Page images
[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors]

22. Where one party to the suit is an alien, 49. What is the modern doctrine as to such of whom shall the jury consist; but what if evidence as the jury may have in their own con both parties be aliens ? 360.

sciences by their private knowledge of facts' 23. What are challenges to the polls, in capita : 374, 375. and to what four heads are they reduced by Sir 50. What is the summing up of the evidence by Edward Coke? 361.

the judge? 375. 24. Can judges and justices he challenged? 361. 51. How is the delivery of the jury's verdict, 25. What is a writ de ventre inspiciendo? 362. veredictum, accelerated; and what if the jurors

26. What, by a variety of statutes, is a dis- eat or drink at all, or have any eatables about qualificution for juror in point of estate; but what them, without consent of the court ? 375. when the jury is de medietate linguæ ? 362, 363. 52. What circumstances will set aside the

27. Of what two sorts is a challenge propter verdict ? 375, 376 affectum, for suspicion of bias or partiality; what 53. What if the plaintiff do not appear to the if the causes of challenge of the first sort be verdict ? 376. true; and to whom is it given to try the validity 54. What is the form of a voluntary nonsuit ; of challenges of the second sort ? 363.

and why is it more eligible for the plaintiff than 28. With regard to what causes of challenge a verdici against him? 376, 377. may a juror himself be examined on oath of voir 55. Of what two kinds is a verdict and when dire, veritatem dicere ? 364.

is a verdict of the first kind of no force ? 377. 29. Who are excused from serving on juries ? 56. What have the jury also to do if they find 364.

issue for the plaintiff? 377. 30. Who may pray & tales, and what is it; 67. What is a special verdict; and by whom is and for this purpose when must a writ of decem it afterwards determined ? 377. tales, octo tales, and the like, still be issued to 58. What is another method of finding a spe. the sheriff; but, by virtue of the statute 35 Hen. cies of special verdict: and what advantage has VIII. c. 16, when may the judge award a tales this over the other kind of special verdict ? 378. de circumstantibus; and what is it? 364, 365. 59. In both these cases, must the jury return

31. To what are the jurors sworn ? 365. 8 special verdict ; and are they incompetent to

32. What is the course of proceeding upon decide the complicated question of fact and iaw ) the trial? 366, 367.

378. 33. What is the definition of evidence ? 367. 60. What are the four principal defects inci

34. Of what two kinds is evidence in the trial dent to a trial by jury? 382, 383. by jury ? 367.

61. What is a subpoena duces tecum 9 382. 35. Of what two sorts are proofs ? 367.

36. What two written proofs or evidence prove CHAP. XXIV.-Of Judgment and its Incidents. themselves; and what are the other two; and how must they be verified ? 367, 368.

1. What is a postea ? 386. 37. What is one general rule of evidence that 2. What is judgment; and till when and till runs through all the doctrine of trials ; and what can it not be entered ? 386, 387. upon what principle is hearsay evidence in general 3. What are causes of suspending the judgmeni, not admitted ? 368.

by granting a new trial ? 387. 38. To what transactions does the statute 7 4. What if two juries agree in the same or a Jac. I. c. 12 confine the admission of books of similar verdict ? 387. account to be read in evidence if the servant who 5. What is a new .ial; upon what proceed was accustomed to make the entries in it be dead ings is it granted; and where is it not granted! and his handwriting proved ? 368, 369.

391, 392. 34. What is the writ of subpoena ad testifi- 6. How has the court, in granting a new trial, candıım; but when is no witness bound to appear an opportunity of supplying the defects in the or to give evidence ? 369.

trial by jury; and within what time must tho 40. Who are competent witnesses ? 369, 370. motion for a new trial be made! 392.

41. How many witnesses are sufficient evidence 7. From what causes do arrests of judgmen. of any single fact? 370.

arise ? 393. 42. When is positive proof required; and when 8. What is an invariable rule with regard to is circumstantial or presumptive evidence admitted ? arrests of judgment upon matter of law; and will 871.

this rule hold e converso ? 394. 43. What weight have severally violent pre- 9. What is a repleader quod partes replacitent ; sumption, probable presumption, and light presump- and when will the court award it ? 395. tion? 371.

