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10. Injuries to reputation are, I. Slanderous and malicious words. Remedy: by action on the case, for damages. II. Libels. Remedy: the same. III. Malicious prosecutions. Remedy: by action of conspiracy, or on the case, for damages
Page 123 11. The sole injury to personal liberty is false imprisonment. Remedies: I.
By writ of, 1st, mainprize; 2dly, odio et atia; 3dly, homine replegiando; 4thly, habeas corpus; to remove the wrong. II. By action of trespass; to recover damages
..127-138 12. For injuries to private property, see the next chapter.
13. Injuries to relative rights affect, I. Husbands. II. Parents. III. Guardians. IV. Masters........
14. Injuries to a husband are, I. Abduction, or taking away his wife. Remedy: by action of trespass de uxore rapta et abducta, to recover possession of his wife, and damages. II. Criminal conversation with her. Remedy: by action on the case, for damages. III. Beating her. Remedy: by action on the case, per quod consortium amisit, for damages..
15. The only injury to a parent or guardian, is the abduction of their children, or wards. Remedy: by action of trespass, de filiis, vel custodiis, raptis vel abductis; to recover possession of them, and damages.......... ...140-141
16. Injuries to a master are, I. Retaining his servants. Remedy: by action on the case, for damages. II. Beating them. Remedy: by action on the case, per quod servitium amisit; for da
OF INJURIES TO PERSONAL PROPERTY.. 144 to 166 1. Injuries to the rights of property are either to those of personal, or real, property.
2. Personal property is either in possession, or in action...... 3. Injuries to personal property in possession are, I. By dispossession. II. By damage, while the owner remains in possession.
4. Dispossession may be effected, I. By an unlawful taking. II. By an unlawful detaining......
5. For the unlawful taking of goods and chattels personal, the remedy is, I. Actual restitution; which (in case of a wrongful distress) is obtained by action of replevin. II. Satisfaction in damages: 1st, in case of rescous, by action of rescous, pound-breach, or on the case; 2dly, in case of other unlawful takings, by action of trespass, or
For the unlawful detaining of goods lawfully taken, the remedy is also, I. Actual restitution; by action of replevin, or detinue. II. Satisfaction in
8. Injuries to personal property, in action, arise by breach of contracts, I. Express. II. Implied.......
9. Breaches of express contracts are, I. By non-payment of debts. . Remedy: 1st, specific payment; recoverable by action of debt; 2dly, damages for nonpayment; recoverable by action on the case. II. By non-performance of covenants. Remedy: by action of covenant, 1st, to recover damages, in covenants personal; 2dly, to compel performance in covenants real. III. By non-performance of promises, or assumpsits. Remedy: by action on the case, for damages......... ..154-158 10. Implied contracts are such as arise, I. From the nature and constitution of government. II. From reason and the construction of law....... ... 158 11. Breaches of contracts implied in the nature of government are by the nonpayment of money which the laws have directed to be paid. Remedy: by action of debt, (which, in such cases, is frequently a popular, frequently a qui tam action,) to compel the specific payment; or sometimes by action on the case, for damages.......... .158-161 12. Breaches of contracts implied in reason and construction of law are by the nonperformance of legal presumptive assumpsits for which the remedy is in damages; by an action on the case, on the implied assumpsits. I. Of a quantum meruit. Of a quantum valebat. III. Of money expended for another. IV. Of receiving money to another's use. V. Of an insimul computassent, on an account stated, (the remedy on an account unstated being by action of account.) VI. Of performing one's duty, in any employment, with integrity, diligence, and skill. In some of which cases an action of deceit (or on the case, in nature of deceit) will ....161-166
4. Abatement is the entry of a stranger, after the death of the ancestor, before the heir..... 5. Intrusion is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion.
6. Disseisin is a wrongful putting out of him that is seised 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 the law alloweth... 8. Deforcement is any other detainer of the freehold from him who hath the property, but who never had the possession.......... The universal remedy for all these is restitution or delivery of possession, and, sometimes, damages for the detention. This is effected, I. By mere entry. II. By action possessory. III. By writ of right.........
