22. What if these dilatory pleas be allowed; and what if they be overruled? 303.

23. In what two ways is a plea to the action made? 303.

24. In what instance is confession of the whole complaint made in a plea to the action?

303.

25. What is the effect of a plea of tender by the debtor and refusal by the creditor? 303.

26. In what two instances is one part of the complaint confessed and the rest traversed or denied? 304.

27. What is the effect of paying money into court; and upon what may it be done? 304.

28. What is a motion? 304.

29. Of what two kinds are pleas that totally deny the cause of complaint? 305.

30. What is the general issue or general plea? 305.

31. What is an issue in law? 305. 32. May special matter be given in evidence upon a plea of general issue? 305, 306.

33. What are special pleas in bar of the plaintiff's demand? 306.

34. What are the times limited by the several statutes of limitation beyond which no plaintiff can lay his cause of action? 306,

307.

35. What is an estoppel? 308.

36. What are the five conditions and qualities of a plea? 308.

37. What if the defendant in an assise or action of trespass be desirous to refer the validity of his title to the court rather than the jury? 309.

38. When and what may the plaintiff reply to the defendant's plea; what is a traverse of it; what a new or novel assignment; and what a confession and avoidance? 309-311. 39. What are the remaining processes of pleading? 310.

40. What is called a departure in pleading? 310.

41. What is called duplicity in pleading; and what a protestation; and how hath Sir Edward Coke defined the latter? 311, 312.

statutes 27 Eliz. c. 5, and 4 & 5 Anne, c. 16?

314, 315.

4. Upon either a general or a special demurrer, what must the opposite party do in order to put the parties at issue in point of law; and who must determine that issue?

315.

5. What is an issue of fact; when is it joined; and what is the principal method by which it must be determined? 315.

6. What is continuance; what if the omis sion be on the part of the plaintiff; and what if it be on the part of the defendant? 316.

7. What is a plea puis darrein continuance; what is its effect; and when is it not allowed to be put in? 316, 317.

8. What are paper-books; and what is the record? 317.

CHAP. XXII.-Of the several Species of Trial.

I. WHAT is trial; and what are the seven species of trial in civil cases? 330.

2. In what particular instance is trial by record used; what is it; and what may it try? 330, 331.

3. What is trial by inspection or examination; and when shall it be had? 331-333.

4. What is trial by certificate; and in what six cases shall it be had recourse to? 333-336. 5. What is trial by witnesses, per testes; and when only is it allowed in our law? 336.

6. What is trial by wager of battle, vadiatio duelli; in what cases was it used; what is the form of it; and by what has it been superseded? 337-341.

7. What is trial by wager of law, vadiatio legis; what is the manner of waging law; in what actions only is the defendant admitted to wage his law; who shall not be permitted to wage law; and how has this species of trial become obsolete? 341–348.

CHAP. XXIII.—Of Trial by Jury.

1. OF what antiquity is trial by jury, called also trial per pais or by the country; and what does magna carta declare concern

CHAP. XXI.-Of Issue and Demurrer.

1. WHAT is issue, exitus; and upon what two matters? 314.

2. What is an issue upon matter of law called? 314.

3. What is a demurrer; and, in case of exceptions to the form or manner of pleading, what must the party demurring do, by

2. Of what two kinds are trials by jury in civil causes? 351.

3. What is the first species of extraordinary trial by jury? 351.

4. What is another species of extraordinary jury? 351.

5. What are the eight processes of the ordinary trial by jury? 352, 356-358, 364, 365, 367, 375.

6. What is the writ of venire facias; and when and where,must the sheriff return it by virtue of the statute 42 Edw. III. c. 11? 352, 353.

7. What are called issuable terms, and why; and what is the sheriff's panel? 353.

8. What, in the common pleas, is called a writ of habeas corpora juratorum, and, in the king's bench, a distringas; and what is the entry on the roll, or record? 354.

9. What if the sheriff be not an indifferent person; and who are called elisors, or electors? 354, 355.

10. What if, on the general day of trials, the plaintiff do not enter the record? 356.

II. What is called the trial by proviso; but why hath this practice begun to be disused since the statute 14 Geo. II. c. 17? 356,

357.

statute 35 Hen. VIII. c. 16, when may the judge award a tales de circumstantibus; and what is it? 364, 365.

