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OF INJURIES TO PERSONAL PROPERTY.-(continued.)
as 1. to pay quantum meruit for labor,..
2. to pay quantum valebat for goods,
3. 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,.... 163 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,
OF INJURIES TO REAL PROPERTY; AND FIRST OF DISPOSSESSION OR OUSTER OF THE FREEHOLD,..
injuries affecting real property are, 1. ouster; 2. trespass; 3. nuisance; 4. waste; 5. subtraction; 6. disturbance,..
1. by abatement, where, on death of the person seized, a stranger enters before the heir,.....
ouster or dispossession may be
2. by intrusion, where after a particular estate is determined, a stranger enters before the remainder man or reversioner,....
3. by disseisin, which is a wrongful putting one out of possession,
the remedies for these wrongs are,
I. peaceable entry, which is applicable only to the first three cases,
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.
OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL,....
ouster from chattels real is,
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,
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 terminem lies against one who has come in under the wrong doer,.....
tres ass is an injury directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force..... 208 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,..
to maintain which one must have both property in the soil and possession,
where the trespass is by cattle, they may be distrained damage feasant, 211 in some cases an entry on another's lands is justifiable,......
but if the person entering abuses his privilege, he becomes trespasser ab initio,...
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,....
this may be,
1. to corporeal hereditaments,
2. to incorporeal hereditaments, as by obstructing a way, &c., the remedies for private nuisances, besides that by abatement are:
.... 216 .... 218
1. by action on the case for damages,
2. by assize of nuisance, in which damages may be recovered and the nuisance abated,
3. by writ quod permittat prosternere,....
but an action on the case is now the sole remedy,
waste is a spoil or destruction in lands or tenements, being either voluntary or permissive,..
to be injured by waste, one must have an interest in the estate,
2. corrective, by writ of waste, to recover the place wasted and damages, 228 for which an action on the case is now substituted,
subtraction is when one who owes services to another withdraws or neglects to perform them,
this may be, 1. of rents or other services due by tenure; 2. of those due by custom,.....
of those due by tenure, the general remedy is by distress,
other remedies are, 1. action of debt; 2. assize; 3. writ de consuetudin-
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 hereditament in his regular and lawful enjoyment of it, ...
I. disturbance of franchises is remedied by action on the case,
III. disturbance of ways is redressed by action on the case,
for which there were various remedies, of which quare impedit is the present,..
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,
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 established,....
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,.....
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,
OF THE PURSUIT OF REMEDIES BY ACTION; AND, FIRST, OF THE ORIGINAL WRIT, 270-278 the common pleas, the original court for civil actions,...
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,
the four terms of court,
272 272 275-278
after the original writ comes process, or the means of compelling the defendant to appear, 279 this includes, 1. summons; 2. writ of attachment or pone, sometimes the first process; 3. writ of distringas; 4. cupias 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, proclamations and outlawry; 7. appearance and common bail; 8. arrest 9. special bail, first, to the sheriff and then to the action,........279-292 for all which a writ of summons is now substituted in ordinary cases.
pleadings are the mutual altercations between the plaintiff and defendant, formerly oral, but now in writing,.............
I. the declaration, narratio or count, which is an amplification of the original
II. the defence, claim of cognizance, imparlance, view, oyer, aid-prayer, voucher, or parol demurrer,.
pleas to the action either confess the complaint in whole or in part,
or totally deny the cause of complaint; as the general issue or special
.305, 306 ...306, 308
the qualities of a plea are, 1. that it be single; 2. direct and positive and
they may give color to the plaintiff,
IV. the replication of the plaintiff, which may be followed by rejoinder, surrejoinder, rebutter and sur-rebutter,
concerning departure, new assignment, duplicity, &c.,
OF ISSUE AND Demurrer,
issue is either upon matter of fact or matter of law,
issue of law is called a demurrer, and it admits the facts to be true, as stated,
but denies their legal sufficiency,...
this issue is tried by the court,
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 English,
OF THE SEVERAL SPECIES OF TRIAL,.....
the uncertainty in legal proceedings discussed,.
trial is the examination of the matter of fact in issue,.
the several species are:
1. by the record, where matter of record is in issue,....
2. by inspection, or examination, which is by the court, where the matter in issue is the evident object of the senses,
3. by certificate, where the evidence of the person certifying is the only proper criterion of the point in dispute,...
4. by witnesses, which is only used on writ of dower, where the death of the husband is denied,...
trial by jury, called also trial per pais, or by the country,
is of two kinds, extraordinary or ordinary,..
the first is by the grand assize in writs of right, and by the grand jury in writs of attaint,.
in the ordinary jury trial the process is:
1. the venire facias to the sheriff to summon jurors,.
with the subsequent compulsive habere corpora, or distringas,
if the sheriff be not indifferent, the process issues to coroners or elisors,
2. the carrying down the record to nisi prius,
3. the sheriff's return of common or special jurors,
4. the challenges, which are to the whole array or to the polls,
challenges to the poils are either propter honoris respectum, propter defectum, propter affectum, or propter delictum,.
evidence is of two kinds, by proofs, or by the private knowledge of the jurors,...
proofs are either written or by parol,.
the best evidence the case will admit of is always required, if to be obtained,.......
and terms may be imposed,
2. judgment may be arrested for cause apparent on the record,.
as where declaration does not pursue the writ, or is insufficient,.
costs or expenses of suit are now the necessary consequence of judgment,... 399
and slight mistakes and errors are cured under the statutes of amend-
history of these statutes,.