CHAPTER I.

PAGE

2 to 16

OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES 1. Wrongs are the privation of right; and are, I. Private. II. Public 2. Private wrongs, or civil injuries, are an infringement, or privation, of the civil rights of individuals, considered as individuals

3. The redress of civil injuries is one principal object of the laws of England

4. This redress is effected, I. By the mere act of the parties. II. By the mere operation of law. III. By both together, or suit in courts. 5. Redress by the mere act of the parties is that which arises, I. From the sole act of the party injured. II. From the joint act of all the parties 6. Of the first sort are, I. Defence of one's self, or relations. II. Recaption of goods. III. Entry on lands and tenements. IV. Abatement of nuisances.. V. Distress-for rent, for suit or service, for amercements, for damage, or for divers statutable penalties,-made of such things only as are legally distrainable; and taken and disposed of according to the due course of law. VI. Seizing of heriots, etc.

7. Of the second sort are, I. Accord. II. Arbitration.

2

3

3

3

3-15 15-16

18 to 21

PAGB

2. Herein may be considered, I. The courts themselves. II. The cognizance of wrongs, or injuries, therein. And of courts, I. Their nature and incidents. II. Their several species 23 3. A court is a place wherein justice is judicially administered, by officers delegated by the crown: being a court either of record, or not of record .

4. Incident to all courts are, a plaintiff, defendant, and judge: and with us, there are also usually attorneys, and advocates or counsel, viz., either barristers, or sergeants at law

CHAPTER IV.

OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY.

23-24

25

30 to 60 1. Courts of justice, with regard to their several species, are, I. Of a public or general jurisdiction throughout the realm. II. Of a private or special jurisdiction

2. Public courts of justice are, I. The
courts of common law and equity.
II. The ecclesiastical courts.
The military courts. IV. The mari-
time courts.

30

III.

30

3. The general and public courts of common law and equity are, 1. The court of piepoudre. II. The courtbaron. III. The hundred court. IV. The county court. V. The court of Common Pleas. VI. The court of King's Bench. VII. The court of Exchequer. VIII. The court of Chancery. (Which two last are courts of equity as well as law.) IX. The courts of Exchequer-Chamber. X. The house of Peers. To which may be added, as auxiliaries, XI. The courts of Assize and Nisi Prius.32–60

CHAPTER V.

OF COURTS ECCLESIASTICAL, MILITARY, AND MARITIME

.

62-68 I. Ecclesiastical courts, (which were separated from the temporal by William the Conqueror,) or courts Christian, are, I. The court of the Archdeacon. II. The court of the Bishop's Consistory. III. The court of Arches. IV. The court of Peculiars. V. The Prerogative Court. VI. The court of Delegates. VII. The court of Review .. . .62-68

71 to 85

1. Courts of a special or private jurisdiction are, I. The forest courts; including the courts of attachments, regard, sweinmote, and justice-seat. II. The court of Commissioners of Sewers. III. The court of policies of assurance. IV. The court of the Marshalsea and the Palace Court. V. The courts of the principality of Wales. VI. The court of the duchychamber of Lancaster. VII. The courts of the counties palatine, and other royal franchises. VIII. The stannary courts. IX. The courts of London, and other corporations:to which may be referred the courts of requests, or courts of conscience; and the modern regulations of certain courts-baron and county courts. X. The courts of the two Universities . . . . . .71-85

85 to 114

CHAPTER VII. OF THE COGNIZANCE OF PRIVATE WRONGS. 1. All private wrongs or civil injuries are cognizable either in the courts ecclesiastical, military, maritime, or those of common law.

For

86

2. Injuries cognizable in the ecclesiastical courts are, I. Pecuniary. II. Matrimonial. III. Testamentary. 87-88 3. Pecuniary injuries, here cognizable, are, I. Subtraction of tithes. which the remedy is by suit to compel their payment, or an equivalent; and also their double value. II. Nonpayment of ecclesiastical dues. Remedy: by suit for payment. III. Spoliation. Remedy: by suit for restitution. IV. Dilapidations. Remedy: By suit for damages. V. Nonrepair of the church, etc.; and nonpayment of church-rates. Remedy: by suit to compel them. 4. Matrimonial injuries are, I. Jactitation of marriage. Remedy: by suit for perpetual silence. II. Subtraction of conjugal rights. Remedy: by suit for restitution. III. Inability for the marriage state. Remedy: by suit for divorce. IV. Refusal of decent maintenance to the wife. Remedy: by suit for alimony

88-92

. 92-95

ΡΑΟΣ

5. Testamentary injuries are, I. Disputing the validity of wills. Remedy: by suit to establish them. II. Obstructing of administrations. Remedy: by suit for the granting them. III. Subtraction of legacies. Remedy: by suit for the payment. 95-98 6. The course of proceedings herein is much conformed to the civil and canon law: but their only compulsive process is that of excommunication; which is enforced by the temporal writ of significavit or de excommunicato capiendo 98-103 7. Civil injuries, cognizable in the court military, or court of chivalry, I. Injuries in point of honor. Remedy: by suit for honorable amends. II. Encroachments in coat-armor, etc. Remedy: by suit to remove them. The proceedings are in a summary method 103-106 8. Civil injuries cognizable in the courts maritime are injuries in their nature of common-law cognizance, but arising wholly upon the sea, and not within the precincts of any county. The proceedings are herein also much conformed to the civil law.. 106-109

9. All other injuries are cognizable only in the courts of common law: of which in the remainder of this book 109-114 10. Two of them are, however, cognizable by these, and other, inferior courts: viz. I. Refusal, or neglect, of justice. Remedies: by writ of procedendo or mandamus. II. Encroachment of jurisdiction. Remedy: by writ of prohibition 109-114

SONS

CHAPTER VIII.

