Page Page 3. Ouster from freeholds is affected by, gained by the statute of limitations.- I. Abatement. II. Intrusion. II. Remedy, in both cases : by a mere Disseisin. IV. Discontinuance. V. writ of right, the highest writ in the 4. Abatement is the entry of a stranger, after the death of the ancestor, before 5. Intrusion is the entry of a stranger, OF DISPOSSESSION, OR OUSTER, OF after a particular estate of freehold is determined, before him in remainder 1. Ouster from chattels real is, J. From 169 estates by statute and elegit. II. From 6. Disseisin is a wrongful putting out of an estate for years him that is seized of the freehold 169 2. Oaster, from estates by statute or ele- 7. Discontinuance is where tenant in git, is effected by a kind of disseisin. tail, or the husband of tenant in fee, Remedy : restitution, and damages; makes a larger estate of the laud than 171 3. Ouster from an estate for years, is ef- 8. Deforcement is any other detainer of fected by a like disseisin or ejectment. the freehold from him who hath the Remedy: restitution and damages; I. property, but who never had the pos- By writ of ejectione firmæ. II. By 172 writ of quare ejecit infra terminum 199 9. The universal remedy for all these is 4. A writ of ejectione firmæ, or action of restitution or delivery of possession, trespass in ejeciment, lieth where and, sometimes, damages for the de. lands, &c., are let for a term of years, tention. This is effected, I. By mere and the lessee is ousted or ejected entry. II. By action possessory. III. from his term ; in which case he shall 174 recover possession of his term, and 10. Mere entry on lands, by him who damages 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 11. Where the wrong-doer hath not only thereupon. III. His actual (or sup- mere possession, but also an apparent posed) ouster and ejectment by the de. right of possession; this may be de- fendant. For which injury this action vested by him who hath the actual right is brought, either against the tenant, of possession, by means of the posses. or (more usually) against some casual 12. Awrit of entry is a real action, which the tenant may be admitted defendant, disproves the title of the tenant, by on condition that the lease, entry, and shewing the unlawful means under ouster be confessed, and that nothing tiff 180 is an action of a similar nature : only 13. An assise is a real action, which not brought against the wrong-doer or proves the title of the demandant, by ejector himself, but such as are in pos- shewing his own, or his ancestor's session under his title possession. And it may be brought either to remedy abatements ; viz. the assise of mort d' ancestor, &c.: or to OF TRESPASS remedy recent disseisins; viz. the as- 1. Trespass is an entry upon, and da. 184–190 mage done to, another's lands, by one's 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 CHAPTER XIII. gained by recovery in a possessory ac- OF NUISANCE 216 to 219 tion, had upon the merits. IV. Where 1. Nuisance, or annoyance, is any thing 200-206 a : Page Page 236 common nuisance, of which in the next 2. Disturbances are, I. Of franchises. book; or, a private nuisance, which is II. Of commons. III. Of ways. IV. any thing done to the hurt or annoy- Of tenure. V. Of patronage 236 ance of, I. The corporeal, II. The in. 3. Disturbance, of franchises, is reme- corporeal, hereditaments of another died by a special action on the case ; 2. The remedies for a private nuisance (besides that of abatement), are, I. 4. Disturbance of common, is I. Inter. II. Surcharging the cominon. Reme. mages; by writ of quod permittat pros. dies: distress damage feasant; to 219 compel satisfaction : action on the case ; for damages : or, writ of ad. CHAPTER XIV. measurement of pasture ; to appor- tion the common; -and writ de se- 223 to 229 cunda superoneratione ; 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 223 only; by action on the case 237-240 2. The remedies, for a commoner, are, 5. Disturbance of ways, is the obstruc- restitution, and damages; by assise tion, I. Of a way in gross, by the own- of common : or, damages only; by ac- er of the land. II. Of a way append- tion on the case 224 ant, by a stranger. Remedy, for both : 3. The remedy for him in remainder, or damages ; by action on the case reversion, is, I. Preventive : by writ 6. Disturbance of tenure, by driving to a benefice; whereof usurpation CHAPTER XV. within six months is now become a species 242 OF SUBTRACTION 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 244 due by tenure. II. Of those due by 9. The remedies are, I. By assise of custom 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 231-234 CHAPTER XVII. 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, sufferer 254 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 CHAPTER XVI. right; where the right is grounded on facts disclosed in the petition itself. OF DISTURBANCE 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 mesne Page 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 OF PLEADINGS 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 of fact 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. 315 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. 2 pleader . Page Pago 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 331 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 336 399 CHAPTER XXV. 336 402 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 Chamber • 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 cial 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 trusts, or second uses, in a manner analogous to the law of legal 08- UF PROCEEDINGS IN THE COUrts of tates 436-440 426 to 455 5. The proceedings in the court of Chan- 1. Matters of equity, which belong to the cery (to which those in the Exche. peculiar jurisdiction of the court of quer, &c. very nearly conform) are, I. Chancery, are, I. The guardianship of Bill. 11. Writ of subpæna ; and per- infants. II. The custody of idiots and haps, injunction. III. Process, of con. lunatics. III. The superintendence tempt ; viz. (ordinarily) attachment, of charities. IV. Commissions of attachment with proclamations, com- 426-428 mission of rebellion, serjeant at arms, 2. The court of Exchequer, and the du- and sequestration. IV. Appearance. chy court of Lancaster, have also some V. Demurrer. VI. Plea. * VII. An- peculiar causes, in which the interest of the king is more immediately con- ments ; cross, or supplemental, bills; 428-9 bills of revivor, interpleader, &c. IX. 3. Equity is the true sense and sound Replication. X. Issue. XI. Deposi. interpretation ofthe rules of law; and, tions, taken upon interrogatories; and as such, is equally attended to by the subsequent publication thereof. XII. judges of the courts both of common Hearing. XIII. Interlocutory decree ; 430–436 feigned issue, and trial; reference to 4. The essential differences, whereby the master, and report ; &c. XIV. the English courts of equity are dis. Final decree. XV. Rehearing, or bill ment 442-455 |
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