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40. In what four cases is this remedy, or that ly Buc'i other writs as are said to be of the same nature, principally applied? 191.

41. What is the remedy upon an alienation by tenant in tail whereby the estate-tail is discontinued and the remainder or reversion is, by failure of the particular estate, displaced and turned into a mere right 1 191.

42. Into what three species is the writ of formedon (secundum forman doni) distinguished; and where does each species lie? 192.

48. What, by statute 21 Jac. I. c. 16, is the time of limitation in aformedont 192, 193.

44 What is the remedy if the owners of a varticular estate be barred of the right of possession by a recovery had Against them through their default or non-appearance in a possessory action t 193.

45. What is the remedy in case the right of possession be barred by a recovery upon the merits, in a possessory action, or by the statute of limitations 1 193.

46. Of what estate only doth a mere writ of right lie; and what if other actions are or have been brought to recover the same estate? 193.

47. In bar of what may a recovery had in this action be pleaded? 194.

48. But are there not some cases when writs In the nature of writs of right do not demand the fee-simple; and are there not others where the mere writ of right alone is not applicable to every case of a claim of lands in fee-simple t 194, 195.

49. Where must the general writ of right be brought; and whither may it be removed? 195.

50. What, by statute 32 Hen. VIII. o. 2, is the limitation of a writ of right t 196.

61. But by what actions is the title of lands now usually tried f 197.

CHAP. XI.—Of Dispossession or Ouster of Chattels Real.

1. Or what two kinds is ouster from chattels realt 198.

2. By what only is ouster of the firBt kind liable to happen; and what is the remedy for such ouster? 198.

8. By what only does ouster of the second kind happen; and what two remedies has the law provided for this injury? 199.

4. Where doth a writ of ejectione firmce, or action of trespass in ejectment, lie; and what shall be recovered by it? 199.

6. What is the present method by which the remedy by ejectment is converted into a method of trying titles to the freehold; who is called the casual ejector; and what if the tenant in possession do not within a limited time apply to the court to be admitted a defendant in his stead ? 202, 203:

6. But, if the tenant in possession do apply to oe made a defendant, upon what condition is it allowed him; and what is the lessor of the plaintiff then bound to do? 203, 204.

7. Yet, to prevent fraudulent recoveries of the possession by collusion with the tenant of the land, what is enacted by statute 11 Geo. II. c. 19? 204.

6. But what if the new defendants, whether Mndkird, or tenant, or both, after entering into the common rule, fail to appear at the trial and •o confess lease, entry, and ouster f 204, 205.

9. The damages recovered in these actions being now merely nominal, what a -lion lies in order to complete the remedy when the possession baa been long detained from him who had the right

to it? 205.

10. Why will not a writ of ejectment lie of incorporeal hereditaments; with what exception by the express purview of statute 32 Hen. VIII. c. 7? 206.

11. What does the statute 4 Geo. II. c 28 enact as to landlords whose tenants are in arrear *


12. Where doth the mil of guare ejedt infra terminum lie by the ancient law; and what shall be recovered by it? 207.

13. But why is this action fallen into disuse? 207.

CHAP. XII.—Of Trespass.

1. What is trespass in its limited and < sense? 209.

2. Why does the law call every trespass of this nature a breach of another's close f 209, 210.

3. What is necessary in order to be able tc maintain an action of trespass? 210, 211.

4. In case of trespass by cattle damage feasant, what remedy has the party injured? 211.

5. What is the action that lies in either of these cases of trespass committed upon another's land; and when may damages be recovered? 211, 212.

6. What is called laying the action with a <jntinuando; and when only can this be done * 212.

7. In what case is trespass justifiable; but in what shall a man be accounted a trespasser at initio T 212-214.

8. What does the statute 11 Geo. II. c. 19 enact as to trespass by entry of the landlord to distraint 213.

9. What is enacted by statutes 43 Elix. c. 6 and 22 & 23 Car. II. c. 9, { 136, in order to prevent trifling and vexatious actions of trespass but what two exceptions more have been made to this rule by statutes 8 & 9 W. III. c. 11 and 4 & 6 W. and M. o. 23? 214, 216.

