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 Page 216 219 223 to 229 hereditament, in their regular and law- 2. Disturbances are, I. Of franchises. 3. Disturbance, of franchises, is reme- 4. Disturbance of common, is, I. Inter- Page 236 236 236 237-240 5. Disturbance of ways, is the obstruc- 241 6. Disturbance of tenure, by driving 7. Disturbance of patronage, is the hin- 230 to 235 8. Disturbers may be, I. The pseudo- 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 disclaimerto recover the land itself 230 231-234 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 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 9. The remedies are, I. By assise of darrein presentment; II. By writ of quare impodit-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 CHAPTER XVII. 242 244 245-252 CHAPTER XVI. OF DISTURBANCE 236 to 252 1. Disturbance is the hindering or disquieting the owners of an incorporeal 3. This is remedied, I. By petition of right; where the right is grounded on facts disclosed in the petition itself. II. By monstrans de droit; where the claim is grounded on facts already appearing on record. The effect of both 6 which is to remove the hands (or possession) of the king Page 255-257 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 292 279 1. Process is the means of compelling the defendant to appear in court VOL. II. 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. OF PLEADINGS Page 279-292 293 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, retravit, 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 (Ist, 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, Ist, 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 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 314 315 317 330 330 in the court of nisi prius, is added to the record under the name of a postea: consequent upon which is the judgment 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 Page 386 386-394 330 3. Where the issue is immaterial, or insufficient, the court may award a repleader 331 333 336 336 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 enquiry. II. Final 6. Costs, or expenses of suit, are now the necessary consequence of obtaining judgment CHAPTER XXV. OF PROCEEDINGS IN THE NATURE OF APPEALS 395 395 396 399 402 to 411 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 8. Trial by wager of law is only had, CHAPTER XXIII. OF THE TRIAL BY JURY 351 to 385 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. 1. Proceedings in the nature of appeals 402-406 351 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 351-385 OF JUDGMENT, AND ITS INCIDENTS 386 to 399 CHAPTER XXVI. OF EXECUTION 406-411 412 to 425 1. Execution is the putting in force of the sentence or 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. 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. 412-425 OF PROCEEDINGS IN THE COURTS OF EQUITY 1. Matters of equity, which belong to the peculiar jurisdiction of the court of Chancery, are, L. The guardianship of infants. II. The custody of idiots and lunatics. III. The superintendence of charities. IV. Commissions of bankrupt 426-428 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 428-9 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 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 tates 436-440 426 to 455 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. XL. 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 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 430-436 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 ment 442-455 |