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

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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

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 dar

rein 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

315

317

CHAPTER XXII.

OF THE SEVERAL SPECIES OF TRIAL

Page

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

4. Trial by inspection or examination is had by the court, principally when the matter in issue is the evident object of the senses

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 assize

330

330

331

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 3. Where the issue is immaterial, or insufficient, the court may award a repleader

Page

386

386-394

395

330

4. Judgment is the sentence of the law, pronounced by the court, upon the matter contained in the record

395

336

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 341

CHAPTER XXIII.

351 to 385

OF THE TRIAL BY JURY 1. Trial by jury is, I. Extraordinary; as, by the grand assize, 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, 2ndly, common jurors. IV. The challenges; 1st, to the array; 2ndly, 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 tales de circumstantibus. VI. The oath of the jury. VII. The evidence; which is either by proofs, 1st, written; 2ndly, parol— or, by the private knowledge of the jurors. VIII. The verdict: which may be, 1st, privy; 2ndly, public; 3rdly, special

CHAPTER XXIV.

OF JUDGMENT, AND ITS INCIDENTS

351

351-385

386 to 399

1. Whatever is transacted at the trial,

OF PROCEEDINGS IN THE NATURE OF APPEALS 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

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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. 3rdly, 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 412-425

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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 incumbered lands, &c. IV. The true construction of securities for money, by considering them mereiy as a pledge. V. The execution of trusts, or second uses, in a manner analogous to the law of legal es436-440

tates

5. The proceedings in the court of Chancery (to which those in the Exchequer, &c. very nearly conform) are, I. Bill. II. Writ of subpoena; and perhaps, injunction. III. Process, of contempt; viz. (ordinarily) attachment, attachinent with proclamations, commission of rebellion, serjeant at arms, and sequestration. IV. Appearance. V. Demurrer. VI. Plea. VII. An-" swer. VI. Exceptrons; 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 Parlia

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 misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it 3. 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

7. The measure of human punishments must be determined by the wisdom of the sovereign power, and not by any uniform universal rule: though that wisdom may be regulated, and assisted, by certain general, equitable, principles

CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES

1

4

5

2. The will 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 3. 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. VI. Compulsion, or necessity; which is, 1st, that of civil subjection; 2ndly, that of duress per minas; 3rdly, that of choosing the least pernicious of two evils, where one is unavoidable; 4thly, that of want or hunger; which is no legitimate ex

cuse

4. The king, from his excellence and dignity, is also incapable of doing wrong

CHAPTER III.

Page

21

22-32

33

34 to 37

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

7

11

12

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

20

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 misdemeanors, 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

LIGION.

CHAPTER IV.

OF OFFENCES AGAINST GOD AND RE42 to 65 1. Crimes and misdemeanors, cognizable by the laws of England, are such