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ANALYSIS.

BOOK III.-OF PRIVATE WRONGS.

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2

CHAPTER I.

4. Incident to all courts are, a plaintiff, de UT THE REDRESS OF PRIVATE WRONGS BY

fendant, and judge: and with us, there TUE MERE ACT OF THE PARTIES.... Page 2 to 16

are also usually attorneys, and advocates

or counsel, viz., either barristers, or ser1. Wrongs are the privation of right; and are, I. Private. II. Public ...

2
jeants at law......

Page 26 2. Private wrongs, or civil injuries, are an

CHAPTER IV. infringement, or privation, of the civil

OF THE PUBLIC COURTS OF COMMON LAW rights of individuals, considered as individuals ........

AND EQUITY.......

.30 to 60 3. The redress of civil injuries is one prin

1. Courts of justice, with regard to their cipal object of the laws of England........ 3

several species, are, I. Of a public 4. This redress is effected, I. By the mere act

or general jurisdiction throughout the of the parties. II. By the mere operation

realm. II. Of a private or special jurisdiction ...

80 of law. III. By both together, or suit in courts..

3

2. Public courts of justice are, I. The courts 6. Redress by the mere act of the parties

of common law and equity. II. The ecis that which arises, I. From the sole act

clesiastical courts. III. The military

courts. IV. The maritime courts .......... 30 of the party injured. II. From the joint act of all the parties........

3

3. The general and public courts of com6. Of the first sort are, I. Defence of one's

mon law and equity are, I. The court of self, or relations. II. Recaption of goods.

piepoudre. II. The court-baron. III. III. Entry on lands and tenements.

IV. The county IV.

The hundred court.

court. Abatement of nuisances. V. Distress

V. The court of Common Pleas. for rent, for suit or service, for amerce

VI. The court of King's Bench. VII.

The court of Exchequer. VIII. The ments, for damage, or for divers statutable penalties,-made of such things only

court of Chaucery. (Which two last are as are legally distrainable; and taken

courts of equity as well as law.) IX. and disposed of according to the due

The courts of Exchequer-Chamber. X.

The house of Peers. To which may be course of law. VI. Seizing of heriots, &c..3-15 7. Of the second sort are, I. Accord. II.

added, as auxiliaries, XI. The courts of Arbitration.....................

Assize and Nisi Prius

.35 l 15-16 CHAPTER II.

CHAPTER V. OF REDRESS BY THE MERE OPERATION OF

Or Courts EccLESIASTICAL, MILITARY, AND Law.......

.18 to 21
MARITIME.

.0.-hp 1 Redress, effected by the mere operation

1. Ecclesiastical courts, (which were sepaof law, is, I. In case of retainer; where a rated from the temporal by William the creditor is executor or administrator, and Conqueror,) or courts Christian, are, I. is thereupon allowed to retain his own

The court of the Archdeacon. II. The debt. II. In the case of remitter; where court of the Bishop's Consistory. III. The one who has a good title to lands, &c.

court of Arches. IV. The court of Pecucomes into possession by a bad one, and

liars. V. The Prerogative Court. VI. is thereupon remitted to his ancient good

The court of Delegates. VII. The o urt title, which protects his ill-acquired pos

of Review....

.......62_66 deusion.......

.18-21 2. The only permanent military court is

that of chivalry; the courts-martial anCHAPTER III.

nually established by act of parliament Or COURTS IN GENERAL ..... 22 to 25 being only temporary..

88 I Redress that is effected by the act both 3. Maritime courts are, I. The court of Ad

of law and of the parties is by suit or miralty and Vice-Admiralty. II. The

action in the courts of justice........ 22 court of Delegates. III. The lords of the 2. Herein may be considered, I. The courts Privy Council, and others authorized by

themselves. II. The cognizance of wrongs, the king's commission, for appeals in or injuries, therein. And of courts, I. prize-causes............

