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22. Where one party to the suit is an alien, of whom shall the jury consist; but what if both parties be aliens? 860.
23. What are challenges to the polls, in capita: and to what four heads are they reduced by Sir Edward Coke? 361.
24. Can judges and justicesbe challenged? 861.
25. What is a writ de ventre inspiciendo? 862.
26. What, by a variety of statutes, is a disqualification for juror in point of estate; but what when the jury is de medietate lingtuct 362, 368.
27. Of what two sortB is a challenge propter affectum, for suspicion of bias or partiality; what if the causes of challenge of the first sort be true; and to whom is it given to try the validity of challenge* of the second sort? 863.
28. With regard to what causes of challenge may a juror himself be examined on oath of voir dire, veritatem dicere? 864.
29. Who are excused from serving on juries? 864.
30. Who may pray a tales, and what is it; and for this purpose when must a writ of decern tales, octo tales, and the like, still be issued to the sheriff; but, by virtue of the statute 85 Hen. VIII. c. 16, when may the judge award a tales de circumstantibus; and what is it? 364, 865.
31. To what are the jurors sworn? 365.
32. What is the course of proceeding upon the trial? 366, 367.
33. What is the definition of evidence t 867.
34. Of what two kinds is evidence in the trial by jury? 367.
35. Of what two sorts are proofs? 367.
36. What two written proofs or evidence prove themselves; and what are the other two; and how must they be verified? 867, 368.
37. What is one general rule of evidence that runs through all the doctrine of trials; and upon what principle is hearsay evidence in general not admitted? 868.
38. To what transactions does the statute 7 Jac. I. c. 12 confine the admission of books of account to be read in evidence if the servant who was accustomed to make the entries in it be dead and his handwriting proved? 368, 369.
3k What is the writ of subpoena ad testificandum ; but when is no witness bound to appear or to give evidence? 869.
40. Who are competent witnesses t 869, 870.
41. How many witnesses are sufficient evidence of any single fact? 870.
42. When is positive proof required; and when is circumstantial or presumptive evidence admitted? 871.
ii. What weight have severally violent presumption, probable presumption, and tight presump
44. Need the witness tell all he knows of the matter in question, whether interrogated to every f iint or not? 372.
45. What if the judge, either in his directions or decisions, misstate the laws, by ignorance, inadvertence, or design? 372.
40. What is a demurrer to evidence; and by whom shall it be determined? 372.
47. But what practice has greatly superseded the recourse to either of these last proceedings? 873.
48. What are the advantages of testimony ore Unas f 873.
Vol. II. — 44
49. What is the modern doctrine as to such evidence as the jury may have in their own con sciences by their private knowledge of facts'
50. What is the summing up of the evidence by the judge? 876.
61. How is the delivery of the jury's verdict, veredictum, accelerated; and what if the jurors eat or drink at all, or have any eatables about them, without consent of the court t 376.
52. What circumstances will set aside the verdict? 876, 376.
53. What if the plaintiff do not appear to the verdict? 376.
54. What is the form of a voluntary nonsuit; and why is it more eligible for the plaintiff than a verdict against him? 376, 877.
55. Of what two kindB is a verdict and when is a verdict of the first kind of no force? 877.
66. What have the jury also to do if they find issue for the plaintiff? 877.
57. What is a special verdict; and by whom ij it afterwards determined? 877.
58. What is another method of finding a species of special verdict: and what advantage hat this over the other kind of special verdict? 378.
69. In both these cases, must the jury return a special verdict; and are they incompetent to decide the complicated question of fact and law? 878.
60. What are the four principal defects incident to a trial by jury? 382, 888.
61. What is a subpoena duces tecum? 382.
CHAP. XXIV.—Of Judgment and Us Incidents.
1. What is apostea? 886.
2. What is judgment; and till when and till what can it not be entered? 886, 887.
8. What are causes of suspending the judgment by granting a new trial? 387.
4. What if two juries agree in the same or a similar verdict? 887.
5. What is a new .Hal; upon what proceed ings is it granted; and where is it not granted? 391, 392.
6. How has the court, in granting a new trial, an opportunity of supplying the defects in the trial by jury; and within what time must the motion for a new trial be made? 892.
