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& away action

24 hinderrk to a hin six

242 patron, II. His

cess.

III. lerk of ......... 241 dartein impedit rer da e writs

ion ad.

II. By

compel Danent

.. 245-262

King's hands any franchise usurped by which is either a dilatory prea (1st, to the subject, or to oust & usurper from the jurisdiction; 2dly, in disability of the any public office. VI. By writ of manda- plaintiff; 3dly, in abatement, or it is a mus, unless cause; to admit or restore plea to the action; sometimes confessing any person entitled to a franchise or the action, either in whole, or in part, office: to which, if a false cause be re- (wherein of a tender, paying money into turned, the remedy is by traverse, or by court, and set-off,) but usually denying action on the case for damages; and, in the complaint, by pleading either, let, consequence, a peremptory mandamus, or the general issue; or, 2dly, a special bar, Writ of restitution

.Page 257-265 (wherein of justifications, the statutes of

limitation, &c.) IV. Replication, rejoinCHAPTER XVIII.

der, surrejoinder, rebutter, surrebutter

&c. Therein of estoppels, colour, dupli br 25 PURSUIT OF REMEDIES BY Action,

city, departure, new assignment, protest. AND, FIRST, OF THE ORIGINAL WRIT..270 to 272

ation, averment, and other incidents of 1 The pursuit of the several remedies fur

pleading..

Page 293-318
nished by the laws of England, is, I. By
action in the courts of common law. II.
By proceedings in the courts of quity... 270

CHAPTER XXI.
Of an action in the court of Common OF ISSUE AND DEMURRER.

.314 to 317
Pleas, (originally the proper court for 1. Issue is where the parties, in a course of
prosecuting civil suits,) the orderly parts pleading, come to a point affirmed on one
are, I. The original writ.

II. The pro

side and denied on the other: which, if it III. The pleadings.

IV. The

be a matter of law, is called a demurrer; 18sue or demurrer. V. The trial. VI.

if it be a matter of fact, still retains the The judgment. VII. The proceedings in name of an issue of fact .........

814 nature of appeal.

VIII. The execution 272 2. Continuance is the detaining of the parThe original writ is the beginning or ties in court from time to time, by giving foundation of a suit, and is either op-, them a day certain to appear upon. And, tional, (called a præcipe,) commanding the if any new matter arises since the last defendant to do something in certain, or continuance or adjournment, the defendotherwise show cause to the contrary; or ant may take advantage of it, even after peremptory, (called a si fecerit te securum,)

demurrer or issue, by alleging it in a commanding, upon security given by the

plea puis darrein continuance.....

818 plaintiff, the defendant to appear in court, 3. The determination of an issue in law, or to show wherefore he bath injured the

demurrer, is by the opinion of the judges plaintiff both issuing out of Chancery

of the court; which is afterwards entered under the king's great seal, and return

on record ......

317 able in bank during term-time............... 272

CHAPTER XXII.
CHAPTER XIX.
O PROCESS...

279 to 292 OF THE SEVERAL SPECIES OF TRIAL... 330 to 041 1. Process is the means of compelling the

1. Trial in the examination of the matter of

330 defendant to appear in court........

279

fact put in issue...... 2 This includes, I. Summons. II. The writ

2. The species of trials are, I. By the re

cord. of attachment, or pone; which is some

II. By inspection. III. By certitimes the first or original process. III.

ficate. IV. By witnesses.

V. By wager The writ of distringas, or distress infinite.

of battel. VÍ. By wager of law.

VII.

330 IV. The writs of capias ad respondendum,

By jury........ and testatum capias: or, instead of these,

3. Trial by the record is had, when the exin the King's Bench, the bill of Middle

istence of such record is the point in issue 380 sex, and writ of latilat;-and, in the

4. Trial by inspection or examination is Exchequer, the writ of quo minus. V.

had by the court, principally when the The alias and pluries writs. VI. The

matter in issue is the evident object of the senses.......

381 exigent, or writ of exigi facias, proclamations, and outlawry. VII. Appearance,

5. Trial by certificate is had in these cases and common bail. VIII. The arrest. IX.

where such certificate must have been conclusive to a jury...

888 Special bail, first to the sheriff, and then to the action.........

... 279-292 6. Trial by witnesses (the regular method

FFECT..264 to 265 party, essor.

