Sivut kuvina



3. Ouster from freeholds is affected by, gained by the statute of limitations.-

I. Abatement. II. Intrusion. II.

Remedy, in both cases : by a mere

Disseisin. IV. Discontinuance. V. writ of right, the highest writ in the


167 • law

190-197 ,/

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, OF DISPOSSESSION, OR OUSTER, OF

after a particular estate of freehold is


198 to 207

determined, before him in remainder 1. Ouster from chattels real is, J. From

or reversion

169 estates by statute and elegit. II. From

6. Disseisin is a wrongful putting out of an estate for years


him that is seized of the freehold 169 2. Oaster, from estates by statute or ele-

7. Discontinuance is where tenant in git, is effected by a kind of disseisin.

tail, or the husband of tenant in fee, Remedy : restitution, and damages;

makes a larger estate of the laud than

by assise of novel disseisin


the law alloweth

171 3. Ouster from an estate for years, is ef-

8. Deforcement is any other detainer of fected by a like disseisin or ejectment.

the freehold from him who hath the

Remedy: restitution and damages; I.

property, but who never had the pos-

By writ of ejectione firmæ. II. By

172 writ of quare ejecit infra terminum 199

9. The universal remedy for all these is 4. A writ of ejectione firmæ, or action of

restitution or delivery of possession, trespass in ejeciment, lieth where

and, sometimes, damages for the de. lands, &c., are let for a term of years,

tention. This is effected, I. By mere

and the lessee is ousted or ejected

entry. II. By action possessory. III.

from his term ; in which case he shall
By writ of right

174 recover possession of his term, and

10. Mere entry on lands, by him who damages


hath the apparent right of possession, 5. This is now the usual method of try.
wil (if peaceable) devest the mere ing titles to land, instead of an action
possession of a wrong-doer. But for-

real: viz. by, I. The claimant's mak.
cible entries are remedied hy imme.

ing an actual (or supposed) lease upon
diate restitution, to be given by a jus. the land to the plaintiff. II. 'The
tice of the peace

175-179 plaintiff's actual (or supposed) entry

11. Where the wrong-doer hath not only thereupon. III. His actual (or sup-

mere possession, but also an apparent posed) ouster and ejectment by the de.

right of possession; this may be de- fendant. For which injury this action

vested by him who hath the actual right

is brought, either against the tenant,

of possession, by means of the posses. or (more usually) against some casual
sory actions of writ of entry, or assise 179 or fictitious ejector; in whose stead

12. Awrit of entry is a real action, which the tenant may be admitted defendant,

disproves the title of the tenant, by

on condition that the lease, entry, and

shewing the unlawful means under ouster be confessed, and that nothing
which he gained or continues posses. else be disputed but the merits of the
sion. And it may be brought, either title claimed by the lessor of the plain-
against the wrong-doer himself; or in

the degrees, called the per, the per and 6. A writ of quare ejecit infra terminum
cui, and the post

180 is an action of a similar nature : only

13. An assise is a real action, which not brought against the wrong-doer or

proves the title of the demandant, by ejector himself, but such as are in pos-

shewing his own, or his ancestor's session under his title


possession. And it may be brought

either to remedy abatements ; viz. the


assise of mort d' ancestor, &c.: or to OF TRESPASS

208 to 2.5

remedy recent disseisins; viz. the as- 1. Trespass is an entry upon, and da.

sise of novel disscisin

184–190 mage done to, another's lands, by one's

14. Where the wrong-doer hath gained sell, or one's cattle ; withont any law.

the actual right of possession, he who ful authority, or cause of justification :
hath the right of property can only be

which is called a breach of his close.
remedied by a writ of right, or some Remedy: damages; by action of tres.
writ of a similar nature. As, I. Where

pasz quare clausum fregit : besides that
such right of possession is gained by of distress damage feasant. But, un.
the discontinuance of tenant in tail.

less the title to the land come chiefly

Remedy, for the right of property : by in question, or the trespass was wilful

writ of formedon. II. Where gained or malicious, the plaintiff (if the dama-

by recovery in a possessory action, ges be under forty shillings) shall re

had against tenants of particular es. cover no more costs than damages 208–215

tates by their own de!ault. Remedy:

by writ of quod ei deforceal. III. Where


gained by recovery in a possessory ac-


216 to 219

tion, had upon the merits. IV. Where 1. Nuisance, or annoyance, is any thing





that worketh damage, or inconveni. hereditament, in their regular and law.
ence : and it is either a public and ful enjoyment of it


common nuisance, of which in the next 2. Disturbances are, I. Of franchises.