10. What is judgment; and of what four sorts ? 44. Need the witness tell all he knows of the 396, 396 ? matter in question, whether interrogated to every

11. Whose determination and sentence is the point or not? 372.

judgment; and what words constitute the style 45. What if the judge, either in his directions of the judgment? 396. or decisions, misstate the laws, by ignorance, in- 12. Of what two natures are all these four advertence, or design ? 372.

species of judgments ? 396. 46. What is a demurter to evidence; and by 13. What is judgment of respondeat ouster 1 whom shall it be determined ? 372.

396, 397. 47. But what practice has greatly superseded 14. What are the interlocutory judgments moss the recourse to either of these last proceedings ? usually spoken of; when oniy can they happen, 373.

when are they absolutely complete; and when, 48. What are the advantages of testimony ore and for what purpose, must a jury be called in! tmus? 373.

397, 398. VOL. II. - 44


[ocr errors][merged small][ocr errors][ocr errors][merged small][ocr errors][ocr errors]

!5. What is a warrant of attorney to confess a

CHAP. XXVI.-Of Ezicution. udgment; and what does the statute 4 & 5 W. and M. c. 20 require in order to its validity ? 397, 1. What is execution ; and how is it performed ! 398.

412. 16. What is a writ of inquiry to assess damages ?

2. What are writs of habere facias seisinam and 898.

habere facias possessionem ; to whom are they di 17. What are final judgments; and is the party rected; what is justifiable in their execution; and against whom judgment is given liable to any fine what is sufficient execution ? 412. to the king or imprisonment till that fine be paid ? 3. What is a writ de clerico admitendo; and is 890, 399.

whom is it directed ? 412. 18. Which party shall pay the costs of the suit ? 4. When does a special writ of execution issue 399, 400.

to the sherif? 413. 19. Who are not liable to pay costs ? 400. 5. What writ shall the plaintiff have where

20. What is enacted by statutes 43 Eliz. c. 6, one part of the judgment is quod nocumenius 21 Jac. I. c. 16, and 22 & 23 Car. II. c. 9, 8 136, amoveatur ; what is the writ of execution upon a 10 prevent trifling and malicious actions, for replevin ; what shall the defendant have if the words, for assault and battery, and for trespass, distress be eloigned; and what shall the plaini with what two exceptions, by statutes 4 & 5 W. have after judgment in detinue ? 413. and M. c. 23 and 8 & 9 W. III. c. 11 ? 401.

6. Of what five sorts are executions in actions 21. What follows after judgment, unless what? where money only is recovered as a debt or da401.

mages, and not any specific chattel ? 414.

7. What is the writ of capias ad satisfaciendum ; CHAP. XXV.-Of Proceedings in the Nature of and against whom does it not lie? 414, 415. Appeals.

8. To whom shall the capias issue if an action

be brought against a husband and wife for the 1. Of what four principal kinds are proceedings debt of the wife when sole; and to whom it the in the nature appeals from the proceedings of action were brought against her before her mar. the king's court of law ? 402, 405, 406.

riage? 414. 2. What is a writ of attaint; when, at common 9. What if judgment be recovered against a law, must it be brought; and on what issue only husband and wife for the contract or personal does it not lie? 402-404.

misbehaviour of the wife during her coverture ! 3. What jury are to try this false verdict; what 414. ure the qualifications of the jurors, by statute 15 10. What exemption has the man who is taken llen. VJ. c. 5; and which party only is allowed in execution upon this writ; and what does tho to produce new matter, and why? 404.

statute 21 Jac. I. c. 24 enact if the defenden: die 4. What was the judgment by the common law while charged in execution upon this writ? 414. if the grand jury found the verdict a false one? 404. 11. What executory process may be sued out for

5. But what was enacted by several statutes costs ? 415. as to the time when an attaint may be brought, 12. What if, after a defendant is once in cusand as to the punishment of the attainted ju- tody upon this process, he be seen at large ? rors? 405.

415. 6. But what has superseded the use of at- 13. Of what two natures are escapes; and laints? 405.

when shall the sheriff answer for the debt ? 415 7. What is the writ of deceit? 405.

14. Will a rescue of a prisoner in execution es 8. What is an audita querela ; and for what cuse the sheriff? 415. two persons does it lie? 405, 406.

