BOOK III-OF PRIVATE WRONGS. CHAPTER I. Page 2 OF THE REDRESS OF PRIVATE WRONGS, 3. The redress of civil injuries is one 4. This redress effected, I. By the mere act of the parties. II. By the mere operation of law. III. By both together, or suit in courts 5. Redress by the mere act of the parties, is that which arises, I. From the sole act of the party injured. II. From the joint act of all the parties 2 3 3 3 3. The general and public courts of common law and equity are, I. The court of piepoudre. II. The court-baron. III. The hundred court. IV. The county court. V. The court of Common Pleas. VI. The court of King's Bench. VII. The court of Exchequer. VIII. The court of Chancery. (Which two last are courts of equity as well as law). IX. The courts of Exchequer-Chamber. X. The house of Peers. To which may be added, as auxiliaries, XI. The courts of Assise and Nisi Prius 6. Of the first sort are, I. Defence of 15, 16 30 30 32-60 Page cluding the courts of attachments, regard, sweinmote, and justice-seat. II. The court of Commissioners of Sewers. III. The court of policies of assurance. IV. The court of the Marshalsea and the Palace Court. V. The courts of the principality of Wales. VI. The court of the duchychamber of Lancaster. VII. The courts of the counties palatine, and other royal franchises. VIII. The stannary courts. IX. The courts of London, and other corporations:-to which may be referred the courts of requests, or courts of conscience; and the modern regulations of certain courts baron and county courts. X. The courts of the two Universities 71-85 CHAPTER VII. 1. All private wrongs or civil injuries are cognizable either in the courts ecclesiastical, military, maritime, or those of common law II. For 2. Injuries cognizable in the ecclesiastical courts are, I. Pecuniary. Matrimonial. III. Testamentary 3. Pecuniary injuries, here cognizable, are, I. Subtraction of tithes. which the remedy is by suit to compel their payment, or an equivalent; and also their double value. II. Non-payment of ecclesiastical dues. Remedy: by suit for payment. III. Spoliation. Remedy: by suit for restitution. IV. Dilapidations. Remedy: By suit for damages. V. Non-repair of the church, &c.; and non-payment of church-rates. Remedy: by suit to compel them 4. Matrimonial injuries are, I. Jactitation of marriage. Remedy: by suit for perpetual silence. II. Subtraction of conjugal rights. Remedy: by suit for restitution. III. Inability for the marriage state. Remedy: by suit for divorce. IV. Refusal of decent maintenance to the wife. Remedy: by suit for alimony 5. Testamentary injuries are, I. Disputing the validity of wills. Remedy: by suit to establish them. II. Obstructing of administrations. Remedy: by suit for the granting them. III. Subtraction of legacies. Remedy: by suit for the payment 6. The course of proceedings herein is much conformed to the civil and canon law: but their only compulsive process is that of excommunication; which is enforced by the temporal writ of significavit or de excommunicato capiendo 7. Civil injuries, cognizable in the court military, or court of chivalry, are, I. Injuries in point of honour. Remedy: by suit for honourable amends. II. Encroachments in coat-armour, &c. 86 87-8 88-92 92-95 95-98 98-103 8. Civil injuries cognizable in the courts maritime, are injuries, in their nature of common law cognizance, but arising wholly upon the sea, and not within the precincts of any county. The proceedings are herein also much conformed to the civil law 106-109 9. All other injuries are cognizable only in the courts of common law of which in the remainder of this book 109-114 10. Two of them are, however, commissible by these, and other, inferior courts; viz. I. Refusal, or neglect, of justice. Remedies: by writ of procedendo, or mandamus. II. Encroachment of jurisdiction. Remedy: by writ of prohibition CHAPTER VIII. 109-114 1. In treating of the cognizance of injuries by the courts of common law, considered, I. The injuries themselves, and their respective remedies. II. The pursuits of those remedies in the several courts 2. Injuries between subject and subject, cognizable by the courts of common law, are in general remedied by putting the party injured into possession of that right whereof he is unjustly deprived 115 115 3. This is effected, I. By delivery of the thing detained to the rightful owner. II. Where that remedy is either impossible or inadequate, by giving the party injured a satisfaction in dainages 116 4. The instruments by which these remedies may be obtained, are suits or actions; which are defined to be the legal demand of one's right: and these are, I. Personal. II. Real. III. Mixed 116-118 5. Injuries (whereof some are with, 6. The absolute rights of individuals 8. Injuries to the limbs and body are, I. 119 119 120 9. Injuries to health, by any unwholesome practices, are remedied by a special action of trespass on the case, for damages 10. Injuries to reputation are, I. Slanderous and malicious words. Remedy by action on the case, for damages. II. Libels. Remedy the same. III. Malicious prosecutions. Remedy by action of conspiracy, or on the case, for damages 11. The sole injury to personal liberty is false imprisonment. Remedies: I. By writ of. 1st, mainprize; 2ndly, odio et atia; 3rdly, homine replegiando; 4thly, habeas corpus; to remove the wrong. II. By action of trespass; to recover damages Page 121 123 127-138 12. For injuries to private property, see the next chapter. 