3 Ouster from freeholds is affected by, Abatement. II. Intrusion. III. Disseisin. IV. Discontinuance. V. Deforcement ▲ Abatement is the entry of a stranger, fter 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 bim that is seized 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 2. 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, wiil (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 171 3. Ouster from an estate for years, is effected by a like disseisin or ejectinent. 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 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 posses sory 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 plain tiff 196 198 199 199 200-206 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 bis 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 11. 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 unon the merits. IV. Where OF TRESPASS CHAPTER XII. 208 to 215 1. Trespass is an entry upon, and da- OF NUISANCE 216 to 219 1. Nuisance, or annoyance, is any thing 1. Waste is a spoil and destruction in lands and tenements, to the injury of him who hath, I. An immediate inte- rest (as, by right of common) in the lands. II. The remainder or rever- 2. The remedies, for a commoner, are, restitution, and damages; by assise 3. The remedy for him in remainder, or reversion, is, 1. Preventive: by writ of estrepement at law, or injunction out of Chancery; to stay waste. II. Cor- nereditament, in their regular and law- 2. Disturbances are, L. Of franchises. II. Of commons. III. Of ways. IV. 3. Disturbance, of franchises, is reme- died by a special action on the case; 4. Disturbance of common, is I. Inter- commoning without right. Remedy: damages; by an action on the case, or of trespass: besides distress da- mage feasant; to compel satisfaction. II. Surcharging the cominon. Reme- dies: distress damage feasant; to Page 236 236 236 237-10 5. Disturbance of ways, is the obstruc- tion, I. Of a way in gross, by the own- er of the land. II. Of a way append- ant, by a stranger. Remedy, for both : damages; by action on the case 6. Disturbance of tenure, by driving away tenants, is remedied by a spe cial action on the case; for damages 7. Disturbance of patronage, is the hin- derance of a patron to present his clerk to a benefice; whereof usurpation within six months is now become a 230 to 235 8. Disturbers may be, I. The pseudo- 1. Subtraction is when one who owes services to another, withdraws or ne- glects to perform them. This may 9. The remedies are, I. By assise of darrein presentment; 11. By writ of quare impedit-to compel institution and recover damages consequent to which are the writs of quare incumbra- vit, and quare non admisit; for subse- quent damages. III. By writ of right 234 1. Injuries to which the crown is a par- ty, are, 1. Where the crown is the ag- 2. The crown is the agressor, when- Page 255-257 waich. is to remove the hands (or possession) of the king Where the crowr 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 THE PURSUIT OF REMEDIES BY ACSION, 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 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 • 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 latıtat; 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. VIII. Appearance, and com. mon 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 31 1. Pleadings are the mutual altercations of the plaintiff and defendant, in writ ing; under which are comprised, 1. The declaration or count (wherein, in cidentally, 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 is sue; or, 2ndly, a special bar (wherein of justifications, the statutes of limitation, &c.) IV. Replication, rejoinuer, surrejoinder, rebutter, surrebutter, &c. Therein of estoppels, colour, duplicity, departure, new assign ment, protestation, averment, and other incidents of pleading 293-313 CHAPTER XXI. 314 to 317 OF ISSUE AND DEMURKER 1. Issue is where the parties, in a course of pleading, come to a point affirmed on one side and denied on the othe 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, os 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 quis dar CHAPTER XXII. OF THE SEVERAL SPECIES OF TRIAL Page 330 to 341 1. Tria is the examination of the matter of fact put in issue V. 2. The species of trials are, I. By the record. II. By inspection III. By certificate. IV. By witnesses. By wager of battel. VI. By wager of law. VII. By jury 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 388 386-394 330 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. Costa, or expenses of suit, are now the necessary consequence of obtaining judgment CHAPTER XXV. OF PROCEEDINGS IN THE NATURE OF APPEALS 395 394 396 399 402 to 41) 3. Trial by the record is had, when the existence of such record is the point in issue 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 3. 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 assize, 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, Ist, written; 2ndly, parol-or, by the private knowledge of the jurors. VIII. The verdict: which may be, Ist, privy; 2ndly, public; 3rdly, specia! CHAPTER XXIV. 1. Proceedings in the nature of appeals 402-40f 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 proceed ings 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 CHAPTER XXVI. OF EXECUTION 406-411 412 to 125 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 Jacius ir. 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 Page CHAPTER XXVII. 412-425 OF PROCEEDINGS IN THE COURTS OF on the oath of the party; which gives tates Page 436-446 426 to 455 5. The proceedings in the court of Chan 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 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 2 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, (. The mode of proot, by a discovery cery (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, attachiment with proclamations, commission of rebellion, serjeant at arms, and sequestration. IV. Appearance. V. Demurrer. VI. Plea. VII. Answer. VIII. Exceptions; amend ments; 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 bil. of review. XVI. Appeal to Parlia ment 442.4.56 |