3. Ouster from freeholds is affected by, I. Abatement. II. Intrusion. III. Disseisin. IV. Discontinuance. Deforcement Page V. 167 4. Abatement is the entry of a stranger, after the death of the ancestor, before the heir 5. Intrusion is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion 6. Disseisin is a wrongful putting out of him that is seized of the freehold 7. Discontinuance is where tenant in tail, or the husband of tenant in fee, makes a larger estate of the land than the law alloweth 8. Deforcement is any other detainer of the freehold from him who hath the property, but who never had the pos session 9. The universal remedy for all these is restitution or delivery of possession, and, sometimes, damages for the detention. This is effected, I. By mere entry. II. By action possessory. III. By writ of right 167 1. Ouster from chattels real is, I. From estates by statute and elegit. II. From an estate for years 198 169 171 172 174 175-179 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 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 sory actions of writ of entry, or assise 12. A writ of entry is a real action, which disproves the title of the tenant, by shewing the unlawful means under which he gained or continues possession. And it may be brought, either against the wrong-doer himself; or in the degrees, called the per, the per and cui, and the post posses 179 180 184-190 13. An assise is a real action, which proves the title of the demandant, by shewing his own, or his ancestor's possession. And it 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 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 possessory action, had upon the merits. IV. Where 2. Ouster, from estates by statute or elegit, is effected by a kind of disseisin. Remedy restitution, and damages; by assise of novel disseisin 3. Õuster from an estate for years, is effected by a like disseisin or ejectment. Remedy restitution and damages; I. By writ of ejectione firma. II. By writ of quare ejecit infra terminum 4. A writ of ejectione firme, or action of trespass in ejectment, lieth where lands, &c., are let for a term of years, and the lessee is ousted or ejected from his term; in which case he shall recover possession of his term, and damages 198 199 199 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 200-206 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, or one's cattle; without any lawful authority, 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 re cover no more costs than damages 208-215 CHAPTER XIII. 9. Injuries to health, by any unwholesome practices, are remedied by a special action of trespass on the case, for damages 10. Injuries to reputation are, I. Slanderous and malicious words. Reme same. dy by action on the case, for damages. II. Libels. Remedy: the III. Malicious prosecutions Remedy by action of conspiracy, c on the case, for damages 11. The sole injury to personal libe is false imprisonment. Remedies By writ of. 1st, mainprize; 21 odio et atia; 3rdly, homine replegic 4thly, habeas corpus; to remov wrong. II. By action of trespa recover damages 12. For injuries to private prope 3. XIV. 223 to 229 Jestruction in to the injury of immediate inte Common) in the inder or rever e commoner, are, ages, by assise ages only; by ac 14. Injuries to an husband duction, or taking awa Remedy by action of uxore rapta et abducta, t session of his wife, and Criminal conversation medy by action or damages. III. Beat dy by action on th consortium amisit, fo 15. The only injury dian, is the abducti or wards. Remed pass, de filiis, v abductis; to r them, and dama APTER XV. 16. Injuries to a ing his servan the case, 1 OF INJURI 1. Injuries either t proper' 2. Perso sion, 3. Inju re. or remainder, reventive: by writ injunction out II. Cor day waste. a of waste; to reco 223 224 ted, and damages 225–229 230 to 235 when one who owes ther, withdraws or neform them. This may ts, and other services, II. Of those due by etion of rents and services ure, the remedy is, I. By o compel the payment, or Ice. II. By action of debt. ssise. IV. By writ de conbus et servitiis-to compel the t. V. By writ of cessavit; and writ of right sur disclaimerver the land itself medy the oppression of the lord, w has also given, I. The writ injuste vexes: II. The writ of 230 231-234 t subtraction of services, due by tom, the remedy is, I. By writ of ta ad molendinum, furnum, torrale, ; to compel the performance, and cover damages. II. By action on ae case; for damages only CHAPTER XVI. JF DISTURBANCE 234 235 236 to 252 1. Disturbance is the hindering or disquieting the owners of an incorporeal 4. Disturbance of common, is I. Intercommoning without right. Remedy: damages; by an action on the case, or of trespass: besides distress damage feasant; to compel satisfaction. RemeII. Surcharging the cominon. dies: distress damage feasant; to compel satisfaction: action on the case; for damages: or, writ of admeasurement of pasture; to apportion the common;-and writ de secunda superoneratione; for the supernumerary cattle, and damages. III. Enclosure, or obstruction. Remedies: restitution of the common, and damages; by assise of novel disseisin, and by writ of quod permittat: or, damages only; by action on the case 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 spe cial 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 pseudopatron, 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 Page 255-257 which is to remove the hands (or possession) of the king 4. Where the crown is the sufferer, the king's remedies are, I. By such common law 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 monies 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 king's hands any franchise usurped by the subject, or to oust an usurper from any public office. VI. By writ of mandamus, unless cause; to admit or restore any person entitled to a franchise or office to which, if a false cause be returned, the remedy is by traverse, or by action on the case for damages; and, in consequence, a peremptory mandamus, or writ of restitution CHAPTER XVIII. 