4. Disturbance of common is, Intercommoning without right. Remedy: damages; by an action on the case, or of trespass: besides distress damage feasant; to compel satisfaction. II. Surcharging the common. Remedies: distress damage feasant; to compel satisfaction: action on the case; for damages: or, writ of admeasurement of pasture; to apportion the common;-and writ de secunda superoneratione; for the supernumerary cattle, and damages. III. Enclosure, or obstruction. Reme dies: restitution of the common, and damages; by assise of novel disseisin, and by writ of quod permittat: or, damages only; by action case on the PAGE 237-240 6. Disturbance of tenure, by driving 8. Disturbers may be, I. The pseudo- CHAPTER XVII. 242 244 245-252 PAGE 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, 1. By such common-law actions 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 king's hands any franchise usurped by the subject, or to oust a usurper from any public office. VI. By writ of mandamus, unless cause; to admit or restore any person entitled to a franchise or office: to which, if a false cause be returned, the remedy is by traverse, or by action on the case for damages; and, in consequence, a peremptory mandamus, ́or writ of restitution 257-265 CHAPTER XVIII. OF THE PURSUIT OF REMEDIES BY " 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 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 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 peremp tory, (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 270 272 279 to 292 279 OF PROCESS I. Process is the means of compelling the defendant to appear in court.. 2. This includes, I. Summons. II. The writ of attachment, or pone; which is sometimes the first or orignal process. III. The writ of distringas, or distress infinite. IV. The writs of capias ad respondendum, and testatum capais; 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 CHAPTER XX. 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, non suit, retraxit, and discontinance). II. The defence, claim of cognizance, imparlance, view, oyer, aid-prayer, 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, Ist, the general issue; or, 2dly, a special bar, (wherein of justifications, the statutes of limitation, etc.) IV. Replication, rejoinder, surrejoinder, rebutter, surrebutter, etc. Therein of estoppels, color, duplicity, departure, new assignment, protestation, averment, and other incidents of pleading 293-313 OF THE SEVERAL SPECIES OF TRIAL. 330 to 341 1. Trial is the examination of the matter of fact put in issue 2. The species of trials are, I. By the record. II. By inspection. III. By certificate. IV. By witnesses. V. By wager of battel. VI. By wager of law. VII. By jury 3. Trial by the record is had, when the existence of such record is the point in issue 1. Trial by inspection or examination is had by the court, principally when the matter in issue is the evident object of the senses. 330 330 330 331 5. Trial by certificate is had in those cases where such certificate must have been conclusive to a jury.. 333 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 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. CHAPTER XXIII. . 336 337 341 OF THE TRIAL BY JURY. 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 351 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, Ist, 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 favor,) or, propter delictum. V. The tales de circumstantibus. VI. The oath of the jury. VII. The evidence; which is either by proofs, Ist, written; 2dly, parol, or, by the private knowledge of the jurors. VIII. The verdict: which may be, Ist, privy; 2dly, public; 3dly, special CHAPTER XXIV. PAGE 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 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, 386 402 to 411 OF PROCEEDINGS IN THE NATURE OF APPEALS 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 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 amendments 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 OF EXECUTION 412 to 425 I. Execution is the putting in force of the sentence of judgment of the law: which is effected, 1. Where possession of any hereditament is recovered; by writ of habere facias seisinam, possessionem, etc. 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, Ist,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, etc., against his body, lands, and goods . 412-425 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 430-436 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; PAGE 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, etc. 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 estates . 436-440 5. The proceedings in the court of Chancery (to which those in the Exchequer, etc. very nearly conform) are, I. Bill. II. Writ of subpœna; and perhaps injunction. III. Process of contempt; viz., (ordinarily) attachment, attachment with proclamations, commission of rebellion, sergeant-at-arms, and sequestration. IV. Appearance. V. Demurrer. VI. Plea. VII. Answer. VIII. Exceptions; amendments; cross, or supplemental, bills, bills of revivor, interpleader, etc. 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; etc. XIV. Final decree. XV. Rehearing, or bill of review. XVI. Appeal to parlia ment PAGE 442-455 CONTENTS OF THE ANALYSIS OF BOOK IV. |