Of Wrongs, AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PER115 to 143 1. In treating of the cognizance of injuries by the courts of common law, may be considered, I. The injuries themselves, and their respective remedies. II. The pursuits of those remedies in the several courts . . 115 2. Injuries between subject and subject, cognizable by the courts of common law,are in general remedied by putting the party injured into possession of that right whereof he is unjustly deprived.

115 3. This is effected, 1. By delivery of the thing detained to the rightful owner. II. Where that remedy is either impossible or inadequate, by giving the party injured a satisfaction in damages

4. The instruments by which these remedies may be obtained are suits or actions; which are defined to be

116

II.

PAGE

the legal demand of one's right: and these are, I. Personal. II. Real. III. Mixed . 116-118 5. Injuries (whereof some are with, others without, force) are, I. Injuries to the rights of persons. Injuries to the rights of property. And the former are, I. Injuries to the absolute, II. Injuries to the relative, rights of persons 118-119 6. The absolute rights of individuals are, I. Personal security. II. Personal liberty. III. Private property. (See Book I. Ch. I.) To which the injuries must be correspondent. 7. Injuries to personal security are, I. Against a man's life. II. Against his limbs. III. Against his body. IV. Against his health. V. Against his reputation.-The first must be referred to the next book

8. Injuries to the limbs and bodies are, I. Threats. II. Assault. III. Battery. IV. Wounding. V. Mayhem. Remedy: by action of trespass vi et armis, for damages. .

9. Injuries to health, by any unwholesome practices, are remedied by a special action of trespass on the case, for damages

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 11. The sole injury to personal liberty is false imprisonment. Remedies: I. By writ of, Ist, mainprize: 2dly, odio et atia: 3dly, hamine replegiando; 4thly, habeas corpus; to remove the wrong. II. By action of trespass; to recover damages. 12. For injuries to private property, see the next chapter.

119

119

120

122

123

128-138

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.

138

139

140-141

16. Injuries to a master are, I. Retaining his servants. Remedy: by

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 .

II.

145

145

151

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, poundbreach, or on the case; 2dly, in case of other unlawful takings, by action of trespass, or trover. 145-151 6. For the unlawful detaining of goods lawfully taken, the remedy is also, I. Actual restitution, by action of replevin, or detinue. Satisfaction in damages; by action on the case, for trover and conversion 7. For damage to personal property, while in the owner's possession, the remedy is in damages, by action of trespass vi et armis, in case the act be immediately injurious, or by action of trespass on the case, to redress consequential damage 8. Injuries to personal property, in action, arise by breach of contracts, 1. Express. II. Implied. 9. Breaches of express contracts are, I. By non-payment of debts. Remedy: Ist, specific payment; recoverable by action of debt; 2dly, damages for non-payment; recoverable by action on the case. II. By non-performance of covenants. Remedy: by action of covenant, Ist, 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. . 159-162 II. Breaches of contracts implied in the nature of government are by the non-payment of money which the

153

154

PAGE

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 12. Breaches of contracts implied in reason and construction of law are by the non-performance 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. II. 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 lie

CHAPTER X.

2. Ouster is the amotion of possession; and is, I. From freeholds. II. From chattels real

3. Ouster from freeholders is effected by, I. Abatement. II. Intrusion. III. Disseisin. IV. Discontinuance. V. Deforcement

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

9. 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 posses

167

167

PAGE

sion, 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 II. 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

179

180

13. An assise is a real action, which
proves the title of the demandant,
by showing his own, or his ances-
tor's, possession. And it may be
brought either to remedy abate-
ments; viz. the assise of mort d'an-
cestor, etc.; 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 the law. 169 . 190-197

167

167

169

171

172

174

ΙΟΟΙ

CHAPTER XI.

OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL 198 to 207 1. Ouster from chattels real is, I. From estates by statute and elegit. II. From an estate for years

198 2. Ouster from estates by statute or elegit is effected by a kind of disseisin. Remedy: restitution, and damages; by assise of novel disseisin 198 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 firma, or action of trespass in ejectment, lieth where lands, etc., 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

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 supIII. His posed) entry thereupon. 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.

PAGE

199

200-206

6. A writ of quare ejecit infra terminum is an action of a similar nature; only not brought against the wrongdoer or ejector himself, but such as are in possession under his title.. 207

CHAPTER XII.

208 to 215

OF TRESPASS 1. Trespass is an entry upon, and damage done to, another's lands, by one's self, or 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

CHAPTER XIII.

208-215

216 to 219

OF NUISANCE. 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 nuisance). II. Removal

216

thereof, and damages; by assise of nuisance. III. Like removal, and damages; by writ of quod permittat prosternere

CHAPTER XIV.

PAGE

219

223 to 229

OF WASTE 1. Waste is a spoil and destruction in lands and tenements, to the injury of him who hath, I. An immediate interest (as, by right of common) in the lands. II. The remainder or reversion of the inheritance

2. The remedies, for a commoner, are, restitution and damages; by assise of common: or, damages only; by action on the case

3. The remedy for him in remainder, or reversion, is, I. Preventive: by writ of estrepement at law, or injunction out of Chancery; to stay waste. II. Corrective: by action of waste; to recover the place wasted, and damages.

231-234

3: To remedy the oppression of the lord, the law has also given, I. The writ of ne injuste vexes: II. The writ of mesne.

234 4. For subtraction of services due by custom, the remedy is, I. By writ of secta ad molendinum, furnum, torrale, etc.; to compel the performance, and recover damages. II. By action on the case; for damages only 235 CHAPTER XVI.

OF DISTURBANCE. 236 to 252 1. Disturbance is the hindering or disquieting the owners of an incorporeal hereditament, in their regular and lawful enjoyment of it