Page Page which is to remove the hands (or pos- 2. This includes, I. Summons. JI. The session) of the king 255-257 writ of attachment, or pone ; which is 4. Where the crown is the sufferer, the sometimes the first or original process. king's remedies are, I. By such com- III. The writ of distringas, or distress mon law actions as are consistent with infinite. IV. The writs of capias ad the royal dignity. II. By inquest of respondendum, and testatum capias : or, office, to recover possession : which, instead of these, in the King's Bench, when found, gives the king his right the bill of Middlesex, and writ of latiby solemn matter of record; but may tat ;-and, in the Exchequer, the writ afterwards be traversed by the subject. of quo minus. V. The alias and pluIII. By writ of scire facias, to repeal ries writs. VI. The exigent, or writ the king's patent or grant. IV. By of exigi facias, proclamations, and outinformation of intrusion, to give dama- lawry. VIII. Appearance, and comges for any trespass on the lands of mon bail. VIII. The arrest, IX. the crown; or of debt, to recover mo- Special bail, first to the sheriff, and nies due upon contract, or forfeited by then to the action 279-292 the breach of any penal statute; or sometimes (in the latter case) by in CHAPTER XX. formation in rem : all filed in the Exchequer ex officio by the king's attor OF PLEADINGS 293 to 313 ney-general. V. By writ of quo war 1. Pleadings are the mutual altercations Tanto, or information in the nature of such writ; to seize into the king's of the plaintiff and defendant, in writ ing; under which are comprised, I. hands any franchise usurped by the The declaration or count (wherein, insubject, or to oust an usurper from any public office. VI. By writ of manda cidentally, of the visne, nonsuit, remus, unless cause ; to admit or restore traxit, and discontinuance). II. The defence, claim of cognizance, impar. any person entitled to a franchise or office : to which, if a false cause be lance, view, oyer, aid-prayer, voucher, returned, the remedy is by traverse, or age. III. The plea; which is either or by action on the case for damages ; a dilatory plea (1st, to the jurisdicand, in consequence, a peremptory tion ; 2ndly, in disability of the plainmandamus, or writ of restitution tiff; 3rdly, in abatement: or it is a 257-265 plea to the action; sometimes conCHAPTER XVIII. fessing the action, either in whole, or in part (wherein of a tender, paying OF THE PORSUIT OF REMEDIES BY AC money into court, and set-off); but usually denying the complaint, by TION, AND, FIRST, OF THE ORIGINAL 270 to 272 pleading either, Ist, the general is1. The pursuit of the several remedies sue; or, 2ndly, a special bar (wherein furnished by the laws of England, is, of justifications, the statutes of limitaI. By action in the courts of common tion, &c.) IV. Replication, rejoinlaw.' II. By proceedings in the courts der, surrejoinder, rebutter, surrebutof equity ter, &c. Therein of estoppels, co 270 2. Of an action in the court of Common lour, duplicity, departure, new assignPleas (originally the proper court for ment, protestation, averment, and other incidents of pleading 293–313 prosecuting, civil suits) the orderly parts are, I. The original writ. IÍ. III. The pleadings. CHAPTER XXI. IV. The issue, or demurrer. V. The trial. VI. The judgment. VII. The OF ISSUE AND DEMURRER 314 to 317 proceedings in nature of appeal. VIII. 1. Issue is where the parties, in a course The execution 272 of pleading, come to a point affirmed 3. The original writ is the beginning or on one side and denied on the other : fonndation of a suit, and is either op which, if it be a matter of law, is calltional (called a precipe) commanding ed a demurrer; if it be a matter of the defendant to do something in cer- fact, still retains the name of an issue tain, or otherwise shew cause to the of fact 314 contrary; or peremptory (called a si 2. Continuance is the detaining of the fecerit te securum) commanding, upon parties in court from time to time, by security given by the plaintiff, the de giving them a day certain to appear fendant