13. Injuries to relative rights affect, I. Husbands. II. Parents. III. Guardians. IV. Masters 14. Injuries to an husband are, I. Abduction, or taking away his wife. Remedy by action of trespass de uxore rapta et abducta, to recover possession of his wife, and damages. ff. Criminal conversation with her. Remedy by action on the case, for damages. III. Beating her. Remedy by action on the case, per quod consortium amisit, for damages 15. The only injury to a parent or guardian, is the abduction of their children, or wards. Remedy: by action of trespass, de filiis, vel custodiis, raptis vel abductis; to recover possession of them, and damages 16. Injuries to a master are, I. Retaining his servants. Remedy: by action on the case, for damages. II. Beating them. Remedy: by action on the case, per quod servitium amisit; for damages CHAPTER IX. 138 139 140-1 141-143 OF INJURIES TO PERSONAL PROPERTY 1. Injuries to the rights of property, are either to those of personal, or real, property 2. Personal property is either in possession, or in action 3. Injuries to personal property in possession are, I. By dispossession. II. By damage, while the owner remains in possession 4. Dispossession may be effected, I. By an unlawful taking. II. By an unlawful detaining 5. For the unlawful taking of goods and chattels personal, the remedy is, I. Actual restitution; which (in case of a wrongful distress) is obtained by action of replevin. II. Satisfaction in damages: 1st, in case of rescous, by action of rescous, pound-breach, or on the case; 2ndly, in case of other unlawful takings, by action of trespass, or trover 144 144 144 145-151 6. For the unlawful detaining of goods lawfully taking, the remedy is also, I. Actual restitution; by action of replevin, or detinue. II. Satisfaction in damages by action on the case, for trover and conversion 7. For damage to personal property, while in the owner's possession, the remedy is in damages, by action of trespass vi et armis, in case the act be immediately injurious, or by action of trespass on the case, to redress consequential damage 8. Injuries to personal property, in action, arise by breach of contracts, I. Express. II. Implied Page 151 153 153 9. Breaches of express contracts are, I. By non-payment of debts. Remedy: 1st. specific payment; recoverable by action of debt. 2dly. Damages for nonpayment; recoverable by action on the case. II. By non-performance of covenants. Remedy: by action of covenant, 1st, to recover damages, in covenants personal; 2dly, to compel performance in covenants real. III. By non-performance of promises, or assumpsits. Remedy: by action on the case, for damages 154-158 10. Implied contracts are such as arise, I. From the nature, and constitution of government. II. From reason and the construction of law 158 11. Breaches of contracts implied in the nature of government, are by the nonpayment of money which the laws have directed to be paid. Remedy: by action of debt; (which, in such cases, is frequently a popular, frequently a qui tam action) to compel the specific payment; or sometimes by action on the case, for damages 158-161 12. Breaches of contracts implied in reason and construction of law, are by the non-performance of legal presumptive assumpsits: for which the remedy is in damages; by an action on the case, on the implied assumpsits. I. Of a quantum meruit. II. Of a quantum valebat. III. Of money expended for another. IV. Of receiving money to another's use. V. Of an insimul computassent, on an account stated; (the remedy on an account unstated being by action of account). VI. Of performing one's duty, in any employment, with integrity, diligence, and skill. In some of which cases an action of deceit (or on the case, in nature of deceit) will lie 161-166 3. Ouster from freeholds is affected by, I. Abatement. II. Intrusion. III. Disseisin. IV. Discontinuance. V. Deforcement 4. Abatement is the entry of a stranger, after the death of the ancestor, before the heir 5. Intrusion is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion 6. Disseisin is a wrongful putting out of him that is seized of the freehold 7. Discontinuance is where tenant in tail, or the