BOOK III.-OF PRIVATE WRONGS. CHAPTER I. Page 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 3 3 courts 3 3. The general and public courts of common law and equity are, I. The court of piepoudre. II. The court-baron. III. The hundred court. IV. The county court. V. The court of Common Pleas. VI. The court of King's Bench, VII. The court of Exchequer. VIII. The court of Chancery. (Which two last are courts of equity as well as law). IX. The courts of Exchequer-Chamber. X. The house of Peers. To which may be added, as auxiliaries, XI. The courts of Assise and Nisi Prius 6. Of the first sort are, I. Defence of 1 15, 16 30 30 32-60 CHAPTER II. CHAPTER V. 18 to 21 OF REDRESS BY THE MERE OPERATION CHAPTER III. OF COURTS ECCLESIASTICAL, MILI 62-68 1. Ecclesiastical courts, (which were separated from the temporal by William the Conqueror), or courts Christian, are, I. The court of the Archdeacon. II. The court of the Bishop's Consistory. III. The court of Arches. IV. The court of Peculiars. V. The Prerogative court. VI. The court of Delegates. VII. The court of Review 62-68 2. The only permanent military court is that of chivalry; the courts martial annually established by act of Parliament, being only temporary 22 to 25 3. Maritime courts are, I. The court of Admiralty and Vice-Admiralty. II. The court of Delegates. III. The lords of the Privy Council, and others authorized by the king's commission, for appeals in prize-causes OF COURTS IN GENERAL 18-21 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. Page 71-85 86 to 114 OF THE COGNIZANCE OF PRIVATE WRONGS 1. All private wrongs or civil injuries are cognizable either in the courts ecclesiastical, military, maritime, or those of common law For 2. Injuries cognizable in the ecclesiastical courts are, I. Pecuniary. II. Matrimonial. III. Testamentary 3. Pecuniary injuries, here cognizable, are, I. Subtraction of tithes. which the remedy is by suit to compel their payment, or an equivalent; and also their double value, II. Non-payment of ecclesiastical dues. Remedy by suit for payment. III. Spoliation, Remedy: by suit for restitution. IV. Dilapidations. Remedy: By suit for damages. V. Non-repair of the church, &c.; and non-payment of church-rates. Remedy: by suit to compel them 4. Matrimonial injuries are, I. Jactitation of marriage. Remedy: by suit for perpetual silence. II. Subtraction of conjugal rights. Remedy: by suit for restitution. III. Inability for the marriage state. Remedy by suit for divorce. IV. Refusal of decent maintenance to the wife. Remedy: by suit for alimony 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 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 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. 86 87-8 88-92 92-95 95-98 98-103 8. Civil injuries cognizable in the courts maritime, are injuries, in their nature of common law cognizance, but arising wholly upon the sea, and not within the precincts of any county. The proceedings are herein also much conformed to the civil law 106-109 9. All other injuries are cognizable only in the courts of common law: of which in the remainder of this book 109-114 10. Two of them are, however, commissible by these, and other, inferior courts; viz. I. Refusal, or neglect, of justice. Remedies: by writ of procedendo, or mandamus. II. Encroachment of jurisdiction. Remedy: by writ of prohibition CHAPTER VIII. 109-114 5. Injuries (whereof some are with, others without, force) are, I. Injuries to the rights of persons. II. Injuries to the rights of property. And the former are, I. Injuries to the absolute. II. Injuries to the relative, rights of persons 118-119 6. The absolute rights of individuals are, I. Personal security. II. Personal liberty. III. Private property. (See Book I. Ch. I). To which the injuries must be correspondent 7. Injuries to personal security are, I. Against a man's life. II. Against his limbs. III. Against his body. IV. Against his health. V. Against his reputation. The first must be referred to the next book 8. Injuries to the limbs and body are, I Threats. II. Assault. III. Battery. IV. Wounding. V. Mayhem. Remedy by action of trespass vi et armis, for damages 119 119 120 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, 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 uzore 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. 138 139 140-1 141-143 OF INJURIES TO PERSONAL PROPERTY 1. Injuries to the rights of property, are either to those of personal, or real, property 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 144 144 144 144 145-151 6. For the unlawful detaining of goods 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 Page 151 153 153 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 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 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 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 161-166 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 169 169 171 172 174 175-179 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 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 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 179 180 184-190 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 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 1. Ouster from chattels real is, I. From estates by statute and elegit. II. From an estate for years 2. Ouster, from estates by statute or elegit, is effected by a kind of disseisin. Remedy restitution, and damages; by assise of novel disseisin 3. Ŏuster from an estate for years, is effected by a like disseisin or ejectment. Remedy restitution and damages; I. By writ of ejectione firme. II. By writ of quare ejecit infra terminum 4. A writ of ejectione firme, 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 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 sup-posed) 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 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 CHAPTER XII. 198 198 199 199 200-206 207 208 to 215 OF TRESPASS 1. Trespass is an entry upon, and damage done to, another's lands, by one's self, or one's cattle; without any lawful authority, or cause of justification, which is called a breach of his close. Remedy damages; by action of trespass quare clausum fregit: besides that of distress damage feasant. But, unless the title to the land came chiefly in question, or the trespass was wilful or malicious, the plaintiff (if the damages be under forty shillings) shall recover no more costs than damages 208-215 CHAPTER XIII. |