7. From what causes do arrests of judgment arise? 893.
8. What is an invariable rule with regard to arrests of judgment upon matter of law; and will this rule hold e converso? 394.
9. What is a repleader quod partes replacitent; and when will the court award it? 895.
10. What is judgment; and of what four sorts? 896, 396?
11. Whose determination and sentence is tha judgment; and what words constitute the style of the judgment? 896.
12. Of what two natures are all these foul species of judgments? 396.
13. What is judgment of respondeat ouster?
14. What are the interlocutory judgments moss usually spoken of; when only can they happen, when are they absolutely complete; and when, and for what purpose, muBt a jury be called in?
18. What is a warrant of attorney to eon/eat a Judgment; and what does the statute 4 & 5 W. and M. c. 20 reouire in order to its validity? 397, *98.
16. What is a torit of inquiry to assets damages t
17. What are final judgment*; and is the party against whom judgment is given liable to any fine to the king or imprisonment till that fine be paid?
16. Which party shall pay the costs of the suit t 899, 400.
19. Who are not liable to pay costs t 400.
20. What is enacted by statutes 43 Eliz. o. 6, 21 Jac. L c. 16, and 22 & 28 Car. II. c. 9, J 186, lo prevent trifling and malicious actions, for words, for assault and battery, and for trespass, with what two exceptions, by statutes 4 & 6 W. and M. c. 23 and 8 & 9 W. III. c. 11? 401.
21. What follows after judgment, unless what? 401.
CHAP. XXV.—Of Proceedings in the Nature of Appeals.
1. Or what four principal kinds are proceedings in the nature of appeals from the proceedings of the king's court of lawt 402, 405, 406.
2. What is a writ of attaint; when, at common law, must it be brought; and on what issue only does it not lie? 402-404.
3. What jury are to try this false verdict; what ure the qualifications of the jurors, by statute 16 Hen. VI. c. 5; and which party only is allowed lo produce new matter, and why? 404.
4. What was the judgment by the common law if the grand jury found the verdict a false one? 404.
5. But what was enacted by several statutes as to the time when an attaint may be brought, and as to the punishment of the attainted jurors t 405.
6. But what has superseded the use of attaints f 405.
7. What is the writ of deceit? 405.
8. What is an audita querela; and for what two persons does it lie? 405, 406.
9. But what has rendered this writ almost useless? 406.
10. But what is the principal method of redress for erroneous judgments in the King's courts of record f 406.
11. What is the writ to amend errors in a base court not of record 1 407.
12. Upon what matter only does a writ of error lie? 407.
13. Till when may the record be amended; and what is the effect of the statutes of amendment and jeofails? 407, 408.
14. What is required of him that brings the writ, if it be brought to reverse any judgment of an inferior court of record, where the damages are less than ten pounds, or if it be brought to reverse the judgment of any superior court after terdictf 410*.
15. From what courts lies the writ of error into the Icing's bench t 410*.
16. Whence lies the writ of error into the tourl of exchequer-chamber; and before whom? 410*.
17. Whence lies the writ of error in the house ■if perrs; and thence whence? 410*, 411*.
CHAP. XXVI.—Of Eztculion.
1. What is execution; and how is it performed I 412.
2. What are writ* of habere facias seisinam and habere facias possessionem; to whom are they di rected; what is justifiable in their execution .- and what is sufficient execution t 412.
3. What is a writ de elerico admiitendo; and is whom is it directed? 412.
4. When does a special writ of execution issue t» the sheriff 1 413.
6. What writ shall the plaintiff have where one part of the judgment is quod nocumenlum amoveatur; what is the writ of execution upon a replevin; what shall the defendant have if the distress be eloigned; and what shall the plaintiff have after judgment in detinue t 413.
6. Of what five sorts are execution* in action* where money only is recovered as a debt or damage*, and not any specific chattel f 414.