31. To what are the jurors sworn? 365. 32. What is the course of proceeding upon the trial? 366, 367.

33. What is the definition of evidence?

367.

34. Of what two kinds is evidence in the trial by jury? 367.

35. Of what two sorts are proofs? 367. 36. What two written proofs or evidence

13. How may the trial be deferred, however, by either party? 357.

14. To whom does the sheriff return his writ of habeas corpora, or distringas, with what annexed? 357.

15. Of what two sorts are jurors? 357. 16. What is the sheriff's duty upon motion in court and a rule granted thereupon for a special jury; and how and by whom is it struck? 357, 358.

17. By the statute 3 Geo. II. c. 25, who is entitled to have a special jury struck upon what trial; and, by statute 24 Geo. II. c. 18, when shall the expense of a special jury not fall upon the party requiring it? 358.

18. What is a common jury; and what are the directions of the statute 3 Geo. II. c. 25 concerning it? 358.

19. What is a view; and how and by whom shall it be appointed? 358.

20. Of what two sorts are challenges of jurors? 358.

21. What are challenges to the array; and upon what accounts may they be made? 359, 360.

22. Where one party to the suit is an alien, of whom shall the jury consist; but what if both parties be aliens? 360.

23. What are challenges to the polls, in capita; and to what four heads are they reduced by Sir Edward Coke? 361.

24. Can judges and justices be challenged?

361.

25. What is a writ de ventre inspiciendo? 362.

26. What, by a variety of statutes, is a disqualification for juror in point of estate; but what when the jury is de medietate lingua? 362, 363.

27. Of what two sorts is a challenge propter affectum, for suspicion of bias or partiality; what if the causes of challenge of the first sort be true; and to whom is it given to try the validity of challenges of the second sort? 363.

28. With regard to what causes of challenge may a juror himself be examined on oath of voir dire, veritatem dicere? 364.

29. Who are excused from serving on juries? 364.

30. Who may pray a tales, and what is it; and for this purpose when must a writ of decem tales, octo tales, and the like, still be issued to the sheriff; but, by virtue of the

two; and how must they be verified? 367, 368.

37. What is one general rule of evidence that runs through all the doctrine of trials; and upon what principle is hearsay evidence in general not admitted? 368.

38. To what transactions does the statute 7 Jac. I. c. 12 confine the admission of books of account to be read in evidence if the servant who was accustomed to make the entries in it be dead and his handwriting proved? 368, 369.

39. What is the writ of subpæna ad testificandum; but when is no witness bound to appear or to give evidence? 369.

40. Who are competent witnesses? 369, 370.

41. How many witnesses are sufficient evi dence of any single fact? 370.

42. When is positive proof required; and when is circumstantial or presumptive evidence admitted? 371.

43. What weight have severally violent presumption, probable presumption, and light presumption? 371.

44. Need the witness tell all he knows of the matter in question, whether interrogated to every point or not? 372.

45. What if the judge, either in his directions or decisions, misstate the laws, by ignorance, inadvertence, or design? 372.

46. What is a demurrer to evidence; and by whom shall it be determined? 372.

47. But what practice has greatly super seded the recourse to either of these last proceedings? 373.

48. What are the advantages of testimony ore tenus? 373.

49. What is the modern doctrine as to such evidence as the jury may have in their own consciences by their private knowledge of facts? 374, 375.

50. What is the summing up of the evidence by the judge? 375.

51. How is the delivery of the jury's verdict, veredictum, accelerated; and what if the jurors eat or drink at all, or have any eatables about them, without consent of the court? 375.

52. What circumstances will set aside the verdict? 375, 376.

53. What if the plaintiff do not appear to the verdict? 376.

54. What is the form of a voluntary nonsuit; and why is it more eligible for the plaintiff than a verdict against him? 376, 377.

