and hereditaments, including lands or hereditaments of copyhold or customary tenure, as the said judgment debtor or any person in trust for him was seised or possessed of on the day on which judgment (x) was entered up, or at any time afterwards, or over which he on that day had any disposing power which he might (without the assent of any other person) exercise for his own benefit to hold the said goods and chattels, also to hold the said lands, tenements, rents, tithes, rectories, and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the amount due under the execution be levied. The sheriff's duty under this writ is to impannel a jury to inquire of the goods and chattels of the debtor, and to appraise them, and also to inquire as to his lands and their value, and the goods (if any) are to be delivered to the execution creditor; and if the value of the goods is insufficient to satisfy the execution, the legal possession or right of entry to the lands is delivered to the execution creditor. The writ of capias ad satisfaciendum commands the sheriff to take the body of the judgment debtor, and him safely keep, so that he may have his body to satisfy the judgment creditor the amount of the judgment with in[* 375] terest * at 47. per cent. from the day on which judgment was entered up. The defendant cannot be taken on a ca. sa. in an action for the recovery of a debt wherein the sum recovered does not exceed 201., exclusive of the costs of such judgment. We may here notice that by the Common Law Procedure Act, 1854 (y), a new process of execution was given, in addition to the above, in actions in the superior courts, by the attachment of debts due to the judgment debtor. A judge may now make an order that debts owing or accruing from a third person to the judgment debtor shall be attached to answer the judgment debt. The third person, or garnishee (z), as he is termed, has full opportunity given him under the provisions of the act for showing cause against an order on him to pay such debt to the judgment creditor, and his liability, if disputed, is tried in a suit instituted by the judgment creditor against such garnishee, as prescribed by the act. During the lives of the parties to a judgment, execution may issue at any time within six years from the recovery of the judgment, without a revival of the judgment. After that period, or after a change by death or otherwise of the parties entitled or liable to execution, before execution can issue upon it, it must be revived by writ or with leave of the court or a judge by suggestion (a). Such is the ordinary course of an action at law as remodelled by the Procedure Acts and by the Rules of Pleading and Practice founded there upon (b). (584) (x) As to registration of writs of execution to affect lands in the hands of purchasers and mortgagees, see 23 & 24 Vict. c. 38, and also 27 & 28 Vict. c. 112, s. 1, which enacts that no judgment to be entered up after the passing of that act shall affect any land (of whatever tenure) until such land shall have been acutally delivered in execution by virtue of a writ of elegit, or other lawful authority in (2) From the French word "garnir," to warn. (a) Com. Law Proc. Act, 1852, ss. 128-134. (b) In connection with the foregoing account of modern procedure, and by way of contrast (584) The subject of trials in general, and more particularly "trial by jury," has been exhaustively discussed in 3 Wait's Pr. 1 et seq., to which reference is made for a full knowledge of the various steps in the conduct of a trial under the New York Code. The course of proceeding there delineated will be found not to materially differ from that prescribed by the reformed codes and rules of practice of many of the other States. with it, some notice is here appended of the ancient trial by wager of battle, which was abolished by stat. 59 Geo. 3, c. 46. This method of deciding a civil controversy seems to have owed its origin to the military spirit of our ancestors, joined to a superstitious frame of mind: it being in the nature of an appeal to Providence, under an apprehension and hope (however presumptuous and unwarrantable) that heav[* 376] en would give the victory to him who had the right. The decision of suits by this appeal to the God of battles is by some said to have been invented by the Burgundi, one of the northern or German clans who planted themselves in Gaul. Yet it does not seem to have been merely a local custom of this or that particular tribe, but to have been the common usage of all those warlike races from the earliest times (Seld. of Duels, c. 5). It may also be inferred, from a passage in Velleius Paterculus (lib. 2, c. 118), that the Germans, when first they became known to the Romans, were wont to decide contests of right by the sword: for when Quintilius Varus endeavoured to introduce among them the Roman laws and method of trial, it was looked upon (says the historian) as a "novitas incognita desciplinæ, ut solita armis decerni jure terminarentur." This trial was introduced into England among other Norman customs by William the Conqueror; but was only used in three cases, one military, one criminal, and the third civil. The first in the courtmartial, or court of chivalry and honour (Co. Litt. 261); the second in appeals of felony (as to which vide post, vol. iv.); and the third, upon issue joined in a writ of right, the last and most solemn decision of real property (ante, p. 271). One pretext for allowing it, upon these final writs of right, was for the sake of such claimants as might have the true right, but yet by the death of witnesses, or other defect of evidence, be unable to prove it to a jury. The last trial by battle waged in the court of common pleas at Westminster (though there was afterwards (Rushw. Coll. vol. ii. pt. 2, fol. 112; 19 Raym. 322) one in the court of chivalry in 1631, and another in the county palatine of Durham (Cro. Car. 512) in 1638) was in the thirteenth year of queen Eliza. beth, A. D. 1571, as reported by sir James Dyer (Dyer, 301): and was held in Tothill Fields, Westminster, non sine magnâ juris-consultorum perturbatione," says sir Henry Spelman (Gloss. 