15. But what does the statute 32 Geo. II. c. 9. But what has rendered this writ almost | 28 enact in favour of defendants charged in circauseless ? 406.

tion? 415, 416. 10. But what is the principal method of re- 16. Yet what powers have creditors orer their dress for erroneous judgments in the king's courts debtors on the other hand! 416. of record ? 406.

17. In what case may the plaintiff set out s 11. What is the writ to amend errors in a base writ of scire facias against the bail ; and what is court pot of record ? 407.

its effect? 416, 417. 12. Upon what matter only does a writ of error

18. What is a writ of fieri facias ; against lie? 407.

whom does it lie; what doors may be broken 13. Till when may the record be amended; open in its execution; who must be first paiu to and what is the effect of the statutes of amend- what amount; and what further remedy has the ment and jeofails ? 407, 408,

plaintijj' if part only of the debt be lerud on a 14. What is required of him that brings the fieri facias ? 417. writ, if it be brought to reverse any judgment of 19. What is a writ of levari facias ; and by an inferior court of record, where the daniages are what is its use superseded ? 417. less than ten pounds, or if it be brought to re- 20. What is a writ in the nature of aerar or verse the judgment of any superior court after fieri facias, to levy the debt and damage de ter's rerdict \ 410*.

ecclesiasticis ; to whom is it directed ; inl by 15. From what courts lies the writ of error into what is it followed ? 418. the king's bench? 410*.

21. What is the writ of elegit ; what lon is are 16. Whence lies the writ of error into the not liable to be taken in execuion upon a judg. rourt of exchequer-chamber; and before whom? ment ; what in case of debt to the king, by 410*

magna carta, c. 8; and in what case only can 17. Whence lies the writ of error in the house capias ad satisfaciendum be had after an elegit ! of peers; and thence whence? 410*, 411*.

418, 419.

[ocr errors]
[ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors]

22. What is an extent, or extendi facias ; and 14. What is the process of subpænu ; and what
apon what prosecutions may it be had ? 419, 420. if the defendant do not appear within the time

23. What, by statute 33 Hen. VIII. c. 39, of limited by the rules of the court, and plead, de-
all obligations made to the king; and what lands mur, or answer to the bill ? 443.
of a debtor does the king's judgment, or that of 15. What are the respective processes of con-
any of his afñcers mentioned in the statute 13 tempt, in their successive order; what if he de-
Eliz. C. 4, affect more than the subject's ? 420. fendant abscond; and what if he be taken : 444,

24. By the statute of frauds, 29 Car. II. c. 3, 445.
from what day shall the judgment bind the land 16. What is the process against a corporate body;
in che hands of a bona fide purchasor; and from and what against a peer; and what against
what day shall the writ of execution bind the member of the house of commons ? 445.
joods in the hands of a stranger or purchasor ? 17. What does the statute 5 Geo. II. c. 25

enact where the defendant cannot be found to be
25 When the plaintiff': demand is satisfied, served with process of subpæna? 445.
what ought to be entered on the record? 421. 18. What is a demurrer in equity ? 446.

26. But within what time must all these write 19. Of what three kinds are pleas; and may
le sued out? 421.

a defendant plead, demur, and answer 100? 446.
27. Yet, if this had not been the case, what 20. Why are exceptions to formal minutiæ in
will the court grant, in pursuance of statute West- the pleadings in equity not allowed ? 446.
minster 2, 13 Edw. I. c. 45; or what other remedy 21. What is an answer ; when is it given upon
kas the plaintiff : 421, 422.

oath, and when not; and when upon honour ? 446.

22. Before whom must the defendant be sworn CHAP. XXVII.-Of Proceedings in the Courts to his answer ; by whom must the answer be of Equity.

signed; and when may it be excepted to for in

sufficiency ? 447, 448.
1. What four matters of equity are peculiar 23. If the defendant have any relief to pray
10 tbe jurisdiction of the court of chancery? 426– against the plaintiff, how must it be done? 448.

24. When may the plaintiff amend his bill;
2. When has the court of chancery a right to and when must he have recourse to a supple-
appoint a guardian ; and whither lies the appeal mental bill ? 448.
in all proceedings relative thereto ? 427.

