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Bug's hands any franchise usurped by the subject, or to oust a usurper from any public office. VI. By writ of mandamw. unless cause; to admit or restore any person entitled to a franchise or office: to which, if a false cause be returned, the remedy is by traverse, or by action on the case for damages; and, in consequence, a peremptory mandamus, or wit of restitution Page 257-265

CHAPTER XVIII. l/f 73i PrnsuiT or Remedies Bt Action,


I The pursuit of the several remedies furnished by the laws of England, is, I. By tction in the courts of common law. II. By proceedings in the courts of equity... 270

I Of an action in the court of Common Pleas, (originally the proper court for prosecuting civil suits,) the orderly parts are, I. The original writ. II. The process. III. The pleadings. IV. The issue or demurrer. V. The trial. VI. The judgment. VII. The proceedings in nature of appeal. VIII. The execution 272

1 The original writ is the beginning or foundation of a suit, and is either op-, lional, (called aprtecipe,) commanding the defendant to do something in certain, or otherwise show cause to the contrary; or peremptory, (called a si fecerit te itcurum,) commanding, upon security given by the plaintiff', the defendant to appear in court, to show wherefore he hath injured the plaintiff both issuing out of Chancery under the king's great seal, and returnable in bonk during term-time 272


0' Process 279 to 292

1. Process is the means of compelling the defendant to appear in court 279

2 This includes, I. Summons. II. The writ of attachment, or pone; which is somelimes «he 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. VII. Appearance, aad common bail. VIII. The arrest. IX. Special bail, first to the sheriff, and then

to the action 279-292


»r Pieapisos 293 to 313

t Pleadings are the mutual altercations of the plaintiff and defendant, in writing; onder which are comprised, I. The declaration or count, (wherein, incidentally, of the visne, nonsuit, retraxit, and discontinuance.) II. The defence, claim of cognizance, imparlance, view, oyer, aidprayer, voucher, or age III The plea;

which is either a dilatory ilea (1st, to the jurisdiction; 2dly, in disability of the plaintiff; 8d\y, in abatement, or it is a plea to the action; sometimes confessing the action, either in whole, or in part, (wherein of a tender, paying money into court, and set-off,) but usually denying the complaint, by pleading either, 1st, the general issue: or, 2dly, a special bar, (wherein of justifications, the statutes of limitation, &c.) IV. Replication, rejoinder, surrejoinder, rebutter, surrebutter Sc. Therein of estoppels, colour, dupL; city, departure, new assignment, protest ation, averment, and other incidents of pleading Page 296-811


Of Issue And Demurrer. 314 to 817

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 814

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 jssue, by alleging it in a plea/)U!j darrein continuance 818

8. 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 311


Of The Several Species Of Trial...830 to 641

1. Trial is the examination of the matter of fact put in issue 330

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 !!30

8. Trial by the record is hud, when the existence of such record is the point in issue 380 4. Trial by inspection or examination is had by the court, principally when the matter in issue is the evident object of

the senses 381

6. Trial by certificate is had in cases where such certificate must have been conclusive to a jury 888

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 086

7. Trial by wager of battel, in civil cases, ie only had on a writ of right; but, in lieu thereof, the tenant may have, at his option, the trial by the grand assise 887

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 841 CHAPTER XXIII.

Or the Trial By Jcbt Page 361 to 385

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 861

2 The method and process of the ordinary trial by jury is, I. The writ of venire facias tc the sheriff, coroner, or elisors; with the subsequent compulsive process of habeas corpora, or distringas. II. The carrying down of the record to the court of nisi priiis. III. The sheriff's return; or panel of, 1st, special, 2dly, common, jurors. IV. The challenges; 1st, to the array; 2dly, to the polls of the jurors; either, propter honoris respcctvm, 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: Lily, parol,—or, by the private knowledge of the jurors. VIII. The verdict: which may be, 1st, privy; 2dly, public; 3dly, special 361-386


Of Judgment, And Its Incidents 386 to 399

1. Whatever is transacted at the trial, in the cjurt of nisi prius. is added to the record under the name of a postea; consequent upon which is the judgment 386

n 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 386-394

8. Where the issue is immaterial or insufficient, the court may award a repleader 395

4. Judgment is the sentence of the law, pronounced by the court, upon the matter contained in the record 395

6. Judgments are, I. Interlocutory; which are incomplete till perfected by a writ of inquiry. II. Final 896

6. Costs, or expenses of suit, are now the necessary consequence of obtaining judgment 399


Of Proceedings In The Nature of ApPeals 402 to 411

t proceedings in the nature of appeals from judgment are, I. A writ of attaint; to impeach the verdict of a jmry: which of late has been superseded by new trials. II. A writ of deceit. III. A writ of audita querela; to discharge a judgment by matter that has since happened. IV. 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 Page 406-4H