to appear in court, to shew upon. And, if any new matter arises wherefore he hath injured the plaintiff : since the last continuance or adjournboth issuing out of Chancery under ment, the defendant may take advan. the king's great seal, and returnable tnge of it, even after demurrer or isin bank during term-time 272 sue, by alleging it in a plea puis darCHAPTER XIX. rein continuance 315 3. The determination of an issue in law, OF PROCESS 279 to 292 or demurrer, is by the opinion of the 1. Process is the means of compelling judges of the court; which is afterthe defendant to appear in court 279 wards entered on record 317 VOL. II. 2 Page Page in the court of nisi prius, is added to the record under the name of a pos. OF THE SEVERAL SPECIES OF TRIAL tea : consequent upon which is the 330 to 341 judgment 386 1. Trial is the examination of the mat- 2. Judgment may be arrested or stayed ter of fact put in issue 330 for causes, I. Extrinsic, or dehors the 2. The species of trials are, I. By the record: as in the case of new trials. record.' II. By inspection. III. By II. Intrinsic, or within it: as where certificate. IV. By witnesses. V. the declaration varies from the writ, By wager of baltel. VI. By wager or the verdict from the pleadings and of law. VII. By jury 330 issue ; or where the case laid in the 3. Trial by the record is had, when the declaration is not sufficient to support existence of such record is the point the action in point of law 386-394 in issue 330 3. Where the issue is immaterial, or in4. Trial by inspection or examination is sufficient, the court may award a rehad by the court, principally when the pleader 395 matter in issue is the evident object 4. Judgment is the sentence of the law, of the senses 331 pronounced by the court, upon the mat5. Trial by certificate is had in those ter contained in the record 395 cases, where such certificate must 5. Judgments are, 1. Interlocutory; which have been conclusive to a jury 333 are incomplete till perfected by a writ 6. Trial by witnesses (the regular me of enquiry. II. Final 396 thod in the civil law) is only used on 6. Costs, or expenses of suit, are now a writ of dower, when the death of the the necessary consequence of obtainhusband is in issue 336 ing judgment 399 7. Trial by wager of battel, in civil cases, is only had on a writ of right : CHAPTER XXV. but, in lieu thereof, the tenant may have, at his option, the trial by the OF PROCEEDINGS IN THE NATURE OF grand assize 336 APPEALS 402 to 411 8. Trial by wager of law is only had, 1. Proceedings in the nature of appeals where the matter in issue may be sup- from judgment, are, I. A writ of atposed to have been privily transacted, taint; to impeach the verdict of a ju. between the parties themselves, with ry: which of late has been superseded out the intervention of other witnesses 341 by new trials. II. A writ of audita querela ; to discharge a judgment by CHAPTER XXIII. matter ihat bas since happened. III. A writ of error, from one court of reOF THE TRIAL BY JURY 351 to 385 cord to another; to correct judgments, 1. Trial by jury is, I. Extraordinary ; erroneous in point of law, and not as, by the grand assize, in writs of helped by the statutes of amendment right; and by the grand jury, in writs and jeofails 402-406 of attaint. II. Ordinary 351 2. Writs of error lie, I. To the court of 2. The method and process of the ordi King's Bench, from all inferior courts nary trial by jury is, I. The writ of ve of record; from the court of Common nire facias to the sheriff, coroners, or Pleas at Westminster; and from the elisors ; with the subsequent compul court of King's Bench in Ireland. II. sive process of habeas corpora, or dis. To the courts of Exchequer Chamber, tringas. II. The carrying down of from the law side of the court of Exthe record to the court of nisi prius. chequer ; and from proceedings in the III. The sheriff's return; or panel of, court of King's Bench by bill. III. Ist, special, 2ndly, common jurors. To the house of Peers, from proceedIV. The challenges ; 1st, to the ar ings in the court of King's Bench by ray ; 