CHAP. XIII.—Of Nuisance.

1. What is nuisance, nocumentum; and of what two kinds? 216.

2. Of what two kinds are private nuisance*) with regard to the species of hereditament* which they may affect? 216.

3. To what three may the nuisances which affect a man's dwelling be reduced? 217.

4. What are nuisances to one's lands t 217, 218.

5. What are nuisances with regard to other

corporeal hereditaments t 218.

6. What are nuisances as to incorporeal hereditaments f 218. 219.

7. What two things are necessary in order to make out another person's setting up a fair or market so near mine that he does me a prejudice to be a nuisance f 218, 219.

8. When shall a private person have a private satisfaction for damage by a public nuisance*. 220.

9. What are the three remedies by suit for a private nuisance; and by whom only can the lad

j two actions be brought? 220-222.

10. What if, after one verdict against him in an action on the case for damage* for a nuisance, the defendant vratinue it? 220.

11. What is an assise of nuisance; and if the assise be found for the plaintiff, of what two things shall he have judgment t 221.

12. Does an assise of nuisance lie against the wrong-doer who levied or did the nuisance, or against the person to whom he may have aliened the tenement whereon the nuisance is situated? 221.

18. What is a writ quod permittat prosternere; and for and against whom does this writ extend its power? 221, 222.

14. Why are these two last actions fallen into disuse? 222.

CHAP. XIV. —Of Waste.

1. What is waste, vastum; and of what two natures? 223.

2. What must those persons have who may be injured by waste * 223, 224.

3. What remedy has a person who has a freehold right of common of estovers if the owner of the wood demolish the whole wood; and what remedy has he if he have only a chattel interest in such common t 224.

4. But what is the most usual and important interest that is hurt by the commission of waste; and what remedy hath he who hath this interest in case of waste t 224, 225.

5. Yet why may a parson, vicar, archdeacon, prebendary, and the like, who are seised in right of their churches of any remainder or reversion, have an action of waste t 226.

6. Of what two kinds is the redress for this injury of waste; and by what process is each kind obtained? 225.

7. What is a writ of estrepement; when may it now be had; by virtue of it what may the sheriff do if the writ be directed to him; and what is the consequence of its being directed to the tenant himself? 225-227.

8. Besides this preventive redress at common law, what will the courts of equity do upon bill exhibited therein? 227.

9. What is a writ of waste; and by and against whom may it be brought? 227.

10. Why is this action also maintainable, in pursuance of the statute Westminster 2, by one tenant in common or Joint tenant of the inheritance against another who makes waste in the estate holden in common or joint tenancy, but not by one coparcener against another? 227.

11. Wherein is the action of waste a real action; and what shall be recovered if the waste be proved? 228.

12. What if the defendant in the action make default in appearance to the writ; and what if he ■uffer judgment to go against him by default or upon a nihil dieit t 228.

CHAP. XV.—Of Subtraction.

1. What is subtraction; and wherein does it differ from disseisin t 230.

2. Of what two kinds are the rents or other services the subtraction of which varies the remedy in the same degree? 230.

8. What are duties and services usually issuing

and arising ratione tenures; and what is the ge neral remedy for their subtraction t 231.

4. What is called a distress infinite; and when may it be taken? 281.

6. What five other remedies for subtraction of rents or services are there? 231-233.

6. What is the effect of the writ de consuetudinibus el servitHs f 232.

7. What is the writ of cessavit; and when, by the statute of Glocester, does it not lie? 232, 233.

8. What is a writ of right sur disclaimer t 233, 234.

9. But what two writs has the law given the tenant to remedy the oppression of the lordt 234.

10. What is the writ ne injustc vexes; and where does it lie? 234.

11. What is writ of mesne de medio; and where does it lie? 234.

12. What are services due by ancient custom and prescription; and what are the remedies for their subtraction f 235.

CHAP. XVI.—Of Disturbance.