book; or, a private nuisance, which is II. Of commons. III. Of ways. IV.

any thing done to the hurt or annoy-

Of tenure. V. Of patronage


ance of, I. The corporeal, II. The in. 3. Disturbance, of franchises, is reme-

corporeal, hereditaments of another


died by a special action on the case ;

2. The remedies for a private nuisance

for damages


(besides that of abatement), are, I. 4. Disturbance of common, is I. Inter.
Damages ; by action on the case commoning without right. Remedy:
(which also lies for special prejudice damages ; by an action on the case,
by a public nuisance). II. Removal or of trespass : besides distress da.
thereof, and damages ; by assise of mage seasant; to compel satisfaction.
nuisance. III. Like removal, and da-

II. Surcharging the cominon. Reme.

mages; by writ of quod permittat pros. dies: distress damage feasant; to


219 compel satisfaction : action on the

case ; for damages : or, writ of ad.


measurement of pasture ; to appor-

tion the common; -and writ de se-


223 to 229 cunda superoneratione ;

for the super.

1. Waste is a spoil and destruction in numerary cattle, and damages. III.

lands and tenemonts, to the injury of Enclosure, or obstruction. Remedies :
him who hath, I. An immediate inte-

restitution of the common, and dama.
rest (as, by right of common) in the ges; by assise of novel disseisin, and
lands. II. The remainder or rever-

by writ of quod permittat : or, damages

sion of the inheritance

223 only; by action on the case 237-240

2. The remedies, for a commoner, are, 5. Disturbance of ways, is the obstruc-

restitution, and damages; by assise tion, I. Of a way in gross, by the own-

of common : or, damages only; by ac-

er of the land. II. Of a way append-

tion on the case

224 ant, by a stranger. Remedy, for both :

3. The remedy for him in remainder, or damages ; by action on the case


reversion, is, I. Preventive : by writ 6. Disturbance of tenure, by driving
of estrepement at law, or injunction out away tenants, is remedied by a spe
of Chancery; to stay waste. II. Cor. cial action on the case ; for damages 242
rective : by action of waste ; to reco- 7. Disturbance of patronage, is the hin-
ver the place wasted, and damages 225-229 derance of a patron to present his clerk

to a benefice; whereof usurpation


within six months is now become a




230 to 235 8. Disturbers may be, I. The pseudo-

1. Subtraction is when one who owes patron, by his wrongful presentation.

services to another, withdraws or ne-

II. His clerk, by demanding institu-

glects to perform them. This may tion. III. The ordinary, by refusing

be, I. Or rents, and other services,

the clerk of the true patron


due by tenure. II. Of those due by 9. The remedies are, I. By assise of


230 darrein presentment ; II. By writ of

2. For subtraction of rents and services quare impedie- to compel institution
due by tenure, the remedy is, I. By

and recover damages : consequent to
distress; to compel the payment, or which are the writs of quare incumbra-
performance. II. By action of debt. vit, and quare non admisit; for subse-
III. By assise. IV. By writ de con-

quent damages. III. By writ of right

suetudinibus et servitiis-to compel the of advowson ; to compel institution, or

payment. V. By writ of cessavit ; and establish the permanent right 245–252

VI. By writ of right sur disclaimer-

to recover the land itself



3. To remedy the oppression of the lord,

the law has also given, I. The writ OF INJURIES, PROCEEDING FROM, OR

of ne injuste vexes : II. The writ of AFFECTING, THE Crown

254 to 265

234 1. Injuries to which the crown is a par.

4. For subtraction of services, due by ty, are, I. Where the crown is the ag-

custom, the remedy is, I. By writ of gressor. II. Where the crown is the

secta ad molendinum, furnum, torrale,



fc.; lo compel the performance, and 2. The crown is the agressor, when.
recover damages. II. By action on ever it is in possession of any proper-
the case ; for damages only

235 ty to which the subject hath a right 254-5

3. This is remedied, I. By petition of


right; where the right is grounded on

facts disclosed in the petition itself.