2ndly, to the polls of the jurors ; original, and on writs of error; and either, propter honoris respectum, prop from the several courts of Exchequer ter drfectum, propter affectum (which Chamber 406-411 is sometimes a principal challenge, sometimes to the favour), or, propter CHAPTER XXVI. delictum. V. The tales de circumstantibus. VI. The oath of the jury. VII. OF EXECUTION 412 to 425 The evidence; which is either by 1. Execution is the pitting in force of proofs, Ist, written ; 2ndly, parol - or, the sentence or judgment of the law: by the private knowledge of the jurors. which is effected, I. Where posses. VIII. The verdict: which may be, sion of any hereditament is recovered ; 1st, privy ; 2ndly, public ; 3rdly, spe by writ of habere facias seisinam, poscial 351-385 sessionem, fc. II. Where any thing is awarded to be done or rendered, by CHAPTER XXIV. a special writ for that purpose : as, by OF JUDGMENT, AND ITS INCIDENTS writ of abatement in case of nuisance; 386 to 399 Tetorno habendo, and capias in wither. 1. Whatever is transacted at the trial, nam in replevin; distringas and scire Pago facias in detinue. III. Where money on the oath of the party ; which gives only is recovered; by writ of, 1st, ca- a jurisdiction in matters of account, pias ad satisfaciendum, against the body and fraud. IL. The mode of trial; by of the defendant; or, in default there Page depositions taken in any part of the of, scire facias against his bail. 2dly, world. III. The mode of relief ; by fieri facias, against his goods and chat giving a more specific and extensive tels. 3rdly, levari facias, against his remedy than can be had in the courts goods, and the profits of his lands. of law : as, by carrying agreements 4thly, elegit, against his goods, and into execution, staying waste or other the possession of his lands. 5thly, er: injuries by injunction, directing the tendi facias, and other process, on sta sale of incumbered lands, &c. IV. tutes, recognizances, &c., against his The true construction of securities body, lands, and goods 412-425 for money, by considering them mere iy as a pledge. V. The execution of CHAPTER XXVII. trusts, or second uses, in a manner analogous to the law of legales. OF PROCEEDINGS IN THE Courts of tates 436-440 EQUITY 426 to 455 · 5. The proceedings in the court of Chan1. Matters of equity, which belong to the cery (to which those in the Exche peculiar jurisdiction of the court of quer, &c. very nearly conform) are, I. Chancery, are, I. The guardianship of Ball. II. Writ of subpæna ; and perinfants. II. The custody of idiots and haps, injunction. III. Process, of con. lunatics. III. The superintendence tempt ; viz. (ordinarily) attachment, of charities. IV. Commissions of attachinent with proclamations, combankrupt 426-428 mission of rebellion, serjeant at arms, 2. The court of Exchequer, and the du- and sequestration. IV. Appearance. chy court of Lancaster, have also some V. Demurrer. VI. Plea. VII. Arpeculiar causes, in which the interest swer. VHI. Exceptions ; amendof the king is more immediately con- ments ; cross, or supplemental, bills; cerned 428-9 bills of revivor, interpleader, &c. IX. 3. Equity is the true sense and sound Replication. X. Issue. XI. Deposi interpretation of the rules of law; and, tions, taken upon interrogatories; and as such, is equally attended to by the subsequent publication thereof. XII. judges of the courts both of common Hearing. XIII. Interlocutory decree; law and equity 430-436 feigned issue, and trial; reference to 4. The essential differences, whereby the master, and report ; &c. XIV. the English courts of equity are dis- Final decree. XV. Rehearing, or bill tinguished from the courts of law, are, of review. XVI. Appeal to ParliaI. The mode of proof, by a discovery ment 442-455 CONTENTS OF THE ANALYSIS OF BOOK IV. PUBLIC WRONGS. XI XII . XIII XIV XV XVI XVII In which are considered 1. The general nature of crimes, and punishment : : : : 2. Accessories (1 God and religion 1. High treason 4. Misprisions and contempts 1. Public justice 5. Public economy 1. Their persons ; by 2. Other corporal injuries 