter 13. Injuries to relative rights affect, I. Husbands. II. Parents. III. Guardians. IV. Masters 14. Injuries to an husband are, I. Abduction, 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 15. The only injury to a parent or guardian, 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 16. Injuries to a master are, I. Retaining 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 CHAPTER IX. 138 lawfully taken, the remedy is also, I. Actual restitution; by action of replevin, or detinue. II. Satisfaction in damages; by action on the case, for trover and conversion 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 8. Injuries to personal property, in action, arise by breach of contracts, I. Express. II. Implied 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 case. 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 Page 151 153 153 154-158 10. Implied contracts are such as arise, I. From the nature and constitution of government. II. From reason and the construction of law 158 139 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 158-161 140-1 141-143 OF INJURIES TO PERSONAL PROPERTY 1. Injuries to the rights of property, are either to those of personal, or real, property 144 144 144 144 2. Personal property is either in possession, or in action 3. Injuries to personal property in possession 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 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; 2ndly, in case of other unlawful takings, by action of trespass, or trover 145-151 6. For the unlawful detaining of goods 12. Breaches of contracts implied in reason and construction at law, are by the non-performance 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 3. Ouster from freeholds is effected by, I. Abatement. II. Intrusion. III. Disseisin. IV. Discontinuance. V. Deforcement 4. Abatement is the entry of a stranger, after the death of the ancestor, before the heir 5. Intrusion is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion 6. Disseisin is a wrongful putting out of him that is seised of the freehold 7. Discontinuance is where tenant in tail, or the husband of tenant in fee, makes a larger estate of the land than the law alloweth 8. Deforcement is any other detainer of the freehold from him who hath the property, but who never had the pos * session 9. The universal remedy for all these is restitution or delivery of possession, and, sometimes, damages for the detention. This is effected, I. By mere entry. II. By action possessory. III. By writ of right 10. Mere entry on lands, by him who hath the apparent right of possession, will (if peaceable) devest the mere possession of a wrong-doer. But forcible entries are remedied by immediate restitution, to be given by a justice of the peace Page Page 190-197 OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL 198 to 207 1. Ouster from chattels real is, I. From estates by statute and elegit. II. From an estate for years 169 2. Ouster, from estates by statute or elegit, is effected by a kind of disseisin. Remedy: restitution, and damages; by assise of novel disseisin 172 171 3. Ouster from an estate for years, is effected by a like disseisin or ejectment. Remedy: restitution and damages; I. By writ of ejectione firma. II. By writ of quare ejecit infra terminum 4. A writ of ejectione firmæ, or action of trespass in ejectment, lieth where lands, &c., are let for a term of years, and the lessee is ousted or ejected from his term; in which case he shall recover possession of his term, and damages 174 175-179 11. Where the wrong-doer hath not only mere possession, but also an apparent right of possession; this may be devested by him who hath the actual right of possession, by means of the possessory actions of writ of entry, or assise 179 12. A writ of entry is a real action, which disproves the title of the tenant, by shewing the unlawful means under which he gained or continues possession. And it may be brought, either against the wrong-doer himself; or in the degrees, called the per, the per and cui, and the post 180 5. This is now the usual method of trying titles to land, instead of an action real: viz. by, I. The claimant's making an actual (or supposed) lease upon the land to the plaintiff. II. The plaintiff's actual (or supposed) entry thereupon. III. His actual (or supposed) ouster and ejectment by the defendant. For which injury this action is brought, either against the tenant, or (more usually) against some casual or fictitious ejector; in whose stead the tenant may be admitted defendant, on condition that the lease, entry, and ouster be confessed, and that nothing else be disputed but the merits of the title claimed by the lessor of the plaintiff 198 198 199 199 200-206 6. A writ of quare ejecit infra terminum is an action of a similar nature; only not brought against the wrong-doer or ejector himself, but such as are in possession under his title 207 13. An assise is a real action, which proves the title of the demandant, by shewing his own, or his ancestor's possession. And it may be brought either to remedy abatements; viz. the assise of mort d' ancestor, &c.: or to remedy recent disseisins; viz. the assise of novel disseisin 184-190 14. Where the wrong-doer hath gained the actual right of possession, he who hath the right of property can only be remedied by a writ of right, or some writ of a similar nature. As, I. Where such right of possession is gained by the discontinuance of tenant in tail. Remedy, for the right of property: by writ of formedon. II. Where gained by recovery in a possessory action, had against tenants of particular estates by their own default. Remedy: by writ of quod ei deforceat. III. Where gained by recovery in a possessory action, had upon the merits. IV. Where OF TRESPASS CHAPTER XII. 208 to 215 1. Trespass is an entry upon, and da- OF NUSANCE CHAPTER XIII. 216 to 219 1. Nusance, or annoyance, is any thing |