10. Mere entry on lands, by him who hath the apparent right of possession, will (if peaceable) devest the mere possession of a wrong-doer. But forcible entries are remedied by immediate restitution, to be given by a justice of the peace.........175-179 11. Where the wrong-doer hath not only mere possession, but also an apparent right of possession; this may be devested by him who hath the actual right of possession, by means of the possessory actions of writ of entry, or assise.. 12. A writ of entry is a real action, which disproves the title of the tenant, by showing the unlawful means under which he gained or continues possession. And it may be brought, either against the wrongdoer himself; or in the degrees called the per, the per and cui, and the post...... 180 13. An assise is a real action, which proves the title of the demandant, by showing 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 assise of novel disseisin .........184-190 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 estates by their own default. Remedy by writ of quod ei deforceat. III. Where gained by recovery in a possessory action, had upon the merits. IV. Where gained by the statute of limitations. Remedy, in both cases: by a mere writ of right, the highest writ in .190-197
OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL...... ..198 to 207 1 Ouster from chattels real is, I. From
2. Ouster from estates by statute or elegit is effected by a kind of disseisin. Remedy: restitution, and damages; by assise of novel disseisin.....
3. Ouster from an estate for years is effected 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 firmæ, 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 recover possession of his term, and damages.. ....... 198 5. This is now the usual method of trying titles to land, instead of an action real: viz., by, I. The claimant's making an actual (or supposed) lease upon the land to the plaintiff. II. The plaintiff's actual (or supposed) entry thereupon. III. His actual (or supposed) ouster and ejectment by the defendant. 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 plaintiff... ..........200-206 6. A writ of quare ejecit infra terminum is an action of a similar nature; only not brought against the wrong-doer or ejector himself, but such as are in possession under his title
OF TRESPASS...... 208 to 215 1. Trespass is an entry upon, and damage done to, another's lands, by one's self, r one's cattle; without any lawful authority, or cause of justification: which is called a breach of his close. Remedy: damages; by action of trespass quare clausum fregit: besides that of distress damage feasant. But, unless the title to the land come chiefly in question, or the trespass was wilful or malicious, the plaintiff (if the damages be under forty shillings) shall recover no more costs than damages.. ..208-215
OF NUISANCE.................................216 to 210 1. Nuisance, or annoyance, is any thing that worketh damage, or inconvenience; and it is either a public and common nuisance, of which in the next book; or, a private nuisance, which is any thing done to the hurt or annoyance of, I. The corporeal, II. The incorporeal, hereditaments of another.. 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 by a public
OF SUBTRACTION .230 to 235 1. Subtraction is when one who owes services to another withdraws or neglects to perform them. This may be, I. Of rents, and other services, due by tenure. II. Of those due by custom.............. 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 consuetudinibus et servitiis; to compel the payment. V. By writ of cessavit; and, VI. By writ of right sur disclaimer-to recover the land itself......
5. Disturbance of ways is the obstruction, I. Of a way in gross, by the owner of the land. II. Of a way appendant, by a stranger. Remedy, for both: damages; by action on the case..........
6. Disturbance of tenure, by driving away tenants, is remedied by a special action on the case; for damages.... 7. Disturbance of patronage is the hinderance of a patron to present his clerk to a benefice; whereof usurpation within six months is now become a species............ 242 8. Disturbers may be, I. The pseudo-patron, by his wrongful presentation. II. His clerk, by demanding institution. III. The ordinary, by refusing the clerk of the true patron.... ..... 244 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 incumbravit, and quare non admisit; for subsequent damages. III. By writ of right of advowson; to compel institution, or establish the permanent right...
OF INJURIES PROCEEDING FROM, OR AFFECTING, THE CROWN.
1. Injuries to which the crown is a party, are, I. Where the crown is the aggressor. II. Where the crown is the sufferer....... 2. The crown is the aggressor, whenever it is in possession of any property to which the subject hath a right
3. This is remedied, I. By petition of right; where the right is grounded on facts disclosed in the petition itself. II. By monstrans de droit; where the claim is grounded on facts already appearing on record. The effect of both 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 commonlaw actionɛ 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 moneys 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 ex 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
OF THE PURSUIT OF REMEDIES BY ACTION, AND, FIRST, OF THE ORIGINAL WRIT..270 to 272 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... 270 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. IV. The issue or demurrer. V. The trial. VI.