102), who was himself a witness of the ceremony. The form, as appears from the authors before cited, was as follows: 66 When the tenant in a writ of right pleaded the general issue, viz., that he had more right to hold, than the demandant had to recover; and offered to prove it by the body of his champion, which tender was accepted by the demandant; the tenant in the first place produced his champion, who, by throwing down his glove as a gage or pledge, thus waged or stipulated battle with the champion of the demandant; who, by taking up the gage or glove, stipulated on his part to accept the challenge. The reason why it was waged by VOL. II.-35 champions, and not by the parties themselves, in civil actions, was because, if any party to the suit died, the suit must have abated, and therefore no judgment could have been given for the lands in question, if either of the parties were slain in battle (Co. Litt. 294; Diversité des Courts, 304): and also that no person might claim an exemption from this trial, as was allowed in criminal [* 377 ] cases, where the battle was waged in person (post, vol. iv.). A piece of ground was then in due time set out, of sixty feet square, enclosed with lists, and on one side a court was erected for the judges of the court of common pleas, who attended there in their scarlet robes; and also a bar was prepared for the learned serjeants at law. When the court sat, which was properly by sunrising, proclamation was made for the parties and their champions, who were introduced by two knights, and were dressed, each in a coat of armour, with red sandals, barelegged from the knee downwards, bareheaded, and with bare arms to the elbows. The weapons allowed them were only batons, or staves of an ell long, and a four-cornered leather target; so that death very seldom occurred in this civil combat. When the champions, thus armed with batons, had arrived within the lists or place of combat, the champion of the tenant took his adversary by the hand, and made oath that the tenements in dispute were not the right of the demandant; and the champion of the demandant, then taking the other by the hand, swore in the same manner that they were each champion thus professing himself to be thoroughly persuaded of the truth of the cause he fought for. Next, an oath against sorcery and enchantment had to be taken by both the champions, in this or a similar form: "Hear this, ye justices, that I have this day neither eat, drank, nor have upon me, neither bone, stone, nor grass; nor any enchantment, sorcery, or witchcraft, whereby the law of God may be abased, or the law of the devil exalted. So help me God and his saints." The battle was then begun, and the combatants were bound to fight till the stars appeared in the evening; and, if the champion of the tenant could defend himself till the stars appeared, the tenant prevailed in his cause; for it was sufficient for him to maintain his ground, and make it a drawn battle, he being already in possession. But if the victory declared itself for either party, for him was judgment finally given. This victory might have arisen from the death of either of the champions, which, however, rarely happened; the whole ceremony, to say the truth, bearing a near resemblance to certain rural athletic diversions, which were probably derived from this original. Or victory was obtained, if either champion proved recreant, that is, yielded, and pronounced the horrible word "craven," a word of disgrace and obloquy, rather than of any determinate meaning. But a horrible word it indeed was to the vanquished champion: since, as a punishment to him for forfeiting the land of his [* 379] *CHAPTER XIII. INJURIES PROCEEDING FROM, OR AFFECTING THE CROWN. HAVING in preceding chapters considered the injuries, or private wrongs, that may be offered by one subject to another, and how they may be remedied, we proceed to inquire as to the mode of redressing those injuries to which the crown itself is a party: such injuries are either where the crown is the aggressor, or else is the sufferer; and these are usually remedied by peculiar forms of process, appropriated to the royal prerogative. We will here consider the manner: I. Of redressing those wrongs or injuries which a subject may suffer from the crown; and, II. Of redressing those which the crown may receive from a subject. Redress of I. That "the king can do no wrong," is a necessary and fundamental principle of the English constitution: meaning only, as was formerly observed (a), that in the first place, whatever may be amiss in the conduct of wrongs inflicted public affairs is not chargeable personally on the sovereign; and, by the crown. secondly, that the prerogative of the crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice (b). Whenever therefore it happens, that, through misinformation, or inadvertence, the crown has been induced to invade the private rights of any of its subjects, though no action will lie against the sov[*380] ereign (c), yet the law has furnished the *subject with a decent and respectful mode of removing that invasion, by informing him of the true state of the matter in dispute; which will then be put in a regular train for adjudication and adjustment. The distance between the crown and the subject is such, that a personal injury can seldom proceed immediately and directly from the sovereign to any private man; and, as it can so seldom happen, the law in decency supposes that it never will or can happen at all; because it feels itself incapable of furnishing any adequate remedy for such wrong, without infringing the dignity and destroying the sovereignty of the royal person, by setting up some superior power with authority to call him to account. The inconvenience therefore of a mischief that is barely possible, is (as Mr. Locke has observed (d)) well principal by pronouncing that shameful word, he was condemned, as a recreant, amittere liberam legem, that is, to become in famous, and not be accounted liber et legalis homo; being supposed by the event to be proved foresworn, and therefore never to be put upon a jury, or admitted as a witness in any cause. Such was the form of a trial by battle; a trial which the tenant, or defendant in a writ of right, had it in his election to demand; and *which was the only decision of [*378] such writ of right after the Conquest, till Henry II. by consent of parliament introduced the grand assize, a peculiar species of recompensed by the peace of the public and security of the government, in the person of the chief magistrate being set out of the reach of coercion. And upon this principle, the sovereign cannot be made answerable for the misconduct or negligence of his servants (e). Injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; and for them the law in matters of right entertains no respect or delicacy, but furnishes various methods of detecting the errors or misconduct of those agents by whom the sovereign has been deceived, and induced to do a temporary injustice (ƒ). Petition de droit The common law methods of obtaining possession or restitution from the crown, of either real or personal property, are, 1. By petition de droit, or petition of right: which is said to owe its origin to king Edward and monstrans I. (g). 