1. WHATis disturbance; and of what five sorts?


2. When does disturbance of franchises happen | and what are its remedies? 236, 237.

3. What are the three Bpecies of disturbance of common f 287, 240.

4. When does the first species of disturbance of common happen; and what are its remedies? 237.

5. What is surcharging a common; and when can it happen? 237, 238.

6. What are the usual remedies for surcharging a common t 288.

7. What is a writ of admeasurement of pasture; where does it lie; who is entitled to it; to whom is it directed; and how must it be executed? 238, 239.

8. What if, after the admeasurement have ascertained the right, the same defendant surcharges the common again? 239.

9. What is disturbance of common by enclosure or obstruction; and what are its remedies? 240.

10. But are there not cases in which the lord may enclose and abridge the common t 240, 241.

11. When does disturbance of ways happen; how is this species of injury distinguished from that of nuisance; and what is the remedy for it? 241, 242.

12. What is disturbance of tenure; and who has what remedy for it? 242.

18. What is disturbance of patronage; and how was it distinguished at common law from another species of injury, called usurpation T 242, 243.

14. How is the title of usurpation now narrowed; and upon what foundation stands the law of it? 244.

15. What three persons may be disturbers of a right of advowson; and to whom has the law given what three remedies for the disturbance 1 215.

16. When docs an assise of darrein presentment, or last presentation, lie; but why is it fallen into disuse? 245, 246.

17. What is a jus paironatus; and when must it be awarded? 246, 247.

18. What is (i duplex querela; and when may it be had? 247.

10. What is a writ of quart impidit; why, in the case of another presentation being set up, is it most advisable to bring it against the bishop, the patron, and the clerk too; and what does the writ command? 247, 248.

20. What is a writ of ne admittat; when may it be had; and what if the bithop, after the receipt of it, admit any person? 248.

21. In the proceedings upon a quart impedit, what must the plaintiff prove; and, upon failure of the plaintiff's proof, what must the defendant? 249.

22. But if the right be found for the plaintiff, what three further points are also to be inquired? 249.

23. If it be found that the plaintiff hath the right, and hath commenced his action in due time, then what judgment shall he have? 249,


24. But what if the church remain still void at the end of the suit? 260.

25. And what if the bishops do not admit the clerk upon this? 250.

26. What is the advantage of a writ of right of advowson over a writ of quart impedit? 250.

27. Why is there no limitation with regard to the time within which any thing touching advowsons are to be brought? 250, 251.

28. But is there not one species of presentation in which, by virtue of several acts of parliament, a remedy, to be sued for in the temporal courts, is put into the hands of the clerks presented as well as of the owners of the advowson; and with what powers particularly are the patrons clothed by the statutes of 12 Anne, st. 2, c. 14, { 4, and 11 Geo. II. c. 17? 251, 252.

29. But when the clerk is in full possession of the benefice, what possessory remedies does the law give him; and when is he entitled to a special remedy called a writ of juris utrum, or the parson's writ of right; but why is this remedy now of very little use? 262, 253.

CHAP. XVII.—Of Injuries proceeding from or affecting the Crown.

1. Of what two natures are injuries to which the crown is a party? 254.

2. What are the two common-law methods of obtaining possession or restitution from the crown of either real or personal property; and when may each be resorted to? 256, 257.

3. What are the six methods of redressing such injuries as the crown may receive from the tubjectl 257, 258, 260-262, 264.

4. What actiont cannot the king maintain? 267.

5. What is an inquisition, or inquest of office? 268-260.

6. What remedy may the subject have in order to avoid the possession of the crown acquired by the finding of such office, besides his petition of right and his monstrans de droit? 260.

7. By whom may a writ of scire facias to repeal the king's patent or grant be brought? 260, 261.

8. What is an information on behalf of the crown filed in the Exchequer; and of what two •orts are 'he mos usual informations t 261.