7. What is the writ of capias ad satisfaciendum; and against whom does it not lie'! 414, 415.
8. To whom shall the capias issue if an action be brought against a husband and wife for the debt of the wife when sole; and to whom if the action were brought against her before her marriage t 414.
9. What if judgment be recovered against a husband and wife for the contract or personal misbehaviour of the wife during her coverture t 414.
10. What exemption has the man who is taken in execution upon this writ; and what does the statute 21 Jac. I. c. 24 enact if the defendant die while charged in execution upon this writ i 414.
11. What executory process may be sued out for costs t 416.
12. What if, after a defendant is once in custody upon this process, he be seen at large? 416.
13. Of what two natures are escape*; and when shall the sheriff answer for the debt? 415
14. Will a rescue of a prisoner in execution ex cuse the sheriff 416.
15. But what does the statute 32 Geo. II. c 28 enact in favour of defendants charged in execution? 415, 416.
16. Yet what powers have creditors over their debtors on the other hand? 416.
17. In what case may the plaintiff set out a writ of scire facias against the bail; and what is its effect? 416, 417.
18. What is a writ of fieri facias; against whom does it lie; what doors may be broken open in its execution; who must be first paid to what amount; and what further remedy has the plaintiff if part only of the debt be leittd on a> fieri facias t 417.
19. What is a writ of levari facia*; and by what is its use superseded? 417.
20. What is a writ in the nature of a 'evan or fieri facias, to levy the debt and damage de b»nit) ecclesiasticis; to whom is it directed; Id 1 by what is it followed? 418.
21. What is the writ of -elegit; what lanis arp not liable to be taken in execution upon a judgment; what in case of u debt to the kwg, by magna carta, c. 8; and in what case only can a capias ad satisfaciendum be had after an elegit f 418, 419.
22. What is an extent, or extendi facias; and apon what prosecutions may it be had? 419, 420.
23. What, by statute, 33 Hen. VIII. c. 39, of ill obligations made to the king; and what lands of a debtor does the king's judgment, or that of my of his officers mentioned in the statute 13 F.liz. c. 4, affect more than the subject's? 420.
24. By the statute of frauds, 29 Car. II. 0. 8, from what day shall the judgment bind the land in t he hands of a bond fide purchaser ; and from what day shall the writ of execution bind the foods in the hands of a stranger or purchaser ? 421.
25 When the plaintiff's demand is satisfied, what ought to be entered on the record 421.
26 But within what time must all these writs Iis sued out? 421.
27. Yet, if this had not been the case, what will the court grant, in pursuance of statute Westminster 2,13 Edw. I. c. 45; or what other remedy has the plaintiff 421, 422.
CHAP. XXVII.—Of Proceedings in the Courts of Equity.
1. What four matters of equity are peculiar to the jurisdiction of the court of chancery? 426— 428.
2. When has the court of chancery a right to appoint a guardian; and whither lies the appeal in all proceedings relative thereto? 427.
3. How only can the proceedings to inquire whether or no the party be an idiot or lunatic be redressed if erroneous? 427.
4. On the other hand, doth not the jurisdiction of the court of chancery fail to extend to some causes wherein relief may be had in the court of exchequer and the duchy court of Lancaster? 428, 429.
5. What is equity in its true and genuine mean ing; and does equity differ from law? 429-436.
6. What are the five essential differences whereby the courts of equity are distinguished from the courts of law 436.
7. What does a court of equity, in the way of proof, when facts or their leading circumstances rest only in the knowledge of the party; and, for want of this discovery at law, in what matters have the courts of equity acquired a concurrent jurisdiction with every other count, 437, 438.
8. What authority and jurisdiction have courts of equity in interrogatories administered to witnesses; and in what cases, on this account, do they exercise the same jurisdiction which might have been exercised at law? 438.
9. In what cases does the want of a more specific remedy then can be obtained in the courts of law give a concurrent jurisdiction to a court of equity? 438, 439.