251 ver it which ...254-256 right: 3 dismonandcord. e the 255-257 the

De

in the civil law) is only used on a writ CHAPTER XX.

of dower, when the death of the husband is in issue .............

636 .293 to 313 7. Trial by wager of battel, in civil cases, are the mutual altercations of is only had on a writ of right; but, in the plaintiff and defendant, in writing; lieu thereof, the tenant may have, at his under which are comprised, 1. The decla- option, the trial by the grand assise ...... 337 ration or count, (wherein, incidentally, 8. Trial by wager of law is only had, where of the risne, nonsuit, retraxit, and dis- the matter in issue may be supposed to continuance.) II. The defence, claim of have been privily transacted between cognizance, imparlance, view, oyer, aid

the parties themselves, without the inIII The plea; tervention of other witnesses.. ....., 841

Ils PLEADINGS.. | Pleadings

prayer, voucher, or age

CHAPTER XXIII.

2. Writs of error lie, I. To the court uf OF THE TRIAL BY JURY............ Page 351 to 385

King's Bench, from all inferior courts of 1. Trial by jury is, I. Extraordinary; as,

record; from the court of Common Pleas by the grand assise, in writs of right;

at Westminster; and from the court of and by the grand jury, in writs of at

King's Bench in Ireland. II. To the taint. II. Ordinary

.... 351

courts of Exchequer Chanıber, from the 2 The method and process of the ordinary

law side of the court of Exchequer; and trial by jury is, I. The writ of venire

from proceedings in the court of King's facias tc the sheriff, coroners, or elisors;

Bench by bill. III. To the house of with the subsequent compulsive proceso

peers, from proceedings in the court of of habeas corpora, or distringas. II. The

King's Bench by original, and on writs

of error; and from the several courts of carrying down of the record to the court of nisi prius. III. The sheriff's return;

Exchequer Chamber..... Page 406411 or panel of, 1st, special, 20ly, common, jurors. IV. The challenges; 1st, to the

CHAPTER XXVI. array; 2dly, to the polls of the jurors ;

OF EXECUTION....

......... 412 to 425 either, propter honoris respectum, propter defectum, propter affectum, (which is some

1. Execution is the putting in force of the

sentence of judgment of the law: which is times a principal challenge, sometimes to

effected, I. Where possession of any herethe favour,) or, propter delictum. V. The

ditament is recovered; by writ of habere tules de circumstantibus. VI. The oath of

facias seisinam, possessionem, &c. II. the jury. VII. The evidence; which is

Where any thing is awarded to be done either by proofs, 1st, written: 2dly,

or rendered; by a special writ for that parol, -or, by the private knowledge of

purpose: as, by writ of abatement in the jurors. VIII. The verdict: which

case of nuisance; retorno habendo, and may be, ist, privy; 2dly, public; 3dly,

capias in withernam, in replevin; distringas special..

351-385

and scire facias in detinue. III. Where CHAPTER XXIV.

money only is recovered; by writ of,

1st, capias ad satisfaciendum, against the OF JUDGMENT, AND ITS INCIDENTS......386 to 399 body of the defendant; or, in default 1. Whatever is transacted at the trial, in

thereof, scire facias, against his bail. the court of nisi prius, is added to the re

2dly, fieri facias, against his goods and cord under the name of a postea; conse

chattels. 3dly, levari facias, against his quent upon which is the judgment ......... 386 goods and the profits of his lands. Judgment may be arrested or stayed for 4thly, elegit, against his goods and the causes, I. Extrinsic, or dehors the record: possession of his lands. 5thly, extendi as in the case of new trials. II. Intrin

facias, and other process, on statutes, sic, or within it: as where the declara

recognizances, &c., against his body, tion varies from the writ, or the verdict

lands, and goods....

........... 412-424 from the pleadings and issue; or where the case laid in the declaration is not

CHAPTER XXVIL sufficient to support the action in point of law ........

386-394

OF PROCEEDINGS IN THE COURTS OF EQUITY 8. Where the issue is immaterial or insuffi

426 to 455 cient, the court may award a repleader 395 1. Matters of equity, which belong to the 4. Judgment is the sentence of the law,

peculiar jurisdiction of the court of pronounced by the court, upon the mat

Chancery, are, I. The guardianship of ter contained in the record

395

infants. II. The custody of idiots and

lunatics. 6. Judgments are, I. Interlocutory; which

III. The superintendence of

charities. IV. Commissions of bankare incomplete till perfected by a writ of inquiry. II. Final....... .... 396 rupt..