9. What is an information in rem? 262.

10. When does a writ of quo warranto He re. the king; and why has it given way to an information in the nature of such a writ? 262. 263.

11. To what is this proceeding now applied by virtue of the statute 9 Anne, c. 20? 264.

12. For what is the writ of mandamus made a most full and effectual remedy by the same statute, and by statute 11 Geo. I. c. 4; What are the proceedings on this writ; and what is a writ of restitution? 264, 266.

CHAP. XVIII.—Of the Pursuit of Remedies by Action; and, first, of the Original Writ.

1. What are the eight general and orderly parts of a suit in the court of common pleas? 272.

2. What is an original, or original writ; where is it sued out; and what and where is its return t 278.

8. What is the foundation of suits below the value of forty shillings? 278.

4. Of what two sorts are original writs; and where is re sort in use? 274.

5. What is the security given by the plaintiff for prosecuting his claim? 274, 276.

6. What and when is the return of each sort of writ? 276.

7. What is the origin of the terms; and what are they? 275-277.

8. What are days in bank, diet in banco? 277.

9. What is called the estoign day of the term t 277, 278.

10. What is the quarto die pott? 278.

CHAP. XIX.—Of Procett.

1. What is the process; and to distinguish it from what two other kinds is it called origina* procett? 279.

2. Of what nine sorts is original process f 279284, 287, 288, 290, 291.

3. What is the summons; and how is it made? 279, 280.

4. What is the writ of attachment or pone; and when is this the first and immediate process* 280.

5. What is the writ of distringas, or distress infinite? 280.

6. What is the writ of capias ad respondendum; and upon what species of complaint may it now be had by several statutes? 281, 282.

7. For what reason does the practice of commencing almost all actions by bringing an original writ of trespass quart elausum fregit, vi el armis, still continue? 281, 282.

8. Why are writs subsequent to the original writ called judicial writs? 282.

9. Is this regular and orderly method of process now gone through; or what is now usual in practice? 282.

10. When does a writ testatum capias issue; and what if the action be brought in one count* and the defendant live in another? 283.

11. But what if a defendant abscond and the plaintiff would proceed to an outlawry against him? 283.

12. What are alias and pluries writs, and writ* of erigtV, or exigi facias, and proclanutiov * 288. 284.

13 What is the effect of outlawry; what is ue writ of capiat utlegatum; and how may outlawry be reversed? 284.

14. What is the usual method of proceeding In the court of king't bench t 285.

15. What is the origin of the process of bill of Middlesex; why is it so called; and what is it? 285.

16. When does a mil of latitat issue; and when may the bill of Middlesex in the court of king't bench be treated like the capias ad respondendum in the court of common pleas T 286.

17. What is the first process in the court of ex-' chequer; and what does it allege? 286.

18. What is now become the effect of the ca- I pias, latitat, &c.; what if the defendant appear upon them; and what if he do not? 287.

19. But what if the plaintiff will make affidavit that the cause of action amounts to ten pounds or upwards; and what is required by statute 13 Car. II. st. 2, o. 2? 287.

20. What was the origin of the clause of ac etiam in a bill of Middlesex and writ of capias; and what is it? 288.

21. When, in an arrest, may the bailiff justify breaking open the house in which the defendant is, in order to take him? 288.

22. Who are constantly privileged from arrests and from outlawries; and how must an appearance be enforced against such persons? 288, 289.

23. Who are pro tempore privileged from arrests; and where can no arrest be made? 289.

24. What is the king's writ of protection; and what is enacted by the statute 25 Edw. III. st. 6, c. 19 as to the power of another creditor to proceed against a debtor of the king t 289, 290.

25. When may an arrest be made or process served upon a Sunday t 290.

26. What is special bail to the sheriff, or bail below; and what if the sheriff do not keep the defendant so as to be forthcoming in court f 290.

27. For what sum shall the sheriff take bail, by statute 12 Geo. I. c. 29? 290.

28. What is bail to the action, or above; and what may the plaintiff require of the sheriff if this be not put in? 290, 291.