10. What are the fifteen proceedings in the (courts of equity t 442—445.
11. What is a bill; what does it always pray; \nd when does it pray also an injunction f 442.
12. What if the bill do not call all necessary parties, however remotely interested, before the court; by whom must it be signed; and what if it contain ed either scandalous or impertinent? 442, 443.
18. Where must the bill be filed; and when will theeourf grant an injunction immediately ? 443.
14. What is the process of subpoena; and what if the defendant do not appear within the time limited by the rules of the court, and plead, demur, or answer to the bill? 448.
15. What are the respective processes of con- tempt, in their successive order; What if 'he afendant abscond; and what if he be taken * 444, 445.
16. What is the process against a corporate body; and what against a peer; and what against • member of the house of commons? 445.
17. What does the statute 6 Geo. II. c. 26 enact where the defendant cannot be found to be served with process of subpoena? 445.
18. What is a demurrer in equity? 446.
19. Of what three kinds are pleas; and may a defendant plead, demur, and answer too? 446.
20. Why are exceptions to formal minutiae in the pleadings in equity not allowed? 446.
21. What is an answer; when is it given upon oath, and when not; and when upon honour? 446.
22. Before whom must the defendant be sworn to his answer; by whom must the answer be signed; and wben may it be excepted to for insufficiency? 447, 448.
23. If the defendant have any relief to pray against the plaintiff, how must it be done? 448.
24. When may the plaintiff amend his bill; and when must he have recourse to a supplemental bill? 448.
M. What is a bill of revivor; and what a bill of interpleader; and what must be annexed to this last bill? 448.
26. What if the plaintiff chooses to proceed to the hearing of the cause upon bill and answer only? 448.
27. What is a replication; and how does the defendant join issue? 448, 449.
28. How and by whom are witnesses examined , of what nature must the interrogatories be; tc what are examiners and their clerks sworn; and how are they compellable to appear and submit to examination? 449.
29. What is a bill to perpetuate the testimony of witnesses? 450.
80. When may a rule to pass publication of witnesses be had? 450.
31. By whom and before whom may the cause be set down for a hearing? 450.
82. What if the plaintiff do not attend upon subpoena to hear judgment; and what if the defendant? 451.
33. When may a plaintiff's bill be dismissed for want of prosecution? 451.
M. What is the method of hearing causes in court? 451.
85. Of what two natures is the chancellor's decree? 452.
36. When does the court of chancery direct a feigned issue to be tried at the bar of the court of king's bench, or at the assizes ; and what is the fiction? 452.
37. What does the court refer to the opinion of the courts of king's bench or common pleas, upon a case stated; and what is done there in consequence? 452, 453.
38. What are referred by the decree, on the first hearing, to a master in chancery; and what is done by him in consequence? 458.
89. To what is the master's report liable? 453. 40. When and upon what is % final deerm made, and how U its performance enforced? 463.
41. Who may petition for a re-hearing; by whom must such petition be signed; what evidence is now admitted; and what may be supplied? 453, 454.
42. But, after the decree is once signed an>: enrolled, how only can it be rectified? 454.
48. When may a bill of review be had? 454.
44. How is an appeal to the house of lord* effected; and what evidence only is admitted then • 454, 455.
BOOK IV.-OF PUBLIC WRONGS.
tytfAP. I.—Of the Nature of Crimet, and their Punishment.
1. What are the six considerations in treating f public wrongs, or crimes and misdemeanours 1
2. Why is the code of criminal law with us in England denominated the doctrine of the pleas of the crown t 2.
8. From what circumstances have the defects and disproportions in our criminal code arisen? 8, 4.
4. What is a crime or misdemeanour; and how has common usage distinguished the one from the other? 5.
5. In what does the distinction of public wrongs from private, of crimes and misdemeanours from civil injuries, principally consist? 6.
6. Which includes the other? 6.
7. In what crimes why cannot satisfaction be made both to the individual and the community? and in what how may it? 6, 7.
