ANALYSIS. BOOK III.-OF PRIVATE WRONGS. CHAPTER I. UT THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES.... Page 2 to 16 1. Wrongs are the privation of right; and are, I. Private. II. Public 2. Private wrongs, or civil injuries, are an infringement, or privation, of the civil rights of individuals, considered as individuals..... 3. The redress of civil injuries is one principal object of the laws of England........ 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..... 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.................................. ....................... 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 2 2 3 3 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..3-15 7. Of the second sort are, I. Accord. II. Arbitration...... CHAPTER II. 15-16 OF REDRESS BY THE MERE OPERATION OF LAW........... .18 to 21 1 Redress, effected by the mere operation of law, is, I. In case of retainer; where a sreditor 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 possession.... ..18-21 CHAPTER III. .22 to 25 OF COURTS IN GENERAL..... I 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 2. 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..... B. A court is a place wherein justice is judicially administered, by officers delegated by the crown: being a court either of record, or not of record...... 23 ..23-24 .................. 30 30 OF COURTS ECCLESIASTICAL, MILITARY, AND MARITIME. 6-69 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 curt of Review....... ...62-68 2. The only permanent military court is that of chivalry; the courts-martial annually established by act of parliament being only temporary... ........... mote, and justice-seat. II. The court of 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 Unirersities....... .Page 71-85 CHAPTER VII. OF THE COGNIZANCE OF PRIVATE WRONGS.... 85 to 114 1. All private wrongs or civil injuries are cognizable either in the courts ecclesiastical, military, maritime, or those of common law... ......... 86 87-88 2. Injuries cognizable in the ecclesiastical corts are, I. Pecuniary. II. Matrimonial. III. Testamentary.. 8 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, &c.; and non-payment of church-rates. Remedy: by suit to compel them..... 4. Matrimonial injuries are, I. Jactitation of marriage. Remedy: by suit for perpetual silence. II. Subtraction of conjugal rights. Remedy: by suit for restiution. III. Inability for the marriage state. Remedy: by suit for divorce. IV. Refusal of decent maintenance to ..88-92 the wife. Remedy: by suit for ali mony ...92-95 5. 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 pay95-98 ment............... . 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 significavit or de 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 method..... ....103-106 ............ 115 115 116 3. 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..... 4. The instruments by which these remeIdies 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 5. 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.......118-118 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...... 119 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..... 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 armis, for damages.. 9. Injuries to health, by any unwholesome practices, are remedied by a special action of trespass on the case, for damages. 119 120 122 ...... 10. Injuries 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. The sole injury to personal liberty is false imprisonment. Remedies: Ì. By writ of, 1st, mainprize; 2dly, odio et atia; 3dly, homine replegiando; 4thly, habeas corpus; to remove the wrong. II. By action of trespass; to recover damages .127-138 12. For injuries to private property, see the next chapter. 13. Injuries to relative rights affect, I. Husbands. II. Parents. III. Guardians. IV. Masters........ 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 Jamages ...... 138 139 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 custodiis, raptis vel abductis; 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 servitium amisit; for damages.. CHAPTER IX. .142-143 ......... ............... 158 damages; by action on the case, for trover and conversion........ ........... Page 51 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... 8. Injuries to personal property, in action, arise by breach of contracts, I. Express. II. Implied.... 184 9. Breaches of express contracts are, I. By non-payment of debts. Remedy: 1st, specific payment; recoverable by action 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 such 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 tam action,) to compel the specific payment; or sometimes by action on the case, for damages...... ....................... 159-162 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. 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 .162-166 CHAPTER X. ......... .Page 167 4 Abatement is the entry of a stranger, ........ 169 6 Disseisin is a wrongful putting out of him that is seised of the freehold........... 169 Discontinuance is where tenant in tail, or the husband of tenant in fee, makes a larger estate of the land than the law alloweth....... ⚫ Deforcement is any other detainer of the 171 172 174 179 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........ 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 cui, and the post...... 180 13. An assise is a real action, which proves the title of the demandant, by showing his own, or his ancestor's, possession. And may be brought either to remedy abatements; viz. the assise of mort d'ancestor, &c.: or to remedy recent disseisins; viz. 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 formedon. 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 deforceat. III. Where gained by recovery in a poscessory 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 ......190-197 the law........... 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 supposed) 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 ...... .200-200 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................... CHAPTER XII. 207 OF TRESPASS... 208 to 215 1. Trespass is an entry upon, and damage done to, another's lands, by one's self, r one's cattle; without any lawful author. ity, 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.. CHAPTER XIII. OF NUISANCE.......................... ......... 216 to 210 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........ 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 public ...................... 214 280 OF SUBTRACTION .230 to 235 1. Subtraction is when one who owes services to another withdraws or neglects to perform them. This may be, I. Of rents, and other services, due by tenure. II. Of those due by custom..... 2. For subtraction of rents and services due by tenure, the remedy is, I. By distress; to compel the payment, or performII. By action of debt. III. By assise. IV. By writ de consuetudinibus et servitiis; to compel the payment. V. By writ of cessavit; and, VI. By writ of right sur disclaimer-to recover the land itself.......... ance. 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... 6. Disturbance of tenure, by driving away tenants, is remedied by a special action on the case; for damages... 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........ 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..... 9. The remedies are, I. By assise of darrein presentment; II. By writ of quare impedit -to compel institution and recover damages: consequent to which 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... .231-2341. CHAPTER XVII. 241 242 242 244 OF INJURIES PROCEEDING from, or affECTING, THE CROWN. ........254 to 265 Injuries to which the crown is a party, are, I. Where the crown is the aggressor. II. Where the crown is the sufferer.. 2. The crown is the aggressor, whenever it is in possession of any property to which ..........254-255 the subject hath a right ...... 254 3. 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......255–257 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 |