5. Intrusion is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder 6. Disseisin is a wrongful putting out of him 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 8. Deforcement is any other detainer of 9. The universal remedy for all these is restitution or delivery of possession, and, sometimes, damages for the de- tention. This is effected, I. By mere 175-179 180 10. Mere entry on lands, by him who 11. Where the wrong-doer hath not only mere possession, but also an apparent right of possession; this may be de- 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 posses. 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 as- 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 es- tates by their own default. Remedy: by writ of quod ei deforceat. III. Where 1. Ouster from chattels real is, J. From estates by statute and elegit. II. From 2. Oaster, from estates by statute or ele- git, is effected by a kind of disseisin. Remedy restitution, and damages; 3. Õuster from an estate for years, is ef- fected by a like disseisin or ejectment. 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 5. This is now the usual method of try- ing 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 sup- posed) ouster and ejectment by the de- fendant. 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- 6. A writ of quare ejecit infra terminum is an action of a similar nature; only not brought against the wrong-doer or 1. Trespass is an entry upon, and da- mage done to, another's lands, by one's self, or one's cattle; without any law- ful authority, or cause of justification: which is called a breach of his close. Remedy damages; by action of tres- pass quare clausum fregit: besides that of distress damage feasant. But, un- less 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 that worketh damage, or inconveni- 2. The remedies for a private nuisance (besides that of abatement), are, I. Damages; by action on the case (which also lies for special prejudice ternere 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, I. Preventive: by writ of estrepement at law, or injunction out of Chancery; to stay waste. II. Cor- hereditament, in their regular and law. 2. Disturbances are, I. Of franchises. 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 compel satisfaction: action on the case; for damages: or, writ of ad- measurement of pasture; to appor- tion the common;-and writ de se- cunda superoneratione; for the super- numerary cattle, and damages. III. Enclosure, or obstruction. Remedies: restitution of the common, and dama- ges; by assise of novel disseisin, and by writ of quod permittat: or, damages 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 7. Disturbance of patronage, is the hin- derance of a patron to present his clerk to a benefice; whereof usurpation 237-240 230 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 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- 3. To remedy the oppression of the lord, 231-234 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 9. The remedies are, I. By assise of darrein presentment; II. 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 242 242 244 245-252 Page which is to remove the hands (or possession) of the king 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 er 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. 257-265 270 to 272 OF THE PURSUIT OF REMEDIES BY ACTION, AND, FIRST, OF THE ORIGINAL WRIT 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. V. The IV. The issue, or demurrer. 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 270 272 272 279 to 292 279 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. VIII. Appearance, and common bail. VIII. The arrest. IX. Special bail, first to the sheriff, and then to the action CHAPTER XX. Page 279-292 293 to 313 OF PLEADINGS 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, 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 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 CHAPTER XXI. OF ISSUE AND DEMURRER 293-313 314 to 317 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 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. 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 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 330 330 330 331 3. Where the issue is immaterial, or insufficient, the court may award a repleader 395 4. Judgment is the sentence of the law, pronounced by the court, upon the matter contained in the record 395 333 5. Judgments are, I. Interlocutory;, which are incomplete till perfected by a writ of enquiry. II. Final 396 336 6. Costs, or expenses of suit, are now the necessary consequence of obtaining judgment 399 CHAPTER XXV. 336 8. Trial by wager of law is only had, CHAPTER XXIII. 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 trial by jury is, I. The writ of ve nire 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. OF JUDGMENT, AND ITS INCIDENTS OF PROCEEDINGS IN THE NATURE OF APPEALS 1. Proceedings in the nature of appeals 402 to 411 from judgment, are, I. A writ of attaint; to impeach the verdict of a jury: 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 2. Writs of error lie, I. To the court of 402-406 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 1. Execution is the putting in force of facias in detinue. III. Where money CHAPTER XXVII. Page 412-425 Page on the oath of the party; which gives analogous to the law of legal es- 5. The proceedings in the court of Chan- cery (to which those in the Exche- quer, &c. very nearly conform) are, I. Bill. II. Writ of subpoena; and per- haps, injunction. III. Process, of con- tempt; viz. (ordinarily) attachment, attachment with proclamations, com- mission of rebellion, serjeant at arms, and sequestration. IV. Appearance. V. Demurrer. VI. Plea. VII. An- swer. VIII. Exceptions; amend- ments; cross, or supplemental, bills; bills of revivor, interpleader, &c. IX. Replication. X. Issue. XI. Deposi- tions, taken upon interrogatories; and subsequent publication thereof. XII. Hearing. XIII. Interlocutory decree; feigned issue, and trial; reference to the master, and report; &c. XIV. ment 442-455 |