The judgment. VII. The proceedings in nature of appeal. VIII. The execution 272 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 show 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 show wherefore he hath injured the plaintiff both issuing out of Chancery under the king's great seal, and returnable in bank during term-time............... 272
279 to 292
2 This includes, I. Summons. II. The writ
VI. The exigent, or writ of exigi facias, proclamations, and outlawry. VII. Appearance, and common bail. VIII. The arrest. IX. Special bail, first to the sheriff, and then to the action...... ...279-292
OF PLEADINGS.......... ..........293 to 313 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, aidprayer, voucher, or age. III The plea;
which is either a dilatory plea (1st, to the jurisdiction; 2dly, in disability of the plaintiff; 3dly, 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, 2dly, 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... Page 293-313
OF ISSUE AND DEMURRER. ...........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......... ........... 314 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......
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 assise...... 33b 8. Trial by wager of law is only had, where the matter in issue may be supposed to have been privily transacted between the parties themselves, without the intervention of other witnesses.............................
OF THE TRIAL BY JURY............ Page 351 to 385 1. Trial by jury is, I. Extraordinary; as, by the grand assise, 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 venire 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, 2dly, common, jurors. IV. The challenges; 1st, to the array; 2dly, to the polls of the jurors; either, propter honoris respectum, propter dejectum, 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; 2dly, parol,-or, by the private knowledge of the jurors. VIII. The verdict: which may be, 1st, privy; 2dly, public; 3dly, special........ ...........351-385
OF JUDGMENT, AND ITS INCIDENTS......386 to 399 1. Whatever is transacted at the trial, in the court of nisi prius, is added to the record under the name of a postea; consequent upon which is the judgment......... 386 2. Judgment may be arrested or stayed for causes, I. Extrinsic, or dehors the record: as in the case of new trials. II. Intrinsic, or within it: as where the declaration varies from the writ, or the verdict from the pleadings and issue; or where the case laid in the declaration is not sufficient to support the action in point of law.....
.386-394 3. Where the issue is immaterial or insuffi
cient, 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 5. Judgments are, I. Interlocutory; which are incomplete till perfected by a writ of inquiry. II. Final.......
5. Costs, or expenses of suit, are now the necessary consequence of obtaining judg
OF PROCEEDINGS IN THE NATURE OF AP.........402 to 411 1. Proceedings in the nature of appeals 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........ .402-406
2. Writs of error lie, I. To the court of 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......... Page 406-411
OF EXECUTION.... .........412 to 425 1. Execution is the putting in force of the sentence of judgment of the law: which is effected, I. Where possession of any hereditament is recovered; by writ of habere facias seisinam, possessionem, &c. Where any thing is awarded to be done or rendered; by a special writ for that purpose: as, by writ of abatement in case of nuisance; retorno habendo, and capias in withernam, in replevin; distringas and scire facias in detinue. III. Where money only is recovered; by writ of, 1st, capias ad satisfaciendum, against the body of the defendant; or, in default thereof, scire facias, against his bail. 2dly, fieri facias, against his goods and chattels. 3dly, levari facias, against his goods and the profits of his lands. 4thly, elegit, against his goods and the possession of his lands. 5thly, extendi facias, and other process, on statutes, recognizances, &c., against his body, lands, and goods............................
426-428 2. The court of Exchequer, and the duchy court of Lancaster, have also some peculiar causes, in which the interest of the king is more immediately concerned...... .428-429
3. Equity is the true sense and sound interpretation of the rules of law, and, as such, is equally attended to by the judges of the courts both of common law and equity...... .430-43
4. The essential differences, whereby the English courts of equity are distinguished from the courts of law, are, I. The mode of proof, by a discovery on the oath of the party; which gives a jurisdiction in matters of account, and fraud. II. The mode of trial; by depositions taken in any part of the world. III. The mode of relief; by giving a more