68 Their nature and incidents. II. Their several species.......

23

CHAPTER VI. 8. A court is a place wherein justice is ju- Of Courts Of A SPECIAL JURISDICTION... 71 tu 86

..........

dicially administered, by officers dele- 1. Courts of a special or private jurisdicgated by the crown: being a court either tion are, I. The forest courts; including of record, or not of record ......

the courts of attachments, regard, swein

.........23-24

BOOKBINDING

QUALITY CONTROL MARK

ANALYSIS OF BOOK III.

are,

mote, and justice-seat. II. The court 8. Civil injuries cognizable in the courts of Commissioners of Sewers. III. The

maritime are injuries in their nature court of policies of assurance. IV. The of common-law cognizance, but arising coʻirt of the Marshalsea and the Palace wholly upon the sea, and not within the Court. V. The courts of the principality precincts of any county. The proceedof Wales. VI. The court of the duchy

ings are herein also much conformed to chamber of Lancaster. VII. The courts the civil law ........

.Page 106-109 of the counties palatine, and other royal 9. All other injuries are cognizable only franchises. VIII. The stannary courts. in the courts of common law: of which IX. The courts of London, and other in the remainder of this book..... ...... 109-114 corporations :—to which may be referred 10. Two of them however, cogthe courts of requests, or courts of con

nizable by these, and other, inferior science; and the modern regulations courts; viz. I. Refugal, or neglect, of of certain courts-baron and county justice. Remedies: by writ of procecourts. X. The courts of the two Uni

dendo, or mandamus. II. Encroachment versities................. ........

..Page 71-85 of jurisdiction. Remedy: by writ of prohibition ....

.109-114 CHAPTER VII.

CHAPTER VIII. OF THE COGNIZANCE OF PRIVATE WRONGS....

85 to 114 OF WRONGS, AND THEIR REMEDIES, RESPECT1. All private wrongs or civil injuries are ING THE RIGHTS OF PERSONS.. 115 to 148 cognizable either in the courts ecclesias- 1. In treating of the cognizance of injuries tical, military, maritime, or those of by the courts of common law, may be common law..

86 considered, I. The injuries themselves, 2. Injuries cognizable in the ecclesiastical and their respective remedies. II. The

coʻirts are, I. Pecuniary. II. Matrimo- pursuits of those remedies in the several nial. III. Testamentary...... ....... 87-88 courts...

.... 116 8 Pecuniary injuries, here cognizable, are, 2. Injuries between subject and subject,

I. Subtraction of tithes. For which the cognizable by the courts of common remedy is by suit to compel their pay- law, are in general remedied by putting ment, or an equivalent; and also their the party injured into possession of double value.

II. Non-payment of ec- that right whereof he is unjustly declesiastical dues. Remedy: by suit for prived.

116 payroent. III. Spoliation. Remedy: by 3. This is effected, I. By delivery of the suit for restitution. IV. Dilapidations. thing detained to the rightful owner. Remedy: By suit for damages. v. Non- II. Where that remedy is either imrepair of the church, &c.; and non-pay- possible or inadequate, by giving the ment of church-rates.

Remedy: by suit party injured a satisfaction in dato compel them .....

.88-92
mages......

116 4. Matrimonial injuries are, I. Jactitation 4. The instruments by which these remeof marriage. Remedy: by suit for per- dies may be obtained are suits or acpetual silence. II. Subtraction of con- tions; which are defined to be the legal jugal rights. Remedy: by suit for resti- demand of one's right: and these are, 'ution. III. Inability for the marriage I. Personal. II. Real. III. Mixed... 116-118 state. Remedy: by suit for divorce. 5. Injuries (whereof some are with, others IV. Refusal of decent maintenance to without, force) are, I. Injuries to the Reinedy: by suit for ali- rights of persons. II. Injuries to the

.92-95 rights of property. And the former are, 6. Testamentary injuries are, I. Disputing I. Injuries to the absolute, II. Injuries

the validity of wills. Remedy: by suit to the relative, rights of persons....... 118-118 10 establish them. II. Obstructing of 6. The absolute rights of individuals are, administrations. Remedy: by suit for I. Personal security. II. Personal liberthe granting them. III. Subtraction of ty. III. Private property. (See Book I. legacies. Remedy: by suit for the pay. Ch. I.) To which the injuries must be .95-98 correspondent...