29. Before whom must the bail above enter into whnt recognizance; and what if they be excepted to? 291.

30. II ow may special bail at all times be discharged f 292.

31. When is special bail only as of course required; and when by a judge's order or the particular directions of the court? 292.

32. When only is special bail demandable in actions against heirs, executors, and administrators t •192.

CHAP. XX.—Of Pleading.

1. What are pleadings; and of what four kinds? 293, 296, 299, 309.

2. What is the declaration, narratio, or count t 298.

8. In what actions must the plaintiff lay his declaration, or declare his injury to have happened, in the very county and place where it did really happen; and in what may he declare in what county he pleases? 294.

4. When will the court direct a change of the venue or visne, (that is. the vicinia or neighbour

hood in which the injury is declared to be done)! 294.

6. What are different counts in the same declaration; and for what purpose are they designed T 295.

6. What was anciently understood by the word tuitt 296.

7. When is a nonsuit, or non prosequitur, catered: and to what is that plaintiff liable whe in non pros'd 1 295, 296.

8. What is a retraxit; and how does it diffsr from a nonsuit t 296.

9. What is a discontinuance; and what dsee the statute 1 Edw. VI. c. 7 enact as to discotf tinuancet 296.

10. What is a defence, in its true legal sense t 296, 297.

11. What is cognizance of the suit; and when must it be claimed? 298.

12. What is an imparlance; and when is the defendant entitled to how many imparlance! 1 299.

13. What is a view; and when may n be demanded? 299.

14. What is o\cr; and of what may it be craved? 299.

15. What is praying in aid; what is voucher, and when is it not allowed; and what is a writ of warrantia chartte 1 299, 800.

16. What is praying age; and when shall it not be had? 800, 301.

17. Of what two sorts are pleat; and when cannot pleat of the former sort be pleaded? 301.

18. Of what three kinds are dilatory pleat t 801, 802.

19. What effect upon a suit hath the death of one of the parties; and when can it be revived either by or against the executors or other representatives of the deceased party t 302.

20. What, by the statute 4 & 5 Anne, c. 16, U essential to the admission of a dilatory pica; what is a rule as to the admission of exceptions against a declaration or writ; and in what suit shall no abatement take place, by statute 8 & 9 W. III. c. 81? 802.

21. To what three things does each of these kinds of dilatory pleat conclude? 803.

22. What if these dilatory pleat be allowed; and what if they be overruled f 803.

23. In what two ways is a plea to the action made? 303.

24. In what instance is confession of the whole complaint made in a plea lo the action t 803.

25. What is the effect of a plea of tender by the debtor and refusal by the creditor t 303.

26. In what two instances is one part of the complaint confessed and the rest traversed or denied} 304.

27. What is the effect of paying money into court; and upon what may it be done? 804.

28. What is a motion t 804.

29. Of what two kinds are pleat that totally deny the cause of complaint t 305.

80. What is the general issue or general pita t 305.

31. What is an issue in law? 305.

32. May special matter be given in evidence upon a plea of general issue f 305, 306.

33. What are special pleas in bar of the plaintiffs demand? 306.

34. What are the times limited by the sever*} statutes of limitation beyond which no plaintiff can lay his cause of action? 306, 307.

35. What is an estoppel 1 308.

36. What are the five conditions and qualities Of & pleat 308.

37. What if the defendant in an assise or action of trespass be desirous to refer the validity of his title to the court rather than the jury} 809.

38. When and what may the plaintiff reply to the defendant's plea; what is a traverse of it; what a new or novel assignment; and what a confession and avoidance f 309-311.

89. What are the remaining processes of pleading} 310.

40. What is called a departure in pleading t 810.

41. What is called duplicity in pleading; and what a protestation; and how hath Sir Edward Coke defined the latter? 311, 312.

42. In any stage of the pleadings, when either side advances or affirms any new matter, in what language does he aver it to be true; and in what different language do the plaintiff and the defendant tender an issue when either side traverses or denies the facts pleaded by his antagonist? 318.