257-265 270 to 272 OF THE PURSUIT OF REMEDIES BY ACTION, AND, FIRST, OF THE ORIGINAL WRIT 1. The pursuit of the several remedies furnished by the laws of England, is, I. By action in the courts of common law. II. By proceedings in the courts of equity 2. Of an action in the court of Common Pleas (originally the proper court for prosecuting civil suits) the orderly parts are, I. The original writ. II. The process. III. The pleadings. V. The IV. The issue, or demurrer. trial. VI. The judgment. VII. The proceedings in nature of appeal. VIII. The execution 3. The original writ is the beginning or foundation of a suit, and is either optional (called a precipe) commanding the defendant to do something in certain, or otherwise shew cause to the contrary; or peremptory (called a si fecerit te securum) commanding, upon security given by the plaintiff, the defendant to appear in court, to shew wherefore he hath injured the plaintiff: both issuing out of Chancery under the king's great seal, and returnable in bank during term-time OF PROCESS CHAPTER XIX. 270 272 272 279 to 292 1. Process is the means of compelling the defendant to appear in court VOL. II. 279 2 2. This includes, I. Summons. II. The writ of attachment, or pone; which is sometimes the first or original process. III. The writ of distringas, or distress infinite. IV. The writs of capias ad respondendum, and testatum capias: or, instead of these, in the King's Bench, the bill of Middlesex, and writ of latitat; and, in the Exchequer, the writ of quo minus. V. The alias and pluries writs. VI. The exigent, or writ of exigi facias, proclamations, and outlawry. VIII. Appearance, and common bail. VIII. The arrest. IX. Special bail, first to the sheriff, and then to the action CHAPTER XX. Page 279-292 293 to 313 OF PLEADINGS 1. Pleadings are the mutual altercations of the plaintiff and defendant, in writing; under which are comprised, I. The declaration or count (wherein, incidentally, of the visne, nonsuit, retraxit, and discontinuance). II. The defence, claim of cognizance, imparlance, view, oyer, aid-prayer, voucher, or age. III. The plea; which is either a dilatory plea (1st, to the jurisdiction; 2ndly, in disability of the plaintiff; 3rdly, in abatement: or it is a plea to the action; sometimes confessing the action, either in whole, or in part (wherein of a tender, paying money into court, and set-off'); but usually denying the complaint, by pleading either, 1st, the general issue; or, 2ndly, a special bar (wherein of justifications, the statutes of limitation, &c.) IV. Replication, rejoinder, surrejoinder, rebutter, surrebutter, &c. Therein of estoppels, colour, duplicity, departure, new assignment, protestation, averment, and other incidents of pleading CHAPTER XXI. 293-313 314 to 317 OF ISSUE AND DEMURRER 1. Issue is where the parties, in a course of pleading, come to a point affirmed on one side and denied on the other: which, if it be a matter of law, is called a demurrer; if it be a matter of fact, still retains the name of an issue of fact 2. Continuance is the detaining of the parties in court from time to time, by giving them a day certain to appear upon. And, if any new matter arises since the last continuance or adjournment, the defendant may take advantage of it, even after demurrer or issue, by alleging it in a plea puis dar 9. Injuries to health, by any unwholesome practices, are remedied by a special action of trespass on the case, for damages 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 11. The sole injury to personal liberty is false imprisonment. Remedies: I. By writ of, 1st, mainprize; 2ndly, odio et atia; 3rdly, homine replegiando; 4thly, habeas corpus; to remove the wrong. II. By action of trespass; to recover damages Page 121 123 127-138 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 an 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 damages 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 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. 138 139 140-1 141-143 OF INJURIES TO PERSONAL PROPERTY 1. Injuries to the rights of property, are either to those of personal, or real, property 2. Personal property is either in possession, or in action 3. Injuries to personal property in possession are, I. By dispossession. II. By damage, while the owner remains in possession 4. Dispossession may be effected, I. By an unlawful taking. II. By an unlawful detaining 5. 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 ist, in case of rescous, by action of rescous, pound-breach, or on the case; 2ndly, in case of other unlawful takings, by action of trespass, or trover 144 144 144 145-151 6. For the unlawful detaining of goods lawfully taking, the remedy is also, I. Actual restitution; by action of replevin, or detinue. II. Satisfaction in damages; by action on the case, for trover and conversion 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 Page 151 153 153 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 158 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 158-161 12. Breaches of contracts implied in reason and construction of law, are by the non-performance of legal presumptive assumpsits: 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 161-166 6. Disseisin is a wrongful putting out of him that is seized of the freehold 7. Discontinuance is where tenant in tail, or the husband of tenant in fee, makes a larger estate of the land than the law alloweth 8. Deforcement is any other detainer of the freehold from him who hath the property, but who never had the pos session 9. The universal remedy for all these is restitution or delivery of possession, and, sometimes, damages for the detention. This is effected, I. By mere entry. II. By action possessory. III. By writ of right 167 CHAPTER XI. OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL 198 to 207 169 1. Ouster from chattels real is, I. From estates by statute and elegit. II. From an estate for years 198 169 171 172 174 175-179 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 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 shewing the unlawful means under which he gained or continues possession. And it may be brought, either against the wrong-doer himself; or in the degrees, called the per, the per and cui, and the post 179 180 184-190 13. An assise is a real action, which proves the title of the demandant, by shewing his own, or his ancestor's possession. And it 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 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 possessory action, had upon the merits. IV. Where 2. Ouster, from estates by statute or elegit, is effected by a kind of disseisin. Remedy restitution, and damages; by assise of novel disseisin 3. Õuster from an estate for years, is effected by a like disseisin or ejectment. Remedy restitution and damages; I. By writ of ejectione firma. II. By writ of quare ejecit infra terminum 4. A writ of ejectione firme, or action of trespass in ejectment, lieth where lands, &c., are let for a term of years, and the lessee is ousted or ejected from his term; in which case he shall recover possession of his term, and damages 198 199 199 5. This is now the usual method of trying titles to land, instead of an action real viz. by, I. The claimant's mak ing 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 200-206 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, or one's cattle; without any lawful authority, 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 re cover no more costs than damages 208-215 CHAPTER XIII. |