426-422 6. Costs, or expenses of suit, are now the

2. The court of Eschequer, and the duchy necessary consequence of obtaining judg

court of Lancaster, have also some

399 ment..............

peculiar causes, in which the interest

of the king is more immediately conCHAPTER XXV. cerned...

.428-429

3. Equity is the true sense and sound inDr PROCEEDINGS IN THE NATURE OF AP

terpretation of the rules of law, and,

.402 to 411 as such, is equally attended to by the | Proceedings in the nature of appeals judges of the courts both of common from judgment are, I. A writ of attaint; law and equity...

130-13 to impeach the verdict of a jury: which 4. The essential differences, whereby the of late has been superseded by new trials. English courts of equity are distinII. A writ of deceit. III. A writ of audita guished from the courts of law, are, querela; to discharge a judgment by matter I. The mode of proof, by a discovery that has since happened. IV. A writ of on the oath of the party ; which gives error, from one court of record to another; a jurisdiction in matters of account, and to correct judgments, erroneous in point fraud. 11. The mode of trial ; by depoof law, and not helped by the statutes of sitions taken in any part of the world. amendment and jeofails...... .402-406

III. The mode of relief; by giving a more

PEALS

e court of

courts of mon Pleas e court of I. To the

from the quer; and of King's

house of e court of

on writs courts of Page 406-411

specific and extensive remedy than can be had in the courts of law: as, by carrying agreements into execution, staying Faste or other injuries by injunction, directing the sale of encumbered lands, &c. IV. The true construction of securities for money, by considering them merely as a pledge. V. The execution of trusts, or second uses, in a manner analogous to the law of legal estates........

Page 436-440 The proceedings in the court of Chancery (to which those in the Exchequer, &c. very nearly conform) are, I. Bill. II. Writ of subpoena; and perhaps injunction III. Process of contempt;

viz., (ordinarily) attachment, attach. ment with proclamations, commission of rebellion, serjeant-at-arms, an) sequestration. IV. Appearance. V. Demurrer. VI. Plea. VII. Answer. VIII. Exceptions; amendments; cross, or supplemental, bills, bills of revivor, interpleader, &c. IX. Replication. X. Issue. XI. Depositions taken upon interrogatories; and subsequent publication thereof. XII. Hearing. XIII. Interlocutory decree; feigned issue, and trial; reference to the master, and report; &c. XIV. Final decree. XV. Rehearing, or bill of review. XVI. Appeal to parliament.......

..... Page 442-160

...........

.....412 to 426
'ce of the
: which is
any here-
of habere
tc. II.

be done
for that
ment in
ndo, and
distringas
I. Where
writ of,
ainst the
i default
his bail.
pods and
winst his

lands.
and the
i atendi
statutes,
s body,

412-425

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CONTENTS OF THE ANALYSIS OF BOOK

BOOK IV.

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

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2. Public peace

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PUBLIC WRONGS. la which are considered 1. The general nature of crimes, and punishment.

....................... ......... ......... CAAPTER | II The persons capable of committing crimes..

I
II. Their several degrees of guilt; as

1. Principals,
2. Accessories .....

III
IV. The several crimes (with their punishments) more peculiarly offending
r1. God and religion.......

IV
2. The law of nations.....
3. The king and government; viz.
1. High treason..

VI
2. Felonies injurious to the prerogative.

VII 3. Præmunire......

VIII
4. Misprisions and contempts......

IX.
4. The commonwealth ; viz. offences against
[ 1. Public justice ......

х

XI
3. Public trade

XII
4. Public health,
5. Public economy.

XIII.
5. Individuals; being crimes against
11. Their persons; by
11. Homicide...

XIV
12. Other corporal injuries..

XV 2. Their habitations

XVI 3. Their property..

XVII.
V. The means of prevention; by security for

51. The peace,
2 The good behaviour......

XVIII.
VI. The method of punishment; wherein of
1. The several courts of criminal jurisdiction

XIX.
12. The proceedings there,
{ 1. Summary.

XX
12. Regular; by
1. Arrest

XXL
2. Commitment and bail. .............

XXII
3. Prosecution ; by

(1. Presentment,
2. Indictment,
3. Information,
4. Appeal...

XXIN.
4. Process..