55. Of what two kinds is a verdict; and when is a verdict of the first kind of no force? 377.

56. What have the jury also to do if they find issue for the plaintiff? 377.

57. What is a special verdict; and by whom is it afterwards determined? 377.

58. What is another method of finding a species of special verdict; and what advantage has this over the other kind of special verdict? 378.

59. In both these cases, must the jury return a special verdict; and are they incompetent to decide the complicated question of fact and law? 378.

60. What are the four principal defects incident to a trial by jury? 382, 383. 61. What is a subpæna duces tecum? 382. CHAP. XXIV.-Of Judgment and its Incidents.

1. WHAT is a postea? 386.

2. What is judgment; and till when and till what can it not be entered? 386, 387. 3. What are causes of suspending the judgment, by granting a new trial? 387.

4. What if two juries agree in the same or a similar verdict? 387.

5. What is a new trial; upon what proceedings is it granted; and where is it not granted? 391, 392.

6. How has the court, in granting a new trial, an opportunity of supplying the defects in the trial by jury; and within what time must the motion for a new trial be made? 392.

7. From what causes do arrests of judgment arise? 393.

8. What is an invariable rule with regard to arrests of judgment upon matter of law; and will this rule hold e converso? 394.

9. What is a repleader quod partes replacitent; and when will the court award it? 395. 10. What is judgment; and of what four sorts? 395, 396.

II. Whose determination and sentence is the judgment; and what words constitute the style of the judgment? 396.

12. Of what two natures are all these four species of judgments? 396.

13. What is judgment of respondeat ouster? 396, 397.

14. What are the interlocutory judgments most usually spoken of; when only can they happen; when are they absolutely complete; and when, and for what purpose, must a jury be called in? 397, 398.

15. What is a warrant of attorney to confess a judgment; and what does the statute 4 & 5 W. and M. c. 20 require in order to its validity? 397, 398.

16. What is a writ of inquiry to assess damages? 398.

17. What are final judgments; and is the party against whom judgment is given liable to any fine to the king or imprisonment till that fine be paid? 398, 399.

18. Which party shall pay the costs of the suit? 399, 400.

19. Who are not liable to pay costs? 400. 20. What is enacted by statutes 43 Eliz. c. 6, 21 Jac. I. c. 16, and 22 & 23 Car. II. c. 9, 136, to prevent trifling and malicious actions, for words, for assault and battery, and for trespass, with what two exceptions, by statutes 4 & 5 W. and M. c. 23 and 8 & 9 W. III. c. II? 401.

21. What follows after judgment, unless what? 401.

CHAP. XXV.-Of Proceedings in the Nature of Appeals.

1. Of what four principal kinds are proceedings in the nature of appeals from the proceedings of the king's court of law? 402, 405, 406.

2. What is a writ of attaint; when, at common law, must it be brought; and on what issue only does it not lie? 402-404.

3. What jury are to try this false verdict; what are the qualifications of the jurors, by statute 15 Hen. VI. c. 5; and which party only is allowed to produce new matter, and why? 404.

4. What was the judgment by the common law if the grand jury found the verdict a false one? 404.

5. But what was enacted by several statutes as to the time when an attaint may be brought, and as to the punishment of the attainted jurors? 405.

6. But what has superseded the use of attaints? 405.

7. What is the writ of deceit? 405. 8. What is an audita querela; and for what two persons does it lie? 405, 406.

9. But what has rendered this writ almost useless? 406.

10. But what is the principal method of redress for erroneous judgments in the king's courts of record? 406.

II. What is the writ to amend errors in a base court not of record? 407.

12. Upon what matter only does a writ of error lie? 407.

13. Till when may the record be amended; and what is the effect of the statutes of amendment and jeofails? 407, 408.

14. What is required of him that brings the writ, if it be brought to reverse any judg ment of an inferior court of record, where the damages are less than ten pounds, or if it be brought to reverse the judgment of any superior court after verdict? 410*.

15. From what courts lies the writ of error into the king's bench? 410*.

16. Whence lies the writ of error into the court of exchequer - chamber; and before whom? 410*.

17. Whence lies the writ of error in the house of peers; and thence whence? 410*, 411*.

CHAP. XXVI.-Of Execution.

