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ANALYSIS.

BOOK III.—OF PRIVATE WRONGS.

CHAPTER I.

Uf THE REDRESS OT PRIVATE Wronqb BT

The mere Act Of The PARTiE9....Page 2 to 16

1. Wrongs are the privation of right; and are, L Private. II. Public 2

2. Private wrongs, or civil injuries, are an infringement, or privation, of the civil rights of individuals, considered as individuals 2

8. The redress of civil injuries is one principal object of the laws of England 8

4. This redress is effected, I. By the mere act of the parties. II. By the mere operation of law. III. By both together, or suit in courts 8

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 8

6. Of the first sort are, I. Defence of one's self, or relations. II. Recaption of goods. III. Entry on lands and tenements. IV. Abatement of nuisances. V. distress — for rent, for suit or service, for amercements, for damage, or for divers statutable penalties,—made of such things only as are legally distrainable; and taken and disposed of according to the due course of law. VI. Seizing of heriots, &C..3-16

J. Of the second sort are, I. Accord. II. Arbitration 15-16

CHAPTER II.

Or Redress by the mere Operation or
Law 18 to 21

1 Redress, effected by the mere operation
it law, is, I. In case of retainer; where a
creditor is executor or administrator, and
is thereupon allowed to retain his own
debt. II. In the case of remitter; where
one who has a good title to lands, &c.
comes into possession by a bad one, and
is thereupon remitted to his ancient good
title, which protects his ill-acquired pos-
session 18-21

CHAPTER III.

Or Courts In General 22 to 25

1 Redress that is effected by the act both of law and of the parties is by suit or action in the courts of justice 22

1 Herein may be considered, I. The courts themselves. II. The cognizance of wrongs, or injuries, therein. And of courts, I. Their nature and incidents. II. Their several species 23

I A court is a place wherein justice is judicially administered, by officers delegated by the crown: being a n either re record, or not of record 23-21

4. Incident to all courts are, a plaintiff, as defendant, and judge: and with us, there are also usually attorneys, and advocates or counsels, viz., either barristers, or Serjeants at Law Page 26

CHAPTER IV. Or The Public Courts of Common Law And Equity 80 to 60

1. Courts of Justice, with regard to their several species, are, I. Of a public or general jurisdiction throughout the realm. II. Of a private or special jurisdiction 80

2. Public courts of justice are, I. The courts of common law and equity. II. The ecclesiastical courts. III. The military courts. IV. The maritime courts 30

8. 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 oourt of King's Bench. VII. The court of exchequer. VIII. The court of Chaucery. (Which two last are courts of equity as well as law.) IX. Tbe courts of Exchequer-Chamber. X. The house of Peers. To which may be added, as auxiliaries, XI. The courts of assize and Nisi Print 8i» Hi

CHAPTER V. Or Courts Para military, And Maritime 6,-ftP

1. Ecclesiastical courts, (which were separated from the temporal by William the Conqueror,) or courts Christian, are, I. The court of the Archdeacon. II The court of the Bishop's Consistory. III. The court of arches. IV. The court of Peculiars. V. The Prerogative Court. VI. The court of Delegates. VII. The o <urt

of Review 62-6h

2. The only permanent military court is that of chivalry; the courts-martial annually established by act of parliament being only temporary 68

8. Maritime courts are, I. The oourt of Admiralty and Vice-Admiralty. II. The court of Delegates. III. The lords of the Privy Council, and others authorized by the king's commission, for appeals in prize-causes 68

CHAPTER VI. Or Courts or A Special Jurisdiction...71 to 86 1. Courts of a special or private jurisdiction are, I. The forest c including the courts of attachments, regard, swein

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mote, and justice-neat. II. The court tf 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 Uni"rrities Page 71-85

CHAPTER VII.

Or The Cognizance Op Private Wbonos....