XXIV. 6. Arraignment, and its incidents

XXV 6. Plea, and issue

XXVI 7. Trial, and conviction ...............................................................

XXVII
8. Clergy

XXVIIJ
9. Judgment, and attainder; which induce
s ,

XXIX.
10. Avoider of judgment, by
5 1. Falsifying, or reversing, the attainder ..............

XXX
12. Reprieve, or pardon......

XXXL 11. Execution.......

XXXII

.......

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ANALYSIS.

BOOK IV.*-OF PUBLIC WRONGS.

THEIR

ment.............

cuse....

Crimes are

CHAPTER )

3. A vicious will may therefore be wanting, 07 TIL NATURE OF CRIMES, AND

in the cases of I. Infancy. II. Idiocy, or PUYIAHMENT...

.Page 1 to 12

lunacy. III. Drunkenness; which doth 1. In treating of public wrongs may be

not, however, excuse. IV. Misfortune. considered, I. The general nature of

V. Ignorance, or mistake of fact. VI. crimes and punishments. II. The per

Compulsion, or necessity; which is, 1st, sons capable of committing crimes. III.

that of civil subjection; 2dly, that of Their several degrees of guilt. IV. The

duress per minas ; 3dly, that of choosing several species of crimes, and their re

the least pernicious of two evils where spective punishments. V. The means of

one is unavoidable; 4thly, that of want prevention. VI. The method of punish

or hunger; which is no legitimate ex1

..... Page 22-32 2. A crime, or misdemeanour, is an act com

4. The king, from his excellence and digmitted, or omitted, in violation of a

nity, is also incapable of doing wrong....

58 public law, either forbidding or commanding it....

5

CHAPTER III.
distinguished from civil
OF PRINCIPALS AND ACCESSORIES....

......... 34 to 37 injuries, in that they are a breach and

1. The different degrees of guilt in crimiviolation of the public rights, due to the

nals are, I. As principals. II. As acceswhole community, considered as a com

sories...

84 munity......

5

2. A principal in a crime is, I. He whe 4. Punishments may be considered with

commits the fact.

II. He who is preregard to, I. The power, II. The end,

sent at, aiding, and abetting, the comIII. The measure, -of their infliction..... 7

mission .......

31 6. The power, or right, of inflicting human

3. An accessory is he who doth not commit punishments, for natural crimes, or such

the fact, nor is present at the commisas are mala in se, was by the law of

sion, but is in some sort concerned therenature rested in every individual; but,

in, either before or after.....

36 by the fundamental contract of society, 4. Accessories can only be in petit treason, is now transferred to the sovereign

and felony: in high treason, and misdepower: in which also is vested, by the

meanours, all are principals........

36 same contract, the right of punishing

5. An accessory before the fact is one who, positive offences, or such as

are mala

being absent when the crime is committed, prohibita ...

7 6. The end of human punishments is to

hath procured, counselled, or commanded another to commit it.

86 prevent future offences; I. By amending

6. An accessory after the fact, is where the offender himself. II. By deterring others through his example. III. By

a person, knowing a felony to have been

committed, receives, relieves, comforts, depriving him of the power to do future

or assists the felon. Such accessory is

11 1. The measure of human punishments

usually entitled to the benefit of clergy;

where the principal, and accessory before must be determined by the wisdom of

the fact, are excluded from it

87 the sovereign power, and not by any uniform universal rule: though that wig

CHAPTER IV. dom may be regulated, and assisted, by certain general, equitable principles...... 12 OF OFFENCES AGAINST God and RELIGION..

mischief.

42 to 06 CHAPTER II.

1. Crimes and misdemeanours, cognizable by O THE PERSONS CAPABLE OF COMMITTING the laws of England, are such as more

. 20 to 33 immediately offend, I. God, and his holy | All persons are capable of committing religion. II. The law of nations. III crimes

, unless there be in them a defect The king and his government. IV. The of will; for, to constitute a legal crime, public, or commonwealth. V. Jndivithere must be both a vicious will and á duals... 2. The will does not concur with the act,

20 2. Crimes more immediately offending God

and religion are, I. Apostasy. For which !. Where there is a defect of understand- the penalty is incapacity, and imprisoning. II. Where no will is exerted. III. ment. II. Heresy. Penalty for one speWhere the sot is constrained by force

cies thereof: the same. III. Offences 21 against the established (burch. . .Either

Chines........

vicious act.....

and violence.........

........

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