25. What is a bill of revivor ; and what a bus
3. How only can the proceedings to inquire of interpleader; and what must be annexed to
whether or no the party be an idiot or lunatic be this last bill? 448.
redressed if erroneous ? 427.

26. What if the plaintiff choose to proceed to
4. On the other hand, doth not the jurisdiction the hearing of the cause upon bill and answer
of the court of chancery fail to extend to some only? 448.
causes wherein relief may be had in the court of 27. What is a replication ; and how does the de-
exchequer and the duchy court of Lancaster ? 428, fendant join issue ? 448, 449.

28. How and by whom are witnesses examined,
5. What is equity in its true and genuine mean- of what nature must the interrogatories bę; to
ing; and does equity differ from law ? 429-436. what are examiners and their clerks sworn; and

6. What are the five essential differences how are they compellable to appear and submit
whereby the courts of equity are distinguished to examination ? 449.
from the courts of law ? 436.

29. What is a bill to perpetuate the testimony of
7. What does a court of equity, in the way of witnesses ? 450.
proof, when facts or their leading circumstances 30. When may a rule to pass publication of wit-
rest only in the knowledge of the party; and, nesses be had ? 450.
for want of this discovery at law, in what mat- 31. By whom and before whom may the cause
ters have the courts of equity acquired a concur- be set down for a hearing ? 450.
rent jurisdiction with every other court? 437, 32. What if the plaintiff do not attend upon

subpoena to hear judgment; and what if the de-
8. What authority and jurisdiction have courts fendant ? 451.
of equity in interrogatories administered to wit-

[ocr errors][ocr errors][merged small]
[ocr errors]

33. When may a plaintiff's bill be dismissed nesses ; and in what cases, on this account, do for want of prosecution ? 451. they exercise the same jurisdiction which might 34. What is the method of hearing causes in have been exercised at law? 438.

court? 451. 9. In what cases does the want of a more spe- 35. Of what two natures is the chancellor's cific remedy then can be obtained in the courts decree? 452. of law give a concurrent jurisdiction to a court 36. When does the court of chancery direct a of equity ? 438, 439.

feigned issue to be tried at the bar of the court 10. What are the fifteen proceedings in the of king's bench, or at the assises; and what is the courts of equity ? 442–445.

fiction ? 452. 11. What is a bill ; what does it always pray; 37. What does the court refer to the opinion ind when does it pray also an injunction ? 442. of the courts of king's bench or common pleas, upor

12. What if the bill do not call all necessary a case stated ; and what is done there in consepurries, however remotely interested, before the quence? 452, 453. court; by whom must it be signed; and what 38. What are referred by the decree, on the if it contain matter either scandalous or imper- first hearing, to a master in chancery; and what tinent ? 442, 443.

is done by him in consequence? 453. 18. Where must the bill be filed; and when 39. To what is the master's report liable? 453. will the court grant an injunction immediately? 443. 40. When and upon what is a final decru

e $ '

Z ལ ་ ཙ

27 him

made, and how is its performance enforced ? 42. But, after the decree is once signed and 453.

enrolled, how only can it be rectified ? 454. 41. Who may petition for a re-hearing ; by 43. When may a bill of review be had ? 454. whom must such petition be signed; what evi- 44. How is an appeal to the house of lords efdence is now admitted; and what may be sup- fected; and what evidence only is admitted thera! plied ? 453, 454.

454, 455.


HAP. I.-Uf the Nature of Crimes, and their that may be of some assistance in allotting it na Punishment.

adequate punishment ? 15, 16, 17.

22. Why is treason in conspiring the king's 1. What are the six considerations in treating death punished with greater rigour than even f public wrongs, or crimes and misdemeanours 7 actually killing any private subject? 15. 1, 2.

23. Why, generally, is a design to transgress 2. Why is the code of criminal law with us not so flagrant an enormity as the actual conin England denominated the doctrine of the pletion of that design; and why then, in the pleas of the crown? 2.

case of a treasonable conspiracy, will the bare 3. From what circumstances have the defects intention to kill the king deserve the highest de and disproportions in our criminal code arisen? | gree of severity ? 15. 3, 4.