3. Their property V. The means of prevention ; by security for s 1. The peace, 2. The good behaviour S 1. The several courts of criminal jurisdiction 11. Summary 1. Arrest 1. Presentment, 4. Appeal s. Forfeiture, 12. Corruption of blood 10. Avoider of judgment, by | 1. Falsifying, or reversing, the attainder 2. Reprieve, or pardon ; 11. Execution XVIII . ANALYSIS. BOOK IV* -OF PUBLIC WRONGS. Page cuse Page CHAPTER I. 2. The will does not concur with the act, I. Where there is a defect of unOF THE NATURE OF CRIMES, AND THEIR derstanding. II. Where no will is exPUNISHMENT I to 12 erted, III. Where the act is con1. In treating of public wrongs may be strained by force and violence 21 considered, I. The general nature of 3. A vicious will may therefore be wantcrimes and punishments. II. The ing, in the cases of, I. Infancy. II. persons capable of committing crimes. Idiocy, or lunacy. III. Drunkenness; III. Their several degrees of guilt. which doth not, however, excuse. IV. The several species of crimes, IV. Misfortune. V. Ignorance, or and their respective punishments._V. mistake of fact. VI. Compulsion, or The means of prevention. VI. The necessity; which is, Ist, that of civil method of punishment 1 subjection ; 2ndly, that of duress per 2. A crime, or misdemeanor, is an act minas ; 3rdly, that of choosing the least committed, or omitted, in violation of pernicious of two evils, where one is a public law, either forbidding or com unavoidable ; 4thly, that of want or manding it hunger; which is no legitimate ex3. Crimes are distinguished from civil 22-32 injuries, in that they are a breach and 4. The king, from his excellence and violation of the public rights, due to dignity, is also incapable of doing the whole community, considered as a wrong 33 community 5 4. Punishments may be considered with CHAPTER III. regard to, I. The power, II. The end, III. The measure, ---of their infliction. 7 OF PRINCIPALS AND ACCESSORIES 34 to 37 5. The power, or right, of inflicting hu- 1. The different degrees of guilt in cri. man punishments, for natural crimes, minals are, I. As principals. II. As or such as are mala in se, was hy the accessories 31 law of nature vested in every indivi- 2. A principal in a crime is, I. He who dual; but, by the fundamental contract commits the fact. II. He who is preof society, is now transferred to the sent at, aiding, and abetting, the comsovereign power: in which also is mission 34 vested, by the same contract, the right 3. An accessory is he who doth not comof punishing positive offences, or such mit the fact, nor is present at the comas are mala prohibita 7 mission ; but is in some sort concern6. The end of human punishments is to ed therein, either before or after 35 prevent future offences; I. By amend. 4. Accessories can only be in petit ing the offender himself. II. By de treason, and felony: in high treason, terring others through his example. and inisdemeanors, all are principals 35 III. By depriving him of the power to 5. An accessory before the fact, is one do future mischief 11 who, being ahsent when the crime is 7. The measure of human punishments committed, hath procured, counselled, must be determined by the wisdom of or commanded another to commit it 36 the sovereign power, and not by any 6. An accessory after the fact, is where uniform universal rule: though that a person, knowing a felony to have wisdom may be regulated, and assist- been committed, receives, relieves, ed, by certain general, equitable, prin comforts, or assists the felon. Such ciples 12 accessory is usually entitled to the be. Defit of clergy; where the principal, CHAPTER II. and accessory before the fact, are ex. cluded from it 37 OF THE PERSONS CAPABLE OF COMMITTING CRIMES 20 to 33 CHAPTER IV. 1. All persons are capable of commit ting crimes, unless there be in them a OF OFFENCES AGAINST GOD AND REdefect of will; for, to constitute a LIGION. 42 to 65 legal crime, there must be both a vi- 1. Crimes and misdemeanors, cognizacious will, and a vicious act 20 ble by the laws of England, are such |
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