husband of tenant in fee, makes a larger estate of the land than the law alloweth 8. Deforcement is any other detainer of the freehold from him who hath the property, but who never had the possession 9. The universal remedy for all these is restitution or delivery of possession, and, sometimes, damages for the detention. This is effected, I. By mere entry. II. By action possessory. III. By writ of right Page 14. Where the wrong-doer hath gained the actual right of possession, he who hath the right of property can only be remedied by a writ of right, or some writ of a similar nature. As, I. Where such right of possession is gained by the discontinuance of tenant in tail. Remedy, for the right of property by writ of formedon. II. Where gained by recovery in a possessory action, had against tenants of particular estates by their own default. Remedy: by writ of quod ei deforceat. III. Where gained by recovery in a possessory action, had upon the merits. IV. Where 190-197 198 to 207 216 to 219 1. Nuisance, or annoyance, is any thing that worketh damage, or inconvenience and it is either a public and common nuisance, of which in the next book; or, a private nuisance, which is any thing done to the hurt or annoyance of, 1. The corporeal, II. The incorporeal, hereditaments of another 2. The remedies for a private nuisance (besides that of abatement), are, I. Damages; by action on the case (which also lies for special prejudice by a public nuisance). II. Removal thereof, and damages; by assise of nuisance. III. Like removal, and damages; by writ of quod permittat pros ternere CHAPTER XIV. Page 216 219 223 to 229 OF WASTE 1. Waste is a spoil and destruction in lands and tenements, to the injury of him who hath, I. An immediate interest (as, by right of common) in the lands. II. The remainder or reversion of the inheritance 2. The remedies, for a commoner, are, restitution, and damages; by assise of common or, damages only; by action on the case 3. The remedy for him in remainder, or reversion, is, I. Preventive: by writ of estrepement at law, or injunction out of Chancery; to stay waste. : II. Cor 223 224 rective by action of waste; to recover the place wasted, and damages 225-229 CHAPTER XV. OF SUBTRACTION 230 to 235 1. Subtraction is when one who owes services to another, withdraws or neglects to perform them. This may be, I. Of rents, and other services, due by tenure. II. Of those due by custom 2. For subtraction of rents and services due by tenure, the remedy is, I. By distress; to compel the payment, or performance. II. By action of debt. III. By assise. IV. By writ de consuetudinibus et servitiis-to compel the payment. V. By writ of cessavit; and VI. By writ of right sur disclaimerto recover the land itself 3: To remedy the oppression of the lord, the law has also given, I. The writ of ne injuste vexes: II. The writ of mesne 230 231-234 4. For subtraction of services, due by custom, the remedy is, I. By writ of secta ad molendinum, furnum, torrale, &c.; to compel the performance, and recover damages. II. By action on the case; for damages only CHAPTER XVI. OF DISTURBANCE 234 235 236 to 252 1. Disturbance is the hindering or disquieting the owners of an incorporeal hereditament, in their regular and lawful enjoyment of it 2. Disturbances are, I. Of franchises. II. Of commons. Ilf. Of ways. IV. Of tenure. V. Of patronage 3. Disturbance, of franchises, is remedied by a special action on the case; for damages 4. Disturbance of common, is I. Intercommoning without right. Remedy: damages; by an action on the case, or of trespass: besides distress damage feasant; to compel satisfaction. II. Surcharging the cominon. 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. Remedies: restitution of the common, and damages; by assise of novel disseisin, and by writ of quod permittat: or, damages only; by action on the case 5. Disturbance of ways, is the obstruction, I. Of a way in gross, by the owner of the land. II. Of a way appendant, by a stranger. Remedy, for both : damages; by action on the case 6. Disturbance of tenure, by driving away tenants, is remedied by a spe cial action on the case; for damages 7. Disturbance of patronage, is the hinderance of a patron to present his clerk to a benefice; whereof usurpation within six months is now become a species Page 236 236 236 237-240 8. Disturbers may be, I. The pseudopatron, by his wrongful presentation. II. His clerk, by demanding institution. III. The ordinary, by refusing the clerk of the true patron 9. The remedies are, I. By assise of darrein presentment; II. By writ of quare impedit-to compel institution and recover damages: consequent to which are the writs of quare incumbravit, and quare non admisit; for subsequent damages. III. By writ of right of advowson; to compel institution, or establish the permanent right |