86 to 114

1. AU private wrongs or civil injuries are cognizable either in the courts ecclesiastical, military, maritime, or those of

common law 86

!. Injuries cognizable in the ecclesiastical courts are, I. pecuniary. II. Matrimonial. IIL Testamentary 87-88

t Pecuniary injuries, here cognizable, are, I. Subtraction of tithes. For 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. Nonrepair of the church, &O. ; and non-payment of church-rates. Remedy: by suit

:o compel them 88-92

4. Matrimonial injuries are, I. Jactitation of marriage. Remedy: by suit for perpetual silence. II. Subtraction of conjugal rights. Remedy: by suit for resti•ation. III. Inability for the marriage state. Remedy: by suit for divorce. IV. Refusal of decent maintenance to the wife. Remedy: by suit for alimony 92-95

6. 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 95-98

t 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 njni/Karit or dt excommunicato capiendo... 98-103

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. Remedy: by suit to remove them. The proceedings are in a summary

, 103-106

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 Page 106-10*

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, cognizable 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 109-11'

CHAPTER VIII.

Of Wbonos, And Their. Remedies, RespectIng The Rights or Persons 115 to 14*

1. In treating of the cognizance of injuries by the courts of common law, may be considered, I. The injuries themselves, and their respective remedies. II. The pursuits of those remedies in the several courts 116

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 llfi

8. 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 damages IIS

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

6. Injuries (whereof some are with, others without, force) are, I. Injuries to the rights of persons. II. Injuries to the rights of property. And the former are, I. Injuries to the absolute, II. Injuries to the relative, rights of persons 118—11W

6. The absolute rights of individuals are, I. Personal security. II. personal liberty. III. Private property. (See Book I. Ch. I.) To which the injuries must be correspondent Ill

7. Injuries to personal security are, I. Against a man's life. II. Against his limbs. III. Against 'his body. IV. Against his health. V. against his reputation.—The first must be referred to

the next book 119

8. Injuries to the limbs and body are. I. Threats. II. Assault. III. Battery IV. Wounding. V Mayhem. Remedy, by action of trespass vi et armu, for damages 120

9. Injuries to health, by any unwholesome practices, are remedied by a special action of trespass on the case, for damages 122

10 Iiiju-ies 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 Page 123

11. Tile sole injury to personal liberty is false imprisonment. Remedies: I. By writ of, 1st, mainprise; 2dly, odio et alia; 3dly, homme replegiando; 4thly, habeas corpus; to remoTe the wrong. II. By action of trespass; to recover damages 127-188

12. For injuries to private property, see the next chapter.

18. Injuries to relative rights affect, I. Husbands. II. Parents. III. Guardians. IV. Masters 188

14. Injuries to a 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. II. 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 189

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 custodies, raptis vel abduclis; to recover possession of them, and damages 140-141

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 tervitium amisit; for damages 142-148

CHAPTER IX.

Or Injuries To Personal Property.. 144 to 166

1. Injuries to the rights of property are either to those of personal, or real, property 144

2. Personal property is either in possession,

or in action 144

8. Injuries to personal property in possession are, I. By dispossession. IL By damage, while the owner remains in

possession 146

4. Dispossession may be effected, I. By an unlawful taking. II By an unlawful

detaining 145

. 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. 2dly, in case of other unlawful takings, by action of trespass, or

trover 145-151

6 For the unlawful detaining of goods lawfully taken, the remedy is also, I. Actual restitution , by action of replevin, or detinue. II. Satisfaction in

damages; by action on the case, fcr trover and conversion Page 151

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 16t

8. Injuries to personal property, in action, arise by breach of contracts, I. Express.

II. Implied 1M

9. Breaches of express contracts are, I. By non-payment of debts. Remedy: 1st, specific payment; recoverable by aotion 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 Buch as arise, I. From the nature and constitution of government. II. From reason and the construction of law 159-162

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 tarn action,) to compel the specific payment; or sometimes by action on the case, for damages 169-162

12. Breaches of contracts implied in reason and construction of law are by the nonperformance of legal presumptive assump sits: 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 162-166

CHAPTER X.