119 €. The course of proceedings herein is 7. Injuries to personal security are, I.

much conformed to the civil and canon Against a man's life. II. Against his law: but their only compulsive pro

limbs. III. Against his body. IV. cess is that of excommunication; which Against his health. V. Against his reis enforced by the temporal writ of putation.-The first must be referred to significavit or de excommunicato capien

the next book.....

119 do....

.98-103 8. Injuries to the limbs and body are, 7. Civil injuries, cognizable in the court I. Threats. II. Assault.

III. Battery military, or court of chivalry, are, I. IV. Wounding. V Mayhem. Remedy. Injuries in point of honour. Remedy: by action of trespass vi et armis, for by suit for honourable amends. 11. damages....

120 Encroachments in coat-armour,

&c. 9. Injuries to health, by any unwholeRemedy: by guit to

them.
some practices, are rer

died by a spaThe proceedings are in a summary

cial action of trespass on the case, for ....103-106 damages

122

the wife. mony

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case.

10. Injuries to reputation are, I. Slander

ous and inalicious words. Romedy: 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 gole injury to personal liberty

is false imprisonment. Remedies : I. By writ of, ist, 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....

138 14. Injuries to a husband are, I. Abduc

tion, 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...

139 15. The only injury to a parent or guar

dian, is the abduction of their childron, 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. Retain

ing 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......

..142-148

damages; by action on the case, for trover and conversion............

........ ..Page :61 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 trespase on the case, to redress consequential damage..

161 8. Injuries to personal property, in action,

arise by breach of contracts, I. Express. II. Implied.........

TEA 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

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.....

...........

.... 169-162 12. Breaches of contracts implied in reason

and construction of law are by the nonperformance of legal presumptive assumr 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 REAL PROPERTY;

FIRST OF 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.

Abaten ent. II. Intrusion. III. Dissei sin. IV. Discontinuance. V. Deforcement...

167

CHAPTER IX.

............................

OF 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 posses

sion are, I. By dispossession. II. By damage, while the owner remains in possession.....

145 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 unlawfu! takings, by action of trespass, or trover......

..145-151 6 Por the unlawful detaining of goods

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

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Abatement is the entry of a stranger, estates by statuie and elegil. II. From after the death of the ancestor, before the an estate for years.

.Page 198 heir ......

Page 167 | 2. Ouster from estates by statute or elegit 6 Intrusion is the entry of a stranger,

effected by a kind of disseisin. Remeafter a particular estate of freehold is dy: restitution, and damages; by assise determined, before himn in remainder or of novel disseisin. .........

198 reversion..........

169 3. Ouster from an estate for years is ef6 Disseisin is a wrongful putting out of fected by a like disseisin or ejectment.

him that is seised of the freehold........... 169 Remedy: restitution and damages; I. 1 Discontinuance is where tenant in tail, By writ of ejectione firmæ. II. By writ of or the husband of tenant in fee, makes a quare ejecit infra terminum .......

239 larger estate of the land than the law 4. A writ of ejectione firmæ, or action of tresalloweth ......

171 pass in ejectment, lieth where lands, &c., * Deforcement is any other detainer of the are let for a term of years and the lessee

freehold from him who hath the property, is ousted or ejected from his term; in but who never had the possession........ 172 which case he shall recover possession of The universal remedy for all these is re- his term, and damages...

198 stitution or delivery of possession, and, 5. This is now the usual method of trying sometimes, damages for the detention. titles to land, instead of an action real: This is effected, I. By mere entry. II. viz., by, I. The claimant's making an acBy action possessory.