I. WHAT is execution; and how is it performed? 412.

2. What are writs of habere facias seisinam and habere facias possessionem; to whom are they directed; what is justifiable in their execution; and what is sufficient execution?

412.

3. What is a writ de clerico admittendo; and to whom is it directed? 412.

4. When does a special writ of execution issue to the sheriff? 413.

5. What writ shall the plaintiff have where one part of the judgment is quod nocumentum amoveatur; what is the writ of execution upon a replevin; what shall the defendant have if the distress be eloigned; and what shall the plaintiff have after judgment in detinue? 413.

6. Of what five sorts are executions in actions where money only is recovered as a debt or damages, and not any specific chattel? 414.

7. What is the writ of capias ad satisfaciendum; and against whom does it not lie?

414, 415.

8. To whom shall the capias issue if an action be brought against a husband and wife for the debt of the wife when sole; and to whom if the action were brought against her before her marriage? 414.

9. What if judgment be recovered against a husband and wife for the contract or personal misbehavior of the wife during her coverture? 414.

10. What exemption has the man who is taken in execution upon this writ; and what does the statute 21 Jac. I. c. 24 enact if the defendant die while charged in execution upon this writ? 414.

11. What executory process may be sued out for costs? 415.

12. What if, after a defendant is once in custody upon this process, he be seen at large? 415.

13. Of what two natures are escapes; and when shall the sheriff answer for the debt?

415.

14. Will a rescue of a prisoner in execution excuse the sheriff? 415.

15. But what does the statute 32 Geo. II. c. 28 enact in favor of defendants charged in execution? 415, 416.

16. Yet what powers have creditors over their debtors on the other hand? 416.

17. In what case may the plaintiff set out a writ of scire facias against the bail; and what is its effect? 416, 417.

18. What is a writ of fieri facias; against whom does it lie; what doors may be broken open in its execution; who must be first paid to what amount; and what further remedy has the plaintiff if part only of the debt be levied on a fieri facias? 417.

19. What is a writ of levari facias; and by what is its use superseded? 417.

20. What is a writ in the nature of a levari or fieri facias, to levy the debt and damage de bonis ecclesiasticis; to whom is it directed; and by what is it followed? 418.

23. What, by statute 33 Hen. VIII. c. 39, of all obligations made to the king; and what lands of a debtor does the king's judg ment, or that of any of his officers mentioned in the statute 13 Eliz. c. 4, affect more than the subjects? 420.

24. By the statute of frauds, 29 Car. II. c. 3, from what day shall the judgment bind the land in the hands of a bona fide purchaser; and from what day shall the writ of execution bind the goods in the hands of a stranger or purchaser? 421.

25. When the plaintiff's demand is satisfied, what ought to be entered on the record? 421.

26. But within what time must all these writs be sued out? 421.

27. Yet, if this had not been the case, what will the court grant, in pursuance of statute Westminster 2, 13 Edw. I. c. 45; or what other remedy has the plaintiff? 421, 422.

CHAP. XXVII.-Of Proceedings in the Courts of Equity.

1. WHAT four matters of equity are peculiar to the jurisdiction of the court of chancery? 426-428.

2. When has the court of chancery a right to appoint a guardian; and whither lies the appeal in all proceedings relative thereto ?

427.

3. How only can the proceedings to inquire whether or no the party be an idiot or lunatic be redressed if erroneous? 427.

4. On the other hand, doth not the jurisdiction of the court of chancery fail to extend to some causes wherein relief may be had in the court of exchequer and the duchy court of Lancaster? 428, 429.

5. What is equity in its true and genuine meaning; and does equity differ from law? 429-436.

6. What are the five essential differences whereby the courts of equity are distinguished from the courts of law? 436.

7. What does a court of equity, in the way of proof, when facts or their leading circumstances rest only in the knowledge of the party; and, for want of this discovery at law, in what matters have the courts of equity acquired a concurrent jurisdiction with every other court? 437, 438.

8. What authority and jurisdiction have courts of equity in interrogatories administered to witnesses; and in what cases, on this account, do they exercise the same jurisdiction which might have been exercised at law? 438.