236 to 252 II. By monstrans de droit ; where the

1. Disturbance is the lindering or dis- claim is grounded on facts already ap-

quieting the owners of an incorporeal pearing on record. The effect of both



Page which is to remove the hands (or pos- 2. This includes, I. Summons. II. 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, 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 fonnd, 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 erigi 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 Ex. chequer er officio by the king's attor


293 to 313 ney.general. V. By writ of quo war

1. Pleadings are the mutual altercations ranto, or information in the nature of

of the plaintiff and defendant, in writ. such writ; to seize into the king's

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, re

traxit, and discontinuance). II. The mus, unless cause ; to admit or restore

defence, claim of cognizance, impar. any person entitled to a franchise or

lance, view, oyer, aid-prayer, voucher, office : to which, if a false cause be returned, the remedy is by traverse,

or age. III. The plea; which is either

a dilatory plea (1st, to the jurisdic. or by action on the case for damages ; and, in consequence, a peremptory

tion ; 2ndly, in disability of the plain. mandamus, or writ of restitution 257-265

tiff; 3rdly, in abatement: or it is a

plea to the action; sometimes conCHAPTER XVIII.

fessing the action, either in whole, or

in part (wherein of a tender, paying OF THE PURSUIT OF REMEDIES BY AC.

money into court, and set-off); but

usually denying the complaint, by TION, AND, FIRST, OF THE ORIGINAL WRIT

270 to 272

pleading either, Ist, the general is. 1. The pursuit of the several remedies

sue ; or, 2ndly, a special bar (wherein fumished by the laws of England, is,

of justifications, the statutes of limitaI. By action in the courts of common

tion, &c.) IV. Replication, rejoin.

der, surrejoinder, rebutter, surrebutJaw.' II. By proceedings in the courts

ter, &c. Therein of estoppels, coof equity

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, 1. The original writ. II. The process. 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 call. tional (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 tage of it, even after demurter or is. in bank during term-time

272 sue, by alleging it in a plea puis dar.
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.



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in the court of nisi prius, is added to

the record under the name of a posOF THE SEVERAL SPECIES OF TRIAL

lea: 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.

the declaration varies from the writ, By wager of baitel. 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 in. 4. Trial by inspection or examination is sufficient, the court may award a rehad by the court, principally when the

395 matter in issue is the evident object 4. Judgment is the sentence of the law, of the senses


pronounced by the court, upon the mat5. Trial by certificate is had in those

ier contained in the record

395 cases, where such certificate must

5. Judgments are, I. 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 obtain. husband is in issue

ing judgment

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 OF PROCEEDINUS IN THE NATURE OF
grand assize


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, 1. 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 that has 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, ingas. 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. 1st, special, 2ndly, common jurors. To the house of Peers, from proceed. IV. 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 defectum, 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.“ OF EXECUTION

412 to 425 The evidence; which is either by 1. Execution is the putting in force of proofs, 1st, written; 2ndly, parol–or, the sentence or judgment of the law : by the private knowledge of the jurors.

which is effected, 1. Where possesVIII. The verdict : which may be, sion of any hereditament is recovered ; 1st, privy ; endly, public ; 3rdly, spe..

by writ of habere facias seisinam, pos. 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 retorno habendo, and capias in wither. 1. Whatever is transacted at the trial, nam in replevin; distringas and scire




facias in detinue. III. Where money on the oath of the party ; which gives
only is recovered; by writ of, lst, ca- a jurisdiction in matters of account,
pias ad satisfaciendum, against the body

and fraud. II. 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


trusts, or second uses, in a manner

analogous to the law of legal 08-




426 to 455 5. The proceedings in the court of Chan-

1. 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 Bill. 11. Writ of subpæna ; and per-

infants. 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 attachment with proclamations, com-


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. An-

peculiar causes, in which the interest

VIII. Exceptions ; amend.

of the king is more immediately con-

ments ; cross, or supplemental, bills;


428-9 bills of revivor, interpleader, &c. IX.

3. Equity is the true sense and sound Replication. X. Issue. XI. Deposi.

interpretation ofthe 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 Parlia.
I. The mode of proof, by a discovery



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