Commentaries on the Laws of England

OF WRONGS AND THEIR REMEDIES RESPECTING THE RIGHTS OF PERSONS. —(continued.) page.
injuries against a man's personal security are:

1. affecting his life, to be hereafter considered,.

119

2, 3. affecting his limbs or body, which may be by threats of bodily harm,
by assault, by battery, by wounding, or by mayhem,.

4. affecting his health by unwholesome practices,.

120

.....

121

123

127

5. affecting his reputation,

which may be by slander,.

or by libel,......

or by malicious prosecution,..

injuries against a man's personal liberty are by false imprisonment,..

to remove which the remedies are, 1, by writ of mainprize; 2, by writ de odio
et atia; 3, by writ de homine replegiando; 4, by writ of habeas corpus,. 128

of which the last is the principal,.

the habeas corpus act,..

damages may also be recovered in an action of trespass,.

injuries to private property are considered hereafter,.

injuries to relative rights affect:

L. husbands, and may be,

1. abduction, or taking away his wife, for which he may recover

damages,.

2. adultery, for which trespass or action on the case will lie,.......
3. beating or ill-treating the wife, for which husband and wife join
in suing, or the husband may sue separately for loss of services,

II. parents, by the abduction of children,.
III. guardians, when their wards are stolen or ravished away from them,.
IV. masters, and these are:

189

139

140

141

1. retaining a man's hired servant before his time has expired,...... 142
2. beating him, per quod servitium amisit,..

8. to which may be added the seduction of his female servant,
the remedy for each is an action for damages,..

OF INJURIES TO PERSONAL PROPERTY,..

personal property is either in possession or in action,...

the injuries to rights thereto are either by deprivation of possession, or by abuse

or damage to the chattels while the owner continues in possession,.. 145

1. in case of an unlawful taking, remedy to restore the property may be

had by replevin,......

145

which was formerly applicable only to distress,.
damages may be recovered instead,..

145

151

2. for an unlawful detainer of goods, remedy to recover possession may
be by replevin or detinue,

....

151

or damages may be recovered in trover,.

152

for injuries to property in the owner's possession, the remedies are:

1. by action of trespass, where the act was immediately injurious to the

property,..

153

2. by action on the case, where the injury was only consequential,.
injuries to rights in action are by breach of contract..

154

contracts are express or implied,...

express, include debts, covenants and promises,.

a debt is a sum due by certain and express agreement,.
for which action of debt or on the case may be brought,.

a covenant is an undertaking by deed,..

154

155

156

remedy for breach, an action of covenant to recover damages,

or, in case of covenant real, to compel performance,.

who may take advantage of covenants,.

157

158

a promise is in the nature of a verbal covenant,.
remedy for breach, an action of assumpsit,.

certain promises required by the statute of frauds to be in writing... 159
implied contracts are such as reason and justice dictate and which
therefore the law presumes the man has contracted to perform.... 160

of which are, 1, those arising from the nature and constitution of

government,....

2. those which arise from natural reason and the just construction

of law,....

160

162

OF INJURIES TO PERSONAL PROPERTY.-(continued.)

as 1. to pay quantum meruit for labor,

2. to pay quantum valebat for goods,..

....

8. to account for money had and received to the use of another, 163

4. to repay money laid out and expended for one's own use,..

5. to pay the balance on an account stated,.

6. to perform one's duty in any undertaking,.

in some cases, also, there is an implied warranty on sales,.
in all these cases an action lies on the implied assumpsit,.
and sometimes an action of deceit,....

CHAPTER X

OF INJURIES TO REAL PROFERTY; AND FIRST OF DISPOSSESSION OR OUSTER OF THE

FREEHOLD,

167-197

injuries affecting real property are, 1. ouster; 2. trespass; 3. nuisance; 4. waste

5. subtraction; 6. disturbance,.

ouster or dispossession may be

1. by abatement, where, on death of the person seized, a stranger enters

before the heir,

167

... 168

2. by intrusion, where after a particular estate is determined, a stranger

enters before the remainder man or reversioner,......