III. By writ of tual (or supposed) lease upon the land to right..

174 the plaintiff. II. The plaintiff's actual 10. Mere entry on lands, by him who hath (or supposed) entry thereupon. III. His

the apparent right of possession, will (if actual (or supposed) ouster and ejectpeaceable) devest the mere possession of ment by the defendant. For which ina wrong-doer. But forcible entries are jury this action is brought, either against remedied by immediate restitution, to be the tenant, or (more usually) against

given by a justice of the peace ......... 175-179 some casual or fictitious ejector; in whose 11. Where the wrong-doer hath not only stead the tenant may be admitted de

mere possession, but also an apparent fendant, on condition that the lease, enright of possession ; this may be devested try, and ouster be confessed, and that by him who hath the actual right of pos- nothing else be disputed but the merits session, by means of the possessory ac- of the title claimed by the lessor of the tions of writ of entry, or assise. 179 plaintiff .....

.........200-200 12. A writ of entry is a real action, which 6. A writ of quare ejecit infra terminum is an

disproves the title of the tenant, by show- action of a similar nature; only not ing the unlawful means under which he brought against the wrong-doer or ejector gained or continues possession. And it himself, but such as are in possession may be brought, either against the wrong.

under his title ......

207 doer himself; or in the degrees called the per, the per and cui, and the post...... 180

CHAPTER XII. 13. An assise is a real action, which proves

OF TRESPASS......

208 to 216 the title of the demandant, by showing his own, or his ancestor's, possession.

1. Trespass is an entry upon, and damage And it may be brought either to remedy

done to, another's lands, by one's self, ir abatements; viz. the assise of mort d'an

one's cattle; without any lawful author. cestor, &c.: or to remedy recent disseisins;

ity, or cause of justification: which is viz. the assise of novel disseisin .........184–190

called a breach of his close. Remedy: 14. Where the wrong-doer hath gained the

damages; by action of trespass quare actual right of possession, he who hath

clausum fregit: besides that of distress the right of property can only be reme

damage feasant. But, unless the title to died by a writ of right, or some writ of a

the land come chiefly in question, or the As, I. Where such right

trespass was wilful or malicious, the of possession is gained by the discon

plaintiff (if the damages be under forty tinuance of tenant in tail. Remedy, for

shillings) shall recover no more costs he right of property: by writ of forme

than damages ...

................................ 208–211 don. II. Where gained by recovery in a possessory action, had against tenants of

CHAPTER XIII. particular estates by their own default. OF NUISANCE................................. 216 to 218 Remedy: by writ of quod ei deforceat. 1. Nuisance, or abnoyance, is any thing III. Where gained by recovery in a pos

that worketh damage, or inconvenience; dessory action, had upon the merits. IV. and it is either a public and common nuiWhere gained by the statute of limita- sance, of which in the next book; or, & tions. Remedy, in both cases: by a private nuisance, which is any thing done mere writ of right, the highest writ in to the hurt or annoyance of, I. The cor

.190–197 poreal, II. The incorporeal, hereditaments of another......

210 CHAPTER XI.

2. The remedies for a private nuisance Or DIS POSSESSION, OR OUSTER, OF CHAT

ides that of abatement) are, I.

.198 to 207 Damages ; by action on the case (which i Ouster from chattels real is, I. From also lies for special prejudice by a pablio

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the law.

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TELS REAL.

.........

Quisance.) II. Removal thereof, and or, writ of admeasurement of pasture; to lamages ; by assige of nuisance. III. apportion the common ;-and writ de se Like removal, and damages; by writ of cunda superoneratione ; for the supernsquod permittat prosternere

..... Page 219 merary cattle, and damages. III. Enclo

sure, or obstruction. Remedies : restiCHAPTER XIV.

tution of the common, and damages; by

assise of novel disseisin, and by writ of U. WASTE.....

............223 to 229

quod permittat: or, damages only; by 1. Waste is a spoil and destruction in lande action on the case.....

Page 237-248 and tenements, to the injury of him who

5. Disturbance of ways is the obstruction, hath, I. An immediate interest (as, by

I. Of a way in gross, by the owner of the right of common) in the lands. II. The

land. II. Of , way appendant, by a remainder or reversion of the inheritance 223

stranger. Remedy, for both : damages ; 3 The remedies, for a commoner, are, re- by action on the case.