2. By monstrans de droit, manifestation or plea of de droit. right. The former is of use where the sovereign is in full * possession of any hereditaments or chattels, and the petitioner [*381] suggests such a right as controverts the title of the crown, grounded on facts disclosed in the petition itself; in which case he must be careful to state truly the whole title of the crown, otherwise the petition shall abate (h): and then, upon this answer being indorsed or underwritten by the sovereign, soit droit fait al partie (let right be done to the party), a commission will issue to inquire of the truth of this suggestion (i): after the return of which, the attorney-general may plead in bar; and the merits will be determined upon issue or demurrer, as in suits between subject and subject. Thus, if a disseisor of lands, which are holden of the crown, dies seised without any heir, whereby the crown is primá facie entitled to the lands, and gets possession of them; now the disseisee may have remedy by petition of right, suggesting the title of the crown, and his own superior right (k). But where the right of the party, as well as the right of the crown, appears upon record, there the party shall have monstrans de droit, which is putting in a claim of right grounded on facts already acknowledged and established, and praying the judgment of the court, whether upon those facts the crown or the subject has the right. As if, in the case before supposed, the whole special matter is found by an inquest of office (as well the disseisin, as the dying without any heir), the party grieved shall have monstrans de droit at the common law (1). The remedy by monstrans was much enlarged and rendered almost universal by several statutes, particularly 36 Edw. 3, c. 17, and 2 & 3 Edw. 6, c. 8 (m), which also allowed inquisitions of office to be traversed or denied, wherever the right of a subject was concerned, except in a very few cases (n). This proceeding is, in general, had * in the petty-bag office in the court of [*382] chancery: and, if upon it the right claimed be finally determined against the crown, the judgment is, quod manus domini regis amoveantur (0), and by such judgment the crown is immediately out of possession (p). Although it is still competent to a subject seeking redress as against the crown to proceed according to the course above indicated (q), he will probably be advised rather to avail himself of the simpler and more effective process provided by the recent statute 23 & 24 Vict. c. 34, relating to petitions of right, and re-modelling the practice therewith connected. A petition of right, addressed to the sovereign, may now, if the suppliant think fit, be entitled in any superior court of common law or equity in which the subject-matter of such petition, or any material part thereof, would have been cognizable if the same had been a matter in dispute between subject and subject, and, if entitled in a court of common law, the petition must state in the margin a venue (r) showing where the trial thereon is to be. The petition must set forth with convenient certainty the facts entitling the suppliant to relief, and must be signed by the suppliant, his counsel, or attorney (s). It is to be left with the home secretary, in order that the same may be submitted to the queen for consideration, and that her fiat that right be done may, if she think fit, be granted thereupon (t). A copy of the petition and fiat (when obtained) are to be left at the office of the solicitor to the treasury, indorsed as required by the act, and praying for a plea or answer on behalf of the crown within twenty-eight days. The petition will then be transmitted to the particular * department to which [* 383] the subject-matter thereof may relate, and will be prosecuted in the court in which it is entitled, or in such other court as the lord-chancellor may direct (u). The time for answering, pleading, or demurring to the petition, on behalf of the crown, is the said period of twenty-eight days after the same has been left at the office of the solicitor to the treasury, or such further time as may be allowed (x). If the petition of right be presented for the recovery of real or personal property, or any right in or to the same, which has been granted away or disposed of by the crown, a copy of such petition, allowance, and fiat, as aforesaid, must be served upon, or left at the place of abode of, the person in the possession, occupation, or enjoyment of such property or right, indorsed with a notice requiring him to appear thereto within eight days, and to plead or answer thereto in the court in which the same is prosecuted within fourteen days after service: and the party thus served must, within the time so limited, if he intend to contest the petition, enter an appearance to the same, and plead, answer, or demur thereto within the time specified in such notice, or such further time as may be allowed (y). The petition may, under the provisions of the recent act, be answered by way of answer, plea, or demurrer in a court of equity, or in a court of common law by way of plea or demurrer, or by both pleas and demurrer, by or in the name of the attorney-general on behalf of the crown, and by or on behalf of any other person who may be called upon to plead or answer thereto, in the same manner as if such petition in a court of equity were a bill filed therein, or, if the petition be prosecuted in a court of common law, as if the same (r) Which venue may afterwards, however, L. R. 1 C. P. 171; L. R. 2 H. L. 20. (q) 23 & 24 Vict. c. 34, s. 18. be changed; s. 4. (8) S. I. (t) S. 2. See Irwin v. Grey, 3 F. & F. 635; (u) S. 3. (x) S. 4. (y) S. 5. |