8. by disseisin, which is a wrongful putting one out of possession,.
4. by discontinuance, which is where tenant in tail or husband of tenant
in fee makes a larger estate of the land than he is entitled to,....... 171
5. by deforcement, which is where the entry was originally lawful, but
the detainer is become unlawful,..

the remedies for these wrongs are,

I. peaceable entry, which is applicable only to the first three cases,
and the right of which may be tolled,..

III. where the wrong doer hath gained the actual right of possession, the
remedy is by writ of right or other writ in the nature thereof,..... 190
the present remedy for these wrongs is by action of ejectment.

CHAPTER XI.

OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL,..

ouster from chattels real is,

197n

198-207

1. from estates by statute or elegit, for which the remedy is by assize of novel

disseisin,..

the first, or action of ejectment, is now the usual mode of trying title, 200

in it the party recovers possession, and also damages,..

proceedings in ejectment,..

200

200-205

after recovery of possession an action may be brought for mesne profits, 205

ejectment does not lie for incorporeal hereditaments except tithes,..

3. a writ quare ejecit infra terminum lies against one who has come in under

trespass is an injury directly and immediately injurious to the person or property
of another, and therefore necessarily accompanied with some force,.
trespass to lands, signifies an entry on another man's ground without lawful
authority, doing some damage, however inconsiderable,.

remedy, by action of trespass quare clausum fregit,

208

209

210

to maintain which one must have both property in the soil and pos-

session,....

210

where the trespass is by cattle, they may be distrained damage feasant,.

in some cases an entry on another's lands is justifiable,.

but if the person entering abuses his privilege, he becomes trespasser

CHAPTER XIIL

nuisances are: 1, public or common; 2, private,...

a private nuisance is anything done to the hurt or annoyance of the lands,

tenements or hereditaments of another,...

2. to incorporeal hereditaments, as by obstructing a way, &c.,...

the remedies for private nuisances, besides that by abatement, are:

1. by action on the case for damages,.

PAGE.

218

2. by assize of nuisance, in which damages may be recovered and the

nuisance abated,...

8. by writ quod permittat prosternere,..

but an action on the case is now the sole remedy,.

CHAPTER XIV.

OF WASTE,..

223-229

waste is a spoil or destruction in lands or tenements, being either voluntary or

permissive,..

223

to be injured by waste, one must have an interest in the estate,.
which may be either a present interest (as by right of common),.
or an interest in remainder or reversion,...

the remedies are:

1. preventive by writ of estrepement,.

or by injunction in equity,...

2. corrective, by writ of waste, to recover the place wasted and damages, 228
for which an action on the case is now substituted,.........

CHAPTER XV.

OF SUBTRACTION,....

230-235

subtraction is when one who owes services to another withdraws or neglects to

perform them,....

230

this may be, 1, of rents or other services due by tenure; 2, of those due by

custom,.

230

of those due by tenure, the general remedy is by distress,.

281

other remedies are, 1. action of debt; 2. assize; 3. writ de consuetudin-

ibus et servitiis; 4. writ of cessavit; 5. writ of right sur disclaimer,.

to remedy the oppression of the lord, the tenant has, 1. writ ne injuste

vexes; 2. writ of mesne,.

231

234

of those due by custom, the remedies are, 1. writ of secta ad molendinum,

&c., 2. action on the case....

disturbance is a hindering or disquieting the owner of an incorporeal heredita-

ment in his regular and lawful enjoyment of it,...

236

I. disturbance of franchises is remedied by action on the case,.
II. disturbance of common, which may be, 1. by intercommoning without
right; 2. by surcharging the common; 3. by enclosure or obstruction,
for each of which there is appropriate remedy,

237-241

III. disturbance of ways is redressed by action on the case,.

IV. disturbance of tenure has the like remedy,....

V. disturbance of patronage, is the hindrance of a patron to present his

clerk to a benefice,....

242

for which there were various remedies, of which quare impedit is the

OF INJURIES PROCEEDING FROM OR AFFECTING THE CROWN,..

these are. 1. where the crown is aggressor; 2. where the crown is the sufferer,... 254

the maxim that the king can do no wrong,..

injuries to rights of property by the crown are remedied:

254

1. by petition of right, grounded on facts set forth in the petition,... 256

2. by monstrans de droit, when the right already appears, and is estab-

lished,.

