Sivut kuvina


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


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


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.





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


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


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.


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


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


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







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In which are considered

1. The general nature of crimes, and punishment
II. The persons capable of committing crimes

: : : :
III. Their several degrees of guilt; as
s 1. Principals,

2. Accessories
IV. The several crimes (with their pnnishments) more peculiarly offending

(1 God and religion
2. The law of nations
3. The king and government; viz.

1. High treason
2. Felonies injurious to the prerogative
3. Præmunire

4. Misprisions and contempts
4. The commonwealth ; viz. offences against

1. Public justice
2. Public peace
3. Public trade
4. Public health,

5. Public economy
15. Individuals ; being crimes against

1. Their persons ; by
11. Homicide

2. Other corporal injuries
2. Their habitations

3. Their property V. The means of prevention ; by security for s 1. The peace,

2. The good behaviour
VI. The method of punishment; wherein of

S 1. The several courts of criminal jurisdiction
2. The proceedings there,

11. Summary
2. Regular; by

1. Arrest
2. Commitment and bail
3. Prosecution; by

1. Presentment,
2. Indictment.
3. Information,

4. Appeal
4. Process
5. Arraignment, and its incidents
6. Plea, and issue
7. Trial, and conviction
8. Clergy
9. Judgment, and attainder ; which indice

s. Forfeiture,

12. Corruption of blood 10. Avoider of judgment, by

| 1. Falsifying, or reversing, the attainder

2. Reprieve, or pardon ; 11. Execution


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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


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


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


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


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


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


42 to 65 legal crime, there must be both a vi- 1. Crimes and misdemeanors, cognizacious will, and a vicious act


ble by the laws of England, are such

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