43. But what if either side plead a special negative plea, not traversing or denying any thing that was before alleged, but disclosing some new negative matter? 813.

CHAP. XXI.—Of Issue and Demurrer.

1. What is issue, exitus; and upon what two matters? 314.

2. What is an issue upon matter of law called? 814.

3. What is a demurrer; and, in case of exceptions to the form or manner of pleading, what must the party demurring do, by statutes 27 Eliz. o. 6, and 4 & 5 Anne, c. 16? 814, 315.

4. Upon either a general or a special demurrer, what must the opposite party do in order to put the parties at issue in point of law; and who must determine that issue f 815.

5. What is an issue of fact; when is it joined; and what is the principal method by which it must be determined? 815.

6. What is continuance; what if the omission be on the part of the plaintiff; and what if it be on the part of the defendant} 316.

7. What is a plea puis darrein continuance; what is its effect; and when iB it not allowed to be put in? 316, 317.

8. What are paper-books; and what is the record} 317.

CHAP. XXII.—Of the several Species of Trial.

1. What iB trial; and what are the seven ■pecies of trial in civil cases? 330.

2. In what particular instance is trial by record used; what is it; and what may it try } 830, 331.

3. What is trial by inspection or examination; and when shall it be had? 331-833.

4. What is trial by certificate; and in what six cases shall it be had recourse to? 333-886.

6. What is trial by witnesses, per testes; and when only is it allowed in our law } 336. 6. What is trial by wager of battel, vadiatio du

elli; in what cases was it used; what is the form of it; and by what has it been superseded?


7. What is trial by wager of law, vadiatio legis, what is the manner of waging law; in what oetions only is the defendant admitted to wage hit law; who shall not be permitted to wage law; and how has this species of trial become obso lete? 841-348.

CHAP. XXIIL—Of Trial by Jury.

1. Of what antiquity is trial by jury, called also trial per pais or Ay the country; and what does magna carta declare concerning it? 349,


2. Of what two kinds are trials by jury in civil causes? 351.

3. What is the first species of extraordinary trial by jury} 351.

4. What is another species of extraordinary jury} 351.

5. What are the eight processes of the ordinary trial by jury } 352, 356-358, 864, 365, 867, 376.

6. What is the writ of venire facias; and when and where must the sheriff return it by virtue of the statute 42 Edw. III. c. 11? 852, 853.

7. What are called issuable terms, and why; and what is the sheriff's panel} 358.

8. What, in the common pleas, is called a writ of habeas corpora juratorum, and, in the king's bench, a distringas; and what is the entry on the roll, or record} 354.

9. What if the sheriff be not an indifferent person; and who are called elisors, or electors t 354, 855.

10. What if, on the general day of trials, ih» plaintiff do not enter the record? 356.

11. What is called the trial by proviso; bat why hath this practice begun to be disused since the statute 14 Geo. II. c. 17? 856, 357.

12. In case the plaintiff intend to try the cause, what notice of trial is he bound to give the defendant; and what if the plaintiff then change his mind and do not countermand the notice how many days before the trial? 357.

13. How may the trial be deferred, however, by either party? 357.

14. To whom does the sheriff return his trr* of habeas corpora, or distringas, with what annexed? 357.

16. Of what two sorts are jurors} 367.

16. What is the sheriff's duty upon motam in court and a rule granted thereupon for a special jury; and how and by whom is it struck} 357, 358.

17. By the statute 8 Geo. II. c. 25, who U entitled to have a special jury struck upon what trial; and, by statute 24 Geo. II. c. 18, when shall the expense of a special jury not fall upon the party requiring it? 858.

18. What is a common jury; and what are the directions of the statute 8 Geo. II c. 25 concerning it? 368.

19. What is a view; and how and by whoa shall it be appointed? 358.

20. Of what two sorts are challenges of jvrortl 368.

21. What are challenges to the array; ana upon what accounts may they be made? 866


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