8. What double view, then, has the law in taking cognizance of all wrongs or unlawful acts? 7.
9. What are punishments f 7.
10. In whom was the right of punishing crimes against the law of nature vested by that law? 7, 8.
11. What right has the temporal legislator to inflict discretionary penalties for crimes against the law of nature, or mala in se f 7, 8.
12. What right has he to inflict punishment for offences against the laws of society, or mala prohibitat 8.
13. When only is a legislature warranted in inflicting the punishment of death for offences of human institution? 9, 10.
14. Is it found by experience that capital punishments are more effectual in preventing crime* than lighter penalties? 10.
15. What is the end or final cause of human punishment f 11.
16. In what three ways is the end of human punishment effected? 11, 12.
17. By what must the measure of human punishment be determined? 12.
18. Why is not the lex talionis, or law of retaliation, in all cases an adequate or permanent rule of punishment t 12, 18.
19. Does the punishment of death with death proceed upon the principle of retaliation? 13, 14.
20. In what class of crimes is the lex talionis more proper to be inflicted than in any other; and, upon this principle, what was enacted by statute 17 Edw. III. c. 18; and how long was this the law? 14.
21. What are some general principles drawn from the nature and circumstances of the crime
that may be of some assistance in allotting It aa adequate punishment 1 15, 16, 17.
22. Why is treason in conspiring the Jdngi death punished with greater rigour than evea actually killing any private subject t 15.
23. Why, generally, is a design to transgress not so flagrant an enormity as the actual completion of that design; and why then, in the. case of a treasonable conspiracy, will the bare intention to kill the king deserve the highest da gree of severity? 15.
24. Why is it in more cases capital for a servant to rob his master than for a stranger; what greater crime is it for a servant to kill hii master than in another; why is it capital to steal above the value of twelvepence privately from one's person, and only transportation to carry off a load of corn from an open field; and why, in the island of Man, was it formerly only trespaa to take away a horse or an ox, and capital misdemeanour to steal a pig or a fowl? 16.
25. What is the sentiment of the Marquis Beccaria as to severity of punishment t 17.
26. What does a multitude of sanguinary laws argue in a government? 17.
27. What is the evil of making no distinction in the nature and gradations of punishment t 18.
28. How many offences have been declared by act of parliament felonies without benefit of clergy; and why does so large a list, instead of diminish ing, increase the number of offenders t 18, 19.
CHAP. II.—Of the Persons capable of committing Crimes.
1. To what single consideration may all the several pleas and excuses which protect the com mitter of a forbidden act from the punishment which is otherwise annexed thereto be reduced? 20.
2. What two things must there be to constitute a crime against human laws? 21.
3. In what three cases does not the will join with actt 21.
4. What four species of defect in will fall under the first of these general neads; what two under the second; and what two under the third? 21, 22.
5. In what cases does the law privilege an mfant under the age of twenty-one years; and ii what under the age of fourteen only? 22.
6. By what is the capacity of doing ill measured, as the law has stood since the time of Edward the Third? 23.
7. At what age may an infant be guilty of felony; and though prima facie an infant shall be adjudged to be doli incapax under fourteen, yet with what proviso may he be convicted and suffer death under that aee? 23. 24.
8 What is the rule of law as to lunatics which ma; oc easily adapted also to idiots t 24.
9 If a man in his sound memory commit an offence, and before arraignment for it he become mad, why shall n^t he be arraigned for it; if after he have pleaaed he becomes mad, why shall he not be tried; if after he be tried and found guilty, why shall not judgment be pronounced; and if after judgment, why shall execution be stayed? 24.
10. But what if there be any doubt whother the parly be compos or not; and what if a lunatic have lucid intervals of understanding? 25.