9. In what cases does the want of a more specific remedy than can be obtained in the courts of law give a concurrent jurisdiction to a court of equity? 438, 439.

21. What is the writ of elegit; what lands are not liable to be taken in execution upon

IO. What are the fifteen proceedings in the courts of equity? 442-445.

II. What is a bill; what does it always pray; and when does it pray also an injunction? 442.

12. What if the bill do not call all necessary parties, however remotely interested, before the court; by whom must it be signed; and what if it contain matter either scandalous or impertinent? 442, 443.

13. Where must the bill be filed; and when will the court grant an injunction immediately? 443.

14. What is the process of subpœna; and what if the defendant do not appear within the time limited by the rules of the court, and plead, demur, or answer to the bill?

443.

15. What are the respective processes of contempt, in their successive order; what if the defendant abscond; and what if he be taken? 444, 445.

16. What is the process against a corporate body; and what against a peer; and what against a member of the house of commons? 445.

17. What does the statute 5 Geo. II. c. 25 enact where the defendant cannot be found to be served with process of subpœna? 445. 18. What is a demurrer of equity? 446. 19. Of what three kinds are pleas; and may a defendant plead, demur, and answer too? 446.

20. Why are exceptions to formal minutiæ in the pleadings in equity not allowed? 446. 21. What is an answer; when is it given upon oath, and when not; and when upon honor? 446.

22. Before whom must the defendant be sworn to his answer; by whom must the answer be signed; and when may it be excepted to for insufficiency? 447, 448.

23. If the defendant have any relief to pray against the plaintiff, how must it be done? 448.

24. When may the plaintiff amend his bill; and when must he have recourse to a supplemental bill? 448.

25. What is a bill of revivor; and what a bill of interpleader; and what must be annexed to this last bill? 448.

26. What if the plaintiff choose to proceed

to the hearing of the cause upon bill and answer only? 448.

27. What is a replication; and how does the defendant join issue? 448, 449.

28. How and by whom are witnesses examined; of what nature must the interrogatories be; to what are examiners and their clerks sworn; and how are they compellable to appear and submit to examination? 449. 29. What is a bill to perpetuate the testi mony of witnesses? 450.

30. When may a rule to pass publication of witnesses be had? 450.

31. By whom and before whom may the cause be set down for a hearing? 450.

32. What if the plaintiff do not attend upon subpoena to hear judgment; and what if the defendant? 451.

33. When may a plaintiff's bill be dismissed for want of prosecution? 451.

34. What is the method of hearing causes in court? 451.

35. Of what two natures in the chancellor's decree? 452.

36. When does the court of chancery direct a feigned issue to be tried at the bar of the court of king's bench, or at the assises; and what is the fiction? 452.

37. What does the court refer to the opinion of the courts of king's bench or common pleas, upon a case stated; and what is done there in consequence? 452, 453.

38 What are referred by the decree, on the first hearing, to a master in chancery; and what is done by him in consequence? 453. 39. To what is the master's report liable? 453.

40. When and upon what is a final decree made; and how is its performance enforced? 453.

41. Who may petition for a re-hearing; by whom must such petition be signed; what evidence is now admitted; and what may be supplied? 453. 454.

42. But, after the decree is once signed and enrolled, how only can it be rectified? 454. 43. When may a bill of review be had? 454.

44. How is an appeal to the house of lords effected; and what evidence only is admitted there? 454, 455.

their Punishment.

1. WHAT are the six considerations in treating of public wrongs, or crimes and misdemeanors? 1, 2.

2. Why is the code of criminal law with us in England denominated the doctrine of the pleas of the crown? 2.

3. From what circumstances have the defects and disproportions in our criminal code arisen? 3, 4.

4. What is a crime or misdemeanor; and

one from the other? 5.

5. In what does the distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, principally consist? 5.

6. Which includes the other? 6.

7. In what crimes why cannot satisfaction be made both to the individual and the community? and in what how may it? 6, 7.

8. What double view, then, has the law in taking cognizance of all wrongs or unlawful acts? 7.