....

256

OF INJURIES PROCEEDING FROM OR AFFECTING THE CROWN-(continued.)
injuries to the rights of the crown are redressed:

1. by the usual common-law actions,.....
2. by inquest of office, to recover possession,

....

3. by scire facias, to repeal the king's letters patent or grant,.
4. by information in the exchequer to recover moneys or chattels, or to
obtain damages for wrongs to the possessions of the crown,.

PAGE

257

258

261

... 261

5. by writ of quo warranto, or information in the nature thereof, when
offices, franchises or liberties are usurped,..

262

6. by mandamus, to admit or restore a person entitled to a place or office, 264
or to compel elections, &c,.

recapitulation: completeness of the remedies given for wrongs,

CHAPTER XVIII.

265
265-269

OF THE PURSUIT OF REMEDIES BY ACTION; AND, FIRST, OF THE ORIGINAL WRIT, 270-278

the common pleas, the original court for civil actions,..

271

the king's bench and exchequer have now concurrent jurisdiction generally, 271

of the orderly parts of a suit the first is the original writ from the court of

chancery,.

which is either optional or peremptory,

return thereof,...

the four terms of court,.

CHAPTER XIX.

OF PROCESS,

279-293

after the original writ comes process, or the means of compelling the defendant

to appear,

this includes, 1. summons; 2. writ of attachment or pone, sometimes the first
process; 3. writ of distringas; 4. 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; 5. the
alias and pluries writs; 6. the exigeat, or writ of exigi facias, proclama-
tions and outlawry; 7. appearance and common bail; 8. arrest; 9.
special bail, first, to the sheriff and then to the action,..
for all which a writ of summons is now substituted in ordinary cases.

pleadings are the mutual altercations between the plaintiff and defendant, form-

erly oral, but now in writing,..

293

I. the declaration, narratio or count, which is an amplification of the original
writ, with the addition of time and place of the injury,.
the venue in which is in some cases local,..

II. the defence, claim of cognizance, imparlance, view, oyer, aid-prayer,
voucher, or parol demurrer,..

297-301

III. the plea, which is either dilatory or to the action,.

dilatory pleas, merely to delay or put off the suit, are:

1. to the jurisdiction of the court,

2. to the disability of the plaintiff,

3. in abatement of the writ or counts,.

these must be verified and pray judgment, &c.,
pleas to the action either confess the complaint in whole or in part, as
in tender and set-off,.......

or totally deny the cause of complaint; as the general issue or special

plea in bar,...

instances of special pleas,..

...305, 306

....306, 308

the qualities of a plea are, 1. that it be single; 2. direct and positive and
not argumentative; 3. with convenient certainty of time, place and
persons; 4. answering the plaintiff's allegations in every material
point, and, 5. so pleaded as to be capable of trial,...
special pleas must advance some new fact not mentioned in the declara-
tion, and are bad if only amounting to general issue,
they may give color to the plaintiff,......

... 308

309

OF PLEADING—(continued.)

IV. the replication of the plaintiff, which may be followed by rejoinder, sur-

rejoinder, rebutter, and sur-rebutter,.

concerning departure, new assignment, duplicity, &c.,.....

PAGE

310

.....

310-313

CHAPTER XXI.

OF ISSUE AND DEMURRER,.

814-824

issue is either upon matter of fact or matter of law,..

314

issue of law is called a demurrer, and it admits the facts to be true, as stated,

but denies their legal sufficiency,.

314

this issue is tried by the court,..

.315, 323

315

issues of fact are to be tried by jury,

new matter after issue joined may be pleaded puis darrien continuance..

pleadings were formerly in Norman or law-french, and then in Latin, but now in

...817-328

OF THE SEVERAL SPECIES OF TRIAL,....

the uncertainty in legal proceedings discussed,..

trial is the examination of the matter of fact in issue,

1. by the record, where matter of record is in issue,..
2. by inspection, or examination, which is by the court, where the mat-
ter in issue is the evident object of the senses,...

8. by certificate, where the evidence of the person certifying is the only

proper criterion of the point in dispute,...

331

881

333

4. by witnesses, which is only used on writ of dower, where the death of

the husband is denied...