24. Why is it in more cases capital for s 4. What is a crime or misdemeanour; and how servant to rob his master than for å stranger; has common usage distinguished the one from what greater crime is it for a servant to kill his the other? 5.

master than in another; why is it capital to steal 5. In what does the distinction of public above the value of twelvepence privately from wrongs from private, of crimes and misdemeanours one's person, and only transportation to carry off from civil injuries, principally consist ? 5.

a load of corn from an open field; and why, in 6. Which includes the other ? 6.

the island of Man, was it formerly only trespas! 7. In what crimes why cannot satisfaction be to take away a horse or an ox, and capital midemade both to the individual and the community ? meanour to steal a pig or a fowl? 16. and in what how may it? 6, 7.

25. What is the sentiment of the Marquis 8. What double view, then, has the law in Beccaria as to severity of punishment ? 17. taking cognizance of all wrongs or unlawful

26. What does a multitude of sanguinary laws acts ? 7.

argue in a government ? 17. 9. What are punishments ? 7.

27. What is the evil of making no distinction 10. In whom was the right of punishing crimes in the nature and gradations of punishment ! against the law of nature vested by that law ? 18. 7, 8.

28. How many offences have been declared by 11. What right has the temporal legislator to act of parliament felonies without benefit of clergy: inflict discretionary penalties for crimes against and why does so large a list, instead of diminish the law of nature, or mala in se? 7, 8.

ing, increase the number of offenders ? 18, 19. 12. What right has he to inflict punishment for offences against the laws of society, or mala pro- CHAP. II.-Of the Persons capable of committing hibita? 8.

Crimes. 13. When only is a legislature warranted in inflicting the punishment of death for offences of 1. To what single consideration may all the human institution ? 9, 10.

several pleas and excuses which protect the com 14. Is it found by experience that capital mitter of a forbidden act from the punishment punishments are more effectual in preventing which is otherwise annexed thereto be reduced ! crimes than lighter penalties ? 10.

20. 15. What is the end or final cause of human 2. What two things must there be to constitute punishment ? 11.

a crime against human laws? 21. 16. In what three ways is the end of human 3. In what three cases does not the will join punishment effected ? 11, 12.

with act? 21. 17. By what must the measure of human 4. What four species of defect in will fall punishment be determined ? 12.

under the first of these general neads; what 18. Why is not the lex talionis, or law of re- two under the second; and what two under the tnliation, in all cases an adequate or permanent third ? 21, 22. rule of punishment ? 12, 13.

5. In what cases does the law privilege an is. 19. Does the punishment of death with death fant under the age of twenty-one years; and is proceed upon the principle of retaliation ? 13, what under the age of fourteen only? 22. 14.

6. By what is the capacity of doing ill mea. 20. In what class of crimes is the lex talionis sured, as the law has stood since the time of more proper to be inflicted than in any other ; | Edward the Third ? 23. and, upon this principle, what was enacted by 7. At what age may an infant be guilty of statute 17 Edw. III. c. 18; and how long was felony; and though prima facie an infunt shall this the law? 14.

be adjudged to be doli incapar under fourteen, 21. What are some general principles drawn yet with what proviso may he be convicted and from the nature and circumstances of the crime suffer death under that age? 23, 24.

[ocr errors][ocr errors][ocr errors][ocr errors]

8 What is the rule of law as to lunatics which 9. If a servant instigate a stranger to kill nie may de easily adapted also to idiots ? 24. master, is he guilty of being accessory to petty

9 If a man in his sound memory commit an treason? 36. offence, and before arraignment for it he become 10. Who is an accessory before the fact ? 36, 37. mad, why shall not he be arraigned for it; if 11. If A. command B. to beat C., and B. beat after he have pleaaed he becomes mad, why shall him so that he die, is A. accessory to the murder ? he not be tried; if after he be tried and found | 37. guilty, why shall not judgment be pronounced; 12. If A. command B. to burn C.'s house, and and if after judgment, why shall execution be he, in so doing, commit a robbery, is A. accessory stayed? 24.

to the robbery? 37. 10. But what if there be any doubt whether 13. If A. command B. to poison C., and B. the party be compos or not; and what if a luna- stab or shoot him, is A. accessory to the murder ? tic have lucid intervals of understanding? 25. 37.

