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him that is seized of the freehold 169 2. Oaster, from estates by statute or ele-
property, but who never had the pos-
By writ of ejectione firmæ. II. By
172 writ of quare ejecit infra terminum 199
entry. II. By action possessory. III.
from his term ; in which case he shall
174 recover possession of his term, and
hath the apparent right of possession, 5. This is now the usual method of try.
real: viz. by, I. The claimant's mak.
ing an actual (or supposed) lease upon
175-179 plaintiff's actual (or supposed) entry
of possession, by means of the posses. or (more usually) against some casual
shewing the unlawful means under ouster be confessed, and that nothing
180 is an action of a similar nature : only
14. Where the wrong-doer hath gained sell, or one's cattle ; withont any law.
the actual right of possession, he who ful authority, or cause of justification :
which is called a breach of his close.
pasz quare clausum fregit : besides that
less the title to the land come chiefly
Remedy, for the right of property : by in question, or the trespass was wilful
writ of formedon. II. Where gained or malicious, the plaintiff (if the dama-
by recovery in a possessory action, ges be under forty shillings) shall re
had against tenants of particular es. cover no more costs than damages 208–215
tates by their own de!ault. Remedy:
by writ of quod ei deforceal. III. Where
gained by recovery in a possessory ac-
216 to 219
tion, had upon the merits. IV. Where 1. Nuisance, or annoyance, is any thing
any thing done to the hurt or annoy-
Of tenure. V. Of patronage
(besides that of abatement), are, I. 4. Disturbance of common, is I. Inter.
II. Surcharging the cominon. Reme.
measurement of pasture ; to appor-
tion the common; -and writ de se-
1. Waste is a spoil and destruction in numerary cattle, and damages. III.
lands and tenemonts, to the injury of Enclosure, or obstruction. Remedies :
restitution of the common, and dama.
by writ of quod permittat : or, damages
tion on the case
224 ant, by a stranger. Remedy, for both :
reversion, is, I. Preventive : by writ 6. Disturbance of tenure, by driving
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 patron, by his wrongful presentation.
services to another, withdraws or ne-
II. His clerk, by demanding institu-
glects to perform them. This may tion. III. The ordinary, by refusing
be, I. Or rents, and other services,
the clerk of the true patron
due by tenure. II. Of those due by 9. The remedies are, I. By assise of
230 darrein presentment ; II. By writ of
2. For subtraction of rents and services quare impedie- to compel institution
and recover damages : consequent to
quent damages. III. By writ of right
suetudinibus et servitiis-to compel the of advowson ; to compel institution, or
payment. V. By writ of cessavit ; and establish the permanent right 245–252
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 INJURIES, PROCEEDING FROM, OR
of ne injuste vexes : II. The writ of AFFECTING, THE Crown
254 to 265
234 1. Injuries to which the crown is a par.
4. For subtraction of services, due by ty, are, I. Where the crown is the ag-
custom, the remedy is, I. By writ of gressor. II. Where the crown is the
secta ad molendinum, furnum, torrale,
fc.; lo compel the performance, and 2. The crown is the agressor, when.
235 ty to which the subject hath a right 254-5
3. This is remedied, I. By petition of
right; where the right is grounded on
facts disclosed in the petition itself.
236 to 252 II. By monstrans de droit ; where the
1. Disturbance is the lindering or dis- claim is grounded on facts already ap-
quieting the owners of an incorporeal pearing on record. The effect of both
Page which is to remove the hands (or pos- 2. This includes, I. Summons. II. The session) of the king
255-257 writ of attachment, or pone ; which is 4. Where the crown is the sufferer, the
sometimes the first or original process. king's remedies are, By such com
III. The writ of distringas, or distress mon law actions as are consistent with
infinite. IV. The writs of capias ad the royal dignity. II. By inquest of respondendum, and testatum capias : or, office, to recover possession : which, instead of these, in the King's Bench, when fonnd, gives the king his right the bill of Middlesex, and writ of latiby solemn matter of record; but may tat ;--and, in the Exchequer, the writ afterwards be traversed by the subject. of quo minus. V. The alias and pluIII. By writ of scire facias, to repeal ries writs. VI. The exigent, or writ the king's patent or grant. IV. By of erigi facias, proclamations, and outinformation of intrusion, to give dama. lawry. VIII. Appearance, and comges for any trespass on the lands of mon bail.
