II.

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. By proceedings in the courts of equity... 270 % 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 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

CHAPTER XIX.

OF PROCESS.. 279 to 292 1. Process is the means of compelling the defendant to appear in court..

279

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. VII. Appearance, and common bail. VIII. The arrest. IX. Special bail, first to the sheriff, and then to the action......... ...279-292

which is either a dilatory rea (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, dupli city, departure, new assignment, protestation, averment, and other incidents of pleading... . Page 298-318

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........ .... £86 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...... 337 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.............. 841

CHAPTER XXIII.

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 defectum, propter affectum, (which is sometimes a principal challenge, sometimes to the favour,) or, propter delictum.

V. The

351

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

CHAPTER XXIV.

386

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.... 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 8. 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....

395

396

6. Costs, or expenses of suit, are now the necessary consequence of obtaining judg

ment.

399

CHAPTER XXV.

OF PROCEEDINGS IN THE NATURE OF APPEALS............. .402 to 411 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 deceit. III. A writ of audita querela; to discharge a judgment by matter that has since happened. IV. 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

CHAPTER XXVI.

.412 to 425

OF EXECUTION..... 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. II. 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, ....412-428 lands, and goods..........

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......... 430-13

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

specific and extensive remedy than can be had in the courts of law: as, by carrying agreements into execution, staying waste or other injuries by injunction, directing the sale of encumbered lands, &c. IV. The true construction of securities for money, by considering them merely as a pledge. V. The execution of trusts, or second uses, in a manner analogous to the law of legal esPage 436-440 The proceedings in the court of Chancery (to which those in the Exchequer, &c. very nearly conform) are, I. Bill. 11. Writ of subpœna; and perhaps injunction III. Process of contempt;

tates....

viz., (ordinarily) attachment, attachment with proclamations, commission of rebellion, serjeant-at-arms, and sequestration. IV. Appearance. V. Demurrer. VI. Plea. VII. Answer. VIII. Exceptions; amendments; cross, or supplemental, bills, bills of revivor, interpleader, &c. IX. Replication. X. Issue. XI. Depositions taken upon interrogatories; and subsequent publication thereof. XII. Hearing. XIII. Interlocutory decree; feigned issue, and trial; reference to the master, and report; &c. XIV. Final decree. XV. Rehearing, or bill of review. XVI. Appeal to parliament....... .... Page 442-15

PUNISHMENT.... .... Page 1 to 12 1. In treating of public wrongs may be considered, I. The general nature of crimes and punishments. II. The persons capable of committing crimes. III. Their several degrees of guilt. IV. The several species of crimes, and their respective punishments. V. The means of prevention. VI. The method of punishment....................................

2. A crime, or misdemeanour, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it...........

? Crimes are distinguished from civil injuries, in that they are a breach and violation of the public rights, due to the whole community, considered as a community......

4. Punishments may be considered with regard to, I. The power, II. The end, III. The measure,-of their infliction..... 5. The power, or right, of inflicting human punishments, for natural crimes, or such as are mala in se, was by the law of nature vested in every individual; but, by the fundamental contract of society, is now transferred to the sovereign power: in which also is vested, by the same contract, the right of punishing positive offences, or such as are mala prohibita....

6. The end of human punishments is to prevent future offences; I. By amending the offender himself. II. By deterring others through his example. III. By depriving him of the power to do future mischief..

1

5

5

7

7

11

'. The measure of human punishments
must be determined by the wisdom of
the sovereign power, and not by any
uniform universal rule: though that wis-
dom may be regulated, and assisted, by
eertain general, equitable principles...... 12
CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTING
CRIMES.....

20 to 33

1 All persons are capable of committing crimes, unless there be in them a defect of will; for, to constitute a legal crime, there must be both a vicious will and a vicious act.

2. The wil does not concur with the act, I. Where there is a defect of understanding. II. Where no will is exerted. III. Where the act is constrained by force and violence........................................................................

VI.

13. A vicious will may therefore be wanting, in the cases of I. Infancy. II. Idiocy, or lunacy. III. Drunkenness; which doth not, however, excuse. IV. Misfortune. V. Ignorance, or mistake of fact. Compulsion, or necessity; which is, 1st, that of civil subjection; 2dly, that of duress per minas; 3dly, that of choosing the least pernicious of two evils where one is unavoidable; 4thly, that of want or hunger; which is no legitimate ex.Page 22-32 4. The king, from his excellence and dignity, is also incapable of doing wrong....

cuse....

CHAPTER III.

43

OF PRINCIPALS AND ACCESSORIES....... .34 to 37 1. The different degrees of guilt in criminals are, I. As principals. II. As accessories...

2. A principal in a crime is, I. He who commits the fact. II. He who is present at, aiding, and abetting, the commission..

3. An accessory is he who doth not commit the fact, nor is present at the commission, but is in some sort concerned therein, either before or after.......

4. Accessories can only be in petit treason, and felony in high treason, and misdemeanours, all are principals.......

5. An accessory before the fact is one who, being absent when the crime is committed, hath procured, counselled, or commanded another to commit it

6. An accessory after the fact, is where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Such accessory is usually entitled to the benefit of clergy; where the principal, and accessory before the fact, are excluded from it

CHAPTER IV.

84

31

35

36

36

87