Or Injuries To Rial Property; And First or Dispossession, Or Ouster, Op The Freehold 167 to 197

1. Injuries affecting real property are, I. Ouster. II. Trespass. III. Nuisance. IV. Waste. V. Subtraction. VI. Disturbance 167

2. Ouster is the amotion of possession; and is, I. From freeholds. II. From chattels real 167

3. Ouster from freeholds is effected by, I. Abatenent. II. Intrusion. III. Dissei sin. IV. Discontinuance. V. Deforcement 167

4 Abatement is the entry of a stranger, after the death of the ancestor, before the heir ...Page 167

6 Intrusion is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion 169

6 Disseisin is a wrongful putting out of him that is seised of the freehold 169

7 Discontinuance is where tenant in tail, or the husband of tenaut in fee, makes a larger estate of the land than the law allowcth 171

f- Deforcement is any other detainer of the freehold from him who hath the property, but who never had the possession 172

• 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 174

10. Mere entry on lands, by him who hath the apparent right of possession, will (if peaceable) devest the mere possession of a wrong-doer. But forcible entries are remedied by immediate restitution, to be given by a justice of the peace 175-179

11. Where the wrong-doer hath not only mere possession, but also an apparent right of possession; this may be devested by him who hath the actual right of possession, by means of the possessory actions of writ of entry, or assise 179

12. A writ of entry is a real action, which disproves the title of the tenant, by showing the unlawful means under which he gained or continues possession. And it may be brought, either against the wrongdoer himself; or in the degrees called the per, the per and cut, and the pott 180

13. An assise is a real action, which proves the title of the demandant, by showing bis own, or his ancestor's, possession. And it may be brought either to remedy abatements; viz. the assise of mart d'ancestor, &c.: or to remedy recent disseisins; rix. the assise of novel disseisin 184-190

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 formeion. 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 de/oreeat. III. Where gained by recovery in a posoessory action, had upon the merits. IV. Where gained by the statute of limitations. Remedy, in both cases: by a mere writ of right, the highest writ in the law 190-197

CHAPTER XL

,)r Dispossession, Ok Ocsteb, Of Chat

Tkm Real 198 to 207

1 Ouitcr from chattels real is, I. From

estates by statme and elegit. II. From an estate for years Page 198

2. Ouster from estates by statute or elegit is effected by a kind of disseisin. Remedy: restitution, mid damages; by assise

of novel Uwseititt 198

3. Ouster from an estate for years is effected by a like disseisin or ejectment. Remedy: restitution and damages; I By writ of ejeciione firmse. II. By writ of guare ejecil infra lerminum ) i»9

4. A writ of ejectione firmse, or action of trespass in ejectment, lieth where lands, &c, are let for a term of years and the lessee is ousted or ejected from his term; in which case he shall recover possession of his term, and damages 191

5. This is now the usual method of trying titles to land, instead of an action real: viz., by, I. The claimant's making an actual (or supposed) lease upon the land to the plaintiff. II. The plaintiff's actual (or suppesed) entry thereupon. III. His actual (or supposed) ouster and ejectment by the defendant. For which injury this action is brought, either against the tenant, or (more usually) against some casual or fictitious ejector; in whose stead the tenant may be admitted defendant, on condition that the lease, entry, and ouster be confessed, and that nothing else be disputed but the merits of the title claimed by the lessor of the plaintiff ..200-20*

6. A writ of quare ejecit infra terminum is an action of a similar nature; only not brought against the wrong-doer or ejector himself, but such as are in possession under his title 201

CHAPTER XII.

Of Trespass 208 to 215

1. Trespass is an entry upon, and damage done to, another's lands, by one's self, n one's cattle; without any lawful authority, or cause of justification: which is called a breach of his close. Remedy: damages; by action of trespass quare clausum fregit: besides that of distress damage feasant But, unless the title to the land come chiefly in question, or the trespass was wilful or malicious, the plaintiff (if the damages be under forty shillings) shall recover no more costs than damages 208-211

CHAPTER XIII.