VIII. The arrest. IX. the crown; or of debt, to recover mo
Special bail, first to the sheriff, and nies due upon contract, or forfeited by
then to the action
279-292 the breach of any penal statute; or sometimes (in the latter case) by in
CHAPTER XX. formation in rem : all filed in the Ex. chequer er officio by the king's attor
293 to 313 ney.general. V. By writ of quo war
1. Pleadings are the mutual altercations ranto, or information in the nature of
of the plaintiff and defendant, in writ. such writ; to seize into the king's
ing; under which are comprised, I. hands any franchise usurped by the
The declaration or count (wherein, insubject, or to oust an usurper from any public office.' VI. By writ of manda
cidentally, of the visne, nonsuit, re
traxit, and discontinuance). II. The mus, unless cause ; to admit or restore
defence, claim of cognizance, impar. any person entitled to a franchise or
lance, view, oyer, aid-prayer, voucher, office : to which, if a false cause be returned, the remedy is by traverse,
or age. III. The plea; which is either
a dilatory plea (1st, to the jurisdic. or by action on the case for damages ; and, in consequence, a peremptory
tion ; 2ndly, in disability of the plain. mandamus, or writ of restitution 257-265
tiff; 3rdly, in abatement: or it is a
plea to the action; sometimes conCHAPTER XVIII.
fessing the action, either in whole, or
in part (wherein of a tender, paying OF THE PURSUIT OF REMEDIES BY AC.
money into court, and set-off); but
usually denying the complaint, by TION, AND, FIRST, OF THE ORIGINAL WRIT
270 to 272
pleading either, Ist, the general is. 1. The pursuit of the several remedies
sue ; or, 2ndly, a special bar (wherein fumished by the laws of England, is,
of justifications, the statutes of limitaI. By action in the courts of common
tion, &c.) IV. Replication, rejoin.
der, surrejoinder, rebutter, surrebutJaw.' II. By proceedings in the courts
ter, &c. Therein of estoppels, coof equity
270 2. Of an action in the court of Common
lour, duplicity, departure, new assignPleas (originally the proper court for
ment, protestation, averment, and
other incidents of pleading 293-313 prosecuting, civil suits) the orderly parts are, 1. The original writ. II. The process. III. The pleadings.
CHAPTER XXI. IV. The issue, or demurrer. V. The trial. VI. The judgment. VII. The OF ISSUE AND DEMURRER 314 to 317 proceedings in nature of appeal. VIII. 1. Issue is where the parties, in a course The execution
272 of pleading, come to a point affirmed 3. The original writ is the beginning or on one side and denied on the other: fonndation of a suit, and is either op
which, if it be a matter of law, is call. tional (called a precipe) commanding ed a demurrer; if it be a matter of the defendant to do something in cer
fact, still retains the name of an issue tain, or otherwise shew cause to the
314 contrary; or peremptory (called a si 2. Continuance is the detaining of the fecerit te securum) commanding, upon parties in court from time to time, by security given by the plaintiff, the de- giving them a day certain to appear fendant to appear in court, to shew upon. And, if any new matter arises wherefore he hath injured the plaintiff : since the last continuance or adjournboth issuing out of Chancery under ment, the defendant may take advan. the king's great seal, and returnable tage of it, even after demurter or is. in bank during term-time
272 sue, by alleging it in a plea puis dar.
3. The determination of an issue in law, OF PROCESS
279 to 292 or demurrer, is by the opinion of the 1. Process is the means of compelling judges of the court; which is afterthe defendant to appear in court 279 wards entered on record
317 VOL. II.
in the court of nisi prius, is added to
the record under the name of a posOF THE SEVERAL SPECIES OF TRIAL
lea: consequent upon which is the 330 to 341 judgment
386 1. Trial is the examination of the mat- 2. Judgment may be arrested or stayed ter of fact put in issue
330 for causes, I. Extrinsic, or dehors the 2. The species of trials are, I. By the record: as in the case of new trials.
