Sivut kuvina
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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 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



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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 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 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




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

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. Õuster from an estate for years, is effected by a like disseisin or ejectinent. Remedy restitution and damages; I. By writ of ejectione firma. 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 mak ing 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 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







OF TRESPASS 208 to 218 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 come chiefly in question, or the trespass was wilful or malicious, the plaintiff (if the dama ges be under forty shillings) shall re cover no more costs than damages 208-215 CHAPTER XIII.

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1. Subtraction is when one who owes
services to another, withdraws or ne-
glects to perform them. This may
be, 1. Of rents, and other services,
due by tenure. II. Of those due by


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 con-
suetudinibus 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



245 252

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Page waich. is to remove the hands (or possession) of the king 255-257

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 attor ney-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



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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, 1. The original writ. II. The process. III. The pleadings.

V. The

IV. The issue, or demurrer. 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






279 to 292

1. Process is the means of compelling the defendant to appear in court VOL. II

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. VIII. Appearance, and com. mon bail. VIII. The arrest. IX. Special bail, first to the sheriff, and then to the action

279 2



279 291

293 to 31*

OF PLEADINGS 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



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 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, of 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 fuis 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 after wards entered on record







330 to 341

1. Tria 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. VI. By wager

By wager of battel.

of law. VII. By jury

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 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 assize

4. 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






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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





351 to 385

OF THE TRIAL BY JURY 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 tria! by jury is, I. The writ of ve nire facics 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 circumstan tibus. 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, Ist, privy; 2ndly, public; 3rdly, spe

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402 to 41 1. Proceedings in the nature of appeals from judgment, are, I. A writ of at taint; to impeach the verdict of a ju ry: 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

402-40f 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

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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




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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 mereiy as a pledge. V. The execution of trusts, or second uses, in a manner analogous to the law of legal es436-446 5. The proceedings in the court of Chancery (to which those in the Exchequer, &c. very nearly conform) are, I. Bill. II. Writ of subpana; 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; 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

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