Of Nuisance . 216 to 2W

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, I. The corporeal, II. The incorporeal, hereditaments of another 211

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 publio nuisance.) II. Removal thereof, and lamages; by assise of nuisance. III. Like removal, and damages; by writ of quod permittat protternere Page 219

CHAPTER XIV.

Of Wastb 223*o 229

1. Waste is a spoil and destruction in land* and tenements, to the injury of him whe hath, I. An immediate interest (as, by right of common) in the lands. II. The remainder or reversion of the inheritance 228

2 The remedies, for a commoner, are, restitution, and damages; by assise of common: or, damages only; by action on the case 224

t. The remedy for him in remainder, or reversion, is, I. Preventive: by writ of estrcpement at law, or injunction out of Chancery; to stay waste. II. Corrective: by action of waste; to recover the place wasted, and damages 226-229

CHAPTER XV.

Of Subtraction 230 to 285

1. Subtraction is when one who owes services to nnother withdraws or neglects to perform them. This may be, I. Of rents, and other services, due by tenure.

II. Of those due by custom 2S0

2. For subtraction of rents and services dut 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 tervitiis; to compel the payment. V. By writ of cessavit; and, VI. By writ of right iur disclaimer—to recover the land itBelf 231-284

1 To remedy the oppression of the lord, the law has also given, I. The writ of ne inj'uste vexes: II. The writ of mesne 234

4. For subtraction of services due by custom, the remedy is, I. By writ of secta ad molfwiinum, fvmum, torrale, &c.; to compel the performance, and recover damages. II. By action on the case; for damages only 235

CHAPTER XVI.

Or Disturbance 236 to 252

1. Disturbance is the hindering or disquieting the owners of an incorporeal hereditament, in their regular and lawful enjoyment of it 286

2 Disturbances are, I. Of franchises. IL Of commons. III. Of ways. IV. Of tenure. V. Of patronage 286

t. Disturbance of franchises is remedied by a special action on the case; for damages 236

I. Disturbance of common is, «. Tntercommoning without right. Remedy: damages; by an action on the case, or of trespass: besides distress damage feasant; to compel satisfaction. II. Surcharging the common. 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 **cunda 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 Page 237-24V

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 241

6. Disturbance of tenure, by driving away tenants, is remedied by a special action

on the case; for damages 242

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 242

8. Disturbers may be, I. The pseudo-patron, by his wrongful presentation. II. His clerk, by demanding institution. III. The ordinary, by refusing the clerk of the true patron 244

9. The remedies are, I. By assise of darrein presentment; II. By writ of quare impcdit —to compel institution and recover damages: consequent to whioh 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 246-262

CHAPTER XVII.

Of Injcbies Proceeding From, Or AffectIng, Tdk Crown 264 to 263

1. Injuries to which the crown is a party, are, I. Where the crown is the aggressor.

II. Where the crown is the sufferer 264

2. The crown is the aggressor, whenever it is in possession of any property to which

the subject hath a right 254-'J55

8. This is remedied, I. By petition of right: where the right is grounded on facts disclosed in the petition itself. II. By monstrans de droit; where the claim is grounded on facts already appearing on record. The effect of both which is to remove the

hands (or possession) of the king 2r>6-257

4. Where the crown is the sufferer, the king's remedies are, I. By such commonlaw actions as are consistent with the royal dignity. II. By inquest of office, to recover possession: which, when found, gives the king his right by solemn matter of record; but may afterwards be traversed by the subject. III. By writ of scire facias, to repeal the king's patent or grant. IV. By information of intrusion, to give damages for any trespass on the lands of the crown; or of debt, to recover moneys due upon contract, or forfeited by the breach of any penal statute; or sometimes (in the latter case) by information in rem: all filed in the Exchequer ex officio by the king's attorney-general. V. By writ of quo warranto, or information in the nature of such writ; to seize into the

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