record.' II. By inspection. III. By II. Intrinsic, or within it: as where certificate. IV. By witnesses.
the declaration varies from the writ, By wager of baitel. VI. By wager
or the verdict from the pleadings and of law. VII. By jury
330 issue; or where the case laid in the 3. Trial by the record is had, when the declaration is not sufficient to support existence of such record is the point the action in point of law
386–394 in issue
330 3. Where the issue is immaterial, or in. 4. Trial by inspection or examination is sufficient, the court may award a rehad by the court, principally when the
395 matter in issue is the evident object 4. Judgment is the sentence of the law, of the senses
pronounced by the court, upon the mat5. Trial by certificate is had in those
ier contained in the record
395 cases, where such certificate must
5. Judgments are, I. Interlocutory;, which have been conclusive to a jury
333 are incomplete till perfected by a writ 6. Trial by witnesses (the regular me- of enquiry. II. Final
396 thod in the civil law) is only used on 6. Costs, or expenses of suit, are now • a writ of dower, when the death of the
the necessary consequence of obtain. husband is in issue
402 to 411 8. Trial by wager of law is only had, 1. Proceedings in the nature of appeals where the matter in issue may be sup
from judgment, are, 1. A writ of atposed to have been privily transacted, taint; to impeach the verdict of a ju. between the parties themselves, with
ry: which of late has been superseded out the intervention of other witnesses 341 by new trials. II. A writ of audita
querela; to discharge a judgment by CHAPTER XXIII.
matter that has since happened. III.
A writ of error, from one court of reOF THE TRIAL BY JURY
351 to 385 cord to another; to correct judgments, 1. Trial by jury is, I. Extraordinary; erroneous in point of law, and not as, by the grand assize, in writs of
helped by the statutes of amendment right; and by the grand jury, in writs and jeofails
402-406 of attaint. II. Ordinary
351 2. Writs of error lie, I. To the court of 2. The method and process of the ordi. King's Bench, from all inferior courts nary trial by jury is, I. The writ of ve
of record ; from the court of Common nire facias to the sheriff, coroners, or Pleas at Westminster; and from the elisors; with the subsequent compul. court of King's Bench in Ireland. II. sive process of habeas corpora, or dis
To the courts of Exchequer Chamber, ingas. II. The carrying down of
from the law side of the court of Exthe record to the court of nisi prius. chequer; and from proceedings in the III. The sheriff's return; or panel of, court of King's Bench by bill. III. 1st, special, 2ndly, common jurors. To the house of Peers, from proceed. IV. The challenges ; 1st, to the ar
ings in the court of King's Bench by ray ; 2ndly, to the polls of the jurors ; original, and on writs of error; and either, propter honoris respectum, prop:
from the several courts of Exchequer ter defectum, propter affectum (which
• 406-411 is sometimes a principal challenge, sometimes to the favour), or, propter
CHAPTER XXVI. delictum. V. The tales de circumstantibus. VI. The oath of the jury. VII.“ OF EXECUTION
412 to 425 The evidence; which is either by 1. Execution is the putting in force of proofs, 1st, written; 2ndly, parol–or, the sentence or judgment of the law : by the private knowledge of the jurors.
which is effected, 1. Where possesVIII. The verdict : which may be, sion of any hereditament is recovered ; 1st, privy ; endly, public ; 3rdly, spe..
by writ of habere facias seisinam, pos. 351-385 sessionem, fc. II. Where any thing
is awarded to be done or rendered, by CHAPTER XXIV.
a special writ for that purpose : as, by OF JUDGMENT, AND ITS INCIDENTS
writ of abatement in case of nuisance ;
386 to 399 retorno habendo, and capias in wither. 1. Whatever is transacted at the trial, nam in replevin; distringas and scire
facias in detinue. III. Where money on the oath of the party ; which gives
and fraud. II. The mode of trial; by
The true construction of securities
412-425 for money, by considering them mere-
iy as a pledge. V. The execution of
UF PROCEEDINGS IN THE COUrts of
426 to 455 5. The proceedings in the court of Chan-
4. The essential differences, whereby the master, and report ; &c. XIV.
the English courts of equity are dis. Final decree. XV. Rehearing, or bill