11. How may madmen be restrained from going loose? 25.
12. Does drunkenness excuse a crime? 25, 26.
13. When is a man who commits an unlawful act by misfortune or chance excused from all guilt! 26, 27.
14. What ignorance or mistake excuses crime? 27.
15. What are the three species of necessity or compulsion which excuse crime? 28, 30.
16. When only is the constraint of a superior in a private relation allowed as an excuse for what crimes? 28, 29.
17. Why shall no plea of coverture, or presumption of the husband's coercion, excuse the wife in case of treason? 29.
18. In what one offence may a wife be indicted and set in the pillory with her husband; and why? 29.
19. For what offences only is duress per minas an excuse? 30.
20. If a man be violently assaulted, and have no other possible means of escaping death but by killing an innocent person, whom may he kill? 30.
21. Where a man by the commandment of the law is bound to arrest another for any capital offence, or to disperse a riot, and resistance is made to his authority, whom may he even kill, and why? 81.
22. May a man in extreme want of food or clothing justify stealing either to relieve his present necessities? 31, 82.
23. What one case is there in which the law ■apposes an incapacity of doing wrongs from the excellence and perfection of the person t 32, 83.
CHAP. III.—Of Principals and Accessories.
1. What are the two different degrees of guilt among persons that are capable of offending? 34.
2. In wh8t two degrees may a man be principal in an offence? 84.
3. Must the principal in the second degree be actually immediately standing by, withir sight or hearing of the fact? 34.
4. In cases of murder committed in the absence of the murderer by means which he had prepared beforehand, is the murderer principal in the first or second degree, or accessory; and why? 34, 85.
6. Who is an accessory; and of what two kinds are accessories f 35.
6. Why are all principals in high treason t 85.
7. In what crimes may there be accessories t 86.
8. Why are all principals in petit larceny, ard in all crimes under the degree of felony? 30.
9. If a servant instigate a stranger to kill nil master, is he guilty of being accessory to petty treason t 36.
10. Who is an accessory before the faett 36, 87.
11. If A. oommand B. to beat C, and B. beat him so that he die, is A. accessory to the murder t 87.
12. If A. command B. to burn C.'s house, and he, in so doing, commit a robbery, is A. accessory to the robbery f 87.
18. If A. command B. to poison C, and B. stab or shoot him, is A. accessory to the murder t 87.
14. Who is an accessory after the fact; and what two things are necessary 10 make one? 37, 88.
15. Does the relief of a felon in gaol, with clothes or other necessaries, make a man an accessory after the fact / 88.
16. Who are made accessories (when the principal felony admits of accessories) by the statutes 6 Anne, c. 31, and 4 Geo. I. o. 11? 88.
17. What if one wound another mortally, and, before death ensue, a person assist or receive the delinquent? 38.
18. What if the parent assist or receive the child, the child the parent, the brother the brother, the master the servant, the servant the master, the husband the wife, or the wife the husband, who have any of them committed a felony f 38, 39.
19. How are accessories to be treated, considered distinct from principals t 39.
20. For what four reasons, then, are such elaborate distinctions made between accessories and principals t 39, 40.
21. In what cases are accessories after the fait, by the statutes, still allowed the benefit of clergy; and in what cases is that benefit of clergy denied to the principals and accessories before the fact t 89.
22. Is an acquittal of receiving or counselling a felon an acquittal of the felony itself? 40.
23. Can one acquitted as principal be indicted as an accessory either before or after the fact t 40.
CHAP. IV.—Of Offences against Ood and Rt
1. Of what five species are crimes and mtsdt meanours which are either directly or by consequence injurious to ami society and therefore punishable by the laws of England? 42, 43.
2. Of such crimes and misdemeanours as more immediately offend Almighty God by openly transgressing the precepts of religion either natural or revealed, what constitutes that guilt in action which human tribunals are to censure? 43.
3. What eleven crimes are of this species? 43, 44, 50, 59, 60, 62-64.
4. What is apostasy; and in whom only can it take place? 43.
5. As a penalty for apostasy, what is enacted by statute 9 & 10 W. III. o. 82? 44.
6. What is heresy; what was the writ it haretico comburendo; what did the statute 29 Car. II. enact as to heresy; and, as a penalty for heresy, what is enacted by the statute 9 & 10 W. III.? 44-46, 49, 60.
7. Of what two kinds are the offences against religion which affect the established church t 50