Of Execution 412 to 42fi

1. Execution is the putting in force of the sentence of judgment of the law: which is effected, I. Where possession of any hereditament is recovered; by writ of habere facias seisinam, possessionem, &o. ll. Where any thing is awarded to be done or rendered; by a special writ for that purpose: as, by writ of abatement in case of nuisance; retorno habendo, and capias in withernam, in replevin; distringas and scire 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. 3dly, levari facias, against his goods and the profits of his lands. 41 lily, 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 412-42*


Or Proceedings In The Courts of Equity

426 to 45ft

1. Matters of equity, which belong to the peculiar jurisdiction of the court of Chancery, are, I. The guardianship of infants. II. The custody of idiots and lunatics. III. The superintendence of charities. IV. Commissions of bankrupt 426-42*

2. The court of Exchequer, and the duchy court of Lancaster, have also some peculiar causes, in which the interest of the king is more immediately concerned 428-42S

8. Equity is the true sense and sound interpretation of the rules of law, and, as such, is equally attended to by the judges of the courts both of common law and equity 430—48

4. The essential differences, whereby the English courts of equity are distinguished from the courts of law, are, I. The mode of proof, by a discovery 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 encumbered lands, Sc. IV. The true construction of securities for money, by considering them merely as a pledge. V. The execution of trusts, or second uses, in a manner analogous to the law of legal es

'ates Page 436-440

I The proceedings in the court of Chantry (to which those in the exchequer ic. Tery nearly conform) are, I. Bill. H. Writ of subpoena; and perhaps injunction III. Process of contempt;

viz., (ordinarily) attachment, attachment with proclamations, commission of rebellion, serjeant-at-arms, and sequestration. IV. appearance. V. Demurrer. VI. Plea. TH. Answer. VIII. Exceptions; 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 parliament Page 442-16*



(j which are considered

f I. The general nature of crimes, and punishment Cbaptib t

II The persons capable of committing crimes.. LT1 Their several degrees of guilt; as < 1. Principals,

I 2. Accessories •

IV. The several crimes (with their punishments) more peculiarly offending

f1. God and religion

2. The law of nations

S. The king and government; viz.

(" 1. High treason

2. Felonies injurious to the prerogative

8. Praemunire

I 4. Misprisions and contempts..

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7. Trial, and conviction XXVII

8. Clergy XXVIII

9. Judgment, and attainder; which induce
J 1. Forfeiture,

1,2. Corruption of blood > XXIX

10. Avoidcr of judgment, by

{1. falsifying, or reversing, the attainder XXX

2. Reprieve, or pardon XXXI

11. Execution XXXII ANALYSIS.


CHAPTER I 0? Tbi Nature or Crimes, And Their

Pl'IISHMENT Page 1 to 12

! In treating of public wrongs may be eoniidered, 1. 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. VL The method of punishment...^ 1

!■ A crime, or misdemeanour, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it 5

I Crimea are distinguished from civil injuries, in that they are a breach and violation of the public rights, due to the vhole community, considered as a community 6

i. Punishments may be considered with regard to, I. The power, II. The end, HI. The measure,—of their infliction 7

6. The power, or right, of inflicting human punishments, for natural crimes, or such as are mala in »e, 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 7

t. 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 11

'• 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 he regulated, and assisted, by certain general, equitable principles 12



Crikes 20 to 88

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

! The wUi does not concur with the act, I. Where there is a defect of understanding. II. Where no will is exerted. III. "here thi act is constrained by force Mid violence


3. A vicious will may therefoie 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; 2dly, that of duress per minat; 3dly, that of cheosing the least pernicious of two evils where one is unavoidable; 4thly, that of want or hunger; which is no legitimate excuse Page 22-32

4. The king, from Mb excellence and dignity, is also incapable of doing wrong.... 48


Or Principals And Accessories 34 to 07

1. The different degrees of guilt in criminals are, I. As principals. II. As accessories 84

2. A principal in a crime is, I. He who commits the fact. II. He who is present at, aiding, and abetting, the commission 11

8. 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 86

4. Accessories can only be in petit treason, and felony: in high treason, and misdemeanours, all are principals 86

6. An accessory before the fact is one who, being absent when the crime is committed, hath procured, counselled, or commanded another to commit, it 8(

G. 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 principnl, and accessory before the fact, are excluded from it 87


Or Offences Against God And Religion..

42 to W

1. Crimes and misdemeanours, cognizable by the laws of England, are such as more immediately offend, I. God, and his holj religion. II. The law of nations. Ill The king and his government. IV. Th* public, or commonwealth. V. Individuals 43

2. Crimes more immediately offending God and religion are, I. Apostasy. For which the penalty is incapacity, and imprisonment. II. Heresy. Penalty for one species thereof: the same. III. Offences against the established (Lurch. ■ Either

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