241 Atitution, and damages; by assise of com- 6. Disturbance of tenure, by driving away mon: or, damages only; by action on the

tenants, is remedied by a special action case ......

224
on the case; for damages ......

242 8. The remedy for him in remainder, or 7. Disturbance of patronage is the binderreversion, is, I. Preventive: by writ of

ance of a patron to present his clerk to a estrepement at law, or injunction out of

benefice; whereof usurpation within six Chancery; to stay waste. II. Corrective:

months is now become a species ......... 242 by action of waste; to recover the place 8. Disturbers may be, I. The pseudo-patron, wasted, and damages...

.225-229

by his wrongful presentation. II. His

clerk, by demanding institution. III.
CHAPTER XV.
The ordinary, by refusing the clerk of

241 Or SUBTRACTION

the true patron...

............. 230 to 235 1. Subtraction is when one who owes ser

9. The remedies are, I. By assise of darrein vices to another withdraws or neglects

presentment; II. By writ of quare impedit to perform them. This may be, I. Of

-to compel institution and recover darents, and other services, due by tenure.

mages: consequent to which are the writs II. Of those due by custom.....

280

of quare incumbravit, and quare non ad2. For subtraction of rents and services

misit ; for subsequent damages. III. By due by tenure, the remedy is, I. By dis

writ of right of advowson; to compel

institution, or establish the permanent tress; to compel the payment, or perform

right....

.. 245-262 ance. II. By action of debt. III. By assise. IV. By writ de consuetudinibus et

CHAPTER XVII. servitiis ; to compel the payment. V. By writ of cessavit; and, VI. By writ of right

OF INJURIES PROCEEDING FROM, OR AFFECTsur disclaimer-to recover the land it

ING, THE CROWN..

.254 to 265 self........

231-234 | 1. Injuries to which the crown is a party, 8 To remedy the oppression of the lord,

are, I. Where the crown is the aggressor. the law has also given, I. The writ of ne

II. Where the crown is the sufferer.. injuste veres: II. The writ of mesne ...... 234 2. The crown is the aggressor, whenever it 4. For subtraction of services due by cus

is in possession of any property to which tom, the remedy is, I. By writ of secta

the subject hath a right ........254-255 ad molendinum, furnum, torrale, &c.; to

3. This is remedied, I. By petition of right; compel the performance, and recover

where the right is grounded on facts disdamages. II. By action on the case; for

closed in the petition itself. II. By mondamages only......

235 strans de droit; where the claim is ground

ed on facts already appearing on record. CHAPTER XVI.

The effect of both which is to remove the

hands (or possession) of the king ...... 255-257 Or DISTURBANCE.....

..236 to 252 4. Where the crown is the sufferer, the 1. Disturbance is the hindering or disquiet- king's remedies are, I. By such commoning the owners of an incorporeal heredita

law actions as are consistent with the ment, in their regular and lawful enjoy- royal dignity. II. By inquest of office, ment of it.......

to recover possession: which, when found, 2 Disturbances are, I. Of franchises. II. gives the king his right by solemn matter Of commons. HI!. Of ways.

...... 234

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236

IV. Of of record; but may afterwards be tratenure. V. Of patronage..

236 versed by the subject. III. By writ of 8. Disturbance of franchises is remedied scire facias, to repeal the king's patent or

by a special action on the case ; for da- grant. IV. By information of intrusion, mages.

236 to give damages for any trespass on the 1. Disturbance of common is, .. Intercom

lands of the crown; or of debt, to recover moning without right. Remedy: da- moneys due upon contract, or forfeited by mages; by an action on the case, or of the breach of any penal statute; or sometrespass : besides distress damage fea- times (in the latter case) by information sant; to compel satisfaction. II. Sur- in rem: all filed in the Exchequer ex officio charging the common. Remedies: dis

by the king's attorney-general. V. By tress damage feasant; to compel satisfac

writ of quo warranto, or information in tion: action on the case; for damages: the nature of such writ; to seize into the

.........

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