11. How may madmen be restrained from 14. Who is an accessory after the fact; and going loose ? 25.

what two things are necessary 10 make one? 12. Does drunkenness excuse a crime ? 25, 26. 37, 38.

13. When is a man who commits an unlawful 15. Does the relief of a felon in gaol, with act by misfortune or chance excused from all clothes or other necessaries, make a man an guilt ? 26, 27.

accessory after the fact ? 38. 14. What ignorance or mistake excuses crime? 16. Who are made accessories (when the prin27.

cipal felony admits of accessories) by the statutes 15. What are the three species of necessity | 5 Anne, c. 31, and 4 Geo. I. c. 11 ? 38. or compulsion which excuse crime ? 28, 30. 17. What if one wound another mortally, and,

16. When only is the constraint of a superior before death ensue, a person assist or receive in a private relation allowed as an excuse for the delinquent ? 38. what crimes ? 28, 29.

18. What if the parent assist or receive the 17. Why shall no plea of coverture, or pre- child, the child the parent, the brother the brother, sumption of the husband's coercion, excuse the the master the servant, the servant the master, the wife in case of treason? 29.

husband the wife, or the wife the husband, who 18. In what one offence may a wife be indicted have any of them committed a felony? 38, 39. and set in the pillory with her husband; and 19. How are accessories to be treated, conwhy? 29.

sidered distinct from principals ? 39. 19. For what offences only is duress per minas 20. For what four reasons, then, are such an excuse ? 30.

elaborate distinctions made between accessories 20. If a man be violently assaulted, and have and principals ? 39, 40. no other possible means of escaping death but 21. In what cases are accessories after the fali, by killing an innocent person, whom may he by the statutes, still allowed the benefit of clergy; kill? 30.

and in what cases is that benefit of clergy denied 21. Where a man by the commandment of the to the principals and accessories before the fact I law is bound to arrest another for any capital 39. offence, or to disperse a riot, and resistance is 22. Is an acquittal of receiving or counselling made to his authority, whom may he even kill, a felon an acquittal of the felony itself? 40. and why? 31.

23. Can one acquitted as principal be indicted as 22. May a man in extreme want of food or an accessory either before or after the fact? 40. clothing justify stealing either to relieve his present necessities? 31, 32.

CHAP. IV.- Of Offences against God and Ro23. What one case is there in which the law

ligion. supposes an incapacity of doing wrongs from the excellence and perfection of the person ? 32, 1. Or what five species are crimes and misde 83.

[ocr errors]
[ocr errors][ocr errors][merged small][ocr errors][ocr errors]

meanours which are either directly or by conse

quence injurious to civil society and thereforo CHAP. III.—Of Principals and Accessories.

punishable by the laws of England ? 42, 43.

2. Of such crimes and misdemeanours as more 1. What are the two different degrees of guilt immediately offend Almighty God by openly among persons that are capable of offending ? transgressing the precepts of religion either nam 34.

tural or revealed, what constitutes that guilt in 2. In what two degrees may a man be prin- action which human tribunals are to censure ! cipal in an offence? 34.

43. 3. Must the principal in the second degree be 3. What eleven crimes are of this speciee ? actually immediately standing by, withir sight 43, 44, 50, 59, 60, 62–64. or hearing of the fact ? 34.

4. What is apostasy; and in whom only can 4. In cases of murder committed in the absence it take place ? 43. of the murderer by means which he had prepared 5. As a penalty for apostasy, what is enacted beforehand, is the murderer principal in the first by statute 9 & 10 W. III. o. 32? 44. or second degree, or accessory; and why ? 34, 35. 6. What is heresy; what was the writ de ha

5. Who is an accessory; and of what two retico comburendo ; what did the statute 29 Car. kinds are accessories? 35.

II, enact as to heresy; and, as a penalty for 6. Why are all principals in high treason? 35. heresy, what is enacted by the statute 9 & 10 7. In what crimes may there be accessories ? 36. W. III. ? 44–46, 49, 50.

8. Why are all principals in petit larceny, ard 7. Of what two kinds are the offences against in all crimes under the degree of felony? 36. religion which affect the established church? 50




des AT

of detect is LEDers) :

Ir lar ATLE

117-188 TL TIRED

« PreviousContinue »